text:
    STATE of Minnesota, Respondent, v. Tijuan Donte JOHNSON, Appellant.
    No. C7-02-960.
    Court of Appeals of Minnesota.
    Nov. 26, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, MN,. for respondent.
    Tijuan Donte Johnson, Moose Lake, MN, pro se appellant.
    Considered and decided by HUDSON, Presiding Judge, PETERSON, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant challenges the district court’s double durational upward sentencing departure from the presumptive sentence and the court’s imposition of consecutive sentences for offenses committed during the same behavioral incident. Because the district court’s findings were sufficient to depart from the presumptive sentence, we affirm this ruling. But we reverse and vacate appellant’s sentence for second-degree assault because the district court im-permissibly sentenced appellant for multiple offenses committed against the same victim during a single behavioral incident.

FACTS

On June 14, 1998, appellant sexually and physically assaulted a young woman, D.L., and physically assaulted the young woman’s boyfriend, A.H., in a St. Cloud apartment. State v. Johnson, 617 N.W.2d 440, 441 (Minn.App.2000). In a bench trial following a stipulation of facts pursuant to State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980), the district court convicted appellant of criminal sexual conduct in the first degree pursuant to Minn.Stat. § 609.342, subds. 1(c), 2 (1998), and assault in the second degree pursuant to Minn. Stat. § 609.222, subd. 1 (1998). The district court sentenced appellant to consecutive sentences of 172 and 36 months on the respective charges, for a total of 208 months. As support for the upward departure from the sentencing guidelines, the district court cited the following aggravating factors: (1) the female victim was treated with particular cruelty; (2) a gun was involved and used to threaten both victims; (3) the assault took place over a period of time in the victims’ apartment; and (4) a theft was involved. Johnson, 617 N.W.2d at 442.

Appellant filed a direct appeal where the only issue before this court was whether the trial court erred

in refusing to enforce a plea agreement from which the state withdrew before a plea of guilty was entered by appellant or accepted by the trial court.

Id. at 441. This court affirmed appellant’s conviction. Id. Appellant then filed a petition for postconviction relief, claiming that the district court improperly departed from the sentencing guidelines by imposing a 172-month sentence and that consecutive sentencing was not appropriate. The postconviction court denied relief to appellant on both issues. The present appeal followed.

ISSUES

I. Did appellant’s failure to assert his claims at the time of his direct appeal procedurally bar the current action?

II. Was the district court’s sentencing of appellant for two offenses committed against the same victim clearly erroneous under the single-behavioral-incident rule, Minn.Stat. § 609.035?

ANALYSIS

I.

A petitioner seeking postconviction relief has the burden of proving by a “fair preponderance of the evidence” the facts alleged in the petition. Minn.Stat. § 590.04, subd. 3 (2000). This court reviews “a postconviction court’s findings to determine whether there is sufficient evi-dentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001) (citation omitted). This court will “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous” and the district court abused its discretion. Id. (citation omitted).

The district court sentenced appellant to 172 months, a double durational upward departure from the presumptive sentence, for criminal-sexual-conduct in the first degree. Appellant argues that the district court erred in departing from the sentencing guidelines by considering aggravating factors that were elements of the underlying criminal-sexual conduct charge. Appellant also contends that the district court erred by sentencing appellant consecutively for the criminal sexual conduct and assault charges.

A postconviction court will not consider matters raised in an earlier direct appeal or known at the time of the direct appeal. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). The Knaffla rule applies if the petitioner knew or should have known about the issue at the time of appeal. Black v. State, 560 N.W.2d 83, 85 (Minn.1997). We examine each of appellant’s claims for postconviction relief in light of this standard.

(a) Sentencing departure

Appellant knew or should have known about each of his current sentencing departure arguments at the time of his direct appeal. The appropriateness of the district court’s upward departure and the factors on which the court relied were within appellant’s knowledge immediately after his conviction. Because appellant knew or should have known about these issues, his claims are barred unless an exception applies.

The exceptions to the Knaffla rule involve: (1) a claim that is so novel that the legal basis was not available on direct appeal, or (2) a claim that a petitioner did not “deliberately and inexcusably” fail to raise on direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn.1995). Even if appellant’s claims are not within one of the above exceptions and are procedurally barred, this court, in the interests of justice, may address the claims on their merits. See Boitnott v. State, 631 N.W.2d 362, 369-70 (Minn.2001).

Appellant’s assertions of error relating to his sentencing departure are not legally novel. Appellant has provided no evidence to suggest that he inadvertently failed to raise these issues in his direct appeal or that there was excusable neglect in his failure to do so. Further, appellant advances no argument that the interests of justice require consideration of’the claim.

Instead, appellant asserts that his prior direct appeal does not preclude him from arguing now that the district court improperly departed from the sentencing guidelines. He contends that Minnesota law states that petitioners cannot waive their right to a lawful sentence. State v. Pieri, 461 N.W.2d 398, 401 (Minn.App.1990).

The Pieri case is not applicable here. That case held that the terms of a negotiated plea agreement, standing alone, do not constitute a “substantial and compelling circumstance” that may be relied on by the sentencing court to justify departure from the sentencing guidelines. Id. at 400. The court stated that a plea agreement to a sentence departure does not relieve the trial court from providing justifications for the departure on the record. Id. Pieñ does not apply because there was no plea agreement and no voluntary departure from the presumptive sentence. Further, the district court supported the departure on the record by reciting the grounds for the decision. Consequently, we hold that the postconviction court did not abuse its discretion when it denied relief on this claim.

(b) Multiple sentencing

The state contends that both appellant’s sentencing departure and double sentencing arguments are barred because they were not brought during his direct appeal. Knaffla, 309 Minn. 246, 243 N.W.2d 737. Appellant counters by asserting the protection against double punishment found in Minn.Stat. § 609.035 (2000) cannot be waived. He contends that his failure to raise this issue in his direct appeal is not fatal to his current claim.

Although the Knaffla rule can potentially bar claims not raised in a defendant’s direct appeal, appellant accurately points out that a defendant cannot waive a challenge based on multiple-sentencing issues. See Knaffla, 309 Minn. 246, 243 N.W.2d 737. In State v. White, the Minnesota Supreme Court held that protections against double sentencings are not waiva-ble. White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (1974). The defendant in White waived his protection against multiple prosecutions when he did not object to his prosecution in the district court. Id. The defendant could not waive the prohibition against double sentencings, however, and the court vacated and set aside his 10-day misdemeanor sentence for illegal identification. Id.; see also Ture v. State, 353 N.W.2d 518, (Minn.1984) (holding defendant’s failure to raise the multiple sentencing issue at the time of sentencing does not constitute a waiver barring him from later raising the issue and obtaining relief); State v. King, 414 N.W.2d 214, 221 (Minn. App.1987) (vacating defendant’s sentence for assault in the third degree under the prohibition on multiple sentencing under Minn.Stat. § 609.035 (1986)).

Knaffla did not directly address the holding in White that a defendant cannot waive the prohibition against double sen-tencings. See Knaffla, 309 Minn. 246, 243 N.W.2d 737. But, because White unequivocally declared “the prohibition against double punishment cannot be waived ⅝ ⅜ we ^hat appellant cannot waive the prohibition against double punishment found in Minn.Stat. § 609.035 by failing to assert such a claim in his direct appeal. White, 300 Minn, -at 105-06, 219 N.W.2d at 93. Thus, appellant did not forfeit his right to raise his current objection regarding multiple sentences. See State v. Mendoza, 297 N.W.2d 286, 288 (Minn.1980) (holding defendant waived the issue of serial prosecution but could not forfeit multiple sentencing issue). Because appellant cannot waive the prohibition against multiple sentences, this court must address the merits of his claim that the district court erred by sentencing appellant on two offenses arising out of the same criminal act and against a common victim.

II.

Appellant contends the district court erred by sentencing him to consecutive 172 and 36-month sentences. Appellant asserts the sentencing court generally may not impose more than one sentence on a defendant who commits multiple offenses as part of a single behavioral incident. He claims the first-degree-criminal-sexual conduct offense and the second-degree assault were part of a single behavioral incident motivated by an effort to obtain a single criminal objective — the sexual assault of D.L. Appellant therefore argues that the district court may not sentence him for both the lesser-included and greater offenses.

Minnesota law provides that “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses ⅜ * Minn.Stat. § 609.035, subd. 1 (1998) (“single behavioral incident rule”). The purpose of this section is to protect a defendant convicted of multiple offenses against unfair exaggeration of the criminality of his conduct. State v. Mullen, 577 N.W.2d 505, 511 (Minn.1998).

In determining whether multiple offenses arise from a single behavioral incident, this court must consider the defendant’s singleness of purpose, i.e., whether the defendant was “motivated by a desire to obtain a single criminal objective.” State v. Chidester, 380 N.W.2d 595, 597 (Minn.App.1986), review denied (Minn. Mar. 21, 1986). We must also consider whether the offenses (1) arose from a continuous and uninterrupted course of conduct, (2) occurred at substantially the same time and place, and (3) manifested an indivisible state of mind. Id.; see also State v. Soto, 562 N.W.2d 299, 304 (Minn.1997). Until the state provides evidence that appellant’s acts were separate and distinct criminal offenses, it should be assumed that they were part of a single behavioral act. See State v. Williams, 608 N.W.2d 837, 841 (Minn.2000) (holding the state has the burden to establish by a preponderance of the evidence that the conduct underlying offenses did not occur as part of a single behavioral incident).

