author:
MARING, Justice.
      SANDSTROM, Justice, [¶ 46] DALE V. SANDSTROM, J. VANDE WALLE, Chief Justice,

text:
    2002 ND 16
    STATE of North Dakota, Plaintiff and Appellee, v. Alfred R. RANDALL, Defendant and Appellant.
    No. 20000325.
    Supreme Court of North Dakota.
    Feb. 19, 2002.

      Richard J. Riha, State’s Attorney, and Cynthia M. Feland (argued), Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Robert W. Martin, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Alfred Randall appealed from a South Central Judicial District Court conviction for the attempted murder of Terry Davenport. We affirm.

I

[¶ 2] On December 29, 1999, law enforcement officers from the Burleigh County Sheriffs Department received a call from the Davenport residence reporting a shooting. At the scene, the officers found Davenport who had been shot in his lower abdomen. Randall was identified as the shooter and was arrested and charged with attempted murder.

[¶ 3] At trial, Randall’s tape-recorded admissions to law enforcement officers were admitted into evidence. In these admissions, Randall argued he either acted in self-defense or the shooting was accidental. On cross-examination of Davenport, Randall’s counsel attempted to question Davenport about his seventeen prior convictions. The State objected, and further argument was heard in chambers.

[¶4] During the in-chambers hearing, the State conceded to the admission of Davenport’s two forgery convictions and his conviction for theft by deception. However, the State argued Davenport’s fourteen other convictions should not be admitted because they did not involve dishonesty or false statement. Of the fourteen remaining convictions, the trial court admitted three and excluded the other eleven under N.D.R.Ev. 609(a)®. Thus, the court admitted six of Davenport’s seventeen prior convictions, including a 1993 conviction for forgery, a 1994 conviction for forgery, a 1995 conviction for burglary, a 1995 conviction for theft, a 1998 conviction for theft, and a 1998 conviction for issuing checks without an account. Randall was convicted of the attempted murder of Davenport and appealed.

II

[¶ 5] On appeal, Randall argues the trial court erred in excluding eleven of Davenport’s seventeen prior convictions. We review a trial court’s ruling under N.D.R.Ev. 609 under the abuse of discretion standard. See State v. Eugene, 536 N.W.2d 692, 695 (N.D.1995). “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” Myer v. Rygg, 2001 ND 123, ¶ 8, 630 N.W.2d 62. The convictions excluded by the trial court included two convictions for burglary, eight convictions for breaking into a motor vehicle, and one conviction for conspiracy to commit breaking into a motor vehicle. Randall does not contend any of these eleven convictions constitute crimes involving dishonesty or false statement; therefore, N.D.R.Ev. 609(a)(ii) is not at issue in this case. See N.D.R.Ev. 609(a)(ii) (“[E]vi-dence that any witness has been convicted of a crime must be admitted if it involved dishonesty or false statement, regardless of the punishment.”). At issue in this case, is whether the trial court abused its discretion in excluding Davenport’s prior convictions under N.D.R.Ev. 609(a)®. Rule 609(a)®, N.D.R.Ev., provides,

For the purpose of attacking the credibility of a witness, (i) evidence that a witness other than an accused has been convicted of a crime must be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect to the accused.

We have previously addressed the admissibility of conviction evidence offered by the State under N.D.R.Ev. 609(a)® to impeach a defendant in a criminal case, see, e.g., State v. Murchison, 541 N.W.2d 435, 442 (N.D.1995); State v. Eugene, 536 N.W.2d 692, 695 (N.D.1995). However, we have never directly addressed the admissibility of conviction evidence offered by a defendant in a criminal prosecution to impeach a witness for the State. See, e.g., State v. Neufeld, 1998 ND 103, ¶ 25, 578 N.W.2d 536 (impeachment using alleged victim’s prior drug use that did not result in a conviction not allowed); State v. Overby, 497 N.W.2d 408, 413 (N.D.1993) (impeachment of confidential informant using prior drug sale that did not result in a conviction not allowed); State v. Moran, 474 N.W.2d 77, 78 (N.D.1991) (impeachment of alleged victim using an alleged assault that did not result in a conviction not allowed). Because of the similarities between N.D.R.Ev. 609 and Rule 609 of the Federal Rules of Evidence, we consider federal precedent interpreting Rule 609 persuasive. See State v. Farzaneh, 468 N.W.2d 638, 641 (N.D.1991).

Ill

[¶ 6] Rule 609 of the Federal Rules of Evidence allows evidence of a witness’s prior convictions to be admitted for the purpose of attacking the witness’s credibility. See Fed.R.Evid. 609. Evidence admitted under Rule 609 serves no purpose other than to impeach a witness. See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments (“[T]he title of the rule, its first sentence, and its placement among the impeachment rules clearly establish that evidence offered under Rule 609 is offered only for purposes of impeachment.”). Thus, inherent in Rule 609(a) is an acknowledgment that prior convictions are probative of a witness’s credibility. See U.S. v. Burston, 159 F.3d 1328, 1335 (11th Cir.1998); see also Cummings v. Malone, 995 F.2d 817, 826 (8th Cir.1993) (“Federal Rule of Evidence 609 is based on the common sense proposition that one who has transgressed society’s norms by committing a felony is less likely than most to be deterred from lying under oath.”). The types of convictions admissible to impeach -witnesses and the extent of discretion trial courts have to exclude evidence of prior convictions have been subjects of great debate. See 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6131, at 142 (1993).

[¶ 7] The 1969 Preliminary Draft of Rule 609 allowed all felony convictions and all convictions for crimes involving dishonesty or false statements to be admitted for the impeachment of any witness. See Wright & Gold, supra, § 6131, at 143. It did not distinguish between accused persons and other witnesses and provided no provision for exclusion of convictions for unfair prejudice. See id. Additionally, the Advisory Committee’s Notes to the Preliminary Draft suggested convictions admissible under Rule 609(a) would be immune from exclusion under Rule 403 of the Federal Rules of Evidence. See Wright & Gold, supra, § 6131, at 143.

[¶ 8] The Preliminary Draft was sharply criticized by scholars for its failure to give trial courts any power to exclude even highly prejudicial convictions. See id. at 145. The drafters responded to this criticism by revising the Preliminary Draft to add a provision which provided for the exclusion of conviction evidence when its probative value is substantially outweighed by the danger of unfair prejudice. See id. Some members of Congress, however, sharply disagreed with the revision made to the Preliminary Draft. See id. at 149. Thus, before submitting Rule 609 to Congress, the drafters removed the provision giving trial courts discretion to exclude prejudicial convictions, and the Preliminary Draft was submitted in its original form. See id.

[¶ 9] Once in Congress, Rule 609 was again the subject of vigorous debate. See id. at 153-65. As before, this debate focused on the types of convictions admissible to impeach a witness and a trial court’s discretion to exclude prejudicial convictions. See id. Eventually a compromise on these issues was reached, and Rule 609(a) was enacted. See id. at 165-66. As originally enacted, Rule 609(a) provided:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

Wright & Gold, supra, § 6131, at 166 n. 42 (quoting Fed.R.Evid. 609(a)).

[¶ 10] Despite the level of debate preceding its enactment, Rule 609(a) remained ambiguous with respect to impeachment of a witness other than a criminal defendant. See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments. The Supreme Court resolved this ambiguity in Green v. Bock Laundry Machine Co., by holding trial courts could only consider prejudice to a defendant in a criminal prosecution when determining whether to exclude convictions for prejudice under Rule 609(a). See Green v. Bock Laundry Machine Co., 490 U.S. 504, 525-26, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). Furthermore, the Supreme Court concluded evidence otherwise admissible under Rule 609(a) could not be excluded under Rule 403. See id. The 1990 amendments to Rule 609(a) were a direct response to this decision. See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments (citing Green, 490 U.S. 504, 109 S.Ct. 1981).

[¶ 11] As amended in 1990, Rule 609(a) provides:

For purpose of attacking the credibility of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

Fed.R.Evid. 609(a) (2001). The 1990 amendments made no substantive changes to Rule 609(a)(2). See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments. Thus, evidence that any witness, including a defendant in a criminal case, has been convicted of a crime involving dishonesty or false statement must be admitted. See id. A trial court has no discretion to exclude such evidence under Rule 609 or under Rule 403. See id. The 1990 amendments did, however, make substantive changes to Rule 609(a)(1). See id.

