author: YANDE WALLE, Chief Justice.

text:
    2007 ND 195
    STATE of North Dakota, Plaintiff and Appellee v. Dennis Roy HAUGEN, Defendant and Appellant.
    No. 20070141.
    Supreme Court of North Dakota.
    Dec. 13, 2007.
    Carmell Faye Mattison, Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellee. Submitted on brief.

      Henry H. Howe, Howe & Seaworth, Grand Forks, ND, for defendant and appellant.
   YANDE WALLE, Chief Justice.

[¶ 1] Dennis Haugen appealed from the criminal judgment and order denying his motion for a new trial after a jury found him guilty of carrying a loaded firearm in a vehicle. We affirm the district court judgment and order denying the motion for a new trial.

I.

[¶ 2] In March 2006, Haugen was charged with aggravated assault, terrorizing and carrying a loaded firearm in a vehicle. The charge of carrying a loaded firearm in a vehicle stems from an incident on March 23, 2006. While there was no full trial transcript included in the record on appeal, the district court order denying the motion for a new trial described some testimony presented at trial regarding the incident. Haugen said he received a phone call at his shop from his neighbor, Rodney Hulst, who wanted money to repair a trailer damaged by Haugen. Hau-gen testified Hulst very angrily said he wanted his money and then slammed the phone down. Haugen also testified there were five or six calls after the initial call and that he quit answering the telephone because he believed the calls were from Hulst. During this time, Haugen was in his locked shop with a cell phone.

[¶ 3] A police officer knocked on Hau-gen’s locked shop door shortly after the telephone calls and identified himself as law enforcement. Haugen testified he did not answer because he thought it was Hulst or an individual with Hulst and was scared. Approximately forty-five minutes to an hour after the telephone confrontation, Haugen left his shop with a loaded gun. He stated he was talking on his cell phone to his son as he exited the shop.

[IF 4] At his February 2007 jury trial, Haugen requested jury instructions on self-defense, excuse and justification for each of the charges. The district court allowed the instructions for the aggravated assault and terrorizing charges but decided the instructions were not applicable to the strict liability offense of carrying a loaded firearm in a vehicle. Haugen was acquitted of the aggravated assault and terrorizing charges but found guilty of carrying a loaded firearm in a vehicle.

[¶ 5] On appeal, Haugen argues the jury instructions were incorrect because the district court erred in deciding the offense of carrying a loaded firearm in a vehicle was a strict liability offense not subject to self-defense, excuse or justification. Haugen also argues the district court erred in denying his motion for a new trial or in declining to vacate his conviction for carrying a loaded firearm in a vehicle.

II.

[¶ 6] We review jury instructions to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law. Strand v. Cass County, 2006 ND 190, ¶ 7, 721 N.W.2d 374. The district court is not required to instruct the jury in the exact language sought by a party if the instructions are not misleading or confusing, and if they fairly advise the jury of the law on the essential issues of the case. Id. When the jury instruction, read as a whole, is erroneous, relates to a subject central to the case, and affects the substantial rights of the defendant, it is grounds for reversal. State v. Smith, 1999 ND 109, ¶22, 595 N.W.2d 565.

[¶ 7] This Court has determined the Legislature may enact laws making the violation thereof a matter of strict criminal liability without a culpability requirement. State v. Nygaard, 447 N.W.2d 267, 269-70 (N.D.1989). Whether an offense is punishable without proof of intent, knowledge, willfulness, or negligence is a question of legislative intent to be determined by the language of .the statute in connection with its manifest purpose and design. Id. at 270. The interpretation of a statute is a question of law, fully reviewable on appeal. State v. Jackson, 2005 ND 137, ¶ 8, 701 N.W.2d 887.

[¶ 8] The relevant statute, N.D.C.C. § 62.1-02-10, states, “No person may keep or carry a loaded firearm in or on any motor vehicle in this state.” The statute lists several exceptions, none of which apply here. We interpret N.D.C.C. § 62.1-02-10 to be a strict liability offense, punishable without regard to intent, knowledge, willfulness, or negligence.

[¶ 9] Strict liability does not always preclude affirmative defenses. State v. Eldred, 1997 ND 112, ¶30, 564 N.W.2d 283. However, only in very rare cases have we said an affirmative defense may be applied when the offense is a strict liability offense. State v. Buchholz, 2006 ND 227, ¶ 12, 723 N.W.2d 534 (citing State v. Rasmussen, 524 N.W.2d 843, 846 (N.D.1994)). What conduct can be justified or excused is defined in our criminal code at N.D.C.C. ch. 12.1-05. City of Bismarck v. Lembke, 540 N.W.2d 155, 157 (N.D.1995). These justifications and excuses may apply to offenses outside of Title 12.1. Rasmussen, at 844. In Rasmussen, this Court described the difference between excused and justified conduct:

“Since justifications and excuses have similar consequences, the principal reason for distinguishing between them is clarity of analysis. A justification is a circumstance which actually exists and which makes harmful conduct proper and noncriminal. An excuse is a circumstance for which the Code excuses the actor from criminal liability even though the actor was not ‘justified’ in doing what he did, e.g., a nonculpable but mistaken belief that facts affording a justification exist.”

Id. at 845 (quoting Final Report of the National Commission on Reform of Federal Criminal Laws at 44 (1971)). Thus, if a defendant’s conduct was either justified in actuality, or excused because he reasonably, but mistakenly, believed that circumstances actually existed which would justify his conduct, the defendant would have a valid affirmative defense. Lembke, at 157. The decisive issue under our law of self-defense is not whether a person’s beliefs are correct, but rather whether they are reasonable. State v. Leidholm, 334 N.W.2d 811, 815 (N.D.1983). Similarly, an unreasonably held belief precludes the affirmative defense of excuse for a strict liability offense. Lembke, at 158.

[¶ 10] The district court decided Hau-gen failed to attempt available alternatives to carrying a loaded firearm in his vehicle, such as calling law enforcement. While Haugen argues he acted reasonably because of the history between the parties and his own past experience with law enforcement, this Court lacks a record with which to substantiate his allegations. An appellant assumes the consequences and risks for failure to file a complete transcript, and we will not review an issue if the record on appeal does not allow for a meaningful and intelligent review of the alleged error. Industrial Com’n of North Dakota v. Noack, 2006 ND 195, ¶ 7, 721 N.W.2d 698. Therefore we decline to hold the district court erred in this case by refusing to provide jury instructions on self-defense, excuse and justification for the charge of carrying a loaded firearm in a vehicle.

III.

[¶ 11] We affirm the district court judgment and order denying the motion for a new trial.

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


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2007 ND 199
    Cory CHRISTOFFERSON, Appellant v. NORTH DAKOTA DEPARTMENT OF HEALTH, Appellee.
    No. 20070129.
    Supreme Court of North Dakota.
    Dec. 13, 2007.

      Dean J. Haas, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for appellee.
    Cory Christofferson, Tolna, ND, pro se.

   CROTHERS, Justice.

[¶ 1] Cory Christofferson appeals a district court judgment affirming an order of the Department of Health finding that Christofferson is in violation of the Solid Waste Management and Land Protection Act and the Solid Waste Management Rules. We affirm the district court’s judgment because the Department’s factual findings are supported by a preponderance of the evidence, the conclusions of law are sufficiently supported by the factual findings, and the Department’s decision is supported by the legal conclusions.

I

[¶ 2] Christofferson owns a farm in Benson County. In 1994, Christofferson began collecting used tires on his property. Christofferson obtained the tires through a tire disposal service he operates, charging a fee of approximately one dollar per tire. The tires were used to make fences, windbreaks and outbuildings on the farm. Christofferson claims he is recycling the tires and is putting them to “beneficial use” as discussed in N.D. Admin. Code § 33-20-01.l-02(l)(e). Christofferson obtained a conditional permit to transport solid waste when beginning the project. The permit invokes both N.D.C.C. ch. 23-29 (Solid Waste Management and Land Protection Act) and N.D. Admin. Code art. 33-20 (Solid Waste Management Rules). The permit requires the disposal facility be “in compliance with applicable state and/or federal regulations.” Chris-tofferson received a similar permit in 2000 under the business name C.C. Recycling.

[¶ 3] Christofferson transported approximately 300,000 tires to his property between 1994 and 2004. The Department became concerned about the health, fire and mosquito risks associated with storing so many tires on the property. In 2004, the Department sought an order mandating removal of the tires from Christoffer-son’s property over a three-year period. After an administrative hearing held September 19-20, 2005, the administrative law judge (“ALJ”) determined Christof-ferson’s activities did not fall within the “beneficial use” exception. Thus, standard solid waste regulations apply, including specific fire protection, environmental and operational requirements. Because Christofferson was not in compliance with the regulations, the ALJ recommended Christofferson cease collecting tires and develop a disposal plan for the existing tires. The Department adopted the ALJ’s order, and Christofferson appealed to the district court. The notice of appeal, filed with assistance of an attorney, argued the ALJ did not follow the Administrative Agencies Practice Act and claimed the ALJ’s factual findings were not supported by the evidence.

[¶4] Christofferson subsequently discharged his attorney and represented himself. He supplemented the previously filed notice of appeal with a “Memorandum of Points and Authorities” which added a claim of constitutional violations, made a counterclaim against the Department, and moved for change of venue. The district court issued an order concluding that as an appeal from an administrative agency decision, the procedure is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, which does not provide for the making of counterclaims on appeal. The court also denied Christofferson’s motion for change of venue. Christofferson next submitted an amended brief which included several affidavits from his neighbors supporting his assertion that the tire collection is benign.

