author: ANDERSON, G. Barry, Justice.

text:
    STATE of Minnesota, Respondent, v. Derrick HOLLIDAY, Appellant.
    No. A07-538.
    Supreme Court of Minnesota.
    March 6, 2008.

      Michael A. Hatch, Minnesota Attorney General, St. Paul, David Craig Brown, Assistant County Attorney, Minneapolis, for respondent.
    Jodie Lee Carlson, Assistant State Public Defender, St. Paul, for appellant.
   OPINION

ANDERSON, G. Barry, Justice.

Appellant Derrick Holliday was convicted in a bench trial of first-degree murder, attempted first-degree murder, second-degree murder, and attempted second-degree murder for the killing of Alan Reitter in downtown Minneapolis. On direct appeal, appellant asks us (1) to vacate his first-degree murder and attempted first-degree murder convictions on the basis that there was insufficient evidence of premeditation and (2) to reverse his second-degree murder and attempted second-degree murder convictions and remand for a new trial on the basis that the admission of a witness’s prior out-of-court statements violated the Confrontation Clauses of the United States and Minnesota Constitutions and the hearsay rules. We affirm appellant’s convictions.

On the evening of March 31, 2006, appellant went to the Crown Theater, located in the Block E complex in downtown Minneapolis, with a loaded Smith and Wesson .44 magnum revolver. A dispute erupted inside the theater, and a police officer described the situation as “a riot” in which people were fighting, screaming, and throwing chairs. After the police ordered everyone out of the building, two groups “squared off’ in the middle of Sixth Street. Appellant’s group was facing Gluek’s Restaurant and Bar, and the other group was facing Jimmy John’s. Members of the two groups screamed and raised their shirts up at each other, but there was no physical contact between them. One of the members of the group facing Jimmy John’s reached behind his back but was not seen with a weapon. Appellant then pulled out his revolver and pointed it at the group facing Jimmy John’s, causing the group members to flee. He then ran diagonally across Sixth Street toward First Avenue and fired multiple shots, holding the revolver directly in front of him with his arm outstretched. The district court found, based on witness testimony, that appellant “was aiming at a specific person as he chased that person” and “had ‘a bead’ on the person he was chasing.”

Meanwhile, unrelated to this activity, Alan Reitter was in downtown Minneapolis with a group of friends. At approximately 11:30 p.m., the Reitter group left the Refuge Bar, located on First Avenue between Fourth Street and Fifth Street, for the Lone Tree Bar, located on Sixth Street between Hennepin Avenue and First Avenue. Upon hearing gunshots as they walked down Sixth Street, some of Reit-ter’s companions took cover near the pay booth of the parking lot bordering Sixth Street and others took cover behind the short brick barriers on the parking lot’s perimeter. Appellant fired toward the parking lot from in front of the pay booth, striking Reitter in the face. Appellant ran by Reitter and proceeded on First Avenue toward Fifth Street.

Reitter was found lying in a pool of blood near the exit arm of the parking lot pay booth. He died the next day, and the medical examiner who performed the autopsy testified that Reitter died from a gunshot wound to the head and that the manner of Reitter’s death was homicide. The medical examiner concluded that Reit-ter’s injuries were consistent with the use of a .44-caliber magnum handgun.

Minneapolis police officer Jomar Villa-mor was positioned at the corner of First Avenue and Fifth Street when he heard gunshots to the south and then saw appellant running up First Avenue and pointing a revolver at a person running in front of him. Villamor did not see appellant fire the revolver, but two other witnesses testified that they saw appellant shoot in the direction of the other person running up First Avenue. Appellant turned up Fifth Street, and Villamor pursued him with his own gun drawn and yelled numerous times, “Police, drop the gun.” Villamor testified that once during the chase appellant pointed the revolver directly at him. Villamor followed appellant into an alley connecting Fifth Street and Fourth Street. Villamor saw appellant throw the revolver toward a row of vehicles before appellant reached Fourth Street, and Villamor heard the sound of “metal-to-metal contact” and the security alarm of a red pickup. After leaving the alley, appellant ran down Fourth Street, turned up First Avenue, and attempted to enter “the Karma Bar.” Appellant was detained by bouncers at the bar entrance and then handcuffed by Villa-mor.

Another officer who had arrived at the scene took custody of appellant so that Villamor could retrieve the revolver. Vil-lamor returned to the alley and found the revolver in the bed of the red pickup. Four discharged cartridge casings and two live cartridges were inventoried with the revolver. The predominant DNA profile on the revolver matched appellant’s DNA profile, and multiple witnesses testified that the revolver recovered by the police looked similar to the revolver wielded by the shooter.

The police interviewed appellant after taking him into custody, and a DVD recording of the interview and an accompanying transcript were admitted as evidence at trial. Appellant told the police that he brought the revolver downtown because he did not want his girlfriend to find it and because he does not “really got too many pals, or people that hang.” He claimed that he pulled out the revolver as people were “coming at” him and that another person pulled out a gun in response. Appellant said that he shot into the air to scare people away and then ran, shooting at the ground. He maintained that he acted in self-defense and did not intend to shoot anyone.

On April 20, 2006, appellant was charged with first-degree premeditated murder under Minn.Stat. § 609.185(a)(1) (2006), second-degree intentional murder under Minn.Stat. § 609.19, subd. 1(1) (2006), attempted first-degree premeditated murder under Minn.Stat. §§ 609.185(a)(1) and 609.17 (2006), attempted second-degree intentional murder under Minn.Stat. §§ 609.19, subd. 1(1), and 609.17 (2006), and first-degree assault under Minn.Stat. § 609.221, subd. 2(a) (2006). Appellant waived his right to a jury trial, and his bench trial commenced on September 28, 2006.

At trial, the State called A.A. as a witness to testify as to information he gave in an interview with Sergeant Charles Adams in April 2006 and in his meetings with Assistant Hennepin County Attorney Robert Streitz in May 2006 and September 2006. After viewing a report detailing his interview with Adams and a file memorandum from the May meeting, A.A. claimed he could not remember those discussions, and, after viewing a document from the September meeting, A.A. said he remembered talking to someone in the county attorney’s office but could not remember what the conversation was about. On cross-examination, A.A. agreed that his regular ecstasy use possibly affected his ability to remember.

Sergeant Adams then testified as to what A.A. said in the April 2006 interview, including A.A.’s claim that he was appellant’s intended victim when Reitter was shot. Jessica Immerman, a legal services specialist in the county attorney’s office, was present at A.A.’s meeting with Streitz in September 2006. Immerman testified that Streitz read a report of the April interview to A.A. and that A.A. acknowledged that he had made the statements included in the report. Immerman then read into the record the report of the April interview. According to Immerman, Streitz also read to A.A. a memorandum Streitz had made of their May meeting and A.A. affirmed its contents. Immerman then read into the record the memorandum of the May meeting, which included A.A.’s allegation that appellant was chasing and shooting at him when Reitter was shot. Finally, Immerman read into the record a portion of a memorandum summarizing A.A.’s September meeting with Streitz, which documented A.A.’s affirmations of the April report and the May memorandum.

Appellant objected to the testimony of Adams and Immerman and to the reading into the record of the three documents on the bases of the hearsay rules and the Confrontation Clause of the United States Constitution. The district court overruled appellant’s objections, concluding that (1) the Confrontation Clause of the United States Constitution did not bar the admission of A.A.’s prior statements because appellant had the opportunity to cross-examine him and (2) the testimony of Adams and Immerman and the contents of the three documents were admissible under the recorded recollection hearsay exception of Minn. R. Evid. 803(5) and the residual hearsay exception of Minn. R. Evid. 803(24) (2006) (recodified Sept. 1, 2006, with Minn. R. Evid. 804(b)(5) (2006) to form Minn. R. Evid. 807).

Appellant waived his right to testify, and his counsel neither gave an opening statement nor called any witnesses. The district court found appellant guilty of first-degree murder, second-degree murder, attempted first-degree murder, and attempted second-degree murder. The court also found the aggravating factor of posing a great danger to the safety of people other than Reitter or other victims referred to in the indictment. The court found appellant not guilty of first-degree assault and third-degree murder. Appellant was sentenced to concurrent sentences of life imprisonment without parole for first-degree murder and 180 months imprisonment for attempted first-degree murder.

