author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Kenneth M. HOLKER, a Minnesota Attorney, Registration No. 46267.
    No. A06-896.
    Supreme Court of Minnesota.
    May 3, 2007.

      Timothy Michael Burke, Saint Paul, MN, for Petitioner.
    Edward F. Kautzer, Saint Paul, MN, for Respondent.
   OPINION

PER CURIAM.

This attorney discipline case arose out of a petition filed by the Director of the Office of Lawyers Professional Responsibility against respondent Kenneth M. Holker alleging numerous violations of the Minnesota Rules of Professional Conduct and the Minnesota Rules on Lawyers Professional Responsibility (RLPR). After a hearing, the referee concluded that Holker had violated the following Rules of Professional Conduct as in effect before October 1, 2005: 1.3 (failing to act diligently in representing a client); 1.4 (failing to adequately communicate with the client); 1.15(a), as further interpreted by Lawyers Professional Responsibility Board Opinion No. 15 (failing to deposit client funds in a trust account); 1.15(b) (making early withdrawals from client funds before legal fees were earned); 1.15(c)(4) (failing to promptly deliver client funds as requested); 1.16(d) (failing to protect client interests upon termination of representation); 8.1(a)(1) (knowingly making false statements in connection with a disciplinary proceeding); 8.1(a)(3) (knowingly failing to respond to the director’s demand for information); 8.4(c) (engaging in conduct that is dishonest); and 8.4(d) (engaging in conduct that is prejudicial to the administration of justice). In addition, the referee concluded that Holker violated Rule 25, RLPR, by failing to cooperate with the director’s investigation. The referee recommended a six-month suspension and that Holker be required to petition for reinstatement. We adopt the referee’s recommendation.

In October 1977, Holker was admitted to practice law in Minnesota. For more than 15 years, his practice has been limited to estate planning and probate. Prior to this discipline action, Holker was admonished five separate times for: (1) failing to return client files (1982); (2) failing to timely pay interest accruing in a pooled client trust account to the Lawyers Trust Account Board (1990); (3) charging interest on legal fees without making adequate disclosures (1991); (4) failing to pay for advertisements that had been published in newspapers (1995); and (5) failing to adequately explain to clients the basis of his legal fees and using an inappropriate fee agreement (1998). In addition, on February 4, 2000, Holker was publicly reprimanded by this court and placed on probation for failing to timely file federal and state individual income tax returns, failing to timely file federal and state employer quarterly tax returns and failing to timely pay withholding taxes. In re Holker, 605 N.W.2d 104 (Minn.2000).

The current allegations stem from Holker’s representation of one client. On April 2,1997, a day after her sister passed away, the 78-year-old client contacted Holker about representing her in her role as personal representative of her sister’s estate. The client signed a retainer agreement with Holker on April 18.

The director claims that Holker failed to act diligently and to adequately communicate with the client to ensure that estate and income tax returns were prepared and timely filed. Holker faults the client for the untimely returns. In March 2001, Holker retained an accountant to prepare the unfiled tax returns for the estate. The director alleges that Holker failed to diligently provide the accountant with the information and documents necessary for the accountant to prepare the returns.

The director also claims that Holker failed to diligently request from the client the information necessary to commence the probate proceeding. The director claims that the information necessary to commence the proceeding was not requested until February 1999 and Holker concedes that the probate proceeding was not commenced until August 1999 — more than 27 months after the sister’s death. Holker does not dispute that from June 1997 through February 1998, and from May through December 1998, he failed to work on the client matter and failed to communicate with the client.

Holker admits that during his representation of the client, he paid himself from estate funds in an amount greater than the estate owed him for legal fees and expenses, and he failed to hold the unearned fees in a trust account.

In June 2008, the client retained R.H. to replace Holker as counsel for the estate. On June 27, R.H. requested that Holker forward the client’s file and all estate funds remaining in Holker’s trust account. The file was not given to R.H. until July 24, when R.H.’s law clerk picked up “the file.” The law clerk presumed that he received the “complete file.”

On July 18, 2003, R.H. filed a disciplinary complaint against Holker, alleging that Holker failed to commence and complete the client’s probate matter promptly, resulting in an increased tax liability to the estate. R.H. also alleged that Holker had liquidated many of the estate’s stock holdings without adequate communication with the client. In November, R.H. provided the director with a copy of the client’s file that he had received from Holker.

On August 18, 2004, Holker met with the director’s office and was questioned on a number of issues regarding the client’s case. The file Holker had provided to R.H. did not contain correspondence between Holker and the client addressing several of the issues that were discussed. Holker told the director’s office that R.H. had not received a copy of the entire client file because R.H.’s law clerk had left a “couple stacks” of things behind at Holker’s office. The director’s office requested that Holker produce the additional file materials that were allegedly left behind. Four months later, Holker provided the director’s office with five letters from Holker to the client that were not included in the file that Holker originally provided to R.H. The director alleges that each of these letters was fabricated.

Holker ordered a transcript of the referee’s hearing, thereby preserving his right to challenge the referee’s factual findings. Rule 14(e), RLPR. Nevertheless, this court will only set aside the referee’s findings in a disciplinary action if “upon review of the entire evidence, a reviewing court is left with the definite and firm conviction that a mistake has been made.” In re Pinotti, 585 N.W.2d 55, 62 (Minn.1998). “Allegations of professional misconduct must be proved by clear and convincing evidence.” In re Moeller, 582 N.W.2d 554, 556 (Minn.1998).

Holker does not challenge the referee’s findings that he violated Minn. R. Prof. Conduct 1.15(a) and (b) by failing to deposit client funds in a trust account and paying himself legal fees before they were earned. He also does not explicitly challenge the referee’s finding that he violated Minn. R. Prof. Conduct 1.15(c)(4) by failing to promptly deliver client funds as requested.

Minn. R. Prof. Conduct 1.3 and 1.1

Rule 1.3 requires that a lawyer “act with reasonable diligence and promptness in representing a client.” Rule 1.4(a) provides that a lawyer must “keep a client reasonably informed about the 'status of a matter and promptly comply with reasonable requests for information.” The director argues that Holker’s failure to ensure that the estate and income tax returns were timely filed and to timely commence the probate proceeding demonstrate Holker’s failure to act diligently and to communicate with the client.

Holker does not dispute that the estate and income tax returns were untimely filed. But Holker faults the client for failing “to act diligently or promptly in providing * * * the documents and information” needed to timely prepare the tax returns. There is ample evidence to support the referee’s findings that Holker bears responsibility for the late filing of the returns.

First, Holker’s billing statement indicates that in April 1997 he discussed with the client “possible estate and income tax ramifications” and the “importance of completing [the] last four years income tax returns.” Yet, from June 1997 through February 1998, a nine-month period, and from May through December 1998, an eight-month period, Holker has no record of working on the client’s case or communicating with the client.

Second, the fee agreement between Holker and the client states that Holker was going to work on the “Probate Estate” of the client’s sister. The fee agreement does not discuss who would take responsibility for tax matters related to the estate.

Third, Holker testified that the client told him that Robert Chase, a long-time friend of the client, would be handling all unfiled estate and income tax returns. Holker argues that he acted with reasonable diligence because the client had hired Chase to do the tax preparation work for the estate, and Holker was simply “waiting for Chase to complete his work.” But Holker could not recall having any communications with Chase and, as mentioned above, Holker had little to no communication with the client. Holker did not even attempt to contact Chase until December 2000, when he learned that Chase had passed away in mid-2000.

After hearing of Chase’s death, Holker hired an accountant to prepare all of the unfiled tax returns. The accountant testified that he was hired to work for Holker, not the estate, and that he understood that he had to go through Holker to get information from the client. The accountant testified that in May 2001, he sent Holker a list of items he needed for the 1994 income tax return, which Holker failed to provide. The accountant’s testimony is supported by (1) Holker’s billing statement, which indicates that in May 2001, Holker received the accountant’s request; and (2) the absence of a record showing that Holker provided the requested information. The accountant renewed his request in April 2002.

Fourth, Holker admitted that he failed to commence the probate proceeding until August 1999, more that 27 months after the sister’s death.

Finally, Holker does not dispute that the client “was extremely — at times, uncontrollably — distraught, in a pronounced state of depression and unable to handle the affairs of her sister’s estate.” Therefore, it would not have been reasonable for Holker to rely on the client to compile all relevant information and documentation for completion of the tax returns.

We conclude that the evidence supports the referee’s finding that Holker violated Rules 1.3 and 1.4.

Minn. R. Prof. Conduct 1.16(d)

Rule 1.16(d) requires that “[u]pon termination of representation, a lawyer shall take steps * * * to protect a client’s interests, such as * * * surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.”

Holker disputes the referee’s finding that he failed to provide the client’s entire file to the client’s new lawyer, R.H. He claims that R.H.’s law clerk failed to take the entire file. The law clerk testified that he went to Holker’s office, where he picked up the file after someone said that “the file” was ready. As the law clerk understood it, “what [he] had was the complete file.” Holker’s secretary testified that she was responsible for photocopying the client’s file to transfer to R.H.’s office, and the law clerk took “everything [she] had photocopied.”

We conclude that the evidence supports the referee’s finding that Holker violated Rule 1.16(d).