[¶ 5] In its memorandum opinion, the district court found Christofferson’s constitutional arguments, chiefly that the Department does not have jurisdiction over land Christofferson owns, unpersuasive. The Department has authority “to regulate solid waste sites as [a] matter of public health and policy.” The court also found Christofferson’s activities are not included in the “beneficial use” exemption as set out in N.D. Admin. Code § 33-20-01.1-02(l)(e) because the tires are not “derived from a resource recovery activity.” The district court held the affidavits of Chris-tofferson’s neighbors inadmissible as additional or excluded evidence under N.D.C.C. § 28-32-45. The district court ultimately affirmed the ALJ’s decision finding that under N.D.C.C. § 28-32^16(1) the Department’s order is in accordance with the law; (2) Christofferson’s constitutional rights were not violated; (3) the Department followed the Administrative Agencies Practice Act; (4) Christofferson was given a fair hearing; (5) the findings of fact made by the ALJ were supported by a preponderance of the evidence; and (6) the conclusions of law are supported by the findings of fact. Christofferson filed a motion for stay of judgment pending appeal, which was denied.

[¶ 6] Christofferson appeals the Department’s decision and the judgment issued by the district court. He claims the conclusion that the tire project was not a “beneficial use” as described by N.D. Admin. Code § 33 — 20—01.1—02(1)(e) is erroneous.

II

[¶ 7] Our standard of review of administrative agency decisions is the same as that applied by the district court under N.D.C.C. § 28-32-46. Lapp v. N.D. Dep’t of Transp., 2001 ND 140, ¶ 6, 632 N.W.2d 419. The agency’s decision will only be overturned if:

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

N.D.C.C. § 28-32-46. Administrative rulings are given great deference. Wetzel v. N.D. Dep’t of Transp., 2001 ND 35, ¶ 9, 622 N.W.2d 180. This Court does not substitute its judgment for that of the agency. Id.

[¶ 8] This Court generally uses a three-step process when reviewing an appeal from an administrative agency decision. Obrigewitch v. Dir., N.D. Dep’t of Transp., 2002 ND 177, ¶ 7, 653 N.W.2d 73. We consider whether the agency’s findings of fact are supported by a preponderance of the evidence, whether the conclusions of law are sustained by the agency’s findings of fact, and, finally, whether the agency’s decision is supported by the conclusions of law. Id.

Ill

[¶ 9] Christofferson argues his tire collection should be characterized as a “beneficial use” as defined by N.D. Admin. Code § 33 — 20—01.1—02(l)(e). Because “beneficial use” classification exempts waste management operations from the requirements of N.D.C.C. ch. 23-29 and N.D. Admin. Code art. 33-20, Christofferson claims the Department erred by finding him in violation of those provisions.

[¶ 10] Section 33-20-01.1-02(l)(e), N.D. Admin. Code, provides that operations involving the “beneficial use or reuse of materials, substances, energy, or other products derived from a resource recovery activity” are exempt from the requirements of N.D. Admin. Code art. 33-20. “Resource recovery” is defined as “the use, reuse, or recycling of materials, substances, energy, or products contained within or derived from municipal waste.” N.D.C.C. § 23-29-03(13).

[¶ 11] Christofferson contends his tire collection is “resource recovery” because his chief motivation for collecting tires is to build inexpensive, durable fencing for an intensive grazing farming operation. He claims the electric fencing ordinarily used in such operations has not worked for him, so he started using fences made of tires.

[¶ 12] The Department alleged the tire disposal operation was not a “beneficial use” because of the potential financial and environmental liability involved in the ultimate disposal of the tires. The Department provided testimony from waste management experts claiming Christofferson’s tire operation was not a legitimate resource recovery activity because the tires will ultimately have to be disposed of elsewhere. The Department claims that during an inspection of the property on February 3, 2004, Christofferson stated if he continues to experience financial difficulties he may abandon the property and the tires.

[¶ 13] The Department argued the fire, mosquito and rodent hazards associated with such a large number of tires are not consistent with “beneficial use.” Terry Gray, an expert on the environmental impact of used tire disposal, testified about the detrimental impact tire fires have on the air, soil and ground water. Gray added tires stored above ground serve as attractive breeding areas for mosquitoes, which may increase the spread of diseases such as encephalitis and West Nile. Christoffer-son argues the Department’s evidence regarding potential hazards contains “false statements” and “frivolous arguments” and contends such risks do not really exist. He complains the ALJ gave too much credibility to the Department’s witnesses. Despite his argument, Christofferson does not explain why this is true and does not provide any evidence showing the Department’s contentions are either false or frivolous.

[¶ 14] The ALJ found the department presented sufficient evidence of health risk and environmental risk. Acknowledging the tire collection may benefit Christoffer-son’s agricultural activities, the ALJ determined the tire collection does not serve as a “beneficial use” as defined by N.D. Admin. Code § 33-20-01.1-02(l)(e) because of the “accumulations in total, on human and animal health, the environment, and on local and state government, which may be ultimately financially responsible to dispose of the tires.”

[¶ 15] We hold the ALJ’s factual findings are supported by a preponderance of the evidence. The conclusion that Chris-tofferson’s operation is not a “beneficial use” under the Solid Waste Management Rules is supported by factual findings, as is the determination that Christofferson has not adequately followed the applicable solid waste management regulations. Finally, the ultimate decision requiring Christofferson to begin disposing of the tires is supported by the legal conclusions.

IV

[¶ 16] Christofferson raises three other issues on appeal that do not warrant full consideration by this Court. First, he alleges the Department has committed libel. Christofferson does not specify which of the Department’s statements was libelous and does not cite any law on the matter. Further, Christofferson did not raise this issue before the Department or the district court. “This Court does not address issues raised for the first time on appeal.” Bienek v. N.D. Dep’t of Transp., 2007 ND 117, ¶ 16, 736 N.W.2d 492. Second, Christofferson claims his failure in this case is due to his pro se status and lack of understanding of administrative law. This argument fails because “[a] pro se litigant is not granted leniency solely because of his status as such.” State v. Hilgers, 2004 ND 160, ¶ 19, 685 N.W.2d 109. Finally, Christofferson complains his case was not reviewed by a jury. This argument also fails because N.D.C.C. § 28-32-43 requires that administrative appeals are to be heard by the court without a jury.

V

[¶ 17] We affirm the district court’s judgment because the Department’s factual findings are supported by a preponderance of the evidence, the Department’s conclusions of law are sufficiently supported by the factual findings, and the Department’s decision is supported by the legal conclusions.

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


author: CROTHERS, Justice. EAPSNER, Justice,

text:
    2007 ND 198
    In the Matter of Christopher James MIDGETT. State of North Dakota, Petitioner and Appellee v. Christopher James Midgett, Respondent and Appellant.
    No. 20070109.
    Supreme Court of North Dakota.
    Dec. 13, 2007.

      Dale R. Rivard, Assistant State’s Attorney, and Derrick Roller (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, Grand Forks, ND, for petitioner and ap-pellee.
    Troy R. Morley, Grand Forks, ND, for respondent and appellant.
   CROTHERS, Justice.

[¶ 1] Christopher Midgett appeals the district court’s March 21, 2007 order committing him to the custody of the Department of Human Services as a sexually dangerous individual. We conclude the Sixth Amendment confrontation right does not apply to commitment proceedings under N.D.C.C. ch. 25-03.3 and the district court’s application of N.D.C.C. ch. 25-03.3 is not erroneous. We affirm the district court’s order.

I

[¶ 2] In 1996, Midgett was adjudicated for sexual assault of a child. He was thirteen years old when the offense occurred. Midgett was placed with the Texas Youth Commission and remained in juvenile custody until he turned twenty-one. Midgett was convicted of failure to register as a sex offender on April 18, 2005. He received a one-year prison sentence with 275 days suspended for two years. One condition of Midgett’s probation was completion of sex offender treatment. On November 16, 2006, Midgett’s probation was revoked for failure to complete treatment.

[¶ 3] On November 1, 2006, the State petitioned for commitment of Midgett as a sexually dangerous individual under N.D.C.C. ch. 25-03.3. In addition to information about the 1996 sex offense, his failure to register, and his failure to complete sex offender treatment, the petition included references to three other instances of alleged sexually predatory conduct. On July 9, 2004, Midgett allegedly inappropriately touched a 10-year-old boy in a hotel pool. On February 12, 2005, Midgett was accused of “watching a little boy very intently” at a shopping mall. Midgett also allegedly entered the kitchen area of Northlands Rescue Mission without permission on December 28, 2005 and stared at student volunteers. None of these incidents resulted in a criminal conviction.

[¶ 4] At the commitment hearing, three clinical psychologists testified as expert witnesses for the State. As part of their testimony regarding Midgett’s risk of recidivism, the doctors discussed the three alleged incidents. The doctors also discussed the results of several psychological evaluations indicating Midgett had a high probability of re-offending. The evaluations took into account the three alleged incidents. Midgett objected to the psychologists’ testimony because he was unable to confront the individuals who had reported and allegedly witnessed these events. The testimony was admitted despite Midgett’s protest. On cross-examination, the psychologists testified that absent consideration of these incidents, their opinions regarding the risk of Midgett re-offending may have been different. The doctors also indicated the results of the psychological evaluations may have shown Midgett was less likely to re-offend if the information about the alleged incidents had been excluded.

[¶ 5] The district court found by clear and convincing evidence Midgett met the statutory definition of a sexually dangerous individual because he (1) engaged in sexually predatory conduct and (2) suffers from a mental disorder making him likely to engage in further acts of sexually predatory conduct. Midgett argues he was denied his constitutional right of confrontation because the experts testifying at the commitment hearing based their opinions partially upon reports generated by individuals who were not available for cross-examination.

