author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Appellant, v. Dennis Lee WHITLEY, Jr., Respondent.
    No. C0-02-623.
    Court of Appeals of Minnesota.
    Aug. 6, 2002.

      Mike Hatch, Attorney General, St. Paul, and Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, for appellant.
    Leonardo Castro, Hennepin County Public Defender, Melissa A. Haley, Assistant Public Defender, Minneapolis, for respondent.

      Considered and decided by ANDERSON, Presiding Judge, LANSING, Judge, and KALITOWSKI, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

The state charged respondent with fourth-degree criminal sexual conduct and failure to register as a predatory sex offender. The district court dismissed the charge of fourth-degree criminal sexual conduct because it concluded the complaint lacked probable cause based on its interpretation of the definition of “force” in the criminal-sexual-conduct statute. The state requested leave to amend the complaint and filed an amended complaint three days later. The state filed a second amended complaint seven days after filing the first amended complaint.

The district court also dismissed the charge of fourth-degree criminal sexual conduct in the second amended complaint because it concluded the complaint was untimely under Minn. R.Crim. P. 17.06, subd. 4(3). Because the district court did not review the sufficiency of the first amended complaint, the only complaint filed within seven days after the initial dismissal, we affirm the district court’s dismissal of the second amended complaint, and remand for the court to review the first amended complaint.

FACTS

On February 18, 2002, respondent allegedly sexually assaulted a female jogger by grabbing her buttocks and genital area. Police arrested respondent and charged him with fourth-degree criminal sexual conduct, a violation of Minn.Stat. § 609.345, subds. 1(c), 2 (2000 & Supp. 2001), and failing to register as a predatory sex offender, a violation of Minn.Stat. § 243.166, subd. 3 (2000 & Supp.2001).

At respondent’s March 19, 2002 probable cause hearing, the district court dismissed the charge of fourth-degree criminal sexual conduct because it concluded the state failed to establish probable cause that respondent used force or coercion to accomplish the sexual contact. The state requested leave to amend the probable cause section of the complaint within seven days. The parties agreed to a March 29 continued probable cause hearing date; but respondent’s counsel noted on the record that he was not waiving the seven-day period for filing an amended complaint.

On March 22, the state filed an amended complaint that stated an additional fact related to respondent’s alleged use of force to accomplish the sexual contact. On March 29, the day of respondent’s continued probable cause hearing, the state filed a second amended complaint that alleged additional facts relating to the incident. The court granted respondent’s request for a continuance to review the second amended complaint.

On April 5, the district court dismissed the charge of fourth-degree criminal sexual conduct because the state had not filed the second amended complaint within seven days after the court initially dismissed the charge on March 19. The court also found the second amended complaint failed to establish probable cause because it determined that the force required by the statute must occur before the sexual contact, as a means of accomplishing the sexual contact. This pretrial appeal followed.

ISSUES

I. Was the original complaint dismissed for a curable defect?

II. Was the second amended complaint timely?

ANALYSIS

Under Minn. R.Crim. P. 28.04, subd. 1(1), the state may appeal, as a matter of right, any pretrial order “based on questions of law.” When the state appeals a pretrial suppression order, it

must “clearly and unequivocally” show both that the trial court’s order will have a “critical impact” on the state’s ability to prosecute the - defendant successfully and that the order constituted error.

State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (quoting State v. Zanter, 585 N.W.2d 624, 630 (Minn.1995)). Here, the state has satisfied the critical-impact test because the district court’s order was based on its interpretation of a rule of criminal procedure that bars further prosecution of respondent. Interpretation of the rules of criminal procedure is a question of law, which we review de novo. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998); State v. Burns, 632 N.W.2d 794, 796 (Minn.App.2001).

I.

The state initially argues the seven-day period in Minn. R.Crim. P. 17.06, subd. 4(3), does not apply to bar the second amended complaint because the defect in the original complaint was noncurable. Minn. R.Crim. P. 17.06, subd. 4(3), provides:

If [a] dismissal is * * * for a defect that could be cured or avoided by an amended * * * complaint, further prosecution for the same offense shall not be barred, and the court shall on motion of the prosecuting attorney, made within seven (7) days after notice of the entry of the order granting the motion to dismiss, order that defendant’s bail * * * be continued * * * pending an amended * * * complaint.

The state must file an amended complaint rectifying a curable defect within seven days after the order dismissing the complaint. Id.; State v. Pettee, 538 N.W.2d 126, 131 (Minn.1995) (“The state satisfies [the seven-day period] either by moving for a continuance of the stay or by filing a new or amended * * * complaint within that seven-day period.” (citations omitted)); State v. Kivi, 554 N.W.2d 97, 102 (Minn.App.1996), review denied (Minn. Dec. 17, 1996). Unless the state files an amended complaint rectifying the curable defect or moves for a continuance within seven days, “the defendant shall be discharged and further prosecution for the same offense shall be barred.” Minn. R.Crim. P. 17.06, subd. 4(3).

Minn. R.Crim. P. 17.06, subd. 4(3), however, only applies when a district court dismisses a complaint for a curable defect:

Rule 17.06, subd. 4(3), does not govern dismissals for defects that could not be cured at the time of dismissal by a new or amended complaint * ⅝ *. Therefore, when a complaint * * ⅜ has been dismissed because of insufficient evidence to establish probable cause, the prosecutor may re-prosecute if further evidence is later discovered to establish probable cause.

Minn. R.Crim. P. 17.06 cmt. Thus, further prosecution is not barred if “the dismissal was for insufficient probable cause then available and sufficient evidence to establish probable cause is later discovered.” State v. Viergutz, 288 N.W.2d 693, 697 (Minn.1980); cf. State v. Aubolh 309 Minn. 323, 330, 244 N.W.2d 636, 640 (1976) (per curiam) (where prosecutor voluntarily dismisses an indictment for insufficient probable cause, “future prosecution of the defendant [is not] barred if additional evidence is found which would support an indictment” (citation omitted)).

The seven-day period in Minn. R.Crim. P. 17.06, subd. 4(3), therefore applies

where the original complaint was dismissed, not because evidence to establish probable cause was not available to the prosecutor, but because the prosecutor failed to refer to the evidence in the complaint.

Viergutz, 288 N.W.2d at 696. Consequently, where the additional evidence was available when the state filed its “original complaint and it was only through inadvertence that the prosecutor did not mention it in the [original] complaint,” the seven-day period applies. Id.

We conclude the district court dismissed the charge of fourth-degree criminal sexual conduct based on a curable defect because the record indicates the additional information alleged in the subsequent amended complaints was available to the prosecutor at the time the original complaint was filed. It was only through the prosecution’s apparent inadvertence that the additional information was not mentioned in the original complaint.

At the March 19 probable cause hearing, the court questioned the sufficiency of the facts alleged in the complaint as establishing that the sexual contact was accomplished using “force” as defined by statute. The prosecutor noted that, in reviewing the police report prepared after the incident, the victim stated in the report that she needed to push respondent away to stop the sexual contact. The prosecutor claimed that those supplemental facts, in conjunction with the allegations in the complaint, established probable cause on the issue of force. The prosecution, therefore, admitted at the March 19 probable cause hearing that there were additional facts then available that related to the use of force during the incident that were not alleged in the original complaint. At the April 5 hearing, however, respondent’s counsel suggested that the second amended complaint was apparently prepared after the prosecution telephoned the victim on March 28. But there is no evidence in the record that this conversation revealed any “later discovered” evidence to support probable cause.

II.

The state also argues that the filing of the first amended complaint on March 22 satisfied the seven-day period, although it acknowledges the district court did not review that complaint at the March 29 or April 5 probable cause hearings. According to the state, Minn. R.Crim. P. 3.04 permitted it to further amend the first amended complaint on March 29. Respondent, however, contends that the state neither asked the court to review the first amended complaint at the April 5 hearing, nor argued that the first amended complaint satisfied or otherwise tolled the seven-day period.

The record indicates the state filed its first amended complaint on March 22 and this complaint merely added an allegation that the victim believed respondent “intended to rape” her as opposed to the allegation in the original complaint that the victim believed respondent “intended to do more to her.” At the April 5 hearing, the parties admitted that they were unsure about what effect the first amended complaint had on the seven-day period; but the parties agreed that the second amended complaint, with its significantly amended probable cause section, was the only complaint before the court. Therefore, the dispositive question is whether the first amended complaint satisfied or otherwise tolled the seven-day period merely by being filed within the seven-day period.

As an initial matter, we agree with the state’s contention that the act of filing an amended complaint satisfies the filing requirement in Minn. R.Crim. P. 17.06, subd. 4(3). Pettee, 538 N.W.2d at 131 (stating that the state satisfies the rule by moving for a continuance or filing an amended complaint within seven days); Kivi, 554 N.W.2d at 102.

We reject, however, the state’s argument that the act of filing an amended complaint within the seven-day period permits it to further amend that complaint outside the seven-day period, and then proffer the second amended complaint for a district court’s probable cause review. One of the purposes of the rule requiring the state to rectify a curable probable cause defect within seven days is to permit the state to keep a defendant in custody, if applicable. See Minn. R.Crim. P. 17.06, subd. 4(3) (stating that during the seven-day period, “dismissal of the indictment or complaint shall be stayed”); Viergutz, 288 N.W.2d at 697 (“The idea behind the rule is that a defendant who is in custody will normally be kept in custody at least for 7 days following a dismissal of a prosecution against him on the basis of a defect in the complaint which is curable.”).

