text:
    2005 ND 84
    Keith CUSEY, Petitioner and Appellee, v. Trayce NAGEL, Respondent and Appellant.
    No. 20040241.
    Supreme Court of North Dakota.
    May 3, 2005.

      Keith Cusey, petitioner and appellee; no appearance.
    Chad R. McCabe, Vinje Law Firm, Bismarck, ND, for respondent and appellant.
   MARING, Justice.

[¶ 1] Trayce Nagel appealed from a disorderly conduct restraining order directing that she have no contact with Keith Cusey for a two-year period. Because we conclude the trial court abused its discretion in finding reasonable grounds existed for the disorderly conduct restraining order, we reverse.

I

[¶ 2] Cusey dated Nagel from August 2003 until March 2004, when Cusey began dating another woman. On April 22, 2004, Cusey petitioned for a disorderly conduct restraining order. In the sworn affidavit accompanying the petition, Cusey said:

March ■ 2, 2004 I started dating Kyle Stoppler, and on March 5, 2004 Trayce Nagel showed up at my place of employment yelling and screaming at me and saying how she hoped the sex was good and she was going to go into Kyle’s house and talk to her and tell her things about me. Trayce also went out to my house while I was not there. She has done this many times. Trayce has also called Kyle’s house leaving messages on her answering machine[], and she continues to call my place of employment leaving messages for me to call her. April 3, 2004 Trayce drove past Kyle’s house 8 to 10 times that day very slow, staring at the house when I was not their [sic], Trayce also caltó my best friend Kevin Barr on a constant basis telling him lies about me and Kyle, and tells him she loves me and wants me back. Thursday, April 8, 2004, Kyle and I went over to Braddock to shoot pool, as this is pool night. We walked in the door only to find Trayce their [sic] with Laura Lee. She sat their [sic] and stared at us the whole night.' Some of the dates she called him are March 5, 2004, April 6, 2004, and April 9, 2004. On April 9, 2004, Trayce called Kevin and told him that Kyle wanted to beat her up at pool night. This is not true. Kyle does not even know Trayce, and had no intentions of beating Trayce up. This is her sick, twisted way of thinking. She is still upset, because I broke up with her. I tried breaking up with Trayce at [] least-4 times, and she would not take the hint. Trayce is also friends with Laura Lee from Hazelton. She comes to Ha-zelton on a weekly basis to try and find out information on me and Kyle. I believe Trayce to be a vengeful[ ] person, and believe she is. capable of doing worse things, and I would like this to be stopped.

The trial court granted an ex parte temporary disorderly conduct restraining order pending a hearing on Cusey’s petition.

[¶ 3] In response to the petition, Nagel moved to dismiss and submitted two affidavits in which she denied some of Cusey’s allegations and claimed Cusey had filed the petition in retaliation for her filing a small claims court action against him on March 12, 2004, seeking to recover money she claimed he owed her. Nagel acknowledged going to the farm where Cusey worked, but said although “I was upset with tears, there was no yelling and screaming.” Nagel claimed that after leaving the farm, she once called Cusey at work and had a brief discussion with him, but denied calling after that and leaving messages. Nagel claimed Cusey called her on the morning of the small claims court hearing and offered to drop the petition for a disorderly conduct restraining order if she dropped the small claims court action. Nagel also claimed Cusey asked her to not attend the small claims court hearing. Nagel refused. Cusey did not appear, and Nagel was awarded $673.38 in her small claims court action against Cu-sey.

[¶ 4] During the brief hearing on the petition, the trial court sustained Nagel’s objection to Cusey’s testimony about incidents not contained in his affidavit and struck hearsay statements from the affidavit. Nagel testified that she went to the farm where Cusey worked to ask him about his new girlfriend and to tell him she wanted him to pay her the money he owed her. Nagel testified this conversation did not occur in the presence of others. Nagel also testified about Cusey’s phone conversation with her on the morning of the small claims court hearing. Nagel’s attorney then cross-examined Cusey regarding his allegations. At the conclusion of the hearing, the trial court granted the petition:

Based on the evidence presented, I believe that it’s been established that the respondent has committed disorderly conduct, specifically yelling and screaming at the petitioner at his place of employment, and continuing to call his place of employment and leave messages. I believe that [this] conduet[ ][is] adversely affecting the privacy of the petitioner; therefore, the Court will issue a disorderly conduct restraining order that will be in effect until June 30th, 2006.

Nagel appealed.

II

[¶ 5] Nagel argues the trial court erred in granting the disorderly conduct restraining order.

[¶ 6] A trial court may grant a disorderly conduct restraining order if the court finds “there are reasonable grounds to believe that the respondent has engaged in disorderly conduct.” N.D.C.C. § 12.1-31.2-01(5)(d). See also Skadberg v. Skadberg, 2002 ND 97, ¶ 5, 644 N.W.2d 873. Disorderly conduct is defined in N.D.C.C. § 12.1-31.2-01(1) as “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Disorderly conduct does not include constitutionally protected activity.” The term “reasonable grounds” is synonymous with “probable cause.” Tibor v. Lund, 1999 ND 176, ¶ 7, 599 N.W.2d 301. Reasonable grounds exist “when facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting the offense of disorderly conduct have been committed.” Svedberg v. Stamness, 525 N.W.2d 678, 682 (N.D.1994).

[¶ 7] A person who petitions for a disorderly conduct restraining order must allege specific facts or threats. Wishnatsky v. Huey, 1997 ND 35, ¶ 14, 560 N.W.2d 878. It is insufficient to show the person’s actions are unwanted; rather, the petitioner must show specific unwanted acts that are intended to affect the safety, security, or privacy of another person. Tibor, 1999 ND 176, ¶9, 599 N.W.2d 301. Subjective fear is insufficient to support a disorderly ■ conduct restraining order. Williams v. Spilovoy, 536 N.W.2d 383, 384-85 (N.D.1995). A trial court has discretion to grant a disorderly conduct restraining order, and we will not reverse that decision unless the court clearly abused its discretion. Baker v. Mayer, 2004 ND 105, ¶ 7, 680 N.W.2d 261.

A

[¶ 8] Nagel contends the trial court abused its discretion as a matter of law in granting the disorderly conduct restraining order because it is undisputed that Cusey contacted Nagel by telephone after obtaining the ex parte temporary restraining order. Nagel argues the court should have denied the petition in the exercise of its supervisory powers “to protect the integrity of the judicial process,” because Cusey’s conduct amounts to an “abuse of process.”

[¶ 9] The temporary restraining order specified that Nagel not contact Cusey. It did not forbid Cusey from contacting Na-gel. Nagel’s attempt to have us view a temporary disorderly conduct restraining order as imposing reciprocal prohibitions against the petitioner raises serious due process concerns. Because of “the significant restraint placed upon the respondent’s liberty and the stigma resulting from a disorderly conduct restraining order,” a person who would be subject to the order’s restrictions has certain procedural due process protections. Gullickson v. Kline, 2004 ND 76, ¶ 8, 678 N.W.2d 138. Those due process protections would be nonexistent for the petitioner if we accepted Nagel’s argument. While a petitioner’s contact with a respondent who is subject to the restrictions imposed by a temporary restraining order might certainly be a factor for the court to consider in evaluating the merits of the petition during the hearing, Nagel’s argument that the petitioner’s contact with the respondent should automatically bar the petitioner from any relief is without merit.

B

[¶ 10] The dispositive issue in this case is whether the trial court abused its discretion in finding reasonable grounds to issue the disorderly. conduct restraining order against Nagel.

[¶ 11] Because of the stigma and grave consequences to the respondent associated with a disorderly conduct restraining order, we have repeatedly stressed that a person who petitions for an order must allege specific facts or threats. See, e.g., Baker, 2004 ND 105, ¶ 16, 680 N.W.2d 261; Tibor, 1999 ND 176, ¶ 7, 599 N.W.2d 301; Williams, 536 N.W.2d at 385. “Vague generalities do not suffice,” and “[c]onclusory testimony that ‘he harassed me,’ ‘he abused me,’ or ‘he threatened me’ does little to aid the trial court in determining whether the alleged perpetrator’s actions rise to the level of disorderly conduct under the statute.” Williams, 536 N.W.2d at 385. Here, the trial court found Nagel had “committed disorderly conduct, specifically yelling and screaming at the petitioner at his place of employment, and continuing to call his place of employment and leave messages.” The only evidence in the record fi> support this finding is Cusey’s statement in the affidavit that “Nagel showed up at my place of employment yelling and screaming at me ... and she continues to call my place of employment leaving messages for me to call her.” Cusey presented no evidence through his affidavit or testimony at the hearing establishing what Nagel said to him when she was “yelling and screaming,” or the specific content and frequency of Nagel’s phone messages “for [him] to call her.” We have said “subjective fear” is not enough, and Cusey did not even allege any fear of Nagel or her actions. See Baker, at ¶ 17.

[¶ 12] To the extent the trial court may have relied on other allegations contained in Cusey’s affidavit, we believe those allegations are equally insufficient to support the petition for the disorderly conduct restraining order. Cusey’s allegation that Nagel “went out to my house while I was not there ... many times” is ambiguous at best. Cusey’s allegation that Nagel “stared” at Cusey and his girlfriend at a bar “the whole night” is nothing more than an incident in which the “parties were, by happenstance, in the same location when [Nagel] conducted [herself] in a manner objectionable to [Cusey].” Wishnatsky, 1997 ND 35, ¶ 9, 560 N.W.2d 878. Although Cusey’s affidavit alleged Nagel also engaged in conduct directed at Stoppler and Barr, N.D.C.C. § 12.1-31.2-01 “does not authorize one person to seek a restraining order based upon disorderly conduct directed at some other person.” Gullickson, 2004 ND 76, ¶ 13, 678 N.W.2d 138. Nor do the vague allegations in the affidavit establish a specific “ ‘pattern of intimidation’ ” required to provide sufficient grounds for the order. Wishnatsky, at ¶ 9 (quoting Cave v. Wetzel, 545 N.W.2d 149, 150 (N.D.1996)).

