author: SANDSTROM, Justice.

text:
    2007 ND 140
    J.P., a minor child, Petitioner and Appellant, v. STARK COUNTY SOCIAL SERVICES BOARD and the North Dakota Department of Human Services, Respondents and Appellees.
    No. 20070004.
    Supreme Court of North Dakota.
    Aug. 22, 2007.

      Bradley D. Peterson (argued) and Edward B. Reinhardt (appeared), Legal Services of N.D., Bismarck, N.D., for petitioner and appellant.
    Jean R. Mullen, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondents and appellees.
    Todd E. Zimmerman (on brief) and Matthew A. Kipp (on brief), Dorsey & Whitney, Fargo, ND for amicus curiae Fairview Health Services.
   SANDSTROM, Justice.

[¶ 1] J.P. appeals a district court judgment affirming a Department of Human Services’ order denying medicaid payment for out-of-state medical care. We affirm, concluding the Department’s decision is supported by a preponderance of the evidence and the Department is not estopped from denying payment for the out-of-state care.

I

[¶ 2] J.P. and his mother are medicaid recipients receiving medicaid benefits through Stark County Social Services. J.P. was born at St. Joseph Hospital in Dickinson, North Dakota, in 2005. At the time of his birth, J.P. had a severe cleft lip and palate; ear abnormalities; thrombocy-topenia, low blood platelets with the potential for increased bleeding and decreased ability to clot; polycythemia, too many red blood cells, which may result in the blood being abnormally thick; he had not gained weight normally intrauterine and was smaller than average; there were concerns about his ability to feed because of his cleft lip and palate; and his bilirubin levels were elevated and increasing. Brian O’Hara, M.D., J.P.’s pediatrician, thought the child may have a metabolic condition or a genetic disorder and decided the child needed to be seen by a metabolic specialist and a genetic specialist as soon as possible. Dr. O’Hara was aware that a genetic specialist was not immediately available in North Dakota, and there are not any metabolic specialists in the state. He decided J.P. should be transferred to Fairview University Medical Center in Minneapolis, Minnesota, to receive more specialized care and to be evaluated by genetic and metabolic specialists. Dr. O’Hara did not seek prior approval from the Department for medicaid payment of out-of-state medical services. J.P. was transferred to Fair-view by air ambulance two days after his birth and was admitted to the neonatal intensive care unit. He was discharged six days later.

[¶ 3] In January 2006, Dr. O’Hara sent the Department a letter requesting medicaid payment for J.P.’s referral to Fairview and explaining why he had transferred the child out of state. The Department denied the request for payment, finding the care provided was available within the state of North Dakota and therefore it was not medically necessary to transfer J.P. to Fairview. J.P. appealed the Department’s decision.

[¶ 4] At an administrative hearing, Dr. O’Hara testified about the medical problems J.P. had at birth and that he transferred the child to Fairview because the care J.P. required was not available in state. Gary Betting, M.D., a medical consultant for the Department, testified he did not believe J.P. needed to be transferred to Fairview for treatment because the care J.P. required was available in state. There was also testimony from Kristine Bruhn, a peer denial specialist at Fairview, and Dan Johnson, a Department employee in charge of approving out-of-state referrals, about correspondence and telephone conversations between the Department and Fairview regarding medicaid payment for J.P.’s care. The administrative law judge recommended the Department affirm the decision to deny medicaid payment for the care J.P. received while at Fairview because the medical care he required was available in North Dakota.

[¶ 5] The Department adopted the administrative law judge’s findings and affirmed the decision to deny medicaid payment for J.P.’s out-of-state medical care. J.P. appealed to the district court, which affirmed the Department’s decision.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 28-32-42. J.P.’s appeal to this Court is timely under N.D.C.C. § 28-32-49 and N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VT, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 7] Rule 28(b), N.D.R.App.P., governs the format and content of an appellant’s brief, and requires a statement of issues presented for review. We have said:

At a minimum, a brief must contain a statement of the issues presented for review; a statement of the facts and, where those facts are disputed, references to the evidentiary record supporting the appellant’s statement of the facts; and the appellant’s legal argument, including the authorities on which the appellant relies.

State v. Noack, 2007 ND 82, ¶ 9, 732 N.W.2d 389. If a brief does not include at least the minimum requirements, we may dismiss the appeal because the case is not properly before us. Id. at ¶¶ 9-10.

[¶ 8] J.P.’s appellant’s brief does not contain a statement of the issues. Although we will not dismiss J.P.’s appeal, we caution the parties to comply with all the requirements for appellate briefs in future cases or expect dismissal.

Ill

[¶ 9] “ ‘When a decision of an administrative agency is appealed from the district court to this Court, we review the decision of the agency.’ ” Martin v. Stutsman County Soc. Servs., 2005 ND 117, ¶ 8, 698 N.W.2d 278 (quoting Steen v. North Dakota Dep’t of Human Servs., 1997 ND 52, ¶ 7, 562 N.W.2d 83). Under N.D.C.C. § 28-32-49, we review an administrative agency’s decision in the same manner as the district court, and therefore we must affirm the agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of [Chapter 28-32] have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. 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.

N.D.G.G. § 28-32-46. Our review of an agency’s decision is limited; we will not make independent findings of fact or substitute our judgment for that of the agency and will only reverse if the agency’s findings are not supported by a preponderance of the evidence. Gustafson v. North Dakota Dep’t of Human Servs., 2006 ND 75, ¶ 6, 712 N.W.2d 599. We must decide “whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Power Fuels, Inc. v. Elkin, 283 NW.2d 214, 220 (N.D.1979). Questions of law are fully reviewable. Gustafson, at ¶ 6.

A

[¶ 10] J.P. argues the Department’s findings are not supported by the evidence. He claims there is a presumption the treating physician’s opinion is correct, and in this case the treating physician, Dr. O’Hara, decided the child needed to be seen by a genetic specialist who does newborn consultations and by a metabolic specialist, neither of which are available in North Dakota. J.P. argues the out-of-state medical care he received should be paid for by medicaid under N.D. Admin. Code § 75-02-02-13(3)(e) because there was good cause for not getting prior approval, the care was medically necessary, and the care was not available in North Dakota.

[¶ 11] The Department places limits on medicaid payments for out-of-state medical care:

2. Except as provided in subsection 3, no payment for out-of-state care, including related travel expenses, will be made unless:
a. The medical assistance recipient was first seen by that recipient’s primary physician;
b. The primary physician determines that it is advisable to refer the recipi-
ent for care or services which the primary physician is unable to render;
c. A request for active treatment is first made to a specialist;
d. The specialist concludes that the patient should be referred to an appropriate out-of-state provider because necessary care or services are unavailable in the state;
e. The primary physician or specialist submits, to the department, a written request that includes medical and other pertinent information, including the report of the specialist that documents the specialist’s conclusion that the out-of-state referral is medically necessary;
f. The department determines that necessary care and services are unavailable in the state and approves referral on that basis; and
g. The claim for payment is otherwise allowable and verifies that the department approved the referral for out-of-state care.
3. a. A referral for emergency care, including related travel expenses, to an out-of-state provider can be made by the primary physician. A determination that the emergency requires out-of-state care may be made at the primary physician’s discretion, but is subject to review by the department. Claims for payment for such emergency services must identify the referring physician and document the emergency.
e. If a recipient is referred for out-of-state care without first securing approval under subsection 2, and the care is not otherwise allowable under this subsection, the department may approve payment upon receipt of a written request, from the primary physician or specialist, that:
(1) Demonstrates good cause for not first securing approval under subsection 2;
(2) Clearly establishes that the care and services were unavailable in the state; and
(3) Documents that the care and services were medically necessary.

N.D. Admin. Code § 75-02-02-13.

[¶ 12] Dr. O’Hara testified J.P.’s overall medical condition and its complexity led to the decision to transfer the child to a medical facility out of state. He testified his main concern was that J.P. may have a metabolic condition, and some metabolic conditions may be lethal or cause serious harm if left unchecked. Dr. O’Hara testified a metabolic specialist was required to evaluate whether J.P. had a metabolic condition and there are not any metabolic specialists in North Dakota. He testified he was concerned there was something wrong with J.P.’s bone marrow because his blood was thick and his platelets were low. Dr. O’Hara testified he believed J.P. needed to be evaluated by a genetic specialist immediately because in some instances a child may appear healthy when there is a serious condition, and a genetic evaluation is recommended when a child has three congenital anomalies or a combination of two major and two minor congenital anomalies. Dr. O’Hara also testified he was concerned with the cleft lip and palate because J.P. had to be fed intravenously through a central line and that may have caused bleeding and other related problems because of the child’s thick blood and low platelets. He also testified he was not aware J.P. was a medicaid recipient, and therefore he did not know he needed to get prior approval for out-of-state care.

