author: HUDSON, Judge.

text:
    NORTHWESTERN NATIONAL INSURANCE COMPANY as Subrogee for David Jerome SWANBERG, creditor. Respondent, v. Dawn Marie CARLSON, debtor, Respondent, and Farmers Insurance Group, a foreign corporation, garnishee, Appellant.
    No. A05-943.
    Court of Appeals of Minnesota.
    March 7, 2006.

      Anthony S. Aspnes, Edina, MN, for respondent Northwestern National Insurance Company.
    Roger L. Kramer, Gislason & Hunter, LLP, Minnetonka, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; PETERSON, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

On appeal from summary judgment in a garnishment action, the garnishee insurer argues that the district court erred in concluding that the debtor insured’s breach-of-contract action arising out of the insurer’s duty to indemnify was not barred by the statute of limitations. Because the debtor insured’s breach-of-contract action did not arise until the creditor insurer obtained a judgment against her, we affirm.

FACTS

This garnishment action arises out of an automobile accident that occurred on August 11, 1994. On that date, respondent Northwestern National Insurance Company’s (Northwestern National) insured, David Swanberg, was injured when he was hit by a car driven by respondent Dawn Carlson. Carlson believed that she had liability coverage on the date of the accident through appellant Farmers Insurance Group (Farmers) and submitted her claim on August 12,1994. When Carlson reported the accident to Farmers, Farmers notified Carlson that no coverage was in place because Farmers had canceled the policy for nonpayment of premium in July. Carlson denied that Farmers provided the advance written notice of cancellation required by Minnesota law.

Swanberg sought compensation for his injuries from Northwestern National under his uninsured motorist coverage. In December 1995, Northwestern National paid Swanberg $21,000 in full settlement of his uninsured motorist claims and, in October 1996, commenced a subrogation action against Carlson to recover $21,000, the sum paid to Swanberg under its uninsured motorist coverage. Carlson advised Northwestern National that a coverage dispute existed between her and Farmers, and she maintained that she was insured under a motor vehicle liability policy from Farmers entitling her to indemnity for any liability she might have to Northwestern National or Swanberg.

In May 1999, Northwestern National and Carlson stipulated for settlement of Northwestern National’s subrogation action and, pursuant to Miller v. Shugart, 316 N.W.2d 729 (Minn.1982), agreed to entry of judgment against Carlson for the $21,000 that Northwestern National had paid Swanberg. Northwestern National agreed to collect the stipulated judgment only from any liability insurance Carlson might have for the loss. The district court entered Northwestern National’s stipulated judgment against Carlson on January 5, 2000.

In January 2004, Northwestern National commenced a garnishment action against Farmers to enforce the judgment entered on January 5, 2000. Farmers filed a non-earnings disclosure disclaiming any liability to Carlson because there was no policy in effect on the date of the accident. In February 2004, Northwestern moved for leave to serve Farmers with a supplemental complaint to determine the issue of Farmers’s indebtedness to Carlson. The district court granted leave to serve the supplemental complaint.

Farmers moved for summary judgment, arguing that the claims alleged in the supplemental complaint were barred by the six-year statute of limitations for insurance actions set forth in Minn.Stat. § 541.05 (2004). Farmers conceded in its summary judgment motion that it had no evidence to dispute the claims in the supplemental complaint. Accordingly, the parties stipulated that if the court rejected Farmers’s statute-of-limitations defense, Northwestern National would be entitled to judgment in its favor against Farmers.

The district court denied Farmers’s motion for summary judgment and ordered judgment against Farmers for $21,132 plus interest, costs, and disbursements. The district court entered judgment on March 22, 2005. This appeal follows.

ISSUE

Did the district court err in concluding that a liability insurer’s contractual duty to indemnify does not arise and, therefore, the statute of limitations does not begin to run, until the insured is legally obligated to pay damages?

ANALYSIS

When reviewing an appeal from a grant of summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Here, the parties agree that there are no material fact issues. “The construction and applicability of statutes of limitations are questions of law [reviewed] de novo.” Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

Northwestern National’s garnishment of Farmers is based on Farmers’s duty to indemnify Carlson under Farmers’s motor vehicle liability insurance policy issued to Carlson. As the creditor, Northwestern National’s rights against Farmers in a garnishment action are no greater and no less than Carlson’s rights. See Johnson Motor Co. v. Cue, 352 N.W.2d 114, 116 (Minn.App.1984) (noting that the creditor in a garnishment action acquires the same rights that the debtor has against the garnishee), review denied (Minn. Oct. 11, 1984). Accordingly, the issue presented on appeal is whether the statute of limitations would defeat Carlson’s claim that Farmers breached its contractual duty to indemnify Carlson under her liability policy.

Farmers argues that Northwestern National’s garnishment action is barred by the six-year statute of limitations applicable to breach-of-contract claims under Minn.Stat. § 541.05 (2004). The duty to indemnify is contractual. Fallon McElligott, Inc. v. Seaboard Sur. Co., 607 N.W.2d 801, 803 (Minn.App.2000) (citing Meadowbrook, Inc. v. Tower Ins. Co., 559 N.W.2d 411, 415 (Minn.1997)). In general, a statute of limitations begins to run when a complete cause of action accrues, or when there is a demand capable of present enforcement. Noske v. Friedberg, 656 N.W.2d 409, 412 (Minn.App.2003), aff'd, 670 N.W.2d 740 (Minn.2003). Under Minnesota law, a cause of action in contract accrues at the time of breach. Jacobson v. Bd. of Trustees of Teachers Retirement Ass’n, 627 N.W.2d 106, 110 (Minn.App.2001), review denied (Minn. Aug. 15, 2001). A breach of contract is the nonperformance of any duty of immediate performance. Restatement (Second) of Contracts § 235(2) (1981) (stating that “[w]hen performance of a duty under a contract is due any non-performance is a breach”).

Farmers argues that the statute of limitation for Carlson’s breach-of-contract claim against Farmers for failure to indemnify her against liability started running in August of 1994, when Farmers notified Carlson that they would not defend or indemnify Carlson for her claim and, therefore, the instant garnishment action — filed roughly 10 years later — is barred. Northwestern National argues that the statute of limitations did not begin to run until the district court entered the stipulated judgment against Carlson in January 2000, because Farmers could only breach its duty to indemnify Carlson after Carlson became liable for the judgment.

In order to determine whether the statute of limitations had expired for Carlson’s breach-of-contractual-duty-to-indemnify cláim, we must first determine when the insurer breached the duty to indemnify: If Farmers had an immediate duty to perform in August 1994, at the time they denied coverage for Carlson’s claim, then that denial was a nonperformance of duty constituting a breach of contract and triggering the limitations period.

The time that actual performance is due is controlled by the insurance contract. The interpretation of insurance contracts is governed by general principles of contract law. Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn.2002). When the language of an insurance contract is unambiguous, this court interprets that language in accordance with its plain and ordinary meaning. Id. at 880. The Minnesota No-Fault Automobile Insurance Act, Minn.Stat. § 65B.49, subd. 3(2) (2004), provides that a residual liability insurer “shall be liable to pay, on behalf of the insured, sums which the insured is legally obligated to pay as damages because of bodily injury and property damage arising out of the ownership, maintenance or use of any motor vehicle.” See also Lynch ex rel. Lynch v. Am. Family Mut. Ins. Co., 626 N.W.2d 182, 188 (Minn.2001) (distinguishing between liability coverage and underinsured motorist coverage and stating that “[l]iability insurance is third-party coverage, meaning that it pays for damage the insured is legally obligated to pay another person ... for bodily injury”).

Examining the above language, we conclude that Farmers’s interpretation of the contract distorts the plain meaning of the language and fails to give effect to all of the contract provisions. Farmers had an obligation to indemnify Carlson only for the sums that she became “legally obligated to pay as damages” because of injuries or damage to which the insurance applied. The contract is devoid of any language indicating that Farmers had a duty to indemnify before Carlson was legally obligated to pay damages. In August 1994, at the time that Farmers notified Carlson that it would not provide coverage for her claim, Carlson was not legally obligated to pay damages for her alleged negligence. Accordingly, Farmers did not have an immediate duty to indemnify her at the time of their denial. Because Farmers was not required to immediately perform its duty to indemnify, the initial refusal to indemnify could not have been the basis for a breach of contract. Rather, as Northwestern National argues, the breach of contract occurred when Farmers refused to indemnify Carlson after the district court entered judgment against her, or after she was legally obligated to pay damages.

This interpretation is consistent with Minnesota precedent requiring a judgment or settlement to trigger an insurer’s indemnity obligation. In Drake v. Ryan, 514 N.W.2d 785, 787-88 (Minn.1994), the supreme court examined whether a tort-feasor who had been released of all personal liability must remain a party to an action against the tortfeasor’s excess liability insurer. The court reasoned that if the tortfeasor was dismissed from the action, the injured party’s lawsuit against the excess liability insurer fails because insurance contracts are contracts of indemnity and the injured party must obtain a judgment against the insured on the issue of liability in order to reach the insurance proceeds. Similarly, in Metro. Prop. & Cas. Ins. Co. v. Metro. Transit Comm’n, 538 N.W.2d 692, 695-96 (Minn.1995), the supreme court examined when the right of indemnity accrues for an insurer who pays no-fault, economic-loss benefits to a claimant injured through the negligent use of a public bus. Noting that under common law, “the right of indemnity does not accrue until the liability of the party seeking indemnity has become finally fixed and ascertained, or until after the claimant has settled or has paid the judgment,” the court held that the insurer’s right of indemnity accrued when the insurer made its first payment to the claimant. Id. (quotation omitted).