The present facts are very similar to those in Williams. In that case, the defendant broke into the victim’s apartment, sexually assaulted her, and then attempted to kill her. Williams, 608 N.W.2d at 841. The defendant argued that the criminal-sexual-conduct offense and the attempted murder were part of a single behavioral incident. Id. The supreme court held that the state failed to prove that the crimes were separate offenses and that the district court erred in imposing sentences for both offenses. Id. at 843. The supreme court noted it was not clear whether the defendant entered the victim’s apartment with the intent to sexually assault and attempt to kill her, or whether he made separate decisions to commit each offense. Id. at 842. The court concluded that the state had not met its burden of proving the defendant changed his criminal objective during the course of the incident, breaking the continuity of his conduct. Id. Finally, there was little or no change in time and place between the two charged acts. Although the defendant moved the victim, the distance between the locations where each offense occurred was minimal (from the bedroom to the living room). Id.

Similarly, it is unclear here whether appellant intended to commit a sexual offense and an assault at the time he entered the victim’s apartment. His subsequent theft of cash indicates that his intent may have changed once he entered the apartment. Whatever appellant’s intent was, as in Williams, the state has not sufficiently demonstrated any break in the continuity of appellant’s acts. Finally, the state has made no showing that the appellant had anything other than an “indivisible state of mind” when he committed these offenses. Chidester, 380 N.W.2d at 597. We therefore hold that the acts constituted a single behavioral incident.

The supreme court, however, has upheld consecutive sentences in criminal-sexual-conduct cases involving multiple convictions for contacts with the same victim, even where the contacts occurred within a period as short as five hours. See State v. McLemore, 351 N.W.2d 927 (Minn.1984) (upholding concurrent sentences for convictions of three counts of criminal sexual conduct based on three contacts with the same victim over a weekend); State v. Stevenson, 286 N.W.2d 719 (Minn.1979) (upholding consecutive sentences for convictions of two counts of criminal-sexual-conduct based on contacts with the same victim over a five-hour period). Here, unlike Stevenson, there is no evidence that appellant’s sexual offense and assault of D.L. were separated by any period of time. Although the victim reported that the attack lasted several hours, the record shows no evidence of when each of the sentenced crimes took place. Without evidence indicating that appellant committed these offenses at substantially different times or places or that there was an interruption during the commission of the crimes, we hold that the state has not met its burden of demonstrating that these were distinct criminal offenses.

Although Minn.Stat. § 609.035 generally prevents imposition of more than one sentence for a single behavioral incident, a judicially created exception precludes its application when there are multiple victims. State v. Marquardt, 294 N.W.2d 849 (Minn.1980) (holding multiple sentences appropriate for multiple-victim crimes arising from the same behavioral incident if the sentences do not unfairly exaggerate the criminality of defendant’s conduct); State v. Lingwall, 637 N.W.2d 311, 314 (Minn.App.2001); State v. Lundberg, 575 N.W.2d 589, 591-92 (Minn.App. 1998), review denied (Minn. May 20, 1998). Consequently, had appellant been sentenced for the criminal-sexual-conduct charge committed against D.L. (count one) and the assault charge committed against A.H. (count four), this exception arguably would have permitted the imposition of consecutive sentences.

But those are not our facts. The district court did not sentence appellant for crimes committed against separate individuals; both counts one and three were charges indicating that D.L. was the victim. The district court dismissed counts two, four, and five through eleven before sentencing. Only counts four (assault in the second degree), six (first-degree aggravated robbery), eight (kidnapping), and eleven (terroristic threats) addressed the acts committed against AH. Thus, because the sentences actually imposed for convictions on counts one and three were for crimes against the same victim, the state is not able to rely on the multiple-victim exception under Minn.Stat. § 609.035.

The state also argues that certain legislative changes to Minn.Stat. § 609.035 and changes to the sentencing guidelines, both occurring after the convictions in this case, support the outcome here. But these changes all occurred after the offenses and convictions at issue here and are irrelevant to the present issues.

Because the multiple-victim exception does not apply and § 609.035 prohibits multiple punishments for a single behavioral incident, we reverse and vacate appellant’s second-degree assault sentence on count three.

DECISION

The postconviction court did not abuse its discretion in holding that appellant’s failure to present his sentencing departure arguments in the direct appeal bars the present claim. The postconviction court erred in concluding that appellant waived his double-sentencing argument by his failure to raise it in the direct appeal. Because double-sentencing claims may not be waived, and because the district court improperly sentenced appellant for two offenses arising out of a single incident committed against the same victim, we reverse and vacate appellant’s second-degree assault sentence.

Affirmed in part and reversed in part.

      . Even if Knaffla did not procedurally bar appellant’s argument, it would also fail on the merits. The district court's justifications for the departure, made on the record, accurately reflect the law supporting an upward departure. The cumulative cruelty that appellant inflicled on both D.L. and A.H. over an extended period of time and appellant's use of a dangerous weapon are substantial and compelling circumstances that support the district court’s departure.

      . We do not purport to decide whether the prohibition on double punishment may ever be waived, only that the Knaffla rule does not bar a subsequent attack on multiple sentencing. See White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (stating that the prohibition of § 609.035 against separate prosecutions “is clearly waivable.'').

      . See complaint at 1-3. The complaint charged appellant, inter alia, with the following: (1) count one — first degree criminal sexual conduct pursuant to Minn.Stat. § 609.342, subd. 1(c), 2 as to D.L. (2) count two — first degree criminal sexual conduct pursuant to Minn.Stat. § 609.342, subd. 1(d), 2 as to D.L. (3) count three — assault in the second degree pursuant to Minn.Stat. § 609.222, subd. 1 as to D.L. (4) count four— assault in the second degree pursuant to Minn.Stat. § 609.222, subd. 1 as to A.H. The district court's sentencing order addresses only counts one and three; the court dismissed the remaining counts.

      . If this were merely a clerical error, the court could correct it at any time. Minn. R.Crim. P. 27.03, subd. 8. Here, though, each document in the record consistently refers to the district court sentencing appellant on counts one and three, and there is no indication in the sentencing transcript that the parties intended another result. In addition, no amended complaint changed the victims that corresponded with each count. We therefore conclude that the likelihood that a clerical error occurred here is minimal.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2002 ND 191
    In the Interest of F.R.S. F.R.S., Karla R. Shane, the parent and natural guardian of F.R.S., and the Grand Forks County Social Service Board, Assignee for Karla R. Shane, Plaintiffs and Appellees, v. James D. Erickson, Defendant and Appellant.
    No. 20020189.
    Supreme Court of North Dakota.
    Dec. 4, 2002.
    Diane Marie Hausmann, Grand Forks, ND, for plaintiffs and appellees.

      Sharon W. Martens, Hodny Currie Lawyers, Grafton, ND, for defendant and appellant.
   MARING, Justice.

[¶ 1] James Erickson appealed from an amended judgment increasing his child support obligation for his daughter F.R.S. (“Francis,” a pseudonym). We hold the district court’s findings regarding Erickson’s net income are not clearly erroneous and the court properly computed the support obligation in accordance with the child support guidelines. We affirm.

I

[¶ 2] Erickson was determined to be Francis’s father and was ordered to pay child support of $250 per month to the child’s mother, who is the custodial parent, in a judgment entered November 4, 1998. At the request of Francis’s mother, the Grand Forks Regional Child Support Unit reviewed Erickson’s income and filed a motion on April 12, 2002 requesting the district court to increase Erickson’s child support obligation. After a hearing, the court found Erickson has a net income of $2,961 per month and entered an amended judgment increasing Erickson’s child support obligation from $250 per month to $524 per month. Erickson appealed, asserting the trial court’s findings regarding Erickson’s net income for child support purposes are clearly erroneous and the court improperly applied the child support guidelines.

II

[¶ 3] We summarized our standard for reviewing child support determinations in Minar v. Minar, 2001 ND 74, ¶ 10, 625 N.W.2d 518:

Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obli-gor’s child support obligation. As a matter of law, the trial court must clearly set forth how it arrived at the amount of income and level of support. The trial court’s findings of fact in making its child support determination are overturned on appeal only if they are clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made. Findings are adequate if we can understand from them the factual basis for the court’s determination.

(Citations omitted.) Section 14-09-09.7(3), N.D.C.C., creates a rebuttable presumption that the amount of child support, as determined by application of the child support guidelines, is the correct amount of child support. Geinert v. Geinert, 2002 ND 135, ¶ 7, 649 N.W.2d 237. This presumption equally applies to motions to modify an original child support order. Id.

[¶ 4] A proper finding of net income is essential to a determination of the correct amount of child support under the guidelines. N.D. Admin. Code § 75-02-04.1-02(3) and (6); Christl v. Swanson, 2000 ND 74, ¶ 7, 609 N.W.2d 70. In its memorandum decision, the district court thoroughly explained its process and reasoning in computing Erickson’s income for child support purposes:
[Erickson] is a self-employed farmer and custom harvester. He has been doing both since at least 1992, but his operations have changed dramatically since 1999. In that year, he set up a subchapter “S” corporation for the custom harvesting business and continued to farm as well. The custom harvesting business was extended beyond North Dakota, to include Oklahoma, Kansas, Nebraska, and South Dakota. In 1999 and 2000, [Erickson] suffered business losses, for income tax purposes....
[Erickson’s] farming operation has been profitable over the period from 1996-2000. If only the farm income was considered, together with capital gains and other income, not including the losses incurred by the corporation in 1999 and 2000, [Erickson] would have an average income of approximately $46,865 per year during those years. However, that amount is considerably affected by a significant change in the farming operation in the year 2000. [Erickson] took over his father’s farming operation and was running about 2,000 acres, rather tha[n] the 400 acres that he previously was farming before 2000. In 2000, farm income of $144,075 was reported. The Court is not able to determine whether this amount will be the same in years to come, but the evidence shows that [Erickson] will continue to farm at least 2,000 acres per year in the future.
Further complicating the determination of income is the fact that [Erickson] will not be operating the custom business on the same scale as the last two years. He will not make the southern trip and any custom harvesting will be done only in North Dakota.... The past is therefore not the best predictor of the future in this case. [Erickson’s] income for the future will be determined on the results of the farming operation, together with any local custom work [Erickson] performs.
[Erickson’s] farming operation today is not on a substantially similar scale as before 2000, and there is no data reasonably available to determine what fluctuations will be experienced from the 2000 crop year. The data will not be available for a number of years. But the Court does have farm income data for 1996 through 2000. While it may not be comparable to what [Erickson] will make in the future with his expanded farming operation, farm income for the future would not be less than the average for the preceding five years, four years of which were at a time when he [was] farming only 400 acres. In setting child support, it is to [Erickson’s] advantage to use the last five years of the farming operation (which also included the local custom work prior to 1999) to determine income. The custom harvesting work which generated the tax losses should not be considered at this time since that operation will not be carried on this year or in the foreseeable future.
The net income of [Erickson] is found to be $2,961 per month, resulting in a child support obligation of $524 per month, giving due consideration to the fact that [Erickson] has another child living with him in his household.