[¶ 13] Dr. Betting testified he reviewed the information in J.P.’s medical records and concluded the requirements for payment of out-of-state medical care were not met. He testified J.P.’s medical condition was stable when he was transferred to Fairview, there was not an emergency, and a neonatologist in Bismarck or Fargo could have addressed the child’s immediate medical needs and could have performed the required medical tests. Dr. Betting was questioned about Dr. O’Hara’s decision to send J.P. to Fairview on the basis of his belief the child’s condition could deteriorate and the child needed to be evaluated immediately by genetic and metabolic specialists:

Ms. Mullen: Dr. Betting, you heard Dr. O’Hara’s testimony. And I, I don’t know whether you agree with his characterization. But I, in listening to him, it appeared that he was, he had a[sic] overall concern about everything. It wasn’t just the individual parts. When you look at the baby as a whole, he appeared to feel that he couldn’t deal with it or that Dickinson couldn’t deal with it. Do you think that there’s any place in State when you look at the baby as a whole that could deal with the various concerns he had, the metabolic consult, the genetic consult he wanted, the, the pedi-at, the hematologist on the blood, looking at the cleft palate, could all of that been, have been done in, in state in a safe and timely way?
Dr. Betting: Yes. All those, all of the necessary evaluations could have been done in state by one of our neonatolo-gists. And they could have consulted their own specialists. Overall, there was no emergency condition at the time. The baby was stable. His respiratory rate was good. His pulse was good. His heart and lungs, as far as the major systems in his body, they were all stable. He wasn’t even on oxygen. He had an IV running which was giving him some sugar water basically. And they had a tube into his stomach to feed him because they didn’t want him to aspirate because of the cleft palate. The cleft palate itself isn’t really an issue because nobody was going to do anything about that at all for at least ten weeks so that’s not any consideration as far as being part of an emergency. You know, he, go ahead ...
Ms. Mullen: I was going to say so the other issues then he was concerned about the genetic consult, the metabolic consult, and the, I guess the blood, looking at the blood which I, I believe is a hematologist?
Dr. Betting: Yes.
Ms. Mullen: Okay. But those would be the other three consults that were considered necessary and, and he believed apparently were an emergency?
Dr. Betting: Well, there’s, if he would have sent the baby to the neonatologist here in Bismarck or in Fargo, both places have pediatric hematologists which would have addressed the questions about the baby’s hematocrit, that was the increased number of red blood cells and his decreased number of platelets, the thrombocytopenia. The other consults, the genetics consult, would be to see if the total number of, of physical problems that [J.P.] had with the cleft lip, the cleft palate, the skin tags close to the ears if all of those things together represented some named syndrome which would help in predicting the course that, that would have to be taken with him. If, if they could put a name to it, then they can predict what’s going to happen and have a lot better idea what’s going on. Subsequently when he was seen by the geneticist at [Fairview], at the geneticist at [Fairview], they said all of his dysmorphisms, the, the abnormal physical features, did not meet the criteria for any single syndrome. He just had cleft lip/cleft palate, and the skin tags which were dysmor-phisms on their own. I mean, they weren’t part of a syndrome. The reason for doing the genetic consult at all is to see if he fits that syndrome so they can make a prognosis. And it could be necessary to do it right away if the baby’s not stable. That is, if there’s something going on and he’s really sick and they have to figure out why. Then the geneticist might need to be consulted to, to see if they could help him. But again, [J.P.] was stable.

Dr. Betting testified J.P. would need to see a genetic specialist at some point in the future because some of his abnormal physical features could represent some named syndrome and a specialist could diagnose the syndrome and decide on a course of treatment, but a genetic consult was not needed immediately because the child was stable and there was not an emergency. He testified there is a genetic specialist in Grand Forks who could provide that care. Dr. Betting also testified J.P. did not need to see a metabolic specialist and he could be evaluated in North Dakota because none of the problems identified were emergent, although some of the problems could require treatment in the future that may not be available in state.

[¶ 14] The Department considered whether J.P.’s medical expenses should be covered by medicaid under N.D. Admin. Code § 75-02-02-13 and made findings about the care he received. Because Dr. O’Hara did not receive prior approval for J.P.’s out-of-state medical care, the Department applied N.D. Admin. Code § 75-02-02-13(3) to decide whether there was coverage. The Department found J.P. was in stable condition when he was transferred to Fairview and there was not an emergency. The Department found the main reason Dr. O’Hara sent J.P. to Fair-view was a concern about metabolic or genetic problems, and Dr. O’Hara believed a metabolic specialist and a genetic specialist were not immediately available in North Dakota. The Department found all the tests and medical care J.P. received at Fairview could have been provided in state at a neonatal intensive care unit in either Bismarck or Fargo, and if further problems were found or a situation arose that could not be treated in state, J.P. could have been transferred to another specialist at that time. The Department found “[t]he preponderance of the evidence establishes that [J.P.] required care, perhaps even emergency care, at a medical facility with a neonatal intensive care unit. However, that care was available in Bismarck or Fargo, and it was not medically necessary to transfer [J.P.] for medical care out of state.”

[¶ 15] Medicaid may pay for out-of-state medical expenses under N.D. Admin. Code § 75-02-02-13(3)(e) only if there is good cause for not securing prior approval, the care and services are not available in North Dakota, and the care and services are medically necessary. The Department reasonably found J.P. failed to demonstrate there was good cause for not having secured prior approval of the out-of-state care. Although J.P. argues and the Department found that Dr. O’Hara was not aware J.P. was a medicaid recipient, that finding does not establish good cause. The Department found the hospital’s records clearly stated J.P. was a medicaid recipient. Dr. O’Hara decided to send J.P. to Fairview for care after having the child in his care for more than twenty-four hours. J.P. was in stable condition, and there was no indication that his condition was deteriorating. The Department found the medical care and services J.P. received at Fairview were available in North Dakota, and the preponderance of the evidence supports this finding. Dr. O’Hara testified the child was in stable condition when he was transferred to Fairview. Dr. Betting testified there was not an emergency, and the care J.P. required was available at a neonatal intensive care unit in state. We conclude a reasoning mind reasonably could decide the weight of the evidence in the record supports the agency’s finding that the requirements for payment of out-of-state medical expenses under N.D. Admin. Code § 75-02-02-13(3)(e) were not met.

[¶ 16] Further, even if the Department found all three requirements of N.D. Admin. Code § 75 — 02—02—13(3)(e) had been met, the regulation states “the department may approve payment.... ” (Emphasis added). When the word “may” is used in a statute, it is generally used to imply discretionary or optional conduct. Hagel v. Hagel, 2006 ND 181, ¶ 7, 721 N.W.2d 1. When a recipient is not referred for emergency care and prior approval is not sought, payment for out-of-state care is discretionary.

[¶ 17] J.P.’s remaining arguments on this issue do not affect the outcome of the case, and therefore we need not address them.

B

[¶ 18] J.P. argues the Department is estopped from denying Fairview’s claim for payment because Dan Johnson, a departmental employee in charge of approving out-of-state referrals, verbally approved payment and Fairview relied on that approval. The Department claims J.P. failed to raise this issue below and cannot raise it for the first time on appeal.

[¶ 19] At the administrative hearing, Johnson and Kristine Bruhn, a denial specialist at Fairview Hospital, testified about their correspondence and phone contact regarding payment for J.P.’s medical care. Bruhn testified she faxed Johnson a copy of J.P.’s medical records as soon as J.P. was admitted to Fairview, and followed with a second fax days later, but she did not have an opportunity to speak with him about payment of J.P.’s care until two days after J.P. had been discharged. She testified she believed Johnson verbally approved payment on that date. The Department objected to Bruhn’s testimony, arguing it was not relevant. J.P. argued it was relevant because the State would be estopped from denying payment if Johnson verbally approved payment. The administrative law judge allowed the testimony, stating she did not know whether it was relevant. Johnson testified he gave no approval. The Department found “perhaps the fairest interpretation” of the testimony is “there was a misunderstanding during [the] conversation” between Bruhn and Johnson. The Department concluded the possible verbal approval was not a deciding factor in the ease. Whether the Department is estopped from denying payment arguably was sufficiently raised below, and therefore we will address the issue on appeal.

[¶ 20] Section 31-11-06, N.D.C.C., authorizes estoppel by declaration, act, or omission:

When a party, by that party’s own declaration, act, or omission, intentionally and deliberately has led another to believe a particular thing true and to act upon such belief, that party shall not be permitted to falsify it in any litigation arising out of such declaration, act, or omission.

To prove a claim of equitable estoppel, the plaintiff must show: (1) the defendant falsely represented or concealed material facts, or calculated to convey the impression that the facts are otherwise than those which the defendant attempted to assert; (2) the defendant intended, or at least expected, that such conduct would be acted upon by, or would influence, the plaintiff; and (3) the defendant had knowledge of the real facts. Tamavsky v. Tar-navsky, 2003 ND 110, ¶ 10, 666 N.W.2d 444. The plaintiff must also show: (1) he lacked knowledge and the means of knowledge of the truth as to the facts in question; (2) he relied, in good faith, upon the conduct or statements of the defendant; and (3) he acted or failed to act on the basis of his reliance, so as to change his position or status, to his injury, detriment, or prejudice. Id. Estoppel against the government is available in limited circumstances and should be applied “on a case-by-case basis with a careful weighing of the inequities that would result if the doctrine is not applied versus the public interest at stake and the resulting harm to that interest if the doctrine is applied.” Blocker Drilling Canada, Ltd. v. Conrad, 354 N.W.2d 912, 920 (N.D.1984).

[¶ 21] To successfully claim estoppel, J.P. must have shown that he relied on the Department’s conduct or statements and that he acted or failed to act as a result. Tarnavsky, 2003 ND 110, ¶ 10, 666 N.W.2d 444. J.P. presented evidence that a Fair-view representative believed she had secured verbal approval for payment of J.P.’s medical care two days after J.P. was discharged from Fairview. The testimony of Fairview’s representative reflects that it did not receive any type of approval while it was providing J.P.’s care, and J.P. had already been discharged when Fairview claims the Department approved payment. J.P. failed to show detrimental reliance on the Department’s conduct or statements. J.P. failed to establish the basic elements of estoppel.

