text:
    2001 ND 126
    Richard Ardell HEYEN, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20000310.
    Supreme Court of North Dakota.
    July 10, 2001.
    Rehearing Denied Aug. 30, 2001.

      Richard Ardell Heyen (submitted on brief), pro se, Jamestown, petitioner and appellant.
    Brett M. Shasky, Assistant State’s Attorney, Cass County Courthouse, Fargo, for respondent and appellee.
   MARING, Justice.

[¶ 1] Richard Ardell Heyen appeals from a judgment dismissing his second application for post-conviction relief dated November 7, 2000. He also appeals from an order denying his request that specific materials be prepared concerning his post-conviction relief proceedings and an order denying his request for post-conviction counsel. We affirm.

I

[¶ 2] On November 1, 1999, Heyen entered a guilty plea to charges of possession of a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. The trial court sentenced Heyen to serve concurrently two five-year terms of imprisonment and one seven-year term of imprisonment. Heyen did not directly appeal the criminal judgment.

[¶ 3] On June 9, 2000, Heyen applied for post-conviction relief. In his application, Heyen asserted four grounds for relief, including denial of effective assistance of counsel; denial of his Fourth Amendment right against unreasonable search and seizure; right to post-conviction counsel; and that certain evidence would lead to the dismissal of charges against him. Heyen applied for post-conviction counsel on June 13, 2000, but due to his reported assets his request was denied. On August 3, 2000, the trial court summarily dismissed Heyen’s application for relief. Judgment was entered August 10, 2000, and Heyen did not appeal the judgment.

[¶ 4] On September 15, 2000, Heyen filed an “amended application for post-conviction relief hearing,” and the court entertained it as a second application for relief. Heyen once again applied for post-conviction counsel, and the trial court denied his request on October 2, 2000. Hey-en asserted several claims for relief in his second post-conviction application, including those claims made in his first post-conviction application. On November 6, 2000, the trial court summarily dismissed Heyen’s second application for relief stating “all the claims made by Petitioner in this current Petition for Post-[C]onviction Relief were fully and finally determined in the Court’s Memorandum Opinion and Order, [filed August 3, 2000,] dismissing the Petitioner’s first Petition for Post-[C]onviction Relief.” Judgment was entered on November 7, 2000, and Heyen filed his Notice of Appeal on November 13, 2000.

[¶ 5] Heyen filed two additional motions on November 13, 2000. His first motion requested that specific transcripts, documents, and records be prepared with regard to his post-conviction relief proceedings, and his second motion again requested the assignment of post-conviction counsel. The trial court denied these motions on November 14, 2000, and Heyen filed his Notice of Appeal on November 20, 2000.

II

[¶ 6] Under § 29-32.1-09(1), N.D.C.C., a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Syvertson v. State, 2000 ND 185, ¶ 13, 620 N.W.2d 362. We review an appeal from a summary denial of post-conviction relief as we review an appeal from summary judgment. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329.

[¶ 7] The State’s motion to dismiss Heyen’s application asserted the affirmative defenses of res judicata and misuse of process under N.D.C.C. § 29-32.1-12(1) and (2). The trial court relied on the affirmative defense of res judicata in summarily dismissing Heyen’s second application for relief. We conclude Heyen’s claims for post-conviction relief are subject to both the affirmative defenses set forth in N.D.C.C. § 29-32.1-12(1) and (2).

[¶ 8] Heyen first argues he was denied certain constitutional rights. Specifically, he claims he was denied his Fourth Amendment right against unreasonable search and seizure when police officers searched his vehicle and his Fifth Amendment right against self-incrimination when police officers failed to read him Miranda warnings prior to questioning him.

[¶ 9] Under § 29-32.1-12(1), N.D.C.C., post-conviction applications may be denied if the same claims or claim has been fully and finally determined in a previous proceeding. Clark, 1999 ND 78, ¶ 8, 593 N.W.2d 329. Consequently, when claims have been raised previously on direct appeal or in a previous post-conviction application they cannot be raised again in a subsequent post-conviction application. Id.

[¶ 10] In his first application for post-conviction relief, Heyen contended he was denied his Fourth Amendment right against unreasonable search and seizure. The trial court disagreed and summarily dismissed his application. Judgment was entered August 10, 2000, but Heyen did not appeal the judgment. The issue regarding Heyen’s Fourth Amendment right was fully and finally determined in his initial post-conviction application, and therefore, he is barred from raising the issue in a subsequent application. The trial court appropriately concluded this issue was barred under the doctrine of res judicata.

[¶ 11] The second affirmative defense found in N.D.C.C. § 29-32.1-12, misuse of process, occurs when a defendant inexcusably fails to pursue an issue in a proceeding leading to judgment of conviction, inexcusably fails to pursue an issue on appeal after having raised the issue in the trial court, or fails to raise an issue in an initial post-conviction proceeding. Syvertson, 2000 ND 185, ¶ 18, 620 N.W.2d 362. Heyen did not contend any Fifth Amendment violations in his initial application for relief, and he provides no explanation as to why he failed to raise the issue. Because Heyen inexcusably failed to raise the issue in either a direct appeal or in his initial application for post-conviction relief, we conclude the issue is barred under misuse of process, N.D.C.C. § 29-32.1-12(2).

[¶ 12] We also note that any constitutional violations which allegedly occurred prior to Heyen’s guilty plea were effectively waived. Generally, an unconditional guilty plea waives all nonjurisdic-tional defects alleged to have occurred pri- or to the guilty plea. Bell v. State, 1998 ND 35, ¶ 14, 575 N.W.2d 211; State v. Olson, 544 N.W.2d 144, 146 (N.D.1996). “This includes alleged violations of constitutional rights.” State v. Slapnicka, 376 N.W.2d 33, 35 (N.D.1985). Heyen entered an unconditional guilty plea to the pending charges. By pleading guilty, Heyen consequently waived any alleged violations of his Fourth and Fifth Amendment rights.

Ill

[¶ 13] Heyen next contends he was denied effective assistance of counsel because, among other things, his attorney failed to make a motion to suppress evidence that was seized during a probationary search of his vehicle.

[¶ 14] Section 29-32.1-12, N.D.C.C., states an application for post-conviction relief may be denied under the doctrine of res judicata:

1. An application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding.

Accordingly, claims which have been previously raised on direct appeal or in previous post-conviction applications cannot be raised again in subsequent post-conviction applications. Clark, 1999 ND 78, ¶ 8, 593 N.W.2d 329.

[¶ 15] Heyen raised the issue of ineffective assistance of counsel in his first application for relief, and the trial court summarily dismissed the application. Heyen did not appeal the judgment. Rather, he filed a second application for relief where he once again raised the issue of ineffective assistance of counsel, and the trial court concluded the issue was barred under the doctrine of res judicata. Although a post-conviction relief proceeding is the preferred method of handling ineffective assistance of counsel claims, Heyen cannot now raise the issue in a second application for relief because the issue was fully and finally determined in his initial post-conviction proceedings. Syvertson, 2000 ND 185, ¶ 21, 620 N.W.2d 362. The trial court did not err in concluding this issue is barred under res judicata.

IV

[¶ 16] Heyen next contends the trial court erroneously denied him post-conviction counsel for his initial post-conviction application. Heyen’s first application for relief contended he had the right to such counsel, but the trial court concluded he did not raise a substantial issue of law or fact in his initial application and summarily denied his request for counsel. We are precluded, however, from reviewing this issue for the very reason we are precluded from reviewing Heyen’s ineffective assistance of counsel claim. The trial court addressed this issue in Heyen’s first application for relief, and Heyen did not appeal the judgment. The issue was fully and finally determined in his first application for relief, and we agree with the trial court that this issue is also barred under res judicata.

[¶ 17] Heyen also argues the trial court erred in denying his request for post-conviction counsel for his second application for relief and on appeal to this Court. The appointment of post-conviction counsel is not a matter of right, but rather a matter of trial court discretion. Crumley v. State, 2000 ND 110, ¶ 11, 611 N.W.2d 165. Absent an abuse of discretion, we will not reverse a trial court’s refusal to appoint counsel. Id. The trial court should read applications in the light most favorable to the applicant, and if a substantial issue of law or fact may exist, the court should appoint such counsel. Id. However, when an application is without merit, the trial court does not abuse its discretion in refusing to appoint counsel. Id. After reading Heyen’s application in the most favorable light, his challenge to his conviction fails to raise a substantial issue of law or fact. Heyen did not appeal his initial application for relief, and the issues in his second application were either fully and finally determined in the initial post-conviction proceedings or he inexcusably failed to pursue those issues in his previous proceedings. The trial court, therefore, did not abuse its discretion in denying Heyen’s request for counsel.

V

[¶ 18] Heyen finally contends the trial court failed to disclose his presentence investigation report to him prior to sentencing. A presentence investigation report, however, was not prepared prior to sentencing nor was one required to be prepared under § 12.1-32-02(11), N.D.C.C. Nevertheless, we conclude the issue is barred under misuse of process.

[¶ 19] Under N.D.C.C. § 29-32.1-12, we have explained it is a misuse of process to raise issues in subsequent post-conviction applications which could have been raised in the initial application. Syvertson, 2000 ND 185, ¶ 18, 620 N.W.2d 362. “Consequently, an applicant who inexcusably fails to raise an issue in his initial post-conviction application, choosing instead to raise it in a subsequent application commits a misuse of process under N.D.C.C. § 29-32.1-12.” Clark, 1999 ND 78, ¶ 18, 593 N.W.2d 329. Heyen did not raise this issue in either a direct appeal or in his initial application for post-conviction relief. Moreover, he does not provide an explanation as to why he failed to raise the issue. Because Heyen inexcusably failed to pursue this issue in previous proceedings, we hold the issue is barred under § 29-32.1-12(2), N.D.C.C., misuse of process. •

VI

[¶ 20] We conclude Heyen’s claims for post-conviction relief are subject to the affirmative defenses set forth in N.D.C.C. § 29-32.1-12(1) and (2). We affirm the trial court’s judgment dismissing Heyen’s second application for relief and its order denying post-conviction counsel.

