text:
    STATE of Minnesota, Respondent, v. Verdel Lance HOUSTON, Appellant.
    No. CX-02-371.
    Court of Appeals of Minnesota.
    Jan. 7, 2003.

      ■Mike Hatch, Attorney General, St. Paul, MN; and Amy .Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, Minnesota Public Defender, Sara L. Martin, Assistant Public Defender, Minneapolis, MN, for appellant.

      Considered and decided by SHUMAKER, Presiding Judge, MINGE, Judge, and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

MINGE, Judge

Appellant seeks review of his felony conviction, arguing, inter alia, that the police officers did not have a reasonable, articula-ble suspicion to stop appellant and seize evidence and that the jury should have been given a specific instruction that “fleeting” control of a firearm does not constitute possession. We affirm.

FACTS

At 2:00 a.m. on April 19, 2001, Minneapolis police officers Brian Thureson and Stephen McBride heard what they thought was a single gunshot or a car backfiring in a high-crime area of Minneapolis. The officers stopped a person on the street and asked if he heard the possible gunshot. He pointed south. As the officers continued in that direction, they spotted three men emerging from an alley. When the officers pulled alongside the men, two of the men stopped. Appellant Verdel Houston, the third man, continued walking.

Both of the officers testified that as they approached the three, appellant appeared nervous, that as he walked away he looked over his shoulder, and that he grabbed the waistband of his pants in a gesture that was described as either preventing an object from falling out of his pants or preventing his pants from falling down. According to the officers, it was possible that appellant had any kind of object in his pants, including a cell phone, knife, bottle, hairbrush, narcotics, or some other contraband or weapon.

After walking a short distance, appellant started running. At that point, Officer McBride got out of the patrol car and started chasing appellant on foot. While McBride was running, he used his radio to tell Officer Thureson what was happening. Officer McBride communicated that he saw appellant toss what appeared to be a gun over a fence and into the yard of a house. Officer Thureson turned on the emergency lights on the patrol vehicle and followed appellant, cutting him off at the corner. While Officer Thureson apprehended appellant, Officer McBride retrieved the gun. Officers McBride and Thureson advised appellant of his rights, questioned him, and arrested him for unlawful possession of a firearm.

As a result of this incident, appellant was charged with felony possession' of a firearm. The complaint alleged violations of Minn.Stat. §§ 624.713, subd. 1(b), 609.11 (2000) (stating in Minn.Stat. § 624.713, subd. 1(b) that a person convicted as a juvenile for a violent crime is ineligible to possess certain weapons). Appellant had a prior criminal record including second-degree murder and illegal possession of a firearm.

Appellant claimed at trial that the police did not have a reasonable, articulable suspicion to detain him and that the resulting chase and recovery of the gun should be excluded from the evidence presented to the jury. The trial court ruled against appellant.

At trial, appellant took the stand in his own defense. He contended that the gun was originally in the possession of his companions. Appellant testified that those men had shown him the gun earlier in the evening. He stated that when he and his companions were exiting the alley where the police first saw them, the gun was still in the possession of one of the other men. Appellant claimed that his companion placed the gun in appellant’s jacket pocket as the officers'were approaching. Appellant stated that he ran because he thought he would be “taken down” if the police saw that he had a gun or'if he tried to surrender with a gun. Appellant further stated that he did not give the police officers this explanation the night of the arrest because he was afraid they would not believe him. When the prosecutor pressed him on cross-examination about why he did not explain this to the police when he was first detained, appellant objected to the line of questioning as violating his constitutional right to remain silent.

Appellant claimed at trial that because his possession of the gun was fleeting possession, he was entitled to a special jury instruction that he did not violate the law if he handled the gun for the sole purpose of disposal. The court agreed that the appellant could not be convicted if the gun was planted on him. The court did not give a special instruction on fleeting control but instead gave a general instruction on possession.

The jury found appellant guilty of felony possession of a firearm. The trial court sentenced appellant to 60 months in prison. This appeal followed.

ISSUES

1. Did the district court err by determining that the police officers had a reasonable, articulable suspicion to stop appellant and to subsequently seize the gun?

2. Was it reversible error for the district court to refuse to instruct the jury on fleeting possession of a firearm?

3. Did the. questioning of appellant at trial by the prosecutor regarding appellant’s failure to provide the police or prosecutor with the . fleeting-possession-of-the-gun explanation violate appellant’s Fifth Amendment right to remain silent?

ANALYSIS

I.

Appellant claims that the police did not have a reasonable, articulable suspicion to stop him and question him or to .seize him before he ran. Appellant further claims that because the police did not have an adequate basis to seize him, the evidence of his possession of a gun was not properly obtained and should have been excluded at trial. Appellant moved to suppress evidence of the gun; it appears from the record that the motion was denied.

This court may review pretrial motions to suppress evidence and independently determine, as a matter of law, whether the district court erred in its decision to suppress or not suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (citing State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992)). In this case, the facts are generally not in dispute. This court must determine whether the police officer’s actions constitute a seizure or confinement of appellant and if the officer articulated an adequate basis for the seizure. Harris, 590 N.W.2d at 98 (citing State v. Storvick, 428 N.W.2d 55, 58 n. 1 (Minn.1988)).

The mere fact that there is an encounter between the police and a citizen does not mean there has been a seizure of the person. In re E.D.J., 502 N.W.2d 779, 781 (Minn.1993). A seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” E.D.J., 502 N.W.2d at 781 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968)). In other words, no seizure occurs unless the law enforcement officers “convey a message that compliance with their request is required.” Harris, 590 N.W.2d at 98 (quoting Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)).

Under the Minnesota Constitution

a person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.

Id. (quoting State v. Cripps, 533 N.W.2d 388, 391 (Minn.1995)) (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). To judge the totality of the circumstances our supreme court has adopted the Mendenhall-Royer standard. Harris, 590 N.W.2d at 98. Under this standard, the following are examples of when a seizure may have taken place:

“ ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ”

Id. (quoting E.D.J., 502 N.W.2d at 781 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877)). Seizure has not taken place just because a police officer approaches a citizen in a public place and begins to ask him questions. Id. (citing E.D.J., 502 N.W.2d at 782).

In this case, the police officers approached appellant and the two other men to ask a single question, “Have you heard a gunshot?” The officers had already asked another person if that person had heard a gunshot, and the officers were continuing in the direction where they suspected the sound originated and where the unidentified person had indicated. The officers did not have the lights or siren of their squad car on. They did not have their guns drawn. They did not physically touch appellant or the other two men. There is no evidence that they were threatening appellant or his companions, either by their tone of voice or by their words. The officers only wanted to ask the question, “Have you heard a gunshot?”

Appellant’s own actions gave the officers a reasonable basis to stop appellant. The officers were in a high-crime area, investigating a possible gunshot. When appellant .was approached by the police officers, he reacted by reaching for the waistband of his pants and running while looking over his shoulder. One of the officers testified that when appellant reached for his waistband, the officer believed that appellant had a bulky or heavy item like a gun. Looking at the totality of the circumstances, we conclude appellant provided the officers with a reasonable basis to chase and stop him.

The state argues that a recent United States Supreme Court decision addressing the issue of fleeing from the police is persuasive in this case. In Illinois v. Wardlow, the Court reversed an Illinois Supreme Court decision. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (holding sudden flight in a high-crime area creates a reasonable, articulable suspicion of criminal conduct). While noting presence in a high-crime area alone is not enough to support a suspicion that a person is committing a crime, the court held that unprovoked flight upon noticing the police would arouse an officer’s suspicion. Wardlow, 528 U.S. at 124, 120 S.Ct. at 676. In addition, the Court stated that it recognizes “that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Id. (citations omitted).

Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.

Id. The Court also recognized the' right of an individual to go about his business when approached by the police. Id. at 125, 120 S.Ct. at 676. The Court stated that a person even has a right to ignore the police. Id.

But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite.

Id.