[¶ 13] “It is not enough under the statute that the petitioner for a restraining order wants the other person out of the petitioner’s life.” Williams, 536 N.W.2d at 385. Cusey’s vague allegations in this case are insufficient as a matter of law to support the order. We conclude a person of reasonable caution would not believe Nagel’s actions constituted the offense of disorderly conduct, or that she intended her actions to affect Cusey’s safety, security, or privacy. The trial court abused its discretion in issuing a disorderly conduct restraining order against Nagel.

C

[¶ 14] As is often the case with petitioners for disorderly conduct restraining orders, Cusey was not represented by an attorney in the trial court and made no appearance before this Court on appeal. The entire transcript of the trial court hearing is only 16 pages long. At the beginning of the hearing, and before Cu-sey was sworn by the court recorder to testify, the court asked Cusey whether everything in his affidavit was true and whether there was “anything you want to add to that at this time?” When Cusey began to talk about incidents that were not contained in the affidavit, Nagel’s attorney objected to Cusey “bringing in new information” and requested that the court “strike all those statements that was [sic] just stated on the record and go strictly by this affidavit and only the portions that are not hearsay.” The court granted the motion and allowed Nagel and her mother to testify. After their testimony was received, Cusey was sworn by the court recorder, and the court asked him to “not make any new allegations, but if you have any response to anything that the respondent said, I’ll give you that opportunity at this time.” Cusey testified, Nagel’s attorney cross-examined Cusey, and the trial court granted the order.

[¶ 15] At Nagel’s request, the trial court permitted Cusey to present his case only by use of his affidavit. We have held that a trial court conducts a “full hearing” on a disorderly conduct restraining order petition by accepting affidavits and allowing cross-examination, at least when the parties raise no objection to the form of the hearing. Skadberg, 2002 ND 97, ¶ 14, 644 N.W.2d 873. Cusey did not object to the form of the hearing. Nevertheless, we believe the better practice is to allow the petitioner to present evidence through his own or other persons’ testimony, rather than through the affidavit accompanying the petition. The “primary purpose of an evidentiary hearing is to allow the parties to present evidence through testimony and allow the factfinder to hear and view the witnesses, assess their credibility, and thereby resolve factual disputes.” Gullickson, 2004 ND 76, ¶ 17, 678 N.W.2d 138. This purpose is undermined when one of the parties to the proceeding is limited to presenting evidence in his case in chief only by affidavit. Aso the affidavits often contain hearsay, which must be disregarded. While a petitioner cannot through testimony raise new allegations without notice to the respondent, id. at ¶ 12, the allegations in the petition should be established through sworn testimony of the petitioner and other witnesses at the time of the hearing, and the respondent and other witnesses should have an opportunity to respond to the petitioner’s allegations with admissible evidence. The petition and affidavit itself is hearsay, since it is an out-of-court statement made to prove the truth of the allegations, and is not admissible in evidence under N.D.R.Ev. 801(c). No written response of the respondent is provided for in N.D.C.C. § 12.1-31.2-01(5), and a hearing on the petition should, at a minimum, require the petitioner to prove the allegations by admissible evidence at the hearing, and provide an opportunity for the respondent to appear and contest the issuance of a restraining order by offering admissible evidence in opposition to the petitioner’s claims. Although the disorderly conduct restraining order statute “seek[s] to quickly and effectively combat volatile situations before any tragic escalation,” Skadberg, at ¶ 13, the concern for expeditious proceedings should not override the need to fairly resolve factual disputes.

Ill

[¶ 16] In view of our disposition of this case, it is unnecessary to address the other issues raised. We reverse the two-year disorderly conduct restraining order against Nagel.

[¶ 17] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, J., BRUCE E. BOHLMAN, S.J., concur.

[¶ 18] The Honorable BRUCE E. BOHLMAN, S.J., sitting in place of SANDSTROM, J„ disqualified.

[¶ 19] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2005 ND 86
    STATE of North Dakota, Plaintiff and Appellee, v. Brandon KELLER, Defendant and Appellant.
    No. 20040059.
    Supreme Court of North Dakota.
    May 10, 2005.

      Cynthia Mae Feland, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Wayne D. Goter, Goter Law Office, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Brandon Keller appeals from a criminal judgment entered upon a jury verdict finding him guilty of conspiracy to commit murder, attempted murder, and reckless endangerment. Keller argues the trial court erred in failing to instruct the jury on lesser included offenses, and the evidence was insufficient to support the guilty verdicts for conspiracy to commit murder and for attempted murder. We affirm.

I

[¶ 2] Keller’s convictions stem from events leading up to and involving an August 2003 shootout at a Bismarck trailer home between Bismarck police officers and Keller and an alleged co-conspirator, Michael Sherman. Sherman and Keller were involved with illegal drugs, and both had 9 mm handguns. At about 4:45 p.m. on August 2, 2003, after announcing their presence, Bismarck police officers entered the trailer to execute a warrant and proceeded down the hall to a locked bedroom door at the back of the trailer. Sherman, Keller, and a female juvenile were in the bedroom. A police officer unsuccessfully attempted to open the bedroom door, and shots were fired through the bedroom wall and door by Keller and Sherman. A police officer was shot in the leg with a bullet that was later determined to be from Keller’s 9 mm handgun. The police officers fired shots through the bedroom door and retreated from the trailer. A standoff ensued, extending into the morning hours of August 3, 2003. As a result of negotiations between the police and Sherman and Keller, the female juvenile was allowed to leave the trailer at about 12:15 a.m. on August 3. The police subsequently deployed tear gas into the trailer, and at different times during the standoff, shots were fired from the trailer in the direction of the officers. After the police deployed additional rounds of tear gas into the trailer, they entered the trailer and arrested Keller. The police also discovered that Sherman had been killed during the course of the standoff.

[¶ 3] Keller was charged with (1) conspiracy to commit murder for allegedly agreeing with Sherman between July 1 and July 31, 2003, to engage in conduct that constituted murder and obtaining weapons or ammunition, or acquiring black clothing, ski masks, or face paints as an overt act in furtherance of that conspiracy; (2) attempted murder for allegedly acting with the culpability required for murder and intentionally engaging in conduct on August 2, 2003, that constituted a substantial step toward committing murder by discharging a firearm at a Bismarck police officer; and (3) reckless endangerment for allegedly willfully creating a substantial risk of serious bodily injury or death to another under circumstances manifesting an extreme indifference to the value of human life on August 3, 2003, by willfully shooting at law enforcement officers with a firearm. A jury found Keller guilty on all three charges. The trial court sentenced him to twenty years in prison on each count for the conspiracy and the attempted murder convictions, with those terms to run concurrently, and thereafter to five years in prison for the reckless endangerment conviction.

II

[¶ 4] Keller argues the trial court erred in failing to instruct the jury that criminal facilitation was a lesser included offense of conspiracy to commit murder and of attempted murder, and that reckless endangerment was a lesser included offense of attempted murder.

A

[¶ 5] Keller requested instructions on lesser included offenses on the second to the last day of trial. The court denied Keller’s requested instructions, concluding they were not timely and were not supported by the evidence that had been received at trial.

[¶ 6] Rule 30(b), N.D.R.Crim.P., provides that any party may file a written request for jury instructions “[a]t the close of the evidence or at an earlier time during the trial as the court reasonably directs.” In considering similar language in N.D.R.Civ.P. 51, this Court has said a trial court may set a reasonable deadline for submission of requested instructions and may refuse untimely requests. Jerry Harmon Motors, Inc. v. First Nat. Bank & Trust Co., 472 N.W.2d 748, 754 (N.D.1991). In State v. Houser, 261 N.W.2d 382, 384 (N.D.1977), however, this Court considered an issue about the timeliness of a criminal defendant’s request for instructions on lesser included offenses. This Court said, “While the time specified by the trial court for the submission of instructions will be given strong support, we are not prepared to conclude that instructions may be refused solely because they were tardily submitted.” Id. (citing State v. Barry, 11 N.D. 428, 92 N.W. 809 (1902)).

[¶ 7] Here, we have found no order in this record directing when requested instructions were to be submitted, and the parties have not cited such an order. More important, however, instructions about lesser included offenses may involve consideration of the evidence presented at trial. Because the propriety of instructions on lesser included offenses may require consideration of the evidence presented at trial, we decline to conclude that Keller’s proposed instructions on lesser included offenses may be refused in this case solely because they were submitted during trial. See Houser, 261 N.W.2d at 384. We thus consider Keller’s arguments about jury instructions.

B

1

[¶ 8] Professor LaFave says that no “area of law relating to jury instructions has created more confusion than that governing when a court may or must put before the jury for its decision a lesser-included offense.” 5 Wayne R. LaFave et al., Criminal Procedure § 24.8(d) (2d ed.1984).

[¶ 9] According to Black’s Law Dictionary 1111 (8th ed.2004) (emphasis added), a lesser included offense is a “crime that is composed of some, but not all, of the elements of a more serious crime and that is necessarily committed in carrying out the greater crime.”

[¶ 10] Both the United States Supreme Court and this Court have held that there is no constitutional right to a lesser-included-offense instruction. Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); State v. Larson, 554 N.W.2d 655, 656 (N.D.1996).