II

[¶ 6] Civil commitments of sexually dangerous individuals are reviewed under a “modified clearly erroneous” standard and will be affirmed unless the dis-

trict court’s “order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.” In re Anderson, 2007 ND 50, ¶21, 730 N.W.2d 570. Midgett’s single issue on appeal is whether he was improperly denied the opportunity to cross-examine the individuals who reported the three alleged incidents.

[¶ 7] Chapter 25-03.3, N.D.C.C., provides for commitment of sexually dangerous individuals. A sexually dangerous individual is a person who has

“engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.”

N.D.C.C § 25-03.3-01(8). To commit someone under this chapter, the state’s attorney files a petition with the district court. N.D.C.C. § 25-03.3-03(1). The State chooses experts to psychologically evaluate the individual. N.D.C.C. § 25-03.3-12. The individual is able to provide his own experts, and in cases of indigent respondents, an expert is appointed by the court to testify on the individual’s behalf. Id. A commitment proceeding is subsequently held to determine whether the individual meets the definition of a sexually dangerous individual. N.D.C.C. § 25-03.3-13. The state’s attorney must prove by clear and convincing evidence the individual is sexually dangerous. Id. If the State is successful, the individual “must remain in the care, custody, and control of the executive director until, in the opinion of the executive director, the individual is safe to be at large.” N.D.C.C. § 25-03.3-17.

[¶ 8] Midgett argues he was denied the right to confront the individuals who reported the three alleged instances of sexually predatory conduct though the events were recounted by expert witnesses as fact. “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. Midgett argues this right should be extended to civil commitment proceedings. We disagree.

[¶ 9] This Court has determined the Sixth Amendment does not apply to civil cases. Adoption of J.S.P.L., 532 N.W.2d 653, 660 (N.D.1995). “The legislature has clearly expressed its intent to create a civil, rather than criminal, procedure in N.D.C.C. ch. 25-03.3.” In re M.D., 1999 ND 160, ¶ 27, 598 N.W.2d 799. The respondent in M.D. argued the double jeopardy protections applied to criminal cases should also apply to civil commitment of sexually dangerous individuals. Id. at ¶ 24. This Court determined civil commitment is not intended to be punitive; its primary purpose is to protect the public from harm. Id. at ¶¶ 26, 28. Because the commitment procedure is not a criminal sanction, constitutional protections associated with criminal proceedings do not apply. Id. at ¶ 31.

[¶ 10] The Legislature may choose to extend similar protections to civil cases by statute. Interest of B.B., 2007 ND 115, ¶ 15, 735 N.W.2d 855. See, e.g., N.D.C.C. § 25-03.3-09 (right to counsel). In commitment proceedings of sexually dangerous individuals, the Legislature has afforded respondents the “right to be present, to testify, and to present and cross-examine witnesses.” N.D.C.C. § 25-03.3-13. This right, however, is not the same right to confrontation granted criminal defendants by the United States Constitution.

[¶ 11] While the Legislature has granted respondents the right of cross-examination at the hearing, it also provides: “At the commitment proceeding, any testimony and reports of an expert who conducted an examination are admissible.” N.D.C.C. § 25-03.3-13. Admissibility of evidence under N.D.C.C. § 25-03.3-15 is similarly permissive: “Notwithstanding any other provision of law, in any proceeding pursuant to this chapter, evidence of prior sexually predatory conduct or criminal conduct, including a record of the juvenile court, is admissible.”

[¶ 12] This Court must “harmonize statutes to avoid conflicts between them.” Stephenson v. Hoeven, 2007 ND 136, ¶ 14, 737 N.W.2d 260. We have held expert witnesses in commitment proceedings may base their opinions on any information “reasonably relied upon by psychologists in determining whether an individual is sexually dangerous.” Interest of D.V.A., 2004 ND 57, ¶9, 676 N.W.2d 776. In D.V.A, the psychologist relied on penitentiary records, medical records, conversations with another psychologist, and four interviews with the respondent to form her opinion. Id. at ¶ 5. Because the respondent did not show this evidence was unreasonably relied on, the expert’s testimony was admissible. Id. at ¶ 9. Any “weakness or non-existence of a basis for an expert’s opinion goes to his credibility, and not necessarily to the admissibility of the opinion evidence.” Id. This approach is consistent with N.D.R.Ev. 703, which states:

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”

[¶ 13] Midgett was afforded the opportunity to cross-examine the psychologists and to point out strengths and weaknesses of both the psychological evaluations performed and the evidence underlying their expert opinions. We therefore conclude the district court did not misconstrue N.D.C.C. ch. 25-03.3.

Ill

[¶ 14] We conclude the Sixth Amendment confrontation right does not apply to civil commitments of sexually dangerous individuals and the district court did not erroneously apply N.D.C.C. ch. 25-03.3. We affirm the district court’s order committing Midgett to the custody of the Department of Human Services as a sexually dangerous individual.

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

EAPSNER, Justice,

dissenting.

[¶ 16] I concur with the majority opinion that the Sixth Amendment does not apply to civil commitment proceedings, but respectfully dissent from the affirmance of the civil commitment. The district court improperly found that Midgett engaged in sexually predatory acts; two of the three acts referenced by the district court in its order do not meet the definition of “sexually predatory conduct” as defined by N.D.C.C. § 25-03.3-01(9); two of the “repetitious sexually predatory acts” referenced by the district court do not meet the definition provided in N.D.C.C. § 25-03.3-01(9). The commitment is premised on actuarial instruments which do not address the recidivism of a particular individual, but only of a population meeting certain criteria. This record demonstrates Mid-gett’s involuntary commitment serves as an unconstitutional mechanism for general deterrence, which is not a permissible purpose for civil commitments.

I

[¶ 17] I have written about my concerns with relying on actuarial instruments that merely present statistical probabilities to civilly commit an individual. I continue to have those concerns, but do not repeat them here. See Matter of Anderson, 2007 ND 50, ¶¶ 54-69, 730 N.W.2d 570 (Kapsner, J., dissenting).

II

[¶ 18] In its memorandum decision and order, the district court stated:

In addition to the three specific instances referenced to above [i.e., Mid-gett’s 1996 conviction for sexually assaulting a child, his failure to register as a sex offender, and his failure to successfully follow and complete a sex offender treatment program], there were also unrefuted indications of other repetitious sexually predatory acts committed by the Respondent upon young children outlined in all three psychological evaluations received into evidence during hearing.

[¶ 19] In North Dakota, before an individual may be involuntarily committed as a sexually dangerous predator, the district court must find the individual has: (1) engaged in sexually predatory conduct; (2) has been diagnosed with a personality, sexual, or mental disorder that (3) makes the individual “likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.” N.D.C.C. § 25-03.3-01(8). We have explained that the phrase “likely to engage in further acts of sexually predatory conduct” means the individual has demonstrated he has a “propensity towards sexual violence [ ] of such a degree as to pose a threat to others.” Matter of G.R.H., 2006 ND 56, ¶ 16, 711 N.W.2d 587. “Sexually predatory conduct” is defined in N.D.C.C. § 25-03.3-01(9). In addition to meeting the commitment requirements provided in the plain language of our involuntary commitment statute, this Court must be mindful of the substantive due process requirements addressed by the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002).

[¶ 20] In Crane, the United States Supreme Court provided that in order to satisfy substantive due process requirements, the individual to be committed must have been shown to have serious difficulty in controlling his behavior. 534 U.S. at 413, 122 S.Ct. 867; see also G.R.H., at ¶ 18. Without such a requirement, sexually dangerous predator commitments make it impossible “to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or' disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” Crane, at 413, 122 S.Ct. 867 (citing Kansas v. Hendricks, 521 U.S. 346, 357-58, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Foucha v. Louisiana, 504 U.S. 71, 82-83, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)). The distinction between a sexually dangerous predator and the “dangerous but typical recidivist” prevents courts from using this civil proceeding as a mechanism for general deterrence, which is “more properly dealt with exclusively through criminal proceedings.” Crane, at 412, 122 S.Ct. 867 Thus, reading our commitment statute in conjunction with the substantive due process requirements announced in Crane requires clear and convincing evidence demonstrating the individual to be committed has:

(1) [engaged in] prior sexually predatory conduct; (2)[ ] some type of congenital or acquired condition manifested by a personality, sexual, or mental disorder; (3) [such] that the condition makes the individual “likely to engage in further acts of sexually predatory conduct” meaning the individual’s propensity towards sexual violence is of such a degree as to pose a threat to others; and (4) ... serious difficulty controlling [his] behavior.

Anderson, 2007 ND 50, ¶ 47, 730 N.W.2d 570; see also Crane, at 413, 122 S.Ct. 867; G.R.H., at ¶ 18.

[¶21] These four requirements must be met to ensure that involuntary civil commitments do not serve as cleverly disguised mechanisms for general deterrence, which subject the dangerous, but typical, recidivist to unconstitutional, long-term deprivations of liberty through involuntary civil commitment proceedings after they have paid their criminal dues. Crane, 534 U.S. at 412, 122 S.Ct. 867 (quoting Hendricks, 521 U.S. at 360, 372-73, 117 S.Ct. 2072) (underscoring “the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment ‘from other dangerous persons’ ” and warning that civil commitment should not become a “mechanism for retribution or general deterrence”).

[¶ 22] In the present case, the record fails to show Midgett meets all of the four criteria discussed' above. Midgett may well be a recidivist, but the record does not support a finding that Midgett is a sexually dangerous predator; the conduct relied upon to assess the appropriateness of Midgett’s commitment as a sexually dangerous individual does not satisfy the substantive due process requirements addressed in Crane.

