author: TOUSSAINT, Chief Judge.

text:
    Jean CLARK, individually and as trustee for the next of kin of Tina Grove, deceased, et al., Respondents, v. Roy Jorgen Munkholm PETERSON, et al., Defendants, Gordon Wheeler d/b/a Camp Ripley Store/Bar/Cafe and Krazy Rabbit, Appellant.
    No. A06-2006.
    Court of Appeals of Minnesota.
    Nov. 13, 2007.

      Susan J. Bowden, McCullough, Williams, Bowden & Cyr, P.A., St. Paul, MN, for respondents.
    Britton D. Weimer, Jones Satre & Weimer, PLLC, Eagan, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; TOUSSAINT, Chief Judge; and KALITOWSKI, Judge.
   OPINION

TOUSSAINT, Chief Judge.

In this civil-damages action, appellant Gordon Wheeler, d/b/a Camp Ripley Store/ Bar/Cafe and Krazy Rabbit, challenge the judgment in favor of respondents Jean Clark, individually and as trustee for the next of kin of Tina Grove, deceased, Michael Juetten, as parent and natural guardian of Chelsea Grove, and Chad Lindberg, as parent and natural guardian of Cody Lindberg. Wheeler argues that the district court erred in ruling as a matter of law that a liquor sale that violated the compact-and-contiguous building requirement in Minn.Stat. § 340A.410, subd. 7 (2006), was an illegal sale giving rise to liability under the Minnesota Civil Damages Act, Minn.Stat. § 340A.801, subd. 1 (2006). Because the compact-and-contiguous building requirement is substantially related to the purposes of the civil damages act and is consistent with established categories of illegal sales, we affirm.

FACTS

In 1981, Wheeler acquired a liquor license to operate the Camp Ripley Bar, an adult-entertainment establishment. In July 1999, Wheeler was granted a zoning permit to construct a 40-by 100-foot building adjacent to the Camp Ripley Bar. The permit application described the building as a “storage building.” In June 2001, following the issuance of a stop-work order applicable to unpermitted construction, Wheeler applied for an after-the-fact land-use permit for a structure, described as a walkway, connecting the new building to the Camp Ripley Bar and another structure expanding the new building. In the application, Wheeler indicated that he intended to sell alcoholic beverages out of the new building. In July 2001, the county zoning administrator sent a letter to Wheeler denying the application for an after-the-fact permit, explaining that the proposed construction would be an impermissible expansion of the adult-entertainment establishment, and stating that the stop-work order remained in effect. Wheeler did not appeal the denial of the application for an after-the-fact permit but continued and completed construction of the structures.

In June 2001, Wheeler was granted a license renewal to operate Camp Ripley Store/Bar/Cafe. The renewal did not list any other establishment. In late 2001 or early 2002, Wheeler began operating a sports bar named Krazy Rabbit, which served food and alcoholic beverages, out of the 40-by 100-foot building adjacent to the Camp Ripley Bar. The walkway connecting the Krazy Rabbit to the Camp Ripley Bar is used for storage and not accessible to the public. Wheeler alleges that in 2000, Michael McManus, a liquor-control investigator, and Sheriff Paul Tschida advised him that the walkway would satisfy the compact-and-contiguous building requirement of Minn.Stat. § 340A.410.

After Roy Peterson was served alcohol at Krazy Rabbit on April 6, 2002, the vehicle he was driving was involved in an accident. Peterson’s passenger, Tina Grove, was killed in the accident.

Clark, Juetten, and Lindberg brought this civil-damages action against Wheeler. Concluding that the liquor sale as a matter of law violated Minnesota Statutes chapter 340A and that the violation was substantially related to the purposes of the civil damages act, the district court granted partial summary judgment for Clark, Juet-ten, and Lindberg. The parties stipulated to the remaining issues, and judgment was entered for Clark, Juetten, and Lindberg.

ISSUE

Did the district court err in concluding that the violation of the compact-and contiguous building requirement is substantially related to the purposes of the civil damages act?

ANALYSIS

On appeal from a summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). This court must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). “Statutory construction is a question of law subject to de novo review.” Vlahos v. R & I Constr., 676 N.W.2d 672, 679 (Minn.2004).

The Minnesota Civil Damages Act (the act) is both remedial and penal. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 857 (Minn.1998). When its provisions are clear as to intent and purpose, the supreme court has “liberally construed the act so as to suppress the mischief and advance the remedy.” Id. (quotation omitted). But “liberal construction is not without limitations and ... the Act is to be strictly construed in the sense that it cannot be enlarged beyond its definite scope.” Id. (quotation omitted).

A person injured by an intoxicated person, or by the intoxication of another person, has a cause of action for all damages sustained against a party who caused the intoxication by illegally selling alcoholic beverages. Minn.Stat. § 340A.801, subd. 1 (2006). A sale of alcohol constitutes an “illegal sale” under the act if (1) the sale violates a provision of Minnesota Statutes chapter 340A and (2) the violation is substantially related to the purposes of the act. Rambaum v. Swisher, 435 N.W.2d 19, 21 (Minn.1989).

The sale in this case violated Minn. Stat. § 340A.410, subd. 7 (2006), which states, “A licensing authority may issue a retail alcoholic beverage license only for a space that is compact and contiguous. A retail alcoholic beverage license is only effective for the licensed premises specified in the approved license application.”

In addressing Wheeler’s argument that the district court improperly expanded the categories of sales deemed illegal under Minn.Stat. § 340A.801, subd. 1, we have as our focus the purposes of the act. “The concern of the Civil Damages Act is intoxication which results in injury to the intoxicated person’s dependants or others.” Hollerich v. City of Good Thunder, 340 N.W.2d 665, 668 (Minn.1983). The act’s purposes are (1) to protect the health, safety, and welfare of the public through careful regulation of liquor distribution, (2) to penalize vendors for the illegal sale of liquor, and (3) to provide a remedy for innocent third persons injured as a result of another’s intoxication. Englund v. MN CA Partners, 555 N.W.2d 328, 332 (Minn.App.1996), aff'd mem., 565 N.W.2d 433 (Minn.1997). Imposing liability on vendors acts as an incentive to the vendors to avoid illegal sales and also reflects the legislative judgment that the vendors can best bear the loss. Conde v. City of Spring Lake Park, 290 N.W.2d 164, 166 (Minn.1980). The act reflects a “deep concern over alcohol abuse.” Rambaum, 435 N.W.2d at 22.

In determining whether a sale is an illegal sale under the act, the supreme court has “looked to the manner in which certain kinds of illegal sales impact on the public’s access to and consumption of alcoholic beverages.” Id. The supreme court considers significant the legislature’s limitations based on population on the number of regular liquor licenses that a municipality may issue based on population, and the fact that the exception from those limitations for clubs has a proviso limiting sales to club members and guests. Id. (holding that fraternal club’s sale of liquor to person, not member or guest, is illegal sale under act). The court found that the proviso limited clubs’ competition for business with other licensed vendors, thereby reducing the potential for alcohol abuse that occurs with competition for consumers in an over-saturated market. Id. Other sales that have been deemed illegal under the act include (1) sales during prohibited hours, (2) sales to minors, (3) sales to obviously intoxicated persons, and (4) sales on prohibited days. Englund, 555 N.W.2d at 330-33 (holding that sale of alcohol in open container by on-sale vendor without safeguarding against off-premises consumption is illegal sale under act).

We are not persuaded by Wheeler’s argument that it is a significant distinction that this case involves a statute governing “the shape of the vendor’s building,” whereas cases in which a sale has been deemed illegal for purposes of the act all involved regulations restricting persons to whom liquor can be sold or the time of sale. Like the illegal sale in Rambaum, Wheeler’s operation of two separate establishments in two separate buildings circumvents statutory limits based on population on the number of liquor licenses that a municipality may issue, thereby increasing the potential for alcohol abuse and the injury of innocent persons. Also, both Englund and this case involve the place where alcohol consumption occurs after the sale. The district court’s conclusion that an illegal sale under the act occurred in this case is consistent with Minnesota law and the purposes of the act. Minnesota law does not support Wheeler’s argument that Clark, Juetten, and Lindberg were required to present evidence documenting a causal connection between violation of the compact-and-contiguous requirement and increased public consumption of alcohol.

Wheeler argues that until the district court granted partial summary judgment for Clark, Juetten, and Lindberg, he believed the Krazy Rabbit to be in compliance with Minn.Stat. ch. 340A, and should not be held retroactively liable for the illegal sale. But the July 2001 letter from the county zoning administrator notified Wheeler that the proposed construction was an impermissible expansion of the existing adult-entertainment establishment. The legislature has imposed on liquor vendors the responsibility of complying with the requirements of chapter 340A, which requires vendors to take affirmative steps to ensure that all liquor sales are legal. Englund, 555 N.W.2d at 332.

Finally, Wheeler argues that a violation of the compact-and-contiguous building requirement should not give rise to liability under the act because whether a violation occurred may require a fact-intensive determination. That a fact-intensive determination may be required does not preclude liability under the act. See Strand v. Village of Watson, 245 Minn. 414, 416, 72 N.W.2d 609, 612 (1955) (addressing sufficiency of evidence to create fact question as to whether individual was obviously intoxicated); see also Jaros v. Warroad Mun. Liquor Store, 303 Minn. 289, 296-97, 227 N.W.2d 376, 381-82 (1975) (same).

