author:
NEUMANN, Justice.
      SANDSTROM, Justice, MARING, Justice,

text:
    2001 ND 62
    Jenese A. PETERS-RIEMERS, Plaintiff and Appellee, v. Roland C. RIEMERS, Defendant and Appellant.
    No. 20000145.
    Supreme Court of North Dakota.
    March 23, 2001.
    Rehearing Denied April 17, 2001.

      Roland C. Riemers, Buxton, ND, defendant and appellant.
    Michael A. Birrenkott and Michael L. Gjesdahl (argued) of Gjesdahl & ■ Deitz, PLLP, Fargo, ND, for plaintiff and appel-lee.
    Reid A. Brady, Assistant Attorney General, Bismarck, ND, for amicus curiae.
   NEUMANN, Justice.

[¶ 1] Roland C. Riemers appeals a domestic violence protection order restraining him from contact with Jenese A. Peters Riemers, We affirm the protection order.

I

[¶ 2] On March 6, 2000, Peters-Riem-ers applied for domestic violence protection from Riemers. In her application, Peters-Riemers attested that she and Riemers had been involved in a verbal and physical confrontation on March 4, 2000. She packed a bag and told Riemers she was taking their two-year-old son with her •to stay in a hotel. Riemers told her she could not take their son, and the parties began struggling. During the struggle, Peters-Riemers dialed 911, but Riemers held her from the telephone. They struggled until Riemers hit Peters-Riemers in the face, and she fell to the floor. Riemers went to another room, and Peters-Riem-ers picked up her bag and left the house. As she was leaving, a patrol car drove into the driveway. Peters-Riemers explained she had placed the 911 call. After showing the officers she needed medical attention, she drove herself to a hospital. Peters-Riemers’ injuries included bone fractures, bruising, and swelling around her eye.

[¶ 3] The district court granted Peters-Riemers a temporary domestic violence protection order on the day of her application. A hearing was held on March 14, 2000, to determine whether to issue a permanent protection order. During the hearing, Riemers attempted to testify about alleged previous incidents of abuse by Peters-Riemers and about his state of mind at the time of the March 4, 2000, confrontation. Riemers also attempted to cross-examine Peters-Riemers regarding the alleged incidents of previous abuse. Peters-Riemers objected to both lines of inquiry based on relevance. The district court sustained Peters-Riemers’ relevancy objections. After the hearing, the district court issued a one-year protection order against Riemers. Riemers appeals.

II

[¶ 4] Riemers first argues the district court abused its discretion and violated his due process rights and the due process rights of the parties’ son by granting Peters-Riemers’ protection order petition without allowing him to present certain testimony.

A

[¶ 5] Riemers argues the district court abused its discretion by ruling his testimony about alleged previous incidents of abuse by Peters-Riemers and about Riemers’ state of mind was irrelevant in deciding whether to grant Peters-Riemers’ petition for a domestic violence protection order under N.D.C.C. § 14-07.1-02.

[¶ 6] When asked why he feared for his personal safety at the time of the confrontation, Riemers began testifying about a previous incident involving him and Peters-Riemers. Peters Riemers objected based on relevance. The district court sustained the objection. Riemers’ attorney told the court they had offered the testimony to show Riemers’ state of mind as it pertained to self-defense. The dis trict 'court reiterated the objection was sustained.

[¶ 7] Relevant evidence is evidence that reasonably and actually tends to prove or disprove any fact in issue. N.D.R.Ev. 401; Schaefer v. Souris River Telecom., 2000 ND 187, ¶ 10, 618 N.W.2d 175. We review a district court’s admission or exclusion of evidence based on relevance grounds by applying an abuse 'of discretion standard. Schaefer, at ¶ 10. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law. Mellum v. Mellum, 2000 ND 47, ¶21, 607 N.W.2d 580.

[¶ 8] “Domestic violence” is defined in N.D.C.C. § 14-07.1-01(2):

“Domestic violence” includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members. (Emphasis added).

Because acts committed in self-defense are statutorily excluded from the definition of domestic violence, testimony about previous incidents of abuse by Peters-Riemers and about Riemers’ state of mind was clearly relevant because of its bearing on whether Riemers acted in self-defense. See Krank v. Krank, 529 N.W.2d 844, 850 n.2 (N.D.1995) (noting “[sjelf defense would include, where supported by the facts, the battered spouse syndrome”); see also Lovcik v. Ellingson, 1997 ND 201, ¶ 16, 569 N.W.2d 697 (“Although past abusive behavior is not dispositive, it is relevant in determining whether domestic violence is actual or imminent.”); Cesare v. Cesare, 154 N.J. 394, 713 A.2d 390, 395 (1998) (“Because a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and ... can consider evidence of a defendant’s prior abusive acts regardless of whether those acts have been the subject of a domestic violence adjudication.”) Accordingly, the district court misapplied the law and abused its discretion in excluding this evidence.

[¶ 9] Under Rule 103(a), N.D.R.Ev., error may not be predicated upon the erroneous exclusion of evidence unless a substantial right of the party is affected. State v. Hart, 1997 ND 188, ¶ 21, 569 N.W.2d 451. See also N.D.R.Civ.P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). In Hart, the defendant argued the trial court abused its discretion in excluding evidence supporting his claim of self-defense. Id. at ¶ 18. Hart attempted to testify about a statement allegedly made by an unavailable witness, and the trial com!; ruled the proffered testimony was hearsay. Id. at ¶ 19. Hart offered the statement to show his state of mind. Id. at ¶ 20. Hart’s self-defense evidence and evidence about his state of mind were admitted in other portions of his testimony. Id. at ¶ 21. Accordingly, we held the exclusion of Hart’s testimony did not affect Hart’s substantial rights and did not require reversal. Id. at ¶ 21. We reach the same conclusion here.

[¶ 10] Riemers was allowed to testify as to his state of mind:

Q At—during this altercation, did you—were you in fear for your personal safety at that point in time?
A Very much so.

When asked why he feared for his personal safety, the court sustained Peters-Riemers’ relevancy objection. However, at another point in his testimony, Riemers testified as to alleged previous incidents of abuse by Peters-Riemers:

A At that point she attacked me—
Q In what manner?
A Her usual manner. Starting off with tearing off my shirt, ripping it to pieces—
Q Usual manner? You mean she’s done, this in the past?
A A number of occasions. She scratched up my chest and face, she would try to kick me in the testicles and the leg or hit me any place she could. And then—
Q And this was happening this evening—that evening in question?
A Yes, it was happening that evening.
Q She attempted to kick you in the testicles?
A Yes, you see—
Q Has she done that before?
A Yes. She’s tried to rip them off at times.

Because Riemers was allowed to testify both about alleged previous incidents Of abuse by Peters-Riemers and about his state of mind, the district court’s error in excluding relevant evidence was not prejudicial and did not affect Riemers’ substantial rights. Nonprejudicial mistakes by the district court constitute harmless error and are not grounds for reversal. Huesers v. Huesers, 1998 ND 54, ¶ 11, 574 N.W.2d 880.

B

[¶ 11] Riemers argues the district court violated his and the parties’ son’s due process rights by denying him the opportunity to cross-examine Peters-Riemers about alleged previous incidents of abuse by Peters-Riemers.

[¶ 12] In Sandbeck v. Rockwell, 524 N.W.2d 846, 848-49 (N.D.1994), a majority of this Court held that the scope of a hearing often depends on whether the procedure is an action or a special proceeding, and that N.D.C.C. § 14-07.1-02(1) makes it clear that a domestic violence proceeding is not a plenary action that requires a full-blown trial. Rather, the statute creates a special summary proceeding and directs a motion hearing noticed' by order of the court. Sandbeck, 524 N.W.2d at 849.

[¶ 13] Under N.D.R.Civ.P. 43(e), for a motion “based on facts not appearing of record[,] the court may hear the matter on affidavits presented by the respective parties, but the court may direct the matter be heard wholly or partly on testimony or depositions.” For the summary proceeding of a protection order, the trial court is thus authorized under the rules to hear the evidence on affidavits or partly on affidavits or, as in Sandbeck, partly on affidavits and partly by cross-examination of each affiant. 524 N.W.2d at 850.

[¶ 14] On March 6, 2000, Peters-Riem-ers filed a petition for protective relief and an affidavit supporting her petition. The district court heard the matter on Peters Riemers’ affidavit on March 14, 2000. Riemers did not submit an opposing affidavit. At the hearing, the district court, exercising its discretion, allowed the cross-examination of Peters-Riemers as to the contents of her affidavit. Peters Riemers did not present direct testimony in addition to her affidavit testimony. During cross-examination, Riemers’ attorney asked Peters-Riemers, “Ever hit [Riemers] in the past?” Peters-Riemers objected based on relevancy. The court sustained Peters-Riemers’ relevancy objection.

[¶ 15] In the previous subsection, we concluded testimony about alleged previous incidents of abuse by Peters Riemers was relevant because of its bearing on whether Riemers acted in self-defense. However,' Peters-Riemers’ affidavit discusses only the events of the night of the confrontation, March 4, 2000, and an affair Riemers had in Honduras during the parties’ marriage. Thus, although Peters-Riemers’ testimony about alleged previous incidents of abuse by Peters-Riemers was relevant, it was beyond the scope of the affidavit. See N.D.R.Ev. 611(b) (specifying “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness”). We will not set aside a correct result merely because the trial court assigned an incorrect reason, if the result is the same under the correct law and reasoning. Mandan Educ. Ass’n v. Mandan Public School Dist. No. 1, 2000 ND 92, ¶ 8, 610 N.W.2d 64.

[¶ 16] The district court here, exercising its discretion, also allowed Riemers to testify. After Riemers testified, the court asked Riemers’ attorney, “Do you have anything further?” Riemers’ attorney replied, “I have nothing further, Your Hon- or.” Riemers did not ask the court to allow him to call Peters-Riemers as part of his own case to question her about relevant issues beyond the scope of her affidavit. Had Riemers asked to call Peters-Riemers as an adverse witness to question her about alleged previous incidents of abuse, and had his request been denied after he had already been, forbidden to pursue these matters on cross-examination, Riemers would have been denied every possible opportunity to elicit this relevant evidence from Peters-Riemers. See N.D.R.Civ.P. 43(b) (“A party may call an adverse party ... and interrogate the witness by leading questions and contradict and impeach the witness in all respects as if the witness had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party, and may be cross-examined by the adverse party only upon the subject matter of the witness’s examination in chief.”) That almost certainly would have been an abuse of discretion, but that is not what happened in this case.

