author: KAPSNER, Justice.

text:
    2002 ND 133
    STATE of North Dakota, Plaintiff and Appellee, v. Matthew Robert KEILEN, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Kristy Michelle Dykhoff, Defendant and Appellant.
    Nos. 20020064-20020065, 20020066-20020067.
    Supreme Court of North Dakota.
    Aug. 15, 2002.

      Trent W. Mahler, Assistant State’s Attorney, Fargo, for plaintiff and appellee.
    Steven M. Light, Larivee .& Light, Grand Forks, for defendants and appellants.
   KAPSNER, Justice.

[¶ 1] Matthew Keilen and Kristy Dyk-hoff appeal from their convictions for possession of a controlled substance and possession of drug paraphernalia. Each entered a conditional plea of guilty with a right to appeal the denial of the motion to suppress evidence seized as a result of entry into their apartment. Keilen and Dykhoff also argue the trial court made improper findings based on information outside of the record. The State argues any appeal was not properly preserved and the search falls within the community caretaker exception to the warrant requirement. The appeal was adequately preserved. Because the entry by officers into Keilen and Dykhoffs home violated the Fourth Amendment, the evidence should have been suppressed. We reverse and remand.

I

[¶2] On August 4, 2001, Fargo police officers were dispatched to an apartment building to investigate the report of a domestic dispute. A neighbor reported hearing yelling, fighting, and a loud crash. When the first officer arrived, he spoke with the neighbor. The neighbor told the officer he was afraid someone was hurt. A second officer arrived shortly after the first officer.

[¶ 3] Following his discussion with the neighbor, the officer went to the door of the apartment where the neighbor said the noises came from. After listening for any noise from within the apartment for twenty seconds, the officer knocked on the door and identified himself. He continued to knock “for a minute or two” without a response. The officer testified he heard “voices murmuring” and what he identified as someone coming to the apartment door and walking away without opening the door. The officer continued to knock on the door and identify himself after the person walked away from the door. After no response, the officer and his partner entered the apartment.

[¶ 4] Once inside, the two police officers encountered Keilen and Dykhoff. Keilen had scratches on his face. Both told the officers they were not in need of assistance. Even though both Keilen and Dykhoff refused help, the officers interviewed them about the loud noises reported from their apartment. While separately interviewing Keilen and Dykhoff, a third police officer arrived at the apartment. This officer observed marijuana and marijuana paraphernalia in plain view within the apartment.

[¶ 5] Based on the presence of the drugs and paraphernalia, a narcotics investigator was contacted. The information gained on August 4, 2001, coupled with other previously received information, allowed the narcotics investigator to secure a search warrant for the apartment. The search yielded contraband which formed the basis for the present charges.

[¶ 6] Claiming an unlawful search, Keilen and Dykhoff moved to suppress the evidence found as a result of the police officers entering their apartment, and any evidence subsequently gathered as fruit of the poisonous tree. The motion to suppress was denied. The State entered into conditional plea agreements with both Keilen and Dykhoff. The agreements, signed by both the prosecuting attorney and the trial court, conformed to N.D.R.Crim.P. 11(a)(2) and referenced the unsuccessful suppression motion. After conditionally pleading guilty, Keilen and Dykhoff “appealed] the memorandum on motion to suppress and dismiss[,] and [the] order denying the motion to suppress and dismiss.... ” The State contends the initial search fell within the community caretak-ing exception to the warrant requirement. The State also contends Keilen and Dyk-hoff failed to preserve an appeal because their notice of appeal is not specifically from the criminal judgments.

II

[¶ 7] The right of appeal is statutory. First American Bank West v. Berdahl, 556 N.W.2d 63, 63 n. 1 (N.D.1996); Olson v. Job Service North Dakota, 379 N.W.2d 285, 287 (N.D.1985). Section 29-28-06 of the North Dakota Century Code specifies a defendant may appeal “[a] verdict of guilty; ... [a] final judgment of conviction; ... [a]n order refusing a motion in arrest of judgment; ... [a]n order denying a motion for a new trial; or ... [a]n order made after judgment affecting any substantial right of the party.” “[W]hile the right to appeal is purely statutory, statutes conferring the right to appeal must be liberally construed, and that in determining appealability it is not the label which controls but, rather, the effect.” State v. Jelliff, 251 N.W.2d 1, 4 (N.D.1977).

[¶ 8] “We have previously held that an attempted appeal from an order for judgment or a memorandum decision will be treated as an appeal from a subsequently-entered consistent judgment, if one exists.” Kaiser v. State, 417 N.W.2d 175, 177 (N.D.1987). This Court has also held “when the memorandum opinion contains an order which was intended to be a final order and the order is one from which an appeal may be taken pursuant to statute, we will treat the appeal as an appeal from the order.” Id.

[¶ 9] The State entered into conditional plea agreements with both Keilen and Dykhoff in which it consented to the reservation of a right to appeal. While the wording used by Keilen and Dykhoff in their notice of appeal is less than precise, the effect of the attempted appeal from the memorandum opinion on the motion to suppress the evidence and dismiss the charges is the same as if the appeal was from the subsequently-entered consistent judgment of conviction. See id. Because the record contains a subsequently-entered judgment consistent with the “memorandum on motion to suppress and dismiss,” and because the State consented to the reservation of an appeal, this Court will treat the appeal as an appeal from a final judgment of conviction.

Ill

[¶ 10] We affirm the decision of a trial court on a motion to suppress, after resolving conflicting evidence in favor of affirming the decision, unless we conclude there is insufficient evidence to support the decision or the decision goes against the “manifest weight of the evidence.” State v. Loh, 2000 ND 188, ¶ 4, 618 N.W.2d 477. “While the court’s legal conclusions are fully reviewable, we defer to its factual findings.” State v. Huffman, 542 N.W.2d 718, 720 (N.D.1996). “Recognizing the importance of the trial court’s opportunity to observe witnesses and assess their credibility, we accord great deference to the trial court’s decision in suppression matters.” Loh, at ¶ 4.

[¶ 11] An individual is protected from unreasonable searches and seizures in their home by the Fourth Amendment to the United States Constitution, and by Article I, section 8 of the North Dakota Constitution. The United States Supreme Court has recognized a “ ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). “[T]he Fourth Amendment has drawn a firm line at the entrance to the house.” Id. at 590, 100 S.Ct. 1371, 63 L.Ed.2d 639. “Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Id. As the Supreme Court recently reiterated, “police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.” Kirk v. Louisiana, — U.S. -, 122 S.Ct. 2458, - L.Ed.2d - (2002). Under Payton, “[warrantless searches and seizures inside a home are presumptively unreasonable.” City of Fargo v. Lee, 1998 ND 126, ¶ 8, 580 N.W.2d 580. See also State v. Kitchen, 1997 ND 241, ¶ 13, 572 N.W.2d 106.

[¶ 12] In a suppression motion, the defendant has the initial burden of establishing a prima facie case that the evidence was illegally seized. City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478. After the prima facie burden is met, the burden shifts to the prosecution. Id. “The government has the burden to show a warrantless search falls within an exception to the warrant requirement.” Lee, at ¶ 8. Without an exception, “evidence gained in violation of the Fourth Amendment’s protections against unreasonable searches and seizures is inadmissible under the exclusionary rule and must be suppressed.” Kitchen, at ¶ 9. Evidence subsequently gained as a result of the initial illegally acquired evidence is “fruit of the poisonous tree” and must be suppressed, unless an exception to the warrant requirement exists. Id.