[¶ 21] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ.

      . We only address the post-conviction counsel issue as this is the only issue raised in Hey-en’s brief with regard to his second notice of appeal.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2001 ND 123
    Carmen MYER and Beth Myer, parents of Patrick J. Myer, deceased, Plaintiffs and Appellants, v. Charles O. RYGG, Defendant and Appellee.
    No. 20000257.
    Supreme Court of North Dakota.
    July 10, 2001.

      James D. Hovey (appeared), Pearson Christensen, Grand Forks, for plaintiffs and appellants. Argued by Erin M. Diaz, third-year law student.
    Patrick R. Morley, Morley Law Firm, Ltd., Grand Forks, for defendant and ap-pellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Carmen and Beth- Myer, parents of Patrick J. Myer, deceased, appealed the district court judgment dismissing their wrongful death action following a jury trial. A jury allocated an equal share of fault to Patrick Myer, the driver of a motorcycle, and Charles 0. Rygg, driver of a pickup truck, for the collision of the two vehicles. The Myers claim the trial court abused its discretion by allowing the investigating police officer to testify that excessive speed of the motorcycle was a contributing factor to the accident because the police officer was not qualified as an expert witness, lacked sufficient foundation for the opinion and was never disclosed as a witness during the discovery process. We affirm.

I

[¶ 2] The motorcycle driven by Patrick Myer and the pick-up truck driven by Charles Rygg collided at an intersection in Grand Forks on June 4, 1996. Patrick Myer was fatally injured. Patrick’s parents filed a wrongful death claim against Rygg, asserting the collision occurred as a result of Rygg’s negligence.

[¶ 3] At the jury trial, four eyewitnesses to the collision testified. Both parties also had expert witnesses who were certified accident reconstructionists. Each of the accident reconstructionists offered their opinion about the cause of the accident including estimates of the speed the motorcycle was traveling.

[¶ 4] Following the presentation of the Myers’ case, Rygg’s attorney called as his first witness the police officer who investigated the scene of the accident immediately following the collision. Prior to the officer’s testimony, the Myers’ attorney raised an objection to the police officer testifying as an expert, saying he had been led to believe Rygg’s attorney may elicit a statement from the police officer that would be an expert opinion. Rygg’s attorney agreed he intended to ask the police officer whether excessive speed of the motorcycle was a contributing factor in the collision. The Myers’ attorney requested the opportunity to voir dire the police officer as an expert witness. The trial court granted the Myers’ attorney the opportunity to voir dire the witness. The objection and the voir dire were conducted without the jury present.

[¶ 5] The police officer testified he was a police officer for the City of Grand Forks, with basic and advanced training in accident investigation. At the time of the accident, he had been a police officer for eleven years, investigating 150 to 175 accidents a year. The police officer agreed he was not a certified accident reconstructionist. Included in the police officer’s investigation were observations of the physical evidence at the scene and interviews of eyewitnesses. The Myers’ attorney objected to the police officer’s testimony, noting he was not listed as an expert witness and asserting he was not competent to render an expert opinion concerning the speed of the motorcycle because he was not an accident reconstructionist and had not done the calculations to determine speed.

[¶ 6] The trial court allowed the police officer to testify excessive speed of the motorcycle was a contributing factor to the collision. Because the police officer had experience in investigating accidents and had conducted the investigations and made the observations, the trial court allowed the testimony limited to whether excessive speed was a contributing factor in the accident. The trial court agreed the police officer had not done scientific calculations to determine precise speed, and therefore questions asking his opinion based on scientific knowledge as to specific speed would be outside the scope of his expertise. However, because of the police officer’s experience and training, the trial court concluded he was qualified to render an opinion whether excessive speed of the motorcycle was a contributing factor in the accident.

[¶ 7] At the end of a four-day trial, the jury allocated fifty percent of the fault to each of the parties and the' claim was dismissed in favor of Rygg.

II

[¶ 8] Whether a witness is qualified as an expert is a decision largely within the sound discretion of the trial court. Kluck v. Kluck, 1997 ND 41, ¶ 7, 561 N.W.2d 263. The determination by the trial 'court that an expert witness is qualified will not be reversed on appeal unless that discretion is abused. Endresen v. Beretta USA Corp., 1997 ND 38, ¶ 10, 560 N.W.2d 225. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Baria v. Hinds, 1998 ND 104, ¶ 5, 578 N.W.2d 553. Appellate courts are reluctant to interfere with the broad discretion given to the trial courts to determine the qualifications and usefulness of expert witnesses. Endresen, 1997 ND 38, ¶ 14, 560 N.W.2d 225.

Ill

[¶ 9] The Myers argue the trial court abused its discretion by allowing the investigating police officer to testify excessive speed of the motorcycle was a contributing factor in the collision because the police officer was not properly qualified. Relying on Stein v. Ohlhauser, 211 N.W.2d 737, 743 (N.D.1973), the Myers claim the police officer should not “be allowed to testify as an expert until he has been shown to have some degree of expertise in the field in which he is to testify.” Despite the police officer’s experience and specialized knowledge, the Myers assert the trial court erred in allowing him to testify because he is not a certified accident recon-structionist.

[¶ 10] It is the district court’s responsibility to make certain expert testimony is reliable as well as relevant, Weisgram v. Marley Co., 169 F.3d 514, 517 (8th Cir.1999), aff'd, 528 U.S. 440, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000). See N.D.R.Ev. 702. Expert testimony is admissible whenever specialized knowledge will assist the trier of fact. Kluck v. Kluck, 1997 ND 41, ¶ 7, 561 N.W.2d 263. Rule 702 of the North Dakota Rules of Evidence “envisions generous allowance of the use of expert testimony if the witnesses are shown to have some degree of expertise in the field in which they are to testify.” Anderson v. A.P.I. Company of Minnesota, 1997 ND 6, ¶ 9, 559 N.W.2d 204.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. N.D.R.Ev. 702.

[¶ 11] In Stein, 211 N.W.2d at 739, the trial court granted a new trial concluding it had erred in permitting the expert witness to testify to the precise speed of the car. The trial court granted the new trial because, in its opinion, using the physical damage to the vehicles as a factor in arriving at the opinion the car was traveling just over fifty-one miles per hour immediately prior to braking, was not sound or reasonably scientific. Id. The expert based his speed estimate on tests conducted by dropping cars from cranes unto concrete. Id. He admitted the tests did not prove how cars behave in actual accidents. Id. at 740.

[¶ 12] Stating there was “nothing in the record to show that there is any scientific way to determine speed from crash damage other than gross estimation, based to some extent on experience and judgment” this Court affirmed the trial court’s granting a new trial. Stein, 211 N.W.2d at 740. Although aware of the tendency to allow more expert testimony, as indicated by the then Proposed Rules of Evidence, this Court recognized these are matters for the trial judge to determine and that no trial judge should yield to a litigant’s insistence he be allowed to “use an expert on witchcraft or water-well dowsing or astrology.” Id. at 742-43. However, this Court clarified:

And we do not mean to cast any doubt whatever on the admissibility of testimony of eyewitnesses as to speed or to suggest that our ruling should have any bearing on the entirely different question of the admissibility of estimates of. speed by persons with entirely different methods of acquiring expertise in the field, such as highway patrolmen or policemen. Id. at 742.

[¶ 13] In Stein we affirmed the trial court’s use of its discretion to grant a new trial conceding it had erred in admitting this particular expert who used questionable methods to determine precise speed. In contrast, we are here asked to hold the trial court abused its discretion in allowing an investigating police officer to make an estimation that excessive speed was a contributing factor in the collision.

[¶ 14] An expert need not be a specialist in a highly particularized field if his knowledge, training, education, and experience will assist the trier of fact. Kluck, 1997 ND 41, ¶ 10, 561 N.W.2d 263. The rule does not require an expert to have a formal title or to be licensed in any particular field, but recognizes it is the witness’s actual qualifications that count by providing that an expert can be qualified by knowledge, skill, experience, training, or education. Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990).

[¶ 15] We have previously held a trial court does not abuse its discretion by admitting expert testimony whenever specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification. Botnen v. Lukens, 1998 ND 224, ¶ 13, 587 N.W.2d 141 (holding trial court did not abuse its discretion by permitting a psychologist to testify with regard to generalities despite the fact the expert had not interviewed or evaluated the child or any party to the litigation); Anderson, 1997 ND 6, ¶ 18, 559 N.W.2d 204 (deciding specialist in environmental engineering could testify about his perceptions of medical articles he had read to research asbestos-caused illnesses); Muck, 1997 ND 41, ¶ 10, 561 N.W.2d 263 (agreeing an educated and experienced psychologist could be qualified as an expert to testify about child custody factors); Endresen, 1997 ND 38, ¶ 14, 560 N.W.2d 225 (holding the trial court did not abuse its discretion in admitting expert’s testimony, treating the expert’s lack of direct experience with specific feeding and gas venting system design of semi-automatic weapons as bearing on the weight of his testimony); Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835, 837 (N.D.1995) (holding the trial court did not abuse its discretion by admitting expert who did not have a specialized scientific education in fireworks, but demonstrated extensive knowledge, skill, and experience from his 35 years in the fireworks industry); Wanner v. Getter Trucking, Inc. 466 N.W.2d 833, 837 (N.D.1991) (holding the trial court did not abuse its discretion by admitting testimony of expert who, although not familiar with the rigging procedure for a traveling block assembly of an oil rig prior to the case, after studying the information was able to form the opinion that the trucking company did not use the safest available method); Estate of Aune, 478 N.W.2d 561, 563-64 (N.D.1991) (holding trial court did not abuse its discretion in allowing decedent’s physician, who was not a psychiatrist, to testify about insane delusions); Oberlander, 460 N.W.2d 400, 402 (N.D.1990) (holding trial court’s per se disqualification of an expert witness based on the lack of a North Dakota psychologist license was an abuse of discretion because “to qualify as an expert, a witness need not be licensed in a given field, let alone licensed in the court’s jurisdiction, so long as the witness possesses the requisite knowledge, skill, experience, training, or education in that field”); Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D.1985) (holding the trial court did not abuse its discretion by allowing fire chief to testify in his opinion the fire was caused by a cigarette).

