author: KAPSNER, Justice.

text:
    2004 ND 106
    STATE of North Dakota, Plaintiff and Appellee v. Clare N. NORDAHL, Defendant and Appellant.
    No. 20030269.
    Supreme Court of North Dakota.
    June 3, 2004.

      T.L. Secrest, State’s Attorney, Hettinger, ND, for plaintiff and appellee.
    William A. Herauf, Reichert & Herauf, P.C., Dickinson, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Clare N. Nordahl appeals from a sentencing order dated August 7, 2003, which revoked the order deferring imposition of sentence on a Theft by Deception conviction and imposed sentence of one year. We affirm.

I.

[¶ 2] During spring 2001, Nordahl traveled to Montana to pre-sell hay, which was to be produced the following summer for area farmers. Nordahl secured contracts with at least 12 Montana farmers who paid for hay in advance in order to receive a discounted rate. At the time he entered into the contracts, Nordahl presumed he would be able to produce a large amount of hay based on the potential availability of additional land. The anticipated additional land was not made available for Nordahl, which dramatically decreased hay available to fulfill the Montana contracts. Nordahl’s hay production was further diminished by poor weather conditions. At the end of the summer, Nordahl did not produce enough hay to fulfill the contracts for which he had already accepted payment.

[¶ 3] Several of the Montana farmers eventually contacted the State’s Attorney and Nordahl was charged with Theft of Property by Deception. On December 26, 2002, Nordahl entered into a plea agreement, which reduced the charge from a class B felony to a class A misdemeanor. The agreement stated Nordahl would pay restitution in the amount of $107,897.15 to the 12 victims who came forward. The district court ordered deferred imposition of sentence for two years subject to various conditions. The operative condition in the plea agreement for this appeal was that Nordahl make restitution by March 15, 2003. Nordahl agreed to the conditions in the plea agreement, including the amount of the restitution.

[¶ 4] In an effort to satisfy the restitution by the required date, Nordahl began selling assets. Nordahl owned a school bus he used to drive a local school bus route. However, Nordahl had used the bus as collateral in order to obtain loans which were also secured by mortgages on land. Nordahl negotiated a sale of the bus, for which he was able to collect $26,000 in December 2002. The lending bank demanded the proceeds of the bus sale be applied to the loans, which were secured by farmland as well as the bus. Nordahl was unable to use the proceeds of the bus sale to partially satisfy the restitution agreement.

[¶ 5] Nordahl then attempted to sell part of his farm in order to satisfy the restitution obligation. However, due to outstanding debts at the bank, Nordahl was unable to sell the farm. The farm went into foreclosure. Other assets owned by Nordahl, such as farm equipment, were also lost in foreclosure proceedings.

[¶ 6] Eventually, Dakota Hay took over Nordahl’s hay operation and Nordahl worked for the company with 7.5% to 15% of the gross sales being applied to reducing Nordahl’s restitution obligation.

[¶ 7] On August 7, 2003, the district court heard arguments on the State’s petition to revoke probation based upon failure to make restitution. Nordahl attempted to explain why he was deficient in his payment of the restitution obligation. The district court determined Nordahl had violated his plea agreement, which required Nordahl to make restitution by March 15, 2003. The court revoked probation and imposed sentence. Nordahl was sentenced to serve one year in addition to paying restitution.

' [¶ 8] On August 11, 2003, Nordahl filed a motion for stay of execution, a motion for reconsideration, and a motion for sentence to start at a later date. On August 12, 2003, the district court granted Nordahl’s motion for sentence to start at a later date and ordered Nordahl to begin serving his sentence on September 15, 2003. Initially, the district court denied.Nordahl’s request for stay of execution of his sentence; however, the district court granted the request for a stay pending appeal to this Court on October 15, 2003. Nordahl has not further addressed his appeal of the original order denying a stay and we deem that issue as abandoned.

[¶ 9] Nordahl filed this appeal.

II.

[¶ 10] Nordahl raised one issue on appeal. Nordahl asks, “[c]an probation (deferred imposition of sentence) be revoked and the defendant sent to jail solely because the defendant, through no fault of his own, was unable to make the restitution payments?” Nordahl argues the district court abused its discretion when it revoked the deferred imposition of sentence and imposed sentence on Nordahl in which he was required to serve one year in jail because he failed to pay restitution by the date specified in his plea agreement.

[¶ 11] This Court reviews probation revocation proceedings under a two-step analysis. State v. Clark, 2001 ND 194, ¶ 7, 636 N.W.2d 660. First, this Court determines whether the district court’s factual findings were clearly erroneous. Id. “A finding of fact is clearly erroneous if, although there is some evidence to support the finding, we are convinced, on the entire record, a definite mistake has been made.” State v. Gates, 540 N.W.2d 134, 137 (N.D.1995). Second, we determine whether the district court’s decision to revoke or modify probation was an abuse of discretion. Id. A district court “abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” Clark, at ¶ 8 (quoting State v. Sisson, 1997 ND 158, ¶ 7, 567 N.W.2d 839).

[¶ 12] Nordahl concedes the district court’s finding that he violated the conditions of the plea agreement was not clearly erroneous, because Nordahl admits he did not pay the amount required. Nordahl contends the district court abused its discretion when it determined imposition of sentence was appropriate because Nordahl failed to comply with the terms of the plea agreement. Nordahl argues he made a good faith effort to make payment of the restitution obligation, but was unable to do so.

[¶ 13] When restitution is imposed by the district court as part of a defendant’s sentence, the district court must proceed with a restitution hearing pursuant to statute. N.D.C.C. § 12.1-32-08(1). The statute requires the court to consider “[t]he ability of the defendant ... to pay monetary reparations.” N.D.C.C. § 12.1—32—08(l)(b). If a defendant agrees to restitution as part of a plea agreement, he is not entitled to a hearing to determine whether he has the ability to pay restitution. State v. Thorstad, 261 N.W.2d 899, 901 (N.D.1978). Nordahl agreed to pay restitution as a part of his plea agreement, which specifically set out the amount to be paid and the time in which to make payment. The district court was not required to make a finding that the defendant was financially able to comply with the restitution requirement under the rule established in Thorstad. Id.

[¶ 14] In Thorstad, this Court held restitution hearings under N.D.C.C. § 12.1-32-08 were necessary when the defendant pleaded guilty or was found guilty and the amount of restitution was in dispute or uncertain. Id. at 901. However, the Court held, “we do not believe it applies where restitution or reparation was resolved by agreement with the defendant through plea-bargaining procedures even though the specific amount is not known and is to be determined later.” Id.

[¶ 15] In Thorstad, the defendant reached a voluntary plea agreement that included a deferred imposition of sentence and restitution. Thorstad’s probation was later revoked, and the district court sentenced him to a term of confinement and restitution. Thorstad argued restitution was impermissible because there was no hearing held under N.D.C.C. § 12.1-32-08. The Court held that even under a deferred imposition situation, the district court could impose restitution without a hearing when the defendant previously agreed to the amount under a plea agreement. Id. at 903. The Court stated, “12.1-32-08 does not apply in those instances where the restitution or reparation is the result of a plea-bargaining agreement between the State and the defendant.” Id.

[¶ 16] The district court explained in its opinion and order dated September 10, 2003, that Nordahl’s voluntary entrance into the plea agreement waived his right to a restitution hearing 'under N.D.C.C. § 12.1-32-08. The district court stated, “[t]he defendant through his arguments wishes the Court to consider his ability to pay and in effect to conduct a restitution hearing under N.D.C.C. § 12.1-32-08. The defendant waived his right to such a hearing by voluntarily agreeing to pay restitution as a part of the Plea Agreement.”

[¶ 17] After Nordahl agreed to pay restitution as a part of the plea agreement, he began making efforts to pay. These efforts failed and the district court determined revocation of Nordahl’s deferred imposition of sentence was appropriate. Nordahl argues his inability to pay restitution was through no fault of his own; therefore, the district court could not revoke his probation without an inquiry as to the reason for his failure to pay restitution and without investigating other alternatives. We disagree.

[¶ 18] Nordahl relies on Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), to argue a hearing was required to determine if he was financially capable of fulfilling the restitution requirement included in the plea agreement. In Bearden, the Supreme Court decided the issue of whether a court can revoke a defendant’s probation for failure to pay restitution without evidence and findings the defendant was responsible for the failure or that alternative forms of punishment were inadequate. Id. at 665, 103 S.Ct. 2064. In Bearden, the defendant pleaded guilty to burglary and receiving stolen property. Bearden’s sentence, imposed by the court, required him to pay $550 in restitution. Bearden was able to partially satisfy the restitution obligation, but thereafter lost his job and was unable to find a new job despite continuing efforts. When Bearden was unable to satisfy the remainder of the restitution, the trial court revoked Bearden’s probation and sentenced him to the remainder of his probationary period to be served in prison.