[¶ 17] The district court appropriately controlled the presentation of evidence during Peters-Riemers’ case, and Riemers failed to call Peters-Riemers as part of his case. The district court did not violate Riemers and the parties’ son’s due process rights..

Ill

[¶ 18] Riemers also makes several other constitutional arguments. He argues the protection order is unconstitutionally vague; the protection order deprives him of his constitutional right to free speech; chapter 14-07.1, N.D.C.C., and sections 14-05-22(3) and 14-09-06.2(1)©, N.D.C.C., are unconstitutional; and his property was taken in violation of his due process rights.

A

[¶ 19] Riemers argues the protection order is unconstitutionally vague. The protection order provides:

[Riemers] is restrained from coming within 500 yards of [Peters-Riemers’] residence at R.R. 1, Box 43, Buxton, ND, 58218, and restraining [Riemers] from coming within 100 yards of any residence in a town, city or other locality of [Peters Riemers] during the effective period of this Order.

Riemers contends the order subjects him to arrest for unwittingly intruding within 100 yards of some unknown and unknowable residence of Peters-Riemers. Riem-ers asserts that because the order does not allow him to avoid committing a criminal act, it is unconstitutionally vague.

■[13-16] [¶ 20] A statute, or injunction, is unconstitutionally vague if it “ ‘either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” Fargo Women’s Health Org., Inc. v. Lambs of Christ, 488 N.W.2d 401, 409 (N.D.1992) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). We stated in Fargo Women’s Health, 488 N.W.2d at 409:

The purpose of the vagueness doctrine is to ensure 'that all “be informed as to what the state commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). When so informed, people have an opportunity to conform their conduct to the law, and those who enforce the law are, provided with strict guidelines for their application. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The prohibition against overly vague laws protects people from having to voluntarily curtail First Amendment activities because of a fear those activities could be characterized as illegal activities due to an unconstitutionally vague statute. Id.

[¶ 21] Under N.D.C.C. § 14-07.1-13(4), only a willful violation of a protection order results in penalty. A person engages in “willful” conduct if he or she engages in the conduct intentionally, knowingly, or recklessly. N.D.C.C. § 12.1-02-02; see also N.D.C.C. § 14-07.1-01(7) (cross-referencing definition of “willfully” in N.D.C.C. § 12.1-02-02). Clearly, the hypothetical situation Riemers presents, in which he unwittingly intrudes within 100 yards of some unknown and unknowable residence of Peters-Riemers, would not constitute willful behavior. Riemers also'asserts he could be subjected to criminal penalties for violating the order even if Peters Riemers initiates contact. Again, Riemers ignores the culpability requirement for a protection order violation. The protection order is sufficiently specific for Riemers to conform his conduct to its strictures and therefore is not unconstitutionally vague.

B

[¶ 22] Riemers argues the protection order violates his constitutional right to free speech because it restrains him from having any contact with Peters-Riemers. The restrictions placed on Riemers’ speech are authorized by N.D.C.C. § 14-07.1-02(4)(a), which provides that a protection order may restrain a party from “having contact with any other person.”

[¶ 23] In Allied Mut. Ins. Co. v. Director of N.D. Dep’t of Transp., 1999 ND 2, ¶ 6, 589 N.W.2d 201 (quoting Swenson v. Northern Crop Ins., Inc., 498 N.W.2d 174, 178 (N.D.1993)), we explained:

“It is well established that an issue not presented to the trial court will not be considered for the first time on appeal. Gange v. Clerk of Burleigh County District Court, 429 N.W.2d 429, 432 n. 3 (N.D.1988). This constraint applies with particular force to a constitutional issue. Gange, 429 N.W.2d at 432 n. 3; State v. Slapnicka, 376 N.W.2d 33, 36 (N.D.1985). We therefore decline to address [the constitutional] argument.”

[¶ 24] Riemers was served the temporary protection order that included notice of the date set for the hearing. The temporary protection order stated it was authorized by chapter 14-07.1, N.D.C.C., and notified Riemers of his opportunity to explain at the hearing why a permanent domestic violence protection order should not be issued. Riemers had the opportunity to raise his First Amendment argument. Because Riemers failed to raise his constitutional challenge to N.D.C.C. § 14-07.1-02(4)(a) to the district court, he is precluded from raising it on appeal.

C

[¶ 25] Riemers challenges the constitutionality of chapter 14-07.1, N.D.C.C., and sections 14-05-22(3) and 14-09-06.2(l)(j), N.D.C.C. Because Riem-ers failed to properly raise these constitutional challenges to the district court, he is precluded from raising them on appeal. See Allied, 1999 ND 2, ¶ 6, 589 N.W.2d 201.

D

[¶ 26] Riemers argues his property was taken in violation of his due process rights because the district court allowed Peters-Riemers to remain in the parties’ home without allowing Riemers to testify as to his sole ownership of the property. Due process generally requires a person be given notice and an opportunity to be heard before the government deprives the person of property. Wahl v. Morton Co. Soc. Serv., 1998 ND 48, ¶ 6, 574 N.W.2d 859. However, section 14-07.1-02(7) provides that “[n]o order or agreement under this section affects title to any real property in any matter.” Rather, the protection order merely temporarily excludes Riemers from the dwelling the parties share. See N.D.C.C. § 14-07.1 — 02(4)(b). Thus, Riemers has not been deprived of his property, and his due process argument fails.

IV

[¶ 27] Peters-Riemers argues she is entitled to an award of attorney fees under Rule 38, N.D.R.App.P. According to Peters-Riemers, Riemers is abusing the system by appealing the protection order because Riemers’ arguments are frivolous and have been made solely to cause her hardship. While some of Riemers’ arguments are “so devoid of merit that he should have been aware of the impossibility of his success on appeal,” we cannot say the same about all his assertions. See Mitchell v. Preusse, 358 N.W.2d 511, 514 (N.D.1984). Accordingly, we deny the request for costs and attorney fees.

V

[¶ 28] We affirm the district court’s order.

[¶ 29] GERALD W. VANDE WALLE, C.J., and JAMES H. O’KEEFE, S.J.

[¶ 30] The Honorable O’KEEFE, S.J., sitting in place of KAPSNER, J., disqualified.

SANDSTROM, Justice,

concurring and dissenting.

[¶ 31] Although I agree with much of the majority opinion, because the district court denied the respondent a fair hearing in this case, I respectfully dissent from parts 11(B) and V.

A

[¶ 32] At the hearing on the protection order petition, counsel for Riemers attempted to cross-examine Peters-Riemers regarding the allegations of her petition. The transcript demonstrates counsel apparently sought to elicit evidence about Riemers’ state of mind, prior incidents of domestic violence between the parties, and self-defense. Counsel for Peters-Riemers objected at least eight times in the first few minutes of testimony, with most of the objections sustained by the court. The following exchange then took place:

Q [MR. SIMONSON]: Ever hit Roland in the past?
MR. CHAPMAN: Objection, relevancy to this incident.
THE COURT: Sustained.
MR. SIMONSON: Well, Your Honor, looking at an issue of self defense, obviously he would have to consider—
THE COURT: Sustained, counsel.
MR. SIMONSON: I have no further questions, Your Honor.

Notably, and contrary to the majority opinion, the record clearly demonstrates counsel for Peters-Riemers objected based on “relevancy to this incident” rather than on the notion the questions were in essence beyond the scope of the direct testimony of Peters-Riemers’ affidavit. Even more importantly, the district court sustained the objection on that basis.

[¶ 33] The majority, at ¶ 8, correctly states that testimony concerning Riemers’ state of mind and past incidents of domestic violence was relevant, and that the district court abused its discretion by excluding evidence of past violence by Peters-Riemers and of Riemers’ state of mind. The district court’s abuse of discretion probably was nonprejudicial relative to Riemers’ own testimony, which, though limited, was sufficient. The denial of cross-examination of Peters-Riemers, however, was not harmless error.

B

[¶ 34] The majority, at ¶¶ 12-14, relying on Sandbeck v. Rockwell, 524 N.W.2d 846 (N.D.1994), suggests that Peters-Riemers’ affidavit, rather than the district court, determines the scope of the hearing. The majority concludes, at ¶ 15, “although Peters-Riemers’ testimony about alleged previous incidents of abuse by Peters-Riemers was relevant, it was beyond the scope of the affidavit.” Therefore, the majority concludes, at ¶ 16, that Riemers could address the issues of self-defense and his state of mind only by calling Peters-Riemers “as part of his own case to question her about relevant issues beyond the scope of her affidavit.” The transcript demonstrates that the hearing began with Riemers’ attorney cross-examining Peters-Riemers about the contents of her affidavit. Contrary to the majority’s conclusion, simply including or excluding facts from- an affidavit does not expand or limit the scope of a protection order hearing.

[¶ 35] In Sandbeck, the majority recognized the importance of cross-examination and development of details regarding state of mind and self-defense:

The trial court allowed Rockwell to cross-examine Sandbeck. Rockwell’s questions only developed more details from Sandbeck about times when Rockwell had “[g]rab[bed] my hair,” “[f]orce[d] yourself on me,” and harassed her at her workplace. The court gave Rockwell added time for argument, and then entered a twelve-month protection order that enjoined Rockwell from contacting, harassing, or threatening Sandbeck.