I.

Appellant argues that his first-degree murder and attempted first-degree murder convictions must be vacated because there was insufficient evidence of premeditation. A person who “causes the death of a human being with premeditation and with intent to effect the death of the person or of another” is guilty of first-degree murder under Minn.Stat. § 609.185(a)(1) (2006). Section 609.185 “incorporates the traditional doctrine of ‘transferred intent,’ ” State v. Sutherlin, 396 N.W.2d 238, 240 (Minn.1986), under which “[premeditation will transfer with intent if the perpetrator premeditated the murder of an intended victim but accidentally, killed an unintended victim,” State v. Hall, 722 N.W.2d 472, 477 (Minn.2006).

When reviewing a sufficiency of the evidence claim, “we view the evidence in the light most favorable to the verdict and assume that the factfinder disbelieved any testimony conflicting with that verdict.” State v. Leake, 699 N.W.2d 312, 319 (Minn.2005). “The verdict will not be overturned if, giving due regard to the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense.” Id. “We review criminal bench trials the same as jury trials when determining whether the evidence is sufficient. to sustain convictions.” State v. Hough, 585 N.W.2d 393, 396 (Minn.1998).

A.

Appellant notes that the district court failed to make any specific findings of fact regarding premeditation. Minnesota Rule of Criminal Procedure 26.01, subd. 2, requires that in a case tried without a jury, the court must “specifically find the essential facts in writing on the record.” Although the court did not include a finding of premeditation in its findings of fact, the court did make a conclusion of law that appellant “acted with premeditation.” We have stated that “a fact found by the court, although expressed as a conclusion of law, will be treated upon appeal as a finding of fact.” Graphic Arts Educ. Found. v. State, 240 Minn. 143, 145-46, 59 N.W.2d 841, 844 (1953). Furthermore, Minn. R.Crim. P. 26.01, subd. 2, provides that “[i]f the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding.” The district court is thus deemed to have made a specific finding of premeditation in light of its conclusion of law that appellant acted with premeditation and its general finding that appellant is guilty of first-degree premeditated murder. We reject appellant’s claim of error regarding the district court’s omission of a premeditation finding in its findings of fact.

B.

The statutory definition of premeditation is “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission. Minn.Stat. § 609.18 (2006). We have defined premeditation as a state of mind generally proved circumstantially by drawing inferences from a defendant’s words and actions in light of the totality of the circumstances.’ ” Hall, 722 N.W.2d at 477 (quoting State v. Moua, 678 N.W.2d 29, 39 (Minn.2004)). Neither a specific period of deliberation nor evidence of extensive planning is required to prove premeditation, but the state must prove that some appreciable period of time passed after the defendant formed the intent to kill, during which the statutorily required consideration, planning, preparation, or determination took place. State v. McArthur, 730 N.W.2d 44, 49 (Minn.2007) (quoting Moua, 678 N.W.2d at 39). We focus on three categories of evidence from which premeditation -may be inferred: motive, the nature of the killing, and planning activity. Id. at 49-50; Moua, 678 N.W.2d at 40.

When assessing a defendant’s motive, we consider “ ‘facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred.’ ” Moua, 678 N.W.2d at 40 (quoting State v. Moore, 481 N.W.2d 355, 361 (Minn.1992)). A victim’s “prior conduct * * * known to have angered the defendant” constitutes motive evidence. Id. at 41. The district court found, based on witness testimony, that appellant was in a group that had a “verbal confrontation” with another group in the middle of Sixth Street and that appellant pulled out his revolver after a member of the opposing group “reached behind [his] back.” The context of the confrontation and the other person’s act of reaching behind his back provided a motive for appellant to shoot at someone in that person’s group, thereby supporting the district court’s finding of premeditation.

When assessing the nature of the killing, we consider “ ‘facts * * * from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.’ ” Id. (quoting Moore, 481 N.W.2d at 361). Evidence of the nature of the killing includes the number of times the defendant used the weapon, id., the deliberate placement of wounds at vital areas of the victim’s body, Moore, 481 N.W.2d at 361, the infliction of gunshot wounds at close range, and a defendant’s concern with escape rather than aiding the victim, McArthur, 730 N.W.2d at 50.

The district court’s findings that appellant chased and aimed his revolver at a specific person, fired multiple shots, ran by Reitter, and fled the scene are all supported by witness testimony. The nature of the killing in this case is similar to the nature of the killings in McArthur, 730 N.W.2d 44, and State v. Richardson, 393 N.W.2d 657 (Minn.1986). In McArthur, we concluded that “the evidence regarding the nature of the killing [was] significant” where the defendant (1) fired multiple shots; (2) shot the victim in the head, from behind, and at close range; and (3) fled the scene following the shooting. 730 N.W.2d at 50. Similarly, we concluded in Richardson that there was sufficient evidence of premeditation where the defendant initially fired her gun in reaction to the victim’s movement but then “ma[d]e the decision to chase after [the victim] and fire the last two or three shots.” 393 N.W.2d at 665. We conclude that the nature of the killing in this case supports the district courts finding of premeditation.

The evidence of appellant’s guilt is much stronger than the evidence of guilt in cases in which we have reversed first-degree murder convictions on insufficiency of the evidence grounds. In State v. Swain, for example, we concluded that “death from a series of blows cannot, alone, support a finding of premeditation in a first degree murder prosecution.” 269 N.W.2d 707, 714 (Minn.1978) (emphasis added). Furthermore, in Bernhardt v. State, 684 N.W.2d 465, 477, 481 (Minn.2004), and State v. Berndt, 392 N.W.2d 876, 880-81 (Minn.1986), we reversed first-degree murder convictions that were based wholly on circumstantial evidence. In contrast to Swain, Bernhardt, and Bemdt, in this case there was both evidence from which the district court could infer premeditation and direct evidence that appellant killed the victim. Based on the foregoing evidence, we hold that the evidence of premeditation was sufficient to support appellant’s convictions for first-degree premeditated murder and attempted first-degree premeditated murder.

II.

Appellant also argues that his convictions must be reversed and the case remanded for a new trial on the basis that his Confrontation Clause rights under the United States and Minnesota Constitutions were violated by the admission at trial of A.A.’s prior statements. The Confrontation Clause of the United States Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right * * to be confronted with the witnesses against him.” U.S. Const, amend. VI. The Confrontation Clause of the Minnesota Constitution contains almost identical language, see Minn. Const, art. I, § 6 (“The accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.”), and we apply the same analysis under both Confrontation Clauses, State v. Henderson, 620 N.W.2d 688, 695 (Minn.2001).

In Crawford v. Washington, the United States Supreme Court concluded that the Confrontation Clause prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. 36, 53-54, 124 S.Ct. 1354,158 L.Ed.2d 177 (2004); see also State v. Warsame, 735 N.W.2d 684, 689 (Minn.2007). Whether a defendant’s rights under the Confrontation Clause have been violated by the admission of evidence is a question of law that we review de novo. Warsame, 735 N.W.2d at 689.

According to appellant, the admission of A.A.’s prior statements violated the Confrontation Clause because A.A.’s memory loss precluded the opportunity to cross-examine A.A. about the circumstances surrounding his prior statements and the contents of those statements. The district court ruled that although A.A.’s prior statements were testimonial, the Confrontation Clause did not bar their admission because A.A. testified and appellant had the opportunity to cross-examine him.

Language from the Supreme Court’s Crawford decision indicates that the admission of a witness’s prior statements does not violate the Confrontation Clause where the witness appears for cross-examination and claims that he or she cannot remember either making the statements or the content of the statements. First, the Supreme Court in Crawford suggested that the Confrontation Clause is not even implicated when a declarant testifies at trial:

The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.
⅜ ⅝ ¾: ⅜
Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.

541 U.S. at 53-54, 59, 124 S.Ct. 1354 (emphasis added). Additionally, the Court in Crawford explicitly stated in a footnote that a declarant’s appearance for cross-examination at trial removes all Confrontation Clause barriers to the admission of his or her prior statements:

Finally, we reiterate that, when the de-clarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. It is therefore irrelevant that the reliability of some out-of-court statements cannot be replicated, even if the declarant testifies to the same matters in court. The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

Id. at 59 n. 9, 124 S.Ct. 1354 (emphasis added) (internal quotation marks and citations omitted).