Farmers argues that Northwestern National’s interpretation would result in unfair prejudice to insurance carriers who have denied coverage because, as in this case, roughly ten years can pass before the duty to indemnify is triggered. Moreover, Carlson could have brought a declaratory judgment action following Farmers’s denial of coverage in August of 1994 to clarify whether she had coverage and, therefore, Carlson or any other future insured would not be prejudiced by running the statute of limitations from the date the insurer denies coverage. But, the supreme court has recognized that inequities exist in a typical insurer/insured relationship: Insurers are more sophisticated and more familiar with their duties under their contracts and how those duties have been interpreted by the courts. See Home Ins. Co. v. Nat. Union Fire Ins., 658 N.W.2d 522, 533 (Minn.2003). Given this imbalance, it is reasonable in the context of indemnification for damages to place the burden of bringing a declaratory judgment action on insurers who want immediate clarification.

DECISION

Because Carlson’s cause of action against Farmers for breach of its contractual duty to indemnify did not accrue until she was legally obligated to pay damages pursuant to a district court judgment, Northwestern National’s garnishment action — brought within six years from that judgment — was not barred by the statute of limitations.

Affirmed.

      . In Miller v. Shugart, 316 N.W.2d 729, 731 (Minn.1982), the supreme court held that when an insurer unreasonably disputes coverage, the plaintiff and the insured tortfeasor may stipulate a settlement in plaintiff’s favor and agree that the judgment will be taken from the insurance policy and not from the tortfeasor’s personal assets.

      . Because neither party submitted Carlson's insurance policy into the record or objected to the use of the No-Fault Act's provisions at the district court, we are relying on the standard language provided in the No-Fault Act.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    In the Matter of the Petition of Joshua S. COLLIER, in Relation to Property Registered in Certificate of Title No. 1596547 for an Order Directing Entry of a New Certificate and Declaratory Relief.
    No. A05-1178.
    Court of Appeals of Minnesota.
    April 4, 2006.

      John G. Westrick, Kirk M. Anderson, Westrick & McDowall-Nix, P.L.L.P., St. Paul, MN, for appellant Joshua Collier.
    Timothy J. Grande, Katheryn A. Gett-man, Joanne H. Turner, Mackall, Crounse & Moore, P.L.C., Minneapolis, MN, for respondent M <& I Bank.
    Arthur D. Walsh, A.D. Walsh & Associates, Woodbury, MN, for respondent Dennis Wager.
    Considered and decided by LANSING, Presiding Judge; GORDON SHUMAKER, Judge; and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s grant of respondent’s motion for summary judgment based on its finding that appellant’s interest is junior to respondent’s interest. Appellant argues that, although he had actual knowledge of respondent’s unregistered interest in Torrens property, because respondent’s interest was not registered, it did not bind or affect the land and merely served as a private contract. Because respondent’s interest was unregistered, it was not an encumbrance, and appellant did not have actual notice of an interest in the land that was inconsistent with his interest. As a result, appellant is a good-faith purchaser under the Torrens law. We reverse.

FACTS

Joseph Conley purchased the Torrens property at issue in 2000, subject to a mortgage held by respondent M & I Bank. The bank recorded its mortgage with the county recorder, but failed to register it with the county registrar, as is required for Torrens property.' In 2002, Conley defaulted on his mortgage, and the bank filed a. foreclosure action. Shortly thereafter, the bank published notice of the foreclosure sale and notified Conley of the date of the sale.

Approximately three months later, the bank held a foreclosure sale and purchased the property. Again, the bank recorded the certificate of sale, but did not register it with the county registrar. Approximately one month later, appellant Joshua Collier learned of the foreclosure sale and contacted the bank with an offer to purchase its interest. The bank declined. Nonetheless, Collier researched the property and learned that the bank had never registered its interest. Collier then contacted Conley and offered to purchase his interest for $5,000. Conley agreed and conveyed the property to Collier by warranty deed. The same day, Collier executed a mortgage in favor of Wager for $145,000 and registered both the warranty deed and the mortgage with the county registrar.

A few months later, Collier initiated the instant action by filing a petition in the district court, seeking a declaratory judgment of the priority of the various interests in the property. Both Collier and the bank moved for summary judgment, and the district court granted the bank’s motion as to Collier and denied Collier’s motion. (The district court denied the bank’s motion as to Wager, but the bank and Wager subsequently entered into a stipulation, whereby the bank dismissed Wager from the proceeding with prejudice.) The district court concluded that Collier was not a good-faith purchaser under the statute because he had actual notice of the bank’s interest at the time of his purchase, so the fact that he registered his interest before the bank was not determinative. This appeal follows.

ISSUES

Can a purchaser for value of Torrens property be a good-faith purchaser if he has actual notice of the existence of an outstanding, but unregistered, mortgage at the time of the purchase?

ANALYSIS

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Here, there are no genuine issues of material fact. Both parties agree that (1) the property at issue is Torrens property, so any interest in the property must be registered; (2) the bank acquired an interest in the property prior to Collier acquiring his interest; (3) the bank never properly registered its interest; and (4) Collier had actual knowledge of the bank’s interest. Consequently, the question becomes whether the district court improperly applied the law to those undisputed facts. A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989).

The Torrens Act comprises several statutory sections in Minnesota Statutes chapter 508.

No voluntary instrument of conveyance purporting to convey or affect registered land ... shall take effect as a conveyance, or bind or affect the land, but shall operate only as a contract between the parties.... The act of registration shall be the operative act to convey or affect the land.

MinmStat. § 508.47, subd. 1 (2004). In addition, “[ejvery conveyance, ... which would affect the title to unregistered land under existing laws, if recorded, ... shall, ... affect the title to registered land if filed and registered with the registrar ..., and shall be notice to all persons from the time of such registering.” Minn.Stat. § 508.48 (2004). And “[ejvery person receiving a certificate of title pursuant to a decree of registration and every subsequent purchaser of registered land who receives a certificate of title in good faith and for a valuable consideration shall hold it free from all encumbrances.” Minn. Stat. § 508.25 (2004). Regarding mortgages, the statute provides: “The owner of registered land may mortgage the same by deed or other instrument sufficient in law for that purpose.... Such ... mortgage ... shall be registered and take effect upon the title only from the time of registration.” Minn.Stat. § 508.54 (2004). The interrelation of these Torrens sections presents a case of first impression in Minnesota.

We begin our analysis by examining the principles underlying Torrens law.

The purpose of the Torrens Law is to establish an indefeasible title free from any and all rights or claims not registered with the registrar of titles, ... to the end that anyone may deal with such property with the assurance that the only rights or claims of which he need take notice are those so registered. The law was framed to accomplish that purpose; and it establishes rules in respect to registered land which differ widely from those which apply in the case of unregistered land.

In re Juran, 178 Minn. 55, 58, 226 N.W. 201, 202 (1929). Thus, Torrens property is unique, and the rules that govern unregistered land — or recording-act property — do not apply to Torrens property and are not necessarily helpful when interpreting the Torrens statutes.

In Fingerhut Corp. v. Suburban Nat’l Bank, we held that the bank’s interest was not binding on the land because it did not register the interest. 460 N.W.2d 63, 66 (Minn.App.1990). “The necessity of registration to create an interest in the land is what distinguishes registered, or Torrens, property from abstract property.” Id. at 65. There, the bank argued that notice of the unregistered interest was enough to satisfy the Torrens Act. But this court disagreed, stating that “the question is whether the mortgage taken by [the bank] can be effective before registration. The answer is, with respect to registered property, unequivocally no.” Id. at 66 (emphasis added). We held that prior to registration, the bank’s interest in the land was merely a contract between the parties and had no effect on the land. Id.

It is well established in Minnesota that title in Torrens property must be registered in order for it to be binding. Juran, 178 Minn. at 58-59, 226 N.W. at 202. But what effect, if any, does the good-faith-purchaser section of the statute have on the registration requirement? In Finnegan v. Gunn, Finnegan conveyed his land to Gunn for valuable consideration, but neither Finnegan nor Gunn registered the mortgage. 207 Minn. 480, 481, 292 N.W. 22, 22-23 (1940). Finnegan held the mortgage until his death, at which time Gunn’s widow attempted to register it. Id. Finnegan’s widow asserted her interest in the land, as she was not party to the conveyance. Id. at 481, 292 N.W.2d at 23. The court held that Gunn’s widow’s interest was superior because Gunn was a bona fide purchaser, and Finnegan’s widow was not. Id. Because Gunn was a bona fide purchaser, his widow was entitled to the property. Id.

Finnegan seems to stand for the principle that registration is not the ultimate act with regards to Torrens property, but, in addition, one must be a good-faith purchaser. But the language of Minn.Stat. § 508.25 states not only that one must be a good-faith purchaser, but that if one is a good-faith purchaser, he “shall hold [the property] free from all encumbrances.” (Emphasis added.) Minn.Stat. § 508.54 (2004) is clear that under the Torrens law, a mortgage does not become an encumbrance until it is registered. We must then determine what effect, if any, a purchaser’s actual notice of an unregistered mortgage has on whether he is a good-faith purchaser.

The court in Juran stated that the Torrens “act abrogates the doctrine of constructive notice except as to matters noted on the certificate of title. We think, however, that it does not do away with the effect of actual notice, although it undoubtedly imposes the burden of proving such notice upon the one asserting it.” 178 Minn, at 60, 226 N.W. at 202. Although that was dictum in Juran, it has been cited repeatedly and has since become the law.