[¶ 13] In this instance, the trial court denied the motion to suppress because it was “of the opinion that the officers’ conduct was justifiable under the community caretaker exception” to the warrant clause of the Fourth Amendment. Keilen and Dykhoff argue the doctrine does not apply to dwellings. They contend the police officers entrance into their apartment “to check to see if everyone was all right,” when the officers had not heard or observed any signs of a disturbance does not justify the application of the community caretaker doctrine. The State contends the community caretaker exception to the warrant clause is applicable to residences under North Dakota case law, and exclusion of the evidence at issue would discourage law enforcement from fulfilling its recognized community caretaker function.

[¶ 14] “Law enforcement officers frequently act in the role of community caretaker.” Lapp v. Department of Transportation, 2001 ND 140, ¶ 14, 632 N.W.2d 419. “Officers’ actions under the community caretaker role differ from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. “This Court has recognized community caretaking as justifying law enforcement contact, including stops, without reasonable suspicion of unlawful conduct.” State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996). “A caretaking encounter does not foreclose an officer from making observations that lead to a reasonable and articulable suspicion.” Lapp, at ¶ 14.

[¶ 15] The source of the community caretaking doctrine is the Supreme Court’s decision in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In Cady, an off-duty Chicago police officer was convicted of murder after Wisconsin police officers, while searching his rented car for his service revolver following a one-car accident, found blood and other evidence of wrongdoing. Id. at 435-39, 93 S.Ct. 2523, 37 L.Ed.2d 706. The Wisconsin officers were looking for the service revolver because they believed off-duty Chicago police officers were required to carry their revolvers. Id. at 437, 93 S.Ct. 2523, 37 L.Ed.2d 706. The Wisconsin officers testified the search to find the revolver “was ‘standard procedure in our department.’ ” Id. The search uncovered various items covered with blood, which led to the procurement of a search warrant to search the rental vehicle and one other vehicle. Id. at 437-38, 93 S.Ct. 2523, 37 L.Ed.2d 706.

[¶ 16] In determining the Wisconsin police officers did not need a warrant to conduct the search which initially discovered blood, the Supreme Court held:

The Court’s previous recognition of the distinction between motor vehicles and dwelling places leads us to conclude that the type of caretaking “search” conducted here of a vehicle that was neither in the custody nor on the premises of its owner, and that had been placed where it was by virtue of lawful police action, was not unreasonable solely because a warrant had not been obtained.

Id. at 447-48, 93 S.Ct. 2523, 37 L.Ed.2d 706. The Supreme Court recognized “[l]o-cal police officers ... frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what ... may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441, 93 S.Ct. 2523, 37 L.Ed.2d 706.

[¶ 17] All cases, except one, in which this Court has discussed the application of the community caretaking doctrine involve vehicles. See City of Jamestown v. Jerome, 2002 ND 34, ¶8, 639 N.W.2d 478 (holding the officer’s actions in asking the driver if he could talk with her after she had exited her vehicle did not fall within the community caretaking function); Lapp, 2001 ND 140, ¶¶ 14-15, 632 N.W.2d 419 (holding the officer was performing a community caretaking function in knocking on the window of an idling vehicle with the headlights on when the driver was slumped over the steering wheel after a private security guard could not awaken the driver); City of Fargo v. Sivertson, 1997 ND 204, ¶ 10, 571 N.W.2d 137 (holding the officer was performing a community caretaking function in approaching a parked vehicle which was not proceeding with other traffic around an accident location); City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 773-75 (N.D.1996) (holding the officer was exercising his community caretaking function in approaching an idling vehicle with its lights on when the driver was slumped over the steering wheel); State v. Franklin, 524 N.W.2d 603, 605 (N.D.1994) (holding the encounter between the occupants of a stopped pickup truck and police officers in a motel parking lot “was more of a caretaking activity than a stop or seizure”); Halfmann, 518 N.W.2d at 730-31 (holding the officer was acting in the caretaker capacity in questioning the driver of vehicle which had pulled off and stopped on the shoulder of a gravel road); State v. Brown, 509 N.W.2d 69, 72 (N.D.1993) (holding the officer’s stop of a vehicle was not justified on the ground of community caretaking when the officer testified he did not believe the driver was in need of assistance); State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D.1992) (determining the community caretaking function did not apply when an officer stopped a vehicle from leaving a farm implement lot in the middle of the night when “there were no indicia of an emergency of any kind”); State v. Langseth, 492 N.W.2d 298, 301 (N.D.1992) (holding the community care-taking function did not apply where the officer stopped to see if a driver needed assistance, but when the driver began to pull away the officer turned on flashing lights and thereby “converted the encounter into a seizure”). In the one case where this Court discussed the community care-taking function outside of the realm of vehicles, we determined it did not apply under the facts. See State v. DeCoteau, 1999 ND 77, ¶ 21, 592 N.W.2d 579.

[¶ 18] In DeCoteau, four Mandan police officers responded to an anonymous domestic disturbance report at the trailer of Randy DeCoteau and Kim Engel. Id. at ¶ 2. Upon arrival, the police officers found a group of children standing in the street, one of whom told the officers he had heard the sound of glass breaking from within the residence. Id. Not only were the officers unsure if there had been a domestic disturbance, when they arrived at the residence there was no disturbance and DeCo-teau and Engel were unloading a car outside the trailer. Id. at ¶¶ 2-3. Engel “told [the officers] there was nothing wrong and she wanted them to leave.” Id. at ¶ 3. “One officer told Engel that because the sound of breaking glass had been reported, he would like to see whether the children were all right.” Id. at ¶ 4. Engel entered the trailer with the officers following her. Id. “Engel never affirmatively consented to the officers entering the house; they merely followed her in.” Id. Once inside the trailer, marijuana residue was found inside a marijuana pipe. Id. This discovery led to the acquisition of a search warrant. Id.

[¶ 19] In determining “[t]here was no ‘community caretaking’ role to fill” in entering the trailer, this Court reasoned:

In this case, the police were called to investigate an anonymous tip regarding a domestic disturbance. When the officers arrived, there was no disturbance. Kim Engel was unloading her car and asked the officers why they were there. She clearly did not want the officers there, and did not need or request their assistance.

Id. at ¶ 21. As in DeCoteau, when the Fargo police officers arrived at Keilen and Dykhoff s apartment, there was no disturbance. See id. Although the officer could hear movement and voices from within the apartment, the officer did not testify he believed anyone inside was injured. Rather, the officer testified he merely wanted “to check to see if everyone was all right.” This is not sufficient under the circumstances. In order to enter a home the police need a warrant or probable cause plus exigent circumstances. Payton, 445 U.S. at 590, 100 S.Ct. 1371, 63 L.Ed.2d 639; Kirk, — U.S. -, 122 S.Ct. 2458, 153 L.Ed.2d 599. In this case, the police did not have a warrant and the trial court determined exigent circumstances did not exist. Because there was no disturbance when the officers arrived, and it was not discernible to the officers that anyone required assistance, the community caretak-ing function does not apply.