[¶ 16] The question at the center of this appeal was this question Rygg’s attorney asked the police officer who investigated the accident:

Q: Based upon your investigation and your experience was excessive speed of the motorcycle a contributing factor in this accident?
A: Yes.

[¶ 17] The police officer had worked for the City of Grand Forks since 1985. The police officer had completed basic training, and was also trained in accident investigation. Investigating between 150 and 175 accidents a year, the officer was in charge of investigating this accident and had personally participated in measuring the skid marks, locating the gouge marks, examining the vehicles and other physical evidence at the scene of the accident, and interviewing the eyewitnesses. Following voir dire of the police officer out of the presence of the jury, the Myers’ attorney objected to the police officer being admitted as an expert witness, claiming he lacked foundation and that his opinion was nothing more than what a lay person would $ay. The trial court overruled the objection concluding:

Well, I think, it’s more than what a lay person would testify or could testify to. He’s testified that he has experience in investigating accidents and that he has been to school and he made an investigation at the scene and he made certain observations, not all of which are scientific calculations; but I don’t think that is the issue here since it is not precise speed that is being requested of him as far as his opinion but only whether or not excessive speed was a factor in the causation of the collision and as to that sufficient foundation has been made and he will be permitted to respond to that particular inquiry but not as to any scientific speed since I don’t believe that would be within his scope of expertise at this point.

[¶ 18] The record supports the trial court’s determination the police officer had technical, or other specialized knowledge that would assist the trier of fact to understand the evidence or to determine a fact in issue and the police officer was qualified as an expert by knowledge, skill, experience, training, or education as required by N.D.R.Ev. 702. The trial court limited the police officer’s testimony within the scope of his expertise. In light of the generous allowance envisioned by N.D.R.Ev. 702, we hold the trial court did not abuse its discretion by allowing the police officer to testify excessive speed of the motorcycle was a contributing factor in the collision.

IV

[¶ 19] The Myers also argue, even if the police officer is qualified as an expert, there is insufficient foundation for the police officer’s testimony. The Myers claim the police officer based his opinion solely on testimony of eyewitnesses. Comparing this case to Faries v. Atlas Truck Body Mfg. Co., 797 F.2d 619 (8th Cir.1986), a case holding the trial court abused its discretion by admitting the accident report and testimony of a trooper that included an opinion about the cause of the accident based on an interview of an interested eyewitness, the Myers assert the police officer’s testimony similarly lacked foundation. However, the Myers misstate the record concerning the basis of the police officer’s testimony. During voir dire out of the presence of the jury, the police officer answered yes to a question asking if his opinion would be based solely on interviews with certain eyewitnesses; however, in answer to a follow-up question asked by the Myers’ attorney, the police officer clarified the basis for his opinion.

Q. So it would be a fair statement that any opinion you render is based solely on the statements made to you by certain people who may or may not have recalled or seen things accurately, right?
A. It would be based on the information gathered at the scene not only from the witnesses but what is on the street.

In answers to questions asked by Rygg’s attorney, the police officer further explained his opinion was based on the physical' evidence he observed at the scene such as the skid marks and gouges on the road before the point of impact with the truck. During testimony in the presence of the jury, the police officer testified his personal observations included skid marks, gouges in the pavement, the motorcycle, the pick-up truck, and the location of motorcycle parts and Myer’s watch on the road. This is in contrast to the expert opinion in Faries, 797 F.2d 619, 623 (8th Cir.1986) which consisted of the opinion concerning the cause of the accident as written in the accident report which contained very little physical data or evidence to support the statement describing the cause of the accident. Rather the investigator’s opinion was based largely on statements of an interested witness who was the driver of the milk truck involved in the accident. Id.

[¶ 20] Rule 703 of the North Dakota Rules of Evidence discusses the bases of opinion testimony by experts:

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

As we have concluded in previous appeals attacking the basis for an expert’s opinion, ordinarily weakness in an expert’s opinion affects credibility, not admissibility. Horstmeyer, 534 N.W.2d 835, 837 (N.D.1995); Wanner, 466 N.W.2d 833, 837 (N.D.1991); Victory Park Apartments, Inc., 367 N.W.2d 155, 163 (N.D.1985). The trial court decides the qualifications of the witness to express an opinion on a given topic, but it is the trier of fact whose job it is to decide the expert witness’s credibility and the weight to be given to the testimony. Anderson, 1997 ND 6, ¶ 9, 559 N.W.2d 204. The trial court did not abuse its discretion by allowing the investigating police officer to testify excessive speed was a contributing factor in the collision.

V

[¶ 21] Although at trial the Myers noted the police officer was not listed as an expert witness, the basis for their request he be excluded as an expert witness was his lack of qualification to give an opinion on speed. On appeal, the Myers maintain the trial court abused its discretion by failing to exclude the police officer as an expert witness as a sanction for violation of N.D.R.Civ.P. 26(e). The police officer was never disclosed as a potential expert witness during the discovery process; therefore, the Myers contend the police officer should not have been allowed to testify as an expert. Rule 26(e) of the North Dakota Rules of Civil Procedure requires supplementation of discovery responses concerning expert witnesses:

(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to
(B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person’s testimony.

The purpose of Rule 26(e) is to eliminate surprise and allow the opposing party a fair opportunity to meet the evidence at trial. Kjonaas v. Kjonaas, 1999 ND 50, ¶ 16, 590 N.W.2d 440. We explained the application of the rule in Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 339 (N.D.1993):

Rule 26[ (e) ] does not establish a fixed time prior to trial within which interrogatories must be supplemented so as to be seasonable. The determination as to seasonableness is necessarily a case by case determination, within the sound discretion of the trial judge. To be seasonable, however, the supplemental response must be made a reasonable time before trial taking into account the purpose of the rule which is the elimination of surprise at trial.

[¶ 22] In Kjonaas, 1999 ND 50, ¶ 10, 590 N.W.2d 440, we held the trial court abused its discretion by failing to grant a continuance the day before the trial because of discovery abuses. In the circumstances of that case we agreed the failure to grant the continuance denied the other party a fair opportunity to prepare for trial. Id. The undisputed facts in Kjonaas demonstrated flagrant discovery abuses. Id. at ¶ 14. Curtis Kjonaas lied in interrogatory responses, saying he had not sold any real property when he had sold the farmland. Id. He concealed this transaction, failing to provide a financial statement requested in discovery. Id. Furthermore, Curtis Kjonaas failed to disclose the expert appraiser’s opinion on property values, which varied greatly from the values listed on loan documentation and other sources, until the day before trial. Id. Curtis Kjonaas offered no explanation why the land sale information and expert appraisal were not provided to Josephine Kjonaas until the afternoon before trial. Id. at ¶ 16. The supplementation did not occur a reasonable period before trial; the denial of a continuance denied Josephine Kjonaas a fair trial and was an abuse of discretion. Id.

[¶ 23] In Glatt v. Bank of Kirkwood Plaza, 383 N.W.2d 473, 482 (N.D.1986), we also found an abuse of discretion when trial court denied continuance for party to conduct additional discovery to respond to a new appraisal of property disclosed the third day of trial that substantially increased the value of the property. Additionally, in Glatt, the verdict was indicative of a high reliance by the jury on the appraisal. Id. at 483. The discovery violation in Glatt surprised the opposing party, depriving it of the opportunity to meet the evidence at trial. Id. at 482. Also, the verdict indicated prejudice resulted from the discovery violation. Id. at 483.

[¶ 24] These cases dealt with granting a continuance, a sanction not requested by the Myers in this case. The trial court granted the Myers’ request to voir dire the police officer without the jury present, pri- or to the police officer’s testimony. Now, after the verdict, the Myers are requesting a new trial on the basis of the trial court’s failure to exclude the expert witness as a sanction to the discovery violation.

[¶ 25] Although the Rules of Civil Procedure do not specifically provide sanctions for failure to supplement discovery, the court has inherent authority to impose sanctions for such violations. Kjonaas, 1999 ND 50, ¶ 18 n. 1, 590 N.W.2d 440. See, e.g., Wolf v. Estate of Seright, 1997 ND 240, ¶ 17, 573 N.W.2d 161; Dewitz, 508 N.W.2d at 339. The court has wide discretion to determine an appropriate sanction. Id.

[¶ 26] In Dewitz, 508 N.W.2d at 339, we upheld the trial court’s exclusion of an expert witness as a discovery violation sanction. In that case the expert witness was disclosed 39 days before trial but the disclosure only provided that the new expert’s opinions had not been fully developed. Id. at 338. The only other information given was a list of expected opinions that were identical to the list provided for their other two experts. Id. We held the trial court did not abuse its discretion by excluding this expert because the disclosure was not “seasonable” and the disclosure was not complete. Id. at 340. Additionally, there was no clear showing of material prejudice by the trial court’s exclusion of the third expert witness. Id.

[¶ 27] The elements of surprise and lack of opportunity to meet the evidence in trial, as seen in Kjonaas, Dewitz and Glatt, were not present in this case. The police officer was listed as a fact witness. Both parties had deposed the police officer and had access to his investigative report that included his conclusion excessive speed of the motorcycle was a contributing factor to the accident. Although claiming no disclosure of the police officer as an expert, prior to the police officer taking the stand the attorney for the Myers requested the opportunity to voir dire the witness. The Myers had the opportunity to question the police officer and objected to the trial court allowing him to answer the question whether excessive speed of the motorcycle was a contributing factor in the collision. The substance of the police officer’s testimony was known to both parties; his appearance as a fact witness was known to both parties. It is apparent from reading the transcript the defense intended to ask the question as to speed and the plaintiffs were aware the defense intended to ask the question. But, in light of the one question Rygg posed to the officer, Rygg violated N.D.R.Civ.P. 26(e) by not seasonably supplementing the list of expert witnesses.

