author: WILLIS, Judge.

text:
    STATE of Minnesota, Respondent, v. Verna Marie CYRETTE, Appellant.
    No. CX-01-294.
    Court of Appeals of Minnesota.
    Dec. 4, 2001.

      Mike Hatch, Attorney General, St. Paul; and Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, Duluth, for respondent.

      John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by WILLIS, Presiding Judge, LANSING, Judge, and HARTEN, Judge.
   OPINION

WILLIS, Judge.

Appellant Verna Marie Cyrette challenges her conviction of gross-misdemean- or child neglect, arguing that (1) the district court’s jury instruction defining the term “willfully” was erroneous and (2) the evidence was insufficient to support her conviction. Because the jury instruction was not erroneous and the evidence supports appellant’s conviction, we affirm.

FACTS

In December 1999, appellant Verna Marie Cyrette resided with her two-year-old daughter, L.R.C.; her eight-year-old son, D.A.; and her 25-year-old son, Mitchell Benjamin Cyrette. D.A. has cerebral palsy and requires 24-hour supervision. Although Cyrette and Mitchell have undergone special training to care for D.A. at home, personal-care attendants are necessary to supervise and assist with D.A.’s needs.

On December 1, 1999, at approximately 10:45 p.m., Duluth police officer James Le-sar was dispatched to Cyrette’s residence to check on the welfare of two children. When Lesar arrived, he looked through a porch window and saw L.R.C. watching television in the living room. Lesar tried to get her attention by tapping on the window, but she did not respond. After pounding loudly on the door and receiving no response, Lesar contacted the dispatcher and asked him to phone the residence. The dispatcher called, but no one answered.

Lesar then informed his supervisor, Sergeant Evangeline Devlin, of the situation. Devlin arrived at the residence and tried to get L.R.C.’s attention by knocking on the window. Receiving no response, Lesar and Devlin eventually forced entry into the residence. Devlin looked after L.R.C. while Lesar searched the home. Lesar found D.A. asleep in an upstairs bedroom. After searching the rest of the upstairs, Lesar searched the basement area, including Mitchell’s bedroom, but found no one else in the residence. D.A. was transported by ambulance to a local hospital, and L.R.C. was taken to a shelter.

Two days later, Officer Leigh Wright questioned Cyrette about the events of December 1, 1999. Officer Wright testified that (1) Cyrette said that she left her residence that day between 1:30 and 2:00 in the afternoon to pick up a bus pass and then went drinking at several bars; (2) Cyrette told Wright that she returned home at about 10:30 p.m., sent home D.A.’s personal-care attendant, Theresa Jordan-Teets, and then took a cab to a bar; (3) Cyrette said that she left the bar at 12:30 a.m., passed out at a bus stop, and that Mitchell eventually picked her up and took her home; (4) Cyrette said that she first realized her children were missing when she got up the next morning; (5) when Wright asked Cyrette if she thought it was safe to leave her children alone, Cyrette responded that “she thought it was safe to leave the kids all night alone because they don’t wake up at night”; (6) Cyrette told Wright that she locked the door before she left and thought she had checked on D.A., but she was not sure because she was “pretty drunk” and may have been in a “black-out”; and (7) Cyrette said nothing suggesting that she had left the children with another adult.

Cyrette’s defense at trial was that Mitchell was home when she left for the bar. Mitchell testified that (1) he returned home that evening about 8:50 p.m. and entered the residence through the basement door; (2) he was so exhausted that he “went straight to bed” and “drifted off to sleep”; (3) because he was so exhausted, he would not have heard the police breaking into the residence or the officer inspecting the basement area where he slept; (4) he woke up around midnight to get a glass of water and discovered that the children were missing; and (5) although he was concerned about the children’s absence, he assumed that they were with the police or at the hospital and eventually went back to sleep.

Personal-care attendant Theresa Jordan-Teets testified that (1) Mitchell left the residence through the basement door; (2) she locked the basement door after Mitchell left and did not see him again that evening; (3) Cyrette was drunk when she returned home that evening; (4) Cyrette asked her to stay so that she could “go out for a longer time”; (5) she told Cyrette that she could not stay; and (6) as she was leaving, she saw Cyrette leave in a cab parked outside the residence; (7) suspecting that L.R.C. and D.A. had been left alone, Jordan-Teets returned to the residence, where she saw L.R.C. in the living room; (8) she tried to get L.R.C.’s attention by pounding on the door, but L.R.C. did not respond; and (9) she called her employer, who eventually contacted the police.

A jury found Cyrette guilty of gross-misdemeanor child neglect, a violation of Minn.Stat. § 609.378, subd. 1(a)(1) (1998). This appeal follows.

ISSUES

I. Did the district court err in its jury instruction defining “willfully,” as the term is used in the child-neglect statute, Minn. Stat. § 609.378, subd. 1(a)(1) (1998)?

II. Was there sufficient evidence to support the jury’s verdict that appellant neglected her children in violation of Minn. Stat. § 609.378, subd. 1(a)(1) (1998)?

ANALYSIS

I.

The district court instructed the jury regarding the meaning of “willfully,” as the term is used in the child-neglect statute. See Minn.Stat. § 609.378, subd. 1(a)(1) (1998). Cyrette did not object to the instruction. Failure to object to jury instructions at trial generally results in a forfeiture of the right to appeal on that error. State v. Cross, 577 N.W.2d 721, 726 (Minn.1998). But we may consider the issue on appeal if we find plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998); Minn. R.Crim. P. 31.02. To establish plain error, the party must show that (1) there was error, (2) the error was plain, and (3) the error affected the party’s substantial rights. Id. Although Cyrette argues that the district court’s instruction was error, she does not claim that the error, if any, was plain or that it affected her substantial rights. Nevertheless, we will review the instruction under the plain-error standard in the interests of justice. See Minn. R. Civ.App. P. 103.04 (court has discretion to address any issue as justice requires).

The district court followed the model jury instruction for neglect of a child, found in 10 Minnesota Practice, CRIMJIG 13.88 (1999), which is derived from Minnesota’s child-neglect statute. See Minn. Stat. § 609.378 (1998). Neither the model jury instructions nor the child-neglect statute defines “willfully.” The court gave the following instruction regarding the meaning of the term:

There’s one other thing I have to go over with you because the word “willfully” appears in that, and which is indicative of intent. And for purposes of this case, I’m just going to tell you that the statutes, essentially, say — that means “willfully or intentionally” means that the actor either has a purpose to do the thing or cause the result specified, or believes that the act performed by the actor if successful will cause that result.

Relying on State v. Bowers, 178 Minn. 589, 228 N.W. 164 (1929), Cyrette contends that the district court wrongly defined “willfully.” In Bowers, the court defined willfully, as it was used in a second-degree assault statute, to mean “with a bad purpose or an evil intent.” Id. at 591, 228 N.W. at 165. Cyrette argues that the district court should have used this definition of willfully in instructing the jury here. We disagree.