[¶ 23] The State presented expert testimony from three clinical psychologists. Two of the State’s psychologists testified about the evaluations they conducted to determine whether Midgett had some type of mental condition, Midgett’s likeliness to engage in further acts of sexually predatory conduct such that he posed a threat to others, his ability, or lack thereof, to control his behavior, and their recommendation to commit Midgett. In addition to Midgett’s prior sexual offense, adjudicated in 1996, and committed when Midgett was thirteen years old, all three psychologists relied upon three subsequent alleged acts during the evaluation process. Only the act alleged to have occurred at the motel involving a ten-year-old boy would meet the definition of sexually predatory conduct. One of the alleged acts of sexually dangerous behavior occurred in February 2005, when a supervisor alleged Midgett “watch[ed] a little boy very intently” at a shopping mall. The psychologists also relied upon the allegation that in December 2005, Midgett went into the kitchen area of Northlands Rescue Mission without permission and stared at young volunteers. These two allegations of watching and staring were weighed in the psychologists’ evaluative reports, which ultimately determined Midgett was a pedophile and was likely to engage in further acts of sexually predatory behavior.

[¶ 24] On direct examination during the commitment hearing, the State’s first witness, Dr. Belanger, testified that he relied upon the incident of “staring” at the mall to determine that Midgett was pedophile, making him sexually dangerous when coupled with his anti-social personality disorder, and was thus likely to re-offend:

Q. And which of these items did you use to sustain that [pedophilia] diagnosis?
A. The first items that I used was (sic) the existence of the earlier history of child sexual abuse. Granted, Mr. Mid-gett was 13 at the time. I’m still significantly unclear. As one who looks at potentially, it’s indicative of what will then be diagnosable after he passes the age of 16 which is pedophilia. There’s then in North Dakota enough evidence that he’s charged with GSI against a ten year old boy. Then he’s observed by one of his supervising agents to be, I think, the most neutral description of this is starring (sic) intently at the buttocks of young boys in the mall.

Later in re-direct examination, Dr. Belan-ger testified these alleged incidents had the effect of raising Midgett’s score or likelihood of recidivism in the diagnostic tools employed by the psychologists:

Q. The other question, I think, Mr. Morley was going to address and maybe addressed. Mr. Midgett when you take a look at the offenses, the only convictions are as a juvenile; is that correct.
A. Yes.
Q. But did he also have difficulties as an adult following release from the Texas Youth Center or Youth Correctional Center?
A. Yes, he did.
Q. And what difficulties did he have?
A.He was in the mall where he wasn’t supposed to be. He had difficulties in that. There was the definite observed visualization between him and the boy. He disputes sexually. The witness says it differently. Looked like it to the witness.

Based in part upon Midgett’s “intent watching” or “visualization,” Dr. Belanger concluded Midgett had a propensity for recidivism based on the sexually predatory conduct on the basis of the sexual and personality disorder.

[¶ 25] The State’s second witness, Dr. Sullivan, gave similar direct and cross-examination testimony, stating these incidents of staring affected her evaluations for both Midgett’s disorder and his likelihood to re-offend. Dr. Sullivan also apparently considered Midgett’s employment at a carnival in making her determinations, although no allegations of sexually predatory conduct arose out of his employment with the carnival.

[¶ 26] Based on this testimony, the determination that Midgett was likely to engage in future sexually predatory conduct, was influenced by the allegations that Mid-gett “intently watched” children at a mall and “stared” at student volunteers at a rescue mission. All of the psychologists also testified that Midgett’s diagnosis as a pedophile relied on these allegations. This evidence is so tenuous, so questionable in nature because it is completely subject to the observer’s interpretation, that it violates the substantive due process rights announced in Crane. The mere accusation that an individual has looked at other people simply should not be weighed as evidence that indicates an individual is “likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others” such that the individual’s propensity towards sexual violence is of such a degree as to pose a threat to others as required under N.D.C.C. § 25-03.3-01(8). Nor do these accusations rise to the level of conduct that would demonstrate an individual has serious difficulty controlling his behavior as required by the United States Supreme Court’s holding in Crane. Since the psychologists relied upon acts of watching or staring at children in public places to establish both the diagnosis and the likelihood of re-offending, it is impossible to know what their testimony would be in the absence of those considerations.

Ill

[¶ 27] The record further demonstrates the district court erroneously applied the definition of “sexually predatory conduct” as defined by N.D.C.C. § 25-03.3-01(9). Under N.D.C.C. § 25-03.3-01(9), the expert testimony provided and the conclusions drawn from this testimony in the district court’s memorandum decision and order are problematic. The allegation that an individual intently watches children in a shopping mall or young people in a rescue mission, or working in an employment setting where children may be present, such as a carnival, is not sexually predatory conduct as defined by N.D.C.C. § 25-03.3-01(9). The district court also erroneously used Midgett’s failure to register as a sex offender and failure to successfully complete a sex offender treatment program to consider whether he met the four criteria for commitment under chapter 25-03.3, N.D.C.C. Section 25-03.3-01(9), N.D.C.C., defines “sexually predatory conduct” as:

a. Engaging or attempting to engage in a sexual act or sexual contact with another individual, or causing or attempting to cause another individual to engage in a sexual act or sexual contact, if:
(1) The victim is compelled to submit by force or by threat of imminent death, serious bodily injury, or kidnapping directed toward the victim or any human being, or the victim is compelled to submit by any threat that would render an individual of reasonable firmness incapable of resisting;
(2) The victim’s power to appraise or control the victim’s conduct has been substantially impaired by the administration or employment, without the victim’s knowledge, of intoxicants or other means for purposes of preventing resistance;
(3) The actor knows or should have known that the victim is unaware that a sexual act is being committed upon the victim;
(4) The victim is less than fifteen years old;
(5) The actor knows or should have known that the victim has a disability that substantially impairs the victim’s understanding of the nature of the sexual act or contact;
(6) The victim is in official custody or detained in a treatment facility, health care facility, correctional facility, or other institution and is under the supervisory authority, disciplinary control, or care of the actor; or
(7) The victim is a minor and the actor is an adult; or
b. Engaging in or attempting to engage in sexual contact with another individual or causing or attempting to cause another individual to have sexual contact, if:
(1) The actor knows or should have known that the contact is offensive to the victim; or
(2) The victim is a minor, fifteen years of age or older, and the actor is the minor’s parent, guardian, or is otherwise responsible for general supervision of the victim’s welfare.

[¶ 28] The majority does not point to, nor does there exist, any provision in this chapter that defines “sexually predatory conduct” in such a manner that would tolerate deeming Midgett’s “watching” a form of sexually dangerous conduct. The district court erroneously concluded “watching” or “staring” could be defined as “repetitious sexually predatory acts.” Thus, the district court clearly erred in applying N.D.C.C. § 25-08.8-01(9) to these allegations.

[¶29] Further, there is no statutory provision that would deem failure to register as a sex offender or failure to successfully complete sex offender treatment as sexually predatory conduct. N.D.C.C. § 25-03.3-01(9) (providing specific types of conduct that constitute “sexually predatory conduct”). Contra In re M.D., 1999 ND 160, 598 N.W.2d 799 (considering failure to register as a sex offender and failure to complete sex offender treatment in determining an individual’s likelihood to re-offend, but decided before Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002)). Charges or convictions for failure to register and failure to complete treatment would be significant considerations if the statutory basis of showing sexually predatory conduct is otherwise met. The district court referenced all of these forms of conduct in determining whether Midgett had engaged in prior sexually predatory conduct, whether he had a propensity towards sexual violence of such a degree as to pose a threat to others, and whether he had serious difficulty controlling his behavior. As a result, the district court erred in its application of the law and its ultimate determination that Mid-gett was a suitable individual for commitment.

[¶ 30] The district court properly considered Midgett’s 1996 conviction and the allegations that he inappropriately touched a young boy in a swimming pool. This conduct falls within the definition of sexually predatory conduct as provided in N.D.C.C. § 25-03.3-01(9). But the district court’s reliance on evaluations which determined Midgett posed a threat to others because he allegedly watched children at a shopping mall and stared at students at a rescue mission was error. This is not the type of conduct contemplated by N.D.C.C. § 25-03.3-01(9).

[¶ 31] Therefore, I dissent and would reverse the order committing Midgett as a sexually dangerous individual.

[¶ 32] CAROL RONNING KAPSNER


author: MARING, Justice.

text:
    2007 ND 193
    STATE of North Dakota, Plaintiff and Appellee v. James Peter SABO, Defendant and Appellant.
    No. 20070090.
    Supreme Court of North Dakota.
    Dec. 13, 2007.

      Reid Alan Brady, Assistant State’s Attorney, Fargo, N.D., for plaintiff and ap-pellee.
    Craig E. Johnson, Johnson, Ramstad & Mottinger, P.L.L.P., Fargo, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] James Peter Sabo appeals from a criminal judgment entered after a jury found him guilty of altering an odometer in violation of N.D.C.C. § 39-21-51. Sabo argues the district court erred in denying his motion for judgment of acquittal, the evidence is insufficient to support a conviction, and his right to a fair trial was unduly prejudiced by the State’s closing rebuttal argument. We conclude there is sufficient evidence to support Sabo’s conviction, and the State’s closing rebuttal argument was not improper. We affirm.

I

[¶ 2] Through his company, Superior Enterprises, Sabo buys salvage vehicles, then repairs and sells them. In the summer of 2005, Sabo purchased a salvaged, four-door, 2004 Honda Civic from Copart, an Internet salvage auction company, for $2,020. Sabo testified the vehicle was not operational when it was delivered. Sabo employs Bill Smith, an auto technician, to repair the salvage vehicles, and Smith completed some of the repairs on the Honda.