[¶ 19] Prior to Bearden’s revocation proceeding, Bearden contacted his probation officer and explained he would be unable to make the required restitution payments within the allotted time frame because he had lost his job. Bearden.had a ninth-grade education and was unable to read, which diminished his ability to find adequate employment.

[¶ 20] Nordahl’s situation is sufficiently distinguishable from the Bearden case. In Bearden, the defendant did not agree to the restitution as part of a plea agreement; rather, restitution was imposed by the court as a part of Bearden’s sentence. Id. at 662, 103 S.Ct. 2064. In this case, Nor-dahl agreed to the restitution amount and agreed to the due date in a plea agreement.

[¶ 21] In a factually similar case, the court of military justice held when a defendant enters into a plea agreement to pay restitution, he is representing to the court he has adequate assets to satisfy the judgment. United States v. Mitchell, 51 M.J. 490, 494 (1999). The Mitchell court distinguished the rule in Bearden based on the presence of a plea agreement entered into freely by both sides. Id. Judge Gierke reasoned, “a probationer who cannot comply with a pretrial agreement through his own fault [should] not be permitted to use indigency to excuse his failure to comply with the agreement.” Id.

[¶ 22] The crux of the decision in Bear-den rested on good faith. Id. Unlike Bear-den, but similar to the defendant in Mitchell, Nordahl knew his financial situation before he entered into the plea agreement with the State’s Attorney. Nordahl was in a position to know the nature and extent of his finances and to evaluate his ability to pay the restitution obligation. Prior to entering the plea agreement, Nordahl knew of the encumbrances on his farm and other property. In his affidavit, Nordahl stated it was his intention to sell the bus to satisfy a portion of the restitution and to sell part of his farm property to satisfy the rest of the obligation. Presumably, Nor-dahl was aware that the outstanding obligations to the bank would go unfulfilled if he paid the restitution obligation in full or, in the alternative, the bank would lose its collateral.

[IT 23] The decision in Mitchell suggests prior knowledge of inability to pay negates the good faith efforts present in the Bearden ruling. Mitchell, at 494. The court in Mitchell explained:

We hold that the Due Process Clause does not protect an accused who offers to make full restitution, knowing full well that he cannot; nor does it protect an accused who fails to take timely and reasonable steps to safeguard his assets so that he can make restitution as promised. Based on the record before him, the convening authority was justified in concluding that appellant either bargained in bad faith by misrepresenting his net worth, or he failed to take reasonable steps to safeguard his assets and convert them to cash after he was convicted and sentenced. The record reflects that appellant either made a bargain that he knew he could not keep, or he allowed his assets to be dissipated instead of taking prompt and reasonable measures to secure them.

Mitchell, at 494.

[¶ 24] Nordahl is presumed to have had knowledge of his assets and obligations at the time he entered into the plea agreement. Nordahl entered into security agreements in order to secure financing. Nordahl knew or should have known the encumbrances on his assets could frustrate his ability to liquidate and fulfill the restitution obligation. In his affidavit, Nordahl states he was unaware that the bus was cross-collateralized in a loan against his farm property. However, Nordahl was aware of the other loans against his farm property and machinery, indicating he knew he did not have sufficient assets to pay the full restitution to the victims.

[¶ 25] In United States v. Foust, the court of military review articulated the distinction between restitution in a plea agreement and restitution imposed through sentencing:

To allow an accused to offer an agreement with a sentence limitation based on restitution being made and then allow him to take advantage of this limitation when restitution is not made is a windfall this court will not permit. Although the Supreme Court has disallowed confinement or an increase in confinement when restitution was not made, those cases are distinguishable from the case before us. Those cases dealt with restitution and increased confinement as part of the adjudged sentence, something over which the defendants had no control.

25 M.J. 647, 649 (1987) (citing Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971)).

[¶ 26] In this case, Nordahl had control over the plea agreement and its contents. The severity of Nordahl’s offense was lessened from a felony to a misdemeanor based on his agreement to quickly repay the victims. Nordahl’s reliance on the Bearden case is misplaced because allowing a defendant to avoid restitution by subsequently pleading indigency after entering into a valid plea agreement would cause a windfall to the defendant as characterized by the Foust court.

[¶ 27] In the revocation proceeding, the district court explained its reason for imposing the one-year sentence and restitution obligation. The district court emphasized the contractual nature of a plea agreement. The district court stated:

Based on the admission the defendant has failed to make restitution, the Court does find that he has violated the Court’s Order. The difficult question is how to proceed. What seems important to the Court here is that there was a plea agreement in place. The charges were substantially reduced from a felony to a class A misdemeanor as part of that agreement. Under the agreement, the defendant promised the State that by March 1st he would make restitution. He’s failed to do that. Case law says that when a defendant agrees to pay restitution in a plea agreement, a sentencing court orders restitution by virtue of the agreement and not the restitution statute. The significance of that is that it would weigh more heavily with the Court if Mr. Nordahl had been ordered by the Court to pay restitution, then I would be more concerned with his ability to pay and the circumstances that have prevented him from paying. The fact is, he made a promise as part of his plea agreement that he would pay. He’s violated that agreement. There may be circumstances that justify that. But, for whatever reason, he’s violated that agreement and therefore he is in violation of the Court Order. I agree with Mr. Secrest, this is in criminal court. The consequence of violating the Court’s Order is that the Court will revoke his sentence and impose a new sentence.
Being familiar with the case, I agree that the appropriate sentence is one year incarceration at the Adams County Jail. The other terms and conditions of the sentence would be that the restitution obligation would remain. Obviously, if there is an ability to pay restitution the Court might reexamine and consider a Rule 35 reduction in the sentence, but I am imposing one year commencing immediately. Further condition of the sentence is that defendant pay restitution, and that would be according to the previous order, obviously, when he’s able to pay it. I would say within one year’s time that he pay the restitution as ordered. A new criminal judgment will be entered accordingly.

[¶ 28] We affirm the order revoking Nordahl’s deferred imposition of sentence and imposing sentence of one year.

[¶ 29] DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

I concur in the result GERALD W. VANDE WALLE, C.J.


source: Caselaw Access Project

license: Public Domain

text:
    2004 ND 116
    Danielle GREYBULL, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20040040.
    Supreme Court of North Dakota.
    June 3, 2004.
    Todd A. Schwarz (on brief), Bismarck, N.D., for petitioner and appellant.

      Cynthia Mae Feland (on brief), Assistant State’s Attorney, Bismarck, N.D., for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Danielle Greybull appealed from a trial court order denying her application for post-conviction relief. We hold Grey-bull failed to demonstrate that the prosecutor’s notice of intent to enhance her sentence under the special dangerous offender statute was not filed within a reasonable time prior to the trial or that Greybull was prejudiced by a late filing of the notice. We further hold that it was harmless error, under the circumstances of this case, when the trial court imposed an enhanced sentence without having the jury find the predicate facts supporting the enhanced sentence, and we affirm.

I

[¶ 2] In 1997, Greybull was convicted of manslaughter in the stabbing death of Charlene Yellow Bear. The trial court found Greybull to be a dangerous special offender under N.D.C.C. § 12.1-32-09 and sentenced her to the maximum of 20 years in prison. The conviction and sentence were affirmed by this Court in State v. Greybull, 1998 ND 102, ¶ 30, 579 N.W.2d 161. Greybull previously filed two applications for post-conviction relief which were denied. In this third petition for post-conviction relief, Greybull raises two issues on appeal. First, she asserts the Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) decision of the United States Supreme Court should be retroactively applied to her case. Secondly, she asserts the prosecutor did not file a timely notice of intent to enhance the sentence. The trial court, without hearing, denied the application. Our review of a summary denial of post-conviction relief is like the review of an appeal from a summary judgment. Vandeberg v. State, 2003 ND 71, ¶ 5, 660 N.W.2d 568. For summary disposition, the movant bears the burden of showing that there is no dispute to either the material facts or the inferences to be drawn from undisputed facts, and that the mov-ant is entitled to judgment as a matter of law. Id.

II

[¶ 3] Section 12.1-32-09(3), N.D.C.C., requires the prosecutor “at a reasonable time before trial or acceptance by the court of a plea of guilty” to sign and file with the court a notice specifying that the defendant is a special dangerous offender subject to an enhanced sentence under the provisions of the statute. The prosecutor in this case filed such notice 20 days before commencement of the trial. Greybull asserts the prosecutor’s notice did not meet the “reasonable time” requirement of the statute.