The majority in Wardlow acknowledged that there may be “innocent reasons for flight” and that “flight is not necessarily indicative of ongoing criminal activity.” 528 U.S. at 125, 120 S.Ct. at 677. The Court noted that when a person’s behavior is ambiguous, that ambiguity is itself a reason to detain the individual. Id. By stopping the individual, the ambiguity can be resolved. Id. Though such stops may lead to detention of innocent people, the Court recognized that the possibility of stopping innocent people does not preclude an officer in a high-crime area from stopping or pursuing an individual for questioning when that individual acts suspiciously and flees. Id. at 126, 120 S.Ct. at 677. If the “officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.” Id.

While Minnesota state courts have not discussed Wardlow in a published opinion, an 8th circuit court noted Wardlow when determining that the police had a reasonable suspicion of criminal activity. U.S. v. Dupree, 202 F.3d 1046 (8th Cir.2000); In that case, the police received an anonymous tip concerning drug sales in a particular area. Id. at 1047. The tip included a description of a man who was said to possibly be the “main man.” Id. at 1048. When the .officers went to question a group of men, including one fitting the description given in the tip, the men started walking away. Id. The officers followed and asked if they could talk to the men. Id. Dupree walked over to the side of a bridge and dropped a small object over the railing. Id. At that point, the officers seized the defendant.- Id. The court in Dupree stated that it was reasonable for the officer to suspect' that the defendant was attempting to destroy evidence. Id. at 1049. The court held this was more than a “headlong flight” as discussed in Wardlow. Id: The court found that the officer formed a reasonable, articulable suspicion' based on the information supplied in the tip, the high incidence of drug trafficking in the area, and the defendant’s “evasive action in dropping a small object off the bridge before talking to the police.” Id.

The state argues that based on Ward-low, appellant’s flight from police.while in a high-crime area is itself enough to justify stopping appellant. Here, we have more. The facts of this case include the sound of a possible gunshot and a defendant who aroused suspicion by nervously hitching up his pants, looking over his shoulder, and evading the police by running away. The police had a basis for asking appellant to pause to answer questions at the outset of the encounter. The appellant’s actions after the police spotted .him support the police officers’ actions in detaining appellant. When the appellant fled and tossed the gun, the- basis for his seizure grew stronger. We hold under the totality of the circumstances that the officer had á-reasonable, articulable suspicion to stop appellant and retrieve the gun as evidence.

II.

Appellant argues that the district court abused its discretion when it denied his request for a jury instruction differentiating between possession and fleeting control. District courts “are allowed considerable latitude in selection of language” used in jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn.1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986)). Refusing to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). The focus of the analysis is on whether the refusal resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn.2001). When faced with an erroneous refusal to give a jury instruction, the reviewing court must “examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict.” State v. Shoop, 441 N.W.2d 475, 481 (Minn.1989) (citation omitted). If the error might have prompted the jury to reach a harsher verdict than it might otherwise have reached, the defendant is entitled to a new trial. Id,

Here appellant contends that his possession of the gun was temporary, not within his control, and for the sole purpose of disposing of the weapon. Although a “fleeting control” exception has not been recognized in Minnesota, appellant argues that his case offers the appropriate opportunity for Minnesota to adopt the “fleeting control” distinction. The concept of fleeting control has been adopted in several other states. United States v. Landry, 257 F.2d 425, 431 (7th Cir.1958) (stating that possession is “actual control, care and management of, and not a passing control, fleeting and shadowy in its nature” (citation omitted)); Jordan v. State, 819 P.2d 39, 43 (Alaska Ct.App.1991) (holding that a jury instruction including “passing control” was necessary under the circumstances); People v. Martin, 25 Cal.4th 1180, 108 Cal.Rptr.2d 599, 25 P.3d 1081, 1084 (2001) (holding transitory possession applied only to momentary or transitory possession of contraband for the purpose of disposal); see also Model Penal Code § 5.07 (1985) (stating “[i]t is a defense under this Section for the defendant to prove by a preponderance of evidence * * * that he possessed it briefly in consequence of having found it or taken it from an aggressor, or under circumstances similarly negativing any purpose or likelihood that the weapon would be used unlawfully”).

Appellant asserts that the district court apparently agreed with the premise of “fleeting control,” because the judge in this case stated:

[Y]our client cannot be found guilty when the — if the weapon was planted on him. He cannot be found guilty of consciously exercising dominion and control over it if he didn’t want the weapon planted on him and he didn’t control it.

But, appellant’s request for a “fleeting control” jury instruction was denied. The judge noted that appellant’s cases supporting fleeting possession were all regarding possession of narcotics rather than firearms, and the judge explained:

The reason that the instruction is not being given is that you have an ample opportunity under the instructions as given through the criminal JIG to argue that your client did not knowingly possess a firearm; that it was planted on him, and that he disposed of it; that he did not intend to possess it; that he did not consciously exercise dominion and control over it, nor could he because it was-not his to control.
Those arguments are absolutely and unequivocally fair game without any doubt because you have a record from which to argue it. You are not being prevented from doing so. * * * But the eases that have been cited are factually distinct, legally distinct, and inapplicable.

While we agree that an instruction on “fleeting control” may have been appropriate, we do not find the district court’s failure to give a specific “fleeting control” instruction to be an abuse of discretion. Appellant had ample opportunity to argue to the jury that he did not knowingly possess the firearm. The jury was instructed that the prosecution had to show that appellant knowingly possessed the gun. This allowed the jury to consider whether appellant had the required possession. The lack of a specific instruction regarding “fleeting control” did not preclude appellant from arguing this, to the jury, nor did it preclude the jury from considering the matter. It was not an abuse of discretion for the district court to exclude specific language regarding “fleeting control” from the jury instruction.

III.

Right to remain silent

Appellant challenges several other actions of the district court, claiming errors supporting reversal of his conviction. We first address appellant’s contention that the prosecutor’s cross-examination eroded appellant’s right to remain silent at the time he was first questioned and detained. Appellant emphasizes that his right to remain silent meant he had no responsibility to give his fleeting possession explanation when he was first questioned.

Appellant contends there are three separate time frames to consider with respect to his right to remain silent: pre-arrest, post-arrest/pre-Miranda, and post-Miranda. Clearly, appellant is entitled to a Miranda warning at the time of arrest and therefore has the right to remain silent at that time. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant notes that the federal courts have determined that pre-arrest silence is impeachable when a defendant’s direct testimony raises the issue of his silence on the night of his arrest. Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130 (1980) (holding that impeachment by use of pre-arrest silence does not violate the 14th Amendment). Here, appellant argues that any questioning about his pretrial silence from the start of the chase is a violation of his Fifth Amendment right to remain silent.

Appellant contends that the prosecution goaded him into explaining that he invoked his Fifth.Amendment right to account for his lack of explanation about why he ran or why he did not tell the officer the reason for the presence of the gun on his person. Generally, the prosecution cannot at trial use the fact that the defendant “stood mute or claimed his privilege [to remain silent] in the face of accusation.” State v. Roberts, 296 Minn. 347, 352, 208 N.W.2d 744, 747 (1973). At the same time, “[c]ommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact” when that fact would commonly have been asserted. Jenkins, 447 U.S. at 239, 100 S.Ct. at 2129.

Here the prosecutor’s questioning was an effort to impeach appellant’s account of the incident by indicating appellant’s reasons for having the gun were only advanced later in the development of the case. Thus, it was not an attack on his right to remain silent, but rather a chai-lenge to the credibility of his story. The prosecutor was asking, if appellant’s story was true, why not offer it immediately when his companions could corroborate the claims? This was not an effort to compromise appellant’s right to remain silent.

Even if it were error for the prosecutor to question appellant’s silence, a new trial is not automatic. A new trial is not required if “the state can show beyond a reasonable doubt that the error was harmless.” State v. Jones, 556 N.W.2d 903, 910 (Minn.1996) (citation omitted). “[A]ppellate courts must look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict.” Id. (citation omitted). “If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.” Id. (citation omitted).