The Bowers court defined willfully in the context of a criminal code very different from the one that now exists. Bowers was decided in 1929, when Minnesota’s criminal code used words such as “corrupt” and “malicious” to describe criminal intent. See Minn. Gen. Stat. § 9907, ch. 93 (1923). At issue in Bowers was the appellant’s claim “that the evidence is insufficient to show that the injury complained of was willfully inflicted by the defendant, that there was any intent to harm the young woman.” Bowers, 178 Minn. at 590, 228 N.W. at 164. After noting that the then-most-common definition of “willfully,” as used in a penal statute, was that it means with a bad purpose or an evil intent, the court concluded that “[wjhere one person wrongfully and intentionally assaults and inflicts bodily harm upon another, the evil intent is apparent from the act itself, and further proof of intent is not necessary.” Id. at 591, 228 N.W. at 165.

We conclude that the Bowers court, at base, defined “willfully” to mean with “intent,” as that term is used generally in the current criminal code and that the difference between “evil intent” in 1929 and criminal “intent” in 2001 is more the result of linguistic evolution than an attempt to describe different states of mind. Current dictionary definitions of “willful” confirm this shift. The American Heritage College Dictionary currently defines willful as “said or done on purpose; deliberate.” American Heritage College Dictionary 1543 (3rd ed. 1997). And Black’s defines willful as “voluntary and intentional, but not necessarily malicious.” Black’s Law Dictionary 1593 (7th ed. 1999).

In large measure to avoid issues such as that now before us, when Minnesota revised its criminal code in 1963, terms such as “willful” were abandoned in defining criminal intent. See Minn.Stat. Ann. § 609.02 advisory comm. cmt. (West 1963).

The revised criminal code sought to

state more clearly than do present statutes the particular criminal intent -or purpose required for each particular crime. Terms in the present statutes such as “willful,” * * * have produced much confusion and uncertainty as to what mental state is intended. Throughout the proposed criminal code, the word “intentionally” or “with intent to” has been used.

See Maynard E. Pirsig, Proposed Revision of the Minnesota Criminal Code, 47 Minn. L.Rev. 417, 422 (1963).

Consequently, Minn.Stat. § 609.02, subd. 9 (1998), provides:

When criminal intent is an element of a crime in this chapter, such intent is indicated by the term “intentionally,” the phrase “with intent to,” the phrase “with intent that,” or some form of the verbs “know” or “believe.”

Twenty years after attempting to purge the criminal code of the terms “willful” or “willfully,” in 1983 the legislature enacted the child-neglect statute, which provides:

A parent, legal guardian, or caretaker, who willfully deprives a child of necessary food, clothing, shelter, health care, or supervision appropriate to the child’s age, when the parent, guardian, or caretaker is reasonably able to make the necessary provisions and the deprivation harms or is likely to substantially harm the child’s physical, mental, or emotional health is guilty of neglect of a child.

Minn.Stat. § 609.378, subd. 1(a)(1) (emphasis added). The statute is, therefore, an anachronism in the criminal code, but we find nothing in the legislative history of the statute to suggest that the legislature intended “willfully” to mean anything other than “intentionally.”

The child-neglect statute criminalizes negligence. Our reading of the statute finds support in tort law, where the term “willfully” means “an aggravated form of negligence.” See Prosser & Keaton on Torts, 212 (5th ed. 1984). “Willfully” applies to conduct that is negligent, but that “is so far from a proper state of mind that it is treated in many respects as if it were so intended.” Id. at 213. The most common meaning assigned to willfully in the tort context is that the

actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.

Id. (emphasis added).

Jury instructions must be construed in their entirety and will be upheld so long as they convey to the jury the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). Because the district court’s instruction did not misstate the elements of criminal neglect of a child, we conclude that the district court did not err by instructing the jury that “willfully” means intentionally. See generally State v. Pendleton, 567 N.W.2d 265, 270 (Minn. 1997) (holding that a jury instruction is error if it materially misstates the law).

II.

When considering a claim of insufficient evidence, a reviewing court’s only inquiry is whether, on the facts in the record and legitimate inferences to be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Bias, 419 N.W.2d 480, 484 (Minn.1988). The court must view the evidence in the light most favorable to the verdict and assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. Id.

Viewing the evidence in the light most favorable to the verdict here, the evidence is sufficient to support Cyrette’s conviction. First, although Cyrette’s defense at trial was that Mitchell was home with L.R.C. and D.A., the jury’s verdict indicates that it disbelieved this testimony, which was contradicted by the testimony of Jordan-Teets. See id. Second, Cyrette tried to convince Jordan-Teets to stay with the children so that she could return to the bar. Lastly, Cyrette told officer Wright that she thought it was safe to leave the children alone because “they usually slept through the night.” We conclude that the evidence was sufficient to permit the jury to find Cyrette guilty of child neglect.

DECISION

Because the district court’s jury instruction regarding the meaning of “willfully” was not erroneous and the evidence is sufficient to show that Cyrette neglected her children, we affirm her conviction.

Affirmed.

      . At the time of sentencing on the charge here, Cyrette's parental .rights to L.R.C. had been terminated and D.A. had been placed in permanent foster care.

      . Cyrette testified that she did not tell Wright about Mitchell being home because the police had previously beaten Mitchell and she was scared to get him involved.


source: Caselaw Access Project

author: PETERSON, Judge.

license: Public Domain

text:
    Michelle REGENSCHEID, claimant, Respondent, v. FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant.
    No. CX-01-862.
    Court of Appeals of Minnesota.
    Dec. 4, 2001.
    Timothy K. Dillon, Dillon Law Office, Cannon Falls, for respondent.

      Thomas H. Schaefer, Erstad & Riemer, P.A., Minneapolis, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, PETERSON, Judge, and FORSBERG, Judge.

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

   OPINION

PETERSON, Judge.

In this appeal from a judgment confirming a no-fault arbitration award that exceeded the $10,000 jurisdictional limit, appellant Farm Bureau Mutual Insurance Company argues that the district court erred when it determined that Farm Bureau’s refusal to allow respondent Michelle Regenscheid to withdraw her petition for arbitration constituted a waiver of the jurisdictional limit. Because Farm Bureau failed to object in writing to arbitrating a claim that exceeded the jurisdictional limit, Farm Bureau waived its right to object to consideration of the claim in excess of the jurisdictional limit. Therefore, we affirm.

FACTS

Regenscheid injured her knee while getting out of her truck. Initially, she received no-fault benefits, but after an investigation by Farm Bureau revealed that Regenscheid’s injury did not arise out of the maintenance or use of her truck, Farm Bureau denied further benefits. Regen-scheid filed a petition for arbitration in which she sought $9,999 in wage-loss and replacement-services benefits.

The arbitration hearing was scheduled for May 16, 2000. On May 11, 2000, Re-genscheid’s attorney sent a fax to the American Arbitration Association (AAA) asking to withdraw the arbitration petition because Blue Cross Blue Shield (BCBS) had asserted a subrogation claim for amounts that it paid for surgery on Regen-scheid’s knee, and with this claim, the total claim was for more than $10,000.