[¶ 12] Prior to the 1990 amendments, Rule 609(a)(1) provided only one balancing test for trial courts to apply when determining whether to exclude evidence of pri- or convictions offered for impeachment purposes. See Wright & Gold, supra, § 6131, at 166 n. 42 (quoting Fed.R.Evid. 609(a)). As discussed earlier, the Supreme Court interpreted this test to apply only when convictions were offered to impeach a defendant in a criminal prosecution. See Green, 490 U.S. at 525-26, 109 S.Ct. 1981. The 1990 amendments to Rule 609 provided trial courts with two distinct balancing tests to apply when determining whether to allow impeachment by prior convictions which do not involve dishonesty or false statement. See Victor Gold, Impeachment by Conviction Evidence: Judicial Discretion and the Politics of Rule 609, 15 Cardozo L.Rev. 2295, 2322 (1994). Which balancing test applies, depends on the identity of the witness. See id.

[¶ 13] When a conviction is offered under Rule 609, to impeach a witness who is the defendant in a criminal prosecution, a trial court must apply the special balancing test found within Rule 609(a)(1) itself. See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments (stating that the 1990 amendments did not “disturb the special balancing test for the criminal defendant who chooses to testify”). Under this balancing test, evidence of the prior conviction “shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” Fed. R.Evid. 609(a)(1). The special balancing test of Rule 609(a)(1) only applies to a criminal defendant because a criminal defendant faces the unique risk that juries will use prior convictions as evidence of the defendant’s propensity to commit crime, rather than considering the convictions for impeachment purposes only. See Fed. R.Evid. 609 advisory committee’s notes to 1990 amendments. Because of this unique risk, Rule 609(a)(1) favors excluding rather than admitting the prior felony convictions of a witness who is an accused. See 3 Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual § 609.02[2] (8th ed.2002). Therefore, under the special balancing test of Rule 609(a)(1), the burden is on the prosecution to show that the probative value of the conviction outweighs its prejudicial effect. See Gold, supra, at 2322; see also Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments (“Although the rule does not forbid all use of convictions to impeach a defendant, it requires that the government show that the probative value of convictions as impeachment evidence outweighs their prejudicial effect.”).

[¶ 14] When convictions are offered to impeach any witness other than an accused in a criminal prosecution, the special balancing test of Rule 609(a)(1) does not apply. See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments. Rather, “the ordinary balancing test of Rule 403, which provides that evidence shall not be excluded unless its prejudicial effect substantially outweighs its probative value, is appropriate for assessing the admissibility of prior convictions for impeachment of any witness other than a criminal defendant.” See id.; see also U.S. v. Fawley, 137 F.3d 458, 473 (7th Cir.1998) (stating that Rule 609(a)(1) offers wider latitude in the impeachment of a witness who is not an accused). The 1990 amendments to Rule 609, therefore, reject the proposition that Rule 609 prohibits trial courts from excluding unduly prejudicial convictions offered to impeach prosecution witnesses. See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments. However, because “[t]he probability that prior convictions of an ordinary government witness will be unduly prejudicial is low in most criminal cases,” see Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments, trial courts should rarely exclude convictions offered to impeach prosecution witnesses, see Gold, supra, at 2327. As the Advisory Committee’s Notes to the 1990 amendments of Rule 609 explain:

Since the behavior of the witness is not the issue in dispute in most cases, there is little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence. Thus, trial courts will be skeptical when the government objects to impeachment of its witness with prior convictions. Only when the govern ment is able to point to a real danger of prejudice that is sufficient to outweigh substantially the probative value of the conviction for impeachment purposes will the conviction be excluded.

See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments (emphasis added). Therefore, when a defendant offers evidence of prior convictions to impeach a prosecution witness, such evidence shall be admitted under Rule 609(a)(1), unless the prosecution meets its burden of showing the probative value of the convictions is substantially outweighed by the danger of unfair prejudice under Rule 403. See Gold, supra, at 2322;

[¶ 15] Placing this burden on the prosecution is consistent with our construction of N.D.R.Ev. 403 in State v. Zimmerman, 524 N.W.2d 111, 115 (N.D.1994). Rule 403, N.D.R.Ev., provides:

Although relevant, evidence may be excluded if its' probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In Zimmerman, we recognized that a trial court should sparingly exercise its power to exclude evidence under Rule 403. See 524 N.W.2d at 115. In determining whether to exclude evidence under Rule 403, courts should “‘give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.’ ” See id. (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence ¶ 403[03], pp. 403-49, 403-51 (1994)). “Generally, any doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge.” Id. Therefore, the burden is on the objecting party to show that relevant evidence should be excluded under Rule 403. See Kociemba v. G.D. Searle & Co., 683 F.Supp. 1579, 1581 (D.Minn.1988). It follows, when a defendant in a criminal case offers evidence otherwise admissible under N.D.R.Ev. 609(a)(i), the burden is on the prosecution, as the objecting party, to show that the probative value of the conviction evidence is substantially outweighed by the danger of unfair prejudice under N.D.R.Ev. 403. See Campbell v. Greer, 831 F.2d 700, 705 (7th Cir.1987) (noting that under Rule 403, the party opposing the use of conviction evidence has the burden to persuade the trial judge to exclude the evidence, whereas under the special balancing test of Rule 609(a), the party offering the evidence has the burden of persuasion).

[¶ 16] In this case, Randall, a defendant in a criminal case, offered evidence of seventeen prior convictions for the purpose of impeaching the credibility of Davenport, a prosecution witness. There is no dispute that the eleven convictions excluded by the trial court were for crimes “punishable by death or imprisonment in excess of one year under the law under which the witness was convicted.” N.D.R.Ev. 609(a)®. Thus, these eleven convictions should have been admitted under Rule 609(a)® unless the State met its burden of showing that the probative value of the convictions was substantially outweighed by the danger of unfair prejudice under Rule 403. See Greer, 831 F.2d at 705; Gold, supra, at 2322.

[¶ 17] The State attempted to meet its burden in this case by arguing the eleven convictions were not probative because the convictions did not involve dishonesty or false statement. However, the State made no argument that the admission of these convictions was in any way prejudicial under Rule 403. In order to launch a successful Rule 403 challenge to evidence otherwise admissible under N.D.R.Ev. 609(a)(i), the State must “point to a real danger of prejudice that is sufficient to outweigh substantially the probative value of the conviction for impeachment purposes.” See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments. The probative value of prior conviction evidence is a product of “the degree to which the evidence is logically probative of untruthfulness and the extent to which this credibility evidence is needed, given the context in which the evidence is offered.” See Wright & Miller, supra, § 6134, at 230. Prior conviction evidence is unfairly prejudicial under Rule 403, “to the extent it may induce the jury to decide the case on an improper basis.” See id. For example, when the witness is a victim in a criminal prosecution and the defendant raises self-defense as an issue, the chance exists that the jury might misuse the victim’s prior convictions as propensity evidence of the victim’s behavior rather than as impeachment evidence. See Fed. R.Evid. 609 advisory committee’s notes to 1990 amendments (“Since the behavior of the [prosecution] witness is not the issue in dispute in most cases, there is little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence.”); see also U.S. v. Rowe, 92 F.3d 928, 933 (9th Cir.1996) (victim’s prior conviction for automobile theft was properly excluded under Rule 403 because the jury might improperly infer that the victim had stolen the car she was driving the night she was carjacked by the defendant). Also, there is a chance the jury may simply conclude from the victim’s prior convictions that the victim was a bad person and “had it coming.” See 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 274, at 235 (2d ed.1994). In this case, however, the State did not raise either of these arguments at trial, and the record is entirely devoid of any reference to such dangers by the trial court. See Fed.R.Evid. 609 advisory committee’s notes to 1990 amendments (“Only when the government is able to point to a real danger of prejudice that is sufficient to outweigh substantially the probative value of the conviction for impeachment purposes will the conviction be excluded.”).