[¶ 5] Erickson argues the district court erred in determining his income because the court excluded from the calculation losses incurred by Erickson in his out-of-state custom harvesting operations in 1999 and 2000. The child support guideline particularly relevant to this determination is found under N.D. Admin. Code § 75-02-04.1-02(8):

Calculations made under this chapter are ordinarily based upon recent past circumstances because past circumstances are typically a reliable indicator of future circumstances, particularly cir-cumstanees concerning income. If circumstances that materially affect the child support obligation are very likely to change in the near future, consideration may be given to the likely future circumstances.

Also relevant is N.D. Admin. Code § 75-02-04.1-05(5):

Businesses may experience significant changes in production and income over time. To the extent that information is reasonably available, the average of the most recent five years of business operations, if undertaken on a substantially similar scale, must be used to determine business income.

The trial court specifically found that Erickson will not be operating his custom business on the same scale in the future, because Erickson will no longer be doing out-of-state harvesting. On this issue, Erickson testified:

Q. I was wanting to clarify one thing. Ms. Hausmann asked you if you went — if you planned your out of state harvest in 2002 and you answered yes; is that correct?
A. I don’t plan to go out of state.
Q. You plan to end that operation?
A. Yes.

[¶ 6] It is inherently inconsistent and unfair to, on the one hand, include income from a business under N.D. Admin. Code § 75-02-04.1-05(5) and, on the other hand, reject losses from that same business under N.D. Admin. Code § 75-02-04.1-02(8) on the basis the losses “are very likely to change in the near future.” If, however, the losses are very likely to change in the near future because of a cessation of the business, the income is also certain to change because of the cessation of that business. We conclude the trial court’s finding that Erickson would not continue his out-of-state custom harvesting operations is supported by the evidence and is not clearly erroneous. In consideration of that fact, the court properly refused to include losses from the out-of-state custom harvesting for computing Erickson’s income, because those past losses would not be “the best predictor” of Erickson’s future income. The guidelines specifically authorize the court to take such circumstances into consideration when self-employed operations in the future will not be “on a substantially similar scale” and when “circumstances that materially affect the child support obligation are very likely to change in the near future.”

[¶ 7] Erickson also argues the trial court erred in computing his income, because the court improperly included gains Erickson realized from the out-of-state custom harvesting operations during 1997 and 1998. He claims it is unfair to include those gains while excluding the 1999 and 2000 losses from the out-of-state custom harvesting. Income must be documented through the use of tax returns, current wage statements, and other information sufficient to fully apprise the court of all gross income. N.D. Admin. Code § 75-02-04.1-02(7). Where gross income is subject to fluctuation, particularly in instances involving self-employment, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided. Id. On appeal, a party cannot take advantage of his failure to provide such information by predicating error upon rulings made to the best of the trial court’s ability in the absence of the relevant information. See Anderson v. Anderson, 504 N.W.2d 569, 571 (N.D.1993). We conclude Erickson cannot predicate error on the ground the trial court failed to exclude gains in 1997 and 1998 from the out-of-state custom harvesting operations, because Erickson failed to provide the court necessary information to determine those gains, if any. •

[¶ 8] Erickson submitted ■ his tax returns for 1997 and 1998, including Schedule F showing profit or loss from his 'farming operations. In both 1997 and 1998 Erickson reported a net loss from farming operations on Schedule F. However, Erickson did not separate on Schedule F the income and expenses of the out-of-state custom harvesting operation from the income and expenses of the local custom harvesting operation; Consequently, the court did not have evidence before it from which it could determine whether Erickson’s out-of-state custom harvesting operations incurred gains or losses in 1997 and 1998. Under these circumstances, we conclude the trial court did not abuse its discretion in utilizing Erickson’s income, as reported on his 1997 and 1998 tax returns, without excluding gains which may have been attributable to Erickson’s out-of-state custom harvesting.

Ill

[¶ 9] We conclude the trial court’s findings regarding Erickson’s net income, for purposes of computing Erickson’s child support obligation, are not clearly erroneous. We also conclude the trial court did not err in refusing to consider past losses from the out-of-state custom harvesting, because those losses are not accurate predictors of Erickson’s future income. We, therefore, hold the trial court properly computed Erickson’s child support obligation under the guidelines, and we affirm.

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


author: KAPSNER, Justice.

text:
    2002 ND 194
    Robert D. GIESE, Plaintiff and Appellant, v. Eva GIESE, Defendant and Appellee.
    No. 20020168.
    Supreme Court of North Dakota.
    Dec. 4, 2002.

      Arnold V. Fleck, Bismarck, N.D., for plaintiff and appellant.
    Richard B. Baer, Richard B. Baer, P.C., Bismarck, N.D., for defendant and appel-lee.
   KAPSNER, Justice.

[¶ 1] Robert Giese appealed from orders of the district court denying his demand for a change of judge, granting Eva Giese’s motion to enforce a prior judgment dividing Robert’s retirement account between the parties, denying Robert’s request for reconsideration of the issue, and denying Robert’s motion for attorney fees. We affirm.

I

[¶ 2] Robert and Eva Giese were divorced on March 26, 1998, after a long: term marriage. The divorce decree awarded Eva twenty percent of Robert’s employee retirement account and directed Robert’s attorney to prepare an appropriate order to accomplish the retirement split. The court entered an order on January 22, 1999, slightly modifying the terms of the retirement division, but retaining the 80/20 percent allocation. The court ordered Eva’s attorney to prepare an amended judgment and a qualified domestic relations order (“QDRO”) to accomplish the division of the retirement account between the parties. Despite the court’s directive, a QDRO was not prepared.

[¶ 3] On March 1, 2002, Eva filed a motion to enforce the retirement split under the divorce judgment, requesting the court to order Robert’s attorney to prepare an appropriate QDRO or to provide information necessary for Eva’s attorney to prepare the QDRO. Eva also requested costs and attorney fees for the motion. Robert filed a motion for a change of judge. Robert also filed a motion requesting an award of costs and attorney fees for responding to Eva’s motion. The trial court denied the motion for a change of judge and denied both parties’ requests for costs and attorney fees. The court ordered Eva’s attorney to prepare a QDRO and directed Robert to provide Eva’s attorney the necessary financial information for that purpose. Robert filed a motion for reconsideration, which the trial court denied. The trial court also awarded Eva $100 in attorney fees as a sanction for Robert renewing his request for attorney fees after the court had addressed the issue.

II

[¶ 4] When Eva filed a motion to enforce the divorce judgment’s division of Robert’s employee retirement account, Robert filed a demand for a change of judge, which was denied by the court. Robert asserts the court erred in denying the request.

[¶ 5] The relevant statutory language is found under N.D.C.C. § 29-15-21:

1. Subject to the provisions of this section, any party to a civil or criminal action or proceeding pending in the district court may obtain a change of the judge before whom the trial or ■ any proceeding with respect thereto is to be heard by filing with the clerk of the court in which the action or proceeding is pending a written demand for change of judge....
3. ... In any event, no demand for a change of judge may be made after the judge sought to be disqualified has ruled upon any matter pertaining to the action or proceeding in which the demanding party was heard or had an opportunity to be heard. Any proceeding to modify an order for alimony, property division, or child support pursuant to section 14-05-24 or an order for child custody pursuant to section 14-05-22 must be considered a proceeding separate from the original action and the fact that the judge sought to be disqualified made any ruling in the original action does not bar a demand for a change of judge.

The purpose of this statute is to allow a party to obtain a change of judge if the party does not believe he could have a fair and impartial trial before the assigned judge. See Traynor v. Leclerc, 1997 ND 47, ¶ ¶ 9-10, 561 N.W.2d 644. However, the right to challenge an assigned judge is not unlimited. Id. at ¶ 17. For instance, the plain language of the statute precludes a demand to change a judge who has ruled upon any matter pertaining to an action or proceeding in which the demanding party was heard or had an opportunity to be heard. Stroschein v. Stroschein, 390 N.W.2d 547, 549 (N.D.1986).

[¶ 6] The judge Robert sought to disqualify presided over the original divorce proceedings and had, therefore, ruled on matters in those proceedings where Robert appeared and was heard. The presiding judge, in denying Robert’s demand for a change of judge, considered Eva’s motion to be “merely a further hearing on the judgment entered previously.” Robert asserts Eva’s motion was to modify the property division, thereby invoking a separate proceeding from the original divorce proceedings, for which Robert is entitled to a change of judge. We conclude Eva’s motion was for the purpose of enforcing the divorce decree, not to amend it. Eva requested the court to specify a procedure to be followed by the attorneys for preparing a QDRO to accomplish the 80/20 split of Robert’s retirement account, as required by the divorce judgment. Eva asked the court to direct Robert’s attorney to either prepare the QDRO or to furnish information necessary for Eva’s attorney to prepare it. We conclude Eva’s motion did not invoke a proceeding to modify the property division of the original divorce decree, but rather initiated a proceeding to enforce that decree. Therefore, Robert was not entitled to a change of judge under N.D.C.C. § 29-15-21(3).