Minn. R. Prof. Conduct Rules 8.1(a)(1) and (3) and 8.4(c) and (d)

Rule 8.1 requires that a lawyer, in connection with a disciplinary matter, must not “knowingly make a false statement of material fact[,] * * * or knowingly fail to respond to * * * [the director’s] lawfully authorized demand for information.” Rule 8.1(a)(1), (3). Rule 8.4 states that it is misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” and “conduct that is prejudicial to the administration of justice.” Rule 8.4(c), (d).

The director alleges that Holker fabricated five documents that were not contained in the file provided to R.H. and were delivered to the director months after his meeting with Holker to review the file. Holker asserts that the originals of these documents had been damaged or destroyed and that he had to recreate them when it became clear that they were missing from the file. Holker’s daughter testified that she was given the client’s file by Holker in “July of 2003 to clean up because it[ ][was] damaged.” The daughter testified that she copied documents that were “smeared or wrinkly.” She also testified that some documents were too damaged to copy, so she reprinted them from a computer disk that contained documents related to the client’s file. She testified that she was given all of the letters in the client’s file, but not every letter needed to be reprinted or retyped. She could not remember photocopying, reprinting, or retyping any of the five documents in question.

The referee found that the letters were fabricated based on the following facts:

a. Each of these letters purports to address an issue [Holker] was specifically asked about during the August 18 meeting [with the director].
b. The December 7, 1998, letter shows a “763” area code with [Holker’s] telephone number. However, the 763 area code did not go into effect until February 2000, more than a year later.
c. The March 1, 2001, letter shows a “612” area code with [Holker’s] telephone number. However, the 612 area code ceased to be in effect in that area on January 14, 2001. Additionally, other letters written before and after that date reflect the 763 area code.
d. Each of the letters bears a return address formatted differently from other letters written during the same period as the letters in question.
e. Each letter fails to reflect [Holker’s] post office box number, which appears on all of the letters in the file that [Holker] provided to [R.H.] that were written during the same period.

Holker argues that the referee did not make his finding that the letters were fabricated on the basis of clear and convincing evidence. Although the referee found that the letters “appear” to have been fabricated, we are satisfied that the referee did in fact find by clear and convincing evidence that Holker fabricated those letters. The referee supported the finding by the five specific subfindings quoted above. Further, the referee made other findings that were based on the conclusion that the five letters had been falsified. The referee found that Holker had failed to communicate with the client from June 1997 through February 1998, and from May through December of 1998. One of the five letters was dated December 7, 1998, and fell within this period. The referee found that Holker had failed to request the names and addresses of the beneficiaries from the client until February 1999. One of the letters purports to ask for this information on April 25, 1997. And the referee found that none of the documents in the original file that had been produced to the director contained any damage. Finally, the referee made the conclusion of law that Holker had engaged in conduct that is dishonest and prejudicial to the administration of justice.

We conclude that the evidence supports the referee’s finding that Holker violated Rules 8.1(a)(1) and (3), and 8.4(c) and (d).

Rule 25, RLPR

Rule 25(a)(1) requires that a lawyer “who is the subject of an investigation” cooperate with the director “by complying with reasonable requests, including requests to [fjurnish designated papers, documents or tangible objects.” Rule 25(b) specifically states that violation of the foregoing requirement is unprofessional conduct and shall constitute a ground for discipline. Id.

Holker disputes that he failed to cooperate with the director’s investigation, stating that any “perceived” lack of cooperation is primarily attributable to his lawyer’s “unavailability and apparent inability” to provide the documents the director requested. The record supports the referee’s finding that Holker failed to cooperate with the disciplinary investigation.

At the August 18, 2004 meeting between Holker, his lawyer, and the director, Holker told the director that he would provide the documents that R.H.’s law clerk had allegedly failed to retrieve. On August 20, the director wrote to Holker’s lawyer requesting that those documents be provided by August 30. The director renewed this request on September 1 and 8. Finally, on September 23 the director wrote to Holker specifically requesting that Holker call the director when he received the director’s letter. Holker did not respond until December 30, when he sent a letter enclosing the documents from the client’s file that Holker claimed had been left behind by R.H.’s clerk.

Holker failed to provide other documents that the director had requested on August 20, 2004. The director repeated his request for those documents on January 19, January 24, and February 23, 2005. On March 11, Holker’s new lawyer provided some of the requested documents, but failed to provide others. After two more requests, Holker’s lawyer finally produced the remaining documents on April 12.

We conclude that the evidence supports the referee’s finding that Holker violated Rule 25.

Aggravating Factors

Holker challenges the referee’s finding that Holker’s disciplinary history was an aggravating factor. Holker argues that because four of the five admonitions are over 10 years old and none of the prior discipline is related to the current matter, his prior discipline does not aggravate his misconduct. This argument is unpersuasive.

A lawyer’s prior disciplinary history is relevant to determine an appropriate sanction. See In re Gherity, 673 N.W.2d 474, 480 (Minn.2004). Holker has previously received five private admonitions and one public reprimand. The mere fact that Holker has been disciplined six prior times suggests that he has not renewed his “commitment to comprehensive ethical and professional behavior.” See In re Isaacs, 451 N.W.2d 209, 212 (Minn.1990) (quotation omitted). And the conduct for which Holker was previously disciplined is not dissimilar to the conduct in the current matter: in 1982, he was admonished for failing to return files; in 1990 he was admonished for violating accounting practices; and in 2000 he was publicly reprimanded for failing to timely file income tax returns and employer quarterly returns, and failing to timely pay withholding taxes.

Holker also challenges the referee’s finding that the fact that Holker is an experienced lawyer in the area of estate planning constitutes an aggravating factor. But, in In re Moeller, we accepted the referee’s conclusion that a lawyer’s substantial experience in the practice of law was an aggravating factor. 582 N.W.2d at 559-60; see also In re Oberhauser, 679 N.W.2d 153, 160 (Minn.2004) (considering the fact that the lawyer was “an experienced attorney”).

The referee also found that Holker does not take responsibility for his misconduct, but faults others. We have said that a failure to acknowledge or express remorse for disciplinary violations is an aggravating factor. In re Nathan, 671 N.W.2d 578, 585 (Minn.2003).

The referee recommended indefinite suspension for a minimum of six months with the requirement that Holker petition for reinstatement. Although we place great weight on the recommendation of the referee as to discipline, we retain the final responsibility for determining the appropriate sanction. In re Oberhauser, 679 N.W.2d at 159. In making that determination, we consider four factors: (1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession. In re Jagiela, 517 N.W.2d 333, 335 (Minn.1994).

Nature of Misconduct

The director cites three cases, among others, that demonstrate similar sanctions for similar misconduct: In re Wood, 716 N.W.2d 341 (Minn.2006); In re Peterson, 620 N.W.2d 29 (Minn.2000); and In re Salmen, 484 N.W.2d 253 (Minn.1992). We agree that these cases support an indefinite suspension for a minimum of six months for Holker’s misconduct.

Holker argues that his case is more similar to other cases where lesser discipline was ordered, citing among other cases: In re Stanbury, 614 N.W.2d 209 (Minn.2000); In re Terrazas, 581 N.W.2d 841 (Minn.1998); and In re Thedens, 557 N.W.2d 344 (Minn.1997). In Stanbury we ordered public reprimand and two years of unsupervised probation for the lawyer’s failure to cooperate with the director. 614 N.W.2d at 214. But that case is not comparable because Stanbury’s failure to cooperate was the only violation before the court. In Terrazas we likewise ordered public reprimand and two years of probation, and there were rule violations in addition to the failure to cooperate with the director, but Terrazas did not have an adverse disciplinary history and there were several mitigating factors. 581 N.W.2d at 841, 845-46. Finally, Thedens actually supports the referee’s recommendation because we ultimately ordered a six-month suspension for misconduct involving the failure to attend a panel hearing, liability for a civil tax-fraud penalty, failure to timely file federal and state income tax returns, and neglect of a single client matter. 557 N.W.2d at 344-45, 350.

Cumulative Weight

Next we consider the cumulative weight of Holker’s violations. Holker’s misconduct is serious, warranting strong discipline. See, e.g., In re Samborski, 644 N.W.2d 402, 407 (Minn.2002) (stating that by itself, noncooperation with the disciplinary process may warrant indefinite suspension and in connection with other misconduct, noncooperation increases the severity of the disciplinary sanction); In re Singer, 541 N.W.2d 313, 315 (Minn. 1996) (noting that failing to keep proper trust account records, and failing to cooperate with or misrepresenting facts to a disciplinary investigator, are significant breaches of professional conduct standards).

Harm to Public and Profession

Finally, we must consider the harm to the public and legal profession. Holker’s misconduct was partly directed against an elderly woman, who was clearly distressed over her sister’s death. There is great public concern over protecting vulnerable persons. See, e.g., In re Benson, 431 N.W.2d 120, 124-25 (Minn.1988) (disbarment ordered where lawyer’s misconduct was directed at an elderly, dependent person who was a lifelong friend of the lawyer). And Holker’s attempts to conceal his misconduct diminish the integrity of the disciplinary process and the profession as a whole. See, e.g., In re Margolis, 570 N.W.2d 688, 688, 692 (Minn.1997) (ordering a one-year suspension for forgery, attempted unauthorized settlement of client’s case, making false statements, and fabricating documents).

For the above reasons, we conclude that the record fully supports the referee’s factual findings, legal conclusions, and recommendation for discipline. We therefore hold that Holker’s misconduct warrants the discipline recommended by the referee.