IV

[¶20] Keilen and Dykhoff adequately preserved their right to appeal the trial court’s denial of their motion to suppress. The decision of the trial court is reversed. We have reviewed the remaining argument and find it to be without merit. The evidence against Keilen and Dykhoff should have been suppressed, and the case is remanded to allow them to withdraw their guilty pleas.

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

      . The trial court ruled the exigent circumstances exception to the warrant clause was not available because the State "[did] not argue [ ] forcefully that the exigent circumstances exception applies....” The exigent circumstances exception was neither briefed nor argued to this Court. While expressing no opinion on whether exigent circumstances existed, “[ijssues not briefed or argued are deemed abandoned.” Olmstead v. First Interstate Bank of Fargo, N.A., 449 N.W.2d 804, 807 (N.D.1989).


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2002 ND 132
    In the Interest of D.Z. Mario Castillo, M.D., and William Pryatel, M.D., Petitioners and Appellees, v. D.Z., Respondent and Appellant.
    No. 20020190.
    Supreme Court of North Dakota.
    Aug. 15, 2002.

      Merle Ann Torkelson, State’s Attorney, Washburn, for petitioners and appellees.
    D.Z., pro se, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] D.Z. appealed, pro se, from July 1, 2002 orders of the trial court involuntarily committing D.Z. to the North Dakota State Hospital and authorizing forced medication upon him. We hold the trial court did not err in finding that D.Z. is a mentally ill person in need of treatment and that alternative treatment to involuntary commitment at the state hospital is not appropriate. We affirm.

I

[¶ 2] D.Z. was admitted to the state hospital in Jamestown on May 31, 2002 on an emergency basis, after he asked F.B.I. personnel to investigate his neighbors for conspiring against him. After a preliminary commitment hearing on June 7, 2002, the trial court found probable cause to believe that D.Z. was a mentally ill person in need of treatment and ordered him involuntarily committed for 14 days. Subsequently, petitions were filed to extend D.Z.’s involuntary commitment at the state hospital and to obtain court authorization for forced medication of D.Z. After a June 28, 2002 hearing, the trial court found D.Z. was a mentally ill person in need of treatment and ordered he be committed for treatment at the state hospital for 90 days.

[¶ 3] The court found that D.Z. has a “bipolar-manic depressive disorder” causing him to suffer delusions that he is the second son of God and that there is a wide conspiracy of persons, including personnel at the' state hospital, who are trying to poison and kill him. The court found that, without involuntary commitment and forced medication, D.Z. presents a serious risk of harm to himself by his refusal to eat food and drink liquids which he fears are poisoned. The court also found that, without treatment, D.Z. presents a serious risk of harm to others because his paranoia and delusional beliefs could become worse and could result in him harming others in attempts to stop the perceived conspiracy against him. The court entered separate orders on July 1, 2002 authorizing involuntary hospitalization of D.Z. for a period of 90 days, until September 28, 2002, and also authorizing forced medication treatment.

II

[¶ 4] D.Z. asserts he was given inadequate notice of the June 28, 2002 hearing, because he received the notice only two days before the hearing and the notice was not signed by the court until the hearing day. Under N.D.C.C. § 25-08.1-12, the court must give a respondent notice of the time and place of a hearing on a petition for involuntary commitment, and “[t]he notice must be given at the earliest possible time and sufficiently in advance of the hearing date to permit preparation for the hearing.”

[¶ 5] D.Z. does not assert the petition and notice failed to adequately apprise him of the issues at the hearing. Rather, his sole objection is that he received the notice only two days in advance of the hearing and that it was not signed by the court until the day of the hearing. At least twice during the hearing, the court informed D.Z. that it would continue the proceeding and schedule it for another day if D.Z. wanted additional time to prepare. D.Z. responded that he wanted the hearing to continue and he did not desire or need additional preparation time. Section 25-03.1-12, N.D.C.C., requires notice be given sufficiently in advance of the hearing “to permit preparation for the hearing.” We conclude D.Z. waived any objection he may have had to the timeliness of the notice when he told the court he did not need additional time to prepare and when he rejected the court’s offer for a continuance.

Ill

[¶ 6] D.Z. asserts the trial court erred in finding that he is a person in need of treatment. Before the trial court can issue an involuntary treatment order, the petitioner must prove by clear and convincing evidence that the respondent is a person requiring treatment. N.D.C.C. § 25-03.1-20; In re D.P., 2001 ND 203, ¶ 4, 636 N.W.2d 921. To prove that the respondent is a person requiring treatment, as defined under N.D.C.C. § 25-03.1-02(11), the petitioner must prove by clear and convincing evidence the person is mentally ill and there is a reasonable expectation that, if the person is not treated, he poses a serious risk of harm to himself, others, or property. In re D.P., at ¶ 5. The trial court’s decision must be based upon clear and convincing evidence, while this Court reviews the trial court’s findings under a more probing clearly erroneous standard of review. In re J.S., 2001 ND 10, ¶ 4, 621 N.W.2d 582. 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, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction a mistake has been made. In re H.G., 2001 ND 142, ¶ 3, 632 N.W.2d 458.

[¶ 7] At the hearing, Dr. Mario Castillo, a board certified psychiatrist practicing at the state hospital, testified D.Z. is a mentally ill person and that, without medication, D.Z. presents a serious risk of harm to himself and others. Dr. Castillo testified D.Z. has a bipolar disorder and is manic with psychotic features including grandiose delusions and paranoia. Dr. Castillo testified D.Z.’s perception of reality is gravely impaired. D.Z. believes he is the second son of God and that there is a wide conspiracy by neighbors and others to kill him. D.Z. has refused food, drink, and medication at the hospital because he believes hospital personnel are trying to poison him. Dr. Castillo testified that without medication D.Z.’s paranoia and delusions could get worse and could result in danger to D.Z. by his failure to eat and drink and could also present a danger to others by D.Z. attempting to stop the perceived conspiracy against him or by attempting to defend against the perceived threats by others to Mil him.

[¶ 8] D.Z. testified at the hearing that two doctors who had previously worked at the state hospital were currently in the state penitentiary in Bismarck serving 105-year sentences for their part in the conspiracy against him. D.Z. testified that upon Dr. Castillo leaving the hearing he would be placed in handcuffs by F.B.I. agents, who were working with D.Z. to investigate the conspiracy. D.Z. testified Dr. Castillo would then be sentenced by D.Z.’s “older brother, Jesus.”

[¶ 9] Dr. Castillo testified D.Z. has exhibited threatening behavior and a verbally hostile attitude while in the state hospital. Although D.Z. has not yet exhibited overt violent action, such conduct is not a prerequisite to finding that a person poses a serious risk of harm to himself or others. In re D.P., 2001 ND 203, ¶ 9, 636 N.W.2d 921. “Direct evidence of overt violence or an expressed intent to commit violence are not required” to find a person poses a serious risk of harm. Id. See also In Interest of S.S., 491 N.W.2d 721 (N.D.1992) (declining to adopt Minnesota’s definition of “substantial likelihood” requiring a recent attempt or threat to physically harm self and others). When one or more reasonable inferences can be drawn from credible evidence, this Court must accept the inferences drawn by the trial court. Id. The trial court found the specific risk, if D.Z. were not hospitalized and treated, was that D.Z. would “deteriorate physically and mentally -without medication — may act oh perceived threats against him.” We conclude the trial court’s findings that D.Z. is a mentally ill person who is in need of treatment and who presents a danger to himself and others are not clearly erroneous.