[¶ 11] The lesser-included-offense instruction has historically been treated as part of the procedural criminal law as opposed to the substantive criminal law.

[¶ 12] Professor LaFave says there are three approaches to determining what constitutes a lesser included offense: (1) the “statutory elements” approach; (2) the “evidentiary” approach; and (3) the “cognate pleadings” approach (similar to the evidentiary). LaFave et al., supra § 24.8(e). Under the “statutory elements” approach, the elements of the offense must be such that it is impossible to commit the greater offense without committing the lesser. Id. “The statutory-elements approach, which was the original common law position, is used today in the federal courts and in a growing number of states.” Id. Under the “evidentiary” approach, the instruction would be appropriate if the facts of the case would permit an accused to be convicted of a less serious offense even if the elements do not make it impossible to commit the greater without committing the lesser offense. Id. The “cognate pleadings” approach looks to the pleadings rather than to the evidence introduced. Id. The evidentiary and cognate-pleadings approaches have been criticized as being unclear and placing both the prosecutor and defense in an untenable position, because they open the door for so many potential lesser included offenses. Id.

[¶ 13] Lesser included offenses are said to be relevant to determining what offense a defendant can be convicted of, to double jeopardy analysis, and to prohibiting dupli-cative charges, as well as to entitlement to a lesser-included-offense instruction. See, e.g., N.D.R.Crim.P. 31; State v. Belyea, 9 N.D. 353, 354, 83 N.W. 1, 1 (1900).

[¶ 14] As discussed below, the right to a lesser-included-offense instruction requires: first, that the offense be a lesser included offense of the greater; second, that the evidence be such that a jury could rationally find the defendant not guilty of the greater offense and guilty of the lesser; and third, generally, that the instruction be requested.

2

[¶ 15] Historically, North Dakota recognized lesser included offenses under its law of criminal procedure. This recognition was based on its statute, which provided:

Upon an information or indictment for any offense, the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or they may convict him of any offense which is necessarily included in the offense charged.

N.D.R.C.1943, § 29-2223. This provision was found essentially in the' same form from the early days of statehood. Revised Code 1895, § 8244; Revised Code 1899, § 8244; Revised Code 1905, § 10053; Compiled Laws 1913, § 10890. Under the former statutory provisions, North Dakota used an elements-of-the-offense test. Indeed, the “elements of the offense, necessarily included in” analysis hearkens back to Dakota Territory:

The jury may find the defendant guilty of any offense, the commission of which is necessarily included, in that with which he is charged in the indictment, or of an attempt to commit the offense. See Code Crim. Proc. § 402. This court accordingly held, at the January term, 1876, in the case of People v. Odell, ante, • 601, (Mr. Justice Bennett delivering the opinion,) on an indictment for shooting with a shot gun, with intent to kill, that a defendant “may be convicted either of the crime charged,- or of an assault, or assault and battery, with intent to do bodily harm, or for assault and battery, or for a simple assault.”

Territory v. Conrad, 46 N.W. 605, 605 (Dak.Terr.1877) (emphasis added). Evidence had to permit a rational jury to find the defendant not guilty beyond a reasonable doubt of the greater offense and guilty beyond a reasonable doubt of the lesser offense. State v. Woods, 24 N.D. 156, 162-64, 139 N.W. 321, 324-25 (1912). The lesser-included-offense instruction had to be requested. Id.

[¶ 16] The historical basis for the right to a lesser-included-offense instruction was eliminated when it was superseded by the North Dakota Rules of Criminal Procedure on November 1, 1973. N.D.R.Crim.P. 59.

3

[¶ 17] North Dakota’s current lesser-included-offense law has its origin in the North Dakota Rules of Criminal Procedure, which are based on the Federal Rules of Criminal Procedure.

[¶ 18] The right to a lesser-included-offense instruction is not constitutional in magnitude. It is not found in our criminal code. It derives from the United States Supreme Court’s interpretation of Federal Rule of Criminal Procedure 31, which parallels our Rule 31. N.D.R.Crim.P. 31(c) provides:

A defendant may be found guilty of an offense necessarily included in the offense charged. If attempt is an offense, a defendant may be found guilty of an attempt to commit either the offense charged or an offense necessarily included in the offense charged.

(Emphasis added.)

[¶ 19] Some erroneously assume that the right to a lesser-included-offense instruction derives from our criminal code, which became effective on July 1, 1975, and that the definition of “included offense” for the purposes of our criminal code is the relevant definition for the right to a lesser-included-offense instruction. The right to a lesser-included-offense instruction, however, derives from the United States Supreme Court decision in Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), and that case’s definition of a “lesser included offense” is not necessarily the definition of “included offense” from our criminal code.

[¶ 20] In Berra, the United States Supreme Court said, “In a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justified it, would no doubt be entitled to an instruction which would permit a finding of guilt of the lesser offense.” Berra, 351 U.S. at 134, 76 S.Ct. 685 (emphasis added).

[¶ 21] The United States Supreme Court further explained in Sansone v. United States:

The basic principles controlling whether or not a lesser-included offense charge should be given in a particular case have been settled by this Court. Rule 31(c) of the Federal Rules of Criminal Procedure provides, in relevant part, that the “defendant may be found guilty of an offense necessarily included in the offense charged.” Thus, “[i]n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie[s] it ... [is] entitled to an instruction which would permit a finding of guilt of the lesser offense.” Berra v. United States, supra, at 134, 76 S.Ct. at 688. See Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980. But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. Berra v. United States, supra; Sparf v. United States, 156 U.S. 51, 63-64, 15 S.Ct. 273, 277-278, 39 L.Ed. 343. In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. Berra v. United States, supra; Sparf v. United States, supra, 156 U.S. at 63-64, 15 S.Ct. at 277-278.

380 U.S. 343, 349-50, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965) (emphasis added). In its note 6 at the conclusion of the above text, the Court said:

This Court has long recognized that to hold otherwise would only invite the jury to pick between the felony and the misdemeanor so as to determine the punishment to be imposed, a duty Congress has traditionally left to the judge....

Sansone, 380 U.S. at 350 n. 6, 85 S.Ct. 1004.

[¶ 22] In State v. Sheldon, 301 N.W.2d 604, 608 (N.D.1980), this Court discussed Berra and said, “Rule 31(c), N.D.R.Crim. P., was adopted from the Federal Rules of Criminal Procedure. We believe that the history surrounding Rule 31(c), Fed. R.Crim.P., applies with equal force to Rule 31(c), N.D.R.Crim.P.” Our Rule 31 became effective November 1,1973.

[¶ 23] In State v. Piper, this Court traced our current right to a lesser-included-offense instruction not to our criminal code but to our Rules of Criminal Procedure:

Although Rule 31(c) of the North Dakota Rules of Criminal Procedure (on the assumption appropriate instructions have been given) permits .the conviction of a defendant on a lesser offense, we note that there is no constitutional right guaranteeing a defendant a jury instruction on a lesser included offense. .

261 N.W.2d 650, 653 (N.D.1977).

[¶ 24] In State v. Houser, this Court applied the Eighth Circuit test for a lesser-included-offense instruction:

The Eighth Circuit Court of Appeals, in United States v. Thompson, 492 F.2d 359, 362 (8th Cir.1974), outlined a five-part test to determine when a defendant is entitled to an instruction on a lesser included offense:

“(1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality, i.e., a charge may be demanded by either the prosecution or defense.”

261 N.W.2d 382, 386 (N.D.1977) (emphasis added).

4 . • .

[¶ 25] North Dakota’s criminal code enacted effective July 1, 1975, includes the provision:

“Included offense” means an offense: a; Which is established by proof of the same or less than all the facts required to establish commission of the offense charged;
b. Which consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or
c. Which differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission.

N.D.C.C. § 12.1-01-04(15).

[¶ 26] As noted above, this provision is not the source of North Dakota’s provision for a lesseruncluded-offense instruction, although it has been referred to in several of this Court’s opinions on lesser included offenses.

[¶ 27] The Report to the Legislature noted that the provision was intended to clear up confusion on lesser included offenses: “The term ‘included offense’ is defined in a way which the Committee hopes will clarify this presently confusing area of the law.” North Dakota Legislative Council, Report to the Forty-Third Legislative Assembly 82 (1973). The Report said it was defining 28 terms “used throughout the new Code.” Id. But after being defined in N.D.C.C. § 12.1-01-04(15), the term “included offense” was — and is — used nowhere else in the criminal code, and N.D.C.C. § 12.1-01-04 states at its outset that the definitions are limited to “as used in this title” (the criminal code itself).

[¶ 28] How did this confusing situation occur? The new criminal code was the work of the Interim Committee on the Judiciary “B.” The legislature directed the interim study of the “substantive criminal statutes,” id. at 80, not the rules of criminal procedure. Interim Committee on the Judiciary “B” dealt with the crimes and punishment found in title 12 of the North Dakota Century Code. The committee resolved to use the proposed federal criminal code contained in the.Final Report of the National Commission on Reform of Federal Criminal Laws. Id. at 81. The committee considered whether to start from the Final Report or from title 12, the existing criminal code. Id. It decided to work from title 12, considering the corresponding provisions of the proposed federal criminal code. Id. Where there was no title 12 provision corresponding to a provision in the proposed federal criminal code, those proposed federal-criminal-code provisions were omitted without being considered. Using this approach, all of the provisions in the proposed federal criminal code that used the term “included offense” were omitted. See National Commission on Reform of Federal Criminal Laws, Final Report §§ 202 (Jurisdiction Over Included Offenses), 701 (Statute of Limitations), 704 (When Prosecution Barred by Former Prosecution for Same Offense), 3204 (Concurrent and Consecutive Terms of Imprisonment) (1971) [“Final Report ”].

