author: STONEBURNER, Judge.

text:
    Tina M. KNUTH, as trustee for the next of kin of Cheryl Rae Knuth, deceased, and Tina M. Knuth, individually, Appellants, v. EMERGENCY CARE CONSULTANTS, P.A., Respondent.
    No. C3-01-1660.
    Court of Appeals of Minnesota.
    May 14, 2002.

      Thomas M. Flaskamp, Keith A. Queen-sen, Yaeger, Jungbauer, Barczak & Vuci-novich, PLC., Minneapolis, for appellants.
    William H. Leary, Ann D. Bray, Ger-aghty, O’Loughlin & Kenney, St. Paul, for respondent.
    Considered and decided by LANSING, Presiding Judge, RANDALL, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant Tina M. Knuth (Knuth) appeals from the district court’s grant of respondent Emergency Care Consultant’s (ECC) motion for a new trial and subsequent grant of ECC’s motion for JNOV, after a jury rendered a verdict in favor of Knuth, alleging that (1) the district court erred by granting ECC’s motion for JNOV based on its conclusion that Knuth’s expert’s testimony was unreliable and (2) the district court abused its discretion by granting respondent a new trial. Because the grant of JNOV and a new trial was unjustified, we reverse.

FACTS

Decedent Cheryl Rae Knuth died on April 11,1996, at age forty-four, from arte-riosclerotic heart disease (heart attack). An autopsy revealed that at the time of her death, there was a 95% blockage of the left main artery of her heart and that Cheryl Knuth had two heart attacks prior to the heart attack that killed her.

Cheryl Knuth was involved in an automobile accident on November 26, 1995, in which she sustained a concussion, cervical strain and bruising of her left hip. She was not hospitalized as a result of the accident and was treated at the Noran Neurological Clinic for injuries sustained in the accident.

Between December 31, 1995 and April 1996, Cheryl Knuth presented at the Abbott Northwestern Hospital Emergency Room, run by ECC, on nine different occasions and on at least five of those occasions complained of pain/spasms in her neck, chest, and arm apparently on her left side. Cheryl Knuth believed her symptoms were related to the automobile accident.. Emergency room personnel did not conduct any tests to rule out cardiac disease but were not convinced that the accident accounted for Cheryl Knuth’s complaints of pain and discomfort and checked with Dr. Ryberg to determine if she might be engaged in “drug-seeking.”

Knuth’s expert Dr. Pfortmiller, a full-time emergency room physician in St. Louis, Missouri for approximately thirteen years and a board certified physician in internal medicine, reviewed Cheryl Knuth’s medical records and formed an opinion regarding the care provided by ECC physicians and a nurse practitioner to Cheryl Knuth prior to her death. Dr. Pfortmiller testified that the standard of care required of physicians practicing emergency medicine is as follows:

[The] primary goal is to try to rule out the more serious or life or limb threatening illnesses. Once you get past that point, and you feel satisfied you’ve done that, then you can go on and make your diagnosis of treatment and evaluation and disposition of the patient.

Dr. Pfortmiller further testified that if a patient presents at the emergency room with possible cardiac disease, then

the duty of that [ER] physician is to evaluate the patient for [cardiac disease] and to make a reasonable attempt to rule it out before deciding that it’s due to something else.

Dr. Pfortmiller testified that the emergency room physician’s duty, under such circumstances, includes testing, taking an adequate history, and conducting a physical. Dr. Pfortmiller testified that, based on his review of Cheryl Knuth’s records, on at least five of Cheryl Knuth’s visits to the emergency room she presented with symptoms of possible cardiac disease but neither the ECC physicians nor the ECC nurse practitioner treating Cheryl Knuth ran tests to determine whether she was suffering from a cardiac problem.

Dr. Pfortmiller testified that, in his opinion, the ECC physicians and nurse practitioner deviated from the standard of care with regard to Cheryl Knuth on four of her nine visits to the emergency room. Dr. Pfortmiller also testified that the ECC physicians and nurse practitioner’s deviation from the standard of care caused Cheryl Knuth’s death.

Knuth sued Allina Health Systems d/b/a Abbott Northwestern Hospital and ECC, alleging that they were negligent in the their treatment of Cheryl Knuth resulting in her death. The hospital was dismissed by stipulation prior to trial.

The case was tried to a jury. The district court denied respondent’s motion for a directed verdict made during trial. The jury returned a verdict in favor of Knuth and awarded damages of approximately $200,000. The district court issued its findings of fact, conclusions of law, and judgment, ordering judgment for Knuth. The district court found that expert testimony supported a claim of negligence by ECC and that such negligence played a substantial part in bringing about Cheryl Knuth’s death.

Nonetheless, in December 2000, the district court granted ECC’s motion for a new trial on the basis that the verdict is not justified by the evidence. And, in July 2001, the district court granted ECC’s motion for JNOV, in part, because

granting defendant’s motion for a new trial put both parties in an untenable position, in that plaintiff would be unable to rely upon its expert witness at a second trial and because it was unclear in the order that defendant had sought relief as to liability only. This court * * * grants defendant’s motion for j.n.o.v., in order to allow plaintiff to appeal the court’s order.

The district court also stated, in its memorandum supporting the grant of JNOV, that (1) Knuth “failed” to prove the standard of care, departure from the standard of care, and causation and (2) the testimony of Knuth’s expert was “inherently unreliable.” This appeal followed.

ISSUES

I. Did the district court err by granting ECC’s motion for JNOV?

II. Did the district court abuse its discretion by granting ECC’s motion for a new trial?

ANALYSIS

I. JNOV

“A district court’s grant of judgment notwithstanding the verdict ‘is a question of law subject to de novo review.’ ” Anderson-Johanningmeier v. Mid-Minn. Women’s Ctr., Inc., 637 N.W.2d 270, 273 (Minn.2002) (quotation omitted). The grant of a motion for JNOV is only appropriate “when the evidence is so overwhelming on one side that reasonable minds cannot differ as to the proper outcome.” Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn.1983) (quotation omitted). Furthermore, the evidence must be examined in a light most favorable to the non-moving party. Harman v. Heartland Food Co., 614 N.W.2d 236, 240 (Minn.App. 2000).

Here, the jury returned a verdict for Knuth, finding that one or more of ECC’s employees who treated Cheryl Knuth was negligent in providing professional services to her and that such negligence was a direct cause of her death. After entering findings of fact, conclusions of law and an order of judgment for Knuth based on the verdict, the district court granted ECC’s motion for a new trial, then granted ECC’s motion for JNOV.

Knuth argues that the district court improperly granted ECC’s motion for JNOV because (1) she presented ample evidence of medical malpractice to support the jury’s verdict; (2) an expert’s credibility is a question for the jury; and (3) under the evidence presented, “it cannot be said that reasonable minds could reach only one conclusion against the verdict.”

ECC alleges that (1) Dr. Pfortmiller’s testimony was unreliable because he didn’t opine that Cheryl Knuth’s treating physicians, outside the emergency room, were negligent; (2) Dr. Pfortmiller’s testimony was merely an expression of personal opinion; and (3) Dr. Pfortmiller’s testimony was insufficient to support a prima facie case of medical negligence.

In order to make out a prima facie case of medical malpractice for negligent treatment, a plaintiff must show

(1) the standard of care recognized by the medical community as applicable to the particular defendant’s conduct; (2) that the defendant departed from that standard; * * * (3) that the defendant’s departure from that standard was a direct cause of [the patient’s] injuries; and (4) damages.

Reinhardt v. Colton, 337 N.W.2d 88, 94 (Minn.1983) (quotation omitted). Expert testimony is required to “establish the standard of care, the defendant’s departure from that standard, and causation.” Id. at 95 (citation omitted).

Dr. Pfortmiller, who, respondents acknowledge, is qualified to be an expert witness in this case, specifically testified about the standard of care of emergency room personnel and the departure of ECC’s personnel from the standard of care. Dr. Pfortmiller also testified that the departure from the standard of care caused Cheryl Knuth’s premature death. Damages are not disputed.

Dr. Pfortmiller testified that emergency room personnel must first rule out life threatening illness and that it is the duty of an emergency room physician to evaluate a patient presenting symptoms suggestive of cardiac or heart etiology “for such and to make a reasonable attempt to rule it out” before deciding that the symptoms are due to something else.

Dr. Pfortmiller testified that three ECC emergency room physicians and an ECC emergency room nurse practitioner deviated from the standard of care he articulated. According to Dr. Pfortmiller, the physicians and nurse practitioner deviated from the standard of care because, despite Cheryl Knuth’s presentation of cardiac symptoms, none of the health care providers conducted any tests on Cheryl Knuth to rule out possible cardiac abnormalities.

Dr. Pfortmiller also clearly testified that ECC’s personnel’s departure from the standard of care caused Cheryl Knuth’s death. A plaintiff properly meets the causation element of a medical negligence claim when she introduces

[e]vidence which affords a reasonable basis for one to conclude that it is more likely than not that defendant’s conduct was a substantial factor in bringing about the result.

Walton v. Jones, 286 N.W.2d 710, 715 (Minn.1979) (quotation omitted). Mere conjecture is insufficient to support a verdict for plaintiff. Id.