[¶ 28] Rygg could and should have avoided this part of the dispute by listing the officer as an expert witness. His failure to do so appears to be an attempt to “have it both ways” by eliciting an expert opinion without labeling the officer as an expert and without establishing the officer’s qualifications as an expert. However, sanctions for this abuse are granted at the discretion of the trial court, in consideration of the circumstances of the individual case. Given the circumstances of this ease, we hold the trial court did not abuse its discretion by allowing the police officer to testify excessive speed of the motorcycle was a contributing factor in the collision.

[¶ 29] We affirm the judgment of the district court dismissing the wrongful death action.

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


author: SANDSTROM, Justice.

text:
    2001 ND 121
    Roland C. FLATTUM-RIEMERS, Petitioner, Appellant and Cross-Appellee, v. Jenese A. PETERS-RIEMERS, Respondent, Appellee and Cross-Appellant.
    No. 20000349.
    Supreme Court of North Dakota.
    July 10, 2001.

      Roland C. Flattum-Riemers, pro se, Buxton; submitted on brief.
    Michael A. Birrenkott and Michael L. Gjesdahl, Gjesdahl & Deitz, PLLP, Fargo, for respondent, appellee, and cross-appellant; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Roland C. Flattum-Riemers appealed from a district court order affirming a judicial referee’s dismissal of his application for a domestic violence protection order under N.D.C.C. ch. 14-07.1. Je-nese A. Peters-Riemers cross-appealed from the order, but subsequently withdrew the cross-appeal. We conclude the referee did not err in considering documents filed less than 24 hours before the hearing or in denying Flattum-Riemers’ motion for a continuance. We further conclude the referee’s findings, affirmed by the trial court, are not clearly erroneous and support denial of the application for the protection order. We affirm.

I

[¶ 2] In March 2000, Peters-Riemers applied for and received a domestic violence protection order in Traill County District Court restraining Flattum-Riem-ers from contact with her. See Peters-Riemers v. Riemers, 2001 ND 62, ¶¶ 2-3, 624 N.W.2d 83. Also in March 2000, Flattum-Riemers applied to Traill County District Court for a temporary domestic violence protection order against Peters-Riemers, but the application was denied.

[¶ 3] On August 31, 2000, Flattum-Riemers filed in Grand Forks County District Court a “petition for protective relief’ against Peters-Riemers, which is the subject of this appeal. Flattum-Riemers alleged that in March 1997, Peters-Riemers “charged after me several times with kitchen knives and attempted to kill” him while they lived together in Grand Forks. He stated police were summoned, Peters-Riemers was taken to a hospital, and although both were charged with offenses, those charges were dropped “[a]t our mutual insistence.” Flattum-Riemers also alleged Peters-Riemers fractured several of his ribs during the summer of 1999, and in December 1999, she threatened him with a loaded revolver in his Buxton home. Police were again summoned, but no arrests were made. Flattum-Riemers also related a-verbal and physical altercation on March 4, 2000, when Peters-Riemers attempted to leave the residence with the couple’s son. Flattum-Riemers was arrested and charged with felony assault after that incident. According to Flattum-Riemers, the final incidents occurred during the summer of 2000, when she contacted him, berated him, and threatened to have him arrested for violating the domestic violence protection order.

[¶ 4] Following a hearing before Judicial Referee David Vigeland, during which the parties were allowed to testify, the referee concluded Flattum-Riemers had failed to make a showing of “physical force or harm or the fear of imminent physical harm or injury,” and dismissed the petition. Flattum-Riemers timely requested a review by the district court, which affirmed the referee’s findings and order.

[¶ 5] The judicial referee had jurisdiction under N.D.C.C. § 27-05-30(2) and N.D. Sup.Ct. Admin. R. 13, § 5(a). The trial court had jurisdiction under N.D. Const, art. VI, § 8, N.D.C.C. § 27-05-06, and N.D. Sup.Ct. Admin. R. 13, § 11. Flattum-Riemers’ appeal is timely under N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02(3).

II

[¶ 6] Peters-Riemers argues that although Flattum-Riemers’ appeal from the trial court’s decision is timely under N.D.RApp.P. 4(a), because two of the issues were not raised before the trial court, his appeal to this Court regarding these issues was untimely because his appeal was not filed within 60 days of the judicial referee’s decision. She also contends the two issues cannot be reviewed because they were not specifically identified in Flattum-Riemers’ request for review of the referee’s decision filed with the trial court.

A

[¶ 7] Under N.D. Sup.Ct. Admin. R. 13, § 10(a), the “findings and order of the judicial referee are deemed to have the effect of an order of the district court until superseded by a written order of a district court judge." (Emphasis added.) A district court may review a referee’s findings and order on its own initiative, and must do so if a party files a written request for review within three days after receiving notice of the referee’s decision. See N.D. Sup.Ct. Admin. R. 13, § 11(a). Here, Flat-tum-Riemers timely requested review of the referee’s decision. Consequently, the referee’s decision did not, in itself, become an appealable order because it was effectively superseded by the trial court’s written order affirming the referee’s findings and order. Flattum-Riemers was not required to appeal within 60 days from both the referee’s decision and the trial court’s decision.

B

[¶ 8] Peters-Riemers’ argument that Flattum-Riemers effectively waived two issues by not specifically including them in his request for review is also unpersuasive. Under N.D. Sup.Ct. Admin. R. 13, § 11(a), a “request for review must state the reasons for the review.” We have not addressed the specificity required for a request for review of a judicial referee’s findings and order, and the meeting minutes of the committees that formulated the rule shed no light on the question. We have held issues not raised in a motion for new trial may not be raised in this Court, see, e.g., Andrews v. O’Hearn, 387 N.W.2d 716, 728-29 (N.D.1986), but N.D.R.Civ.P. 59(c) allows 60 days after notice of entry of judgment, or six months in the case of newly discovered evidence, to bring the motion for new trial. We have also required specificity for specifications of error in administrative appeals under N.D.C.C. § 28-32-15(4), see, e.g., Vetter v. North Dakota Workers Comp. Bureau, 554 N.W.2d 451, 453-54 (N.D.1996), but N.D.C.C. § 28-32-15(1) allows 30 days to appeal from an administrative decision.

[¶ 9] A party requesting review of a judicial referee’s findings and order is given only three days after receiving notice of the decision to make the request under N.D. Sup.Ct. Admin. R. 13, § 11(a). For this reason, we are reluctant to impose the specificity requirements to avoid waiver imposed in other contexts. Three days is insufficient time in many cases to obtain and analyze a record for potential errors, and to cogently and comprehensively identify them in a request for review by the trial court. Flattum-Riemers’ three-page request for review in this case includes an allegation that the referee’s order “lacks clear conclusions of laws and facts which would be required for a ‘full hearing’ on this petition.” We conclude the request for review is sufficient to preserve for review the issues Flattum-Riemers has raised on appeal.

Ill

[¶ 10] When a trial court reviews a judicial referee’s decision on the record, the court examines the referee’s findings of fact under the clearly erroneous standard of N.D.R.Civ.P. 52(a). Benson v. Benson, 495 N.W.2d 72, 77 (N.D.1993). If the trial court confirms or accepts the referee’s findings of fact, we likewise review the referee’s findings under the clearly erroneous standard. State ex rel. Melting v. Ness, 1999 ND 73, ¶ 6, 592 N.W.2d 565. Findings of fact are clearly erroneous if they are induced by an erroneous view of the law, there is no evidence supporting them, or, although there is some evidence supporting them, on the entire record we are left with a definite and firm conviction a mistake has been made. Nord v. Herrman, 2001 ND 11, ¶ 7, 621 N.W.2d 332. A referee’s conclusions of law are fully reviewable. Jorgenson v. Ratajczak, 1999 ND 65, ¶ 5, 592 N.W.2d 527.

A

[¶ 11] Flattum-Riemers argues the referee violated his due process rights and erred by allowing the submission of Peters-Riemers’ affidavit and other documents less than 24 hours before the hearing. Although the affidavit and documents were filed with the court and faxed to Flattum-Riemers late in the afternoon the day before the morning hearing, the referee considered the documents over Flat-tum-Riemers’ objection.

[¶ 12] Under N.D.R.Civ.P. 5(d)(2), “[a]ll affidavits, notices and other papers designed to be used upon the hearing of a motion or order to show cause shall be filed at least 24 hours before the hearing unless otherwise directed by the court.” (Emphasis added.) Consequently, the rule by its plain language grants the trial court discretion to direct otherwise and consider untimely filed documents. See Whitmire v. Whitmire, 1997 ND 214, ¶ 18, 570 N.W.2d 231. When a statute or rule of procedure allows a court discretion to admit and consider untimely filed documents, the opposing party must show prejudice resulted from the untimely response. See Bell v. State, 1998 ND 35, ¶ 30, 575 N.W.2d 211; Latendresse v. Latendresse, 294 N.W.2d 742, 747-48 (N.D.1980).

[¶ 13] The referee found Flattum-Riemers was not prejudiced by the untimely filing, and Flattum-Riemers has shown no prejudice on appeal. We conclude Flattum-Riemers was not denied due process and the referee did not err in considering the documents filed before the hearing.

B

[¶ 14] Flattum-Riemers argues the referee violated his due process rights and erred by denying his request for a week-long continuance to subpoena witnesses who would verify his testimony about Peters-Riemers’ actions.