[¶ 18] Despite the State’s failure to make any showing of prejudice, the trial court required Randall’s counsel to argue why admission of all seventeen convictions would not be prejudicial:

THE COURT: That’s what I said earlier. 403 is the one I have to interpret but these are admissible under 609. The question now becomes should I allow them in under 403? They’re admissible clearly under 609. 609 says any time you commit a felony subject to 403, of course that’s always the case although they’re irrelevant if it’s outweighed by the unfair prejudice then that’s the question. That’s the issue right there now. So argue that. Mr. Martin, you have 17 things here exactly. Why isn’t that prejudicial?

Thus, the trial court incorrectly placed the burden on Randall to show that evidence of Davenport’s seventeen prior convictions would not be prejudicial when, in fact, the burden should have been on the State to show that the unfair prejudice of the evidence of the convictions would substantially outweigh their probative value. See Greer, 831 F.2d at 705 (noting that under Rule 403, the party opposing the use of conviction evidence has the burden to persuade the trial judge to exclude the evidence, whereas under the special balancing test of Rule 609(a), the party offering the evidence has the burden of persuasion); Gold, supra, at 2322. In placing this burden on Randall, the trial court misapplied N.D.R.Ev. 609(a)® and abused its discretion. See Myer, 2001 ND 123, ¶ 8, 630 N.W.2d 62 (trial court abuses its discretion when it misinterprets or misapplies the law).

[¶ 19] Although the State did not raise the argument at trial, the trial court also appears to have considered the “cumulative evidence” and “waste of time” factors of Rule 403 in determining to exclude eleven of Davenport’s seventeen prior convictions. The mere fact that evidence is cumulative, however, is not a basis for exclusion under Rule 403, rather, a trial court is only authorized to exclude the “needless presentation” of cumulative evidence. See 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5220 (Supp.2001). Furthermore, to exclude evidence on this basis, the concern over the “needless ■ presentation of cumulative evidence” must substantially outweigh the probative value of the evidence. See 2 Weinstein’s Federal Evidence § 403.06[1] (2d ed.2001). Inherent in Rule 609 is a recognition that prior convictions are probative of a witness’s credibility. See Bur-ston, 159 F.3d at 1335. Thus, in the context of Rule 609(a)®, an analysis beyond merely that there are seventeen convictions and their admission would be cumulative is required. Under Rule 609(a)®, the number and nature of Davenport’s prior convictions directly relate to his credibility as a witness. See id. (“Evidence of a murder conviction says something far different about a witness’ credibility than evidence of a conviction for a minor drug offense.... Furthermore, evidence of fifteen murder convictions says something different about a witness’ credibility than evidence of only one such conviction.”). Additionally, where there is no other evidence to impeach the witness, the probative value of the conviction evidence is increased. See U.S. v. Cavender, 228 F.3d 792, 799 (7th Cir.2000) (evidence of a prior conviction was not cumulative under Rule 403 where the only other impeachment evidence admitted was testimony indicating the witness had lied to a police officer and evidence that the witness was being compensated for testifying). Here the trial court appears to have concluded that the cumulative nature based on the number of convictions alone was prejudicial. Such an application of Rule 403, in the context of Rule 609, was an abuse of discretion.

IV

[¶ 20] When a trial court errs in excluding evidence, this Court must decide whether the error was so prejudicial that a defendant’s substantial rights were affected and a different decision would have resulted without the error. State v. Kelly, 2001 ND 135, ¶ 26, 631 N.W.2d 167. To determine whether an error affecting the defendant’s substantial rights has been committed, the entire record must be considered and the probable effect of the error determined in the light of all the evidence. See id. (citing Rule 52, N.D.R.Crim.P., Explanatory Note). Under Rule 609, error is harmless if the witness’s credibility was sufficiently impeached by other evidence, or if the State’s case was strong enough to support a conviction even apart from the witness’s testimony. Burston, 159 F.3d at 1336.

[¶ 21] Even though the trial court erred in excluding Davenport’s eleven felony convictions, the error is harmless. While Davenport’s convictions should have been admitted, the case was not solely determined on Davenport’s testimony. Randall was still able to impeach Davenport’s credibility with the six convictions that were admitted. See United States v. Baylor, 97 F.3d 542, 545 (D.C.Cir.1996) (court found error barring further impeachment was harmless). The jury was presented with evidence of six prior felony convictions with which to assess Davenport’s credibility. The impact of introducing more convictions similar to those already in evidence arguably would not have been great. See Burston, 159 F.3d at 1336; see also State v. Brandner, 551 N.W.2d 284, 286 (N.D.1996) (holding the prejudicial effect of exclusion of evidence was minimal).

[¶ 22] Davenport’s testimony, while helpful, was not critical to the State’s case. See Burston, 159 F.3d at 1336. There was sufficient independent evidence presented to support the jury’s verdict finding Randall guilty, even without the testimony of Davenport. Most notably, the jury was presented with Randall’s taped admissions of shooting Terry Davenport. The jury had an opportunity to assess Randall’s credibility when they heard Randall’s conflicting accounts of the events leading to the shooting. In Randall’s taped admissions, he made contradicting statements. Initially, he claimed the shooting was in self-defense. Later, he claimed the shooting was accidental. Finally, he claimed he was trying to scare Davenport by shooting in the air. Randall also described taking a slingshot and launching the empty bullet casing into a field by his house, so it would not be used as evidence against him. Randall also repeatedly stated he hoped Davenport learned his lesson from the shooting. The jury did not believe Randall’s self-defense theory. We are not persuaded admission of Davenport’s remaining eleven felony convictions would have produced a different result in this case. See State v. Hart, 1997 ND 188, ¶ 21, 569 N.W.2d 451.

[¶ 23] In addition, the jury heard testimony supporting a guilty verdict from other witnesses. Dale Davenport, Terry’s brother, was an eye-witness to the shooting. Dale Davenport testified Terry Davenport and Randall had a five to ten minute conversation, that Randall turned to walk away, but then turned back and shot Terry. Dale Davenport’s testimony supports Terry Davenport’s testimony and contradicts the circumstances of the shooting given by Randall. Nothing in the record suggests that Dale Davenport’s testimony was manufactured to support Terry Davenport’s version of the events, nor was this suggested by Randall. Ellen Glennon, a resident of Regan, testified that on the morning of the shooting Randall told her there were going to be fireworks that night. Glennon’s testimony, along with Randall’s testimony about the night of the shooting being the first time he had ever taken a gun with him, supports the jury’s rejection of Randall’s self-defense theory.

[¶ 24] In light of the substantial evidence supporting Randall’s guilt, the erroneous .exclusion of impeachment evidence was harmless error. See Burston, 159 F.3d at 1336; see also Rowe, 92 F.3d at 933.

V

[¶ 25] We conclude the trial court abused its discretion by misapplying N.D.R.Ev. 609(a)(i), but because the error was harmless, we affirm the judgment of the trial court.

[¶ 26] MARY MUEHLEN MARING, WILLIAM A. NEUMANN, JJ., and LAURIE A. FONTAINE, D.J., concur.

[¶ 27] LAURIE A. FONTAINE, D.J., sitting in place of KAPSNER, J., disqualified.

SANDSTROM, Justice,

concurring in the result.

[¶ 28] I agree with the majority’s construction of the balancing tests in Rules 609 and 403, N.D.R.Ev.; however, the majority wrongly concludes that the district court abused its discretion when applying the rule. I write separately (1) to disagree with the majority’s conclusion the district court erred in the application of Rule 609 and abused its discretion by excluding some of Davenport’s prior felony convictions, (2) to emphasize public policy considerations when the witness in question is the alleged victim, and (3) to emphasize that the complexity of Rule 609 demands the parties prepare appropriately and raise the issue of admission of prior convictions before trial.

I

[¶ 29] The majority correctly sets forth the history of Rule 609 and explains the different balancing tests of Rule 609, including the application of the Rule 403 balancing test in the context of Rule 609. Under the majority’s construction of the rules, I do not believe the district court abused its discretion.

[¶ 30] The majority misconstrues the district court’s language and actions, and then says the language and actions as misconstrued reflect an abuse of discretion.

[¶ 31] The majority asserts two reasons for its conclusion the district court abused its discretion. First, at ¶ 18, the majority concludes the district court placed the burden of showing prejudice on the wrong party. Second, at ¶ 19, the majority concludes the district court erred when applying the “needless presentation of cumulative evidence” provision of Rule 403.