IV

[¶ 10] D.Z. asserts the trial court erred in ordering involuntary commitment rather than alternative treatment. When an individual is found to be a person requiring treatment he has the right to the least restrictive conditions necessary to achieve the purposes of the treatment. In re J.K., 1999 ND 182, ¶ 15, 599 N.W.2d 337; N.D.C.C. §§ 25-03.1-21 and 25-03.1-40(2). The court must make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual’s treatment needs; and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which the individual may inflict upon himself or others. In re J.K., at ¶ 15. The court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative. Id. This Court will not set aside the trial court’s findings unless they are clearly erroneous. Id.

[¶ 11] Dr. Castillo testified that alternative treatment other than involuntary confinement and forced medication was not appropriate at the time of the hearing, because D.Z. did not believe he was mentally ill and he, therefore, refused to take prescribed medications. Additionally, D.Z. refused to take medications at the hospital because of his delusional beliefs that hospital personnel were attempting to poison and Mil him.

[¶ 12] The record includes Dr. Castillo’s June 13, 2002 report stating that an alternative program of case management, psychiatric monitoring, and follow up had been considered and could possibly be used upon D.Z.’s discharge from the hospital. In the report, Dr. Castillo concluded the alternative treatment program was not currently appropriate, because D.Z.’s condition was not stable and D.Z.’s delusions prevented him from consistently taking the necessary medication. The trial court found that an alternate program would not presently be adequate to meet D.Z.’s needs for treatment or to prevent harm to himself or others, and we conclude the trial court’s finding is not clearly erroneous.

[¶ 13] On July 17, 2002 Dr. Castillo petitioned the trial court for an order for less restrictive treatment. In his petition, Dr. Castillo stated D.Z. had been cooperative with in-patient treatment and had responded positively to Haldol. The trial court entered an order on July 23, 2002, accepting D.Z.’s waiver of hearing and ordering that D.Z. be placed on a less restrictive treatment program, whereby he remain on prescribed medication but receive ease management services on an outpatient basis through West Central Human Service Center, until September 28, 2002. At oral argument, D.Z. explained that he had improved substantially since the court’s July 1, 2002 orders and, since his release from the hospital, he has been doing well on the current treatment regimen.

V

' [11] [¶ 14]' D.Z. asserts the trial court erred in ordering him to be treated with medications. Dr. Castillo and Dr. William Pryatel both requested that they be authorized to administer a number of different medications for D.Z., including Lithium, Geo done, Ser o quel, Prolixin, Haldol, and Olanzapine. They did not seek to use all of these medications simultaneously, but to administer them only as necessary to effectively treat D.Z.’s condition. According to Dr. Castillo, the use of any one of these particular drugs would depend upon which drugs provided the most benefit, the least side affects, and were best tolerated by D.Z.

15] For the trial court to authorize treatment with prescribed medication, the treating psychiatrist and another licensed physician must certify, and the court must find by clear and convincing evidence, the following factors under N.D.C.C. § 25-03.1-18.1:

1. a. Upon notice and hearing, a treating psychiatrist may request authorization from the court to treat a person under a mental health treatment order with prescribed medication. The request may be considered by the court in an involuntary treatment hearing. As a part of the request, the treating psychiatrist and another licensed physician or psychiatrist not involved in the current diagnosis or treatment of the patient shall certify:
(1) That the proposed prescribed medication is clinically appropriate and necessary to effectively treat the patient and there is a reasonable expectation that if the person is not treated as proposed there exists a serious risk of harm to that person, other persons, or property;
(2) That the patient was offered that treatment and refused it or that the patient lacks the capacity to make or communicate a responsible decision about that treatment;
(3) That prescribed medication is the • least restrictive form of intervention necessary to meet the treatment needs of the patient; and
(4) That the benefits of the treatment outweigh the known risks to the patient.

See In Interest of J.S., 528 N.W.2d 367, 368 (N.D.1995).

[¶ 16] There is record evidence to support the existence of each of these factors. Dr. Castillo testified the medications requested are clinically appropriate to treat D.Z.’s condition and without them D.Z. poses a risk of harm to himself and others, D.Z. refused treatment with these medications, these medications are the least restrictive form of intervention necessary to treat D.Z., and the benefits of this treatment outweigh the risks to D.Z. The trial court found the statutory factors were proven by clear and convincing evidence, and we conclude the trial court’s finding is not clearly erroneous.

VI

[¶ 17] In accordance with this opinion, we affirm the trial court’s order finding D.Z. is a mentally ill person requiring commitment at the state hospital for a period not to exceed 90 days, and we also affirm the court’s order authorizing prescribed medication for treatment of D.Z.’s condition.

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


author: NEUMANN, Justice.

text:
    2002 ND 135
    Marlys GEINERT, Plaintiff, Appellee, and Cross-Appellant, v. Michael GEINERT, Defendant, Appellant, and Cross-Appellee.
    No. 20020040.
    Supreme Court of North Dakota.
    Aug. 15, 2002.

      Daniel H. Oster, Neubauer & Oster, for plaintiff, appellee, and cross-appellant.
    Arnold V. Fleck, Fleck Law Office, for defendant, appellant, and cross-appellee.
   NEUMANN, Justice.

[¶ 1] Michael Geinert appealed from judgments amending an original divorce judgment, and Marlys Geinert cross-appealed. We conclude the district court abused its discretion in making the modification of child support effective beginning with the July 2001 payment, rather than from the date of Michael’s motion two years earlier, and the court did not abuse its discretion when it declined to impute income to Michael. We reverse and remand for further proceedings in accordance with this opinion.

I

[¶ 2] Michael and Marlys Geinert were divorced by a judgment dated August 16, 1994. The original judgment awarded custody of the parties’ five minor children to Marlys and ordered Michael to pay child support of $900 per month until each child reached nineteen years of age or graduated from the 12th grade, whichever occurred first. Michael was also ordered to pay $100 per month toward child support arrearages. The judgment stated the court retained continuing jurisdiction over child support and the amount of child support could be modified in the future, and notified the parties of their right to request a review of child support under N.D.C.C. § 14-09-08.9.

[¶ 3] On May 30, 1999, Michael moved to amend the judgment, seeking a reduction of child support and modification of his duty to provide health insurance and medical expenses for the children. Marlys filed a cross-motion, seeking an increase in spousal support and modification of the health insurance provisions for the children.

[¶ 4] Due to a series of procedural and discovery disputes, the election defeat of the assigned judge, and withdrawal by Marlys’s original attorney, the motion ultimately remained pending for more than two years. An evidentiary hearing was held on January 31-February 1, 2000. On June 15, 2001, the district court issued its memorandum opinion, and on July 18, 2001, the court entered its findings of fact, conclusions of law, and order for judgment. The first amended judgment was entered on July 20, 2001. Michael filed a motion to alter or amend the amended judgment, and a second amended judgment was entered on December 26, 2001.