[¶ 7] Robert asserts the trial court’s order resolving the merits of Eva’s motion constituted a modification of the original judgment, by requiring Robert’s attorney to provide financial information or, alternatively, to provide written authorization for release of that information by the trustee of Robert’s retirement account. He asserts the court’s resolution of the motion thereby modified the original judgment, entitling Robert to a change of judge under N.D.C.C. § 29-15-21(3). We conclude, as a matter of law, the trial court’s ruling, setting forth the process for accomplishing the retirement account split in accordance with the original divorce decree, did not constitute a modification of that decree. Furthermore, the disposition of the motion for change of judge was properly based upon a consideration of Eva’s motion when that motion was made, not when the court ruled on the merits of the motion. Eva’s motion was to enforce, not modify, the divorce decree. The trial court’s ruling effectively constituted a clarification of its original judgment, and this Court favors permitting a trial court, upon a motion by a party, to clarify its judgments. Johnson Farms v. McEnroe, 2000 ND 137, ¶ 12, 613 N.W.2d 497. If the same judge clarifies an original judgment, we afford the judge’s clarification considerable deference. Neubauer v. Neubauer, 552 N.W.2d 793, 795 (N.D.1996). We hold the presiding judge did not err in denying Robert’s demand for a change of judge.

Ill

[¶ 8] Robert asserts the trial court erred in granting Eva’s motion to enforce the retirement account split. In its order, the trial court directed Robert “shall either provide the necessary verified financial information relative to [his] retirement account, or alternatively provide a written authorization for release of the same by the trustee.” The court also directed that Eva’s attorney “shall prepare a Qualified Domestic Relations Order consistent with the Court’s prior rulings and judgment as herein amended.”

[¶ 9] Robert’s attorney claims Eva’s attorney has all the information he needs to prepare the QDRO. See Tolstad v. Tolstad, 527 N.W.2d 668, 672 (N.D.1995). Eva’s attorney has not specified what information he needs from Robert’s attorney to prepare a valid QDRO. Unless Eva’s attorney specifies the information he needs from Robert’s attorney to prepare the QDRO, there is nothing for Robert or his attorney to perform under the court’s order. In its order denying Robert’s motion for reconsideration, the trial court stated:

The Court’s Order entered under the date of April 24, 2002, expressly provides for [Robert] or his counsel to ensure the availability of all necessary information for a complete and meaningful Qualified Domestic Relations Order. If counsel for [Robert] has so complied, therein assuring the availability of such information, legal counsel for [Robert] has fulfilled its (sic) obligation to the Court. It is then the obligation of legal counsel for [Eva] to prepare the Qualified Domestic Relations Order without delay and submit the same to the Court.

Robert has not shown how the court committed error or caused him prejudice by granting Eva’s motion, and we hold the trial court did not err in granting the motion to enforce the divorce decree.

IV

[¶ 10] Robert asserts the trial court abused its discretion in awarding Eva attorney fees of $100. The trial court entered an order on April 24, 2002, granting Eva’s motion of March 1, 2002, to enforce the divorce judgment’s division of Robert’s retirement account. Robert filed a Motion for Reconsideration on May 8, 2002. Eva filed a response to that motion on May 10, 2002. The court entered an order on May 14, 2002, denying Robert’s motion for reconsideration. After the court entered its order, Robert filed a reply brief on May 20, 2002, in response to Eva’s May 10, 2002, response to Robert’s motion. Eva filed a response on May 24, 2002, referring to Robert’s reply brief as a “second request for the Court to reconsider” Eva’s original motion. Robert filed another brief on May 31, 2002, in response to Eva’s May 24, 2002 response, and in that brief Robert included a renewed request to the court for costs and attorney fees incurred in defending against Eva’s March 1, 2002, motion. The court entered an order on July 2, 2002, awarding Eva $100 in attorney fees as a sanction for Robert renewing his motion for attorney fees after.the court had already ruled on it.

[¶ 11] A trial court has considerable discretion in awarding costs and attorney fees, and its decision will not be overturned on appeal absent an abuse of discretion. Matrix Properties Corp. v. TAG Investments, 2002 ND 86, ¶ 35, 644 N.W.2d 601, cert. denied, — U.S. -, 123 S.Ct. 448, — L.Ed.2d -. In a divorce case, the court can award either party attorney fees under N.D.C.C. § 14-05-23, and the guiding principal for such an award is one spouse’s need and the other’s ability to pay. Berg v. Berg, 2002 ND 69, ¶ 18, 642 N.W.2d 899. Also, an appropriate factor for the court to consider in deciding whether to award attorney fees for litigation involving marital obligations is whether one party’s actions have unreasonably increased the time and effort spent on the dispute. Mahoney v. Mahoney, 1997 ND 149, ¶40, 567 N.W.2d 206.

[¶ 12] In her March 1, 2002, motion to enforce the divorce decree, Eva states Robert’s attorney “has set up claims and roadblocks to getting this job done so his actions are increasing the work and costs of completing this part of the case.” While the court could have made more explicit findings on its basis for awarding Eva attorney fees of $100, we can glean from the- court’s ruling that it found the actions of Robert’s counsel contributed to unnecessary effort and expense in accomplishing the court-ordered split of Robert’s retirement account. Under the circumstances, we conclude this minimal award is justified under the court’s authority to award attorney fees in divorce proceedings and did not constitute an abuse of discretion.

V

[¶ 13] Robert asserts the trial court abused its discretion in not awarding him costs and attorney fees under N.D.C.C. § 28-26-01(2), on the ground that Eva’s March 1, 2002, motion to enforce the retirement account split under the divorce judgment was frivolous. For purposes of this statute, a claim is frivolous when there is a complete absence of law or fact so a reasonable person could not have expected a court would render judgment in that party’s favor. Bertsch v. Duemeland, 2002 ND 32, ¶ 35, 639 N.W.2d 455. The trial court granted Eva relief on her motion and, consequently, it was clearly not so lacking in basis that a reasonable person could not expect the court to render a decision in her favor. A trial court has considerable discretion in awarding costs and attorney fees, and its decision will not be overturned on appeal absent an abuse of discretion. Matrix, 2002 ND 86, ¶ 35, 644 N.W.2d 601, cert. denied, — U.S. -, 123 S.Ct. 448, — L.Ed.2d -. We conclude the trial court did not abuse its discretion in denying Robert’s request for attorney fees on the ground Eva’s claim was frivolous.

VI

[¶ 14] We affirm the trial court’s orders denying Robert’s request for a change of judge, denying Robert’s request for costs and attorney fees, granting Eva’s motion to enforce the divorce judgment, and awarding Eva $100 in attorney fees.

[¶ 15] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


text:
    2002 ND 193
    STATE of North Dakota, Plaintiff and Appellee, v. Michael Verne JONES, Defendant and Appellant.
    No. 20020118.
    Supreme Court of North Dakota.
    Dec. 4, 2002.

      Tracy J. Peters (argued), Assistant State’s Attorney, and Brett M. Shasky (appeared), Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.
    Monty G. Mertz, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Michael Verne Jones appealed from a criminal judgment entered following a jury verdict finding him guilty of possession of methamphetamine, possession of drug paraphernalia, and possession of marijuana. We conclude the trial court did not err in denying Jones’s motion to withdraw the waiver of his right to a preliminary hearing, his motion to suppress evidence, or his motion to dismiss the charges due to official misconduct. We affirm.

I.

[¶ 2] On May 31, 2001, Detective Mitch Burris of the Cass County Sheriffs Office was informed by a Ramsey County detective that a reliable confidential informant had information from a third party identifying Mike Jones from Fargo as his source for heroin. The informant gave specific information on drug transactions involving Jones. On June 5, 2001, Detective Burris searched garbage from Jones’s residence which had been set out in a receptacle in the alley. In the garbage, Detective Burris found a number of baggies altered in a way consistent with repackaging drugs; powder in a baggie which field tested positive for methamphetamine; an elnpty bottle of pseudoephedrine; and some notes with information related to guns. Detective Burris also learned from a detective at the Clay County Sheriffs Office that an individual named Wrolstad gave Jones’s name as Wrolstad’s heroin connection.

[¶ 3] On June 7, 2001, Detective Burris obtained a search warrant to search Jones’s residence for drugs. The search warrant was executed on the morning of June 8, 2001. Items discovered during the search included baggies of methamphetamine, marijuana, rolling papers, marijuana cigarettes, marijuana pipes, and syringes. Jones was charged with possession of a controlled substance (methamphetamine), possession of drug paraphernalia, and possession of a controlled substance (marijuana) on October 10, 2001.

[¶ 4] On November 29, 2001, Jones with his court-appointed attorney waived his right to a preliminary hearing and entered pleas of not guilty. A new attorney was appointed on December 5, 2001, after a potential conflict of interest was discovered by the first attorney. On April 9, 2002, the trial court denied Jones’s motions to withdraw his waiver of a preliminary hearing, to suppress all evidence, and to dismiss the charges. A jury trial was held on May 7 and 8, 2002. Jones was found guilty of all charges by the jury, and a criminal judgment was entered on May 9, 2002. Jones appeals from the criminal judgment.

II.

[¶ 5] Jones argues the trial court improperly denied his motion to withdraw his waiver of his right to a preliminary hearing. Jones concedes he was fully advised of his right to a preliminary hearing, but contends his waiver was not knowing and voluntary because his attorney did not explain his rights to him or go over the facts and circumstances of his case.

