author: BAKER, J.

text:
    STATE of Iowa, Plaintiff-Appellee v. Raymond Wayne Eugene HALL, Defendant-Appellant.
    No. 07-0354.
    Court of Appeals of Iowa.
    Sept. 6, 2007.

      Mark C. Smith, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey Noble, Assistant County Attorney, for appellee.
    Considered by HUITINK, P. J., and VOGEL and BAKER, JJ.
   BAKER, J.

Raymond Hall appeals the portion of his sentence for sexual exploitation of a minor that imposes a no-contact order. We reverse the portion of the sentence containing the imposition of a no-contact order under Iowa Code chapter 664A (Supp. 2005). We remand to the district court for entry of the restrictions on communication and contact with minors as conditions of probation and for clarification of the restriction on communication with minors.

I. Background and Facts

On May 27, 2006, Hall brought his computer to the Geek Squad at Best Buy for assistance in recovering files from the computer. While working on the eomputer, employees discovered files that contained child pornography. The employees contacted the West Des Moines Police Department.

Hall admitted that he had images on his computer of children engaging in prohibited sexual activity and that he possessed these images for his sexual gratification. He was charged with five counts of exploitation of a minor in violation of Iowa Code section 728.12(3) (2005). On November 22, 2006, he pled guilty to one count of sexual exploitation of a minor. The State dismissed the other four counts. The district court accepted Hall’s guilty plea and placed him on probation for two years. As part of its sentencing order, the court entered a no-contact order under Iowa Code section 901.5(7A) (2005), which was repealed by 2006 Iowa Acts chapter 1101, section 16, but essentially recodified in Iowa Code chapter 664A pursuant to 2006 Iowa Acts chapter 1101, sections 5-12. The no-contact order read in pertinent part:

1. Defendant shall not communicate or attempt to communicate with the protected party[] in person, in writing, by telephone, voice or electronic messaging systems or through any means including third persons....
2. Defendant shall not be in the immediate vicinity of locations where children are normally found: schools, libraries, playgrounds, YMCA, YWCA, etc. Defendant shall stay away from such places and shall have no contact with minors [with the] exception [of] incidental contact in public places where other responsible adults are present. Defendant may also have supervised contact with his own biological nephew.

(Footnote added.)

II. Standard of Review

Hall appeals the portion of his sentence that imposes a no-contact order, asserting the order is not authorized by statute, is constitutionally overbroad, and is unreasonable. When a defendant challenges his sentence on appeal, “[djepend-ing upon the nature of the challenge, the standard of review is for the correction of errors at law or for an abuse of discretion.” State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). Challenges to the legality of a sentence are reviewed for correction of errors at law. State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005). Challenges to the sentence as unreasonable are reviewed for an abuse of discretion. State v. Evans, 671 N.W.2d 720, 727 (Iowa 2003). To the extent Hall presents constitutional issues, our review is de novo. State v. Mitchell, 670 N.W.2d 416, 418 (Iowa 2003).

III. Merits

The State asserts that Hall failed to preserve error. It first argues that, if Hall’s no-contact order was negotiated as part of his plea agreement, error was not preserved. See State v. Sage, 162 N.W.2d 502, 504 (Iowa 1968) (noting the general rule that a defendant may not allege error on an issue to which he acquiesced, or was committed or invited by him). At the plea hearing, there was a lengthy discussion between the court and the parties regarding the meaning of the provisions of the no-contact order. We find the order had not been fully negotiated as part of the plea agreement.

The State also argues that Hall failed to preserve error because he did not object to the order or claim it was unconstitutionally overbroad at the sentencing hearing. As a general rule, “[i]ssues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal.” State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). “The rule, however, is not ordinarily applicable to void, illegal or procedurally defective sentences.” State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App.1994); see also State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998) (“It strikes us as exceedingly unfair to urge that a defendant, on the threshold of being sentenced, must question the court’s exercise of discretion or forever waive the right to assign the error on appeal.”). Because Hall claims the no-contact order was not authorized by statute, his failure to raise the issue of sentencing error at the time of sentencing does not constitute a waiver of his right to raise the issue on appeal.

A. Statutory Authority

Hall contends the district court erred in imposing a no-contact order pursuant to Iowa Code section 901.5(7A) as part of his sentence because the order was not authorized by statute. He argues the court was not authorized to enter the no-contact order under Iowa Code section 901.5(7A)(a)-(b), because that subsection was repealed in 2006. He also argues the order was not authorized under section 664A.2, which authorizes no contact orders in connection with various crimes, because 664A.2 does not list section 728.12(3) as a triggering code section. Consequently, Hall argues, the only language which could have authorized the issuing of the no-contact order is section 664A.2’s “any other offense for which there is a victim.” Hall further argues that, because there was no “victim,” defined in section 664A.1(3) as “a person who has suffered physical, emotional, or financial harm as a result of a public offense,” section 664A.2 does not authorize the order.

The State contends that the no-contact order is authorized under section 907.6, which allows the sentencing court to define probation conditions. Pursuant to section 907.6, probations are subject to any “reasonable conditions which the court ... may impose to promote rehabilitation of the defendant or protection of the community.”

We agree with the State that the district court was authorized under section 907.6 to define reasonable probation conditions. Section 907.6 does not, however, authorize creation of a condition of probation that could result in criminal prosecution under section 664A. Section 664A.2 does not list section 728.12(3) as a triggering offense, and there was no “victim” as defined in section 664A.1(3). Therefore, the no-contact order was not authorized pursuant to section 664A.2 or section 907.6. We remand to the district court for entry of the restrictions on contact and communication with minors as conditions of probation without the imposition of a no-contact order under chapter 664A.