Accordingly, we order that:

1. Respondent Kenneth M. Holker is indefinitely suspended from the practice of law in the State of Minnesota, commencing 20 days from the date of this decision, and is ineligible to apply for reinstatement for a minimum of six months after suspension;
2. Holker shall comply with the notice requirements of Rule 26, RLPR;
3. Holker shall pay to the director $900 in costs and disbursements, pursuant to Rule 24, RLPR; and
4. If Holker seeks reinstatement, he shall also comply in all respects with Rule 18, RLPR.

So ordered.

ANDERSON, G. BARRY, J., took no part in the consideration or decision of this case.

      . This court affirmed Holker's admonition on December 28, 1990. In re LMN, 463 N.W.2d 902 (Minn. 1990).

      .R.H. requested "all the files and records” pertaining to the client’s case on June 27, 2003. On July 9, this request was renewed in a follow-up letter requesting that Holker respond to the June 27 letter. On July 18, R.H. contacted the Office of Lawyers Professional Responsibility, requesting assistance in obtaining the client’s file and the remaining unused funds, which still had not been made available to him or the client. On July 21, Holker's secretary sent a fax to R.H. indicating that he could pick up "the file” on July 24.

      . The daughter testified that she helped "clean up” several files that were damaged in a tornado in 1997.

      . Holker’s secretary testified that Holker told her that he had fallen and the client’s file "went everywhere into the mud.” The secretary also testified that she had no recollection of ever "doing anything” to help clean up the client's file.


source: Caselaw Access Project

author: MEYER, Justice. HANSON, Justice PAGE, Justice

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. William Leroy FIELDS, Respondent.
    No. A04-2474.
    Supreme Court of Minnesota.
    May 3, 2007.

      Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, David J. Hauser, Otter Tail County Attorney, Fergus Falls, for appellant.
    Marie L. Wolf, Assistant State Public Defender, Minneapolis, for respondent.
   OPINION

MEYER, Justice.

In 2004, a jury in Otter Tail County convicted respondent William Leroy Fields of criminal sexual conduct for raping K.W. in the summer of 1997. In an unpublished decision, a divided panel of the court of appeals held that the prosecutor’s inquiry into a theft by Fields, an incident unrelated to the rape and not resulting in a conviction, constituted error because the prosecutor did not comply with the procedures for the use of Spreigl evidence. State v. Fields, No. A04-2474, 2006 WL 463524, at *4 (Minn.App. Feb.28, 2006). The court of appeals failed to consider whether the inquiry was admissible under Minn. R. Evid. 608(b). Fields, 2006 WL 463524, at *4. The court further held that a jury instruction regarding victim testimony corroboration was improper. Id. at *5. The court also indicated that parts of the prosecutor’s closing argument were “arguably” improper. Id. at *7. The court of appeals reversed and remanded based on the cumulative prejudicial effect of the claimed errors. Id. at *7-8. We reverse the decision of the court of appeals.

In 1997, Fields and J.F., his wife, lived in a trailer home on a dairy farm in Otter Tail County with their two daughters. J.F. is the older sister of K.W. In March 1997, K.W., her mother, and a younger sister moved to Minnesota so K.W. could receive treatment for scoliosis from a hospital in Minneapolis. They initially resided with the Fields family. Fields was 25 years old, and K.W. was 11 years old.

K.W. testified that, about one month after she moved into the trailer home, Fields began making suggestive remarks to her and touching her in a sexual manner. She also stated that he engaged in “dirty talk,” describing sexual things he wanted to do to her. KW. testified that one day, most likely in spring 1997, Fields lured her into his bedroom, shut the door, and raped her. K.W. said that after the rape was completed, Fields threatened her, telling her to act like nothing had happened or her family would be thrown out of the trailer and “something else” would happen. She said she thereafter avoided being alone with Fields and that the inappropriate touching and comments came to an end.

K.W. had surgery on her back in August 1997. By the time K.W. left the hospital, her family was no longer living with the Fields family. Following the summer of 1997, K.W. developed a number of personal problems, including personality changes, acid reflux, weight gain, poor performance at school, and a fast heart rate that is treated with prescription medicine.

K.W. did not tell anyone about the rape or Fields’ sexual advances for several years. She testified that she first mentioned Fields’ sexual misconduct in 2001, when she told her aunt, T.W., that Fields had said inappropriate things. K.W. said she first mentioned the rape in September 2003 when she told her mother. While K.W. had remained silent in part so that she could continue to have a relationship with Fields’ children, KW.’s nieces, K.W. decided to come forward because she was concerned about the quiet and moody behavior of one of Fields’ daughters. K.W. believed that the behavior of Fields’ daughter mirrored her own behavior following the rape. KW.’s mother called the police to report the crime.

A police detective interviewed KW. on September 16, 2003. KW. initially told the detective that Fields had touched her in a sexual manner and said inappropriate things, but did not reveal the rape. After discussing this interview with KW.’s mother, the detective conducted a second interview, and KW. revealed that Fields had raped her. The detective explained at trial that victims of sex crimes “don’t necessarily want to disclose all the information, sometimes for years, sometimes not on the first interview.”

T.W. confirmed that K.W. told her about the inappropriate touching and sexual comments in July or August of 2001. She also stated that K.W. had mentioned inappropriate comments by Fields before that time. She testified that KW. was reluctant to talk about the issue because she was worried about her family being able to see her nieces, Fields’ daughters. T.W. also indicated that Fields had in the past directed sexually suggestive remarks at her and at KW.’s mother.

KW.’s mother testified that in July 2001 she learned of KW.’s revelations to T.W. and that KW. denied them when questioned. KW.’s mother also stated that KW. later admitted that the revelations to T.W. in the summer of 2001 were true. KW.’s mother confirmed that KW. told her of the rape in September 2003.

Fields’ wife, J.F., testified that in 1997 she did not have a driver’s license and was nearly always in and around the trailer home, and that this made it very unlikely that the rape could have occurred as K.W. described it. She also described several instances when she believed that KW. had lied. She admitted that Fields sometimes made sexual comments to T.W. and to K.W.’s mother.

Fields testified in his defense, denying the rape occurred. Fields stated that his work schedule and the presence of others living in the trailer would have made it very difficult for the incident to have happened as K.W. described. Fields said that K.W. did not appear uncomfortable in his presence and did not try to avoid him. He admitted that he had made sexual comments to T.W. and to KW.’s mother.

During cross-examination of Fields, the prosecutor inquired about an incident when Fields was “in trouble basically for stealing from an employer.” Fields admitted the theft and conceded that he “went to court for that.” No objection was made to the state’s questions. Shortly after this inquiry, the district court instructed the jury sua sponte:

[T]he State has just introduced evidence of an occurrence at an earlier date * ⅞ *. This evidence was offered for the limited purpose of assisting you in determining whether the Defendant, Mr. Fields, committed those acts with which he is charged in the Complaint I have read to you in this courtroom. Mr. Fields is not being tried for, and may not be convicted of, any offense other than * * * the offenses charged in the Complaint. You are instructed specifically that you are not to convict Mr. Fields on the basis of any occurrence on an earlier date * * *.

Later, when discussing jury instructions, Fields’ counsel stated that the court

quite appropriately read the * * * limiting instruction when a prior criminal conviction is made reference to in the court, and I’d ask the Court to consider including that also now in the final jury instructions. I wasn’t really anticipating that. I certainly understand that once my client took the stand, that was fair game; but now that it has become a part of the trial, I’d ask the Court to include the jury instruction that you read as a part of the written instructions that we’re going to provide to the jury.

In response to a follow-up question from the court, the prosecutor stated: “I don’t believe there was a true conviction. I believe he acknowledged that he had been in trouble with the law * * Fields’ counsel then stated that “the tenor of the * * * comments went to the fact that he had acknowledged that he was convicted of the offense.” The court ultimately instructed the jury to “be careful to consider any previous conviction only as it may affect the weight of [Fields’] testimony. You must not consider any previous conviction as evidence of guilt of the offense for which [Fields] is on trial here.”

In addition, the prosecutor requested that the jury be instructed that KW.’s testimony need not be corroborated. While Fields’ counsel objected to the instruction as unnecessary and prejudicial, the court instructed the jury that “the testimony of a victim need not be corroborated.” In rebuttal argument, the prosecutor reminded the jury of this instruction.

The jury convicted Fields of one count of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subds. 1(a), 2(a) (1996); one count of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subds. 1(g), 2(a) (1996); one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subds. 1(a), 2(a) (1996); and one count of second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subds. 1(g), 2(a) (1996). The court found the convictions arose from a single behavioral incident, vacated three of the four counts, and imposed a sentence of 86 months in prison for first-degree criminal sexual conduct.

On appeal to the court of appeals, Fields argued that the state’s inquiry into the theft incident was improper, that it was error to instruct the jury that the victim’s testimony need not be corroborated, and that the prosecutor committed misconduct by vouching for witnesses and misstating the burden of proof during closing argument. The court of appeals agreed and reversed because it deemed the combined effect of multiple errors to have been prejudicial. Fields, 2006 WL 463524, at *7-8. The state sought review by this court, asserting that the inquiry into the theft was permissible for impeachment purposes under Minn. R. Evid. 608(b), that the inclusion of the witness testimony corroboration instruction was harmless error, and that the prosecutor’s closing argument was proper.

I.