Farm Bureau objected to the request to withdraw because the no-fault arbitration rules permit withdrawal up to ten days before the arbitration hearing, and this request was made five days before the hearing. Farm Bureau also argued that because all of the medical expenses being sought were incurred before Regenscheid filed her arbitration petition, Regenscheid voluntarily waived any claim in excess of the jurisdictional limit when she chose arbitration. Regenscheid’s attorney responded that he deemed Farm Bureau’s refusal to allow withdrawal a waiver of the jurisdictional limit. Farm Bureau responded in a letter to the AAA that its “refusal to allow withdrawal of the Arbitration Petition in no way should be construed as a waiver by Farm Bureau of the jurisdictional limit imposed by the Arbitration rules.”

The arbitration hearing proceeded. Re-genscheid submitted a $20,514.12 bill for medical expenses for knee surgery and treatment that were paid by BCBS. The arbitrator ruled in favor of Regenscheid and awarded her $24,834.12. The arbitrator made no findings regarding the jurisdictional limit. Farm Bureau brought a motion in district court to partially vacate the arbitration award on the ground that the arbitrator improperly determined that he had jurisdiction to make an award for claims incurred before the petition was filed that exceeded the $10,000 jurisdictional limit. The district court denied the motion and confirmed the arbitration award. The court concluded that Farm Bureau’s refusal to permit Regenscheid to withdraw her petition constituted a waiver of any claim that the arbitrator lacked jurisdiction.

ISSUE

Did Farm Bureau waive the no-fault arbitration jurisdictional limit?

ANALYSIS

“[I]n the area of automobile reparation, arbitrators are limited to deciding issues of fact, leaving the interpretation of the law to the courts.” Johnson v. Am. Family Mut. Ins. Co., 426 N.W.2d 419, 421 (Minn.1988).

Only where the arbitrators have clearly exceeded their powers must a court vacate an award. Every reasonable presumption is exercised in favor of the finality and validity of the award.

National Indem. Co. v. Farm Bureau Mut. Ins. Co., 348 N.W.2d 748, 750 (Minn.1984) (citations omitted). As the party seeking to vacate the arbitrator’s award, Farm Bureau had the burden of proving that the award is invalid. Id.

Farm Bureau contends that the arbitration award must be vacated because Re-genscheid’s claim exceeded the $10,000 jurisdictional limit at the commencement of the arbitration, and therefore the arbitrator exceeded his powers.

Minn.Stat. § 65B.525, subd. 1 (2000), states:

Except as otherwise provided in section 72A.327, the supreme court and the several courts of general trial jurisdiction of this state shall by rules of court or other constitutionally allowable device, provide for the mandatory submission to binding arbitration of all cases at issue where the claim at the commencement of arbitration is in an amount of $10,000 or less against any insured’s reparation obligor for no-fault benefits or comprehensive or collision damage coverage.

Also, Minn. R. No-Fault Arb. 6 states:

By statute, mandatory arbitration applies to all claims for no-fault benefits or comprehensive or collision damage coverage where the total amount of the claim, at the commencement of arbitration, is in an amount of $10,000 or less. In cases where the amount of the claim continues to accrue after the petition is filed, the arbitrator shall have jurisdiction to determine all amounts claimed including those in excess of $10,000.

When Regenscheid commenced arbitration, she asserted a claim in the amount of $9,999, which was within the jurisdictional limit. However, BOBS later asserted a claim for the amount that it had paid for Regenscheid’s knee surgery and treatment, which increased the claim to more than $10,000. Farm Bureau argues that because Regenscheid incurred the expenses for her knee surgery and treatment before she commenced arbitration, the total amount of the claim, at the commencement of arbitration, exceeded the $10,000 jurisdictional limit. But Farm Bureau proceeded with the arbitration after it learned that the total amount of the claim was more than $10,000 without stating in writing an objection to considering a claim in excess of the jurisdictional limit.

Minn. R. No-Fault Arb, 34 states:

Any party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with atod who fails to state an objection thereto in writing shall be deemed to have waived the right to object.

In response to Regenscheid’s statement that she deemed Farm Bureau’s refusal to allow her to withdraw her petition to be a waiver of the jurisdictional limit, Farm Bureau informed the arbitrator that its refusal to allow withdrawal should not be: construed as a waiver of the jurisdictional limits. The district court nevertheless concluded that Farm Bureau’s refusal to permit Regenscheid to withdraw her petition constituted a waiver of any claim that the arbitrator lacked jurisdiction. We conclude that it is not necessary to determine whether Farm Bureau’s refusal to allow withdrawal constituted a waiver because even if the refusal did not constitute a waiver, Farm Bureau never stated in writing an objection to the arbitrator exercising jurisdiction over a claim in excess of the jurisdictional limit. Therefore, under the plain language of Minn. R. No-Fault Arb. 34, Farm Bureau is deemed to have waived the right to object to the arbitrator considering a claim in excess of the jurisdictional limit, and we affirm the judgment confirming the no-fault arbitration award. See Myers v. Price, 463 N.W.2d 7Y3, 775 (Minn.App.1990) (appellate court will affirm judgment if it can be sustained on any grounds), review denied (Minn. Feb. 4, 1991).

DECISION

Because Farm Bureau knew that the arbitration claim was for more than $10,000, but it proceeded with the arbitration without objecting in writing to arbitrating a claim for more than the arbitrator’s jurisdictional limit, Farm Bureau waived its right to object to consideration of the claim in excess of the jurisdictional limit.

Affirmed.

      . Minn.Stat. § 72A.327 (2000) regulates claims for medical benefits under chapter 65B that are denied "because the treatment or services for which the claim is made is claimed to be experimental, investigative, not medically necessary, or otherwise not generally accepted by licensed health care providers,” and it does not affect this case.


author: G. BARRY ANDERSON, Judge.

text:
    Timothy E. KOES, et al., Respondents, v. ADVANCED DESIGN, INC., Appellant.
    No. C8-01-715.
    Court of Appeals of Minnesota.
    Dec. 4, 2001.

      John M. Mulligan, Patricia A. Docherty, Mulligan & Bjornnes PLLP, Minneapolis, for respondents.
    Robert J. Foster, Leslie M. Witter-sehein, Foster, Wentzell, Hedback & Brever, LLC, St. Anthony, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, PETERSON, Judge and FORSBERG, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

This matter was originally heard in conciliation court, resulting in judgment in favor of respondent-homeowners. At the trial following removal to the district court, the district court initially directed a verdict in favor of appellant-homebuilder. Immediately thereafter, the district court vacated the directed verdict, received further testimony, finished the trial, and dismissed respondents’ claim. On August 4, 2000, respondents moved for a new trial, or, in the alternative, for relief from the judgment under Minn. R. Civ. P. 60.02(a) and (f). An amended judgment was entered in favor of respondents. Because we agree with the district court that a cause of action for breach of statutory new-home warranties does not have to be brought within the warranty period, but must be brought within two years of discovery of the defect, we affirm.