[¶ 32] First, at ¶ 18, the majority concludes the “trial court incorrectly placed the burden on Randall to show that evidence of Davenport’s seventeen prior convictions would not be prejudicial.” The majority provides an excerpt, at ¶ 18, from the in-chambers hearing. This excerpt is taken out of context.

[¶ 33] The transcript of the hearing in chambers shows the judge appropriately placed the initial burden on the State. The transcript also shows the district court asked both parties to argue the probative value, as well as the potential for unfair prejudice, of the convictions under Rule 403. First, the judge asked the State to argue the prejudicial value of Davenport’s convictions.

THE COURT: Of the 17 different felonies now tell me why you think generally 609A allows admissibility for any or all of those subject to the rule of whether or not probative outweighs the prejudicial.

Although the State focused its argument on whether the convictions were admissible under Rule 609(a)(ii), as crimes involving dishonesty or false statement, the district court recognized the convictions were possibly prejudicial. At this point in the hearing, the district court commented on the State’s argument and directed a question to the defense.

THE COURT: That’s what I said' earlier. 403 is the one I have to interpret but these are admissible under 609. The question now becomes should I allow them in under 403? They’re admissible clearly under 609. 609 says any time you commit a felony subject to 403, of course that’s always the case although they’re irrelevant if it’s out-weighed by the unfair prejudice then that’s the question. That the issue right there now.
So argue that. [Defense counsel], you have 17 things here exactly. Why isn’t that prejudicial?

Finally, the judge ruled:

I am going to allow the admission of 6 criminal convictions spread over a period of time ... for purposes of showing that there is an extended period of time. This is not an isolated example. I think it gives us a whole impression of this individual.
More than that I am satisfied would be substantially prejudicial to show there was [sic] eleven more felonies in 1995.

The district court appears to have based its ruling on the “unfair prejudice” factor of N.D.R.Ev. 403, within the context of N.D.R.Ev. 609(a)®.

[¶ 34] Under the majority’s interpretation of the in-chambers hearing, the district court apparently is allowed to consider only the orally articulated arguments of counsel when making an evidentiary decision. The majority refuses to acknowledge the district court’s ability to recognize prejudice independently. I disagree with this unduly narrow interpretation of the in-chambers hearing.

[¶ 35] Second, the majority, at ¶ 19, discounts the district court’s consideration of the cumulative nature of the additional prior convictions, by attempting to distinguish “cumulative evidence” from the “needless presentation of cumulative evidence.” Because the district court used the shorthand reference to “cumulative evidence” without repeating the whole phrase, “needless presentation of cumulative evidence,” the majority unreasonably concludes the district court must have gotten the standard wrong, saying, at ¶ 19, the district court “appears to have concluded that the cumulative nature based on the number of convictions alone was prejudicial.” The majority’s characterization is unfair.

[¶ 36] Language from the in-chambers hearing shows the district court was considering the “needless presentation of cumulative evidence” nature of the prior convictions.

So ... how many more should I let in and why? At what point does the state become redundant, superfluous and highly, highly prejudicial? We have already established this guy is a criminal. How much of a criminal do we have to do? I have 1, 2, 3, 4, 5, 6, 7, 8, 9 convictions for breaking into a motor vehicle.

(Emphasis added). The majority, at ¶ 21, when arguing the error by the district court was harmless, recognizes “[t]he impact of introducing more convictions similar to those already in evidence arguably would not have been great.” The district court could have excluded the remaining convictions under the “cumulative evidence” or “waste of time” factors of Rule 403.

[¶ 37] In discussing the cumulative nature of the prior convictions, the majority, at ¶ 19, also states “where there is no other evidence to impeach the witness, the probative value of the conviction evidence is increased.” While this statement is accurate, it ignores the district court’s decision to admit three of Davenport’s prior convictions under N.D.R.Ev. 609(a)(ii) because they were crimes involving dishonesty or false statement. Again, when arguing the harmlessness of the district court’s perceived error, the majority, at ¶ 21, chooses to acknowledge “the case was not solely determined on Davenport’s testimony. Randall was still able to impeach Davenport’s credibility with the six convictions that were admitted.” It is simply not accurate to assert this was a case in which there was no other evidence to impeach the witness.

[¶ 38] The district court did not abuse its discretion in applying N.D.R.Ev. 609.

II

[¶ 39] When the witness is either the alleged victim in a criminal case or a plaintiff in a civil case, as Davenport was, public policy concerns must be considered when evaluating how many prior convictions should be admitted as impeachment evidence. See Minnesota v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn.1995); Wilson v. Groaning, 25 F.3d 581, 585 (7th Cir.1994); 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, § 274 (2d ed.1994). North Dakota has recognized similar concerns for alleged victims of sexual misconduct and has provided additional protection accordingly. N.D.R.Ev. 412; N.D.C.C. §§ 12.1-20-14, 12.1-20-15, 12.1-20-15.1 (superseded by N.D.R.Ev. 412, effective March 1,1998).

[¶ 40] As the Minnesota Supreme Court has noted, a court should be concerned with protecting all witnesses from harassment and embarrassment, the jury from being confused or misled, and all parties involved from an undue waste of time. Minnesota v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn.1995). Minnesota’s rule of evidence for the admission of prior convictions for impeachment purposes differs from the North Dakota and federal rules; however, the Lanz-Terry decision illustrates the public policy concerns at stake when the witness in question is also the alleged victim. Specifically, when reviewing the convictions of an alleged victim, the Minnesota Supreme Court stated:

The type and number of [the victim’s] convictions might have lead [sic] the jury to “see him as a person not capable of being a victim in this particular instance.” In other words, the convictions might have led the jury to conclude that [the victim] was a bad person who deserved to be the victim of a crime, which would amount to a decision being made on an improper basis.

Id. at 639. The Minnesota Supreme Court affirmed the trial court’s ruling not to allow the alleged victim to be impeached with his five prior convictions for robbery, possession of cocaine, theft from a person, sale of a controlled substance, and possession of a pistol by a felon on the basis the convictions “would have potentially led the jury to decide the case on an improper basis, and would likely have confused the jury and unnecessarily prolonged the trial.” Id at 638, 641.

[¶ 41] The Seventh Circuit has also recognized evidence of a plaintiffs prior convictions may prejudice his case. Wilson, 25 F.3d at 585. In a civil rights action brought by a prisoner against two correctional officers, the court said:

It “might be prejudicial to overload the factfinder ... [by] put[ting] in all the convictions because [the jury] might well determine that as a result of having that many convictions, that regardless of how the facts come out, that [the plaintiff-prisoner] is a person not deserving of any relief.”

Id. The court noted the additional concerns apply to a criminal case as well, stating the victim-witness’s prior convictions could lead to the inference the victim “had it coming,” and the defendant may be acquitted on improper grounds. Id. The Wilson court affirmed the trial court’s admission of three of the plaintiff-prisoner’s six prior convictions. Id. at 586.

[¶ 42] As the majority points out, the Advisory Committee’s Note explains the 1990 amendment “resolve[d] an ambiguity as to the relationship of Rules 609 and 403 with respect to impeachment of witnesses other than the criminal defendant.” Fed. R.Evid. 609 advisory committee’s note to 1990 amendment. The Advisory Committee’s comments also explain how Rule 403 helps to minimize the potential danger in the use of prior convictions for impeachment:

The amendment also protects other litigants from unfair impeachment of their witnesses. The danger of prejudice from the use of prior convictions is not confined to criminal defendants. Although the danger that prior convictions will be misused as character evidence is particularly acute when the defendant is impeached, the danger exists in other situations as well. The amendment reflects the view that it is desirable to protect all litigants from the unfair use of prior convictions, and that the ordinary balancing test of Rule 403, which provides that evidence shall not be excluded unless its prejudicial effect substantially outweighs its probative value, is appropriate for assessing the admissibility of prior convictions for impeachment of any witness other than a criminal defendant.

Id. The Advisory Committee’s comments also acknowledge “there are cases in which impeachment of government witnesses with prior convictions that have little, if anything, to do with credibility may result in unfair prejudice to the government’s interest in a fair trial and unnecessary embarrassment to a witness.” Id.