The first question we address is whether the state committed prosecutorial misconduct by eliciting evidence of Fields’ theft without having first satisfied substantive and procedural requirements for the admission of that evidence. Fields asserts that the state failed to meet these requirements, and that its failure amounted to prosecutorial misconduct. The court of appeals concluded that the theft evidence was inadmissible as Spreigl evidence under Minn. R. Evid. 404(b) because the state did not comply with the notice requirements of Spreigl. Fields, 2006 WL 463524, at *4. The court of appeals failed to consider the state’s alternative ground for admissibility under Rule 608(b).

We have recently considered the principles that guide our inquiry when a claim of prosecutorial misconduct is asserted. The prosecutor is an officer of the court charged with the affirmative obligation to achieve justice and fair adjudication, not merely convictions. State v. Ramey, 721 N.W.2d 294, 300 (Minn.2006). Generally, a prosecutor’s acts may constitute misconduct if they have the effect of materially undermining the fairness of a trial. Id. Also, misconduct results from violations of clear or established standards of conduct, e.g., rules, laws, orders by a district court, or clear commands in this state’s case law. See id. at 301 (stating “[w]e expect that prosecutors, as well as defense counsel, are aware of our case law proscribing particular conduct as well as the standards of conduct prescribed by the ABA” and stressing impropriety of engaging in “clearly proscribed conduct”). Further, we have held that attempting to elicit or actually eliciting clearly inadmissible evidence may constitute misconduct. See State v. Williams, 525 N.W.2d 538, 544-45, 549 (Minn.1994).

Ordinarily, evidence of other crimes or prior bad acts of a defendant is not admissible to show behavior consistent with the character of that defendant. State v. DeWald, 464 N.W.2d 500, 502-03 (Minn.1991); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). However, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Minn. R. Evid. 404(b). In addition, prior misconduct, other than conviction of a crime, may be admissible for the purpose of attacking the witness’s credibility if the prior misconduct is probative of untruthfulness. Minn. R. Evid. 608(b).

Accordingly, if it is clear that evidence of Fields’ theft was not probative of truthfulness or untruthfulness as required by Rule 608(b) and thus inadmissible, then seeking to introduce that evidence may constitute misconduct. Similarly, if it is sufficiently clear that Rule 608(b) evidence was inadmissible because certain procedural requirements were not met, then the prosecutor, by seeking to elicit such evidence, may be committing misconduct.

In this case, the state elicited the following testimony during cross-examination of Fields:

Q: All right. Now, I mean, in your past, Mr. Fields, there’s been times that you haven’t been necessarily honest. Would you say that?
A: To a certain extent.
Q: And specifically, I’m just talking about a time in the state of Georgia when, I believe, you were in trouble basically for stealing from an employer. Do you recall that?
A: Yeah. But I didn’t lie about it.
Q: But you took from the employer.
A: Yeah.
Q: When was that exactly?
A: Ninety-six I think it was maybe.
Q: And you went to court for that and that — at that time?
A: Uh-huh.

Fields did not object to this line of questioning, but on appeal asserts that the state committed prosecutorial misconduct by eliciting this evidence without giving notice of its intent to do so. The state counters that the prior theft was admissible as evidence of prior bad acts for impeachment purposes under Minn. R. Evid. 608(b) and that it substantially complied with the requirements for admission of Rule 608(b) evidence. The state argues that any noncompliance was not prejudicial and did not rise to the level of prosecutorial misconduct. The state further argues that even if this court were to conclude that prosecutorial misconduct occurred, because Fields did not object to the evidence during trial, this court should not review the claimed error because Fields cannot establish that the error was plain or that it affected his substantial rights.

We first consider whether the defendant has demonstrated that the prosecutor erred by attempting to introduce evidence that was clearly inadmissible as substantive evidence. Because Fields did not object, we review the alleged misconduct under a plain error standard. Ramey, 721 N.W.2d at 302. At the time of Fields’ trial, Minn. R. Evid. 608(b) stated in relevant part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witnesses] credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witnesses] character for truthfulness or untruthfulness * * *.

The rule requires that the conduct at issue be “probative of truthfulness or untruthfulness.” We have held that evidence of commission of a theft, while not directly involving false statement or dishonesty, may be admitted in the discretion of the district court as evidence of truthfulness or untruthfulness. See State v. Clark, 296 N.W.2d 359, 367-68 (Minn.1980) (holding admission of evidence of auto theft not resulting in a conviction was proper under Rule 608(b) because “theft of the type described is sufficiently akin to crimes of dishonesty, such as forgery, bribery, fraud, and perjury, typically viewed as relevant to veracity”). Although Fields claimed he did not lie and few other details of the theft were elicited, other than that the theft did not result in a conviction, we conclude that it would have been within the district court’s discretion to conclude that evidence of a theft by Fields from an employer was probative of truthfulness or untruthfulness and, therefore, the evidence was admissible. Accordingly, the prosecutor did not err by attempting to admit evidence that was clearly inadmissible under Rule 608(b).

We next consider whether the prosecutor erred by attempting to circumvent clearly established procedural rules for the admission of Rule 608(b) evidence. We established the following procedural requirements for admission of Rule 608(b) evidence in State v. Fallin:

[T]he prosecutor in a criminal case generally may not cross-examine a defendant or defense witness pursuant to Minn. R. Evid. 608(b) about prior misconduct unless (a) the prosecutor has given the defense notice of intent to cross-examine pursuant to the rule, (b) the prosecutor is able to provide the trial court with sufficient evidentiary support justifying the cross-examination, and (c) the prosecutor establishes that the probative value of the cross-examination outweighs its potential for creating unfair prejudice to the defendant.

540 N.W.2d 518, 522 (Minn.1995). Fields asserts that our holding in Fallin requires the state to not only give notice of its intent to cross-examine a defendant under Rule 608(b), but also to request a pretrial hearing to obtain a ruling on the admissibility of the impeachment evidence. We do not read Fallin to establish such a clear command. Rather, Fallin suggested that the purpose of giving notice to the defense of the intended use of impeachment evidence is to “give[ ] the defendant an opportunity to request a hearing.” Id.

While Fallin describes the “proper approach” for using Rule 608(b) evidence and states that a prosecutor “generally may not” elicit 608(b) evidence without meeting certain safeguards, we did not explicitly state that 608(b) evidence is inadmissible if the prosecutor fails to comply. See Fallin, 540 N.W.2d at 522. By comparison, in Spreigl we addressed the use of evidence under Minn. R. Evid. 404(b) and stated clearly that such evidence is not to be received unless certain safeguards are met. Consequently, we conclude that Fallin did not clearly indicate that failure to satisfy its procedural requirements for admissibility of evidence under Rule 608(b) would result in the evidence being ruled inadmissible. Because Fallin did not create sufficiently clear requirements for admissibility of Rule 608(b) evidence and because the evidence of a prior theft was probative of Fields’ untruthfulness and likely admissible, we conclude that the prosecutor did not commit misconduct with her limited inquiry into the theft. Because Fields has not met his burden of establishing prosecutive error, we need not address whether any error was plain or whether it affected Fields’ substantial rights.

We caution prosecutors that we do not approve of either the prosecutor’s actions in this ease or failure to follow our recommendations more generally, even when such a failure falls short of misconduct. In addition, since Fields’ trial, Minn. R. Evid 608 has been amended to explicitly incorporate the holding of Fallin, so the safeguards described in Fallin are no longer merely the “proper approach” and are now prerequisites for admissibility of Rule 608(b) evidence. See Minn. R. Evid. 608(c). Hereafter, evidence offered under Minn. R. Evid. 608(b) shall not be received unless the notice required by amended Minn. R. Evid. 608(c) is memorialized in the record.

II.

Minnesota Statutes § 609.347, subd. 1 (2004), states “[i]n a prosecution under [Minn.Stat. §§] 609.109 or 609.342 to 609.3451, the testimony of a victim need not be corroborated.” Therefore, the district court’s instruction on victim testimony corroboration was an accurate statement of law. Nevertheless, the court of appeals has long held that it is error to instruct a jury that the testimony of a victim alone may support a conviction. See, e.g., State v. Johnson, 679 N.W.2d 378, 388 (Minn.App.2004), rev. denied (Minn. Aug. 17, 2004). In reliance on its prior decisions, the court of appeals held that the instruction in this case was erroneous because it might have caused the jury to give K.W.’s testimony undue weight. Fields, 2006 WL 463524, at *5. We are not asked to decide whether the instruction was erroneous because, for purposes of this appeal, the state concedes that it was error to give the instruction. The state’s sole argument is that the error was harmless.

“Erroneous jury instructions merit a new trial if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict.” State v. Valtierra, 718 N.W.2d 425, 433 (Minn.2006) (quotation omitted). Assuming, without deciding, that the district court erred in giving the instruction on victim testimony corroboration, it is clear that inclusion of the instruction was harmless beyond a reasonable doubt. We find it significant that the instruction was merely unnecessary rather than an inaccurate statement of law. See State v. Green, 719 N.W.2d 664, 672 (Minn.2006). The instruction did not under any circumstances mandate that the jury draw any particular inference, and the parties were free to argue for any conclusion they pleased. Moreover, the instruction was not given undue emphasis, as the prosecutor mentioned the instruction a single time. See State v. Olson, 482 N.W.2d 212, 216 (Minn.1992) (indicating that the prosecutor’s closing argument will be considered in determining the impact of an erroneous instruction on the verdict). Finally, the jury was instructed properly on burden of proof and presumption of innocence, and we generally assume that the jurors have followed the court’s instructions. See, e.g., State v. Steward, 645 N.W.2d 115, 122 (Minn.2002). Therefore, we conclude that the instruction did not have any significant impact on the jury’s verdict.