B. Reasonableness and Breadth

Hall also contends the no-contact order, which prevents him from having contact with any child, is “overbroad because it impacts his freedom of speech, his right to associate with others, and his right to travel” and is an “unreasonable and arbitrary condition of probation.” He asserts that the order would prevent him from going to public places where children are present, and that there are numerous “situations where one is forced to communicate with a child under the age of eighteen, whether it be the paper boy, the clerk at the grocery store, or the ticket seller at the movie theater.”

“The legislature has given the courts broad, but not unlimited, authority in establishing the conditions of probation.” State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998). “[Conditions of probation cannot be unreasonable or arbitrary.” State v. Rogers, 251 N.W.2d 239, 243 (Iowa 1977). We carefully scrutinize probation conditions that restrict fundamental rights. See State v. Franklin, 604 N.W.2d 79, 82 (Minn.2000) (noting that, while probationers may be subject to restrictions of their constitutional rights, a district court’s discretion in establishing probation conditions is carefully scrutinized when a condition restricts fundamental rights).

A condition of probation promotes the rehabilitation of the defendant or the protection of the community when it addresses some problem or need identified with the defendant, or some threat posed to the community by the defendant. A condition is reasonable when it relates to the defendant’s circumstances in a reasonable manner and is justified by the defendant’s circumstances. Thus, the inquiry into the reasonableness of a condition of probation boils down to whether the statutory goals of probation are reasonably addressed. As a result, whether a condition meets the statutory goals of probation and whether it is reasonable are questions that are best addressed together.

Valin, 724 N.W.2d at 446-47 (citing 21A Am.Jur.2d Criminal Law § 907, at 171-73 (1998) (“[Conditions that are found to be vindictive, vague or overbroad, or unreasonable, [or] which ... require or forbid conduct which is not reasonably related to future criminality, ... are invalid.”)) (other citations omitted).

In child pornography cases, probation conditions which reasonably limit contact and communication with minors have been uniformly found to be valid in state and federal courts. See, e.g., United States v. Kerr, 472 F.3d 517, 521-23 (8th Cir.2006) (holding conditions limiting contact with minors were not unreasonably restrictive where defendant was convicted of child pornography offenses); United States v. Paul, 274 F.3d 155, 167 (5th Cir.2001) (upholding restriction on child pornographer’s direct and indirect contact with minors as “reasonably necessary in light of the nature and circumstances of [ ] offense and the legitimate need to prevent recidivism and protect the public”); United States v. Loy, 237 F.3d 251, 269 (3rd Cir.2001) (upholding condition of supervised release that prohibited defendant convicted of receiving and possessing child pornography from having unsupervised contact with minors); Ellis v. State, 221 Ga.App. 103, 470 S.E.2d 495, 496 (1996) (finding it reasonable for court to regulate defendant contact with children where defendant had been convicted of child molestation). We conclude that probation conditions which limit Hall’s contact and communication with minors are reasonable in light of his conviction.

We disagree with Hall’s assertion that the restriction on contact with minors would prevent him from going to public places where children are present because the restriction contains an exception for “incidental contact in public places where other responsible adults are present.” We find the prohibition against being “in the immediate vicinity of locations where children are normally found,” with an exception for incidental contact, is neither an overbroad nor unreasonable condition of Hall’s probation.

We are concerned, however, with the restriction on communicating or attempting to communicate with any child under eighteen years of age. That section does not include an exception for incidental communication, such as with a minor grocery store clerk, movie ticket taker, or fast-food clerk. These examples illustrate the day-to-day impossibility Hall would encounter in attempting to comply with this restriction as written. A total ban on all communication with all minors without an exception for incidental communication where other responsible adults are present would, in effect, require Hall to become a hermit.

Courts may not impose probation conditions that involve “a greater deprivation of liberty than is reasonably necessary” and that is not reasonably related to the rehabilitation of the defendant or protection of the community. United States v. Voelker, 489 F.3d 139, 144 (3rd Cir.2007); accord Jorgensen, 588 N.W.2d at 687 (citing Iowa Code § 907.6; State v. Akers, 435 N.W.2d 332, 335 (Iowa 1989)). For example, the third circuit found it “hard to imagine how [defendant] could function in modern society given [a] lifetime ban on all forms of computer access” and struck down the ban because it “ ‘sweeps more broadly and imposes a greater deprivation on [defendant’s] liberty than is necessary.’ ” Voelker, 489 F.3d at 148, 150 (quoting United States v. Holm, 326 F.3d 872, 877 (7th Cir.2003)); see also Sturgeon v. State, 582 So.2d 746, 747 (Fla.Dist.Ct.App.1991) (amending condition of probation restricting contact with person under age twenty-one because it was unduly restrictive on contact with adults); Ellis, 470 S.E.2d at 496 (finding a condition restricting defendant from “spending time at locations where children are present or likely to be present could be literally applied to prohibit [defendant] from shopping at virtually any store”); Beckner v. State, 296 S.C. 365, 373 S.E.2d 469 (1988) (holding a condition that defendant not be in any place that serves alcohol unreasonable because it has the practical effect of prohibiting entry to virtually every store and restaurant in the state). Like a lifetime ban on computer access, it is hard to imagine how one could function in modern society without communicating with any minors. We conclude that banning Hall from all communication with minors would be unreasonably restrictive.

While we do not believe the district court would abuse its discretion in imposing a condition of probation which restricts Hall’s communication with minors, “we find the condition as written ambiguous and, depending on its meaning, excessively broad.” United States v. Peterson, 248 F.3d 79, 86 (2d Cir.2001). Contra Loy, 237 F.3d at 269 (“[I]t is well established that associational conditions do not extend to casual or chance meetings.”) It is unclear whether the prohibition applies to only non-incidental communication or whether it would bar Hall from saying “thank you” to a minor clerk in a grocery store or asking for a cheeseburger and fries at a fast-food restaurant. In view of Hall’s conviction, the court has justification to impose a condition of probation that restricts him from engaging in most communication with minors. There is, however, no justification for forbidding him from incidental communication with minors. We remand for clarification of the restriction on communication with minors.