If we were to adopt the state’s position, a prosecutor could minimally amend a dismissed complaint (or theoretically re-file a dismissed complaint) within seven days to satisfy the seven-day period, and then rectify the remaining curable probable cause defect by filing yet another amended complaint, using Minn. R.Crim. P. 3.04, outside the seven-day period. Under such a rule, the state could potentially keep a defendant in custody for more than seven days even if the prosecution has not taken any steps to rectify the curable probable cause defect by alleging facts in an amended complaint that were known to the prosecution when it filed the original complaint.

We therefore conclude that, under Minn. R.Crim. P. 17.06, subd. 4(3), when a district court dismisses a complaint for a curable probable cause defect, the state may only proffer, for a later determination of probable cause, an amended complaint or complaints filed within seven days after the original dismissal.

Because the first amended complaint was the only complaint filed within the seven-day period, we affirm the district court’s dismissal of the second amended complaint, and remand this case to the district court for the court to consider the sufficiency of the first amended complaint under applicable law.

DECISION

The district court dismissed the charge of fourth-degree criminal sexual conduct against respondent based on a curable probable cause defect because the additional facts alleged in the subsequent amended complaints were available to the state at the time it filed the original complaint. Under Minn. R.Crim. P. 17.06, subd. 4(3), the district court properly dismissed the second amended complaint because it was not filed within the seven-day period mandated by the rule. Because the district court did not review the first amended complaint, the only amended complaint filed with the seven-day period, we remand for consideration of the first amended complaint under applicable law.

Affirmed in part and remanded.

      . Minn. R.Crim. P. 3.04, subd. 2, provides that pretrial proceedings may be continued to allow the state to file a new complaint, provided that the prosecution moves for a continuance on the grounds that (1) the original complaint does not properly describe or name the defendant or the offense charged; or (2) based on the evidence presented at the pretrial proceeding, it appears that probable cause exists to believe that the defendant has also committed additional offenses and the prosecution intends to charge the defendant with these offenses. See generally State v. Doeden, 309 Minn. 544, 546-47, 245 N.W.2d 233, 234 (1976) (per curiam); State v. Mickelson, 378 N.W.2d 17, 20 (Minn.App.1985) ("Under Minn. R.Crim. P. 3.04, subd. 2, a new complaint may be filed during pretrial proceedings.” (citations omitted)), review denied (Minn. Jan. 23, 1986). "If the proceedings are continued, the new complaint shall be filed and process issued ⅜ ⅜ * as soon as possible.” Minn. R.Crim. P. 3.04, subd. 2.

      . It is undisputed that the state never asked the district court to review the first amended complaint at the April 5 hearing, there are no orders with respect to the first amended complaint, and there is no record for this court to review relating to the sufficiency of the first amended complaint.

      . Here, respondent apparently remained in custody because the state also charged him with failing to register as a predatory sex offender. Respondent notes, however, that if the state had conceded that the original complaint suffered from a noncurable defect, the effect would have been a dismissal of the charge of fourth-degree criminal sexual conduct and his release from custody on bail conditions related to the charge of failing to register as a predatory sex offender. There is no indication in the record, however, that the district court would have released respondent from custody on that charge.

      . We lake no position on whether the first amended complaint established probable cause of respondent's use of force to accomplish the sexual contact. We note, however, that the supreme court has held that "sudden and painful grabbing and pinching of [a] victim’s breast is sufficient use of force to accomplish sexual contact to” constitute fourth-degree criminal sexual conduct. In re Welfare of D.L.K., 381 N.W.2d 435, 438 (Minn.1986). Thus, when a person "inflicts bodily harm or pain or the threat thereof on another while accomplishing sexual contact,” that person is guilty of fourth-degree criminal sexual conduct and there is no need to show that the victim resisted the person. Id. at 438, 439; see also State v. Middleton, 386 N.W.2d 226, 230 (Minn.1986) (stating that "[t]he coercion required by the statute need not precede or be separate from the sexual contact”); State v. Brouillette, 286 N.W.2d 702, 706 (Minn.1979) (stating that a person acts with "force” when he grabs the victim by the shoulders, grabs her buttocks and vaginal area, and the victim fears that "anything could happen”).


source: Caselaw Access Project

author: R.A. RANDALL, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Carl James JARVIS, Appellant.
    No. C2-01-1097.
    Court of Appeals of Minnesota.
    Aug. 13, 2002.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Alan Mitchell, St. Louis County Attorney, Duluth, MN, for respondent.
    John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, RANDALL, Judge, and FORSBERG, Judge.

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

   OPINION

R.A. RANDALL, Judge.

Appellant challenges his conviction for first-degree criminal sexual conduct, arguing that evidence is insufficient to support his conviction because the state used evidence that the victim had taken barbiturates, allegedly supplied by appellant, to prove two different elements of the offense. Appellant also argues that the district court should have suppressed his two statements made to the police because the interviews were custodial and should have been tape-recorded. Appellant also asserts that the prosecutor committed misconduct. We affirm.

FACTS

Appellant and K.F. were employed at the same company and developed a friendship. In late 1998 or early 1999, appellant solicited K.F. to work in his division at the company. Before February 16, 1999, appellant and K.F. met three times at a hotel to discuss her potential promotion. The meetings would last a few hours. According to K.F., other employees were not informed about the meetings because appellant told her it must be kept quiet because it was a government program. Appellant paid for the hotel room and brought liquor and coffee to the room. K.F. testified that she never had a sexual relationship with appellant.

In late 1998 or early 1999, K.F. told appellant that she was becoming tired at work and that she thought she should take vitamins. Appellant agreed and began bringing vitamins in a plastic bag to work. K.F. regularly took the vitamins. At some point, K.F. told appellant about her dream to become a model. Appellant told K.F. that he had a friend in the modeling business who could assist her. On February 15, 1999, appellant told K.F. that he had talked to his connection in the modeling business and that K.F. needed to get a portfolio together. Appellant and K.F. planned to meet the next day at a hotel so appellant could photograph K.F. in her wedding dress, other dresses, and negligees.

K.F. testified that she arrived at the hotel at about 10:00 or 10:30 on the morning of February 16,1999. She paid for the room with money appellant had given her the night before. Appellant offered K.F. coffee with liquor in it, and K.F. had one sip. At one point, appellant stated, [W]e better not forget to take our vitamins. Appellant took some pills out of a plastic bag and handed them to K.F., and K.F. took the pills. About ten minutes later, K.F. testified that appellant’s words start[ed] to get long, the room start[ed] to get blurry. The last thing K.F. remembered that morning was listening to him talk and just hearing words being drawn out, the room just becoming like a glazed white. K.F. next remembered

waking up to a click in the door and somebody coming in the room. * * * I was on the bed with nothing but a shirt on under some covers. Hearing a click in the door, somebody walking in, not being able to move, and everything still being fuzzy and the room spinning and being very confused.

K.P. testified that she felt

[disorientated. I was laying down, so I tried to get up, and it was like you couldn’t move your body. It was like you were just laying there trying to force yourself to get up; I couldn’t. I still didn’t know what was going on. I was still pretty groggy.

When she heard the door click, she looked to see who was at the door, and she saw appellant. Appellant then got into bed with K.F. and penetrated her. K.F. remembered that he ejaculated inside her, and she presumed that his semen would be found inside her because he did not use a condom.

K.F. stated she did not remember anything for a while again, and then she remembered being scared and wondering what’s going to happen to me next. She got up, gathered her belongings, and went to her car. K.F. admits she was in no shape to drive, but because she had to get out of there, she drove her ear. She stopped at a wayside rest stop. Later, two police officers and K.F.’s husband arrived. She told the officers she had been drugged and raped.

Afterward, HF.’s husband brought her to a hospital. K.F. told the doctor she thought she had been drugged and raped. She thought she had been drugged because her motor functions were still slow and she remained disorientated. A nurse testified that K.F. was groggy, not really sure of events, had to be reminded of things frequently, and just * ⅜ * being somewhat bewildered about what was going on. The doctor testified that he initially believed she was possibly recovering from the influence of * * * barbiturates. The doctor also testified that there was no evidence of trauma or injury to KF.’s vaginal area but that K.F. told him she felt that she had had vaginal penetration. The doctor testified that K.F. stated that she ingested a beverage at about 10 a.m., became groggy, and did not remember anything until about 5 p.m. The doctor concluded that K.F. was amnesic for a six or seven hour period. At the hospital, KF.’s blood was drawn. The lab tests revealed that K.F. did not have alcohol in her system.

At trial, the state showed K.F. photos of herself taken wearing various articles of clothing in the hotel room. K.F. recognized the hotel room but did not remember any of the photos being taken. K.F. had no recollection of ever consenting to sexual activity with appellant that day, and she stated that she never consented to any sexual activity with appellant at any time.

After the incident, an officer searched the hotel room and found an empty plastic bag but no pills. A sergeant executed a search warrant on February 19, 1999, at appellant’s place of employment. After being informed that appellant had just left the restroom, the sergeant searched the men’s restroom and found an unlabeled, empty, uncapped pill bottle in the trash container. After the search at his place of employment, appellant answered questions at the police station. Officers also searched appellant’s workspace, home, and vehicle and found an assortment of pills. A forensic scientist from the Bureau of Criminal Apprehension (BCA) testified that the pills did not contain any barbiturates.

