text:
    2007 ND 25
    STATE of North Dakota, Plaintiff and Appellee, v. Mark STREEPER, Defendant and Appellant.
    No. 20060162.
    Supreme Court of North Dakota.
    Feb. 28, 2007.

      Julie Lawyer (on brief) and Cynthia M. Feland (argued), Assistant State’s Attorneys, Bismarck, N.D., for plaintiff and ap-pellee.
    Kent M. Morrow, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Mark Streeper appealed the district court judgment after a jury found him guilty of manslaughter and delivery of alcohol to a minor. Concluding that when a person puts another in danger, such as by unlawfully injecting her with drugs, and then does nothing to aid her in the resulting medical crisis, the failure to take appropriate action may be considered as a continuation of criminal conduct. We affirm.

I

[¶ 2] Streeper was charged in connection with the death of a 16-year-old girl, A.B.

[¶ 3] At trial, Streeper testified that he met A.B. while they were co-workers at a local restaurant. Streeper was 26 years old. K.U., who was A.B.’s friend and also a minor, testified that after picking up A.B. in Mandan, Streeper purchased some beer and took A.B. and K.U. back to his parents’ house in Bismarck. K.U. testified that Streeper gave A.B. a pill while they were riding from Mandan to Bismarck, but she said she did not know what kind of pill it was. K.U. testified that after they all had consumed some of the beer in Streeper’s basement bedroom, she was in the upstairs bathroom with Streeper and watched him crush some pills, mix them with water, and then fill a syringe with the mixture. By that time, other people had arrived at the Streeper residence. Three witnesses testified that they watched Streeper inject A.B.’s arm with a syringe: K.U. and Stephanie Huft, both friends of A.B.’s; and Jason Stenehjem, Streeper’s friend since elementary school. Streeper testified that A.B. injected herself.

[¶ 4] K.U. testified that Streeper drove her home and that A.B. remained with Streeper and Stenehjem. Stenehjem testified that upon their return to Streeper’s home, Streeper began giving A.B. a back massage. At that point, Stenehjem testified, Streeper asked him to leave, so he left. Streeper testified that A.B. asked him if she could “crash” at his house and that he allowed her to stay. Streeper testified that he was awakened from sleeping in his computer chair when his telephone rang at around 11:30 the next morning. Streeper said that the restaurant manager was looking for A.B. because her mother had called the restaurant after she realized A.B. had failed to come home the night before. Streeper testified that he was unable to awaken A.B. and that he checked her pulse, propped her head up with a towel, and “blew into her mouth a couple times.” A paramedic testified that A.B. was dead when he arrived at the scene.

[¶ 5] According to police testimony, a camera found in Streeper’s room revealed that someone had taken digital photographs of A.B. shortly after 4 a.m. as she was lying partially nude on his bed. The camera’s internal clock was not set to the correct time, so a police investigator had to examine the camera to calculate the actual time the photos had been taken. At trial, Streeper admitted to having taken the photos.

[¶ 6] Dr. George Mizell, the state forensic examiner, testified that A.B. died from “a mixed drug intoxication of the drugs Oxycodone, Methadone, and Al-prazolam.” Oxycodone is commonly sold under the brand name Oxycontin. Dr. Mizell testified that although no specific method exists to determine whether those drugs were administered orally or by injection, the toxicity levels were “much higher than ... typically see[n] with oral administration.... ” He testified that A.B.’s right arm had bruising consistent with a needle puncture. He also testified that A.B. had a blood-alcohol content of 0.26 percent.

[¶ 7] Streeper admitted that he had prescriptions for Alprazolam and Methadone. A police investigator testified that he found several empty pill bottles for Methadone, Oxycontin, Delaudid, and other drugs in Streeper’s room. Stenehjem testified that A.B. had a “whole handful” of Oxycontin and offered to sell him some. Streeper testified that he had recently purchased Oxycontin and that on that night he had crushed four of those pills with a spoon, stirred them in water with a syringe plunger, sucked the mixture through a cotton ball into a syringe, and injected himself with it. The investigating officers testified that they found two spoons in an exhaust fan in the ceiling of Streeper’s bathroom. Both spoons tested positive for Oxycodone.

[¶ 8] The jury found Streeper guilty of manslaughter and two counts of delivery of alcohol to a minor. Streeper appeals.

[¶ 9] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. § 29-28-06.

II

[¶ 10] Streeper argues that the district court erred in making evidentiary rulings.

[¶ 11] We review a district court’s evidentiary ruling under an abuse-of-discretion standard. State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498. “Under N.D.R.Ev. 401, 402, and 403, a district court has broad discretion in admitting or excluding evidence.” State v. Charette, 2004 ND 187, ¶ 12, 687 N.W.2d 484 (citations omitted). “A trial court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.” Ramsey, at ¶ 8, 692 N.W.2d 498 (citations omitted).

A

[¶ 12] Streeper argues that the district court erred by admitting photos of A.B., because the State was using them to “impeach” his credibility prior to his testimony, and that their admission “forced” him to testify.

[¶ 13] “[T]he use and admission of photographs in criminal trials is largely within the discretion of the trial court.” State v. Ohnstad, 359 N.W.2d 827, 839 (N.D.1984) (collecting cases). This Court has said:

It appears to be a well-settled rule that photographs of the victim in a prosecution for homicide, duly verified and shown by extrinsic evidence to be faithful representations of the victim at the time in question, are, in the discretion of the trial court, admissible in evidence as an aid to the jury in arriving at a fair understanding of the evidence, condition and identification of the body, even though such photographs may have the additional effect of tending to excite the emotions of the jury.

Id. (quoting State v. Iverson, 187 N.W.2d 1, 37 (N.D.1971) (omitting citations)).

[¶ 14] Outside the presence of the jury, the district court ruled on Streeper’s objection to the State’s offer of the digital photos: “they’re relevant both to the substance of the charges and to the defendant’s credibility....”

[¶ 15] Streeper’s argument that the admission of the photographs forced him to testify fails. Following his logic, every criminal defendant would be “forced” to testify, because the State must produce evidence obviously adverse to the defendant to prove every element of the offense beyond a reasonable doubt. See N.D.C.C. § 12.1-01-03(1).

[¶ 16] Also misplaced is Streeper’s use of the term “impeachment” to describe the State’s actions to build its case in chief, especially since Streeper, a potential defense witness, had not yet testified.

[¶ 17] In building its case against Streeper, the State questioned police officers who interviewed him at the scene and later at the police station. The officers’ trial testimony reveals that Streeper told them he was asleep at a time when the State argued he was awake:

[Officer Heilman:] I heard the part where he said A.B. had fallen asleep on the bed and that he had covered her up with a blanket and then he said he played on the computer until four in the morning and then he had went to sleep.... [H]e claimed that he had been sleeping in a chair from four o’clock in the morning on until whenever.
[Officer Stugelmeyer:] I asked him when the last time he saw A.B. alive and he said that it was last night at about 12:15 to 12:30 is what he said.
[The State:] What explanation did he give you for the camera and some of the pictures on the camera?
[Officer Stugelmeyer:] [At the police station,] I started asking him about that, he asked could you make yourself more clear. At that point — I can’t remember exactly how he said but he acknowledged that there was a camera there and then basically didn’t want to talk with us any further.

[¶ 18] Streeper’s statements to law enforcement qualify as an “admission by a party-opponent” under Rule 801(d)(2), N.D.R.Ev. The photographs were admissible, substantive, non-hearsay evidence that could be used to prove Streeper was awake and, as the State argues, was taking pictures of A.B. as she was dying of a drug overdose. A statement of a criminal defendant is admissible even though the defendant intended it to be exculpatory when made. See Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 722 (8th Cir.1981) (A statement need not have been against a party’s interest at the time it was made so long as it is against his interest at trial.).

[¶ 19] The State’s witnesses included Dr. Ronald Tello, the Burleigh county coroner, and Dr. George Mizell, who actually performed the autopsy and determined the cause of death. Dr. Tello testified about his actions and observations when he arrived at the scene around 12:20 p.m. that day. The State asked him to compare a photo taken from the camera in Streeper’s room to photos taken by the police. Dr. Tello noted that A.B.’s head and neck were in exactly the same position in both sets of photos. He also noted the presence of typical post-death discoloration on A.B.’s body and that the coloration was much darker in the police photos.