[¶ 6] Under Rule 5(c)(1), N.D.R.Crim.P., a defendant charged with a felony has a right to a preliminary hearing and, if assisted by counsel, can waive this right. “We will not reverse a trial court’s decision to grant a counsel-assisted waiver absent evidence on the record which demonstrates there was no valid reason to waive the preliminary hearing.” State v. Eldred, 1997 ND 112, ¶ 4, 564 N.W.2d 283. Because Jones is arguing he was not fully advised of his rights by his attorney, Jones is essentially asserting a claim of ineffective assistance of counsel. In order to prevail on an ineffective assistance of counsel claim, Jones must establish two elements: (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Burke, 2000 ND 25, ¶ 36, 606 N.W.2d 108; DeCoteau v. State, 1998 ND 199, ¶ 6, 586 N.W.2d 156.

[¶ 7] Jones did not file a transcript of the November 29, 2001, hearing in which he waived his right to a preliminary hearing. Thus, Jones “assumes the consequences and the risk for the failure to file a complete transcript.” City of Fargo v. Erickson, 1999 ND 145, ¶ 16, 598 N.W.2d 787. The transcript from the April 3, 2002, motion hearing, however, indicates Jones was represented by counsel when he waived his right to a preliminary hearing; the court explained his rights to him; and Jones waived his right through counsel. These elements are sufficient to establish Jones knowingly and voluntarily waived his right to a preliminary hearing. See Eldred, at ¶¶ 5-6. Further, Jones has failed to establish there was no valid reason to waive the preliminary hearing, or that his court-appointed counsel performed deficiently. Thus, we cannot conclude the trial court abused its discretion in refusing to permit Jones to withdraw his waiver. We affirm the trial court’s denial of Jones’s motion to withdraw his waiver.

III.

[¶ 8] Jones argues the trial court erred in denying his suppression motion because the evidence presented to obtain the search warrant and to support the garbage search included false statements from an unreliable source.

[¶ 9] Detective Burris’s affidavit described his nearly 13 years of work and training as a law enforcement officer and narcotics investigator, and provided:

On May 31, 2001, your affiant received a phone call from Detective Steve Hammre of Ramsey County Sheriffs Department. Hammre has seventeen years of law enforcement experience with seven of those years as a narcotics investigator. Hammre has an informant who has worked for Ramsey County and is considered reliable. This informant who will be referred to as a reliable confidential informant (RCI) is also known to Detective Burris. Burris has worked two cases with Hammre and Hammre’s RCI. On May 81, 2001, Burris spoke with Hammre. Hammre told Burris that the RCI had information on an individual in Fargo. The RCI identified Mike Jones as an individual who travels to Ramsey County and delivers heroin. The RCI heard about the deliveries through a third person. The said third person sold the RCI some of the heroin. Dur[in]g this drug transaction the third person told the RCI that the heroin came from a Mike Jones of Fargo. There were two separate drug transactions that took place between Mike Jones and the third party. The first transaction the RCI was aware of occurred on May 23, 2001. The second drug transaction occurred on May 26 and 27, 2001. The third person identified to the RCI the third person’s source for both deliveries to be Mike Jones of Fargo. The RCI described Jones as a male, approximately 50 years of age, 5' 10", 170 lbs, with brown hair and brown eyes. The RCI further indicated that Jones likes to use methamphetamine and shoots up with needles. The RCI stated Jones really likes guns. The RCI learned of an incident that happened in Seattle, WA, wherein Jones brought two guns on a road trip to Seattle where Jones purchased dings and transported the drugs back to ND. Jones was aimed and brought the two guns into the house in Seattle during the purchase of narcotics, according to the third person.
In checking Cass County records, Burris located a Michael Verne Jones date of birth May 21, 1946. The address listed for Jones is 1042 4th Street North, Fargo, Cass County, North Dakota. Burris also did a criminal history check, finding one prior conviction for petty larceny in 1971. Burris did locate a criminal complaint against Michal [sic] Verne Jones for a misdemeanor marijuana charge. According to the Cass County State’s Attorney’s Office, the complaint was dismissed because of medical problems of a potential witness. .
On June 5th, 2001, Detective Burris and Special Agent Derek Hill did a garbage search at 1042 4th Street North, the residence of Michale [sic] Verne Jones. Burris and Hill found indicia of Michael and [Mrs.] Jones at 1042 4th Street North Fargo. Burris and Hill also found baggies, seven corners of baggies, three knotted baggies, and four small ziplock baggies. Burris has training and experience with this type of baggies. Based on this training and experience, it is Burris’ opinion that these baggies, in their current stage, torn corners, knotted, and small ziplock are utilized for the transportation, concealment, sale, and repackaging from larger quantities to smaller quantities of drugs. In one of the baggies there was enough powder left in the baggie for a field test. Hill tested the powder and the powder tested positive for methamphetamine. Also located in the garbage was an empty bottle of pseudoephedrine 30 mg and 100 tablets. Burris recognizes pseu-doephedrine as a main ingredient in the manufacturing of methamphetamine, however, no other ingredients needed to manufacture methamphetamine were found in the garbage.
There was an American Gunsmithing Association membership located in the garbage. On the envelope of the membership were secrets on how to pop the slide off a colt 1911-type pistol in one quick move. There were ■ many more gunsmith’s secrets advertised inside the membership papers. Burris also located a handwritten note, the note had six items listed. It started with Valley Gun.
1. .357 glaser safety slugs
2. Corbon high penetration other high penetration
3. 2 magazines for high power
4. ,22’s for H & R
5. Sears, Menards, GateCity, and RNANB
6. Call about Seattle. (The RCI through the third person indicated Jones’s source was in Seattle)
Get grips on H & R (End of note)
The RCI through the third person indicated that Jones’ source is in Seattle, WA. Burris checked Cass County records for concealed weapons permits and learned that Michael Verne Jones has a concealed weapons permit. The permit expired March 13, 2001, however, Jones has ninety days to renew the permit. On June 7, 2001, Burris spoke with Charles Anderson who is employed by Clay County Sheriffs Office. Anderson told Burris that Anderson de-briefed [] Wrolstad. Wrolstad told Anderson that Wrolstad’s black tar heroin source is Mike Jones. Wrolstad told Anderson that Jones sells and uses methamphetamine and heoroin [sic], Wrolstad indicated that Jones lives on 4th Street between 10th and 11th Avenue.

[¶ 10] Challenges to the issuance of a search warrant, based on an allegation law enforcement made a false statement in the support affidavit, are governed by the standard set forth by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under Franks, if the defendant makes a substantial preliminary showing to justify an evi-dentiary hearing, the defendant has the burden at the hearing to prove by a preponderance of the evidence that the false statements in the warrant affidavit were made “knowingly and intentionally, or with reckless disregard for the truth.” Franks, at 155, 98 S.Ct. 2674; State v. Rangeloff, 1998 ND 135, ¶9, 580 N.W.2d 593. “A false affidavit statement under Franks is one that misleads the neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate’s evaluation of whether or not there is probable cause.” Rangeloff, at ¶ 9.

[¶ 11] Whether a defendant establishes recklessness or intentional falsity is a finding of fact. State v. Tester, 1999 ND 60, ¶ 11, 592 N.W.2d 515. We review a trial court’s ruling on whether the defendant demonstrates statements in a warrant affidavit were made intentionally or with reckless disregard for the truth under the clearly erroneous standard. State v. Schmitt, 2001 ND 57, ¶11, 623 N.W.2d 409; State v. Damron, 1998 ND 71, ¶ 10, 575 N.W.2d 912; State v. Padgett, 393 N.W.2d 754, 757 (N.D.1986). A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or when, although there is some evidence, on the entire evidence, the Court is left with a definite and firm conviction a mistake has been made. Schmitt, at ¶ 12.

[¶ 12] In this case, Jones contends the false information in the affidavit to support the search warrant are the statements given to law enforcement from Wrolstad. Detective Burris included the following details from Wrolstad in his supporting affidavit: Mike Jones is Wrolstad’s black tar heroin source, Jones sells and uses methamphetamine and heroin, and Jones lives on 4th Street between 10th and 11th Avenue. To demonstrate the information was false, Jones offered affidavits written by himself and a friend. We cannot conclude these affidavits establish the statements Detective Burris provided in his affidavit to support the search warrant were false. We conclude Jones has failed to prove by a preponderance of the evidence the detective intentionally or recklessly provided false information to the magistrate to support the issuance of the search warrant. Thus, we do not have a definite and firm conviction a mistake has been made.

[¶ 13] Jones also contends the trial court erred in denying his motion to suppress evidence because there is no substantial basis that probable cause existed to issue a search warrant. “A trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.” State v. Laib, 2002 ND 95, ¶ 8, 644 N.W.2d 878.

[¶ 14] Whether there is probable cause to issue a search warrant is a question of law. Schmitt, at ¶ 18. In Damron, at ¶¶ 6-7, we outlined the requirements for probable cause:

“Probable cause to search does not require the same standard of proof necessary to establish guilt at a trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.” All the information presented to establish probable cause should be taken together, not analyzed in a piecemeal fashion. The magistrate is to make a practical, commonsense decision on whether probable cause exists to search that particular place. We generally defer to a magistrate’s determination of probable cause, and will not disturb a magistrate’s conclusion that probable cause exists if there is a substantial basis for the conclusion. When reviewing a magistrate’s determination of probable cause, a doubtful or marginal case should be resolved in favor of the magistrate’s determination.
We apply the totality-"of-the-circumstances test to review whether information before the magistrate was sufficient to find probable cause, independent of the trial court’s findings. More than “bare-bones” information must be presented to the magistrate' in order to establish probable cause.
“Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, ‘probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... which is not weighed in individual layers but in the “laminated” total.’ ”

(citations omitted).

[¶ 15] Detective Burris’ affidavit in support of the search warrant included, in addition to the statements provided by Wrolstad, information from a reliable confidential informant and a list of items suggesting drug possession found in Jones’s garbage. Jones argues the search of his garbage was impermissible and should not be a basis to support probable cause to issue a search warrant for Jones’s residence.