[¶ 15] The granting of a continuance is largely discretionary, and denial of a continuance because of the absence of a material witness is proper when the moving party does not show what the witness would testify to if present or that the facts desired cannot be proven by other available witnesses, and when there is no showing of diligence to secure the testimony of the witness by deposition or personal appearance at trial. See Burdick v. Mann, 60 N.D. 710, 721, 236 N.W. 340, 345 (1931). See also State v. Erban, 429 N.W.2d 408, 413 (N.D.1988). Furthermore, Flattum-Riemers must show prejudice resulted from the referee’s denial of the motion for continuance. See Barth v. Schmidt, 472 N.W.2d 473, 475 (N.D.1991). In a criminal case, State v. Brandner, 551 N.W.2d 284, 286 (N.D.1996), this Court rejected the defendants’ contention they were entitled to have an accused’s testimony corroborated by an unbiased witness:

A trial court has broad discretion on evidentiary matters, and we will not overturn its admission or exclusion of evidence on appeal unless that discretion has been abused. State v. Trotter, 524 N.W.2d 601, 602 (N.D.1994). Furthermore, under NDREv 103(a), error may not be predicated on a ruling that admits or excludes evidence unless a substantial right of the party is affected. See also NDRCrimP 52(a). By definition, cumulative testimony “would not make a significant contribution to proof of a fact.” State v. Schindele, 540 N.W.2d 139, 142 (N.D.1995). While cumulative testimony may sometimes strengthen the weight and credibility of a defendant’s testimony, see State v. Wilson, 466 N.W.2d 101, 103 (N.D.1991), a trial court does not necessarily abuse its discretion by excluding evidence of this nature. See Trotter, 524 N.W.2d at 602-603. Here, any prejudicial effect from the exclusion of the cumulative evidence was minimal because this was a bench trial rather than a jury trial. Also, although the Brandners suggest the witness’s testimony may not have been entirely cumulative, they did not make an offer of proof under NDREv 103(a)(2) on how that testimony would have differed from Clarence’s testimony.

See also State v. Johnson, 379 N.W.2d 291, 293 (N.D.1986).

[¶ 16] Flattum-Riemers does not claim he was unfairly surprised by the evidence. See State v. Nodland, 493 N.W.2d 697, 700 (N.D.1992); State v. Kunkel, 452 N.W.2d 337, 339 (N.D.1990). As in Brandner, this case was a bench trial rather than a jury trial. In his offer of proof, Flattum-Riem-ers said: “They contend that my charges are false. A lot of the charges that we are dealing with are easily verified by testimony by third-party police officers, from Chet Aubol, from Tammy Espinosa, from her son.” Not only has Flattum-Riemers failed to explain why he, as the petitioner in this action, did not attempt in advance to obtain these witnesses to carry his burden of proof, but he failed in his offer of proof to show how the additional testimony would have differed from his own. Consequently, Flattum-Riemers has failed to show prejudice resulted from the denial of his motion.

[¶ 17] We conclude the referee did not abuse his discretion in denying the motion for continuance.

C

[¶ 18] Flattum-Riemers argues the referee erred by not making specific findings on domestic violence, had an erroneous view of the law, erred in finding he had no real fear of Peters-Riemers, and erred in failing to rule on his motion to hold Peters-Riemers in contempt for lying in court.

[¶ 19] As allowed by N.D.R.Civ.P. 52(a), the referee stated orally in open court his findings and conclusions following the close of the evidence. We will not remand for clarification of missing or conclusory findings if we can discern the rationale for the decision through inference or deduction. Emter v. Emter, 1999 ND 102, ¶ 8, 595 N.W.2d 16. The referee explained:

Mr. Riemers, as you know, you have the burden here to establish that there is a showing of actual or imminent domestic violence and that is pursuant to 14-[07.1-02] of the North Dakota Century Code and the definitions, of course, are in Section 01 essentially including physical force or harm or the fear of imminent physical harm or injury.
And the Court has considered the matter here today and I am going to conclude that you failed to meet that burden of proof and I am going to dismiss your petition here. It seems to me that many of these events have already been litigated, at least to some extent. And despite your concerns, you continued to live with Ms. Riemers and I just don’t see that they’re especially relevant to today.
Other courts have already considered these matters and in any case as to if they are relevant, I am not sure that they show that you have any actual or imminent fear of her.
The recent events are certainly disputed. I don’t consider them to be so serious ... to present a credible threat to you of harm.
Essentially, I think ... we need ... more of a showing of fear of imminent physical harm and bodily injury tha[n] we have here today. And the testimony is disputed and the testimony of the respondent is at least as credible, if not more credible, than that of the petitioner.

[¶ 20] We can discern the rationale for the referee’s decision. The referee did not believe Flattum-Riemers’ version of the incidents, and to the extent he believed the incidents occurred, he found they did not meet the requirements for a domestic violence protection order. Some of the altercations were previously adjudicated and resulted in a domestic violence protection order being issued against Flat-tum-Riemers. We give great deference to a factfinder’s opportunity to observe the witnesses and determine credibility. Luna v. Luna, 1999 ND 79, ¶ 27, 592 N.W.2d 557. We conclude the referee’s findings of fact are not clearly erroneous, and the referee did not err in dismissing Flattum-Riemers’ petition for a domestic violence protection order.

IV

[¶ 21] Peters-Riemers asks this Court to award her attorney fees for this appeal under N.D.R.App.P. 38.

[¶ 22] An appeal is frivolous under Rule 38 if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith. Strom-Sell v. Council for Concerned Citizens, 2000 ND 19, ¶ 2, 606 N.W.2d 108. Flattum-Riemers’ appeal is neither flagrantly groundless nor devoid of merit. Although Flattum-Riemers’ actions may be questionable, we do not believe, at this time, they show persistence in the course of litigation evidencing bad faith. We therefore deny the request for attorney fees on appeal.

V

[¶ 23] The order is affirmed.

[¶ 24] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.


author: PER CURIAM.

text:
    2001 SD 80
    STATE of South Dakota, Plaintiff and Appellee, v. John Wesley JOHNSON, Defendant and Appellant.
    No. 21584.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2001.
    June 20, 2001.
    Mark Barnett, Attorney General, Patricia Archer,. Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Daniel L. Fox, Yankton, SD, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] John Wesley Johnson appeals his conviction for third degree rape. Based on juror misconduct, we reverse and remand for a new trial.

FACTS

[¶ 2.] At the time of these events, Johnson was forty-three years of age and the victim was fifteen. On January 31, 1999, a guest at a Super Bowl party the two were attending allegedly caught Johnson in a bedroom having sex with the victim. The victim subsequently reported the incident to the authorities and an investigation followed. As a result, Johnson was charged with one count of third degree rape. The victim testified at Johnson’s jury trial that she had sexual intercourse with Johnson at the party. Johnson’s defense was to deny the sex act and to question the credibility of the witnesses who testified against him. At the conclusion of the trial, the jury returned a verdict finding Johnson guilty as charged.

[¶ 3.] On the day of the trial, voir dire began at approximately 9:15 a.m. After voir dire, counsel began exercising their peremptory challenges. At that time, the trial court informed the prospective jurors that peremptory challenges would take awhile and that they could stand up and move around if they wished. Counsels’ exercise of peremptory challenges continued until a jury of twelve was seated. The jury was then placed under oath and a recess was taken until approximately 11:15 a.m. Before the recess, the trial court carefully admonished the jurors not to talk about the case or to express any opinion on its merits.

[¶ 4.] The trial resumed with the trial court’s reading of preliminary instructions and continued with testimony presented by the State. Another recess was taken at approximately 12:05 p.m. Again, the trial court admonished the jurors not to express any opinion about the merits of the case during the recess. The trial reconvened at 1:00 p.m. outside the presence of the jury. At that time, defense counsel raised the following issue with the trial court:

MR. WILLIAM KLIMISCH: Yes, Your Honor. As we’ve been visiting that it was brought to the attention of the State’s Attorney that while we were apparently selecting the ten people we were using our peremptory challenges on, that there were comments made by two of the jurors, one was, we believe Mike Horlyk and the other was Mr. Rempp, and we believe that one of the comments was, “I got a rope” and the other juror said something, “I have a tree”. And we don’t know if that was made in jest or if it was serious or they were keeping an open mind. And it would be our suggestion to the court that we ask Mr. Rempp to come in and that we ask him about it.

[¶ 5.] After this request, the trial court had juror Rempp brought into chambers for questioning about his alleged comments. The following exchange then took place:

THE COURT: Mr. Rempp, there have been some allegations made to the attorneys that they asked me to inquire into about some, what they felt were, inappropriate comments that were made during one of the recesses this morning allegedly involving you and talking about some comments and whether they were jokes or whether they were intended as—
MR. REMPP: No. They were just— nothing was intended. It was just j okes. That’s all it was.
THE COURT: Okay. So the comments were made that—
MR. ROBERT KLIMISCH [co-defense counsel]: Yah.
MR. REMPP: Yah. Not trying to influence anybody, just, you know, just — I just took it as, you know, jokes or conversation or, whatever.
THE COURT: And the other juror that was involved was who that made the comments to you?
MR. REMPP: Oh, I’m trying to think of his name.
MR. CHAVIS [the prosecutor]: Mike Horlyk, they told me.
MR. REMPP: Mike Horlyk, yah. The name escaped me. I just know him. He stops out to the truck stop a lot so that’s how I know Mike. We just know him personally. Don’t happen to really done any dealings with him. We just visit. We’ve golfed a little bit together. Or not together, but met him on the golf course a little bit, so ...
THE COURT: So in [your] view do you still have a clear and open mind and can make a decision based on the evidence?
MR. REMPP: Sure. I’ll certainly do my civil duty here.
THE COURT: Mr. Chavis, any questions you want to ask here?
MR. CHAVIS: No. Mr. Rempp, it’s just the defendant is presumed innocent and entitled to a fair trial and that’s why Bill went into it with you. If there’s any biases or prejudices we need to visit about that. But you’re indicating it was just small talk, chitchat back and forth?
MR. REMPP: Yup.
THE COURT: You don’t harbor any biases against the Black? (footnote added).
MR. REMPP: No. In fact, when I was in the service my bunk buddy was a black man. So — from Indianapolis. So, real good friend.
MR. CHAVIS: That’s all I have.
THE COURT: Do you have any questions?
MR. WILLIAM KLIMISCH: I do not. We’re comfortable.
THE COURT: Okay. Thank you.

[¶ 6.] After this exchange, the trial court granted defense counsel and Johnson an opportunity to visit in private. On their return, counsel advised the trial court that Johnson wanted him to move for a mistrial because of the juror’s comments. Denying the motion, the trial court made the following remarks:

THE COURT: Okay. You know, while certainly the comments made by Mr. Rempp were unfortunate, upon questioning and afforded a full opportunity for all counsel to question him, he represents that it was merely a joke, if albeit an inappropriate joke, and he’s in no way biased or prejudiced and that those comments that were made would not in any way carry over to his decisions in this case, and I have no evidence in front of me to the contrary at this point, so the request for a mistrial will be denied.