[¶ 20] The digital photographs found in the camera in Streeper’s room were relevant to attack Streeper’s statements to law enforcement. The photos provided corroborating evidence supporting the State’s theory that he was awake and aware that A.B. was suffering a drug overdose.

[¶ 21] The district court did not abuse its discretion by admitting the photographs.

B

[¶ 22] Streeper argues the district court erred by allowing a detective to testify as an expert in the analysis of the digital photos.

[¶ 23] The decision whether to admit expert witness testimony rests within the district court’s sound discretion and will not be reversed unless the court has abused its discretion. State v. Schmidkunz, 2006 ND 192, ¶ 15, 721 N.W.2d 387. “Rule 702, N.D.R.Ev., envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which the witness is to testify.” State v. Hernandez, 2005 ND 214, ¶ 8, 707 N.W.2d 449 (citation omitted). “If a witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences that are (i) rationally based on the perception of the witness and (ii) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” N.D.R.Ev. 701.

[¶ 24] In this case, the State did not offer Officer Mark Gaddis as an expert. Officer Gaddis did testify about his 40-hour training course. He also testified that he compared the camera’s internal clock to his own clock and then used the disparity to calculate when the photos were actually taken. The district court said: “I don’t believe expert testimony is necessary. I believe the jury can decide themselves whether the training and experience of Officer Gaddis would allow him to come to the conclusions that he did.”

[¶ 25] The district court did not admit Gaddis as an expert, but allowed him to testify as a lay witness about calculating the actual time the photos were taken. The district court did not abuse its discretion by allowing Officer Gaddis to draw conclusions and state lay opinions permitted by N.D.R.Ev. 701, because they were rationally based on his perception and were helpful to the jury’s determination of fact.

Ill

[¶ 26] Streeper argues that the district court erred in denying his motion for acquittal for the State’s failure to prove pri-ma facie causation.

[¶ 27] Streeper moved for an acquittal under N.D.R.Crim.P. 29, preserving the issue of sufficiency of the evidence for appellate review. See State v. Steen, 2000 ND 152, ¶ 16, 615 N.W.2d 555. “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.” Id. at ¶ 17, 615 N.W.2d 555 (citation omitted).

[¶ 28] “A person is guilty of manslaughter, a class B felony, if he recklessly causes the death of another human being.” N.D.C.C. § 12.1-16-02.

[¶ 29] Dr. Mizell performed the autopsy and determined the cause of death. He testified that A.B.’s right arm had an injury consistent with a needle puncture. He testified about the results of the toxicology report:

In this case, analysis of the blood both at the state toxicology lab and the outside laboratory detected the presence of Oxy-codone and in addition in the blood specimen itself, was detected Methadone and Alprazolam, all in significant levels. In fact, the Oxycodone level was a level that would be associated with potential death. The Methadone level was also at a relatively high level — would have been potentially toxic at the levels that were detected in her bloodstream and the Al-prazolam, again another drug that can cause toxicity, was present in an elevated level in her body.
[Dr. Mizell:] The Oxycodone was detected at a level of 560 nanograms per milliliter.
[The State:] Would that be consistent with a therapeutic dose?
[Dr. Mizell:] No it would not. It’s much higher than we would see with a therapeutic administration of Oxyco-done.
[The State:] Okay. What about the Methadone?
[Dr. Mizell:] The Methadone was detected at a level of 64 nanograms per milliliter.
[The State:] And would that be classified as a therapeutic dosage?
[Dr. Mizell:] In individuals who are receiving Methadone in therapy, that would be a potential level that could be seen with therapeutic administration. However, in a person who is not taking Methadone, the detection of the drug itself would be unusual and it is at a level that could be potentially toxic.
[The State:] And what about the Al-prazolam?
[Dr. Mizell:] The Alprazolam is at an elevated level. It is at a level that is seen with therapeutic administration of the drug. Again, also it’s at a level that may have the side effects that I mentioned, including central nervous system depression.
The cause of death was listed as mixed drug intoxication with the drugs Oxyco-done, Methadone, and Alprazolam listed as the intoxicants.

On cross-examination, the defense questioned Dr. Mizell about how the drugs were introduced into A.B.’s system:

[Dr. Mizell:] There’s not a specific way that I could determine that the drugs were injected versus taking them in an oral fashion, however the levels are much higher than we typically see with oral administration of those drugs.
[Streeper:] Have you ever seen levels that high through oral ingestion of medication?
[Dr. Mizell:] Yes I have. With ingestion of large quantities of the pills, you may see levels as high as what we found in this case.

[¶30] In denying Streeper’s motion, the district court summarized the evidence against him:

Well there’s evidence of certain controlled substances being in Mr. Streeper’s residence, there’s evidence that he was crushing some sort of pill on a spoon, there’s evidence that that got into a syringe, there’s evidence that Mr. Streeper injected something into A.B., there’s evidence as to what was found in her system, that’s up to the jury to determine whether all of those factors amount to causation.

[¶ 31] The district court properly denied Streeper’s motion for acquittal.

IV

[¶ 32] Streeper contends the district court reversibly erred by permitting the State to “argue” that he recklessly caused the death of A.B. by his failure to render aid to her as she was suffering a drug overdose.

[¶ 33] Streeper repeatedly objected during the State’s case in chief regarding the introduction of evidence about the State’s theory of the case — that in addition to unlawfully injecting A.B. with drugs, he did nothing to help her in the hours after that, which contributed to her death. Streeper argues that “[b]y refusing to order the State to no longer advance that theory, and permitting them to argue for it in closing argument ... the Court permitted a patina of legitimacy to be attached to the theory.... one can easily infer that the verdict may have been based upon this theory.” (Emphasis added).

[¶ 34] In State v. Schmidkunz, we explained our standard for reviewing closing arguments:

In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse [the conviction] on grounds the prosecutor exceeded the scope of permissible closing argument. Unless the error is fundamental, a defendant must demonstrate a prosecutor’s comments during closing argument were improper and prejudicial. 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.

State v. Schmidkunz, 2006 ND 192, ¶ 7, 721 N.W.2d 387 (internal quotations and citations omitted). In Schmidkunz, the defendant did not object during closing argument after the prosecutor made a comment about evidence not admitted at trial. Id. at ¶ 5, 721 N.W.2d 387. The district court realized the impropriety of the comment and then “instructed the jury that statements by counsel were not to be considered evidence, any statements by counsel concerning facts not supported by the evidence were to be disregarded, and jury members were to rely on their own recollection or observation.” Id. at ¶ 11, 721 N.W.2d 387. On appeal, we reviewed the district court’s actions for obvious error. Id. at ¶¶ 6-7, 721 N.W.2d 387. We concluded the comment was not so prejudicial as to affect Schmidkunz’s substantial rights:

The evidence against Schmidkunz was overwhelming, and we cannot say that the prosecutor’s single comment, which did not state any specific evidentiary facts, carried with it enough weight to impact the jury’s verdict and Schmid-kunz’s ability to receive a fair trial. Schmidkunz has failed to demonstrate the prosecutor’s remarks affected his substantial rights.
Based upon our review of the record, we are unable to conclude the State’s improper comment in closing argument prejudiced Schmidkunz. We therefore, conclude Schmidkunz was not denied a fair trial by the prosecutor’s comment and the claimed error does not rise to the level of obvious error requiring reversal.

Id. at ¶¶ 11-12, 721 N.W.2d 387.

[¶ 35] The following dialogue between the district court and Streeper’s counsel prior to closing arguments summarizes the district court’s previous rulings on Streeper’s objections about the failure to render aid:

THE COURT: There’s a difference between contributing to a death by not doing anything as opposed to a legal— well a criminal liability for — I guess what I’m getting to is you can — if you recklessly act and that causes somebody’s death, I guess it’s up to the jury to decide what part of that continuum is the act. I’m not inclined to give an instruction regarding legal duty because I think that would be more confusing than what you’re saying.
MR. MORROW: I think what the State is arguing is that not that he took action but that he — there was an omission in doing anything — that he should have known that when those pictures were taken at four o’clock in the morning that she was in distress and did something about it to get her medical attention, and then recklessly caused her death. So I think if they’re not instructed that legally he has no legal obligation to do that—
THE COURT: Well again that’s two different concepts where you’re talking about a legal obligation to do or not do something as opposed to whether his action or inaction was a reckless action that contributed to her death. That’s two totally different things. The State could argue what you just said. What I said earlier is I’m not allowing them to argue that there’s some legal duty or obligation to act or not act but that doesn’t prohibit them from arguing that his actions were reckless and contributed to her death — or his lack of action.
MR. MORROW: No, I can understand that but I don’t know how you can be reckless in failing to do something unless you have a legal obligation to do it.
THE COURT: Well I mean reckless has a definition and the jury will have to apply that definition.