[¶ 43] Although the danger of unfair prejudice to a victim-witness does not invoke the same level of scrutiny we should employ when the prior convictions of a criminal defendant are at issue, Rule 609 provides for the possibility the victim-witness’s prior convictions could be used in a prejudicial manner. Id. Because of this possible misuse of impeachment evidence, Weinstein suggests a list of factors to assist a district coui-t in weighing the admissibility of the prior convictions of a witness other than the accused:

1. The impeachment value of the prior crime.
2. The date of the conviction and the witness’s subsequent history.
3. The degree of similarity between the past crime and any conduct of the witness that is at issue in the present litigation.
4. The importance of the witness’s testimony.
5. The centrality of the credibility issue.

4 Weinstein’s Federal Evidence, § 609.05[2] (2d ed.2001); see also Daniels v. Loizzo, 986 F.Supp. 245, 250 (S.D.N.Y.1997) (similar set of factors listed). Through the use of these factors, the potential for improper use of impeachment evidence will be lessened.

III

[¶ 44] The admission of prior convictions under Rule 609 is a complicated issue that should not be “sprung” on the district court as it was in this case. Absent unforeseen circumstances, Rule 609 issues should be raised before trial when all parties involved have adequate time and resources to make a carefully reasoned decision.

IV

[¶ 45] I agree the district court’s judgment should be affirmed, but I would affirm on the ground the district court did not abuse its discretion.

[¶ 46] DALE V. SANDSTROM, J.

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 47] I concur with most of the majority opinion concerning the application of N.D.R.Ev. 609. Although courts have been cxiticized for assuming the text of the rule allows them to exercise wide discretion in applying the rule, see Victor Gold, Impeachment by Conviction Evidence: Judicial Disci’etion and the Politics of Rule 609, 15 Cardoza L.Rev. 2295, 2296, and for ignoring the legislative history of Rule 609, id., the rule, with its incorporation by reference of Rule 403, does not appear ambiguous. In North Dakota, at least, we resort to legislative history only when a statute, and, presumably, a rule, are ambiguous. N.D.C.C. § 1-02-05. It appears to me the rule is ambiguous only when the legislative history is considered. But, I am persuaded by the majority opinion on this point because, in respect to the issue before us, the North Dakota rule tracks the Federal rule and the Uniform Rules of Evidence. See Explanatory Note to N.D.R.Ev. 609. Furthermore, the logic and policy expressed in the legislative history convince me it is the interpretation we should follow.

[¶ 48] It is not clear to me whether or not the trial judge applied the rule as interpreted by the majority opinion. I am inclined to agree with Justice Sandstrom that the trial court did properly apply the rule, but I suggest the record on these matters should be clear, or we will be consistently engaged in these discussions. Thus, although it is possible, as the concurring opinion suggests, that the trial court recognized prejudice independently of the orally articulated argument of counsel, I recommend the trial court make that clear on the record. The failure to do so will leave the trial court’s decision subject to interpretation and, although I favor a conclusion affirming the trial court’s exercise of discretion rather than a conclusion the court abused its discretion, my experience indicates this is a fertile ground for disagreement. A clear statement on the record will avoid that dispute.

[¶ 49] Finally, if there is error, I agree it is harmless and I concur in affirming the conviction.

[¶ 50] GERALD W. VANDE WALLE, C.J.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2002 ND 32
    Lee BERTSCH and Bertsch Construction, Inc., Plaintiffs, Appellants and Cross-Appellees, v. George “Skip” DUEMELAND and Duemeland’s Realty, LLC, Defendants, Appellees and Cross-Appellants.
    No. 20010151.
    Supreme Court of North Dakota.
    Feb. 20, 2002.

      James J. Coles, Coles Law Firm, PC, Bismarck, ND, for appellants.
    Randall J. Bakke (argued), and Michael J. Hagburg (on brief), Smith Bakke Hov-land Oppegard and James S. Hill (on brief), Zuger Kirmis & Smith, Bismarck, ND, for appellees.
   SANDSTROM, Justice.

[¶ 1] Lee Bertsch and Bertsch Construction, Inc., appealed a summary judgment dismissing their action against George Duemeland and Duemeland Realty, LLC, for defamation, tortious interference with a business relationship, and misappropriation of trade secrets. Duemeland cross-appealed from the denial of attorney fees. We conclude Bertsch raised genuine issues of material fact about his defamation claim, but he failed to raise genuine issues of material fact about his other claims. We further conclude the trial court did not abuse its discretion in denying Duemeland attorney fees. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

I

[¶ 2] In 1997, Hollywood Entertainment retained Ron Nelson, a Sioux Falls, South Dakota, real estate broker, to locate and recommend sites for Hollywood Video stores in North Dakota. According to Nelson, Hollywood Entertainment reviewed recommended sites for a store, and if a site “fe[lt] right,” Hollywood Entertainment provided the owner with a letter of intent. Hollywood Entertainment then conducted a supply and demand study to determine whether the potential site met threshold standards, and if the site passed that study, Hollywood Entertainment conducted a site pack review, which consisted of an exhaustive and detailed study of the site. According to Nelson, a potential site must pass the site pack review before Hollywood Entertainment leases the site.

[¶ 3] In May 1997, Nelson visited Bismarck to locate potential sites for a Hollywood Video store, and he contacted several Bismarck real estate agents, including Bertsch and Duemeland. Nelson had met Bertsch while Nelson was looking for a potential site for a Hollywood Video store in Minot. Bertsch was seeking financing for an option to purchase property known as the Christopher Building in Bismarck, and he began working with Nelson to lease space in the Christopher Building to Hollywood Entertainment. According to Bertsch, Hollywood Entertainment was a nationally rated credit tenant, and a lease with a credit tenant like Hollywood Entertainment could form the basis for development financing. In October 1997, Nelson, as a leasing agent for Hollywood Entertainment, and Bertsch executed a letter of intent for a site in the Christopher Building. The letter of intent was on a form generated by Hollywood Entertainment and listed several proposed terms for Bertsch’s lease of part of the Christopher Building to Hollywood Entertainment. The letter of intent stated it was not intended to be a contract.

[¶ 4] According to Duemeland, Bertsch’s option to purchase the Christopher Building expired on November 15, 1997, and Bertsch had not secured financing to purchase the building by that date. Duemeland sent Nelson a November 28, 1997, letter making a “back up offer” on the Christopher Building and saying “Bertch [sic] has the reputation of not closing, unless he gets assisted Funds. This is a large project for him, and would not unless you were to proceed, be able to pull this project off. There would always be the possibility that he may have financial backing.” Duemeland later suggested he could develop the Christopher Building if Bertsch was unable to get financing. In December 1997, Nelson provided Dueme-land with a copy of the letter of intent provided by Hollywood Entertainment to Bertsch. Bertsch ultimately purchased the Christopher Building in December 1997, but according to him, all further negotiations with Nelson ceased after Duemeland’s contacts with Nelson. According to Nelson, Hollywood Entertainment did not lease the site in the Christopher Building because the property did not pass Hollywood Entertainment’s supply and demand study and Hollywood Entertainment never conducted a site pack review for the property.

[¶ 5] In 1999, Hollywood Entertainment again considered the Christopher Building as a potential site for a Hollywood Video store in Bismarck. According to Nelson, he did not recommend the Christopher Building to Hollywood Entertainment. According to Jay Spooner, an employee at Duemeland Realty, Nelson expressed concern about Bertsch’s financial problems. Hollywood Entertainment nevertheless provided Bertsch with another letter of intent for the Christopher Building, but when another site became available, Hollywood Entertainment ultimately located a Hollywood Video store at the other site.