[¶ 5] The court found that Michael’s net monthly income was $1,517.89, resulting in a child support obligation for the two remaining minor children of $441 per month. The court ordered that Michael pay support of $441 per month beginning with the July 2001 payment. Child support would be reduced to $330 a month when the older of the two minor children graduated from high school or turned 19, and would terminate altogether when the youngest child graduated or turned 19. Michael appealed, and Marlys cross-appealed.

II

[¶ 6] Michael argues the trial court erred in setting July 1, 2001, as the effective date of the reduction in child support, rather than the date Michael filed his motion. Michael argues he was required for more than two years to pay child support in an amount in excess of the presumptively correct amount under the child support guidelines.

[¶ 7] Section 14-09-09.7(3), N.D.C.C., creates a rebuttable presumption that the amount of child support as determined by application of the child support guidelines is the correct amount of child support. Dufner v. Dufner, 2002 ND 47, ¶ 22, 640 N.W.2d 694. This presumption that the guideline amount is correct, and must be ordered unless the court specifically finds the presumptive amount is not the correct amount of child support, applies to motions to modify the original child support order. Olson v. Olson, 1998 ND 190, ¶ 9, 585 N.W.2d 134; Zarrett v. Zarrett, 1998 ND 49, ¶ 7, 574 N.W.2d 855; Schleicher v. Schleicher, 551 N.W.2d 766, 769 (N.D.1996). Michael argues that, based upon this presumption, any modification of child support should be given effect from the time of the filing of the motion.

[¶ 8] We summarized our prior pronouncements on the effective date of child support modification in Schleicher, 551 N.W.2d at 770 (citations omitted):

The effective date for a modification of child support depends upon the facts of each case. The trial court may make its order modifying child support effective on the date the motion was filed, any date the motion was pending, the date the court issued its order, or some later date. Once a petition to modify support has been filed, interested parties are on notice that the terms of the support obligation may be changed by the court.
The reason for allowing a modification of child support to take effect as of the time of filing was explained in Gabriel [v. Gabriel], 519 N.W.2d [293,] 295 [(N.D.1994)] (quoting Olson v. Garbe, 483 N.W.2d 775, 776 (N.D.1992)):
‘If the order increasing or decreasing the obligation were required to be prospective from the date of its entry, then the party owing the support obligation or the party to whom such obligation is due could by dilatory tactics postpone his obligation to pay increased or decreased support almost indefinitely....”’

In Schleicher, we expressly noted that the parties had not argued the presumptive effect of the guidelines required that the modification be applied as of the date of the motion:

We do not address the issue, not raised by the parties, that because the guidelines provide a presumptively correct amount of child support, that amount should presumptively apply back to the date the motion was filed.

Schleicher, at 770 n. 4. In subsequent cases in which the presumption issue again was not raised, we continued to employ the standards enunciated in Schleicher. See Olson, 1998 ND 190, ¶ 15, 585 N.W.2d 134; Edwards v. Edwards, 1997 ND 94, ¶ 16; 563 N.W.2d 394; Steffes v. Steffes, 1997 ND 49, ¶ 14, 560 N.W.2d 888.

[¶ 9] We have previously hinted that the preferred effective date for an order modifying child support is the date the motion was filed. In Steffes, 1997 ND 49, ¶ 14, 560 N.W.2d 888 (emphasis added), we concluded “the effective date for a modification of child support generally is the date the motion was filed, or some later date.” Similarly, in Edwards, 1997 ND 94, ¶ 17, 563 N.W.2d 394, we concluded the trial court had abused its discretion when it set an effective date for a modification of child support later than the date of the motion because the parent had a clear duty to support the child from that date under the guidelines:

The trial court delayed the effective date of Edwards’ support payments to July 1, 1996, explaining that May 1,1996 would be an appropriate date, but the court would provide Edwards a two-month credit for Ciara’s 1996 summer visits. The court’s reasoning was clearly a misapplication of the guidelines. The original divorce decree contemplated each party would have physical custody of Ciara for an equal amount of time and, therefore, neither parent was ordered to pay child support. However, the parties agree Ciara began living most of the time with Blore as of September 1995, when Ciara started school. Under the guidelines, Blore then became the custodial parent. N.D.A.C. § 75-02-04.1-01(4). The trial court must apply its discretion according to the facts. Under these circumstances, and without any proper reason for a contrary effective date, we conclude it was an abuse of discretion for the trial court to delay the beginning of Edwards’ support payments later than February 1996, the month in which the motion to begin support payments was filed, because there was a clear duty to support, but no support payments were being made.

The purpose of continuing jurisdiction and periodic reviews of child support orders is “to insure support is at all times consistent with the current guidelines amount.” Lauer v. Lauer, 2000 ND 82, ¶ 4, 609 N.W.2d 450; see also Zarrett, 1998 ND 49, ¶ 8, 574 N.W.2d 855.

[¶ 10] We conclude that, in order to effectuate the public policy underlying the guidelines, a modification of child support generally should be made effective from the date of the motion to modify, absent good reason to set some other date. The trial court retains discretion to set some later effective date, but its reasons for doing so should be apparent or explained.

[¶ 11] Under the facts in this case, it was an abuse of discretion to delay, without explanation, the effective date of the modification until July 2001, more than two years after Michael moved to modify his support obligation. Michael was required to pay substantially more than the presumptively correct amount under the guidelines for those two years. He was required to continue paying an amount which had been based upon five minor children, when at the time the amended judgment was finally entered there were only two minor children for whom he owed support.

[¶ 12] Under these circumstances, and in view of the presumption we adopt today that the date of the motion is generally the appropriate effective date for modification of child support, we conclude the trial court abused its discretion in setting July 2001 as the effective date for the modification of child support. We reverse the order setting July 2001 as the effective date, and remand with directions that the trial court’s order modifying the amount of child support be made effective beginning with the June 1999 payment.

Ill

[¶ 13] On her cross-appeal Marlys argues the district court .erred in calculating Michael’s child support obligation, contending the court should have imputed income to Michael under N.D. Admin. Code § 75-02-04.1-07(9).

A

[¶ 14] Initially there is some dispute over which version of the child support guidelines should be applied in this case. Michael served his motion to modify child support on May 30,1999. On August 1, 1999, amendments to the child support guidelines, including N.D. Admin. Code § 75-02-04.1-07(9), became effective. When the district court finally resolved the motion in 2001, it apparently applied the 1999 amended version of the guidelines.

[¶ 15] In Shaver v. Kopp, 545 N.W.2d 170, 176-77 (N.D.1996), this Court indicated that when the child support guidelines were amended after the hearing on the motion but before the court rendered its decision, the amended guidelines should be applied. We similarly conclude that it was not error to apply the 1999 amended version of the guidelines in this case.