IV

[¶ 22] We affirm the judgment.

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


source: Caselaw Access Project

license: Public Domain

text:
    2007 ND 131
    STATE of North Dakota, Plaintiff and Appellee, v. Shannon Renee MUHLE, Defendant and Appellant.
    No. 20060340.
    Supreme Court of North Dakota.
    Aug. 22, 2007.

      Mark R. Boening, Assistant State’s Attorney, Fargo, N.D., for plaintiff and ap-pellee.
    Ross W. Brandborg, Fargo, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Shannon Muhle appeals from the district court judgment entered after a jury convicted her of gross sexual imposition and abuse or neglect of a child. Concluding that the children’s pre-trial statements were properly admitted, that the prosecutor did not violate discovery rules, and that the evidence supports the verdict, we affirm.

I

[¶ 2] Shannon and Andrew Muhle are married and have three minor children, S.M., K.E., and G.E. On August 31, 2005, Tammy Anderson of Cass County Social Services interviewed all three Muhle children because of G.E.’s alleged sexual contact with a neighbor girl and with his half sister, S.M. Detective Timothy Runcorn took notes and made an audio recording of the interviews. According to Detective Runcorn’s notes, both G.E. and S.M. had sexual contact with their parents, and K.E. had watched them. His notes also revealed that Andrew Muhle played a “secret game” with S.M. that included oral sex and intercourse, and that “sometimes Mom watches.” During the interview, S.M. said this occurred in her parents’ bedroom and downstairs on the couch. S.M. said the last time this happened was “Saturday.” K.E. said he “spies” on his father and S.M. while they have “lots of sex.” K.E. said Shannon Muhle did not know about it. K.E. also said that S.M. and G.E. have had sex in the basement. K.E. said he had heard Shannon Muhle say “let’s go have sex” to G.E. K.E. said he then watched them go downstairs and listened to them making the same noises he had heard his mother and father make when they have sex. G.E. did not provide many details other than his statement that “bad things” happened at home. Anderson and Runcorn ended the August 2005 interview after they concluded they had enough evidence to remove the children and place them in protective custody. When they told G.E. that all three children would be taken away from their parents, he became “extremely upset” and said “we’re not supposed to talk about that stuff any more.” On the basis of the interviews and the examination of S.M., the Muhle children were placed in foster care. K.E. and G.E. were placed together, and S.M. was placed with another foster family.

[¶ 3] On September 1, 2005, Alonna Norberg, M.D., examined S.M. Dr. Nor-berg is a board-certified pediatrician who specializes in the diagnosis of child maltreatment including sexual abuse. According to Dr. Norberg’s testimony, an accurate diagnosis requires taking a medical history directly from the child if the child is capable of understanding the questions and is developmentally able to articulate complaints, which she said S.M. was capable of doing. Furthermore, she testified that recording the child’s terminology is important. Dr. Norberg testified that minor injuries to the genitalia of a child S.M.’s age heal within two to seven days and do not typically leave scars. Dr. Nor-berg testified S.M.’s main complaint to her was: “That daddy put his penis in my pussy,” and “about her daddy peeing on her pussy, putting things into her hole or her pussy.” Dr. Norberg discovered redness, abrasions, and cuts on S.M.’s genitalia. On the basis of the medical history and the physical examination, Dr. Norberg concluded that S.M. was the victim of “penetrating sexual abuse.”

[¶ 4] In October 2005, the State charged Shannon Muhle with abuse or neglect of S.M. The State alleged that she “was aware of, but did nothing to stop, the fact that her husband, Andrew Bice Muhle, engaged in a sex act with their daughter, S.M_” The State also charged Shannon Muhle with gross sexual imposition, alleging “that on one or more occasion ... Shannon Renee Muhle engaged in a sex act with G.E.... ” The State charged Andrew Muhle with two counts of gross sexual imposition and abuse or neglect of a child.

[¶ 5] In May 2006, the State prepared the children to testify at trial; however, the prosecutor did not take notes or otherwise record the witness preparation sessions. Before trial, the State moved the court to determine whether audiotaped August 2005 interviews with the children were admissible. After a hearing, the district court ruled the statements of S.M. and KE. were admissible. The court said it would not rule on the admissibility of G.E.’s statement because the State did not state an intent to offer that out-of-court statement at trial.

[¶ 6] On May 10-12, 2006, Shannon and Andrew Muhle were tried together before a jury. In his opening statement, the prosecutor referred to the likelihood that the content of the August 2005 interviews would be offered into evidence — if the children testified and were subject to cross-examination. The State told the district court that it would not be offering G.E.’s August 2005 statement. All three of the Muhle children testified and were subject to cross-examination at trial. At the time of trial, the three children were nine, seven, and five years of age. The statements of S.M. and K.E. were offered and admitted into evidence, except for the portion of their statements about being spanked, which were redacted by order of the court. The district court decided those statements might prejudice the defendants and confuse the jury, especially in light of the neglect or abuse charges. The jury listened to the audiotaped interviews, and they were given transcripts to follow during the playing of the tape. The transcripts were not offered as evidence.

[¶ 7] At trial, Shannon Muhle denied ever having sex with any of her children and denied knowing about any abuse of the children by her husband. The jury found Shannon Muhle guilty on all counts. She now appeals.

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

II

[¶ 9] Muhle contends the district court erred in admitting the children’s prior out-of-court statements.

[¶ 10] “We review a district court’s evidentiary ruling under an abuse-of-discretion standard.” State v. Sevigny, 2006 ND 211, ¶ 24, 722 N.W.2d 515. “A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.” Id. (internal quotation and citation omitted).

[¶ 11] A child’s out-of-court statements about sexual abuse are admissible under N.D.R.Ev. 803(24), which provides:

An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:
(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and
(b) The child either:
(i) Testifies at the proceedings; or
(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

N.D.R.Ev. 803(24) (emphasis added); see, e.g., State v. Blue, 2006 ND 134, ¶ 26, 717 N.W.2d 558.

[¶ 12] State v. Messner set forth factors to be considered for Rule 803(24) trustworthiness: (1) “spontaneity and consistent repetition” of the statements, (2) “the mental state of the declar-ant,” (3) “use of terminology unexpected of a child of similar age,” and (4) “a lack of motive to fabricate.” State v. Messner, 1998 ND 151, ¶ 15, 583 N.W.2d 109 (citing Idaho v. Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

These factors are, of course, not exclusive, and courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining “particularized guarantees of trustworthiness” under the [Confrontation] Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.

Wright, 497 U.S. at 822, 110 S.Ct. 3139. These factors have continuing vitality despite our having partially overruled Mess-ner in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004):

The district court erred as a matter of law in determining the child was unavailable and that “reliability and trustworthiness” can supersede the constitutional demand of confrontation. The “reliability and trustworthiness” factors found in [State v.] Hirschkorn, 2002 ND 36, ¶¶ 12-13, 640 N.W.2d 439 and Messner, 1998 ND 151, ¶ 15, 583 N.W.2d 109, were created in reliance upon Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) and its progeny. The reliability and trustworthiness factors are still to be used for nontestimo-nial statements. United States v. Brun, 416 F.3d 703, 707 (8th Cir.2005). But when testimonial statements are at issue, the constitutional right to confrontation cannot be superseded by reliability and trustworthiness. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. To the extent Hirschkorn, 2002 ND 36, 640 N.W.2d 439, and Messner, 1998 ND 151, 583 N.W.2d 109, contradict the holding in Crawford, they are necessarily overruled.

Blue, 2006 ND 134, ¶ 21, 717 N.W.2d 558; see, e.g., Sevigny, 2006 ND 211, ¶¶ 25-27, 722 N.W.2d 515 (applying the Messner factors). Furthermore:

“A [district] court must make explicit findings as to what evidence it relied upon regarding the factors and explain its reasons for either admitting or excluding the testimony so a defendant can be assured the required appraisal has been made.... ” The court must make specific findings of fact relevant to reliability and trustworthiness and explain how the facts support the court’s conclusion of admissibility. Non-detailed findings may be sufficient when there is an adequate factual basis in the offer of proof to support the court’s decision. On review, we are limited to reviewing the offer of proof made during, the pretrial hearing.

Sevigny, at ¶25 (internal citations omitted).