[¶ 6] Bertsch sued Duemeland, alleging Duemeland’s 1997 contacts with Nelson constituted defamation, tortious interference with a business relationship, and misappropriation of trade secrets. Dueme-land moved for summary judgment. Bertsch moved for a continuance for additional discovery under N.D.R.Civ.P. 56(f), claiming he needed additional time to discover documents from Hollywood Entertainment’s corporate office and e-mail messages between Duemeland and Nelson. Bertsch sought to compel discovery of information on computers acquired by Duemeland in August 1998 and September 2000, claiming the hard drives for those computers contained possible e-mail messages between Duemeland and Nelson that may have been transferred from the hard drives of other computers used by Dueme-land in 1997. The trial court denied Bertsch’s motion for a continuance, but granted him thirty days to respond to Duemeland’s motion for summary judgment. The court thereafter denied Bertsch’s motion to compel discovery and granted Duemeland summary judgment, concluding (1) Duemeland’s statements regarding Bertsch’s reputation for not closing were true and constituted a defense to the defamation claim; (2) Bertsch did not establish he was damaged by Duemeland’s conduct so as to permit recovery for tor-tious interference with a business relationship; and (3) Duemeland did not use improper means to obtain trade secrets. The court concluded Bertsch’s action was not frivolous and denied Duemeland’s request for attorney fees. Bertsch appealed, and Duemeland cross-appealed.

[¶ 7] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01. The appeal and cross-appeal are timely under N.D.R.App.P. 4(a).

II

[¶ 8] We review this appeal in the posture of summary judgment under N.D.R.Civ.P. 56, which

is a method for promptly and expeditiously disposing of a controversy without trial if either party is entitled to a 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 factual issues would not alter the results. A district court deciding a motion for summary judgment is required to view the evidence in the light most favorable to the resisting party. Although the party seeking summary judgment bears the initial burden of showing there is no genuine issue of material fact, the party opposing the motion may not simply rely upon the pleadings or unsupported allegations. Rather, the resisting party must present competent admissible evidence by affidavit or other comparable means raising 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. Whether the district court properly granted summary judgment is a question of law subject to de novo review.

Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶10, 623 N.W.2d 382 (citations omitted).

[¶ 9] Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of their claim and on which they will bear the burden of proof at trial. Black v. Abex Corp., 1999 ND 236, ¶ 23, 603 N.W.2d 182.

A

[¶ 10] Bertsch argues the trial court erred in granting summary judgment dismissal of his defamation claim.

[¶ 11] Under N.D. Const, art. I, § 4, every person “may freely write, speak and publish his opinions on all subjects, being responsible for the abuse of that privilege.” See, e.g., Moritz v. Medical Arts Clinic, P.C., 315 N.W.2d 458, 459-60 (N.D.1982). Every person has the right to be protected from defamation, which is classified as either libel or slander under N.D.C.C. § 14-02-02. See Jose v. Norwest Bank, 1999 ND 175, ¶ 23, 599 N.W.2d 293. Libel is “a false and unprivileged publication by writing ... which has a tendency to injure the person in the person’s occupation.” N.D.C.C. § 14-02-03. Slander is “a false and unprivileged publication other than libel, which ... [t]ends directly to injure the person in respect to the person’s office, profession, trade, or business, ... by imputing to the person general disqualifications in those respects which the office or other occupation peculiarly requires.” N.D.C.C. § 14-02-04(3). A publication must be false to be defamatory. Jose at ¶ 24; Meier v. Novak, 338 N.W.2d 631, 635 (N.D.1983). See N.D. Const, art. I, § 4 (“In all civil and criminal trials for libel the truth may be given in evidence, and shall be a sufficient defense when the matter is published with good motives and for justifiable ends”).

[¶ 12] Bertsch argues the trial court erred in deciding statements in Duemeland’s November 28, 1997, letter were true, because Bertsch does not have a reputation for not closing. The affidavits of two Bismarck realtors, Darcy Fettig and Kathy Feist, state Bertsch has “been capable of substantial development, projects” and “any statements that Lee Bertsch has a reputation of ‘not closing’ because of financial limitations are false as Mr. Bertsch and Bertsch Construction, Inc., have no such reputation.” Viewing the evidence in the light most favorable to Bertsch, those affidavits raise disputed issues of material fact regarding the truth of Duemeland’s statements about Bertsch’s reputation for not closing. We conclude the trial court erred in granting summary judgment on Bertsch’s defamation claim on this basis.

[¶ 13] Duemeland nevertheless argues the trial court’s decision is affirmable because the truth of his statements is irrelevant. See Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d 704, 709 (N.D.1995) (this Court will not reverse trial court’s incorrect reason for decision if result is same under correct law and reasoning); Livingood v. Meece, 477 N.W.2d 183, 188 (N.D.1991) (appellee entitled on appeal to attempt to save judgment by urging any ground asserted in trial court). Dueme-land argues Nelson was the only recipient of the communication, and he did not understand it to be defamatory. Duemeland argues Bertsch’s defamation claim fails under Gowin v. Hazen Mem. Hos. Ass’n, 311 N.W.2d 554, 557 (N.D.1981), and Little v. Spaeth, 394 N.W.2d 700, 706 (N.D.1986), in which this Court said there is no claim for defamation unless the recipient of the communication believes it to be defamatory.

[¶ 14] Duemeland’s argument requires analysis of the functions of the court and the trier of fact in determining whether a communication is defamatory. In Moritz, 315 N.W.2d at 460, this Court quoted with approval Restatement (Second) of Torts § 614 (1977) regarding those functions:

“(1) The court determines
“(a) whether a communication is capable of bearing a particular meaning, and
“(b) whether that meaning is defamatory.
“(2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient.”
Comment (b) to § 614 explains:
“Under the rule stated in this Section, the determination of the first two of these questions is for the court and that of the third for the jury. The court determines whether the communication is capable of bearing the meaning ascribed to it by the plaintiff and whether the meaning so ascribed is defamatory in character. If the court decides against the plaintiff upon either of these questions, there is no further question for the jury to determine and the case is ended.”

[¶ 15] In Moritz, 315 N.W.2d at 459-62, this Court concluded a clinic’s letter to a patient was not capable of bearing a defamatory meaning. The clinic’s letter to the patient stated the clinic’s physicians were withdrawing from further treatment of the patient for a reason that “should be obvious to you. The physicians are extremely uncomfortable treating you and do not find that they can do so in the physician-patient relationship that they would want to offer. Your past actions have made it difficult for them to accept you as a patient.” Id. at 459. This Court construed the entire letter according to the natural and ordinary meaning of the words and concluded the letter could not be given a defamatory meaning. Id. at 461-62.

[¶ 16] In Vanover v. Kansas City Life Ins. Co., 438 N.W.2d 524, 526-27 (N.D.1989), this Court discussed whether a letter stating an insurance agent was terminated for cause could be construed as defamatory and reversed a summary judgment for the defendants. This Court said:

There is no question that summary judgment is not warranted if the letter is capable of two meanings-one defamatory and the other innocent. McCue v. Equity Coop. Pub. Co. of Fargo, [39 N.D. 190, 167 N.W. 225 (1918) ]. Supra.
If an innuendo is involved, the question of whether the alleged defamation is fairly warranted by the writing is one of law for the court to decide. Upon finding a reasonable possibility that the ascribed libelous meaning can be given to the material alleged to be defamatory, it is for the jury to determine if the libelous meaning was intended or conveyed. Ellsworth v. Martindale-Hubbell Law Dictionary [Directory], 69 N.D. 610, 289 N.W. 101 (1940).
Thus, on remand, the trial court must determine if the statements that Van-over was “terminated for cause” are reasonably susceptible of a defamatory construction.

Vanover, at 527 (quoting Moritz, 315 N.W.2d at 460).

[¶ 17] In determining whether a communication is capable of bearing a particular meaning and whether that meaning is defamatory, Restatement (Second) of Torts § 559 (1977) defines a defamatory communication as a communication that “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” See also N.D.C.C. §§ 14-02-03 and 14-02-04. Comment (e) to Section 559 explains a communication need not tend to harm a person in the eyes of everyone in the community; it is enough if the communication harms the person in the eyes of a substantial and respectable minority, and the fact a particular recipient does not regard the communication as discreditable is not controlling if the communication is obviously defamatory in the eyes of the community.

[¶ 18] In determining whether a recipient understands a communication to be defamatory, Restatement (Second) of Torts § 563 (1977) explains the “meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.” Comment (a) to Section 563 states the meaning of the matter communicated is decided by Section 563, and whether the meaning so ascertained is defamatory is determined by the rule stated in Section 559. Comment (c) of Section 563 further states the question to be decided is whether the communication is reasonably understood in a defamatory sense by the recipient.