524 N.W.2d at 848. Contrary to the majority’s conclusion, the majority in Sandbeck limited evidence “describing Sandbeck’s sexual activities, rather than contradicting threats or mistreatment by him.” Id. at 851. Rockwell attempted to “offer audio tapes and home videos” to show Sandbeck was sexually aggressive. Id. at 848. This Court held the district court did not err in disallowing the evidence. Here, unlike the attempted exploration of the petitioner’s sexual activities in Sandbeck, Riemers attempted to contradict the issues at the heart of Peters-Riemers’ affidavit by cross-examining her to establish self-defense and his state of mind. Sandbeck does not stand for the proposition for which the majority seeks to employ it. Instead, the proper analysis is whether limitation of cross-examination was harmless error.

[¶ 36] The United States Supreme Court has recognized cross-examination is “the ‘greatest legal engine ever invented for the discovery of truth.’ ” Lilly v. Virginia, 527 U.S. 116, 124, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (citing California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)).

[¶ 37] This Court has stated: “The right -[to cross-examine] is absolute and the denial of the right as to material evidence is prejudicial error requiring a new trial.” State v. Bartkowski, 290 N.W.2d 218, 219 (N.D.1980) (citations omitted). The “complete denial of cross-examination” is “constitutional error of the first magnitude.” Id. (citing Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966)). Not only is this right guaranteed in criminal cases, it is also cognizable in civil cases. See Knoepfle v. Suko, 108 N.W.2d 456 (N.D.1961); see also Millang v. Hahn, 1998 ND 152, ¶¶ 8-9, 582 N.W.2d 665 (concluding denial of cross-examination in a remedial or punitive sanction contempt hearing is an abuse of discretion).

[¶ 38] The majority agrees testimony regarding previous incidents of abuse and Riemers’ state of mind is relevant and erroneously excluded if used to support self-defense. This is exactly the type of “material evidence” that when excluded by a limitation on the right to cross-examine, results in “prejudicial error requiring a new trial.” Bartkowski, 290 N.W.2d at 219 (citations omitted).

[¶ 39] Cross-examination is a substantial right in searching for the truth. Although the majority, at ¶ 10, concludes the exclusion of evidence through denial of cross-examination “was not prejudicial and did not affect Riemers’ substantial rights,” I disagree. This Court has held denial of the right to cross-examine “with respect to material evidence is prejudicial error which will require a new trial.” Knoepfle v. Suko, 108 N.W.2d 456, 463 (N.D.1961) (citation omitted).

[¶ 40] The lack of lucidity in the majority’s analysis is striking. A civil litigant is afforded the right to cross-examine. Id.; see also. Millang, 1998 ND 152, ¶ 8, 582 N.W.2d 665. Concluding that Riemers was not prejudiced because his own testimony arguably cured any defect, or because he could call Peters-Riemers for further examination after being denied that right on grounds of relevancy, is illogical in light of our recognition of a right to cross-examine with respect to material evidence. Under the majority’s analysis, a petitioner’s affidavit — instead of the district court — determines the scope of the hearing and the scope and timing of cross-examination. The majority is wrong. See Lilly, 527 U.S. at 124, 119 S.Ct. 1887; Bartkowski 290 N.W.2d at 219; Brookhart, 384 U.S. at 3, 86 S.Ct. 1245; Chambers v. Mississippi 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

[¶ 41] The United States Supreme Court stated in Chambers, 410 U.S. at 295, 93 S.Ct. 1038:

The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the “accuracy of the truth-determining process.” Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 135-137, 88 S.Ct. 1620, '20 L.Ed.2d 476 (1968). It is, indeed, “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. E.g., Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293. (1972). Bid its denial or significant diminution calls into question the ultimate “ ‘integrity of the fact-finding process’ ” and requires that the competing interest be closely examined. Berger v. California, 393 U.S. 314, ,315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).

(Emphasis added). Nowhere does the majority identify any “competing interest,” much less closely examine one.

[¶ 42] Contrary to the majority’s assertion, in ¶ 15, that the district court reached the right result but in the wrong manner, “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The standard enunciated in Van Arsdall is fatal to the majority’s result. In this case, if “the damaging potential of the cross-examination were fully realized,” self-defense would have been established and no protection order would have been issued.

[¶ 43] Relying on Van Arsdall, in Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), the United States Supreme Court held a denial of the right to confrontation was not harmless beyond a reasonable doubt. At trial, the defense attempted to cross-examine Matthews, the alleged victim, about allegations she was living with Russell. Id. at 229-30, 109 S.Ct. 480. The court denied the cross-examination. Addressing this issue, the United States Supreme Court stated:

Here, Matthews’ testimony was central, indeed crucial, to the prosecution’s case. Her story, which was directly contradicted by that of petitioner and Harris, was corroborated only by the largely derivative testimony of Russell, whose impartiality would also have been somewhat impugned by revelation of his relationship with Matthews.
In sum, considering the relevant Van Arsdall factors within the context of this case, we find it impossible to conclude “beyond a reasonable doubt” that the restriction on petitioner’s right to confrontation was harmless.

Id. at 233, 109 S.Ct. 480.

[¶ 44] Here, like in Olden, Peters-Riemers’ testimony was “central, indeed crucial,” to the district court’s determination of whether to issue a protection order. Id. Peters-Riemers’ testimony “was directly contradicted by that of’ Riemers, and no other witness was offered to substantiate Peters-Riemers’ allegations. Like in Olden, it is “impossible to conclude ‘beyond a reasonable doubt’ that the restriction” on Riemers’ right to cross-examine was harmless.

[¶ 45] None of the cases relied on by the majority stand for the proposition that a party present in court can be denied the right to cross-examine a witness present in court as to material evidence on relevant matters. Indeed, such a denial was the basis for the reversal of conviction in Chambers v. Mississippi, and the standard enunciated in Van Arsdall requires reversal. Further, the majority cites no case to support its proposition that the scope of the affidavit is exceeded and therefore cross-examination can be denied to a party cross-examining a petitioner about matters, such as self-defense, that lie at the heart of a protection-order affidavit.

C

[¶ 46] Domestic violence is intolerable. Huesers v. Huesers, 1997 ND 33, ¶ 20, 560 N.W.2d 219 (Sandstrom, J., dissenting). There was evidence that both parties engaged in domestic violence. A protection order may well be necessary. But the denial of Riemers’ right to cross-examine substantially limited the ability of the district court to. determine the truth. I would reverse and remand because Riemers was denied due process by the district court’s denial of his right to cross-examine with respect to a significant issue. Knoepfle, 108 N.W.2d at 463.

[¶ 47] As I wrote in Sandbeck v. Rockwell:

We are all concerned about the victims of domestic violence. But their interests can best be served by hearings that are fair to all. Respect for law and human dignity can best be fostered by a process that is fair and just.
Respondents in a domestic violence action have the right to testify and present relevant evidence. Courts can and should restrict the evidence to that which is relevant. Courts should maintain control of the courtroom so the proceedings themselves do not become abusive.

524 N.W.2d 846, 852 (N.D.1994) (Sandstrom, J., dissenting). Parties are also entitled to the reasonable opportunity to cross-examine adverse witnesses.

[¶ 48] By denying fundamental fairness, the majority does violence to our system of justice, and engenders disrespect for courts and the law.

[¶ 49] Dale V. Sandstrom

MARING, Justice,

concurring and dissenting.

[¶ 50] I agree with parts I, III, and IV of the majority opinion. I respectfully disagree with parts II and V.

[¶ 51] I agree procedurally Riemers was in error when he attempted on cross-examination of Peters-Riemers to inquire whether she had hit him • on prior occasions. Rule 611(b), N.D.R.Ev., states, “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” Clearly, Riemers’ cross-examination was beyond the scope of direct. Rule 611(b), N.D.R.Ev., however, also states, “[t]he court, in the exercise of discretion, may permit inquiry into additional matters as if on direct examination.”

[¶ 52] Riemers’ attorney asked Peters-Riemers “Ever hit Roland in the past?” Peters-Riemers’ attorney objected on relevancy, and the court sustained the objection. At this point, there was nothing to indicate to the court this evidence was relevant. Riemers’ attorney, however, then advised the trial court Riemers was raising the issue of self-defense. I agree with the majority that the trial court abused its discretion when it failed to permit Riemers’ attorney to present evidence on the relevant issue of self-defense.

[¶ 53] I disagree with the majority that Riemers should have called Peters-Riem-ers as an adverse party in his own case after the trial court sustained the objection on relevancy grounds. This evidence would not have been any more “relevant” at that point in the proceeding and, in my opinion, counsel would have exposed himself to sanctions for attempting to present evidence he was instructed was not relevant to any issue in the case. Had Peters-Riemers’ attorney made the proper objection Riemers would have had an opportunity to cure his procedural error by presenting the testimony in his ease.

[¶ 54] In exercising its discretion, however, the trial court should keep in mind an application for a domestic violence protection order is .a civil action in the nature of an application for injunctive relief. Steckler v. Steckler, 492 N.W.2d 76, 80 (N.D.1992). It is not a plenary action that requires a full-blown trial. Sandbeck v. Rockwell, 524 N.W.2d 846, 849 (N.D. 1994). The purpose of a civil protection order is to prevent domestic violence in the future. See Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L.Rev. 801, 810-11 (1993). This is not a criminal action. Although our legislature has said self-defense can be raised in this civil action, a trial judge “shall exercise reasonable control over the mode ... of interrogating witnesses ... so as to ... (3) protect witnesses from harassment or undue embarrassment.” Rule 611(a), N.D.R.Ev. Trial courts must be ever vigilant not to permit 'the revictimization of victims of domestic violence in these cases. Judges handling domestic violence actions must look carefully to determine whether there is a primary aggressor in a violent relationship, whether one party uses violence by the other party as a justification for his own violence, or whether one party’s violence is in fact self-defense. Klein & Orloff, supra at 1076.

[¶ 55] Here the trial court did not allow any examination of Peters-Riemers on the issue of her past violence with Riemers. I disagree with the majority that this was nonprejudicial. Our Court has held it is prejudicial error requiring a new trial to deny cross-examination with respect °to material evidence. Knoepfle v. Suko, 108 N.W.2d 456, 463 (N.D.1961). I, therefore, would reverse and remand for a new hearing on the application for a protection order.