[¶4] In State v. Marshall, 1999 ND 242, ¶ 9, 603 N.W.2d 878, this Court rejected the defendant’s argument that he was not given a sufficient opportunity to rebut the State’s exhibits for sentencing him as a special dangerous offender, where the State filed a notice of intention to seek special dangerous offender sentencing about two months prior to the defendant’s conviction. Although the State’s notice in this case was filed only 20 days before commencement of Greybull’s trial, Grey-bull has made no assertion or showing how she was prejudiced by the notice not having been filed earlier. In circumstances involving similar notice requirements, providing notice of less than 20 days before commencement of a criminal trial has been deemed sufficient to constitute timely notice and not reversible error. See State v. Jensen, 333 N.W.2d 686, 695-96 (N.D.1988); see also United States v. McCarthy, 97 F.3d 1562, 1580 (8th Cir.1996).

[¶5] Issues not raised by an applicant for post-conviction relief during the criminal trial, sentencing, on direct appeal, or in prior applications for post-conviction relief are properly dismissed for abuse of process, absent any showing of excuse for failure to timely raise such issues. Steinbach v. State, 2003 ND 46, ¶ 8, 658 N.W.2d 355; Barrera v. State, 2001 ND 18, ¶ 1, 621 N.W.2d 880. Greybull did not raise this issue on her direct appeal nor did she raise it in her previous applications for post-conviction relief. Greybull has not made any showing of excuse or justification for her failure to raise this issue in those prior proceedings. We, therefore, conclude Greybull’s failure to raise this issue until this belated point is an abuse of process. N.D.C.C. § 29-32.1-12.

Ill

[¶ 6] In Apprendi, the United States Supreme Court held that a fact used to enhance a criminal sentence beyond the statutory maximum for the crime committed must be decided by a jury, not the court, beyond a reasonable doubt. It is undisputed, that the Apprendi decision announced a new constitutional rule, but the Court did not address the issue of whether its holding should be applied retroactively.

[¶ 7] In Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the United States Supreme Court held that a new constitutional rule of criminal procedure is not to be applied retroactively to cases on collateral review of final judgments of conviction unless the rule falls within one of two narrow exceptions: (1) when the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, or (2) when the new rule is a watershed rule of criminal procedure whose non-application would seriously diminish the likelihood of an accurate conviction or which requires the observance of procedures that are implicit in the concept of ordered liberty. Using the Teague analysis, the federal courts are divided on the question of whether the Apprendi rule should be applied retroactively in cases involving collateral review of a conviction.

[¶ 8] Greybull asserts the Apprendi rule should be retroactively applied to her case, and she urges this Court to remand for a jury determination whether the facts support an enhanced sentence under N.D.C.C. § 12.1-32-09. Although this Court has not decided whether Apprendi should be applied retroactively in cases involving collateral review of a conviction, we have held that failure to retroactively apply Apprendi can constitute harmless error beyond a reasonable doubt under certain circumstances. Clark v. State, 2001 ND 9, ¶ 9, 621 N.W.2d 576.

[¶ 9] The defendant in Clark was convicted of shooting and killing another man. The trial court enhanced Clark’s sentence under N.D.C.C. § 12.1-32-09. On appeal from a denial of his request for post-conviction relief, Clark argued the Apprendi doctrine should be applied retroactively and the jury allowed to determine whether his sentence should be enhanced under the special dangerous offender statute. In rejecting Clark’s argument this Court reasoned:

It is well-established an appellate court need not address questions, the answers to which are unnecessary to the determination of an appeal. State v. Evans, 1999 ND 70, ¶ 17, 593 N.W.2d 336. We conclude we do not need to resolve at this time the issue of retroactive application of Apprendi. Even if the rule announced in Apprendi were to be applied retroactively, under the circumstances of this case, failure to apply it would constitute only harmless error.
The only predicate fact necessary for the court’s imposition of an enhanced sentence was that Clark used a firearm in committing the crime. Clark concedes the use of a firearm in committing the crime. His only defense at trial was that he was acting in self-defense.... We conclude, therefore, any error in failing to submit the enhanced sentencing fact issues to the jury for consideration is harmless beyond a reasonable doubt. Harmless error is disregarded by the court. State v. Mondo, 325 N.W.2d 201, 203 (N.D.1982); N.D.R.Crim.P. 52(a).

Clark, 2001 ND 9, ¶¶ 9, 16, 621 N.W.2d 576. Under the circumstances in Clark, this Court held that failure to have a jury determine the predicate facts underlying the use of the special dangerous offender statute was, at most, harmless error beyond a reasonable doubt.

[¶ 10] The facts in this case are substantively identical to those in Clark and its holding is dispositive. The one category of offenders deemed, per se, dangerous is the category of offenders who use firearms, dangerous weapons, or destructive devices in the commission of an offense. State v. Wells, 265 N.W.2d 239, 245 (N.D.1978). Greybull used a dangerous weapon, ie. a knife, to kill her victim. Greybull’s defense at her trial was that she was acting in self-defense. The only predicate fact upon which Greybull’s sentence has been enhanced under the special dangerous offender statute is that she used a dangerous weapon to commit her crime. That fact was never in dispute. Following our rationale in Clark, we hold the failure to apply Apprendi retroactively to this case and to have a jury determine the predicate facts underlying the enhanced sentence is, at most, harmless error beyond a reasonable doubt.

IV

[¶ 11] We hold Greybull’s failure to show any excuse for not raising the issue of untimely notice of intent to enhance her sentence under the special dangerous offender statute in prior proceedings makes raising the issue now an abuse of process. We further hold the failure to retroactively apply the Apprendi doctrine to this case, if error, is harmless error beyond a reasonable doubt. We, therefore, affirm the order denying Greybull’s application for post-conviction relief.

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


author: NEUMANN, Justice.

text:
    2004 ND 110
    Timothy J. KARSKY, in his official capacities as Commissioner of the North Dakota Department of Financial Institutions, and as Conservator of NoDak State Trust Company, Plaintiff and Appellee v. Jane Dorothea KIRBY, an individual person, Defendant and Appellant and Dr. Thomas J. Clifford, in his capacity as president of NoDak State Trust Company, Defendant.
    No. 20030354.
    Supreme Court of North Dakota.
    June 3, 2004.

      Scott A. Miller (argued), Assistant Attorney General, and Douglas Bruce Anderson (on brief), Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for plaintiff and appellee.
    Thomas D. Kelsch (argued) and Thomas F. Kelsch (on brief), Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Jane Dorothea Kirby appealed from a district court judgment appointing a receiver to liquidate NoDak State Trust Company (“NoDak”). We hold that Kirby waived her right to an administrative hearing under N.D.C.C. § 6-08-08.1(6) from the State Banking Board’s (“Board”) denial of her application to acquire control of NoDak, and we affirm.

I

[¶ 2] NoDak is a trust company that was formed in the spring of 1963. In 1990, it was placed in conservatorship by the Board. In 2001, defendant Kirby’s husband transferred his stock in NoDak to her when he became seriously ill. Subsequently, the Commissioner of the North Dakota Department of Financial Institutions informed Kirby she had failed to obtain that agency’s approval of the transfer. The Commissioner brought a suit in 2002 to dissolve and liquidate NoDak, asserting the company lacked authority to exercise banking business.

[¶ 3] On February 11, 2003, the parties entered into a stipulation resolving issues raised by the Commissioner. The stipulation provided that Kirby could file an application for approval by the Board for her to acquire control of NoDak. The stipulation was incorporated into a judgment on April 28, 2003.

[¶ 4] Kirby filed an application to acquire control, which was denied by the Board. The Commissioner then filed a motion to reopen the case and requested the district court to appoint a receiver to liquidate NoDak. The court granted the motion and entered judgment in favor of the Commissioner, from which Kirby filed this appeal.

II

[¶ 5] Section 6-08-08.1(6), N.D.C.C., gives an applicant a right to a hearing when an application for approval of the transfer of ownership of a banking institution is denied by the Board:

Within twenty days after receipt of the notice of disapproval, the applicant may request a hearing on the disapproval. The board must conduct a hearing, if requested, under the provisions of chapter 28-32. At the conclusion of the hearing, the board shall by order approve or disapprove the application on the basis of the record at the hearing.

[¶ 6] Kirby claims she was denied her statutory right to a hearing on the Board’s denial of her application to acquire control of NoDak. The district court ruled against Kirby on this issue and explained its reasoning in its November 12, 2003 memorandum opinion:

In mid-February 2003, all of the parties, including Dr. Clifford, entered into a stipulation as a way of resolving the issues in the litigation. The provisions of the stipulation were incorporated into a judgment which was entered of record on April 28, 2003.
[Defendant Kirby was authorized to submit a revised application to acquire control of a trust company and set time lines and standards for an application that if approved by the State Banking Board, could result in restoration of the entity and authorization for Ms. Kirby to transfer ownership interest to new owners for the purpose of capitalizing the trust company and making it operational.
Ms. Kirby, through counsel, did submit documents which she contends constituted a proper application in accordance with the judgment requirements, which application was denied by the Banking Commissioners at their meeting on July 31, 2003. At the same meeting, the Board approved a motion to proceed with the liquidation and dissolution of NoDak State Trust Company, which action gave rise to the present “motion to re-open.”
The crux of the matter presently before the Court, and the issue to be decided, is whether or not the Court can order the appointment of a receiver for purposes of liquidation, or whether such action would be premature and would deprive the defendant Kirby of statutory rights to seek administrative review of the Banking Board’s decision denying her application in July 2003.
It is this Court’s conclusion that the defendant has waived her right to further legal proceedings, and that the appointment of a receiver for purposes of liquidation is both timely and in accordance with the Judgment of the Court.
While in the ordinary course of events a decision of the State Banking Board denying an application would be reviewable in accordance with the statutory provisions cited by the defense, this Court concludes that the agreement reached by the parties and adopted by the Court in its Judgment contemplated that an unsuccessful last application attempt by the defendant would bring a close to the entity known as NoDak State Trust Company.
The language of the Judgment, based on the stipulation, cannot be construed to be anything other than a waiver of additional proceedings if the defendant’s subsequent new application was denied.