5

[¶ 29] Despite being an historical dead end at the time of the new criminal code’s adoption, and despite the holding in State v. Jacobson, 338 N.W.2d 648, 650 (N.D.1983), that “included offense” and “lesser included offense” are not equivalent terms, a number of this Court’s opinions have referred to the definition of “included offense” in N.D.C.C. § 12.1-01-04(15) in analyzing entitlement to a “lesser included offense” instruction. See, e.g., State v. Clinkscales, 536 N.W.2d 661, 663-64 (N.D. 1995); State v. Larson, 554 N.W.2d 655, 656 (N.D.1996).

[¶ 30] As previously noted, our current right to a “lesser included offense” instruction emanates from N.D.R.Crim.P. 31, which we interpret consistently with the federal courts’ interpretation of Fed. R.Crim.P. 31. Although some of the previous opinions of this Court employ the definition of “included offense” in N.D.C.C. § 12.1-01-04(15) in analyzing entitlement to a “lesser included offense” instruction, we will no longer rely on that definition for that analysis.

6

[¶ 31] Our law on lesser included offense is this: We apply an elements-of-the-offense analysis. For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser. State v. Ellis, 2001 ND 84, ¶ 11, 625 N.W.2d 544; State v. Carlson, 1997 ND 7, ¶ 35, 559 N.W.2d 802. For a lesser-included-offense instruction, there must be evidence on which a jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser. Carlson, at ¶ 34. Generally, absent a request for an instruction on a lesser included offense, a trial court need not give such an instruction. State v. Motsko, 261 N.W.2d 860, 867 (N.D.1977). Either the prosecution or the defense may request a lesser-included-offense instruction, or the court may on its own give such an instruction. See State v. Wiedrich, 460 N.W.2d 680 (N.D.1990). The instruction must require an acquittal of the offense charged before consideration of lesser included offenses. State v. Daulton, 518 N.W.2d 719, 722-23 (N.D.1994).

C

[¶ 32] We apply our elements-of-the-offense analysis to Keller’s claim that he was wrongly denied lesser-included-offense instructions.

1

[¶ 33] Keller argues facilitation is, by definition, a lesser included offense of conspiracy to commit murder under N.D.C.C. § 12.1-01-04(15)(b). He argues that provision does not define when criminal facilitation is an included offense and puts no limits on when criminal facilitation may be an included offense. He argues the only logical inference from that definition is that criminal facilitation comes into play as a possible included offense whenever the evidence contains facts and circumstances showing possible involvement by two or more persons in the commission of the alleged offense, ora like offense.

[¶ 34] Under N.D.C.C. § 12.1-06-04(1), “[a] person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses,’and any one or more of such persons does an overt act to effect an objective of the conspiracy. The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.” The defendant need not commit the overt act, but one of the conspirators must commit the overt act, and once an illicit agreement is shown, an overt act of any conspirator may be attributed to the other conspirators to establish the offense of conspiracy. State v. Lind, 322 N.W.2d 826, 844-45 (N.D.1982). Under N.D.C.C. § 12.1-16-01(l)(a) or (b), a person is guilty of murder, the object of the charged conspiracy in this case, if that person intentionally or knowingly causes the death of another, or causes the death of another under circum- !. stances manifesting extreme indifference to the value of human life.

[¶ 35] Under those statutes and the charges in this case, Keller was guilty of conspiracy to commit murder if he agreed with Sherman to intentionally or knowingly cause the death of another or to cause the death of another under circumstances manifesting extreme indifference to the value of human life, and if either Keller or Sherman committed an overt act in furtherance of that agreement.

[¶ 36] Under N.D.C.C. § 12.1-06-02, a person is guilty of criminal facilitation if “he knowingly provides substantial assistance to a person intending to commit a felony and that person, in fact, commits the crime contemplated, or a like or related felony, employing the assistance so provided.” We have recognized a relationship between the offenses of criminal facilitation and accomplice liability. State v. Langan, 410 N.W.2d 149, 150-52 (N.D. 1987); State v. Ballard, 328 N.W.2d 251, 252-53 (N.D.1982). In Langan, this Court, using an elements-of-the-offense analysis, concluded criminal facilitation is a lesser included offense of accomplice liability under our criminal statutes. Id. at 151-52. The question in this case is whether facilitation is also a lesser included offense of conspiracy under those statutes.

[¶ 37] Criminal conspiracy requires an agreement but no actual assistance by a charged individual:'

A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy.

N.D.C.C. § 12.1-06-04(1). Criminal facilitation, on the other hand, requires actual and substantial assistance but no agreement:

A person is guilty of criminal facilitation if he knowingly provides substantial assistance to a person intending to commit a felony and that person, in fact, commits the crime contemplated, or a like or related felony, employing the assistance so provided.

N.D.C.C. § 12.1-06-02(1).

[¶ 38] Because it is possible to commit the crime of conspiracy without necessarily committing the crime of facilitation, facilitation is not a lesser included offense of conspiracy.

[¶ 39] Facilitation is not a lesser included offense of conspiracy to commit murder under N.D.C.C. § 12.1-01-04(15)(b), and the trial court did not err in refusing to give Keller’s requested instruction on this issue.

2

[¶ 40] Keller argues criminal facilitation is a lesser included offense of attempted murder. We reject Keller’s argument for the same reason that facilitation is not a lesser included offense of conspiracy. Criminal facilitation requires a person to knowingly provide substantial assistance to another, N.D.C.C. § 12.1-06-02(1), while criminal attempt requires the person himself (or herself) to intentionally engage in conduct that, in fact, constitutes a substantial step toward commission of the crime, N.D.C.C. § 12.1-06-01(1). Because it is possible to commit criminal attempt without assisting another, criminal facilitation is not a lesser included offense of attempted murder, and the trial court did not err in refusing to give Keller’s requested instruction on this issue.

3

[¶ 41] Keller argues the trial court erred in failing to instruct the jury on reckless endangerment as a lesser included offense of attempted murder. Keller was charged with attempted murder for the shooting that occurred when police officers were in the trailer home and with reckless endangerment for the shots fired at the police officers after they had retreated from the trailer home. Keller argues reckless endangerment is a lesser included offense of attempted murder under N.D.C.C. § 12.1-01-04(15)(c) because reckless endangerment “differed from the attempted murder charge in that reckless endangerment constituted a less serious risk of harm ... to the same person, i.e. the police officers, or because it required a showing of a lesser degree of culpability, namely recklessness as opposed to intentionally attempting to murder the officer.” The State agrees reckless endangerment under circumstances manifesting an extreme indifference to the value of human life is a lesser included offense of attempted murder under N.D.C.C. § 12.1-01-04(15)(c). However, the State argues the evidence does not justify a reckless endangerment instruction in this case, because the evidence does not create a reasonable doubt as to attempted murder and support a conviction for reckless endangerment beyond a reasonable doubt.

[¶ 42] The trial court instructed the jury that “[a] person is guilty of Attempted Murder if he either intentionally or knowingly attempts to cause the death of another human being; or if he willfully attempts to cause the death of a human being under circumstances manifesting extreme indifference to the value of human life.” Keller’s requested instruction on reckless endangerment as an included offense of attempted murder tracked language in N.D.C.C. § 12.1-17-03 that a person is guilty of felony reckless endangerment if he creates a substantial risk of serious bodily injury or death to another under circumstances manifesting an extreme indifference to the value of human life.

[¶43] As outlined above, under North Dakota law, one offense is not a lesser included offense of another if it is possible to commit the “greater” offense without committing the “lesser” offense. State v. Ellis, 2001 ND 84, ¶¶ 15-16, 625 N.W.2d 544.

[¶ 44] North Dakota Century Code section 12.1-06-01(1) defines criminal attempt:

A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A “substantial step” is any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.

N.D.C.C. § 12.1-06-01(1) (emphasis added).

[¶ 45] North Dakota Century Code section 12.1-17-03 defines reckless endangerment:

A person is guilty of an offense 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). This Court has explained:

If a person engages in conduct whereby he consciously and unjustifiably disregards a substantial risk that his conduct will result in death or serious bodily injury, then he has engaged in conduct proscribed by the reckless-endangerment statute....
... [T]hat “recklessness” requires an act done in conscious and unjustifiable disregard of the risks.

State v. Hanson, 256 N.W.2d 364, 367 (N.D.1977).

[¶ 46] Thus, a person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was, in fact, a substantial risk of serious bodily injury or death to another as required for reckless endangerment. Therefore, reckless endangerment is not a lesser included offense of attempted murder. In the similar case of Ellis, 2001 ND 84, 625 N.W.2d 544, Ellis was charged with and convicted of attempted murder. Ellis, at ¶2. At trial, and on appeal, Ellis argued that the jury should have been instructed on aggravated assault as a lesser included offense of attempted murder. Id. at ¶ 10. This Court affirmed Ellis’s conviction under the same rationale that applies here, holding that aggravated assault under subsections 1, 2, and 3 is not a lesser included offense of attempted murder:

In State v. Sheldon, 301 N.W.2d 604, 610 (N.D.1980), this Court said:
Aggravated assault under subsections 1, 2, and 3 of § 12.1-17-02, N.D.C.C., is not a lesser included offense to the offense of attempted murder because the elements necessary to prove commission of the offenses differ. Aggravated assault, except under subsection I of § 12.1-17-02, N.D.C.C., requires that a bodily injury be suffered by the victim of the offense. On the other hand, “criminal attempt” as defined in § 12.1-06-01(1), N.D.C.C., requires that the ac tor engage in a substantial step toward commission of the crime. The offense of attempted murder does not require that the victim of the offense suffer a bodily injury. Although a substantial step toivard commission of the crime may ivell involve a bodily injury, it is clear that the elements of proof involved in the offenses of aggravated assault under subsections 1, 2, and 3 of § 12.1-17-02, N.D.C.C., and attempted murder differ, but not as to subsection 4 of § 12.1-17-02, N.D.C.C. This variance of proof, except as to subsection 4 of § 12.1-17-02, is fatal to the categorization of aggravated assault as a lesser included offense of attempted murder. However, aggravated assault under subsection 4 of § 12.1-17-02 can be a lesser included offense of attempted murder.