[¶ 56] Mary Muehlen Maring

      . Unlike the respondent in Sandbeck v. Rockwell, 524 N.W.2d 846 (N.D.1994), Riemers was permitted to testify even though he had not previously filed an affidavit. The temporary domestic violence protection order served on Riemers staled he could appear at the hearing on March 14, 2000, to "explain why [Peters-Riemers’] request for a permanent domestic violence protection order should not be granted.”

      . Although Riemers' counsel did not make an offer of proof, one can tell from the context of the question what evidence he was seeking to introduce. Rule 103(2), N.D.R.Ev. I would, however, encourage counsel to make offers of proof in order to give the trial court an opportunity to make intelligent rulings and so as not to leave this court with such a bare bones record to review on appeal.

      . Somewhat analogous are objections to foundation that are not sufficiently specific to afford the other parly an opportunity to cure by further testimony. Collom v. Pierson, 411 N.W.2d 92, 95 (N.D. 1987). Here, too, had the proper objection been made counsel's error could have been cured.


source: Caselaw Access Project

author: GILBERTSON, Justice. SABERS, Justice

license: Public Domain

text:
    2001 SD 43
    Ned MARYOTT, Plaintiff and Appellee, v. FIRST NATIONAL BANK OF EDEN, South Dakota, Peter Mehlhaff, President of First National Bank of Eden, South Dakota, and Tim Hofer, officer/director of First National Bank of Eden, South Dakota, Defendants and Appellants.
    Nos. 21539, 21552.
    Supreme Court of South Dakota.
    Argued Feb. 13, 2001.
    Decided April 4, 2001.

      Scott N. Heidepriem, Matthew T. Tobin of Johnson, Heidepriem, Miner, Marlow and Janklow, Sioux Falls, SD, Attorneys for plaintiff and appellee.
    Reed Rasmussen of Siegel, Barnett and Schütz, Aberdeen, SD, Attorneys for defendants and appellants.
   GILBERTSON, Justice.

[¶ 1.] Ned Maryott (Maryott) sued First National Bank of Eden (Bank), its president and its branch manager under SDCL 57A-M-402 for the wrongful dishon- or of three checks. A jury awarded Mar-yott $600,000 in damages for lost income, lost value of his business and emotional distress. On appeal, we affirm in part and reverse in part.

FACTS AND PROCEDURE

[¶ 2.] Maryott has owned and operated a cattle-dealing business known as Mar-yott Livestock Sales near Britton, South Dakota, since 1973. In the cattle industry, Maryott had a reputation for honesty and integrity. Because of his respected reputation, he was considered one of the best dealers in the business. Maryott earned a commission of $.50 per hundred weight on the cattle he sold. In an average year, he would sell approximately 50,000 head of cattle, generating revenues of $175,000.

[¶ 3.] Maryott began doing business with Bank in 1977. Over the years, Mar-yott had borrowed substantial amounts of money from Bank. During that time, Mar-yott had never written a bad check, had never incurred an overdraft, and had never been late on a loan payment. On December 29,1993, Maryott and his wife signed a promissory note in favor of Bank for $176,171.60. That note served as a line of operating credit and was secured by mortgages on Maryott’s real estate and security interests on most of his personal property and inventory. Bank valued the property mortgaged by Maryott at $663,861. The note was due on December 29, 1999. On March 13, 1996, the Bank loaned Maryott an additional $100,000, due on November 1, 1996. That note was secured by a security agreement and real estate mortgage.

[¶ 4.] One of Maryott’s major customers was the Oconto Cattle Company (Ocon-to), located in Custer County, Nebraska. Oconto was owned by Warren Bierman, who Maryott had been doing business with for more than twenty years. In the normal course of business, Oconto paid Mar-yott within six to seven days after shipping the cattle. Between July 16 and August 29, 1996, Maryott shipped 887 head of cattle to Oconto. The value of those cattle was approximately $480,000. After repeated attempts to collect payment from Bierman were unsuccessful, Maryott ceased shipping cattle to Oconto. Maryott did receive two sight drafts from Oconto, drawn on its line of credit. However, these drafts were returned because Ocon-to’s lender had revoked the line of credit. Despite repeated assurances from Bier-man that he “was good for it,” Maryott never received payment on the 887 head of cattle shipped to Oconto.

[¶ 5.] Bank first became aware of the Oconto situation when the two drafts were returned in mid-September. This situation caused concern to Tim Hofer, Bank’s manager, and Peter Mehlhaff, its president. After visiting with Maryott regarding the situation on September 30, 1996, Mehlhaff and Hofer noticed that three large checks had been processed through Maryott’s checking account. These checks were payable to Tri-County Livestock Auction for $30,544.38; to Tri-County Livestock (collectively “Tri-County”) for $72,070.24; and to Schaffer Cattle Company (Schaffer) for $132,990. Each of these checks had been presented to Bank and paid in full on September 25, 1996. Mar-yott’s checking account had been debited accordingly. In light of their concerns over the Oconto situation and after examining the physical checks, Hofer and Mehl-haff concluded Maryott was involved in or the victim of “suspicious activity.” That afternoon, Bank decided to dishonor the three “suspicious” checks, even though Bank was aware such a dishonor was a potential violation of the “midnight deadline” rule found in SDCL 57A-4-302(l). Although Maryott had met with Hofer earlier in the day, he was not informed that Bank intended to dishonor his checks.

[¶ 6.] The next morning, October 1, 1996, Mehlhaff gave notice of dishonor for the three checks by filing a claim for late return with the Federal Reserve. Once the items were dishonored by the Federal Reserve, the funds were returned to Mar-yott’s checking account. Bank immediately froze the assets in Maryott’s checking account, meaning any additional checks drawn on his account would not be honored. That same day, Hofer received a call from Don Kampmeier, president of Central Livestock Company (Central). Kampmeier informed -Hofer that Central was holding a check for $68,528 from Mar-yott. Hofer informed Kampmeier that the check would not be honored, despite the fact that Maryott’s checking account contained nearly $300,000 at the time. Later that same day, Bank deemed itself insecure and used the proceeds of the dishonored checks to pay down the balance of Maryott’s loans, leaving $1 owing on each to maintain its superior priority date in the collateral.

[¶ 7.] Pursuant to the Packers and Stockyards Act, licensed livestock dealers must be bonded. Maryott was bonded in the amount of $70,000. After being informed that Bank would not honor the check it held from Maryott, Central made a claim against Maryott’s bond on October 7, 1996. It submitted a claim for $247,030, which included the $68,538 check as well as Maryott’s other outstanding debt owed to Central. On October 31, 1996, Schaffer, an intended payee on one of the dishonored checks, also submitted a claim against Maryott’s bond. Because the claims exceeded the amount of the bond, Maryott was required to forfeit his dealer’s license. Without a license, Maryott could not independently deal livestock, which effectively shut down his business.

[¶ 8.] The payees on the dishonored checks, Tri-County and Schaffer, subsequently sued Bank for the face value of the checks. Bank admitted that it had violated the midnight deadline rule and agreed to settle those claims for an aggregate amount of $168,534. The settlement amount was then applied against Maryott’s line of credit. Maryott commenced this action against Bank on December 5, 1996, alleging breach of contract and conversion, later adding a claim for wrongful dishonor. Summary judgment was granted in favor of Bank as to the conversion claim, and Maryott abandoned the breach of contract claim at trial. A jury trial was commenced on March 27, 2000 on only the wrongful dishonor claim. On March 31, 2000, the jury returned a verdict in favor of Maryott in the amount of $250,000 for lost income,' $200,000 for lost value of Maryott’s business and $150,000 for emotional distress. With prejudgment interest, the total judgment came to $713,750. After the verdict, the trial court allowed a setoff in favor of Bank for $168,534, the amount of the settlement on the dishonored checks. Bank appeals the jury verdict, raising three issues for our review:

1. Whether the wrongful dishonor of the checks proximately caused Mar-yott’s damages;
2. Whether Maryott was entitled to emotional damages;
3. Whether the damages awarded were excessive.

By notice of review, Maryott raises two additional issues:

4. Whether the issue of punitive damages should have been submitted to the jury;
5. Whether Bank is entitled to a set-off of the jury’s verdict.

ANALYSIS AND DECISION

[¶ 9.] 1. Whether the wrongful dishonor of the checks proximately caused Maryott’s damages.

[¶ 10.] Bank appeals from the denial of its motion for judgment notwithstanding the verdict. As such a motion is based on, and relates back to, a motion for directed verdict, we “review the testimony and evidence in a light most favorable to the verdict....” Martinmaas v. Engelmann, 2000 SD 85, ¶ 20, 612 N.W.2d 600, 606. Without weighing the evidence, we then decide if there is evidence which would have supported the verdict. Id. In other words, we apply the abuse of discretion standard to the trial court’s ruling. Id.

[ill.] SDCL 57A-4-402(b) provides that “[a] payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item.” Bank has not appealed the jury’s determination that it wrongfully dishonored the three checks. Whether the wrongful dishonor proximately caused Maryott’s damages is a question of fact for the jury to decide “in ‘all but the rarest of cases.’ ” Thompson v. Summers, 1997 SD 103, ¶ 18, 567 N.W.2d 387, 394 (citing Bauman v. Auch, 539 N.W.2d 320, 325 (S.D.1995)). Only when legal minds cannot differ as to the failure of proximate cause is judgment as a matter of law in favor of Bank appropriate. See Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, ¶ 54, 581 N.W.2d 527, 537. Bank claims this is one of those rarest cases. After reviewing the evidence in a light most favorable to the verdict, we cannot agree.

[¶ 12.] Bank’s argument is based upon its claim that there is no connection between the three dishonored checks and the damage caused to Maryott, namely the loss of his dealer’s license and the closing of his business after Central made a claim against his bond. Bank argues that Mar-yott had given Central the $68,543 check, knowing that he did not have sufficient funds in his account to cover the check. Therefore, according to Bank, the check would have bounced regardless of whether Bank had dishonored the checks and frozen his account. Hence, according to Bank, the wrongful dishonor did not proximately cause Maryott any damage.