[¶ 7] Kirby argues that under the clear and unambiguous terms of the stipulation she was entitled to and did not waive her right to an administrative review of the Board’s decision. Relevant to this issue, the stipulation provides:

N.D.C.C. § 6-08-08.1 (“Sale or purchase of associations, banking institutions or holding companies—Notification to commissioner—Hearing”), in its entirety, and N.D.C.C. Admin. Code Article 13-01.1 (“Department of Financial Institutions”—“Practice and Procedure”), [are] applicable to NoDak State Trust Company.
Defendant Kirby agrees that, should she intend to acquire to control of NoDak Trust, she must submit a revised application ... to the North Dakota State Banking Board for approval or disapproval.
Defendants Kirby and Clifford agree that ... should the North Dakota State Banking Board disapprove defendant Kirby’s application ... the plaintiff may proceed with the administrative or judicial dissolution and liquidation of NoDak Trust, on various grounds, to which they waive any objection, including abandonment of purpose.

[¶ 8] When a stipulation is incorporated into a judgment, we are concerned only with interpretation and enforcement of the judgment, not with the underlying contract. Botner v. Botner, 545 N.W.2d 188, 190 (N.D.1996). Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished. Greenwood v. Greenwood, 1999 ND 126, ¶ 8, 596 N.W.2d 317. The question whether a judgment is ambiguous is a question of law. Id. WTien a judgment is clarified by the same trial judge who entered it, we afford the clarification considerable deference. Orvedal v. Orvedal, 2003 ND 145, ¶ 6, 669 N.W.2d 89.

[¶ 9] By stipulation, as incorporated in the April 28, 2003 judgment, the parties agreed that should the Board disapprove Kirby’s application for transfer the Commissioner may proceed with dissolution and liquidation of NoDak. The trial judge, who presided over the prior proceedings and entered the original judgment, clarified “the language ... cannot be construed to be anything other than a waiver of additional proceedings if [Kirby’s] subsequent new application was denied.”

[¶ 10] Parties to administrative proceedings may, by stipulation, waive their rights to administrative hearings and formal dispositions. Gale v. North Dakota Board of Podiatric Medicine, 2001 ND 141, ¶ 13, 632 N.W.2d 424. We accord the trial court’s clarification of the judgment deference and agree the judgment was unambiguous on this matter. Although the provisions of N.D.C.C. § 6-08-08.1 were applicable to the parties, the judgment contains an explicit exception to the statute’s application, waiving Kirby’s right to a review hearing or to make any objection to the denial of her application by the Board. Kirby voluntarily relinquished her right to a hearing on the Board’s decision, and she cannot now retract or object to the waiver. See Gale, 2001 ND 141, ¶ 14, 682 N.W.2d 424.

Ill

[¶ 11] Because Kirby waived her statutory right to a hearing on the denial of her application for transfer of control, we hold the court’s appointment of a receiver to liquidate NoDak is in accordance with the prior judgment and not premature.

[¶ 12] The judgment of the district court is affirmed.

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


author: MARING, Justice.

text:
    2004 ND 105
    Phyliss BAKER, Petitioner and Appellee v. Gary MAYER, Respondent and Appellant.
    No. 20030324.
    Supreme Court of North Dakota.
    June 3, 2004.

      William Robert Hartl, Rugby, N.D., for respondent and appellant.
    Phyliss Baker (no appearance).
   MARING, Justice.

[¶ 1] Gary Mayer appeals from a disorderly conduct restraining order directing him to have no contact with Phyliss Baker. We reverse, concluding the trial court abused its discretion when it found reasonable grounds existed for a disorderly conduct restraining order against Mayer.

I

[¶ 2] Baker broke off a romantic relationship with Mayer approximately three years before she petitioned the trial court for a restraining order in July 2003, based upon his actions over the prior year.

[¶ 3] In Baker’s Petition for Disorderly Conduct Restraining Order, she alleged Mayer followed her, drove by her home slowly many times, and looked in her home. She submitted a list of dates and times she alleged Baker drove by her home. This list documented that Mayer drove by once on July 20, 2003, once on July 22, 2003, and twice on July 24, 2003. The trial court issued a temporary disorderly conduct restraining order on July 25, 2003, and a hearing on the petition was held on August 20, 2003.

[¶ 4] At the hearing, Baker did not cross examine Mayer, but she did offer additional testimony regarding Mayer’s actions. She testified that Mayer stopped her while in her car at a stop sign to ask her if she wanted to use his vehicle to move, ate at her place of business, asked if she was working or for her work schedule, made unwanted contact through the Internet, and phoned her.

[¶ 5] Mayer testified that he was not following Baker. He testified that he kept a vehicle in a garage approximately one block from Baker’s home and that he would drive by her home to park there and to run the vehicle periodically. He testified that the street has yield signs, that he would look both ways, and that unfortunately her home was on a corner which caused him to look at her home. Mayer testified he could submit to the trial court receipts establishing he was out of town during one day Baker alleged he drove by her home. The trial court stated, “I accept your word for that,” referring to his evidence. Mayer testified that he eats out for almost all his lunches and admitted that some were eaten at Baker’s workplace, but that he was not trying to follow her. Finally, Mayer testified that prior to the temporary restraining order, he did not know Baker wanted no contact with him.

[¶ 6] On July 2, 2003, the trial court issued a disorderly conduct restraining order, ordering Mayer to have no contact with Baker, her property, or her workplace for one year. Mayer appeals the disorderly conduct restraining order. Baker did not submit a brief in this appeal nor did she appear at oral argument before this Court.

II

[¶ 7] A trial court has the discretion to grant a disorderly conduct restraining order, and we will not reverse that decision unless the trial court clearly abused its discretion. Weininger v. Grzeshowiak, 2003 ND 80, ¶ 2, 664 N.W.2d 516, 2003 WL 21511835.

[¶ 8] A victim of disorderly conduct may petition a trial court for a disorderly conduct restraining order in the manner provided under N.D.C.C. § 12.1-31.2-01. A petition for a disorderly conduct restraining order must give the name of the alleged victim, the name of the person allegedly engaged in disorderly conduct, and must allege that the person engaged in disorderly conduct. N.D.C.C. § 12.1-31.2-01(3). The alleged victim must include an affidavit, under oath, containing specific facts and circumstances supporting the need for relief. Id.

[¶ 9] If the petition alleges reasonable grounds for relief, the trial court may issue a temporary restraining order. N.D.C.C. § 12.1-31.2-01(4). A hearing regarding the petition must be held no later than fourteen days after the trial court issued a temporary restraining order. N.D.C.C. § 12.1—31.2—01(5)(c). If, after the hearing, the trial court finds reasonable grounds that the person engaged in disorderly conduct, it may order a disorderly conduct restraining order lasting up to two years. N.D.C.C. § 12.1-31.2-01(5)(d), (6).

[¶ 10] Mayer does not argue that the trial court or the alleged victim failed to use the correct procedure under N.D.C.C. § 12.1-31.2-01. He argues the facts are not sufficient as a matter of law for issuing a one-year disorderly conduct restraining order against him.

Ill

[¶ 11] Mayer argues Baker did not satisfy her burden to show reasonable grounds to believe he engaged in disorderly conduct, as required by N.D.C.C. § 12.1-31.2-01(5). Additionally, Mayer argues Baker failed to show that he intended to adversely affect her safety, security, or privacy or that his actions actually adversely affected her safety, security, or privacy. Finally, Mayer argues there was no evidence that Baker was fearful, intimidated, or that his actions had become a pattern of intimidation.

[¶ 12] 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.” An alleged victim of disorderly conduct must show more than the person’s actions are unwanted; she must show those actions were intended to adversely affect her safety, privacy, or security. Skadberg v. Skadberg, 2002 ND 97, ¶ 6, 644 N.W.2d 873 (quoting Tibor v. Lund, 1999 ND 176, ¶ 9, 599 N.W.2d 301).

