source: Caselaw Access Project

author: GILBERTSON, Chief Justice. ZINTER, Justice MEIERHENRY, Justice

license: Public Domain

text:
    2008 SD 61
    STATE of South Dakota, Plaintiff and Appellee, v. Frankie Lee BOWKER, Defendant and Appellant.
    No. 24502.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2008.
    Decided July 09, 2008.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Amanda M. Wilcoxon, Minnehaha County Public, Defender’s Office, Sioux Falls, South Dakota, Attorneys for defendant, and appellant.
   GILBERTSON, Chief Justice.

[¶1.] On May 10, 2006, Frankie Lee Bowker (Bowker) was indicted by a Minnehaha County grand jury on one count of possession of a controlled substance in violation of SDCL 22-42-5, and one count of possession of drug paraphernalia in violation of SDCL 22-42A-3. Bowker filed motions in the South Dakota Second Judicial Circuit Court to suppress evidence and statements, which were heard on July 25, October 3, and November 21, 2006. The court denied all motions. Thereafter, a jury returned guilty verdicts on both counts. Bowker was sentenced to five years in the South Dakota State Penitentiary for the possession of a controlled substance conviction. That sentence was suspended but for 90 days to be served in the Minnehaha County Jail. Bowker was also sentenced to 30 days in jail for the possession of drug paraphernalia conviction, which was suspended. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On May 2, 2006, at around 6:45 a.m., Sioux Falls Police Officer James Bu-teyn (Buteyn) was pulling into the police station at Fourth Street and Minnesota Avenue in Sioux Falls, South Dakota, as he neared the end of his shift. At that time, Buteyn was flagged down by a passing motorist who reported that a man was on the roof of a nearby house. At about 6:48 a.m., Buteyn called in a possible burglary and proceeded to the subject house. Bu-teyn was shortly thereafter joined at the residence by Sioux Falls Police Officers Brett Hamlyn (Hamlyn), Jason Leach (Leach) and Allen Phillips (Phillips).

[¶ 3.] At the house, the officers observed a man in the yard with a Pit Bull. The officers approached and made contact with the man at 6:51 a.m. and observed that he had a fresh bleeding cut on his hand. They also observed that a second story window was broken. Buteyn asked the man to identify himself, where he lived and how he cut his hand. The man stated that his name was Shaun Corbine (Cor-bine) and that he had lived in an apartment inside the house for six months. However, when asked if he carried identification, Corbine produced a driver’s license, issued six days earlier, which indicated his address was in Harrisburg. When asked about the discrepancy, Corbine explained that the address on the driver’s license was his ex-wife’s and that he had not lived there for six months. In reference to the apparent fresh cut, Corbine explained that he had cut his hand the night before when he broke a window after his frightened Pit Bull lunged at him.

[¶ 4.] Corbine was then asked if anyone was inside the apartment. He indicated that his girlfriend of six months, who had been staying with him, was sleeping inside. Buteyn asked for the girlfriend’s name, but Corbine could not initially remember it stating, “I’m drawing a blank.” Corbine eventually was able to recall that her name was Frankie Bowker. At the July 25, 2006 suppression hearing, Buteyn testified that due to the broken window; the suspicious answer Corbine gave when he was asked for the name of his girlfriend of six months; his inconsistent statements about his address; and the fresh cut on his hand, the police officers determined that it was necessary for them to enter the premises to conduct a well-being check because Cor-bine may have been a burglar and a possible assault victim may have been inside.

[¶ 5.] Corbine did not consent to the officers’ entry of the apartment, but produced a key that was used to open the exterior door to the house. Corbine was handcuffed for officer safety and Hamlyn stayed with him while Buteyn, Leach and Phillips entered the house. At the July 25 hearing, Buteyn testified that the exterior door opened to a ground floor apartment on the left and a stairway straight ahead that led to a second floor apartment. At trial, Buteyn testified that after announcing their presence, he proceeded up the stairs to the second floor apartment followed by Leach and Phillips. Buteyn stated that when he was about three fourths of the way up the stairway, a woman emerged from the apartment, which was on the left, onto the second floor landing.

[¶ 6.] Buteyn testified that when the woman appeared, her feet were about level with his head. He said that he asked the woman her name and that she identified herself as “Frankie [Bowker].” Buteyn told Bowker to back up into the apartment for officer safety; at which time she stated that the officers could not be on the premises without a warrant. Buteyn again told Bowker to back up into the apartment. Bowker complied and the officers continued ascending to the second floor landing.

[¶ 7.] After reaching the landing, the officers observed that the doorway opened into a living room with a kitchen area on the left. The officers observed two small children sleeping on the living room floor. To.the right of the living room, a doorway opened to a bedroom. At the July 25 hearing, Buteyn testified that from the second floor landing, the officers could see that there was blood on the doorframe leading into the bedroom. Buteyn asked Bowker if she lived in the apartment. At the hearing, Buteyn stated that Bowker said she did not.

[¶ 8.] Buteyn initially supervised Bowker while Leach and Phillips entered the apartment and swept through the living room and kitchen areas. Phillips then stayed with Bowker for officer safety while Buteyn and Leach entered the bedroom to continue the well-being check. At the July 25 hearing, Buteyn testified that upon entering the bedroom, three “meth pipes” were in plain view. He stated, “There was a meth pipe laying on the bed. There was a meth pipe laying on a chair and another meth pipe laying on a bed stand.” Buteyn noted the time was 7:04 a.m. when the meth pipes were discovered. Buteyn and Leach seized the pipes, which they confirmed contained methamphetamine residue by conducting a field test. Buteyn then called down to Hamlyn to have him place Corbine under arrest.

[¶ 9.] At trial, Buteyn testified that he then went back into the living room to speak to Bowker. He stated that Bowker, then aware of the discovery, told him that while she did not live in the apartment, she did stay there a lot. At the October 3, 2006 suppression hearing, Buteyn testified that at this juncture, Bowker was free to leave. After speaking with Bowker, Bu-teyn then went back outside to talk to Corbine.

[¶ 10.] At the October 3 suppression hearing, Leach testified that while Buteyn was outside talking to Corbine, ⅝ stayed inside with Bowker and continued speaking to her. Leach asked Bowker how often she stayed at the apartment. Leach stated that Bowker replied that she stayed there four to five nights a week. Leach also testified that he asked Bowker about the meth pipes, and that she said'she knew they were in the apartment, but that they were not hers. Leach further testified that following this questioning of Bowker, he did not intend to arrest her.

[¶ 11.] Buteyn then returned from talking to Corbine and asked Bowker how long it had been since she had stayed somewhere other than the apartment. At the October 3 hearing, Buteyn testified that in response to this question, Bowker said that she had not stayed anywhere else “for 10 days to two weeks.” At this point, Buteyn placed Bowker under arrest for possession of methamphetamine and drug paraphernalia. Subsequent to the arrests, police obtained a search warrant for the apartment and found digital scales with methamphetamine residue, jeweler bags for which testimony was later given that they are frequently used for drug storage, documents that law enforcement testified constituted “owe sheets” from' drug transactions, telephone records, automobile financing statements and a telephone fist with Bowker’s name at the top.

[¶ 12.] At the July 25, 2006 suppression hearing, Bowker argued her motion to suppress the meth pipes and all subsequent evidence on the ground that they had been illegally obtained without a search warrant. The trial court denied Bowker’s motion concluding that exigent circumstances constituting an exception to the warrant requirement existed due to the officers’ perceived need to check on the well being of those inside the apartment.

[¶ 13.] At the October 3 and November 21, 2006 hearings, Bowker argued that her statements, made before and after the discovery of the meth pipes, should be suppressed because they were illegally obtained without a Miranda warning. The trial court denied the motion concluding that Miranda warning was not necessary because there was no custodial interrogation, and Bowker’s statements were the product of the officers’ “general, on-the scene” questioning. Findings of fact and conclusions of law were entered. Bowker’s trial was conducted on December 7 and 8, 2006. Bowker was found guilty by a jury of possession of methamphetamine and drug paraphernalia.

[¶ 14.] Bowker raises four issues on appeal:

1. Whether the trial court erred by denying Bowker’s motion to suppress evidence obtained without a search warrant.
2. Whether the trial court erred by denying Bowker’s motion to suppress statements allegedly made to police while in custody and without a Miranda warning.
3. Whether an exhibit containing various documents obtained by police from the apartment was relevant to the State’s case and properly admitted by the trial court.
4. Whether the State’s remarks in reference to Bowker’s request for a warrant were improper, constituting plain error by the trial court in violation of her right to a fair trial.

ANALYSIS AND DECISION

[¶ 15.] 1. Whether the trial court erred by denying Bowker’s motion to suppress evidence obtained without a search warrant.

[¶ 16.] Bowker argues that the trial court should have suppressed the meth pipes seized by police officers during the initial entry upon the premises, and all evidence subsequently obtained from within the apartment after the police obtained a search warrant because it was all acquired as the result of an initial and illegal warrantless entry.

[¶ 17.] This Court reviews the denial of a motion to suppress alleging a violation of a constitutionally protected right as a question of law by applying the de novo standard. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); United States v. Khan, 993 F.2d 1368, 1375 (9thCir.1993); State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603). Appeals alleging an illegal warrantless search implicate a defendant’s Fourth Amendment rights and are reviewed by this Court de novo. State v. Sweedland, 2006 SD 77, ¶¶ 12-13, 721 N.W.2d 409, 412. (citations omitted). However, we apply the clearly erroneous standard to the factual findings below. Id. ¶ 12 (citations omitted).