After its ruling, the trial court afforded Johnson the opportunity to exclude juror Rempp and to proceed with an eleven person jury trial. Johnson and defense counsel discussed the possibility, but ultimately advised the trial court that Johnson would rely on his mistrial motion. The trial court then made the following additional remarks:

THE COURT: My ruling remains the same. I felt that the showing made here with the full opportunity for everybody to examine is not enough to show that, in fact, he does have a state of mind evidencing bias and prejudice that would render him unfair in this case. And in the absence of more of a showing than has been made to me, i.e., more of a showing that there’s some actual bias there as opposed to, as I indicated, an inappropriate joke, I’m not going to grant the motion for mistrial.

Counsel and the trial court then visited about the possibility of a jury instruction on racial bias, but left the matter unresolved at that time.

[¶ 7.] After these events, the trial proceeded with the entry of a stipulation regarding the ages of Johnson and the victim. The State then rested and the defense went forward with Johnson testifying on his own behalf. After the defense rested, the trial court and counsel retired to the court’s chambers where defense counsel moved for a judgment of acquittal and renewed the motion for a mistrial on the basis of juror prejudice. The trial court denied both motions and proceeded to settle jury instructions including an instruction that racial prejudice was something the jury should not take into consideration in deciding the case. After the instructions were given and closing arguments, the jury deliberated and then returned its guilty verdict. Johnson appeals.

ISSUE

[¶ 8.] Did the trial court abuse its discretion in denying Johnson a mistrial due to juror prejudice?

[¶ 9.] Johnson argues the trial court abused its discretion in denying him a mistrial due to the bias and prejudice of juror Rempp. “The denial of a motion for mistrial will not be overturned unless there is an abuse of discretion. Motions for mistrial are within the discretion of the trial judge and will not be granted unless there is a showing of actual prejudice to the defendant.” State v. Alidani, 2000 SD 52, ¶ 9, 609 N.W.2d 152, 155.

[¶ 10.] With regard to issues of juror misconduct, this Court has held that, “[e]ven if juror misconduct occurs and warrants an inquiry, not every irregular conduct of a jury is prejudicial and warrants a new trial. When juror misconduct occurs, a rebuttable presumption of prejudice arises.” State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citations omitted).

[¶ 11.] The Ohio Court of Appeals applied similar principles in considering a jury misconduct issue in State v. Rudge, 89 Ohio App.3d 429, 624 N.E.2d 1069 (Ohio Ct.App.1993). The defendant in Rudge was charged with two counts of aggravated murder. Prior to opening statements at the guilt phase of his trial, one of the alternate jurors heard another juror make the statement that, “ ‘We could save a lot of time and money and just hang him now.’” Rudge, 624 N.E.2d at 1070. The trial continued and guilty verdicts were returned on all counts. Prior to the penalty phase of the trial, the alternate juror informed the bailiff of the other juror’s “hang him now” statement. The bailiff relayed the matter to the trial court and the trial court conducted in camera examinations of the alternate juror and all of the other remaining jurors. Although the juror identified as having made the improper statement denied making it, the trial court found the statement prejudiced the defendant and granted the defendant’s motion for a mistrial and new trial predicated upon jury misconduct. In reviewing the propriety of the mistrial on appeal, the Ohio Court of Appeals held:

A review of the transcript of the in-camera examination confirms that two of the jurors specifically testified that they had heard the statement in question. Although the first of these jurors stated that she was uncertain as to the identity of the person who had made the statement, the second juror was able to identify the person. Although the person identified as having made the statement denied having done so, when the second juror was questioned about this a second time, he continued to state that he “believed” he knew the identity of the person. Thus, the record before this court contains some evidence supporting the trial court’s factual finding.
As a result, this court concludes that the trial court did not abuse its discretion in declaring a mistrial. The statement clearly evidences a juror who was not impartial, and instead predisposed to a guilty verdict and a death penalty.

Rudge, 624 N.E.2d at 1076 (emphasis added), overruled on other grounds by State v. Reiner, 89 Ohio St.3d 342, 731 N.E.2d 662, 672 (2000).

[¶ 12.] We echo the conclusion of the Ohio court with regard to Juror Rempp’s “I’ve got a rope” statement and find its prejudicial impact was especially harsh in this case in view of Johnson’s race and the nature of the charge against him, ie., the rape of a young Caucasian girl. As explained by the Minnesota Court of Appeals in State v. Watkins, 526 N.W.2d 638, 641 (Minn.Ct.App.1995):

An appeal to racial prejudice impugns the concept of equal protection, because the purpose and spirit of the Fourteenth Amendment “requires that prosecutions in state courts be free of racially prejudicial slurs.” [Miller v. North Carolina, 583 F.2d 701, 707 (4th Cir.1978) ] (reviewing effect of prosecutor’s racial comments, including repeated references to defendants as “these black men,” in a prosecution for rape of white woman)(quoting [United States ex rel. Haynes v. McKendrick, 481 F.2d 152, 159 (2d Cir.1973)]).
When racial considerations are injected into jury deliberations, the Sixth Amendment guarantee of a fair trial is defeated. Tobias v. Smith, 468 F.Supp. 1287, 1289-90 (W.D.N.Y.1979)(analyzing whether jury foreman’s disparaging racial comments prejudiced jury deliberations). Demeaning references to racial groups invite jurors to view a defendant as coming from a different community than themselves and denies the defendant due process rights to a fair trial. Haynes, 481 F.2d at 152.
Court officials’ and jurors’ use of derogatory racial terms in a case with an African-American defendant strikes at the heart of the fair trial protections. Only an impartial jury can ensure a fair trial. The importance of an impartial jury is particularly demonstrated by the facts in this case because the issue for trial was essentially identification. Credibility assessments are critical to resolving identification issues. Whether Watkins, an African-American, was guilty or not guilty of inflicting the blows on Rosenberger depended on the jurors’ assessments of credibility.

The Minnesota court went on to hold in Watkins that the derogatory racial remarks created a presumption of prejudice that the state failed to rebut with a sufficient showing that the racial comments did not contribute to the verdict. Accordingly, the court reversed the trial court’s denial of the defendant’s motion for a new trial.

[¶ 13.] Similarly, in this instance, credibility assessments were critical to Johnson’s defense and the determination of whether or not he was guilty of raping the victim largely depended on the jurors’ assessments of his 'credibility and the credibility of other witnesses. Thus, we likewise hold that juror Rempp’s derogatory racial remarks created a presumption of prejudice to Johnson. We must now resolve whether the State successfully rebutted this presumption. See Watkins, supra; Wilkins, supra.

[¶ 14.] The State may rebut a presumption of prejudice resulting from juror misconduct:

[B]y showing the information was harmless in view of all the evidence of guilt; or by determining there was no significant possibility that the defendant was prejudiced; or by showing that the nature of the extra-record evidence could not have had or had a minimal effect upon the jury.

Wilkins, 536 N.W.2d at 99-100 (citations omitted) (quoting Buchholz v. State, 366 N.W.2d 834, 840 (S.D.1986)).

[¶ 15.] Here, the State clearly failed to show that the juror’s prejudicial remarks were harmless in view of the conflicting evidence of guilt. See Wilkins, supra; Buchholz, supra. The victim’s testimony that she had sexual intercourse with Johnson was substantially impeached with her admission of a prior inconsistent statement. Further, the State presented no physical evidence to support its claim that a sex act had occurred involving the purported victim and Johnson or even that a sex act had taken place. To paraphrase Watkins, 526 N.W.2d at 642, while the evidence before the jury may have been sufficient to support a verdict of guilty absent the juror’s racially prejudicial remarks, it is significant that the issues at trial were exclusively dependent on juror assessments of credibility and, here, the victim’s credibility was clearly in question.

[¶ 16.] We further hold that the State failed to establish that there was no significant possibility that Johnson was prejudiced by the juror’s remarks. See Wilkins, supra; Buchholz, supra. We cannot fully evaluate this issue because there was no trial court inquiry and there were no findings on the number of jurors who may have heard the prejudicial remarks or been influenced by them. This is in contrast with Watkins where the reviewing court was specifically able to find:

a significant number of jurors admitted hearing the bailiffs remark, and a smaller number admitted that the term was used in deliberations. We compare this to [Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) ] in which a bailiffs statement was held to be presumptively prejudicial even though ten members of the jury testified that they did not hear the comment. 385 U.S. at 365, 87 S.Ct. at 470.

Watkins, 526 N.W.2d at 642. Moreover, even if none of the other jurors heard Rempp’s remarks, “[i]f only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth Amendment right to an impartial panel.” Rudge, 624 N.E.2d at 1076.

[¶ 17.] We hold that the State failed in its showing that the nature of the remark could not have had or had a minimal effect upon the jury. See Wilkins, supra; Buchholz, supra. We note that the jury deliberated for approximately only one hour. During that time it was to elect a foreperson, review the 25 instructions of the court and weigh the conflicting evidence. Although obviously not determinative, we note this timing hardly bolsters a claim by the State of reasoned deliberation by the jury based on the facts and legal instructions rather than the possibility of a short-cut based on other improper considerations such as race. Again, to paraphrase Watkins, supra, the prejudicial remarks were of a severe nature that indirectly classified Johnson by his race and invoked the prejudice associated with the historical treatment of African-American males who have allegedly committed sexual improprieties with young Caucasian girls. Moreover, the remarks originated with a juror who ultimately sat in judgment over Johnson. This demonstration of prejudice simply cannot be minimized. The Constitution is colorblind. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan., J. dissenting).

[¶ 18.] Based upon the foregoing, we hold that the trial court abused its discretion in denying Johnson’s motion for a mistrial.

[¶ 19.] Reversed and remanded for a new trial.

[¶ 20.] MILLER, Chief Justice, SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.

      . Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:

      (5) If the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the viclim[.]

      ... A violation of subdivision (5) ... is rape in the third degree, which is a Class 3 felony.
      SDCL 22-22-1(5).