III.

Fields argues that the prosecutor committed misconduct during closing argument by vouching for the credibility of witnesses and by misstating the burden of proof by suggesting that Fields could not explain why K.W. would lie about the rape. The court of appeals stated that “statements made by the prosecutor * * * arguably shifted the burden to appellant to prove that he was not guilty.” Fields, 2006 WL 463524, at *7. However, the court did not explicitly conclude that the prosecutor’s closing argument was improper, saying only that the argument “standing alone, would not warrant reversal.” Id.

“A prosecutor may not personally endorse the credibility of witnesses.” State v. Swanson, 707 N.W.2d 645, 656 (Minn.2006) (citation omitted). However, the state is free to argue that particular witnesses were or were not credible. State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn.2003). When evaluating alleged vouching, “a court will look at the closing argument as a whole.” Swanson, 707 N.W.2d at 656. Misstatements of the burden of proof also constitute prosecutorial misconduct. State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000).

In this case, all of the allegedly objectionable statements discuss the credibility of witnesses in the context of the evidence before the court and the conclusions that can be drawn from that evidence. The prosecutor raised the issue of motive for K.W. to lie in the context of credibility, stating shortly thereafter that “the number-one factor is, when you accept that credibility of the witness, their interest or lack thereof in the outcome of the ease.” Fields fails to point to any explicit misstatement of the burden of proof. After reviewing the record, we conclude that the prosecutor’s argument, though inartful, did not constitute misconduct and instead made permissible arguments about credibility and reasonable inferences based on the evidence.

In sum, for all of the foregoing reasons, we hold that the court of appeals erred when it held that numerous errors were committed and that the combined effect of these errors was prejudicial.

Reversed.

HANSON, Justice

(concurring).

Although I concur with the outcome reached by the majority, I disagree with the analysis of the claim of prosecutorial misconduct that is based on the cross-examination of Fields about his prior theft from an employer. I conclude that the notice and pretrial hearing requirements set forth in State v. Fallin were intended to be prerequisites to the admissibility of evidence of other bad acts under Minn. R. Evid. 608(b). 540 N.W.2d 518, 522 (Minn. 1995).

In Fallin, we said that a prosecutor “generally may not cross-examine a defendant * * * about prior misconduct” unless the prosecutor has given notice, provided evidentiary support, and established that the probative value outweighs the prejudicial effect. Id. We further held that the district court “erred in permitting this cross-examination” where these procedures had not been followed. Id. The words “may not cross-examine” and “the trial court erred in permitting this cross-examination” make it clear that the evidence is not admissible. And those words also lead me to conclude that a prosecutor who pursues cross-examination in violation of Fallin has committed misconduct.

But, in Fallin we also held that the district court’s decision to permit the cross-examination was harmless error. Id. I would likewise hold that the brief cross-examination of Fields on the subject of his prior theft, in which he admitted to theft in general terms, was harmless error.

PAGE, Justice

(dissenting).

I respectfully dissent. First, I disagree with the court’s conclusion that the prosecutor’s cross-examination of Fields about the theft from his employer was not plain error. Because Fields did not object to the questioning, we review the prosecutor’s conduct under the plain error doctrine. State v. Mayhorn, 720 N.W.2d 776, 785 (Minn.2006). To determine whether the line of questioning was plain error, we look to the requirements of Minn. R. Evid. 608. As the court points out, at the time of Fields’ trial, Rule 608(b) required the conduct to be probative of truthfulness or untruthfulness. But the rule’s language demonstrates that the trial court was required to make the determination as to whether the conduct was probative of truthfulness or untruthfulness before the misconduct could be used for cross-examination:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness

Rule 608(b) (emphasis added). The rule’s language is clear that the conduct may be used only in the discretion of the trial court. It is the court’s role to determine whether the conduct is probative of truthfulness or untruthfulness, which necessarily must be done before a party uses the misconduct on cross-examination. The rule does not contemplate the conduct being used at the prosecutor’s whim.

In Fallin, we explained the requirements of Rule 608(b) in order to emphasize the rule’s mandate. See 540 N.W.2d at 521-22. Our decision in Fallin addressed the same circumstance presented in this case: the prosecutor confronted the defendant on cross-examination about specific uncharged conduct for the purpose of impeaching his credibility. Id. at 519. We expressed our concern in Fallin that “the defense apparently had no notice that the prosecutor intended to cross-examine defendant on the subject in question,” and the prosecutor’s offer of proof constituted nothing more than the assertion that the misconduct occurred. Id. at 522. It was in that context that we held that “[t]he proper approach would have been for the prosecutor to give pretrial notice, which would have given the defendant an opportunity to request a hearing on the issue before making a decision as to whether or not to testify.” Id. We then stated that the prosecutor generally may not cross-examine a defendant about other misconduct unless the prosecutor gives notice to the defense, is able to provide the trial court with sufficient evidentiary support justifying the cross-examination, and the prosecutor establishes that the probative value of the cross-examination outweighs its potential for undue prejudice. Id. These requirements, as laid out in Fallin, bolster the rule’s requirement that the trial court must make a determination before the cross-examination can begin.

In this case, the prosecutor did not follow the specific language of the rule as it was written at the time of trial, nor did she follow any of the procedures prescribed in Fallin. The record reflects that both the court and defense counsel expressed surprise over the prosecutor’s cross-examination of Fields about the theft from his employer. The state argues that it did not have a chance to create a record of notice being given because the defendant did not object before the state could demonstrate the cross-examination’s probative value. But both Rule 608(b) and Fallin place the burden on the state to give notice and thus to create the record. The state did not demonstrate to the trial court, and the court did not determine, whether the probative value of the prior misconduct outweighed its prejudicial effect. The record is devoid of any information about the circumstances regarding the alleged theft or how much, if at all, it related to truthfulness or untruthfulness. The court explains that whether to allow the questioning about the prior alleged theft was up to the discretion of the trial court and, therefore, the line of questioning was not clearly inadmissible. What the court fails to acknowledge is that, before the trial court could exercise discretion about whether to allow the questioning, the state had to follow Rule 608’s explicit language and satisfy the procedural requirements outlined in Fallin. Neither of those things happened here. Nor did the trial court have the opportunity to exercise its discretion. In giving the cautionary instruction, the trial court merely made an effort to clean up the problem created by the prosecutor after the cat was already out of the bag.

Additionally, the record contains no evidence to support the use of the theft from Fields’ employer in the prosecutor’s cross-examination, except the defendant’s affirmative response to the prosecutor’s question, “And specifically, I’m just talking about a time in the state of Georgia when, I believe, you were in trouble basically for stealing from an employer. Do you recall that?” The state cannot depend on the defendant’s answer and instead must have independent evidence of the misconduct. Fallin, 540 N.W.2d at 522 n. 5 (“[Regardless of whether or not the state is allowed to prove the prior conduct by presenting extrinsic evidence to the jury, the state must be able to satisfy the trial court that there is a valid basis for the insinuation on cross-examination.”). Because the state did not follow the requisite procedures, the prosecutor’s questioning was clearly impermissible and constituted plain error. Therefore, the prosecutor’s cross-examination constituted misconduct.

I also disagree with the court’s conclusion that the prosecutor did not commit misconduct in her closing argument to the jury. Again, we use the plain error analysis because Fields did not object during the closing argument. Mayhorn, 720 N.W.2d at 785. Our case law is clear that misstating the burden of proof constitutes prosecutorial misconduct. State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000). The court contends that Fields failed to point to any explicit misstatement of the burden of proof, but the prosecutor’s statement about Fields’ inability to explain KW.’s motive for claiming that he sexually assaulted her erroneously suggested that Fields had the burden to explain why K.W. would lie.

Fields had no burden to explain KW.’s motives for claiming that he sexually assaulted her because he had no burden to present any evidence whatsoever. See In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). But the prosecutor implied in her closing argument that Fields had to explain why K.W. would claim he sexually assaulted her when she pointed out that, although Fields denied assaulting the victim, “[he] couldn’t come up with why [he] thought [K.W.] would do this.” The prosecutor then immediately told the jury to think about the fact that Fields gave no explanation for KW.’s motives, stating, “You think about that when you go back in the room.” The prosecutor thus left the jury with a false impression of the state’s burden of proof, implying that the defendant had the burden to explain K.W.’s motives.

The prosecutor’s argument also left the jury with the impression that it had to conclude that K.W. was lying in order to acquit Fields. We have held that it is plain error for a prosecutor to ask “were they lying” questions when the questions “shifted the jury’s focus by creating the impression that the jury must conclude that * * * witnesses were lying in order to acquit [the defendant].” State v. Morton, 701 N.W.2d 225, 235 (Minn.2005).