[¶ 13] We have held that reasonable grounds for a disorderly conduct restraining order is “synonymous with probable cause.” Tibor, 1999 ND 176, ¶ 7, 599 N.W.2d 301. We have also held that under N.D.C.C. § 12.1-31.2-01, reasonable grounds exist for a disorderly conduct restraining order when a person of reasonable caution would believe the facts and circumstances show that the person committed disorderly conduct. Tibor, at ¶ 7 (quoting Svedberg v. Stamness, 525 N.W.2d 678, 682 (N.D.1994)). “To support a request for a disorderly conduct restraining order, the petitioner must present evidence of specific acts or threats constituting disorderly conduct, and “subjective fear” is not sufficient to support an order.” Tibor, at ¶ 7.

[¶ 14] We have, recognized the ramifications of a disorderly conduct restraining order to the person alleged to have committed disorderly conduct. See Gullickson v. Kline, 2004 ND 76, ¶ 8, 678 N.W.2d 138. A disorderly conduct restraining order significantly restrains a person’s liberty. Id. It totally restricts the right to be in certain places and partially restricts the right to be in other places because generally the person must not go within a certain number of feet of the victim. Id. Further, stigma in the community may result due to the nature of the charge. Id.

[¶ 15] We have repeatedly stated a trial court is in a better position to judge the credibility and demeanor of the witness and to weigh the evidence, and “we will generally defer to its expertise.” Skadberg, 2002 ND 97, ¶ 9, 644 N.W.2d 873 (quoting Svedberg, 525 N.W.2d at 682).

[¶ 16] A person who petitions for a disorderly conduct restraining order must allege specific facts or threats. Tibor, 1999 ND 176, ¶ 7, 599 N.W.2d 301. In this case, the majority of Baker’s allegations were general. For example, Baker generally alleged that Mayer followed her, ate at her place of business, asked if she was working or for her work schedule, made unwanted contact via the computer, and phoned her. She did not give any specific dates or times for these incidents. She did not specify who Mayer asked about her work schedule or when he ate at the restaurant.

[¶ 17] The only specific facts Baker alleged were the four times she documented that Mayer drove by her home and that he stopped her to offer use of his truck to move. Baker documented that Mayer drove by her home once on July 20, 2003, once on July 22, 2003, and twice on July 24, 2003. The trial court indicated it believed Mayer when he testified he had receipts indicating he was out of town on one of these dates, bringing the alleged number of times he drove by Baker’s home to three. In addition, the only fact Baker alleged which might show an intent to adversely affect her safety, security, or privacy was Mayer asking other employees about her work schedule. We have said that “subjective fear” is not enough, and here, Baker did not even allege any fear of Mayer or his actions.

[¶ 18] Mayer testified he kept a vehicle in a garage approximately one block from Baker’s home which he said explained his passing by her home. He testified the street has yield signs so when he looked both ways he would look at her home, which is on the corner. Mayer submitted a receipt showing he was out of town during one of ,the four times Baker alleged he drove by her home. He testified he did offer to let Baker use his truck; he did eat at her workplace, but that he thought she worked in housekeeping not in the restaurant; and he was not trying to follow her. He testified he only once asked a waitress about whether Baker was working. Baker simply did not satisfy her burden to prove, through specific facts and circumstances, that Mayer engaged in disorderly conduct.

[¶ 19] Baker testified Mayer’s actions were unwanted, and the trial court concluded they were unwanted, but we have said merely unwanted actions are not sufficient to justify a disorderly conduct restraining order. Skadberg, 2002 ND 97, ¶ 6, 644 N.W.2d 873 (quoting Tibor, 1999 ND 176, ¶ 9, 599 N.W.2d 301). Baker must show Mayer’s actions were intended to affect her safety, security, or privacy.

[IT 20] We are concerned about Mayer inquiring as to Baker’s work schedule. That fact may be evidence of intent to harass; however, Baker admits the work schedule would not contain her hours as she is an employee who floats wherever help is needed. Further, Baker did not establish a pattern of intrusive behavior that is necessary to support a request for a restraining order.

[¶ 21] Based on the petition and all the testimony in this case, we conclude a person of reasonable caution would not believe that Mayer’s actions constituted the offense of disorderly conduct or that he intended his actions to affect Baker’s safety, security, or privacy. Therefore, the trial court abused its discretion when it ordered a disorderly conduct restraining order against Mayer.

IV

[¶ 22] We reverse the one-year disorderly conduct restraining order against Mayer.

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


author: VANDE WALLE, Chief Justice. MARING, Justice,

text:
    2004 ND 111
    Marcia FAST and Gary Fast, Plaintiffs and Appellants v. STATE of North Dakota, Defendant and Appellee.
    No. 20030310.
    Supreme Court of North Dakota.
    June 3, 2004.

      Steven M. Bitz (argued) and David D. Schweigert (appeared), Bucklin, Klemin & McBride, Bismarck, ND, for plaintiffs and appellants.
    Jean R. Mullen, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Marcia and Gary Fast appealed from summary judgment dismissing their negligence action against the State. We affirm.

I

[¶ 2] Marcia and Gary Fast traveled to Minot from Frazer, Montana, on April 14, 2000. A spring snowstorm occurred in Minot on April 13 and April 14, and there was snow on the ground when the Fasts arrived at approximately 9:00 p.m. on April 14. Upon their arrival in Minot, the Fasts visited their granddaughter at Pioneer Hall on the Minot State University (“MSU”) campus. As the Fasts were leaving Pioneer Hall around 1:00 a.m. on April 15, 2000, Marcia Fast slipped and fell on ice on the sidewalk leading to the parking lot. She broke her right ankle as a result of the fall. The record indicates that, following the snowstorm, MSU cleared snow from the sidewalk using a Bobcat with a bucket. Photographs taken shortly after Ms. Fast fell indicate a small finger of snow remained on the sidewalk as a result of MSU’s snow removal efforts, and a nearby area of the sidewalk had a low area in which melting snow pooled and subsequently froze (“pooled ice”).

[¶ 3] The Fasts sued the State, alleging negligence for failing to properly remove snow and ice accumulations from the sidewalk and warn individuals of the hazardous condition. The State moved for summary judgment. The district court initially denied the State’s motion because it determined a genuine or material issue of fact existed regarding where Ms. Fast fell. The State moved for reconsideration, claiming the Fasts did not submit any admissible evidence indicating Ms. Fast fell on the pooled ice instead of on ice located just below the nearby finger of snow that remained on the sidewalk. The State contended the district court incorrectly relied upon a conflict between Ms. Fast’s deposition testimony and unsupported allegations in the Fasts’ pleadings when it determined a material issue of fact existed regarding where Ms. Fast fell. Upon reconsideration, the district court granted summary judgment in favor of the State, concluding the only competent, admissible evidence—photos from Ms. Fast’s deposition in which she marked the location of her fall—indicated she fell just below the finger of snow on the sidewalk and not on the pooled ice. The district court concluded:

that there is no duty to completely remove snow and ice from sidewalks and that liability does not attach when injuries are sustained in falls where ice forms from melting snow that has been piled as a result of snow removal efforts. Deposition testimony of Minot State University maintenance employees explained the University’s snow and ice removal policies, and photographs taken right after the incident and later in the morning of the same day of the incident indicate that the sidewalks in the area of Pioneer Hall and the parking lot were reasonably clear of snow and ice.
The Court finds that because the evidence indicates that Ms. Fast did not fall in the area of pooled water/ice, any duty [the State] might have had to take remedial measures in regard to the pooled area of water/ice which may have created a hazard for pedestrians is not a relevant issue of fact or law in this case.

[¶ 4] On appeal, the Fasts contend the district court erred in granting summary judgment because material issues of fact exist. Further, they contend the district court erred in finding the State did not owe a duty to Ms. Fast to take remedial measures with regard to the sidewalk.

II

[¶ 5] Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record. Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343.

[Sjummary judgment ... is a- procedural device under N.D.R.Civ.P. 56 for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence.

Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257 (citations omitted).

[¶ 6] The party seeking summary judgment has the burden of showing no genuine issue of material fact exists. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343. However,

the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.

Id. (quoting Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46).

A.

[¶ 7] Actionable negligence consists of a duty, breach, and an injury that was proximately caused by the breach. Id. at ¶ 11. Negligence actions are ordinarily inappropriate for summary judgment because they involve questions of fact. Groleau v. Bjornson Oil Co., Inc., 2004 ND 55, ¶ 6, 676 N.W.2d 763. However, issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts. Id.

[¶ 8] MSU is a part of the state higher education system, and any claim against it is an action against the State governed by N.D.C.C. ch. 32-12.2. Skjervem v. Minot State Univ., 2003 ND 52, ¶ 12, 658 N.W.2d 750. Under N.D.C.C. § 32-12.2-02(1), “[t]he state may only be held liable for money damages for ... an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant.” Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Green, 2004 ND 12, ¶ 8, 673 N.W.2d 257. If a landowner permits dangerous conditions to exist on the premises the landowner must take reasonable measures to prevent injury to those whose presence on the property reasonably can be foreseen. Groleau, 2004 ND 55, ¶ 16, 676 N.W.2d 763.