Here, appellant had the opportunity to persuade the jury that the gun was planted on his person and that he did not intend to possess it. There was ample evidence to support the verdict without the negative implication of his silence. We decline to reverse appellant’s conviction based on the district court’s decision to allow the questioning. We do not reach the constitutional issue of whether there is a pre-arrest right to remain silent.

Questioning regarding police lies

Appellant contends he was denied his constitutional right to a fair trial because of prosecutorial misconduct. Appellant argues it was misconduct for the prosecutor to repeatedly ask appellant if the police were lying. It is within the district court’s discretion to determine whether prosecutorial misconduct warrants a new trial. State v. Ashby, 567 N.W.2d 21, 27 (Minn.1997). This court will reverse a conviction on the ground of pros-ecutorial misconduct only if the misconduct was “inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.” State v. Smith, 541 N.W.2d 584, 588 (Minn.1996) (citation omitted). In cases involving less serious prosecutorial misconduct, an appellate court will reverse only if the misconduct substantially influenced the jury. State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974). In State v. Pilot, the court set forth the following rule about the prosecutor’s use of “were they lying” questions:

As a general rule, “were they lying” questions have no probative value and are improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence. We emphasize, however, that we have not adopted a blanket rule of law that under no circumstances is a “were they lying” question to a witness on cross-examination proper and we do not believe an inflexible rule prohibiting such questions is necessary or desirable. Situations may arise where “were they lying” questions may have probative value in clarifying a particular line of testimony, in evaluating the credibility of a witness claiming that everyone but the witness lied or, as in Overlee, the witness “flatly denies the occurrence of events.”

State v. Pilot, 595 N.W.2d 511, 518 (Minn.1999) (citation omitted).

The questions that appellant objected to here included questions about whether the police asked appellant about his background, about whether he had ever been in jail or detained as a juvenile, and about whether the police officers had their lights on or performed a u-turn. These questions highlighted for the jury the credibility of appellant. State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990) (stating it is the duty of the jury to determine witness credibility and the weight to be given each witness’s testimony). The prosecutor’s questions were merely designed to highlight the probative value of appellant’s testimony so that the jury could determine whether to believe appellant. We note that even if the questions constituted pros-ecutorial misconduct, they were harmless.

Appellant’s testimony regarding control of the gun

Appellant claims the prosecutor required him, as a lay witness, to give legal conclusions regarding his possession-of the gun by asking, “You exercised control over the gun when you took it?” A lay witness can give an opinion if it is based on the perception of that witness. State v. Larson, 389 N.W.2d 872, 876 (Minn.1986). The initial question regarding “control over the gun” was reworded, and the reworded question focused on how appellant disposed of the gun. Even if the original question required appellant to state a legal conclusion, that question was withdrawn. Because the question was reworded, we find any potential error by the prosecutor in the wording of the original question to be harmless.

Cumulative effect of errors

Even if an error at trial, standing alone, would not be sufficient to require reversal, the cumulative effect of the errors may compel reversal. State v. Underwood, 281 N.W.2d 337, 344, (Minn.1979). In this case, any errors, committed were harmless, and their cumulative effect did not deprive appellant of his right to a fair trial. State v. Keeton, 589 N.W.2d 85, 91 (Minn.1998) (holding that an appellant can be entitled to a new trial if the cumulative effect of errors would have deprived him of his right to a fair trial).

DECISION

The district court properly allowed into evidence the weapon tossed by a nervous-appearing appellant during flight from the police, who were investigating a gunshot in a high-crime neighborhood. It was not an abuse of discretion for the district court to refuse to give the fleeting possession jury instruction. The prosecutor’s questioning of appellant about his failure to earlier give the fleeting control explanation did not violate appellant’s right to remain silent. Even if the prosecutor’s “were they lying” questions constituted misconduct, the questions did not 'affect appellant’s right to a fair trial.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    2002 ND 201
    Marvin WANNER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
    No. 20020080.
    Supreme Court of North Dakota.
    Dec. 20, 2002.

      Steven L. Latham (argued), Wheeler Wolf, Bismarck, ND, for claimant and appellant.
    Lawrence E. King (argued), Special Assistant Attorney General, Bismarck, ND, and Lawrence A. Dopson (on brief), Special Assistant Attorney General, Bismarck, ND, for appellee.
   MARING, Justice.

[¶ 1] Marvin Wanner appealed a judgment affirming a North Dakota Workers Compensation Bureau order adopting an administrative law judge’s recommended order that Wanner forfeit all additional workers compensation benefits after December 22, 1999, in connection with his 1988 work injury. We hold the Bureau’s finding that Wanner willfully made a material false statement in connection with his claim is not supported by a preponderance of the evidence. We reverse and remand for reinstatement of benefits and payment of accrued benefits erroneously terminated.

I

[¶ 2] Wanner injured his back while employed as a truck driver on September 20, 1988. The Bureau accepted liability and paid medical expenses and disability benefits. While receiving disability benefits, Wanner sold vegetables he raised in a garden which “might be 55 or 60 wide” and “maybe 60 feet long” and occasionally drove a farm truck hauling grain for friends during harvest. In 1999, the Bureau asked a private investigator to conduct surveillance of and investigate Wanner’s activities because it had received information Wanner was doing physical labor. In a December 15, 1999, order, the Bureau found, among other things, that Wanner maintained a garden, received money for vegetables, and performed harvest activities for a friend while receiving disability benefits, which he faked to report and about which he willfully made false statements. The Bureau ordered Wanner to repay $6,678.51, and ordered that he “forfeit all additional workers’ compensation benefits in connection with this claim after December 22, 1999.”

[¶ 3] Wanner requested a rehearing. After a hearing, an administrative law judge (“ALJ”) issued recommended findings of fact, conclusions of law, and order. Considering an injured worker status report Wanner completed on August 31, 1999, the ALJ found: “The plain and certain statements made by Wanner to the Bureau upon the completion and submission of the report were that he had not done any type of work and that he had not received money from any source except the Bureau and the Social Security Administration.”

[¶ 4] With regard to the issue of whether Wanner misrepresented his work activities concerning his garden and money received therefrom, the ALJ found:

15.... Considering the question posed by the report concerning work activities (Have you gone back to work, or done any type of work for- pay or not?), in the context of Wanner’s need to be busy, to have something to do, it is clear that for the work done in his garden Wanner would not think that he had gone back to work or even done any type of work....
16. Wanner does not dispute, however, that his garden was a source of money; as he put it, “a few dollars I get from garden veggies ... to help cover ... [the costs of] seed ... water for [the] garden. [”] ... But there is little evidence to suggest that Wanner planned a garden to produce vegetables for sale; rather it is more likely than not that his garden was the result of the absence of any planning and the lack of any thought for the use of the vegetables which his efforts would produce....
20.... Regardless, he was unequivocally instructed and advised by the Bureau for the completion of the report that he “must report any money received from work, activities, or services of any kind, regardless of profit or loss.[”]

[¶ 5] With regard to the issue of whether Wanner misrepresented his work activities concerning his hauling grain for a farm family, the Rollers, the ALJ found:

23. The Bureau also contends that Wanner worked for a farm family, “the Rollers,” hauling grain during harvest. The ... greater weight of evidence shows that Wanner has helped out the Rollers at least six to eight times a year during harvest over a period of three or four years, 1996 through 1999, depending upon how one counts. He would usually come out to the farm around noon after harvesting had begun, and would take a truck loaded with grain from the field to the farmstead where it would be placed in a bin for storage, or sometimes the grain would be hauled to a nearby town to be sold at the elevator....
Wanner does not deny that he helped the Rollers during harvest by hauling grain, but notes that the family members were his friends and that he was not paid for his help. He explains that he did not consider his help to be work, rather, he testified, “what I would call having fun, being productive again, being able to do something I used to do, drive a truck.”