Here, Dr. Pfortmiller specifically testified that it is more likely than not that cardiac testing would have revealed problems with Cheryl Knuth’s heart when she presented to the emergency room on four of nine occasions. ECC’s Dr. Leech agreed that Cheryl Knuth more than likely had some kind of artery blockage when she was being seen in the emergency room. ECC’s Dr. Kearney agreed that because plaques in coronary arteries form slowly, there would be an assumption that blockage present when Knuth was seen in the emergency room, but noted that blockage can form at an accelerated speed, so he would defer to other experts about whether the blockage was actually present in Knuth. ECC’s expert witness, Dr. Nordstrom, testified that, in his opinion, an E.K.G. would not have shown changes to Knuth’s heart caused by the two prior heart attacks but admitted that other tests readily available in the emergency room might have detected a blockage. Dr. Pfortmiller testified that finding the abnormality would have led to a further cardiac work-up. Although the causation testimony was not entirely explicit, the case was presented to the jury on the theory that discovery of the blockage would have led to removal of the blockage and would have prevented Cheryl Knuth’s death on April 11, 1996, and that her life expectancy, with the heart disease, would have been an additional 15 years. Dr. Nordstrom agreed that Dr. Pfortmiller’s opinion about Cheryl Knuth’s life expectancy was reasonable. Knuth argued in closing, without objection, that if Cheryl Knuth had received the proper cardiac work-up, she would have lived fifteen more years. No evidence in the record refutes the circumstantial evidence reasonably implied from the explicit testimony, that had the blockage been discovered, it could have been treated, preventing the heart attack that killed Cheryl Knuth. Despite the thinness of the causation evidence, we conclude that reasonable minds could differ as to whether Knuth provided sufficient evidence of causation and that the evidence is sufficient to support a prima facie case of medical malpractice and the jury’s verdict.

ECC contends that Dr. Pfortmiller’s testimony was unreliable and, therefore, that the district court properly granted JNOV. The district court permitted Dr. Pfortmil-ler to testify at trial, and only after trial found the testimony “inherently unreliable.” If the district court believed that Dr. Pfortmiller’s testimony was inherently unreliable, then it should not have permitted him to testify at trial. By admitting Dr. Pfortmiller’s testimony and later determining that his testimony was inherently unreliable, the district court essentially found that Dr. Pfortmiller’s testimony was inadmissible.

It is inappropriate for a district court to determine that evidence is inadmissible during a motion for JNOV. Reinhardt, 337 N.W.2d at 93 n. 1. Instead, a district court should determine whether evidence is admissible when it is offered because finding that evidence is inadmissible during a motion for JNOV “usurps the role of the jury.” Id. at 92 n. 1.

Furthermore, the reliability of Dr. Pfortmiller’s testimony, at least with regard to causation, goes to the weight of Dr. Pfortmiller’s testimony not its admissibility. See generally State v. Myers, 359 N.W.2d 604, 608, 611 (Minn.1984) (stating that reliability of clinical psychologist’s testimony with regard to the cause of alleged sexual abuse victim’s condition, in a criminal trial, went to weight of evidence not admissibility). The jury, not the district court, weighs the credibility of an expert’s testimony. See Prechtel v. Gonse, 396 N.W.2d 837, 839 (Minn.App.1986) (noting that jury determines weight and credibility of expert testimony).

Here, the district court invaded the province of the jury by weighing the credibility of Dr. Pfortmiller’s testimony after it was admitted. ECC vigorously cross-examined Dr. Pfortmiller, adequately exposing any unreliability of his testimony. The district court’s grant of JNOV was improper.

Even if the district court erred by admitting Dr. Pfortmiller’s testimony, such error does not support a grant of JNOV. McKay’s Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 145 (Minn.App.1992) (stating that “[t]he rule is well established in this state that [JNOV] will never be granted for errors in either law or procedure committed at the trial” including the improper admission of expert testimony) (quotation omitted), review denied (Minn. Mar. 26,1992).

ECC also alleges that because Dr. Pfort-miller testified that competent physicians could determine that the ECC physicians and the nurse practitioner did not deviate from the standard of care, the district court properly granted JNOV. Although Dr. Pfortmiller acknowledged the possibility that a different doctor could reach a different conclusion than him with regard to whether Cheryl Knuth received proper care from the ECC physicians and the nurse practitioner, Dr. Pfortmiller testified that, in his opinion, the physicians and the nurse practitioner departed from the standard of care he articulated.

Because (1) the evidence is not such that reasonable minds could reach only one conclusion; (2) the district court improperly granted JNOV by finding Dr. Pfortmiller’s testimony unreliable; (3) Dr. Pfortmiller did not simply give a personal opinion but, instead, gave his expert opinion; and (4) Dr. Pfortmiller provided sufficient evidence of causation, we reverse the district court’s grant of JNOV.

II. New Trial

A district court has the discretion to grant a new trial and that decision will not be overturned absent an abuse of discretion. Navarre v. S. Washington County Schs., 633 N.W.2d 40, 49 (Minn.App.2001), review denied (Minn. Nov. 13, 2001). A de novo standard of review applies if a district court grants a new trial because of an error of law. Id.

Regardless of whether a de novo standard of review or an abuse of discretion standard of review applies to the present case, the district court’s grant of a new trial was improper because Knuth provided competent evidence to support her theory of the case.

ECC argues that a new trial is appropriate if the court reverses the district court’s grant of JNOV because (1) the evidence, especially Dr. Pfortmiller’s testimony, does not adequately support the negligence verdict and (2) a new trial is required to resolve the issue of causation.

Minn. R. Civ. P. 59.01 provides for grant of a new trial. A district court’s ability to order a new trial must be “exercised with caution” but a reviewing court “will usually defer to the exercise of that authority by the trial court.” Lamb, 333 N.W.2d at 856 (citations omitted). A new trial may be granted by a district court only if

the verdict is so contrary to the preponderance of the evidence as to imply that the jury failed to consider all the evidence or acted under some mistake or from some improper motive, bias, feeling or caprice, instead of honestly and dispassionately exercising its judgment.

Lamb, 333 N.W.2d at 855-56.

The district court ordered a new trial primarily because it noted that Knuth’s medical negligence case “relied entirely” on Dr. Pfortmiller’s testimony and determined that Dr. Pfortmiller’s testimony was (1) “grossly inadequate” with regard to the standard of care; (2) vague with regard to the deviation from the standard of care; and (3) “serious[ly] flaw[ed]” with regard to causation. The district court’s rationale is without merit. The jury’s verdict was not so contrary to the preponderance of the evidence to imply that the jury did not evaluate all the evidence. See id. Instead, the verdict is supported by competent evidence and, therefore, the district court both erred and abused its discretion by granting ECC a new trial.

The district court improperly made credibility determinations about Dr. Pfortmiller’s testimony when it found that his testimony is unreliable. The district court failed to recognize that it is the jury and not the district court that must pass on the expert’s credibility. See Riewe v. Amesen, 381 N.W.2d 448, 459 (Minn.App.1986), review denied (Minn. Mar. 27, 1986) (stating that the value of expert’s testimony is a question for the jury). Dr. Pfortmiller provided adequate testimony to establish by a preponderance of the evidence that the ECC physicians and nurse practitioner were negligent when they treated Cheryl Knuth on four separate occasions. Because Dr. Pfortmiller provided sufficient testimony to support a negligence finding, the district court erred and abused its discretion by contending that the testimony was inadequate and by ordering a new trial.

DECISION

The district court erred by granting ECC’s motion for JNOV based on its evaluation of the reliability of Knuth’s expert witness. The evidence of the standard of care, departure from the standard of care, causation and damages supports the verdict.

Reversed.

      . Tina M. Knuth is the trustee for and daughter of decedent Cheryl Rae Knuth.

      . Dr. Pfortmiller testified that two tests are readily available to emergency room physicians to rule out cardiac etiology including an E.K.G. and blood tests for cardiac enzymes.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Tony O. MORRIS, Appellant.
    No. CX-01-1753.
    Court of Appeals of Minnesota.
    May 14, 2002.
    John H. Bradshaw, III, Bradshaw & Bryant Law Offices, Eden Valley, MN, for appellant.

      Mike Hatch, Attorney General, St. Paul, MN; and Jan F. Petersen, St. Cloud City Attorney, Matthew A. Staehling, Assistant City Attorney, St. Cloud, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, HARTEN, Judge, and ANDERSON, Judge.
   OPINION

HARTEN, Judge.

Appellant Tony 0. Morris challenges his conviction of interference with privacy, arguing that evidence that he carried a bag with a concealed video camera into a store and surreptitiously positioned the lens underneath a woman’s skirt so as to photograph her underwear, was insufficient to prove a violation of Minn.Stat. § 609.746 (2000). We affirm.

FACTS

On 7 August 2000, at approximately 8:16 p.m., appellant Tony O. Morris was at the J.C. Penney department store located in the Crossroads Mall in St. Cloud. Justin Born, a loss prevention officer for J.C. Penney, received a customer-complaint report that a man inside the store was carrying a video camera concealed inside a black bag and was possibly using this device to videotape up the skirts of females in the store. While investigating the report, Born observed appellant veer off into the women’s department and followed him. Born was about five to ten yards away when he observed appellant position the bag underneath the skirt at the back of a female customer. Born followed appellant as he exited the store into the general mall area. Born never lost sight of appellant.

Born was soon joined by mall security officers Paul McIntyre and Ryan Dobey. All three security officers saw the bag and observed the camera lens protruding from it. They stopped appellant and he immediately set the bag down and stuffed the camera lens into the bag. Appellant identified himself as a police officer and said that the camera was not stolen and that he was in the mall to get the camera repaired. Appellant was escorted to the mall security office and the St. Cloud Police Department was contacted.