[¶ 13] In this case, the district court made the following findings, in part, in its pretrial order and granted the State’s motion to admit S.M.’s and KE.’s out-of-court statements under N.D.R.Ev. 803(24):

A. S.M.’s statement
1. Spontaneity and consistent repetition
[T]he majority of the substantive content of the statement comes from the mouth of S.M. in response to open-ended questions....
The Defendants point out, correctly, that the statement does contain inconsistencies .... These ... do detract from the guarantees of trustworthiness of the statement and would militate in favor of exclusion.
2. Mental state of the declarant S.M.’s initial answers to some questions was that she forgot. However, when the same area was asked of again, S.M. provided consistent answers .... This factor favors admission of the statement.
3. Use of terminology
S.M. uses the word “penis” to describe the male genitalia.... This is not customary terminology for a five year old. This factor favors admission of the statement.
4. Lack of a motive to fabricate
There is no suggestion that S.M. has any history of fabricating or making up stories in the past. There is not even any argument that S.M. somehow is angry or upset with either of the Defendants and wants to get back at them or harm them in any way.... This factor favors admission of the statement.
On the whole, and taking the totality of the circumstances into account, and in weighing these factors, the Court finds that there are sufficient, particularized guarantees of trustworthiness surrounding this statement. Accordingly, the State’s Motion is granted, subject to the availability of
5.M. at the trial of this matter.
B. KE.’s statement
1. Spontaneity and consistent repetition
At times the statement/interview of K.E. also contains leading questions from the interviewer. However, the majority of the substantive content of the statement comes from the mouth of K.E. in response to open-ended questions.... As with the statement of S.M., it appears to the Court that the majority of K.E.’s statement, and clearly the majority of the incriminating portions of the statement, are the result of spontaneous answers by K.E.
The Defendants point out, again correctly, that KE.’s statement also contains inconsistencies.... These inconsistencies do detract from the guarantees of trustworthiness of the statement and would militate in favor of exclusion.
2. Mental state of the declarant
The Court is of the opinion that K.E. was, in his own way, like S.M.’s use of forgetfulness, trying to avoid, if possible discussing this matter. This evidences a mental state which favors admission of [ ] K.E.’s statement.
3. Use of terminology
He also uses the terms “penis” and “vagina.” This is not customarily terminology for a seven year old. This factor slightly favors admission of the statement.
4. Lack of a motive to fabricate
The Defendants concede “there is no apparent motive to fabricate other than to please his interviewer and to end the interview as quickly as possible.” There is no evidence, however, that K.E. thought giving a particular statement would either please his interviewer or result in a shorter interview. This factor favors admission of the statement.
Those portions of KE.’s statement dealing with spanking and “holding against the wall” are excluded from the trial of this matter and must be removed and redacted from any exhibit presenting the balance of [ ]K.E.’s statement to the jury.
On the whole, and taking the totality of the circumstances into account, and in weighing these factors, the Court finds that there are sufficient, particularized guarantees of trustworthiness surrounding KE.’s statement. Accordingly, the State’s Motion is granted in part, subject to the availability of K.E. at the trial of this matter.

[¶ 14] S.M. and K.E., both under 12 years of age and alleged victims of sexual abuse, testified at trial, were subject to cross-examination, and were cross-examined. The district court applied the four factors and found the out-of-court statements to be sufficiently trustworthy. The district court specifically referred to State v. Messner in analyzing whether the State had met its burden of establishing sufficient guarantees of trustworthiness. The jury heard testimony from each of those to whom the children made the statements, and the jury listened to S.M.’s and KE.’s audiotaped interviews. The jury followed transcripts of the interview while the tape was played, but those transcripts were not admitted into evidence. The court had sufficient information to assess the reliability of the out-of-court statements. The district court did not abuse its discretion by admitting S.M.’s and KE.’s prior out-of-court statements.

[¶ 15] Muhle contends the district court erred as a matter of law in failing to apply Crawford to analyze the admissibility of the children’s statements.

[¶ 16] In State v. Sevigny, this Court addressed whether Sevigny’s Sixth Amendment right of confrontation had been violated. Sevigny, 2006 ND 211, ¶ 28, 722 N.W.2d 515. We concluded that no violation had occurred because both children, whose out-of-court statements were admitted, testified at trial:

In Blue, 2006 ND 134, ¶7, 717 N.W.2d 558, we clarified when a witness testifying to a child’s out-of-court statements about sexual abuse violates a defendant’s constitutional right to confront his accuser. We held an out-of-court testimonial statement may not be admitted into evidence when the child is unavailable to testify unless the defendant has had an opportunity to cross-examine the child. Id. at ¶ 8. We also said,
If a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confron tation Clause. The core constitutional problem is eliminated when there is confrontation. Crawford makes clear that, “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements ....
Id. at ¶ 23 (citations omitted) (quoting Crawford v. Washington, 541 U.S. 36, 59-60 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). In this case, [both children] testified at the trial and Sevigny had the opportunity to cross-examine both children. We conclude Sevigny Sixth Amendment rights were not violated.

Sevigny, at ¶29 (emphasis added). The child in State v. Blue was available as a witness but did not testify, and the jury saw only a prior videotaped interview of the child. Blue, 2006 ND 134, ¶¶ 1, 8, 717 N.W.2d 558. This Court concluded the defendant’s Sixth Amendment right of confrontation was violated. Id. at ¶ 32.

[¶ 17] Both K.E. and S.M. were available and testified at the trial, and Muhle had the opportunity to cross-examine both children. G.E. also testified at trial, but his prior statement was not admitted into evidence.

[¶ 18] The district court applied the correct legal standard.

Ill

[¶ 19] Muhle contends the district court erred by failing to order a mistrial or to instruct the jury to disregard G.E.’s testimony because the State had failed to notify her that G.E. had disclosed inculpa-tory information during an unrecorded witness preparation session. The State argues it interviewed G.E. “to get a sense of what he might testify to at the jury trial.”

[¶ 20] “The proper remedy for unfair surprise is a continuance,” but one must be requested. State v. Hirschkorn, 2002 ND 36, ¶9, 640 N.W.2d 439, overruled on other grounds, Blue, 2006 ND 134, ¶ 21, 717 N.W.2d 558; State v. Van-Natta, 506 N.W.2d 63, 69 (N.D.1993); State v. Gross, 351 N.W.2d 428, 433 (N.D.1984).

[¶ 21] Muhle did not request a continuance; instead, she asked for a mistrial because she contended the State violated Rule 16, N.D.R.Crim.P, by failing to disclose the product of the State’s pre-trial witness preparation sessions, which were not recorded.

[¶ 22] We review a district court’s decision whether to grant a mistrial under an abuse of discretion standard. State v. Klose, 2003 ND 39, ¶48, 657 N.W.2d 276; City of Bismarck v. Holden, 522 N.W.2d 471, 476 (N.D.1994). “A district court abuses its discretion when it acts in an arbitrary, unreasonable, unconscionable, or capricious manner, or if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” State v. Wardner, 2006 ND 256, ¶ 26, 725 N.W.2d 215.

[¶ 23] Only written or otherwise recorded statements are discoverable under Rule 16:

(f) Demands for Production of Names, Addresses, and Statements of Witnesses; Statements of Codefendants; Statements of Other Persons.
(1) Names, Addresses, and Statements of Prosecution Witnesses. Upon a defendant’s written request, the prosecution must furnish the defendant:
(B) any statements made by the listed prosecution witnesses; and
(4) The term “Statement,” as used in Rule 16(f) means:
(A) a written statement made by the witness, codefendant, or other person and signed or otherwise adopted by the declarant; or
(B) a stenographic, mechanical, electronic, or other record, or a transcription of a record, which is a substantially verbatim recital of an oral statement made by the witness, code-fendant, or other person to an agent of the prosecution and recorded contemporaneously with the making of the oral statement.

N.D.R.Crim.P. 16(f) (emphasis added). Rule 16 “requires only ‘statements’ be disclosed by the prosecution. ‘Statement’ is defined quite technically and tends to emphasize formal, written, or recorded declarations.” State v. Charette, 2004 ND 187, ¶ 17, 687 N.W.2d 484 (applying Rule 16 prior to its amendment, effective March 1, 2006); see also State v. Ebach, 1999 ND 5, ¶¶ 17-20, 589 N.W.2d 566 (unrecorded oral statements by defendant’s former counsel discovered twenty minutes before trial were not “statements” subject to disclosure under Rule 16).

[¶ 24] In Charette, we said:

Rule 16 is a discovery rule, not a constitutional mandate, designed to further the interests of fairness. State v. Ensminger, 542 N.W.2d 722, 723 (N.D.1996). Although the trial court may impose sanctions for a failure to comply with Rule 16, including prohibiting the delinquent party from introducing into evidence the material not disclosed under N.D.R.Crim.P. 16(d)(2), before the issue of sanctions becomes relevant there must be a threshold determination that Rule 16 was violated.

Charette, 2004 ND 187, ¶ 16, 687 N.W.2d 484.

[¶ 25] “When apprised of a discovery violation, a trial court is authorized by Rule 16(d)(2), N.D.R.Crim.P., to use various remedies, but should impose the least severe sanction that will rectify the prejudice, if any, to the opposing party.” State v. McNair, 491 N.W.2d 397, 400 (N.D.1992). Rule 16(d)(2) provides:

Failure to Comply. If a party fails to comply with this rule or with an order issued under this rule, the court may:
(i) order that party to permit the discovery or inspection: specify its time, place and manner; and prescribe other just terms and conditions;
(ii) grant a continuance;
(iii) prohibit that party from introducing the undisclosed evidence;
(iv) relieve the requesting party from making a disclosure required by this rule; or
(v) enter any other order that is just under the circumstances.

[¶ 26] Muhle does not contend the State committed a Brady violation. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see, e.g., State v. Longhead, 2007 ND 16, ¶¶ 19-20, 726 N.W.2d 859.

It must be noticed that [the Brady rule and Rule 16] are separate, distinct, and not necessarily related in any way to each other.
... the Brady rule and Rule 16 may compel discovery prior to the time when any witness testifies. The Brady rule, it must be emphasized, creates a duty of constitutional dimensions immediately upon the making of the demand, regardless of the stage of the proceedings at which the demand is made.

State v. Hilling, 219 N.W.2d 164, 170 (N.D.1974) (noting the distinctiveness of four methods of document discovery in a criminal case).