[¶ 19] Here, Duemeland’s November 28, 1997, letter to Nelson said Bertsch “has the reputation of not closing, unless he gets assisted Funds. This is a large project for him, and would not unless you were to proceed, be able to pull this project off. There would always be the possibility that he may have financial backing.” Bertsch argues Duemeland’s communication suggests Bertsch was experiencing financial problems and was unable to fulfill proposed real estate projects. Dueme-land’s communication about Bertsch’s business capabilities could be construed as injuring Bertsch in his occupation by imputing to him general disqualifications in his occupation. See N.D.C.C. §§ 14-02-03 and 14-02-04. See also Restatement (Second) of Torts § 559 (1977). See generally Prosser and Keeton on Torts, p. 790-91 (5th Ed.1984) (the law has always been very tender of the reputation of tradesmen, and words spoken of them in the way of their trade will bear an action that will not be actionable in the case of another person). We conclude Duemeland’s communication is susceptible to a meaning that is defamatory, and it is ordinarily a question for the trier of fact to determine whether the recipient, Nelson, understood it in that light. See Restatement (Second) of Torts § 614 (1977).

[¶ 20] Duemeland argues his communication to Nelson reinforced Nelson’s opinion about Bertsch from negotiations Nelson had with Bertsch regarding Hollywood Entertainment’s location of a Hollywood Video store in Minot, and Nelson did not understand the communication to be defamatory.

[¶ 21] Although Nelson had experience with Bertsch regarding Bertsch’s failure to secure financing for a Hollywood Video store in Minot, Nelson testified in his deposition that Duemeland’s statements about Bertsch’s reputation for not closing were “not favorable.” According to Bertsch, all further negotiations with Nelson ceased after Duemeland’s communication to Nelson. There is also evidence that when Hollywood Entertainment was again looking for a Bismarck location for a store in 1999, Nelson expressed concerns about Bertsch’s financial abilities to Jay Spooner, a Duemeland Realty employee. In Vanover v. Kansas City Life Ins. Co., 553 N.W.2d 192, 197 (N.D.1996), this Court held proof of special damages was not required to recover in an action for libel per quod, which requires reference to extrinsic evidence to establish a defamatory meaning, because a person’s reputation is a major factor in a satisfactory existence and one function of a libel action is to provide public vindication of a decent person’s good name. Viewing the evidence in the light most favorable to Bertsch, we believe it supports an inference that Nelson understood Duemeland’s statements in a defamatory sense and those statements disparaged Bertsch’s business reputation in Nelson’s eyes. We conclude the trial court erred in granting summary judgment on Bertsch’s defamation claim.

B

[¶22] Bertsch argues the trial court erred in granting summary judgment on his claim for tortious interference with a business relationship.

[¶ 23] We recently outlined the elements for a claim for tortious interference with a business relationship in Trade ‘N Post v. World Duty Free Americas, 2001 ND 116, ¶ 36, 628 N.W.2d 707 as: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tortious or otherwise unlawful act of interference by the interferer; (4) proof that the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted.

[¶24] In Schneider v. Schaaf 1999 ND 235, ¶ 26, 603 N.W.2d 869, we explained actual damages were an essential element of interference with a business relationship, and it was not enough for plaintiffs to show a possibility they would have obtained some economic benefit in the absence of a defendant’s interference. Rather, plaintiffs are held to a stringent standard, and they must show they would have obtained the economic benefit in the absence of the interference. Id.

[¶ 25] Here, the trial court decided Bertsch presented no evidence he was damaged by Duemeland’s alleged interference. The court said “Nelson testified that nothing [Duemeland] did had any impact on Hollywood Entertainment Corporation’s decision not to contract with [Bertsch]. All the evidence shows that the Christopher Building site did not pass Hollywood Entertainment Corporation’s supply and demand criteria and that Hollywood Entertainment Corporation never performed a site pack analysis on the Christopher Building site.”

[¶ 26] Bertsch argues there are genuine issues of material fact about whether Duemeland’s alleged interference caused actual damages. Bertsch argues the circumstantial evidence would allow a jury to infer Nelson’s attitude regarding a potential business deal with Bertsch was soured by Duemeland’s actions.

[¶27] Although Hollywood Entertainment did not enter a final lease agreement with Bertsch, Nelson testified in his deposition a lease arrangement was not consummated because the Christopher Building did not pass Hollywood Entertainment’s supply and demand criteria and therefore Hollywood Entertainment never conducted a site pack review. Bertsch did not present any evidence, by affidavit or otherwise, from any other representative of Hollywood Entertainment to refute Nelson’s testimony the Christopher Building failed Hollywood Entertainment’s supply and demand criteria. Bertsch was required to establish the existence of a factual dispute regarding whether he would have obtained an economic benefit in the absence of Duemeland’s actions. See Schneider, 1999 ND 235, ¶ 26, 603 N.W.2d 869. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of their claim and on which they will bear the burden of proof at trial. Black, 1999 ND 236, ¶ 23, 603 N.W.2d 182. Bertsch failed to present evidence to establish the existence of a factual dispute about whether Duemeland’s conduct caused Bertsch actual damage, and we conclude summary judgment was appropriate on this claim.

C

[¶ 28] Bertsch argues the trial court erred in granting summary judgment on his claim for misappropriation of trade secrets. In granting summary judgment on this claim, the trial court decided Bertsch made no showing Duemeland requested, and another person gave him, Bertsch’s trade secrets.

[¶ 29] Chapter 47-25.1, N.D.C.C., outlines the statutory requirements for a claim for misappropriation of trade secrets. Under N.D.C.C. § 47-25.1-03, a complainant is entitled to recover damages for misappropriation of a trade secret. Section 47-25.1-01(4), N.D.C.C., defines a “trade secret” as

information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Section 47-25.1-01(2), N.D.C.C., defines “misappropriation” as

a. Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
b. Disclosure or use of a trade secret of another without express or implied consent by a person who:
(1) Used improper means to acquire knowledge of the trade secret;
(2) At the time of disclosure or use, knew or had reason to know that the person’s knowledge of the trade secret was:
(a) Derived from or through a person who had utilized improper means to acquire it;
(b) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(c) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(3) Before a material change of the person’s position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

Section 47-25.1-01(1), N.D.C.C., defines “improper means” to include “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.”

[¶ 30] Bertsch argues the pricing information in the “letter of intent” that Nelson transmitted to Duemeland is a “trade secret” and Duemeland’s actions constituted a “misappropriation” of that information as defined in N.D.C.C. § 47-25.1-01. Bertsch argues Duemeland requested the release of confidential information regarding Bertsch’s pricing strategy with Hollywood Entertainment, and Bertsch argues there are disputed issues of fact about whether Duemeland’s actions constituted the inducement of a breach of duty to maintain secrecy under the definition of “misappropriation” in N.D.C.C. § 47-25.1-01(2). Bertsch argues a jury could reasonably conclude, in the entire context of this case, Duemeland received the information through improper means, because

“from the start [Duemeland] made false and disparaging comments regarding Bertsch’s abilities as a developer and his ability to close this transaction. At the same time [Duemeland] offered himself as a substitute source for a potential location and potential investors for the location of a Hollywood Video store. Against this background, a jury could reasonably infer that Duemeland has insinuated himself into the transaction between Bertsch and Hollywood Video to a sufficient extent that his exposure to confidential information as between Bertsch and Hollywood Video would be a foregone conclusion.”

[¶ 31] According to Nelson, he sent Duemeland the letter of intent so Dueme-land would know Hollywood Entertainment’s requirements for a site for a Hollywood Video store. According to Duemeland, he asked Nelson for “a copy of [the] requirements and implied standard copy of the lease.” Bertsch presented no evidence that Duemeland requested the letter of intent that Hollywood Entertainment provided to Bertsch. Dueme-land received a copy of the letter of intent because Nelson sent Duemeland that document rather than a copy of Hollywood Entertainment’s form for a letter of intent. We conclude the circumstances of Duemeland’s receipt of the letter of intent from Nelson do not raise a factual dispute about whether Duemeland acquired the letter of intent by improper means under N.D.C.C. § 47-25.1-01(2)(a). Moreover, Bertsch presented no evidence to raise a factual dispute that Duemeland “disclose[d] or use[d]” the trade secret as required for a misappropriation under N.D.C.C. § 47—25.1—01(2)(b). Bertsch failed to establish the existence of a factual dispute on an essential element of his misappropriation claim. See Black, 1999 ND 236, ¶ 23, 603 N.W.2d 182. We therefore conclude the trial court did not err in granting summary judgment on Bertsch’s misappropriation claim.