      . Unlike Mr. Rempp, potential juror Horlyk was not actually seated as part of the jury.

      . Johnson is of African-American heritage.

      . In fact, the racial overtones in the statement were implicitly recognized by the trial court when it found a specific jury instruction on racial bias in jury deliberations was necessary as a partial response to the statement.

      . Further, the individual who was supposed to have walked in on the couple during -the sex act did not testify at trial.


author: AMUNDSON, Justice. GILBERTSON, Justice

text:
    2001 SD 76
    STATE of South Dakota, Plaintiff and Appellant, v. Kenneth L. YOUNG, Defendant and Appellee.
    No. 21665.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2001.
    Decided June 13, 2001.

      Mark Barnett, Attorney General, Jason A. Glodt, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellant.
    Gary Colbath, Jr., Rapid City, SD, Attorney for defendant and appellee.
   AMUNDSON, Justice.

[¶ 1.] The State filed a petition for intermediate appeal, granted by this Court, from a judgment holding that the double penalty provision provided by SDCL 32-22-56 does not apply to overweight axle violations. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On March 2, 2000, Kenneth Young picked up a load of hay near Wor-land, Wyoming and was headed home to Wisconsin. He was driving his own semi-tractor pulling a new 1999 flatbed trailer. At Worland, his total truck weight was 73,560 pounds with each axle weighing less than 20,000 pounds, weighed on a certified elevator scale. Pursuant to SDCL 32-22-16, Young was entitled to carry up to 20,000 pounds per axle and have a total vehicle weight of 80,000 pounds.

[¶ 3.] He entered South Dakota on interstate I 90 in Meade County and was weighed at the Tilford Port of Entry near Sturgis. His total weight on this scale was 76,080 pounds, with one axle weighing 32,-420 pounds. This was found to be over the 20,000 pound weight limit per axle.

[¶ 4.] Young was convicted of violation of SDCL 32-22-16 in magistrate court and, under the schedule provided by SDCL 32-22-55, assessed a penalty of 37½ cents per pound for the 12,420 pound overage, a total of $4,657.50. The magistrate then doubled Young’s penalty, applying SDCL 32-22-56, since the overage exceeded 10,000 pounds. Young appealed to the circuit court, where his conviction was upheld but remanded to magistrate court for recalculation of the penalty. The circuit court held that SDCL 32-22-56 did not apply where the individual axle weight exceeded statutory limits, but applied only to the gross vehicle weight. The State appeals this determination of the circuit court.

ANALYSIS AND DECISION

[¶ 5.] The sole issue on appeal is whether the double penalty provision of SDCL 32-22-56 applies to overweight axle violations where the whole truck weight is less than the 80,000’pound maximum allowed by SDCL 32-22-16(3). This is our first opportunity to interpret SDCL 32-22-56, which was amended in 1999. As this appeal requires we engage in statutory construction, the applicable standard of review is de novo. Mattis v. Weaver Electric Inc., 2000 SD 150, ¶ 8, 619 N.W.2d 526, 528. The statute provides:

In any case where the motor vehicle is absolutely overweight beyond ten thousand pounds, the pounds by which the vehicle is so overweight shall be assessed at double the penalties prescribed in § 32-22-55.

[¶ 6.] Interpreting statutes according to their plain language is a primary rule of statutory construction. Nickerson v. American States Ins., 2000 SD 121, ¶ 11, 616 N.W.2d 468, 470. The plain meaning definition of “absolutely” is “definitely and completely,” with “completely” defined as “having all necessary or normal parts, components, or steps; entire.” American Heritage Dictionary 5, 285 (3d ed. 1997). Black’s Law Dictionary defines “absolutely” as “completely; wholly; without qualification.” Black’s at 9 (6th ed. 1990). By its plain language, SDCL 32-22-56 refers to the weight of the motor vehicle itself and by the phrase “absolutely overweight,” refers to the weight of the total vehicle rather than any of its individual parts. The statute refers to a vehicle that is completely, entirely or wholly overweight, not merely overweight on a separable part of the vehicle. The language of the statute is “the pounds by which the vehicle is so overweight,” not an identified part of the vehicle.

[¶ 7.] The plain language of SDCL 32-22-55 also supports this conclusion. In providing the schedule of penalties for overweight named parts of a motor vehicle, it includes this instruction: “The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation.” (emphasis added). This language precludes assessment of multiple rates, or a double penalty for an overweight part of a vehicle. The Legislature has already, in this statute, enhanced the penalty based on increasing amounts of weight on the axle. The next statute, SDCL 32-22-56, applies to the whole vehicle.

[¶ 8.] Another primary and well-settled rule we adhere to when construing statutes is the presumption that the Legislature does not insert surplusage into its enactments. Nielson v. AT & T Corp., 1999 SD 99, ¶ 16, 597 N.W.2d 434, 439. If the Legislature did not mean this statute to apply to the weight of the total vehicle, the phrase “absolutely overweight” is unnecessary. In fact, if the absolute or entire weight of the vehicle was not the concern of SDCL 32-22-56, the whole statute becomes surplusage. SDCL 32-22-55 provides a schedule that lists increasing amounts of penalty for increasing degrees of overweight up to and in excess of five thousand pounds. By its plain language, it applies where the overweight is “upon any wheel, axle, or groups of axles....” If the double penalty for weight in excess of ten thousand pounds provided by SDCL 32-22-56 was meant to apply to an overweight axle (or wheel or group of axles) the Legislature could have included this provision into the schedule provided by SDCL 32-22-55, which already existed and applies to overweight parts of the vehicle.

[¶ 9.] Examination of legislative history reveals that in 1953, both statutes were part of the same session law. However, while the categories of penalties for overweight axles, wheels and groups of axles were dependent clauses of the same first paragraph of that session law, the double penalty for an absolutely overweight motor vehicle, a separate class from the individual vehicle parts, was provided by separate paragraph.

[¶ 10.] In 1967, the Legislature revised our system of codified laws, renumbering and amending the single predecessor statute by enacting two statutes, which separated the schedule of penalties for overweight parts of vehicles from the double penalty provision that is only invoked “where the motor vehicle is absolutely overweight.” Our affirmance of the circuit court’s decision is the only interpretation that permits these two statutes to be construed together and harmonized, giving effect to all their provisions, another primary and well-settled rule of statutory construction. Barton, 2001 SD 52 at ¶ 26, 625 N.W.2d at 281; Hot Springs Ind. Sch. Dist. No. 10 v. Fall River Landowners Ass’n, 262 N.W.2d 33, 36 (S.D.1978).

[¶ 11.] We assume that the Legislature, when enacting a provision, has in mind previously enacted statutes relating to the same subject. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 184 (S.D.1986); Feiok, 364 N.W.2d at 539. Both SDCL 32-22-55 and 32-22-56 were amended in 1999. SDCL 32-22-55, providing the schedule of penalties for Young’s overweight axle, was amended by 1999 SD Sess.L. ch. 162, § 4. SDCL 32-22-56, the statute at issue, was amended by § 5 under the same Session Laws. It cannot be conceived the 1999 Legislature did not have 32-22-55, providing the penalties for specific parts of a vehicle found to be overweight, in mind when it enacted and amended 32-22-56, providing the penalty “where the motor vehicle is absolutely overweight beyond ten thousand pounds.”

[¶ 12.] Finally, we recognize that the Legislature knows how to exempt or include items in its statutes. See Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 10, 545 N.W.2d 834, 836 (excluding a person’s right to collect worker’s compensation benefits); Jasper v. Smith, 540 N.W.2d 399, 403 (S.D.1995) (exempting property from attachment of a lien); Sander v. Geib, Elston, Frost Pro. Ass’n, 506 N.W.2d 107, 124 (S.D.1993) (including an entity as a beneficiary). If the Legislature had meant that a single axle, overweight beyond ten thousand pounds, could invoke the double penalty, it would have said so. As noted above, there already existed a provision scheduling the penalties for specific parts of the vehicle found to be overweight, and the provision imposing a penalty for axles exceeding weight restrictions by more than five thousand pounds necessarily includes weights in excess of ten thousand pounds. That penalty is 37⅛ cents per pound of excessive weight, whether the axle is 5001, 7001 or 10,001 pounds in excess, or, as in this case, 12,420 pounds overweight.

[¶ 13.] The order of the circuit court is affirmed.

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

[¶ 15.] MILLER, Chief Justice, and GILBERTSON, Justice, dissent.

GILBERTSON, Justice

(dissenting).

[¶ 16.] I respectfully dissent. SDCL 32-22-55 and SDCL 32-22-56, when construed together, double the ordinary statutory penalty for various types of an overweight vehicle. As such I would reverse the circuit court.

[¶ 17.] This is a case of statutory construction. Statutory intent must be construed from the statute as a whole as well as other statutes relating to the same subject. US West Communications v. PUC, 505 N.W.2d 115, 123 (S.D.1993). In reviewing SDCL chapter 32-22, it is clear that the intent of the Legislature is to reduce damage to the highways of South Dakota. “The evil sought to be avoided [is] the destruction of the public roads by excessively heavy vehicles.” State v. Boze, 472 S.W.2d 35, 38 (1971). Indeed, “[i]t is beyond question that the destructive potential of the [excess] weight is determined not only by its [total] amount but the degree to which that amount is concentrated in one spot or area.” Id.