(Emphasis added).

[¶ 36] In its closing argument, reproduced in part below, the State followed the district court’s instructions and did not contend there was a legal duty to render aid. The State said that Streeper unlawfully injected A.B. with drugs and then did nothing to help her:

A.B. was 16 years old. She is a child. Mark was 26. I don’t care if he’s been using drugs since he was 16 years old. He is the one, that by his conduct, gave her the lethal dose — that gave her the drugs that caused her death. It doesn’t matter if she didn’t say no I don’t want the drugs. She had no idea what she was getting herself into. Mark Streeper knew. He’s seen people overdose. He saved his own friend, yet what did he do here? Nothing. When that girl went through that agonal period, what did he do? Nothing. He gave her the drugs, he didn’t do anything to help her. He caused her death.

Streeper did not object during the State’s closing argument.

[¶ 37] Under N.D.C.C. § 12.1-02-01:

1. A person commits an offense only if the person engages in conduct, including an act, an omission, or possession, in violation of a statute which provides that the conduct is an offense.
2. A person who omits to perform an act does not commit an offense unless the person has a legal duty to perform the act, nor shall such an omission be an offense if the act is performed on the person’s behalf by a person legally authorized to perform it.

In some very limited instances, a person can be held criminally liable solely for failing to render aid to another. See, e.g., N.D.C.C. § 39-08-06 (duty of driver to give information and render aid after a motor vehicle accident resulting in death or serious injury); see also, e.g., N.D.C.C. § 14-07-15 (establishing criminal liability for parents’ willful failure to furnish medical attention to their child). A person can be held civilly liable for failing to render aid to someone he knew or had reason to know was put in danger by his conduct. See South v. Nat’l R.R. Passenger Corp. (AMTRAK), 290 N.W.2d 819, 837 (N.D.1980) (“If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.”).

[¶ 38] Streeper’s contention that “North Dakota law does not impose a legal obligation to render aid or assistance to a person in apparent need” is an imprecise statement of law in light of the facts and manslaughter charge in this case. The State’s theory of the case was not predicated on criminal liability solely for the failure to render aid; instead, the State contends the failure to render aid could be considered as a continuation of criminal conduct and it contributed to the cause of A.B.’s death.

[¶ 39] The jury heard eyewitness testimony that Streeper injected A.B. with a syringe. A.B. did not immediately die from the injection. The medical examiner could not pinpoint a precise time of death. Streeper was alone with A.B. after Ste-nehjem left that night. The jury could have rationally found that Streeper knew or had reason to know that A.B. was in distress hours before he had his mother call 911, because he testified about having saved Stenehjem’s life after a drug overdose and because police found a camera in Streeper’s room containing several digital photos of A.B. taken shortly after 4:00 that morning. A jury could have reasonably concluded that he was familiar with overdose symptoms and was awake when A.B. was in a medical crisis.

[¶ 40] Whether Streeper’s conduct in failing to render aid to A.B. rises to the level of criminal negligence or recklessness was within the province of the jury. The jury was given a choice of finding Streeper guilty or not guilty of manslaughter, negligent homicide, or reckless endangerment. It also received statutory definitions of the various associated culpability levels. The State made a fair and reasonable argument based upon its theory of the case and the district court’s ruling throughout the trial and prior to closing arguments. The State’s theory has support in the evidence. The State made no improper comments during closing argument. The district court did not abuse its discretion in its control of the scope of closing argument.

V

[¶ 41] Streeper argues that “the trial court erred when it refused to instruct the jury on the lesser-included offense of misdemeanor reckless endangerment.”

[¶ 42] A person is guilty of reckless endangerment if:

he creates a substantial risk of serious bodily injury or death to another. The offense is a class C felony if the circumstances manifest his extreme indifference to the value of human life. Otherwise it is a class A misdemeanor. There is risk within the meaning of this section if the potential for harm exists, whether or not a particular person’s safety is actually jeopardized.

N.D.C.C. § 12.1-17-03 (emphasis added). The district court reasoned that only the misdemeanor reckless endangerment was an included offense of manslaughter, because “extreme indifference is not an element necessary to prove manslaughter.” On reckless endangerment, the court instructed:

If you find the defendant Not Guilty of both Manslaughter and Negligent Homicide, you are to consider the offense of Reckless Endangerment, a crime that is necessarily included in the offense of Manslaughter, the essential elements of which are as follows:
1. On or about the 28th-29th day of November, 2004;
2. In Burleigh County, North Dakota;
3. The defendant, Mark Streeper;
4. Created a substantial risk of serious bodily injury or death to another.

(Emphasis added).

[¶ 43] Because the district court instructed the jury on misdemeanor reckless endangerment, Streeper’s argument is moot.

VI

[¶ 44] We affirm the district court’s judgment.

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


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2007 ND 31
    STATE of North Dakota, Plaintiff and Appellee, v. Natalee Michelle DUCHENE, Defendant and Appellant.
    No. 20060164.
    Supreme Court of North Dakota.
    Feb. 28, 2007.
    Jonathan H.P. Anderson, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee.
    Douglas W. Nesheim (argued) and Steven D. Mottinger (on brief), Fargo, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Natalee Duchene has appealed from a judgment of conviction for possession of drug paraphernalia. We affirm, concluding Duchene’s failure to challenge the district court’s ruling that the good faith exception to the exclusionary rule applied is dispositive of the appeal.

I

[¶ 2] In September 2005, Detective Glen Hanson of the Fargo Police Department applied for a search warrant for Du-chene’s apartment in Fargo. In support of the application, Detective Hanson submitted an affidavit detailing information he had obtained the day before from a confidential informant. The informant had advised Detective Hanson that within the prior 24 hours the informant had seen a large blue marijuana bong on a nightstand in Duchene’s bedroom in her apartment. Detective Hanson’s affidavit noted the confidential informant was “working off’ drug charges from a prior arrest and this was the first time information from the informant had been used to apply for a search warrant. The affidavit also indicated that Detective Hanson had verified Duchene lived at the address given by the informant, and that the informant had provided names and addresses of two other Fargo-area drug users who were being investigated by the Fargo Police Department.

[¶ 3] On the basis of Detective Hanson’s affidavit, the magistrate found there was probable cause and issued the search warrant. The subsequent search of Du-chene’s apartment yielded various items of drug paraphernalia, and Duchene was charged with two counts of possession of drug paraphernalia.

[¶ 4] Duchene moved to suppress all evidence obtained in the search, arguing Detective Hanson’s affidavit did not establish sufficient reliability of the confidential informant and, therefore, probable cause did not exist to support issuance of the search warrant. In its memorandum opinion on the motion to suppress, the district court summarized the parties’ contentions regarding the credibility of the confidential informant and concluded that “this is a close case for the existence of probable cause.” Without expressly deciding whether Detective Hanson’s affidavit was sufficient to establish probable cause, the court disposed of the motion on the basis of the good faith exception to the exclusionary rule:

Because this is a close case, however, the present motion turns on the “good-faith exception” as expressed in U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The court concluded the law enforcement officers’ reliance on the magistrate’s finding of probable cause was reasonable and the good faith exception to the exclusionary rule applied. The court therefore denied Duchene’s motion to suppress.

[¶ 5] Duchene entered a conditional plea of guilty, reserving her right to appeal from the denial of her motion to suppress. See N.D.R.Crim.P. 11(a)(2). Judgment of conviction was entered and Duchene appealed, alleging there was no probable cause to support issuance of the search warrant.

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

II

[¶ 7] Although evidence obtained through an unconstitutional search and seizure is generally inadmissible in state courts, the good faith exception recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984), provides that “exclusion of evidence is not the proper remedy when an officer has acted in good faith upon objectively reasonable reliance that a warrant was properly issued by a neutral and detached magistrate.” State v. Dodson, 2003 ND 187, ¶ 20, 671 N.W.2d 825; see Leon, at 922, 104 S.Ct. 3405.