In In re Ocwen Fin. Servs., Inc., Jacox, a homeowner of Torrens property, entered into a contract to sell her home. 649 N.W.2d 854, 855 (Minn.App.2002), review denied (Minn. Nov. 19, 2002). As a result, the purchaser obtained a mortgage from Ocwen for part of the purchase price and entered into a purchase agreement with Jacox, stating that Jacox would “carry a note” on the remaining amount. Id. Jacox subsequently learned that Ocwen required, as a condition of its mortgage, that Jacox also take a mortgage instead of the note. Id. Jacox’s mortgage was identified as a second mortgage in a U.S. Department of Housing and Urban Development statement. Id. at 857. The mortgages were time-stamped at 11:00 a.m. on November 24, 1999, but because Ocwen’s mortgage received a lower registration number, it was considered to have been registered first. Id. The buyer subsequently defaulted on Ocwen’s mortgage and Ocwen foreclosed by advertisement with no actual notice of the foreclosure sent to Jacox. When Ocwen sought a new certificate of title that reflected it as the property owner, free of encumbrances, Jacox filed an answer, claiming that her mortgage had priority because Ocwen had actual notice of Jacox’s second mortgage. Id. at 856.

There was no dispute that Ocwen had actual notice of the second mortgage. The issue was the priority of the second mortgage. On cross-motions for summary judgment, the district court ruled that Ja-cox’s mortgage had priority over Ocwen’s. On appeal, we held that “Ocwen had no knowledge of an encumbrance inconsistent with its interest in the property because the Jacox mortgage was clearly a ‘second mortgage’.... The fact that Ocwen had notice of the Jacox second mortgage does not affect Ocwen’s status as a bona fide purchaser.” Id. at 857. Because Ocwen’s mortgage was registered first, it had priority over the Jacox mortgage. Id.

Applying these precedents and the rationale behind the Torrens law to the instant case, we conclude that Collier’s interest is superior to the bank’s interest. Collier had actual notice that the bank possessed an unregistered interest — a mortgage — in the property. But because the bank did not register its mortgage, it was a private contract and not an encumbrance on the land. Actual notice of a private contract is not the type of notice that prevents a purchaser from being a good-faith purchaser. At the time Collier acquired and registered his interest in the property, he did not have actual notice of an encumbrance or interest that was inconsistent with his interest. Thus, such actual notice does not prevent Collier from being a good-faith purchaser under the statute.

DECISION

A mortgage does not become an encumbrance, for purposes of the Torrens statute, until it is registered. Collier’s knowledge of the bank’s unregistered mortgage was not actual notice of an encumbrance or interest that was inconsistent with his interest. Therefore, Collier is a good-faith purchaser, and his registered interest is superior to the bank’s unregistered interest.

Reversed.

      . There are two respondents in this action, M & I Bank, which holds the contested interest, and Dennis Wager, a business associate of appellant. Respondent M & I Bank dismissed respondent Wager with prejudice from this action, so this opinion refers to M & I Bank as the sole respondent.


author: LANSING, Judge.

text:
    In the Matter of the CIVIL COMMITMENT OF Adnan Allen Fakaraldin STONE.
    No. A05-2043.
    Court of Appeals of Minnesota.
    April 4, 2006.

      Mike Hatch, Attorney General, Noah A. Cashman, Assistant Attorney General, St. Paul, MN; and Larry Collins, Waseca County Attorney, Waseca, MN, for appellant State of Minnesota.
    Jennifer J. Dunn-Foster, Dow, Einhaus, Mattison & Carver, P.A., Owatonna, MN, for respondent Adnan Allen Fakaraldin Stone.
    Considered and decided by LANSING, Presiding Judge; SHUMAKER, Judge; and HALBROOKS, Judge.
   OPINION

LANSING, Judge.

The state appeals the district court’s denial of a petition for the civil commitment of Adnan Stone as a sexually dangerous person. The district court denied the petition based on its finding that Stone’s actions did not form a course of harmful sexual conduct because the factual circumstances of Stone’s 1998 sexual assaults were not similar to the factual circumstances of his 2004 criminal-sexual-conduct conviction. Because clear and convincing evidence established that Stone engaged in a sequence of harmful sexual conduct over an extended period of time and that this conduct is linked to an existing mental disorder that makes it highly likely that he will engage in harmful sexual conduct in the future, we reverse the denial of the petition to commit Stone as a sexually dangerous person.

FACTS

The state filed a petition on May 27, 2005, for the civil commitment of Adnan Stone as a sexually dangerous person and sexual psychopathic personality. To support its petition, the state relied on evidence of Stone’s sexual conduct with young girls and the evaluation and reports of two court-appointed medical examiners.

Stone’s first sexual assault occurred in February 1998 when Stone was twelve years old and living in a foster home. Stone admitted that he sexually assaulted his four-year-old foster sister, KS, at least three separate times. Each incident began with Stone fondling KS’s buttocks and torso and then escalated. In a consultation report, KS said that Stone penetrated her vagina with his penis and rubbed his penis against her buttocks. Despite initial denials, Stone admitted to engaging in inappropriate sexual conduct but said that he did not penetrate KS. He instead claimed he had KS lie with her face down on the bed, placed his penis between her upper thighs against her vagina, and rubbed. He maintains that his conduct was not the result of sexual desire, but instead part of his efforts to be removed from the foster home.

The state charged Stone with first- and second-degree criminal sexual conduct, and Stone pleaded guilty to fifth-degree criminal sexual conduct. The court ordered him to participate in outpatient sexual offender treatment, and he successfully completed the program.

In the ensuing years, Stone was involved in a number of incidents of aggression against young girls. In 2001, when he was sixteen, he brandished a knife at a thirteen-year-old girl who encouraged her fourteen-year-old friend to stop seeing Stone. The incident resulted in a conviction of fifth-degree assault. In 2003 the district court issued a harassment restraining order against Stone because he followed, pursued, or stalked JPW, a fourteen-year-old girl. Stone violated this order by continuing to have phone contact with JPW.

In January 2004, when Stone was eighteen years old, he engaged in sexual relations with KMT, a fifteen-year-old girl who suffers from multiple mental-health conditions. KMT and Stone, who knew that KMT was only fifteen, were at a house with a group of friends. KMT testified that she was intoxicated and had taken several prescription medications. Witnesses, including Stone, saw KMT drink a shot of liquor and then drink twice from the bottle. They prevented her from drinking more because she began to act “goofy.” KMT left the group to lie down in one of the bedrooms. Stone followed her into the bedroom. KMT claims she told Stone that she could not have sexual relations with him and that she lost consciousness. She later testified, however, that she was awake and aware when the sexual contact occurred but that she did not want to have sex with Stone. When she awoke in the early morning, she discovered that her pants and underwear were around her knees and that she had pain and bleeding in her vaginal region.

Although Stone acknowledges that KMT was too young to legally consent to having sex with him, he asserts that the sex was voluntary. Stone provided an affidavit from Amy Larson, who was at the house when the events occurred. Although Larson remained in the living room while Stone and KMT were in the bedroom, her affidavit generally supported Stone’s claims that KMT voluntarily engaged in sex with him, that KMT rejoined the group later in the evening, and that she did not appear upset.

The state charged Stone with first- and third-degree criminal sexual conduct. Stone pleaded guilty to third-degree criminal sexual conduct. As a condition of probation imposed in May 2004, the court ordered Stone to refrain from any contact with persons under the age of eighteen except in the presence of a parent or work supervisor.

Stone violated the conditions of his probation several times in 2004 by contacting young girls and spending unsupervised time in the presence of minors. In May, only two weeks after the issuance of the probation order, Stone contacted a sixteen-year-old girl and spent several hours alone with her. In December he called a fifteen-year-old girl and told her that he wanted to “jump her.” Shortly after this phone conversation, the girl became frightened when she saw Stone outside her home. In February 2005 Stone’s probation officer filed a violation report because Stone failed to provide notice of his change in residence, continued to have contact with persons under the age of eighteen in violation of his probation conditions, and continued to use drugs.

Based on Stone’s conduct, the state filed a petition for civil commitment as a sexually dangerous person (SDP) and as a sexual psychopathic personality (SPP). The district court appointed two experts to examine Stone, Dr. Linda Marshall and Dr. Peter Meyers. These experts both submitted reports that included their evaluations, the results of several tests, and their conclusions. They also provided expert testimony at the commitment hearing. Both experts agreed that Stone qualified as a sexually dangerous person but disagreed on whether he qualified as a sexual psychopathic personality. They concluded that he suffers from a number of mental disorders.

The district court denied the state’s petition, concluding that the state failed to prove by clear and convincing evidence that Stone met the requirements for commitment as either an SDP or an SPP. In deciding that Stone does not qualify as an SDP, the district court determined that the state failed to prove he engaged in a course of harmful sexual conduct. The court concluded, however, that Stone suffers from chemical dependence, a conduct disorder, an oppositional disorder, a reactive attachment disorder, and an antisocial personality disorder. It further concluded that, because of these disorders, Stone is very likely “to engage in criminal activity [and, if] the situation presents itself, the criminal activity may well be sexual.” The state appeals the denial of its petition for the SDP commitment.

ISSUES

1. Did the record, as determined by the district court, contain clear and convincing evidence that Stone engaged in a course of harmful sexual conduct?
2. Did clear and convincing evidence establish that Stone is highly likely to engage in harmful sexual conduct?