Here, the trial court denied Ellis’s request for an instruction on aggravated assault:

The Supreme Court of North Dakota in State v. Sheldon has said that aggravated assault under those three potential circumstances or situations is not a lesser included offense of attempted murder because the elements necessary to prove the offenses differ. The Supreme Court in Sheldon did say that there is a potential for a lesser included under subsection (4) of the statute defining aggravated assault, which would involve firing a firearm of [sic] hurling a destructive device at another human being.
On the evidence presented in this case, the Court finds that that instruction would not apply. On the evidence presented to the Court under the circumstances of this case, the requested instruction for aggravated assault would fall under categories one, two and three and by law is not a lesser included offense.

Under Sheldon and the first step of our process for deciding whether a defendant is entitled to an instruction on a claimed lesser included offense, aggravated assault is not a lesser included offense of attempted murder because, except for N.D.C.C. § 12.1-17-02(4) which involves firing a firearm or hurling a destructive device at another human being, it is possible to commit the greater offense of attempted murder without committing aggravated assault. The offense of attempted murder requires the defendant to take a substantial step toward committing the crime of attempting to intentionally or knowingly cause the death of another and does not require the victim to suffer bodily injury. Aggravated assault under N.D.C.C. § 12.1-17-02(1), (2), and (3), however, requires the victim to suffer bodily injury.

The attempted murder charge against Ellis did not allege he fired a firearm or hurled a destructive device at the victim. Rather, Ellis was charged with attempted murder under N.D.C.C. §§ 12.1-06-01 and 12.1 — 16—01(l)(a) for attempting to intentionally or knowingly cause the death of another person by inflicting blunt force trauma to the head of the victim. The State was required to prove Ellis intentionally engaged in conduct which constituted a substantial step toward the commission of the crime of knowingly and intentionally causing the death of another person and was not necessarily required to prove the victim suffered a bodily injury. Under Sheldon and our jurisprudence for lesser included offenses, we conclude the trial court did not err in refusing to give an instruction on aggravated assault.

Ellis, 2001 ND 84, ¶¶ 13-16, 625 N.W.2d 544 (emphasis added).

[¶ 47] In this case, which is parallel to Ellis, “it is possible to commit the greater offense of attempted murder without committing” reckless endangerment. “The offense of attempted murder requires the defendant to take a substantial step toward committing the crime of attempting to intentionally or knowingly cause the death of another and does not require” actually creating a substantial risk of serious bodily injury or death to another.

[¶ 48] Reckless endangerment is not a lesser included offense of attempted murder. Therefore, the trial court did not err by not giving the requested instruction.

Ill

[¶49] Keller argues there was insufficient evidence to support the conspiracy and the attempted murder verdicts.

[¶ 50] In reviewing a suffi-cieney-of-the-evidence challenge, we review the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt. State v. Steiger, 2002 ND 79, ¶ 4, 644 N.W.2d 187. “We review a challenge to the sufficiency of the evidence by drawing all inferences in favor of the verdict.” City of Jamestown v. Neumiller, 2000 ND 11, ¶ 5, 604 N.W.2d 441. A “[reversal is warranted only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Id.

A

[¶ 51] To establish conspiracy to commit murder, the State must prove an agreement to commit murder plus an overt act performed by any person to the conspiracy. N.D.C.C. § 12.1-06-04(1). “The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.” Id. A defendant need not commit the overt act charged, but one of the conspirators must commit an overt act, and once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy. Lind, 322 N.W.2d at 844-45.

[¶ 52] There was evidence that Sherman had talked about a “plan” to avoid being arrested and sent back to jail if confronted by law enforcement officers. That plan included using hostages and killing law enforcement officers. Although Keller admits he may have planned to use hostages if confronted by the police, he claims he never intended to kill any police officers and did not agree to a plan to kill police officers. However, in a statement to police shortly after being arrested, Keller acknowledged that he and Sherman had talked about a “shootout” and about “shooting cops.” Moreover, there was evidence that, as between Sherman and Keller, Sherman was the person in charge, and the circumstances in this case support an inference that Keller implicitly agreed to- the plan. We conclude that the evidence, viewed in the light most favorable to the verdict, is sufficient to establish an agreement between Sherman and Keller to kill police officers if they were confronted by police officers. We also conclude the evidence is sufficient to establish overt acts in furtherance of that agreement. We therefore conclude there was sufficient evidence to support the conspiracy verdict.

B

[¶ 53] To establish attempted murder, the State must prove the defendant, acting with the kind of culpability otherwise required for commission of the crime of murder, intentionally engaged in conduct that, in fact, constituted a substantial step toward commission of the crime of murder.

[¶ 54] There was testimony that Keller retrieved his 9 mm handgun, loaded the weapon, and repeatedly fired through the bedroom door and walls at Bismarck police officers located on the other side. There was testimony that a police officer was shot in the leg with a bullet that was later determined to have come from Keller’s 9 mm handgun. Keller’s conduct in shooting at the police officers sufficiently constitutes a substantial step toward the commission of the crime of murder to justify the conviction of attempted murder. Keller failed to show, based on the evidence, that “no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Kringstad, 353 N.W.2d 302, 306 (N.D.1984). We conclude there was sufficient evidence to support the attempted murder conviction.

IV

[¶ 55] We affirm the convictions.

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

[¶ 57] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.

      . The proposed federal criminal code was never adopted.

      . The 1987 Legislative Assembly, in the process of amending state laws relating to the statute of limitations for certain sexual offenses, replaced the term "manslaughter” in N.D.C.C. § 29-04-02 with the phrase "any included offense” in relation to a statute-of-limitations exception for a person prosecuted for murder. 1987 N.P. Sess. Laws ch. 390. For this opinion, we need not determine the meaning of "any included offense” for the statute of limitations under N.D.C.C. § 29-04-02.


author: KONENKAMP, Justice. MEIERHENRY, Justice

text:
    2005 SD 47
    STATE of South Dakota, Plaintiff and Appellee, v. Carl Olin LOCKSTEDT, Defendant and Appellant.
    No. 23289.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2005.
    Decided April 13, 2005.

      Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Elizabeth M. Frederick, Rapid City, South Dakota, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this automobile search case, the trial court denied a defense motion to suppress evidence seized after a drug detection dog purportedly indicated the presence of drugs in a car in which defendant was a passenger. Defendant questions whether the drug dog truly signaled the odor of an illegal substance. Because the record viewed in a light most favorable to the findings supports the circuit court’s conclusions, we-affirm.

Background

[¶ 2.] On, October 21, 2002, South Dakota Highway Patrol Trooper Brian Swets was patrolling on Interstate 90. With him was his drug detection dog, Crockett. Shortly after 9:00 a.m., the trooper was near Piedmont, South Dakota, traveling eastbound toward Rapid City. He observed a red-colored Chrysler automobile bearing Texas license plates. At the time, the trooper was traveling 75 m.p.h. and was about to pass thé Chrysler, which was moving at 70 m.p.h.

[¶3.]' As the trooper pulled alongside the vehicle, he noticed that there were two occupants. The driver, Billy Carl Kinna-mon, was leaning his head against the side window. • To the trooper, he looked fatigued. The other passenger was defendant, Carl Olin Lockstedt. Neither occupant made any eye contact with the officer as he. was moving past the vehicle. Trooper Swets slowed his ear and pulled behind the Chrysler. Upon calling in the vehicle’s license plate number, he learned that the Chrysler was- a rental car. It had no outstanding warrants or stop requests associated with it.

[¶ 4.] Following the license plate check, the trooper accelerated and again pulled alongside the Chrysler. For the second time, Trooper Swets noticed that both the driver and passenger made no eye contact with him. The trooper thought that further investigation was required. He passed the Chrysler and drove ahead a few miles to a section of Interstate 90 where the speed limit drops from 75 to 65 m.p.h. He positioned his car to await the Chrysler and see if its driver committed a traffic violation.

[¶ 5.] As the Chrysler approached, Trooper Swets obtained a radar reading of 68 m.p.h. However, with foggy conditions and traffic in a construction area, he was unable to safely intercept the vehicle. He radioed ahead to Trooper Matt Oxner, who was patrolling a few miles ahead on eastbound Interstate 90. Trooper Swets asked Trooper Oxner to either obtain a second radar reading of the Chrysler or stop the vehicle for the earlier speeding violation. Trooper Oxner was unable to get a radar fix on the car. At 9:29 a.m. Trooper Swets was able to pull the Chrysler over himself. Trooper Oxner arrived at the scene shortly afterwards. Each of the troopers was accompanied by their drug detection dogs.