We recognize that the Supreme Court’s conclusion that the Confrontation Clause does not bar admission of a prior testimonial statement “so long as the declarant is present at trial to defend or explain it,” id., could be interpreted to require that the declarant actually defend or explain the statement. But such an interpretation both ignores the fact that the Court’s “language still focuses on presence and ability to act without requiring that the record show the declarant actually did defend or explain the statement,” Roger W. Kirst, Does Crawford Provide a Stable Founda tion for Confrontation Doctrine?, 71 Brook. L.Rev. 35, 76 (2005), and is at odds with the Court’s more explicit assertion that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements,” Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354.

Even if the Supreme Court’s language in Crawford were construed as not dispositive of the issue before us, our interpretation of Crawford is in accord with the Supreme Court’s pre-Crawford Confrontation Clause jurisprudence. Indeed, in California v. Green, the Court stated that “where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.” 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The Court subsequently noted in Delaware v. Fensterer that “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). The Fensterer Court concluded as follows:

The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.

Id. at 21-22, 106 S.Ct. 292. Finally, in United States v. Owens, the Supreme Court held that the Confrontation Clause is not violated by the “admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification.” 484 U.S. 554, 564, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). According to the Court, “successful cross-examination is not the constitutional guarantee.” Id. at 560, 108 S.Ct. 838.

We acknowledge that the Supreme Court in Green, 399 U.S. at 168-70, 90 S.Ct. 1930, and Fensterer, 474 U.S. at 20,106 S.Ct. 292, declined to decide whether a witness’s memory loss can so impede cross-examination that admission of a prior statement violates the Confrontation Clause, and that the witness in Owens, 484 U.S. at 556, 108 S.Ct. 838, actually remembered making his prior statement. But these cases suggest what was settled in Crawford — that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” 541 U.S. at 59 n. 9, 124 S.Ct. 1354.

Minnesota case law also supports our interpretation of Crawford. In State v. Robinson, we concluded that the Confrontation Clause was inapplicable where the declarant “testified and was subject to cross-examination.” 718 N.W.2d 400, 409 (Minn.2006). Quoting Crawford, we stated that “ ‘[w]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.’” Id. (quoting Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354). Although our discussion of the Confrontation Clause in Robinson concerned whether we could consider certain corroborating evidence for purposes of the residual hearsay exception and did not involve a witness’s alleged memory loss, we placed no qualifications on the quality of cross-examination required to satisfy the Confrontation Clause. See id. Furthermore, in State v. Plantin, the Minnesota Court of Appeals ruled that the defendant’s Confrontation Clause rights were not violated where “the victim testified in the presence of the jury, and [the defendant] had ample opportunity to cross-examine her about her [prior] statement.” 682 N.W.2d 658, 660 (MinmApp. 2004), rev. denied (Minn. Sept. 29, 2004). The court of appeals noted that the defendant “clearly was not satisfied with the victim’s answers and lapses in memory, but that does not mean that he was denied his constitutional right of confrontation.” Id.

Courts in other jurisdictions have interpreted Crawford in a similar manner. In State v. Price, for example, the Washington Supreme Court held that “when a witness is asked questions about the events at issue and about his or her prior statements, but answers that he or she is unable to remember the charged events or the prior statements, this provides the defendant sufficient opportunity for cross-examination to satisfy the confrontation clause.” 158 Wash.2d 630, 146 P.3d 1183, 1192 (2006). The court in Price “conclude[d] that a witness’s inability to remember does not implicate Crawford nor foreclose admission of pretrial statements.” Id. Likewise, in State v. Gorman, the Supreme Judicial Court of Maine held that the Confrontation Clause was not violated by the admission of a witness’s prior statements because the defendant “was given the opportunity to examine and cross-examine [the witness] before the jury regarding what she did and did not recall and the reasons for her failure of recollection.” 854 A.2d 1164, 1178 (Me.2004). According to the Gorman court, Crawford “indicate[s] that [a declarant’s appearance for cross-examination] removes any Confrontation Clause constraint on use of prior statements.” Id. at 1176. Finally, in State v. Pierre, the Connecticut Supreme Court concluded “that a witness’ claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the confrontation clause under Crawford, so long as the witness appears at trial, takes an oath to testify truthfully, and answers the questions put to him or her during cross-examination.” 277 Conn. 42, 890 A.2d 474, 502 (2006).

The Confrontation Clause is satisfied by a declarant’s appearance at trial for cross-examination, and it is for the factfin-der to evaluate a declarant’s credibility. Accordingly, A.A.’s memory infirmities were exposed at trial, and the district court determined that he was not a credible witness and gave his statements “little if any weight.” We hold that the admission at trial of A.A.’s prior statements did not violate appellant’s Confrontation Clause rights.

III.

Appellant also argues that he is entitled to a new trial because A.A.’s prior statements were inadmissible hearsay. “We afford trial courts considerable discretion in admitting evidence” and “review their evidentiary rulings for an abuse of that discretion.” State v. Martinez, 725 N.W.2d 733, 737 (Minn.2007). “On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn.2003). The “[e]rroneous admission of evidence that does not have constitutional implications is harmless if there is no ‘reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.’ ” State v. Robinson, 718 N.W.2d 400, 407 (Minn.2006) (quoting State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994)).

The reversal of appellant’s convictions is not warranted because any error under the hearsay rules in admitting A.A.’s prior statements or the testimony of Adams and Immerman regarding those statements was harmless. The district court indicated that this evidence did not affect its verdict. The court made a conclusion of law that it “found [A.A.] lacking in credibility and gave little weight to his statements.” Additionally, the court reiterated in a footnote that it “finds [A.A.] lacking in credibility and will give little if any weight to his statements.” Finally, it is telling that the district court did not include in its findings of fact any information found solely in A.A.’s statements.

We note that our resolution of this case might have been different if appellant had been convicted by a jury and we thus had no indication as to what actually influenced the guilty verdict. But where appellant waived his right to a jury trial and the district court indicated that A.A.’s testimony did not affect its verdict, we hold that any error in admitting A.A.’s prior statements or the testimony of Adams and Im-merman under the hearsay rules was harmless.

Because the evidence of premeditation was sufficient to support appellant’s convictions for first-degree premeditated murder and attempted first-degree premeditated murder, the admission at trial of A.A.’s prior statements did not violate appellant’s Confrontation Clause rights, and any error in admitting A.A.’s prior statements or the testimony of other witnesses regarding those statements under the hearsay rules was harmless, we affirm appellant’s convictions.

Affirmed.

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

      . Multiple witnesses testified, on the other hand, that they did not observe any other firearms in the fray.

      . Adams entered the details of his April interview with A.A. into the computer on June 15, 2006, and Streitz’s memorandum of his May meeting with A.A. was dated August 3, 2006.

      . Appellant argues that the district court applied an incorrect standard for premeditation. In a footnote in its findings of fact, conclusions of law, and order, the court did state that “[p]remeditation may be formed almost instantaneously,” despite the fact that we have rejected the "virtually instantaneous” standard of premeditation. See State v. Goodloe, 718 N.W.2d 413, 421-22 (Minn.2006); State v. Moore, 481 N.W.2d 355, 360-61 (Minn.1992). But the court also delineated the correct standard for premeditation, citing Leake, 699 N.W.2d at 319, for the proposition that "[t]he state * * * must prove some appreciable time passed during which the defendant considered, planned, or prepared to commit the act.” Because the evidence supports the court’s finding of premeditation under the correct standard, appellant’s convictions for first-degree murder and attempted first-degree murder are not reversible based on the court's passing reference to instantaneous premeditation.

      . In light of the evidence of appellant's motive and the nature of the killing, it is unnecessary for us to consider whether appellant's prior possession of the murder weapon constitutes evidence of planning activity where there is no evidence that appellant brought the revolver downtown with a motive to kill someone. But see McArthur, 730 N.W.2d at 50 (considering the fact that appellant armed himself to be evidence of planning activity although "no evidence of motive was introduced” and "the murder itself is the only indication that [the defendant] and [the victim] may have been acquainted”).

      . The Connecticut Supreme Court noted in State v. Pierre that the Supreme Court " 'in Crawford neither overruled nor called into question its two earlier decisions that addressed and resolved this issue: Delaware v. Fensterer and United States v. Owens.’ " 277 Conn. 42, 890 A.2d 474, 500 (2006) (citations omitted) (quoting People v. Sharp, 355 Ill.App.3d 786, 292 Ill.Dec. 118, 825 N.E.2d 706, 711 (2005)).