ANALYSIS

On a petition for civil commitment under the Minnesota Commitment and Treatment Act, the state must prove the need for commitment with clear and convincing evidence. Minn.Stat. § 253B.18, subd. 1(a) (2004). We review the district court’s factual findings under a clear-error standard. Minn. R. Civ. P. 52.01; In re Joelson, 385 N.W.2d 810, 811 (Minn.1986). But a finding of fact that is controlled or influenced by an error of law will be set aside. Webb Bus. Promotions, Inc. v. Am. Elecs. & Entm’t Corp., 617 N.W.2d 67, 73 (Minn.2000). The determination of whether the facts satisfy the statutory standard for civil commitment is a question of law subject to de novo review. In re Linehan, 518 N.W.2d 609, 613 (Minn.1994) (Linehan I).

A sexually dangerous person is defined as a person who: (1) engaged in a course of harmful sexual conduct; (2) manifests a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct. Minn.Stat. § 253B.02, subd. 18c(a) (2004). A sexually dangerous person is subject to civil commitment only if the person’s disorder or dysfunction does not allow adequate control over sexual impulses and makes it highly likely that the person will reoffend. In re Linehan, 594 N.W.2d 867, 876 (Minn.1999) (Linehan IV). The parties do not dispute the district court’s conclusion that Stone manifests a qualifying disorder, and the record supports this determination. We therefore limit our analysis to the remaining elements.

I

The district court concluded that Stone did not engage in a course of harmful sexual conduct because the “nature of the assault on KS and KMT are not similar” and because Stone’s other conduct with young girls was not sexual in nature. “Harmful sexual conduct” is statutorily defined as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Minn.Stat. § 253B.02, subd. 7a(a) (2004). The statute provides that criminal sexual conduct in the first through fourth degree results in a rebuttable presumption that the conduct “creates a substantial likelihood that a victim will suffer serious physical or emotional harm.” Id., subd. 7a(b). The presumption is not that a victim actually suffers serious emotional harm, but that the conduct creates a substantial likelihood of such harm. In re Civil Commitment of Martin, 661 N.W.2d 632, 639 (Minn.App.2003), review denied (Minn. Aug. 5, 2003).

The statute does not define “course” or specify the number of incidents necessary to qualify as a course. In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn.App.2002), review denied (Minn. Sept. 17, 2002). Minnesota case-law, however, indicates' that “course” is a “systematic or orderly succession; a sequence.” Id.; see also American Heritage Dictionary 419 (4d ed.2000) (defining course to be sequence or succession of systematic or orderly events). The district court incorporated into its application of the statutory term “course of harmful sexual conduct” a requirement that the sexual conduct be similar to constitute a course. We recognize that the statutory factors necessary to allow for SPP commitment include a requirement that the petitioner establish a “habitual course of misconduct.” Minn.Stat. § 253B.02, subd. 18b (2004). This factor in the SPP statute has been defined to require evidence of a pattern of similar conduct. See In re Blodgett, 510 N.W.2d 910, 915 (Minn.1994) (considering frequency and similarity of incidents to determine whether party should be committed as SPP). But the factors necessary for commitment under the SPP statute are structured differently from the factors necessary for commitment under the SDP statute, and the standard of “habitual course of conduct” used in the SPP statute does not equate to the standard of “course of harmful sexual conduct” used in the SDP statute.

Courts applying the SPP statute have interpreted the use of the modifying adjective “habitual” to entail a concept of similarity or pattern. See In re Bieganowski, 520 N.W.2d 525, 529-30 (Minn.App.1994) (evaluating habitual nature of sexual conduct by considering similarities between incidents and pattern of conduct), review denied (Minn. Oct. 27, 1994). But the word “habitual” does not appear in the SDP statute, and we may not, in construing a statute, ignore its plain language and insert a requirement that is not there. See Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995) (stating that, when language of statute is plain, court should not construct statute to include words that were omitted). The state is required to establish by clear and convincing evidence all of the elements required for involuntary commitment under the SDP statute, including a course of conduct that satisfies the definition of harmful sexual conduct, but it is not required to show that the incidents of harmful sexual conduct are the same or similar harmful sexual conduct.

An examination of whether an offender engaged in a course of harmful sexual conduct takes into account both conduct for which the offender was convicted and conduct that did not result in a conviction. Ramey, 648 N.W.2d at 268. Because the statute considers a course of conduct, the incidents that establish the course will have occurred over a period of time and need not be recent. In re Irwin, 529 N.W.2d 366, 374 (Minn.App.1995), review denied (Minn. May 16, 1995). And the existence of a period in which a person has not committed sex offenses does not preclude a determination that he engaged in a course of sexual misconduct. In re Robb, 622 N.W.2d 564, 573-74 (Minn.App.2001), review denied (Minn. Apr. 17, 2001).

To determine whether Stone has engaged in a course of harmful sexual conduct, we must first compare the facts of each of the established incidents, viewed in the light most favorable to the district court’s conclusions, to the statutory definition of harmful sexual conduct. We then consider whether the incidents of qualifying conduct together constitute a course of harmful sexual conduct.

The incidents of sexual abuse that Stone inflicted on KS resulted in a conviction of fifth-degree criminal sexual conduct, which does not create a rebuttable presumption of harmful sexual conduct. The district court made no factual findings of the extent of the sexual abuse or the degree of harm that KS suffered. In the absence of these findings, we examine whether the evidence clearly and convincingly established that she is likely to suffer serious emotional harm.

Even if we accept Stone’s assertion that he did not sexually penetrate the child, the evidence nonetheless established that she is likely to suffer serious emotional harm. KS’s young age, the repeated incidents, the escalating and different types of abuse, and her relationship with Stone, her foster brother, were all factors that led the two court-appointed experts to conclude that she was likely to sustain serious emotional harm with long-term effects. This harm may include psychological disorders, such as posttraumatic stress and depression, which may increase the likelihood of suicide or chemical dependency. The expert testimony noted that KS was experiencing nightmares and was fearful of being separated from her parents. The expert testimony combined with the specific indications of the harmful effects on KS demonstrate that KS is likely to suffer serious long-term emotional harm, and the incidents therefore qualify as harmful sexual conduct.

The sexual misconduct involving KMT also includes evidence of long-term emotional harm. Because Stone was convicted of third-degree criminal sexual conduct, a rebuttable presumption exists that he engaged in harmful sexual conduct. In evaluating the long-term emotional harm, the district court did not address the presumption, but rejected KMT’s statements about her incapacitation or her physical injury at the time of the assault. We therefore rely on Stone’s version of the event, that KMT was conscious and wanted to engage in sexual relations. This construction of events, however, does not rebut the presumption that fifteen-year-old KMT was likely to suffer long-term emotional harm. The expert witnesses testified that KMT was vulnerable, that she was humiliated by the encounter, that she suffers from posttraumatic stress, and that she will suffer long-term emotional harm. The experts also stated that, even if they accepted Stone’s version of events, they still concluded that KMT is likely to suffer severe emotional harm as a result of the incident because of the resulting trauma and negative perception of the encounter. The evidence in the record therefore supports the presumption, rather than rebutting it. We conclude that the uncontra-dicted expert testimony provided clear and convincing evidence that KMT is likely to suffer severe emotional harm as a result of Stone’s sexual misconduct.

We now turn to Stone’s remaining incidents involving other young girls to determine whether these actions qualify as harmful sexual conduct. The district court concluded that only one of the acts qualified as harmful sexual conduct because the other incidents were not sexual in nature. The incident that the district court concluded was sexual in nature was Stone’s violation of his probation by telephoning a young girl and telling her that he wanted to “jump her.” Dr. Meyers testified that this conduct was harmful. See Martin, 661 N.W.2d at 638 (observing that sexually motivated stalking behavior amounts to course of harmful sexual conduct). Although both experts testified that Stone’s other interactions with young girls, including the incident in which he brandished a knife, were sexual in nature, the district court found that they were not. The district court acts within its discretion in determining the credibility of expert testimony, and we defer to those assessments. See Joelson, 385 N.W.2d at 811 (stating that district court’s “evaluation of credibility is of particular significance”); see also Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970) (noting that appellate courts should defer to district court determinations of weight and credibility of expert evidence). We therefore accept the district court’s findings that Stone’s sexual acts included the repeated assaults on KS, the assault on KMT, and the sexual comment directed at the young girl in violation of his probation.

Having concluded that these incidents qualify as harmful sexual conduct, we now consider whether the evidence clearly and convincingly established a course of harmful sexual conduct. The district court’s finding that the conduct did not form a course of conduct was based on its legal conclusion that the conduct must constitute similar acts to be considered part of a course. This finding is therefore invalidated by our legal determination that the plain meaning of the statute requires that each act must constitute harmful sexual conduct but does not require that the harmful sexual conduct be precisely the same type or demonstrate a degree of similarity other than what is necessary to establish that it is harmful sexual conduct.

The evidence is uncontradieted that, although many of Stone’s aggressive interactions with young girls did not involve sexual relations, these acts were nonetheless part of a course of harmful sexual conduct. The experts concluded that his behavior establishes a pattern of fixation on young girls and that his actions constitute a cycle of sexual abuse that is habitual and chronic. In formulating this opinion, they relied on the uncontradicted evidence of his repeated contact with young girls in violation of his probation and a restraining order, the vulnerability of the girls, and the continuation of this conduct, including the assault on KMT, after he had completed a treatment program.