[¶ 13.] Maryott points to testimony that he informed Central on the day he issued the check that he did not have enough funds to cover the check. Central personnel agreed to work with' Maryott and hold the check until Maryott had sufficient funds. When Maryott discovered Bank had dishonored his checks and frozen his checking account, he informed Central of 'the situation. The president of Central, Kampmeier, then telephoned Hofer, who informed Kampmeier that Bank would not honor the check. Because of the freeze put on Maryott’s account, he was essentially out of business at that time, as no future checks would be honored. In the words of Kampmeier, “I had no recourse. I had nothing else I could do, I had to go against his bond at that time.” When asked if he would have moved against the bond if the check had been honored, Kampmeier replied, “[m]ore than likely not because he would have— that would have meant he was still in business and can continue in business and he could have probably worked out of his indebtedness to us.”

[¶ 14.] In addition, Schaffer, one of the payees on the dishonored checks,' also moved against Maryott’s bond on October 31, 1996. At trial, the owner of Schaffer testified he would not have filed a claim against Maryott’s bond if Bank had honored that check. Bank argues that Schaf-fer’s claim on the bond is irrelevant, as the bond would have been lost because of the actions of Central. We have never endorsed such a restrictive view of proximate cause. Instead, we have stated that “[i]f the defendant’s conduct was a substantia] factor in causing the plaintiffs injury, it follows that he will not be absolved from liability merely because other causes have contributed to the result, since such causes, innumerable, are always present.” Leslie v. City of Bonesteel, 303 N.W.2d 117, 120 (S.D.1981). The wrongful dishon- or by Bank was clearly a substantial factor causing the actions taken by Schaffer. The jury was instructed that “[t]he proximate cause need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes injury.” This instruction is mandated by our decision in Leslie. See id. Bank’s actions clearly caused Schaffer to file a claim on the bond. In addition, Kampmeier testified that but for Bank’s actions, Central would not have moved against Maryott’s bond. After reviewing the evidence in a light most favorable to the verdict, there is sufficient evidence to support the jury’s verdict. Bank has failed to carry its burden of showing that no reasonable minds could differ as to the existence of proximate cause.

[¶ 15.] 2. Whether Maryott was entitled to emotional damages.

[¶ 16.] Bank argues that the evidence fails to establish the necessary elements for recovery of damages for emotional distress. Bank notes that damages for emotional distress are recoverable in South Dakota only when the elements of either intentional or negligent infliction of emotional distress are proven. See Stene v. State Farm Mut. Auto. Ins. Co., 1998 SD 95, ¶ 29, 583 N.W.2d 399, 404. According to Bank, Maryott has failed to establish the elements of either cause of action. Maryott argues that his emotional damages are recoverable under SDCL 57A-4-402, which provides that a bank is liable for “actual damages proved and may include ... other consequential damages.” Maryott argues that damages for emotional distress are part of his consequential damages, and he is therefore not required to establish the elements of intentional or negligent infliction of emotional distress. In the alternative, Maryott claims he has nevertheless met those requirements.

[¶ 17.] Our initial inquiry must be whether SDCL 57A-4-402 has created a new breed of emotional damages or whether those damages are commensurate with theories of recovery already recognized under South Dakota law. This inquiry requires statutory interpretation, which is reviewed de novo as a question of law. Steinberg v. S.D. Dept. of Military, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599. The text of SDCL 57A-4-402 provides no assistance on this issue. Nor does the official comment to the U.C.C. offer guidance as to the requirements to establish emotional damages. See Uniform Commercial Code (U.L.A.) § 4-402.

[¶ 18.] In support of his claim, Maryott directs us to Twin City Bank v. Isaacs, 283 Ark. 127, 672 S.W.2d 651 (1984). That case involved a wrongful dishonor under U.C.C. § A-A02. The plaintiffs sued their bank and the jury awarded them damages for mental anguish. On appeal, the Supreme Court of Arkansas stated, “[i]n general, the type of mental anguish suffered under § 4-402 does not need to rise to the higher standard of injury for intentional infliction of emotional distress.” Id. at 654. •

[¶ 19.] However, a number of courts have not interpreted § 4-402 so broadly. In Farmers & Merchants State Bank of Krum v. Ferguson, 617 S.W.2d 918 (Tex.1981), a bank froze its customer’s checking account, without informing the customer, causing several checks to be wrongfully dishonored. The court stated that, in accordance with Texas law, “[d]amages for mental anguish [under § 4-402] cannot be recovered absent a showing of an intentional tort, gross negligence, willful and wanton disregard, or accompanying physical injury.” Id. at 921. Likewise, the court in First Nat’l Bank of New Castle v. Acra, 462 N.E.2d 1345 (Ind.App.1984) examined a claim of emotional damages for wrongful dishonor in light of its state law requirements for intentional or negligent infliction of emotional distress. The Acra court noted that Indiana allowed recovery of damages for emotional distress only when intentionally inflicted or accompanied by a physical injury. Id. at 1350. In addition, the California courts require a plaintiff to prove either physical impact and resulting injury or intentional wrongdoing by the defendant before damages for emotional distress can be recovered under § 4-402. Lee v. Bank of America, 218 Cal.App.3d 914, 267 Cal.Rptr. 387, 390 (1990). Furthermore, the New Jersey Supreme Court applies a more stringent test, requiring proof of intentional infliction of emotional distress before emotional damages are recoverable under § 4-402. Buckley v. Trenton Sav. Fund Soc., 111 N.J. 355, 544 A.2d 857, 864 (N.J.1988).

[¶ 20.] Like those jurisdictions just discussed, South Dakota allows recovery of emotional damages only when intentionally inflicted or accompanied by actual physical injury. Stene, 1998 SD 95, ¶ 29, 583 N.W.2d at 404. The U.C.C. provides that our common-law is effective in commercial transactions unless specifically displaced by a particular Code section. SDCL 57A-1-103. Because § 4-402 does not define the consequential damages that may be recovered and does not clearly indicate an independent right of recovery of emotional damages, we must interpret that section in light of our precedent which requires a plaintiff to prove either intentional or negligent infliction of emotional distress to recover emotional damages. In Wright v. Coca Cola Bottling Co., 414 N.W.2d 608, 610 (S.D.1987), we noted that:

three principal concerns continue to foster judicial caution and doctrinal limitations on recovery for emotional distress: (1) the problem of permitting legal redress for harm that is often temporary and relatively trivial; (2) the danger that claims of mental harm will be falsified or imagined; and (3) the perceived unfairness of imposing heavy and disproportionate financial burdens upon a defendant, whose conduct was only negligent.

These concerns are equally applicable today. The best way to balance these concerns while still providing adequate relief for injured plaintiffs is to require plaintiffs to meet the standards already established in this state for the recovery of emotional damages. The simple statement that consequential damages are recoverable under § 4-402 will not convince us otherwise. Therefore, while emotional damages may be recoverable under § 4-402, they are not recoverable unless the plaintiff can establish the requirements of either intentional or negligent infliction of emotional distress.

[¶ 21.] We must now determine if the evidence introduced by Mar-yott is legally sufficient to satisfy the requirements of either of those causes of action. When reviewing the sufficiency of the evidence, we accept all evidence favorable to the verdict, and reasonable inferences therefrom, without weighing credibility or resolving conflicts. State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905. We will affirm the verdict if there is evidence, which if believed by the fact finder, could support the jury’s verdict. Id.

[¶ 22.] To recover for intentional infliction of emotional distress, Mar-yott must show:

1) an act by defendant amounting to extreme and outrageous conduct;
2) intent on the part of the defendant to cause plaintiff severe emotional distress;
3) the defendant’s conduct was the cause in-fact of plaintiffs distress;
4) the plaintiff suffered an extreme disabling emotional response to defendant’s conduct.

Stene, 1998 SD 95, ¶31, 583 N.W.2d at 404. For conduct to be deemed “outrageous,” “it must be so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. ¶ 32, 583 N.W.2d at 404. While Bank’s actions were illegal and irresponsible, they do not rise to the level of outrageous conduct. Nor was any evidence introduced that Bank acted with the requisite intent. Indeed, Maryott did not even argue in his brief that he met the requirements of intentional infliction of emotional distress. Therefore, the issue is waived. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 30, 580 N.W.2d 606, 613.

[¶ 23.] We have repeatedly held that negligent infliction of emotional distress requires “manifestation of physical symptoms.” Stene, 1998 SD 95, ¶ 30, 583 N.W.2d at 404; First Nat’l Bank in Sioux Falls v. Drier, 1998 SD 1, ¶ 12, 574 N.W.2d 597, 600; Nelson v. WEB Water Dev. Ass’n, Inc., 507 N.W.2d 691, 699 (S.D.1993). Maryott argues that his clinical depression and the symptoms thereof that resulted from Bank’s wrongful dishonor are sufficient to establish “manifestation of physical symptoms.” The physical symptoms of his depression included shame, interruption of sleep, and humiliation. We discussed a similar claim in Drier, where the trial court refused to instruct the jury that physical injury included a diagnosed severe mental illness. We affirmed the trial court’s decision, stating/‘Driers’ proposed instruction is not consistent with South Dakota law because it expands the definition of ‘physical injury’.... ” Drier, 1998 SD 1, ¶ 13, 574 N.W.2d at 600.

[¶ 24.] Likewise, Maryott’s claim that clinical depression satisfies the requirement of physical symptoms is inconsistent with our established law. Nor can shame and humiliation be classified as physical symptoms. Finally, interruption of sleep on its own cannot be considered a physical symptom that would allow for recovery of emotional damages. Because Maryott has failed to establish the elements of either intentional or negligent infliction of emotional distress, his claim for emotional damages under § 4-402 must fail as a matter of law.

[¶ 25.] 3. Whether the damages awarded were excessive.

[¶ 26.] After the jury’s verdict, Bank moved for a new trial pursuant to SDCL 15 — 6—59(a)(5), claiming the damages were awarded “under the influence of passion or prejudice.” Bank now appeals the denial of that motion. A motion for a new trial based upon an excessive damages award

is addressed to the sound discretion of the trial court and a denial of the motion will not be reversed absent an abuse of that discretion.... If the jury’s verdict can be explained with reference to the evidence rather than by juror passion, prejudice or mistake of law, the verdict should be affirmed.