[¶ 27] During the August 2005 interview, G.E. said nothing about having had sexual contact of any kind with Shannon Muhle. In the charging document, filed in October 2005, the State listed all three children as prosecution witnesses. On December 1, 2005, Muhle filed a request for discovery:

[W]ith her Demand for Discovery and Inspection made pursuant to Rule 16 of the North Dakota Rules of Criminal Procedure and hereby asserts as follows:
5. That the prosecution furnish to [Shannon Muhle] a written list of the names and addresses of all prosecution witnesses, and any statements made by them, whom the prosecution attorney intends to call in the preparation of the case in chief, together with any records of any prior felony convictions of any of those witnesses which are within the knowledge of the prosecuting attorney.
7. That the prosecution permit [Shannon Muhle] to inspect and copy or photograph any relevant written or recorded statement of any person, or copies thereof, within possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known to the prosecuting attorney.

(Emphasis added.) According to the State, during its witness preparation in May just days before the trial, “G.E. indicated to the prosecutor that he had had sex with defendant Shannon Muhle.” The State admits there is no record of G.E.’s witness preparation. According to the State, it “did not otherwise notify counsel for either defendant Andrew Muhle or Shannon Muhle before trial of the fact that G.E. might now testify that he had had sex with defendant Shannon Muhle.” A review of the transcript reveals that G.E. did testify to having had sex with Shannon Muhle. G.E. also testified that K.E. had had sex with S.M., which was a new revelation to both the State and Muhle. In August 2005, K.E. told Tammy Anderson that G.E. had had sex with Shannon Muhle; however, K.E. did not testify to that at trial. Mule’s contention, therefore, that G.E. provided the only evidence of gross sexual imposition fails. Because KE.’s prior statement was properly admitted into evidence and because G.E. testified to having had sex with Shannon Muhle, the jury was offered evidence of gross sexual imposition from two sources.

[¶ 28] There was no written or otherwise recorded statement that was not disclosed as required by Rule 16(f)(4)(A) or (B). On appeal, Muhle makes only a bare assertion that the State intentionally tried to circumvent discovery by not recording the witness preparation. She offers no authority that supports her apparent contention that all witness preparation must be recorded. At trial, Muhle cross-examined G.E. and highlighted the obvious inconsistencies in his statements from the 2005 interview compared with his trial testimony. During closing argument, Muhle also highlighted how G.E.’s statements had changed.

[¶ 29] “There is no indication [the witness] made a formal ‘statement’.... Rather, the prosecution spoke with [the witness] to gain a sense [of what he might testify to at the jury] trial. The fact the State did not formally record these pretrial interactions [or] disclose the results of these conversations ... does not equate to a per se violation of Rule 16(f)(1).” Charette, 2004 ND 187, ¶ 17, 687 N.W.2d 484; see also United States v. Barrett, 766 F.2d 609, 617-18 (1st Cir.1985) (applying the federal rule and stating: “There was no report, scientific test results, or exculpatory evidence to be turned over ... and we are unaware of any other grounds upon which such a requirement of disclosure might be based.”).

[¶ 30] We conclude the State did not violate Rule 16. The district court did not abuse its discretion in denying Muhle’s motion for a mistrial.

IV

[¶ 31] Muhle contends the evidence was insufficient to convict her of gross sexual imposition and abuse or neglect of a child.

[¶ 32] “This Court will reverse a conviction on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Steen, 2000 ND 152, ¶ 17, 615 N.W.2d 555 (citation omitted).

[¶ 33] Section 12.1-20-03(l)(d) provides the offense of gross sexual imposition: “A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if ... The victim is less than fifteen years old.” Sexual contact is “any touching, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person ... for the purpose of arousing or satisfying sexual or aggressive desires.” N.D.C.C. § 12.1-20-02(4).

[¶ 34] Section 14-09-22, N.D.C.C., governs abuse or neglect of a child and provides, in part:

1. Except as provided in subsection 2, a parent, adult family or household member, guardian, or other custodian of any child, who willfully commits any of the following offenses is guilty of a class C felony except if the victim of an offense under subdivision a is under the age of six years in which case the offense is a class B felony:
a. Inflicts, or allows to be inflicted, upon the child, bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1-01-04 or mental injury.

[¶ 35] In this case, the three victims testified about what occurred in the Muhle household. Each child provided graphic details and explicit descriptions of what had happened to them and what they had seen. G.E. testified that he and his mother had sexual intercourse “after she got out of the shower.” S.M. testified that Shannon Muhle was present when Andrew Muhle had sex with her. K.E. told Tammy Anderson that Shannon Muhle had had sex with G.E. The jury also heard testimony from Tammy Anderson, Detective Run-corn, and Dr. Norberg. Each of these witnesses recounted in detail what the children had told them during their respective interviews. Shannon Muhle denied any wrongdoing and denied witnessing or knowing about any abuse of the children by her husband, Andrew Muhle. The jury judged the credibility of the witnesses and weighed the evidence admitted at trial and found Shannon Muhle guilty on all counts. Viewing the evidence and all reasonable inferences in the light most favorable to that verdict, we conclude there was sufficient evidence to convict Shannon Muhle on both charges.

V

[¶ 36] Muhle contends the State made prejudicial statements in its closing argument. This alleged error was not objected to at trial, and as we explained in the companion case, State v. Muhle, 2007 ND 132, ¶¶ 39-44, the error was not obvious. Muhle has not established reversible error.

VI

[¶ 37] We affirm the district court judgment.

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


author: VANDE WALLE, Chief Justice.

text:
    2007 ND 132
    STATE of North Dakota, Plaintiff and Appellee v. Andrew Brice MUHLE, Defendant and Appellant.
    No. 20060328.
    Supreme Court of North Dakota.
    Aug. 22, 2007.

      Mark Rainer Boening, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee.
    Monty Grant Mertz, Fargo, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Andrew Brice Muhle appeals from the criminal judgment entered after a jury found him guilty of two counts of gross sexual imposition and one count of abuse or neglect of a child. We affirm, concluding that the district court did not abuse its discretion in admitting the children’s out-of-court statements and did not violate Muhle’s constitutional right to confront his accusers, that the State’s failure to disclose a witness’s pre-trial statement did not violate Muhle’s right to a fair trial, that prosecutorial misconduct did not warrant reversal of the judgment, and that sufficient evidence supports Muhle’s conviction on the class AA felony count of gross sexual imposition.

I

[¶ 2] Relevant facts are provided in our decision regarding Shannon Muhle’s appeal, State v. Muhle, 2007 ND 131, and we will not repeat these facts here except as necessary to resolve the issues raised in this appeal.

[¶ 3] In October 2005, Muhle was charged with one count of gross sexual imposition as a class AA felony, one count of gross sexual imposition as a class A felony, and one count of abuse or neglect of a child, a class B felony. Andrew Muhle and his wife, Shannon Muhle, lived in West Fargo with their three minor children, a daughter, S.M., and two sons, K.E. and G.E. Andrew Muhle is not the biological father of K.E. or G.E. In August 2005, an investigation began when Detective Tim Runcorn of the West Fargo police department and Tammy Anderson from Cass County Social Services interviewed the three children.

[¶ 4] As a result of the investigation, both Andrew Muhle and Shannon Muhle were charged with criminal offenses. Before trial, the State made a motion to determine the admissibility of the children’s statements about sexual abuse, and the district court held a hearing on May 1, 2006. The court issued a memorandum opinion and order holding S.M.’s and KE.’s prior statements about sexual abuse to be admissible if they testified at trial, although the Court did redact a portion of KE.’s statement. The district court did not rule on the admissibility of G.E.’s statement since the State no longer intended to offer G.E.’s out-of court statement at trial. The district court also held a hearing to determine whether the children were competent to testify, determining they were.

[¶ 5] In May 2006, Andrew Muhle and Shannon Muhle were tried together before a jury and were convicted. In November 2006, the court sentenced the Muhles. Andrew Muhle and Shannon Muhle have proceeded separately on appeal.

II

[¶ 6] Muhle argues the district court abused its discretion by admitting the children’s out-of-court statements and violated Muhle’s constitutional right to confront his accusers.

A

[¶ 7] We review the district court’s evidentiary ruling for an abuse of discretion. State v. Sevigny, 2006 ND 211, ¶ 24, 722 N.W.2d 515. “A district court abuses its discretion when it ‘acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.’ ” Id. (quoting State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498).

[¶ 8] Here, the State offered and the district court admitted into evidence the audiotape recordings of the interviews with S.M. and K.E. Although the jury was also given transcripts of these interviews, the transcripts were not admitted into evidence. In State v. Muhle, 2007 ND 131, ¶¶ 10-18, we addressed the district court’s decision in this case to admit S.M.’s and KE.’s prior out-of-court statements into evidence and concluded the court did not abuse its discretion. We adhere to that conclusion.

[¶ 9] The State also offered testimony at trial from Dr. Alonna Norberg, who examined S.M., in addition to Dr. Norberg’s medical report. Muhle suggests that N.D.R.Ev. 803(4), which provides an exception to exclusion by the hearsay rule for statements made for purposes of medical diagnosis or treatment, should not apply to portions of Dr. Nor-berg’s medical report that Muhle describes as “interrogation.”