DECISION

The district court properly determined that the sale of liquor to Peterson was an illegal sale under the act and granted summary judgment for Clark, Juetten, and Lindberg on the issue.

Affirmed.

      . On appeal, Wheeler does not address the issue of whether the sale of liquor to Peterson violated Minn.Stat. § 340A.410, subd. 7 (2006). Failure to brief an issue for this court waives the issue. State v. Tracy, 667 N.W.2d 141, 145 (Minn.App.2003).


source: Caselaw Access Project

license: Public Domain

text:
    DRJ, INC., d/b/a Diva’s Overtime Lounge, Relator, v. CITY OF ST. PAUL, Respondent.
    No. A07-1599.
    Court of Appeals of Minnesota.
    Nov. 13, 2007.

      Marshall H. Tanick, Andrew J. Dawkins, Mansfield, Tanick & Cohen, St., Minneapolis, MN, for relator.
    John Choi, St. Paul City Attorney, Rachel A. Gunderson, Assistant City Attorney, St. Paul, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; Willis, JUDGE; and MINGE, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

FACTS

Relator DRJ, Inc., d/b/a Diva’s Overtime Lounge, has been under the current ownership and management since 2005. Respondent City of St. Paul issued various licenses, including an on-sale liquor license, for the bar’s operations. Numerous conditions were imposed on the licenses, including requirements for the operation of videotaping surveillance equipment, retention of videotapes, and cooperation with law enforcement authorities. In 2006, respondent revoked permission for the bar to remain open until 2 a.m. In early 2007, hearings were held before two administrative law judges on alleged violations of the license conditions and a variety of city regulations. In August 2007, the city council voted to revoke the licenses. Relator moved the city council for a stay. In a written decision denying the stay, the city council cited relator’s failure to abide by conditions previously imposed on the licenses and the large number of violations, and it found that granting a stay so that the bar could continue operations during the appeal would endanger “the health and safety of ... citizens.”

Relator moves this court for a stay, urging us to give no deference to the council’s denial. Relator emphasizes the likely financial losses resulting from closure and the risk that a vacant building may be susceptible to vandalism. Respondent argues that the city council’s denial of a stay does not constitute an abuse of discretion and it opposes the relator’s motion.

DECISION

There is no dispute that the license revocation decision by respondent constitutes a quasi-judicial decision subject to review. See Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn.1999) (describing three indicia of quasi-judicial action). Unless there is a statute or ordinance prescribing a different process for judicial review, a municipality’s quasi-judicial decisions are reviewable by way of a certiorari appeal to this court. City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (Minn.App.2000) (affirming district court’s dismissal, for lack of jurisdiction, of challenge to city’s order for condemnation and demolition of building). Because the decision being challenged in this case was made by a local governmental unit that does not have statewide jurisdiction, Minnesota Statutes chapter 606 governs the acts required to invoke appellate jurisdiction and the time limit for appeal. See Heideman v. Metro. Airports Comm’n, 555 N.W.2d 322, 323-24 (Minn.App.1996) (applying chapter 606 and distinguishing it from Minnesota Administrative Procedures Act).

No provision of chapter 606 addresses the granting of a stay pending appeal. See Minn.Stat. §§ 606.01-06 (2006). The appellate rules provide that an agency or governmental body whose decision is subject to certiorari review “may stay enforcement of the decision in accordance with Rule 108,” which governs supersedeas bonds and stays. Minn. R. Civ.App. P. 115.03, subd. 2(b). In a certiorari appeal, the “Application for a super-sedeas bond or a stay on other terms must be made in the first instance to the agency or body.” Id. But a party may seek review of the ruling on a request for a stay pending appeal, or of the terms established by the agency or governmental body, by making a motion to this court for review of that ruling. Id.

Rule 108 applies generally to all appeals and it also requires that a party seeking a stay pending appeal apply “in the first instance to the trial court.” Minn. R. Civ. App. P. 108.01, subd. 1; see Minn. R. Civ.App. P. 101.02, subd. 4 (defining “trial court” to include court or agency whose decision is being reviewed). Under rules 108.01 and 115.03, relator was required to make its motion for a stay pending appeal first to the city council, subject to review by motion in this court. Relator insists that it is not seeking “review of [respondent’s] decision” on the motion for a stay, but is moving this court “in the first instance to issue a stay.” But the only authority cited for this request is Minn. Stat. § 14.65 (2006), a provision of the administrative procedures act that (a) has no application to this appeal from a decision by a local governmental body and (b) specifically recognizes the authority of an administrative agency to grant a stay pending a certiorari appeal. Relator’s request is inconsistent with the provisions of the cited appellate rules and we reject the invitation to “consider the merits of [the] stay request anew, without deference to” the city council’s decision.

Rule 108.01 provides several examples of the type of security that is likely to protect a respondent who must delay enforcement of a favorable decision while an appeal is pending, offering guidance to trial courts in a variety of factual scenarios. Minn. R. Civ.App. P. 108.01, subds. 2-6. For instance, if an appeal is taken from a money judgment, subdivision 3 indicates that the usual condition of the supersedeas bond will be payment of the judgment (if affirmed) and all damages awarded on appeal. Id., subd. 3. In effect, an appealing party can forestall immediate collection efforts by providing a bond ensuring that the respondent will be able to collect in the future. See Barrett v. Smith, 184 Minn. 107, 110, 237 N.W. 881, 882 (1931) (holding that appellant’s posting of bond exceeding amount of money judgment provided adequate protection for respondent and required that levies and garnishments be suspended). Subdivision 4 indicates that if an appeal is taken from a judgment directing the delivery of documents or personal property, no bond may be necessary to protect the respondent, if the appellant deposits the documents or property with a custodian appointed by the trial court or agency. Minn. R. Civ.App. P. 115.03, subd. 4. When the documents or property are deposited, the respondent is at little risk that a delay will impair the respondent’s ability to enforce the decision.

Subdivision 6 reiterates that in certiorari appeals under rule 115, the “trial court may upon motion grant a stay of the order, judgment!,] or enforcement proceedings upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.” Id., subd. 6. If none of the specified subdivisions apply, enforcement may not be impaired by the passage of time, and a cost bond may be sufficient to obtain a stay. See id., subd. 7. But the trial court retains authority to establish the terms and conditions of a stay pending appeal, and it may require a supersedeas bond even if not specified in the rule, “if it determines” that the presumed security described in the examples does “not provide adequate security to the respondent.” Id., subd.; see also id., subd. 1 (requiring that trial court “order and approve” any stay pending appeal and the “amount and form” of any bond or security).

In addition to the broad authority granted in rule 108.01 to determine whether and on what terms to grant a stay pending appeal, other rules applicable to a particular case may establish a presumption for or against the granting of a stay. See, e.g., Minn. R. Civ. P. 62.02 (describing district court’s discretion to “suspend, modify, restore, or grant an injunction” and to require a bond or other security when appeal is taken from order on injunctive relief); Minn. R. Juv. Prot. P. 47.03 (establishing presumption that order will remain in effect pending appeal, but recognizing discretion of juvenile court to grant stay); Minn. R. Juv. Delinq. P. 21.03, subd. 3 (requiring stay of “further adult criminal proceedings” pending decision on appeal from certification of juvenile to stand trial as adult). While many of the scenarios described in rule 108.01 focus on how best to preserve the ability of the prevailing party to enforce a favorable decision after the appeal has been decided, other rules— most notably those governing stays in criminal cases — focus in part on the risk to others, including the public, if a stay is granted during the pendency of an appeal. See Minn. R.Crim. P. 28.02, subds. 6-7 (establishing presumption that execution of criminal sentence will not be stayed, and requiring court to consider: (a) whether defendant is likely to serve entire sentence before appeal is decided; (b) risk that defendant will not appear if appeal is unsuccessful; (c) likelihood that defendant will commit serious crime or intimidate witnesses if stay is granted; and (d) whether appeal is frivolous or taken for delay).

When local governmental units exercise their licensing authority, especially in connection with the sale of liquor, they must determine whether continued operations will be “detrimental to the public good.” Sabes v. City of Minneapolis, 265 Minn. 166, 171, 120 N.W.2d 871, 875 (1963) (footnote omitted) (describing judicial deference to discretion of city council determining whether to revoke liquor licenses). Briefing on this appeal is not complete and the merits of the revocation decision are not yet before us, but the public interest and the potential risk to the public are equally applicable to the issue of a stay pending appeal. When determining whether or not to grant a stay pending appeal, the trial court or governmental unit must balance the appealing party’s interest in preserving the status quo, so that effective relief will be available if the appeal succeeds, against the interests of the public or the prevailing party in enforcing the decision and ensuring that they remain “secure in victory” while the appeal is pending. See 3 Eric. J. Magnuson & David F. Herr, Minnesota Practice § 108.1, at 389-90 (2007) (describing rule 108.01 as striking balance between these competing interests).