FACTS

This dispute centers around alleged drainage problems in a newly constructed home owned by Timothy and Kristine Koes (respondents) and built by Advanced Design, Inc., a company owned by Janis Khan (appellant).

The district court found that respondents moved into their home in approximately mid-June 1997. Mr. Koes testified that he first recognized problems with the drain tile and transite-heating system in early July 1999. Although the parties disagree whether respondents gave appellant oral notice of the problems, it is undisputed that the first time Mr. Koes notified appellant of the problems in writing was on September 10,1999.

The record suggests that the drain the and heating system were improperly installed. Drain tile is installed to keep water out of the basement of a home and is usually placed outside the footing of the home. Among the many problems created by the design of the system at issue here was installation of the drain the higher than the heat ducts; therefore, the trench that contained the ducts and the drain tile had to fill with water above the height of the heat ducts before the drain tile would begin working. An expert for respondents testified that it was “one of the most poorly installed drain tile systems [he had] ever seen.” Appellant admitted that there had been water in the ducts at some point.

During the course of the trial before the district court, the attorney for appellant moved for a directed verdict on the basis that the notice from respondents to appellant did not satisfy the requirements of Minn.Stat. § 327A.02, subd. 1(b) (1998). The district court granted appellant’s motion for a directed verdict.

After appellant and counsel left the courtroom, the district court spoke ex parte with respondents and their witness regarding the drain tile. Respondents’ witness told the court that the drain tile was not a part of the plumbing system. Because the district court believed that this issue was crucial to the directed verdict, and that the directed verdict had, therefore, been improperly granted, it vacated the directed verdict and located and called appellant and counsel back to the courtroom.

After the trial recommenced, appellant made another, unrelated motion for a directed verdict based on an alleged grade change around the home. That motion was denied.

Before the proceedings were closed, the district court asked if the parties would allow the court to make a phone call to the City of Vadnais Heights to inquire regarding drain tile. Neither party objected. The district court eventually found for appellant in its first judgment.

Respondents, through correspondence from counsel, alleged that the district court had misapplied Oreck v. Harvey Homes, 602 N.W.2d 424 (Minn.App.1999), review denied (Minn. Jan. 25, 2000), and then, by formal motion, sought either a new trial or, in the alternative, relief under Minn. R. Civ. P. 60.02(a) or (f).

The district court treated respondents’ motion as a motion for amendment of the findings of fact and conclusions of law. The district court issued amended findings and entered an amended judgment for respondents. This appeal followed.

ISSUES

I. Did the district court err in applying Minn.Stat. § 327A.02, upholding respondents’ action for damages incurred as a result of construction defects in a home drain tile system even though the action was brought after the warranty period had expired?

II. Did the district court abuse its discretion by denying appellant’s motion for a directed verdict based on Minn. Stat § 327A.03(h) (1998)?

III. Did the district court abuse its discretion when it:

A. amended its findings in light of new authority offered by respondents after a motion was brought by respondents which requested either relief under Minn. R. Civ. P. 60.02 or, in the alternative, a new trial?

B. accepted a letter regarding respondents’ argument in support of their motion and did not require a formal memorandum of law?

ANALYSIS

Minnesota first addressed consumer complaints surrounding new-home construction, in any comprehensive way, when it adopted a new body of consumer-protection law largely focused on home warranties. These legislative actions are codified in chapter 827A, and it is one of these provisions, found at Minn.Stat. § 327A.02, subd. 1, that prompts the controversy before this court. The relevant portion of that statute provides:

Warranties by vendors. In every sale of a completed dwelling, and in every contract for the sale of a dwelling to be completed, the vendor shall warrant to the vendee that:
⅜ ⅞ * ⅜
(b) during the two-year period from and after the warranty date, the dwelling shall be free from defects caused by faulty installation of plumbing, electrical, heating, and cooling systems; ⅜ ⅜ *.

Minn.Stat. § 327A.02, subd. 1 (1998) (emphasis added).

The “warranty date” is defined as

the date from and after which the statutory warranties provided in section 327A.02 shall be effective, and is the earliest of
(a) The date of the initial vendee’s first occupancy of the dwelling; or
(b) The date on which the initial vend-ee takes legal or equitable title in the dwelling.

Minn.Stat. § 327A.01, subd. 8 (1998).

Additionally, Minn.Stat. § 327A.03(a) (1998), provides that a builder is not liable for any

Moss or damage not reported by the vendee or the owner to the vendor or the home improvement contractor in writing within six months after the vendee or the owner discovers or should have discovered the loss or damage[.]

But the legislature, at the same time that it created a new statutory home-warranty framework, also provided an exemption from the generally applicable statute of limitations governing services for construction to improve real property found in Minn.Stat. § 541.051, subd. 1(a). That exception provides:

This section shall not apply to actions based on breach of the statutory warranties set forth in section 327A.02, or to actions based on breach of an express written warranty, provided such actions shall be brought within two years of the discovery of the breach.

Minn.Stat. § 541.051, subd. 4 (emphasis added) (1998). This subdivision was added in 1977, at the same time the new statutory home warranties were enacted. See 1977 Minn. Laws, ch. 65, § 8.

Thus, a homeowner struggling with defects caused by faulty installation of certain new-home systems must bring an action under the § 327A.02, subd. 1(b) warranty provision within two years after discovery of a defect and must report any loss or damage to the homebuilder within six months of either discovery of the loss or when the loss or damage should have been discovered. The difficult issue then becomes how to resolve the conflict between respondents’ reporting of the defect after the two-year warranty period expires, but within both the two-year (§ 541.051, subd. 4) and six-month requirements (§ 327A.03(a)).

But statutes of limitation are not the only barriers to litigation claims. The legislature has also created what are commonly known as statutes of repose to prevent stale claims. Prosser and Keeton have stated:

A statute of repose generally begins to run at an earlier date and runs for a longer period of time than the otherwise applicable statute of limitations unaffected by the discovery accrual rule. Repose statutes may begin to run from the time of the defendant’s act * * *, or upon the occurrence of a specific and identifiable event shortly thereafter' — as from the substantial completion of the structure, in actions against * * * contractors * * *. Statutes of repose by them nature reimpose on some plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps before it even exists * * ⅜.

William L. Prosser & W. Page Keeton, Prosser and Keeton on the Law of Torts § 30, at 168 (W. Page Keeton et. al. eds., 5th ed.1984) (footnotes omitted). Other authorities have also noted the difference between statutes of limitation and repose. Black’s Law Dictionary has stated that

[w]hile statutes of limitation are sometimes called “statutes of repose,” the former bars right of action unless it is filed within a specified period of time after injury occurs, while “statute of repose” terminates any right of action after a specific time has elapsed, regardless of whether there has as yet been an injury.

Black’s Law Dictionary 927 (6th ed.1990); see also Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 (Minn.1988) (distinguishing statutes of limitation from statutes of repose). Further, a statute of repose differs from a statute of limitations in that it “cuts off right of action after a specified time measured from * * * completion of work, regardless of time of accrual of cause of action.” Black’s Law Dictionary, supra, at 1411. Other authorities have stated that a statute of repose

differs from a period of limitation * ⅜ * because it bars a suit a fixed number of years after the defendant acts in some way * * *, whereas limitation bars an action if the plaintiff does not file suit within a set period of time from the date when the cause of action accrues.