While waiting for the police to arrive, appellant stated that he hoped he would only be charged with disorderly conduct so he could keep his peace officer’s license. Appellant also stated that he “had gotten real close to two people.” While in the security office, appellant tampered with the video camera until McIntyre took it away from him. The videotape was later found to have been torn.

Appellant was charged with interference with privacy in violation of Minn.Stat. § 609.746 (2000). The St. Cloud city prosecutor later filed an additional charge of disorderly conduct against appellant. Appellant pleaded not guilty and waived his right to a jury trial. On 18 July 2001, a court trial was held before the district court. The state offered the seized and repaired videotape as Trial Exhibit 8. Appellant stipulated at trial that the videotape did capture pictures of S.L.H.’s underpants as they were filmed underneath her skirt. The videotape was viewed by the district court and by S.L.H. S.L.H. testified that at the time of the incident she was working as a sales clerk at J.C. Penney, that she had viewed the videotape, that she was depicted on the videotape, and that she had not given appellant, nor anyone else, permission to look up her skirt. The district court summarized the videotape evidence as follows:

The videotape clearly demonstrated that the camera had been placed under S.L.H.’s skirt, and that film had been taken of her underpants, which, directly cover her intimate parts. In fact, it is obvious that the camera was placed under her skirt several different times, and that many such pictures were taken.

At the close of evidence, the district court took the matter under advisement. On 9 August 2001, the district court issued its findings of fact, conclusions of law, and order, finding appellant guilty of interference with privacy and not guilty of disorderly conduct. Appellant was sentenced to 90 days in jail and a fine of $1,000. Execution of the sentence was stayed on the conditions that appellant serve ten days in jail, pay $300 of the fine, and be on probation for two years. The entire sentence was stayed pending appeal. This appeal followed.

ISSUE

Did appellant violate Minn.Stat. § 609.746, subd. 1(d) (2000)?

ANALYSIS

Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). Appellant argues that Minn.Stat. § 609.746, subd. 1(d) (2000), does not apply to his conduct in this case. He argues that he did not violate the statute and that he should have been found not guilty as a matter of law. We disagree.

Minn.Stat. § 609.746, subd. 1(d), provides:

A person is guilty of a misdemeanor who:
(1) surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events through the window or other aperture of a sleeping room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

‘Words and phrases are construed according to rules of grammar and according to their common and approved usage.” Minn.Stat. § 645.08(1) (2000). “Aperture” is defined as

1. An opening, such as a hole, gap, or slit. 2. A [usually] adjustable opening in an optical instrument, such as a camera, that limits the amount of light that can enter.

The American Heritage College Dictionary 62 (3d ed.1997). “Place” is defined as

l.a. A bounded area; a portion of space, b. Room or space, esp. adequate space. 2.a. The given portion of space occupied by or allocated to a person or thing, b. A building or an area set aside for a specified purpose.

The American Heritage College Dictionary 1043 (3d ed.1997).

The district court stated in its memorandum:

[Appellant] cannot complain that the entire statute does not apply to him. Clearly, he surreptitiously photographed the clothing covering the intimate parts of [S.L.H.’s] body (and others as well). [Appellant] obviously intended to intrude upon the privacy of these persons. [Appellant’s] suggestion of the absence of a “window or other aperture,” and the consequential assertion that an aperture must be an “opening” like a window in a sleeping room, hotel, or tanning booth, is a red herring. Clearly, every camera has, and effectively is, an aperture.
The area under a skirt (or, for that matter, a Scotsman’s kilt; the statute is gender neutral) is a place or location. It is spatial, not conceptual. By reason of the act of wearing of a covering, the person has defined a spatial location, associated with his or her intimate parts, as a zone of privacy.
It necessarily follows that [appellant] has, by reason of surreptitious, intentional intrusions into that location with an aperture, committed the crime complained of.

Appellant surreptitiously used the device of a video camera to photograph the clothing covering the immediate area of the intimate parts of S.L.H.’s body through the aperture of his camera, and through the opening (aperture) in S.L.H.’s skirt, a place where a reasonable person has an expectation of privacy, and he committed these acts with the intent to intrude upon or interfere with S.L.H.’s privacy. We agree with the district court’s construction of the statute.

Appellant also argues that another subsection of the statute, MinmStat. § 609.746, subd. 1(f) (2000), exempts from prosecution any surreptitious observation and/or recording that occurs in a commercial establishment. Minn.Stat. § 609.746, subd. 1(f), provides:

Paragraphs (b) and (d) do not apply to law enforcement officers or corrections investigators, or to those acting under their direction, while engaged in the performance of their lawful duties. Paragraphs (c) and (d) do not apply to conduct in: (1) a medical facility; or (2) a commercial establishment if the owner of the establishment has posted conspicuous signs warning that the premises are under surveillance by the owner or the owner’s employees.

Appellant contends that this exemption is not limited to owners or the owner’s employees. Both S.L.H. and Born testified that J.C. Penney uses surveillance methods, including cameras. Appellant argues that paragraph (f) excludes his conduct from the statute because it took place in a commercial establishment that uses surveillance methods.

MinmStat. § 645.16 (2000) provides in part:

The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.

When, as here, “the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters,” the “consequences of a particular interpretation.” Minn.Stat. § 645.16. As the state points out, appellant’s interpretation of this exception would afford “unlimited opportunities for anyone, voyeurs and business owners alike, to surreptitiously invade the privacy of another so long as the invasion occurs in a commercial establishment.” Appellant’s interpretation of MinmStat. § 609.746, subd. 1(f), would lead to an absurd result. “In ascertaining the intention of the legislature” we may presume that the “legislature does not intend a result that is absurd.” Minn.Stat. § 645.17 (2000). Appellant was not engaged in the performance of a lawful duty, nor was he an owner or an owner’s employee at the time he engaged in these acts. Accordingly, we conclude that Minn. Stat. § 609.746, subd. 1(f), does not exempt appellant from prosecution for interference with privacy.

DECISION

Because appellant surreptitiously positioned a video camera lens underneath S.L.H.’s skirt, a place where S.L.H. had a reasonable expectation of privacy, so as to photograph the clothing covering the immediate area of the intimate parts of her body, with the intent to intrude upon or interfere with her privacy, he was lawfully found guilty of interference with privacy in violation of Minn.Stat. § 609.746, subd. 1(d) (2000).

Affirmed.

      . When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.
      When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters:
      (1)The occasion and necessity for the law;
      (2) The circumstances under which it was enacted;
      (3) The mischief to be remedied;
      (4) The object to be attained;
      (5) The former law, if any, including other laws upon the same or similar subjects;
      (6) The consequences of a particular interpretation;
      (7) The contemporaneous legislative history; and

        (8) Legislative and administrative interpretations of the statute.
      Minn.Stat. § 645.16 (2000).

      . In ascertaining the intention of the legislature the courts may be guided by the following presumptions:
      (1) The legislature does not intend a result that is absurd, impossible of execution, or unreasonable;
      (2) The legislature intends the entire statute to be effective and certain;
      ls) The legislature does not intend to violate the constitution of the United States or of this state;
      (4) When a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language; and
      (5) The legislature intends to favor the public interest as against any private interest.
      Minn.Stat. § 645.17 (2000).


author: HALBROOKS, Judge.

text:
    STATE of Minnesota, Respondent, v. Cecil John REINERS, Appellant.
    No. C7-01-1001.
    Court of Appeals of Minnesota.
    May 21, 2002.

      Mike Hatch, Attorney General, St. Paul; and Amy Klobuehar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, for respondent.
    Robert D. Sicoli, Sarah M. Aho, Thompson, Sicoli & Aho, Ltd., Minneapolis, for appellant.
    Considered and decided by PETERSON, Presiding Judge, HALBROOKS, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

HALBROOKS, Judge.

Appellant challenges his conviction for first-degree assault, arguing that the trial court abused its discretion by denying one of appellant’s peremptory jury strikes. Because the trial court improperly placed the burden on appellant to articulate a persuasive reason for the strike, we reverse and remand for a new trial.

FACTS

Appellant Cecil Reiners owns Blooming-ton Steel and Supply, a structural-steel fabrication company. Since 1997, Bloom-ington Steel has leased a portion of its warehouse to a business called Keystar. Both Bloomington Steel and Keystar have Spanish-speaking employees. Appellant attempted to enforce an English-only policy in the warehouse, and believed that Spanish-speaking Keystar employees were bothering his employees.

On October 18, 2000, appellant told Jose Padilla, a Spanish-speaking Keystar employee, to take his lunch break away from appellant’s employees. By appellant’s account, Padilla then threw a piece of wood at appellant, striking him in the forehead. Appellant next hit Padilla over the head with a two-by-four, injuring him severely. Appellant was arrested and charged with first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (2000).

The case went to trial in March 2001. The second prospective juror examined by the attorneys was Ms. Norman, an African-American woman. In response to appellant’s questions, Norman stated that her father had been a police officer in Atlanta for about nine years and that she had trained at the police academy in high school and had considered becoming a police officer herself. Norman said that her father’s profession would not affect her ability to fairly judge police testimony or police actions.

Appellant moved to use a peremptory strike to remove Norman. Respondent objected pursuant to Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), which prohibits the use of peremptory strikes by criminal defendants in a racially discriminatory manner. Appellant argued that he intended to significantly challenge the motives and actions of the police officers who arrested appellant and investigated allegations against him, and that Norman’s police connections would inhibit her fair assessment of police testimony.