The trial court or agency balancing these competing interests and determining the form and amount of security required to adequately protect the public and the prevailing party is making a discretionary decision. An appellate court reviewing a decision regarding a stay pending appeal will interfere only when there is a demonstrated abuse of discretion. State by Clark v. Robnan, Inc., 259 Minn. 88, 90, 107 N.W.2d 51, 53 (1960) (concluding there was no basis “for interference with the discretion exercised by the district court in continuing [a] temporary injunction during the pendency” of appeal); see also Miller v. City of St. Paul, 363 N.W.2d 806 (Minn.App.1985) (affirming denial of temporary injunction to stop revocation of liquor licenses), review denied (Minn. Apr. 26, 1985). But even when a deferential abuse-of-discretion standard applies, there must be adequate findings and a record for the appellate court to review. State v. Cassidy, 567 N.W.2d 707, 710 (Minn.1997) (applying general rule on need for adequate record in criminal case involving discretionary decision regarding conduct of trial in absen-tia). The findings of the trial court or agency must be sufficiently detailed to demonstrate that all relevant factors were actually considered. Stich v. Stich, 435 N.W.2d 52, 53 (Minn.1989).

In this case, the city council’s written decision reflects that it considered whether the imposition of operating conditions could adequately protect the public, in the event that a stay were granted, but it concluded that relator’s history of violating existing conditions made compliance unlikely and that continued operation of the bar posed a danger to public health and safety. Relator correctly notes that some of the past violations, including, arguably, those related to oversized temporary signs, may pose little immediate danger to public safety. But municipal restrictions on the conduct of businesses are presumed to promote the public interest, and the burden of establishing that ordinances and regulations do not promote the public health, morals, safety, convenience, or general welfare, so that the restrictions are not within the police power, is on the party attacking the validity of a regulation. City of St. Paul v. Dalsin, 245 Minn. 325, 329, 71 N.W.2d 855, 858 (1955). Relator certainly has not established that all past violations are unrelated to the public interest. Accordingly, it was appropriate for the city council to consider those violations when determining whether the imposition of additional conditions would adequately protect the public interest. We note that relator did not propose any conditions to protect the public interest and counsel’s characterization of the bar as a “nuisance-free” operation is not consistent with the limited record now before us.

The likely financial impact on relator of denying a stay is both obvious and serious. But that impact must be balanced against the public interests that would be affected if the bar were to continue its operations while the appeal is pending. See, e.g., BAL, Inc. v. City of St. Paul, 469 N.W.2d 341, 343 (Minn.App.1991) (describing impact on neighbors of “disturbing conditions” at bar and concluding that record supported determination that business endangered “safety, health, morals, comfort!,] or repose of ... members of the public”). In many cases, especially those involving sanctions from which effective relief may be unavailable months later, when the appeal is eventually decided on the merits, it is likely that the imposition of operating conditions will adequately protect the public. Ensuring that the appealing party can obtain effective relief, if it prevails on appeal, is a crucial consideration in determining whether and on what terms to grant a stay pending appeal. The revocation in this case has both immediate consequences (because the bar is closed) and long-term consequences (because revocation appears to preclude future use of the property as a bar, even by a new owner). Relator can still obtain effective relief from some of these consequences, if the appeal succeeds. In this case, and on the limited record available to us, we conclude that the city council did not abuse its discretion when it denied relator’s motion for a stay.

Motion denied.


author: DIETZEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Jimmie D. JACKSON, Appellant.
    No. A06-1330.
    Court of Appeals of Minnesota.
    Nov. 13, 2007.

      Lori Swanson, Attorney General, St. Paul, MN, Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by DIETZEN, Presiding Judge; RANDALL, Judge; and HALBROOKS, Judge.
   OPINION

DIETZEN, Judge.

Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court erred in denying his motion to suppress DNA evidence and that the evidence is not sufficient to support the conviction. Because the district court properly applied the law and that the evidence is sufficient to support the conviction, we affirm.

FACTS

On an evening in August 2000, seventeen-year-old A.C. celebrated her birthday with her cousin. Around 2:00 a.m., A.C. decided to walk home. As she was walking through Willard Park, she heard a man yell at her, “Stop, bitch.” When A.C. turned around, she saw a man with a gun running toward her. The man tried to rob her, but changed his mind and forced A.C. at gunpoint to a secluded, poorly-lit area of the park. He told her to get on her knees and perform oral sex on him. When A.C. refused the man’s various demands, he jammed the gun against her head, threatened to kill her, and forcibly raped her.

A.C. ran home, told her mother what had happened, and was taken to the hospital. At the hospital, a sexual-assault nurse examined A.C. and observed “three sites of injury in [A.C.’s] vaginal area” which is “not consistent with consensual sex,” but rather is “consistent with forced penetration.” The nurse sent the vaginal swabs to the Minnesota Bureau of Criminal Apprehension (BCA) for DNA analysis. The unknown DNA profile obtained from A.C.’s vaginal swab was entered into the BCA database, but no matches were found.

In 2003, appellant Jimmie D. Jackson was convicted of aggravated robbery and was required by Minn.Stat. § 609.117 (2002) to provide a biological specimen, that is, a blood sample, for DNA analysis. Appellant’s DNA profile information was then entered into the BCA database. In December 2004, after performing a periodic search of the database, the BCA matched appellant’s DNA to the DNA in the forensic sample from the assault on A.C. In January 2005, a complaint was filed in Hennepin County charging appellant with first-degree criminal sexual conduct. In March 2005, the police obtained another DNA sample from appellant’s saliva, which confirmed the initial database match.

Before trial, appellant moved to suppress the DNA evidence on the ground that Minn.Stat. § 609.117 was unconstitutional and, therefore, the testing and “searches” violated his constitutional protections against unreasonable searches and seizures. Following a hearing, the district court denied the motion and the matter proceeded to trial.

At trial, A.C. described her attacker as a six-foot-one black male in his late 20s, who weighed 210 pounds and had short hair, a Chicago accent, and jagged or broken yellow teeth. The state’s expert, a BCA forensic scientist who performed the DNA analysis in this case, testified that “the semen profile obtained from the vaginal swab does match Jimmie Dale Jackson’s known sample at all areas” and that statistically “[the BCA] would not expect to see [Mr. Jackson’s] DNA profile more than once among unrelated individuals in the world population.”

Appellant denied that he raped A.C. but admitted that in August 2000 he met A.C. at Cato’s bar, invited her to a party at his house, and that she and several others attended a party at appellant’s house. While he did not remember whether he had sex with A.C., he stated “it’s possible.” The defense’s expert, a professor of evolutionary biology, testified that “random match probability” — -the method used by the BCA to compare DNA profiles- — is not generally accepted in the scientific community.

The jury convicted appellant of first-degree criminal sexual conduct, and he received an executed sentence of 144 months. This appeal follows.

ISSUES

I. Does Minn.Stat. § 609.117 (2002), and the taking of a biological specimen, that is, a blood sample, the BCA database search, and the confirmatory saliva sample violate appellant’s constitutional protection against unreasonable searches and seizures?

II. Was the evidence sufficient to support appellant’s conviction of first-degree criminal sexual conduct?

ANALYSIS

I.

Appellant argues that the requirement under Minn.Stat. § 609.117 (2002) that he provide a DNA sample to law enforcement is unconstitutional under the Fourth Amendment to the United States Constitution and article I, section 10, of the Minnesota Constitution. Appellant also asserts that it is unconstitutional for the government to retain his DNA profile and “re-search” it through the BCA database. Thus, appellant contends that the district court erred in denying his motion to suppress the DNA evidence. We review the constitutionality of a statute and a warrantless search de novo. State v. Wolf, 605 N.W.2d 381, 386 (Minn.2000) (statute); State v. Rochefort, 631 N.W.2d 802, 805 (Minn.2001) (warrantless search).

Minn.Stat. § 609.117 requires, among other things, that convicted felons provide a biological specimen “for the purpose of DNA analysis before completion of the person’s term of imprisonment.” Minn. Stat. § 609.117, subd. 2. Appellant, who was convicted of aggravated robbery in 2003, was required to provide a biological specimen, that is, a blood sample, pursuant to the statute. Appellant’s DNA sample was analyzed, stored in the BCA database, and searched on a periodic basis.

A. Federal Constitution

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is undisputed that requiring a defendant to provide a blood sample for DNA analysis constitutes a Fourth Amendment search. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-18, 109 S.Ct. 1402, 1412-14, 103 L.Ed.2d 639 (1989) (concluding that the taking of a blood, urine or breath sample constitutes a search under the Fourth Amendment). The remaining question is whether the suspicionless search of a defendant to obtain a biological specimen, that is, a blood sample, is reasonable.

There is a plethora of federal cases that have examined a defendant’s Fourth Amendment rights under the DNA Analysis Backlog Elimination Act of 2000 (DNA Act), which provides that individuals who have been convicted of a “qualifying Federal offense” and who are incarcerated or on parole, probation or supervised release must provide federal law enforcement authorities with “a tissue, fluid, or other bodily sample” for purposes of extracting their DNA. 42 U.S.C. § 14135a(a)(1)-(2), (c)(1) (2006). Virtually all of the federal cases have upheld the constitutionality of the DNA Act under the Fourth Amendment under either a “special needs” rule or an examination of the totality of the circumstances. United States v. Kincade, 379 F.3d 813 (9th Cir.2004); United States v. Sczubelek, 402 F.3d 175 (3d Cir.2005); United States v. Kraklio, 451 F.3d 922 (8th Cir.2006).

Both approaches were originally applied in the context of warrantless searches. In Griffin v. Wisconsin, the United States Supreme Court held that a warrantless search conducted by a probation officer pursuant to a state regulation that required probation searches to be based on reasonable grounds withstood Fourth Amendment scrutiny. 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). The Court adopted a “special needs” rule, which states that certain government searches “present[ ] ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.” Id. at 873-74, 107 S.Ct. at 3168. It reasoned that probation officers have a “special need” to supervise probationers that justifies a departure from the normal warrant and probable cause requirements. Id. at 875, 107 S.Ct. at 3169.