[¶ 10] Muhle asserts that Dr. Norberg is the medical director of the Red River Valley Children’s Advocacy Center and that the entire examination was done for purposes of investigation and prosecution. Muhle asserts there is no evidence that Dr. Norberg had ever been S.M.’s doctor at any time prior to the investigation. However, N.D.R.Ev. 803(4) provides an exception to the hearsay rule for: “Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

[¶ 11] This Court has previously addressed treatment in sexual assault cases:

In addition to diagnosing and treating such physical injuries as cuts or bruises, health care providers examining one claiming to be the victim of a sexual assault must diagnose whether or not the alleged victim has suffered psychological trauma and, if so, its nature and extent, and treat that as well. The intensity of psychological trauma suffered by the victim of a sexual assault may vary, depending upon such things as the location of the attack, the kind and degree of restraint of movement or force used, or the imposition of fear through an assailant’s admonition to the victim not to tell anyone. Thus, such matters are “reasonably pertinent to diagnosis and treatment” and statements about them are admissible under Rule 803(4), NJD.R.Ev.

State v. Weatherspoon, 1998 ND 148, ¶ 16, 583 N.W.2d 391 (quoting State v. Jando, 397 N.W.2d 59, 63 (N.D.1986)). While Muhle contends that this exception to the hearsay rule should not apply to the “interrogation portion” of the medical report, the rule also permits statements describing “the inception or general character of the cause or external source thereof.” There is also no requirement that the physician must have been the person’s doctor at any time prior to the examination. Moreover, such questions regarding the cause or external source of symptoms or pain, including S.M.’s responses to those questions, fall within N.D.R.Ev. 803(4).

[¶ 12] In this case, the district court had sufficient evidence to assess the reliability of the children’s out-of-court statements. After reviewing the record, we conclude the district court did not abuse its discretion either in admitting the children’s out-of-court statements or in admitting Dr. Norberg’s testimony and medical report at trial.

B

[¶ 13] Muhle argues that his Sixth Amendment right to confront his accusers was violated by permitting the children’s out-of-court statements to be admitted into evidence. Muhle specifically asks this Court to reconsider our holding in Sevigny, 2006 ND 211, 722 N.W.2d 515, based upon his assertion that cross-examination of a small child is “nearly impossible” and that a child cannot be “effectively” cross-examined on prior statements.

[¶ 14] We review de novo for violations of constitutional rights. Sevigny, 2006 ND 211, ¶ 28, 722 N.W.2d 515. We considered the issue raised by Muhle in Sevigny, at ¶ 29:

In [State v.] Blue, 2006 ND 134, ¶ 7, 717 N.W.2d 558, we clarified when a witness testifying to a child’s out-of-court statements about sexual abuse violates a defendant’s constitutional right to confront his accuser. We held an out-of-court testimonial statement may not be admitted into evidence when the child is unavailable to testify unless the defendant has had an opportunity to cross-examine the child. Id. at ¶ 8. We also said,
If a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confrontation Clause. The core constitutional problem is eliminated when there is confrontation. Crawford makes clear that, “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.... ”
Id. at ¶ 23 (citations omitted) (quoting Crawford v. Washington, 541 U.S. 36, 59-60 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). In this case, S.S. and S.J.M. both testified at the trial and Sevigny had the opportunity to cross-examine both children. We conclude Sevigny’s Sixth Amendment rights were not violated.

[¶ 15] In Sevigny, at ¶ 29, this Court concluded the defendant’s Sixth Amendment rights were not violated because both of the child victims testified and were subject to cross-examination by the defendant. As in Sevigny, the children in this case, S.M., K.E., and G.E., all testified at trial. Muhle also had the opportunity to cross-examine the children.

[¶ 16] We recognize there may be difficulty in cross-examining some children; however, this difficulty concerns the competency of the child to testify. The district court in this case found all three children competent to testify at trial. We reject Muhle’s assertion that cross-examination is, as a matter of law, impossible or ineffective when a child witness is involved, or that a child’s out-of-court testimonial statements that are not subject to “effective” cross-examination at the time they were given should never be admitted as substantive evidence.

[¶ 17] Although Muhle argues that the children’s out-of-court statements, including the physician’s testimony and medical report, are testimonial in nature, all three children and Dr. Norberg testified at the trial. We decline Muhle’s invitation to reconsider Sevigny. We conclude Muhle’s Sixth Amendment rights were not violated.

Ill

[¶ 18] Muhle asserts the State violated his right to a fair trial by failing to disclose a witness’s pre-trial statement in violation of N.D.R.Crim.P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

[¶ 19] Muhle asserts his rights were violated because the State failed to inform him about a change in G.E.’s testimony, which the State had learned after an interview with K.E. and G.E. several days before the trial. As a result of the interview, the prosecutor disclosed to Muhle’s defense attorney that K.E. had retracted some earlier statements, but said nothing about a change in G.E.’s testimony. During the interview, G.E. indicated to the prosecutor that he had actually had sex with his mother, co-defendant Shannon Muhle. Although the State notified respective counsel for both defendants Muhle and Shannon Muhle that KE.’s testimony would change from KE.’s August 2005 statement, the State did not notify the defendants before trial of G.E.’s statement that he had sex with his mother.

[¶ 20] At trial, G.E. testified on direct examination that his father had shown him a game called sex, that he and K.E. practiced the sex game with S.M., that his father said that G.E. could practice the sex game with his mother Shannon Muhle, and that he had actually had sex with his mother. Both Detective Tim Runcorn and Tammy Anderson were cross-examined by Muhle’s attorney, and both testified that G.E. had made no mention of having sex with his mother when Tammy Anderson had interviewed G.E. in August 2005.

[¶ 21] The day following G.E.’s testimony during trial, Muhle’s attorney argued to the court that the State had violated N.D.R.Crim.P. 16 and that the court could either grant a mistrial, grant a continuance, or instruct the jury to disregard G.E.’s testimony. Muhle then moved for a mistrial. The district court denied Muhle’s request.

A

[¶ 22] In criminal cases, discovery is governed by N.D.R.Crim.P. 16. State v. Longhead, 2007 ND 16, ¶ 17, 726 N.W.2d 859. “Under N.D.R.Crim.P. 16, the prosecution must disclose, upon the defendant’s request, statements of the defendant, the defendant’s previous record, documents and objects, any reports of examinations and tests, and any information concerning expert witnesses within the prosecution’s possession, custody, or control.” Id.; see also State v. Thorson, 2003 ND 76, ¶ 10, 660 N.W.2d 581.

[¶ 23] While not a constitutional mandate, Rule 16 is designed to further the interests of fairness. City of Grand Forks v. Ramstad, 2003 ND 41, ¶ 16, 658 N.W.2d 731. “Although the trial court may impose sanctions for a failure to comply with Rule 16, including prohibiting the delinquent party from introducing into evidence the material not disclosed under N.D.R.Crim.P. 16(d)(2), before the issue of sanctions becomes relevant there must be a threshold determination that Rule 16 was violated.” State v. Charette, 2004 ND 187, ¶ 16, 687 N.W.2d 484. “Rule 16(f)(1) requires only ‘statements’ be disclosed by the prosecution. ‘Statement’ is defined quite technically and tends to emphasize formal, written, or recorded declarations.” Id. at ¶ 17 (citing N.D.R.Crim.P. 16(f)(4) and applying a similar version of the subsection prior to its March 1, 2006, amendments). See also State v. Ebach, 1999 ND 5, ¶ 20, 589 N.W.2d 566 (holding Rule 16 does not apply to oral statements other than statements of the defendant).

[¶ 24] Here, the record reflects that the prosecutor’s interview of G.E. was conducted several days before trial, and the statements made by G.E. at that time were neither recorded nor reduced to writing. Thus, there is no indication that G.E. made a formal “statement” as contemplated by Rule 16. We conclude the State’s failure to inform Muhle of G.E.’s statement was not a violation of N.D.R.Crim.P. 16. See also Muhle, 2007 ND 131, ¶¶ 23-30.

B

[¶ 25] Muhle also asserts that the State’s failure to disclose G.E.’s statement constitutes a Brady violation. This Court recently explained the Brady standard in Rummer v. State, 2006 ND 216, ¶ 21, 722 N.W.2d 528:

“In Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)], the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment.” Syvertson v. State, 2005 ND 128, ¶ 6, 699 N.W.2d 855 (quoting City of Grand Forks v. Ramstad, 2003 ND 41, ¶ 9, 658 N.W.2d 731). To establish a Brady violation, the defendant must prove: “ ‘(1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.’ ” Syvert-son, at ¶ 6 (quoting State v. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345).

[¶ 26] In support of his argument, Muhle asserts that the “new statements by G.E.” just before trial were favorable to the defendant in that they were completely inconsistent with G.E.’s prior interviews, that Muhle would have been able to better prepare for cross-examination and his testimony if he had known of the inconsistency, and that he had “no way to anticipate this new evidence.”

[¶ 27] The United States Supreme Court has held evidence that can be used to impeach a witness is subject to disclosure under Brady. See Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (stating that the duty under Brady “encompasses impeachment evidence as well as exculpatory evidence”); United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding impeachment evidence falls within the Brady rule). See, e.g., Spicer v. Roxbury Correctional Institute, 194 F.3d 547, 556 (4th Cir.1999) (holding witness’s prior inconsistent statement about whether he was an eyewitness was evidence favorable to the defendant, establishing Brady violation’s first requirement). Furthermore, “[s]uch evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375).

[¶ 28] Although Muhle raises the Brady issue on appeal, Muhle’s counsel conceded that G.E.’s statement implicating co-defendant Shannon Muhle was not favorable to Andrew Muhle during arguments before the trial court. Specifically, Muhle’s trial counsel stated: “Judge, in regard to the Brady issue, my position would be that Brady deals with evidence favorable to the defendant. So I understand the rationale for the argument, but I don’t really believe Brady is applicable to this situation.” Notwithstanding this statement and assuming for purposes of argument that Muhle did not waive the Brady issue at trial and that G.E.’s inconsistent statement several days before trial was favorable to him, Muhle has still failed to establish a Brady violation.