[¶ 18.] Since freedom from intrusion into one’s home or dwelling is the overarching interest set out in the Fourth Amendment, there is a heightened expectation of privacy therein. Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980) (citing Dorman v. United States, 435 F.2d 385, 389 (C.A.D.C.1970)); State v. Meyer, 1998 SD 122, ¶ 20, 587 N.W.2d 719, 723 (citations omitted). While this heightened expectation of privacy generally demands that law enforcement obtain a warrant prior to entering a home or dwelling, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness’ [, and thus], the warrant requirement is subject to exceptions.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 1947, 164-L.Ed.2d 650 (2006) (citing Flippo v. West Virginia, 528 U.S. 11, 13, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999) (per curiam); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One such exception is exigent circumstances. Id. (citing Mincey v. Arizona, 437 U.S. 385, 393-394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)); Meyer, 1998 SD 122, ¶ 20, 587 N.W.2d at 723 (citations omitted). The State has the burden to prove that an exigency justifying warrantless entry exists. State v. Hess, 2004 SD 60, ¶ 23, 680 N.W.2d 314, 324 (citations omitted).

[¶ 19.] “Exigent circumstances exist when ‘a situation demand[s] immediate attention with no time to obtain a warrant.’ ” State v. Dillon, 2007 SD 77, ¶ 18, 738 N.W.2d 57, 60 (quoting Hess, 2004 SD 60, ¶ 24, 680 N.W.2d at 325); Meyer, 1998 SD 122, ¶ 23, 587 N.W.2d at 724 (citing State v. Heumiller, 317 N.W.2d 126, 129 (S.D.1982)). The need to protect or preserve life or avoid serious injury presents that kind of situation. Dillon, 2007 SD 77, ¶ 20, 738 N.W.2d at 61(citations omitted).

[¶ 20.] Whether exigency justifying warrantless entry exists is “applied to the facts as perceived by the police at the time of entry[.]” Meyer, 1998 SD 122, ¶ 23, 587 N.W.2d at 724 (citing Heumiller, 317 N.W.2d at 129). “[A]nalysis of whether this exception to the warrant requirement has been made out is an objective one centering on what a reasonable, experienced law enforcement officer would have believed.” Hess, 2004 SD 60, ¶ 25, 680 N.W.2d at 325 (citing United States v. Clement, 854 F.2d 1116, 1119 (8thCir.1988)). We have recognized that a law enforcement officer’s subjective justification is not determinative to this analysis. State v. Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d 603, 610. Still, there was until recently a split view on this issue. Brigham City, 547 U.S. at 402, 126 S.Ct. at 1947, 164 L.Ed.2d 650 (citations omitted). In Brigham City, the United States Supreme Court settled the issue, reiterating that “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ ” Id. at 404, 126 S.Ct. at 1948, 164 L.Ed.2d 650 (citing Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)) (emphasis and alteration original).

[¶ 21.] In regard to Bowker’s motion to suppress evidence, the trial court found that after Buteyn was alerted to a possible burglary in progress, he and the other officers encountered Corbine at the subject residence. Corbine had a fresh cut and blood on his hands and clothing. The trial court also found that although Cor-bine claimed to live in an apartment inside the house, he nevertheless produced a driver’s license indicating that he lived in Harrisburg; that Corbine told the officers that his girlfriend was upstairs; and that although he had been seeing her for six months, he was unable, initially, to identify her by name. The court found that after entering the house, Buteyn, Leach and Phillips were proceeding up the stairwáy to the- second floor apartment when they encountered Bowker; that her feet were about level with Buteyn’s head at that point; that the officers could not see into the apartment until they had reached the second floor landing; and that thereafter, they observed blood on the door frame leading into the bedroom. See Lament, 2001 SD 92, ¶ 32, 631 N.W.2d at 614 (opining in a warrantless entry case that the presence of blood is a strong indicator of injury therein further justifying the war-rantless entry).

[¶ 22.] There is evidentiary support for the trial court’s findings in this case and its determination that objectively speaking these police officers were concerned that a burglary may have taken place and that assault victims may have been in need of medical attention inside the apartment. Based on these findings, we conclude that the police officers were objectively justified in entering the house and apartment in order to check on the well-being of persons inside.

[¶ 23.] Bowker argues that the fact Corbine was able to produce a key to the apartment negates any concern that he was at the house for an illegal purpose, which would justify a well-being check and that the officers entered the apartment with the intent of obtaining evidence sufficient to charge Corbine with a crime. However, we consider reasonable Buteyn’s testimony at the October 25, 2006 hearing, where he stated that he had no way of knowing whether Corbine had come by the key legitimately or whether he had picked it up inside the apartment during a burglary. For all the foregoing reasons we affirm the trial court on this issue.

[¶24.] 2. Whether the trial court erred by denying Bowker’s motion to suppress statements allegedly made to police while in custody and without a Miranda warning.

[¶ 25.] Bowker argues that her statements made inside the house prior to her arrest were produced through custodial interrogation without a Miranda warning; thus violating her Fifth Amendment right against self-incrimination. Bowker thereby contends that the trial court should have granted her motion to suppress the statements.

[¶ 26.] The Fifth Amendment right against self-incrimination is implicated whenever an individual is subject to custodial interrogation by law enforcement. State v. Rhines, 1996 SD 55, ¶ 11, 548 N.W.2d 415, 426 (citing Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966)). “Miranda warnings are called for when a person is being interrogated ‘in custody at the station or otherwise deprived of his freedom of action in any significant way.’ ” State v. Hamm, 89 S.D. 507, 234 N.W.2d 60, 64 (1975) (quoting Miranda, 384 U.S. at 477, 86 S.Ct. at 1629, 16 L.Ed.2d 694). The subjective views of the interrogating officer and the person being questioned do not enter into this analysis. State v. Thompson, 1997 SD 15, ¶ 25, 560 N.W.2d 535, 540 (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994)). “Whether an individual is in custody is determined by ‘how a reasonable man in the suspect’s position would have understood, his situation.’ ” State v. Hoadley, 2002 SD 109, ¶24, 651 N.W.2d 249, 256 (quoting State v. Anderson, 2000 SD 45, ¶ 79, 608 N.W.2d 644, 666 (quoting State v. Herting, 2000 SD 12, ¶ 13, 604 N.W.2d 863, 866)).

[¶ 27.] In setting out our standard of review for appeals alleging custodial interrogation without a Miranda warning implicating a defendant’s Fifth Amendment rights against self-incrimination, we follow a well-established test that involves “two discrete inquiries” requiring the application of two standards. Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995); see also State v. Morato, 2000 SD 149, ¶ 11, 619 N.W.2d 655, 659 (observing that two standards apply when reviewing cases where involuntary confession is alleged) (citations omitted). “The first inquiry” applies to “the circumstances surrounding the interrogation;” ie. the scene and action, which is factual, thereby “attracting] a presumption of correctness” to the trial court’s findings. Thompson, 516 U.S. at 112, 116 S.Ct. at 465, 133 L.Ed.2d 383; see also Morato, 2000 SD 149, ¶ 11, 619 N.W.2d at 659 (citations omitted). We have also referred to this as involving factual determinations that are reviewed under the clearly erroneous standard. State v. Aesoph, 2002 SD 71, ¶ 12, 647 N.W.2d 743, 750 (citing Meyer, 1998 SD 122, ¶ 16, 587 N.W.2d at 722-23). However, the application of those facts , to the determination of whether a reasonable person under those circumstances would consider themselves to be in custody is a question of law. Thompson, 516 U.S. at 112, 116 S.Ct. at 465, 133 L.Ed.2d 383; see also Morato, 2000 SD 149, ¶ 17, 619 N.W.2d at 661; Aesoph, 2002 SD 71, ¶ 12, 647 N.W.2d at 750. “The ultimate determination, [therefore], presents a ‘mixed question of law and fact’ qualifying for independent review.” Thompson, 516 U.S. at 112-13, 116 S.Ct. at 465, 133 L.Ed.2d 383; see also Morato, 2000 SD 149, ¶ 17, 619 N.W.2d at 661; Aesoph 2002 SD 71, ¶ 12, 647 N.W.2d at 750.

[¶ 28.] From the time that Buteyn, Leach and Phillips entered the apartment, Bowker was under continuous supervision. Buteyn supervised Bowker while Leach and Phillips conducted the initial sweep of the living room area. Phillips then supervised Bowker when Buteyn and Leach checked the bedroom. The officers’ testimony, reflected in the trial court’s findings, indicates that at no time until she was arrested was Bowker formally restrained. Nevertheless, Phillip’s testimony indicates that she was placed on a couch and was not free to move about the apartment while Buteyn and Leach checked the bedroom.

[¶ 29.] After the plain-view discovery of the meth pipes, Bowker was asked about the pipes and how often she stayed in the apartment. The testimony of Buteyn and Leach at the October 3, 2006 hearing, which is reflected in the trial court’s findings, indicates that they had no intention of arresting Bowker and that she was free to leave the apartment with her children, even after she acknowledged having stayed in the apartment four to five nights a week and having seen the meth pipes before. However, the officers’ testimony in this regard is not determinative to our analysis. See Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529, 128 L.Ed.2d 293 (reiterating that an interrogating officer’s subjective view is irrelevant to the custody analysis).

[¶ 30.] The officers were in the process of determining what was going on in the premises, who was involved in it, and whether anyone was in need of emergency assistance. It was not unreasonable, while this process was going on, to have Bowker remain on the couch. This was for her safety, the safety of others in the apartment and the officers. A right to move about the apartment is not synonymous with a constitutional right to leave it. Bowker cites to no authority that she had the right to move about the apartment during this brief process.

[¶ 31.] Moreover, the officers’ questions were “general, on-the-scene” questions, not subject to Miranda. A law enforcement officer is not required to deliver a Miranda warning when his questions constitute “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process....” State v. Bartunek, 323 N.W.2d 121, 124 (S.D.1982) (quoting Miranda, 384 U.S. at 477, 86 S.Ct. at 1629, 16 L.Ed.2d at 725). In Bartunek, a sheriffs deputy responding to an auto accident encountered the defendant and his brother wandering around the accident scene. Id. at 122. The deputy asked the brothers several questions including the extent of their injuries, whether they needed medical attention, and who was driving the car. After the brothers admitted that the defendant brother had been driving, the defendant brother was arrested and charged with driving while intoxicated. Id. at 122-23. On appeal of his conviction, the defendant argued that he was entitled to a Miranda warning at the time the responding deputy asked the identity of the driver. Id. at 123. On the strength of SDCL 32-34-4, which requires the driver of any vehicle involved in an accident to contact law enforcement without delay and identify themselves, we affirmed the defendant’s conviction, holding that the deputy was conducting “general, on-the-scene questioning.” Id. at 125.