[¶ 8] The court, after noting that the record presented “a close ease for the existence of probable cause,” concluded that resolution of the motion to suppress turned on the good faith exception under Leon. Although the court did not expressly determine whether probable cause existed to support the warrant, its reliance on the good faith exception suggests it implicitly found probable cause was lacking.

[¶ 9] This case comes to us in a most unusual procedural posture. Duchene does not challenge the district court’s conclusion that the officers’ reliance on the search warrant was reasonable and that the good faith exception applied. In fact, Duchene’s brief on appeal never once mentions the term “good faith.” The only issue raised by Duchene is whether the search warrant was supported by probable cause. In effect, Duchene on appeal has challenged only the issue upon which the district court implicitly ruled in her favor, while wholly ignoring the issue upon which the court based its decision to deny her motion to suppress.

[¶ 10] Issues not briefed by an appellant are deemed abandoned, and thereby become the law of the case and will not be considered on appeal. Lawrence v. Delkamp, 2006 ND 257, ¶ 13, 725 N.W.2d 211; Haugenoe v. Bambrick, 2003 ND 92, ¶ 14, 663 N.W.2d 175; State v. Keilen, 2002 ND 133, ¶ 13 n. 1, 649 N.W.2d 224; Estate of Murphy v. Maus, 2001 ND 87, ¶ 13 n. 1, 626 N.W.2d 281. Therefore, the district court’s determination that the officers’ reliance on the warrant was objectively reasonable and that the good faith exception applied is controlling. Even if we agreed with Duchene’s contention that there was no probable cause to support issuance of the warrant, under these circumstances the judgment of conviction is still sustainable based upon the district court’s unchallenged determination that the good faith exception to the exclusionary rule applied. We therefore find it unnecessary to address the probable cause issue because its resolution would not alter the dispositive conclusion that the good faith exception applies and the evidence was therefore not subject to exclusion.

Ill

[¶ 11] The judgment of conviction is affirmed.

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


author: MARING, Justice.

text:
    2007 ND 24
    Patricia J. ROTHBERG, Plaintiff, Appellee and Cross-Appellant, v. Charles S. ROTHBERG, Defendant, Appellant and Cross-Appellee.
    No. 20060191.
    Supreme Court of North Dakota.
    Feb. 28, 2007.

      LaRoy Baird (argued) and Bonnie L. Storbakken (on brief), LaRoy Baird, P.C., Bismarck, N.D., for plaintiff, appellee and cross-appellant.
    Scott K. Porsborg (argued) and Mitchell D. Armstrong (on brief), Smith Bakke Porsborg & Schweigert, Bismarck, N.D., for defendant, appellant and cross-appel-lee.
   MARING, Justice.

[¶ 1] Charles S. Rothberg appealed from an order denying his motion to modify his stipulated spousal support obligation under a divorce judgment, and Patricia J. Rothberg cross-appealed from that part of the order denying her request for an award of attorney fees and costs incurred in resisting the motion. We conclude the district court’s finding that Charles Roth-berg did not establish a material change in circumstances to warrant modification of his stipulated spousal support obligation is not clearly erroneous, and the court did not abuse its discretion in denying Patricia Rothberg’s request for attorney fees and costs. We affirm.

I

[¶ 2] The Rothbergs married in 1979 and subsequently adopted three children, one of whom is now emancipated. They divorced in August 2001 while Charles Rothberg was employed as a neurosurgeon at St. Alexius Medical Center in Bismarck under a contract running through June 2003 and paying him $400,000 per year plus compensation for excess call coverage. The parties’ total income in 2001 was $483,822. The parties entered into a settlement agreement which addressed custody, visitation, child support, property division, and spousal support, and which was incorporated into the divorce judgment. Charles Rothberg agreed to pay Patricia Rothberg spousal support under the agreement:

SPOUSAL SUPPORT. After due consideration of the disadvantage that has been incurred as a result of this divorce, Defendant shall pay to the Plaintiff permanent spousal support in the amount of Thirty Six Hundred Dollars ($3,600.00) per month, commencing the 15th day of August, 2001, and continuing on the 15th day of each and every month thereafter, until (i) the Plaintiff dies, remarries or otherwise holds herself out as living in a matrimonial relationship or (ii) August 15, 2004 at which time, without any necessity of Plaintiff showing a substantial change in circumstances or need and as a present accommodation to the Defendant, the permanent spousal support obligation of the Defendant shall increase to Five Thousand Dollars ($5,000) per month and continue thereafter on the 15th day of each and every month until the Plaintiff dies, remarries or otherwise holds herself out as living in a matrimonial relationship. Plaintiff acknowledges that a significant change of employment by way of disability or retirement may cause a significant change in the financial circumstances of the Defendant which may, but does not require, an adjustment of his spousal support obligation. Notwithstanding that acknowledgment by the Plaintiff, the parties do agree that the permanent spousal support required herein shall continue for no more than ten (10) years from and after the date of the divorce Judgment, unless Plaintiff would otherwise die, remarry or hold herself out as living in a marital relationship, or Defendant is still working.

[¶ 3] In 2002, St. Alexius offered Charles Rothberg a contract for further employment at a salary of $267,000 per year, which he declined, and his earlier contract with St. Alexius was not renewed when it expired in June 2008. Since then he has been working as a locum tenens, traveling around the country on temporary neurosurgery assignments and earning less than he had received under his employment contract with St. Alexius. In March 2005, he moved for a reduction in spousal support, claiming the nonrenewal of his St. Alexius contract and resulting reduction in income was a material change in circumstances justifying modification. According to Charles Rothberg, he earned only $200,819 from his locum tenens work in 2004, but he also received a $50,000 payment in 2005 for work performed in 2004. Following a hearing on the motion, the district court found Charles Rothberg had failed to prove a material change in circumstances that substantially affected his ability to pay and that was not contemplated by the parties at the time of the initial divorce judgment. The court also denied Patricia Rothberg’s request for an award of attorney fees for responding to the motion.

[¶ 4] In Rothberg v. Rothberg, 2006 ND 65, ¶ 1, 711 N.W.2d 219, we reversed and remanded because “the district court’s findings of fact lacked sufficient specificity to allow this Court to discern the factual basis for the court’s determinations, and the district court failed to consider the appropriate legal standards when it denied Patricia Rothberg’s request for attorney fees.” Neither party requested a hearing on remand, and the district court supplemented its findings and denied both parties’ requests. The court ruled Charles Rothberg had not established a material change of circumstances warranting a modification of spousal support because “both Charles and Patricia contemplated at the time they signed their Property Settlement and Child Custody Agreement in August of 2001 that Charles would remain well employed as a neurosurgeon and that Patricia would remain a stay-at-home Mom, which is exactly what has happened.” The court further found:

2. Charles is employed as a neurosurgeon on a locum tenens basis working for health care providers in other cities and states with his home in Bismarck.
3. Charles earns and is capable of earning a gross income in excess of $250,000 per year.
4. Both Charles and Patricia report ample monthly expenses that are within the range of the gross monthly income or revenues available to them.
5. While Charles’ gross annual income has dropped from 2001, 2002 and 2003 by more then [sic] $150,000, he still has ample income to meet his child support and spousal support obligations while at the same time meeting his own ample monthly expenses.
6. Patricia has sufficient gross monthly revenue to meet her ample monthly expenses and pay her own attorney fees.

II

[¶ 5] Charles Rothberg argues the district court erred in finding there had been no material change in circumstances justifying a reduction in his spousal support obligation.

[¶ 6] In Rothberg, 2006 ND 65, ¶¶ 10-11, 711 N.W.2d 219 (internal citations omitted), we set forth the legal standards governing a motion to modify spousal support:

When the original divorce judgment includes an award of spousal support, the district court retains jurisdiction to modify the award. The party seeking modification of spousal support bears the burden of proving there has been a material change in the financial circumstances of the parties warranting a change in the amount of support. The district court’s determination whether there has been a material change in circumstances warranting modification of spousal support is a finding of fact and will be set aside on appeal only if it is clearly erroneous.
A material change is a change that substantially affects the financial abilities or needs of the parties and that was not contemplated by the parties at the time of the original decree. In assessing whether a material change has occurred, the reasons for changes in the parties’ income or needs must be examined, as well as the extent to which the changes were contemplated by the parties at the time of the initial decree. Not every change in the parties’ financial circumstances justifies modification of spousal support, and no modification is warranted when the change is self-induced. This Court encourages agreements between divorcing parties, and stipulated spousal support awards should be changed only with great reluctance.