This remand should not be construed to mean that exact precision in conditions of probation is required.

[Tjhough a probationer is entitled to notice of what behavior will result in a violation, so that he may guide his actions accordingly, fair warning is not to be confused with the fullest, or most pertinacious, warning imaginable. Conditions of probation do not have to be cast in letters six feet high, or to describe every possible permutation, or to spell out every last, self-evident detail. Conditions of probation may afford fair warning even if they are not precise to the point of pedantry. In short, conditions of probation can be written-and must be read-in a commonsense way.

United States v. Gallo, 20 F.3d 7, 12 (1st Cir.1994) (citations omitted).

C. Conclusion

We reverse only the portion of the sentence contained in the no-contact order. Because the no-contact order was not authorized by statute, we remand to the district court for entry of the restrictions on communication and contact with minors as conditions of probation without the imposition of a no-contact order under Iowa Code chapter 664A. We also remand for clarification of the restriction on communication with minors to allow an exception for incidental communication with minors where other responsible adults are present. We affirm the rest of Hall’s sentence.

REVERSED IN PART AND REMANDED WITH DIRECTIONS.

      . This case predates State v. Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007), which holds that a defendant who possesses a computer containing multiple images of minors can only be charged with one count of sexual exploitation of minors.

      . The no-contact order identifies the protected party as any child under eighteen years of age, with the exception of Hall’s biological nephew.

      . Even though the no-contact order references section 901.5(7A), "the court’s authority under [section 907.6] is not lost when the court fails to cite the provision in pronouncing sentence.” State v. Steuk, 368 N.W.2d 171, 172 (Iowa 1985).


source: Caselaw Access Project

author: /s/ Helen M. Meyer Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Mark David PITZELE, a Minnesota Attorney, Registration No. 235507.
    No. A07-158.
    Supreme Court of Minnesota.
    Oct. 17, 2007.
   ORDER

The Director has filed a petition and supplementary petition for disciplinary action alleging that respondent Mark David-Pitzele committed professional misconduct warranting public discipline, namely, misappropriation of client funds, failure to timely file state and federal quarterly employee withholding returns, failure to timely pay state and federal employer withholding taxes, and failure to maintain required trust account books and records, in violation of Minn. R. Prof. Conduct 8.4(c) and (d) and 1.15.

Respondent has withdrawn his answer to the petition for disciplinary action, admitted the allegations of the petition and supplementary petition, waived his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and entered into a stipulation with the Director under which the parties jointly recommend that the appropriate sanction is disbarment.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Mark David Pitzele is disbarred effective as of the date of filing of this order. Respondent shall comply with Rule 26, RLPR (requiring notice of disbarment to clients, opposing counsel, and tribunals) and shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/ Helen M. Meyer Associate Justice


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Respondent v. Todd OUELLETTE, Appellant.
    No. A06-1727.
    Court of Appeals of Minnesota.
    Oct. 23, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Bruce A. Nelson, Assistant Winona City Attorney, Winona, MN, for respondent.
    John M. Stuart, Minnesota Public Defender, Rochelle R. Winn, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant challenges his conviction of refusal to submit to chemical testing, asserting that the district court committed an error of fundamental law by failing to instruct the jury that it must find that he was lawfully arrested and that the implied consent advisory was read to him. Appellant also challenges his conviction of a lane violation, asserting that the evidence does not support the conviction.

FACTS

Appellant Todd Damase Ouellette was stopped for traffic violations and subsequently arrested for driving while impaired (DWI). At the police station, Ouel-lette initially agreed to take a urine test but then stated that he would not take the test at that time. Ouellette was charged with DWI, refusal to test, running a red light, and improper lane usage. At trial, the district court instructed the jury on the refusal to test charge according to the pattern instructions in 10A Minnesota Practice CRIMJIG 29.28 (1999). Ouellette did not object to the instructions or propose additional instructions. The jury convicted Ouellette of refusal to test, running a red light, and improper lane change. The jury acquitted him of DWI. This appeal, challenging the convictions of refusal to test and improper lane usage, followed.

ISSUES

1. Are the conditions for requesting a chemical test, set forth in Minn.Stat. § 169A.51, subds. 1(b), 2 (2006), elements of the crime of refusal to test that must be submitted to the jury?

2. Was omission of instructions on elements of a crime harmless error in this case?

3. Is the evidence that appellant proceeded straight from a designated left-turn lane sufficient to support a conviction of improper lane usage under MinmStat. § 169.18, subd. 7(b) (2002)?

ANALYSIS

“A defendant’s failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.” State v. Cross, 577 N.W.2d 721, 726 (Minn.1998). “Nevertheless, a failure to object will not cause an appeal to fail if the instructions contain plain error affecting substantial rights or an error of fundamental law.” Id.; see also Minn. R.Crim. P. 31.02.

Essential elements of a crime must be decided by the factfinder and by proof beyond a reasonable doubt. State v. Bluhm, 457 N.W.2d 256, 259 (Minn.App.1990), aff'd in part, rev’d in part on other grounds, 460 N.W.2d 22, 24 (Minn.1990). “[A defendant] is entitled to have all the elements of the offense with which he is charged submitted [to the jury] even if the evidence relating to these elements is un-contradicted.” State v. Carlson, 268 N.W.2d 553, 560 (Minn.1978).

Ouellette claims that the district court, in instructing the jury on the charge of refusal to test, committed an error of fundamental law by failing to instruct the jury to determine whether he had been lawfully arrested for DWI and whether the implied-consent advisory had been read to him. Ouellette argues that these prerequisites to a request to test under Minn. Stat. § 169A.51 (2002) are incorporated into the criminal-refusal statute, Minn. Stat. § 169A.20, subd. 2 (Supp. 2003), and therefore are elements of the crime of refusal to test. We agree.