[¶ 9] In Skjervem, we considered an MSU student’s claim that MSU negligently maintained its sidewalk because it did not attempt to correct a known hazardous condition. 2003 ND 52, ¶ 11, 658 N.W.2d 750. Skjervem was seeking damages for injuries suffered when she fell on ice that had accumulated on the sidewalk outside her campus apartment building. Id. at ¶ 2. Skjervem did not allege N.D.C.C. § 32-12.2-02(3)(f) impliedly created liability upon the State for icy conditions upon a sidewalk abutting a state-owned building or parking lot. Id. at ¶ 9. Section 32-12.2-02(3)(f) provides that the State is immune from “[a] claim resulting from snow or ice conditions, water, or debris on a highway or on a public sidewalk that does not abut a state-owned building or parking lot, except when the condition is affirmatively caused by the negligent act of a state employee.” Instead, she claimed MSU negligently maintained its property because it had knowledge of a hazardous condition and did not correct it. Skjervem, at ¶ 13. We recognized:

Courts in other jurisdictions faced with similar circumstances have generally concluded that the state’s immunity for design defects does not insulate the state in perpetuity, but the state may be liable if it has knowledge that it has created a hazardous condition and does not take reasonable measures to alleviate the danger.

Id. at ¶ 14. However, we did not decide whether we would follow those jurisdictions because Skjervem failed to provide competent, admissible evidence in support of her assertion that MSU had knowledge of the alleged dangerous condition. Id. at ¶¶ 17-18. Similarly, we need not decide the issue in this case because the Fasts have not alleged the State should be liable based on the design of the sidewalk.

B.

[¶ 10] In Jackson v. City of Grand Forks, the Court affirmed a verdict finding the city liable for injuries sustained after the plaintiff slipped and fell on ice located on a city sidewalk. 24 N.D. 601, 613, 140 N.W. 718, 721 (1913). The Court stated:

The general rule, and, we believe, the better rule, however, is that the liability should be based upon negligence and upon what is reasonable under the circumstances, paying attention to the climatic conditions. What would be reasonable, for instance, in Southern Illinois might not be reasonable in North Dakota or Montana; but reasonableness, and a reasonable regard for public safety, should be the criterion. The municipality under this rule is bound merely to exercise reasonable care and diligence to render the sidewalks safe. Where the sidewalk is properly constructed, the mere fact that it is rendered slippery by the presence of ice and snow will not in itself render the city liable for resulting injuries. Where, however, snow or ice is suffered to remain for a long time until it forms into mounds or ridges, and becomes itself an obstruction as it were to the sidewalk, or on account of its depth and quantity, a mass which in every thaw may be trampled into deep ruts and ridges which in the night following or in a close succeeding freeze may become dangerous and an occasion for further obstruction, the municipality may be held liable. It will be held liable, if not for the accumulation, then for not using reasonable means, such as scattering sand, gravel, or ashes to prevent the danger.

Id. at 618, 140 N.W. at 723. In Jackson, the ice and snow had been allowed to accumulate throughout the winter and the Court mentioned that if it had not been allowed to become more dangerous than other sidewalks in the area, it would have had difficulty sustaining the verdict in favor of the plaintiff. Id. at 618-19, 140 N.W. at 723.

[¶ 11] Later cases have recognized a distinction between natural and artificial snow and ice accumulations on sidewalks abutting private property. The federal district court has interpreted North Dakota law as follows:

[A] property owner has no duty under North Dakota law to a pedestrian to remove a natural accumulation of snow and ice from the sidewalk abutting his property, but if he creates an unnatural condition on the sidewalk that is unreasonably dangerous, he may be liable for injuries caused thereby to pedestrians on the sidewalk.

Lahren v. United States, 438 F.Supp. 919, 922 (D.N.D.1977) (evaluating plaintiffs claim for damages as a result of injuries sustained when he crossed a ridge of snow extending onto the sidewalk in front of the Fargo post office).

This court, in Clark v. Stoudt, 73 N.D. 165, 12 N.W.2d 708 (1944), paragraph 4 of the syllabus, stated:
“Owners and occupants of property are not liable to a pedestrian for injuries resulting from a fall caused by slipping on snow and ice which, due to natural weather conditions, accumulated on the sidewalk in front of the property ...”
An exception to the general rule is that the abutting property owner or occupant who constructs or maintains upon his property a canopy in such a manner as to cause an artificial discharge and accumulation of water upon the sidewalk, which, when frozen, makes the use of the sidewalk dangerous, will be held liable to one who, being rightfully upon the sidewalk, is injured in consequence of such dangerous condition.

Strandness v. Montgomery Ward, 199 N.W.2d 690, 691 (N.D.1972) (citations omitted). In Clark and Lahren, the primary duty regarding ice and snow accumulations was upon the municipality. 73 N.D. at 172, 12 N.W.2d at 711; 438 F.Supp. at 921. Although these eases involved accidents on municipal sidewalks, they are persuasive regarding the liability of a landowner, in this case the State, for injuries sustained as a result of snow and ice conditions.

C.

[¶ 12] The Fasts do not rely upon N.D.C.C. § 32—12.2—02(3)(f), nor do they argue a design defect caused the slippery condition. Rather, they contend the State was negligent for failing to properly remove snow and ice accumulations from the sidewalk and warn individuals of the hazardous condition. They allege the State should be liable because it was aware that water pooled in the low area of the sidewalk and froze, creating a dangerous situation. The record does not support the Fasts’ contention that Ms. Fast fell in the area of pooled ice, and mere knowledge that melting snow may run onto a sidewalk and freeze is not enough to expose a landowner, who has cleared the snow from the sidewalk, to liability. Although there may be instances where the State could be hable for injuries sustained as a result of a slip and fall on snow or ice, we agree with the district court that it should not be liable, absent some further act or omission creating an unreasonably dangerous condition, “when injuries are sustained in falls where ice forms from melting snow that has been piled as a result of snow removal efforts.” It is desirable for landowners to remove snow from sidewalks and they should not be liable for snow removal efforts that do not create an unreasonably dangerous or more hazardous condition. See Otis v. Anoka-Hennepin Sch. Dist. No. 11, 611 N.W.2d 390, 393 (Minn.Ct.App.2000) (“an accumulation of shoveled snow is a necessary, and desired, artificial condition”); Miehl v. Darpino, 53 N.J. 49, 247 A.2d 878, 881 (1968) (“Patently, some cleaning of snow is better than none. The public is greatly benefited [sic] even by snow removal which does not attain the acme of perfection of ‘broom swept’ streets”). We need not decide whether the snow and ice accumulation in this case was natural or artificial because, given the climate in North Dakota, it would be unreasonable and unduly burdensome to hold the State liable without some further act or omission on its part creating an unreasonably dangerous condition. See Lahren, 438 F.Supp. at 922 (the depositing of snow along the outer edge of the sidewalk did not create an unnatural, unreasonably dangerous condition that could result in liability). A review of the record reveals no competent, admissible evidence from which a reasonable fact finder could find the State liable for Ms. Fast’s injuries.

[¶ 13] We affirm.

[¶ 14] CAROL RONNING KAPSNER, DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

concurring in the result.

[¶ 15] The evidence indicates there was a snow storm on April 13, 2000, and April 14, 2000. The State cleared the sidewalk sometime on the morning of April 14, 2000. The Fasts arrived at approximately 9:00 p.m. on April 14, 2000, and left their granddaughter’s residence hall at approximately 1:00 a.m. on April 15, 2000. It was at that time that Marcia Fast slipped and fell on the sidewalk. There is no evidence the State negligently removed the snow from the sidewalk. There is no evidence the ice on the sidewalk was in existence for a long period of time. Therefore, I concur in the result that no jury could conclude under these facts that the State acted unreasonably in its removal of ice and snow.

[¶ 16] Mary Muehlen Maring


text:
    2004 ND 108
    Shawn M. KOSTRZEWSKI, Plaintiff and Appellant v. Amy L. FRISINGER, Defendant and Appellee.
    No. 20040009.
    Supreme Court of North Dakota.
    June 3, 2004.
    Alisha L. Ankers, Fargo, N.D., for plaintiff and appellant.

      Theresa L. Zimmerman, American Legal Services, Bismarck, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Shawn Kostrzewski appeals the denial of his motion to dismiss and objection to Amy Frisinger’s registration of a Minnesota judgment establishing custody of their child. We affirm that part of the trial court’s order which confirms the registration of the August 13, 2001 Minnesota child custody judgment. We vacate that part of the trial court’s order which concludes it has jurisdiction to modify the judgment under N.D.C.C. § 14-14.1-14 because the trial court exceeded its authority, both proeedurally and substantively, by deciding that issue.