The ALJ recommended the following conclusions of law:

5. [T]he evidence does show, indeed is overwhelming, that for the work done in his garden Wanner would not think, in the words of the Bureau’s question, that he had “gone back to work or done any type of work” in his garden — even considered in the context of the Bureau’s instruction and advice for the completion of the report that “you must accurately report work of any kind ... that you do.”
1.... Wanner’s assistance to the Rollers is clearly within the Bureau’s instruction and advice for the completion of the report (“work of any kind (voluntary, part-time, or full-time) that you do, whether you are paid or not”) and the Bureau’s question (“Have you gone back to work, or done any type of work for pay or not?”).... By his negative response on August 31, 1999, to the Bureau’s question whether he had “gone back to work, or done any type of work for pay or not” Wanner willfully made a false statement within the meaning of N.D.C.C. § 65-05-33 in connection with his claim for workers’ compensation benefits.
8. Considered in the context of the circumstances, the greater weight of the evidence establishes that Wanner intentionally failed to report the money received for the sale of vegetables from his garden.... By his representation to the Bureau that other than the Bureau he had received money only from “Social Security,” Wanner willfully made a false statement within the meaning of N.D.C.C. § 65-05-33 in connection with his claim for workers’ compensation benefits.
9.... There is neither any testimony or other evidence which shows or which would support an inference that the Bureau has paid any amount of benefits in error because of Wanner’s failure to report his work to assist the Rollers for their harvest or because of his failure to report the money he received for the sale of vegetables from his garden....
Upon the evidence of record and in accordance with the instruction of the Supreme Court for the application of N.D.C.C. § 65-05-33 Wanner may not be required to reimburse the Bureau for any benefits which the Bureau has paid him, but he shall forfeit any additional benefits.

[¶ 6] The AJLJ issued a recommended order providing “Wanner made false statements concerning work which he did and money which he received, that those false statements were willful and intentional ... and could have mislead the Bureau for the determination of options for his rehabilitation and entitlement to benefits and were therefore material.” The ALJ further recommended forfeiture of all additional benefits in connection with Wanner’s September 20, 1988, injury, and that the Bureau could not obtain reimbursement for benefits already paid.

. [¶ 7] On August 17, 2001, the Bureau issued an order adopting the ALJ’s recommended findings, conclusions, and order. Wanner appealed to the district court, which affirmed the Bureau’s decision. Wanner appealed to this Court.

II

[¶ 8] In an appeal from an administrative agency decision, we review the decision of the administrative agency, rather than that of the district court, although the district court’s analysis is entitled to respect. Paul v. North Dakota Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm an agency’s order unless (1) the order is not in accordance with the law; (2) the order violates the appellant’s constitutional rights; (3) the provisions of N.D.C.C. ch. 28-32 have not been complied with in the agency’s proceedings; (4) the agency’s rules or procedure have not afforded the appellant a fair hearing; (5) the agency’s findings of fact are not supported by a preponderance of the evidence; (6) the agency’s conclusions of law and order are not supported by its findings of fact; (7) the agency’s findings of fact do not sufficiently address the evidence presented by the appellant; or (8) the agency’s conclusions of law and order do not sufficiently explain its rationale for not adopting any contrary recommendations by a hearing officer or administrative law judge. We exercise restraint in deciding whether or not an agency’s findings of fact are supported by a preponderance of the 'evidence; we do not make independent findings or substitute our judgment for that of the agency, but, instead, we decide whether a reasoning mind reasonably could have decided the agency’s findings were proven by the weight of the evidence from the entire record. Paul, at ¶ 6. Questions of law, including statutory construction, are fully reviewable on appeal. Id.

III

[¶ 9] Wanner contends the Bureau erred in using a “preponderance of the evidence” standard of proof, rather than a “clear and convincing” standard of proof in determining he made false statements in violation of N.D.C.C. § 65-05-33. A similar contention was recently rejected in Sjostrand v. North Dakota Workers Comp. Bureau, 2002 ND 125, 649 N.W.2d 537. A majority of this Court (Maring, J., dissenting) held “the Bureau’s findings under N.D.C.C. § 65-05-33 must be affirmed if they are supported by a preponderance of the evidence.” Id. at ¶ 30. We need not revisit that issue in this appeal, because, under either standard of proof, the Bureau did not prove Wanner willfully made a material false statement justifying forfeiture of future benefits under N.D.C.C. § 65-05-33.

IV

[¶ 10] Wanner contends “[t]he Bureau erred in accepting and relying on the investigation and testimony of its private investigator Don Schneider.” Wanner argues the video surveillance of his activities at his residence and the investigator’s “deceitful and misrepresentative conduct when he presented himself at Wanner’s door, misrepresented his identity and the purpose of his visit, and attempted to induce Wanner into certain activities” violated his “individual right of privacy, which is founded in the 14th Amendment’s concept of personal liberty.” Wanner contends that, without the investigator’s testimony and report, there is no evidence to support the Bureau’s findings and conclusions.

[¶ 11] The surveillance and deception of which Wanner complains were directed at his failure to report his gardening activities as work and his failure to report the receipt of money from gardening. The Bureau did not find- Wanner failed to report work in connection with his gardening. Although an injured worker status report of August 31, 1999, required him to disclose the receipt of money from any source other than the Bureau, Wanner reported only the receipt of money from Social Security and not from the sale of vegetables. However, we conclude Wanner’s failure to report the receipt of money from the sale of vegetables was not material. Thus, we need not determine if the intrusive surveillance of Wanner’s residence and the investigator’s deceptive conduct in this case violated Wanner’s right to privacy. Anything we might say “on this issue would only amount to an advisory opinion. We do not give advisory opinions.” Ritter, Laber & Assocs., Inc. v. Koch Oil, Inc., 2000 ND 15, ¶30, 605 N.W.2d 153.

V

[¶ 12] Wanner contends the Bureau erred in finding he “willfully made false statements regarding income from his vegetable garden.”

[¶ 13] When the Bureau first ordered repayment and forfeiture in 1999, N.D.C.C. § 65-05-33 provided, in part:

1. A person is guilty of a class A misdemeanor if that person is claiming benefits or payment for services under this title, and that person:
a. Willfully files a false claim or makes a false statement.
b. Willfully misrepresents that person’s physical condition, including deceptive conduct which misrepresents that person’s physical ability.
c. Has a claim for disability benefits that has been accepted by the bureau and willfully fails to notify the bureau of:
(1) Work or other activities as required under subsection 3 of section 65-05-08;
(2) The receipt of income from work; or
(3) An increase in income from work.
3. In addition to any other penalties provided by law, the person claiming benefits or payment for services in violation of this section shall reimburse the bureau for any benefits paid based upon the false claim or false statement and, if applicable, under section 65-05-29 and shall forfeit any additional benefits relative to that injury.

[¶ 14] Wanner argues, among other things: (1) “If the Bureau has concluded that Wanner’s activities in his vegetable garden did not constitute work, then its finding that he willfully failed to report receipt of income from work, as required under subsection 3 of Section 65-05-33, is not supported by the evidence and is contrary to the law;” (2) “The monies Wanner received for the vegetables in his garden did not even, cover the cost of raising the vegetables, let alone receipt of income from work;” and (3) “Wanner’s acceptance of money from those who offered him money for his vegetables was not income from work that he was required to report to the Bureau.”