Both experts concluded that, even accepting Stone’s less inculpatory versions of the incidents involving KS and KMT, these incidents of sexual misconduct in the context of his fixation on, and his aggressive conduct toward, young girls established a course of harmful sexual conduct. No evidence contradicted the expert testimony or the specific incidents on which the expert witnesses based their opinions, and, aside from commenting on their reliance on police records, the district court did not discount their opinions or credibility. The record establishes that the state met its burden to show by clear and convincing evidence that Stone engaged in a course of harmful sexual conduct. See Barrera v. Muir, 553 N.W.2d 104, 107 (Minn.App.1996) (recognizing conclusive force of medical testimony when it is positive, consistent, unimpeached, and uncontradicted), review denied (Minn. Oct. 29, 1996).

II

In considering the third statutory element for commitment as an SDP, the district court concluded that Stone is very likely to engage in harmful sexual conduct in the future. We view the evidence in the light most favorable to this conclusion. In re Linehan, 557 N.W.2d 171, 189 (Minn.1996) (Linehan III), cert. granted, judgment vacated and case remanded, 522 U.S. 1011, 118 S.Ct. 596, 139 L.Ed.2d 486 (1997), aff'd on remand, 594 N.W.2d 867 (Minn.1999). To satisfy the third statutory element and to allow commitment as an SDP, the state must establish that Stone is “highly likely [to] engage in harmful sexual acts in the future.” Linehan IV, 594 N.W.2d at 876. Regardless of whether the state seeks commitment as an SDP, which requires an examination of the likelihood that the offender will reof-fend, or as an SPP, which depends on a conclusion of future dangerousness, the court must consider six factors. Linehan III, 557 N.W.2d at 189. When a court considers the probability that an offender will engage in future harmful sexual conduct, the court must evaluate: (1) the offender’s demographic characteristics; (2) the offender’s history of violent behavior; (3) the base-rate statistics for violent behavior among individuals with the offender’s background; (4) the sources of stress in the offender’s environment; (5) the similarity of the present or future context to those contexts in which the offender used violence in the past; and (6) the offender’s record of participation in sex-therapy programs. Linehan I, 518 N.W.2d at 614.

The two court-appointed experts concluded that each of these commitment factors had been met. In considering Stone’s demographic characteristics, the first factor, the experts concluded that Stone’s age and lack of family support indicate that he is in a demographic likely to reoffend. On the second factor, they determined that he has a history of violent behavior based on his use of a knife to threaten a girl and the inherently violent nature of sexual assaults. For the third factor, the experts’ analysis of the base-rate statistics indicates a high likelihood of reoffending, with a twenty-five-year recidivism rate ranging from thirty-nine to fifty-two percent. The experts concluded that for the fourth factor, Stone will face stress related to his living arrangements, his repeated violations of the law, the implications of being labeled a sex offender, and the presence of his girlfriend’s young child. On the fifth factor, the experts noted that Stone is demonstrably incapable of learning from his mistakes and that he places himself in situations involving drugs, alcohol, and young girls, which are circumstances in which he is likely to reoffend. Finally, the expert witnesses stated that, although Stone completed a sexual-offender treatment program when he was thirteen, they consider him to be an untreated offender because he reoffended after the program and because he did not have a structured plan to avoid reoffending.

In reaching them conclusions, the expert witnesses testified they did not limit their analysis to the six Linehan factors, but also relied on a number of observations and psychological tests that show Stone to be highly likely to reoffend. They observed that his chemical dependence, his adolescent antisocial behavior, and his posttreatment sexual assault increase the likelihood that he will reoffend and that these disorders and chemical-abuse problems adversely affect his ability to control his sexual impulses. See Linehan IV, 594 N.W.2d at 876-77 (holding that record supported finding that offender lacked adequate control over his sexually harmful behavior when he showed continuing sexual attraction to young females, refused to participate in offered substance abuse treatment, and acted aggressively toward staff while confined).

The results of four different psychological tests confirm their observations. The first two tests, the MnSOST-R and the Static-99, which the expert witnesses viewed as characteristically underestimating the likelihood of reoffense, show, respectively, that Stone had a fifty-nine-percent chance of reoffending within six years and a forty-percent chance of reoffending in five years. On these tests, the two expert witnesses assigned Stone a score that indicates he is highly likely to reof-fend. On the third test, the Hare PCL-R, Dr. Marshall assigned Stone a score of twenty-two, which corresponds to a moderate level of psychopathy, and Dr. Meyers assigned Stone a score of thirty-five. On the fourth test, the SVR-20, Dr. Marshall assigned him a score of fourteen, which represents a moderate-to-high risk óf reof-fending. After observing Stone testify and after reexamining her scoring on direct and cross-examination, Dr. Marshall stated that she had scored Stone conservatively and would likely rate him at a high risk of reoffending. Dr. Meyers and the doctor who conducted the initial psychological examination of Stone both classified him as a high risk under this test.

The expert-witness testimony and the results of the application of the reoffense factors provided clear and convincing evidence that Stone is highly likely to reof-fend. The district court’s conclusion that Stone is likely to engage in harmful sexual conduct in the future is therefore supported by substantial evidence in the record.

DECISION

We conclude that clear and convincing evidence established that Stone engaged in a course of harmful sexual conduct and that he is highly likely to engage in sexual misconduct in the future. The state therefore proved the statutory elements for commitment as a sexually dangerous person.

Reversed.


author: SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Scott Evan DAVIS, Appellant.
    No. A05-857.
    Court of Appeals of Minnesota.
    April 11, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Hastings, MN, for respondent.
    Derek A. Patrin, Meaney & Patrin, P.A., Hopkins, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; SHUMAKER, Judge; and HALBROOKS, Judge.
   OPINION

SHUMAKER, Judge.

After receiving complaints of odors of drugs from apartment-complex employees, law-enforcement officers performed a dog sniff in a common hallway of appellant’s apartment. The dog alerted to the odor of illegal drugs. The officers then obtained and executed a search warrant and seized drugs and drug paraphernalia from appellant’s apartment. The district court denied appellant’s motion to suppress the evidence seized from the search. On appeal, appellant argues that the dog sniff was a search that required probable cause or, alternatively, that a reasonable, articu-lable suspicion did not exist. We affirm.

FACTS

In August 2004, employees of the apartment complex in which appellant Scott Evan Davis resided informed agents of the Dakota County Drug Task Force that they had observed activated growing lights in Davis’s apartment and believed he was growing marijuana. They also stated that they had attempted to investigate a water leak inside Davis’s apartment but that he did not permit them to enter. According to the search-warrant application, a drug-sniffing dog was brought to the apartment complex to “investigate the odor of narcotics on the first floor” and alerted to the presence of illegal drugs at the “threshold of [Davis’s] apartment.” Based upon the observations of the apartment-complex employees and the dog’s alert, agents were issued a no-knock search warrant. The agents executed the warrant on Davis’s apartment using a key provided by apartment-complex management. The agents discovered and seized marijuana, drug paraphernalia, a mushroom-growing kit, and a handgun. Davis was arrested and charged with controlled-substance crimes for possession of marijuana and drug paraphernalia.

Davis brought a motion to suppress the evidence, alleging that it was obtained in violation of his federal and state constitutional rights. The district court denied Davis’s motion and concluded that there was (1) a reasonable, articulable suspicion of illegal activity to support “using a drug-sniffing canine in the common hallway put-side [Davis’s] apartment” and (2) adequate probable cause, based on the dog sniff and the employees’ observations of the growing lights, to support the issuance of a search warrant of his apartment. Davis then entered a not-guilty plea, submitted the matter to the district court under State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), and was found guilty of controlled-substance crimes for possession of marijuana and drug paraphernalia. The district court imposed sentence, then stayed the sentence pending appeal, and Davis appealed the district court’s denial of his motion to suppress the evidence.

ISSUES

1. Does use of a drug-sniffing dog in the common hallway of an apartment building constitute a search that requires probable cause under the federal and state constitutions?

2. If probable cause is not required, did a reasonable, articulable suspicion exist to conduct the dog sniff in the common hallway of the apartment building?

ANALYSIS

I.

Davis first argues that probable cause must exist before law enforcement can conduct a dog sniff “at [his] apartment door.” The district court decided that the “more persuasive cases have found that a canine sniff of a common hallway in an apartment building has Fourth Amendment implications and must be supported by reasonable articulable suspicion.” Davis bases his argument on the premise that a residence has a greater privacy protection against searches than a seized vehicle or a storage unit. He concludes that, because probable cause should be required, the warrantless dog sniff violated his federal and state constitutional rights, and the evidence seized as a result of the warrant should be suppressed.

When reviewing pretrial orders on motions to suppress evidence, appellate

courts “independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). Under the Fourth Amendment, whether a dog sniff is a search depends on (1) the level of a person’s expectation of privacy in the place where the sniff occurs and (2) the level of intrusiveness of the sniff. State v. Carter, 697 N.W.2d 199, 207 (Minn.2005) (citing United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983) (holding that a dog sniff of the exterior of luggage in a public airport does not constitute a search under the Fourth Amendment)). The intrusiveness of a dog sniff is minimal because it does not require exposure of the contents of the item being searched or noncontra-band items that would otherwise remain hidden from view. Place, 462 U.S. at 707, 103 S.Ct. at 2644-45. It is also “much less intrusive than a typical search ... [because it] discloses only the presence or absence of narcotics, a contraband item.” Id. See also Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (reaffirming Place’s labeling of a dog sniff as “sui generis” and ruling that a “dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment”).