Respondent argued that appellant’s reasons for striking Norman were pretextual and that the attempted strike constituted intentional racial discrimination. Respondent contended that (1) Norman was one of only a few minorities on the jury panel, (2) appellant’s alleged victim, a Hispanic man, was also a minority, and (3) Norman had indicated that her father’s profession would have no influence on her ability to be a fair juror. Appellant argued that he was not required, under McCollum, to seat a juror merely because the juror claims she can be fair or to prove that the juror could not be impartial, as long as the reason for the strike is race-neutral and reasonable.

The trial court sustained respondent’s McCollum challenge, concluding that appellant’s reasons for striking Norman were pretextual because (1) Norman’s assertion that “she would not believe a person just because they were a police officer * * * supports [appellant’s] side of the case more so than it does the state,” and (2) “[m]ost of [Norman’s] answers * * * were more favorable to [the defense] than to the state.” Norman was seated.

The jury found appellant guilty as charged, and the trial court sentenced appellant to 91 months in prison. This appeal follows.

ISSUES
1. Did the trial court err by denying appellant’s motion to exercise a peremptory challenge against Norman?
2. What is the appropriate relief for the erroneous denial of a peremptory challenge?

ANALYSIS

Appellant challenges the trial court’s denial of his attempt to exercise a peremptory strike against an African-American venireperson, arguing that the court improperly shifted the burden of persuasion by requiring him to prove that the strike was not racially motivated. Appellant contends that the proper remedy for the erroneous denial of a peremptory challenge is a new trial. Appellant also challenges various evidentiary rulings.

I.

The Equal Protection Clause of the United States Constitution “prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992). Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69 (1986), established a three-step process to determine whether a peremptory challenge brought by the state is motivated by discriminatory intent. The Batson process is applied in Minnesota and has been incorporated into the Minnesota Rules of Criminal Procedure. See Minn. R. Crim. P. 26.02, subd. 6a(3); State v. James, 638 N.W.2d 205, 209 (Minn.App.2002). McCollum extended the Batson process to cases involving peremptory challenges brought by criminal defendants. 505 U.S. at 59, 112 S.Ct. at 2359. We are aware of only one published Minnesota case considering a McCollum or Batson challenge brought by the state. See State v. Spears, 560 N.W.2d 723, 726 (Minn.App.1997) (sustaining state’s challenge to defense’s peremptory-strike on the grounds that the defense’s use of the peremptory strike was motivated by intentional discrimination).

To make a McCollum challenge, the state must first make a prima facie showing that appellant exercised a peremptory challenge on the basis of race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Second, the burden shifts to the defense to articulate a race-neutral reason for the challenge. Id. at 97, 106 S.Ct. at 1723. The race-neutral reason need not be

persuasive, or even plausible. “At this step of the inquiry, the issue is the facial validity of [appellant’s] explanation. Unless a discriminatory intent is inherent in [appellant’s] explanation, the reason offered will be deemed race neutral.”

Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991)).

“[T]he trial court must then decide * * * whether the opponent of the strike has proved purposeful racial discrimination.” Purkett, 514 U.S. at 767, 115 S.Ct. at 1770-71. This factual determination typically turns largely on a credibility evaluation by the trial court. State v. James, 520 N.W.2d 399, 403-04 (Minn. 1994); State v. McRae, 494 N.W.2d 252, 254 (Minn.1992). “[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. We review the trial court’s decision on a McCollum challenge only for clear error, giving considerable deference to the trial court’s finding of discriminatory purpose or intent. McRae, 494 N.W.2d at 254 (citing Hernandez, 500 U.S. at 364-69, 111 S.Ct. at 1868-71).

We first address the considerable differences between challenges for cause and peremptory challenges. Challenges for cause allow the removal of jury panel members only “on a narrowly specified, provable and legally cognizable basis of partiality.” Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965), overruled on other grounds by Bat-son, 476 U.S. at 92-93, 106 S.Ct. at 1720-21.

A motion to excuse a venire member for cause * * * must be supported by specified causes or reasons that demonstrate that, as a matter of law, the venire member is not qualified to serve.

Gray v. Mississippi, 481 U.S. 648, 652 n. 3, 107 S.Ct. 2045, 2048 n. 3, 95 L.Ed.2d 622 (1987). Partiality may be established by showing a personal relationship with a party, or attorney in the litigation, or a biased state of mind concerning a party or issue in the case. Minn. R. Crim. P. 26.02, subd. 5(1).

By contrast, a party may exercise a peremptory challenge “without showing any cause at all.” Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892) (quotation omitted). The peremptory challenge is “exercised without a reason stated, without inquiry and without being subject to the court’s control,” and permits rejection “for a real or imagined partiality that is [not] easily designated or demonstrable.” Swain, 380 U.S. at 220, 85 S.Ct. at 836. The party making a peremptory challenge is not required to show that the challenged juror could not be impartial. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723 (“we emphasize that [counsel’s] explanation need not rise to the level justifying exercise of a challenge for cause.”).

Appellant argues that the trial court erred by rejecting his race-neutral reason for striking Norman on the grounds that appellant failed to persuasively show that Norman could not fairly assess police testimony. Appellant contends that the trial court applied a challenge-for-cause standard in analyzing his peremptory challenge, and that respondent did not meet its burden of showing that appellant’s challenge was motivated by discriminatory intent. We agree.

The trial transcript indicates that a substantive discussion of the McCollum challenge began with the trial court asking appellant to explain why he struck Norman. Therefore, we need not address the issue of respondent’s prima facie case. See State v. Scott, 493 N.W.2d 546, 548 (Minn. 1992) (citing Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866) (where the district court proceeds directly to the second step in the process, the issue whether the state established a prima facie case of the discriminatory use of a peremptory strike is moot).

Appellant excused Norman on the grounds that her ability to fairly assess police testimony could be compromised because her father is a policeman and because Norman herself had briefly trained to be a police officer. We conclude that this is a valid, race-neutral reason. See Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20 (noting that a prosecutor may ordinarily exercise a peremptory challenge “for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried” (quotation omitted)); State v. DeVerney, 592 N.W.2d 837, 843 (Minn.1999) (stating that the explanation need not be “valid in the sense of establishing a reasonable basis for challenge, * * * persuasive, or even plausible” as long as it is race-neutral and not inherently discriminatory (citations and quotations omitted)).

Both this court and the Minnesota Supreme Court have repeatedly held that a family member’s involvement or experience with the legal system is a race-neutral reason for striking a juror for the purposes of a Batson/McCollum challenge. See, e.g., State v. Martin, 614 N.W.2d 214, 222 (Minn.2000) (juror’s father’s conviction and imprisonment during juror’s formative years is a valid race-neutral reason to strike juror); DeVerney, 592 N.W.2d at 843 (Native American prospective juror’s negative feelings towards government and law enforcement, sympathy for imprisoned brother, and history of seriously assaulting family members were sufficient race-neutral reasons to strike); State v. Scott, 493 N.W.2d 546, 549 (Minn.1992) (allowing state to strike only African-American juror because juror’s family had recently been involved with the county sheriffs office as a result of juror’s husband’s threat to kill juror’s stepson); State v. Weatherspoon, 514 N.W.2d 266, 268-69 (Minn.App.1994) (three-year-old accusation that African-American juror’s brother was selling drugs was a valid race-neutral reason to strike juror).

In Weatherspoon, we included “prior involvement by juror or family member with the law” on a list of “objective and more easily verifiable race-neutral grounds for striking a juror.” Id. at 269. Although “pri- or involvement by juror or family member with the law” has historically meant that an individual was investigated or incarcerated, we see no reason that a juror or family member’s experience enforcing the law would not also constitute a race-neutral reason to exclude a juror.

Once appellant stated his race-neutral reasons for striking Norman, and expressly denied that the strike was racially motivated, the trial court’s proper inquiry was not whether appellant’s race-neutral reasons were “suspect, or weak, or irrational, but whether [appellant was] telling the truth in his * * * assertion that the challenge is not race-based.” United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir.1993). The question is not whether the reasons given were sufficient in the court’s view to justify the strike; a defendant may exercise a peremptory strike for any reason except discrimination on the basis of race or gender. The question is whether the strike was motivated by discriminatory intent.

The record indicates that the trial court erroneously weighed the sufficiency of appellant’s proffered reason for striking Norman. The trial court’s own description of its reasoning indicates that it denied the peremptory strike because appellant’s race-neutral reasons failed to show that Norman could not be impartial and because Norman credibly claimed she could be. As appellant correctly argues, showing partiality is the standard required to exercise a challenge for cause, and requiring appellant to meet this standard when making a peremptory challenge is error. See Batson, 476 U.S. at 96 98, 106 S.Ct. at 1723 (“we emphasize that [defense counsel’s race-neutral] explanation need not rise to the level justifying exercise of a challenge for cause.”).

The record shows that the trial court sustained respondent’s McCollum challenge here in part because it determined that Norman’s claim of'fairness was more credible and more persuasive than appellant’s race-neutral reasons for striking Norman. We believe that this analysis was flawed. In ruling on a challenge for cause, where the striking party’s burden is to demonstrate that the prospective juror cannot be impartial, the trial court may assess the credibility of a “prospective juror’s protestation of impartiality.” State v. Logan, 535 N.W.2d 320, 323 (Minn.1995). But in ruling on a peremptory strike, the validity or credibility of the juror’s claims of fairness should not enter into the determination of pretext or intentional discrimination. The defendant exercising a peremptory strike should not be required to demonstrate that the juror sought to be struck cannot be fair.