[¶ 16] Warrantless searches of garbage set out for disposal are constitutionally valid under the Fourth Amendment to the Constitution. California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). “Under the North Dakota Constitution, [Jones] must have a ‘subjective expectation of privacy in [his] garbage that society accepts as objectively reasonable’ for his garbage to be protected.” State v. Herrick, 1997 ND 155, ¶ 9, 567 N.W.2d 336. This Court has allowed warrantless searches of garbage when the garbage is located where there is no reasonable expectation of privacy. See State v. Carriere, 545 N.W.2d 773, 775-76 (N.D.1996) (determining no reasonable expectation of privacy in garbage when the owner of the garbage placed the garbage on his property at the end of the driveway in a container with a strap holding the cover in place); State v. Rydberg, 519 N.W.2d 306, 310 (N.D.1994) (concluding owner of garbage had no reasonable expectation of privacy due to the public location of the garbage and the placement of the garbage cans on the edge of a public alley behind the house); State v. Ronngren, 361 N.W.2d 224, 228 (N.D.1985) (concluding defendant had no reasonable expectation of privacy in garbage after a dog carried the garbage onto a neighbor’s property). In this case, Jones set out his garbage in a receptacle in an alley. Jones retained no reasonable expectation of privacy in the garbage clearly set out for disposal. Thus, Jones’s garbage was lawfully searched and the evidence lawfully seized.

[¶ 17] The evidence found in Jones’s garbage included a number of baggies altered in a way consistent with repackaging drugs, powder which field tested positive for methamphetamine, and an empty bottle of pseudoephedrine, an ingredient in manufacturing methamphetamine. Where drug residue is discovered in the garbage, “it is well established that affidavits based almost entirely on the evidence garnered from garbage may be sufficient to support a finding of probable cause.” United States v. Sumpter, 669 F.2d 1215, 1221 (8th Cir.1982). We have held probable cause to issue a search warrant existed in cases where probable cause was primarily established from drug residue in the garbage. See State v. Duchene, 2001 ND 66, ¶¶ 15-17, 624 N.W.2d 668 (probable cause to issue a search warrant is supported by marijuana seed and marijuana stems found in the garbage along with prior drug convictions); State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995) (presence of marijuana seeds in the garbage provided substantial basis to support magistrate’s finding of probable cause); State v. Erickson, 496 N.W.2d 555, 559 (N.D.1993) (marijuana and plastic bags combined with citation and envelope with Erickson’s name in the garbage support a determination of probable cause). We conclude the information presented to the magistrate, including the items discovered in Jones’s garbage, the statements from the rehable confidential informant, and the information from Wrolstad, would warrant a person of reasonable caution to believe the contraband or evidence sought would probably be found in Jones’s home. Because the magistrate had a substantial basis to determine there was probable cause to search Jones’s residence, we affirm the trial court’s order denying Jones’s motion to suppress evidence.

IV.

[¶ 18] Jones contends the trial court erred by not dismissing the charges due to official misconduct. Jones maintains official misconduct resulted when the State used unreliable and false information to attain the search warrant, the charges against Jones were dismissed and refiled, Jones’s wife was subpoenaed to testify, and firearm forfeiture was requested without the commencement of formal proceedings. Jones argues these acts by the State, taken together, constitute official misconduct and require dismissal of the case.

[¶ 19] We have outlined our standard of review for preliminary proceedings, such as a motion to dismiss, in criminal cases at the trial court level. “We will not reverse a trial court’s findings of fact in preliminary criminal proceedings if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the findings and if the trial court’s decision is not contrary to the manifest weight of the evidence.” State v. Berger, 2001 ND 44, ¶ 11, 623 N.W.2d 25.

[¶ 20] We have already determined Jones failed to prove the search warrant was obtained with false information, thus we cannot conclude the prosecutor committed official misconduct in obtaining the search warrant. N.D.R.Crim.P. 17 permits an “attorney for a party to any proceeding” to issue a subpoena for the attendance of witnesses. The only objection to the subpoena asserted by Jones is that “[t]he State knew exactly what she would say, because she had been fully debriefed before the trial.” We conclude there was no official misconduct committed by the State when it issued a subpoena to Jones’s wife.

[¶ 21] “The double jeopardy clause, found in the Fifth Amendment of the U[nited] S[tates] Constitution, protects against successive prosecutions and punishments for the same criminal. offense.” State v. Foley, 2000 ND 91, ¶ 6, 610 N.W.2d 49. Rule 48(a), N.D.R.Crim.P., permits, upon motion and supporting written statements detailing the reasons for the motion, a prosecuting attorney with the court’s approval to dismiss a charge against an individual prior to trial. The explanatory notes following the rule state the rule is “designed to prevent harassment of a defendant by charging, dismissing and recharging without placing a defendant in jeopardy.”

[¶ 22] In this case, the State dismissed the charges because a detective, who the State considered an essential witness, was unavailable to testify at trial after being placed on active military duty as a result of the events of September 11, 2001. The State requested a continuance, but the trial court denied the State’s request. Thus, the charges were dismissed without prejudice with the consent of the court prior to trial.

[¶ 23] Jones argues the witness was not essential because he was not called to testify at either the motion hearing or at trial. Because Jones stipulated to issues concerning foundation, chain of custody, and laboratory analysis which had not been agreed to prior to the dismissal, we cannot conclude the witness was not essential at the time of the dismissal and conclude the State had an appropriate reason to request dismissal. A dismissal without prejudice permits Jones to be recharged. State v. O’Boyle, 356 N.W.2d 122, 124 (N.D.1984). In this case, we conclude the mere act of dismissing and recharging the defendant does not constitute official misconduct.

[¶ 24] Jones also argues the prosecutor committed official misconduct when , she requested Jones’s firearms be forfeited as a condition of probation, without the commencement of civil forfeiture proceedings. The trial court did not order Jones’s firearms be forfeited. Although we recently held the State should proceed under N.D.C.C. § 29-31.1-04, the civil forfeiture statutes, if it desires permanent forfeiture of Jones’s firearms, State v. Faleide, 2002 ND 152, ¶ 8, 652 N.W.2d 312, we cannot conclude the prosecutor, by requesting forfeiture as a condition of probation, committed official misconduct which would support dismissal of the charges.

[¶ 25] We conclude the motion to dismiss based on official misconduct is not supported by any evidence, and it was appropriately denied by the trial court.

V.

[¶ 26] We affirm the judgment of the trial court in denying Jones’s motion to withdraw the waiver of his right to a preliminary hearing, his motion to suppress evidence, and his motion to dismiss the charges due to official misconduct.

[¶ 27] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


author: KAPSNER, Justice. MARING, Justice, VANDE WALLE, Chief Justice,

text:
    2002 ND 185
    Charles HAMILTON, Plaintiff and Appellant, v. Robert OPPEN, Defendant and Appellee. and Navistar, Defendant.
    No. 20020045.
    Supreme Court of North Dakota.
    Dec. 4, 2002.

      Michael Ward, Eaton, Van de Streek & Ward, Minot, N.D., for plaintiff and appellant.

      Lyle W. Kirmis, Zuger Kirmis & Smith, Bismarck, N.D., for defendant and appel-lee.
   KAPSNER, Justice.

[¶ 1] Charles Hamilton appealed from a judgment entered on a jury verdict dismissing his personal injury action against Robert Oppen, and from an order denying his motion for new trial. We conclude the trial court did not err in ruling the jury had not rendered an improper quotient verdict, and did not abuse its discretion in refusing to allow Hamilton’s expert witness to testify or in refusing to admit in evidence certain photographic evidence. We also conclude there is substantial evidence to support the jury verdict. We therefore affirm the judgment and order.

I

[¶ 2] Hamilton worked for Oppen on Oppen’s farm near Rugby. On October 26, 1994, Hamilton, then age 21, was severely injured when he slipped and his leg got caught in an auger while he was cleaning out wet corn left in the hopper of Oppen’s combine. The leg required amputation below the knee. In January 2000, Hamilton commenced this personal injury action against Oppen and Navistar International Transportation Corporation (“Navistar”), the manufacturer of the combine. Hamilton alleged Oppen was negligent in teaching him how to clean the auger and Navistar was negligent in its design of the combine and in failing to adequately warn of the dangers. Hamilton and Navistar eventually settled.

[¶ 3] The jury returned a verdict finding Hamilton 60 percent at fault for his injuries, Oppen 34 percent at fault, and “Other Persons” 6 percent at fault. The trial court polled the jury after the verdict was received and dismissed the action against Oppen. Hamilton made a motion for new trial, accompanied with affidavits from several jurors, arguing, among other things, that the jury had arrived at a quotient verdict in violation of N.D.R.Civ.P. 59(b)(2). The trial court ruled Hamilton had not established an improper quotient verdict, rejected his other allegations of error, and denied the motion. Hamilton appealed from the judgment and the order denying his motion for new trial.

II

[¶ 4] We review a trial court’s denial of a N.D.R.Civ.P. 59 motion for new trial under the abuse of discretion standard. Western Nat’l Mut. Ins. Co. v. University of North Dakota, 2002 ND 63, ¶ 31, 643 N.W.2d 4. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Praus ex rel. Praus v. Mack, 2001 ND 80, ¶ 6, 626 N.W.2d 239. The party seeking a new trial has the burden to affirmatively establish that the trial court abused its discretion. Sollin v. Wangler, 2001 ND 96, ¶ 8, 627 N.W.2d 159.

A

[¶ 5] Hamilton argues he is entitled to a new trial because the jury rendered an improper quotient verdict.