A second forensic scientist from BCA testified that KF.’s blood sample taken at the hospital tested positive for the presence of two distinct barbiturate drugs, Amobarbital and Secobarbital. The forensic scientist testified that a barbiturate is a class of drugs that are known as sedative hypnotic drugs. Secobarbital would induce a hypnotic effect that would put in a hypnotic type of sleep, not a normal sleep. The effect of the two drugs at lower concentrations would look like alcohol impairment, including slurred speech, stumbling, and divided attention. The forensic scientist further testified that sometimes the drugs are given as a preoperative medicine and sometimes people who have taken the drugs for this purpose do not remember their conversations. KF.’s blood test revealed 3.4 milligrams of Amobarbital and 2.8 milligrams of Secobarbital in her blood, and the forensic scientist testified that this is a high level in the blood and that if a person was not accustomed to taking those drugs, the effects would be high to almost toxic.

The jury found appellant guilty of first-degree sexual conduct and use of drugs to facilitate a crime. This appeal followed.

ISSUES

I. Was the evidence sufficient to sustain the jury’s guilty verdict where the state used the same set of facts to establish the separate elements of physical helplessness and personal injury?

II. Did the district court err in refusing to suppress appellant’s statements to the police?

III. Did the prosecution commit misconduct?

ANALYSIS

I.

I. Sufficiency of the Evidence

Appellant argues that the evidence is insufficient to sustain the jury’s guilty verdict as a matter of law because the state used the same set of facts to establish two separate elements of first-degree sexual conduct, namely the elements of mental impairment or physical helplessness and personal injury.

An appellate court’s review of a challenge to the sufficiency of evidence is limited to determining whether the evidence, viewed in the light most favorable to the conviction, supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). A reviewing court recognizes that the jury is in the best position to evaluate the credibility of witnesses and assumes that the jurors believed the state’s witnesses. State v. Profit, 591 N.W.2d 451, 467 (Minn.1999).

Under Minn.Stat. § 609.342, subd. 1 (1998), criminal sexual conduct in the first degree is defined as:

A person who engages in sexual penetration with another person * * * is guilty of criminal sexual conduct in the first degree if any of the following circumstances exists:
(e) the actor causes personal injury to the complainant, and either of the following circumstances exist:
(ii) the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless;

Thus, to obtain a conviction, the state needed to establish (1) appellant penetrated K.F.; (2) appellant caused K.F. personal injury; and (3) K.F. was mentally incapacitated or physically helpless. Appellant does not dispute that the elements of penetration or mental incapacity/physical helplessness were met. Instead, appellant asserts the evidence is insufficient to establish personal injury under Minn. Stat. § 609.342, subd. 1(e). We disagree.

Statutory construction is question of law reviewed de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). Under Minn.Stat. § 609.341, subd. 8 (1998), personal injury means bodily harm as defined in section 609.02. Bodily harm means physical pain or injury, illness, or any impairment of physical condition. Minn.Stat. § 609.02, subd. 7 (1998). Either pain or minimal injury would be sufficient to establish bodily harm under section 609.02 and therefore personal injury under section 609.341, subd. 8. State v. Bowser, 307 N.W.2d 778, 779 (Minn.1981).

Here, the doctor testified that after he decided not to obtain a rectal swab because K.F. denied any rectal pain, K.F. changed her mind because she felt some rectal pain. K.F. testified that she was disorientated, groggy, and could not get up or move her body. The officer who met with K.F. at the wayside testified that KF.’s speech was slurred and her balance was so poor that the officer had to assist K.F. stand up and walk to the car. The doctor testified that he believed that K.F. was possibly recovering from the influence of * * * barbiturates and concluded that she was amnesic for a six or seven hour period. The doctor testified that although he did not know if K.F. lost consciousness, if she was unconscious, this would put [her] at risk of injury. The doctor further testified:

Q: Doctor, * * * [e]ven if maybe she did not lose consciousness totally, but take into consideration the barbiturates in her system to the point of suffering the amnesia that she told you about over a period of approximately six and a half hours, to a reasonable medical certainty, would you consider her to have suffered some type of impairment of her physical condition?
A: Yes. Yes, absolutely.

The forensic scientist testified that when the drug first becomes effective, it goes to the brain and gets chemically bound to some cell in the brain where it interferes with brain function. The scientist testified that if the barbiturates reach a toxic level in the blood stream, a person would become comatose and death can result and that if the drugs in K.F.’s system were ingested at 10:00 in the morning, they would definitely be in the toxic range at that time, and therefore, could have caused death.

Personal injury requires only a minimal amount of physical injury. Bowser, 307 N.W.2d at 779. In Powe v. State, this court found sufficient evidence to support personal injury where the victim experienced irritation in the vaginal area and pain in her lower stomach, and broke a thumbnail in attempting to prevent the assault. Powe v. State, 389 N.W.2d 215, 219 (Minn.App.1986), review denied (Minn. Jul. 31, 1986); see also State v. Mattson, 376 N.W.2d 413, 415 (Minn.1985) (concluding soreness and bruise on left breast resulting from the contact was sufficient to establish personal injury for first-degree sexual assault); State v. Reynolds, 386 N.W.2d 828, 830 (Minn.App.1986) (finding victim’s bruised hand sufficient to establish personal injury). Here, the state has set forth sufficient evidence upon which the jury could conclude that K.F. suffered a personal injury. Because the evidence is sufficient for a jury to conclude that appellant drugged K.F. and that K.F. suffered a physical impairment as a result of the defendant’s action, we conclude the evidence is sufficient to establish personal injury for first-degree criminal sexual conduct.

Appellant argues that the same facts used to establish mentally incapacity or physical helplessness cannot be used to establish personal injury. We disagree; this is not an issue of single behavioral incident or a single act. The single behavioral incident statute, Minn.Stat. § 609.035 (2000), protects criminal defendants from both multiple prosecutions and multiple sentences for offenses resulting from the same behavioral incident. State v. Schmidt, 612 N.W.2d 871, 876 (Minn.2000). The single act statute, Minn.Stat. § 609.04 (2000), bars the conviction of a defendant twice for the same offense against the same victim on the basis of the same act. State v. Ture, 353 N.W.2d 502, 517 (Minn. 1984). Sections 609.035 and 609.04 limit the state’s ability to prosecute, sentence, or obtain a separate conviction for criminal acts that arise out of the same set of facts. This is not the issue before us. Here, we have the narrow issue of whether a series of acts leading to a victim’s mental incapacity or physical helplessness can also be the same series of acts leading to personal injury.

We agree with appellant that the same series of acts was used to prove two elements. But appellant has cited no law that forbids a state from proving more than one essential element of a crime by using the same series of acts. We find no support in the law for appellant’s contention. The same sequence of events can prove multiple elements of one crime. For instance, murder in the first degree requires the state to prove different elements, including premeditation to kill, intent to kill, and causing the death of a human being. Minn.Stat. § 609.185(1) (2000). Nothing prohibits the state from using the same series of acts to establish these elements. For example, while at a bar, a defendant pulls a pistol out of his belt and says to a man next to him with whom he was arguing, I am going to kill you. The defendant pulls the pistol up to shoulder level, aims it at the man, cocks the trigger, pulls the trigger, and kills the man. That is one series of acts. That same (one) series produces evidence that permits the state to argue the defendant (1) premeditated; (2) had intent to kill; and (3) killed a human being.

In other words, when the essential elements of a crime are multiple, as they always are, typically the single course of conduct the defendant follows may be used to fulfill each essential element. It is even possible that the same sequence of acts can prove two independent crimes for which a defendant can be prosecuted. If a burglar entered a dwelling with the intent to commit a crime and stole an item while inside, not only does that single course of conduct fulfill the multiple elements of burglary, but it also fulfills the definition of the independent crime of theft. See Minn.Stat. § 609.582, subd. 3 (2000) (defining burglary as entering a building without consent and with intent to steal); Minn. Stat. § 609.52, subd. 2(2) (2000) (defining theft as intentionally and without claim of right taking the movable property of another without the other’s consent and with intent to deprive owner permanently of possession); State v. Minton, 276 Minn. 213, 215, 149 N.W.2d 384, 386 (1967) (stating crime of theft is not lesser included offense of burglary). We conclude that the same set of facts here used to establish mental incapacity or physical helplessness can also establish personal injury. We find the evidence is sufficient to sustain appellant’s conviction.

II. Suppression of statement

Appellant argues that the district court erred in denying his motion to suppress his two statements to the police because (1) the interviews were custodial and were not recorded by police; and (2) even if the interviews were not custodial, the police should have recorded the interview because they occurred at places of detention and recording equipment was available.

In State v. Scales, the supreme court concluded that

all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.

State v. Scales, 518 N.W.2d 587, 592 (1994). The district court may suppress any statements made during the off-the-record interrogation if the court finds that the violation of the recording requirement was substantial. Id. The determination of whether a violation was substantial is made on a case-by case basis considering all of the relevant circumstances. Id. Whether there was a substantial violation of Scales requirement is a legal question subject to de novo review. State v. Critt, 554 N,W.2d 93, 95 (Minn.App.1996), review denied (Minn. Nov. 20,1996).