The trial court, therefore, improperly shifted the burden of proof to appellant by insisting that appellant give a good reason why Norman could not be impartial. See Purkett, 514 U.S. at 768, 115 S.Ct. at 1771 (stating that the ultimate burden remains with the party opposing the strike). After appellant articulated a race-neutral reason for striking Norman, the trial court rejected the reason, and the strike, on the grounds that Norman’s reasons were not persuasive evidence of Norman’s partiality. In so doing, the trial court

erred by combining Batson’s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, ie., a plausible basis for believing that [Norman’s] ability to perform * * * her duties as a juror will be affected.

Id. at 768, 115 S.Ct. at 1771 (quotation omitted). The trial transcript shows that the trial court’s finding of pretext was based on appellant’s inability to persuasively show that Norman would be partial to police testimony.

Thus, the trial court applied the wrong standard to the ultimate issue of whether respondent had proven intentional discrimination. In Spears, we concluded that the state met its burden of showing intentional discrimination by showing (1) that the venireperson and the alleged victim were of the same race; (2) that the defendant had previously been convicted of assault against a person of the venireperson’s gender and race; and (3) the venireperson was the only member of her race on the jury panel. Spears, 560 N.W.2d at 726. None of these circumstances were true here. And while the Spears factors are not an exhaustive list of evidence that respondent can use to show discriminatory intent, we note that respondent offered no similarly compelling evidence of discrimination. Here, respondent argued only that Norman and the alleged victim are both minorities; that Norman was one of a number of minority members of the jury panel; and that Norman’s police exposure “hasn’t affected her ability to be fair.” We cannot conclude, on the record before us, that respondent carried its burden of proving purposeful discrimination.

We realize the difficulty trial court judges face in creating a record that unequivocally shows that they separately considered each step of the three-part analysis. However, it is absolutely clear that the burden of persuading the trial court that a strike is racially motivated rests with, and never shifts from, the opponent of the strike. By requiring judges to consider each of the three parts of the Batson analysis separately, we safeguard against the burden of persuasion being improperly shifted to the strike’s proponent. The trial court here rejected a valid race-neutral reason and did not require the opponent of the strike to meet its burden. We, therefore, hold that the trial court’s finding of pretext is clearly erroneous, and must be reversed.

II.

We turn next to the question of whether an erroneous deprivation of the right of peremptory challenge under Minn. R. Crim. P. 26.02, subd. 6, entitles appellant to a new trial automatically or whether the error is subject to a harmless error analysis. We note that this is an issue of first impression in Minnesota.

The right of peremptory challenge is “essential * * * to the impartiality of the trial,” Lewis, 146 U.S. at 378, 13 S.Ct. at 139 (quotation omitted), and “is a necessary part of trial by jury.” Swain, 380 U.S. at 219, 86 S.Ct. at 835; see also Holland v. Illinois, 493 U.S. 474, 482, 110 S.Ct. 803, 808, 107 L.Ed.2d 905 (1990) (stating that the Sixth Amendment “requirement of an ‘impartial jury’ impliedly compels peremptory challenges”).

The right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused. * * * Any system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right must be condemned * * *.

Pointer v. U.S., 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894).

The Supreme Court has long held that “[t]he denial or impairment of the right [of peremptory challenge] is reversible error without a showing of prejudice.” Swain, 380 U.S. at 219, 85 S.Ct. at 835 (citations omitted), see also Harrison v. United States, 163 U.S. 140, 141-42, 16 S.Ct. 961, 961, 41 L.Ed. 104 (1896) (district court’s deprivation of defendant’s peremptory challenges is reversible error); Lewis, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892) (same).

Every United States Court of Appeals to address this issue agrees that the erroneous deprivation of a defendant’s right to peremptory challenge requires automatic reversal without a requirement of a showing of prejudice. See, e.g., United State v. Gibbs, 182 F.3d 408, 435 (6th Cir.1999) (denial of right to peremptory challenge “amounts to reversible error, there is no requirement of a showing of prejudice” (citation omitted)); United States v. Annigoni, 96 F.3d 1132, 1141 (9th Cir.1996) (declining to adopt a harmless-error standard for the erroneous deprivation of the right to peremptory challenge); United States v. Broussard, 987 F.2d 215, 221 (5th Cir.1993) (“The denial or impairment of the right to exercise peremptory challenges is reversible error without a showing of prejudice.”), abrogated on other grounds by J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1369 (7th Cir. 1990) (“It is reversible error to deny a party to a jury trial the peremptory challenges to which the rules of procedure entitle him * * *.”); United States v. Ruuska, 883 F.2d 262, 268 n. 4 (3d Cir.1989) (affirming the automatic reversal rule described in Swain, and stating that Batson “does not call into question this aspect of Swain”); United States v. Ricks, 802 F.2d 731, 734 (4th Cir.1986) (en banc) (denial of peremptory challenge reversible error even in absence of prejudice); Carr v. Watts, 597 F.2d 830, 833 (2d Cir.1979) (impairment of right of peremptory challenge is “reversible error without a showing of prejudice” (quoting Swain, 380 U.S. at 219, 85 S.Ct. at 835)).

The Minnesota Supreme Court has held that

if the members of a petit jury are selected on improper criteria or if a biased juror is improperly allowed to sit in judgment of a criminal defendant and the issue is properly raised and preserved, the error has undermined the basic “structural integrity of the criminal tribunal itself, and is not amenable to harmless-error review.”

Logan, 535 N.W.2d at 324 (quoting Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 623, 88 L.Ed.2d 598 (1986)).

In Logan, the supreme court ordered a new trial when the district court erroneously denied the defendant’s right to exercise a challenge for cause. Id. at 324. We believe that Logan's reasoning should be extended to peremptory challenges, and now hold that the erroneous denial of a defendant’s peremptory challenge automatically entitles the defendant to a new trial, without a showing of prejudice.

A new trial is necessary to protect appellant’s right to a fair trial. We note that this case’s relatively unusual procedural posture, involving a challenge to a defendant’s peremptory strike, distinguishes it from cases in which the prosecution strikes a prospective juror and the trial court overrules the defendant’s Batson challenge. There, it is impossible to know what verdict the jury might have returned, had the juror been seated, and a harmless-error analysis might be appropriate. But where, as here, the trial court erroneously places a juror on the jury over the objection of the defendant, and the juror participates in a guilty verdict, the error is presumptively substantial and prejudicial, and we see no appropriate remedy other that to grant appellant a new trial.

DECISION

The trial court committed reversible error by sustaining respondent’s McCollum challenge to appellant’s peremptory strike. We, therefore, reverse appellant’s first-degree assault conviction and order that appellant be granted a new trial.

Reversed and remanded.

      . Although Batson reversed parts of Swain, Batson never addressed this issue. For that reason, Batson left intact that portion of Swain that set forth the remedial rule for such errors.


author: SANDSTROM, Justice.

text:
    2002 ND 76
    Kathleen Susan HARGER, Plaintiff and Appellee, v. Marion Rick HARGER, Defendant and Appellant.
    No. 20010186.
    Supreme Court of North Dakota.
    May 14, 2002.

      Cathy Howe Schmitz, Williston, N.D., for plaintiff and appellee.
    Kelly Ann Dillon, Minot, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Marion Rick Harger appealed from an order denying his motion to reduce child support and holding him in contempt for failing to comply with a previous court order directing him to observe provisions of a divorce decree. We conclude the trial court did not err in denying the motion to reduce child support or in holding Marion Harger in contempt. We affirm the order and remand for a determination of the amount of attorney fees to be awarded to Kathleen Susan Harger for this appeal.

I

[¶ 2] After a 16-year marriage, Kathleen Harger and Marion Harger were divorced on January 3, 2000. The couple have a daughter, who was born on February 23, 1993. The divorce decree was based on the parties’ stipulation giving Kathleen Harger custody of the child and ordering Marion Harger to pay child support of $459.60 per month, consistent with the child support guidelines, based on his 1998 income as reflected in his tax return. Marion Harger was also ordered to pay an additional $70 per month “in lieu of paying one-half of any uninsured medical and dental expenses incurred on behalf of the minor child.” The divorce decree ordered Marion Harger to “maintain a decreasing life insurance policy, starting with a term or death benefit of $100,000.00, ... naming the minor child as beneficiary,” and to provide Kathleen Harger proof of insurance. As part of the property distribution, Kathleen Harger was awarded $25,000 to be “rolled over from defendant’s retirement account, subject to tax consequences, if any.” After the parties’ separation, Marion Harger, who had been employed as an emergency medical technician, left Wil-liston and moved to Ohio.

[¶ 3] On May 19, 2000, Kathleen Har-ger moved to modify Marion Harger’s child support obligation to conform with the current child support guidelines and moved to hold him in contempt for failing to transfer $25,000 from his retirement account to her and for failing to provide proof he had secured a $100,000 life insurance policy for the child’s benefit. On September 25, 2000, Marion Harger moved to reduce his child support obligation because his income had decreased. He agreed to stipulate to modify the decree to reflect a correct calculation of his 1998 income, but reserved the right to seek modification based on his 1999 income.