I

[¶ 2] The parties never married, but had one child together on November 5, 1999. In February 2001, Frisinger and the child stayed with friends in North Dakota. They moved to Fargo, North Dakota, with Frisinger’s new husband in March 2001.

[¶ 8] In April 2001, Kostrzewski commenced the initial child custody determination in Minnesota and requested custody of the child. On August 13, 2001, the Minnesota District Court entered a judgment identifying Kostrzewski as the father of the child and establishing a visitation schedule. Frisinger was granted physical custody of the child.

[¶ 4] Kostrzewski was informed by a letter dated July 8, 2003, that Frisinger was moving to Burleigh County, North Dakota. Kostrzewski did not object to the move because Frisinger agreed to alter the visitation agreement in light of her move. Frisinger, her new husband, and the child now live in Burleigh County, North Dakota.

[f 5] Kostrzewski and Frisinger failed to come to an agreement to alter the visitation, and on September 2, 2003, Kos-trzewski filed, in Clay County, Minnesota, a motion to amend the judgment to grant him compensatory visitation. It is undisputed that Frisinger and the child have lived in North Dakota since February 2001.

[¶ 6] On September 29, 2003, Frisinger filed the Minnesota judgment with the Burleigh County District Court and served notice of filing on Kostrzewski. Kostrzew-ski brought a motion to dismiss and objected to the filing of the foreign judgment on October 13, 2003. The trial court denied his motion to dismiss for lack of jurisdiction and found that the child had resided in Burleigh County, North Dakota, for more than six months prior to the filing of the foreign judgment and that Kostrzewski had not objected to the relocation from Minnesota to North Dakota. The trial court concluded it had jurisdiction under N.D.C.C. § 14-14.1-14, denied Kostrzew-ski’s motion, and denied his objection to the confirmation of the foreign judgment.

[¶ 7] Kostrzewski appeals the order denying his motion to dismiss and his objections to the confirmation of the Minnesota judgment. We affirm the order in part and vacate it in part.

II

[¶ 8] Frisinger argues the order in this case is a non-appealable interlocutory order denying Kostrzewski’s motion to dismiss. She is correct that we must have jurisdiction before we can consider the merits of an appeal. The denial of a motion to dismiss for lack of jurisdiction is a non-appealable interlocutory order. Henry v. Securities Com’r, 2003 ND 62, ¶ 9, 659 N.W.2d 869 (citing cases holding the same); see also N.D.C.C. § 28-27-02. It is possible to appeal an: interlocutory order if the trial court grants a party’s request to enter a final judgment under N.D.R.Civ.P. 54(b). Koztrzewksi did not request the trial court enter a final judgment under N.D.R.Civ.P. 54(b).

[¶ 9] Kostrzewski argues the order affects “a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken,” which, he argues, makes the order appealable. See N.D.C.C. § 28-27-02(1). In the alternative, Koztrzewksi requests that we exercise our supervisory powers over the lower courts under N.D. Const. Art. VI, § 2, and reverse the dismissal of his motion and objection.

[¶ 10] We need not exercise our supervisory powers over the lower courts because this order is appealable ■. under. N.D.C.C. § 28-27-02(5) as an order deciding the merits of an action. We have repeatedly held that we will consider a motion’s substance rather than its title to ascertain the correct nature of the pleading. Alerus Financial, N.A v. Lamb, 2003 ND 158, ¶ 7, 670 N.W.2d 351. Koz-trzewski’s motion, while labeled a motion to dismiss, objected to the registration of the Minnesota child custody judgment. Objection to registration of a foreign custody judgment is allowed under N.D.C.C. § 14-14.1-25(4).

[¶ 11] The trial court’s order essentially denied Kostrzewski’s objections, confirmed the registration of the Minnesota child custody judgment, and held that North Dakota trial courts have jurisdiction to modify this foreign custody judgment. The denial of objections and confirmation of a foreign custody judgment is appeal-able because confirmation of a foreign child custody judgment decides the validity of a foreign child custody judgment for registration and enforcement purposes. Therefore, the order is appealable and we will address the merits of Kostrzewski’s objections.

Ill

[¶ 12] Frisinger filed the Minnesota judgment under the general filing of foreign judgments statute, N.D.C.C. § 28-20.1-02. However, N.D.C.C. § 14-14.1-25 specifically sets out the procedure to register a foreign child custody judgment and to contest registration. While Frisinger utilized the general filing of foreign judgments statute, we have repeatedly stated that a specific statute governs over a more general statute as a general rule of statutory construction. Schempp-Cook v. Cook, 455 N.W.2d 216, 217 (N.D.1990). Therefore, we look to N.D.C.C. § 14-14.1-25 for the proper procedure to contest the validity of a registered child custody judgment.

[¶ 13] North Dakota has codified the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act at N.D.C.C. §§ 14-14.1-01 through 14-14.1-37. Under N.D.C.C. § 14-14.1-25(1), a party may register a foreign child custody judgment in North Dakota “with or without a simultaneous request for enforcement.” In this case, Frisinger requested only registration of the foreign judgment.

[¶ 14] A person desiring to register a foreign child custody judgment must send to the district court:

a. A letter or other document requesting registration;
b. Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and
c. Except as otherwise provided in section 14-14.1-20, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.

N.D.C.C. § 14—14.1—25(l)(a)—(c).

[¶ 15] Following the request to register the custody judgment, notice of the registration must be served by the registering court on the persons granted custody or visitation in the judgment. N.D.C.C. § 14—14.1—25(3)(b). In addition, the registering court must serve notice that those persons have twenty days to request a hearing to contest the validity of the judgment. N.D.C.C. § 14—14.1—25(3)(b). The court shall confirm the registered order unless a person contesting the validity of the registered order establishes that:

a. The issuing court did not have jurisdiction under sections 14-14.1-12 through 14-14.1-21;
b. The child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under sections 14-14.1-12 through 14-14.1-21; or
c. The person contesting registration was entitled to notice, but notice was not given in accordance with section 14-14.1-07, in the proceedings before the court that issued the order for which registration is sought.

N.D.C.C. § 14-14.1-25(4).

[¶ 16] Under N.D.C.C. § 14-14.1-25(4), Kostrzewski could only contest the validity of the judgment on three grounds. There was no motion to modify the Minnesota child custody judgment pending before the North Dakota trial court. The only issue properly before the trial court was whether the Minnesota judgment was valid. Nevertheless, Kostrzewski argued the North Dakota trial court did not have jurisdiction to decide visitation issues; therefore, the judgment could not be registered. Kostrzewski requested that the trial court allow his Minnesota motion to go forward because Minnesota still had jurisdiction over the custody of the child. Koztrzewk-si’s jurisdictional argument, however, does not fall within N.D.C.C. § 14-14.1-25(4)(c), which provides the grounds for contesting jurisdiction of the issuing court when registration is requested.

[¶ 17] The trial court erred when it proceeded to decide whether North Dakota courts have jurisdiction over visitation and child custody issues. Mere registration of a foreign child custody judgment does not require determination of the registering court’s jurisdiction under N.D.C.C. § 14-14.1-14. In addition, Koz-trzewksi did not establish any of the grounds to object to registration under N.D.C.C. § 14-14.1-25(4). By requesting only registration of the foreign judgment, Frisinger effectively limited the trial court’s jurisdiction to the issue of the validity of the registered judgment. Therefore, the trial court erred when it reached the issue of whether North Dakota courts have jurisdiction to modify the Minnesota child custody judgment.

IV

[¶ 18] We affirm that part of the trial court’s order confirming registration of the Minnesota child custody judgment. We vacate that part of the trial court’s order concluding it had jurisdiction under N.D.C.C. § 14-14.1-14 because the trial court exceeded its authority, both procedurally and substantively, by deciding that issue.

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

      . In Minnesota, compensatory visitation is allowed for denial or interference with visitation. M.S.A. § 518.175(6). Kostrzewski included documents in a supplement from this Minnesota case, but we decline to consider these documents as they were not part of the record at the trial court level. See N.D.R.App.P. 30(a); Syvertson v. State, 2000 ND 185, ¶ 36, 620 N.W.2d 362 (stating that we will not consider documents which are not part of the record below).


author: SANDSTROM, Justice.

text:
    2004 ND 114
    CITY OF MANDAN, Plaintiff and Appellee v. Kimberly SPERLE, Defendant and Appellant.
    No. 20040006.
    Supreme Court of North Dakota.
    June 3, 2004.

      Brian David Grosinger, Assistant City Prosecutor, Mandan, N.D., for plaintiff and appellee.
    Kent M. Morrow, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Kimberly Sperle appeals from a judgment of conviction upon a jury verdict finding her guilty of disorderly conduct in violation of a Mandan city ordinance. We hold there is sufficient evidence to sustain the jury’s verdict, and the trial court did not commit obvious error in submitting a general verdict form for the jury’s decision. We affirm.