[¶ 15] Section 65-05-33, N.D.C.C., addresses false statements to secure benefits and a failure to report income from work or a failure to notify the Bureau of “[w]ork or other activities as required under subsection 3 of section 65-05-08.” In 1999, N.D.C.C. § 65-05-08(3) imposed advisory requirements upon the Bureau and reporting requirements upon injured employees:

3. Any employee who is eligible for, or receiving disability or rehabilitation benefits under this title shall report any wages earned, from part-time or full-time work from any source. If an employee fails to report wages earned, the employee shall refund to the bureau any disability or vocational rehabilitation benefits overpaid by the bureau for that time period. To facilitate recovery of those benefits, the bureau may offset future benefits payable, under section 65-05-29. If the employee willfully fails to report wages earned, the employee is subject to the penalties in section 65-05-33. An employee shall report whether the employee has performed work or received wages. The bureau periodically shall provide a form to all injured employees receiving disability or rehabilitation benefits which the injured employee must complete to retain eligibility for further disability or rehabilitation benefits, regardless of the date of injury or claim filing. The form will advise the injured employee of the possible penalties for failure to report any work or activities as required by this section. An injured employee who is receiving disability or vocational rehabilitation benefits must report any work activities to the bureau whether or not the injured employee receives any wages. An injured employee who is receiving disability or vocational rehabilitation benefits also must report any other activity if the injured employee receives any money, including prize winnings, from undertaking that activity, regardless of expenses or whether there is a net profit. For purposes of this subsection, “work” does not include routine daily activities of self-care or family care, or routine maintenance of the home and yard, and “activities” does not include recreational gaming or passive investment endeavors. ■ ■

[¶ 16] Section 65-05-08(8), N.D.C.C., allows an injured employee to earn up to ten percent of his preinjury average gross weekly earnings without a reduction in benefits:

8. The bureau may not pay disability benefits unless the loss of earning capacity exceeds ten percent. The injured employee may earn up to ten percent of the employee’s preinjury average gross weekly earnings with no reduction in total disability benefits. The employee must report any earnings to. the bureau for a determination of whether the employee is within the limit set in this subsection.

[¶ 17] Section 65-05-08(3), N.D.C.C., requires the Bureau to provide reporting forms to injured employees and requires the Bureau to provide a reporting form that “will advise the injured employee of the possible penalties for failure to report any work or activities as required by this section.” The injured worker status' report form the Bureau supplied to Wanner, which he completed on August 31, 1999, and which is the basis for the ALJ’s recommendations and the Bureau’s order in this case, contains but two sentences. related to this penalty advice requirement: (1) “Failure to report any type of work, wages, or other money received, may be a violation of law;” and (2) “I understand the nature of the questions asked in this status report and further understand that providing false information may be a crime, punishable by substantial fines and imprisonment, or both.” Those opaque and unilluminating passages clearly do not advise an injured employee of the possible penalties of reimbursement of benefits paid or forfeiture of all future benefits under N.D.C.C. § 65-05-33 that may result from failure to report any work or activities required by N.D.C.C. § 65-05-08(3), and, therefore, do not provide the notice of penalties required by N.D.C.C. § 65-05-08(3).

[¶ 18] “To trigger the statutory consequences of N.D.C.C. § 65-05-33, for a false claim or statement, the Bureau must prove a claimant willfully made a material false'claim or statement in connection with a claim or application under Title 65, N.D.C.C.” Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶ 16, 622 N.W.2d 712. “To be willful, conduct must be engaged in inténtionally, not inadvertently.” Id. The injured worker status report form completed by Wanner advised him he “must report any money received from work, activities, or services of any kind, regardless of profit or loss.” There is no dispute Wanner received money from the sale of vegetables from his garden,' failed to disclose the receipt of such money on the form, and reported he had not received money from any source except the Bureau and Social Security. The Bureau could reasonably conclude Wanner willfully made a false statement within the meaning of N.D.C.C. § 65-05-33.

VI

[¶ 19] Wanner contends, however, that he did not make a “material” false statement justifying forfeiture of future benefits. We apply a materiality test to false claims or statements under N.D.C.C. § 65-05-33. F.O.E. Aerie 2337 v. North Dakota Workers Comp. Bureau, 464 N.W.2d 197, 200-01 (N.D.1990). There are two materiality tests:

If the Bureau seeks reimbursement for benefits paid, the level of materiality required is proof by the Bureau that the false claim or false statement caused the benefits to be paid in error. Hausauer, 1997 ND 243, ¶17, 572 N.W.2d 426. However, if the Bureau is seeking only forfeiture of future benefits,, as in Jacobson’s case, no such causal connection is required. Id. A false claim or false statement is sufficiently material for forfeiture of future benefits if it is a statement which could have misled the Bureau or medical experts in a determination of the claim. Vernon v. North Dakota Workers Comp. Bureau, 1999 ND 153, ¶ 13, 598 N.W.2d 139.

Jacobson v. North Dakota Workers Comp. Bureau, 2000 ND 225, ¶10, 621 N.W.2d 141.

[¶ 20] While the testimony about the amount of money Wanner received for the sale of vegetables and did not report on the August 31, 1999, status report is imprecise, the total testified to falls within -a range of $129 to $160, $40 of which was reported on September 26, 1999. The Bureau found the false statement was not material with regard to the medical expenses and compensation already paid, and, therefore, Wanner was not required to repay any benefits paid. However, the Bureau found the false statement about “money which he received ... could' have misle[]d the Bureau for the determination of options for his rehabilitation and entitlement to benefits and [] therefore material” and ordered forfeiture of all additional benefits in connection with Wanner’s 1988 injury, which Bureau counsel acknowledged at oral argument will likely exceed the amount of benefits already paid.

[¶ 21] We have said a failure to report “income” may justify forfeiture of future benefits:

A failure to report income is, by the very nature of the violation, material to the Bureau’s ability to determine a claimant’s entitlement to benefits and to calculate the atoiount of benefits. By failing to report income a claimant impedes the Bureau’s process of determining eligibility. The Bureau’s finding that Unser intentionally failed to report income supports its conclusion Unser’s violation was material and justifies forfeiture under N.D.C.C. § 65-05-33(2) of future disability benefits connected to the 1990 claim.

Unser v. North Dakota Workers Comp. Bureau, 1999 ND 129, ¶ 18, 598 N.W.2d 89. We followed Unser in Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶¶ 17, 18, 622 N.W.2d 712. However, “[a] decision’s precedential value is measured by the context of its particular facts.” In re C.R.M., 552 N.W.2d 324, 326 (N.D.1996).. Unser involved a failure to report income from carpentry work. Snyder involved a failure to report' income from work activities in a restaurant. Un-ser and Snyder have no precedential value with regard to a -failure to report money from “activities.” With regard to not reporting income, Unser and Snyder stand only for the propositions that (1) a failure to report income from work is material to the Bureau’s ability to determine a claimant’s entitlement to benefits and to calculate the amount of benefits, and (2) by failing to report income from work, a claimant impedes the Bureau’s process of determining eligibility. Section 65-05-08(8), N.D.C.C., specifically addresses eligibility for disability benefits in terms of earnings. (“The injured employee may earn up to ten percent of the employeefs preinjury average gross weekly earnings with no reduction in total disability benefits.” N.D.C.C. § 65-05-08(8)). The clear import of the statute is that, earnings are income from work.. In- addition, in .determining eligibility for rehabilitation services under N.D.C.C. § 65-05.1-01(3) the- “income test” of “ninety percent of the employee’s average Weekly earnings at the time of injury, .or to sixty-six and two-thirds percent of the average weekly wage in this state ... whichever is less” is utilized. The Bureau concluded Wanner’s gardening was not work. Money received from an activity not work is not material to eligibility for disability or rehabilitation benefits. “Earnings” are not defined in the Workers Compensation Act. Words are to be understood in their ordinary sense if not defined in a statute. N.D.C.C. § 1-02-03. The definition of “earnings” from Merriam Webster’s Collegiate Dictionary is “1: something (as wages) earned 2: the balance of revenue after deduction of costs and expenses.”. Merriam-Webster Online Collegiate Dictionary (2002), http://www.m-w.com/cgi-bin/dictionary. The commonly understood definition of “earn” is “la: to receive as return for effort and especially for work done or services rendered.” - Id. Thus, the Bureau’s reliance on Unser and ■Snyder to establish materiality based on Wanner’s failure to report the receipt of money from the sale of vegetables resulting from his gardening activities, which the Bureau found Wanner “would not think” was work, is misplaced. In addition, the Bureau found Wanner’s sale of vegetables was “prompted not by a need or desire for money, but by the abundance of the vegetables he had produced.” This is not a case where someone’s hobby has turned into a livelihood or work. We are not persuaded Wanner’s failure to report the receipt of $129 to $160 from the sale of vegetables was a material false statement justifying forfeiture of all future benefits for his 1988 injury. While a failure to report income from work is material to the Bureau’s ability to determine a claimant’s entitlement to benefits and to calculate the amount of benefits, a failure to report money received apart from work is not similarly material. It is not disputed that the ALJ did not find it material to payment of disability benefits. See conclusion of law 9 quoted in ¶ 5. There is no evidence in the record that a minimal amount of money from a hobby is material to eligibility for any type of benefit. We conclude a reasoning mind could not reasonably find, as the Bureau did, that Wanner’s failure to report the receipt of a minimal amount of money apart from work “could have mi-sle[]d the Bureau for the determination of options for his rehabilitation and entitlement to benefits and [] therefore material.”