B

[¶ 16] Marlys argues the trial court erred in failing to impute income to Michael under N.D. Admin. Code § 75-02-04.1-07(9). That regulation provides:

Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to. one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

[¶ 17] Section 75-02-04.1-07(9) was adopted in 1999 to allow imputation of income without a showing of unemployment or underemployment if the child support obligor has voluntarily changed employment resulting in a reduction in income. Minar v. Minar, 2001 ND 74, ¶ 23-24, 625 N.W.2d 518. Marlys argues that, because Michael voluntarily changed jobs in 1997 resulting in a reduction in income, the court was required to impute income to Michael under N.D. Admin. Code § 75-02-04.1-07(9) and base his child support obligation upon the greatest twelve months’ earnings beginning on or after thirty-six months prior to commencement of the modification proceedings.

[¶ 18] We have previously determined, however, that the decision whether to impute income under N.D. Admin. Code § 75-02-04.1-07(9) lies within the discretion of the trial court:

The current guidelines do not expressly incorporate a “reasonableness” rule which would preclude imputation of income when an obligor’s voluntary reduction of income was “reasonable.” We do not mean to imply, however, that the obligor’s reasons for changing employment, and reasonableness of her actions, are wholly irrelevant to the decision to impute income under N.D. Admin. Code § 75-02-04.1-07(9). That section provides that the court “may” impute income when an obligor has voluntarily reduced her income. When a court may do something, it is not mandatory but is generally a matter within the court’s discretion. Thus, the court may consider the reasons for the obligor’s change of employment when exercising its discretion in determining whether to impute income under N.D. Admin. Code § 75-02-04.1-07(9).

Logan v. Bush, 2000 ND 203, ¶ 14, 621 N.W.2d 314 (citations omitted); see also Minar, 2001 ND 74, ¶ 24, 625 N.W.2d 518. When a decision lies within the trial court’s discretion, its decision will be reversed on appeal only if the court has abused its discretion. See, e.g., Lukenbill v. Fettig, 2001 ND 47, ¶ 6, 623 N.W.2d 7. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or un-conseionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Knutson v. Knutson, 2002 ND 29, ¶ 7, 639 N.W.2d 495; Kopp v. Kopp, 2001 ND 41, ¶ 7, 622 N.W.2d 726.

[¶ 19] The record in this case demonstrates that in 1997 Michael voluntarily left his job at a restaurant to accept a higher paying job with a better possibility of advancement. Before Michael began the new job, however, the company began working on a merger with another company and the promised position for Michael never materialized. Michael thereafter started his own trucking business, and the trial court found that at the time of the evidentiary hearing in 2000 Michael was earning more than the average for truck drivers in western North Dakota.

[¶ 20] The trial court was free to consider the reasons for and circumstances surrounding Michael’s change in employment and reduction in income, and had discretion to decide whether to impute income under N.D. Admin. Code § 75-02-04.1-07(9). Under the circumstances in this case, we conclude the trial court did not abuse its discretion in declining to impute income to Michael.

IV

[¶ 21] We have considered the remaining issues raised by the parties and they are either unnecessary to our decision or are without merit. We reverse the first and second amended judgments and remand for further proceedings in accordance with this opinion.

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

      . The court also modified the health insurance and medical expense provisions of the judgment, and denied Marlys's motion to increase spousal support and her request for attorney fees. Those decisions have not been challenged on appeal.

      . The trial court calculated Michael's child support obligation for one and two children, respectively. At the time of Michael’s motion, however, there were three minor children to whom Michael owed a duty of support. On remand the court will be required to compute Michael’s child support based upon three children beginning with the June 1999 payment until the obligation to the third-youngest child terminated under the terms of the divorce judgment.

      . If a change in employment results in unemployment or underemployment, the trial court must impute income under N.D. Admin.Code § 75-02-04.1-07(3). See Minar, 2001 ND 74, ¶¶ 12, 23, 625 N.W.2d 518.


text:
    2002 ND 130
    STATE of North Dakota, Plaintiff and Appellee, v. Rodney BELL, Defendant and Appellant.
    No. 20010311.
    Supreme Court of North Dakota.
    Aug. 15, 2002.

      William A. Mackenzie, Jamestown, for defendant and appellant.
    Leo A. Ryan, Assistant State’s Attorney, Jamestown, for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Rodney Bell appeals from a judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance with intent to deliver, a class B felony, in violation of N.D.C.C. §§ 19-03.1-23(1) and 19-03.1-05(5)(t). We affirm.

I

[¶ 2] Rodney Bell and Jodee Kirvida lived in Streeter, North Dakota. After receiving three anonymous tips that narcotics were being distributed from their home, the Stutsman County Narcotics Task Force conducted a search of the garbage outside the home. The task force found evidence of drugs in the garbage search and, subsequently, applied for and executed a search warrant of the home. During the search, the task force seized large amounts of marijuana and drug paraphernalia found in a number of rooms throughout the house, and also seized an address book and a business card they believed contained calculations evidencing drug transactions. Bell eventually admitted he had written the calculations, but did not admit they were calculations of drug transactions. On August 14, 2001, Bell was arrested and charged with the possession of a controlled substance with the intent to deliver in violation of N.D.C.C. §§ 19-03.1-23(1) and 19-03.1-05(5)(t).

[¶ 3] On September 20, 2001, Bell filed a motion in limine requesting an eviden-tiary hearing on the admissibility of the address book and the business card purported to contain evidence of drug transactions, referred to as “owe” documentation. On October 9, 2001, a hearing was held. At the close of the hearing, the trial court concluded the address book and the business card were relevant and not unfairly prejudicial. On October 15 and 16, 2001, a jury trial was held and the jury found Bell guilty. On December 19, 2001, the trial court entered a judgment of conviction based on the jury’s verdict.

[¶ 4] Bell appeals, arguing (1) the trial court abused its discretion by admitting the address book and business card into evidence; (2) the trial court abused its discretion in excluding the testimony of Kirvida regarding the charges to which she had pled guilty; (3) there was not sufficient evidence to sustain the verdict; and (4) a new trial should be granted based on ineffective assistance of counsel.

II

[¶ 5] Bell argues the trial court abused its discretion by admitting the address book and business card into evidence without sufficient foundation. Further, he argues, even if adequate foundation was laid and the address book and business card were relevant, admitting them into evidence unfairly prejudiced him.

[¶ 6] A trial court has broad discretion in evidentiary matters and this Court will not reverse its decision absent an abuse of discretion. State v. Jensen, 2000 ND 28, ¶ 10, 606 N.W.2d 507. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, 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. Randall, 2002 ND 16, ¶ 5, 639 N.W.2d 439.

A. Foundation for Officers’ Testimony

[¶ 7] Bell argues a lack of foundation for admitting the address book and the business card, claiming the foundation re-lifes on the opinions of Officer Troy Kelly and Special Agent Arnie Rummel, and the State failed to qualify these officers as experts. Bell contends that because the officers were not explicitly qualified as experts, their opinions were not rationally based, and the evidence should have been excluded. Bell relies on Rule 701, N.D.R.Ev., which provides:

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.

[¶ 8] The State argues proper foundation was established, and the evidence was properly admitted under Rule 702, N.D.R.Ev., which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

[¶ 9] A touchstone for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court, so the trial court could intelligently rule on it. State v. Freed, 1999 ND 185, ¶ 13, 599 N.W.2d 858. In Freed, we explained under Rule 103(a)(1), N.D.R.Ev., “error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.” Id. A party must object at the time the alleged error occurs, so the trial court may take appropriate action if possible to remedy any prejudice that may have resulted. City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring). Failure to object acts as a waiver of the claim of error. Id.