The fact that the prosecutor emphasized the importance of Fields’ testimony in the context of a misleading statement of the burden of proof only emphasizes that statement’s problematic nature. The prosecutor began her closing by explaining that K.W. had been violated and then said that the true issue in the case was witness credibility and whether the defendant had sexually assaulted K.W. She said, “We’ll talk about those things as credibility and why in the world would [K.W.] say such a thing if it weren’t true.” She then discussed the elements of the case, concluded that most elements were not disputed, and explained that the disputed issue in the case was “whether or not the Defendant intentionally penetrated [K.W.] in this case.” Directly following that statement the prosecutor discussed Fields’ testimony and the fact that Fields could not explain KW.’s motives. The prosecutor’s emphasis on Fields’ testimony, and the statement itself, likely presented a source of confusion for the jury about the burden of proof and whether the defendant was required to explain KW.’s motives. See State v. Strommen, 648 N.W.2d 681, 690 (Minn. 2002) (noting that, even though the court correctly instructed the jury on the burden of proof, the prosecutor’s misstatement of the burden of proof “presented a source of confusion for the jury and may have played a role in the decision to convict”). Even though a prosecutor is permitted to discuss witness credibility, a prosecutor is not permitted to insinuate that a defendant has the burden of explaining the motives of another witness. Much like the “were they lying” questions in Morton, the prosecutor’s comment constituted plain error and thus prosecutorial misconduct.

Because the prosecutor’s misconduct constituted plain error, the burden shifts to the state to demonstrate that the misconduct did not affect substantial rights. State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006). Error affects substantial rights if there is a reasonable likelihood that the absence of misconduct would have had a significant effect on the jury’s verdict. Id. When determining whether a prosecutor’s misconduct affected substantial rights, we examine the strength of the total evidence against the defendant. See State v. Washington, 521 N.W.2d 35, 40 (Minn.1994). The evidence in this case came down to Fields’ word against KW.’s. The prosecutor’s cross-examination about Fields’ theft from his employer was intended to and certainly could have affected the jury’s perception of his credibility, especially in light of the fact that the court instructed the jury as if the misconduct were a previous conviction. In addition, the prosecutor’s misstatement of the burden of proof in the closing argument presented yet another barrier for Fields. Given the record presented and misconduct involved, I conclude that the state did not meet its burden of proving that Fields’ substantial rights were not affected. See Ramey, 721 N.W.2d at 302. Rather, the totality of the evidence indicates that Fields’ substantial rights were affected and that the prosecutor’s misconduct affected the outcome of the trial. Each instance of misconduct individually justifies reversal and a new trial; cumulatively, they demand it.

I respectfully dissent.

      . Frequently, cases on this topic indicate that it is misconduct to seek to introduce evidence that has previously been ruled inadmissible by the district court. See, e.g., State v. Ray, 659 N.W.2d 736, 744 (Minn.2003). However, there is case law indicating that attempts to elicit clearly inadmissible evidence, even if that evidence was not previously ruled inadmissible by the district court, may constitute misconduct. See State v. Williams, 525 N.W.2d 538, 544-45, 549 (Minn.1994).

      . Specifically, we stated:
      [W]e now hold that in the trial of this and future criminal cases where the state seeks to prove that an accused has been guilty of additional crimes and misconduct on other occasions * * * it shall not hereafter be received unless within a reasonable time before trial the state furnishes defendant in writing a statement of the offenses it intends to show he has committed * * *.

        Spreigl, 272 Minn, at 496-97, 139 N.W.2d at 173.

      . Effective September 1, 2006, the following language was added to Minn. R. Evid. 608:
      The prosecutor in a criminal case may not cross-examine the accused or defense witness under subdivision (b) unless (1) the prosecutor has given the defense notice of intent to cross-examine pursuant to the rule; (2) the prosecutor is able to provide the trial court with sufficient evidentiary support justifying the cross-examination; and (3) the prosecutor establishes that the probative value of the cross-examination outweighs its potential for creating unfair prejudice to the accused.

      .We note that the procedural requirements for the admission of Rule 404(b) evidence are described in the rules of criminal procedure, Minn.. R.Crim. P. 7.02, 11.04. Under these rules the prosecution is prohibited from introducing Spreigl evidence unless notice is given and the Spreigl evidentiary requirements are met. The rules also make a hearing on admissibility contingent on a defense motion. Minn. R.Crim. P. 11.04. The development of procedural rules for the admission of 608(b) evidence is important and, therefore, we refer to the criminal rules committee the task of studying and making recommendations to this court for changes to the rules.


author: COLLINS, Judge.

text:
    Brian Jean OVERVIG, petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.
    No. A06-1043.
    Court of Appeals of Minnesota.
    May 8, 2007.

      Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, Shakopee, MN, for respondent.
    Lori Swanson, Attorney General, Martin A. Carlson, Assistant Attorney General, St. Paul, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; KLAPHAKE, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge.

Appellant challenges the district court’s rescission of the revocation of respondent’s driving privileges upon finding that respondent was unlawfully seized, arguing that under the totality of the circumstances the officer did not unlawfully seize respondent by opening respondent’s car door. Because the officer did not seize respondent by opening the car door, we reverse.

FACTS

After midnight on June 10, 2005, a patrolling police officer came upon respondent Brian Jean Overvig’s car stopped with its engine running in an otherwise empty ballroom parking lot. The officer decided to investigate because he “wasn’t sure if there was a problem with the driver, possibly to check on the welfare.” The officer pulled up along side of the car and observed Overvig apparently asleep in the driver’s seat.

The officer approached the car on the driver’s side and confirmed that Overvig appeared to be sleeping or unconscious. Out of dual concern for Overvig’s well-being and his reason for being there at that hour, the officer tapped on the window and asked Overvig to lower it. Over-vig did not react. Only after the officer knocked on the window several more times and asked that it be lowered did Overvig lean over, tap on the inside of the window, and turn away on the seat. The officer knocked again and asked several more times for Overvig to lower the window. When Overvig did not move or respond in any way, the officer opened the unlocked driver’s door. The officer immediately smelled an odor of alcohol, and Overvig showed signs of intoxication. Overvig failed a field sobriety test and was arrested and charged with driving under the influence. As a result, Overvig’s driving privileges were revoked.

Overvig challenged the revocation, arguing that the evidence against him was obtained as the result of an unlawful seizure. At the hearing, the officer testified that initially he was suspicious of Overvig’s car due to the circumstances of its location and that he was concerned that the driver could have been involved in a crime or was in need of medical assistance. The officer then stated that after Overvig eventually tapped on the window, turned his back, and failed to respond to the officer’s repeated requests to lower the window, the officer felt that he could not simply leave because Overvig may have been in need of medical assistance.

At the conclusion of the hearing, the district court stated, “I do feel that [the officer] was premature in opening the car door, that there was an opportunity to communicate with the window closed,” thus finding that the officer’s act of opening the car door amounted to an unlawful seizure. Consequently, the district court rescinded the revocation of Overvig’s driving privileges. This appeal followed.

ISSUE

Did the district court err by determining that the officer unlawfully seized respondent by the act of opening respondent’s car door?

ANALYSIS

Appellant Commissioner of Public Safety argues that the district court erred by finding that the officer unlawfully seized respondent Brian Jean Overvig. The commissioner contends that the officer’s actions do not amount to a seizure under the circumstances. We agree.

We will not reverse a district court’s findings regarding the legality of a search and seizure unless the findings are clearly erroneous or contrary to law. In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn.1997). When the facts are not in dispute we “must determine whether a police officer’s actions constitute a seizure and if the officer articulated an adequate basis for the seizure.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const. art. I, § 10. A seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn.1993) (quotation omitted). We must look to the totality of the circumstances surrounding the incident to determine if “a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.” State v. Cripps, 533 N.W.2d 388, 391 (Minn.1995). Generally, “the mere act of approaching a person ... sitting in a car that is parked and asking questions is not a ‘seizure.’” E.D.J., 502 N.W.2d at 782. And an officer’s opening of a car door and asking the driver to get out may not always constitute a seizure. Vivier v. Comm’r of Pub. Safety, 406 N.W.2d 587 (Minn.App.1987); 4 W. LaFave, Search and Seizure, § 9.4(a), at 433-35.

Here, the commissioner argues that the circumstances of the encounter show that the officer did not seize Overvig by merely opening the car door. The officer did not park his vehicle in a position blocking Overvig’s car from moving in either direction and did not activate his emergency lights, although he may have turned on other lights to illuminate the area. Furthermore, there is nothing in the record to suggest that the officer made any other showing of authority, such as displaying a weapon or using a tone of voice that would indicate that Overvig could not terminate the encounter once the officer opened the door. E.D.J., 502 N.W.2d at 781.

Overvig argues that he effectively terminated the encounter by tapping back on the car window and turning away from the officer. Therefore, Overvig contends that the officer’s opening of the car door amounts to an unlawful seizure. But we cannot say, based on the circumstances, that Overvig’s conduct reasonably ended the initial encounter or that when the officer opened the car door a reasonable person would not have felt free to disregard the questions or terminate the encounter.

Whatever his subjective intention may have been, Overvig’s acts of tapping on the window and turning away, and his continuing unresponsiveness, cannot be reasonably interpreted as a statement communicating the desire to end the encounter. Moreover, it is not reasonable in situations such as this to require officers to communicate with unresponsive or unconscious drivers through closed car windows when the driver refuses or is unable to lower the window. To hold otherwise would unduly burden an officer’s “duty to make a reasonable investigation of vehicles parked along roadways to offer such assistance as might be needed and to inquire into the physical condition of persons in vehicles.” Kozak v. Comm’r of Pub. Safety, 359 N.W.2d 625, 628 (Minn.App.1984).

Therefore, we conclude that the officer did not seize Overvig by the act of opening the car door.

But even if we were to determine that the opening of the door did amount to a seizure, the officer in this instance was justified in doing so in order to investigate and assess the physical well-being of the driver.