Bryan A. Garner, A Dictionary of Modern Legal Usage 759 (2d ed.1995).

The general Minnesota statute of limitations for claims based on services or construction to improve real property, found in Minn.Stat. § 541.051 subd. 1(a), contains both a two-year statute of limitations and a ten-year statute of repose which provides that “a cause of action [shall not] accrue more than ten years after substantial completion of the construction.” Id. Like all statutes of repose, this provision bars any litigation, regardless of discovery or non-discovery of the defect. But, as noted earlier, because warranty claims under Minn.Stat. § 327A.02 are specifically exempted from the statutes of limitation and repose set forth in Minn.Stat. § 541.051, subd. 1(a), the only statutory limitation applying, by its terms, to a § 327A.02 claim is found in § 541.051, subd. 4. The limitation found in Minn.Stat. § 541.051, subd. 4, requires home-warranty actions based on Minn.Stat. § 327A.02 to be “brought within two years of the discovery of the breach” of warranty.

I.

This case involves the interpretation of Minn.Stat. § 327A.02, subd. 1, and Minn.Stat. § 541.051, subd. 4. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

Appellant argues that a breach of warranty action is time-barred if not brought within the applicable two-year warranty period, regardless of when the defect was discovered. Respondents argue that the statutory scheme reflects the legislative intent to provide statutory warranties on new homes and to allow homeowners to bring claims, so long as those claims are brought within two years of discovery of the defect.

Appellant argues that under Oreck, respondents’ cause of action is barred because it was not brought within the warranty period. See Oreck, 602 N.W.2d at 424. But Oreck, the only Minnesota appellate decision to deal with statutory home-warranty provisions and statutes of limitation and repose, is of only marginal assistance here because it is distinguishable from the present controversy.

The Orecks contracted with Harvey Homes for the construction of a new home. Id. at 425-26. The Orecks experienced problems with their new home, including water leakage and improperly installed windows, id. at 426, and eventually sued Harvey Homes, claiming that Minn.Stat. § 327A.02, subd. 1(c), provided a means to recover against the contractor because the defects were “major construction defects.” Id. at 429-30. Under Minn.Stat. § 327A.02, subd. 1(c), major construction defects have a ten-year warranty period, as opposed to the two-year warranty period in Minn.Stat. § 327A.02, subd. 1(b).

This court held, in Oreck, that the statutes must be read in conjunction. See id. at 430. The court stated that even if the defects claimed were major construction defects, and thus subject to the ten-year limitation period, the statute of limitations contained in Minn.Stat. § 541.051, subd. 4, still applied. Id. Further, the Oreck court cited Metro. Life Ins. Co. v. M.A Mortenson Co., 545 N.W.2d 394 (Minn.App.1996), which held that when an injury is discovered, the statute limitations, not the warranty period, is dispositive in determining when the claim must be brought. Id. at 400-01. Therefore, because the Orecks failed to bring their claim within two years after the discovery of the defect, their claim was barred. Oreck, 602 N.W.2d at 431.

Oreck is similar to this case because it involves the interplay between § 541.051 and § 327A.02, and examines the warranty period’s relationship with the statute of limitations, but the similarities end there. The Oreck court was specifically dealing with a homeowner bringing an action within the alleged ten-year warranty period but outside the two-year “discovery” period. Oreck, 602 N.W.2d at 430.

In our present dispute, the two-year warranty period ended before respondents found the defect or reported the defect to the homebuilder. According to the district court, the warranty period began to run in mid-June 1997, the day the court found respondents moved into their home. See MinmStat. § 327A.01, subd. 8(a). Mr. Koes testified that the first time he discovered the defect in the drain tile system was in early July 1999. It is undisputed that respondents first gave written notice to appellant on September 10, 1999, well within two years after discovery of the construction problems.

The goal in reading a statute is to effectuate the purpose of the legislature. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986); see also Minn.Stat. § 645.16 (1998). The legislative goal, as expressed in the relevant statutes at issue here, was the protection of the buyers of new homes.

Generally, Minn.Stat. § 541.051, subds. 1-3, provide that a cause of action may be brought up to 12 years after “substantial completion of the construction.” But, respondents argue that the statutory-home-warranties exemption set forth in § 541.051, subd. 4, was specifically enacted so that those claims would not be limited by the § 541.051, subd. 1, statute of limitations, but instead would be governed by the six-year statute of limitations provided in Minn.Stat. § 541.05, subd. 1(1) (1998), which governs certain contracts and other obligations.

According to the plain language of the statute, the statute of limitations set forth in Minn.Stat. § 541.051 does not apply to § 327A.02. Section 541.051, subd. 4, does not expressly state that the breach must be discovered within the warranty period. See Ly v. Nystrom, 615 N.W.2d 302, 315 (Minn.2000) (Page, J., concurring in part, dissenting in part) (a court should not read into a statute what the legislature has left out). The statute only provides that the action “shall be brought within two years of the discovery of the breach.” Minn. Stat. § 541.051, subd. 4. Further, there is no other reference to any statute of repose that limits the time in which a cause of action must be brought for breach of warranty under § 327A.02.

Respondents notified the appellant-homebuilder within the six-month period required by MinmStat. § 327A.03(a) and brought their cause of action within two years after the discovery of the defect. Therefore, they satisfied the two-year requirement set forth in MinmStat. § 541.051, subd. 4. The legislature limited respondents’ rights to recovery by exempting the builder from liability if the homeowner discovered or “should have discovered the loss or damage” more than six months before the claim was filed. Minn. Stat. § 327A.03(a). But here, respondents did not discover the breach until after the two-year warranty period and, indeed, there was no evidence presented that they should have discovered the defect any earlier. In fact, appellant admits the earliest respondents could have discovered the de-feet was July 26, 1999. Under these circumstances, respondents’ claim is not barred by the statute of limitations provided in Minn.Stat. § 541.051, subd. 4.

Our analysis is not without its problems. As appellants correctly point out, there is no clear statute of repose that even arguably applies to the new-home statutory warranty at issue here, and thus, there is at least a hypothetical potential for stale claims extending many years into the future because the homeowner was not in a position to discover the defect or damage.

Perhaps the legislature intended to cut off such claims and the absence of a statute of repose (or a clear, non-discovery-based statute of limitations) applicable to the specific new-home warranty at issue here was an oversight. But whether the decision was intended or inadvertent, the public policy issues associated with statutes of limitation and repose are for the legislature to determine. If a statute needs to be changed, the change must come from the legislature, regardless of whether the need for the change arose from an inadvertent mistake by the legislature or a purposeful omission. See Mar-tinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987), review denied (Minn. Dec. 18, 1987).

II.

We turn next to appellant’s claim that respondent changed the grade of the property and, therefore, under the statute, appellant was no longer responsible for any damages.