Failure to instruct on an essential element of a crime has been held to be fundamental error. State v. Williams, 324 N.W.2d 154, 157 (Minn.1982) (holding that failure to instruct on the element of intent to defraud in prosecution for theft by false representation is an error of fundamental law or controlling principle permitting review despite failure to object to instructions). Therefore, Ouellette is entitled to appellate review despite his failure to object to the instructions at trial.

I.

The criminal-refusal statute provides that “[i]t is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine under section 169A.51.” Minn.Stat. § 169A.20, subd. 2 (2006). The implied-consent statute provides that a chemical test of a person’s blood, breath or urine, for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances, may be required of a person when an officer has probable cause to believe the person has committed DWI, and one of the following conditions exists:

(1) the person has been lawfully placed under arrest for [DWI];
(2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death;
(3) the person has refused to take the screening test ...; or
(4) the screening test was administered and indicated an alcohol concentration of 0.08 or more.

Minn.Stat. § 169A.51, subd. 1(b) (2006). The implied-consent statute further provides that, at the time a test is requested, the person must be informed of specific information set out in the statute. Minn. Stat. § 169A.51, subd. 2(l)-(4). This information is contained in the commonly used implied-consent advisory form.

In State v. Olmscheid, 492 N.W.2d 263, 265 (Minn.App.1992), we held that the criminal-refusal statute “incorporates to some degree the provisions of the implied consent statute into the crime of refusal.” In Olmscheid, as here, the district court instructed the jury on refusal to test using the pattern jury instruction. At the time Olmscheid was decided, the pattern instruction listed the elements of refusal to test as:

First, defendant was requested by a peace officer to submit to a chemical test of defendant’s (blood) (breath) (urine) under the Implied Consent Law.
Second, defendant refused to submit to the test.
Third, (once within the past five years) (twice or more within the past ten years) defendant’s drivers license had been (suspended) (revoked) (cancelled) (denied) for_
Fourth, defendant’s act took place on (or about)_, in_County.

10A Minnesota Practice CRIMJIG 29.17.02 (1992). The district court, at Olm-scheid’s request, also required the state to prove that the peace officer had probable cause to believe that Olmscheid was in physical control of the vehicle, placing a burden on the state which would not have been placed on it under the pattern instruction. Olmscheid, 492 N.W.2d at 265. We concluded that the district court was correct in placing the burden on the state of proving beyond a reasonable doubt that the officer had probable cause to believe that Olmscheid was in physical control of the vehicle because absent probable cause to believe the driver has committed DWI a refusal to submit to a chemical test is not a crime. Id. at 265-66. In dictum, we also concluded that “a driver must have been read the implied consent advisory in order to have criminally refused chemical testing,” making the reading of the implied-consent advisory an element of the crime. Id. The actual holding of Olmscheid is that, notwithstanding the incorporation of some provisions of the implied-consent statute into the criminal-refusal statute, proof of actual driving, operation or physical control of a vehicle is not incorporated into the criminal-refusal statute as an element of the crime because the criminal-refusal statute only requires that a peace officer have probable cause to believe that the defendant committed such activity. Id. at 266.

The current CRIMJIG on refusal to test includes the probable-cause requirement recognized in Olmscheid. 10A Minnesota Practice CRIMJIG 29.28 (2006). In the present case, the jury was instructed that the elements of refusal to submit to testing are:

First, the peace officer had probable cause to believe that the defendant drove, operated, or was in physical control of a motor vehicle while under the influence of alcohol. Probable cause means that it was more likely than not that the defendant drove, operated or was in physical control of a motor vehicle while under the influence of alcohol.
Second, the defendant was requested by a peace officer to submit to [a] chemical test of his blood or urine.
Third, the defendant refused to submit to the test.
Fourth, the defendant’s act took place on or about March 11, 2004, in Winona County.

Because a peace officer can only request a chemical test under Minn.Stat. § 169A.51, when one of the conditions listed in subdivision 1(b) exists, and because section 169A.51, subdivision 2, requires that the implied-consent advisory must be given at the time the test is requested, we now hold that these prerequisites to the administration of a chemical test are incorporated into, and are elements of the criminal-refusal statute on which the jury must be instructed. Here, the only relevant subdivision 1(b) condition applicable is that Ouellette was lawfully arrested. The district court committed an error of fundamental law by failing to instruct the jury that it must find that the state had proved beyond a reasonable doubt that Ouellette was lawfully arrested and that the implied-consent advisory was read to him. We recognize that there is some redundancy in requiring the jury to find both probable cause and that a defendant was lawfully arrested, but the redundancy is contained in the implied-consent statute itself.

II.

When a defendant fails to request a jury instruction that the district court is obligated to give, the erroneous omission is properly viewed under the harmless-error analysis. State v. Moon, 717 N.W.2d, 429, 437 (Minn.App.2006). An error is harmless if all relevant factors indicate that, beyond a reasonable doubt, the error did not have a significant impact on the verdict. State v. Shoop, 441 N.W.2d 475, 480-81 (Minn.1989). If the error might have prompted the jury to reach a harsher verdict than it might otherwise have reached, the defendant is entitled to a new trial. Id. at 481.

Ouellette argues that the district court’s failure to instruct the jury on the two omitted elements was “obviously prejudicial to his case.” We disagree. The officer testified that he read the implied-consent advisory to Ouellette, and a copy of the advisory with the officer’s notations of Ouellette’s answers to his questions was admitted into evidence. Ouellette testified that he remembered the officer “talking about it” but did not remember that the officer had a piece of paper in his hand. Based on the evidence in this record, we conclude that, beyond a reasonable doubt, failure to instruct the jury on the reading of the implied-consent advisory was harmless error.