Appellant challenges two statements he gave to police. On February 19, 1999, an officer questioned appellant at the police department after officers had searched his place of employment. On February 26, 1999, appellant had his saliva, blood, and hair tested at a hospital pursuant to a search warrant, and appellant gave the-officer who was present for the tests a statement in the officer’s squad car. Appellant asserts that the interviews were custodial because (1) at the time of the interrogations the police had probable cause to believe a crime had taken place; (2) police had no other suspects; (3) the February 19, 1999, interview lasted three-hours and took place at a place of detention and occurred after four officers arrived at appellant’s place of employment to conduct a search; (4) the February 26, 1999, interview in the squad car occurred at a place of detention; and (5) by not arresting appellant, police circumvented the Scales requirement. We disagree.

The determination of whether a suspect is in custody is an objective inquiry, and the district court must decide whether a reasonable person in the suspect’s situation would have understood that he was in custody. State v. Hince, 540 N.W.2d 820, 823 (Minn.1995). An appellate court independently reviews the district court’s determination regarding custody. Id.

At the omnibus hearing, the officer who questioned appellant at the police department on February 19, 1999, testified that she explained to appellant that appellant was not under arrest and was under no obligation to speak to him and that appellant said that he was more than willing to come down to talk. In her report, she writes, I explained to [appellant] this would be of his own free will and he was not under arrest, nor would I detain him in anyway, and at any time if he wished to leave, all he had to do was say so. A second officer, who was present on February 26,1999, when appellant had his saliva, blood, and hair tested pursuant to a search warrant, testified that appellant initiated contact to discuss the case and that the officer told him he should consult his attorney first. A complaint was not filed against appellant until April 26, 2000, more than a year after his statements to the police.

The officers’ testimony establishes that on February 19 and February 26, appellant was free to leave and not answer police questions and that on February 26, appellant initiated the contact. We con-elude that a reasonable person in appellant’s situation would have understood that he was not in custody, and, thus, the interviews were not custodial and not subject to the Scales recording requirement. Appellant argues that the officers attempted to circumvent the Scales requirement. However, more than a year passed between the time appellant gave his statements and the complaint was filed. On this record, there is no evidence that the officers intentionally attempted to circumvent Scales.

Appellant also asserts that even if the interviews were not custodial, the officers should have recorded the interviews because they occurred at a place of detention and recording equipment was available. Appellant asks this court to extend Scales to noncustodial interrogation occurring at a place of detention when electronically feasible.

The supreme court’s decision in Scales was not based on either the Federal or the Minnesota Constitution. Scales, 518 N.W.2d at 592. The purpose of the recording requirement is to avoid factual disputes about a suspect’s claim that police officers violated his rights. Id. at 591 (citation omitted); see also State v. Miller, 573 N.W.2d 661, 674 (Minn.1998) (reiterating rationale for Scales decision was to prevent factual disputes about existence and context of Miranda warnings and any ensuing waiver of rights). In State v. Thaggard, 527 N.W.2d 804, 807-08 (Minn. 1995), the supreme court held that the primary purpose of the recording requirement was not to help the criminal defendants or the state but to assist the court in the resolution of evidentiary disputes and in more accurately determining the underlying facts. Here, appellant is not claiming that the officers did not give him a Miranda warning or otherwise failed to procure a waiver of his rights. Rather, appellant argues that because no recording was made, and because the police officers’ testified to statements made by appellant that were inconsistent with appellant’s testimony at trial, the jury questioned appellant’s credibility. We understand the argument. But using a recording solely for the purpose of bolstering a (noncustodial) defendant’s credibility is not, at least yet, mandated by Scales. We decline to extend Scales to these circumstances. The district court did not err in denying appellant motion to suppress the statements.

III. Prosecutorial Misconduct

Appellant argues in his pro se brief that the prosecutor committed misconduct by introducing into evidence a pill bottle found in the bathroom of appellant’s place of employment and stating in closing arguments that the parties stipulated that the police fingerprinted the bottle and found no prints. Appellant asserts that he did not intend to enter into such a stipulation and that he has the right not to stipulate to any evidence.

A district court’s denial of a new trial motion based on alleged prosecu-torial misconduct will be reversed only when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.2000) (citations omitted). In cases involving less serious prosecutorial misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

The record shows that appellant did not stipulate that the container was fingerprinted:

STATE: Your Honor, we’ll stipulate that this was checked, and there are no finger — there were no fingerprints found on this item.
DEFENSE: Well, I — I’m not going to stipulate. I don’t have any — if he wants to introduce it into evidence, I can—
STATE: I’ll offer—
DEFENSE: — I am not going to object to that.

In closing arguments, the defense argued that the police did not properly investigate the allegation against appellant, by pointing out, among other things, that the police failed to fingerprint the pill container. During the state’s rebuttal, appellant objected when the prosecutor argued that the parties stipulated that no prints were found on the container:

[Wjhat do we find in the bathroom? An empty pill container. Did you find the drug in it? No. His fingerprints on it? No.

The prosecutor apparently misconstrued appellant’s statement that I am not going to object to that to mean that he withdrew his objection to the stipulation that the container contained no fingerprints. But appellant’s counsel only stated he would not object to admission of the pill bottle into evidence. However, we conclude that the prosecutor’s misinterpretation and resulting comment in closing argument does not rise to the level of serious prosecutorial misconduct. We find no evidence of bad faith on the part of the prosecutor.

When considering the trial as a whole, the misconduct was not so prejudicial that appellant’s constitutional right to a fair trial was impaired. The administration of justice does not mandate a new trial on these facts. The pill bottle was unlabeled, empty, and found in a restroom used by many employees. The absence of fingerprints on the container could support that the pill container did not belong to appellant. Officers found an assortment of pills in appellant’s home, vehicle, and place of employment. Appellant admitted he provided K.F. with vitamins at work prior to the day of the incident. In light of the substantial evidence that appellant possessed a various assortment of pills, whether or not appellant’s fingerprints appeared on the pill container (and thus whether or not appellant stipulated to this fact) would not have played a substantial part in influencing the jury to convict. See State v. Bonn, 412 N.W.2d 28, 30 (Minn. App.1987) (concluding defendant was not denied right to fair trial where prosecutor’s remarks were inadvertent, the prejudicial impact was speculative and minimal, and the evidence implicating the defendant was overwhelming), review denied (Minn. Oct. 21, 1987). We conclude the district court did not err by denying appellant’s motion for new trial based on prosecutorial misconduct.

DECISION

The evidence is sufficient to sustain appellant’s conviction for first-degree criminal sexual conduct. Different facts and/or the same facts can be used by the state to prove more than one essential element of a criminal act.

The officers did not violate the Scales recording requirement. We decline to extend Scales to the circumstances of this case.

The prosecutor did not commit serious misconduct. Appellant’s constitutional right to a fair trial was not impaired.

Affirmed.

      . Appellant also asserts that the criminal sexual conduct statutes are vague and violate due process. The supreme court has rejected this argument. State v. Reinke, 343 N.W.2d 660, 662 (Minn.1984) (rejecting argument that ihere are vagueness and due process problems with the criminal sexual conduct statutes where defendant argued state failed to establish personal injury for first-degree sexual assault charge).


author: VANDE WALLE, Chief Justice.

text:
    2002 ND 129
    Cheryll RUSH, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Knife River Care Center, Respondent.
    No. 20010282.
    Supreme Court of North Dakota.
    Aug. 15, 2002.
    Cheryll Rush, pro se, Hazen, claimant and appellant.
    Lawrence A. Dopson, Special Assistant Attorney General, Bismarck, for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Cheryll Rush appealed from a district court judgment affirming a Workers Compensation Bureau order which denied benefits for Rush’s cardiomyopathy and congestive heart failure. We affirm, concluding the Bureau did not err in determining Rush’s heart condition was not causally related to her prior work injury.

I

[¶ 2] On January 7, 1999, Rush was injured while working at the Knife River Care Center in Beulah. A leak occurred in the hot water heating system at the care center and, because employees originally believed the escaping vapor was smoke from a fire, Rush was directed to enter the room with a fire extinguisher. Rush experienced difficulty breathing and burning eyes, which she alleged were caused by exposure to ethylene glycol. She received treatment for her injuries in the emergency room of a local hospital, and subsequently saw a nurse practitioner a few weeks later. Rush filed a claim with the Bureau for her medical expenses,, which the Bureau accepted and paid.

[¶ 3] In July 1999, Rush was diagnosed with cardiomyopathy and congestive heart failure. Rush received treatment for her heart condition in Bismarck and at the Mayo Clinic. The Bureau denied payment for her heart-related medical bills, claiming Rush’s heart condition was not causally related to her earlier work injury. Rush requested and received a hearing before an administrative law judge, who found that the cause of Rush’s heart condition was unknown and recommended denial of her claim. The Bureau agreed with the administrative law judge’s finding that the cause of Rush’s heart condition was unknown. Concluding Rush had failed to establish a causal relation between her work injury and her heart condition, the Bureau entered an order denying benefits.

[¶ 4] Rush appealed to the district court, which affirmed the decision of the Bureau.