When reviewing mixed questions of law and fact, we correct erroneous applications of law, but accord the district court discretion in its ultimate conclusions and we review such conclusions under an abuse-of-discretion standard. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.1997).

Minn.Stat. § 327A.03 provides, in relevant part:

The liability of the vendor or the home improvement contractor under sections 327A.01 to 327A.07 is limited to the specific items set forth in sections 327A.01 to 327A.07 and does not extend to the following:
(h) Loss or damage from changes in grading of the ground around the dwelling or the home improvement by parties other than the vendor or the home improvement contractor * ⅜ ⅝.

Respondents and appellant disagree whether the property’s grade was changed by a party other than appellant. Not surprisingly, given the modest amount involved in this claim, there is no expert testimony about elevation levels, there are no before-and-after surveys, and there is little corroborative evidence of any kind. Given the limited record and the parties’ conflicting testimony, the district court’s conclusion essentially found respondents’ testimony more credible than appellant’s. Because the district court did not abuse its discretion in making these credibility determinations, we will not disturb the district court’s findings and conclusions of law on this issue. See Minn. R. Civ. P. 52.01.

III.

Appellant contends that the district court erred in two ways when it reopened the trial after judgment was rendered. First, appellant argues that respondents’ motion was not supported by a memorandum of law and, therefore, was improper. Second, appellant argues that it was improper as a matter of law for the court to use Minn. R. Civ. P. 60.02 to amend its conclusions of law based solely on judicial error.

Appellant argues that the respondents’ motion for relief under Minn. R. Civ. P. 60.02 was erroneously granted because the motion was based on what respondents alleged was judicial error. Minn. R. Civ. P. 60.02 provides:

On motion and upon such terms as are just, the court may relieve a party or the party’s legal representatives from a final judgment (other than a marriage dissolution decree), order, or proceeding and may order a new trial or grant such other relief as may be just for the following reasons:
(a) Mistake, inadvertence, surprise, or excusable neglect;
(f) Any other reason justifying relief from the operation of the judgment.

There is support for appellant’s claim that a rule 60.02 motion should not be used to correct judicial error. See Carter v. Anderson, 554 N.W.2d 110, 113-14 (Minn.App.1996), review denied (Minn. Dec. 23, 1996). We do not need to address this issue because respondents also requested a new trial under Minn. R. Civ. P. 59.01, and the district court used this rule to amend its original findings and conclusions. There is no doubt that a motion for a new trial, or for amended findings of fact and conclusions of law, can be granted by the district court on the basis that the court made an error of law at trial. Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn.1996). We therefore conclude that the district court properly corrected its error of law by applying the provisions of Minn. R. Civ. P. 59.01. Consequently, appellant’s claims are without merit.

Appellant next claims that respondents’ motion seeking relief under Minn. R. Civ. P. 59.01 is defective because a memorandum of law did not accompany it. The Minnesota Rules of General Practice are clear that a memorandum of law is not required for non-dispositive motions. The rule deals only with the time period during which such documents, if any, must be filed:

No motion shall be heard until the moving party serves a copy of the following documents on the other party or parties and files the original with the court administrator at least 14 days prior to the hearing:
(1) Notice of motion and motion;
(2) Proposed order;
(3) Any affidavits and exhibits to be submitted in conjunction with the motion; and
■ (4) Any memorandum of law the party intends to submit.

Minn. R. Prac. 115.04(a) (emphasis added). Because a memorandum of law is not required for non-dispositive motions, appellant’s claim is without merit.

Appellant also challenges the district court’s subject-matter jurisdiction because the parties allegedly agreed to arbitrate any claims arising from the home-sale contract. Subject matter jurisdiction concerns a court’s power to hear certain issues and answer particular questions. Cochrane v. Tndor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn.App.1995), review denied (Minn. May 31, 1995). “[L]ack of subject matter jurisdiction may be raised at any time, including for the first time on appeal.” Id. (citations omitted). Appellate courts review determinations of subject matter jurisdiction de novo. Bisbee v. City of Fairmont, 593 N.W.2d 714, 717 (Minn.App.1999).

A contractual agreement to arbitrate disputes does not strip the district court of its subject matter jurisdiction to resolve the dispute. Park Constr. Co. v. Indep. Sch. Dist. No. 32, 209 Minn. 182, 186, 296 N.W. 475, 477 (1941). But an arbitration agreement will only be enforced if enforcement is sought in a timely manner. See Minn.Stat. § 572.08 (1998); see also Niazi v. St. Paul Mercury Ins. Co., 265 Minn. 222, 230-31, 121 N.W.2d 349, 355 (1963). An arbitration agreement may create a right to ai'bitration, but that right can be waived. Bast v. Capitol Indent. Corp., 562 N.W.2d 24, 29 (Minn.App.1997).

The supreme court has held

that a party to a contract containing an arbitration provision will be deemed to have waived any right to arbitration if judicial proceedings based on that contract have been initiated and have not been expeditiously challenged on the grounds that disputes under the contract are to be arbitrated.

Brothers Jurewicz v. Atan, Inc., 296 N.W.2d 422, 428 (Minn.1980) (citations omitted). Therefore, the presence of an arbitration agreement does not divest the district court of its power to hear the case, and the provision may be waived through the actions of the parties.

Although appellant raised the arbitration issue in the district court proceedings in its trial memorandum, the arbitration disclosure and residential-real-property-arbitration agreement were not exhibits at trial. The district court specifically explained that respondents could have been forced to arbitrate if the arbitration agreement was presented, but appellant never produced the document. Because appellant failed to produce the agreement at any level of these proceedings, we find that appellant has waived the arbitration provision. See id. Furthermore, ordering the parties to arbitrate at this point in the litigation would prejudice respondents, who relied on appellant’s failure to produce the arbitration agreement at every stage of this litigation. See Preferred Fin. Corp. v. Quality Homes, Inc., 439 N.W.2d 741, 744 (Minn.App.1989).

Finally, we turn to appellant’s claim that the district court erred (1) by speaking to the opposing party outside the presence of appellant and counsel and (2) by contacting an official of the City of Vadnais Heights regarding the drain tile. Appellant’s first argument is based on Minnesota Code of Judicial Conduct, which prohibits ex parte communication between a judge and a party:

(7) A judge shall accord to every person who has a legal interest in a proceeding, or person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except that:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

Minn.Code of Judicial Conduct, Canon 3A(7)(a)-(b) (1996).

While it is true that there was some ex parte communication between the district court and respondents, the record does not indicate that any substantive discussions occurred, other than a conversation regarding whether the drain tile was part of the plumbing system. It also appears that appellant and counsel were in the courtroom by the time the district court vacated its order, because, immediately thereafter, appellant’s counsel made an argument concerning the order.

Even assuming that (1) there was an ex parte communication and that (2) this communication constituted error, appellant bears the burden of demonstrating prejudicial error. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn.App.1993), review denied (Minn. June 28, 1993). While the ex parte communication here is certainly troubling and should not have occurred, appellant has not shown any prejudice from the very limited ex parte communication that took place. Furthermore, the district court found for appellant in its first order, even after vacating its directed verdict. Therefore, appellant’s claim fails.