VII

[¶ 22] On the injured worker status report Wanner completed on August 31, 1999, he marked a box indicating he had not “gone back to work, or done any type of work for pay or not.” In conclusion of law number seven, the Bureau found that Wanner assisted a farm family, the Rollers, during harvest for three or four years by driving a truck to haul grain and that, “[b]y his negative response on August 31, 1999, to the Bureau’s question whether he had ‘gone back to work, or done any type of work for pay or not’ Wanner willfully made a false statement within the meaning of N.D.C.C. § 65-05-33 in connection with his claim for workers’ compensation benefits.”

[¶ 23] Neither the Bureau nor the legislature has defined work. Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶ 12, 622 N.W.2d 712; Jacobson v. North Dakota Workers Comp. Bureau, 2000 ND 225, ¶ 15 n. 1, 621 N.W.2d 141. While N.D.C.C. § 65-05-08(3) requires an injured employee to report, among other things, “work” and “work activities” to the Bureau, it does not define either term, although the last sentence does, somewhat imprecisely, list some things that are not included. Under N.D.C.C. § 1-02-02, “words not defined in a statute are to be understood in their ordinary sense.” Jacobson, ¶ 15 n. 1. In other cases involving questions of “work,” we have held activities were work in the ordinary sense or by common understanding. See Jacobson, at ¶ 15 (“Based on the common understanding of work ... entering as a professional in major fishing tournaments, representing Twin City Marine at boat shows, assisting on the sales floor, accepting entrance fees paid for by Twin City Marine, and buying a new boat each season at a discounted price” constituted work activity.); Snyder, at ¶ 12 (Opening a restaurant at 5:00 a.m. daily and staying until 7:00 a.m., baking rolls, turning on the grill, making coffee, signing receipts for deliveries, cooking and serving meals to customers, collecting money at the cash register, picking up supplies, and performing maintenance work, constituted work in its ordinary sense, as a matter of law.). Both of those cases involved activities that were much more clearly “work” than we have in this case and- the claimants in those two cases were paid for' the work activities involved.

[¶ 24] Wanner does not dispute he hauled grain for the Rollers, but contends it was not work required to be reported. He argues:

Most people, like Wanner, consider work to be in the context of an employer-employee relationship where there are certain expectations of an employer toward his employee. Wanner’s situation at the Roller farm clearly did not meet that. The Bureau’s income and work status cards clearly refer to work and income. Wanner did not receive any pay from the Rollers and there was no expectation from the Rollers. There is nothing to give an individual such as Wanner any idea that the Bureau is seeking information about one’s activities other than the commonly understood work situation where someone is in someone else’s employment, whether getting paid or not.
Wanner’s activity at the Roller farm was to be with Mends, to keep himself busy, and a form of therapy. Wanner has never understood his putzing around to be considered work, nor would a normal person consider such activity to be work. Section 65-05-08(3) only requires that someone must report any work activities to the Bureau, whether or not the injured worker receives any wages.

[¶ 25] Resort to a few textual references lends support to Wanner’s argument. Black’s Law Dictionary (7th ed.1999) defines “work” as “1.' Physical and mental exertion to attain an end, esp. as controlled by and for the benefit of an employer; labor.” The same dictionary defines “employer” as “A person who controls and directs a worker under an express or implied contract of hire and who pays the worker’s salary or wages.” The same dictionary defines “labor” as “1. Work of any type, including mental exertion <the fruits of one’s labor>. *The term usu. refers to work -for wages as opposed to profits.” Merriam-Webster’s Collegiate Dictionary defines “work”: “1: activity in which one exerts strength or faculties to do or perform something: a: sustained physical or mental effort to overcome obstacles and achieve an objective or result b: the labor, task, or duty that is one’s accustomed means of livelihood c: á specific task, duty, function, or assignment often being a part or phase of some larger activity.” Merriam Webster Online Collegiate Dictionary (2002), http:// www.m-w.com/cgi-bin/dictionary. Cambridge International Dictionary of English defines “work” as “an activity, such as a job, in which a person uses their body and/or their mind to make or do something, usually for money, or the material used or what is produced.” Cambridge International Dictionary of English (2002), http://dictionary.cambridge.org/de-fine.asp?key=work*l + 0. The American Heritage Dictionary of the English Language (4th ed.2000) defines “work”: “1. Physical or mental effort or activity directed toward the production or accomplishment of something. 2a. A job; employment: looking for work. b. A trade, profession, or other means of livelihood.” The American Heritage Dictionary of the English Language (4th ed.2002), http://www.bartleby.com/61.

[¶ 26] Moving from lexicographic texts to relevant legislative texts, we find additional support for Wanner’s argument. Section 65-01-01, .N.D.C.C., “declares that the prosperity of the state depends in a large measure upon the wellbeing of its wage workers, and, hence, for workers injured in hazardous employments ... sure and certain relief is hereby provided.” With exceptions not relevant to this case, N.D.C.C. § 65-01-02(22) in 1999 defined “hazardous employment” as “any employment in which one or more employees are employed regularly in the same business or in or about the establishment.” Section 65-01-02(17), N.D.C.C., in 1999 defined an employee as “a person who performs hazardous employment for another for remuneration,” specifically included specified groups of people, and specifically excluded “[a]ny person whose employment is both casual and not in the course of the trade, business, profession, or occupation of that person’s employer.” Section 65-01-02(18), N.D.C.C., in 1999 defined an “employer” as “a person who engages or received the services of another for remuneration unless the person performing the services is an independent contractor under the ‘common law’ test.” Section 65-01-02(31), N.D.C.C., in 1999 defined “wages” as “an employee’s remuneration from all employment reportable to the internal revenue service as earned income for federal income tax purposes.” In Kipp v. Jalbert, 110 N.W.2d 825, 829 (N.D.1961), this Court said a carpenter helping a farmer dismantle a barn and build a garage, which was “incidental and an isolated, exceptional, and temporary activity of the employer” not “characterized as permanent or periodically regular,” occurring “by chance,” and of “limited duration” was “casual employment.”

[¶ 27] Absent a statutory or administrative definition of “work,” in light of the legislative purpose of the workers compensation act to provide sure and certain relief to wage workers injured in hazardous employments and in light of the foregoing dictionary and statutory references, we conclude an ordinary person not steeped in the arcane mysteries of the workers compensation laws as construed and administered by the Bureau would reasonably expect to have to report as work only activities performed in regular employment by others for remuneration, or showing an ability to regularly perform a gainful occupation, and would not ordinarily expect to have to report casual activities not done for remuneration and not performed for an employer.

[¶ 28] Wanner testified (1) he would go out to Rollers’ farm at harvest to haul grain “whenever I felt like it, and what I would call have fun, being productive again, being able to do something I used to do, drive a truck while they were combining;” (2) he did not think it was work he had to report to the Bureau, because “I wasn’t getting paid. It was no job;” (3) the truck was a “small farm truck” and was “[a] pretty smooth truck;” (4) he did not “have any difficulties in operating it or driving it ... that little short distance and in that small of a little truck;” and (5) hauling grain was “very good therapy and making me feel like a human being being able to do something.”

[¶ 29] Kathleen Roller testified:

He would come out usually after noon just because by the time we got going, that would be when the first trucks were full. He would sit in the truck until a truck was full and then drive it back to the farmyard. Once it got into the yard, all of our elevators are set up with a hydraulic hookup to the augurs and all he had to do was turn on a tractor key and empty the grain. There was no physical labor involved. He didn’t have to shovel. He didn’t have to climb bins. We know Marv. We know what he can handle and we made sure that those kinds of things were taken care of.