[¶ 7] Charles Rothberg contends the court’s finding that he “earns and is capable of earning a gross income in excess of $250,000 per year” is clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made. Hagel v. Hagel, 2006 ND 181, ¶ 11, 721 N.W.2d 1.

[¶ 8] The district court found that Charles Rothberg’s gross income for tax years 2000, 2001, 2002, and 2003 was $328,273, $483,822, $457,991, and $410,982, respectively. The court arrived at these figures based on Charles Rothberg’s tax returns, including the tax returns for his professional corporation which he incorporated in August 2003 and elected to be treated as a Subchapter S corporation. With regard to Charles Rothberg’s 2004 and 2005 gross income, the court reasoned:

For 2004 his only income employment is through his PC. His 2004 PC tax return [Exhibit D-12] shows a gross income of $296,958, which includes a 1099 for $50,581 earned in 2004 but not [sic] on which the 1099 was not issued or received until 2005. His personal tax return [Exhibit D-ll] shows gross income of $200,819. To keep consistent the understanding of Charles’ gross income for the years 2000, 2001, 2002, 2003 and 2004, only his PC tax return reported gross income will be used. While no tax information is available for 2005, Charles testified he earns for his locum tenens work $1,400 per day working 14 days per month plus overtime of up to ten hours at $175 per hour, for an average gross income of $21,350 per month or $256,200 per year. There is no evidence that Charles cannot continue to make this level of gross income.

[¶ 9] Although Charles Rothberg complains about the district court’s use of his Sub-chapter S professional corporation tax return in finding that he could earn “in excess of $250,000 per year,” Charles Rothberg’s testimony alone supports the court’s finding. Charles Rothb.erg testified that during 2004 his locum tenens work “would average to about 21 to 24 days a month working, including travel time” for which he was not compensated. He further testified that he earns, and can continue to earn, $1,400 per day plus an additional $175 per hour for overtime, which ranges “anywhere from zero to ten hours.” In an affidavit, Charles Rothberg also stated he desired to “slow down my lifestyle by decreasing time at work both to spend time with my children and for personal health reasons,” and that his “goal is to work an average of 14 days per month (plus 4 travel days — total 18 days away) and spend the remaining time in Bismarck with my children.” The court used Charles Rothberg’s “goal” of 14 days of work plus 10 hours of overtime per month in arriving at a gross annual income of $256,200. The court’s calculations represent the lower end of Charles Roth-berg’s earning capabilities considering his testimony that he worked between 21 and 24 days per month in 2004. We conclude the district court’s finding that Charles Rothberg “is capable of earning a gross income in excess of $250,00 per year” is not clearly erroneous.

[¶ 10] Charles Rothberg argues the district court erred in failing to find that his reduction in annual income from more than $400,000 while he was employed at St. Alexius to its current level was not contemplated at the time the parties entered into their settlement agreement. He contends the spousal support agreement was signed “under the presumption that he would continue to earn in excess of $400,000 per year.”

[¶ 11] Charles Rothberg began his neu-rosurgical practice in 1981. Patricia Roth-berg stated in an affidavit:

Charles is a very difficult person to get along with and because of that he has had many difficulties in keeping employment. There were times when he was working on an independent basis during which I would be responsible for all billing, follow up, and accounts payable and receivable. During those times there were employees that simply walked off the job because of Charles’ behavior and attitude. Charles has worked in 12 different positions since he entered the work force as a neurosurgeon. The changes in his employment resulted in 7 city moves for our family. The moves were disruptive to our family life and the children’s education.

Because of his employment instability, Patricia Rothberg insisted that the settlement agreement contain a requirement that Charles Rothberg obtain occupational insurance “[i]n order to provide assurances for future compliance with the provisions as set forth herein concerning child support and spousal support ... [so that] the benefit derived from said policy of insurance would be in an amount, at a minimum, to meet the child support and spousal obligations as set forth hereunder.”

[¶ 12] Charles Rothberg stated in an affidavit that the family moved to Bismarck in 1999, and he initially worked at Medcenter One where his gross annual salary was $465,000 per year plus incentives, which “was far in excess of what I had ever previously earned.” He testified he left Medcenter One because of “[j]ust disagreements with the administration of the hospital” and accepted employment with St. Alexius. The director for the Center of Integrated Medicine at St. Alexi-us testified that she first analyzed Charles Rothberg’s production in January 2003 and noted it was “[significantly lower than [his production] should be in that specialty.” She further testified that she and Charles Rothberg “talked about [the production issues] on a regular basis.”

[¶ 13] Because the divorce judgment was based upon the parties’ stipulated agreement, rather than upon the court’s own findings, and because the parties are in a better position to understand their circumstances than is the district court, we view whether the change in circumstances was contemplated with greater scrutiny. See Wheeler v. Wheeler, 548 N.W.2d 27, 30 (N.D.1996); Huffman v. Huffman, 477 N.W.2d 594, 597 (N.D.1991). Charles Rothberg’s income has fluctuated throughout his career, which indicates those fluctuations were contemplated at the time the settlement agreement was signed. See Schmitz v. Schmitz, 2001 ND 19, ¶ 10, 622 N.W.2d 176. This evidence supports the district court’s finding that the parties did not contemplate at the time they entered into the settlement that Charles Rothberg would continue to earn more than $400,000 per year, but that the parties contemplated “that Charles would remain well employed as a neurosurgeon and that Patricia would remain a stay-at-home Mom, which is exactly what has happened.”

[¶ 14] Charles Rothberg argues the district court’s finding that his income is sufficient to comply with the $5,000 per month spousal support obligation is clearly erroneous.

[¶ 15] The ability to pay the amount of spousal support ordered is a factor in deciding whether a material change of circumstances has occurred. See, e.g., Ebach v. Ebach, 2005 ND 123, ¶ 12, 700 N.W.2d 684; Gibb v. Sepe, 2004 ND 227, ¶ 10, 690 N.W.2d 230; see also Rothberg, 2006 ND 65, ¶ 11, 711 N.W.2d 219 (“A material change is a change that substantially affects the financial abilities or needs of the parties ... ”) The court found that “Patricia has no job income and has no prospects of any significant job income,” and consequently, her circumstances have not changed since the parties entered into the settlement agreement. She listed her monthly expenses as $6,758 per month. The court found that Charles Rothberg’s average gross income was $21,350 per month. Charles Rothberg presented evidence that his monthly expenses totaled $19,558 per month. This figure included his $5,000 per month spousal support obligation, his $2,838 per month child support obligation, and $850 per month property settlement payment which expired on October 1, 2006. It also included a $3,100 monthly payment for a first mortgage on a house he purchased after the divorce currently valued at $265,000 and a second mortgage which consolidated his debt for “all vehicles” he had purchased after the divorce. The record shows that, after the divorce, Charles Rothberg purchased vehicles, motorcycles, and related equipment for more than $60,000. His monthly expenses further included $400 per month for his “Hobbies— trains, motorcycle, firearm,” and an additional $250 per month for “Miscellaneous entertainment.” Although he sold part of his train collection and firearms for $80,000 to pay debt, Charles Rothberg valued the remainder of his train collection at nearly $88,000. In assessing the parties’ expenses, the district court said:

[P]eople seem to be able to spend (or over spend) the income available to them, largely based on the lifestyle to which they had been accustomed to during the marriage. Thus while the Court could take apart the respective monthly expenses of both Charles and Patricia, it finds nothing terribly wrong with the way they are each spending their money, although it notes their respective monthly expenses are ample. The Court does note that Patricia sold the home she received with its debt in the divorce settlement and that she bought another house with less expensive monthly payments. The Court also notes that Charles sold about $80,000 worth of trains and guns, but that he still seems to be able to buy what he wants and to enjoy a good lifestyle. Certainly there are families getting along well from month to month on far less gross income than is available to either Charles or Patricia.