Appellant also challenges the district court’s ex parte communication with the City of Vadnais Heights. But the district court specifically asked respondents and counsel for appellant if they would permit the district court to make such an investigation. Because appellant failed to object at the time of trial to this outside investigation by the district court, appellant waived this argument. Thiele v. Stick, 425 N.W.2d 580, 582-83 (Minn.1988).

Respondents also request attorney fees on appeal. “A party seeking attorneys’ fees on appeal shall submit such a request by motion under Rule 127.” Minn. R. Civ.App. P. 139.06, subd. 1. Be-cáuse respondents failed to file a Rule 127 motion for attorney fees on appeal, they are not currently entitled to attorney fees. See In re Marriage of Crockarell, 631 N.W.2d 829, 837 (Minn.App.2001), review denied (Minn. Oct. 16, 2001).

DECISION

Respondent-homeowners may bring an action under Minn.Stat. § 327A.02, subd. 1(b), after their two-year warranty period expires, if the action is brought within the two-year limitations period in Minn.Stat. § 541.051, subd. 4, and meets the six-month reporting requirement of § 327A.03(a). The district court was also within its discretion in making a credibility determination and finding that the grade of the home had not changed. See Minn. Stat. § 327A.03(h). Furthermore, the district court properly found that appellant had waived the provisions of the arbitration agreement by failing to introduce the agreement into evidence at any level of the proceedings. Finally, we conclude that appellant’s arguments concerning procedural irregularities at the district court level are without merit.

Affirmed.

      . Appellant's attorney admitted during oral arguments that there was at least some "defect” associated with the drain-tile system. But appellant also makes the puzzling argument that the defect was water entering the system. The district court found that the misplacement of the drain tile was the problem, and the record supports the conclusion that the defect was the manner in which the system was installed and not the end result of water appearing in the heating system.

      . There is some support in other jurisdictions for this proposition. The Supreme Court of Virginia has held that Virginia’s two-year warranty on all "common elements” of a condominium can be brought outside the two-year warranty period, but must be brought within the statute of limitations for breach-of-warranty suits. See Harbour Gate Owner's Ass’n v. Berg, 232 Va. 98, 348 S.E.2d 252 (1986). Furthermore, Minn.Stat. § 541.05 provides a general six-year limitation statute for several actions such as conversion, trespass, and certain contract actions. But in § 541.051, subd. 4, the legislature specifically provided a two-year discovery rule for § 327A.02 claims. In matters of statutory construction, a particular provision controls a general provision. See Minn.Stat. § 645.26, subd. 1 (2000); Fagerlie v. City of Willmar, 435 N.W.2d 641, 644 (Minn.App.1989) (holding § 541.051, subd. 1, applied to nuisance claim because it was more particular than the "catch-all” provision found in § 541.05, subd. 1(2)). But in the present case the application of either the six-year statute of limitations found in § 541.05, subd. 1(1), or the two-year limitation found in § 541.051, subd. 4, does not bar respondents’ claim. Therefore, we leave for another day the issue of which statute of limitations applies.

      . The legislature has provided for other discovery-based statutes of limitation. For example, fraud claims do not accrue until "dis-coveiy by the aggrieved party of the facts constituting the fraud.” Minn.Stat. § 541.05, subd. 1(6) (2000).


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 184
    STATE of North Dakota, Plaintiff and Appellee, v. Robert L. JOHNSON, Defendant and Appellant.
    Nos. 20010025-20010027.
    Supreme Court of North Dakota.
    Dec. 5, 2001.

      Leo Albert Ryan, Assistant State’s Attorney, Jamestown, N.D., for plaintiff and appellee.
    Eric P. Baumann, Kropp Law Offices, Jamestown, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Robert Johnson appealed from a judgment of conviction for simple assault of a correctional facility employee and contact by bodily fluids or excrement with a correctional facility employee. We conclude the trial court committed obvious error in instructing the jury that the defendant had the burden of proof on the defense of lack of criminal responsibility, and we reverse and remand for a new trial.

I

[¶ 2] While serving time as an inmate at the James River Correctional Center, Robert Johnson was placed on a suicide watch and was not allowed to have a towel in his cell. After returning from a shower, Johnson refused several requests by prison guards to return the towel he had been given. Eventually, five guards entered Johnson’s cell and forcibly removed the towel. During the altercation Johnson kicked and spit on one guard, and also spit on another guard. Later that day, as a guard was attempting to slide food into Johnson’s cell, Johnson threw a cup of urine on him.

[¶ 3] Johnson was charged with one count of simple assault of an employee of a correctional facility and two counts of contact by bodily fluids or excrement with an employee of a correctional facility. See N.D.C.C. §§ 12.1-17-01, 12.1-17-11. Johnson raised the defense of lack of criminal responsibility and introduced expert evidence at trial. The trial court instructed the jury that lack of criminal responsibility is an affirmative defense and that Johnson bore the burden of proving the defense by a preponderance of the evidence. The jury found Johnson guilty and a judgment of conviction was entered.

[¶ 4] On appeal, Johnson raised issues of lack of criminal responsibility and issues relating to the sentence imposed by the trial court. After oral argument, this Court requested the parties to file supplemental briefs on the issues of (1) whether lack of criminal responsibility under N.D.C.C. § 12.1-04.1-01(1) is an affirmative defense, and (2) if lack of criminal responsibility is not an affirmative defense, did the trial court’s instructions to the jury, which placed the burden of proof on the issue upon the defendant, constitute obvious error under N.D.R.Crim.P. 52(b)?

II

[¶ 5] Lack of criminal responsibility is a defense to criminal conduct:

An individual is not criminally responsible for criminal conduct if, as a result of mental disease or defect existing at the time the conduct occurs:
a. The individual lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the conduct is the result of a loss or serious distortion of the individual’s capacity to recognize reality; and
b. It is an essential element of the crime charged that the individual act willfully.

N.D.C.C. § 12.1-04.1-01(1).

[¶ 6] For purposes of allocating the burden of proof in criminal cases, N.D.C.C. § 12.1-01-03 distinguishes between “defenses” and “affirmative-defenses”:

12.1-01-03. Proof and presumptions.
1. No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.... “Element of an offense” means:
e. The nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.
3. Subsection 1 does not apply to any defense which is explicitly designated an “affirmative defense”. An affirmative defense must be proved by the defendant by a preponderance of evidence.

The nonexistence of a “defense” is an element of the offense which the State must prove beyond a reasonable doubt; an “affirmative defense,” however, must be proved by the defendant by a preponderance of the evidence. See State v. Olander, 1998 ND 50, ¶ 20, 575 N.W.2d 658.