[¶ 3] During the trial, Sabo’s long-time friend and former employee, Michael Morton, testified he saw the Honda sitting outside Sabo’s shop and asked Smith if it was for sale. Morton talked to Smith about the vehicle, and Smith testified he told Morton the vehicle was in good shape but it was not running because it still needed some repairs, including a battery. Morton testified he contacted Sabo about purchasing the vehicle and they agreed Morton would buy the Honda for $14,500. Morton and Sabo testified the vehicle was not operational and they did not know the mileage on the vehicle when they agreed to the sale, but Morton testified he did not think the car could have many miles on it because the engine was clean and looked brand new.

[¶ 4] Morton testified he has keys to Sabo’s shop, and after he purchased the Honda, he made repairs to it in Sabo’s shop without Sabo’s permission. Morton testified the Honda’s instrument cluster, which contains the speedometer, tachometer, warning and indicator lights, a digital odometer, and other gauges, had a crack in the lens. Morton testified he contacted Corwin Honda, a local Honda dealership, for advice on how to fix the cracked lens. Morton testified the Corwin Honda mechanics told him the instrument cluster was just a display and it could be replaced with another instrument cluster without changing the mileage shown. Morton testified he replaced the instrument cluster with one from another Honda Civic that Sabo owned. Morton testified he did not know how many miles were on either Honda Civic when he switched the instrument clusters. Sabo testified that he did not know Morton had replaced the instrument cluster, and he did not give him permission to replace it.

[¶ 5] At trial, Scott Miller, a Corwin Honda mechanic, testified that, in a 2004 Honda Civic, a central processing unit within the instrument cluster retains the mileage for the vehicle, and changing the instrument cluster would change the mileage shown on the odometer. Miller testified it would be easier to replace a cracked lens on an instrument cluster than to replace the whole instrument cluster, because, if the whole instrument cluster is replaced, the central processing unit would have to be replaced and the mileage discrepancy has to be fixed by either placing a sticker on the door noting the mileage at the time of the repair or programming the correct mileage into the new central processing unit. He also testified that in his experience working for a dealership, a mechanic would not replace the whole instrument cluster if the only problem was a cracked lens.

[¶ 6] Morton testified he also completed several other repairs on the vehicle, including replacing a seatbelt and several light bulbs. Once the other repairs were completed, Morton testified he installed a battery and took the repaired vehicle to Sabo’s residence so it could be inspected by the North Dakota Highway Patrol and the sale could be completed.

[¶ 7] On September 6, 2006, North Dakota Highway Patrol Officer Robert Ar-man inspected the Honda at Sabo’s residence to determine whether the salvaged vehicle was roadworthy. Arman testified that a salvaged vehicle must be inspected before it can be sold, and he has performed over 600 vehicle inspections. Ar-man testified that it is not part of the Highway Patrol’s routine procedure to check a vehicle’s mileage, but he has always checked mileage because of his prior training and experience. Sabo testified he has never had an inspector check the mileage on a salvage vehicle prior to this inspection. During the inspection, Arman asked Sabo how many miles were on the vehicle, and Sabo said there were 4,983 miles. Arman verified that the odometer showed the vehicle had 4,983 miles on it. Arman then inspected the vehicle’s title and noted the title indicated the vehicle had 26,124 miles on it when Sabo purchased it from Copart. Arman testified Sabo had not filled out the section on the title to indicate a mileage discrepancy. Sabo testified that, with other vehicles, he has not indicated whether there is a mileage discrepancy on the title until after the inspection. Arman informed Sabo there was a discrepancy with the mileage and he would not issue a certificate of inspection for the Honda. Sabo testified he contacted Smith during the inspection, and Smith said he did not replace the odometer when he was working on the vehicle.

[¶ 8] After the inspection, Arman contacted North Dakota Highway Patrol Officer Tonya Sprecher, the Highway Patrol’s odometer fraud expert, and asked her to investigate the vehicle. He testified he notified Sabo that he would come back the next day with Sprecher to continue the investigation. During this conversation, Sabo told Arman that he was trying to sell the vehicle and the buyer was worried about the issues with the inspection, but he did not disclose the name of the buyer to Arman.

[¶ 9] On September 7, 2006, Sprecher and Arman went to Sabo’s residence to further investigate the vehicle. Arman informed Sabo there was a possibility of odometer fraud. Sabo informed the officers that Copart had a picture of the odometer. Arman testified Sabo asserted there were only 4,983 miles on the vehicle, and Sabo claimed Copart probably made a mistake by writing the wrong mileage on the certificate of title because Copart hires people for eight dollars an hour. Sprecher testified Sabo claimed there was probably a clerical error on the mileage portion of the title, and the mileage recorded was probably from a reading of the trip odometer with the decimal point in the wrong place. Sprecher inspected the odometer to check the feasibility of Sabo’s claim and found the odometer read “trip A” and “trip B” when the trip mode of the odometer was displayed. Arman testified he asked Sabo the name of the buyer, but Sabo did not answer. Sprecher contacted Copart and they sent her a picture of the Honda’s odometer showing the vehicle had 26,124 miles when it was sold to Sabo.

[¶ 10] On September 11, 2006, Sprecher seized the Honda to complete a more thorough investigation. Sabo told Sprecher the buyer knew about the mileage discrepancy and did not care because the odometer would eventually read 26,000 miles. Sabo did not disclose the identity of the buyer.

[¶ 11] Smith testified that about a week after the inspection, he found a cracked instrument cluster in Sabo’s shop. Sabo testified he tested the cracked instrument cluster and found it had 26,124 miles on it, and he concluded Morton must have switched the two odometers.

[¶ 12] Todd Vetsch, general manager for Lunde Auto Center, testified at trial that mileage is a factor in deciding the value of a vehicle, and in general, for every 10,000 miles on a vehicle the value decreases by $1,000.

[¶ 13] At the close of the State’s case, the district court denied Sabo’s motion for judgment of acquittal. Sabo renewed his motion for judgment of acquittal at the close of the evidence portion of the trial, and the court also denied that motion. The jury found Sabo guilty.

II

[¶ 14] Sabo argues there is insufficient evidence to support his conviction and the district court erred in denying his motion for judgment of acquittal.

[¶ 15] Under N.D.R.Crim.P. 29, a court must order entry of judgment of acquittal after the prosecution closes its evidence or after the close of all evidence if the evidence is insufficient to sustain a conviction. Our standard of review for challenges to sufficiency of the evidence is well established:

In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Moreover, a jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.

State v. Bertram, 2006 ND 10, ¶ 5, 708 N.W.2d 913 (quoting State v. Noorlun, 2005 ND 189, ¶20, 705 N.W.2d 819) (citations omitted).

[¶ 16] Under N.D.C.C. § 39-21-51, it is illegal to alter a motor vehicle odometer for the purpose of deceiving another:

A person may not willfully, as defined in section 12.1-02-02, alter a motor vehicle odometer or other mileage recorder, ... or offer for sale or sell a motor vehicle knowing the odometer or other mileage recorder has been altered, for the purpose of deceiving another.

In this case, the jury specifically found Sabo guilty of offering for sale a motor vehicle knowing the odometer has been altered.

[¶ 17] Sabo does not dispute that he offered to sell a vehicle with an altered odometer, instead he claims he did not have the required intent to be convicted of the offense because he did not know the odometer had been altered and he did not intend to deceive anyone. There was evidence presented that supports his claim. Morton testified he agreed to buy the Honda, he changed the odometer without asking Sabo’s permission before making the repair, and he did not care about the mileage discrepancy. Sabo testified he did not make any repairs on the car himself, he did not know the odometer had been changed, the buyer was aware of the discrepancy, and he would have indicated there was a mileage discrepancy on the title before the sale was complete. This evidence, if believed, could have lead to a not guilty verdict, however, there was also conflicting evidence and the jury was not required to believe Morton’s and Sabo’s testimony.

[¶ 18] On appeal, we do not weigh conflicting evidence or judge the credibility of the witnesses. Bertram, 2006 ND 10, ¶5, 708 N.W.2d 913. “[W]e assume the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.” State v. Goebel, 2007 ND 4, ¶ 32, 725 N.W.2d 578.

[¶ 19] Evidence was presented to the jury that supported an inference Sabo knew the odometer had been altered. When Sabo purchased the vehicle it had 26,124 miles on it, but when the vehicle was inspected, it had 4,983 miles on it. The vehicle’s odometer was altered while Sabo owned it, and it is a reasonable inference that Sabo knew the mileage on the vehicle. Vetsch testified the mileage on a vehicle affects its value, and there is a reasonable inference that Sabo would not agree to sell the vehicle without knowledge of the mileage. Viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably drawn in its favor, there was sufficient evidence from which the jury could infer Sabo had knowledge of the alteration of the mileage.

[¶ 20] Sabo also claims there is not evidence that the vehicle was offered for sale with the intent to deceive another, because his buyer knew about the altered odometer and did not care. Viewing the evidence in the light most favorable to the verdict, however, there was sufficient evidence to infer Sabo had an intent to deceive. Arman testified Sabo told him during the inspection the car had 4,983 miles, Sabo continued to assert the car had only 4,983 miles even after learning there was a discrepancy with the mileage on the title, and Sabo alleged the company he bought the car from made a mistake on the title. Sprecher gave similar testimony. She also testified that Sabo changed his story, first claiming there was an error on the title, and then claiming the buyer knew about the discrepancy but did not care. There was evidence Sabo knew it was not standard procedure for an inspector to check the mileage when inspecting a vehicle, he did not indicate on the title that there was a mileage discrepancy before the vehicle was inspected, his explanation for the discrepancy changed many times, he did not disclose the name of the buyer when Ar-man and Sprecher were investigating, and Sabo could sell the car for a higher amount if the mileage was lower. A defendant’s conduct may be considered as circumstantial evidence of the required criminal intent. State v. Olson, 552 N.W.2d 362, 364 (N.D.1996). The evidence of Sabo’s intent is circumstantial, but circumstantial evidence is often the only way to prove criminal intent, and a verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. State v. Stensaker, 2007 ND 6, ¶21, 725 N.W.2d 883. There was sufficient evidence from which the jury could infer Sabo had an intent to deceive.