[¶ 16] Although Charles Rothberg interprets the district court’s comments as an approval of his monthly expenses which would make it impossible for him to pay his spousal support obligation after taxes and other items are deducted from his monthly gross income, we do not interpret the court’s comments in the same manner. We believe the district court was simply suggesting that Charles Rothberg may be required to adjust his spending priorities to meet his legal obligation. Moreover, we have said earned income is not the sole consideration in determining a party’s ability to pay spousal support, and that a court must consider a party’s net worth, including the extent of his assets and his earning ability as demonstrated by past income. See McDowell v. McDowell, 2001 ND 176, ¶ 13, 635 N.W.2d 139; Schmitz, 2001 ND 19, ¶ 10, 622 N.W.2d 176. We conclude the district court’s finding that Charles Roth-berg has the wherewithal to comply with his stipulated spousal support obligation is not clearly erroneous.

[¶ 17] Charles Rothberg nevertheless argues that his spousal support obligation should be reduced by 50 percent, from $5,000 per month to $2,500 per month, simply because his annual gross income has been reduced by 50 percent, from almost $500,000 to $250,000. Charles Rothberg relies upon Meyer v. Meyer, 2004 ND 89, ¶ 7, 679 N.W.2d 273, in which this Court concluded that the obligor’s 30.6 percent reduction in income was “relevant to [the trial court’s] finding that a material change in circumstances existed” to warrant a reduction in a stipulated spousal support obligation. According to Charles Rothberg, because this Court in Meyer “affirmed that a 30.6 percent reduction in income constituted a material change in circumstances,” his “significantly greater reduction in income ... is a significant change of circumstances as a matter of law.” However, in Meyer, at ¶ 8, 679 N.W.2d 273 (emphasis added), this Court pointed out that the district court had “determined the change in the parties’ incomes sufficiently affected Timothy Meyer’s ability to pay and Diane Meyer’s need for support to warrant modification of the stipulated amount.” Here, the district court found that Charles Rothberg has the ability to pay his stipulated obligation notwithstanding his reduction in income. Not every financial change in circumstances justifies a modification. See Schmitz, 2001 ND 19, ¶ 8, 622 N.W.2d 176; Wheeler, 548 N.W.2d at 31. A change in an obligor’s financial circumstances that does not affect the obligor’s ability to pay is not a “material” change in circumstances warranting a reduction in spousal support. See Rothberg, 2006 ND 65, ¶ 7, 711 N.W.2d 219; Gibb, 2004 ND 227, ¶ 10, 690 N.W.2d 230; Schmitz, at ¶ 10, 622 N.W.2d 176; Wheeler v. Wheeler, 419 N.W.2d 923, 926-27 (N.D.1988); see also Meyer, at ¶ 21, 679 N.W.2d 273 (Maring, J., dissenting in part and concurring in part) (obligor “must establish that his ability to pay his spousal support obligation has been affected by his change of circumstances in order to be material”). Although Charles Rothberg’s financial circumstances have changed, it is not a material change because he continues to have the ability to meet his stipulated spousal support obligation.

[¶ 18] We conclude the district court’s finding that there has been no material change of circumstances warranting a reduction in Charles Rothberg’s spousal support obligation is not clearly erroneous.

Ill

[¶ 19] Patricia Rothberg argues the district court erred in denying her request for attorney fees and costs.

[¶ 20] In Rothberg, 2006 ND 65, ¶¶ 19-20, 711 N.W.2d 219 (internal citations omitted), we said:

Under N.D.C.C. § 14-05-23, a district court has discretion to award attorney fees in divorce proceedings, including proceedings on motions to modify spousal support. An award of attorney fees under N.D.C.C. § 14-05-23 lies within the sound discretion of the district court and will not be set aside on appeal absent an abuse of discretion. A district court abuses its discretion if it misinterprets or misapplies the law.
In deciding whether to award attorney fees under N.D.C.C. § 14-05-23, the court must balance the parties’ financial needs and ability to pay.

On remand, the district court found:

Patricia’s gross monthly revenues of $8,730 until October 1, 2006, when it will drop to a monthly gross income of $7,880, nicely covers her ample monthly expenses of $6,758. Charles’ gross income is found by the Court to be sufficient to pay child support and spousal support to Patricia and to cover his ample monthly expenses, but it is not so much in excess of his expenses that he can afford to pay Patricia’s attorney fees. The Court finds Patricia has the ability to pay her own attorney fees.

[¶ 21] We conclude the district court did not abuse its discretion in denying Patricia Rothberg’s request for attorney fees and costs.

IV

[¶ 22] We have considered the other arguments raised by the parties and conclude they are either unnecessary to address in view of our disposition of the case or are without merit. The order is affirmed.

[¶ 23] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


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

text:
    2007 ND 32
    Tyler Allen WHITECALFE, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee George Steven Berg, Plaintiff and Appellant, v. North Dakota Department of Transportation, Defendant and Appellee.
    Nos. 20060202, 20060269.
    Supreme Court of North Dakota.
    Feb. 28, 2007.

      Chad R. McCabe, Vinje Law Firm, Bismarck, N.D., for plaintiffs and appellants.
    Zachary Evan Pelham, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for defendant and appel-lee.
   VANDE WALLE, Chief Justice.

[¶ 1] In consolidated appeals, Tyler Whitecalfe appealed from a district court judgment affirming a North Dakota Department of Transportation hearing officer’s decision to revoke his driving privileges for one year, and George Berg appealed from a district court judgment affirming a North Dakota Department of Transportation hearing officer’s decision to revoke his driving privileges for four years. Whitecalfe and Berg argue the North Dakota Department of Transportation (“the Department”) lacked authority to revoke their driving privileges and they claim they were denied due process. We affirm.

I

[¶ 2] Whitecalfe was arrested for driving under the influence of alcohol on February 3, 2006. A law enforcement officer advised Whitecalfe of the implied consent law and asked for a blood specimen to determine Whitecalfe’s blood alcohol content. Whitecalfe refused to consent to the test. The law enforcement officer immediately took possession of Whitecalfe’s driver’s license, and issued Whitecalfe a twenty-five day temporary operator’s permit on the Department’s report and notice form. The report and notice form consists of an original and two copies. The original was sent to the Director of the Department, the law enforcement officer kept one copy, and the third copy (“the driver’s copy”) was given to Whitecalfe. The driver’s copy of the report and notice informed Whitecalfe that his driving privileges could be revoked for up to four years because he refused a chemical test, and explained how to request an administrative hearing to contest the proposed revocation. The Department’s copy of the report and notice was identical to the driver’s copy except the Department’s copy did not include a section explaining the process for requesting a hearing, and instead included a section for the law enforcement officer’s statement of probable cause explaining the officer’s factual basis for believing White-calfe was in actual control of a motor vehicle while under the influence of alcohol.

[¶ 3] Whitecalfe timely requested an administrative hearing to contest the revocation. Before the hearing, Whitecalfe received a copy of the Department’s report and notice, which included the officer’s statement of probable cause. At the hearing, Whitecalfe argued the Department lacked jurisdiction and he claimed he was denied due process because the driver’s copy of the report and notice did not contain the officer’s statement of probable cause. An administrative hearing officer revoked Whitecalfe’s driving privileges for one year, and the Burleigh County District Court affirmed the hearing officer’s decision.

[¶ 4] In a separate incident, Berg was arrested for driving under the influence of alcohol on March 18, 2006. A law enforcement officer advised Berg of the implied consent law and requested a breath specimen for a chemical test. Berg refused to consent to the chemical test. Berg was given the driver’s copy of the report and notice informing him that his license could be revoked for up to four years for refusing to consent to the chemical test and notifying him that he would not be issued a temporary operator’s permit because his license was already suspended. The report and notice also informed Berg of the procedures to request an administrative hearing to contest the proposed revocation. The original report and notice was sent to the Director of the Department. The driver’s copy of the report and notice was identical to the original sent to the Department except the driver’s copy included the instructions for requesting a hearing to contest the revocation and did not contain the law enforcement officer’s statement of probable cause.

[¶ 5] Berg timely requested an administrative hearing to challenge his revocation. Before the hearing, Berg received a copy of the Department’s report and notice form containing the law enforcement officer’s statement of probable cause. At the hearing, Berg argued the Department lacked jurisdiction and claimed he was denied due process because the driver’s copy of the report and notice did not contain the officer’s statement of probable cause. An administrative hearing officer revoked Berg’s driving privileges for four years, and the Stark County District Court affirmed the hearing officer’s decision.