II

[¶ 5] This Court exercises limited review in appeals involving decisions of the Bureau. Wright v. North Dakota Workers Comp. Bureau, 2001 ND 72, ¶ 12, 625 N.W.2d 256. We review the decision of the Bureau and our review is limited to the record before the Bureau. Wanstrom v. North Dakota Workers Comp. Bureau, 2001 ND 21, ¶ 5, 621 N.W.2d 864; Tangen v. North Dakota Workers Comp. Bureau, 2000 ND 135, ¶ 9, 613 N.W.2d 490. Under N.D.C.C. §§ 28-32-19 and 28-32-21 (amended and codified at N.D.C.C. §§ 28-32^6 and 28-32-49), we affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law, its decision violates the claimant’s constitutional rights, or its rules or procedures deprived the claimant of a fair hearing. Wright, at ¶ 12. We exercise restraint in determining whether the Bureau’s findings of fact are supported by a preponderance of the evidence. Id.; Wanstrom, at ¶ 5. We do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Wright, at ¶ 12; Wanstrom, at ¶ 5.

[¶ 6] A claimant seeking benefits from the workers compensation fund has the burden of proving by a preponderance of the evidence that she is entitled to benefits. N.D.C.C. § 65-01-11; Berger v. North Dakota Workers Comp. Bureau, 2000 ND 224, ¶ 12, 620 N.W.2d 576; Tangen, 2000 ND 135, ¶ 18, 613 N.W.2d 490. The claimant must establish by a preponderance of the evidence that the medical condition for which benefits are sought is causally related to her work injury. E.g., Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 8, 611 N.W.2d 898; Howes v. North Dakota Workers Comp. Bureau, 429 N.W.2d 730, 733 (N.D.1988). Under N.D.C.C. § 65-01-02(11), a compensable injury “must be established by medical evidence supported by objective medical findings.”

[¶ 7] Rush had the burden of proving by a preponderance of the medical evidence that her heart problems were causally related to her exposure to ethylene glycol at work. Rush failed to present any medical evidence at the hearing which established a causal relation between her exposure to ethylene glycol and her subsequent heart problems. Her medical records indicated that the doctors who treated her after the heart problems were discovered in July 1999 could not causally connect her cardiomyopathy and congestive heart failure with the prior exposure to ethylene glycol. The doctors concluded the cause of her heart condition was unknown.

[¶ 8] When asked at oral argument what medical evidence in the record established a causal relation between the ethylene glycol exposure and her heart problems, Rush responded that the “closest” was the opinion from Dr. Molenaar. Rush saw Dr. Molenaar at the Mayo Clinic for the specific purpose of determining whether Rush’s heart problems were causally related to her exposure to ethylene glycol. Dr. Molenaar concluded that it could not be determined whether Rush’s exposure caused her later heart problems:

From a toxicologic perspective, ethylene glycol may cause congestive heart failure following severe ingestion incidents. I am not aware of any evidence in the literature correlating ethylene glycol inhalation with the development of congestive heart failure. The glycols are cardioactive, however, as they may be arrhythmogenic....
One, of course, is struck by the patient’s description of having been healthy until this incident. This, of course, does not preclude the possibility that cardiomyo-pathy could have been developing coincidentally. The presence of a left bundle branch block three years prior to the exposure incident raises concern about occult heart disease but, to my understanding, is not a sensitive predictor of cardiomyopathy. What is clear is that the patient’s heart enlargement did not develop until June 27 following the exposure incident in the preceding January. One cannot state definitively that exposure to ethylene glycol and/or its combustion products resulted in the development of cardiomyopathy in this patient. ... It is clear that by history the patient did experience toxic exposures, albeit for a brief period of time, as she was not wearing protective equipment. To what degree these exposures may have contributed to the development of her underlying heart disease cannot be stated with certainty.

Dr. Molenaar’s opinion indicates he is unaware of any evidence correlating ethylene glycol inhalation with development of congestive heart failure, and he is unable to state that Rush’s exposure caused her car-diomyopathy. The statement of Dr. Mol-enaar may, from Rush’s viewpoint, be read as speculation that the ethylene glycol was the cause of Rush’s heart problems, but speculation as to cause does not meet the burden of'proving cause by a preponderance of the evidence. See, e.g., Wherry v. North Dakota State Hosp., 498 N.W.2d 136, 141 (N.D.1993) (claimant has the burden of establishing a causal relationship between the medical condition and the work injury, and that burden is not satisfied by surmise, conjecture, or mere guess); Inglis v. North Dakota Workmen’s Comp. Bureau, 312 N.W.2d 318, 322 (N.D.1981) (same). Consequently, Dr. Molen-aar’s opinion does not support Rush’s claim that her heart problems were caused by her exposure to ethylene glycol at work.

[¶ 9] We conclude the Bureau’s finding that the cause of Rush’s heart condition is unknown is supported'by a preponderance of the evidence. The Bureau’s conclusion of law that Rush failed to show by a .preponderance of the evidence that her heart condition was causally related to her work injury is supported by its findings of fact and by the evidentiary record.

[¶ 10] We have considered the remaining issues raised by Rush on appeal and they are either unnecessary to our decision or are without merit. We affirm the district court judgment affirming the order of the Bureau.

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

      . N.D.C.C. § 28-32-46, effective August 1, 2001, after the appeal to the district court in this case was filed, added two additional items which the reviewing court must consider before affirming the order of the agency, ' i.e., the order of the agency must be affirmed unless the findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant or the conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.


author: KAPSNER, Justice. MARING, Justice,

text:
    2002 ND 126
    John Robert BEAULAC, Plaintiff and Appellant, v. Donna Gail BEAULAC, Defendant and Appellee.
    No. 20010316.
    Supreme Court of North Dakota.
    Aug. 15, 2002.

      Lynn M. Boughey, Boughey Law Firm, Minot, for plaintiff and appellant.
    Richard L. Hagar, Kenner Sturdevant Peterson & Cresap, PC, Minot, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] John BeauLac appealed from a December 12, 2001, order denying his motion requesting the court to hold his former spouse, Donna BeauLac, in contempt of court. He also appealed from a December 19, 2001, amended judgment awarding custody of the parties’ daughter to him and the parties’ son to Donna BeauLac. We hold the trial court’s custody award is not clearly erroneous, and the court did not abuse its discretion in refusing to hold Donna BeauLac in contempt of court. We, therefore, affirm the court’s order and amended judgment.

I

[¶ 2] John and Donna BeauLac were married in June 1978. They had two children: a daughter, born in 1988, and a son, born in 1991. Irreconcilable differences developed in the marriage and the parties were divorced in October 1998. Under the original divorce decree Donna received custody of both children.

[¶ 3] Problems developed in the relationship between Donna and her daughter. Donna explained, “I think [my daughter] has a lot of anger for some reason. For some reason she feels that perhaps I am to blame for the divorce, or some reason she has resentment towards me. There are moments that we have had together when she has shown closeness, but it’s very reserved.” On several occasions, the daughter attempted to run away from Donna’s home in Minot to stay with John, who was also living in Minot.

[¶ 4] In May 2000, John moved for custody of the children. There was never a hearing on this motion. Instead, the parties stipulated John would receive full-time extended visitation with their daughter for the entire 2000-2001 school year, from August 30, 2000, to May 25, 2001. When asked if the stipulation was her idea, Donna responded:

Yes it was. We — -I came up with that because of the difficulty with her running away and accusing me of abuse and not willing to cooperate with me when I had guidelines and rules and things set before her to do, and my parenting with her was becoming more and more difficult, and her stance was still that she wanted to live with her dad, and so I thought for a period we might see what it would — how it would do, how it would affect her grades, and I understood that if she did well in school it was a very clear possibility she would end up living with her dad.

Based upon the parties’ stipulation, the trial court entered an order on November 29, 2000, placing the daughter in John’s custody until May 25, 2001, leaving the son in Donna’s custody, and setting a visitation schedule for the non-custodial parent of each child, including alternating weekend visitations and specified holiday visitations.

[¶ 5] On May 2, 2001, John moved for permanent custody of both children. After a hearing on May 17, 2001, the trial court ruled from the bench:

I guess one of the concerns I have here, after listening and reading the file again, of the way that [the daughter] has learned to take advantage of these two parents. She knows they are vulnerable, she knows they don’t like each other, she knows she can play one against the other, and she is probably pretty good at that, and I am concerned that [the son] is going to be learning these same tricks, and gonna be doing that same stuff ....
As far as [the son’s] statements about being the man of the house, etcetera, they could be an indication of the — what is it you called it — parentification. They could also be a way to soften the blow to dad to say why I want to live with mom, and I’ll have some excuses to why I don’t want to make dad unhappy either. Because he obviously loves both his parents ....
Normally I would keep siblings together, but I am not going to in this case. I believe that there has been a significant change of circumstances that necessitates change of custody for [the daughter], and the motion is granted and the father is granted custody. But I don’t find that same thing with [the son]. The burden is pretty heavy. Change of circumstances necessitating change in custody. No, that’s — it’s not necessary at this point. He is doing fíne, and I think he will continue to do so.

[¶ 6] On November 16, 2001, John filed three separate motions, requesting the court to reconsider its refusal to award him custody of his son, to develop a structured visitation schedule for the parties, and to hold Donna in contempt of court “for selling [the daughter’s] horse in contradiction of the Court’s verbal directives of May 17, 2001.” On November 28, 2001, a hearing was held on these motions.