It is not unreasonable for an officer to make a “brief seizure of a person for investigatory purposes” if the officer has an objective basis for suspecting that the person is involved in criminal activity or is in need of medical assistance. Harris, 590 N.W.2d at 99; Kozak, 359 N.W.2d at 628.

Here, the officer testified that he was suspicious because Overvig’s car was standing with the engine running in an otherwise empty parking lot late at night. The officer was concerned about a possible crime or that the driver, asleep or unconscious behind the wheel, needed medical assistance. The officer’s observations upon approaching the car revealed nothing to alleviate his concern about Overvig’s physical well-being. After the officer’s nonintrusive attempts to arouse him, Over-vig’s conduct did not reasonably communicate his well-being or possible subjective desire to terminate the encounter. And under these circumstances, we conclude that the officer had a reasonable, articula-ble concern for Overvig’s physical well-being. Accordingly, because of the officer’s reasonable belief that Overvig may have needed medical assistance, he was justified in opening the door and seizing Overvig in order to investigate his physical well-being. Kozak, 359 N.W.2d at 628.

DECISION

The district court’s finding that the officer unlawfully seized Overvig was clearly erroneous. The officer did not seize Over-vig merely by opening the car door because under the circumstances a reasonable person would have believed that he or she was free to disregard the questioning or free to terminate the encounter.

Reversed.

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


author: MARING, Justice. CROTHERS, Justice,

text:
    2007 ND 66
    Kari Lynn GILBERT, Plaintiff and Appellant v. Boe Jason GILBERT, Defendant and Appellee.
    No. 20060306.
    Supreme Court of North Dakota.
    May 4, 2007.

      Jessica J. Wolf, Lange & Donovan, PLLP, Hazen, ND, for plaintiff and appellant.
    Rudolph A. Tollefson, Solem Law Office, Beulah, ND, for defendant and appellee.
   MARING, Justice.

[¶ 1] Kari Merritt, formerly known as Kari Gilbert, appeals from a district court order denying her motion to move with her child to West Virginia. We conclude the district court’s finding the move is not in the child’s best interests is clearly erroneous, and we reverse and remand with instructions the court enter an order granting the motion to move and establishing an appropriate visitation schedule.

I

[¶ 2] Merritt and Boe Gilbert were married in 1998, and have one child together. Merritt also has physical custody of a second child from a previous relationship. In 2001, Merritt and Gilbert divorced. Merritt was awarded sole custody of the parties’ child, and Gilbert was awarded visitation. The parties agreed Gilbert would have visitation every other weekend, every other holiday, and extended summer visitation starting with two weeks the first year and increasing one week each year until Gilbert had a total of eight weeks of summer visitation. The parties are flexible with the visitation schedule, and Gilbert often has more visitation than was ordered.

[¶ 8] Merritt married Michael Merritt in July 2006. Michael Merritt lives in Ripley, West Virginia, but his occupation requires extensive travel to various locations in the United States, and he is often only in West Virginia for approximately four months a year. Michael Merritt testified his employer provides transportation to the job sites from West Virginia, and he would be required to pay his own travel expenses if he decided to live in another state.

[¶ 4] Merritt is pursuing a degree in addiction studies, and will fulfill her degree requirements after completing an internship. Merritt testified she would have to relocate within the state to pursue her career because there are no addiction counseling positions in Mercer County, where she currently resides. Merritt has secured an internship position in West Virginia, and was offered a permanent position upon completion of the internship. Merritt testified she will earn approximately $10,000 per year more in West Virginia as an addiction counselor.

[¶ 5] In 2006, Merritt moved for permission to move the parties’ child to West Virginia. After a hearing, the district court denied Merritt’s motion. The court concluded the move was not in the child’s best interests because it would negatively impact the child’s quality of life and the child’s relationship with Gilbert and extended family.

II

[¶ 6] A district court’s decision on relocation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Porter v. Porter, 2006 ND 123, ¶ 5, 714 N.W.2d 865. “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, although there is some evidence to support the finding, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made.” Dvorak v. Dvorak, 2006 ND 171, ¶ 11, 719 N.W.2d 362.

[¶ 7] “A parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent.” N.D.C.C. § 14-09-07. A court’s primary consideration in relocation cases is whether it is in the child’s best interests to move to another state. Dvorak, 2006 ND 171, ¶ 12, 719 N.W.2d 362. The custodial parent has the burden of proving, by a preponderance of the evidence, that the move is in the child’s best interests. Id.

[¶ 8] In evaluating whether the move is in the child’s best interests, the district court must apply the four factors enumerated in Stout v. Stout, 1997 ND 61, 560 N.W.2d 903, and modified in Hawkinson v. Hawkinson:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move, [and]
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Hawkinson v. Hawkinson, 1999 ND 58, ¶¶ 6, 9, 591 N.W.2d 144. One factor is not dominant, and what may be a minor factor in one case may be more important in another case. Dvorak, 2006 ND 171, ¶ 14, 719 N.W.2d 362. The court must address all four factors in evaluating whether the move is in the child’s best interests, and failure to address all four factors is reversible error. Porter, 2006 ND 123, ¶ 6, 714 N.W.2d 865.

[¶ 9] In this case, the district court made findings on the four Stout-Hawkin-son factors. Merritt does not challenge the court’s findings on the second and third factors, but argues the court’s findings on the first and fourth factors are clearly erroneous.

A

[¶ 10] The first StouG-Haw-kinson factor requires the district court to consider the prospective advantages of the move, and in doing so, the court must consider both the economic opportunities and the non-economic benefits of the relocation. Porter, 2006 ND 123, ¶ 8, 714 N.W.2d 865. An essential part of the analysis is the “ ‘importance of maintaining continuity and stability in the custodial family.’ ” Id. (quoting Goff v. Goff, 1999 ND 95, ¶ 14, 593 N.W.2d 768). “A [district] court that fails to give sufficient credence to the importance of keeping the custodial family intact commits reversible error.” Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 10, 681 N.W.2d 762.

[¶ 11] Here, the district court concluded the first factor did not support relocation and made the following findings:

In the present case, Kari [Merritt] argues that she has improved employment opportunities in West Virginia. She has been attending school to become a chemical addiction treatment professional, and testified that she is required to complete an internship before she can be employed. She believes she has an opportunity to complete the internship and gain employment in West Virginia.
However, she opted not to seek an internship in North Dakota because she planned to move. While there may not have been opportunities for an internship in Mercer County, the evidence suggests she might well be able to complete an internship in the Bismarck-Mandan area or in another location relatively close to her home.
While Kari [Merritt] believes she may have better employment opportunities in West Virginia, there was no evidence concerning salaries and cost of living on which the Court could make a determination that a move would improve her standard of living.

The court’s findings also suggest the court concluded Merritt would not benefit from the move because her husband works out of town most of the year and it may be better if Michael Merritt moved to North Dakota. In summarizing its decision, the court said:

Based on the record, I conclude Kari [Merritt] has not established that the move would improve her quality of life, and it would impact negatively on [the child’s] quality of life. The move would allow Kari [Merritt] to live where her husband resides, but he is away from his residence a significant amount of time. While she may obtain employment in West Virginia, she has not made a good faith effort to obtain similar employment in the area where she now resides. The move would require [the child] to leave the area where she has lived and enjoyed a close relationship with both of her parents.

[¶ 12] The court found Merritt did not make a good faith effort to find employment in North Dakota and did not present evidence of the economic benefits of moving. However, Merritt did not choose to move for economic reasons; she wanted to move to live with her new husband. The court failed to consider the benefits to the custodial family as a result. The interests of the child are so connected to the custodial parent’s well being that the interests of the custodial parent must be taken into account:

Prohibiting a move by the custodial parent may force that parent to choose between custody of his or her child and
opportunities that may benefit the family unit, including the child as well as the parent. These may include a new marriage, an important job opportunity, or a return to the help provided by an extended family in the rearing of the child by a single parent. Imposing this choice can be severely detrimental to the psychological and economic well-being of the parent over many years. It also has the potential for burdening the parent-child relationship for many years, regardless of the choice the parent makes.

Stout v. Stout, 1997 ND 61, ¶ 18, 560 N.W.2d 903 (quoting Judith S. Wallerstein and Tony J. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, Fam. L.Q., Vol. 30 No. 2, Pg. 305, 314-15 (Summer 1996)) (emphasis added). In this case, the court’s decision may force Merritt to choose between her new marriage and having physical custody of her child.

[¶ 13] We have long emphasized, even before the Stout-Hawkinson factors were applied, the importance of maintaining continuity and stability in the custodial family, which includes allowing the custodial family to move to be with a new spouse, and we have reversed relocation decisions when the court did not give that consideration enough weight. See, e.g., Tibor v. Tibor, 1999 ND 150, ¶ 19, 598 N.W.2d 480 (reversing denial, court failed to give adequate consideration to keeping custodial family together after custodial parent wanted to relocate because new spouse had secured a high paying job out of state); Paulson v. Bauske, 1998 ND 17, ¶ 9, 574 N.W.2d 801 (reversing denial, court failed to give adequate consideration to the need to keep the custodial family together after custodial parent wanted to relocate because new spouse secured employment in another state); see also Thomas v. Thomas, 446 N.W.2d 433, 435 (N.D.1989) (affirming district court’s finding that continuity and stability in custodial family weighed heavily in favor of allowing move after custodial parent wanted to relocate because new spouse’s job required move). Furthermore, we can find no cases where a custodial parent’s request to move out of state to live with a new spouse was denied when the integrity of the custodial parent’s motive for moving was not questioned.