      . See also People v. Candelaria, 107 P.3d 1080, 1087 (Colo.Ct.App.2004) ("Defense counsel had the opportunity to cross-examine [the declarant] about her statements, and [the declarant] was available for further testimony. Accordingly, there was no violation of defendant’s confrontation rights. The fact that at the time of tried [the declarant] no longer recalled the statements or events does not alter this conclusion.") (citations omitted), rev'd in part on other grounds, 148 P.3d 178 (Colo.2006); Mercer v. United States, 864 A.2d 110, 113, 114 & n. 4 (D.C.2004) (concluding "that the requirements of Crawford were met” where the declarant, who “was unable to recall in any meaningful way” the relevant events or her prior statements, was subject to cross-examination at trial); Johnson v. State, 878 A.2d 422, 427, 429 (Del.2005) (ruling "that there was no denial of [the defendant’s] confrontation rights” where the declarant, who could not remember making the prior statements, "took the stand and was subject to cross-examination”); Robinson v. State, 271 Ga.App. 584, 610 S.E.2d 194, 196-97 (2005) (concluding that "because the witnesses [who did not recall many of the facts surrounding the incident but gave responsive answers to some questions] were present at trial and testified, Crawford does not apply”); State v. Fields, 115 Hawai’i 503, 168 P.3d 955, 969 (2007) {"Crawford, despite its absolute rules restricting admission of an absent declarant’s hearsay statement, leaves no room for doubt that the federal confrontation clause is not concerned with the admission of an out-of-court statement where the declarant appears at trial and is cross-examined about that statement.'’)-, State v. Tester, 179 Vt. 627, 895 A.2d 215, 220, 221 n. 2 (2006) {"Crawford is inapposite because [the declarant claiming partial memory loss] testified at trial.”); State v. Rockette, 294 Wis.2d 611, 718 N.W.2d 269, 277 (2006) ("[W]e hold that a witness’s claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the Confrontation Clause under Crawford, so long as the witness is present at trial, takes an oath to testify truthfully, and answers the questions put to him or her during cross-examination.”).


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2008 ND 29
    Lance PATTEN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20070144.
    Supreme Court of North Dakota.
    Feb. 21, 2008.
    Susan Schmidt, Bismarck, N.D., for petitioner and appellant.
    Cynthia Mae Feland, Assistant State’s Attorney, Matthew Ramage-White (on brief), third-year law student, Bismarck, N.D., for respondent and appellee.
   CROTHERS, Justice.

[¶ 1] Lance Patten appeals from an order denying his application for post-conviction relief. Patten argues the district court should have granted him post-conviction relief because he received ineffective assistance of counsel when he pled guilty to criminal charges without first being given a psychiatric evaluation. He also argues the court should have allowed him to withdraw his guilty plea because he was not criminally responsible for committing the criminal offenses due to his mental condition at the time the offenses occurred. We conclude the district court did not err in determining Patten did not receive ineffective assistance of counsel and did not abuse its discretion in refusing to allow Patten to withdraw his guilty plea. We affirm.

I

[¶ 2] On December 16, 2001, Patten confronted his ex-girlfriend when she attempted to leave the Bismarck apartment building where they both rented apartments. She entered her vehicle, rolled up the windows and locked the doors, but Patten would not get off the vehicle. Two people who happened by the scene pulled Patten away from the vehicle, and Patten went into his apartment and set fire to his mattress. Patten left the apartment building in his vehicle and went to a gas station to fill his tank. He waved a knife at people and drove off without paying.

[¶ 3] Police officers responding to a call from the gas station located and pursued Patten, but Patten would not pull over. Patten attempted to evade the police by driving through a yard, but he became stuck in a ditch. When the officers approached the vehicle, Patten refused to put down two knives and a lighter he was holding. The officers eventually subdued Patten with pepper spray. Patten then began spitting on the officers, forcing them to place a spit sock on him. The officers took Patten to a hospital psychiatric ward and later to the Burleigh County Detention Center.

[¶ 4] In January 2002, Patten was charged with class C felony reckless endangerment, class B misdemeanor disorderly conduct, class C felony preventing arrest or discharge of duties, class B misdemeanor reckless driving, class A misdemeanor fleeing, and two counts of class C felony contact with bodily fluids. An attorney was appointed to represent Patten.

[¶ 5] On February 4, 2002, the date set for his preliminary hearing, Patten waived the preliminary hearing and pled guilty to the charges. When the district court asked Patten to explain “what happened,” Patten told the judge:

“DEFENDANT: I have schizo-effective disorder. I thought that since I quit drinking that I could go without taking my medications, Your Honor. I was wrong by that. I’d been thinking a lot of delusional thoughts and my mind was racing and I just got into some trouble and I didn’t mean to hurt anybody and I’m sorry about what happened.”

After receiving a factual basis for the plea from Patten and the prosecutor, and after advising Patten of his rights under N.D.R.Crim.P. 11, the district court accepted the plea and ordered a presentence investigation. On April 3, 2002, the court concurrently sentenced Patten to three years with the Department of Corrections, with two years suspended for five years. Patten was released to probation in November 2002, but in August 2003, he was issued a no-contact order and was charged with simple assault, interference with a 911 call, and disobedience of a judicial order. Patten’s probation was revoked and he was sentenced to two years with the Department of Corrections, suspended for four years.

[¶ 6] In August 2006, Patten filed a motion for a psychiatric evaluation, which was granted. The clinical psychologist who performed the evaluation concluded Patten was “not criminally responsible” for the December 2001 criminal “offenses due to [his] mental condition, Schizoaffec-tive Disorder,” but “he was likely trial competent at the time he pled guilty to the ... charges.” In January 2007, Patten moved for post-conviction relief, alleging he received ineffective assistance of counsel because his attorney did not request a psychiatric evaluation to determine his condition before allowing him to plead guilty to the criminal charges. Patten also contended he should be allowed to withdraw his guilty plea because his 2006 psychiatric evaluation showed he was not criminally responsible when he committed the December 2001 offenses. Following a hearing, the district court denied Patten’s application for post-conviction relief.

II

[¶ 7] Patten argues he received ineffective assistance of counsel because his trial attorney failed to request a psychiatric evaluation before he pled guilty to the charges.

[¶ 8] In Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454, this Court explained the standard of review for a claim of ineffective assistance of counsel in a post-conviction relief proceeding:

“Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Varnson v. Satran, 868 N.W.2d 533, 536 (N.D.1985). The issue of ineffective assistance of counsel is a mixed question of law and fact that is fully reviewable by this Court. Breding v. State, 1998 ND 170, ¶ 4, 584 N.W.2d 493 (citing Falcon v. State, 1997 ND 200, ¶21, 570 N.W.2d 719). Nonetheless, a trial court’s findings of fact in a post-conviction relief proceeding will not be disturbed unless clearly erroneous. N.D.R.Civ.P. 52(a); Frey v. State, 509 N.W.2d 261, 263 (N.D. 1993). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made. Burlington Northern and Sante Fe Railway Co. v. Burlington Resources Oil & Gas Co., 1999 ND 39, ¶ 10, 590 N.W.2d 433.”

[¶ 9] The “heavy burden” required for a post-conviction relief applicant to prevail on an ineffective assistance of counsel claim was also described in Heckelsmiller, 2004 ND 191, ¶ 3, 687 N.W.2d 454:

“[A] defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance.” DeCoteau [v. State], 1998 ND 199, ¶ 6, 586 N.W.2d 156 (citing Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995)). “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” Lange v. State, 522 N.W.2d 179, 181 (N.D.1994) (quoting Strickland [v. Washington, 466 U.S. 668, 688, [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984) ]). The defendant must first overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D.1993) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “ Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight. Lange, 522 N.W.2d at 181.”