[¶ 7] On December 12, 2001, the court entered an. order, based upon the May 17, 2001, hearing, awarding John custody of his daughter, denying John’s motion for custody of his son, and ordering the parties to either set a visitation schedule or return to the court for resolution of the visitation issue. The court entered a second order on December 12, 2001, denying John’s motion to hold Donna in contempt for selling the daughter’s horse, denying John’s motion for reconsideration of the court’s refusal to award John custody of his son, and granting John’s motion for structured visitation. On December 19, 2001, the court entered an amended judgment awarding John custody of his daughter, awarding Donna custody of her son, and setting structured visitation for the parties. John appealed.

II

[¶ 8] John asserts the trial court erred in refusing to find Donna in contempt of court for selling the horse. At the close of the May 17, 2001, hearing, after the trial judge announced the court was going to award John custody of his daughter, John’s attorney informed the court that the daughter owned a horse and would like to “work with it this summer.” A discussion ensued, wherein Donna told the court she had boarded the horse with a person living near Granville and there were outstanding boarding fees. The court asked Donna if she had any objection “to [John] taking over the boarding fees?” She responded, “[i]f he wants to pay them.” John’s attorney then commented, “I don’t know why he should pay the boarding fees that she has been not paying.” The court expressed frustration that the parties had raised this issue after the hearing was concluded and without presenting any testimony on it. The discussion continued:

THE COURT: The bills are gonna be yours, you are the one that’s been boarding it there. I assume he doesn’t have any contract there, so you are probably going to get stuck with those, but — I don’t know. It seems to me that the horse should go with the child unless you disagree that it’s her horse.
MS. BEAULAC: I disagree. It’s not really her horse, but I’m not going to pick.
THE COURT: Okay. The horse — I guess you got the horse.
MR. BOUGHEY: Thank you, your Honor. We have nothing else.
THE COURT: And whatever goes with it.
MR. HAGAR: Your Honor, if the gentleman doesn’t release the horse because of the bills, are you requiring then that my client has to pay the bills in order to get the horse released?
THE COURT: I am not doing anything with that.
MR. HAGAR: I didn’t think so, your Honor, that’s why I just thought I would ask.
THE COURT: I can’t order him to do anything. If he has got a lien on the horse, he has got a lien on the horse.

[¶ 9] Shortly after the hearing, Donna wrote the person who was boarding the horse and authorized him to sell the horse to pay for the outstanding boarding fees. When John discovered the horse had been sold, he filed a motion requesting the court to hold Donna in contempt. At the November 28, 2001, hearing, the court explained:

THE COURT: Let’s — let’s stop with the horse. As far as I am concerned, [Donna’s] interpretation of what happened is exactly my interpretation of what happened. At the end of a case, without hearing any evidence one way or the other both counsel sprung a new decision on me that gave me no evidence to make [sic], and everybody had an opinion on it, and I asked some questions to try [to] understand what was going on. I made some statements in an effort to try [to] broker a deal, but as far as I am concerned anything that I said regarding that horse is at best dicta, and I am not going to be finding anybody in contempt regarding the horse.
MR. BOUGHEY: Your Honor, I find that very unfortunate given the context.
THE COURT: Well, I understand what it says. I understand. I have read what you put in. I reread the transcript. I remember exactly the way I felt at the time, that I wanted to make no decision on that. I attempted to try [to] resolve that in the hopes that it could be resolved. I was unable to do so, and any decision I did make was made without proper foundation as far as evidence. I heard nothing about who paid for it, I heard nothing about — as far as testimony. I am not going to be finding her in contempt for violating anything on that.

Thereafter, the court entered its order denying John’s motion to hold Donna in contempt for allowing the boarder to sell the horse.

[¶ 10] A prerequisite for finding a person in contempt of a prior court order is that the person had actual notice or knowledge of that order. Bjorgen v. Kinsey, 491 N.W.2d 389, 395 (N.D.1992). In Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶ 5, 598 N.W.2d 499, this Court explained the standards for proving civil contempt and for reviewing the lower court’s decision:

In a civil contempt proceeding, a complainant must clearly and satisfactorily show that the alleged contempt has been committed. Civil contempt requires a ■willful and inexcusable intent to violate a court order. When reviewing a contempt sentence, the ultimate determination of whether or not a contempt has been committed is within the trial court’s sound discretion. A trial court’s finding of contempt will not be overturned unless there is a clear abuse of discretion. An abuse of discretion occurs when the trial court acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law.

(Citations omitted.)

[¶ 11] In this case, the trial court clearly explained that although it tried to “broker a deal” among the parties regarding placement of the horse and payment of the boarding fees, the court did not issue an explicit order requiring Donna to return the horse to John or the daughter or forbidding Donna from having the horse sold to pay for boarding fees. Consequently, the trial court concluded Donna had not violated any order of the court and should not be held in contempt. Under these circumstances, we conclude the court did not abuse its discretion in denying John’s motion to have Donna held in contempt of court.

Ill

[¶ 12] John asserts the trial court’s decision to award him custody of the daughter while allowing Donna to retain custody of their son is clearly erroneous. The party seeking modification bears the burden of showing a change of custody is required. Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564. When a trial court entertains a motion to change custody it must determine two issues: (1) whether there has been a significant change in circumstances since the original divorce decree and custody award and, if so, (2) whether a change in custody is necessary to foster 'the best interests of the child. Kelly v. Kelly, 2002 ND 37, ¶ 15, 640 N.W.2d 38. A trial court’s decision to modify custody is a finding of fact subject to the clearly erroneous standard of review. Id. at ¶ 13. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. It is especially appropriate in close cases involving custody of children between two fit parents that due regard be given to the trial court’s opportunity to determine the credibility of the witnesses. Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142.

A

[¶ 13] John asserts the trial court should have awarded him custody of both children to avoid splitting custody of these siblings, resulting in them living in different households. The trial court found there was a significant change of circumstances since entry of the original decree necessitating a change of custody for the daughter. However, the court also found there' had not been a significant change of circumstances to warrant a change of custody for the son.

[¶ 14] The parties do not dispute that a significant change of circumstances warranted a change of the daughter’s custody from Donna to John. While the daughter was in Donna’s custody, there was much tension and discord in their relationship. Donna testified she spent six months in counseling trying to resolve the problems in the relationship between them. The daughter’s grades in school were poor and she attempted on more than one occasion to run away from home. Subsequently, the parents agreed that, in the daughter’s best interests, she should spend the 2000-2001 school year in John’s custody. The evidence shows the agreement worked very well. The evidence shows the daughter is a happier child since moving into John’s home and she is doing much better in school. She has many friends and is involved in extracurricular activities. Consequently, the parents agree with the trial court’s determination that in the daughter’s best interests she should remain in John’s custody. However, circumstances are different with regard to the son.

[¶ 15] The record evidence shows that while the son lived in Minot some of the neighbor boys were very mean to him. He was not having an easy time in the neighborhood or at school. Early in 2001, Donna and her son moved to Bismarck where Donna accepted a new job with better career opportunities. The evidence shows the son has been doing much better in school since moving to Bismarck and he has made new friends. Donna testified she has a loving relationship with her son and living in Bismarck has gone “very well” for him. She testified he is involved in archery and soccer and that she and her son have had many opportunities for recreation, including roller blading and biking. The evidence establishes that the son has adjusted well to the Bismarck community and school system and that he likes living with his mother.

[¶ 16] As a general rule the courts do not look favorably upon separating siblings in custody cases. Leppert v. Leppert, 519 N.W.2d 287, 291 (N.D.1994). However, this Court has not prohibited the separation of children in all custody disputes and has, in fact, approved it where the trial court has found split custody desirable. See Freed v. Freed, 454 N.W.2d 516, 519 (N.D.1990). In Loll v. Loll, 1997 ND 51, ¶ 15, 561 N.W.2d 625, this Court concluded a trial court did not err in splitting custody of twins, based upon the children’s preferences and the fact that the boy displayed severe anxiety toward his mother and wanted to live with his father and the girl was adamant she be allowed to live with her mother. This case presents a similar situation.

[¶ 17] In making its custody award, the trial court has structured visitation, alternating between each parent’s residence, so that both children will spend alternating weekends together. The evidence demonstrates the children have adjusted to their current living arrangements and appear to be satisfied with the opportunity they currently have for interaction and contact with each other.

[¶ 18] John and Donna recognized that it simply was not working for the daughter to live with Donna. Tension and anxiety between them was too great and the resulting commotion was not healthy for any of the family members, including the son. Since Donna and her son moved to Bismarck, he has adapted well to his surroundings, has developed friendships, and is doing very well in school. Under these circumstances, it does not appear to be in either child’s best interests to upset their current living conditions merely to foster a general policy against split custody.

B

[¶ 19] John asserts' the trial court erred in not finding a pattern of abuse by Donna against the daughter and in refusing to apply the statutory rebutta-ble presumption against Donna having custody of the son for having perpetrated domestic violence against her daughter. Section 14-09-06.2(1)©, N.D.C.C., provides, in part:

If the court finds credible evidence that domestic violence has occurred, and ... there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child.