[¶ 29] Despite Muhle’s bare-bones contention that he would have been able to better cross-examine witnesses and better able to prepare to testify at trial, Muhle knew the identity of the witnesses before trial. Muhle has not argued that he could not have learned the same information from interviewing G.E. nor that he could not have otherwise discovered the inconsistent statement with reasonable diligence. More importantly, however, there has been no showing of “materiality” demonstrating that the result of the proceeding would have been different.

[¶ 30] Ultimately, G.E. testified at trial and Muhle had the opportunity to cross-examine him on any inconsistent statements for purposes of impeaching G.E.’s credibility before the jury. Muhle has not explained how his trial preparation would have improved to the point of changing the result, nor did Muhle seek a continuance of the trial after the G.E.’s testimony incriminating Shannon Muhle.

[¶ 31] Based upon our review of the record, Muhle has not established that the result of the proceeding would have been different had the State disclosed G.E.’s oral statement made several days before trial. We conclude Muhle has failed to establish a Brady violation.

IV

[¶ 32] Muhle argues the judgment should be reversed because of prosecutorial misconduct. Muhle argues that the State’s failure to disclose G.E.’s statement amounts to prosecutorial misconduct. However, we have concluded that the State’s actions did not constitute either a N.D.R.Crim.P. 16 discovery violation or a Brady violation.

A

[¶ 33] Muhle further asserts that the State committed prosecutorial misconduct by violating the court’s sequestration order and by making certain comments in the State’s closing argument. During trial, Muhle established that the prosecutor had discussed the testimony of the children with two of the State’s other witnesses, which violated the court’s sequestration order. Muhle’s argument is primarily based upon N.D.R.Ev. 615, which provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party’s cause.

[¶ 34] “It is mandatory to order exclusion of witnesses when requested by a party.” State v. Skorick, 2002 ND 190, ¶ 4, 653 N.W.2d 698. The sequestration rule’s purpose is to prevent witnesses from tailoring their testimony to what has already been presented and to assist in detecting less than candid testimony. Id. at ¶ 9.

[¶ 35] We review the district court’s decision to permit a witness to testify even though the witness heard prior testimony in violation of a sequestration order under an abuse of discretion standard. Skorick, 2002 ND 190, ¶ 8, 653 N.W.2d 698. “If the objecting party clearly shows, by offer of proof or other appropriate means, a witness’s testimony would be influenced by prior testimony the witness heard in violation of a sequestration order, it would be an abuse of discretion for the court to allow the witness to testify.” State v. Hill, 1999 ND 26, ¶ 14, 590 N.W.2d 187.

[¶ 36] Here, Muhle is not arguing the district court abused its discretion in permitting the State’s witnesses to testify after the prosecutor discussed the children’s testimony with the witnesses. Rather, he argues the prosecutor’s conduct denied him a fair trial. Indeed, the district court determined that the State had violated its sequestration order and, further, gave the jury a curative instruction. Specifically, the jury instruction stated:

At the beginning of the trial, the Court entered a sequestration order. A sequestration order is an order that potential witnesses may not listen to or discuss the testimony of other witnesses prior to their own testimony. The purpose of a sequestration order is to prevent witnesses from shaping their testimony to make that testimony more consistent with the testimony of other witnesses. During the testimony of Tamara Anderson she disclosed that she had discussed the testimony of the minor children, S.M. and K.E., with the prosecutor prior to Ms. Anderson’s testimony. During the testimony of Dr. Alonna Norberg, she indicated that someone had told her about S.M.’s testimony prior to Dr. Norberg’s testimony. Both of these are violations of the Court’s sequestration order. You may take these violations into account when weighing the credibility of Ms. Anderson’s and Dr. Norberg’s testimony.

[¶ 37] At trial, Muhle’s counsel did not object to the court giving this jury instruction. Muhle also has not shown that the witnesses’ testimony was influenced by the prosecutor’s discussion of the children’s testimony. Muhle had the opportunity to cross-examine these witnesses, and the jury was alerted to the potential for the testimony to be affected and could factor this into the determination of the witnesses’ credibility.

[¶ 38] While we do not condone the prosecutor’s violation of the court’s sequestration order, we hold it did not amount to prosecutorial misconduct which denied Muhle a fair trial.

B

[¶ 39] Muhle asserts that the State committed prosecutorial misconduct which deprived him of a fair trial when the prosecutor discussed certain testimony during closing argument. Muhle concedes he did not object to the prosecutor’s comments during closing argument and, consequently, our review of this issue is for obvious error.

[¶ 40] This Court exercises its authority to notice obvious error cautiously and only in exceptional circumstances when the defendant has suffered a serious injustice. State v. Schmidkunz, 2006 ND 192, ¶ 6, 721 N.W.2d 387. “In analyzing obvious error claims under North Dakota law, we have applied a plain error framework, explaining an appellate court may notice a claimed error that was not brought to the district court’s attention if there was ‘(1) error, (2) that is plain, and (3) affects substantial rights.’ ” Id. (quoting State v. Olander, 1998 ND 50, ¶¶ 13-14, 575 N.W.2d 658). Once the defendant establishes a forfeited plain error affects substantial rights, we have the discretion to correct the error where it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Olander, at ¶ 16.

[¶ 41] A district court is vested with discretion in controlling the scope of closing argument, and this Court will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument absent a clear showing of an abuse of discretion. Schmidkunz, at ¶ 7; State v. Clark, 2004 ND 85, ¶ 6, 678 N.W.2d 765. “Unless the error is fundamental, a defendant must demonstrate a prosecutor’s comments during closing argument were improper and prejudicial.” Schmidkunz, at ¶ 7. “In order to be prejudicial, the improper closing argument must have ‘stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence.’ ” Id. See also Skorick, 2002 ND 190, ¶ 17, 653 N.W.2d 698 (stating, “When reviewing to determine if the comment or remark was so offensive to prejudice the defendant, we need to consider all of the evidence presented at trial.”)

[¶42] Muhle argues the prosecutor’s improper comments concerned evidence of the specific dates the offenses occurred:

You’ll note that we really didn’t try to pin down, we didn’t try to charge either defendant with committing a specific act on a specific date. And I think you can — you could hear why when S.M., K.E. and G.E. testified in this case. That’s simply something that’s very difficult for children to specify. They have problems with time in general. Even knowing what time it is. You’ll recall when children learn to tell time with their watch. It’s not something they’re born with. But, frankly, given the nature of their allegations, given the nature of what they say happened to them, given the nature of the repeated acts that occurred in this case, it simply isn’t possible for them to be specific with regard to a date. Nor would it likely be possible for an adult to be specific with regard to a date. Consider for example law enforcement interviewing an adult victim of repeated offenses over a long period of time. Could the adult specify the specific dates on which each offense occurred? The specific day of the week, the specific day of the month? No, it would be extremely difficult. For example, if any investigator asked any adult tell me all the occasions on which you engaged in sexual intercourse with your partner within the past year, what adult would be able to specify to an investigator the specific date on which they engaged in, for example, consensual relations with their partner? Almost impossible. Certainly impossible for children. It’s why in this case we charge the defendants with having committed at least one count of the offense in a broad window of time. Based on their testimony, it happened once, it happened more than once. We submit that the State certainly has not overcharged the defendant in this case. We haven’t charged the defendant with every occasion on which these acts took place partly because we can’t be more specific about the date. To that extent it seems to me that in charging this case we’ve been more than fair to the defendants. Where did it happen? When did it happen? Well, I think the children were all pretty consistent in their testimony in describing that it took place in their residence.

(Emphasis added.)

[¶ 43] Muhle asserts the only purpose for the prosecutor’s statements was to improperly influence the jury “as to what they could consider” and by suggesting that the State has already gone “easy” on the defendants. However, viewing the prosecutor’s comments within the complete context of the argument, we believe the prosecutor, although somewhat inartfully, was arguing the difficulties in proving the specific dates on which the incidents occurred rather than suggesting additional charges would have been appropriate. The district court also provided a jury instruction that “argument or other remarks of an attorney” must not be considered as evidence. Within the context of the prosecutor’s comments, we conclude the State did not exceed the scope of permissible argument.

[¶ 44] Because Muhle failed to demonstrate obvious error in the prosecutor’s comments during closing argument, and in light of the court’s instructions to the jury, we conclude Muhle was not deprived of a fair trial and has failed to establish prose-cutorial misconduct such that the trial’s result would have been different.

V

[¶ 45] Muhle argues the evidence was insufficient to sustain his conviction for class AA felony gross sexual imposition in violation of N.D.C.C. § 12.1-20-03.

[¶ 46] Section 12.1-20-03, N.D.C.C., was amended effective August 1, 2005, to increase the penalty for gross sexual imposition from a class A felony to a class AA felony. The children were interviewed as a part of the investigation in this case on August 31, 2005, and the physician interviewed S.M. as a part of her examination on September 1, 2005. Muhle asserts that the State failed to prove that S.M. was abused on or after August 1, 2005.