Berry v. Risdall, 1998 SD 18, ¶ 9, 576 N.W.2d 1, 4. In addition, “it must be remembered that the amount of damages to be awarded % peculiarly a question for the jury.’ ” Id. ¶ 10. Finally, “[t]he trial court is best able to judge whether the damages awarded by a jury are the product of passion or prejudice.” Id.

[¶ 27.] The jury awarded Maryott $250,000 damages for lost income and $200,000 for the lost value of his business. After reviewing the record, we cannot conclude that the jury’s verdict could only have been reached through passion or prejudice. Maryott’s expert, Don Schol-ten, first estimated Maryott’s lost income based on the average number of cattle sold in the previous four years; 42,334. As a conservative figure, he used 40,000 head per year, with average weight of 700 pounds, earning $.50 per hundred weight. At that rate, Maryott could expect an annual income of $140,000 per year. At the time of trial, three and a half years had elapsed since the wrongful dishonor, so the annual revenues multiplied by 3.5 years amount to $490,000. Scholten also calculated Maryott’s damages assuming that Maryott would switch to a consignment based business. This type of business model would produce fewer sales because, according to Maryott’s testimony, not as many producers want to use that system. Scholten used Maryott’s estimate that sales would be reduced by one-half. Using the same weight and commission assumptions, Maryott’s income would be reduced to $70,000 per year, which multiplied by 3.5 years amounts to $245,000. Based on these calculations there is sufficient evidence by which the jury’s verdict can be explained.

[¶ 28.] Nevertheless, Bank contends that Scholten failed to take into account various factors including the failure to include 1995 sales, Maryott’s health problems, the fact that he spent winters in Arizona, and the possibility that Maryott could continue to work in some other capacity in the cattle industry. Each of these concerns was raised by Bank during cross-examination, and was taken into account by the jury. Scholten testified that the 1995 sales were not included in the average number of cattle sold because Maryott was working in a salaried position with Central at that time and was not actively brokering cattle through his business. Each of Bank’s claims essentially go to the weight that should be given to Scholten’s testimony. The jury determined Scholten’s estimates were credible. When reviewing a jury verdict, we are “not free to reweigh the evidence or gauge the credibility of the witnesses.” Id. ¶ 10. The trial court did not abuse its discretion in denying Bank’s motion for a new trial as to damages for lost income.

[¶ 29.] The jury also awarded Maryott $200,000 for the lost value of his business. Bank challenges this award, claiming that Maryott’s business had value only because of Marybtt’s ability to buy and sell cattle and the contacts he had developed in the industry. This argument relies heavily on Bank’s previous assertion that the loss of Maryott’s bond did not proximately cause any damages. As we have determined that claim to be without merit, this argument also fails. Bank’s actions caused the forfeiture of Maryott’s bond, which effectively put him out of business. On October 27, 1995, after inspecting the property, Bank valued Maryott’s business at $300,000. Hofer later estimated the value to be only $100,000. There was also testimony from Brett Bunger that in early 1996, he entertained an offer to buy Maryott’s business for $324,000. The jury’s verdict comports to the evidence on valuation and was not the result of passion or prejudice. The trial court did not abuse its discretion in denying Bank’s motion for new trial on lost value of Maryott’s business.

[¶ 30.] 4. Whether the issue of punitive damages should have been submitted to the jury.

[¶ 31.] Before trial, Maryott filed a motion with the trial court to submit punitive damages to the jury. The trial court denied that motion. Maryott now claims the trial court erred in refusing to submit the issue of punitive damages to the jury.

[¶ 32.] Our initial inquiry must be whether punitive damages are recoverable under SDCL 57A-4^102. That section is silent on the issue, but as discussed above, allows for recovery of consequential damages. Whether punitive damages are included under § 4-402 is therefore determined by non-U.C.C. state law. See SDCL 57A-1-103; 57A-1-106; Uniform Commercial Code, supra, § 4-402, cmt 1. A majority of states that have examined this issue allow punitive damages under § 4-402, but only when a bank’s conduct has been malicious, intentional, or fraudulent. See Gordon v. Planters & Merchants Bancshares, Inc., 326 Ark. 1046, 935 S.W.2d 544, 548 (1996); Maxan Curtain Mfg. Corp. v. Chemical Bank, 230 A.D.2d 832, 646 N.Y.S.2d 701, 702 (1996); American Bank v. Waco Ainnotive, 818 S.W.2d 163, 176 (Tex.App.1991); Lee, 267 Cal.Rptr. at 390; Fidelity Nat’l Bank v. Kneller, 194 Ga.App. 55, 390 S.E.2d 55, 60-61 (1989); Buckley, 544 A.2d at 866; Alaska Statebank v. Fairco, 674 P.2d 288, 296-97 (Alaska 1983).

[¶ 33.] In South Dakota, punitive damages are permitted in actions other than breach of contract, when a defendant acts with oppression, fraud or malice. SDCL 21-3-2. The breach of a statute, such as SDCL 57A-4-402, is an action “not arising from contract.” Groseth Int’l, Inc. v. Tenneco Inc., 440 N.W.2d 276, 279 (S.D. 1989). In light of our statutory authority, we agree that punitive damages are recoverable under § 4-402, but only when there is oppressive, fraudulent or malicious conduct by the bank. Because we have determined that punitive damages are recoverable, we must resolve whether the trial court should have submitted the issue to the jury under SDCL 21-1-4.1.

[1134.] Under SDCL 21-1-4.1, the trial court must find by “clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against.” The trial court found that Maryott had failed to satisfy that burden. Before we will reverse the trial court’s finding to the contrary, Maryott must show the trial court was clearly erroneous. Berry, 1998 SD 18, ¶ 34, 576 N.W.2d at 9. Under this standard, we will reverse only if after reviewing all the evidence, “we are left with a definite and firm conviction that a mistake has been made.” City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25.

[¶ 35.] We have previously examined the issue of punitive damages in the banking context. In Vreugdenhil v. First Bank of South Dakota, 467 N.W.2d 756 (S.D.1991), the bank’s president requested the sheriff break down the door of Vreugden-hil’s business so the bank could take possession of its collateral. These actions were a clear violation of Vreugdenhil’s constitutional due process rights and we reversed the trial court’s decision denying a claim for punitive damages. Id. at 760. The bank in Brandriet v. Noimiest Bank, 499 N.W.2d 613 (S.D.1993), fraudulently misrepresented that Brandriet’s loan had been denied, when the application had in fact never been processed. This Court affirmed the trial court’s decision allowing a claim for punitive damages. Id. at 618. In addition, punitive damages were allowed against a bank when its employee embezzled a customer’s funds. Olson v. Tri-County State Bank, 456 N.W.2d 132, 135 (S.D.1990). However, we refused to allow punitive damages where there was no evidence that the bank acted with bad faith, ill will or malice toward its customer. Yankton Prod. Credit Ass’n v. Jensen, 416 N.W.2d 860, 863 (S.D.1987).

[¶ 36.] Maryott argues Bank acted with malice when it violated the midnight deadline rule and because of “irregularities” in Maryott’s checking account. According to Maryott, these actions show that Bank acted with reckless disregard of his rights. See Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 761 (S.D. 1994). The violation of a statute, on its own, is insufficient to support punitive damages; there must also be oppression, fraud, or malice. Groseth, 440 N.W.2d at 279 (citing SDCL 21-3-2). There is no evidence that Bank acted with oppression, fraud, or malice when it violated the midnight deadline rule. On the contrary, it consulted an attorney as well as officials with the Federal Reserve before dishonoring the checks. These parties did not admonish Bank’s proposed actions as being oppressive or-fraudulent.

[¶ 37.] The “irregularities” involve an alleged discrepancy between Mar-yott’s monthly statement and Bank’s daily activity report. While Bank noted the credits and debits associated with the dishonored checks on its daily activity report, there was no corresponding credits or debits shown on Maryott’s monthly statement. According to Maryott, this creates “the logical inference” that Bank was covering itself and acting with presumed malice. However, that inference is not supported by the testimony at trial. Mehlhaff testified that when items are returned, the transaction is removed from the customer’s account. Although Bank’s internal records would record the appropriate credits and debits, those transactions would not be shown on the customer’s monthly statement, because for purposes of account records, the transaction never occurred. There is no reason to believe Bank was acting with malice simply because it did not record a credit and debit for each returned cheek on Maryott’s monthly statement.

[¶ 38.] Bank suspected Maryott was involved in or the victim of fraudulent activity when it dishonored the checks. Although later events did not support Bank’s beliefs, its conduct did not rise to the level of willful, wanton or malicious conduct. In light of our precedent, Maryott has failed to show that the trial court was clearly erroneous in not submitting the issue of punitive damages to the jury.

[¶ 39.] 5. Whether Bank is entitled to a set-off of the jury’s verdict.

[¶ 40.] After the verdict, the trial court allowed a set-off in the amount of $168,534, the total settlement amount Bank paid on the wrongfully dishonored checks. Maryott claims Bank is not entitled to that set-off. His argument is based on SDCL 57A-4-302, which provides that a bank “is accountable for the amount of’ an item when it violates the midnight deadline rule. Maryott argues .that because Bank is “accountable” for the amount of the checks, he is relieved of any obligation on the checks. Therefore, this issue turns on .whether Maryott is responsible for the value of the checks after the wrongful dishonor. This is essentially a matter of statutory interpretation, which we review de novo, giving no deference to the trial court’s conclusion. Steinberg, 2000 SD 36, ¶ 6, 607 N.W.2d at 599.

[¶ 41.] It is clear from SDCL 57A-4-302 that Bank is “accountable” for the amount of a check that is wrongfully dishonored. Therefore, Bank is liable for the face amount of the dishonored checks. Uniform Commercial Code, supra, § 4-302, cmt 3. However, this liability extends to the payee on the check, in this case, Tri-County and Schaffer. It does not extend to Maryott, who in this case is the drawer of the check. See Waco Airmo-tive, 818 S.W.2d at 175. Once Bank made final payment on the checks, in the form of the settlement with the payees, it is no longer “accountable” for the checks under § 4-302. Uniform Commercial Code, supra, § 4-302, cmt 3.