[¶ 6] A quotient verdict is “[a] verdict resulting from agreement whereby each juror writes down [the] amount of damages to which he thinks [the] party is entitled and such amounts are then added together and divided by [the] number of jurors.” Black’s Law Dictionary 1256 (6th ed.1990). The general rules about quotient verdicts are summarized in An-not., Quotient Verdicts, 8 A.L.R.3d 335, § 2, at pp. 340-41 (1966) (footnotes omitted):
Because the jurors who render a quotient verdict' agree, without knowing in advance what the quotient will be, to be bound by it and to foreclose the opportunity for further discussion and for comparison and evaluation of individual jurors’ positions, quotient verdicts have been considered objectionable on the grounds that they are reached through a process of chance or gambling and are not founded upon discussion, deliberation, reasoning, and collective judgment in which each juror has an opportunity for individual participation. To show that a quotient verdict has been rendered, one of the essential elements which must be established is that through an antecedent agreement the jurors bound themselves to abide by the results of the quotient process. In some jurisdictions, however, it has been held that no express agreement is required, but that a tacit understanding or an implied agreement is sufficient. Moreover, it has generally been considered sufficient to show that only part of the jury was involved in the antecedent agreement or understanding, and in a few jurisdictions it appears to have been recognized that it is enough to show that a single juror’s assent to the verdict was induced by his understanding that he was bound to abide by the quotient. But if the jurors, although bound initially, subsequently abandoned their agreement to be bound by the quotient, or if the use of the quotient process was merely experimental and was never intended or assumed to be binding on any of the jurors, the verdict is not invalid as a quotient verdict.

North Dakota caselaw demonstrates it is not the act of averaging the individual jurors’ estimates that is improper in a quotient verdict, but it is the prior agreement to be bound by the result of the computation that invalidates the verdict. See Seibel v. Symons Corp., 221 N.W.2d 50, 59 (N.D.1974); Great N. Ry. Co. v. Lenton, 31 N.D. 555, 563, 154 N.W. 275, 277 (1915). The trial court in this case instructed the jury in accordance with N.D.J.I.-CM C-74.40:

QUOTIENT VERDICT

If you award damages to the Plaintiff, you must avoid using a “quotient” method by which the Jurors agree in advance to write down the amount each Juror considers to be a proper award, add the amounts together, and then divide the total amount by the number of Jurors and make the result the amount to be awarded as damages. Likewise, any other method by which the Jurors agree in advance to “split the difference” or to “strike a happy medium” between divergent estimates of value must be avoided. Those methods are illegal and must not be used or considered by you in arriving at any award of damages in this case.

[¶ 7] Rule'59(b)(2), N.D.R.Civ.P., specifically provides, “whenever any juror has been induced to assent to any general or special verdict or to a finding on any question submitted to the jurors by the court by a resort to the determination of chance, the misconduct may be proved by the affidavit of any one of the jurors.” See also N.D.R.Ev. 606(b) (allowing a juror to testify “whether the verdict of the jury was arrived at by chance”).

[¶ 8] After the trial, Hamilton’s attorney spoke with one of the jurors, and obtained an affidavit from him outlining his recollection of the method used by the jurors to decide the verdict:

■ The method was agreeing to average the percentages. This seems to be against what the Judge had originally instructed, but since Wilbert, and some of the others were of the opinion that this was of [sic] the correct method I went along with this, and agreed to be bound by the results.
There was disagreement as to the percentages, and therefore what was done, each party took the percentage that they had determined individually, these percentages were added together and divided by 10 for the number of jurors to determine what the final percentages would have been.
It was this amount that ended up being the jury verdict. I understood that this was the correct method of doing this, that I was in agreement with the verdict as being done by this method as a compromise. Personally, if I had not agreed to be bound by this method I would not agreed [sic] as I thought this decision was wrong. Some of the other jurors were of the same opinion, but we felt bound on our agreement. We had to stay with the average amount.
Since we had all agreed that this method should be used I went along with the decision when we returned to the court room, even though I, and some of the others did not agree with the results. We thought we were bound by our agreement to go by the average of the percentages.
I would never have voted that Charles Hamilton was not to receive any damages if I had not believed I was bound by my agreement to go with the average amount. Had I not agreed in advance to be bound, the jury would probably still be sitting there if the others would not agree to give him some sort of an award.

[¶ 9] Hamilton’s attorney then hired a private investigator to interview the other jurors regarding the jury deliberations. The investigator obtained affidavits from four of the other jurors. One of the jurors stated, “[i]t was decided that the average percentage would be the final, and I agreed to this.” Another juror stated, “[i]n deciding the verdict in this case, the percentages were all averaged to arrive[] at the final percentages of fault. The final percentages were binding.” Another explained, “[i]n deciding the verdict in this case to determine the percentage of fault, each juror took a piece of paper and wrote down what we thought the percentage should be, many times over. These percentages were added together and then divided by ten for an average percentage. We all agreed this was the way it would be done.” Another juror added, “[w]e did this by, several times, taking individual anonymous surveys from each member and averaging the percentage.”

[¶ 10] In support of the motion for new trial, Hamilton’s attorney submitted the five juror affidavits and an affidavit from the private investigator stating in substance that none of the jurors she spoke with disputed the accuracy of the initial juror affidavit obtained by Hamilton’s attorney. Hamilton’s attorney did not request an evidentiary, hearing, and the trial court did not hold one to question any of the jurors. The court noted the jury was given the quotient verdict instruction and concluded, based on the evidence before it, that the jury did not act “in defiance of or opposition to the Quotient Verdict instruction issued by the court.”

[¶ 11] None of the juror affidavits unequivocally establish that the jury agreed in advance to be bound by the result of the computation of the percentages of fault. The initial affidavit, relied upon most heavily by Hamilton, speaks of “disagreement as to the percentages” of fault, which indicates thoughtful deliberation by the jurors and strongly suggests there was no advance agreement to use the averaging method and to be bound by the result of the computation. The absence of a prior agreement to be bound by the result of the computation is also evidenced by the affidavits of the two jurors who stated the individual estimates of fault were averaged multiple times. The juror’s statement that “[s]ince we had all agreed that this method should be used I went along with the decision when we returned to the court room” can be interpreted as a reference to the court’s polling of the jurors in the courtroom and to that individual juror’s feeling bound by the verdict reached by unanimous agreement.

[¶ 12] The strongest evidence that there was no agreement in advance is a question submitted to the court by the jury during its deliberations:

If we vote on # 2
Charles 62%
Robert 34%
Other 4%
Does Charles get any money? & do we need to procede [sic]?

The trial court answered “no” to each question. Twenty-seven minutes after receiving the trial court’s response, the jury notified the court it had completed deliberations and returned a verdict finding Hamilton 60 percent at fault, Oppen 34 percent at fault, and “Other Persons” 6 percent at fault. The difference in the percentages between the jury’s question to the court during deliberations and the final verdict demonstrates either there was no prior agreement to be bound by the computation, or if there ever was such an agreement, it was ultimately abandoned by the jurors.

[¶ 13] On this record, we conclude the trial court did not abuse its discretion in determining Hamilton did not establish that the jury rendered an improper quotient verdict entitling him to a new trial.

B

[¶ 14] Hamilton argues the trial court erred in refusing to allow his expert witness to testify.

[¶ 15] Rule 702, N.D.R.Ev., provides “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Rule 702 “envisions generous allowance of the use of expert testimony if the witnesses are shown to have some degree of expertise in the field in which they are to testify.” Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶ 9, 559 N.W.2d 204. It is the trial court’s responsibility to make certain expert testimony is reliable as well as relevant. Myer v. Rygg, 2001 ND 123, ¶10, 630 N.W.2d 62. Whether a witness is qualified as an expert is a decision largely within the sound discretion of the trial court. Id. at ¶ 8.

[¶ 16] Hamilton identified Paul Gogul-ski as “an OSHA expert [who] will testify as to the duty of the employer to inform individuals of the correct method to do a job such as not to have him do it as he did and explain what the correct method he should have been instructed to do.” After Gogulski was deposed in Las Vegas, Nevada, Oppen made a motion in limine to exclude Gogulski’s testimony. The trial court granted the motion, concluding Go-gulski was not qualified “to present expert testimony on the issue of safety required in cleaning the hopper of a combine ... [or on] the training of farm employees in the proper way to do such cleaning.”

[¶ 17] Gogulski obtained a civil engineering degree from the University of Michigan in 1960 and worked on construction related projects in both the public and private sectors throughout the United States. He had extensive experience in construction consulting and quality assurance for contractors, and at the time of the deposition, he had his own consulting forensic engineering firm in which he consults in the construction field primarily with contractors, owners and architects. Gogulski’s background in farming is sparse. He had never worked in a professional capacity advising farmers. He grew up in “a rural atmosphere” in Grand Rapids, Michigan, but did not live on a farm or work on a farm. When he was a teenager, he had friends and family members who owned farms and he would visit them. His other experience with farming was “from this case particularly from talking to farmers in North Dakota and educating myself in basic farm operations.” Gogulski spoke with five or six North Dakota farmers about augers and hoppers. He also researched web sites and spoke with a person who was the office supervisor for the Occupational Safety and Health Administration (“OSHA”) office in Bismarck and who told him OSHA does “not enforce the statutes as they apply to agriculture,” but that “the same standards should apply to farming.”

[¶ 18] Gogulski had concluded that, “[bjesides OSHA, numerous agricultural Safety Standards exist which could have prevented this accident from happening;” Hamilton worked in an environment on Oppen’s farm “where safety standards were grossly negligent;” Oppen “failed to provide the required safety training to comply with industry standards;” by allowing his employees to clean grain tanks without shutting off the unloading auger or the combine engine, Oppen “created a serious safety hazard that contributed to the accident;” Oppen “not only failed to train or supervise his employees to perform a safe operation while working with his combines, he demonstrated negligence by his own unsafe operation of the same equipment;” Hamilton was not properly instructed in the safe use and operation of the combine; the unsafe use of combines on the Oppen farm “may have violated” numerous OSHA regulations; it is unlikely “required warning signs” were in place at the time of the accident; “[e]very farmer has a responsibility to provide a safe working environment for his employees, and to train his employees in the safe operations of his farm equipment;” and “[a]ugers are the most dangerous operation on a farm, and have proven to be the cause of the most serious accidents.” Hamilton did not offer Gogulski as an expert for a more limited purpose than what his deposition and report suggested.