[¶ 10] In his brief on appeal, Bell contends he objected to the items of evidence for lack of a rational foundation. He supports his contention by arguing the officers were not qualified as experts and their opinions, therefore, were irrational under Rule 701. However, Bell did not object to the officers’ testimony for lack of a rationally based opinion or a lack of expertise. His objection was based on á lack of foundation for the evidence itself, asserting the State could not prove the address book and the business card were actually “owe” sheets. Bell said nothing about the officers’ expertise or qualifications.

[¶ 11] In his written motion in limine, Bell asserted, “allowing the state to introduce, the exhibits as ‘owe’ documentation during the jury trial would be unfairly prejudicial to the defendant unless the state provides satisfactory foundation at a pre-trial hearing.” During the pre-trial hearing on the motion in limine, the State presented testimony of Officer Kelly, without objection. Officer Kelly testified as to his training and experience. He further testified as to his belief, based on his training and experience, that the address book and business card found during the search of Bell’s home were evidence of drug transactions. Bell did not object to Officer Kelly’s testifying nor did he challenge Officer Kelly’s qualifications in providing an opinion on the address book and business card.

[¶ 12] At trial, both Officer Kelly and Special Agent Rummel testified that based on their experience the address book and the business card were evidence of drug transactions. Bell did not object to the officers’ testifying nor did he object to their opinions based on lack of expertise. When the State offered the address book into evidence, the only objection Bell made was: “Your Honor, this item of evidence was subject to a motion earlier, I think I objected to it at that time, same objections as to relevancy as well as unfair prejudice. That’s a matter of record so I’m going to renew that objection and we’ll go on with it.” Then, when the State offered the business card into evidence, Bell’s only objection was: “I have no problem with the front ... but same objection on the back as I did at the motion hearing.” Bell did not provide a meaningful opportunity for the trial court or opposing counsel to cure any alleged foundational deficiencies based upon the extent of the officers’ qualifications or expertise. Bell’s objections to the State’s offer of the address book and business card into evidence were vague and made no reference to the officers’ expertise and qualifications. The objections were insufficient to preserve this issue for appellate review. See Freed, 1999 ND 185, ¶ 13, 599 N.W.2d 858.

B. Unfairly Prejudicial Evidence

[¶ 13] Bell argues even if foundation was properly laid, and even if the evidence was relevant, the address book and business card still should have been excluded on the basis of unfair prejudice.

[¶ 14] Under Rule 403, N.D.R.Ev., “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.... ” The trial court has broad discretion to control the introduction of evidence at trial, and this Court’s review is limited to deciding if that discretion was abused. State v. Zimmerman, 524 N.W.2d 111, 115 (N.D.1994). A trial court’s power to exclude relevant evidence should be exercised sparingly. Id. at 115. As we explained in State v. Randall, 2002 ND 16, ¶ 15, 639 N.W.2d 439:

In determining whether to exclude evidence under Rule 403, courts should “give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.” See [Zimmerman, 524 N.W.2d at 114-15] (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence ¶ 403[03], pp. 403-49, 403-51 (1994)). “Generally, any doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge.” Id. Therefore, the burden is on the objecting party to show that relevant evidence should be excluded under Rule 403. See Kociemba v. G.D. Searle & Co., 683 F.Supp. 1579, 1581 (D.Minn.1988).

[¶ 15] At trial, the officers testified as to the meaning of the calculations on the address book and business card. Bell was given an opportunity to cross-examine the officers regarding their testimony. Bell offered the testimony of Kirvi-da, who explained the address book and business card contained calculations regarding the purchase of the house and other household bills. The jury was enti-tied to give the officers’ testimony and Kirvida’s conflicting testimony the weight the jury deemed appropriate. We conclude Bell has failed to show how the introduction of the address book and business card were unfairly prejudicial. The address book and the business card were probative of Bell’s involvement with drug trafficking and their admission was not unfairly prejudicial to him.

[¶ 16] Based on our review of the record, we conclude adequate foundation was laid for the officers’ testimony, the evidence was relevant, and Bell was not unfairly prejudiced. Therefore, the trial court did not abuse its discretion in admitting the address book and business card into evidence.

Ill

[¶ 17] Bell argues the trial court abused its discretion by excluding a portion of Kirvida’s testimony. At trial, Kir-vida testified she had initially been charged with felony possession of marijuana with the intent to deliver, and with misdemeanor possession of paraphernalia. Bell’s attorney attempted to question Kir-vida about the reduced charges to which she eventually actually pled guilty, but the State objected based on relevancy. The trial court sustained the objection, ruling the evidence irrelevant. Bell contends Kirvida’s testimony was relevant, and the trial court’s exclusion of Kirvida’s testimony prejudiced him, misled the jury as to Kirvida’s actual convictions, and denied him a fair trial.

[¶ 18] This Court will not overturn a trial court’s admission or exclusion of evidence, unless the trial court abused its discretion. State v. Gagnon, 1999 ND 13, ¶ 9, 589 N.W.2d 560. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, flits decision is not the product of a rational mental process leading to a reasoned determination, or if it misapplies or misinterprets the law. Randall, 2002 ND 16, ¶ 5, 639 N.W.2d 439.

[¶ 19] We have stated that either the prosecution or the defense may elicit evidence of a co-defendant’s guilty plea or conviction for the jury to consider in assessing the co-defendant’s credibility as a witness, or to show acknowledgment or participation in the offense. State v. Padgett, 410 N.W.2d 143, 146 (N.D.1987). The problem with admitting evidence of a co-defendant’s guilty plea or conviction is the possibility that the evidence may be used by the jury as proof of the defendant’s guilt, rather than as evidence of the co-defendant’s credibility. Id. In the present case, the danger of Kirvida’s testimony being used for improper purposes arguably was limited, because she was called by Bell and was testifying on Bell’s behalf.

[¶ 20] The State objected to the introduction of Kirvida’s -plea agreement, claiming the information was irrelevant. Admissibility of a co-defendant’s plea turns on the purpose for which it is offered. United States v. Halbert, 640 F.2d 1000, 1004 (9th Cir.1981). When the purpose is to further the jury’s difficult task of evaluating a co-defendant’s credibility, the plea evidence is relevant and admissible without reference to the identity of the -offering party. Id. , The court explained how evidence of a co-defendant’s plea agreement can be beneficial to the defendant:

It is manifestly apparent that evidence of the plea is relevant to credibility regardless . whether government or defendant initiates inquiry about it. For example, the defense may produce a co-defendant as a witness in support of the defendant’s case. Then the plea of guilty may be drawn from the witness as an introduction to the testimony exculpating defendant. Here the evidence of credibility is designed to enhance the witness’ helpful testimony, as the witness has taken responsibility for an offense which the defendant denies committing. ... There are many ways in which the plea may be tactically used by the defense and skilled counsel will take advantage of any or all of them as judgment determines.

Id. at 1004-05.