In United States v. Knights, the Court considered whether a warrantless search of a probationer’s apartment supported by reasonable suspicion and authorized by a condition of his probation was reasonable “under our general Fourth Amendment approach of examining the totality of the circumstances.” 534 U.S. 112, 118, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001) (quotation omitted). The Court stated:

The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Knights’ status as a probationer subject to a search condition informs both sides of that balance. Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty. Probation is one point ... on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service. Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled. Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.

Id. at 118-19, 122 S.Ct. at 591 (quotations omitted).

Then in United States v. Sczubelek, the Third Circuit Court of Appeals considered whether the DNA Act, which required Sczubelek, a convicted felon on supervised release, to submit a biological specimen, that is, a blood sample, violated his rights under the Fourth Amendment. 402 F.3d 175, 181-82 (3d Cir.2005). Applying the totality of the circumstances analysis in Knights, the Sczubelek court found the DNA Act constitutional. Id. at 184. It reasoned that the government’s compelling interests in collecting identifying information of offenders for accurate criminal investigations outweighed the insignificant intrusion to the defendant and the defendant’s reduced expectation of privacy. Id. at 187. It reasoned that the intrusion on the individual is insignificant, the individual’s expectation of privacy is reduced, and the government’s interest is compelling. Sczubelek, 402 F.3d at 186-87. In United States v. Kraklio, the Eighth Circuit Court of Appeals adopted the reasoning in Sczubelek. 451 F.3d at 924.

A minority of federal circuit courts — the Second and Seventh Circuits — apply the “special needs” rule. See United States v. Amerson, 483 F.3d 73, 79 n. 6 (2d Cir.2007); United States v. Hook, 471 F.3d 766, 773 (7th Cir.2006). These courts generally uphold the DNA indexing statutes as constitutional under the special needs rule because “the state’s purpose in conducting DNA indexing is distinct from the ordinary ‘crime detection’ activities associated with normal law-enforcement concerns,” and thus the suspicionless search survives Fourth Amendment scrutiny. Nicholas v. Goord, 430 F.3d 652, 669 (2d Cir.2005).

Notably, Griffin and Knights involved warrantless searches, not suspicionless searches as authorized under Minn.Stat. § 609.117. Most recently, in Samson v. California, the United States Supreme Court resolved the two different approaches to suspicionless searches in favor of examining the totality of the circumstances in a suspicionless search of a parolee conducted pursuant to a California law stating that, as a condition for release, every prisoner eligible for state parole must agree to be subject to a search or seizure by a parole officer with or without a search warrant and with or without cause. — U.S. —, —, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006). The Samson Court concluded that:

[U]nder our general Fourth Amendment approach we examine the totality of the circumstances to determine whether a search is reasonable within the meaning of the Fourth Amendment. Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.

Id. at 2197 (quotations omitted). In evaluating the degree of intrusion, the Court reaffirmed its holding in Knights that “by virtue of their status alone, probationers do not enjoy the absolute liberty to which every citizen is entitled.” Id. (quotations omitted). The rights of those incarcerated are even more limited. Hudson v. Palmer, 468 U.S. 517, 524, 530, 104 S.Ct. 3194, 3199, 3202, 82 L.Ed.2d 393 (1984) (holding that prisoners have no reasonable expectation of privacy in jail cell and that “imprisonment carries with it the circumscription or loss of many significant rights”).

We conclude that the holding in Samson requires that we examine the totality of the circumstances to determine whether the biological specimen requirement in Minn.Stat. § 609.117 is unreasonable under the Fourth Amendment. Assessing the degree of intrusion on an individual’s privacy against the importance of the legitimate governmental interests, we conclude that the biological specimen requirement under Minn.Stat. § 609.117 is constitutional under the Fourth Amendment. Specifically, the degree of intrusion upon a convicted felon’s privacy under the statute is minimal and the degree to which it is needed to promote legitimate governmental interests is significant. See Kincade, 379 F.3d at 837 (“[o]nce a person is convicted [of a felony] ... his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling”) (quotation omitted); Kruger v. Erickson, 875 F.Supp. 583, 588 (D.Minn.1995) (concluding that Minnesota’s DNA indexing statute “serves the legitimate governmental interest of assisting investigation and prosecution of sex crimes” and “[t]he need to search ... outweighs the minimal intrusion which occur[s]”), aff'd, 77 F.3d 1071 (8th Cir.1996); accord Samson, 126 S.Ct. at 2197; Sczubelek, 402 F.3d at 185; Kraklio, 451 F.3d at 924.

Appellant next argues that even if Minn. Stat. § 609.117 is constitutional, the BCA’s database search, which found the “match” between appellant’s DNA profile and the unknown DNA on A.C.’s vaginal swab, should also be suppressed as a suspicion-less search. Appellant contends that comparing appellant’s DNA profile against an unknown DNA profile in the BCA database amounts to a separate search for Fourth Amendment purposes. We disagree.

Clearly, a search occurs when a blood sample is taken, and a “further invasion” occurs when that sample is submitted to “chemical analysis” to create a DNA profile. Skinner, 489 U.S. at 616, 109 S.Ct. at 1413. But accessing and searching records stored in the BCA database does not constitute a search under the Fourth Amendment. Johnson v. Quander, 440 F.3d 489, 498 (D.C.Cir.2006) (“[T]he process of matching one piece of personal information against government records does not implicate the Fourth Amendment.”). Here, the “search” was complete when appellant’s original blood sample was obtained under Minn.Stat. § 609.117 and DNA testing was performed on it.

Finally, appellant argues that because the initial DNA sample obtained pursuant to Minn.Stat. § 609.117 was an unconstitutional search and seizure, the database search and subsequent saliva DNA sample must be suppressed as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Because the initial search, that is, the blood sample obtained pursuant to Minn.Stat. § 609.117, was constitutional, appellant’s fruit of the poisonous tree argument fails. We also observe that the saliva sample was taken pursuant to a valid court order applying Minnesota Rule of Criminal Procedure 9.02, subd. 2(f), which, subject to constitutional limitations, permits the taking of saliva samples for pretrial discovery purposes.

B. Minnesota Constitution

Appellant contends that Minn. Stat. § 609.117 violates article I, section 10, of the Minnesota Constitution. Our supreme court has stated:

It is axiomatic that a state supreme court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution. Indeed, as the highest court of this state, we are independently responsible for safeguarding the rights of [our] citizens. State courts are, and should be, the first line of defense for individual liberties within the federalist system.

State v. Carter, 596 N.W.2d 654, 657 (Minn.1999) (quotations omitted). But a decision to interpret the Minnesota Constitution differently from the federal constitution should not be made “cavalierly.” Id.

Because the language of article I, section 10 of the Minnesota Constitution is identical to the Fourth Amendment we “invariably turn in the first instance” to decisions of the United States Supreme Court for guidance, subject to certain exceptions established by our supreme court. In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn.1993) (applying objective test, on the basis of whether a reasonable person would determine that he or she was free to go, to determine whether a seizure had occurred); Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183 (Minn.1994) (temporary roadblocks to investigate driving under the influence struck down on the basis that police need reasonable, articulable suspicion before making an investigative stop). In E.D.J. and Ascher our supreme court concluded that earlier decisions by the United States Supreme Court were a sharp departure from Minnesota law.

Our supreme court has not addressed the issue of whether Minn.Stat. § 609.117 is constitutional. Johnson v. State, 673 N.W.2d 144, 149 n. 7 (Minn.2004) (expressly stating that the court is not reaching the question of whether Minn.Stat. § 609.3461, renumbered as Minn.Stat. § 609.117, is constitutional). The totality of the circumstances test adopted by the Samson Court examines the reasonableness of a search by “assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other hand, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson, 126 S.Ct. at 2196. Our supreme court has indicated that the totality of the circumstances test does not represent a sharp departure from Minnesota search and seizure jurisprudence. State v. Anderson, 733 N.W.2d 128, 140 (Minn.2007). Therefore, consistent with our analysis under the Fourth Amendment of the United States Constitution, we conclude that Minn.Stat. § 609.117 is constitutional under article I, section 10 the Minnesota Constitution.

II.

Appellant argues that the evidence is insufficient to support his conviction of first-degree criminal sexual conduct. When considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume that the jury believed the state’s evidence and did not believe evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). In evaluating the reasonableness of the jury’s decision to convict, the court defers to the jury regarding the credibility of witnesses and the weight to be given to each witness’s testimony. State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990). The “assumption that the jury believed the state’s witnesses is particularly appropriate when resolution of the case depends on conflicting testimony.” State v. Pippitt, 645 N.W.2d 87, 92 (Minn.2002).

First, appellant contends AC.’s testimony was inconsistent and thus insufficient to support his conviction. Generally, minor inconsistencies in the state’s case — or in a witness’s testimony — are not sufficient to overturn a conviction. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980). Inconsistent testimony is more a sign of human fallibility in perception than testimonial falsity, especially in cases involving a traumatic or stressful event. State v. Stufflebean, 329 N.W.2d 314, 319 (Minn.1983). Inconsistencies in insignificant details are immaterial when a victim’s testimony is consistent on the whole. State v. Mosby, 450 N.W.2d 629, 634 (Minn.App.1990), review denied (Minn. Mar. 16, 1990).