Ouellette asserts that because he was successful in convincing the jury that he was not impaired, had the jury been properly instructed on the elements of refusal to test, they could have found that the state also failed to prove that he had been lawfully arrested for DWI. But the officer testified that he arrested Ouellette and took him into custody, and the jury found that the officer had probable cause to arrest Ouellette for DWI. Any error in omitting the redundant element of lawful arrest in this case was harmless beyond a reasonable doubt.

III.

Ouellette argues that the evidence in the record does not support his conviction under Minn.Stat. § 169.18, subd. 7(b) (2002), which states in relevant part:

Upon a roadway which is not a one-way roadway and which is divided into three lanes, a vehicle shall not be driven in the center lane except when overtaking and passing another vehicle where the roadway is clearly visible and such center lane is clear of traffic within a safe distance, or in preparation for a left turn or where such center lane is at the time allocated exclusively to traffic moving in the direction the vehicle is proceeding, and is signposted to give notice of such allocation.

When considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, is sufficient to allow the jurors to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). A guilty verdict requires reversal only where the jury, after giving due regard to the presumption of innocence and the state’s burden of proof, could not reasonably find the defendant guilty of the charged offense. State v. Thomas, 590 N.W.2d 755, 758 (Minn.1999).

Here, during the discussion of jury instructions, the state noted that the roadway on which Ouellette was traveling does not have a center lane as described by the statute. The officer and Ouellette both testified that, at the area where the alleged violation occurred, the street has a right-turn lane, a left-turn lane, and a lane for continuing straight. The violation described by the officer was that Ouellette was in the left-turn lane but continued straight rather than turning left. The violation described, therefore, does not support a conviction for misuse of a center lane as described in the statute, and we conclude that the jury could not have reasonably found a violation of the offense charged. Ouellette’s conviction of improper lane usage is therefore reversed.

IV.

In a pro se supplemental brief, Ouellette raised a number of issues that are not supported by citation to the record or authority, and some of which are unrelated to his convictions. Assignment of error based on “mere assertion” and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modem Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App.1997). Because we find no obvious error related to Ouellette’s convictions, we consider these arguments waived.

DECISION

The district court committed an error of fundamental law by failing to include in the jury instructions on refusal to test that the state was required to prove that Ouel-lette was lawfully arrested and that the implied-consent advisory was read to him. But under these circumstances, the error was harmless beyond a reasonable doubt. Ouellette’s conviction of refusal to test is affirmed. The record does not support Ouellette’s conviction of improper use of a center lane, and that conviction is reversed.

Affirmed in part and reversed in part.

      . In 2002, the statute required an alcohol concentration of 0.10 or more. Minn.Stat. § 169A.51, subd. 1(b)(4) (2002). The statute was amended in 2004.

      . Olmscheid interpreted Minn.Stat. § 169.121 (1990), and Minn.Stat. § 169.123 (1990), the substance of which are now found in Minn. Stat. § 169A.20 (2006) and Minn.Stat. § 169A.51 (2006) respectively.

      . This provision is no longer an element of the crime of test refusal. See Minn.Stat. § 169A.20, subd. 2 (2002).


author: SANDSTROM, Justice.

text:
    2007 ND 168
    Andrew M. BERTSCH, Plaintiff and Appellee v. Lynell C. BERTSCH, n/k/a Lynell C. Maynor, Defendant and Appellant.
    No. 20070110.
    Supreme Court of North Dakota.
    Oct. 19, 2007.
    Rehearing Denied Nov. 20, 2007.

      H. Malcolm Pippin of Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Williston, N.D., for plaintiff and appellee.

      Robert S. Rau of Bosard, McCutcheon & Rau, Ltd., Minot, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Lynell Bertsch, now known as Lynell Maynor, appeals the district court judgment awarding attorney’s fees to Andrew Bertsch as a sanction for her failure tó comply with a discovery order to produce financial information regarding herself and her current husband. We affirm, concluding the district court did not abuse its discretion in sanctioning Maynor.

I

[¶ 2] In March 2004, Maynor filed a petition to relocate with the couple’s minor child to Maryland. In its December 29, 2004, judgment, the district court advised Maynor to file an application for attorney’s fees under Rule 54(e), N.D.R.Civ.P., to see what amount, if any, should be shifted to Bertsch. Maynor’s motion for attorney’s fees was denied by the court in its February 25, 2005, memorandum and order. The court denied Maynor’s request for attorney’s fees because Bertsch opposed her petition to relocate in good faith. This Court, in Bertsch v. Bertsch, 2006 ND 31, 710 N.W.2d 113, held that the district court misapplied the law in deciding the issue of attorney’s fees.

[¶ 3] Upon remand, proceedings were held to decide whether Maynor was entitled to attorney’s fees in her petition to relocate with the couple’s minor child. As part of the proceedings, Bertsch sought discovery as to the financial condition of Maynor and her current husband, who is a Maryland resident. The discovery sought various tax records and financial documents. Maynor answered the discovery in part, but did not produce the financial documents relating to her current husband.

[¶ 4] On August 31, 2006, the district court ordered Maynor to produce certain financial information. Specific information ordered to be produced included: (1) tax returns, whether filed individually or jointly with someone else, for .the past five years; (2) documents evidencing an ownership interest, individually or jointly, in stock, mutual funds, or other financial investments during the years 2004, 2005, and 2006; (3) financial records for any and all accounts in which Maynor had an ownership interest, individually or jointly, during the years 2004, 2005, and 2006; (4) information concerning any gifts of personal property or money valued at $500 or more, and inherited funds or property of any value received by Maynor during the years 2004, 2005, and 2006; and (5) an itemized breakdown of the Maynor family’s household expenses for the first eight months of 2006. Maynor did not comply with the order.