While John claims that Donna was abusive toward the daughter, Donna denies ever having struck or hit her. She admits that on one occasion the daughter was pulled onto the couch, apparently by Donna, and received a facial scratch. However, there is a dearth of evidence to show specific incidents or a pattern of domestic abuse or violence perpetrated by Donna. Although the trial court should make specific factual findings and conclusions regarding the presumption against custody for perpetrating domestic violence, specific findings are not required when there is insufficient evidence of domestic violence to trigger the presumption. Tulintseff v. Jacobsen, 2000 ND 147, ¶ 13, 615 N.W.2d 129. Although explicit findings regarding the application of N.D.C.C. § 14-09-06.2(1)®, would have aided our review, we can reasonably infer from the record that the trial court considered the evidence of domestic violence and found it insignificant to trigger the statutory presumption.

C

[¶ 20] John raises several other factors which he asserts weigh in' his favor and demonstrate the trial court erred in not awarding him custody of his son. He asserts the son is being overly medicated for attention deficit syndrome, resulting in the son acting very sluggish and lacking energy. There is evidence that the son is taking Ritalin, or similar medication, only on school days, not on weekends and not during the summer. The evidence shows this medication has been prescribed by a doctor and the son is being monitored for dosage. There is evidence that since taking this medication the son is more attentive in school and is easier to control than when he was not taking the medication.

[¶ 21] John asserts he should be awarded custody of his son, because Donna has frustrated John’s visitation with the son and has attempted to alienate the son from his father. We have recognized that evidence of alienation and frustration of visitation can be considered to determine whether a change of circumstances has occurred. Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220. Further, a parent who persists in frustrating the visitation of the non-custodial parent risks losing custody as a result of such conduct. N.D.C.C. § 14-09-06.6(5)(a). Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896. Donna testified that she will cooperate and make the son available for visits with John. She also testified that John’s failure to have more visitations with his son was the result of John refusing to pick him up for visitation. The gist of the record evidence is that neither parent cooperates very well with the other and neither has made much effort to accommodate the other. Consequently, the trial court has now set forth a very structured visitation schedule with specific pick up and drop off times and locations. The court .did not find Donna has alienated the son against John -or that either party has been more to blame than the .other for visitation failures.

[¶ 22] John asserts he should be awarded custody of his son, because Donna has caused “parentification” of the son by making him assume a head-of-the-household role rather than a child role. Donna testified about the son’s role in their home:

Q. Do you have any concerns in reference to [your son], that he is now taking over as being — to quote counsel — the man of the house?
A. No.
Q. In reference to that, on an average week is [your son] — he obviously goes to school. When he is not in school does he do any chores around the house?
A. Yes.
Q. What type of chores does he do?
A. Cleans his room, which involves vacuuming the floor and picking up toys and putting away his dirty laundry. He cleans up his bathroom which involves cleaning the sink and the counter and picking up his towels and dirty clothes.
Q. Any other duties around the house that he does?
A. Picking up his dishes after meal time.
Q. And apparently mowing the lawn, I saw some reference to that?
A. Yes, he is encouraged — he is very excited about taking on that responsibility this summer.
Q. Any other responsibilities he is taking on besides those you have mentioned?
A. He takes out the garbage.
Q. How is [his] health?
A. Very good.

Donna also testified that her son has made new friends in Bismarck, that he participates in recreational activities, and that he is enrolled in extracurricular activities. We conclude the record evidence does not demonstrate that Donna has forced her son to assume an inappropriate adult-like role in their household.

IV

[¶ 23] We hold the trial court did not abuse its discretion in refusing to find Donna in contempt of court for disobeying a court order relating to the daughter’s horse. We hold the trial court did not err in refusing to find sufficient evidence to establish a pattern of abuse by Donna for purposes of applying a presumption against her having custody of either child. We further hold the trial court’s denial of John’s request for a change of his son’s custody is not clearly erroneous. We, therefore, affirm the court’s order of December 12, 2001, and its amended judgment of December 19, 2001.

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

MARING, Justice,

concurring in the result.

[¶ 25] I agree with the majority opinion Parts II and IV, but I concur in the result only on the custody issue discussed in Part III. I continue to adhere to my opinion on the proper method for analyzing a motion to change custody as set forth in Kelly v. Kelly, 2002 ND 37, ¶ 52, 640 N.W.2d 38 (Maring, J., concurring in the result).

[¶ 26] MARY MUEHLEN MARING, J.


author: NEUMANN, Justice.

text:
    2002 ND 131
    Michael HOWES, Plaintiff and Appellant, v. KELLY SERVICES, INC., Defendant and Appellee.
    No. 20020014.
    Supreme Court of North Dakota.
    Aug. 15, 2002.

      Timothy Q. Purdon (argued) and Thomas A. Dickson (on brief), Dickson & Pur-don, Bismarck, and Michael G. Liffrig (appeared), Mandan, for plaintiff and appellant.
    Jerome C. Kettleson (argued), Pearce & Durick, Bismarck, for defendant and ap-pellee.
   NEUMANN, Justice.

[¶ 1] Michael Howes appealed from a judgment and post-trial orders granting motions by Kelly Services, Inc. (“Kelly”) for judgment as a matter of law and for a new trial. Kelly cross-appealed from the denial of its motion for a new trial on grounds other than the sufficiency of the evidence. We reverse and remand for a new trial.

I

[¶ 2] On March 9,1998, Howes, an employee at Fanners Union Distribution Center (“Farmers Union”) in Bismarck, was injured at work while unloading tractor tires from a semi-trailer. Allen Fuller, the general manger of Farmers Union, had made arrangements for Kelly to provide two temporary employees to help Farmers Union unload the tires. According to Fuller and Howes, an “older” and a “younger” man arrived at Farmers Union at about 8 a.m. on March 9, and identified themselves as Kelly employees. Howes, Keith Kem-per, the driver of the semi-trailer, and the two Kelly temporary employees began unloading the truck. The two Kelly employees were primarily responsible for rolling the unloaded tires into the Farmers Union facility. While unloading the tires, a three-hundred-and-twenty-seven pound tractor tire at the top of a stack of tires became wedged between the stack and the ceiling of the semi-trailer. Howes and Kemper testified they worked the tire free, and they then took a break and left the tire at the top of the stack with about five inches hanging over the side of the stack. Howes and Kemper both testified that while they were loosening that tire, the younger Kelly employee came into the semi-trailer, and before they took their break, Kemper told the younger Kelly employee not to touch anything. While Howes and Kemper were taking their break, the younger Kelly employee was behind the stack of tires and the tire fell on Howes. Howes and Kemper both testified the tire could not have fallen unless it was pushed, and the only other person in the truck when the tire fell was the younger Kelly employee. Howes testified that, after the tire hit him, the younger Kelly employee told Howes, “Oh, shit, man, I’m sorry.” Howes filed a March 1998 workers compensation claim which stated the tire had been pushed by a “Kelly Services helper.” Fuller, Kemper, Howes, the older Kelly employee, and Linda Bridge, a Farmers Union employee, testified they did not know the name of the younger Kelly employee.

[¶ 3] Kelly’s records indicated that it detailed Herb Ritz and Jeremy Levi to work at Farmers Union on March 9, 1998. Howes agreed Ritz was the older Kelly employee, but Howes testified Levi was not the younger Kelly employee who was in the semi-trailer when the tire fell. According to Howes, Kelly’s records were wrong, and in response to a request for admission, Howes admitted that Ritz and Levi were not responsible for his injuries.

[¶ 4] Howes sued Universal Cooperatives, Winter Trucking, Inc., and Kelly. Howes alleged Universal Cooperatives supplied the load of tractor tires to Farmers Union on March 9, and negligently loaded the tractor tires in the semi-trailer. Howes also alleged Winter transported the tires to Farmers Union on March 9 and Winter’s employee, Kemper, was negligent both in unloading the tires and in supervising the unloading of the tires. Howes further alleged Kelly’s- employees were negligent in unloading the tires. Universal Cooperatives and Winter were dismissed from the lawsuit before trial. A six-person jury returned a verdict finding Kelly’s negligence was the proximate cause of Howes’ injuries and awarding him damages.

[¶ 5] Kelly moved for judgment as a matter of law, asserting there was no evidence to support the jury’s finding that Kelly was negligent. Kelly also moved for a new trial, asserting the evidence was insufficient to support the verdict and also raising other grounds for a new trial. The trial court granted Kelly’s motion for judgment as a matter of law, concluding the evidence was insufficient to support the jury’s finding that Kelly was negligent. The court also conditionally granted Kelly’s motion for a new trial on the ground that the evidence was insufficient to support the verdict, but denied Kelly’s motion for a new trial on all other grounds. Howes appealed, and Kelly cross-appealed.

II

[¶ 6] Howes argues the trial court erred in granting Kelly’s post-trial motion for judgment as a matter of law. Howes argues there was sufficient evidence for the jury to find Kelly was negligent under the theory of vicarious liability, because there was ample evidence a Kelly employee pushed the tractor tire that injured Howes.

[¶ 7] In considering a motion for judgment as a matter of law under N.D.R.Civ.P. 50, a trial court must apply a rigorous standard with a view toward preserving a jury verdict. Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450. In determining if the evidence is sufficient to create an issue of fact, a trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which supports the verdict. Id. A judgment as a matter of law is appropriate if the evidence leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. Id. A trial court’s decision on a motion for judgment as a matter of law is fully reviewable on appeal. Id.