The expectation-of-privacy element, however, has been subjected to fine line drawing. The United States Supreme Court has found diminished expectations of privacy in luggage in a public airport and in a barn that is outside of a home’s “curtilage.” See Place, 462 U.S. at 706-07, 103 S.Ct. at 2644; United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987). The Eighth Circuit Court of Appeals has concluded that a person does not have a “reasonable expectation of privacy in the hallway of [an] apartment building.” United States v. Eisler, 567 F.2d 814, 816 (8th Cir.1977). “[C]ommon hallways ... [are] available for the use of residents and their guests, the landlord and his agents, and others having legitimate reasons to be on the premises.” Id. The Eisler court found irrelevant the fact that the building had secure entrances — the “locks on the doors to the entrances of the apartment complex were to provide security to the occupants, not privacy in common hallways.” Id. See also United States v. McGrane, 746 F.2d 632, 634 (8th Cir.1984) (relying on Eisler and holding that a person has no expectation of privacy in a “common area ... accessible to all tenants and the landlord” of an apartment building).

We conclude that a dog sniff in a common hallway is not a Fourth Amendment search. Davis does not have a reasonable expectation of privacy in the common hallway of the apartment building. The dog sniffs level of intrusiveness was minor. First, the search-warrant application refers to “the odor of narcotics on the first floor.” This observation was made before any dog sniff and suggests that the odor of narcotics existed in the hallway and was detectable through a human being’s sense of smell. Second, we disagree with Davis’s characterization that the dog “detected] the presence of illegal narcotics inside [Davis’s] home.” The evidence in the record shows that the dog sniffed only in the common hallway. The detected scent may have originated from within Davis’s apartment, but it was detected outside the apartment by the dog.

Davis relies on United States v. Thomas, 757 F.2d 1359 (2d Cir.1985), to support his proposition that the dog sniff required probable cause. Thomas held that “because of [a defendant’s] heightened expectation of privacy inside his [apartment], the canine sniff at his door constituted a search.” Id. at 1367. We disagree with the reasoning of Thomas, a decision which has been widely discredited by several courts. See, e.g., United States v. Reed, 141 F.3d 644, 649-50 (6th Cir.1998) (noting that “Thomas seems to stand alone in its pronouncement that a canine sniff may constitute an unreasonable search” and “ignores the Supreme Court’s determination in Place that a person has no legitimate privacy interest in the possession of contraband”); United States v. Lingenfelter, 997 F.2d 632, 638 (9th Cir.1993) (providing that Thomas “rests on an incorrect statement of the law”); United States v. Colyer, 878 F.2d 469, 475 (D.C.Cir.1989) (stating that the “correctness of the Thomas decision is called into question by its assertion that the defendant ‘had a legitimate expectation that the contents of his closed apartment would remain private’ ”); State v. Miller, 256 Wis.2d 80, 647 N.W.2d 348, 351 n. 5 (2002) (stating that Thomas is “questionable given Place’s broad rationale”).

But our analysis does not end with the Fourth Amendment. We must also determine whether the dog sniff was a search under the Minnesota Constitution. The Minnesota Supreme Court has addressed dog sniffs on two recent occasions. It first ruled that a dog sniff of the exteri- or of an automobile legitimately stopped for a traffic offense is not a search requiring probable cause. State v. Wiegand, 645 N.W.2d 125, 133 (Minn.2002). The court noted that the privacy expectation surrounding an automobile is less than that of a home and that “an exterior sniff of an automobile does not require entry into the car and is not designed to disclose • any information other than the presence or absence of narcotics.” Id. at 131 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000)). But the supreme court also noted that a dog sniff “detects something that the public generally cannot detect” and that there is “some intrusion into privacy interests.” Id. at 134. It concluded that an officer cannot conduct a dog sniff “around a motor vehicle stopped for a routine equipment violation without some level of suspicion of illegal activity. While the officer need not have probable cause, the officer may not be motivated by ‘mere whim, caprice, or idle curiosity.’ ” Id. (quoting State v. Pike, 551 N.W.2d 919, 921-22 (Minn.1996)). The court concluded that an “officer must have a reasonable, articulable suspicion of drug-related criminal activity” to lawfully conduct a dog sniff around the exterior of a motor vehicle. Id. at 137. The majority specifically rejected the special concurrence’s “bald conclusion ... that the ‘level of intrusion resulting from a dog sniff is significant and requires probable cause.’ ” Id. at 131 n. 5.

In 2005, the supreme court addressed a dog sniff around the exterior of an individual storage unit at a self-storage facility. State v. Carter, 697 N.W.2d 199 (Minn.2005). The court stated that “the expectation of privacy under the Fourth Amendment is less for a storage unit than for a home” because the “unit is not a place where a person seeks refuge or conducts frequent personal activities.” Id. at 209. It concluded that a “dog sniff in the area immediately outside a self-storage unit is not a search under the Fourth Amendment.” Id. But the supreme court also concluded that the dog sniff was a search under the Minnesota Constitution that required a reasonable, articulable suspicion of drug-related activity. “[A] person’s expectation of privacy in a self-storage unit is greater for purposes of the Minnesota Constitution than it has been determined to be under the Fourth Amendment.” Id. at 210-11.

[A] narcotics detection dog may be deployed to test for the presence of narcotics [in the area outside a storage unit] where:
1. the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and
2. the police are lawfully present in the place where the canine sniff is conducted.

Id. at 212. This standard properly balances a “person’s privacy interests against the public’s interest in effective criminal investigations.” Id. at 211.

We conclude that a dog sniff in the common hallway of an apartment building is a search under the Minnesota Constitution that requires only a reasonable, artic-ulable suspicion. This conclusion is compelled by the supreme court’s statement that the “permissibility of the use of dogs in other settings for other purposes must be evaluated based on whether the privacy expectation is one society is willing to deem reasonable, and not on subjective perceptions of the intrusiveness of the investigative method.” Wiegand, 645 N.W.2d at 131 n. 5. A person does not have a reasonable expectation of privacy in the common hallway of an apartment building.

Davis relies on the United States Supreme Court’s decision in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), to support his argument that probable cause is required for a dog sniff in a common hallway. Kyllo held that the use of a thermal-imaging device to detect heat levels inside a home was a search under the Fourth Amendment that required probable cause. Id. at 40, 121 S.Ct. at 2046. In Wiegand, the Minnesota Supreme Court noted that the reasoning of Kyllo “suggests that a dog sniff of a home might lead a court to conclude that a search requiring probable cause took place.” 645 N.W.2d at 130. Kyllo, however, involved an investigative technique that detected infrared radiation inside a home. 533 U.S. at 29, 121 S.Ct. at 2041. Here, the dog detected the odor of narcotics that emanated outside Davis’s apartment. There was no intrusion into the interior of Davis’s apartment. Rather, his illegal activity inside manifested itself through an odor that had escaped into a common area.

II.

Alternatively, Davis argues a reasonable, articulable suspicion did not exist for a dog sniff. The district court ruled that the information received from the apartment-complex employees provided a reasonable, articulable suspicion to justify the sniff.

Reasonable, articulable suspicion is determined by reviewing the totality of the circumstances. State v. Martinson, 581 N.W.2d 846, 852 (Minn.1998). A police officer must “articulate something more than an ‘inchoate and unparticularized suspicion or hunch.’ ” Id. at 850. “The principal components of a determination of reasonable suspicion will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion.” Id. Moreover, the “officer must have a reasonable, articulable suspicion of drug-related criminal activity” to lawfully conduct a dog sniff. Wiegand, 645 N.W.2d at 137.

The law-enforcement officer first learned from employees of the apart-

ment complex that activated growing lights had been observed in Davis’s apartment and that Davis would not permit their entry into his apartment to investigate a possible water leak. Private-citizen informants are “presumed to be reliable.” Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980). “When evaluating tips, courts are to ‘make a practical, common-sense decision whether, given all the circumstances ... including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” State v. Burbach, 706 N.W.2d 484, 490 (Minn.2005) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The tip “must provide at least some specific and articulable facts to support the bare allegation of criminal activity.” Rose v. Comm’r of Pub. Safety, 637 N.W.2d 326, 329 (Minn.App.2001). The employees provided specific information that they had observed activated growing lights inside Davis’s apartment and believed he was growing marijuana. This is more than supplying “hearsay evidence”; the employees had physically observed the activated growing lights. Moreover, the search-warrant application indicates that a person had detected the odor of narcotics on the first floor of the apartment complex. This evidence provides a reasonable, articulable suspicion of drug-related activity that is not based on the officer’s hunch, and the dog sniff did not violate Davis’s rights under the Minnesota Constitution.

Davis argues that the presence of activated growing lights could only raise a hunch of drug-related activity and is no different than a marijuana symbol on a key chain. See State v. Tomaina, 627 N.W.2d 338, 341 (Minn.App.2001). A key chain has no plausible link to drug-related activities. Growing lights, however, are used in drug-related activities. See State v. Olson, 482 N.W.2d 212, 214 (Minn.1992) (growing lights used to grow marijuana in a barn); State v. Velishek, 410 N.W.2d 893, 895 (Minn.App.1987) (growing lights used to grow marijuana in a basement). Davis also argues that the apartment-complex employees observed only growing lights but not the “presence of any illegal drugs or paraphernalia.” An informant, however, is not required to observe criminal activity. The informant only needs to provide facts sufficient to support a “bare allegation of criminal activity.” Rose, 637 N.W.2d at 329.

We note the difficulty under which law enforcement operates in attempting to determine whether a dog sniff is a search under the federal or state constitutions. Perhaps our decision today offers clear guidance in the context of an apartment complex: a dog sniff in the common hallway of an apartment is permissible so long as law enforcement has a reasonable, artic-ulable suspicion of drug-related activity.