[¶ 14] Though in Stout we said that while “no one factor is to be dominant” in the relocation analysis, we recognized that one factor may be minor in one case, but the dominant factor in another case. Stout, 1997 ND 61, ¶ 37, 560 N.W.2d 903. When the custodial parent desires to move to live with a new spouse, we conclude that fact becomes dominant in favor of allowing the move, particularly, in cases such as this, when there is no evidence of ill motive or that the visitation is not likely to occur.

The children’s best interests are inextricably interwoven with the quality of life of the custodial parent, with whom they live and upon whom they rely emotionally. A move which benefits the health and well-being of a custodial parent is certainly beneficial to the parent’s child, and is consequently in the child’s best interests. It is axiomatic that a newlywed couple wants to live together and that the child is benefitted by the satisfaction that the custodial parent derives from residing with her spouse.

Tibor, 1999 ND 150, ¶ 13, 598 N.W.2d 480 (citations and quotations omitted). In this case, the court clearly erred in failing to give any consideration to the non-economic benefits of the move, including the importance of the stability and continuity of the custodial family and the new marriage.

[¶ 15] Moreover, the court’s findings about the economic advantages of the move are not supported by the evidence. The court found Merritt did not present evidence of salaries and cost-of-living. A custodial parent is not required to provide a comparative cost-of-living analysis to prove the economic advantages of the move. Dickson v. Dickson, 2001 ND 157, ¶ 19, 634 N.W.2d 76. Merritt presented evidence of the economic advantages of the move. Merritt testified that she received an offer of employment in West Virginia, and that she would earn approximately $10,000 more per year in West Virginia as an addiction counselor than in North Dakota. Merritt testified the custodial family would be better off financially if they reside in West Virginia because they would only have to support one household. She also testified that, if she stayed in North Dakota, she would have to relocate within the state because there are no job opportunities for addiction counselors in the area where she resides. Michael Merritt testified that if he moved to North Dakota his expenses would increase because he would have to provide his own transportation to job sites throughout the country. The evidence in the record does not support the court’s findings.

[¶ 16] We conclude the district court failed to correctly apply the law. It did not give consideration to the evidence Merritt offered of both economic and non-economic advantages of the move, and failed to consider the importance of keeping the custodial family intact. We therefore conclude the court’s findings are clearly erroneous.

B

[¶ 17] The fourth Stoutr-Haw-kinson factor requires the district court consider “the negative impact of the move on the noncustodial parent’s relationship with the child[ ] and the ability to restructure visitation to foster and preserve the relationship.” Oppegard-Gessler, 2004 ND 141, ¶ 15, 681 N.W.2d 762. Distance alone cannot be the basis for denying the custodial parent’s request to move, rather it must be considered in the context of the ability to modify the visitation schedule so that the noncustodial parent’s relationship with the child is maintained. Goff, 1999 ND 95, ¶ 17, 593 N.W.2d 768. Although it may be impossible to establish a visitation schedule with the same amount of visitation or with visitation as frequent, in analyzing the fourth factor, the court must consider that “[a] visitation schedule which provides less frequent, but extended, visitation periods will preserve a noncustodial parent’s ability to foster and develop a relationship with the child.” Tibor, 1999 ND 150, ¶ 24, 598 N.W.2d 480.

[¶ 18] Here, both Merritt and Gilbert proposed a modified visitation schedule. Merritt proposed week long Thanksgiving, Christmas, and spring break or Easter visitation in alternating years; and extended summer visitation starting with five weeks during the summer of 2006 and increasing by one week each year up to a total of eight weeks of visitation. Merritt proposed the visitation exchanges occur in Beloit, Wisconsin, with each party paying their own expenses, and if the child travels by plane Gilbert would pay for the child’s ticket and a parent would accompany the child on the plane, with the parent paying for their own ticket. Gilbert proposed a similar visitation schedule, but requested summer visitation starting one week after the completion of the school year and ending one week before the start of the new school year. Gilbert also agreed to use Beloit, Wisconsin, as an exchange location with each party paying their own transportation expenses, but he proposed if the child travels by plane a parent would accompany the child and the parties would evenly split the child’s transportation expenses.

[¶ 19] The district court concluded the fourth factor did not support relocation after considering only Merritt’s proposed visitation schedule. The court found it was unlikely the full amount of visitation would occur because it would involve a lot of travel time and significant expense, and the summer visitation was not an extended visitation because it was the same amount of visitation Gilbert receives under the current visitation schedule. The court concluded the move would negatively impact the child’s relationship with her father and extended family, and there would not be a reasonable opportunity for visitation to maintain the child’s relationship with Gilbert and extended family.

[¶ 20] We conclude the district court’s findings that visitation could not be restructured are clearly erroneous. The court only considered Merritt’s proposed visitation, and failed to consider Gilbert’s proposal or to fashion its own visitation schedule. The district court concluded the visitation would likely not occur due to the high transportation costs, but there is no evidence to support the court’s finding. Merritt has complied with the court ordered visitation in the past and has been flexible allowing more visitation than was ordered. There is no evidence in the record that the visitation would not occur. Furthermore, Gilbert conceded in his brief and at oral argument the visitation schedule could be restructured, there is no reason the visitation would not occur, and the evidence did not support the court’s findings.

[¶ 21] The visitation schedule can be restructured to foster the relationship between the child and Gilbert by allowing liberal visitation during the summer months and holiday vacations. Gilbert’s proposed visitation schedule is similar to those we have indicated are acceptable in other cases. See, e.g., Jelsing v. Peterson, 2007 ND 41, ¶¶ 19-20, 729 N.W.2d 157; Tibor, 1999 ND 150, ¶¶ 25-26, 598 N.W.2d 480. Gilbert’s proposed visitation schedule allowed for week long Thanksgiving, Christmas, and spring break or Easter visitation in alternating years, and summer visitation beginning one week after the school year ends until one week before the school year begins. He also proposed the visitation exchanges occur in Beloit, Wisconsin, with the parties paying their own transportation expenses, or if air transportation is used the parties would split the child’s transportation expenses. On remand, the district court can consider establishing a visitation schedule similar to that proposed by Gilbert.

[¶ 22] The district court can also consider whether virtual visitation can be used to supplement in-person visitation. Virtual visitation includes using the telephone, Internet, web-cam, and other wireless or wired technologies to ensure the child has frequent and meaningful contact with the noncustodial parent. It is most useful in cases such as this where the child and noncustodial parent are accustomed to seeing each other on a regular basis but no longer will be able to because of the relocation. Virtual visitation is not a substitute for personal contact, but it can be a useful tool to supplement in-person visitation. Virtual visitation is becoming more widely recognized as a way to supplement in-person visitation. See, e.g., Tibor, 1999 ND 150, ¶ 26, 598 N.W.2d 480 (“modern transportation reduces the measure of distance from days to hours, and instant communication is available through phone and cable links.”); McCoy v. McCoy, 336 N.J.Super. 172, 764 A.2d 449, 454 (App. Div.2001) (using the Internet to enhance visitation was creative and innovative); Fla. Stat. Ann. § 61.13001(9)(a) (2007) (urges courts to consider virtual visitation in relocation cases); Utah Code Ann. § 30-3-33(14) (2007) (advisory guidelines for parent-time arrangements suggest using virtual visitation to supplement in-person visitation); Wis. Stat. Ann. § 767.41 (2007) (parenting plan should include information about using electronic communication between child and parent). Virtual visitation is another option the district court can consider to help maintain and foster the relationship the child has with Gilbert and her extended family.

Ill

[¶ 23] We have reviewed the record and conclude the district court’s finding the move is not in the child’s best interests is clearly erroneous. Because the district court’s findings on economic benefits are not supported by the evidence, the district court failed to consider the importance of the stability of the custodial family and new marriage, there is no evidence of ill motive, and the district court’s findings that visitation could not be restructured or is not likely to occur are not supported by the evidence; we conclude the district court misapplied the law and on this record we are left with a definite and firm conviction a mistake has been made. We reverse the order of the district court and remand with instructions the district court enter an order granting the motion to move and establishing an appropriate visitation schedule.

[¶ 24] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, J., and BENNY A. GRAFF, S.J., concur.

[¶ 25] The Honorable BENNY A. GRAFF, S.J., sitting in place of SANDSTROM, J., disqualified.

CROTHERS, Justice,

concurring in part and dissenting in part.

[¶ 26] I concur with the majority’s conclusion that the district court erred when applying factor 1. Majority opinion at ¶ 16. The case must be reversed, and should be remanded for the district court’s further analysis of factor 1.

[1Í 27] Depending on the district court’s findings and conclusions under factor 1, the district court might need to make additional findings and conclusions under factor 4. Making findings and conclusions under either factor 1 or factor 4 is, in the first instance, a job for the district court and not us. See Klein v. Larson, 2006 ND 236, ¶ 36, 724 N.W.2d 565 (Crothers, J., dissenting).

[¶ 28] I believe this Court is usurping the district court’s fact-finding function by requiring that the district court enter an order granting the motion to move. I would remand to allow the district court to finish its work. I therefore dissent from those portions of the opinion adjudicating the factors and granting the requested relief.

[¶ 29] DANIEL J. CROTHERS