[¶ 5] In its February 26, 2007, memorandum and order, the district court denied Maynor’s request for attorney’s fees because she did not provide the information required to make an informed decision as to her need for an award of attorney’s fees. The district court also ordered May-nor, under N.D.R.Civ.P. 37(b), to pay the reasonable expenses, including attorney’s fees, incurred by Bertsch in defending against her request for attorney’s fees. After Bertsch submitted billing statements, the court ordered Maynor to pay him $3,607 in attorney’s fees.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Maynor’s appeal is timely under N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 7] Maynor argues the district court erred when it issued its August 31, 2006, order, because, under the law of the ease doctrine, there should not have been any new discovery taken to find whether Maynor was entitled to attorney’s fees. She argues the district court’s December 29, 2004, judgment entitled her to attorney’s fees. Under the law of the case doctrine, a court’s decision on legal issues should govern the same issues in later stages of the same case. Strom-Sell v. Council for Concerned Citizens, Inc., 1999 ND 132, ¶ 12, 597 N.W.2d 414. The law of the case doctrine, however, applies only to issues decided by final judgments. Id.

[¶ 8] The district court’s December 29, 2004, judgment was not a final order directing Bertsch to pay Maynor’s attorney’s fees. It directed Maynor to apply for attorney’s fees under Rule 54(e), N.D.R.Civ.P., so the court could decide what amount, if any, should be shifted to Bertsch. After Maynor applied, the district court denied attorney’s fees to May-nor in its February 25, 2005, memorandum and order, which was the final judgment on the issue of attorney’s fees. Therefore, the law of the case doctrine does not apply here.

[¶ 9] This Court remanded the issue of attorney’s fees to the district court because it misapplied the law in deciding the matter. The district court issued its August 31, 2006, order to find whether Maynor had a need for attorney’s fees.

[¶ 10] A district court has broad discretion regarding the scope of discovery, and its discovery decisions will not be reversed on' appeal absent an abuse of discretion. Smith v. Smith, 538 N.W.2d 222, 230 (N.D.1995). A district court abuses its discretion if it acts in an arbitrary, capricious, or unreasonable manner, or if it misinterprets or misapplies the law. Id. We hold the district court did not abuse its discretion when it issued its August 31, 2006, order. The court’s purpose in issuing the discovery order was to find whether Maynor had a need for attorney’s fees.

Ill

[¶11] Under N.D.C.C. § 14-05-23, a district court has discretion to award attorney’s fees in divorce proceedings, including those involving motions to change residence or relocate. Bertsch, 2006 ND 31, ¶ 8, 710 N.W.2d 113. “An award of attorney’s fees is within the sound discretion of the district court and will not be set aside on appeal absent an abuse of discretion.” Id. This Court has provided the following guidance for-district courts in considering an award of attorney’s fees under N.D.C.C. § 14-05-23:

In deciding whether to award attorney fees in a divorce action, the trial court must balance one [party’s] needs against the other [party’s] ability to pay. The court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party unreasonably increased the time spent on the case. An award of attorney fees requires specific findings supported by evidence of the parties’ financial conditions and needs.

Id. (quoting Reiser v. Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348).

[¶ 12] As discussed above, the district court issued a discovery order to help determine whether or not Maynor had a need for attorney’s fees. Maynor did not comply with the order. Because the district court was unable to determine whether Maynor had a need for attorney’s fees without the information, it denied her request in its February 26, 2007, memorandum and order. We conclude the district court did not abuse its discretion in denying Maynor’s request for attorney’s fees.

IV

[¶ IB] Maynor argues the district court abused its discretion when it imposed sanctions against her. Rule 37(b), N.D.R.Civ.P., allows a district court to impose sanctions on a party for failing to comply with a court order. Rule 37(b) states, “the court shall require the party failing to obey the order ... to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” A district court has broad discretion to impose an appropriate sanction for discovery abuses, and its decision will be set aside on appeal only if it has abused that discretion. Vorachek v. Citizens State Bank of Lankin, 421 N.W.2d 45, 50 (N.D.1988).

[¶ 14] Here, the district court imposed sanctions against Maynor for not complying with its August 31, 2006, order. The court directed Maynor to pay Bertsch his attorney’s fees in the amount of $3,607 under N.D.R.Civ.P. 37(b). The court was required to award Bertsch his reasonable expenses under Rule 3703). Therefore, we hold the district court did not abuse its discretion by imposing sanctions against Maynor.

[¶ 15] Maynor argues there was substantial justification for her noncompliance with the district court’s discovery order. She argues she did not have to produce the information regarding her current husband because it was irrelevant in deciding whether she had a need for attorney’s fees. Even if Maynor thought the district court’s order was erroneous, she should have complied with it. See Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶ 11, 598 N.W.2d 499 (“Where a court has issued an order, even if erroneous, the party to whom the order was issued must obey it as long as it remains in force or until it is reversed, modified or set aside on appeal, and the failure to obey such an order is punishable as contempt of court.”). Maynor had sought and been denied a writ of supervision from this Court. Maynor was not justified in disobeying the district court’s order.

V

[¶ 16] Bertsch argues attorney’s fees under N.D.R.App.P. 38 should be imposed against Maynor because her appeal is frivolous. Under N.D.R.App.P. 38, “[ijf the court determines that an appeal is frivolous, or that any party has been dilatory in prosecuting the appeal, it may award just damages and single or double costs, including reasonable attorney’s fees.” An appeal is frivolous under Rule 38 if it is flagrantly groundless, mer-itless, or manifests persistence in the course of litigation which could be seen as evidence of bad faith. Flattum-Riemers v. Peters-Riemers, 2001 ND 121, ¶ 22, 630 N.W.2d 71.

[¶ 17] To the extent our previous opinion could have been interpreted as circumscribing the authority of the district court on remand, we conclude Maynor’s appeal is not frivolous.

VI

[¶ 18] The judgment is affirmed.