DECISION

'The dog sniff in the common hallway of the apartment complex was not a search under the Fourth Amendment. The dog sniff was a search under the Minnesota Constitution that required a reasonable, articulable suspicion of drug-related activity. A reasonable, articulable suspicion existed from the information provided by the apartment-complex employees that appellant had activated growing lights in his apartment.

Affirmed.

      . "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.” Minn. Const, art. 1, § 10.

      . In Carter, the supreme court first "exam-ínete!] whether evidence other than the results of the dog sniff provided a substantial basis for probable cause supporting the warrant for the storage-unit search.” 697 N.W.2d at 204. If independent probable cause existed, the court "would affirm appellant's conviction and save the constitutional questions concerning the dog sniff for another day.” Id. The court stated that it would "look only to the information presented in the affidavit” accompanying the search warrant. Id. The supreme court noted that the three factors other than the dog sniff listed in the search-warrant application (appellant's criminal record, a police officer's earlier observations and suspicions, and the storage-facility manager's statement regarding appellant's rental of and frequent visits to the storage unit) were not enough, under the totality of the circumstances, to establish the " ‘direct connection' between the factors and the site” needed for probable cause. Id. Here, four factors exist: Davis’s criminal record, statements regarding the growing lights in Davis’s apartment, Davis's refusal to permit entry by the employees, and the search-warrant application’s statement that the drug-sniffing dog was brought to "investigate the odor of narcotics on the first floor.” Because neither party briefs whether these facts constitute probable cause without the dog sniff, we decline to address it on appeal. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982) (stating that issues not briefed on appeal are waived).


author: SANDSTROM, Justice.

text:
    2006 ND 62
    STATE of North Dakota, Plaintiff and Appellee v. William J. MORAN, Defendant and Appellant.
    No. 20050244.
    Supreme Court of North Dakota.
    March 29, 2006.

      Michael R. Hoffman, Bismarck, N.D., for defendant and appellant.
    Julie Ann Lawyer, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
   SANDSTROM, Justice.

[¶ 1] William Moran appeals his jury conviction for driving under the influence of an intoxicating liquor (“DUI”). He argues the district court should have dismissed the charge because his right to a speedy trial was violated and the conviction should be reversed because the State’s closing argument contained improper statements. Holding that Moran’s speedy trial rights have not been violated and the State’s closing argument did not contain obvious errors, we affirm.

I

[¶ 2] Moran was cited for DUI in May 1996. He was ordered to appear in municipal court. He did not appear, and a bench warrant was issued for his arrest. The municipal court dismissed the case in August 1996, and the case was referred to the Burleigh County State’s Attorney for prosecution. On October 1, 1996, the State filed a criminal complaint against Moran in state district court, and a warrant for his arrest was issued eight days later.

[¶ 3] On October 8, 1999, the warrant was served on Moran. He signed a promise to appear in court on October 19, 1999. That appearance was changed to October 26. He did not appear on October 26, and his court appearance was rescheduled for November 9. When he failed to appear in November, a bench warrant was issued for his arrest.

[¶ 4] Moran was not arrested until February 2005. Moran moved to dismiss the case under N.D.R.Crim.P. 48(b), article I, section 12 of the North Dakota Constitution, and the Sixth Amendment of the United States Constitution, claiming he was not afforded his right to a speedy trial. His motion was denied. In July 2005, he was tried before a jury and found guilty of DUI.

[¶ 5] On appeal, Moran argues that he was not afforded his right to a speedy trial and that the State’s closing argument contained improper statements. The State argues the delay in prosecution was caused by Moran’s evasion of law enforcement and its closing argument was proper.

[¶ 6] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.RApp.P. 4(b), and this Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

[¶ 7] Moran argues the delay between October 1, 1996, when the criminal complaint was filed, and October 8, 1999, when the warrant was served, violated his right to a speedy trial. He concedes the delay from October 8, 1999, until trial in 2005 was attributable to him and cannot support a speedy trial claim.

[¶ 8] The right to a speedy trial is guaranteed in the Sixth Amendment of the United States Constitution and article 1, section 12 of the North Dakota Constitution. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court developed a four factor test to decide whether a defendant’s right to a speedy trial has been violated: (1) the length of the delay, (2) the reason for the delay, (3) the accused’s assertion of his right to a speedy trial, and (4) the prejudice to the accused. State v. Bergstrom, 2004 ND 48, ¶ 15, 676 N.W.2d 83. No single factor is controlling, and all factors must be weighed. Id. (quoting Barker, at 533, 92 S.Ct. 2182). For speedy trial issues, appellate courts review the district court’s decision de novo, with the district court’s findings of fact reviewed under a clearly erroneous standard of review. See State v. Cham, 680 N.W.2d 121, 124 (Minn.Ct.App.2004) (“Because appellate courts review constitutional questions de novo and Cham’s claim raises a constitutional question, we conclude that the district court’s speedy trial determination is subject to de novo review.”); United States v. Cardona, 302 F.3d 494, 497 (5th Cir.2002) (“We review for clear error a district court’s factual findings in applying the elements of this balancing test.”). Rule 48(b), N.D.R.Crim. P., grants the district court authority to dismiss a criminal case when there has been unnecessary delay:

If there is unnecessary delay in presenting the charge to a grand jury or in filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued, or if there is unnecessary-delay in bringing a defendant to trial, the court may dismiss the indictment, information, or complaint.

N.D.R.Crim.P. 48(b) (N.D.R.Crim.P.48(b) was amended on March 1, 2006).

[¶ 9] The length of the delay is a triggering factor. Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). If the delay is longer than the delay usually allowed for criminal prosecutions, the delay is “presumptively prejudicial,” and a court must complete a speedy-trial analysis. Id. Traditionally, a delay of one year or more is considered presumptively prejudicial, triggering the analysis. See United States v. Titlbach, 339 F.3d 692, 699 (8th Cir.2003) (citing Doggett, at 652 n. 1, 112 S.Ct. 2686; United States v. Walker, 92 F.3d 714, 717 (8th Cir.1996)). A presumptively prejudicial delay alone does not create a speedy-trial violation, and the other factors must still be weighed. Barker, 407 U.S. at 530-31, 92 S.Ct. 2182. The delay Moran complains of was just over three years. The total delay was approximately nine years. The State concedes the delay is well past the presumptively-prejudicial point, requiring analysis of the other Barker factors.

[¶ 10] The second factor, the reason for the delay, is closely related to the first factor. Barker, 407 U.S. at 531, 92 S.Ct. 2182. The factor weighs against the State if the State engages in intentional or dilatory tactics that delay trial. Id. The factor also weighs against the State if the State is negligent by not diligently pursuing prosecution. Id. Delays caused by the defendant weigh against him. State v. Ochoa, 2004 ND 43, ¶35, 675 N.W.2d 161. The government must actively try to serve a warrant, or it risks being negligent for not diligently pursuing the accused. See Doggett, 505 U.S. at 652-53, 112 S.Ct. 2686 (the Government’s assumption that the defendant absconded from the country, rather than actively pursuing him, was negligence, weighing against the Government).

[¶ 11] The district court stated, “This Court concludes that the extensive delay involved in bringing this case to trial cannot be attributable to the State, as claimed by the defendant; that the October 1996 warrant was active demonstrated by virtue of its execution, albeit three years later.” The court also stated, however, “no facts have been presented to the Court to establish efforts to serve the warrant or reasons for the delay in executing the warrant over the three year period.” Although the court’s analysis is ambiguous, the court apparently believed each party bore some responsibility for the total delay.

[¶ 12] On May 13, 1996, Moran failed to appear as ordered in municipal court, and a bench warrant was issued. The district court noted Moran caused this initial delay in municipal court. He knew he had been charged with DUI in municipal court, and he could not rationally believe the charge had been dismissed or otherwise disposed of without being notified by the municipal court. Therefore, the court correctly found this delay was caused by Moran.

[¶ 13] The municipal case was dismissed and referred to the Burleigh County State’s Attorney. A complaint was filed and an arrest warrant issued, but the warrant was not served until October 1999. Moran claims he knew nothing of the district court charge. The district court correctly found that the record contains no evidence of measures taken by law enforcement to serve the warrant. At the hearing for the motion to dismiss, the State argued that merely issuing the warrant shows it was diligently pursuing Moran. Under Doggett, however, the State’s inactive approach to serve the warrant for three years constitutes negligence. 505 U.S. at 652-53, 112 S.Ct. 2686. Therefore, the State bears responsibility for the delay between October 1996 and October 1999 by not actively pursuing Moran.

[¶ 14] Finally, neither party disputes Moran caused the final delay, lasting approximately six years. The district court correctly noted when referencing the final six year delay, “There is no dispute that most of the delay in bringing the matter to trial has been brought about by the defendant’s failure to respond, and, in effect, avoiding prosecution by failing to appear after posting bond or signing promises to appear.” Therefore, each party shares some responsibility for the delay.

[¶ 15] The third factor is the defendant’s proper assertion of his right to a speedy trial. Barker, 407 U.S. at 531, 92 S.Ct. 2182. “[F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532, 92 S.Ct. 2182. When a defendant does not know of the charge against him, not asserting the right until after arrest cannot weigh against him. Doggett, 505 U.S. at 654, 112 S.Ct. 2686.

[¶ 16] The district court did not address this factor, so we do not know if the court considered it. Regardless, we conclude the third factor weighs against Moran. He argues he asserted his right in due course by moving to dismiss in 2005, even though he did not assert his right in 1999 when he was first arrested. He claims, and the district court agreed, he did not know of the charge against him until his arrest in 1999.. Assuming Moran did not know of the charge against him, he still did not timely assert his right to a speedy trial. Rather than asserting his right in 1999 when he first could have, he evaded law enforcement for more than five years. As noted in Barker, Moran’s failure to assert his right makes it difficult to prove he was denied a speedy trial. 407 U.S. at 532, 92 S.Ct. 2182. Therefore, Moran failed to properly assert his right to a speedy trial, choosing to elude law enforcement instead.