In the context of guilty pleas, the second prong of the test is satisfied if the defendant shows “ ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Ernst v. State, 2004 ND 152, ¶ 10, 683 N.W.2d 891 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

[¶ 10] Patten contends he was denied effective assistance of counsel because he asked his trial attorney about raising an insanity defense to the charges, but his attorney talked him out of it. Patten testified he asked his attorney to request a psychiatric evaluation, but the attorney did not do so because “he told me that he thought that I wasn’t insane enough to where we’d be spinning our wheels and that there was so much overwhelming evidence against me and I had such a good deal coming from the State.” However, Patten’s trial attorney testified he had written in his case notes that “we obviously talked about a psych eval and I’ve got in here that c[lient] does not want psych eval, wants to plead on the recommendation and out of Burleigh County Detention Center.” The attorney also testified, “I’ve got underlined no eval period.” When asked if anything about Patten indicated there was a “problem” with his mental state, the attorney testified:

“At that time he was adamant about not wanting an eval and very simply when I’m faced with that situation— somebody who is able to explain the charges to me, who I find very pleasant, very intelligent, who’s talking to me and we had some of the discussions he had with the Court that he basically knows he needs to stay on his meds, I assumed he had all of the faculties.”

Although Patten argues these discussions occurred after he pled guilty and before sentencing, the record reflects Patten wanted to plead guilty before he waived the preliminary hearing. Patten’s attorney testified his notes indicated “client wants to plead and resolve the case and out or to pen. I explained that I needed discovery.”

[¶ 11] In its oral findings made at the conclusion of the hearing, the district court found the attorney’s “version of the events is more credible to me” than Patten’s version. “The task of weighing the evidence and judging the credibility of the witnesses belongs exclusively to the trier of fact, and we do not reweigh credibility or resolve conflicts in the evidence.” Greywind v. State, 2004 ND 213, ¶ 22, 689 N.W.2d 390. The district court’s finding on credibility is not clearly erroneous. Patten told his attorney he did not want a psychiatric evaluation, and because Patten seemed capable of making appropriate decisions before he pled guilty, Patten’s attorney believed there was no need to force him to have an evaluation. “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered.” N.D.R. Prof. Conduct 1.2(a); see also State v. Lowenfield, 495 So.2d 1245, 1252 (La.1985) (“It appears beyond argument that when a competent defendant wishes to plead not guilty rather than not guilty by reason of insanity, and clearly understands the consequences of his choice, then the counsel must acquiesce to the wishes of his competent client.... Neither can there be error in allowing the defense to comply with the defendant’s wish not to have his sanity examined at any point of the trial.”).

[¶ 12] Patten failed to establish his attorney’s performance was deficient. We conclude the district court did not err in rejecting Patten’s claim of ineffective assistance of counsel.

Ill

[¶ 13] Patten argues the district court erred in refusing to allow him to withdraw his guilty plea because his 2006 psychiatric evaluation established he was not criminally responsible for his December 2001 actions.

[¶ 14] When a defendant applies for post-conviction relief seeking to withdraw a guilty plea, the application is treated as one made under N.D.R.Crim.P. 32(d). Greywind, 2004 ND 213, ¶7, 689 N.W.2d 390. “Withdrawal of a guilty plea is allowed when necessary to correct a manifest injustice, and whether there has been a manifest injustice supporting withdrawal of the plea lies within the district court’s discretion.” Id. “[A] trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or ... when the exercise of its discretion is not the product of a rational mental process.” Bell v. State, 2001 ND 188, ¶ 21, 636 N.W.2d 438.

[¶ 15] The record of the guilty plea proceedings gives no indication that Patten was incompetent to enter his plea. Indeed, the clinical psychologist who completed the 2006 psychiatric evaluation concluded Patten “was likely trial competent at the time he pled guilty.” The district court determined the guilty plea was knowingly and voluntarily entered:

“[T]o all appearances, Mr. Patten fully understood the charges against him, fully understood the options that were set out to him by Mr. Schwarz and was able to assist in making the decisions on those options. Mr. Patten testified today that it was quite obvious I was insane. Well it was not obvious to Mr. Schwarz, nor was it obvious to the Court- Mr. Schwarz discussed the matters with Mr. Patten, got appropriate responses. His impressions were that Mr. Patten understood. In fact, Mr. Patten framed back to him what the charges were and what the conduct was that he was alleged to have committed ... Mr. Schwarz simply had no reason to believe that Mr. Patten did not understand and was not able to assist .in his own defense and that he was competent to do that. With regard to the Court’s inquiry, and obviously I’m passing judgment on my own behavior here but when I read the transcript of the preliminary hearing and arraignment and when I read the transcript of the hearing, I made specific inquiries, those inquiries were appropriately responded to. I did give Mr. Patten the opportunity at either the preliminary or the sentencing to take some time to visit with Mr. Schwarz if he needed to. Mr. Patten said that he was a little nervous but he was able to proceed. At the sentencing I specifically inquired as to whether Mr. Patten was on his medications. Mr. Patten said he was and gave basically the impression anyway that as long as he’s on his medications, things are fine, and that’s the same testimony he gave today.”

[¶ 16] We do not view the psychologist’s 2006 opinion that Patten was not criminally responsible for his December 2001 actions as constituting a manifest injustice. A voluntarily entered plea of guilty is a waiver of all non-jurisdictional defects. Eagleman v. State, 2004 ND 6, ¶ 8, 673 N.W.2d 241. Consequently, if a defendant is competent and voluntarily pleads guilty, the defendant waives the right to raise the defense of lack of criminal responsibility when the acts occurred. See State v. Magnuson, 1997 ND 228, ¶ 12, 571 N.W.2d 642. This Court does not second guess matters of trial strategy. See Noorlun v. State, 2007 ND 118, ¶ 12, 736 N.W.2d 477; Mathre v. State, 2000 ND 201, ¶ 7, 619 N.W.2d 627.

[¶ 17] We conclude the district court did not abuse its discretion in refusing to allow Patten to withdraw his guilty plea.

IV

[¶ 18] The order is affirmed.

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


author: KAPSNER, Justice.

text:
    2008 ND 36
    In the Matter of Darl John HEHN. A.W. Stokes, Richland County State’s Attorney, Petitioner and Appellee v. Darl John Hehn, Respondent and Appellant.
    No. 20070167.
    Supreme Court of North Dakota.
    Feb. 21, 2008.

      A.W. Stokes, State’s Attorney, Wahpe-ton, ND, for petitioner and appellee; submitted on brief.
    Thomas E. Merrick (argued), Merrick & Schaar Law Firm, Jamestown, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] Dari Hehn appeals a district court order committing him as a sexually dangerous individual. We affirm the order.

I

[¶ 2] In April 1997, Hehn pled guilty to two counts of gross sexual imposition and one count of terrorizing. The charges and convictions were based on an incident involving Hehn’s 17-year-old former girlfriend. In May 1996, Hehn took his former girlfriend from her home at gunpoint, sexually assaulted her, and then forced her to have sex with him. Hehn was sentenced to 16 years in prison, with 8 years suspended, for the two counts of gross sexual imposition (“GSI”) and to an additional five years, to run concurrently with the GSI sentences, for his terrorizing conviction.

[¶ 3] In June 2003, Hehn was released from prison on supervised probation. He returned to Wahpeton for the probationary period. Heidi Arnholt served as his probation officer. During the course of his probation in Wahpeton, eleven reports regarding Hehn’s conduct were filed with Arnholt or the area police department. Several complaints alleged Hehn treated an employee at the public library poorly. Two other reports alleged Hehn walked or drove behind pre-adolescent and teenage girls. One report from the school principal alleged that Hehn’s car was seen parked near the high school. Several other complaints came from witnesses who were concerned after they saw Hehn walking through their backyards. Another report provided that Hehn sent a flirtatious email to a girl, who was at or just under eighteen years old, asking her to marry him. Another complaint came from a “youthful looking” twenty-year-old employee at West Acres Mall, who said Hehn came into the store and gave her a sexually inappropriate letter. Several lay witnesses and Arnholt testified about the community complaints.

[¶ 4] Hehn remained under Arnholt’s supervision until February 2004, when he was arrested for violating conditions of his probation. Hehn’s probation was revoked in June 2004 when he admitted to violating conditions of probation; he was sentenced to two years with the Department of Corrections. Hehn was scheduled for discharge from the North Dakota State Penitentiary on February 12, 2006, when the petition for commitment was filed.