[¶ 4] Following a hearing on the contempt motion, the trial court, on February 26, 2001, found Marion Harger “has willfully failed to comply with the divorce judgment to do anything to effect the transfer of funds from his retirement account or prove insurance coverage.” The court further ruled:

This finding of contempt of court may be purged if the Defendant, before March 6, 2001, transfers to the Plaintiff either in cash or into a separate fund in the sole name of the Plaintiff an amount of money equal to the total of the following:
• $25,000.00 from the date of the judgment plus any additions and interest on the money
or
• 7% interest on the $25,000.00 from January 25, 2000 until the Defendant transfers the money in cash, should he be forced to do so to comply with the order of the Court if he is unable to secure a QDRO from the retirement account
Plus, the Defendant shall be ordered to pay an additional $500.00 in attorney fees and costs within 30 days of this order necessitated by his failure to abide by the order of the Court dated January 3, 2000.

The court also ordered Marion Harger to turn over completed forms showing proof that he had maintained a $100,000 life insurance policy for the child’s benefit and warned him, “[t]he Court reserves the specific right to consider penalties beyond what is included in this order contemplating monetary penalties of an additional $5,000.00 plus any other remedies within the discretion of the Court, if this order is not fully and completely complied with on or before March 6, 2001.” The court approved the parties’ stipulation to amend the divorce judgment and increase child support to $483.50 per month in accordance with the child support guidelines, plus $70 per month for medical expenses.

[¶ 5] The hearing reconvened on April 11, 2001. The court denied the motion to reduce child support, reasoning Marion Harger’s “stated decline in income is due to a voluntary resignation of employment,” he “still has the capacity to gain employment at his previous level of income,” and he “continues to have the capacity to pay support at the level ordered in January 2000 in the amount of $553.50 per month.” The court found Marion Harger in “ongoing contempt of court” for failing to comply with any part of the court’s February 26, 2001, contempt order. The court awarded Kathleen Harger a judgment for the amounts owed plus interest from February 26, 2001, and assessed a $5,000 penalty against Marion Harger.

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

II

[¶ 7] Marion Harger argues the trial court erred in refusing to reduce his child support payments because his income has decreased. He argues the trial court, at the very least, should have imputed his income as an unemployed or underemployed obligor under the provisions of N.D. Admin. Code § 75-02-04.1-07(3)(c).

[¶ 8] Child support determinations involve questions of law subject to the de novo standard of review, findings of fact subject to the clearly erroneous standard of review, and, in some limited areas, matters of discretion subject to the abuse of discretion standard of review. Christl v. Swanson, 2001 ND 98, ¶ 3, 626 N.W.2d 690. In this case, Marion Harger had two hurdles to overcome to reduce his child support obligation. First, he had the burden of demonstrating a material change in circumstances, because his motion seeking modification of the child support order was brought within one year after its entry. See N.D.C.C. § 14-09-08.4(4); Lauer v. Lauer, 2000 ND 82, ¶ 4, 609 N.W.2d 450; Withey v. Hager, 1997 ND 225, ¶ 7, 571 N.W.2d 142. Second, he had the burden of presenting sufficient evidence to justify modification under the child support guidelines. See Anderson v. Rosier, 2000 ND 183, ¶ 21, 618 N.W.2d 480. He satisfied neither requirement.

[¶ 9] Marion Harger testified he was currently self-employed as a home builder. He had voluntarily quit his job as an emergency medical technician, but asserted he could not return to that line of work, because “I have seen enough dead people ... [and] I can’t stand the sight of any blood right now.” He testified he had applied for some jobs in Ohio but was offered only one job, which he was unable to accept because he lacked the proper vehicle.

[¶ 10] As evidence of his 1999 income, Marion Harger presented an unsigned, un-filed, self-prepared tax return indicating an adjusted gross income of $18,750. No other documentation was presented to support the figures listed on the return. As evidence of his 2000 income, he presented an unsigned, unfiled tax return prepared by a certified public accountant indicating an adjusted gross income of “-1,358.” No other documentation was presented to support the figures listed on the return, and he was unable to explain their origin. This is clearly insufficient documentation of income. See N.D.C.C. § 14-09-08.6(l)(a); N.D. Admin. Code § 75-02-04.1-02(7). Except for ambiguous references to various loans from a bank and from assorted family members, Marion Harger did not provide a cogent explanation for his ownership of a building lot, cattle, and a $129,000 home for which he expected to receive a $44,000 profit upon its sale. The trial court said:

THE COURT: I am not sure that Mr. Harger thinks in concrete ideas or symbols. His testimony is a jumble of hints and maybes, so it is really tough to make much sense of what he says.
It is my opinion and determination at this point that Mr. Harger continues to have the income capacity which resulted in the determination of his current child support obligation. He has the capacity to do that and has not for any good reason lost that capacity.

[¶ 11] We construe the trial court’s ruling to mean Marion Harger did not establish a material change of circumstances to justify a modification of child support, and we conclude that finding is not clearly erroneous. Even if the trial court found a material change of circumstances, we further conclude the trial court did not misapply the child support guidelines in refusing to reduce Marion Harger’s child support obligation.

[¶ 12] Marion Harger argues the trial court should have imputed his income under the provisions of N.D. Admin. Code § 75-02-04.1-07(3)(c). However, he admitted his change of employment was voluntary, and N.D. Admin. Code § 75-02-04.1-07(9) provides:

9. Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

This provision gives the trial court discretion to impute 100 percent of former income for the specified period if the obligor voluntarily leaves his job for a lower paying job. See Minar v. Minar, 2001 ND 74, ¶ 24, 625 N.W.2d 518; Logan v. Bush, 2000 ND 203, ¶ 16, 621 N.W.2d 314. The only reliable record evidence of Marion Harger’s income during the applicable 36-month period is his 1998 verified tax return, upon which his original child support obligation was based. Under the circumstances of this case, we conclude the trial court did not abuse its discretion in applying N.D. Admin. Code. § 75-02-04.1-07(9), and did not err in refusing to reduce child support.

Ill

[¶ 13] Marion Harger argues the trial court erred in holding him in contempt of court.

[¶ 14] Under N.D.C.C. § 27-10-01.1(l)(c), “[c]ontempt of court” includes “[i]ntentional disobedience, resistance, or obstruction of the authority, process, or order of a court or other officer....” A “[r]emedial sanction” for contempt includes “a sanction that is conditioned upon performance or nonperformance of an act required by court order,” and a “sanction requiring payment of a sum of money is remedial if the sanction is imposed to compensate a party or complainant, other than the court, for loss or injury suffered as a result of the contempt.” N.D.C.C. § 27-10-01.1(4). The sanction in this case was remedial because it was conditioned on the performance of affirmative acts. See Millang v. Hahn, 1998 ND 152, ¶ 12, 582 N.W.2d 665. To warrant a remedial sanction for contempt, there must be a willful and inexcusable intent to violate a court order. Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶ 5, 598 N.W.2d 499. The determination whether a contempt has been committed and remedial sanctions are warranted lies within the sound discretion of the trial court, and its decision will not be overturned on appeal unless there is a clear abuse of discretion. Berg v. Berg, 2000 ND 37, ¶ 10, 606 N.W.2d 903.

[¶ 15] Although an inability to comply with an order is a defense to contempt proceedings based on a violation of that order, Mid-Dakota Clinic, P.C. v. Kolsrud, 1999 ND 244, ¶23, 603 N.W.2d 475, the burden rests with the contemnor to establish the defense and show an inability to comply. See Flattum-Riemers, 1999 ND 146, ¶ 7, 598 N.W.2d 499. Marion Harger was ordered to comply with the divorce decree by transferring $25,000 to Kathleen Harger as part of the property settlement. Marion Harger testified he tried to have the company managing his retirement fund issue Kathleen Harger a $25,000 check, but he was advised it was not possible without cashing out the entire amount of about $160,000, and he did not want to suffer the tax consequences. Marion Harger also testified he requested a document from the insurance company listing the beneficiary of the policy, but the document he received did not list any beneficiaries. After more than a year had passed since the divorce decree had been entered, the trial court ruled Marion Har-ger had done nothing to comply with its provisions or the order allowing him to purge the contempt. Under these circumstances, we conclude the trial court did not abuse its discretion in holding Marion Har-ger in contempt of court and in imposing a $5,000 remedial sanction.

IV

[¶ 16] Kathleen Harger requests that we award her attorney fees for this appeal. We have concurrent jurisdiction with the trial court to award attorney fees on appeal. Schmitz v. Schmitz, 2001 ND 19, ¶ 13, 622 N.W.2d 176. We believe this is an appropriate case in which to award attorney fees on appeal, and we remand and direct the trial court to award reasonable attorney fees to Kathleen Harger for this appeal. See Jorgenson v. Ratajczak, 1999 ND 65, ¶ 26, 592 N.W.2d 527; Kjonaas v. Kjonaas, 1999 ND 50, ¶ 19, 590 N.W.2d 440.

V

[¶ 17] We affirm the order and remand for a determination of the amount of attorney fees to be awarded to Kathleen Har-ger for this appeal.

[¶ 18] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

      . Because a subsequently entered consistent judgment exists, we treat this as an appeal from the judgment. See Schuck v. Montefiore Pub. Sch., 2001 ND 93, ¶ 1 n. 1, 626 N.W.2d 698.


author: KAPSNER, Justice.

text:
    2002 ND 79
    STATE of North Dakota, Plaintiff and Appellee, v. Raymond STEIGER, Defendant and Appellant.
    No. 20010240.
    Supreme Court of North Dakota.
    May 14, 2002.

      Brian D. Grosinger, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Paul H. Myerchin, Bormann & Myer-chin, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Raymond Steiger appeals from a criminal judgment finding him guilty of failure to register as a sex offender under N.D.C.C. § 12.1-32-15. Steiger argues the verdict was not supported by sufficient evidence of a changed, unregistered address. Because the evidence supports the trial court’s inference Steiger abandoned his registered address, we affirm the conviction.