[¶ 8] In granting Kelly’s motion for judgment as a matter of law, the trial court said:

This case involves an unidentified individual causing injury to Michael Howes. Mr. Howes cannot identify the individual. No one can identify the individual causing Mr. Howes’ injuries. Based on the record, there was insufficient evidence from which the jury reasonably could have concluded that a Kelly employee caused Michael Howes’ injuries. It was mere speculation, conjecture, and surmise for the jury to determine that an unknown person was an employee of Kelly.

[¶ 9] Viewing the evidence in the light most favorable to the verdict and accepting the truth of the evidence presented by Howes, we conclude the trial court erred in granting Kelly’s motion for judgment as a matter of law. Howes presented evidence 'that an older and a younger . man arrived at Farmers Union at about 8 a.m. on March 9, and the two men identified themselves as Kelly employees. Although Fuller, Howes, Kemper, and Bridge testified they did not know the names of the two Kelly employees, there was evidence which, if believed, established the younger Kelly employee was the person that pushed the tire that hit Howes. Kemper and Howes both testified the younger Kelly employee was the only other person in the semi-trailer when the tire hit Howes, and the tire could not have fallen without being pushed. Kelly’s records indicated that Ritz and Levi were the Kelly employees that worked at Farmers Union on March 9. Howes testified the older Kelly employee was Ritz, but admitted the younger Kelly employee was not Levi. According to Howes, Kelly’s records were incorrect. Ritz testified he worked at Farmers Union on March 9, but he did not know the other Kelly employee that worked with him on that day. Levi testified by audio-visual deposition that he worked one day at Farmers Union; he arrived at Farmers Union at 8:00 a.m. on that day and had to wait for the arrival of the semi-trailer that he helped unload; he initially helped unload dog and cat food because the semi-trailer with the tires was late; he did not know the names of anyone at Farmers Union and was not aware of any other Kelly employees working at Farmers Union on that day; he rolled tires into the warehouse and never went inside the semi-trailer; the semi-trailer was unloaded from a loading dock and not from another entrance; and he did not learn someone was claiming an injury on that day until more than six months later. Levi’s testimony varied from that of other witnesses who testified the semi-trailer was at Farmers Union at 8:00 a.m. on March 9, the semi-trailer was not unloaded at the loading dock, and the younger Kelly employee went into the semi-trailer.

[¶ 10] We conclude the evidence supports an inference the younger Kelly employee pushed the tire that hit Howes, and Kelly’s records about the name of the younger employee were erroneous. In reviewing the granting of a judgment as a matter of law, we must accept the truth of the evidence presented by Howes and the truth of all reasonable inferences from that evidence. Here, the evidence does not lead to one conclusion about which there can be no reasonable difference of opinion. We therefore reverse the order granting Kelly’s motion for judgment as a matter of law.

Ill

[¶ 11] Howes argues the trial court abused its discretion in conditionally granting Kelly’s motion for a new trial on the ground the evidence was insufficient to support the verdict, and if this Court upholds the grant of a new trial, the new trial should be limited to the issue of liability. In its cross-appeal, Kelly argues the trial court abused its discretion in failing to grant Kelly a new trial on the grounds that Kelly was entitled to a nine-person jury; that the court erred in denying Kelly’s request for an instruction on the effect of Howes’ admission that neither Levi nor Ritz dislodged the tire that hit him; that the jury erred in failing to assess fault against any other parties and in awarding Howes excessive damages; and that there were irregularities in the trial proceedings. Because we conclude Kelly was entitled to a nine-person jury, we need not address the other issues relating to a new trial.

[¶ 12] Kelly argues the trial court abused its discretion in denying its motion for a new trial on the ground that it was entitled to a nine-person jury instead of a six-person jury. Howes sued Universal Cooperatives, Winter, and Kelly for negligence and demanded a jury trial. Universal Cooperatives and Winter separately answered and each demanded a trial by a nine-person jury. Kelly’s subsequent answer did not demand a jury trial. Before trial, both Universal Cooperatives and Winter were dismissed from the lawsuit. The trial court denied Kelly’s pretrial motion for a nine-person jury, concluding Kelly waived its right to a nine-person jury, and the court also denied Kelly’s motion for a new trial on that ground. Kelly argues it was entitled to rely on the demand for a nine-person jury by Universal Cooperatives and Winter, and the trial court abused its discretion in denying Kelly’s motion for a new trial on that ground.

[¶ 13] We review a trial court’s denial of a motion for new trial under N.D.R.Civ.P. 59(b) under the abuse-of-discretion standard. Sollin v. Wangler, 2001 ND 96, ¶ 8, 627 N.W.2d 159. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Id.

[¶ 14] Under N.D. Const, art. I, § 13, the Legislature may determine the size of a jury for civil cases, but the jury must consist of at least six members. Cf. Colgrove v. Battin, 413 U.S. 149, 160, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (holding local federal rule for six-person jury trial in civil case comports with Seventh Amendment). Section 28-14-03.1, N.D.C.C., provides that in all civil actions when a jury is impaneled, the jury must consist of six qualified jurors, unless any party makes a timely written demand for a nine-person jury. See also N.D.R.Civ.P. 48(b) (in civil actions, a jury shall consist of six qualified jurors unless any party makes a written demand for a nine-person jury under N.D.R.Civ.P. 38). Rule 38, N.D.R.Civ.P., provides:

(b) Demand. Any party may demand a trial by jury of any issue triable of right by jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.
(c) Size of Jury. If trial by jury is demanded, the jury shall consist of six qualified jurors unless a jury of nine is specifically demanded within the time required by these rules for demanding trial by jury.
(e) Waiver. The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury. A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim' or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

[¶ 15] Except for the language in subdivision (c) about a nine-person jury which tracks N.D.C.C. , § 28-14-03.1, N.D.R.Civ.P. 38, was effectively adopted from F.R.Civ.P. 38, and we may look to interpretations of the federal rule for guidance in construing our rule. See Land Office Co. v. Clapp-Thomssen Co., 442 N.W.2d 401, 403 (N.D.1989). Under the corresponding federal rule, once one party files a demand for a jury trial, other parties are entitled to rely upon that demand for the issues it covers, and they need not file their own demand. Fuller v. City of Oakland, 47 F.3d 1522, 1531 (9th Cir.1995); Dell’Orfano v. Romano, 962 F.2d 199, 202 (2nd Cir.1992); In re N-500L Cases, 691 F.2d 15, 22 (1st Cir.1982); Southland Reship, Inc. v. Flegel, 534 F.2d 639, 643 (5th Cir.1976). See generally 8 James Wm. Moore et al., Moore’s Federal Practice ¶ 38.52[2][c]. (3d ed.2002); 9 Charles Alan Wright & Arthur Miller, Federal Practice and Procedure: Civil 2nd § 2318 (1995). See also 47 Am.Jur.2d Jury § 64 (1995); 50A C.J.S. Juries, § 175 (1997). A party may rely on another’s demand even if the party demanding a jury trial is subsequently dismissed from the action. See In re N-500L Cases, at 24-25; Mid Kansas Fed. S & L v. Orpheum Theater Co., 810 F.Supp. 1184, 1190 (D.Kan.1992); YJR Enterprises, Inc. v. Twin County Grocers, Inc., 709 F.Supp. 499, 501 n. 2 (S.D.N.Y.1989). See also 8 Moore’s Federal Practice at ¶ 38.52[2][c].

[¶ 16] Although those federal authorities deal with the total denial of a jury trial, as opposed to a request for a jury of specified size under N.D.R.Civ.P. 38(c), those federal decisions are premised on language similar to N.D.R.Civ.P. 38(e), which provides that a request for a jury trial may not be withdrawn without the consent of the parties. See Dell’Orfano, 962 F.2d at 202; In re N-500L Cases, 691 F.2d at 22. See also 9 Wright & Miller, at § 2318. Nothing in our rules of procedure, nor N.D.C.C. § 28-14-03.1, precludes application of the general principle for demands for a jury trial to a request for a nine-person jury. The demands for a nine-person jury by Universal Cooperatives and Winter involved allegations regarding negligence and the allocation of fault for Howes’ injuries, and those issues were also involved in Howes’ allegations against Kelly. We conclude Kelly was entitled to rely upon the demands for a nine-person jury by Universal Cooperatives and by Winter for those similar issues, and the trial court misapplied the law in deciding Kelly waived its statutory right to a nine-person jury. We therefore conclude the trial court abused its discretion in denying Kelly’s motion for a new trial on that issue, and we reverse and remand for further proceedings consistent with- this opinion.

[¶ 17] Because of our resolution of the jury trial issue, we need not decide Howes’ claim the trial court abused its discretion in conditionally granting Kelly a new trial on the ground of insufficiency of the evidence. See Brandt v. Milbrath, 647 N.W.2d 674, 2002 ND 117, ¶ 25 (outlining trial court’s standard for considering motion for new trial on ground of sufficiency of the evidence). Moreover, the remaining issues raised in Kelly’s cross-appeal are not likely to arise on remand, arid any discussion of these issues would be advisory. See DeCoteau v. Nodak Mut. Ins. Co., 2000 ND 3, ¶ 26 n. 2, 603 N.W.2d 906.

[¶ 18] We reverse the order and judgment granting Kelly judgment as a matter of law, reverse the order denying Kelly a new trial on the issue of jury size, and remand for a new trial.

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