[¶ 17] The final factor, prejudice to the defendant, has three interests it seeks to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. The last is the most important. Id. Because great delays make a defendant’s showing of prejudice more difficult to make, the defendant does not always have to affirmatively prove how his case has been eroded. Doggett, 505 U.S. at 655, 112 S.Ct. 2686. Moran was not incarcerated for a long period of time prior to trial, so the first interest cannot apply to him. He claims he was unaware of the charges against him, so he could not have suffered any anxiety or concern over the charge. Therefore, the second interest cannot apply to him, leaving only an impaired defense as the interest in need of protection.

[¶ 18] Moran argues that when there has been long delays, prejudice may be conclusively presumed. See Cardona, 302 F.3d at 497 (“ ‘Depending on how heavily the first three factors weigh for or against the defendant, prejudice is presumed in some cases, relieving the defendant of any burden to show actual prejudice. One lesson from Doggett is that the longer the delay, the greater the presumption of prejudice.’ ” (quoting United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir. 2002))). Doggett allowed for a presumption of prejudice because “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” 505 U.S. at 655, 112 S.Ct. 2686. The Court also said, “While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, ... it is part of the mix of relevant facts, and its importance increases with the length of delay.” Id. at 655-56, 112 S.Ct. 2686 (citing United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986)). When the State diligently pursues the defendant, the defendant must prove actual prejudice. See Doggett, at 656, 112 S.Ct. 2686 (“if the Government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail. Indeed, that conclusion would generally follow as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense.”). When the State intentionally delays prosecution because of a bad-faith motive, prejudice is presumed. See id. (“Barker stressed that official bad faith in causing delay will be weighed heavily against the government, ... and a bad-faith delay the length of this negligent one would present an overwhelming case for dismissal.”) (internal citation omitted). When the State has been negligent by not diligently pursuing the defendant, such as in this case, the weight of the other factors and the length of the delay controls whether prejudice must be actual or may be presumed. Doggett, at 657, 112 S.Ct. 2686 (the government’s failure to diligently pursue the defendant for six years caused the delay and weighed heavily in favor of presuming prejudice). Therefore, prejudice from negligent delay is not conclusive, but depends on the other factors, including the length of the delay.

[¶ 19] Under the facts of this case, the first three factors do not favor a presumption of prejudice. The district court correctly concluded Moran must show actual prejudice. Although the total delay of approximately nine years was certainly sufficient to presume prejudice under Doggett, almost six years of that delay was caused by Moran. Furthermore, as discussed above, Moran also holds some responsibility for the delay between his 1996 citation and his 1999 arrest. Finally, he did not assert his right when he first could have in 1999. Therefore, the factors do not weigh heavily enough in Moran’s favor to support a presumption of prejudice, and the district court properly found that he must prove actual prejudice.

[¶ 20] “To establish actual prejudice, a defendant must ‘factually link her loss of liberty with any specific prejudice to her right to a fair trial.’ ” City of Fargo v. Thompson, 520 N.W.2d 578, 580 (N.D. 1994) (quoting City of Jamestown v. Erdelt, 513 N.W.2d 82, 85 (N.D.1994)). “A defendant ‘must show that lost evidence or testimony would have been helpful to his defense, that the evidence would have been significant, and that the evidence or testimony was lost as a result of the statutory deprivations of which he complains.’ ” Thompson, at 580 (quoting State v. Knoll, 322 N.C. 535, 369 S.E.2d 558, 565 (1988)).

[¶ 21] The district court correctly found Moran was not prejudiced. The arresting officer, the sole prosecution witness, remembered little about the arrest and had to rely heavily on his written report to refresh his memory during trial. The district court granted Moran’s motion in limine, excluding the Intoxilyzer report from evidence, because the State did not give Moran sufficient time to review the foundational documents. According to the State, the foundational documents used in 1996 are not the same as the foundational documents used today. The 1996 documents were archived at the State Crime Lab. The State did not receive and did not give Moran copies of the documents until shortly before the trial began. Because of the short time Moran had to review the documents, the court excluded the Intoxi-lyzer report. If anything, the delay helped Moran by keeping potentially damaging evidence out and forced the prosecution’s witness to rely heavily on reports rather than memory. Moran did not call any witnesses of his own nor did he complain that he had to forgo evidence because of the delay. Moran’s counsel stated the day of the trial that the only evidence he planned to present was through cross-examination of the arresting officer. Therefore, his case could not have suffered any harm a speedy trial seeks to avoid. The district court did not err when it found Moran was not prejudiced.

[¶ 22] Moran’s reliance on United States v. Cardona, 302 F.3d 494 (5th Cir. 2002), is misplaced. In Cardona, the defendant was indicted, and his arrest warrant sat idle for five years. Id. at 496. The record contained no evidence that the defendant knew of the charges against him until his arrest, so the second and third factor weighed in his favor. Id. at 498. The court in Cardona concluded the first three factors weighed heavily for the. defendant, so a presumption of prejudice was appropriate. Id. at 498-99. In the present case, Moran was originally arrested and notified of when to appear. Although the record is unclear whether Moran knew of the district court charge between 1996 and his arrest in 1999, he knew of a charge against him in municipal court and he knew of the district court charge after his arrest in 1999. After his arrest, he chose to run rather than assert his right. The third factor weighs against him, and the three factors together do not weigh heavily in Moran’s favor. A presumption is inappropriate.

[¶ 23] The district court did not specifically enunciate its weighing of each Barker factor individually. Although we are able to understand the district court’s factual basis used to make its decision, we encourage an analysis of each Barker factor when analyzing a speedy trial claim. “We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.... In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” Barker, 407 U.S. at 533, 92 S.Ct. 2182 (emphasis added). Although clear weighing of each factor is preferred, the district court did not err in making its findings.

[¶ 24] We refuse Moran’s invitation to reward him for successfully playing “catch me if you can” with law enforcement. Just as a fugitive cannot order law enforcement to “stop chasing me” and expect it to comply, a fugitive cannot be rewarded for successfully evading law enforcement. The district court’s order denying Moran’s motion to dismiss is affirmed.

Ill

[¶ 25] Moran argues that the State committed obvious error by not referring to its burden of proof beyond a reasonable doubt and by asking the jury to hold Moran responsible for his actions. He claims this allowed the jury to believe the burden was less than proof beyond a reasonable doubt.

[¶26] “Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” N.D.R.Crim.P. 52(b). “But the power to notice obvious error, whether at the request of counsel or on the court’s own motion, is one the courts should exercise cautiously and only in exceptional circumstances. The power should be exercised only where a serious injustice has been done to the defendant.” N.D.R.Crim.P. 52, Explanatory Note. This Court may notice claimed error “if there was (1) error, (2) that is plain, and (3) affects substantial rights.” State v. Clark, 2004 ND 85, ¶ 6, 678 N.W.2d 765.

[¶ 27] A trial court has discretion over closing arguments, and this Court “will not reverse on the ground the prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown.” Clark, 2004 ND 85, ¶ 7, 678 N.W.2d 765. Unless the error was fundamental, the defendant must prove the prosecutor’s comments were improper and prejudicial. Id. “To be prejudicial, improper closing argument must have stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence.” Id. When a defendant argues the prosecution’s comments somehow affected the prosecution’s burden of proof, this Court has held the trial court’s instruction on proof beyond a reasonable doubt and its instruction that arguments by counsel are not evidence have minimized any prejudice suffered by the defendant. Id. at ¶¶ 13-16 (discussing State v. Skorick, 2002 ND 190, ¶¶ 14-17, 653 N.W.2d 698; State v. Marks, 452 N.W.2d 298, 299 (N.D.1990)). “We presume the jury follows the judge’s instructions.” Skorick, at ¶ 17.

[¶ 28] In its closing argument, the State said, “At the beginning the Judge told you all the essential elements the State has to prove in order for you to find the defendant guilty.” The State also commented, “I’m asking you to hold him responsible for that.” Moran discussed the State’s burden of proof at length. The judge instructed the jury that the State had to prove all offense elements beyond a reasonable doubt, what a reasonable doubt was, and that arguments made by trial counsel are not evidence. This Court is allowed to presume that the jury followed those instructions. The State never referenced a lesser burden of proof, so it did not err. The State has no duty to reiterate the court’s properly instructed burden of proof. Furthermore, the State’s remarks about holding Moran responsible for his actions did not reference Moran’s plea of not guilty or the fact that he did not testify. See United States v. Smith, 934 F.2d 270, 275 (11th Cir.1991) (the prosecution’s statement that the defendant “ ‘has not taken responsibility for his actions’ because he refused to plead guilty, whereas his co-defendants entered guilty pleas” was harmless error because the court provided a curative instruction explaining the statement was improper). Therefore, the State did not err. The statements did not prejudice Moran because the State’s comments simply asked the jury to reach a conclusion based on the State’s theory of the case. The State committed no error by not restating its burden of proof beyond a reasonable doubt or by asking the jury to hold Moran responsible for his actions.

IV

[¶ 29] The judgment of the district court is affirmed.

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

      . See Catch Me If You Can (DreamWorks SKG 2002).
      FRANK ABAGNALE, JR.: Stop chasing me!
      CARL HANRATTY: I can't stop, it's my job.