[¶ 32.] It is also instructive to review the facts in State v. Myhre 2001 SD 109, 633 N.W.2d 186. In Myhre, a wildlife conservation officer with the South Dakota Department of Game Fish and Parks (GF & P) happened upon a party of three hunters whom, after an initial questioning, he suspected had committed an infraction. Id. ¶¶ 2, 3. The officer left the scene to search the nearby roadway for evidence that would corroborate his suspicions. Id. ¶ 3. Finding none, he left the scene, but happened upon a second group of hunters nearby whom he questioned about the first group. Id. ¶ 4. The second group of hunters renewed the officer’s suspicions about the first. He then returned to the first group to continue questioning. Id. ¶ 5.

[¶ 33.] The officer questioned each of the three hunters individually. Id. ¶¶ 6, 7. He elicited a confession from the first hunter and then instructed him to remain seated on the tailgate of the GF & P pickup. Id. ¶ 6. Next, the officer instructed the second hunter to get into the GF & P pickup, where he elicited a corroborating confession. After instructing the second hunter to remain in the pickup, he went to the hunters’ adjacent vehicle and climbed inside with the defendant. Id. ¶¶ 6, 7. After the officer confronted the defendant with specific allegations of a game infraction, the defendant confessed to his role for which he was subsequently cited. Id. ¶¶7, 8. The officer did not administer a Miranda warning prior to this questioning. Id. ¶ 7.

[¶ 34.] In Myhre, we concluded that the officer’s questioning of the defendant was more than conversational, went beyond “general on-the-scene” fact gathering, and was intended to elicit a confession. Id. ¶¶20, 21. In arriving at this conclusion, we noted that the officer had ordered the defendant to remain in his vehicle while he conducted separate interrogations of the other two hunters. Id. ¶ 20. Armed with their confessions implicating the defendant, the officer confronted the defendant with allegations of the game infraction. Id. Despite the defendant’s repeated attempts to avoid the officer’s ques-turning, the officer persisted in his attempts to obtain the defendant’s confession and at no time informed the defendant that he could leave or that he did not have to answer the questions. We held that that interrogation, which yielded the defendant’s confession, was custodial in nature. Id.

[¶35.] Juxtaposed with the facts of Bartunek and Myhre, we agree with the trial court that Buteyn’s initial question to Bowker when he encountered her while coming up the stairs — i.e. whether she lived in the apartment — can be construed as a “general on-the-scene” question in furtherance of the fact-finding process. Leach’s and Buteyn’s subsequent questions to her about how often and how long she had stayed in the apartment can be similarly construed. The nature of the questioning and the environment in which the questions were asked is in no way similar to the rigorous confined confrontation of the defendant in Myhre. In the instant case, the officers were simply trying to ascertain Bowker’s status concerning the apartment that they were searching on an emergency basis. A reasonable person in Bowker’s situation would not have considered herself in custody at that time. While for officer safety she may not have been free to roam around the apartment at will, she was nevertheless free to leave up to the point of her arrest.

[¶ 36.] 3. Whether an exhibit containing various documents obtained by police from the apartment was relevant to the State’s case and properly admitted by the trial court.

[¶ 37.] Prior to trial, Bowker filed a motion in limine seeking an order to prevent the State or its witnesses from making any reference to various documents, later entered as State’s Exhibit 17, and specifically, a phone list contained therein with the words “Frankie’s Pimp Lists” printed at the top. Bowker asserted that the documents were inadmissible, pursuant to SDCL 19-12-2 (Rule 402), because they were irrelevant to the charges pending against her; they were inadmissible, pursuant to SDCL 19-12-3 (Rule 403), because any probative value they might have was substantially outweighed by their prejudicial effect; and they constituted inadmissible character evidence, pursuant to SDCL 19-12-5 (Rule 404(b)).

[¶ 38.] A trial court’s eviden-tiary rulings are presumed to be correct. State v. Crawford, 2007 SD 20, ¶ 13, 729 N.W.2d 346, 349 (citation omitted). On appeal, we review evidentiary rulings for abuse of discretion. State v. Asmussen, 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citations omitted). “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” Id. (quoting State v. Henry, 1996 SD 108, ¶ 10, 554 N.W.2d 472, 473 (citations omitted)).

[¶ 39.] “All relevant evidence is admissible[.]” SDCL 19-12-2 (Rule 402). Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDCL 19-12-1 (Rule 401). “The law favors admitting relevant evidence no matter how slight its probative value.” State v. Bunger, 2001 SD 116, ¶ 11, 633 N.W.2d 606, 609. “It is sufficient that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable that [sic] it would be without the evidence.” Id. (citation omitted) (emphasis original). However, “relevant [ ] evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” SDCL 19-2-3.

[¶40.] In addition to the phone list, Exhibit 17 contained Corbine’s vehicle financing statements and cell phone records. The exhibit also contained the “owe sheets” with coded language. The State argued that the vehicle financing statements and cell phone records were relevant to the charges against Bowker because they connected her boyfriend Corbine to the residence and that the “owe sheets” evinced drug transaction activity. Although Bowker alleged that the State sought to introduce the phone list entitled, “Frankie’s Pimp Lists” in order to impugn her character, the State asserted that the sizable phone list had “probative value to establish that [Bowker] was present [at the apartment], lived there, apparently felt that she was there, put enough portion of the time of her life to bring with her and leave there a list of phone numbers that had some importance to her.” Moreover, the State argued that the phone list was “probative and admissible to show [Bowker’s] access and joint possession of the premises which is part of what the State needs to prove and persuade the jury about in this case.”

[¶ 41.] Evidence is unduly prejudicial if it persuades the jury in an unfair or illegitimate manner, but not merely because it harms the other party’s case. State v. Mattson, 2005 SD 71, ¶ 20, 698 N.W.2d 538, 546 (citations omitted). The party objecting to the admission of evidence has the burden of establishing that the probative value of said evidence is substantially outweighed by its prejudicial effect. Id.

[IT 42.] In this case, the State laid a foundation for the relevancy and probative value of the documents that were entered into evidence as Exhibit 17. In contrast, Bowker has failed to show in what manner she was unduly prejudiced by the admission of these documents. Therefore, we find no abuse of discretion in the trial court’s refusal to grant an order to prevent the State or its witnesses from ■ making reference to the documents.

[¶43.] 4. Whether the State’s remarks in reference to Bowker’s request for a warrant were improper, constituting plain error by the trial court in violation of her right to a fair trial.

[¶44.] Bowker argues that the State made comments during closing argument that violated her right to a fair trial when it referenced her request for a warrant when Buteyn, Leach and Phillips were climbing the stairs to the apartment. In that regard the State said,

There is only one reason why a person would say that. That’s if they had guilty knowledge of what was within. They have a desire to protect the drug paraphernalia and substances that are within. They know about them. They are exercising dominion and control them by preventing the police from seeing them.

The State went on to say, “That’s what a drug user would say to a police officer. That’s not what a normal innocent citizen would say to a police officer.” Since Bowker failed to object to the State’s remarks at that time, she now raises the issue on appeal claiming plain error.

[¶45.] Where an issue has not been preserved by objection at trial, our review is limited to whether the trial court committed plain error. State v. Buchhold, 2007 SD 15, ¶ 17, 727 N.W.2d 816, 821 (citations omitted). “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” State v. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d 439, 443 (citing SDCL 23A-44-15 (Rule 52(b))).

[¶ 46.] “We invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances.’ ” State v. Robinson, 1999 SD 141, ¶ 17, 602 N.W.2d 730, 735 (quoting Nelson, 1998 SD 124, 118, 587 N.W.2d at 443). “Plain error requires (1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d at 443) (alteration original). When plain error is alleged, the defendant bears the burden of showing the error was prejudicial. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d at 443 (citations omitted).

[¶ 47.] Bowker cites United States v. Moreno, 233 F.3d 937 (7thCir.2000) and United States v. Thame, 846 F.2d 200 (3dCir.1988) as a basis for reversal of her conviction. However, these cases do not aid Bowker’s argument on this issue, and if anything, lend support for affirmance. The defendant in Moreno alleged that testimony by a government witness pertaining to an initial consent to warrantless search and subsequent revocation of that consent was improperly allowed. 233 F.3d at 940. The court observed that the government may not refer to a defendant’s post-arrest silence or invocation of Fifth Amendment privilege, id. at 941 (citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)), and that the rule is extended by many jurisdictions to implicate the Fourth Amendment arising from a defendant’s refusal to grant warrantless entry. Id. However, the court considered this proposition arguendo in order to affirm the judgment below on the strength of harmless error based on the overwhelming evidence pointing toward the defendant’s guilt. Id.

[¶ 48.] Thame, like the instant case, raises an issue of plain error based on statements made by the government during closing argument in regard to the defendant’s refusal to submit to a warrant-less search of a baggage item. 846 F.2d at 204. While the court decided that the holding in Griffin should be extended to the Fourth Amendment, id. at 207, it affirmed the judgment concluding that since there was overwhelming evidence pointing towards guilt, the government’s remarks had no impact on the jury deliberations. Id. at 207-08.

[¶ 49.] With respect to the instant case, while we do not condone the kind of prose-cutorial conduct evinced by these remarks, we conclude that given the overwhelming evidentiary support for the jury’s verdict, Bowker has not satisfied her burden of showing plain error, affecting a substantial right that seriously affected the fairness or integrity of her trial or the public reputation of judicial proceedings in general.

[¶ 50.] For all the foregoing reasons, we affirm.

[¶ 51.] SABERS and KONENKAMP, Justices, concur.