[¶ 19] In its order denying the motion for new trial, the trial court reasoned:

As determined by the Court prior to trial, the record establishes that Mr. Paul Gogulski knew nothing about farming, knew nothing about combines, and knew nothing about augers within the ■ combines. The only testimony that Mr. Gogulski purportedly would have offered would have been his expertise on OSHA safety standards, but such standards were admittedly not applicable to this case. Mr. Gogulski did no independent investigation other than a few phone calls to a few farmers regarding combines. The Court finds that Mr. Gogul-ski had no expertise with which to assist the trier of fact in understanding the evidence or determining the facts in issue.

[¶ 20] The trial court’s reasoning is rational, and its decision is not arbitrary, capricious or unconscionable. We conclude the trial court did not abuse its discretion in deciding Gogulski was not qualified as an expert and in disallowing his testimony.

C

[¶ 21] Hamilton argues the trial court erred in refusing to allow in evidence several photographs of his injured leg taken at the hospital before the leg was amputated. The trial court granted Oppen’s motion in limine to keep the photographs out of evidence.

[¶ 22] The admission or rejection of photographs is within the discretion of the trial court. State v. Ash, 526 N.W.2d 473, 477 (N:D.1995). “Even gruesome pictures are admissible for a proper proof purpose.” State v. Miller, 466 N.W.2d 128, 132 (N.D.1991). Oppen argues the photographs were not relevant to the issue of liability and were not relevant to the issue of damages because it was undisputed that the amount of damage to the leg was so substantial the leg had to be amputated, and that the leg was only partially attached to Hamilton’s body. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.D.R.Ev. 401. The photographs of Hamilton’s injured leg were relevant to the issue of pain and suffering, which are elements of noneconomic damages. See Albrecht v. Metro Area Ambulance, 2001 ND 61, ¶ 11, 623 N.W.2d 367; N.D.C.C. § 32-03.2-04(2).

[¶ 23] Nevertheless, relevant evidence may be excluded under N.D.R.Ev. 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See State v. Klein, 1999 ND 76, ¶ 5, 593 N.W.2d 325. In his appellate brief, Hamilton candidly describes his injured leg as resembling “hamburger.” In granting the motion in limine, the trial court reasoned:

The argument that the photographs illustrate pain and suffering has some merit, however, Mr. Hamilton and possible others can testify to the pain and suffering that he has experienced since the accident and at the time of the accident. It is my opinion that the photographs do not depict pain and suffering. They depict blood and gore which is highly prejudicial to the defendant in this case.

[¶ 24] We conclude the trial court did not abuse its discretion in ruling the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, and in excluding the photographs from evidence.

D

[¶ 25] Hamilton argues the evidence does not support the jury verdict. In reviewing a jury’s findings, we view the evidence in the light most favorable to the verdict and determine only if substantial evidence supports it. Olander Contracting Co. v. Gail Wackier Investments, 2002 ND 65, ¶ 37, 643 N.W.2d 29. There is substantial evidence in the record to support the jury’s finding that Hamilton was more at fault than Oppen for his injury.

Ill

[¶ 26] The judgment and order are affirmed.

[¶ 27] DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

concurring in the result.

[¶ 28] I respectfully concur in the result.

[¶ 29] I believe the trial court abused its discretion in refusing to allow even one of the five photographs offered of Hamilton’s injuries. The majority correctly states that the photographs of Hamilton’s injured leg were relevant to the issue of pain and suffering. Compensation for pain and suffering is an element of non-economic damages which may be awarded by a trier of fact under N.D.C.C. § 32-03.2-04. In Albrecht v. Metro Area Ambulance, our Court stated:

“The plaintiff is entitled to recover for all forms of suffering proximately caused by tortious injury, including future suffering. The pain for which recovery is allowed includes virtually any form of conscious suffering, both emotional and physical.... Expert testimony can address pain, but frequently the physical injury itself and the kind of medical attention needed, permit or require an inference that the plaintiff suffered physically or emotionally.”

2001 ND 61, ¶ 14, 623 N.W.2d 367 (quoting 2 Dan B. Dobbs, The Law of Torts, 1050-51 (2001)). We have recognized that the power to exclude evidence under N.D.R.Ev. 403 should be exercised sparingly. State v. Randall, 2002 ND 16, ¶ 15, 639 N.W.2d 439. Our Court has stated:

In determining whether to exclude evidence under Rule 403, courts should “ ‘give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.’ ” See id. [State v. Zimmerman, 524 N.W.2d 111, 115 (N.D.1994) ] (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence § 403[03], pp. 403-49, 403-51 (1994)). “Generally, any doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge.” Id. Therefore, the burden is on the objecting party to show that relevant evidence should be excluded under Rule 403.

Randall, at ¶ 15 (citation omitted). “Prejudice alone is not sufficient to warrant exclusion under Rule 403. Virtually all evidence is prejudicial to one party or another. To justify exclusion under Rule 403, the prejudice must be unfair.” 2 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Federal Evidence § 403.04[l][a], p. 403-33 (2002) (footnotes omitted). Evidence that is unfairly prejudicial is evidence that is designed to elicit a response from jurors that is not justified by the evidence. Id. at § 403.04[l][b]. Under Rule 403, evidence may be excluded if its probative value is “substantially outweighed by the danger of unfair prejudice.”

[¶30] The trial court’s reason for excluding all the photographs of Hamilton’s injuries was: “It is my opinion that the photographs do not depict pain and suffering. They depict blood and gore which is highly prejudicial to the defendant in this case.” The trial court never explained how these photographs created “unfair prejudice.” It presumed a photograph depicting “blood and gore” was “unfairly” prejudicial. As the majority states at ¶ 22: “Even gruesome pictures are admissible for a proper proof purpose.” (citation omitted). Gruesome photographic evidence of injuries is not, per se, inadmissible. “[I]f photographs are otherwise admissible for a proper purpose, they are not rendered inadmissible merely because they bring vividly to the jurors the details of a gruesome or shocking accident ... even though they may tend to arouse the passion or prejudice of the jurors.” 29A Am.Jur.2d Evidence § 963 (1994).

[¶ 31] The test for determining whether a photograph may be shown to the jury is whether the photograph’s probative value is substantially outweighed by the danger of unfair prejudice. Considering the probative value of the photographs and the philosophy behind Rule 403, the trial court could have limited the evidence to one or two photographs. Furthermore, the trial court could use other safeguards including the standard jury instruction admonishing “[y]our decision must not be influenced by sympathy or emotion.” N.D.J.I. Civ. No. C-85.15 (1999).

[¶ 32] The average juror today has been exposed to a great deal of “blood and gore” through- television, the media, and movies. The conclusion that the probative value of one or two photographs of the injuries sustained by Hamilton was “substantially outweighed by the danger of unfair prejudice” is not supported by reason. Pain is suffered from the time of the injury. The photographs in this case, taken in the hospital, were clearly probative of the seriousness of Hamilton’s injuries, and the pain, emotion, fear, and mental anguish suffered by him at the time the injuries were sustained. I am of the opinion the trial court abused its discretion when it excluded all of the photographs of the injuries sustained by Hamilton. However, because the jury returned a verdict determining Hamilton was more than 49 percent at fault for his injuries, the jury never reached the issue of damages. Because there is no ground for granting a new trial on liability, the trial court’s error is harmless error in this case.

[¶ 33] Mary Muehlen Maring

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 34] The juror affidavits raise some doubt in my mind as to the possibility of a quotient verdict, but I agree the affidavits are not conclusive on the issue. Rule 59(b)(2), N.D.R.Civ.P., allows the use of juror affidavits to show an improper quotient verdict. This rule distinguishes the procedure from that recommended in Praus v. Mack, 2001 ND 80, ¶ 57 n. 2, 626 N.W.2d 239 and Andrews v. O’Hearn, 387 N.W.2d 716, 734 n. 26 (N.D.1986), in which the court suggested that when juror misconduct is discovered, investigation should cease and the matter should be presented to the court to avoid the possibility of juror taint from extra-judicial pressures. Nevertheless, while N.D.R.Civ.P. 59(b)(2) permits a jury verdict reached “by a resort to the determination of chance” to “be proved by the affidavit of any one of the jurors,” it does not prohibit an evidentiary hearing on the matter. However, here no evidentiary hearing was requested.

[¶ 35] I agree with the majority that the affidavits do not conclusively prove misconduct on the part of the jurors. I therefore concur in the result.

[¶ 36] MARY MUEHLEN MARING, J., concurs in the result.

      . Oppen had fewer than ten employees on his farming operation. "Congress has repeatedly enacted legislation that prohibits federal funds from being used to prescribe, issue, administer or enforce any OSHA standard, rule, regulation or order that is applicable to a farming operation that does not maintain a temporary labor camp and employs ten or fewer employees.” Taft v. Derricks, 2000 WI App. 103, ¶ 23, 235 Wis.2d 22, 613 N.W.2d 190. This prohibition was in effect at the time of Hamilton's injury. See Department of Labor Appropriations Act of 1994, Pub.L. No. 103-112, 107 Stat. 1082, 1087. These appropriation riders demonstrate Congress's intent to insulate small farmers from OSHA requirements. Taft, at ¶ 23.

      . It is unnecessary to decide whether we should adopt the standards for admitting expert evidence articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co.v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), because the result in this case is the same under those standards and our traditional standards for admitting evidence under N.D.R.Ev. 702.