[¶ 21] The State made no argument that Kirvida’s testimony as to the crimes to which she had actually pled guilty was prejudicial, only that it was not relevant. However, the testimony clearly was relevant to the question of Kirvida’s credibility, and the trial court abused its discretion in excluding it. When a trial court abuses its discretion by excluding evidence, we must decide if the error was so prejudicial that a defendant’s substantial rights were affected and a different decision would have resulted, absent the error. Randall, 2002 ND 16, ¶ 20, 639 N.W.2d 439. In deciding whether an error has affected the defendant’s substantial rights, we consider the entire record and the probable effect of the error in light of the evidence presented. Id.

[¶ 22] Although the trial court erred in excluding Kirvida’s testimony of the charges to which she had actually pled guilty, we conclude the error was harmless, given the record in this case. Kirvida testified that all of the marijuana found in the house belonged to her. She indicated Bell had no knowledge of the marijuana she kept in the house. She also testified that the address book and the business card contained calculations for the purchase of the house and other bills for the house. While Kirvida’s testimony supported Bell’s defense in this case, the State presented ample evidence that supports the jury’s verdict finding Bell guilty. The more serious charges originally lodged against Kirvida were at least equally as consistent with her testimony at trial as the reduced charges to which she ultimately entered guilty pleas. We are not convinced that allowing testimony of the plea agreement into evidence would have enhanced Kirvida’s credibility enough to result in a different jury verdict.

[¶ 23] While we believe the trial court erred by excluding Kirvida’s testimony as to the charges to which she had pled guilty, we fail to see how Bell was significantly prejudiced or how his substantial rights were affected by the exclusion. In light of the evidence presented in the case, the erroneous exclusion of evidence was harmless error.

IV

[¶ 24] Bell argues the evidence presented at trial was insufficient to support the guilty verdict. Bell maintains that other than the address book and the business card, the only evidence the State offered was that Bell lived at the residence, he admitted to smoking marijuana, and his handwriting was on the address book and business card. Bell contends the jury considered the officers’ testimony but failed to consider Kirvida’s testimony that the marijuana found in the house belonged to her, not Bell, as well as her testimony that the calculations in the address book and business card involved matters such as home purchases and improvements, not drug transactions.

[¶ 25] This Court’s review of the sufficiency of the evidence in a jury verdict is very limited. State v. Freed, 1999 ND 185, ¶4, 599 N.W.2d 858. In cases involving a defendant’s challenge of the sufficiency of the evidence to support a criminal conviction, our standard of review is well established. We will only reverse a criminal conviction if, “after reviewing the evidence and ah reasonable evidentiary inferences in the light most favorable to the verdict, no rational fact finder could have found the defendant guilty beyond a reasonable doubt.” State v. Ebach, 1999 ND 5, ¶ 24, 589 N.W.2d 566. To successfully challenge the sufficiency of the evidence to sustain a conviction entered on a jury verdict, a defendant must show the evidence, viewed in the light most favorable to the verdict, does not reveal a reasonable inference of guilt. Freed, at ¶ 4. The tasks of weighing the evidence and judging the credibihty of the witnesses belong to the jury. Ebach, at ¶ 24. This Court does not resolve conflicts in the evidence, determine the credibihty of witnesses, or re-weigh the evidence. State v. Trosen, 547 N.W.2d 735, 737 (N.D.1996). On appeal, we assume the jury believed the evidence supporting the verdict and disbeheved any contrary evidence. Freed, at ¶ 4.

[¶ 26] In this case, the evidence presented was sufficient to support the conviction. Law enforcement received anonymous tips alleging drug trafficking activities at Bell’s residence. Evidence of drugs was found during a search of garbage outside the home. A subsequent search of the home produced large amounts of marijuana packaged for resale and drug paraphernalia. The officers found an address book and a business card containing evidence of drug transactions. The address book and business card were found in a common room in the house and were written in Bell’s handwriting. Bell and Kirvida’s testimony asserting that the calculations in the address book and business card involved home purchase and improvements was inconsistent at times and could easily have been found by the jury to be incredible.

[¶ 27] Viewed in a light most favorable to the verdict, we conclude there was substantial evidence in the record to support Bell’s conviction of possession of a controlled substance with intent to deliver.

V

[¶ 28] Bell argues he was denied effective assistance of counsel because his attorney failed to request an affirmative defense jury instruction as allowed in State v. Michlitsch, 438 N.W.2d 175 (N.D.1989). According to Bell, if the jury had received the instruction, there is a reasonable probability that he would not have been found guilty on the possession with the intent to deliver charge. The performance of his trial counsel was therefore deficient and prejudiced his case.

[¶ 29] In a claim of ineffective assistance of counsel, the United States Supreme Court has set forth a two-pronged analysis requiring a defendant to establish two elements: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In determining whether counsel’s performance was deficient, we will consider all circumstances and decide whether there were errors so serious that defendant was not accorded that “counsel” guaranteed by the Sixth Amendment. Mathre v. State, 2000 ND 201, ¶ 3, 619 N.W.2d 627. Generally, a claim of ineffective assistance of counsel should be presented in a post-conviction relief proceeding, rather than on direct appeal, so the parties can fully develop a record. State v. Palmer, 2002 ND 5, ¶ 12, 638 N.W.2d 18. However, when ineffective assistance of counsel is argued on direct appeal, we will review the record to decide if the assistance of counsel was plainly defective. Id.

[¶ 30] Bell argues he was denied effective assistance of counsel because his attorney failed to request an affirmative defense jury instruction as allowed in State v. Michlitsch, 488 N.W.2d 175 (N.D.1989) (holding the jury may be instructed that if the accused affirmatively established that he possessed the controlled substance either unwittingly or without knowledge, the jury may find him not guilty of the charge of possession of a controlled substance with intent to deliver). Bell was charged with possession of a controlled substance with intent to deliver in violation of N.D.C.C. § 19-03.1-23(1). In 1989, the Legislative Assembly amended N.D.C.C. § 19-03.1-23(1) to include the culpability requirement of “willfully” as an element of the offense. 1989 N.D. Sess. Laws ch. 267, § 1. Under N.D.C.C. § 12.1-02-02(e), a person engages in conduct willfully “if he engages in the conduct intentionally, knowingly, or recklessly.” Before the legislative amendment, this Court held possession with intent to deliver was a strict liability offense, and a defendant could be entitled to an affirmative defense instruction, if the evidence warranted and the defendant requested the instruction. Mi-chlitsch, 438 N.W.2d at 177. However, N.D.C.C. § 19-03.1-23(1), as amended in 1989, now provides: “it is unlawful for any person to willfully, as defined in section 12.1-02-02, manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.” (Emphasis added.) The offense in Bell’s case is no longer a strict liability offense, therefore, Mi-chlitsch no longer applies to crimes charged under N.D.C.C. § 19-03.1-23(1).

[¶ 31] The trial court properly instructed the jury as to the essential elements of the offense of possession of a controlled substance with intent to deliver. Because the Michlitsch affirmative defense instruction no longer applies to this offense, it could not have been ineffective assistance of counsel for his attorney not to have requested the instruction. Bell has failed to establish the first element, deficient performance, required to show ineffective assistance of counsel.

VI

[¶ 32] The judgment of conviction is affirmed.

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