She also testified they did not pay Wanner, he was not an employee, Wanner did it because “[h]e’s been a good friend,” and “[t]here were some days when he said I just can’t, I have a headache, I hurt too bad, or whatever, and those days he didn’t come.”

[¶ 30] In light of the lack of a statutory or administrative definition of work; the dictionary and statutory texts we have discussed; Kathleen Roller’s testimony about accommodations they made so Wanner would not have to do any physical labor and that Wanner did not come to the farm when he had a headache or hurt too much; the lack of pay for Wanner’s help; and Wanner’s testimony he could haul grain “whenever I felt like it” and hauling grain was a way to “have fun” and be “productive again,” was “very good therapy” which he did not consider work required to be reported to the Bureau, and which, in short, was, for Wanner, a sporadic, relatively easy, fun, therapeutic activity, we conclude a reasoning mind could not reasonably find, as the Bureau did, that “[b]y his negative response on August 31, 1999, to the Bureau’s question whether he had ‘gone back to work, or done any type of work for pay or not’ Wanner willfully made a false statement within the meaning of N.D.C.C. § 65-05-33 in connection with his claim for workers’ compensation benefits.”

VIII

[¶ 31] Wanner contends forfeiture of all future benefits in connection with his work injury denies him his right to sure and certain relief for his work injury. In light of our disposition of other issues, we need not address that issue.

IX

[¶ 32] The judgment is reversed, and the matter is remanded for reinstatement of benefits and payment of accrued benefits erroneously terminated.

[¶ 33] WILLIAM A. NEUMANN, J„ concur.

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 34] I concur in the result reached by the majority opinion. Although I remain concerned about statements which could mislead the Bureau, F.O.E. Aerie 2337 v. North Dakota Workers Comp. Bureau, 464 N.W.2d 197, 201 (N.D.1990) (Vande Walle, J., concurring specially), Hopfauf v. North Dakota Workers Comp. Bureau, 1998 ND 40, ¶ 19, 575 N.W.2d 436 (Vande Walle, C.J., dissenting), it is unlikely Wanner’s failure to disclose the fact he sold some vegetables from a vegetable garden could mislead the Bureau and, therefore, be material. Presumably the Bureau believes if one can maintain a garden one can be rehabilitated. Were that the case, the fallacy, of course, is that if Wanner raised a garden and sold no vegetables and had no income, there would be no obligation to report any income even though he maintained the garden. N.D.C.C. § 65-05-08(3) (excluding routine maintenance of home and yard from definition of work).

[¶ 35] The failure to disclose Wanner drove a truck on occasion is a greater problem, particularly since Wanner was driving truck when he incurred the injury for which he is receiving benefits. But, the uncontradicted testimony is that Wanner drove the truck only when he did not feel ill, and he did nothing besides drive the truck. Neither the statutes nor the administrative code contain a definition of work. “This means not only that the Bureau may not agree with the claimant but, without a definition in the statute or a rule, the Bureau takes the risk the courts will not agree with the Bureau’s application of the term to particular facts.” Jacobson v. North Dakota Workers Comp. Bureau, 2000 ND 225, ¶ 15 n. 1, 621 N.W.2d 141.

[¶ 36] It must be proven by a preponderance of the evidence that driving the truck was “work.” I have serious doubt it was, under the circumstances, work in the ordinary sense. Because of this doubt, coupled with the severe result of the forfeiture of all future benefits after December 22, 1999, I concur in the result reached by the majority opinion.

[¶ 37] GERALD W. VANDE WALLE, C.J., concurs.

NEUMANN, Justice,

concurring.

[¶ 38] The absence of any definition of work in the statutes or in the administrative code raises due process questions. It seems inherently unfair to hold claimants to an unspecified standard of compliance in reporting their activities and then subject them to the risk of losing benefits if they fail to meet that unspecified standard. I believe the Bureau should tell claimants what constitutes “work” for the purposes of complying with N.D.C.C. § 65-05-08(3).

[¶ 39] WILLIAM NEUMANN, J., concurs.

SANDSTROM, Justice,

dissenting.

[¶ 40] In Unser v. N.D. Workers Compensation Bureau, in an opinion authored by Justice Maring, this Court unanimously held:

A failure to report income is, by the very nature of the violation, material to the Bureau’s ability to determine a claimant’s entitlement to benefits and to calculate the amount of benefits. By failing to report income a claimant impedes the Bureau’s process of determining eligibility.

Unser, 1999 ND 129, ¶ 18, 598 N.W.2d 89.

[¶ 41] Here, the Bureau specifically found that Wanner had failed to report income to the Bureau.

[¶ 42] The record clearly reflects that when asked to report whether he had “received money from any source other than from the Bureau,” Wanner did not disclose the money received from the sale of vegetables.

[¶ 43] The Bureau found, as record testimony clearly supports, Wanner bragged to an undercover investigator that he did not report to the Bureau the money he received from the sale of vegetables: “Of course, I don’t report any of the money from the vegetables to workers comp, either.” Finding of Fact 21.

[¶ 44] The Bureau specifically concluded, “Considered in the context of the circumstances, the greater weight of the evidence establishes that Wanner intentionally failed to report the money received for the sale of vegetables from his garden.”

[¶ 45] Based on the evidence presented, the Bureau concluded Wanner was selling “substantial quantities of vegetables.”

[¶ 46] The majority, at ¶ 20, asserts that the total unreported amount testified to “falls within a range of $129 to $160.” The Bureau made no such finding, and the transcript of the hearing before the Bureau (pp. 82, 85, and 86) reflects that Wanner himself testified to receiving from $256 to $266 from the sale of vegetables.

[¶ 47] The majority, at ¶ 21, characterizes the amount not reported as “minimal” and concludes it was not material.

[¶ 48] Clearly, our statutes do not reflect that the amount asserted by the majority or the larger amount admitted by Wanner are without legal significance. The smaller amount is legally significant, for example, under our theft statutes. See N.D.C.C. ch. 12.1-23. And our theft statutes recognize $250 as the amount raising a theft offense from a class B misdemean- or to a class A misdemeanor. N.D.C.C. § 12.1-23-05.

[¶ 49] It should also be remembered that the Bureau, when it found the “substantial” sales by Wanner, did not limit its findings to the amount admitted by Wanner. That Wanner sold more than he admitted is a reasonable inference from the evidence presented.

[¶ 50] Materiality of a misrepresentation is ordinarily a question of fact. Southern Equipment & Tractor Co. v. K & K Mines, Inc., 272 Ark. 278, 613 S.W.2d 596 (1981). Here, the majority impermis-sibly substitutes its judgment for that of the fact-finder. If the materiality of the misrepresentation were a question of law, the Bureau’s conclusion would be wholly supported by North Dakota law.

[¶ 51] Similarly, whether Wanner’s truck driving was “work” is a question of fact permissibly decided by the Bureau.

[¶ 52] I agree with the reasoned opinion of the district court, which agreed with the Bureau that Wanner willfully failed to report income and work and the misrepresentations were material:

As pointed out by the Bureau the Administrative Law Judge, hereafter “ALJ”, made extensive findings relative to whether Wanner willfully failed to report income or work activities to the Bureau. Concerning the alleged failure to report to the Bureau his income from gardening activities the ALJ found credible and most damaging Wanner’s statement to the Bureau’s investigator that he had not been reporting such income. Concerning Wanner’s work activities for the Rollers the ALJ found significant that some of his activities involved doing the same work Wanner used to do— driving truck.
The ALJ carefully considered the evidence and had the opportunity to observe the witnesses and assess their credibility. The ALJ noted that Wanner acknowledged reading the monthly reports and did not claim he was confused or did not understand the instructions or advice for completing the forms or that his responses to the Bureau’s questions were mistaken. After carefully considering the record, this Court finds there is substantial evidence from which a reasoning mind reasonably could have determined that Wanner willfully made false statements to the Bureau when he failed to report the income from the sale of his garden vegetables or his work activities at the Rollers.
Wanner’s credibility and honesty with the Bureau are crucial in a determination of his claim. In this case the nature of Wanner’s injury involves assessments that are not readily subject to objective measurement. The amount of pain and Wanner’s abilities are dependent in large measure upon his subjective report. If Wanner is willfully being dishonest with the Bureau it impairs the Bureau’s ability to properly determine his claim.
A failure to report income is by its very nature material to the Bureau’s ability to determine a claimant’s entitlement to benefits. Unser v. North Dakota Workers Compensation Bureau, 1999 ND 129 ¶ 18, 598 N.W.2d 89. A failure to report work activities similarly impedes the Bureau’s process of determining eligibility. Snyder v. North Dakota Workers Compensation Bureau, 2001 ND 38 ¶ 18, 622 N.W.2d 712. While this Court agrees with Wanner and finds that the circumstances surrounding Wanner’s false statements are not as egregious as those in Unser, supra, and Snyder, supra, the conclusion must still be the same. Wanner’s false statements were sufficiently material to warrant the termination of future benefits and there is sufficient evidence to support the Bureau’s decision.