[¶ 42.] Indeed, to hold Bank ultimately liable on the dishonored checks would result in a windfall to Maryott. There is no dispute that he owed the amounts of the checks written to Schaffer and Tri-County. Likewise, there is no dispute that Maryott owed the amounts of the two promissory notes held by Bank. Bank used the funds that were credited to his account after the dishonor to pay off the two notes. The net result is that Mar-yott’s funds were used to pay debts other than the ones he intended to pay off. Therefore, Maryott' did not suffer any actual damages due to the wrongful dishonor of the checks. See Raymer v. Bay State Nat’l Bank, 384 Mass. 310, 424 N.E.2d 515, 520 (1981). Relieving Maryott of all responsibility on the checks would constitute an impermissible double recovery. Ripple v. Wold, 1996 SD 68, ¶7, 549 N.W.2d 673, 675. The trial court was correct in holding Maryott responsible for the settlement value of the checks and allowing the set-off.

CONCLUSION

[¶ 43.] We affirm the trial court’s denial of Bank’s motion for judgment notwithstanding the verdict on the issue of proximate cause. The jury’s award of emotional damages is reversed as a matter of law. We affirm the trial court’s denial of Bank’s motion for a • new trial on the issue of damages. The trial court’s refusal to submit the issue of punitive damages to the jury is affirmed. .Finally, the set-off allowed in favor of Bank was proper.

[¶ 44.] Judgment is affirmed in part, reversed in part.

[¶ 45.] MILLER, Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 46.] SABERS, Justice, concurs in part and dissents in part.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 47.] The citizens of South Dakota, represented by this Marshall County jury, found that the bank’s wrongful dishonor was the cause of Maryott’s mental anguish. The majority opinion jumps in the jury box and reverses the jury’s award of $150,000 for Maryott’s emotional damage which was clearly precipitated by the bank’s wrongful conduct. In so holding, the majority opinion sidesteps the legislative pronouncement that when a bank chooses to wrongfully dishonor a properly payable item it is liable for any “actual damages.” As the jury’s determination is supported by law and fact, it should stand and not be overturned on a whim.

[¶ 48.] SDCL 57A-4-402 provides in part:

A payor bank is liable to its customers for damages proximately caused by the wrongful dishonor of an item. Liability is limited to actual damages proved and may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.

(Emphasis added). This determination is supposed to be made by a jury on proper instructions, not by the Supreme Court.

[¶ 49.] The instructions to this jury properly stated that the Bank was liable for the foreseeable consequences proximately caused by its conduct. The jury was instructed that emotional distress “means mental suffering, mental distress or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, horror, grief, shame, anxiety, humiliation, embarrassment, mortification, anger, worry and stress, as well as physical pain.” Additionally, “the measure of damages is the amount which will compensate the party aggrieved for all detriment proximately caused thereby.” The jury properly found that Maryott suffered emotional damages as a result of the Bank’s wrongful conduct.

[¶ 50.] First National Bank of Eden and the majority opinion urge the view that emotional damages are never available unless the torts of negligent infliction of emotional distress or intentional infliction of emotional distress are independently asserted. Though this view is not without support in other forums, I concur with the commentators and courts that maintain that recovery for “actual damages proved” encompasses the mental suffering caused by a wrongful dishonor. The majority opinion’s requirement for an independent tort theory of emotional distress to safeguard against baseless claims is an outdated approach supported only by jury distrust. I submit the juries of this state are capable of discerning when actual damages include mental anguish, as they did here.

[¶ 51.] In Twin City Bank v. Isaacs, 283 Ark. 127, 672 S.W.2d 651 (1984), the Supreme Court of Arkansas recognized that “the type of mental anguish suffered under § 4-402 does not need to rise to the higher standard of injury for intentional infliction of emotional distress.” Id. at 654. It further compared these intangible injuries to those types of damages recognized in defamation actions. Id. In addressing this issue, we are faced with the economic reality that “embarrassment and humiliation” suffered from the bank’s wrongful acts are very real, though sometimes intangible harms. See id. The damage to Maryott’s reputation and the ensuing effect on his credit, a lifeline in his type of business, created very real and incredible damage. The jury recognized it based on proper instructions and so should we.

[¶ 52.] Leading commentators on the UCC have addressed the issue. “Might one argue that ‘actual damages’ excludes recovery for mental distress? We think not.” White & Summers, Handbook of the Law Under the Uniform Commercial Code § 17-4 p. 675 (2d Ed 1980). Explaining further, White & Summers note: “It is inconsistent to allow recovery for embarrassment and mental distress deriving from arrest and prosecution and to deny similar recovery in other cases. Moreover, cases under the predecessor to 4-402, the American Banking Association Statute, held that ‘actual damages’ includes damages for mental distress.” Id.

[¶ 53.] This rationale; coupled with the evidence adduced by Maryott and the jury’s findings on proper instructions, demonstrate that the award was proper. Inability on the part of some members of this appellate court to appreciate or recognize these damages is no reason to vacate them. Therefore, I respectfully dissent.

      . There was evidence that Bierman was engaged in a check-kiting scheme unrelated to his transactions with Maryott. Maryott v. Oconto Cattle Co., 259 Neb. 41, 607 N.W.2d 820, 824 (2000). Oconto eventually filed for bankruptcy protection after Farm Credit Services cancelled its line of credit. Maryott then brought a replevin action against Oconto in Nebraska district court to recover the cattle. Farm Credit held a perfected security interest in all of Oconto's present and after acquired inventory. Maryolt's interest as an unpaid cash seller of goods already delivered to the buyer was determined to be unperfect-ed because he failed to comply with the U.C.C.’s purchase-money provisions. Id. at 829. Therefore, Farm Credit’s interest in the cattle was superior to Maryott.’s. Id. As Ocon-to's assets were insufficient to satisfy Farm Credit’s claims, Maryott was unable to recover any cattle or receive payment thereon.

      .Hofer and Mehlhaff reached this conclusion because the two checks to Tri-County Livestock were.endorsed by two different parties, one check was written in pencil, and one check was dated September 19, 1997, rather than September 19, 1996, the latter being the correct date. None of these suspicious markings were noticed by Bank officials until the re-examination on September 30, 1996, five days after they had been paid. Bank was also "suspicious” because Maryott was not keeping them up to date on the Oconto situation and in the words of Hofer, "we just did not know what was going on out there.” Bank was unable to confirm that any "suspicious activity” actually occurred. Nor did it undertake any independent investigation into the Oconto situation to verify its suspicions before dishonoring the checks.

      . This amount included the amounts re-credited to Maryolt's account after the three checks had been dishonored.

      . Kampmeier testified that Central would not have submitted a claim on Maryott’s bond if the $68,538 check had been honored. It would have preferred to work with Maryott to pay off the debt he owed.

      . The Schaffer check was paid in full with interest, one of the Tri-County checks was paid in full, the other was settled for $5,000 because Tri-County had arguably failed to present its claim on that check within the statutory time limit.

      . Maryott has not alerted us to any case law that would accept interruption of sleep as a physical symptom allowing recovery for negligent infliction of emotional distress. Furthermore, after a review of the record, we were unable to locate any testimony as to the interruption of Maryott’s sleep. The only similar testimony came from Dr. Donna Small who testified from her medical notes tbal Mar-yott's wife reported Maryott slept a lot while he was depressed.

      . Bank also argues the damages for emotional distress were a result of passion, prejudice or mistake of law. Because of our decision on Issue 2, we need not reach this claim.

      . SDCL 57A-4-302 provides in relevant part: (a) If an item is presented to and received by a payor bank, the bank is accountable for the amount of:
      (1) A demand item, other than a documentary draft, whether properly payable or not, if the bank, in any case in which it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, whether or not it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline ....


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. James Clay TIPPETT, Appellant.
    No. 99-0151.
    Supreme Court of Iowa.
    March 21, 2001.
    Linda Del Gallo, State Appellate Defender, John P. Messina, Assistant State Appellate Defender, and Donald D. Stanley, Jr., Student Legal Intern, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, J. Patrick White, County Attorney, and Anne M. Lahey, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, James Clay Tippett, who was convicted of failure to register as a sex offender in violation of Iowa Code section 692A.7(1) (1997), challenges his conviction on the basis that it was not supported by substantial evidence when the record is considered as a whole. After reviewing the record and considering the arguments presented, we agree with defendant’s contention and reverse the judgment of the district court.

In 1991 defendant was convicted in Illinois of aggravated sexual abuse involving a minor and sentenced to prison. He was released in 1993. In 1997, while still under parole supervision by Illinois authorities, he attended the University of Iowa in Iowa City. Sometime in 1998 he was brought to the attention of Iowa authorities when a mother complained that defendant was frequenting an area near her home where her young son played and was interacting with her son and other neighborhood children. After local police asked defendant for identification, a criminal history check revealed his Illinois conviction. The State contends that, as a result of defendant’s moving from Illinois to Iowa, he was required to register as a sex offender in Johnson County no later than September 4, 1997.

There are two issues for our decision as a result of the argument defendant presents. These are: (1) must a defendant know of the duty to register as a sex offender in order to be convicted of failure to register; and (2) if the first inquiry is answered in the affirmative, was there sufficient evidence presented at defendant’s trial to show that he was aware of a duty to register.

I. Does Guilt Require Knowledge of a Duty to Register?

The statute under which defendant was convicted provides as follows:

A willful failure to register as required under this chapter is an aggravated misdemeanor for a first offense and a class D felony for a second or subsequent offense. However, a person who willfully fails to register as required under this chapter and who commits a criminal offense against a minor, sexual exploitation, or a sexually violent offense is guilty of a class C felony. Any fine imposed for a second or subsequent offense shall not be suspended. The court shall not defer judgment or sentence for any violation of the registration requirements of this chapter. The willful failure of a person who is on probation, parole, or work release, or any other form of release to register as required under this chapter shall result in the automatic revocation of the person’s probation, parole, or work release.