[¶ 5] A commitment hearing was conducted. The State presented two witnesses, Dr. Belanger and Dr. Sullivan, both of whom recommended commitment. Dr. Belanger tested Hehn using the RRA-SOR, Static-99, and MnSOST-R. These three actuarial tests differed as to Hehn’s probability to re-offend; one test showed Hehn was low risk, and the other two tests placed Hehn at medium to high risk. Dr. Belanger acknowledged these risk assessment tools did not support the conclusion that Hehn was at high risk for recidivist sexually predatory conduct.

[¶ 6] Dr. Belanger, however, did not rely on these three standard test results because he found Hehn’s diagnosis was unique. Thus, the scores were not useful in coming to a conclusion about Hehn because Hehn was “so significantly different from the developmental and standardization samples that the actuaríais cannot be applied.” To determine Hehn was a sexually dangerous individual, Dr. Belanger relied on the PCL-R2nd, which tests individuals for the mental illness psychopathy. According to Dr. Belanger, the PCL-R2nd provided Hehn was psychopathic. He further found Hehn suffered from a borderline personality disorder and hebephilia, which is a sexual disorder in which an individual is sexually attracted to adolescent girls. Dr. Belanger, in his report, relies in particular on Hehn’s 1996 conviction involving a 17-year-old, the accusation that he attempted to make a date with a girl who was either 17 or 18 at the time, walking or driving behind an 11-year-old and 14-year-old, and the letter he wrote to a “very much younger looking 20 y[ear old]” to diagnose Hehn as suffering from hebephilia. Based on his conclusion that Hehn was diagnosable with both psychopathy and hebephilia, Dr. Belanger’s report provided that the psychopathy, when combined with the hebephilia, put Hehn “at very high risk for recidivist sexually predatory conduct.”

[¶ 7] Dr. Sullivan came to similar conclusions using the PCL-R2nd, diagnosing Hehn with psychopathy and hebephilia, which when combined create a high risk of re-offending. She did not, however, test Hehn using the RRASOR, Static-99, or the Mn-SOST-R because none of the eleven reports filed ever resulted in charges, and these instruments do not account for accusations that do not rise to the level of criminal charges. Thus, Dr. Sullivan believed these actuarial risk assessments would be invalid or “spuriously low” as applied to Hehn. Using the allegations that Hehn “attempt[ed] to talk to two 11-year-old girls walking home at night, and running after them when they tried to run away; ... following in his car a 14-year-old girl walking home, and asking her if she wanted a ride; loitering around a high school and approaching at least four female students; looking up the address of a female librarian on the Internet,” Dr. Sullivan determined Hehn was diagnosable with hebephilia. Dr. Sullivan recommended, based on the interaction between hebephilia and psychopathy, Hehn was likely to engage in further acts of sexually predatory conduct.

[¶ 8] At the hearing, Dr. Volk, an independent psychologist who assessed Hehn, agreed Hehn has borderline personality disorder. He did not diagnose hebephilia. Instead, he diagnosed Hehn with depressive disorder and sexual abuse of a child. Dr. Volk acknowledged allegations made against Hehn while he was in the community, but discounted them in his report, believing that the allegations should not be considered because they could not be verified. Dr. Volk did not diagnose Hehn with hebephilia or any other sexual disorder. Dr. Volk concluded that without the hebe-philia diagnosis, future sexually predatory behavior was not predictable. He noted that the conclusions of Drs. Belanger and Sullivan hinged on linking the psychopathy to the hebephilia, but found the evidence used to come to a hebephilia diagnosis was questionable and thus could not be used to support a sexual disorder diagnosis. Dr. Volk did, however, acknowledge during his testimony that he did not have all of the documents Drs. Belanger and Sullivan had to complete his evaluation. Dr. Volk did not recommend Hehn be committed as a sexually dangerous individual, but did agree Hehn was in need of some type of treatment for mental illness.

[¶ 9] Following the hearing on November 28, 2006, the district court issued an order for commitment. In its Memorandum Opinion, the district court stated:

Mr. Hehn’s pattern of re-occurrent behavior commencing after his conviction, most of which if not all is of a sexual nature, leads Dr. Belanger to his conclusion [that Hehn is a sexually dangerous individual].
As Dr. Belanger points out, Hebephi-lia is also important to consider. The sexual contact between Mr. Hehn as an adult and the minors, as established by some of the lay testimony, fits within the definition of sexually predatory conduct. This testimony and other parts of the record accumulated by him, leads Dr. Belanger to the conclusion that Mr. Hehn is at risk for sexual behavior with underage females.
The record further demonstrates that the treatment which Mr. Hehn received at the Department of Corrections and through his individual counseling does not meet the necessary treatment needed to assist Mr. Hehn in overcoming his sexually predatory conduct.

[¶ 10] Hehn moved the court for a new trial under N.D.R.Civ.P. 59 on December 14, 2006, six days after the entry of the order for commitment. The court denied the motion for new trial on May 31, 2007. Hehn filed his notice of appeal on June 12, 2007.

[¶ 11] Hehn appeals, arguing the appeal is timely under N.D.R.Civ.P. 59 and N.D.R.App.P. 4. He further argues there was insufficient evidence to sustain the district court’s order committing him as a sexually dangerous individual.

II

A. The Applicability of N.D.R.Civ.P. 59 and N.D.R.App.P. 4

[¶ 12] Section 25-03.3-19, N.D.C.C., provides that the notice of appeal must be filed within 30 days after the entry of the commitment order. In this case, Hehn’s order of commitment was filed on November 28, 2006, and his notice of appeal was filed on June 12, 2007. Between the order and notice of appeal, 196 days had elapsed. However, on December 14, 2006, Hehn moved the court for a new trial. The court did not deny the motion until May 31, 2007. Hehn filed his notice of appeal June 12, 2007, less than 30 days after notice of entry of the order denying the motion for new trial.

[¶ 13] The North Dakota Rules of Civil Procedure “govern the procedure in the district courts in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Rule 81.” N.D.R.Civ.P. 1. Rule 81(a) states that “[s]peeial statutory proceedings, whether or not listed in Table A, are excepted from these rules insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules.” Chapter 25-03.3, N.D.C.C., which governs the commitment of sexually dangerous individuals, is not listed in Table A as a special statutory proceeding. Table A is, however, according to its preamble, “a nonexclusive list.” This Court has found the Mental Health Act, N.D.C.C. ch. 25-03.1, to be a special statutory proceeding even though it does not appear in Table A. Interest of T.H., 482 N.W.2d 615, 620 (N.D.1992).

[¶ 14] This Court held in Interest of T.H. that “[o]ur civil procedures supplement, rather than supplant, the particularized procedures of the mental-health statutes.” Id. Sexually dangerous individual commitments are similar in nature to mental health commitments. Thus, the rules of civil procedure are applicable to this particular type of commitment as well, insofar as the rules of civil procedure do not conflict with the commitment statute. See In re M.D., 1999 ND 160, ¶ 27, 598 N.W.2d 799 (“The sexually dangerous individual commitment provisions have been placed in Title 25 of the Century Code, entitled ‘Mental and Physical Illness or Disability.’ The provisions are close in proximity and content to the provisions for civil commitment of the mentally ill or chemically dependent, contained in N.D.C.C. ch. 25-03.1.”). The sexually dangerous individual commitment statutes do not expressly preclude the application of civil procedure in general; nor is there a provision that precludes a motion for new trial in particular.

[¶ 15] Silence on this subject is not an inconsistency, “for when an excepted statutory proceeding is silent on a certain procedural issue, the'general rules of civil procedure become applicable.” Tormaschy v. Tormaschy, 1997 ND 2, ¶14, 559 N.W.2d 813. Further, a motion for new trial in the context of sexually dangerous individual commitments does not pose any procedure that may be contrary to the statutory scheme, such as an expedited appeal provision. Because these commitments are of unlimited duration, civil procedures that do not directly conflict with a statute should be available to protect the liberty interests of one facing commitment. Rule 59, N.D.R.Civ.P., does not conflict with the statutory scheme and is not inconsistent with the aims of the Commitment of Sexually Dangerous Individuals Act. Thus, a motion for a new trial may be made in a proceeding under N.D.C.C. ch. 25-03.3.