Appellant highlights several inconsistencies in A.C.’s testimony. Shortly after the attack, A.C. worked with a sketch artist to create a drawing of her attacker. At that time, A.C. rated the accuracy of the sketch an eight on a scale of ten, but at trial A.C. testified that the sketch did not look like her attacker. Also, A.C. described her attacker as being six-foot-one and weighing 210 pounds, but appellant is six-foot-six and weighs 284 pounds. Finally, A.C. testified that her cousin picked her up at 10:00 p.m. on the evening of the attack, but her cousin testified she picked up A.C. at midnight.

Here, the inconsistencies in A.C.’s testimony are relatively minor, especially in light of the traumatic nature of the rape and her other consistent testimony. A.C.’s reports to the sexual-assault nurse and the investigating officer at the time of the assault corresponded to A.C.’s testimony at trial. The inconsistencies in A.C.’s testimony were presented to the jury, and the jury found her to be credible despite the discrepancies. See Bliss, 457 N.W.2d at 390 (jury determines credibility of witnesses).

Second, appellant argues that A.C.’s failure to identify appellant at trial as her attacker impacts the sufficiency of the evidence. “A conviction may stand, despite ... [eyewitness’] failure to identify the defendant, if circumstantial evidence offered is strong enough to exclude any reasonable hypothesis of innocence.” State v. Guy, 409 N.W.2d 248, 251 (Minn.App.1987), review denied (Minn. Sept. 18, 1987) (citing State v. Bergland, 290 Minn. 249, 253-54, 187 N.W.2d 622, 625 (1971)).

While A.C. did not positively identify appellant as her attacker, the jury has the right to consider the strength of the circumstantial evidence including the DNA results, A.C.’s mostly accurate description of appellant, and the location of appellant’s home near Willard Park. The jury presumably found the circumstantial evidence sufficient to convict appellant. See Webb, 440 N.W.2d at 430 (jury is in best position to evaluate circumstantial evidence, and its verdict is entitled to due deference).

Finally, appellant contends that his exculpatory testimony supports his insufficiency-of-the-evidence claim. But even where a defendant’s testimony is exculpatory, the jury is not required to credit his testimony. State v. Berry, 309 N.W.2d 777, 784 (Minn.1981); State v. Finbraaten, 363 N.W.2d 473, 475 (Minn.App.1985) (a jury is free to disbelieve a defendant’s story), review denied (Minn. Apr. 18, 1985).

Appellant denied sexually assaulting A.C. in the park with a weapon and contends that his DNA profile does not establish that he forcibly raped A.C. in the park. But the jury was free to credit A.C.’s testimony that she was raped, that she did not have consensual sex with appellant, and that the DNA provided sufficient evidence that appellant raped her.

On this record, viewed in the light most favorable to the conviction, the evidence is sufficient to uphold appellant’s conviction of first-degree criminal sexual conduct.

DECISION

Because Minn.Stat. § 609.117 (2002) is constitutional under both the United States and Minnesota Constitutions, the district court did not err in denying appellant’s motion to suppress the DNA evidence. Further, the evidence is sufficient to sustain appellant’s conviction where the alleged discrepancies were presented to the jury and the jury credited the state’s witnesses.

Affirmed.

      . Appellant contends that his conviction should be reversed under an "interests of justice standard” because there are "grave doubts as to appellant's guilt.” But in this case, where appellant is challenging the state's witnesses' testimony and credibility and the record does not create grave doubt as to appellant's guilt, the traditional sufficiency-of-the-evidence analysis is used. State v. Struss, 404 N.W.2d 811 (Minn.App.1987), review denied (Minn. June 9, 1987); State v. Robinson, 536 N.W.2d 1, 2 (Minn.1995).


author: SANDSTROM, Justice.

text:
    2007 ND 178
    STATE of North Dakota, Plaintiff and Appellee v. Rae William McAVOY, Jr., Defendant and Appellant.
    No. 20070095.
    Supreme Court of North Dakota.
    Nov. 14, 2000.

      Faye A. Jasmer, Assistant State’s Attorney, and Derick J. Roller (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, Grand Forks, N.D., for plaintiff and appel-lee.
    Darla J. Schuman, Grand Forks, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Rae W. McAvoy, Jr., appeals from a district court order revoking his probation and resentencing him for a period of ten years’ imprisonment. We affirm.

I

[¶ 2] In 1995, McAvoy was found guilty of gross sexual imposition, a class A felony. His probation was subsequently revoked in 1999, 2000, and 2002. He was released from the North Dakota Department of Corrections in February 2005 and was placed on supervised probation. Supervision of his probation was transferred to Pennsylvania under the Interstate Compact for Adult Offender Supervision. One of the conditions of his probation was “no contact with minor children or vulnerable adults, unless under appropriate supervision.” The conditions of probation provided, “failure to follow any one or more of those conditions may and probably will result in a revocation of the probation.”

[¶ 3] In January 2007, on the basis of information from Pennsylvania authorities, the State of North Dakota petitioned to revoke McAvoy’s probation. The State alleged McAvoy violated his probation by: 1) admitting to having been alone with minor children on three occasions; and 2) failing to reimburse the State’s Attorney’s office $500 for transportation costs. McA-voy reimbursed the State’s Attorney’s office in full prior to the revocation hearing.

[¶ 4] The North Dakota district court heard the matter on March 28, 2007. At the hearing, McAvoy denied the State’s allegations. During the hearing, Christin Thelen, a North Dakota Department of Corrections probation officer, testified McAvoy had not completed a sex-offender treatment program. At the hearing, McA-voy admitted not completing treatment. The State also introduced evidence of a polygraph examination that had been administered to McAvoy. The polygraph examination was given because McAvoy’s probation supervisor in Pennsylvania doubted whether McAvoy was being truthful in their meetings. The district court allowed the polygraph evidence because it was a part of the sex-offender treatment program. The results indicated McAvoy was in need of more intense treatment. Frank Horvath, McAvoy’s probation supervisor in Pennsylvania, testified McAvoy admitted he had been alone with his girlfriend’s children on three occasions. He testified McAvoy admitted to him that he had picked up his girlfriend’s children at daycare. McAvoy himself testified he picked up his girlfriend’s children at daycare. He said he walked into the daycare center by himself and picked the children up.

[¶ 5] In its order, the district court found McAvoy had violated a term of his probation by being alone with minor children on three occasions. The court revoked his probation and resentenced him to ten years in prison. He received credit for the six and one-half years he had previously served.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.RApp.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 29-28-06.

II

[¶ 7] In revocation-of-probation appeals, we first review the district court’s factual findings and then review the district court’s decision to revoke probation. State v. Wardner, 2006 ND 256, ¶ 17, 725 N.W.2d 215. When a violation is contested, the State need only prove a probation violation by a preponderance of the evidence. N.D.R.Crim.P. 32(f)(3)(B).

A

[¶ 8] First, we review the district court’s factual finding of a probation violation under the clearly erroneous standard. State v. Causer, 2004 ND 75, ¶ 31, 678 N.W.2d 552. “ ‘A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, the court is left with a definite and firm conviction that a mistake has been made.’ ” Wardner, 2006 ND 256, ¶ 19, 725 N.W.2d 215 (quoting State v. Oien, 2006 ND 138, ¶ 11, 717 N.W.2d 593).

[¶ 9] One of the conditions of McAvoy’s probation was “no contact with minor children or vulnerable adults, unless under appropriate supervision.” He was also required to successfully complete a rehabilitative or treatment program. At the revocation hearing, McAvoy admitted he had not completed his sex-offender treatment program. He also admitted to having been alone with his girlfriend’s children on three occasions. McAvoy’s own admissions provided sufficient evidence to support the district court’s findings. Therefore, the court’s findings were not clearly erroneous.

[¶ 10] McAvoy argues his contact with the children was minimal. He testified he was alone with the children for only a very short time. He would pick them up at daycare and then walk with them alone to the car, where the children’s mother or McAvoy’s father would be waiting.

[¶ 11] Interpretation of a condition of probation is a question of law, fully reviewable on appeal. Wardner, 2006 ND 256, ¶ 22, 725 N.W.2d 215. Conditions of probation are strictly construed in favor of the offender; however, the conditions are construed as mandatory because of the duty to regulate a probationer’s activities to help in his or her rehabilitation and at the same time to guard against continued criminal behavior. Id.

[¶ 12] “Contact” is defined as “ ‘[t]he coming together or touching of two objects’ or ‘[t]he state of being in communication.’ ” Id. at ¶ 25 (quoting American Heritage Dictionary 315 (2d College ed.1985)). In this case, McAvoy admitted having contact with the children, regardless of how minimal it may have been. He was alone with the children when he picked them up at daycare, and he walked alone with them from the daycare to the vehicle. The district court found McA-voy’s contact with the children was a violation of his probation. This finding was not clearly erroneous.

[¶ 13] McAvoy argues the district court erred in finding that he violated his probation by failing to complete sex-offender treatment. He argues the State did not allege that in its petition for revocation. During the hearing, however, when the State presented evidence that he had not completed treatment, he did not object.