[¶ 21] The jury judged the credibility of the witnesses, weighed the evidence, and found Sabo guilty. When the evidence and all reasonable inferences are viewed in a light most favorable to the verdict, we conclude there is sufficient evidence to support the verdict.

Ill

[¶ 22] Sabo argues the State’s closing rebuttal argument was improper because it was not limited to responding to the matters raised in his closing argument. He claims the State went well beyond rebutting his argument because the State attacked the credibility of witnesses and evidence, attacked his character, and argued Sabo had the burden of proof. He claims the State reserved its argument for rebuttal, and he was unduly prejudiced because he was not afforded an opportunity to respond.

[¶ 23] Under N.D.R.Crim.P. 29.1, the prosecution gives its closing argument first, the defense gives its closing argument next, and then the prosecution is entitled to reply in rebuttal. The prosecution’s rebuttal is limited by the defendant’s closing argument, and the prosecution may only address the issues raised in the defendant’s closing argument. See United States v. Sarmiento, 744 F.2d 755, 765 (11th Cir.1984).

[¶ 24] The district court has discretion to control the scope of the closing argument, and we will not reverse unless there is a clear abuse of discretion. State v. Clark, 2004 ND 85, ¶ 7, 678 N.W.2d 765. Unless the error is fundamental, the defendant must show the State’s comments during argument were improper and prejudicial. State v. Skorick, 2002 ND 190, ¶ 11, 653 N.W.2d 698. “To be prejudicial, improper closing argument must have stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence.” Clark, at ¶ 7. “Error is unfairly prejudicial only if it causes substantial injury to the defendant such that a different decision would have resulted absent the error.” State v. Ebach, 1999 ND 5, ¶ 5, 589 N.W.2d 566.

[1125] During Sabo’s closing argument, his attorney claimed the evidence did not support a conviction and the State did not meet its burden of proof. Relying on Sabo’s and Morton’s testimony and their explanation of how the mileage discrepancy occurred, Sabo’s attorney claimed Sabo did not have the knowledge required to be convicted of altering an odometer because Sabo did not make the repairs on the vehicle, had not been in the vehicle before the inspection, and did not know the odometer had been replaced.

[¶ 26] In response to Sabo’s closing argument, the State’s rebuttal focused on the evidence relating to Sabo’s knowledge that the odometer had been altered and whether he had an intent to deceive. The State called Sabo’s stories amazing and questioned whether the stories were reliable and believable. The State’s argument included attacking Morton’s and Sabo’s credibility:

The Defendant’s current story is that he didn’t know what the mileage was. His friend, Michael Morton, had switched the instrument clusters without his knowledge and he didn’t know the mileage of the Honda. I ask you, who would sell a vehicle without knowing the mileage? Further than that, who would sell a vehicle, again he says for $14,500, without even inspecting the vehicle? He said that he never even looked at that— inspected the vehicle.
What goes hand in hand with that? What about Mr. Morton? You recall his testimony, he just switched the instrument clusters, didn’t know how many miles were in the old — the replacement vehicle or in the new one. He agreed to pay $14,500 for that vehicle. He said he had no clue as to the number of miles. He said that he thought it was low because the engine looked nice or clean.
Failure to provide the buyer’s name. The Defendant never gave two (sic) law enforcement the name of his alleged buyer. He came to Court yesterday with Mr. Morton. Mr. Morton executed an affidavit on his behalf, and Mr. Morton conceded that that was executed at the end of January of this year, approximately 4½ months after Mr. Morton himself learned of this situation. The Defendant had multiple opportunities, multiple contacts with law enforcement.
The day of the inspection, the day after the inspection, phone calls from the troopers, the day that Trooper Sprecher came and seized the vehicle. Multiple times. During none of those times did he identify the name of the buyer. He referred to the buyer. Trooper Arman indicated that he had asked for the buyer, but the Defendant never provided the name of the buyer.
I sort of touched on this with the last one. The delay of Michael Morton coming forward, again it was 4½ months from the time that he learned about the vehicle that he was allegedly going to buy, that he allegedly switched the instrument cluster out of, to the time that he came forward by executing an affidavit. Never contacted law enforcement. This was his long time friend of 10-11 years, that had been charged with a crime whose vehicle had been seized.
And finally, we will look at the Defendant and his buyer, or alleged buyers, prior convictions. Mr. Morton himself had multiple convictions for possession of stolen property, burglary, and sale of stolen property. The Defendant himself had a prior conviction from 2003 for Attempting to Deface a Vehicle Identification Number. If you recall, he conceded that, that crime he admitted guilt to required fraudulent intent. He had a story for that too, you’ll probably recall.

[¶27] The State’s rebuttal argument was limited to questioning the plausibility of Sabo’s explanation of how the discrepancy occurred, and answering Sabo’s claim that the State failed to meet its burden of proving each element of the offense. The State’s argument attacking Sabo’s and Morton’s credibility was made in response to Sabo’s reliance on their testimony as proof that the State had not met its burden of proof. Although the State commented on Morton’s failure to contact law enforcement and Sabo’s changing explanations, the State did not argue Sabo had the burden to prove his innocence. Rather, the State’s rebuttal was limited to addressing the issues Sabo raised in his closing argument and was a fair and reasonable criticism of the evidence. We conclude the State’s closing rebuttal argument was not improper and not prejudicial.

IV

[¶ 28] We conclude there is sufficient evidence to sustain Sabo’s conviction, and the State’s closing rebuttal argument was not improper. We affirm the criminal judgment.

[¶ 29] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: SANDSTROM, Justice.

text:
    2007 ND 196
    Timothy CHRISTIAN, Plaintiff and Appellant v. Diane CHRISTIAN, Defendant and Appellee.
    No. 20070053.
    Supreme Court of North Dakota.
    Dec. 13, 2007.

      David R. Bliss, David R. Bliss, P.C., Bismarck, N.D., for plaintiff and appellant.
    Sherry Mills Moore, Bismarck, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Timothy Christian appeals from a judgment granting him a divorce from Diane Christian, distributing the marital property in accordance with their settlement agreement, awarding Diane Christian $1,200 per month in permanent spousal support, and awarding her $5,000 in attorney fees. Timothy Christian also appeals from an order denying his motion to amend and make additional findings, his motion for a new trial, and his motion for relief from the judgment. We conclude the district court’s award of spousal support is not clearly erroneous and the court did not abuse its discretion in awarding Diane Christian her attorney fees or in denying Timothy Christian’s post-trial motions. We affirm.

I

[¶ 2] The parties were married in 1984. Timothy Christian had attended aviation school at the University of North Dakota but did not graduate. He met Diane Christian while working as a pilot with a cloud seeding service in Bowman. Diane Christian had attended one semester of college, but quit school to farm with her father and was working as a waitress in Bowman at the time. After they married, the parties lived in numerous locations in the United States and abroad while Timothy Christian worked as a pilot. Diane Christian was not employed during the early part of the marriage because of the brief durations of their residencies in the various localities. When Timothy Christian obtained his commercial pilot license, Diane Christian began working as a waitress and bartender. The parties’ daughter was born in 1992 while they were living in Alaska. Diane Christian quit working, and she and the child moved back to North Dakota, where they lived with her mother while Timothy Christian attempted to find employment closer to the family. The parties eventually bought a home in Glen Ul-lin, which allowed Timothy Christian to commute to his employment as a commercial airline pilot. As the parties agreed, Diane Christian remained unemployed to devote her time to caring for the child.

[¶ 3] After the parties separated in August 2004, Timothy Christian moved to a Chicago, Illinois, suburb. He currently works as a commercial airline pilot for American Airlines. Diane Christian stayed in Glen Ullin with the child and began working at a nursing home and as a teacher’s aide at school. She eventually obtained full-time employment as an interactive television facilitator and special education aide at the school and helps care for a neighbor’s disabled child. Timothy Christian brought this divorce action in April 2005. In October 2006, the parties entered into a settlement agreement resolving custody, child support, property division, and debt allocation. Under the agreement, she received custody of the child, and he was obligated to pay $1,071 per month in child support. Regarding the marital property, he received $684,822 of the parties’ financial assets, and she received $10,000, the marital home, and real property located in southwestern North Dakota. He also agreed to transfer $246,000 from one of his investment accounts to her. The parties agreed that “this division of marital assets and debts is a just and equitable division of those assets and debts which were acquired during the marriage.” The parties were unable to reach an agreement on spousal support. The district court adopted the settlement agreement and tried the issue of spousal support. Following a hearing, the district court ordered that Timothy Christian pay Diane Christian permanent spousal support of $1,200 per month and pay $5,000 of her attorney fees.

[¶ 4] After judgment was entered, Timothy Christian moved to amend and make additional findings, for a new trial, and for relief from the judgment. He alleged that Diane Christian failed to disclose that she had a remainder interest in her mother’s real property and the value of that property exceeded $250,000. He also claimed the property that was disclosed in the settlement agreement and awarded to her was undervalued by more than $100,000. The district court denied the motions.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Although Timothy Christian has attempted to appeal from the nonappealable findings, conclusions, and order of the district court, because there is a subsequently entered consistent judgment, we consider the appeal to be from the subsequently entered consistent final judgment. Dvorak v. Dvorak, 2007 ND 79, ¶ 7, 732 N.W.2d 698. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] Timothy Christian argues the district court committed reversible error in awarding Diane Christian $1,200 per month for permanent spousal support.