[¶ 16] In Interest of J.S., 1998 ND 92, ¶¶ 7-11, 578 N.W.2d 91, this Court decided that a district court properly applied N.D.R.App.P. 4 in extending the time for appeal in a mental health case. In a civil case, N.D.R.App.P. 4 requires the notice of appeal to be filed with the clerk of the district court within 60 days of the notice of the entry of the judgment or order from which a party appeals. N.D.R.App.P. 4(a). Under N.D.R.App.P. 4(a)(3)(A)(v), a motion for new trial under N.D.R.Civ.P. 59 tolls the time for filing an appeal. Because this Court has applied N.D.R.App.P. 4 to mental health cases, which are similar to sexually dangerous individual commitments, Rule 4 should toll the- time for appeal in this case, making Hehn’s appeal timely.

B. Sufficiency of Evidence to Sustain Order Committing Hehn as a Sexually Dangerous Individual

[¶ 17] “Civil commitments of sexually dangerous individuals are reviewed under a ‘modified clearly erroneous’ standard and will be affirmed unless the district court’s ‘order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.’ ” Matter of Midgett, 2007 ND 198, ¶6, 742 N.W.2d 803 (quoting In re Anderson, 2007 ND 50, ¶ 21, 730 N.W.2d 570).

[¶ 18] To commit a person as a sexually dangerous individual under chapter 25-03.3, N.D.C.C., the State must prove, by clear and convincing evidence, that the person has

[1] engaged in sexually predatory conduct and [2] who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that [3] makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.

N.D.C.C. § 25-03.3-01(8).

[¶ 19] The term “likely to engage in further acts of sexually predatory conduct” means the individual’s propensity towards sexual violence is of such a degree as to pose a threat to others. Interest of M.B.K., 2002 ND 25, ¶ 18, 689 N.W.2d 473; Matter of G.R.H., 2006 ND 56, ¶ 16, 711 N.W.2d 587. In addition to the three requirements contained in the plain language of the statute and this Court’s definition of “likely to engage in further acts of sexually predatory conduct,” the United States Supreme Court held that in order to satisfy substantive due process requirements, the individual must be shown to have serious difficulty controlling his behavior. Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002). This additional consideration is necessary to distinguish a sexually dangerous individual from the “dangerous but typical recidivist convicted in an ordinary criminal case.” Id.

[¶ 20] In this case, Hehn challenges the sufficiency of evidence for the third prong of the above test, arguing the State failed to prove by clear and convincing evidence that his propensity towards sexual violence is of such a degree as to pose a threat to others, and thus he is, at best, a dangerous, but typical, recidivist, and commitment is inappropriate.

[¶21] Hehn argues that because Dr. Belanger admitted the actuarial tests, RRASOR, Static-99, and MnSOST-R, do not support the conclusion that Hehn will likely re-offend, there is not clear and convincing evidence that he will likely re-offend. He further argues the district court was not presented with clear and convincing evidence that he would likely re-offend or that he posed a serious threat to others, because Dr. Sullivan would not administer the test based on her conclusion that the results would be “spuriously low.” The fact that these actuarial test scores did not give rise to scores showing a high risk of re-offending does not preclude the fact-finder from coming to an alternative conclusion. “We have previously made clear that we will not engage in a ‘contest over percentage points’ when it comes to determining whether an individual meets the requirements for civil commitment.” Interest of P.F., 2006 ND 82, ¶ 29, 712 N.W.2d 610 (Kapsner, J., concurring) (quoting In re M.B.K., 2002 ND 25, ¶ 18, 639 N.W.2d 473). The concurrence in Interest ofP.F. noted the importance of independent judicial decision-making and the non-binding nature of actuarial test scores:

Instead, we require a thorough examination done by experts to make the initial recommendation of whether an individual poses a threat to society. A certain test score on the RRASOR or Static-99 does not make an individual automatically committable. If we were to accept such logic, the judiciary would be without purpose. The court has the ultimate decision to determine whether the State has met its burden of producing clear and convincing evidence sufficient for commitment. A psychological test cannot act as a substitute for-independent judicial review.

Interest of P.F., at ¶ 29 (Kapsner, J., concurring) (internal citations omitted). The importance of independent judicial decision-making means the judge, rather than the test scores or the psychologists who create them, is the ultimate decision-maker. Id. Because this Court has refused to engage in contests of percentage points, the fact that the actuarial tests do not indicate Hehn is statistically likely to re-offend is of little consequence in determining whether there is clear and convincing evidence to support his conviction.

[¶ 22] Hehn also argues that because Dr. Volk found Hehn was not likely to re-offend, based on the fact that Dr. Volk did not diagnose him with hebephilia in conjunction with psychopathy, and because the hebephilia diagnosis made by both Drs. Belanger and Sullivan relied upon community reports that were “unfounded, ... second or third hand accounts” based on a “tarred” reputation in a small community, the State did not show Hehn was likely to engage in sexually predatory conduct. While Hehn couches this issue in terms of the sufficiency of the evidence, his arguments actually go to the weight the evidence was assigned.

[¶ 23] Several of the individuals who made the reports or were referenced in the reports were called to testify at the commitment hearing. While there were some conflicts between the reports and the testimony, this Court has repeatedly held that “[e]valuation of credibility where evidence is conflicting is solely a trial court function.” Alumni Ass’n v. Hart Agency, Inc., 283 N.W.2d 119, 121 (N.D.1979); see also Estate of Nelson, 553 N.W.2d 771, 774 (N.D.1996) (“The trial court was in the best position to weigh the conflicting evidence and judge the credibility of the witnesses. If reasonable evidence in the record supports a trial court’s findings, we will not retry the case and substitute findings we might have made for those of the trial court.”) (internal citation omitted). Here, it could be reasonably inferred that the trial court found the testimony of the witnesses to the alleged reports credible, and gave the reports of Drs. Belanger and Sullivan more weight than that of Dr. Volk. It is not the function of this Court to second-guess the credibility determinations made by the trial court.

[¶ 24] Hehn’s prior GSI convictions constitute clear and convincing evidence that Hehn meets the first prong of the commitment statute, which requires that an individual has engaged in prior sexually predatory conduct. The second prong of the sexually dangerous individual statute requires clear and convincing evidence that Hehn suffers from a “congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction.” The reports of Drs. Belanger and Sullivan provide evidence that Hehn is afflicted with both hebephilia, a sexual disorder, and psychopathy, a mental disorder. Thus, this prong of the statute is met. Based upon the interaction of these two diagnosis, Drs. Belanger and Sullivan concluded Hehn was likely to engage in further acts of sexually predatory conduct that constitute a danger to the safety of others. Testimony by the others at the hearing, including Hehn’s probation officer and the community members who filed complaints with Hehn’s probation officer and police department, supported the determinations of Drs. Belanger and Sullivan. The trial court had evidence beyond the psychologists’ reports and the statistical test scores to conclude Hehn was a sexually dangerous individual. There was clear and convincing evidence to support the district court’s conclusion that Hehn is a sexually dangerous individual under N.D.C.C. § 25-03.3-01(8).

[¶25] We affirm the district court order committing Hehn as a sexually dangerous individual.

[¶ 26] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

DALE V. SANDSTROM, J., concurs in the result.


text:
    2008 ND 38
    CITY OF MINOT, Plaintiff and Appellant v. Corey Lynn KELLER, Defendant and Appellee.
    Nos. 20070116, 20070117.
    Supreme Court of North Dakota.
    Feb. 25, 2008.
    Mark Ashley Flagstad, Assistant State’s Attorney, Minot, ND, for plaintiff and appellant.

      Jeffrey Lee Sheets, Heritage Place, Minot, ND, for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] The City of Minot appeals the district court’s order suppressing all evidence in a case involving Corey Keller, who was charged with driving under the influence of intoxicating liquor and possessing a loaded firearm in a motor vehicle. We reverse the district court’s order, concluding the law enforcement officer had reasonable and articulable suspicion to stop Keller’s vehicle, and we remand for further consideration.

I

[¶ 2] On November 28, 2006, the manager of Wendy’s restaurant in Minot reported to the Minot Police Department that an individual driving a blue GMC pick-up truck licensed EIY289 was bothering an employee. Several restaurant employees claimed the individual smelled of alcohol and believed he was intoxicated. Law enforcement officer Cassidy Halseth located the pick-up truck parked by another store. Halseth located Keller inside the store and identified him as the driver. Halseth spoke with Keller and concluded Keller was intoxicated based on his observations that Keller had poor balance, slurred speech, bloodshot eyes and an odor of alcohol about him. Halseth did not perform any field sobriety tests or preliminary breath tests on Keller, but he did recommend to Keller that he not drive in his condition. After the contact with Keller, Halseth waited outside the store for approximately one hour, but did not observe Keller return to his truck.