I

[¶ 2] At 9:30 p.m. on May 28, 2003, off-duty Burleigh County Deputy Sheriff Sharon Vogel observed Sperle drive into the Mandan Village Mart parking lot. When Sperle entered the mall laundromat, her small Pomeranian dog jumped out of the car and ran into the street. Vogel observed Sperle return to the car, back out of the parking lot, and then call for and grab the dog by the collar, causing it to yelp. Vogel testified Sperle struck the dog a couple of times. Vogel then exited her vehicle and yelled at Sperle, “What the ... do you think you’re doing to that dog?” This caused Sperle to jump out of her car and quickly approach Vogel, who thought Sperle was going to hit her. Sperle called Vogel a vulgar name and pushed Vogel on the shoulder. Then Sperle said, “You and me, right now, right here in the parking lot,” indicating, in Vo-gel’s opinion, that Sperle wanted to fight. After Sperle twice pushed Vogel on the shoulder, Vogel used a mall phone to call the police. When Vogel returned from making the call, Sperle shoved Vogel in the back and then drove away.

[¶ 3] Sperle was charged with cruelty to animals and disorderly conduct under the Mandan city ordinances. A jury found Sperle not guilty on the cruelty to animal charge but guilty of disorderly conduct.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P 4(b). This Court has jurisdiction under N.D. Const, art. VT, §§ 2 and 6, and N.D.C.C. §§ 29-01-12 and 29-28-06.

II

[¶ 5] On appeal, Sperle contends there is insufficient evidence to sustain the jury’s verdict of guilty on the charge of disorderly conduct. Following the close of evidence in the case, Sperle moved for and was denied a judgment of acquittal, thereby preserving this issue for appeal. See City of Grand Forks v. Dohman, 552 N.W.2d 66, 67 (N.D.1996).

[¶ 6] In a criminal case, due process requires the prosecution to prove each element of the offense beyond a reasonable doubt. State v. Beciraj, 2003 ND 173, ¶ 9, 671 N.W.2d 250. When a defendant challenges the sufficiency of evidence to sustain a conviction, we will not weigh conflicting evidence or judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to determine whether there is substantial evidence to warrant a conviction. Id. The party challenging sufficiency must show that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. State v. Wilson, 2004 ND 51, ¶ 6, 676 N.W.2d 98.

[¶ 7] The jury was instructed that the prosecution must prove beyond a reasonable doubt the following elements of the disorderly conduct charge:

1. That on or about the 28th day of May, 2003;
2. In the City of Mandan, Morton County, North Dakota;
3. The defendant, Kimberly Sperle;
4. Engaged in fighting, or in violent, tumultuous or threatening behavior; made unreasonable noise; used obscene language or made an obscene gesture in a public place; created a hazardous, physically offensive, or seriously alarming condition by any act which served no legitimate purpose; or otherwise engaged in harassing conduct by means of intrusive or unwanted acts, words, or gestures that were intended to adversely affect the safety, security, or privacy of another person; and
5. The defendant did so knowingly with the intent to harass, annoy or alarm another person, or in reckless disregard of the fact that another person was harassed, annoyed or alarmed .by the behavior.

[¶ 8] Vogel testified that Sperle pushed her three times, used offensive language, and by words and threatening gestures indicated she wanted to fight with Vogel. Vogel testified she felt harassed and annoyed by this conduct. Her testimony was corroborated by Lewis Magnan, who observed the confrontation from inside the laundromat. Magnan testified that he saw Sperle push Vogel and use abusive language.

[¶ 9] Although Sperle testified that Vo-gel initiated the encounter by grabbing and shaking Sperle, the entire evidence, when viewed in the light most favorable to the verdict, is sufficient for a jury to have reasonably found that Sperle engaged in violent, threatening behavior and used abusive language, either knowingly or in reckless disregard, that resulted in Vogel’s being harassed, annoyed, and alarmed by the behavior. We conclude that on this evidence, the jury, as a rational factfinder, could have found Sperle guilty of disorderly conduct beyond a reasonable doubt. See City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 13, 639 N.W.2d 466.

hi

[¶ 10] Sperle also contends her due process rights under the Fifth and Sixth Amendments of the United States Constitution were violated because the verdict form submitted by the court “permitted the jury to finding Sperle guilty of disorderly conduct, without having to choose and find unanimously which of the four subsections she violated” under the ordinance. Sperle argues the verdict form should have required the jury to unanimously find one specific act constituting disorderly conduct in violation of the ordinance rather than having allowed the possibility that individual jurors could find Sperle committed different acts constituting disorderly conduct in violation of the ordinance.

[¶ 11] Sperle did not raise this issue before the trial court, and she did not object to the jury instructions or the jury verdict form. An issue not raised in the trial court is generally not reviewable by this Court, unless the issue constitutes obvious error under N.D.R.Crim.P. 52(b). State v. Lemons, 2004 ND 44, ¶ 15, 675 N.W.2d 148. Under N.D.R.Crim.P. 52(b) we may not reverse unless the defendant shows error that is plain and affects substantial rights. Id. We exercise our power to notice obvious error cautiously and only in exceptional circumstances when the accused has suffered serious injustice. State v. Mathre, 1999 ND 224, ¶ 5, 608 N.W.2d 173.

[¶ 12] Special verdicts or interrogatories in criminal cases are disfavored because they may coerce a jury into rendering a guilty verdict or destroy the ability of the jury to deliberate upon the issue of guilt or innocence free of extraneous influences. State v. Steen, 2000 ND 152, ¶ 9, 615 N.W.2d 555. Under N.D.R.Crim.P. 31(e) a special verdict form is authorized in very limited circumstances in criminal trials, relating only to certain defenses raised by the defendant and to overt acts of treason. This case does not involve such circumstances.

[¶ 13] Mandan City Ordinance § 19-05-01 permitted the jury to find Sperle guilty of disorderly conduct through a number of alternative behaviors, any one of which is deemed disorderly conduct. It provides:

A person is guilty of an offense if, with intent to harass, annoy or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed or alarmed by his behavior, that person:
1. Engages in fighting, or in violent, tumultuous or threatening behavior;
2. Makes unreasonable noise;
3. In a public place, uses abusive or offensive language, or makes an obscene gesture, under circumstances in which such language or gesture by its very utterance or gesture, inflicts injury or tends to incite an immediate breach of the peace;
4. Obstructs vehicular or pedestrian traffic, or the use of a public facility;
5. Persistently follows a person in or about a public place or places;
6. While loitering in a public place for the purpose of soliciting sexual contact, the person solicits such contact;
7. Creates a hazardous, physically offensive or seriously alarming condition by any act which serves no legitimate purpose;
8. Panhandles or begs for money.

The alternative behaviors include fighting, threatening behavior, and abusive or offensive language that results in harassing, annoying, or alarming another person. Although Sperle did not object to the jury’s instructions or verdict form, she now asserts the court should have submitted a form requiring the jury to specifically indicate the particular conduct that violated the ordinance.

[¶ 14] In support of her position, Sperle relies upon the United States Supreme Court decision in Schad v. Arizona, 501 U.S. 624, 633, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), in which the Court stated the Due Process Clause would not permit a state to convict someone under a charge of crime so generic that any combination of jury findings would suffice for conviction. On close examination, the Schad decision belies Sperle’s argument that a special verdict was required in this case to have the jury indicate which specific actions by Sperle constituted disorderly conduct. In Schad, the United States Supreme Court held the defendant’s due process rights were not violated when he was convicted of first degree murder under instructions that did not require the jury to agree on the alternative theories of premeditated and felony murder. Schad, 501 U.S. at 648, 111 S.Ct. 2491. In reaching its decision, the Court reasoned:

We have never suggested that in returning general verdicts ... the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.”

Schad, at 632-33, 111 S.Ct. 2491 (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring)). The Court continued:

[Legislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes.
If a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.

Schad, at 636, 111 S.Ct. 2491 (footnote omitted).

[¶ 15] The ordinance in this case permitted the jury to find Sperle guilty of disorderly conduct through a number of alternative behaviors, any one of which is deemed disorderly conduct and none of which is exclusive. The alternative behaviors include fighting, threatening behavior, and abusive language that result in harassing another person. The evidence in this case would support a rational factfinder’s concluding that Sperle had committed all of these behaviors, any one of which was sufficient to constitute prohibited conduct and a violation of the ordinance. We conclude Sperle has failed to show the alleged error by the court in submitting a general verdict form constitutes an exceptional case involving obvious serious injustice. We therefore find no error—obvious or otherwise—in the trial court’s submission of the general verdict form to the jury.

IV

[¶ 16] Concluding there is sufficient evidence to sustain the jury’s verdict and the court did not commit error in submitting a general verdict form for the jury’s determination, we affirm the judgment of conviction.

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