[¶ 7] Under N.D.C.C. § 14-05-24.1, a district court in a divorce case “may require one party to pay spousal support to the other party for any period of time.” The decision whether to award spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Lorenz v. Lorenz, 2007 ND 49, ¶ 31, 729 N.W.2d 692. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after a review of the entire record, we are left with a definite and firm conviction a mistake has been made. Rothberg v. Rothberg, 2007 ND 24, ¶ 7, 727 N.W.2d 771. We will not reverse a district court’s spousal support award merely because we may have viewed the evidence differently. Wagner v. Wagner, 2007 ND 33, ¶ 5, 728 N.W.2d 318.

[¶ 8] In deciding whether to award spousal support, the district court must consider the relevant factors under the Ruff-Fischer guidelines. Lorenz, 2007 ND 49, ¶31, 729 N.W.2d 692. Factors to consider under the guidelines include:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Ingebretson v. Ingebretson, 2005 ND 41, ¶ 7, 693 N.W.2d 1 (quoting Staley v. Staley, 2004 ND 195, ¶8, 688 N.W.2d 182). The district court is not required to make specific findings on each factor, but we must be able to understand the rationale for the court’s decision. Wagner, 2007 ND 33, ¶ 6, 728 N.W.2d 318. A majority of the Court has held that a separate finding that a spouse is “disadvantaged” is not necessary to award spousal support. Lorenz, at ¶ 31.

[¶ 9] In Wagner, 2007 ND 33, ¶ 8, 728 N.W.2d 318, this Court said:

Permanent spousal support is appropriate “when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.” Staley [v. Staley], 2004 ND 195, ¶ 16, 688 N.W.2d 182. “[Pjermanent spousal support is awarded to provide traditional maintenance for a spouse incapable of adequate rehabilitation or self-support.” Greenwood v. Greenwood, 1999 ND 126, ¶ 9, 596 N.W.2d 317. “Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing a disadvantaged spouse an opportunity to acquire an education, training, work skills, or experience to become self-supporting.” Id. (citations omitted).

[¶ 10] In awarding Diane Christian $1,200 per month for permanent spousal support, the district court considered and made findings on the Ruff-Fischer factors. At the time of trial, Timothy Christian was 47 years old, and Diane Christian was 48 years old. Timothy Christian earned approximately $107,000 per year, and Diane Christian earned approximately $25,000 per year. The court found Diane Christian’s earning ability was limited by her age, her lack of education, her health problems, which limited her ability to do strenuous work, her long absence from the work force, her “reasonable]” wish to remain in Glen Ullin until their child graduates from high school, and her lack of income if she were to pursue further education or training. The court considered their long-term marriage of more than 20 years. The court noted the parties’ decision to enhance Timothy Christian’s earning ability required frequent moves and prevented Diane Christian from maintaining significant employment or pursuing educational opportunities during the marriage. The court noted she has an enlarged heart that causes blood clots and requires regular medical care and medication. The court found that she would never approach his income-producing ability even if she returned to school. Considering the terms of the marital property settlement, the court found Timothy Christian also had the financial ability to pay her $1,200 per month in permanent spousal support while still maintaining his standard of living in the Chicago area. The court noted that the parties’ incomes would be comparable, but after the child support obligation terminated, his income would be approximately twice as much as hers. We cannot say the district court’s findings on any of the Ruff-Fischer factors are clearly erroneous.

[¶ 11] Timothy Christian argues the district court inappropriately attempted to equalize the incomes between the parties “when it should have adjusted the property division or awarded rehabilitative spousal support.” Although equalization of income between divorcing spouses is not a goal or measure of spousal support, it is a factor that can be considered. E.g., Christianson v. Christianson, 2003 ND 186, ¶20, 671 N.W.2d 801; Sommers v. Sommers, 2003 ND 77, ¶ 17, 660 N.W.2d 586. However, equalization of income is not the basis of the district court’s decision in this case. There is evidence in the record that, including the $1,200 per month in spousal support, Diane Christian and the child will have a monthly cash flow of $3,688 while Timothy Christian will have a monthly cash flow of $4,190. After the child graduates from high school and the child support obligation terminates, she will have a monthly cash flow of $2,617, and he will have a monthly cash flow of $5,261. This scenario does not result in an equalization of incomes.

[¶ 12] Timothy Christian argues permanent spousal support may be appropriate “only” in those cases in which a substantial disparity between spouses’ incomes cannot be readily adjusted by property division or rehabilitative support.

[¶ 13] Each spousal support determination is fact specific. See Donlin v. Donlin, 2007 ND 5, ¶ 16, 725 N.W.2d 905. The parties in this case reached an agreement on distribution of their marital property, which was adopted .by the district court, and left the issue of spousal support for the court’s determination. This Court has said, “to the extent that competent parties have voluntarily stipulated to a particular disposition of their marital property, a court ordinarily should not decree a distribution of property that is inconsistent with the parties’ contract.” Wolfe v. Wolfe, 391 N.W.2d 617, 619 (N.D.1986); see also Laude v. Laude, 1999 ND 203, ¶ 7, 600 N.W.2d 848. Indeed, when the parties to a divorce have reached an agreement on all matters pertaining to division of their property, there is no reason for the district court to hear evidence of the value of marital property. Fleck v. Fleck, 337 N.W.2d 786, 791 (N.D.1983). Under Timothy Christian’s interpretation of spousal support principles, it would be impossible for parties to agree to a marital property division and leave the issue of spousal support for the district court’s determination. This is not the law. See, e.g., Laude, at ¶¶ 4, 5, 15, 16 (affirming permanent spousal support award after parties had stipulated to division of marital property).

[¶ 14] The district court considered the appropriate factors in making its spousal support determination. We conclude the court’s decision to award Diane Christian $1,200 per month in permanent spousal support is not clearly erroneous.

Ill

[¶ 15] Timothy Christian argues the district court erred in ordering him to pay $5,000 of Diane Christian’s attorney fees.

[¶ 16] Under N.D.C.C. § 14-05-23, a district court in divorce proceedings has discretion to award attorney fees based on one spouse’s need and the other’s ability to pay, and the court’s decision on the matter will not be reversed on appeal unless the court abused its discretion. Jelsing v. Peterson, 2007 ND 41, ¶ 22, 729 N.W.2d 157. A district court abuses its discretion if it misinterprets or misapplies the law. Bertsch v. Bertsch, 2006 ND 31, ¶ 8, 710 N.W.2d 113. The framework for considering an award of attorney fees under N.D.C.C. § 14-05-23 is summarized in Reiser v. Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348 (citations omitted):

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

[¶ 17] Timothy Christian argues the district court erred in awarding Diane Christian attorney fees because the reasons given by the court were insufficient to support an award. In awarding attorney fees, the district court stated:

Tim will pay $5,000 of Diane’s attorney’s fees because he initiated the divorce. Other than a statement by Tim at the trial, the Court finds no evidence of delay by Diane, nor that her demand for spousal support was unreasonable and prevented agreement by the parties on any issue other than the issue of spousal support itself. Tim will make the payment of attorney’s fees directly to Diane’s counsel within ninety days of the entry of judgment, unless otherwise agreed.

[¶ 18] Although the district court mentioned only that Timothy Christian initiated the divorce action and Diane Christian did not unreasonably delay the proceedings, these comments are contained in a single paragraph at the end of a seven-page opinion. The remainder of the court’s decision contains numerous findings relating to the disparity in the parties’ earning capacities, Timothy Christian’s ability to pay, and Diane Christian’s needs and lessened ability to pay. The district court’s failure to restate these findings in its paragraph addressing attorney fees does not render the attorney fee ruling an abuse of discretion.

[¶ 19] Timothy Christian also argues there is no support in the record for the award of attorney fees, because Diane Christian failed to accompany her request with an affidavit documenting the work performed. Relying on Gibb v. Sepe, 2004 ND 227, 690 N.W.2d 230, and Jorgenson v. Ratajczak, 1999 ND 65, 592 N.W.2d 527, he asserts Diane Christian was required to submit an affidavit stating the work performed by her attorney. However, during the trial, Diane Christian testified her attorney fees for the divorce were between $5,000 and $6,000. She also submitted, without objection, a detailed “Billing Report” from her attorney. Submission of an affidavit to support an award of attorney fees is unnecessary when the award is supported by testimony and other documentary evidence received in an evi-dentiary hearing. See, e.g., Jorgenson, at ¶26 (remanding decision on reasonable amount of attorney fees on appeal to the district court to decide “after considering affidavits from both parties, or after an evidentiary hearing”). The record supports the amount of fees in this case.

[¶ 20] We conclude the district court did not abuse its discretion in awarding Diane Christian $5,000 of her attorney fees.

IV

[¶ 21] Timothy Christian argues the district court erred in denying his motions to amend and make additional findings, for a new trial, and for relief from the judgment, because Diane Christian failed to disclose that she had a remainder interest in her mother’s property, which he claimed had a value of more than $250,000, and because property that was disclosed in the agreement was undervalued by more than $100,000. A district court’s decision on a motion to amend or make additional findings under N.D.R.Civ.P. 52(b), on a motion for new trial under N.D.R.Civ.P. 59, and on a motion for relief from the judgment under N.D.R.Civ.P. 60(b), will not be reversed on appeal unless the court abused its discretion. See Kuperus v. Willson, 2006 ND 12, ¶ 8, 709 N.W.2d 726; Korynta v. Korynta, 2006 ND 17, ¶ 21, 708 N.W.2d 895.