II

[¶ 6] Whitecalfe and Berg argue the Department lacked authority to revoke their driving privileges and they were denied due process because the driver’s copy of the report and notice did not contain the law enforcement officer’s statement of probable cause. Relying on Aamodt v. North Dakota Dep’t of Transp., 2004 ND 134, 682 N.W.2d 308, and Jorgensen v. North Dakota Dep’t of Transp., 2005 ND 80, 695 N.W.2d 212, they claim due process and N.D.C.C. § 39-20-04 require the driver to be informed about the officer’s factual basis for probable cause before deciding whether to request an administrative hearing to contest the revocation.

[¶ 7] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of the Department’s administrative suspension or revocation of a person’s driver’s license. Aamodt, 2004 ND 134, ¶ 12, 682 N.W.2d 308. Our review of appeals involving license suspensions or revocations is limited, and we give deference to the Department’s findings. Id. We affirm the Department’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 this chapter 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.C.C. § 28-32^16.

A

[¶ 8] Section 39-20-04, N.D.C.C., explains the procedures that must be followed before an individual’s driving privileges may be revoked for refusal to submit to testing:

the law enforcement officer shall immediately take possession of the person’s operator’s license if it is then available and shall immediately issue to that person a temporary operator’s permit, if the person then has valid operating privileges, extending driving privileges for the next twenty-five days or until earlier terminated by a decision of a hearing officer under section 39-20-05. The law enforcement officer shall sign and note the date on the temporary operator’s permit. The temporary operator’s permit serves as the director’s official notification to the person of the director’s intent to revoke driving privileges in this state and of the hearing procedures under this chapter. The director, upon the receipt of that person’s operator’s license and a certified written report of the law enforcement officer in the form required by the director, forwarded by the officer within five days after issuing the temporary operator’s permit, showing that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01 or equivalent ordinance ... that the person was lawfully arrested if applicable, and that the person had refused to submit to the test or tests under section 39-20-01 or 39-20-14, shall revoke that person’s license or permit to drive and any nonresident operating privilege for the appropriate period under this section ... subject to the opportunity for a prerevocation hearing and postrevocation review as provided in this chapter.

If the basic and mandatory provisions of this statute have not been met, the Department lacks authority to revoke an individual’s driving privileges. See Aamodt, 2004 ND 134, ¶ 15, 682 N.W.2d 308. Interpretation of a statute is a question of law, which is fully reviewable on appeal. Jorgensen, 2005 ND 80, ¶ 7, 695 N.W.2d 212.

[¶ 9] Relying on Aamodt and Jorgen-sen, Whitecalfe and Berg claim the Department lacked authority to revoke their driving privileges because the driver’s copy of the report and notice did not in-elude the officer’s statement of probable cause.

[¶ 10] In Aamodt, the driver was arrested for driving while under the influence of alcohol, submitted to a chemical test, and was given a copy of the report and notice informing him of the Department’s intent to suspend his driving privileges. Aamodt, 2004 ND 134, ¶ 3, 682 N.W.2d 308. A law enforcement officer sent a copy of the report and notice to the Department, but that copy did not include the law enforcement officer’s statement of reasonable grounds for believing the driver was in actual physical control of a vehicle while under the influence of alcohol. Id. at ¶ 15, 682 N.W.2d 308. We said the Department’s authority to suspend a person’s license was given by and dependant on the terms of the statute. Id. We held the statutory provision requiring the officer to show probable cause in the report and notice to the Department was a basic and mandatory provision, and therefore the Department lacked the authority to suspend the driver’s driving privileges because the report and notice sent to the Department did not comply with statutory requirements. Id. at ¶ 26, 682 N.W.2d 308.

[¶ 11] In Jorgensen, the driver was arrested for driving while under the influence of alcohol and submitted to a chemical test. Jorgensen, 2005 ND 80, ¶ 2, 695 N.W.2d 212. The driver was given a copy of the report and notice informing him of the Department’s intent to suspend his driving privileges. Id. at ¶ 4, 695 N.W.2d 212. A copy of the report and notice was also sent to the Department along with an analytical report for the driver’s blood sample, but the law enforcement officer failed to record the results of the chemical test on the report and notice as required by statute. Id. at ¶ 4, 695 N.W.2d 212. We held the Department lacked the authority to suspend the driver’s driving privileges because the officer failed to record the chemical test results on the copy of the report and notice sent to the Department as required by statute. Id. at ¶ 13, 695 N.W.2d 212.

[¶ 12] The Department lacked authority in Aamodt and Jorgensen because of a failure to comply with statutory requirements for the reports sent to the Department. Here, N.D.C.C. § 39-20-04 requires a law enforcement officer to include in the report sent to the Department (1) “reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01, or equivalent ordinance”; (2) “the person was lawfully arrested”; and (3) “the person had refused to submit to the test or tests under section 39-20-01 or 39-20-14.” For the Department to have the authority to revoke the individual’s driving privileges the plain language of N.D.C.C. § 39-20-04 requires that information be included in the report sent to the Department. It does not require the information to be provided to the driver at that stage of the process.

[¶ 13] In this case, the copy of the report and notice sent to the Department contained all the information required by statute, including the officer’s statement of probable cause. The driver’s copy of the report and notice Whitecalfe and Berg received did not include the officer’s statement of probable cause. However, we conclude that omission does not affect the Department’s authority to revoke White-calfe’s and Berg’s driving privileges because N.D.C.C. § 39-20-04 only requires the driver receive a temporary operator’s permit, which serves as notice of the Department’s intent to revoke driving privileges and informs the driver of the hearing procedures. Section 39-20-04, N.D.C.C., does not require the officer’s statement of probable cause be given to the driver at that stage of the process in order for the Department to have authority to suspend or revoke an individual’s driving privileges. We decline to read this requirement into the statute. Rather, N.D.C.C. § 39-20-04 specifies that the form of the report and notice is determined by the Department’s rules, and the best remedy to change the information included in the driver’s copy of the report and notice would be to request the Department amend the report and notice or if this fails, request the Legislature to amend the statute. We conclude the Department had authority to revoke Whitecalfe’s and Berg’s driving privileges.

B

[¶ 14] Although N.D.C.C. § 39-20-04 does not require the driver receive the information in the officer’s written report, Whitecalfe and Berg claim due process does. Whitecalfe and Berg claim they were denied due process because they were not provided with the statement about the law enforcement officers’ basis for probable cause before they had to request an administrative hearing to contest the revocation.

[¶ 15] A court may decide the merits of a dispute only if the parties demonstrate they have standing to litigate the issues. Kjolsrud v. MKB Mgmt. Corp., 2003 ND 144, ¶ 13, 669 N.W.2d 82. “Standing is the concept used ‘to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court.’ ” Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 ND 60, ¶ 11, 676 N.W.2d 752 (quoting Billey v. North Dakota Stockmen’s Ass’n, 1998 ND 120, ¶ 7, 579 N.W.2d 171). The litigant must have an interest, either in an individual or representative capacity, in the cause of an action, or a legal or equitable right, title, or interest in the subject matter of the controversy in order to invoke the jurisdiction of the court. Nodak Mut. Ins. Co., at ¶ 11, 676 N.W.2d 752. Whether a party has standing to litigate an issue is a question of law, which we review de novo. Flatt v. Kantak, 2004 ND 173, ¶ 38, 687 N.W.2d 208.

[¶ 16] Standing requires a two-prong inquiry:

First, the plaintiff must have suffered some threatened or actual injury resulting from the putatively illegal action. Secondly, the asserted harm must not be a generalized grievance shared by all or a large class of citizens; the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties.

Id. (Citations omitted).

[¶ 17] Here, Whitecalfe and Berg arguably do not have standing. They contend they were denied due process because they did not know the law enforcement officers’ factual basis for probable cause before they requested a hearing, and they claim that information is essential to decide whether to contest the Department’s intended revocation or waive the right to a hearing. Their argument, however, presumably fails the first prong of the standing inquiry because they requested a hearing and did not suffer an injury as a result of not having the information.