[¶ 19] GERALD W. VANDE WALLE, C.J., STEPHEN E. McCULLOUGH, D.J., CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ, concur.

[¶ 20] The Honorable STEVEN E. McCULLOUGH, District Judge, sitting in place of CROTHERS, J., disqualified.


author: KAPSNER, Justice.

text:
    2007 ND 167
    Kyle KIENZLE, Plaintiff and Appellee v. Jessica SELENSKY f/k/a Jessica Yantzer, Defendant and Appellant.
    No. 20060364.
    Supreme Court of North Dakota.
    Oct. 19, 2007.

      Brenda A. Neubauer, Neubauer & Oster, Bismarck, N.D., for plaintiff and appel-lee.
    Anne E. Summers (argued) and Edwin W.F. Dyer III (on brief), Dyer <& Summers, P.C., Bismarck, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Jessica Selensky, formerly known as Jessica Yantzer, appeals from an amended judgment granting Kyle Kien-zle’s motion to change the residence of the parties’ child to North Carolina. We conclude Kienzle has primary physical custody of the child for purposes of deciding this relocation motion, and we affirm the district court’s relocation decision.

I

[¶ 2] Selensky and Kienzle have one child together, and have never been married to each other. In 1998, a stipulated judgment was entered awarding custody of the child:

That the parties agree that they shall share joint custody of their minor child ... with [Kienzle] having primary physical control. Both parties shall have unrestricted access to the minor child with each party contributing equal time in the minor child’s upbringing and daily care. Both parties further agree that Joint custody shall be specifically defined to mean that the parties shall advise and consult with each other in matters relating to the health, education and welfare of the child, and the parties agree to cooperate with one another in establishing mutually acceptable guidelines and standards for the minor child’s development, education and health. The parties further agree to discuss all major issues jointly. ' Each of the parties will have full and complete access to all educational, medical, and legal records of the minor child during her minority without the necessity of obtaining the consent of the other.

The parties also agreed to share the child’s expenses, and neither party was awarded child support.

[¶ 3] After the initial judgment was entered, the child resided with Kienzle and Selensky had visitation. Initially, both parties lived in Bismarck, but in 1999, Kienzle moved to Fargo, and the initial judgment was amended by stipulation to provide a visitation schedule for Selensky, including weekends and six weeks of summer visitation. The parties were flexible with the visitation schedule, and Selensky often had more visitation than was required by the judgment, including ten weeks of summer visitation.

[¶ 4] In 2002, the parties stipulated to amend the judgment and a second amended judgment was entered. The second amended judgment contained the same language as the original judgment about custody of the child, but added a child support provision requiring Selensky to pay $217 per month in child support.

[¶ 5] In 2006, Kienzle moved for permission to relocate to North Carolina with the parties’ child. Selensky opposed the motion, arguing the move was not in the child’s best interests, and claiming the court must modify custody before deciding whether to allow Kienzle to relocate out-of-state because the parties have joint legal and physical custody of the child. After a hearing, the district court concluded Kien-zle had primary physical custody of the child and granted his motion to relocate, finding the move was in the child’s best interests.

II

[¶ 6] Selensky argues the parties have joint legal and physical custody of the child, and therefore the district court erred as a matter of law in failing to decide whether the best interests of the child require a change in primary custody to Kienzle before deciding whether to allow him to move to North Carolina with the child.

[¶ 7] When parents have joint legal and physical custody of a child, a majority of this Court held the district court must first determine whether the best interests of the child require a change in primary custody to the parent who wishes to relocate. Maynard v. McNett, 2006 ND 36, ¶ 21, 710 N.W.2d 369.

[¶ 8] In this case, the district court concluded Kienzle had primary physical custody of the child under the terms of the stipulated judgment. The court said, “[t]his ease is not one in which there is joint legal and joint physical custody. The parties agreed that Mr. Kienzle would have primary physical control, and he has, in fact, had primary physical custody over a period of many years.” Selensky argues the district court erred in its interpretation of the judgment. She claims the court only considered the amount of time the child spends with each parent, and not the language of the judgment or the parties’ intent when they entered into the stipulation.

[¶ 9] Whether a judgment declared a primary custodian requires an interpretation of the judgment, which is a question of law. Maynard, 2006 ND 36, ¶ 8, 710 N.W.2d 369. Questions of law are fully reviewable on appeal. Knoop v. Knoop, 542 N.W.2d 114, 117 (N.D.1996).

[¶ 10] When a stipulation is incorporated into a judgment, “the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties.” Silbernagel v. Silbernagel, 2007 ND 124, ¶ 10, 736 N.W.2d 441. When the language of a judgment is clear and unambiguous, the judgment must be construed to give effect to the unambiguous language, but “[i]f the language of a judgment is ambiguous, we give great weight to a [district] court’s construction of its own decreet,]” unless the court misapplies the law in interpreting the judgment. Knoop, 542 N.W.2d at 117. See also Anderson v. Anderson, 522 N.W.2d 476, 478-79 (N.D.1994). Extrinsic evidence of the parties’ intent may only be considered “when a stipulation is incorporated into a judgment if, after an examination of the judgment, the stipulated language is ambiguous and the incorporating court’s intent cannot be determined.” Sil-bemagel, at ¶ 10.

[¶ 11] The judgment provides the parties will share joint custody, with Kien-zle having primary physical control of the child. The judgment specifically defines joint custody in a manner that is generally associated with joint legal custody and does not include physical custody. The judgment does not define primary physical control, and we conclude the language is ambiguous. Although the language is ambiguous, we will not consider the parties’ intent when they entered into the stipulation as Selensky urges us to do because the incorporating court’s intent can be determined. Judge Gail Hagerty ordered entry of the initial and amended judgments in this case. The amended judgments contain provisions for Selensky to have visitation with the child. Visitation provisions are consistent with the determination of the district court that Kienzle is the custodial parent. See N.D.C.C. § 14-05-22(2). Judge Hagerty also presided over the relocation proceedings, and addressed whether the parties had joint physical custody of the child. Judge Hag-erty concluded Kienzle has primary physical custody of the child under the terms of the stipulated judgment, and we give great weight to that interpretation.