[¶ 14] Because McAvoy did not object to the testimony regarding his failure to complete sex-offender treatment, this Court’s review is for obvious error under N.D.R.Crim.P. 52(b). The burden is upon the defendant to show the error caused the defendant to suffer a serious injustice. State v. Austin, 2007 ND 30, ¶ 19, 727 N.W.2d 790. An obvious error is one that is prejudicial or affects the outcome of a proceeding. State v. Krull, 2005 ND 63, ¶ 6, 693 N.W.2d 631.

[¶ 15] In its order for revocation, the district court found McAvoy violated his probation by having been alone with minor children on three occasions. It did not find a violation for failure to complete sex-offender treatment. Therefore, the omission of McAvoy’s failure to complete treatment from the petition for revocation was not prejudicial. The court found he had violated his probation by being alone with minor children, not by failing to complete treatment.

[¶ 16] McAvoy also argues the district court erred by allowing the results of the polygraph test. The district court admitted evidence of the polygraph test, not for the truth that McAvoy had violated his probation, but to show he may be in need of more intense treatment. A review of the record shows the court did not rely on the results of the polygraph in making its ruling. Other evidence independent of the polygraph showed McAvoy had violated his probation, specifically, McAvoy’s own admissions. The court did not err in admitting the polygraph evidence.

B

[¶ 17] Next, we decide whether the district court abused its discretion in revoking the defendant’s probation. Wardner, 2006 ND 256, ¶ 26, 725 N.W.2d 215. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misapplies or misinterprets the law. Id.

[¶ 18] McAvoy argues his probation should not have been revoked, because his contact with the children was minimal. A condition of McAvoy’s probation prohibited him from having any contact with minor children unless under appropriate supervision. The conditions of probation also specified that a failure to follow one or more of the conditions may and probably will result in a revocation of the probation. The district court found McAvoy had violated his probation by being alone with his girlfriend’s children. McAvoy knew his probation could be revoked if he violated one or more of the conditions. We conclude the court did not abuse its discretion when it revoked McAvoy’s probation.

Ill

[¶ 19] The district court’s order revoking McAvoy’s probation is affirmed.

[¶ 20] GERALD W. VANDEWALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: VANDEWALLE, Chief Justice.

text:
    2007 ND 177
    Shyla SUSAN HAWES, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee. State of North Dakota, Plaintiff and Appellee v. Shyla Susan Hawes, Defendant and Appellant.
    Nos. 20070059, 20070060.
    Supreme Court of North Dakota.
    Nov. 14, 2007.

      Alexander F. Reichert, Reichert Armstrong Law Office, Grand Forks, ND, for petitioner, defendant and appellant.
    Andrew Moraghan (argued) and Michael Pitcher (appeared), Assistant Attorneys General, Office of Attorney General, Bismarck, ND, for respondent and appellee North Dakota Department of Transportation.
    Arthur W. Stokes, State’s Attorney, Wahpeton, ND, for plaintiff and appellee State of North Dakota. Submitted on brief.
   VANDEWALLE, Chief Justice.

[¶ 1] Shyla Hawes appealed from a criminal judgment after a jury found her guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor and from a district court judgment affirming the suspension of her driving privileges by the Department of Transportation (“Department”). We conclude the district court’s jury instruction was not reversible error, the prosecutor’s closing argument was not obvious error and the Department’s decision was supported by a preponderance of the evidence. We affirm.

[¶ 2] In August 2006, an officer found Hawes on an Interstate 29 exit ramp, passed out in the driver’s seat of her vehicle with the keys in the ignition. A visibly intoxicated Hawes told the officer she was waiting for “OnStar” to bring her gas. She was arrested for being in actual physical control of a motor vehicle while under the influence of an intoxicating liquor. Hawes later claimed her car had run out of gas while a friend drove her home and she was waiting for her friend to return with gas when the officer found her. On September 21, 2006, the Department suspended Hawes’ driver’s license for ninety-one days. On February 14, 2007, Hawes was found guilty by a jury of being in actual physical control of a motor vehicle.

I. Criminal Appeal

A.

[¶ 3] Hawes argued the trial court’s jury instruction on actual physical control was reversible error. The contested jury instruction from her trial read as follows:

A vehicle is operable if it was operable or could have been made operable while the person was still under the influence of intoxicating liquor or while the person would have had an alcohol concentration of at least .08% by weight at the time of the performance of a chemical test within two hours after being in actual physical control of the vehicle. This is a question of fact for you to decide.

[¶ 4] We review jury instructions to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law. Strand v. Cass County, 2006 ND 190, ¶ 7, 721 N.W.2d 374. The district court is not required to instruct the jury in the exact language sought by a party so long as the instructions are not misleading or confusing but fairly advise the jury of the law on the essential issues of the case. Id. Jury instructions must be considered as a whole, and if when so considered they correctly advise the jury as to the law, they are sufficient, although part of the instructions, standing alone, may be insufficient or erroneous. State v. Saul, 434 N.W.2d 572, 576 (N.D.1989). When a trial court has chosen a specific instruction, a reviewing court should not be quick to second-guess its choice, if there is evidence or inferences from the evidence to support it. Dale v. Cronquist, 493 N.W.2d 667, 670 (N.D.1992). Only scant evidence may be needed to support a jury instruction. Id. “[W]here there is no evidence to support a particular theory, there should be no instruction on it; but if the evidence admits of more than one inference, an instruction is proper.” Id. (citation omitted).

[¶ 5] The essential elements of actual physical control are: (1) the defendant is in actual physical control of a motor vehicle on a highway or upon public or private areas to which the public has a right of access; and (2) the defendant was under the influence of intoxicating liquor, drugs or other substances. State v. Haverluk, 2000 ND 178, ¶ 15, 617 N.W.2d 652. See also N.D.C.C. § 39-08-01(1). Hawes argues she had no intent to drive her vehicle and was waiting for her designated driver to return. But intent to operate a motor vehicle is not an element of the actual physical control offense. City of Fargo v. Novotny, 1997 ND 73, 116, 562 N.W.2d 95. Rather, we have repeatedly recognized the purpose of the actual physical control offense is to prevent an intoxicated person from getting behind the steering wheel of a vehicle because that person may set out on an inebriated journey at any moment, threatening the public’s safety and welfare. Saul, 434 N.W.2d at 576.

[¶ 6] The primary factor in determining actual physical control is whether the defendant has the ability to manipulate the controls of the vehicle. Rist v. N.D. Dept. of Trans., 2003 ND 113, ¶ 14, 665 N.W.2d 45. “A driver has ‘actual physical control’ of his car when he has real (not hypothetical), bodily restraining or directing influence over, or domination and regulation of, its movements of machinery.” State v. Ghylin, 250 N.W.2d 252, 254 (N.D.1977) (quoting Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375, 383 (Pa.1975)). We have long construed the actual physical control statute to broadly prohibit any exercise of dominion or control over a vehicle by an intoxicated person. City of Fargo v. Theusch, 462 N.W.2d 162, 163-64 (N.D.1990) (upholding an actual physical control conviction where the defendant was found asleep in a vehicle in a parking lot with keys in his coat pocket). This Court has found a temporarily high-centered vehicle does not eliminate the possibility that it may soon be extricated and the driver may again set out on an inebriated journey. State v. Schuler, 243 N.W.2d 367, 370 (N.D.1976). See also Ghylin, 250 N.W.2d at 252 and Saul, 434 N.W.2d at 572. This same rationale is applicable here. The mere fact that Hawes’ vehicle was out of gas does not eliminate the possibility that she might obtain gas from any number of sources, such as a passing motorist or “OnStar,” allowing her to set out on an inebriated journey at any moment.

[¶ 7] The trial court adequately instructed the jury of the law under the facts of this case. The jury instruction was not confusing because it properly informed the jury that one question of fact for them to decide was whether Hawes’ vehicle was operable, i.e. whether Hawes could have obtained gas while still under the influence of intoxicating liquor. This instruction may be problematic in a case where the question of fact regarding whether a vehicle could be made operable while the defendant is still intoxicated is more remote and difficult for the jury to ascertain. Therefore this jury instruction should not be used routinely without reference to the specific facts of a case. See Cronquist, 493 N.W.2d at 670.

B.

[¶ 8] During his rebuttal closing argument, the prosecutor said, “Balderdash. Smoke and mirrors. That’s what you got. Smoke and mirrors.” “Balderdash” is defined as “nonsense.” Webster’s New World Dictionary, 106 (2d ed.1980). Hawes’ counsel did not object at trial to these comments but argued on appeal it was an obvious error affecting her substantial rights.

[¶ 9] “The control of closing arguments is largely within the discretion of the trial court, and we will not reverse on the ground that a prosecutor exceeded the scope of permissible closing argument unless a clear abuse of the trial court’s discretion is shown.” State v. Ash, 526 N.W.2d 473, 481 (N.D.1995). To establish a trial court’s abuse of discretion, a defendant must show the argument was improper and prejudicial. State v. Schimmel, 409 N.W.2d 335, 342 (N.D.1987). “To be prejudicial, absent a fundamental error, improper closing argument by the state’s attorney must have stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence.” Id.