I

[¶ 2] Steiger is required to register as a sex offender because of a prior sexual offense conviction in Montana. He registered a Mandan address with North Dakota authorities. While investigating an unrelated case, Mandan Police Officer Lonnie Grabowska went to Steiger’s registered address to speak with him. Steiger was not present at the address. Detective Grabowska found Steiger at a Bismarck residence. Detective Grabowska questioned Steiger on his address. Steiger replied he lived at the Mandan address and still received mail there. When pressed further, Steiger stated he alternated living between friends and his registered address.

[¶ 3] After this initial contact, Detective Grabowska set up another meeting with Steiger. This was to take place at Steiger’s Mandan address. Steiger never arrived at the appointed time. Steiger was eventually found approximately three weeks later when arrested by Bismarck police on an unrelated charge. Steiger was subsequently charged with, and convicted of, failure to register as a sex offender.

II

[¶4] Steiger argues the State did not produce sufficient evidence to convict him of failure to register as a sex offender because it did not prove he changed his address. Specifically, he alleges the trial court relied on inadmissible hearsay testimony regarding his Mandan address. When sufficiency of evidence is challenged, “we will examine the evidence in the light most favorable to the verdict to see if a rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt.” State v. Morris, 331 N.W.2d 48, 53 (N.D.1983). “We look only to the evidence and its reasonable inferences most favorable to the verdict to see whether substantial evidence exists to warrant conviction.” State v. Treis, 1999 ND 136, ¶ 9, 597 N.W.2d 664.

[¶ 5] Under North Dakota sex offender registration law, an individual required to register must do so within ten days of a change in address:

If an individual required to register pursuant to this section has a change in name, school, or address, that individual shall inform in writing, within ten days, the law enforcement agency with whom that individual last registered of the individual’s new name, school, or address, or employment address if the individual is working in this state but not residing in this state.

N.D.C.C. § 12.1-32-15(7) (1999). A majority of this Court has defined “address” to include both mailing and residential addresses. State v. Rubey, 2000 ND 119, ¶ 19, 611 N.W.2d 888. In Rubey the defendant, Larry Rubey, was forced to remove himself from his registered address in Washburn because of a permanent protection order. Id. at ¶ 4. Rubey obtained a new mailing address in Mandan and failed to notify the McLean County Sheriffs Office of any change in address. Id. On appeal to this Court, Rubey argued his conviction must fail “because the State did not prove [he] changed his address.” Id. at ¶ 12. Rubey argued his address hadn’t changed because he “lived out of his truck and only stayed in one place for three or four days.” Id.

[¶ 6] In holding “address” includes both mailing and residential addresses, the majority determined:

Using address in the broader sense rather than limiting it to residence, more clearly effects the legislature’s intent. It requires offenders who leave their registered address, but do not gain a new permanent residing address to nonetheless notify law enforcement of this change. Allowing sex offenders to circumvent the registration process by physically leaving one residence without technically acquiring a new residence would permit the offender to “slip through the cracks,” disappear from law enforcement view and thus thwart the purpose for which this law was enacted. If an offender registered at a particular residing address permanently abandons the address, the offender must register the subsequent residing address if there is one. However, if the offender, as in this case, has no new residing address, but has a new mailing address, the offender must notify authorities of the new address. By concluding address includes mailing addresses and residential addresses, our interpretation effects the purpose of this law without unduly burdening the offender.

Id. at ¶¶ 18-19. The intent of the registration provision “[is] to enable law enforcement to keep better track of sex offenders and those who commit crimes against children.” Id. at ¶ 17. Rubey holds the sex offender registration statute requires registration of a mailing address when a residing address has been abandoned and no new residing address has been established. Id. at ¶ 19. Rubey does not support the contention that retaining a mailing address is sufficient compliance when a person has a new residing address or multiple residing addresses.

[¶ 7] Steiger argues there is a lack of admissible evidence in the record to support the conclusion he abandoned his address without informing the proper authorities. Steiger argues without the admission of, and reliance upon, hearsay testimony the trial court was left with insufficient evidence of any alleged abandonment of his registered address.

[¶ 8] As part of his testimony, Detective Grabowska stated a third person told him Steiger no longer lived at the Mandan address. The trial court overruled hearsay objections to this testimony, stating it was not admitting the statements for their truth as to whether Steiger lived at the address, but rather, was admitting the statements to explain Detective Gra-bowska’s investigative process:

Q. Did you have any information on that day that led you to believe he was still living at that address?
A. Yes, some information was given that he was not living at that address.
MR. MYERCHIN: Objection, hearsay. THE COURT: I am not taking it for the truth. I am taking it for the followup and what he did. Go ahead.
Q. What steps did you do to track him down?
A. I met with a Robert Jackman at the residence at 1306 1st St. NW. He told me he was no longer living there and he hasn’t seen him.
MR. MYERCHIN: Objection.
THE COURT: Overruled. It’s part of the investigation. Overruled. Not for the truth, it’s for follow-up.

Steiger argues that while the trial court may have stated it was not admitting the testimony for its veracity, in making its factual determinations the trial court accepted the testimony as the truth. In its findings, the trial court stated:

The evidence that I have in the record indicates that on the 26th or 27th of January, the officer went to the place registered as his address and learned at that time that Mr. Steiger was no longer there. He was advised that he didn’t live there.

Steiger’s reliance upon the trial court’s factual findings is misplaced. In a criminal case tried without a jury, the trial court need only make a general finding of guilty or not guilty. N.D.R.Crim.P. 23(d). See also State v. Berger; 235 N.W.2d 254, 263 (N.D.1975) (“In a criminal case tried to the court without a jury, the court is not required to make findings of fact. It either finds the defendant guilty or not guilty in the same manner as a jury.”). Accordingly, this Court is not limited to the reasons a trial court gives for a finding of guilt. Instead, we consider the entire record to decide whether substantial evidence exists to support the conviction. See State v. Hartleib, 335 N.W.2d 795, 797 (N.D.1983).

[¶ 9] Regardless of the allegedly hearsay testimony, the admissible evidence in the record, when viewed in a light most favorable to the verdict, establishes guilt beyond a reasonable doubt. The evidence in the record establishes Detective Gra-bowska made two trips to Steiger’s registered address, including one at an agreed upon time, when Steiger was absent. It also establishes Steiger admitted he “lives between friends.” Finally, the evidence establishes Steiger “was not on the lease” of the Mandan address. Steiger’s statement he lived between friends, coupled with his repeated absences from the registered address and his not being on the lease, when viewed in the light most favorable to the verdict, could lead the trial court to infer Steiger had abandoned his address. Based on this inference, the conviction for failure to register as a sex offender was established beyond a reasonable doubt.

III

[¶ 10] We affirm the conviction for failure to register as a sex offender because the evidence, and the reasonable inferences to be drawn from it, establish beyond a reasonable doubt Steiger failed to register within ten days of his change in address.

[¶ 11] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

      . This evidence came in via Detective Gra-bowska's testimony. Steiger objected to this portion of Detective Grabowska’s testimony on relevancy grounds. The presence or absence of a person’s name on a lease certainly makes the factual question of whether an address has been abandoned more or less probable, and therefore, relevant. By objecting on relevancy grounds only, Steiger waived other grounds for objection. See State v. Dietz, 115 N.W.2d 1, 8 (N.D.1962).


text:
    2002 ND 84
    Darin Lee KNOLL, Petitioner and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20020059.
    Supreme Court of North Dakota.
    May 14, 2002.

      Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for petitioner and appellant.
    Andrew Moraghan, Assistant Attorney General, Office of the Attorney General, Bismarck, N.D., for respondent and appel-lee.
   SANDSTROM, Justice.

[¶ 1] Darin Lee Knoll appeals from a district court judgment affirming the North Dakota Department of Transportation’s decision to suspend his driver’s license. We affirm, concluding (1) Knoll is barred from challenging the admissibility of his Intoxilyzer test results because he failed to reveal he had chewing tobacco in his mouth during the test, and (2) the outcome of Knoll’s related criminal matter is not relevant to his administrative proceeding.

I

[¶ 2] Knoll was stopped by North Dakota Highway Patrol Officer Trevor Wah-len for weaving over the fog line and lane-dividing line. After he failed three roadside sobriety tests, Knoll was arrested for driving under the influence. The officer took Knoll to the Burleigh County Law Enforcement Center, where he administered an Intoxilyzer test. The test results indicated Knoll had a blood alcohol level of .10 percent.

[¶ 3] Knoll requested and received an administrative hearing. At the hearing, Knoll argued the Intoxilyzer test was not fairly administered because he had chewing tobacco in his mouth at the time of the test. Officer Wahlen testified he could not remember the exact questions he had asked Knoll, but stated he usually asked whether the person had anything in his or her mouth prior to taking a breath sample. Knoll testified he thought the officer was referring only to food when the officer asked him whether he had anything in his mouth. Knoll told the officer there was nothing in his mouth, even though he had chewing tobacco in his mouth when he took the Intoxilyzer test. The hearing officer accepted the Intoxilyzer test results into evidence and suspended Knoll’s license for 91 days.

[¶ 4] Knoll appealed to the district court. The district court, noting Knoll had failed to cooperate with the officer’s attempt to follow the approved method in giving the test, concluded Knoll could not challenge the admissibility of the test on the ground the approved method was not followed.