[¶ 52.] ZINTER, Justice, concurs with a writing.

[¶ 53.] MEIERHENRY, Justice, dissents.

ZINTER, Justice

(concurring).

[¶ 54.] I concur, except that with respect to Issue 2, the questioning went beyond general on-the-scene questioning. Nevertheless, the trial court’s findings of historical fact regarding Bowker’s custodial status were not clearly erroneous, and the trial court did not err in concluding that suppression was not required.

MEIERHENRY, Justice

(dissenting).

[¶ 55.] I dissent on issue two and would reverse the trial court’s denial of Bowker’s motion to suppress. I agree with the majority that “Buteyn’s initial question to Bowker when he encountered her while coming up the staire — i.e. whether she lived in the apartment-can be construed as a ‘general on-the-scene’ question in furtherance of the fact-finding process.” Supra ¶ 35. However, I disagree that Leach’s and Buteyn’s subsequent questions to her “can be similarly construed.” Id. The audio from the videotape of the alleged well-being check along with the testimony of the officers, establish that Bowker was in custody and interrogated without first being made aware of her Miranda rights.

[¶ 56.] A review of the record supports Bowker’s claim that a reasonable person in her situation would have considered herself in custody. Before the officers entered the apartment, Bowker identified herself and protested that the police could not enter the apartment without a warrant. The officers ordered her to step back and not to move about while they entered to look around. Before inquiring as to her well-being, one of the officers asked her, “Why is Shaun out on the roof?” and, “What’s up with the broken glass out there?” Bowker immediately identified herself to the officers and told them she lived in the apartment with Shaun (Corbine). Within the first few seconds after entering the apartment, the officers had Bowker’s name, had corroborated Corbine’s story about living in the residence and had established that no one in the apartment was injured or in danger. Nevertheless, the officers still restrained Bowker’s movement. Officer Phillips testified that Bowker would not have been permitted to “walk around,” even after the well-being check. One of the officers ordered her not “to get crabby and reach for something.” To which she immediately replied, “I am not going to do nothing crazy. Fuck! Fuck!” Consequently, Bowker remained seated on the couch in the snug 8' by 12' living room during the entire time the officers were in the apartment. Officer Phillips supervised her at all times.

[¶ 57.] Officer Phillips explained his role in securing Bowker’s movements and that she was not free to move about even after the “well-being” check. He described the situation as follows:

A: ... They [Officers Leach and Bu-teyn] would go downstairs and talk to a male individual. I would just basically stand in the living room [watching Bowker] for security reasons.
Q: And were other officers [Officers Leach and Buteyn] down there with Mr. Corbine?
A: At the bottom of the stairs outside, they were.
Q: So you were basically just there in a security capacity?
A: Yes.
Q: And in that capacity would you have let somebody, say walk around?
A: No.[]

[¶ 58.] After the officers found the meth pipes in the adjoining bedroom and after they arrested Corbine, their attention turned to Bowker. Officer Leach, with the meth pipes in his hands, then began to question Bowker. Leach explained to her that the meth pipes were in plain view on the bed, chair and bedstand. He wanted to know if the pipes belonged to her, if she slept in the bedroom and if she knew that the pipes were in the bedroom. He testified as follows:

A. I asked her, it would have been before, when I was upstairs originally, I did ask her, I told her I found three pipes in the bedroom. I showed her the pipes. I asked her if they were hers. She stated they were not hers but she had seen them before.
Q. Seen them before, correct?
A. Correct.

Officer Leach testified that he also asked her questions about the living arrangements in the apartment as follows:

I did talk with Ms. Bowker. I asked her first of all her name. She stated her name was Frankie Bowker. Also asked her if she lived at this apartment. She stated she did not. Gave me an address on East 20th Street. She said that was where she lived. I did ask Ms. Bowker how often she does stay at the apartment here. She stated to me she stayed in the apartment four to five nights a week. I asked her if her children stayed with her. She stated when her children stay with her, she does stay out in the living room with them. I then asked her if she occasionally stays in the bedroom. She stated when her children were not with her, she does sleep in the bedroom.

While the officers questioned her, one can hear the officers on the audio 'actually having a discussion, apparently in front of her, about arresting her.

[¶ 59.] To ‘ determine if Bowker was in custody, we have to apply the test of “whether, under the totality of the circumstances, a reasonable person would not believe [herself] free to go.” State v. Corder, 460 N.W.2d 733, 736 (S.D.1990) (citing Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We have said that to distinguish between custodial and non-custodial interrogations it is important to analyze the “nature of the interrogator; nature of the suspect; time and place of the interrogation; nature of the interrogation; and purpose of the investigation.” State v. Bartunek, 323 N.W.2d 121, 124-25 (S.D.1982) (citation omitted).

[¶ 60.] Here, an analysis of the circumstances indicates that most of the questioning was in a custodial setting and that a reasonable person would not have believed she was free to go. Bowker first encountered the officers prior to 7:00 a.m., when the officers demanded entry into the residence without consent or a warrant. Barging into the residence, the officers never explained to Bowker the purpose for the abrupt invasion. The officers ordered Bowker to step back and not move. Once back in the apartment, the officers ordered her to sit on the couch and “not to get crabby and reach for something.” The officers continuously supervised her while they searched the apartment. During this entire time, she was not free to move around or leave. She observed the officers discover drug paraphernalia from Cor-bine’s bedroom. After this discovery, one of the officers yelled out the window to a fourth officer on the ground to arrest Cor-bine. At this time, the officers split up; Buteyn went downstairs to interrogate Corbine while Leach remained upstairs to interrogate Bowker. Phillips remained in the living room with Leach and Bowker for “security purposes.” With the drug paraphernalia held in front of Bowker, Leach interrogated Bowker about her knowledge and possible ownership of the drug paraphernalia. After a substantial amount of interrogation, Leach left Bowker, with Phillips still “supervising” her, and went downstairs to question Corbine and confer with Buteyn. Buteyn then returned to the apartment to interrogate Bowker further, at which point she was eventually arrested.

[¶ 61.] The questioning went beyond mere on-the-scene questioning or inquiry into her well-being. The questioning occurred substantially after the officers were aware that no one in the apartment was in danger or injured. Moreover, the interrogation happened after the officers had arrested Corbine. The officers remained in the apartment without consent “supervising” and questioning Bowker about her sleeping habits, residence, woman’s clothing and toys found near the drug paraphernalia and the drug paraphernalia itself. The questioning clearly was targeted at soliciting an admission from Bowker. We have said that when questioning goes beyond the purpose of general fact finding and is used to elicit a culpable response, Miranda warnings are required. State v. Myhre 2001 SD 109, ¶¶ 20-21, 633 N.W.2d 186, 190.

[¶ 62.] At no time did the officers inform Bowker of her Miranda rights, even though they were discussing whether to arrest her. A reasonable person in Bowker’s situation would have considered herself in custody. Therefore, based on the facts and circumstances surrounding the interrogation, I would conclude that Bowker was in custody and that the officers should have given Bowker her Miranda rights before they questioned her concerning whether she had knowledge of the drugs and paraphernalia. Ultimately, her answers were used by the State to prove she had knowledge. Her statements should have been suppressed as the fruit of an unlawful custodial interrogation.

[¶ 63.] The State claims that even if the trial court erred by not suppressing Bowker’s statements, the error was harmless. “Erroneous admission of statements obtained in violation of Miranda may constitute harmless error when there remains overwhelming independent evidence of guilt.” State v. Stanga, 2000 SD 129, ¶ 20 617 N.W.2d 486, 491 (citing Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302, 329 (1991); SDCL 15-6-61; SDCL 23A-44-14 (Rule 52(a))). We must be able to say that the error was harmless beyond a reasonable doubt. State v. Zakaria, 2007 SD 27, ¶ 19, 730 N.W.2d 140, 146 (citations omitted). We have explained harmless error as follows:

The harmless error doctrine preserves the essential purpose of criminal trials: to decide a defendant’s guilt or innocence. The rule promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable pres-enee of immaterial error. The harmless error rule governs ... provided the court is able to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained. [Hjarmlessness must ... be determined on the basis of the remaining evidence. ■

Id. (citations omitted). When analyzing the effect the erroneously admitted evidence had on the trial, we need to consider the elements of the offense along with the other evidence. Id.

[¶ 64.] The court instructed the jury that the State had to prove that Bowker “knowingly [had] been in possession of methamphetamine” and “knowingly used or possessed with intent to use, drug paraphernalia.” The court further instructed that “the mere fact that a person is near a location or had access to a place where methamphetamine is found is not, by itself, sufficient proof of possession.” Crucial to the State’s case was proving that Bowker knowingly possessed illicit drugs and/or paraphernalia.

[¶ 65.] As evidenced by the prosecutor’s comments to the trial court and the jury, Bowker’s statements to the police played an important part in that proof. When settling instructions, the prosecutor asked the court to instruct the jury concerning admissions made by a defendant other than during the trial. The instruction read in part as follows:

A statement made by a defendant other than at his trial may be an admission.
An admission is a statement by a defendant admitting one or more of the facts at issue. It is not sufficient by itself to prove guilt of the crime charged, but it may prove one or more of the elements of the crime charged.

In support of the court giving the instruction, the prosecutor told the court, “I think the things [Bowker] said to the police are statements. They make up a good bit of probably the State’s case or the State’s argument.” Defense counsel objected to the instruction, and the court asked the prosecutor, “what statement would be an admission?” The prosecutor answered, “Well, [Bowker] had stayed there 10 to 14 nights in a row. That she had possessions there in the premises. That she had seen those three pipes before.”

[¶66.] Additionally, the prosecutor acknowledged that the main issue for the State in this case was proving that Bowker had knowledge. He said in his closing argument to the jury:

If there is an issue in the case which you could detect from the evidence offered by the defense as well as the cross examination of State’s witnesses, that would be the element of knowing possession of a controlled substance.
As to knowing, the knowing aspect of the possession, I submit to you that when the defendant told.the officers that morning that the pipes weren’t hers but she had seen them before, that is proof of her knowledge of those pipes. If you take that statement, that admission in the context of all the rest of the evidence in the case, it becomes an important admission, an important element of knowledge.