[¶ 6.] Trooper Swets exited his car and approached the vehicle. When asked to produce a driver’s license, proof of insurance, rental agreement, and registration, the driver of the car opened the glove compartment. It revealed a plastic bag-filled with toiletries, a prescription medicine bottle, and a fruit scented air freshener. Trooper Swets asked both occupants where they were headed and where they were coming from. Both replied that they were going back home to Texas and that they were coming from Montana. The trooper asked why they were in Montana. They responded that they were in Montana to purchase real estate. After noticing the various items in the glove box, reviewing the documents that the driver handed him, and posing a couple of further questions, Trooper Swets asked the driver to accompany him to the patrol car. The trooper indicated to both the driver and passenger that he was only going to issue a warning ticket for the speeding violation.

[¶ 7.] While Kinnamon was sitting in Trooper Swets’s patrol car awaiting a warning ticket, Trooper Oxner had his drug dog, Jake, walk around the Chrysler. At no point during the sniff of the exterior of the car did Trooper Oxner observe his dog indicate on the presence of drugs. Meanwhile, in Trooper Swets’s patrol car, the driver was asked if there was anything illegal in the car that would make the dog alert. The trooper also asked the driver for consent to search the car. Trooper Swets observed that the driver appeared overly concerned about the dog circling his car and seemed unusually nervous. Kin-namon, however, denied that anything illegal was in the vehicle and refused consent to search. He said he was in a hurry to get back on the road.

[¶ 8.] In the midst of writing the warning ticket and learning that the passenger was the official renter of the car, Trooper Swets exited his cruiser to ask defendant Lockstedt some questions. On the way, he was informed by Trooper Oxner that Jake did not detect any illegal contraband. Once at the passenger side door, the trooper first asked about the prescription pill bottle. Defendant claimed ownership and told Trooper Swets of the prescription’s purpose. The Trooper next requested consent to search the vehicle. Defendant refused. He told the trooper that they were eager to move along on their trip back to Texas.

[¶ 9.] Trooper Swets decided to check the car with Crockett. The driver was still in the patrol car because the warning ticket had not been completed. The trooper led Crockett around the vehicle twice. On the second time around, Crockett alerted at the crease of the passenger side door. His sniffing intensified, his body lowered to smell either the bottom crease of the passenger’s door or under the car, and he spent roughly ten seconds on that side of the vehicle. The dog, however, did not exhibit any behavior, such as jumping or scratching on the car. Trooper Swets then directed him around the front end and started back down the driver’s side of the car.

[¶ 10.] On the driver’s side, Crockett again caught an odor and sniffed at the seam of the door. The dog remained on the driver’s side for roughly five seconds. His sniff was more intense around the seam of the door, and his body turned to an almost perpendicular position in relation to the vehicle. Again, however, Crockett did not show scratching or jumping behavior. Nonetheless, when Trooper Swets tried to pull the dog away from the scent, it resisted and the trooper pulled again, telling him, “I saw that.”

[¶ 11.] Trooper Swets guided Crockett to the trunk area. The dog sniffed at the trunk. Then, telling the dog to “get up there” and “get after it,” the trooper encouraged Crockett to jump up onto the trunk. Crockett jumped, pawed, and thus “indicated” at the trunk of the Chrysler. With the dog’s purported detection of an illicit substance, the troopers acquired the requisite probable cause to conduct a war-rantless search of the defendants’ vehicle. See Illinois v. Caballes, — U.S. -, -, 125 S.Ct. 834, 837-38, 160 L.Ed.2d 842 (2005).

[¶ 12.]' After telling defendant Lock-stedt that his dog smelled something illegal in the car, Trooper Swets obtained the car keys from the driver and opened the trunk of the car to conduct a search. He told Trooper Oxner that it was “pretty obvious Crockett was alerting.” The troopers found 17 individually wrapped one-pound bags of marijuana. Both the driver and defendant were placed under arrest. A total of ten minutes had elapsed from the time the car was stopped.

[¶ 13.] Along with the illegal substance, the officers also seized a notebook with handwritten annotations of various weights and dollar amounts. Both defendants were charged with conspiracy to distribute, distribution, and possession of more than ten pounds of marijuana. Both moved to suppress the evidence, contending that the stop was not supported by reasonable suspicion and that the warrant-less search was unsupported by probable cause. The trial court denied the motion. Following a court trial, both defendants were found guilty. Defendant Lockstedt now áppeals, raising the following two issues: (1) “Whether the trial court erred in finding and concluding that Trooper Swets had reasonable suspicion to stop and detain the vehicle in which Lockstedt was a passenger”; and (2) “Whether the trial court erred in finding and concluding that Trooper Swets had probable cause to conduct a search of the vehicle in which Lock-stedt was a passenger.”

Analysis and Decision

[¶ 14.] After hearing conflicting and contradictory testimony in two suppression hearings, the circuit court made a difficult decision on whether and when Crockett “indicated” on the presence of illegal drugs. We will not disturb a circuit court’s findings of fact unless they are clearly erroneous in light of the entire record. State v. Guthrie, 2001 SD 61, ¶ 56, 627 N.W.2d 401, 423 (citation omitted); SDCL 23A-32-9. We think it particularly fitting, though, that when a trial court’s factual findings are premised on witness credibility, we should give especially strong deference to those findings. Indeed, with rulings on suppression motions, we view the evidence in a light most favorable to the court’s findings of fact. State v. Tilton, 1997 SD 28, ¶ 21, 561 N.W.2d 660, 665 (citations omitted). When it comes to deciding whose testimony should be believed, a transcript is no substitute for a judge’s firsthand observation. On the other hand, a circuit court’s decision on reasonable suspicion and probable cause principles raise mixed questions of fact and law, which we review de novo. Ornelas v. United States, 517 U.S. 690, 696-99, 116 S.Ct. 1657, 1661-63, 134 L.Ed.2d 911 (1996); State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488. Cf. United States v. Alverez, 235 F.3d 1086, 1088 (8thCir.2000).

A. Reasonable Suspicion to Stop Vehicle

[¶ 15.] Lockstedt argues that his constitutional right to be free from illegal search and seizure was violated. He says that Trooper Swets’s testimony was contradicted by Trooper Oxner’s. Although Trooper Swets’s testimony during the first suppression hearing established that the car was speeding, Lockstedt asserts that Trooper Oxner’s reluctance or, perhaps, failure to pull over the vehicle before Trooper Swets demonstrates the inconsistency between the two troopers’ stories. As Lockstedt would have it, the conflicting-testimony between the two troopers illustrates that the stop was not for a traffic violation, but to gratify Trooper Swets’s hunch.

[¶ 16.] The Fourth Amendment of our Federal Constitution and Article VI, Section Eleven, of our State Constitution protects citizens from unreasonable searches and seizures. US Const amend IV; SD Const art VI, § 11. Although probable cause is generally required for a search, “ ‘[t]he requisite level of suspicion necessary to effectuate the stop of a vehicle is not equivalent to probable cause necessary for an arrest or a search warrant.’” Chavez, 2003 SD 93, ¶ 15, 668 N.W.2d at 95 (following State v. Barton, 2001 SD 52, ¶ 13, 625 N.W.2d 275, 279). Law enforcement officers are only required to show “ ‘a reasonable suspicion to stop an automobile.’ ” Id. (quoting Barton, 2001 SD 52, ¶ 13, 625 N.W.2d at 279). That is, an officer “must have ‘specific and articulable suspicion of a violation.’ ” State v. Ballard, 2000 SD 134, ¶ 11, 617 N.W.2d 837, 840 (citations omitted). Therefore, the basis needed for a traffic stop is minimal. Chavez, 2003 SD 93, ¶ 15, 668 N.W.2d at 95 (referencing Barton, 2001 SD 52, ¶ 13, 625 N.W.2d at 279 (citing State v. Sleep, 1999 SD 19, ¶ 7, 590 N.W.2d 235, 238)).

[¶ 17.] “While the stop may not be the product of mere whim, caprice or idle curiosity, it is enough that the stop is based upon ‘specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion.’ ” Id. ¶ 16 (quoting State v. Herrboldt, 1999 SD 55, ¶7, 593 N.W.2d 805, 808 (following Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 14, 580 N.W.2d 606, 611)) (alterations omitted). Thus, a traffic violation, however minor, is sufficient to justify the stop of a vehicle. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); State v. Kenyon, 2002 SD 111, ¶ 16, 651 N.W.2d 269, 274.

[¶ 18.] The trial court found that driving “three to four miles over the speed limit ... is clearly not the type of violation that would give rise to a stop under normal circumstances.” However, the court ultimately declared that even “[t]hough the stop was clearly pretextual, based on the testimony of the officer there was a minimal law violation.” We agree that Trooper Swets had a specific and articulable suspicion of a traffic violation sufficient to justify the stop of the Chrysler.

[¶ 19.] The assertion that the stop was pretextual fails because Trooper Swets had an objective basis for stopping the defendants’ car. Initially, the trooper’s motive was to find something to substantiate the stop of the vehicle. The trooper, when first observing the Chrysler, may have wanted to pull the car over but at that point possessed no reasonable, legal cause to warrant a stop. Several miles later, however, Trooper Swets obtained the requisite legal justification:, the car was traveling three miles over the posted speed limit. As a result, the trooper “articulated specific non-pretextual facts which, taken together with rational inferences from those facts, reasonably warranted the traffic stop.” Chavez, 2003 SD 93, ¶ 19, 668 N.W.2d at 96 (citing Kenyon, 2002 SD 111, ¶ 15, 651 N.W.2d at 273-74; Barton, 2001 SD 52, ¶ 16, 625 N.W.2d at 279).