[¶ 12] We conclude Kienzle has primary physical custody of the child, and therefore the district court did not err in failing to decide whether the best interests of the child require a change in primary physical custody before deciding whether to allow Kienzle to change the child’s residence to North Carolina.

Ill

[¶ 13] A custodial parent may not change the residence of the child to another state except upon order of the court or with the noncustodial parent’s consent. N.D.C.C. § 14-09-07. In deciding whether to grant a relocation request, a court’s primary consideration is whether the move is in the child’s best interests, and the court must apply the four Stout-Hawkinson factors in making its decision:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Dvorak v. Dvorak, 2006 ND 171, ¶¶ 12-13, 719 N.W.2d 362. The district court must analyze all four factors in making its decision. Porter v. Porter, 2006 ND 123, ¶ 6, 714 N.W.2d 865. One factor is not dominant, and a factor that may not be important in one case may be more significant in another case. Id.

[¶ 14] A district court’s decision whether to allow relocation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Dvorak, 2006 ND 171, ¶ 11, 719 N.W.2d 362. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, although there is some evidence to support the finding, on the entire evidence, we are left with a definite and firm conviction a mistake has been made. Id. Under the clearly erroneous standard of review, we do not reweigh evidence or reassess witness credibility when the evidence supports the court’s findings. Porter, 2006 ND 123, ¶ 5, 714 N.W.2d 865.

[¶ 15] Selensky argues the district court’s finding that the move is in the child’s best interests is clearly erroneous. She claims Kienzle did not adequately prove the economic benefits of the move, and the court did not find the move would improve the child’s quality of life. She also questions Kienzle’s motives for moving, and she claims the fourth Stouk-Hawkinson factor does not support Kienzle’s request to relocate because Kienzle’s ber havior shows an intent to frustrate visitation.

[¶ 16] Under the first factor, the court must consider the enhanced economic and noneconomic aspects of the custodial family’s life, while recognizing the importance of maintaining continuity and stability in the custodial family. Dickson v. Dickson, 2001 ND 157, ¶ 12, 634 N.W.2d 76. We have recognized that an improvement in the custodial parent’s quality of life will generally indirectly benefit the child. Goff v. Goff, 1999 ND 95, ¶ 13, 593 N.W.2d 768. The district court found the first factor favored allowing relocation because it would improve Kienzle’s and the child’s quality of life:

In the present case, there are apparent advantages of the move to improve Mr. Kienzle’s liffe and the quality of life of [the child]. While [the child] has' enjoyed a happy and healthy lifestyle in Fargo, Mr. Kienzle’s employment opportunities there are limited. He has a highly specialized area of expertise. He lost his employment in Fargo and is able to pursue opportunities in North Carolina that would not be available in Fargo.
Based on the evidence, it is clear Mr. Kienzle made a good faith effort to find employment in the Fargo area and in North Dakota, but was unable to find suitable employment. The evidence suggests suitable employment was not available to him in a timely fashion.
The move will not only benefit Mr. Kienzle, it will benefit his family, of which [the child] is a member. Mr. Kienzle is married and has another child with whom [the parties’ child] is being raised. The move will provide the family with income and a good living situation.

Kienzle testified his employment was terminated when the company he was working for laid off many of its employees, including his wife who was also a company employee. He testified his employment experience is in the information technology field, he has a degree in management information systems, and he was working as an account manager selling and managing accounting software. He testified he searched for a job in North Dakota by contacting friends and other associates in his field, and by applying for jobs through Job Service of North Dakota and utilizing job search websites, but he was unable to secure employment. He testified he received multiple offers of employment, but all of the positions would require relocating out-of-state and the position in North Carolina was the best offer. The evidence supports the court’s findings.

[¶ 17] Under the second and third factors, the district court found Selensky opposed the move because she wanted the child living closer to her to facilitate visitation, and Kienzle’s motive to move was not intended to defeat or deter visitation. The court also found there was no indication Kienzle had not supported visitation in the past and assisted in making visitation possible. There was evidence the parties worked together with a flexible visitation schedule. Kienzle testified he allowed Sel-ensky more visitation than the judgment provided, and Selensky’s testimony supports this. There was no evidence Kiénzle has frustrated or denied Selensky visitation in the past, or that he would not comply with ordered visitation in the future. The court’s findings about the second and third factors are supported by the evidence.

[¶ 18] The district court found the move would have a negative impact on the opportunities for visitation, but would not necessarily have a negative impact on the child’s relationship with Selensky. Based on Kienzle’s prior conduct, the court found he would cooperate fully in encouraging and enabling visitation if he was allowed to relocate. The court established a visitation schedule giving Selensky extended visitation every year during Christmas, spring break, and at least eight weeks during the summer, and required Kienzle to pay the child’s transportation costs for visitation and at least one half of the costs of having an adult accompany the child. The court also encouraged regular telephone and other communication between the child and Selensky. The evidence supports the court’s finding that the fourth factor weighs in favor of allowing relocation.

[¶ 19] The evidence supports the court’s findings, and we are not left with a definite and firm conviction a mistake has been made. We conclude the district court’s finding that the relocation is in the child’s best interests is not clearly erroneous.

IV

[¶ 20] We conclude Kienzle had primary physical custody of the parties’ child for purposes of deciding this relocation motion, and we affirm the amended judgment.

[¶ 21] GERALD W. VANDE WALLE, C.J., DONOVAN J. FOUGHTY, D.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

[¶ 22] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of SANDSTROM, J., disqualified.