The prosecutor lists all the other pieces of evidence that showed that Corbine was involved with drugs and then again used Bowker’s statements to argue that she had knowledge:

I submit to you you couldn’t be within this house without knowing what was going on there. You certainly couldn’t be a girlfriend of Mr. Corbine for 90 days or four months, stay there four or five nights per week, stay there for 10 to
14 nights in a row and not know what was going on.
* * *
She admitted to the officers she sometimes slept in that bedroom. She certainly had access to it.
So again, that State wasn’t required to prove use or ownership. The State was required to prove possession and the knowing exercise of dominion or control. She was in possession of the objects in question. She knew of their character and that’s why the first thing out of her mouth when she saw the cops was you can’t be here without a search warrant or words to that effect.

Then in rebuttal, the prosecutor summed up with the following:

She admitted she had seen the pipes before. She knows he is an addict. And the first words out of her mouth are you can’t come in here without a search warrant. I submit to you that that is strong evidence of consciousness, knowing possession of the illegal controlled substances within those premises.

[¶ 67.] Without Bowker’s statements to the police, the evidence against Bowker is not overwhelming. Besides her admissions, the other evidence against her consists mainly of her proximity to Corbine’s drugs and paraphernalia. The officers found her and her children staying in Cor-bine’s apartment where the evidence of drugs (most of the indicia of its presence was in the closet) and drug pipes were found. The officers evidently did not observe any signs that she had been using nor did she admit to using. Consequently, most of the State’s evidence of her “knowing possession” depended on three of her answers to the officers questions. First, the State placed a substantial amount of emphasis on her admission that “she had stayed there 10 to 14 nights in a row.” Second, the State relied heavily on the fact that she admitted that her possessions were in close proximity to the illicit items. Third, the State heavily touted Bowker’s admission that she had seen the three meth pipes in the residence. All of these statements/admissions derived from the custodial interrogation of Bowker.

[¶ 68.] Corbine testified in Bowker’s defense and explained that the only reason the meth pipes were in plain view was because he was rearranging his room that morning while Bowker slept in the living room with her children. He further testified that other paraphernalia was always hidden from Bowker. Corbine also claimed to be unaware of Bowker’s knowledge of the drug paraphernalia. Although the State can argue that the jury discounted Corbine’s testimony because he was a convicted drug felon, his testimony was before the jury.

[¶ 69.] Given the facts in this case, I am unable “to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained.” See Zakaria, 2007 SD 27, ¶ 19, 730 N.W.2d at 146 (citations omitted). This case should be reversed and remanded for a new trial with the evidence derived from the custodial interrogation suppressed.

      . At the October 3, 2006 suppression hearing, Buteyn also testified that he did not have evidence to arrest Bowker at this juncture and that she was free to leave the apartment.

      . The dissent suggests that there was no reason for the police officers to have entered the bedroom to continue the well-being check because "[w]ithin the first few seconds after entering the apartment,” they were able to ascertain that “no one in the apartment was injured or in danger.” However, the dissent overlooks the suppression hearing testimony of officers Buteyn and Leach who stated that from their vantage point just inside the doorway of the apartment, they observed blood on the bedroom door frame and that they entered the bedroom to determine whether someone was injured or concealed therein.

      . The dissent cites excerpts from Phillips’s testimony at the November 21, 2006 continuation of the second suppression hearing, in order to suggest that Bowker was not free to "walk around" the apartment let alone leave. The dissent claims that following the discovery of the meth pipes there was a point during which Buteyn and Leach left Phillips alone with Bowker while they went downstairs to talk to Corbin. We acknowledge that Phillips testified that he was alone with Bowker at some point. However, he also testified that during the period in which he was alone with her, he was at the same time “in the living room for security reasons ” and that he was locating himself in a "security position [.]" (Emphasis added). We conclude that the fact finder at the suppression hearing could reasonably have determined that Phillips's reference to being alone with Bowker and restricting her movements in the apartment was in the context of his supervising her for officer safety while Buteyn and Leach were conducting the well-being check inside the bedroom, since under no other circumstances would Phillips have been present for "security reasons.” Furthermore, a review of the October 3 testimony of Buteyn and Leach, reveals that while Buteyn went downstairs to talk to Cor-bine following the discovery of the meth pipes, Leach remained behind in the apartment with Phillips and Bowker. Notwithstanding, evidence contrary to the dissent’s claim that Phillips remained alone with Bowker and continued to restrict her movements following the discovery of the meth pipes, both Buteyn and Leach testified at the October 3 hearing, that Bowker was free to gather her children and leave the apartment up until the point at which she told Buteyn that she had stayed nowhere else for 10 to 14 days. See supra ¶¶ 9-11.

      . The dissent relies in large part upon what it claims can be heard on the audio portions of a videotape that recorded police conversations made while the well-being check was on-going. There were two motions to suppress. The first, heard on July 25, 2006, was to suppress drug paraphernalia and other evidence of drug use and distribution found at the apartment. The tape was introduced at this hearing as an exhibit and is referenced in the transcript. The trial court denied the motion to suppress evidence.
      Bowker then filed a second motion to suppress statements she made in the apartment. At the opening of the second hearing, the State asked the trial court to incorporate the testimony from the first suppression hearing, but did not ask for any exhibits to be incorporated. In denying Bowker’s second motion to suppress, the trial court found that Bowker was free to leave during the questioning and that she answered the questions voluntarily. At no time during this suppression hearing did defense counsel ask for the tape to be introduced or incorporated. We also observe that in objecting to the trial court's findings, Bowker did not cite to the tape. Nor does Bowker cite to the tape on appeal for support of her argument pertaining to the Miranda issue. Thus, while the dissent bases its argument chiefly on this tape, throughout the trial and appellate proceedings, it played no part in the issue of whether Bowker was free to leave or whether she was restrained at the time she made the statements that she sought to suppress.
      Since Bowker failed to introduce the tape at the hearing on the motion to suppress statements or have it incorporated into those proceedings, any consideration of the content of the tape is waived on appeal. See Berdahl v. Gillis, 81 S.D. 436, 136 N.W.2d 633, 635 (S.D.1965) (holding that a letter utilized by the appellant in his argument would not be considered on appeal because it was not properly before the trial court). As an appellate court, we are confined to the record and issues presented to us for judicial review. See DeMarco v. Jones & Laughlin Steel Corp., 513 Pa. 526, 522 A.2d 26, 28-29 (1987) (opining that appellate court consideration of matters not raised by trial counsel result in the trial becoming "merely a dress rehearsal”).

      . Dollar computations, names and various terms such as "booties,” "T-shirts” and "games” were found on the "owe sheets.” At the trial, a Sioux Falls Police Department Detective, John Duprey (Duprey), testified that the term "bootie” is equivalent to the term "8-ball,” which is code for an eighth of an ounce of methamphetamine. Duprey stated that the term "T-shirt” is equivalent to the term "teener," which is code for a sixteenth of an ounce and that the term "game” is code for an ounce of methamphetamine.

      . The “owe sheets” may have additional relevance since testimony was offered that Cor-bine had not drawn up the sheets and that all but one of the sheets was, in the opinion of Duprey, "in female handwriting.”

      . Although the majority says that the videotape was not offered into evidence for the second suppression hearing and should not be considered, the videotape actually was part of the entire record that the court clearly considered for both the original motion to suppress evidence and the second motion to suppress statements. The denial of both the suppression of evidence and statements were drafted together on a single order, which stated:
      the [c]ourt having heard and considered the evidence and arguments of the párties together with the files and the records herein and having made and entered Findings of Fact and Conclusions of Law; now, therefore IT IS HEREBY ORDERED that Defendant's Motion to Suppress Re; Search of Residence and Motion to Suppress Statements be and the same here are denied.
      Both denials utilized the same findings of fact and conclusions of law. Additionally, Bowker questioned a witness about the videotape and argued portions of it in the second hearing. No objections were made by the State. Clearly, the videotape was before the court and considered when the order was entered. Consequently, this Court must consider the same evidence for this de novo review.
      The audio of the officers’ discussion (apparently between Buteyn to another officer) regarding whether they had enough information to enter the apartment progressed as follows: “I mean the cut [on Corbine's finger] is old; but, these guys just said he was up [on the roof]. And [Corbine] said he was up there cleaning the glass up.” This exchange suggests that the officers knew the wound on Corbine’s finger was old at the time of the well-being check, not “fresh” as the trial court and the majority opinion described it. Moreover, the audio also reveals the officers discussing whether or not to arrest Corbine. They settled on cuffing him and checking out the apartment before arresting him.

      . The majority states that the fact finder "could reasonably have determined that Phillips’s reference to being alone with Bowker and restricting her movements in the apartment was in the context of his supervising her for officer safety while Buteyn and Leach were conducting the well-being check inside the bedroom, since under no other circumstances would Phillips have been present for 'security reasons.’ ” Supra ¶ 30 n3. Although I agree that Phillips claimed his sole purpose for supervising Bowker was for "security reasons,” I strongly disagree that the fact finder could reasonably fabricate a sequence of facts contrary to those argued or presented. Phillips unequivocally testified to the following:
      State (cross-examination): Officer Phillips, do you have a clear distinct recollection of being alone with Ms. Bowker in that apartment — ■
      Phillips: Yes.
      State: At the time when both Officer Leach and Officer Buteyn were downstairs and outside talking to Mr. Corbine?
      Phillips: Yes.
      It is not reasonable for the trial court, nor the majority, to independently concoct a factual situation that contradicts the plain facts of this case without substantiating a reason for the contraiy finding.
      Although the majority claims that the dissent relies chiefly on the videotape for this writing, the officers’ testimonies, such as the quoted portion above, are the foundation for this special writing. Indeed, the video recorded only a small fraction of the interrogation and captured no useful picture evidence. It is only useful to recreate a truthful tone of the officers’ entry into the apartment and the following few minutes inside, prior to the custodial interrogation. With regard to the custodial interrogation analysis, the testimony is where (he substantive analysis begins.