[¶ 5] Knoll made a timely request for a hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the administrative agency decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D.C.C. § 39-20-06. The notice of appeal from the district court judgment was timely under N.D.C.C. § 28-32-21. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-21.

II

[¶ 6] “The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32,

governs the review of an administrative agency decision to suspend a driver’s license.” Lapp v. N.D. Dep’t of Transp., 2001 ND 140, ¶ 6, 632 N.W.2d 419. The record and decision of the administrative agency, not the ruling of the district court, are reviewed on appeal. McPeak v. Moore, 545 N.W.2d 761, 762 (N.D.1996). “[RJeview is limited to the record before the agency.” Ringsaker v. Dir., N.D. Dep’t of Transp., 1999 ND 127, ¶ 5, 596 N.W.2d 328. Under N.D.C.C. § 28-32-46, the Court is required to affirm the order of the agency, unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

“[W]hen reviewing the factual findings of an administrative agency ‘we do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.’ ” Bryl v. Backes, 477 N.W.2d 809, 811 (N.D.1991) (quoting Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979)). “This standard defers to the hearing officer’s opportunity to hear the witnesses’ testimony and to judge their credibility and we will not disturb the agency’s findings unless they are against the greater weight of the evidence.” Johnson v. N.D. Dep’t of Transp., 530 N.W.2d 359, 361 (N.D.1995).

Ill

[¶ 7] Knoll contends chewing tobacco in his mouth invalidated his Intoxilyzer test.

[¶ 8] The method for accepting the results of chemical tests into evidence is set forth by N.D.C.C. § 39-20-07(5):

The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual possessing a certificate of qualification to administer the test issued by the state toxicologist.

Certain “foundational requirements” are necessary to show a breath test was fairly administered.

“The foundational requirements ... may be met either through testimony of the state toxicologist or through the introduction of certified copies of approved methods and techniques filed by the state toxicologist with the clerk of the district court pursuant to N.D.C.C. § 39-20-07. Absent testimony by the state toxicologist, the foundational requirements necessary to show fair administration of a breathalyzer test and admissibility of the test results is, a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court. Thus, reliability and accuracy of the results are established by demonstrating compliance with the methods adopted by the state toxicologist. Because the statute permits admission of such evidence without expert witness testimony to establish accuracy and reliability, all the requirements of the statute must be scrupulously met to ensure a uniform basis of testing throughout the State and fair administration.”

Ringsaker, 1999 ND 127, ¶8, 596 N.W.2d 328 (quoting Moser v. N.D. State Highway Comm’r, 369 N.W.2d 650, 653 (N.D.1985)) (citations omitted). Accordingly, an Intoxilyzer test is fairly administered when the method approved by the State Toxicologist for conducting the test is scrupulously followed. McPeak, 545 N.W.2d at 764.

[¶ 9] The State Toxicologist’s approved method for conducting a breath test with an Intoxilyzer provides, in part, “[b]efore proceeding, the operator must ascertain that the subject has had nothing to eat, drink, or smoke within twenty minutes prior to the collection of the breath sample.” Approved Method to Conduct Breath Test with Intoxilyzer, dated September 1, 2000. Prior case law has clarified the meaning of this directive. Observing a subject for twenty minutes is one method to ascertain the subject did not have anything to eat, drink, or smoke within twenty minutes prior to the breath sample. Buchholz v. N.D. Dep’t of Transp., 2002 ND 23, ¶ 12, 639 N.W.2d 490. Test operators are not required “to ask subjects if they have anything in their mouths or to check their mouths prior to administering the test.” Id.

[¶ 10] In Bryl v. Baches, 477 N.W.2d 809 (N.D.1991), a driver challenged the Department’s decision to suspend his license, alleging the approved method for administering an Intoxilyzer test was not followed. The hearing officer found the driver “hid” a small amount of chewing tobacco in his mouth during the test. Id. at 813. This Court concluded the driver had “deliberately attempted to distort the Intoxilyzer test by keeping tobacco in his mouth.” Id. at 813-14. This Court explained its holding, stating:

In refusing to follow the reasonable requests of the operator in his conscientious attempt to follow appropriate instructions of the State Toxicologist in administering the Intoxilyzer test, [the driver] has, in effect, refused to take the test. Reason dictates that he suffer the consequences of that refusal for the ultimate benefit of society. We thus hold, if a person refuses to cooperate with an operator’s attempt to follow the State Toxicologist’s approved methods, the person cannot thereafter challenge the foundation for admissibility of the test results on the ground that the approved methods were not followed.

Id. at 814. The hearing officer’s decision to allow the results of the driver’s Intoxi-lyzer test into evidence was upheld, and the license suspension was affirmed. Id.

[¶ 11] In this case, the hearing officer’s written decision states, in part:

Prior to Intoxilyzer testing, Trooper Wahlen asked Mr. Knoll if he had anything in his mouth. The response was that Mr. Knoll did not have anything in his mouth. Mr. Knoll had interpreted the trooper’s question to mean whether he had put any food into his mouth. At that time, Mr. Knoll believed that he had nothing in his mouth, so he denied having anything in his mouth. Later, perhaps an hour or more after testing was completed, Mr. Knoll noticed that he had a small amount of “chew” in his mouth, but he did not tell Trooper Wah-len this. Intoxilyzer testing was done in accordance with the state toxicologist’s approved method, with results showing an alcohol concentration of .10% within two hours of the observed time of driving.

The hearing officer resolved the conflict over the specific language of the question in favor of the officer and concluded the officer had asked Knoll whether “he had anything in his mouth.”

[¶ 12] This ease is similar to Bryl in several ways. Knoll, like the driver in Bryl, had chewing tobacco in his mouth during the test. Officer Wahlen, like the officer in the Bryl case, was attempting to comply with the State Toxicologist’s approved method for-obtaining a breath sample. Both Knoll and the driver in Bryl claim the reliability of their test results was tainted because of the tobacco in their mouths. Both arguments are based on their own actions, not on some failure by the officers conducting the tests.

[¶ 13] Although Knoll may have been more congenial than the driver in Bryl, the alleged deviation from the State Toxicologist’s approved method was a result of his failure to inform the officer he had chewing tobacco in his mouth. As we stated in Bryl, “if a person refuses to cooperate with an operator’s attempt 'to follow the State Toxicologist’s approved methods, the person cannot thereafter challenge the foundation for admissibility of the test results on the ground that the approved methods were not followed.” Bryl, 477 N.W.2d at 814. We hold, if a person intentionally or unintentionally provides false information to an operator attempting to follow the State Toxicologist’s approved methods, the person cannot thereafter challenge the foundation for admissibility of the test results on the ground that the false information resulted in the approved methods not being followed. Knoll provided false information to the officer attempting to follow the approved method, and he is not allowed to challenge the admissibility of the test results on the ground the approved method was not followed.

IV

[¶ 14] Knoll asks us to take judicial notice of a subsequent district court proceeding on his corresponding criminal charges.

[¶ 15] The proper method for receiving additional evidence following a decision of an administrative agency is set forth in N.D.C.C. § 28-32-45:

If an application for leave to offer additional testimony, written statements, documents, exhibits, or other evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that the additional evidence is relevant and material and that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and material to the issues involved and was rejected or excluded by the agency, the court may order that the additional evidence be taken, heard, and considered by the agency on terms and conditions as the court may deem proper. After considering the additional evidence, the administrative agency may amend or reject its findings of fact, conclusions of law, and order and shall file with the court a transcript of the additional evidence with its new or amended findings of fact, conclusions of law, and order, if any, which constitute a part of the record with the court.

The record shows Knoll did not apply to the district court for leave to offer additional evidence. Rather, Knoll attached a transcript of the district court proceeding to his brief in support of his appeal of the hearing officer’s decision and asked the district court to take judicial notice of the additional evidence, under N.D.R.Ev. Rule 201.

[¶ 16] This Court addressed the relevance of the outcome of corresponding criminal matters to an administrative license suspension in Williams v. N.D. State Highway Comm’r, 417 N.W.2d 359 (N.D. 1987). The Court stated:

A license suspension proceeding under § 39-20-05, N.D.C.C., “is an exercise of the police power for the protection of the public.” Asbridge v. North Dakota State Highway Comm’r, 291 N.W.2d 739, 750 (N.D.1980). This court has often said that proceedings under Chapter 39-20, N.D.C.C., are civil in nature, separate and distinct from the criminal proceedings which may ensue from an arrest, and that a dismissal or acquittal of a related criminal charge is irrelevant to the disposition of the administrative proceedings. See, e.g., Pladson v. Hjelle, 368 N.W.2d 508 (N.D.1985); Asbridge v. North Dakota State Highway Comm’r, supra; Clairmont v. Hjelle, 234 N.W.2d 13 (N.D.1975).

Williams, at 360. This Court concluded a “court order suppressing evidence in a related criminal proceeding ... is, like a dismissal or acquittal, irrelevant to the disposition of administrative proceedings under Chapter 39-20, N.D.C.C.” Id.

[¶ 17] The reduction in Knoll’s charges from driving under the influence to reckless driving and the accompanying transcript questioning the test results are not relevant to the administrative proceeding, nor did Knoll properly apply to the district court for leave to present this additional evidence. The district court was correct in refusing to take judicial notice of the information contained in the transcript.

V

[¶ 18] Because Knoll is not allowed to challenge the admissibility of the Intoxilyzer results, and because the outcome of a related criminal matter is irrelevant to an administrative proceeding, we affirm the judgment suspending Knoll’s driving privileges for 91 days.

[¶ 19] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER concur.