[¶ 18] Whitecalfe and Berg arguably also do not have third party standing. Under certain conditions, a third party may acquire standing to challenge the constitutionality of a statute or administrative procedure. City of Fargo v. Stensland, 492 N.W.2d 591, 594 (N.D.1992). Third party standing exists when “ ‘there is a close relationship between the litigant’s rights and the rights of a third party such that the litigant is fully, or very nearly, as effective a proponent of those rights as the third party[,]’” or “where individuals not party to a particular suit stand to lose by its outcome and yet have no effective avenue of preserving their rights[,]” or “where speech protected by the First Amendment is infringed upon by the challenged statute.” Id. While White-calfe and Berg claim their due process issue could never be brought before a court unless an individual contests the Department’s decision by requesting an administrative hearing, we conclude their argument is unpersuasive. A party with standing could bring this issue before the court in a declaratory judgment action after failing to request a hearing.

[¶ 19] Although Whitecalfe and Berg arguably do not have standing to raise the due process issue, their claims are nevertheless meritless under the facts of this case. Whitecalfe and Berg claim they were denied due process because they did not have the law enforcement officer’s probable cause statement before they were required to decide whether to request a hearing to contest the revocation, and they contend Jorgensen supports their claim. In Jorgensen, before holding the Department did not have the authority to suspend a person’s driving privileges because the report and notice sent to the Department failed to include the chemical test results, we said it was important the driver know what the officer was relying on before deciding whether to request an administrative hearing to contest the suspension:

Section 39-20-05(1), N.D.C.C., gives a driver only a short time — ten days— after the issuance of a temporary operator’s permit within which to request a hearing to challenge the suspension of his or her driving privileges. Thus, in determining whether to request a hearing, it is important that a driver facing the loss of driving privileges be able to quickly, conveniently, and certainly know what the officer is relying on. That information will be more quickly, conveniently, and certainly conveyed to the driver by inserting in the appropriate blank space on the report and notice form the results of the test than by giving the driver a copy of the analytical report of the analysis of the blood sample tested, which may well be confusing to one unacquainted with such documents.

Jorgensen, 2005 ND 80, ¶ 13, 695 N.W.2d 212. But those statements do not control the due process issue asserted in this case.

[¶ 20] Unlike some other legal rules, due process, “ ‘is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). Due process is flexible and must be considered on a case-by-case basis. Wahl v. Morton County Soc. Serv., 1998 ND 48, ¶ 6, 574 N.W.2d 859. When deciding a due process claim, we consider whether a constitutionally protected property or liberty interest is at stake and, if so, whether minimum procedural due process requirements were met. Morrell v. North Dakota Dept. of Transp., 1999 ND 140, ¶ 8, 598 N.W.2d 111. A driver’s license is a protectable property interest, which may not be suspended or revoked without due process, and therefore a driver is entitled to procedural due process in an administrative hearing to revoke or suspend his license. Id. Procedural due process is analyzed by applying a balancing test, considering three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

In re S.A.L., 2002 ND 178, ¶ 11, 652 N.W.2d 912 (quoting Mathews, at 335, 96 S.Ct. 893).

[¶ 21] In this case, the risk of an erroneous deprivation of a individual’s driving privileges is minimal under the current procedures, and the value of adding the probable cause statement to the driver’s copy of the report and notice is very small. The current procedures for contesting the revocation require a driver to request a hearing, within ten days from the date the report and notice was issued, by mailing a written request to the Department. After a request for a hearing is made, a hearing is scheduled and the driver is sent a copy of the Department’s report and notice which includes the officer’s statement of probable cause. Under the current procedures, a driver’s cost to request a hearing is minimal, and after the driver receives the Department’s copy of the report and notice, the driver may choose to contest the revocation or may cancel the hearing. If the driver wants to know what information the law enforcement officer relied on for the stop and arrest before the driver requests an administrative hearing, the driver is not precluded from asking the Department for a copy of the original report and notice including the officer’s statement of probable cause. In sum, the driver loses nothing by requesting a hearing.

[¶ 22] Due process is an issue of time, place, and circumstances. See Mathews, 424 U.S. at 334, 96 S.Ct. 893. Here, the critical time is the hearing, and before the hearing, the driver must have the necessary information to adequately prepare for the hearing, including the information contained in the Department’s copy of the report and notice. “Due process requires a participant in an administrative proceeding be given notice of the general nature of the questions to be heard, and an opportunity to prepare and be heard on those questions.” Morrell, 1999 ND 140, ¶ 9, 598 N.W.2d 111. A party has adequate notice when he has been informed of the nature of the proceedings so there is no unfair surprise. Id. A party challenging an agency action must also be adequately informed in advance about the questions to be addressed at the hearing so the party has a sufficient opportunity to prepare. Id. Under the current license revocation procedures, those requirements are met. We conclude the current administrative procedures do not deny a driver due process.

[¶ 23] Whitecalfe and Berg had adequate notice of the nature of the hearing and were adequately informed in advance about the issues to be addressed at the hearing. Both parties received a copy of the report and notice advising them of their right to request a hearing to contest the revocation. The form specified that their licenses would be revoked because they were arrested for driving under the influence and refused to submit to chemical testing. While the driver’s copy of the report and notice Whitecalfe and Berg initially received did not include the officer’s statement of probable cause, they each received a copy of the Department’s report and notice, including the probable cause statement, before the administrative hearing. Both parties were notified of the nature of the proceedings and had sufficient time to prepare. We conclude Whitecalfe and Berg were not denied due process.

Ill

[¶ 24] We affirm.

[¶ 25] DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.

KAPSNER, Justice,

concurring in the result.

[¶ 26] I concur in the result, but disagree with the majority opinion to the extent that it suggests Whitecalfe and Berg arguably do not have standing.

[¶ 27] Standing is a threshold issue to determine whether the litigant is entitled to have the court decide the merits of the dispute. See Flatt v. Kantak, 2004 ND 173, ¶ 38, 687 N.W.2d 208 (quoting State v. Carpenter, 301 N.W.2d 106, 107 (N.D.1980)); Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 ND 60, ¶ 11, 676 N.W.2d 752 (quoting Rebel v. Nodak Mut. Ins. Co., 1998 ND 194, ¶ 8, 585 N.W.2d 811). The ultimate decision on the merits is generally not a factor when addressing whether the court has jurisdiction to hear it. See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 88-90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). As the majority correctly noted, standing requires a two-pronged analysis. See Flatt, at ¶ 38, 687 N.W.2d 208. “ ‘First, the plaintiff must have suffered some threatened or actual injury resulting from the putatively illegal action.’ ” Id.; accord Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). Second, the harm must not be a generalized grievance. Flatt, at ¶ 38, 687 N.W.2d 208. The majority concludes Whitecalfe and Berg may not have standing because they did not suffer a due process injury as the result of not having the probable cause information before requesting a hearing because they requested a hearing. See majority opinion, at ¶ 17. The majority misconstrues the standing test.

[¶ 28] As this Court stated in Carpenter, 301 N.W.2d at 107:

Without the limitation of the standing requirements, the courts would be called upon to decide purely abstract questions. As an aspect of justiciability, the standing requirement focuses upon whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to justify exercise of the court’s remedial powers on his behalf.

[¶ 29] For Whitecalfe and Berg, the issue of whether their due process rights were violated is not an abstract question. Whitecalfe and Berg argue due process requires that they receive the officer’s probable cause statement before they have to decide whether to ask for a hearing. Whitecalfe and Berg did not get the probable cause statement before making the decision to request a hearing. Therefore, if due process did require the State to provide them with the probable cause statement before they made the decision to request a hearing, they were injured. Our holding that due process does not require the State to provide individuals with the officer’s probable cause statement before they make a decision, so long as the information is provided sufficiently in advance of the hearing, does not eliminate White-calfe and Berg’s standing to raise the due process issue.

[¶ 30] Carol Ronning Kapsner

CROTHERS, Justice,

concurring in the result.

[¶ 31] I concur in the result, but disagree with the majority to the extent they hold Whitecalfe and Berg “arguably have standing,” and I disagree with Justice Kapsner that Whitecalfe and Berg do have standing.

[¶ 32] The narrow due process issue raised by Whitecalfe and Berg is whether their rights were impinged because they did not receive the officer’s probable cause statement before deciding to request a hearing. Whitecalfe and Berg actually filed their requests for hearing before receiving the statement. Therefore, White-calfe and Berg have no actual injury, have no stake in the outcome of that dispute, and have no standing to raise the issue.

[¶ 33] MARY MUEHLEN MARING, J, concurs.