[¶ 22] The record reflects that Diane Christian’s mother, Agnes Kralicek, was 89 years old and had been living at the Marion Manor in Glen Ullin since March 2004. During the summer of 2004, Kralicek, her attorney, and Timothy and Diane Christian met at Marion Manor, and Kralieek’s attorney advised Kralicek to “turn her land over to [Diane Christian] and reserve a life estate.” Kralicek had a will in which she wanted the land split between Diane Christian and Kralieek’s deceased son’s children. Kralieek’s attorney advised, and Kralicek and Diane Christian agreed, that when Kralicek died, Diane Christian would give one-half of the land to Kralieek’s deceased son’s children. The attorney further advised that once the land was transferred, Kralieek’s will would not be binding with respect to the property. Timothy Christian was present during this discussion. Kralieek’s attorney prepared the deeds that transferred a remainder interest in the land to Diane Christian. This property was not addressed in the parties’ property settlement agreement.

[¶ 23] The record further reflects that in April 2005, Timothy Christian’s attorney wrote to Diane Christian’s attorney, stating he needed a valuation of the farmland that was included in the parties’ property settlement agreement. Diane Christian’s attorney responded with a description of the property. Timothy Christian’s attorney’s office contacted the Bowman County and Morton County treasurers for the value of the farmland, and the valuations given by the treasurers were used in the property settlement agreement. After the district court issued its decision on spousal support, Timothy Christian had a “desktop analysis” of the property performed by an appraiser. The appraiser found the fair market value of Kralieek’s property to be “$238,000-$255,000.” The appraiser found the fair market value of the property disclosed in the property settlement agreement to be “$160,000 to $175,000,” about $100,000 more than the amount Timothy Christian had placed in the agreement.

[¶ 24] In an affidavit in support of his post-trial motions, Timothy Christian stated:

3. I have asked the Court to vacate our property stipulation and try our property issues on their merits. Our property settlement agreement made no mention of Diane’s interest in her mother’s Bowman County farmland which could be worth $255,000. Diane failed to disclose that property to me when we negotiated our stipulation, and I did not recall that she had any such property until after judgment, when I promptly notified my attorney of her land interest. I feel that the Court should distribute that land of Diane’s equitably, just as I tried to do in good faith with the rest of our property. I also found out, after our hearing, that Diane said that her Bowman County property that she did disclose to me and the Court was worth approximately $100,000.00 more than what she disclosed to me in our stipulation. I feel that the Court should consider this fair market value for her land when the Court looks to distribute our property-
4. I feel that the Court should reconsider its spousal support award to Diane in light of the information that we have just discovered about Diane’s interest in her mother’s farmland in Bowman County. Her possession of that land makes a huge difference in what her income and potential income will be.
6. After the divorce proceedings, I recalled that there was something to do with Diane’s mother’s land but I did not know the facts or implications until I called the Bowman’s [sic] County Recorder’s Office and inquired about her mother’s property. When I saw in the paperwork that Diane was named as the heir to her mother’s land, I called my attorney immediately to find out what this meant. Diane owns this property except for her mother’s life estate but she did not disclose this information to me or to the Court, and I feel that this was wrong. I would have certainly mentioned this earlier in the proceedings if I had remembered it.

[¶ 25] In denying the post-trial motions, the district court said:

I don’t believe that there is any evidence of fraudulent concealment or any intentional failure to disclose or even for that matter, any unintentional failure to disclose, if there is such a thing. I believe that one of two things is the case— either that the plaintiff knew that the defendant had the interest in the property and that the defendant knew that the plaintiff knew that and therefore didn’t feel any need to further discuss it in the context of the settlement agreement with the idea that the parties weren’t necessarily going to fight over each piece of property or asset, but were going to make, in essence, a global agreement that was going to cover everything. The other, I guess, possibility is that defendant simply didn’t think she had an interest that was part of the marital estate and I understand she probably wasn’t applying a legal analysis like that but simply didn’t believe she owned the property in such a way that it would be subject to an interest by the plaintiff- Mr. Christian had every opportunity to discover that property if in fact he had forgotten about it.

[¶ 26] The district court did not abuse its discretion in denying Timothy Christian’s motions. Although Timothy Christian alleged fraud in support of his N.D.R.Civ.P. 60(b) motion for relief from judgment, the district court’s finding that Diane Christian did not commit actual or constructive fraud by withholding information about the property is not clearly erroneous. Timothy Christian was present during the discussions that resulted in the transfer of the property and knew Diane Christian had a remainder interest in her mother’s property, but he simply did not “recall” her interest in the property until after the judgment was entered awarding Diane Christian spousal support. In an affidavit, Diane Christian stated, “I get no benefit from [the land]; all the income goes to [my mother], I don’t have any responsibility for it; she pays for all the taxes and costs.” Diane Christian also stated her mother “is running out of money” and “would like to sell some of the land to pay her bills at the nursing home.” The divorce action was pending for 18 months before the settlement agreement was signed and 19 months 'before trial. Timothy Christian was also the person who provided the original values for the property that was included in the settlement agreement. Timothy Christian was in as good a position as Diane Christian to have the remainder interest included and the other property professionally assessed before the settlement agreement was signed. See Clooten v. Clooten, 520 N.W.2d 843, 848 (N.D.1994).

[¶ 27] Before a new trial may be granted on the ground of newly discovered evidence under N.D.R.Civ.P. 59(b)(4), two of the elements that must be shown are: (1) the evidence was discovered following trial; and (2) the movant must have exercised due diligence in discovering the evidence. Alerus Financial, N.A. v. Lamb, 2003 ND 158, ¶ 11, 670 N.W.2d 351. Timothy Christian forgot about Diane Christian’s remainder interest in her mother’s property, and he did not have the property that was disclosed in the settlement agreement appraised until after the agreement was signed and the trial on spousal support was completed.

[¶ 28] In Perry v. Reinke, 1997 ND 213, ¶¶ 26-27, 570 N.W.2d 224, this Court held the district court did not abuse its discretion in denying a motion for new trial on the basis of newly discovered evidence where the movant argued she forgot she had transferred nonprobate assets into an estate, remembered having done so after trial, and produced bank records proving she had made the transfer into the estate account before trial. This Court said, “Although the money reported in the bank records was at issue during the trial, their production after trial is not newly discovered evidence when they were easily discoverable by Reinke before the trial commenced.” Id. at ¶ 28. Here, Diane Christian’s remainder interest and the appraised value of the disclosed property were certainly discoverable before trial, and do not qualify as newly discovered evidence. See Porter v. Porter, 274 N.W.2d 235, 240 (N.D.1979).

[¶ 29] Timothy Christian argues Diane Christian’s undisclosed remainder interest and the increased value given by the appraiser to the other property awarded to her in the settlement agreement render the agreement unconscionable. In Kramer v. Kramer, 2006 ND 64, ¶ 7, 711 N.W.2d 164, we said:

District courts ... should not blindly accept property settlement agreements. Weber v. Weber, 548 N.W.2d 781, 783 (N.D.1996). A district court’s duty to make an equitable distribution of marital property under N.D.C.C. § 14-05-24 includes the authority to decide whether a settlement agreement was executed as a result of mistake, duress, menace, fraud, or undue influence under N.D.C.C. § 9-09-02(1). Weber, 548 N.W.2d at 783. A district court also may set aside a settlement agreement that is unconscionable. Crawford v. Crawford, 524 N.W.2d 833, 835-36 (N.D.1994). This Court has said “[u]nconscionability is a doctrine by which courts may deny enforcement of a contract ‘because of procedural abuses arising out of the contract formation, or because of substantive abuses relating to the terms of the contract.’ ” Weber, 1999 ND 11, ¶ 11, 589 N.W.2d 358 (quoting Black’s Law Dictionary 1524 (6th ed.1990)). In Weber, we said an unconscionable agreement is an “agreement no rational, undeluded person would make, and no honest and fair person would accept.” Weber, 1999 ND 11, ¶ 15, 589 N.W.2d 358. See also Crawford, 524 N.W.2d at 836 (vacating judgment based on stipulation that was “blatantly one-sided” and “rankly unfair”).

[¶ 30] In this case, the property settlement agreement cannot be considered unconscionable either when adopted by the district court or when Diane Christian’s remainder interest and the new appraised property values are considered in the property distribution. The parties were represented by counsel throughout these proceedings, and negotiations over the settlement agreement spanned 18 months. Diane Christian presented evidence that the value of one-half of her remainder interest in the property under Internal Revenue Service rules, using property tax values Timothy Christian originally used in the settlement agreement, would be $43,290. Under Timothy Christian’s appraised valuation of the property, one-half of her remainder interest would amount to $100,000. Diane Christian also argued that even if the full fee simple value of $250,000 were added and Timothy Christian earned six percent interest on his financial accounts from the time the values of those accounts were listed in the settlement agreement, she will have received 54 percent and he will have received 46 percent of the marital property. This does not rise to the level of unconscionability. See generally Zander v. Zander, 470 N.W.2d 603, 606 (N.D.1991) (new trial unnecessary where proffered evidence would not produce a different result).

[¶ 31] Timothy Christian also argues the district court erred in failing to make findings on the marital property values, because of the undisclosed remainder interest and the higher assessed value given to the disclosed property. He contends findings are required so the court can fulfill its statutory “mandate” to equitably distribute marital property, and because property division and spousal support must be considered together, e.g., Donlin, 2007 ND 5, ¶ 15, 725 N.W.2d 905, the court must also reexamine the spousal support award. The district court had no obligation to independently value the marital property apart from the values agreed upon by the parties in their valid settlement agreement. Timothy Christian’s argument is in direct conflict with the law on marital property settlement agreements. See, e.g., Wolfe, 391 N.W.2d at 620; Fleck, 337 N.W.2d at 791-92.

[¶ 32] We conclude the district court did not abuse its discretion in denying Timothy Christian’s post-trial motions.

V

[¶ 33] We have considered the other arguments presented and conclude they do not affect our decision. The judgment and order are affirmed.

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