[¶ 53] I would affirm.

[¶ 54] CAROL RONNING KAPSNER, J., concurs.

      . We note, however, that N.D.C.C. § 65-05-08(3) states " 'work’ does not include routine daily activities of self-care or family care, or routine maintenance of the home and yard.” Accordingly, it is difficult to understand the need or relevance of such intrusive surveillance as took place in this case.


author: PER CURIAM.

text:
    2002 SD 143
    The PEOPLE of the State of South Dakota, In the Interest of B.C., C.C., and J.C., Minor Children, and Concerning M.C., J.B.C. and M.A.
    No. 22226.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 17, 2002.
    Decided Nov. 26, 2002.
    Mark W. Barnett, Attorney General, Ann M. Hólzhauser, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
    Donna L. Bucher of Tinan, Smith <& Bucher, Mitchell, South Dakota, Attorneys for appellant J.B.C.
   PER CURIAM.

[¶ 1.] Following a hearing adjudging her three minor children, B.C., C.C. and J.C. abused and neglected and prior to the dispositional hearing, J.B.C. (Mother), petitioned for a voluntary termination of her parental rights. Mother now appeals contending the trial court inappropriately granted the petition.

FACTS AND PROCEDURE

[¶ 2.] These three children were taken into protective custody on October 19, 2000. An adjudicatory hearing was held on December 12, 2000, at which time Mother admitted that the children were abused and neglected in that, through her omissions, they were not receiving proper care and were left unsupervised as alleged in the petition. The dispositional hearing was initially scheduled for January 30, 2001, but it was continued. The hearing was held on May 25, 2001 but not completed until November 9, 2001. Sometime during this time Mother made a decision to voluntarily terminate parental rights.

[¶ 3.] On November 7, 2001, two days prior to the hearing in this matter, Mother met with a social worker for counseling relating to her decision to terminate parental rights. As required by SDCL 25-5A-23, that counseling included: verifying that the decision was not the result of undue influence or the influence of any substance; discussing alternatives and resources available; informing Mother of the permanency of the decision; addressing the emotional issues involved; relaying to Mother her right to legal counsel; and assessing Mother’s ability to understand the consequences of this decision. In addition, the social worker prepared a written report as required by SDCL 25-5A-24.

[¶ 4.] On the next day, November 8, 2001, mother completed a “Waiver of Notice and Consent to Termination of Parental Rights and Power of Attorney to Consent to Termination of Parental Rights.” That document recites that mother believes it to be in the best interests of the children to transfer all her parental rights to the Department of Social Services (DSS). In addition, the document indicates: “I further state that I have received counseling as required by SDCL 25-5A-24 and have further had adequate opportunity to and have in fact consulted with legal counsel of my selection concerning my rights and obligations in this matter and am satisfied with the same.”

[¶ 5.] The trial court proceeded with the petition for termination of parental rights at the November 9, 2001, hearing. After being informed by examination of Mother under oath, the trial court entered an order approving the termination of parental rights finding it to be in the best interests of the children. Mother now appeals contending that the termination is defective because the counseling she received did not comport with the requirements of SDCL ch 25-5A.

ISSUE

[¶ 6.] Whether the failure to comply with the fifteen-day counseling requirement set forth in SDCL 25-5A-23 rendered Mother’s consent to terminate parental rights void.

[¶ 7.] “Terminations of parental rights are strictly governed by statute in South Dakota.” In re H.O., 2001 SD 114, ¶ 8, 633 NW2d 603, 605. SDCL ch 25-5A governs the voluntary termination of parental relations. “The mandates of SDCL ch 25-5A, the voluntary termination of parental rights provisions, are to be met with strict compliance.” Matter of T.M.B., 416 N.W.2d 260, 262 (S.D.1987). Due to alleged violations of SDCL 25-5A-23, Mother claims that the termination order is void.

[¶ 8.] Though this Court has not previously addressed the counseling requirements contained in SDCL ch 25-5A, the legislature has clearly and unequivocally set forth a framework that provides for counseling to those seeking to voluntarily terminate parental rights. In this regard, SDCL 25-5A-22 requires that “[a]ny birthparent who plans to petition the court for the voluntary termination of parental rights shall obtain counseling regarding the termination” from a qualified social worker. SDCL 25-5A-22. Additionally:

Any person providing counseling pursuant to § 25-5A-22 shall make every reasonable effort to meet with the birth-parents at least fifteen days before termination of parental rights for the purpose of counseling the birthparents.

SDCL 25-5A-23 (emphasis added).

[¶ 9.] Though not disputing that the statutorily required counseling occurred, Mother disputes the timing of the counseling. Mother claims that because counseling occurred a mere two days prior to the order terminating her parental rights, that order is invalid and should be set aside. The record reveals that the trial court did not inquire during its examination as to when the counseling occurred, though it did have before it a copy of the counseling report required by SDCL 25-5A-24 dated November 7, 2001. Likewise, the trial court did not enter any findings concerning the reasonableness of any efforts made by DSS to provide counseling fifteen days prior to the hearing. However, the trial court did inquire of Mother as to whether she received such counseling, had the opportunity to consult with counsel, understood that this was a permanent action and whether she agreed this termination of rights was in the best interests of the children. She 'answered affirmatively to all these inquiries. Mother also indicated that she had no questions and did not need more . time to speak with her attorney.

[¶ 10.] The legislature has clearly required that parents taking the drastic step of petitioning for the termination of their parental rights be provided with counseling so that they may fully appreciate the ramifications of that decision. SDCL 25-5A-22. The statutory requirement that the counselor “make every reasonable effort to meet with the birthparents at least fifteen days before termination” demonstrates an intent to provide both counseling and an opportunity for reflection by the birthparents. SDCL 25-5A-23.

[¶ 11.] Nevertheless,, the legislature has also clearly dictated that:

Failure to comply with §§ 25-5A-22 to 25-5A-24, inclusive, may not be considered a basis for setting aside a voluntary termination of parental rights or an adoption.

SDCL 25-5A-25 (emphasis added). Therefore, Mother’s argument must fail as a matter of law. The legislature has clearly spoken to this issue and the failure to comply with this fifteen-day requirement is not grounds to set aside the voluntary termination of Mother’s parental rights.

[¶ 12.] With this in mind, a trial court, when faced with this situation, should liberally grant a continuance so that a birth-parent may be provided the timé tó reflect on a decision of this magnitude. Clearly, the ability of a birthparent to be provided with the time to contemplate such' a decision following counseling designed to provoke reflection and thought is contained in the legislative framework. While recognizing that no request for a continuance was made to the trial court in this instance, both the trial courts and DSS should be cognizant of this fifteen-day provision and make every opportunity to ensure compliance therewith.

[¶ 13.] Affirmed.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, and AMUNDSON, Retired Justice, participating.

[¶ 15.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . The fathers of the children also consented to termination of parental rights.

      . As a result, there is no issue as to abuse of discretion in failing to grant a continuance.