[¶ 10] When there has been no objection to a prosecutor’s argument, we do not reverse unless it was an obvious error affecting a defendant’s substantial rights. State v. Evans, 1999 ND 70, ¶ 9, 593 N.W.2d 336. We may notice a claimed error not brought to the district court’s attention if there was an error that is plain and affects substantial rights. State v. Schmidkunz, 2006 ND 192, ¶ 6, 721 N.W.2d 387. We exercise our authority to notice obvious error cautiously and only in exceptional circumstances where the defendant has suffered serious injustice. Id. In deciding if there is obvious error, we consider the probable effect of the prosecutor’s improper comments on the jury’s ability to judge the evidence fairly. Evans, at ¶ 9. The error should be corrected where it seriously affects the fairness, integrity or public reputation of judicial proceedings. State v. Hernandez, 2005 ND 214, ¶ 15, 707 N.W.2d 449.

[¶ 11] We do not countenance the prosecutor’s comments in this case. However, no objection was made at the time of trial and Hawes’ counsel concedes he did not understand the meaning of the prosecutor’s comments until he later researched the term “balderdash.” With this in mind, we will not assume the jury knew the meaning of the term nor will we assume the comments influenced the jury’s ability to judge the evidence fairly.

II. Civil Appeal

[¶ 12] The Department’s hearing officer concluded the police officer had reasonable grounds to believe Hawes was driving or was in actual physical control of a vehicle while under the influence of intoxicating liquor. Hawes argued the conclusion that she was driving while intoxicated was not supported by a preponderance of the evidence. The Department conceded the hearing officer made no finding of fact regarding when Hawes’ vehicle ran out of gas so it could not suspend Hawes’ driving privileges due to driving while under the influence. Hawes also argued the Department’s conclusion that she was in actual physical control of her vehicle was not in accordance with the law because Hawes’ vehicle was inoperable because it had run out of gas.

[¶ 13] The Administrative Agencies Practice Act governs review of an administrative agency decision to revoke a driver’s license. Obrigewitch v. Director, N.D. Dept. of Transp., 2002 ND 177, ¶ 7, 653 N.W.2d 73. We review the agency’s findings and decisions, and not those of the district court, though the district court’s analysis is entitled to respect if its reasoning is sound. Id. We give great deference to administrative rulings, and we must affirm the agency’s decision 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.

Id. See also N.D.C.C. § 28-32-46. Normally, we engage in a three-step process when we review an appeal from an administrative agency decision. Obrigewitch, at ¶ 7. The following three steps are considered:

(1) Are the agency’s findings of fact supported by a preponderance of the evidence? (2) Are the conclusions of law sustained by the agency’s findings of fact? (3) Is the agency’s decision supported by the conclusions of law? Id. (citation omitted)

[¶ 14] In deciding whether an agency’s findings of fact are supported by a preponderance of the evidence, our review is confined to the record before the agency and to determining “whether a reasoning mind reasonably could have determined the factual conclusions were proven by the weight of the evidence.” Kraft v. N.D. State Bd. of Nursing, 2001 ND 131, ¶ 10, 631 N.W.2d 572. We defer to the agency’s ruling by not making independent findings of fact or by substituting our own judgment for the agency’s, but “the ultimate conclusion of whether the facts meet the legal standard, rising to the level of probable cause, is a question of law, fully reviewable on appeal.” Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 7, 663 N.W.2d 161.

[¶ 15] We decline to find a vehicle that has run out of gas is inoperable as a matter of law. Rather, the findings of fact must support the hearing officer’s conclusion that Hawes was in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The hearing officer made several findings of fact, including: 1) there was no dispute that Hawes was intoxicated, 2) the arresting officer found Hawes passed out in the driver’s seat with the keys in the ignition in the middle of an exit ramp of Interstate 29, 3) the vehicle’s hazard lights and headlights were on when the officer first spotted the vehicle, 4) Hawes told the officer she ran out of gas and was waiting for “OnStar” to bring gas to her, and 5) Hawes’ car was out of gas. These findings of fact support the hearing officer’s conclusion that Hawes was in actual physical control of a motor vehicle on a highway while under the influence of intoxicating liquor.

III.

[¶ 16] We conclude the district court’s jury instruction was not reversible error, the prosecutor’s closing argument was not obvious error and the Department’s decision was supported by a preponderance of the evidence. We affirm.

[¶ 17] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: SANDSTROM, Justice. CROTHERS, Justice,

text:
    2007 ND 180
    INTERCEPT CORPORATION, Plaintiff and Appellee v. CALIMA FINANCIAL, LLC, dba Cyber Cash Funding, Defendant and Edgar G. Santos-Hill, individually, Defendant and Appellant.
    No. 20060307.
    Supreme Court of North Dakota.
    Nov. 14, 2007.

      Brad A. Sinclair, Serkland Law Firm, Fargo, N.D., for plaintiff and appellee.
    Edgar G. Santos-Hill, Fort Lauderdale, FL, pro se.
   SANDSTROM, Justice.

[¶ 1] Edgar Santos-Hill appeals a district court judgment finding him personally responsible for Intercept Corporation’s $63,500 judgment against Calima Financial, LLC. We affirm, concluding the district court acted properly in piercing the corporate veil.

I

[¶ 2] Santos-Hill, a Florida resident, formed Calima Financial, LLC, in April 2004 in the state of Utah. Calima was in the business of payday lending, and Santos-Hill was the only member listed on the articles of organization. Intercept, a North Dakota corporation, is in the business of electronically transferring funds for its clients. In June 2004, Santos-Hill contacted Intercept by telephone, seeking to utilize its services. Santos-Hill, as vice president of Calima, completed an application to do business with Intercept. In its application, Calima stated the average single transaction would be $300. In July 2004, Calima and Intercept entered into a contract to have Intercept electronically transfer funds for Calima. Calima started with $25,000 in capital, and $7,000 of that was used as a security deposit with Intercept when the entities began their relationship. No additional capital was ever contributed.

[¶ 3] Under the parties’ agreement, Santos-Hill would request Intercept to transfer funds from Calima’s account to Calima’s clients, and then when payments were due from Calima’s clients, Intercept would transfer funds from Calima’s clients to Calima’s account. Calima warranted under the agreement that the funds it requested Intercept to transfer from Cali-ma’s account to Calima’s clients were funds existing in Calima’s account. The agreement also stated the funds transferred by Intercept “cannot exceed the amount agreed to between Intercept and the Company [Calima].” The agreement was to be governed by North Dakota law.

[¶ 4] From December 21, 2004, to December 24, 2004, a series of electronic fund transfers performed by Intercept were returned because of non-sufficient funds in Calima’s account. The amount of the transfers totaled $63,500, which was distributed as follows: $40,000 to Costeño Contracting, Inc., $16,000 to Santos-Hill, and $7,500 to Delys St. Hill. Santos-Hill claimed the transactions were payday loans to Calima clients.

[¶ 5] In March 2005, Intercept sued Calima and Santos-Hill individually for breach of contract, seeking a return of the $63,500. Santos-Hill answered, alleging he was not personally responsible for the debt. Intercept then moved for summary judgment. Santos-Hill moved to deny Intercept’s motion for summary judgment, and to dismiss the complaint, claiming he was an employee of Calima and thus not personally liable for the debt. The district court granted summary judgment against Calima and Santos-Hill.

[¶ 6] Santos-Hill moved to vacate the summary judgment entered against him. After a hearing on the motion, the court vacated the judgment under N.D.R.Civ.P. 60(b)(vi) as to Santos-Hill because it found there were genuine issues of material fact as to what Santos-Hill’s role was with Calima other than simply as an officer of the company. The court concluded the issue of piercing the corporate veil could not be decided as a matter of law, and Intercept would have the burden at trial of establishing the necessary elements to pierce the corporate veil.

[¶ 7] Prior to trial, Santos-Hill sought to amend his answer, asserting the district court lacked personal jurisdiction. He claimed he was unaware of the requirement of pleading affirmative defenses under North Dakota law. The court denied the motion, concluding Santos-Hill made a voluntary appearance in the action by filing an answer and other motions without raising lack of personal jurisdiction.

[¶ 8] A bench trial was held in August 2006. In its memorandum and opinion following trial, the court found Santos-Hill was not acting simply as an officer of Calima. The court found he had obtained the $63,500 for his own benefit. Therefore, the court pierced the corporate veil of Calima and concluded Santos-Hill was personally liable for the $63,500 judgment against Calima.

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

II

[¶ 10] On appeal, Santos-Hill argues the district court lacked personal jurisdiction over him individually. A district court acquires personal jurisdiction over a party under N.D.R.Civ.P. 4. Rowley v. Cleaver, 1999 ND 158, ¶ 9, 598 N.W.2d 125. Under N.D.R.Civ.P. 4(b)(4), a court may acquire personal jurisdiction over a non-resident if the party makes a voluntary general appearance and fails to assert the lack of personal jurisdiction. Id. The concept of “appearance” is broadly defined, and it includes an assortment of acts by a defendant that respond to the complaint sufficiently to give the plaintiff notice of the defendant’s intention to contest the claim. Hatch v. Hatch, 484 N.W.2d 283, 285 (N.D.1992). A lack-of-personal-jurisdiction defense is waived if it is neither made by motion nor included in a responsive pleading. N.D.R.Civ.P. 12(h)(1). A district court’s ruling regarding personal jurisdiction is a question of law, which is fully reviewable on appeal. Bolinske v. Herd, 2004 ND 217, ¶ 7, 689 N.W.2d 397.