[¶ 20.] Because the traffic violation was an objective justification for the traffic stop and detention, there was reasonable suspicion for the stop and traffic investigation regardless of the officer’s subjective intent. As we have previously noted, even if an officer has subjective reasons for stopping someone, “those subjective reasons [are] not relevant.” Id. ¶20. “[A]n objectively reasonable stop [will] not [be] invalidated even if the stop was. pretextual.” Id. (quoting State v. Lamont, 2001 SD 92, ¶21, 631 N.W.2d 603, 610 (citing Arkansas v. Sullivan, 532 U.S. 769, 772, 121 S.Ct. 1876, 1878, 149 L.Ed.2d 994, 998 (2001))). Accordingly, the circuit court did not err in concluding that reasonable suspicion existed to stop, the vehicle. The court’s findings of fact and conclusions of law are clearly supported in the record.

B. Probable Cause to Search Vehicle

,[¶21.] Defendant next argues that the circuit court erred in its finding that probable cause was established for the warrantless search of the automobile. In particular, defendant maintains that Crockett did not “indicate” or make a “defined final response” when sniffing the exterior of the car. Rather, defendant asserts, Crockett was cued or encouraged to indicate at the trunk. And because the trial court’s pronouncement that Crockett indicated at the passenger and driver’s side door seams appears unsupported in the record, defendant argues that the findings of fact are clearly erroneous.

[¶22.] The circuit court heard considerable evidence on whether Crockett “alerted” or “indicated” at the vehicle. The court viewed two videotape recordings of the stop, took the testimony of Trooper Swets, and heard the opinion of two experts. At the conclusion of the second and final suppression hearing, the court orally pronounced its findings, which were later incorporated into the trial courts written findings of fact and conclusions of law. In its oral decision, the court said:

The Court, of course, is not a practiced dog person. I have to choose the truth of the matter based upon the evidence presented to the Court. And it becomes extremely foggy. As to the incident at the ... trunk, I have reservations, significant reservations concerning the officer’s intentional indication by whistling, by commands, by tapping the trunk to elicit a response from the dog. Now, whether that was done for- — pursuant to training and to elicit a very specific response or whether it was done to elicit a natural, appropriate response is an issue for the Court. And the Court — the officer testified he did it on purpose for the purposes of the Court’s understanding of the dog’s observations. However, prior to that time, there was only an alert that occurred, not an indication. However, the dog in the mind of this Court at the driver’s side door alerted on two occasions and indicated on two occasions, which this Court would deem to be appropriate and sufficient evidence to support probable cause to believe there may be contraband within the vehicle. And that alert at the passenger door was itself or the driver’s door was itself sufficient and very definitive in the mind of this Court to support probable cause and' the Court will deny the request to suppress.

In its written findings of fact and conclusions of law, the court only stated that “Crockett gave an indication of a recognizable odor which established probable cause to conduct the search of the automobile” and that “Crockett gave an indication that [an] odor of an illegal substance was emanating from the vehicle.”

[¶ 23.] We must determine whether the record supports the circuit court’s findings and conclusions. The testimony is contradictory.

Q. [Prosecutor] Can you explain to the Judge what coming into odor means in relation to your dog?
A. [Trooper Swets] We use the term coming into odor, what we’re saying is that our dog is smelling the odor he is trained to detect. So that would be he’s smelling the odor of marijuana, cocaine, methamphetamine, psilocybin mushrooms, heroin.
Q. What does indication mean, Officer?
A. Indication is the trained behavior where the dog scratches, bites, stares, sits or lays.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
Did you see your dog coming into odor during the time you were circling him around ... [the car]? O’
Yes, I did. i»
Approximately how many times did you see him come into odor? «©
Four times. t>
Did you see him do anything to indicate? <©
Yes, sir. í>
And what did he do? <©
He scratched. He locked up on the passenger side and the driver’s side and then scratched at the trunk. !>
Now, does the video depict that you had to pull your dog off of the seam, door seam? O’
Yes, it does. <J
What does that suggest to you as a handler? O’
That the dog was smelling the odor he was trained to detect and wanted to go back to it.
Is there any doubt in your mind that your dog came into odor on that day? O
A. No, sir.

[¶24.] On cross examination, defense counsel established with Trooper Swets that the terms “coming into odor” and “alert” are synonymous. Then defense counsel continued:

Q. [Defense Attorney Frederick] So now we have at least three different alerts that this dog does; the perpendicular motion, the lock-up and stare motion — I’m sorry, four. The body stiffening and the long, hard sniffs. Correct?
A. Those are all behaviors that I look at, yes, ma'am. The lock-up and stare would be considered an indication.
* ⅜ ⅜ ⅜ * *
A. Those are, um, behaviors that — that some are going to be considered as indication, some are in conjunction with the alert. I wouldn’t exactly know how to categorize them as far as alert, indication. That would be something you would want to refer to the^ — to the [State’s expert].
⅝ ⅝ ⅜ ⅝ ⅜
Q. All right. What is your dog’s trained final response?
A. Crockett’s — Crockett’s indication, um, towards the end of his career was passive. ' He would lock up and stare. At times he would scratch. Um, it — he made the decision independent on the day, and sometimes he would scratch and sometimes he would just lock up and stare.
⅜ * ⅝ ⅜ * *
Q. And describe to me or to the Court where your dog alerted.
* * '■ * * * *
A. I first saw my dog come into odor at the trunk of the vehicle.
Q. Okay. So that must have been after you had already completed one pass, correct?
A. It was at the end of my first lap, yes, ma’am.
Q. Okay. All right. Where did the dog as you testified indicate?
A. At the trunk.
Q. Was that when he came into alert?
A. That was on the second pass.
⅜ H5 ⅝ ⅜ ⅝ 5I;
Okay. So then you take your dog around the vehicle. ' You testified that the- first time it initially came into odor was when you had almost completed your first lap at the trunk and then you stated that he indicated at the trunk at the end of your second — second lap, right? <y
That’s what I stated, ma’am, yes, ma’am.
What is your dog’s indication? <y
My dog may — may scratch, um, or he may lock up and stare. <¡
Well, I’m just asking, what was his indication in this particular case? ©■
He scratched. <⅞
How did he scratch? O’
Using his front paws. <¡
Where did he scratch? O’
Ah, at the trunk seam. <⅞
On the ground, on the vehicle?
On the vehicle.
So he jumped on the vehicle? Gf
Yes, ma’am, he did. <|
Is that part of the indication? O'
Yes, he’s supposed to scratch at where he believes the odor’s coming from. <|
Q. Okay. So jumping and scratching is part of the indication?
A. Scratching is the indication.
Q. Jumping on the bumper?
A. The scratching behavior is the indication. He obviously has to jump on to the bumper to scratch at the source, so — um, but the scratching behavior is what I would consider the indication.
* $ * * ⅜ ⅜
Q. [Defense Attorney Rensch] But when he finds an odor of an illegal drug, two things happen. One would be the alert and secondly would be the indication, either passive or aggressive, right?
A. [Trooper Swets] Yes, sir.
Q. Okay. And you’re telling us the alert is the — is what?
A. As I stated, it’s — it’s the change in his breathing pattern, his sniff intensifying, his body stiffening.
Q. Okay. Okay. In this particular case then, you say this dog alerted how many times?
A. Three or four, excuse me.
Q. Four times?
A. Four times.
Q. The first time, the first go-around, was on what position of the vehicle?
A. On the trunk.
Q. Okay. The second time or the second alert was where?
A. The passenger side door seam.
Q. Okay. That would have been the second time you passed it?
A. That’s — that’s correct.
Q. You go around the front of the vehicle and when is the third alert?
A. At the driver’s side door seam.
Q. And you come around to the back of the vehicle and when is the fourth alert?
A. At the trunk.
Q. Okay. The first alert at the trunk, how did the dog alert?
A. Ah, the change in his breathing pattern, long, hard sniff.
Q. Okay. The second time at the passenger door, the second alert, how did the dog alert?
A. Same.
Q. Okay. The third time at the driver’s door, how did the dog alert?
A. The same.
Q. Okay. The fourth time at the trunk, how did the dog alert?
A. The same.
Q. How many times did the dog indicate?
A. Crockett aggressively indicated at the trunk.
Q. Did he indicate [at] any other point?
A. Um, he locked up on the■ — on the passenger side door seam and on the driver’s side door seam and stared at it. I didn’t allow him to stay at any length, um, so I guess I’m not saying that’s — that’s allowing him to go into a full indication.
Q. Are you saying that he indicated before the fourth alert?
A. I’m .saying I didn’t allow him to go into a full indication.
Q. If you didn’t allow him to indicate, did he indicate or not before the fourth alert?
A. No.
Q. Okay. So you have one indication on the particular vehicle in question here; is that correct?
A. Yes, sir.
Q. And that was the aggressive indication [?]
A. Yes, sir.
Q. Which you say was him scratching the vehicle; is that right ?
A. Yes, sir.
Q. Which you did not cue orxause [?]
A. No.
Q. Okay.
A. I did encourage it.

[¶25.] At this point, given the admission that the dog indicated only once, with scratching at the trunk, it might seem that our inquiry would focus purely on the dog’s behavior at the trunk. But later, as the questioning went On, the- answers turned more equivocal on whether the dog also indicated at the door seams.