[¶ 47] Muhle timely moved for a judgment of acquittal under N.D.R.Crim.P. 29, preserving the issue of sufficiency of the evidence for appellate review. See State v. Austin, 2007 ND 30, ¶24, 727 N.W.2d 790. Our standard of review of a sufficiency of the evidence claim gives deference to the jury’s verdict. Id. “This Court will reverse a conviction on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Steen, 2000 ND 152, ¶ 17, 615 N.W.2d 555. On appeal, we will not weigh conflicting evidence and will not judge the credibility of witnesses. State v. Klose, 2003 ND 39, ¶ 19, 657 N.W.2d 276. Even if there is conflicting testimony or other explanations of the evidence, a jury may reach a guilty verdict beyond a reasonable doubt. See State v. Krull, 2005 ND 63, ¶ 14, 693 N.W.2d 631; State v. Wilson, 2004 ND 51, ¶9, 676 N.W.2d 98.

[¶48] There is evidence in the record supporting that abuse occurred in August 2005. Dr. Norberg’s medical report of her medical examination of S.M. on September 1, 2005, states that when Dr. Norberg asked S.M. “if she ever has pain when she goes pee pee,” S.M. responded “until tomorrow when I play game with Daddy.” When Dr. Norberg asked S.M. if she was “having pain when she goes pee pee today,” S.M. said “nope,” but then added “on Saturday.” Dr. Norberg then asked S.M. if she was “having pain in her bottom today,” to which S.M. responded “yep.”

[¶ 49] Further, in Dr. Norberg’s trial testimony she said she observed a laceration, five millimeters in length and approximately two to three millimeters in depth, on S.M.’s perihymenal tissue and three fissures or abrasions along S.M.’s anus. Dr. Norberg testified that it was difficult to date the injuries she observed, but the injuries could have occurred “some time in August of 2005.” She also testified the injuries were “most likely more recent in the last couple of weeks” prior to her examination of S.M.

[¶ 50] In this case, when viewed in a light most favorable to the verdict, the evidence supports the jury’s verdict that a rational factfinder could have found beyond a reasonable doubt that count one occurred in August 2005. We therefore reject Muhle’s claim that there was insufficient evidence to sustain his conviction for class AA felony gross sexual imposition under N.D.C.C. § 12.1-20-03.

VI

[¶ 51] The district court judgment is affirmed.

[¶ 52] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: EISENHAUER, J.

text:
    In the Interest of B.A., Minor Child, B.A., Minor Child, Appellant.
    No. 06-0336.
    Court of Appeals of Iowa.
    June 13, 2007.

      Gerald B. Feuerhelm, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John P. Sarcone, County Attorney, and Michelle Chenowith, Assistant County Attorney, for appellee.
    Heard by MAHAN, P. J., and EISENHAUER and BAKER, JJ.
   EISENHAUER, J.

B.A., a minor child, appeals from a juvenile court’s ruling denying his request to be removed from the sex offender registry pursuant to Iowa Code section 692A.2(4) (2005). We reverse and remand.

BACKGROUND FACTS AND PROCEEDINGS.

B.A. was born on November 28, 1987. On March 18, 2002, the juvenile court adjudicated B.A. to have committed three delinquent acts of sexual abuse in the second degree. B.A. was placed in the custody of Juvenile Court Services and entered a residential treatment program for sexual offenders. On April 17, 2003, B.A. successfully completed his residential sex offender treatment and the juvenile court granted his request to be placed in his mother’s legal custody under terms of probation. B.A. registered on the sex offender registry upon his release.

On January 9, 2004, B.A. filed a motion requesting his name be removed from the sex offender registry. A hearing was held on June 6, 2005. On July 7, 2005, the juvenile court issued an order denying B.A.’s motion. The order provided that the matter should continue under the juvenile court’s jurisdiction and the issue of sex offender registry would be revisited at the next review hearing if requested by the child. B.A. requested the issue to be reconsidered, and another review hearing was scheduled for November 21, 2005, one week before B.A.’s eighteenth birthday. B.A.’s counsel requested a continuance to allow him time for preparation of a transcript of the June 2005 hearing. The hearing was rescheduled and held on January 12, 2006. At this time, B.A. had turned eighteen. The juvenile court did not make a finding regarding whether it had continuing jurisdiction over this matter.

B.A. testified at the January 2006 hearing and presented a new report from his therapist. The report stated Juvenile Sex Offender Assessment (J-SOAP II) placed B.A. at low risk to reoffend. On January 20, 2006, the juvenile court issued an order denying B.A.’s request. In the order the judge stated, “I will not disturb that [July, 2005] decision for two reasons. First and foremost the question has been reviewed once and I believe one review is all that is required. Second, there has not been a substantial change in circumstances.” B.A. appeals.

ISSUE I: CONSTRUCTION OF STATUTE.

In general, our standard of review for juvenile cases is de novo. In re G.J.A., 547 N.W.2d 3, 5 (Iowa 1996). However, this issue requires our construction of statutory language, and our standard of review is for correction of errors of law. Id.

Iowa Code section 692A.2(4) grants juvenile court the jurisdiction to review a child’s placement on the Iowa Sex Offender Registry. There is a presumption that the child should be required to register. In re S.M.M., 558 N.W.2d 405, 407 (Iowa 1997). The child bears the burden to rebut that presumption. Id.

B.A. first argues the juvenile court erred in finding that a juvenile should only be given one opportunity to seek removal from the sex offender registry. The State concedes this argument. We also find the juvenile court erred on this issue. The statute does not put a limit on the number of times the court may review the issue of registration requirement. The issue may be revisited upon the child’s application.

B.A. then argues the court erred in denying his request on the basis of lack of substantial change in circumstances because the statute does not require the presence of such a change. We agree. When the court considers whether the child should not be required to register, the ultimate question is whether the child meets the burden of proof by a preponderance of evidence. The juvenile court’s ruling on July 7, 2005, indicated the evidence was not sufficient to establish by a preponderance that B.A. should be removed from the registry. When the issue was revisited in January 2006 the court should have considered whether the facts would support a different conclusion by a preponderance of the evidence. The facts need not constitute a substantial change in circumstances. The juvenile court applied the wrong standard in making its decision.

ISSUE II: JUVENILE COURT’S DENIAL OF B.A.’S REMOVAL REQUEST.

A juvenile court’s decision as to sex offender registry requirement, like all juvenile proceedings, is reviewed de novo. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996). However, where the legislature has built into a statute the element of the juvenile court’s discretion, the appellate court applies a de novo review “to the extent of examining all the evidence to determine whether the court abused its discretion.” In re Matzen, 305 N.W.2d 479, 482 (Iowa 1981). We will find an abuse of discretion where the juvenile court’s decision rests on grounds clearly untenable or to an extent clearly unreasonable. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).

As a preliminary issue, we must first decide whether the juvenile court had jurisdiction over the matter at the time of the January 2006 hearing. B.A. turned eighteen two months before the hearing was held. Iowa Code section 232.53(2) provides that “all dispositional orders entered prior to the child attaining the age of seventeen shall automatically terminate when the child becomes eighteen years of age.” According to this provision, when the hearing was held the juvenile court’s jurisdiction over the child and the underlying adjudication had terminated. The question remains whether the juvenile court had continuing jurisdiction over the issue of sex offender registry requirement. We find it did. The juvenile court retains jurisdiction on certain matters even after the child attains the age of majority. For example, the juvenile court has authority to order a juvenile’s case records to be kept confidential even if the person has been discharged from the jurisdiction of the juvenile court due to reaching the age of eighteen. See Iowa Code § 232.149A. It also has continuing jurisdiction to seal records after a case has terminated. See Iowa Code § 232.150. Iowa Code section 692A.2(4) (2005) grants the juvenile court a similar continuing jurisdiction. It states in relevant part:

A person who is convicted, as defined in section 692A.1, of a criminal offense against a minor, sexual exploitation, a sexually violent offense, or an other relevant offense as a result of adjudication of delinquency in juvenile court shall be required to register as required in this chapter unless the juvenile court finds that the person should not be required to register under this chapter.

Significantly the code uses the word person as opposed to child or juvenile. We conclude the statute, by its plain language, grants the juvenile court the authority to review the registration requirement as long as the person remains on the registry.

We now consider whether the juvenile court abused its discretion by denying B.A.’s motion. In determining the issue, certain factors should be considered, including (1) the nature of the offenses; (2) the status of the victims; (3) B.A’s status, attitude, and ability to obey rules as well as his safety plan and his attitude toward following it; (4) clinical judgment; and (5) assessment tools.

When the court considered B.A.’s removal request in 2005, it recognized that B.A. was remorseful concerning the offenses, he was willing and making efforts to rehabilitate himself, and he was making considerable progress toward rehabilitation. However, the court rejected his request because the court found there was still an unquantifiable but real risk that the child would reoffend. The court specified some of the concerns, including (a) B.A. had subsequent instances of misbehavior, including being fired from his employment for his role in certain thefts from his employer and having his driver’s license suspended or revoked; (b) B.A. might have made threats of physical harm to his victims which, if true, would be a circumstance that he had never addressed in his treatment; and (c) B.A. still needed treatment every two to three months.

When the matter was revisited in January 2006, B.A. provided an update as to his personal circumstances since the June 2005 hearing. B.A. had maintained new employment at a hotel for about five months. He had straightened out his speeding tickets and had a valid driver’s license. He was a volunteer in Circle of Friends, doing activities with mentally challenged students. He was getting along well with his mother, and his relationship with his father was improving. However, the juvenile court then made no findings of fact but concluded it was bound by the order of July 7, 2005. Having decided the court was wrong in its conclusion, we are presented with no findings to review for abuse of discretion. We remand the case for a hearing consistent with this opinion.

REVERSED AND REMANDED.