[¶ 11] Santos-Hill individually filed an answer in response to Intercept’s complaint. He did not raise the lack-of-personal-jurisdiction defense in his answer, nor did he timely file a separate motion alleging lack of personal jurisdiction under N.D.R.Civ.P. 12(b). His answer gave Intercept sufficient notice of his intention to contest the claim; therefore, his answer constituted a voluntary appearance under N.D.R.Civ.P. 4(b)(4). Because Santos-Hill failed to properly raise the lack-of-jurisdiction defense, he waived the defense under N.D.R.Civ.P. 12(h)(1). Therefore, we conclude the district court had personal jurisdiction over Santos-Hill.

III

[¶ 12] Santos-Hill argues he was an employee of Calima, and not a member of the company, as the district court found. A district court’s finding of fact is subject to the clearly erroneous standard of review. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, this Court is left with a definite and firm conviction a mistake has been made. In re D.M., 2007 ND 62, ¶ 6, 730 N.W.2d 604.

[¶ 13] Santos-Hill formed Calima in April 2004. He produced documents showing he had transferred ownership of Calima to Cristina Munoz, a resident of Panama, shortly after Calima was formed. He also testified in a deposition that Munoz was the owner. At the time of the December 2004 transactions, however, Santos-Hill was still listed as the owner of Calima in the State of Utah, where Calima was formed. There was also evidence that Santos-Hill referred to Calima as “my company” in an August 2004 e-mail he sent to Intercept after he allegedly transferred ownership. Intercept was never informed of a transfer of ownership. The district court found Santos-Hill’s testimony and the documentary evidence showing a transfer of ownership were not credible. We conclude the district court did not err in finding Santos-Hill was a member of Calima.

IV

[¶ 14] Santos-Hill argues the district court erroneously found him personally liable for Intercept’s judgment against Calima. He argues there can be no personal liability for members of a limited liability company. Under N.D.C.C. § 10-32-29(1), “a member, governor, manager, or other agent of a limited liability company is not, merely on account of this status, personally liable for the acts, debts, liabilities, or obligations of the limited liability company.” A member or owner of a limited liability company will be personally responsible, however, if the conditions and circumstances under which the corporate veil of a corporation may be pierced under North Dakota law are present. N.D.C.C. § 10-32-29(3).

[¶ 15] The corporate veil may be pierced when the legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime. Jablonsky v. Klemm, 377 N.W.2d 560, 563 (N.D.1985). “[A]n element of injustice, inequity or fundamental unfairness must be present before a court may properly pierce the corporate veil.” Id. at 564. The burden of establishing the necessary elements for piercing the corporate veil rests on the party asserting the claim. Id. at 565. Resolving the issue is heavily fact-specific and, therefore, is within the sound discretion of the district court. Id. The court’s findings of fact are presumed to be correct, and will be reversed on appeal only if they are clearly erroneous. Habeck v. MacDonald, 520 N.W.2d 808, 813 (N.D.1994).

[¶ 16] The district court made numerous findings on the issue of piercing the corporate veil. Some of the findings included:

3. Calima Financial submitted an application to Intercept representing that the contact name and person for the corporation was Santos Hill as Vice President, the company owner was Santos Hill, and that Calima was in the business of providing payday loans in which the average single transaction would be $300.
4. As part of the application process, Santos Hill submitted to Intercept his personal financial statement stating that he had assets worth 6.9 million dollars and liabilities worth 4.2 million dollars.
5. Financial information Santos Hill submitted was false, and Santos Hill knew it was false.
6. Santos Hill submitted to Intercept Articles of Incorporation from the State of Utah....
7. Calima Financial, LLC, never had a physical presence in Utah, and this was a knowingly false representation by Santos Hill.
9. Calima Financial was in business from July of 2004 to December of 2004. During this time, Santos Hill was the only owner of Calima Financial. He was also ... the only one in charge of the day-to-day operations of Calima.... From December 21st to December 24th, Santos Hill, individually, acted with fraudulent intent to deceive Intercept in requesting Intercept to transfer $111,500 of funds from Calima’s bank account, in which Calima lacked funds to honor the transfer, and transferring the nonexistent funds to Costeño Contracting, Edgar Santo[s] Hill, and Delys St[.] Hill.
10. Of the $111,500 that Santos Hill requested in that three day period from Calima’s account, ... Costeño Contracting received $40,000, Delys St. Hill received $7,500, and Santos Hill received $16,000. The remaining $48,000 of requested transfers were not consummated because improper routing numbers, bank accounts or account names were entered by Santos Hill.
11. The payments made to Costeño Contracting and Delys St. Hill were not payday loans in the ordinary course of Calima Financial’s business.
12. Santos Hill obtained the $63,500 for his own benefit.

On the basis of its findings, the court concluded, “[allowing Santos Hill to hide behind the limited liability corporation of Calima Financial would justify his wrongful acts and protect him from his own fraudulent acts in this transaction.”

[¶ 17] The district court’s finding that Santos-Hill obtained the funds for his own benefit is supported by evidence in the record. Intercept submitted evidence showing Costeño Contracting, Inc., and Delys St. Hill were not merely clients of Calima; rather, they were personally associated with Santos-Hill. Costeño was incorporated in the State of Florida in June 2004. The president was Santos-Hill, and the vice-president was St. Hill. The directors of the corporation were Santos-Hill and St. Hill. Intercept also provided evidence showing Santos-Hill and St. Hill shared the same address. Santos-Hill testified in his deposition he purchased his house from St. Hill, and allowed her to continue using the address.

[¶ 18] Intercept produced deeds showing a series of transfers of the real estate on which the house was located. Santos-Hill deeded the property to St. Hill on March 12, 2001. St. Hill transferred the property to Costeño on March 20, 2001. Costeño deeded the property to St. Hill on November 20, 2001. St. Hill deeded the property back to Costeño on November 21, 2001. Santos-Hill signed the St. Hill to Costeño deeds as a witness. Costeño then transferred the land to Santos-Hill on December 20, 2004, one day before the series of returned transactions occurred. The deed was signed by St. Hill as vice president of Costeño.

[¶ 19] The personal financial statement submitted by Santos-Hill indicated he had assets worth $6,925,000 and a net worth of $2,699,400. In his deposition, however, he testified he did not own any of the assets. He testified the assets belonged to Cristina Munoz, the owner of Calima. Santos-Hill testified Calima did not have sufficient funds in its account when he requested the transfers in December 2004. He testified Munoz gave him permission to make the advances, and she would refund the money. The money was never refunded. As noted above, the district court did not find Santos-Hill’s testimony regarding Munoz credible. The court’s findings have support in the record; therefore, we hold it was not clearly erroneous for the court to pierce the corporate veil of Calima and hold Santos-Hill personally responsible for the $63,500 judgment against Calima.

V

[¶ 20] The district court’s judgment is affirmed.

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

CROTHERS, Justice,

specially concurring.

[¶22] I agree the district court had personal jurisdiction over the defendants and that piercing the limited liability company’s veil of limited owner liability was not clearly erroneous. I specially concur in the latter holding to emphasize that the Court’s discussion at ¶ 15 of this ease should not be read to make disregarding an entity’s separate legal existence the rule, rather than the exception. My concerns are more fully explained in Axtmann v. Chillemi, 2007 ND 179, ¶¶ 28-44.

[¶ 23] Daniel J. Crothers


author: PER CURIAM.

text:
    2007 ND 170
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Robert M. LIGHT, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of North Dakota, Petitioner v. Robert M. Light, Respondent.
    No. 20070327.
    Supreme Court of North Dakota.
    Nov. 14, 2007.
   PER CURIAM.

[¶ 1] Robert M. Light was admitted to practice law on December 27, 1990, but was placed on interim suspension on August 16, 2007, until further order of this Court, pending final disposition of the disciplinary proceedings predicated upon the complaints filed. See Disciplinary Board v. Light, 2007 ND 129, 737 N.W.2d 242. On November 7, 2007, Disciplinary Counsel filed a subsequent Application for Interim Suspension of Robert M. Light under N.D.R. Lawyer Discipl. 4.1, Criminal Conduct.

[¶ 2] The current Application for Interim Suspension indicates that Light has been convicted of a serious crime as defined by N.D.R. Lawyer Discipl. 4.1(C). Under N.D.R. Lawyer Discipl. 4.1(C), the definition of a serious crime includes any felony. On November 1, 2007, a Criminal Judgment and Commitment was entered in State v. Light, Cass Co. 06-K-04680, for one count of terrorizing, a class C felony, and one count of carrying a concealed firearm or dangerous weapon, a class A misdemeanor. A certified copy of the Criminal Judgment and Commitment was filed with the Application for Interim Suspension.

[¶ 3] Under N.D.R. Lawyer Discipl. 4.1(D), upon the filing of a certificate or other satisfactory evidence of conviction demonstrating that a lawyer has been convicted of a serious crime, the Court shall enter an order immediately suspending the lawyer pending final disposition of a disciplinary proceeding predicated upon the conviction. The Application for Interim Suspension indicates that Light’s conviction for terrorizing, a class C felony, warrants interim suspension. The Court considered the matter, and

[¶ 4] ORDERED, the suspension of Robert M. Light’s license to practice law is continued under N.D.R. Lawyer Discipl. 4.1 until further order of this Court pending disposition of a disciplinary proceeding predicated upon the conviction.

[¶ 5] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, MARY MUEHLEN MARING, CAROL RON-NING KAPSNER and DANIEL J. CROTHERS, JJ.