[¶ 7] The trial court in this case gave the pattern jury instruction on lack of criminal responsibility, which specifically states: “Lack of criminal responsibility is an affirmative defense.” N.D.J.I. — Criminal K-3.06. The court further instructed the jury:

Having asserted the defense lack of criminal responsibility, the burden rests upon the Defendant to prove it by the greater weight of the evidence....
Accordingly, although the State may have proved beyond a reasonable doubt all of the essential elements of the offense charged, the Defendant cannot be found guilty if the Defendant has proved this affirmative defense by the greater weight of the evidence. In that event, you must find the Defendant not guilty.

Pattern jury instructions are not controlling law, but are published as a guide by the State Bar Association, in conjunction with the North Dakota Pattern Jury Instruction Commission, with the caution that the instructions are “neither a restatement nor an encyclopedia of the prevailing law.” Sollin v. Wangler, 2001 ND 96, ¶ 11, 627 N.W.2d 159. In this instance, the pattern jury instruction contains an incorrect statement of the law.

[¶ 8] Under N.D.C.C. § 12.1-01-03(3), to be an affirmative defense, a defense must be “explicitly designated” as an affirmative defense. Lack of criminal responsibility is not explicitly designated as an affirmative defense, and the State concedes on appeal that it is an ordinary defense upon which the State should have borne the burden of proof. See also State v. Trieb, 315 N.W.2d 649, 653 n. 4, 654 n. 5 (N.D.1982) (trial court correctly instructed the jury that the State had burden of proof on lack-of-criminal-responsibility defense beyond a reasonable doubt).

. [¶ 9] This does not, however, end our inquiry in this case. Johnson not only failed to object to the erroneous instructions on the burden of proof for the lack-of-criminal-responsibility defense, he did not raise the issue in his brief on appeal. The question first arose when posed during oral argument by one of the members of the Court. Because N.D.R.Crim.P. 52(b) informs our decision on both the failure to object to the instruction at trial and the failure to raise the issue of the instruction on appeal, we consider them together.

[¶ 10] Although the trial court is initially responsible for correctly instructing the jury on the law of the case, both the prosecution and the defense have the responsibility to request and object to specific instructions. State v. Erickstad, 2000 ND 202, ¶ 17, 620 N.W.2d 136; State v. Mathre, 1999 ND 224, ¶ 6, 603 N.W.2d 173. To preserve the issue for appellate review under N.D.R.Crim.P. 30(c), a party must specifically object to the instruction at trial and distinctly state the ground for the objection. Enckstad, at ¶ 17; Mathre, at ¶ 5. When a defendant fails to properly object to a proposed instruction, the issue is not adequately preserved for appellate review and our inquiry is limited under N.D.R.Crim.P. 52(b) to whether the jury instructions constitute obvious error. State v. Glass, 2000 ND 212, ¶ 19, 620 N.W.2d 146; Enckstad, at ¶ 18.

[¶ 11] The Explanatory Note to N.D.R.Crim.P. 52(b) observes the rule “applies to both the trial courts and the appellate courts.” See also State v. Kraft, 413 N.W.2d 303, 307 (N.D.1987). The rule, as well as the Explanatory Note, provides that “errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Courts interpreting the corresponding federal rule have concluded “appellate courts can examine a critical issue affecting substantial rights sua sponte in criminal cases under Federal Rule of Criminal Procedure 52(b).” DeRoo v. United States, 223 F.3d 919, 926 (8th Cir.2000); see also Silber v. United States, 370 U.S. 717, 717-18, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962); Fisher v. United States, 328 U.S. 463, 467-68, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946). Because the rule applies to the appellate court as well as the trial court, we may, if the error affects substantial rights, notice the error although it was not raised on appeal.

[¶ 12] To establish obvious error under N.D.R.Crim.P. 52(b), the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights. State v. Miller, 2001 ND 132, ¶ 25, 631 N.W.2d 587; State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658. We exercise our power to notice obvious error cautiously, and only in exceptional circumstances where the accused has suffered serious injustice. Miller, at ¶ 25; Olan-der, at ¶ 12. In determining whether there has been obvious error, we examine the entire record and the probable effect of the alleged error in light of all the evidence. Erickstad, 2000 ND 202, ¶ 22, 620 N.W.2d 136; Olander, at ¶ 12.

[¶ 13] We cannot imagine an error more fundamental than incorrectly instructing the jury on the burden of proof. In a criminal case, due process requires that the prosecution prove each element of the offense beyond a reasonable doubt. State v. Rue, 2001 ND 92, ¶ 36, 626 N.W.2d 681; Olander, 1998 ND 50, ¶ 19, 575 N.W.2d 658. By erroneously instructing the jury that Johnson had the burden of proving he lacked criminal responsibility, rather than requiring the State to prove the nonexistence of the defense as an element of the offense, the court effectively required Johnson to prove his innocence.

[¶ 14] We explained the fundamental nature of such an error in Olander, in which we reversed for obvious error when the trial court failed to instruct that the State bore the burden of proof on self-defense:

Proper instructions about the burden of proof on the elements of a crime implicate fundamental due process. Those due process considerations form the foundation of our system of criminal procedure that an accused cannot be convicted of a crime unless the State proves every element of the offense beyond a reasonable doubt. Under North Dakota law, if there is evidence of self-defense, the State must prove, as an element of the offense, that the accused did not act in self-defense. The omission of an instruction on the allocation of the burden of proof for self-defense is magnified because the nonexistence of self-defense is an element of the crime, but was not so listed in the instructions.
We believe sustaining a conviction without informing the jury about an essential element of the crime would seriously affect the fairness, integrity, and public reputation of our system of criminal justice. As [United States v.] Olano [, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ] explains, an accused’s guilt or innocence is not the determinative factor; rather, the fairness and integrity of the proceeding is paramount. On this record, we decline to approve a process that so significantly undermines fundamental due process. The need for proper instructions on the burden of proof for the elements of a crime justify a limited exception to the general rule requiring a contemporaneous objection to jury instructions at trial. We therefore exercise our discretion and ilotice this obvious error. We hold Olander is entitled to a new trial with appropriate instructions on the State’s burden of proof on nonexistence of self-defense.

Olander, 1998 ND 50, ¶¶ 27-28, 575 N.W.2d 658 (citations omitted).

[¶ 15] The same result is required in this case. The State argues there is un-controverted evidence that would lead a jury to believe beyond a reasonable doubt that Robert Johnson had “substantial capacity to comprehend the harmful nature or consequences” of his act, and therefore, while there was error at the trial in giving an improper instruction, it did not rise to the level of obvious error. But, Johnson presented evidence raising an issue of fact on the defense of lack of criminal responsibility. The trial court’s instructions erroneously placed the burden of proof of an element of the crime upon Johnson, rather than upon the State. The jury should consider the evidence under the appropriate instruction. We exercise our discretion and notice this obvious error. We hold Johnson is entitled to a new trial with appropriate instructions on the State’s burden of proof.

[¶ 16] The judgment is reversed and the case is remanded for a new trial.

[¶ 17] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

      . In City of Beach v. Kryzsko, 434 N.W.2d 580 (N.D.Ct.App.1989), the court noted in dicta that the defendant had “raised the affirmative defense of lack of criminal responsibility.” The court's characterization of the defense was incorrect.