Q. All right. So when the dog turns perpendicular in conjunction with an alert, you take that as a passive indication; is that not so?
.A. As I stated numerous times, sir, I don’t know how to categorize my dog. turning perpendicular. I don’t know how else I can explain it to you. I do not know if that’s categorized as an alert or an indication. As I’ve stated over and over again, sir, I do not know.
******
Q. So if he were to stare at, the door after he had a long, hard sniff and as he was turning perpendicular to the vehicle, you would take that as a passive indication, right?
A. Yes. If the sniff was the long, hard sniff that I see, you know, that behavior, that alert behavior, and then he turns perpendicular and stares, yes, sir, I will call that an indication.
⅝ * * *
Q. If you tell us that passive indication constitutes turning perpendicular when a .dog is staring at the door seam after he’s alerted, why do you now tell us that you only saw one indication out there on the highway that day?
A. As I stated earlier today in my testimony, I saw him come into odor. He turned perpendicular and I didn’t allow him to fully fixate and stay at that point and go into a full indication.' I moved him on, sir.

[¶26.] Obviously concerned with the dog’s behavior at the door seams, the circuit court interjected some questions:

Q. Was there any marijuana found 0⅛ er than in the trunk or any drugs found other than in the trunk?
A. Ah, no, sir.
Q. Why would [Crockett] indicate at the passenger doors then?
A. The odor certainly may be coming out of those locations all the way and may be coming out all the way in the front. I found many times with , my. dog that, um — that the drugs are in the trunk and the dog indicates to the — to the door seams too. Um, there’s — I’ve had times where my dog didn’t indicate at the trunk and indicated at the door seam and the drugs were in the trunk because that’s where the odor is getting pushed out at. That’s— that’s — you know, it’s flowing from the trunk into the passenger compartment and coming out at that location, the strongest point there. I — um, that’s just what I’ve observed.
Q. Okay. He indicated at the front passenger door and front driver’s door, correct?
A. Um.
Q. Or he alerted I should say.
A. Yeah, he alerted at those door seams, yes, sir, on both the driver and passenger sides

[1127.] After Trooper Swets testified, the defense called Dr. Dan J. Craig, a certified animal behaviorist with long experience in canine and handler training. He has worked with dogs trained to detect explosives and drugs. Most, if not all, of Craig’s background was with the United States military and other government agencies. In Craig’s opinion, Crockett’s ostensible indication at the trunk was cued. From his view of the videotape, he concluded that the dog never indicated at any point before the “handler-cued indication” at the trunk. Craig said that Crockett was “in odor” or “alerted” in his trip around the car, but a dog’s alert is its natural, innate behavior. He explained that dogs cannot be trained to have a long, hard sniff because “the dog makes the decision of whatever the odor interest is.” Therefore, training a canine “to indicate by exhibiting a long, hard sniff, staring and body stiffening” is of no value. Ultimately, Craig declared, “The only thing of value is the decision-making by the dog which is the defined final response or indication as they’ve defined it.... The decision is the dog’s, not the handler’s.”

[¶ 28.] The last witness was the State’s expert Sergeant David Huntimer of the Sioux Falls Police Department. Huntimer is qualified as a judge for service dogs, and, in that capacity, he recertifies drug detection dogs. He certified Trooper Swets and his dog, Crockett. In his direct testimony, Huntimer stated that Crockett did go “into odor” and “lock up” while sniffing the exterior of the defendants’ car. During cross-examination, he elaborated on the terms “alert” and “indication.”

Q. [Defense Attorney Rensch] Okay. So an indication without an alert may not be a true indication and you might question that. Is that right?
A. [Huntimer] I would not call it.
Q. You would not call an indication without an alert an indication.
A. That’s correct.
Q. And likewise you would not call an alert without an indication.
A. Yes, sir.
Q. You would not call it what?
A. I would not call it as far as searching the vehicle.
Q. Okay. So if there’s just an alert without an indication, you wouldn’t deem that enough to allow you to search the vehicle; is that correct?
A. I would not.
Q. All right. And that’s consistent with your training, your experience, your expertise, right?
A. Yes, sir.
Q. [Y]our decision not to search a vehicle based upon an alert or these— the exhibiting of these innate behaviors alone would be consistent with your expertise and training; is that right?
A. That would be correct.

[¶29.] Huntimer testified that he knew Crockett was trained as an aggressive indicator, i.e., scratching to signal the presence of drugs. In questions from the judge, Huntimer was asked about the dog’s behavior at the trunk.

Q. [Judge] Okay. But then before he started scratching [on the trunk], there was no indication; is that correct?
A. [Huntimer] I would have to say that I can see the dog start to change his breathing, but I don’t think anybody else would see it because I know what I’m looking for.
Q. Okay. But that would be an alert response, not an—
A. Yes, sir.
Q. —indication response.
A. That would be correct.
Q. And there was no indication response prior to the dog jumping or touching the license plate.
A. No, sir, there was not.

Thus, Crockett did not indicate by locking up at the trunk before he was encouraged to jump and scratch.

[¶ 30.] On the other hand, Huntimer explained in response to the judge’s questions that as the dog became older and developed arthritis its “natural scratch response” diminished. Although he could not see in the videotape that Crockett locked up at the trunk before he was encouraged by Trooper Swets to jump and scratch, he nonetheless confirmed that he saw him lock up at the passenger and driver side door seams. And, in Huntimer’s opinion, the “locking up” behavior was an “indication.”

C. Conclusion

[¶ 31.] As to the question whether Crockett indicated at the trunk, the trial court concluded that it had “significant reservations.” From our review of the evidence, those reservations were clearly warranted. Neither expert would say from viewing the videotape that the dog indicated there. All the court could determine was that “prior to ... [the] time [of the officer’s encouraging the dog’s scratching behavior at the trunk], there was only an alert that occurred, not an indication.” Thus the court never found that there was an indication at the trunk.

[¶ 32.] On the other hand, the court found that Crockett did indicate the odor of illegal substances at the passenger and driver side door seams. Our inquiry is limited to whether the record supports the trial court’s findings of fact, i.e., whether the fact findings were clearly erroneous. Although the testimony was at times unclear, and indeed contradictory, all the testimony demonstrated that the dog alerted at the door seams, that an alert was an innate response to the presence of a scent, and that the dog also locked up at both door seams. The disagreement between the experts was whether the lock up behavior was an indication. Trooper Swets testified that it was not a “full indication.” It is clear from the videotape, however, that the trooper thought his dog had signaled the presence of drugs at the driver side door. He had to pull Crockett away, reassuring him by saying, “I saw that.” Crockett’s behavior at the passenger and driver side doors here is the same behavior we held to be sufficient to create probable cause in Chavez, 2003 SD 93, ¶ 23, 668 N.W.2d at 96-97.

[¶ 33.] Although there was certainly conflict in the evidence, the circuit court was within its authority to sort it out. Trial judges not only hear testimony, they also observe demeanor, along with vocal nuance, volume, and intonation. These are not visible in the transcript. Confronted with conflicts in testimony, it is the judge’s duty to resolve them where possible. That duty includes addressing questions of credibility and contradiction. As the United States Supreme Court explained in defining the term clearly erroneous:

The reviewing court oversteps the bounds of its duty ... if it undertakes to duplicate the role of the lower court.... If the [trial] court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Considering the evidence in its entirety, we are not left with a definite and firm conviction that the circuit court erred in finding that the drug dog indicated the odor of an illegal substance.

[¶ 34.] Affirmed.

[¶ 35.] GILBERTSON, Chief Justice and ZINTER, Justice, concur.

[¶ 36.] SABERS and MEIERHENRY, Justices, concur in part and dissent in part.

MEIERHENRY, Justice

(concurring in part and dissenting in part).

[¶ 37.] I concur on issue I. I respectfully dissent on the second issue and would find the trial court erred in finding probable cause to search.

[¶ 38.] The problem here is that the trial court did “sort out” the testimony and concluded that the drug dog’s alert at the car doors was sufficient for probable cause irrespective of the expert and dog handler’s testimony. Their testimony indicated that in order for the officers to rely on the dog to establish probable cause, the dog needed to “indicate.” A mere “alert” was insufficient to find probable cause. According to the testimony, only the dog’s handler knows for sure whether his dog smells drugs because he is familiar with his dog’s idiosyncrasies. For Crockett, an “alert” was only a precursor to coming into a full “indication” of the presence of drugs. It was at the trunk that the dog handler determined Crockett fully “indicated” — not at the doors. The court, however, was not convinced of the indication at the trunk.

[¶ 39.] Drug dogs are not 100% accurate and are fallible. We should, at least, require the state to present evidence of the dog’s clear indication of smelling drugs before approving of the search. In other situations, we require an accurate calibration of technical devices in detecting alcohol or illegal substances. Similarly, we should also require the necessity of a clear indication from a drug dog before finding probable cause to search.

[¶ 40.] The trial court’s finding that the dog’s reaction at the doors presented probable cause is contrary to the testimony and clearly erroneous and should be reversed.

[¶ 41.] SABERS, Justice, joins this special writing.

      . The terminology for the behavior of drug detection dogs has changed since our decision in State v. Chavez, 2003 SD 93, 668 N.W.2d 89. There, based on the expert testimony, we used the term "alert” to mean that the dog indicated to its handler that it detected the odor of a substance it was trained to detect. In this case, the terms "alert” or "in odor” were used by the experts to describe the dog's innate or involuntary response when sniffing a particular odor. The term "indicate” was used to describe a dog’s trained behavior to signal its handler that a target odor is at the location being sniffed.

      . The driver’s case is not part of this appeal.

      . There is no evidence here that the traffic stop was unlawfully prolonged in order to permit time for the dog sniff. See Caballes, 125 S.Ct. at 834.

      . Crockett is now retired.

      . The term "clearly erroneous" has the same meaning in criminal cases as it does in civil cases. 2 Charles Alan Wright, Federal Practice and Procedure: Criminal § 374, at 474-75 (3d ed 2000).