      . During the "well-being” investigation, the .audio from the officers' on-person microphone cut off at two different times for a substantial period. The first audio void occurred immediately after the officers determined they would arrest Corbine. The second large chunk of missing audio corresponds with the complained-of questioning. Therefore, the only rendition of the officers’ questioning of Bowker is reconstructed from the officers’ testimony at the suppression hearing and trial.

      . Both Officers Buteyn and Leach testified at the hearings and the trial that as they initially ascended the stairs to the apartment, Bowker appeared at the top landing and asked if they had a search warrant. The prosecutor used her question about the search warrant in his closing argument as follows:
      There is only one reason why a person would say that. That's if they had guilty knowledge of what was within. They have a desire to protect the drug paraphernalia and substances that are within. They know about them. They are exercising dominion and control over them by preventing the police from seeing them. ■
      I don't think you can't be here without a search warrant would be the first thing that would come out of anybody else’s mouth. You might say what are you doing. You might say what's going on. You might say has something happened to my child or my folks. You might say all kinds of things but unless you have a reason or unless you are a constitutionalist, a constitutional scholar and you have no evidence to believe she is, the first thing out of your mouth is not going to be you can't be here without a search warrant. That's what a drug user would say to a police officer. That’s not what a normal innocent citizen would say to a police officer under those circumstances.
      The defense made no objection.


author: PAGE, Justice. GILDEA, Justice

text:
    In re the Matter of the Decision of County of Otter Tail Board of Adjustment to Deny a Variance to Cyril STADSVOLD and Cynara Stadsvold.
    No. A06-1696.
    Supreme Court of Minnesota.
    June 19, 2008.
    Rehearing Denied Aug. 1, 2008.

      Nathan L. Seeger, Nathan L. Seeger Law Office, Fergus Falls, MN, for Appellant.
    Michael T. Rengel Pemberton, Sorlie, Rufer <& Kershner, P.L.L.P., Fergus Falls, MN, for Respondent.
    Scott R. Simmons, St. Paul, MN, for Amicus Curiae Association of Minnesota Counties.
   OPINION

PAGE, Justice.

This case arises from the decision of respondent Otter Tail County Board of Adjustment (Board) to deny an application for an area variance sought by appellants Cyril and Cynara Stadsvold under the County’s Shoreland Management Ordinance. On appeal to the district court, the Board’s denial of the variance was affirmed. On appeal to the court of appeals, the district court’s decision was affirmed. We granted the Stadsvolds’ petition for review. The issues on appeal include: (1) whether the setback requirements in the County ordinance apply to grandfathered nonconforming lots; (2) the proper standards to be applied to area and use variance requests; (3) whether the Board’s decision to deny the Stadsvolds’ variance request was arbitrary and capricious; and (4) whether the Board may consider an after-the-fact variance request as if it were before-the-fact. For the reasons discussed below, we reverse and remand for further proceedings, concluding that a county board of adjustment may grant an area variance on a showing of “practical difficulties.”

The relevant facts in this case are largely undisputed. The Stadsvolds purchased an undeveloped lot on Blanche Lake in Otter Tail County in July 1982. The Stadsvolds’ lot is a grandfathered nonconforming lot under the County’s Shoreland Management Ordinance. The lot is 100 feet wide with an area of 17,627 square feet. In 2001, the Stadsvolds developed plans to build a lake home and garage on the lot. They filed an application for a site permit with the County in November 2001 and amended their application in May 2002.

The ordinance provides that an applicant for a site permit “shall stake out all lot lines and road right-of-ways” before the County’s pre-approval inspection. Otter Tail County, Minn., Shoreland Management Ordinance § V.1.A (2004). The ordinance provides setback requirements for structures built on single family residence recreational developmental lake lots covered by the ordinance. Id. § III.4.A. Such structures must be set back 10 feet from lot lines and 20 feet from road right-of-ways. Id.

The Stadsvolds’ site permit application indicated lot line setbacks for the house and garage of 10 feet and right-of-way setbacks of 22 feet for the house and 20 feet for the garage. The Stadsvolds did not have the lot surveyed, however, and the measurements set out in the application were based on stakes and pins put in place when the lot was initially platted. Using these same stakes and pins, the county inspector measured the house as 10 and 17 feet from the lot lines, the garage as 11 and 50 feet from the lot lines, and the garage as 26 feet from the road right-of-way. On that basis, the County approved the application for a site permit on August 8, 2002. The County physically inspected the lot on October 16, 2002, November 19, 2002, and July 15, 2003. Construction of both the house and garage was completed by July 15, 2003, and the County approved the completed project on that date.

In October 2004, it was discovered that the house and garage had been built within the setback areas. A subsequent survey of the lot confirmed that the house and garage were within the setback areas, with the house being 5 feet from the lot lines and 16.7 feet from the road right-of-way, and the garage being 5.1 feet from the road right-of-way.

On July 11, 2005, the Board of Adjustment cited the Stadsvolds for violating the lot line and road right-of-way setbacks in the County ordinance. At that point, the Stadsvolds had invested $236,917.44 in constructing the house and garage.

On August 8, 2005, the Stadsvolds applied to the Board for a variance from the setback requirements. Evidence submitted at the hearing on the variance application indicated that during an inspection of the Stadsvolds’ property by three of the Board’s members, one of the members expressed the view that obtaining the variance should not be a problem due to the substandard lot size. There was also evidence indicating that surrounding landowners did not oppose the variance being granted and that other property owners in the area had received variances for structures built within the road right-of-way setback area.

At the hearing on the variance, the Board chairperson indicated that the Board’s decision would be based on the Stadsvolds’ application and the physical visits to the lot by the Board members. The chairperson indicated that the Board would treat the application for the variance as if the variance had been sought before the house and garage had been built. Applying that approach, the Board members concluded that they would not have approved the request had it been sought before-the-fact because “[t]here was plenty of room on this lot” for reasonable use and the Stadsvolds could “[sjqueeze [the house and garage] together a little bit.” The Board therefore denied the variance. In its written denial, the Board concluded the Stadsvolds showed “no adequate hardship unique to the property” that would support granting the variance. In doing so, the Board noted that it would not have approved the variance had it been requested before construction on the property commenced, and that there was adequate room on the lot to obtain a reasonable use of the property without a variance.

The Stadsvolds appealed to the district court, which granted summary judgment in the County’s favor. The court concluded that “the decision by the Board was reasonable, and the reasons for the decision are legally sufficient and have a factual basis.” The court of appeals affirmed, concluding that the Board used the proper standard when it considered the Stads-volds’ application and that the Board’s decision was not arbitrary or capricious. In re Decision of County of Otter Tail Bd. of Adjustment, No. A06-1696, 2007 WL 1898565, at *4-5 (Minn.App. July 3, 2007).

I.

The preliminary question we address is whether an owner of a grandfathered nonconforming lot, which meets the criteria of the exemption for grandfathered lots, also must meet the ordinance’s setback requirements. The exemption provides that structures may be built on grandfathered lots that do not conform to minimum square footage and lot width, “provided a Site Permit for the structure is obtained, all sanitary requirements are complied with and the proposed use is permitted within the district.” Otter Tail County, Minn., Shoreland Management Ordinance § IV.13.B. The Stadsvolds claim that they are entitled to a building permit without having to meet the ordinance’s other requirements because their lot is a grandfathered nonconforming lot, they obtained a site permit for the construction of the house and garage, they met all sanitary requirements, and the house and garage are permitted uses under the ordinance. The County argues that the Stadsvolds failed to raise this issue in front of the Board and therefore the issue has been waived.

Minnesota Statutes § 394.27, subd. 9, provides that decisions of the Board may be appealed to the district court. Minn. Stat. § 394.27, subd. 9 (2006). However, we have held that an appellate court must generally consider only those issues that were presented and considered below. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988); see also Sletten v. Ramsey County, 675 N.W.2d 291, 302 (Minn.2004) (“Issues raised for the first time on appeal are not to be considered.”). Here, the issue of whether the ordinance’s setback requirements could be applied to a grandfathered nonconforming lot was not presented to or considered by the Board. We, therefore, agree with the County that the issue is not properly before us.

II.

The Stadsvolds also argue that the Board erred in applying an “adequate hardship” standard when determining whether to grant the variance because Minn.Stat. § 394.27, subd. 7 (2006), permits a county board of adjustment to grant a variance when a landowner would face “practical difficulties or particular hardship” in meeting the terms of the official control. The Stadsvolds contend that the less stringent “practical difficulties” standard applies to area variances, while the more stringent “particular hardship” standard applies to use variances. The County contends that the Stadsvolds cannot meet either standard.

Minnesota Statutes § 394.27, subd. 7, governs a county’s power to grant variances and provides:

Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control in cases when there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control, and when the terms of the variance are consistent with the comprehensive plan. “Hardship” as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under the conditions allowed by the official controls; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute a hardship if a reasonable use for the property exists under the terms of the ordinance.

With certain additions, the Otter Tail County ordinance mirrors this language. Otter Tail County, Minn., Shoreland Management Ordinance § V.5. Therefore, we have no need to differentiate between the language of the statute and the language of the ordinance.

We have not had occasion in the past to consider the difference, if any, between the “practical difficulties” and “particular hardship” standards. Determining whether there is a difference between the two standards and how to apply them requires us to construe MinmStat. § 394.27, subd. 7, which we do de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). When a statute’s language is plain and unambiguous, we engage in no further construction. Mavco, Inc. v. Eggink, 739 N.W.2d 148, 153 (Minn.2007). A statute is ambiguous when the language “is subject to more than one reasonable interpretation.” Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). When construing statutes, our goal is to ascertain and give effect to the legislature’s intent. Minn.Stat. § 645.16 (2006). We conclude that section 394.27, subdivision 7, is ambiguous because only “hardship” is defined, and it therefore is not clear from the statute when a county zoning authority’s decision should be based on the “practical difficulties” or the “particular hardship” standard in a given case.