Iowa Code § 692A.7(1) (1997). Defendant argues that a “willful failure to register” as required by the statute may only occur if the alleged perpetrator is aware that there is a legal duty to register. In response the State urges that our decisions have not generally interpreted the word “willfully,” when used in a criminal statute, as requiring knowledge by accused persons that their conduct was against the law.

Although Iowa Code section 701.6 sets forth a presumption that all persons know the law, that presumption does not operate to aid the State’s case in situations in which the legislature has made knowledge of criminality an element of the crime. State v. Clark, 346 N.W.2d 510, 512 (Iowa 1984). In this regard, our law is consistent with federal criminal law, which, though generally adhering to “the venerable principle that ignorance of the law generally is no defense to a criminal charge,” recognizes that “[i]n particular contexts, however, Congress may decree otherwise.” Ratzlaf v. United States, 510 U.S. 135, 149, 114 S.Ct. 655, 663, 126 L.Ed.2d 615, 627 (1994).

In Ratzlaf the Supreme Court concluded that with respect to the crime of “willfully violating” the statutory provision prohibiting the structuring of bank deposits, “the Government must prove that the defendant acted with knowledge that his conduct was unlawful.” Id. at 137, 114 S.Ct. at 657, 126 L.Ed.2d at 620. The Court concluded that, unless the word “willful” was given that meaning, it would serve no consequence in the meaning of the statute. Id. at 140-41, 114 S.Ct. at 659, 126 L.Ed.2d at 622 (“Judges should hesitate so to treat statutory terms in any setting, and resistance should be heightened when the words describe an element of a criminal offense.”).

This court relied in part on Ratzlaf in holding that, in order to establish willful violation of our statutes proscribing the making of a campaign contribution in the name of another, the State is required to show that the accused persons acted with knowledge that their conduct was unlawful. State v. Azneer, 526 N.W.2d 298, 300 (Iowa 1995). We deem knowledge of criminality to be particularly appropriate as an element of a crime in cases in which the criminal prosecution is based on the failure of the accused to perform some act that is required only as. a result of a statutory mandate. This has been our approach in cases involving the failure to file income tax returns that are required by law. See State v. Osborn, 368 N.W.2d 68, 70 (Iowa 1985).

In Osborn we described the words “willfully failing” as denoting a voluntary and intentional violation of a known legal duty. Id. We stated that this interpretation gave that term “its ordinary meaning.”' We believe that characterization is accurate. A dictionary definition of “willful” fixes the meaning of that word as “said or done deliberately or intentionally.” Webster’s Twentieth Century Dictionary 2093 (unabr. ed.1979). There are an inconceivable number of actions that a person might take on any given day that are not taken. As to only some of these is any conscious decision made. In those situations in which a conscious decision not to perform an act is lacking, this does not satisfy the dictionary definition of “willful” requiring that an act or failure to act be deliberate or intentional. Within the context of the present controversy, it is not a natural act, even for persons convicted of crimes designated as sexually predatory, to voluntarily register one’s name and address with authorities. Consequently, if a person is not aware of a legal duty to perform such registration, there is no natural process that prompts the mind to consider the choice of whether or not to register. We hold that proof of the offense of willful failure to register in violation of section 692A.7(1) requires the State to show a voluntary and intentional violation of a known legal duty. That showing requires proof that the accused knew that registration was required by law.

II. Did the State’s Evidence Show Defendant Was Aware of the Legal Duty to Register with Iowa Authorities?

The trial information in the present case charged defendant with failure to register as a sex offender in Johnson County, Iowa, and thus,we must consider defendant’s argument within the context of his legal duty to register there. Defendant testified that no one in the Illinois court system or correction system had advised him of a legal duty to register as a sex offender in another state should he establish residence there and otherwise denied knowledge of such duty. The State contends that we may infer that the contrary is true because, under Illinois law, corrections officials were required to so advise defendant when he was released from prison in that state. Our examination of the statutory law on which the State relies does not expressly support that claim.

When defendant was released from prison in Illinois in December of 1993, the applicable Illinois sex-offender-registration statute provided in relevant part:

Any child sex offender as defined by this Article, who is discharged or paroled from a prison, hospital or other institution or facility where he was confined because of a conviction of one of the offenses defined in subsection (B) of Section 2 of this Article shall prior to discharge, parole or release, be informed of his duty to register under this Article, by the facility in which he was confined.
The facility shall require the person to read and sign such form as may be required by the Department of State Police stating that the duty to register and the procedure for registration has been explained to him. The facility shall further advise the person in writing that the failure to 'register or other violation of this Article shall result in revocation of parole, mandatory supervised release or conditional release. The facility shall obtain the address where the person expects to reside upon his or her discharge, parole or release and shall report the address to the Department of State Police ... which shall notify the law enforcement agency having jurisdiction where the person expects to reside upon his or her discharge, parole or release.

730 Ill. Comp. Stat. § 154/4 (1986). Noticeably absent from that statute is any reference to advising the offender of a duty to register in another state upon moving there. This omission was cured by an amendment to the statute effective January 1,1996, which provided:

The facility or institution shall also inform any person who must register that if he or she establishes a residence outside of the State of Illinois, is employed outside of the State of Illinois, or attends school outside the State of Illinois, he or she must register in the new state within ten days after establishing the residence if that state has a registration requirement.

Ill. Pub. Act 89-8 art. 20, § 20-20 (effective January 1, 1996). It appears that, at the time defendant was released from prison in 1993, Illinois correctional officials were not expressly tasked to advise him concerning the duty to register in another state to which he might move.

Irrespective of the requirements of Illinois law, the State’s argument based on the probability that defendant would have been advised by Illinois correction authorities of a duty to register in a new state of residence is based on an unsupported presumption. If such advice had been given to defendant, there should have been a source of evidence for the State to produce at trial. The failure to produce such evidence does as much or more to suggest that defendant was not advised of a duty to register in another state than any presumption the State might rely upon does to suggest that he was so advised.

The State’s only other contention concerning defendant’s awareness of a legal duty to register is a reliance on the fact that he has moved from place to place since his discharge from prison. The State suggests that this was an effort to avoid registration. The State cannot circumstantially prove the existence of a fact by relying on a circumstance that is itself dependent upon the fact’s existence. In order to tie defendant’s nomadic tendencies to an attempt to avoid registration, the State would have to independently establish that he knew of the registration requirement. Standing alone, defendant’s frequent moves from place to place are not indicative of that knowledge. When the record is viewed as la whole, the State’s evidence is insufficient to establish that defendant was aware of a duty to register. The verdict should have been directed in his favor.

We have considered all issues presented and conclude that the judgment of the district court must be reversed. The case is returned to that court for entry of judgment of acquittal.

REVERSED.

      . The trial information and the district court’s written judgment entry both identify Iowa Code sections 692A.3(3) and 692A.2(1) as the statutes under which defendant was charged and sentenced. Although these statutes establish the duty to register, it is section 692A.7(1) that establishes a crime for failure to register. Both Iowa Rule of Criminal Procedure 22(3)(d) and Iowa Code section 901.6 require inclusion in the judgment entry of the statute under which defendant is sentenced. Errors in the statutory designation do not alter the legal effect of the judgment, however, if the intent is clear and no prejudice exists. State v. Victor, 310 N.W.2d 201, 205 (Iowa 1981). We are convinced that the statutes that were identified in the trial information and judgment entry adequately identified the conduct that was deemed to be criminal. Moreover, defendant argues the statutory interpretation issue raised on this appeal in the context of the language contained in section 692A.7(1) thus confirming his awareness of the statute on which his conviction was based.


author: BY THE COURT:

text:
    Mary BLATZ, et al., Respondents, v. ALLINA HEALTH SYSTEM, d/b/a HealthSpan Transportation Services, Appellant.
    No. C9-00-826.
    Supreme Court of Minnesota.
    April 4, 2001.
   ORDER

BY THE COURT:

There is now pending before this court a petition for review of the decision of the Court of Appeals in the above-entitled case. In order to avoid any possible perception of bias, the undersigned members of this court have exercised their right of recusal effective on the filing of this order and will not participate in the consideration or determination of the petition for review or, if review is granted, the appeal on the merits of this case. There being no members of this court who have not re-cused, it is necessary to appoint a neutral and disinterested panel of acting members to constitute the court for consideration and determination of this case.

The court is authorized to assign retired or active members of the judiciary temporarily to hear and consider a case in place of each disqualified justice under Minn. Const. art. VI, §§ 2 and 10, and Minn. Stat. § 2.724, subds. 2, 3 (2000), and has done so when necessary in the past. Page v. Carlson, No. CX-92-1291 (Minn. 1992) (order); In re Complaint Concerning the Honorable John J. Todd, No. C9-83-1744 (Minn. Dec. 29, 1983) (order).

IT IS HEREBY ORDERED that the petition for review and, if review is granted, the appeal on the merits of the above-entitled case shall be considered and determined by a panel of seven acting members of this court, appointed in the following manner:

1. Retired Chief Justice Douglas K. Amdahl be, and hereby is, assigned to sit as the Acting Chief Justice of the Supreme Court of the State of Minnesota for the purposes of carrying out the terms of this order and considering and determining any and all issues presented to the court in the above-entitled case.

2. Pursuant to the authority under Minn. Const. art. VI, § 10, and Minn.Stat. §§ 2.724, subd. 3, and 480.01, subd. 1 (2000), the Acting Chief Justice shall first assign acting associate justices from among retired members of this court who are eligible and available to serve.

3. If a full court complement of seven acting members is not constituted by the assignment of retired justices, the Acting Chief Justice and acting associate justices so assigned shall, under Minn. Const. art. VI, § 2, and Minn.Stat. § 2.724, subd. 2, assign active judges of the district court to fill the complement of the court.

4. All acting members of the court so assigned shall be provided with necessary staff and resources, shall be compensated in accordance with the provisions of Minn. Stat. § 2.724, and shall exercise all the powers and authority of a member of this court necessary to consider and determine all matters presented to the court in the above-entitled case.

BLATZ, C.J., and PAGE, J., took no part in the consideration or decision of this case.