[¶ 3] Halseth told fellow officer Larry Haug that Keller was intoxicated, and he showed Haug where Keller’s pick-up truck was parked. Haug did not observe Keller return to his vehicle, but he later saw the vehicle being driven by a male matching Keller’s description. Haug was able to identify Keller’s vehicle because he ran the license plate number earlier in the evening; however, Haug could not positively identify Keller as the driver of the vehicle. Haug followed Keller’s vehicle, turned on his lights and initiated a traffic stop. Haug observed the vehicle weaving onto the shoulder of the road many times, but this occurred after Haug turned on his lights to initiate the stop.

[¶ 4] Ultimately, Haug arrested' Keller for driving under the influence of intoxicating liquor and possessing a loaded firearm in a motor vehicle. A medical technologist at Trinity Medical Center obtained a blood sample from Keller. The lab results showed a blood alcohol concentration of 0.26 percent by weight. Keller was charged with driving under the influence and with possessing a loaded firearm in a motor vehicle.

[¶ 5] On February 13, 2007, Keller filed a motion to suppress all evidence obtained in the November 28, 2006 traffic stop. The district court granted the order, concluding Haug did not have reasonable and articulable suspicion necessary to make the stop under Anderson v. Dir., N.D. Dep’t of Transp., 2005 ND 97, ¶ 9, 696 N.W.2d 918. Minot appeals, arguing the district court misinterpreted Anderson and failed to sufficiently consider the interaction between Keller and Halseth. Minot contends the interaction between Keller and Halseth, when considered among the totality of circumstances, provided sufficient grounds for the stop.

II

[¶ 6] “Questions of law and the ultimate conclusion about whether the facts support a reasonable and articulable suspicion are fully reviewable on appeal.” State v. Smith, 2005 ND 21, ¶ 11, 691 N.W.2d 203. A law enforcement “officer must have a reasonable and articulable suspicion that [a driver] has violated or is violating the law” before making an investigative stop. State v. Graven, 530 N.W.2d 328, 330 (N.D.1995). “[M]ere curiosity, suspicion, vague hunches, or other nonobjective facts will not suffice.” State v. Johnson, 2006 ND 248, ¶9, 724 N.W.2d 129.

[¶ 7] Section 39-08-01, N.D.C.C., states, “A person may not drive ... upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if: ... That person is under the influence of intoxicating liquor.” Here, each of the two officers observed information sufficient to satisfy one of the two elements of the crime. Halseth observed Keller in an intoxicated state, and Haug observed Keller driving. Neither officer’s independent observations created reasonable and articulable suspicion to stop Keller’s vehicle.

[¶ 8] The matter before this Court is whether Halseth’s uncorroborated communication that Keller was intoxicated, together with Haug’s observation of Keller driving, is sufficient to establish reasonable and articulable suspicion to stop the vehicle.

[¶ 9] The United States Supreme Court explored a similar issue in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). In Whiteley, two men were arrested by an officer who relied on a bulletin from another agency describing the men and the car they were driving. Id. at 563, 91 S.Ct. 1031. The bulletin indicated there were arrest warrants for the men, but it did not include sufficient underlying information justifying the warrants. Id. The warrants were found improperly supported, and there were no facts justifying an arrest without the warrants. Id. at 564-65, 91 S.Ct. 1031. The Court determined the officers were justified in acting on the bulletin alone and should not be subject to civil charges. See id. at 568, 91 S.Ct. 1031. However, because neither the issuing agency nor the arresting officers had probable cause, the defendant’s Fourth Amendment rights were violated and the exclusionary rule applied. Id. at 568-69, 91 S.Ct. 1031.

[¶ 10] The Whiteley rule, also known as the collective knowledge doctrine, allows law enforcement officers to rely on information from other officers to establish probable cause. “[E]ffeetive law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another.” United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Hensley held that information from other officers can also be used to establish reasonable and articulable suspicion. Id. This Court has found the federal approach persuasive when considering communications between officers. State v. Miller, 510 N.W.2d 638, 643 (N.D.1994).

[¶ 11] Whiteley establishes that if an officer has probable cause and communicates that fact to a second officer, the second officer also enjoys the benefit of that probable cause. What is not clear from Whiteley is whether facts from one officer or agency may be combined with facts from a second officer or agency to establish reasonable and articulable suspicion if the facts, uncombined, fall short of this legal standard. Keller’s intoxication, alone, is not a criminal act under North Dakota law. Schwindt v. State, 510 N.W.2d 114, 117 (N.D.1994). Keller’s operation of a vehicle, alone, is not a criminal act. It is only when these two conditions are combined that a criminal violation occurs.

[¶ 12] In answering this question, it is significant that Haug needed to have reasonable and articulable suspicion to stop Keller rather than probable cause. Graven, 530 N.W.2d at 330. Reasonable and articulable suspicion is a lesser standard than probable cause, requiring only an objective manifestation that an individual has engaged in unlawful activity. Lapp v. N.D. Dep’t of Transp., 2001 ND 140, ¶ 11, 632 N.W.2d 419; State v. Garrett, 1998 ND 173, ¶ 29, 584 N.W.2d 502. Tips from known informants who are not otherwise affiliated with law enforcement have been used to justify investigatory traffic stops provided the tips are otherwise reliable. Gabel v. N.D. Dep’t of Transp., 2006 ND 178, ¶ 12, 720 N.W.2d 433. It would be illogical for this Court to require independent corroboration of information from police officers, who are presumptively reliable, when not also requiring corroboration of information from non-police informants. See Miller, 510 N.W.2d at 641 (Tips on the “high end of the reliability scale” are “sufficient to raise a reasonable suspicion.”). In order for knowledge to be imputed from one officer to another, however, the information must actually be communicated to the acting officer in advance of the police action. Id. at 643 (“[I]nformation held by other officers but not communicated to the acting officer is not imputed to the acting officer.”). The communication requirement prevents unjustified police action from being taken in the hopes it is later validated by tallying the knowledge of every officer and agency involved in the case. See State v. Mickelson, 18 Or.App. 647, 526 P.2d 583, 584 (1974); see, e.g., Salter v. State, 163 Ind.App. 35, 321 N.E.2d 760, 762 (1975) (finding arrest improper when evidence could not demonstrate that officer possessing knowledge establishing probable cause communicated with the arresting officer prior to arrest).

[¶ 13] The district court suppressed the evidence against Keller after determining the information communicated by Hal-seth to Haug was not sufficient to establish reasonable and articulable suspicion because Haug did not independently corroborate the information. The district court relied on Anderson, which states:

“We have discussed three situations that provide an officer reasonable and articulable suspicion to stop a vehicle: (1) when the officer relied on a directive or request for action from another officer; (2) when the officer received tips from other police officers or informants, which were then corroborated by the officer’s own observations; and (3) when the officer directly observed illegal activity.”

2005 ND 97, ¶9, 696 N.W.2d 918. See also State v. Torkelsen, 2006 ND 152, 718 N.W.2d 22; Interest of T.J.K., 1999 ND 152, 598 N.W.2d 781; City of Fargo v. Ovind, 1998 ND 69, 575 N.W.2d 901. Using Anderson, the district court determined there are only two ways an officer may use information obtained from another officer to establish reasonable and ar-ticulable suspicion: (1) if a directive or request for action is given by another officer and (2) if the information received from other officers is corroborated with personal observations. The district court excluded all evidence from the stop because it found neither a directive nor corroboration. We conclude the district court’s interpretation of Anderson was too narrow because Anderson does not offer an exclusive list and does not require that one officer verify another officer’s communication of suspected illegal activity. Rather, officer to officer communications are presumptively reliable. Therefore, observations made by one officer may be communicated to a second officer who, after observing additional conduct, can combine the communicated observations with his own to thereafter have reasonable articulable suspicion to stop.

Ill

[¶ 14] We reverse the district court’s order, concluding the observations made by law enforcement officers provided reasonable and articulable suspicion to stop Keller’s vehicle, and we remand for further consideration.

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