The legislature is presumed to have intended both “practical difficulties” and “particular hardship” to have meaning. See Minn.Stat. § 645.16 (“Every law shall be construed, if possible, to give effect to all its provisions.”); Minn.Stat. § 645.17(2) (2006) (“The legislature intends the entire statute to be effective and certain.”); Mavco, 739 N.W.2d at 153 (citing Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 74, 93 N.W.2d 690, 698 (1958), for the proposition that we presume that the legislature “understood the effect of its words and intended the entire statute to be effective and certain”). We also presume that the legislature did not intend absurd or unreasonable results. State v. Koenig, 666 N.W.2d 366, 372 (Minn.2003). Moreover, distinctions in language in the same context are presumed to be intentional, and we apply the language consistent with that intent. Transp. Leasing Corp. v. State, 294 Minn. 134, 137, 199 N.W.2d 817, 819 (1972).

Because they derogate the common law, we construe zoning ordinances narrowly against the government and in favor of the property owner. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). Zoning ordinances were established “to control land use, and development in order to promote public health, safety, welfare, morals, and aesthetics.” State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 269 Wis.2d 549, 676 N.W.2d 401, 407 (2004) (citing Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 394-95, 47 S.Ct. 114, 71 L.Ed. 303 (1926)). The purpose of a variance is to provide “the opportunity for amelioration of unnecessary hardships resulting from the rigid enforcement of a broad zoning ordinance,” thereby “avoid[ing] the acknowledged evils of ‘spot zoning.’ ” Curry v. Young, 285 Minn. 387, 396, 173 N.W.2d 410, 415 (1969) (regarding a municipal variance) (quoting Flagstad v. City of San Mateo, 156 Cal.App.2d 138, 318 P.2d 825, 827 (1957)); see also Minn.Stat. § 394.22, subd. 10 (2006) (defining “variance” as “any modification or variation of official control where it is determined that, by reason of exceptional circumstances, the strict enforcement of the official controls would cause unnecessary hardship”).

There are two types of variances: use variances and area variances. “A use variance permits a use or development of land other than that prescribed by zoning regulations.” In re Appeal of Kenney, 374 N.W.2d 271, 274 (Minn.1985). In Minnesota, the authority of a county board of adjustment to grant a use variance is limited by statute: “No variance may be granted that would allow any use that is prohibited in the zoning district in which the subject property is located.” Minn. Stat. § 394.24, subd. 7; see Kenney, 374 N.W.2d at 274-75 (discussing circumstances under which use variances are permitted). An area variance controls “lot restrictions such as area, height, setback, density and parking requirements.” Kenney, 374 N.W.2d at 274; see generally 3 Kenneth H. Young, Anderson’s American Law of Zoning § 20.07, at 426-27 (4th ed. 1996). We have noted that unlike use variances, area variances do “not change the character of the zoned district.” Kenney, 374 N.W.2d at 274.

Looking to the history of the legislation that formed the basis for the enactment of section 394.27, subdivision 7, we conclude that the “practical difficulties” standard is the appropriate standard to apply to area variances and the “particular hardship” standard is the appropriate standard to apply to use variances. The “practical difficulties” and “unnecessary hardship” standards originated in the 1916 New York City Building Zone Resolution. See David W. Owens, The Zoning Variance: Reappraisal and Recommendations for Reform of a Much-Maligned Tool, 29 Colum. J. Envtl. L. 279, 282, 285, 285 n. 15 (2004). The original drafters of the New York ordinance recognized that an ordinance “could not fully anticipate all of the variations in particular parcels of land, individual land uses, and peculiar situations that would arise with zoning implementation.” Id. at 283. Accordingly, the drafters intentionally used vague and general terms to allow local zoning boards to use variances as “a safety valve” for unforeseen circumstances. Id. at 283, 285 n. 19. Over time, the New York courts distinguished between the two standards by directing zoning authorities to consider whether there was a “unique” or “unnecessary” hardship when considering use vari-anees and whether there were practical difficulties when considering area variances. See, e.g., Vill. of Bronxville v. Francis, 1 A.D.2d 236, 150 N.Y.S.2d 906, 909, aff'd, 1 N.Y.2d 839, 153 N.Y.S.2d 220, 135 N.E.2d 724 (1956). The New York courts have also given definition to the term “practical difficulties,” concluding that when addressing area variance requests, zoning boards should consider:

(1) how substantial the variation is in relation to the requirement, (2) the effect, if the variance is allowed, of the increased population density thus produced on available governmental facilities * * *, (3) whether a substantial change will be produced in the character of the neighborhood or a substantial detriment to adjoining properties created, (4) whether the difficulty can be obviated by some method, feasible for the applicant to pursue, other than a variance, and (5) whether in view of the manner in which the difficulty arose and considering all of the above factors the interests of justice will be served by allowing the variance.

Wachsberger v. Michalis, 19 Misc.2d 909, 191 N.Y.S.2d 621, 624 (1959), aff'd, 18 A.D.2d 921, 238 N.Y.S.2d 309, 309 (1963). Minnesota enacted section 394.27 in 1959 but did not adopt a specific statutory standard for granting variances at that time. Act of Apr. 24, 1959, eh. 559, § 7, 1959 Minn. Laws 882, 885-86. In 1974, the legislature amended section 394.27, when the legislature provided a definition of a “variance” and incorporated the “practical difficulties or particular hardship” language. Act of Apr. 11, 1974, ch. 571, § 27, 1974 Minn. Laws 1401,1408-09.

Courts across the country have taken differing approaches when construing language similar or identical to the “practical difficulties or particular hardship” language in Minn.Stat. § 394.27, subd. 7. See 3 Young, supra, § 20.48, at 579-80. “[Ujnaided by statutory or other legislative language,” courts have applied different standards to requests for use and area variances. Id. “In most states, the courts will approve an area variance upon a lesser showing by the applicant than is required to sustain a use variance.” Id. Courts in some states with zoning enabling statutes containing both the “practical difficulties” and “hardship” standards have concluded that area variance applicants are required to meet the less rigorous “practical difficulties” standard. See, e.g., Matthew v. Smith, 707 S.W.2d 411, 416 (Mo.1986) (adopting the New York approach and holding area variances may be granted upon a “slightly less rigorous” standard of “practical difficulties”). Other jurisdictions do not make a distinction between the two standards. See, e.g., 165 Augusta St., Inc. v. Collins, 9 N. J. 259, 87 A.2d 889, 891 (1952) (“We perceive no practical difference between [undue hardship] or [peculiar and exceptional practical difficulties]. * * * The former is necessarily inclusive of the latter, for where peculiar and exceptional difficulties exist undue hardship also exists.”) (internal citations omitted).

Even in states in which the enabling legislation uses a singular “hardship” standard, the courts have read into the statutes a less rigorous standard for area variances. For example, although Ohio Rev. Code § 303.14(B) (2006) permits variances to be granted based only on “unnecessary hardship,” the Ohio Supreme Court also followed the New York approach and echoed the Wachsberger “practical difficulties” factors for area variances. See Duncan v. Vill. of Middlefield, 23 Ohio St.3d 83, 491 N.E.2d 692, 695 (1986). Similarly, Wisconsin Statutes § 59.694(7)(e) (2006) sets out a single “unnecessary hardship” standard for variances. The Wisconsin Supreme Court, however, has held that area variances may be granted upon a lesser showing. See State v. Outagamie County Bd. of Adjustment, 244 Wis.2d 613, 628 N.W.2d 376, 383-89 (2001) (plurality opinion) (overturning prior decision holding “unnecessary hardship” applied to both use and area variances because holding “defies practical workability, lacks sufficient justification, and is detrimental to the coherence of the law of zoning in this state”).

We are persuaded that the reasoning of the states applying a lesser standard to area variance requests is sound. As the Wisconsin Supreme Court has noted, applying the higher use variance standard is “largely disconnected from the purpose of area zoning, fails to consider the lesser effect of area variances on neighborhood character, and operates to virtually eliminate the statutory discretion of local boards of adjustment to do justice in individual cases.” Ziervogel> 676 N.W.2d at 404. Further, recognizing that most courts distinguish between the effect that area and use variances have on the use of the land, “in the case of area variances, it is assumed by most courts that adequate protection of the neighborhood can be effected without the imposition of the stringent limitations which have been developed in the use variance cases.” Outagamie County Bd. of Adjustment, 628 N.W.2d at 389 (quoting Young, supra, § 20.48 at 581).

Given that we have recognized the different effects of use and area variances, see In re Appeal of Kenney, 374 N.W.2d at 274, we hold that area variances shall be permitted by a county zoning authority when the applicant makes a showing only of “practical difficulties” under Minn.Stat. § 394.27, subd. 7, whereas an applicant for a use variance must establish particular hardship as set forth in the statute. We further hold that the factors for consideration under the “practical difficulties” standard include: (1) how substantial the variation is in relation to the requirement; (2) the effect the variance would have on government services; (3) whether the variance will effect a substantial change in the character of the neighborhood or will be a substantial detriment to neighboring properties; (4) whether the practical difficulty can be alleviated by a feasible method other than a variance; (5) how the practical difficulty occurred, including whether the landowner created the need for the variance; and (6) whether, in light of all of the above factors, allowing the variance will serve the interests of justice.

Noting that the legislature has limited the authority to grant variances to “exceptional circumstances,” Minn.Stat. § 394.22, subd. 10, we caution, as did the Wisconsin Supreme Court, that our adoption of a less rigorous standard for area variances “is not to say that area variances should be, or are, automatic or easy to obtain.” Outagamie County Bd. of Adjustment, 628 N.W.2d at 389.

III.