[¶ 18.] I agree with the Court that under State v. Feiok, 364 N.W.2d 536, 539 (S.D.1985), previous laws in this jurisdiction are an appropriate basis upon which to gain assistance in determining legislative intent. In 1953, the Legislature enacted what the Court correctly determines to be the predecessor of SDCL 32-22-55 and 32-22-56. 1953 SD Sess.L. ch. 247 states:

Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle or groups of axles or upon more than one thereof greater than the maximum permitted by section 44.0336 of the South Dakota Code of 1939 and acts amendato-ry thereof shall be fined in addition to and not in substitution for any and all penalties now provided by law for such offense in the following amounts:
In an amount equal to three cents per pound for each pound of such excess or combined excess weight over one thousand pounds when such excess is two thousand pounds or less.
In an amount equal to five cents per pound for each pound of such excess or combined excess weight when such excess exceeds two thousand pounds and is three thousand pounds or less.
In an amount equal to six cents per pound for each pound of such excess or combined excess weight when such excess exceeds three thousand pounds and is four thousand pounds or less.
In an amount equal to eight cents per pound for each pound of such excess or combined excess weight when such excess exceeds four thousand pounds and is five thousand pounds or less.
In an amount equal to ten cents per pound for each pound of such excess or combined excess weight when such excess is five thousand pounds or more.
In any case where the motor vehicle is absolutely overweight beyond the greatest permissible compensation plate weights for a vehicle of its class, the pounds by which the vehicle is so overweight may be assessed at double the penalties hereinbefore prescribed, (emphasis added).

In construing this act as a whole it is clear that a vehicle is “absolutely overweight” whether the source of that weight is a “wheel, axle or groups of axles” or total weight. The act makes no differentiation between the sources.

[¶ 19.] This statute remained intact until the adoption of the South Dakota Compiled Laws in 1967. At that point, the statute was split into two statutes which became SDCL 32-22-55 and 56. However, there were no amendments to the substance of the law. Further, the 1967 Code declared that: “[t]he provisions of this code, so far as they are the same as those of existing laws, shall be construed as a continuation of those laws and not as new enactments.” SDCL 2-16-14. Although there were additional amendments in 1999, the pertinent language of the 1953 act, which is determinative of this appeal, survives and is still controlling.

[¶ 20.] Thus, the phrase “absolutely overweight” is not limited to the total weight of the entire vehicle. Under SDCL 32-22 the term is inclusive of four ways an overweight violation can result. These statutes must be construed with a view to effect the object and underlying purpose of the Legislature. SDCL 2-14-12. See also Estate of Wolff, 349 N.W.2d 33, 35 (S.D.1984). The phrase “absolutely overweight” simply reinforces the legislative intent that the vehicle must be substantially overweight before the doubling of the penalty is instituted. For the doubling under SDCL 32-22-56 to apply, the violation must be in excess of 10,000 pounds over the applicable legal weight limit. This simply means that if the vehicle is carrying a weight beyond 10,000 pounds in excess of the legal limit of SDCL 32-22-16 on (1) a wheel, (2) axle, (3) group of axles, or (4) gross weight of the vehicle, the double penalty is applied to the schedule of SDCL 32-22-55. This law has now been in effect 48 years. If the Legislature felt the penalty doubling provision should be limited to gross weight of the entire vehicle, it would have simply amended the statutes to say so. It has not so done.

[¶ 21.] The case of Alexander v. State, 228 Ga. 179, 184 S.E.2d 450 (1971) is instructive. Therein the defendant argued that the penalty provision of the law for overweight vehicles referred only to the total weight of the vehicle and not the axle weight. The Court rejected this argument, declaring that its statutory construction was consistent with the clear intent of the Legislature to maintain and protect the highways of that state from unnecessary wear, not only due to the total weight of the vehicle, but also the results of the same excessive weights on individual axles. Id. at 452.

[¶ 22.] The State also calls our attention to Steven Karamihas & Thomas Gillespie, Trucks and Pavement Wear, University of Michigan Transportation Research Institute Research Review, 8-9 (May June, 1994). This study reports that:

The individual axle loads of a truck have a greater influence on fatigue of pavements than any other vehicle factor.... This is because fatigue is exponentially related to pavement response (stress and strain) and hence, axle load.... [S]preading the load over several axles and keeping individual axle loads low can significantly reduce pavement fatigue.
[G]ross vehicle weight is not directly linked with fatigue of pavements. Fatigue varies in accordance with the axle loads and number of axles on each vehicle combination, and is only related to vehicle weight if a higher gross weight causes an increase in individual axle loads.

It is difficult to accept a rationale that for the last 48 years, the Legislature has been willing to protect the untold millions of dollars spent on highway construction and repair in this state by authorizing double penalties for total overweight vehicles, but casting that aside and giving a “50% discount” to those perpetrators who would destroy or damage our roads by illegal amounts of weight per “wheel, axle or groups of axles.”

[¶ 23.] For the above reasons I respectfully dissent.

[¶ 24.] MILLER, Chief Justice, joins this dissent.

      . This is the schedule of penalties under which Young was assessed 37 ½ cents per pound of overweight. It provides:
      Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle, or groups of axles or upon more than one thereof greater than the maximum permitted by §§ 32-22-2 to 32-22-33, inclusive, 32-22-47 and 32-22-48 shall be fined in addition to, and not in substitution for, any other penalties now provided by law for such offense in the following amounts:
      In an amount equal to five cents per pound for each pound of such excess or combined excess weight over one thousand pounds if such excess is three thousand pounds or less.
      In an amount equal to fifteen cents per pound for each pound of such excess or combined excess weight if such excess exceeds three thousand pounds and is four thousand pounds or less.
      In an amount equal to twenty-two and one-half cents per pound for each pound of such excess or combined excess weight if such excess exceeds four thousand pounds and is five thousand pounds or less.

        In an amount equal to thirty-seven and one-half cents per pound for each pound of such excess or combined excess weight if such excess is more than five thousand pounds. The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation.
      (emphasis added).

      . According to the hearing transcript, this is precisely how the magistrate court interpreted the statute when it assessed Young double the 37¾ — cent per pound penalty for his overweight axle; that is, any axle more than 5,001 pounds overweight was assessed at 75 cents per pound penalty. However, SDCL 32-22-55 already provides that the penalty for overweight axles in excess of 5,000 pounds (which would include those weights over 5,001 pounds) is 37½ cents per pound overweight.

      . The dissent cites to a Georgia case, Alexander v. State, 228 Ga. 179, 184 S.E.2d 450 (1977), as instructive to tire determination of the question before this Court. However, the Georgia court applied a statute different from our own to facts that did not involve a question of a double penalty for an overweight vehicle. There, the plaintiff was charged a penalty for overweight axle load to which he filed a motion to dismiss claiming the statute did not prescribe a penalty for overweight axle loads, only overweight trucks. Mr. Young does not dispute the penalty for overweight axle, only that our statutes do not permit enhancement of that penalty by application of SDCL 32-22-56 which applies to overweight of the total vehicle. No one disputes that the state has an interest in unnecessary wear on our highways, see State v. Barton, 2001 SD 52, ¶ 14, 625 N.W.2d 275, 279 (“The state has a substantial interest in protecting its highways from overweight violations.”), however, the Georgia case is inappo-site to the one before us.

      .The statute imposing weight restrictions on motor vehicles using our state highways and providing a criminal penalty for violation of that statute was first enacted in 1929. SDCL 32-22-16; State v. Feiok, 364 N.W.2d 536, 539 (S.D.1985); 1929 SD Sess.L. ch. 251, §§ 39, 61. In 1951, the predecessor of SDCL 32-22-55 was enacted. 1951 SD Sess.L. ch. 235. By 1953, language from the predecessors of both SDCL 32-22-55 and 32-22-56 can be found in the same session law. 1953 SD Sess.L. ch. 247.

      . This statute was originally enacted in 1951. The 1999 amendment increased the penalties in each overweight category.

      . As previously noted, this statute was originally enacted in 1953, two years after enactment of SDCL 32-22-55. The 1999 amendment substituted “ten thousand pounds” for the previous statutory language of “the greatest permissible compensation plate weights for a vehicle in its class,” and substituted "shall be assessed” for “may be assessed,” making the double penalty mandatory. In re Groseth Int’l, Inc., 442 N.W.2d 229, 231-32 (S.D.1989). The phrase "[i]n any case where the motor vehicle is absolutely overweight” has remained unchanged since 1953.

      . From 1967 to 1999, SDCL 32-22-55 stated:
      Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle or groups of axles or upon more than one thereof greater than the maximum permitted by §§ 32-22-2 to 32-22-33, inclusive, 32-22-47 and 32-22-48 shall be fined in addition to, and not in substitution for, any other penalties now provided by law for such offense in the following amounts:
      In an amount equal to five cents per pound for each pound of such excess or combined excess weight over one thousand pounds if such excess is three thousand pounds or less.
      In an amount equal to ten cents per pound for each pound of such excess or combined excess weight if such excess exceeds three thousand pounds and is four thousand pounds or less.
      In an amount equal to fifteen cents per pound for each pound of such excess or combined excess weight if such excess exceeds four thousand pounds and is five thousand pounds or less.
      In an amount of twenty-five cents per pound for each pound of such excess or combined excess weight if such excess is more than five thousand pounds.
      The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation. (emphasis added).

      . From 1967 to 1999, SDCL 32-22-56 stated:
      In any case where the motor vehicle is absolutely overweight beyond the greatest permissible compensation plate weights for a vehicle of its class, the pounds by which the vehicle is so overweight may be assessed at double the penalties prescribed in § 32-22-55. (emphasis added).

      .As of July 1, 1999, SDCL 32-22-55 reads:
      Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle, or groups of axles or upon more than one thereof greater than the maximum permitted by §§ 32-22-2 to 32-22-33 inclusive, 32-22-47 and 32-22-48 shall be fined in addition to, and not in substitution for, any other penalties now provided by law for such offense in the following amounts:
      In an amount equal to five cents per pound for each pound of such excess or combined excess weight over one thousand pounds if such excess is three thousand pounds or less.
      In an amount equal to fifteen cents per pound for each pound of such excess or combined excess weight if such excess exceeds three thousand pounds and is four thousand pounds or less.
      In an amount equal to twenty-two and one-half cents per pound for each pound of such excess or combined excess weight if such excess exceeds four thousand pounds and is five thousand pounds or less.
      In an amount equal to thirty-seven and one-half cents per pound for each pound of such excess or combined excess weight if such excess is more than five thousand pounds.
      The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation
      After July 1, 1999, SDCL 32-22-56 now states:
      In any case where the motor vehicle is absolutely overweight beyond ten thousand pounds, the pounds by which the vehicle is so overweight shall be assessed at double the penalties prescribed in § 32-22-55.