Having concluded that the practical difficulties standard is the standard to be applied when county zoning authorities consider area variances and having identified the parameters of that standard, we now turn to the Board’s denial of the Stadsvolds’ application for a variance in this case. We review zoning actions to determine whether the zoning authority “ ‘was within its jurisdiction, was not mistaken as to the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and to determine whether the evidence could reasonably support or justify the determination.’ ” Frank’s Nursery Sales, Inc., 295 N.W.2d at 608 (quoting Vill. of Edina v. Joseph, 264 Minn. 84, 93, 119 N.W.2d 809, 815 (1962)).

The Board, using an “adequate hardship” standard, did not consider practical difficulties. The Stadsvolds argue the Board’s decision was therefore arbitrary and capricious. The Board did not have the benefit of our holding in this case regarding “practical difficulties.” We cannot tell whether the Board’s decision was arbitrary and capricious. Therefore, remand is required to allow the Board to consider the Stadsvolds’ variance application in light of our holding that applications for area variances are to be considered using the “practical difficulties” standard in Minn.Stat. § 394.27, subd. 7.

Although we remand to allow the Board to determine whether the Stadsvolds’ variance request meets the “practical difficulties” standard, we also, in order to provide guidance on remand, address the Stads-volds’ claim that the Board’s denial of the variance was arbitrary and capricious because it failed to consider the factors set out in the County’s ordinance.

Whether a local zoning body’s decision is reasonable is measured against the standards set forth in the applicable ordinance. VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 n. 6 (Minn.1983). In addition to requiring the Board to consider whether there are “practical difficulties or unnecessary hardship,” the ordinance also requires the Board to consider whether: (1) “the variance will secure for the applicant a right or rights that are enjoyed by other owners in the same area”; (2) sewage treatment systems need upgrading; and (3) “the variance will be contrary to the public interest or damaging to the rights of other persons or property values in the neighborhood.” Otter Tail County, Minn., Shoreland Management Ordinance § V.5.E. There is no indication in the record that the Board considered any of these factors. We have held that when resolving variance requests, the zoning authority must “articulate the reasons for its ultimate decision, with specific reference to relevant provisions of its zoning ordinance.” Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn.1994). When the zoning authority fails to comply with this requirement, it is difficult if not impossible for a reviewing court to determine whether the zoning authority’s decision was proper, was predicated on insufficient evidence, or was the result of the zoning authority’s failure to apply the relevant provisions of the zoning ordinance. See generally In re Livingood, 594 N.W.2d 889, 895 (Minn.1999); VanLandschoot, 336 N.W.2d at 508. A decision predicated on insufficient evidence or arising from a failure to apply relevant provisions of the ordinance would be arbitrary and capricious. In the absence of the Board in this case having articulated its reasons in the manner required by Earthburners, we cannot determine the basis for the Board’s decision.

If the zoning authority’s decision is arbitrary and capricious, the standard remedy is that the court orders the permit to be issued. In re Livingood, 594 N.W.2d at 895 (“[T]he general principle [is] that when a governmental body denies a permit with such insufficient evidence that the decision is arbitrary and capricious, the court should order issuance of the permit.”). However, an exception to the general rule exists when the zoning authority’s decision is premature and “not necessarily arbitrary.” Earthburners, 513 N.W.2d at 46.3. In Earthburners, we remanded to the zoning authority to allow “renewed consideration” of the zoning application because it was unclear as to whether the authority had applied the relevant provisions of the statute. Id. To prevent unfairness, we required the zoning authority on remand to “confíne its inquiry to those issues raised in earlier proceedings before the planning commission and county board while allowing adequate opportunity for a meaningful discussion of those issues.” Id. Thus, on remand in this case, the Board must apply both the “practical difficulties” standard, including the factors discussed above, and all of the other factors required by the ordinance. Also, as required by Earthburners, the Board shall “articulate its reasons for its ultimate decision, with specific reference to relevant provisions of its zoning ordinance” and “confine its inquiry to those issues raised in [the] earlier proceedings.”

IV.

Finally, we consider the Stadsvolds’ argument that the Board erred by treating their application as a before-the-fact variance request. The County argues that it has broad discretion to treat before-the-fact and after-the-fact variances the same and that it “makes sense” because “it discourages people from purposely violating the [ordinance]” and then presenting the Board with the fact of the completed construction.

First, we note that, because circumstances involved in before-the-fact variance requests and after-the-fact variance requests are fundamentally different, treating them the same can produce unfair results. At the same time, we acknowledge that boards of adjustment generally have broad discretion in considering variance requests. But we also note that the Board here had the authority to consider the facts as they existed at the time of the Stadsvolds’ request. In In re Appeal of Kenney, a case involving a county board of adjustment’s authority to grant the variance sought, we suggested that the board, on remand, consider certain after-the-fact elements, including whether the applicant acted in good faith, attempted to comply with the ordinance, and made a substantial investment. 374 N.W.2d at 275. We also “urged” the board to consider whether (1) the construction was completed, (2) there were similar structures in the area, and (3) the county’s benefits were outweighed by the applicant’s burden if the applicant were required to comply with the ordinance. Id. Here, it is not clear from the record, however, that the Board understood that it had such authority.

To the extent that the County is concerned about variance applications arising out of purposeful violations of its ordinance, such concerns should be alleviated by considering whether the applicant acted in good faith and attempted to comply with the ordinance, and' whether, in light of all the factors, the interests of justice will be served by granting the variance. Further, there would be nothing inappropriate in the Board distinguishing between an “unintentional mistake” and “wilful and intentional encroachment.” See Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 681, 685 (1958); see also 3 Young, supra, § 20.57, at 617 (“Some courts have given relief where the good faith of the applicant was apparent and the offense to the ordinance was small or harmless.”). Indeed, we have affirmed a permanent injunction in a case involving landowners who

knew that they were proceeding without a permit when they started remodeling and that in doing so they were violating the ordinance. They knowingly violated the law, and the fact that they spent money in so doing does not justify them nor avail them of the hardship clause in the ordinance.

Newcomb v. Teske, 225 Minn. 223, 227, 30 N.W.2d 354, 356 (1948). Here, there is nothing in this record to suggest, and the County does not argue that, the Stadsvolds acted in bad faith, engaged in a willful and intentional encroachment, proceeded without a permit, or otherwise intentionally violated the ordinance. In fact, the record suggests that the Stadsvolds made a good-faith mistake that resulted in an unintentional violation of the ordinance. Further, the record indicates that other properties in the area have received a variance for similar setback violations. Therefore, on remand, we urge the Board to treat the Stadsvolds’ variance application as an application for an after-the-fact variance and consider the equitable factors we set out in Kenney.

Reversed and remanded.

MAGNUSON, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

GILDEA, Justice

(concurring).

I join in the majority’s conclusion that the matter be reversed and remanded to the Otter Tail County Board of Adjustment. I write separately because I disagree with the way in which the majority reaches its conclusion to reverse and remand.

The majority rewrites the relevant statute, Minn.Stat. § 394.27, subd. 7 (2006), so that the “practical difficulties” standard in the statute applies only to area variances and the “particular hardship” standard applies only to use variances. But we long ago recognized that we are not to add words to statutes or otherwise judicially legislate. State v. Willrich, 72 Minn. 165, 167, 75 N.W. 123, 124 (1898) (“We must accept the law as we find it, and not attempt any judicial legislation to supply supposed omissions.”). In addition, it seems to me that the restrictions the majority writes into the statute are arguably inconsistent with our precedent that we are to construe zoning ordinances in favor of landowners. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). Before today, both the “practical difficulties” and “particular hardship” standards were available to landowners, but now a landowner is restricted depending on the type of variance she seeks. Such restrictions should be made by the legislative branch, not the judicial branch.

Finally, rewriting the statute is not necessary to the resolution of this case. As the majority concludes, the Board did not apply the “practical difficulties” standard to the variance application in this case. Thus, a remand is required for the Board to consider the application under that standard. In addition, and as the majority also concludes, the Board’s decision does not reflect whether it considered the requirements of its own ordinance and so the record is not adequate for meaningful judicial review. As such, a remand is required to the Board for this reason as well. See Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn.1994) (“In the proceedings on remand, the board must articulate the reasons for its ultimate decision, with specific reference to relevant provisions of its zoning ordinance.”).

Because the Board did not apply the “practical difficulties” standard and its decision does not reflect that it followed its own ordinance, I would remand this matter for further consideration by the Board, and I would not reach the question of whether the statute needs to be rewritten.

      . The ordinance requires, among other things, 40,000 minimum square footage and 150 feet minimum lot width for lots on recreational development lakes. Otter Tail County, Minn., Shoreland Management Ordinance § III.4.A (2004). The ordinance provides that lots existing before the 1971 effective date of the ordinance are exempt from the minimum area and width requirements set out in the ordinance, provided a site permit is obtained for construction of any structures, all sanitary requirements are met, and the proposed use is permitted in the district. Id. § IV.13.B.

      . The statutory standard for municipal variances is different. See Minn.Stat. § 462.357, subd. 6(2) (2006). Unlike section 394.27, subdivision 7, the municipal standard requires a showing of "undue hardship.” Minn.Stat. § 462.357, subd. 6(2).

      . The ordinance additionally provides that the Board must consider:
      1.Whether the variance will secure for the applicant a right or rights that are enjoyed by other owners in the same area;
      2. Whether existing sewage treatment systems on the property need upgrading before additional development is approved;
      3. Whether granting the variance will be contrary to the public interest or damaging to the rights of other persons or to property values in the neighborhood.
      Otter Tail County, Minn., Shoreland Management Ordinance § V.5.E. The ordinance further provides that "[n]o variance shall be granted simply because there are no objections or because those who do not object outnumber those who do.” Id.

      . In 1992, New York enacted legislation setting out a formula that balances the impact of the variance request on the applicant and the community. See Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 259, 657 N.E.2d 254, 257-58 (1995). As a result, area variance applicants no longer have to prove "practical difficulties.” However, the legislative formula parallels the judicially-created factors used to define “practical difficulties.” See id., 657 N.E.2d at 259.

        . Economic considerations play a role in the analysis under this factor.