Ill

[¶ 32] Bertsch argues the trial court abused its discretion in denying his motion to compel access to some of Duemeland’s computer records to locate certain alleged e-mail correspondence between Duemeland and Nelson. Bertsch was allowed discovery of information on computers owned by Duemeland as of January 1, 1998, but Bertsch was denied access to computers Duemeland acquired in August 1998 and September 2000. Bertsch argues his computer technician concluded some of the hard drives from the older computers may have been moved to the two newer computers. The trial court denied Bertsch’s motion to compel discovery, concluding granting Bertsch access to computers acquired after Dueme-land’s alleged wrongful acts would not lead to relevant information and further searches could result in disclosure of privileged and confidential information.

[¶ 33] A trial court’s discovery decision will not be reversed on appeal absent an abuse of discretion. Matter of Estate of Schmidt, 1997 ND 244, ¶ 7, 572 N.W.2d 430. A court abuses its discretion when its actions are arbitrary, capricious, or unreasonable. Buchholz v. Buchholz, 1999 ND 36, ¶ 18, 590 N.W.2d 215. On this record, we conclude the trial court did not act arbitrarily, capriciously, or unreasonably in denying Bertsch’s motion to compel discovery.

IV

[¶ 34] In Duemeland’s cross-appeal, he argues the trial court erred in not awarding him attorney fees. After dismissing all of Bertsch’s claims, the trial court denied Duemeland’s request for attorney fees, concluding Bertsch’s action did not “demonstrate such a complete absence of facts or law that a reasonable person could not have thought a court would render judgment in their favor.”

[¶ 35] A claim is frivolous under N.D.C.C. § 28-26-01(2) when there is a complete absence of law or fact so a reasonable person could not have expected a court would render judgment in that party’s favor. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 84 (N.D. 1991). Affirmance of a summary judgment on appeal does not mean a party’s claims are frivolous. Id. at 85. An award of attorney fees under N.D.C.C. § 28-26-01(2) is within the sound discretion of the trial court, and its decision will not be reversed on appeal absent an abuse of discretion. Peterson v. Zerr, 477 N.W.2d 230, 236 (N.D.1991).

[¶ 36] We have concluded summary judgment was improper on Bertseh’s defamation claim. Bertsch’s other claims were related to the same factual nexus as his defamation claim, and Duemeland has not attempted to separate attorney fees for the different claims. We conclude there is not such a complete absence of law or fact as to render Bertsch’s claims frivolous, and the trial court did not abuse its discretion in defying Duemeland’s request for attorney fees.

V

[¶ 37] We affirm the trial .court’s denial of attorney fees and the summary judgment dismissal of Bertsch’s claims for tortious interference with a business relationship and for misappropriation of trade secrets. We reverse the summary judgment dismissal of Bertsch’s defamation claim and remand for proceedings consistent with this opinion.

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


text:
    2002 ND 31
    CITY OF DEVILS LAKE, Plaintiff and Appellant, v. Darrell LAWRENCE, Defendant and Appellee.
    No. 20010063.
    Supreme Court of North Dakota.
    Feb. 20, 2002.

      Daniel Mack Traynor, City Prosecutor, Devils Lake, for plaintiff and appellant; submitted on brief.
    Darrell Lawrence (no appearance), pro se, St. Michael.
   SANDSTROM, Justice.

[¶ 1] The City of Devils Lake appealed from orders granting a suppression motion and dismissing a charge of driving under the influence of alcohol against Darrell Lawrence. We conclude the district court erred in ruling police officers had no reasonable and articulable suspicion of criminal activity to stop Lawrence’s vehicle, and we reverse and remand for further proceedings.

I

[¶ 2] At 7:13 p.m. on September 3, 2000, Police Officers John Rose and Jason Toso, who were patrolling in separate vehicles, received a dispatch from the Lake Region Law Enforcement Center that there was a “fight that was going to begin” at Pop’s Bar in Devils Lake. Officer Rose was the first to arrive at the scene, and he observed a male standing by the door to the bar and two other males entering a vehicle in the parking lot. No one else was in the parking lot. The man standing by the door to the bar was Conrad Houle, a person Officer Rose recognized as having been involved in “[p]ast fight calls.” Houle motioned for Officer Rose to “come over” to him, and then informed Officer Rose he had engaged in a “verbal altercation” with the two men entering the vehicle. Officer Rose observed nothing indicating a physical fight had taken place. Officer Rose radioed Officer Toso, who had just entered the parking lot, that the vehicle leaving the parking lot was “involved” and “[w]e need to check this one out.” Officer Rose testified:

Q Officer Rose, did he indicate that they were involved? What did he say to you?
A Um, he pointed — he indicated, ah, he pointed or told me verbally, that they were the ones that he was having this verbal altercation with. I think he said, like — something like, these are the ones you’ve got to talk too [sic] or I don’t recall exactly. But he indicated to me that—
(THE COURT: I can’t hear you, officer.)
A He did indicate to me that these — that this was the other party involved in some type of verbal altercation. Um, either—
(THE COURT: Verbal altercation is that what he said, verbal altercation?)
A Well, I don’t believe — he didn’t tell me that. But, I was kind of lead [sic] to believe that it was a verbal.
(THE COURT: No, no, what did he tell you to the best of your recollection?)
A I — I don’t recall. I think he said, you need to talk to — he pointed at em. That these are the guys.
(THE COURT: Okay, did he indicate — did you — based—based on your understanding — your understanding was that if there was an altercation, it was verbal?)
A Yea.
Q Um, when you initially responded to this call, what was the call that you were responding too [sic]?
A I recall it was a um, fight that was about to begin call — kind of call.
Q But it wasn’t described as a verbal fight?
A No, it was a — I think — that words are starting to be exchanged, and it looks like they are going to go outside and fight. I think that is what the initial — what we were responding too [sic],
Q Okay, and when you arrived um, had you had the opportunity to conduct any investigation with Mr. Houle outside of the bar up until the point that he pointed to this other vehicle?
A No — no, it was — I got out of my car, the other vehicle was leaving. I indicated — he indicated to me that they were involved. I — I—
Q So, this understanding that it was a verbal altercation came to you
through the process of your investigation after the vehicle was stopped?
A Yeah. That’s after I had a chance to talk to the RP.
(THE COURT: So, what was your understanding of what happened when you told the other officer to stop the vehicle?)
A Um, at that point when I told Officer Toso to stop the vehicle, I was — I really didn’t have full understanding of what was going on. I just—
(THE COURT: Okay, it was just that this guy pointed, their [sic] involved, and you don’t know what he said, though exactly?)
A No. He indicated to me that this was the other party involved in this possible — beginning of a fight.
(THE COURT: So, even to the best of your knowledge in the police report there was a possibility of a fight beginning? But, there was — you had no information that there was a fight going on?)
A No. I believe it came in as a fight was about to happen, and I didn’t find out until — cause it all happened at the same time—
(THE COURT: Sure)
A — he pulled in, and he’s indicating these guys are involved, check with them. I’ll meet with this guy. We’ll see what’s going on.

[¶ 3] Officer Toso activated his emergency lights and stopped the vehicle to investigate before it left the parking lot. Officer Toso noticed the driver of the vehicle, Lawrence, had an odor of alcohol and asked him to sit in the back of his patrol car while he questioned the passenger for his side of the story. Lawrence later failed field sobriety tests and was arrested and charged with driving under the influence of alcohol in violation of Devils Lake Municipal Code § 10.46.030.

[¶ 4] Upon appeal of his municipal court conviction to district court under N.D.C.C. § 40-18-19, Lawrence moved to suppress evidence and dismiss the charge, arguing the officers had no reasonable suspicion that he was involved in any type of criminal activity when Officer Toso stopped Lawrence’s vehicle in the bar’s parking lot. The district court granted the suppression motion and dismissed the charge with prejudice, reasoning:

When Officer Rose arrived on scene an individual standing in the parking lot of the bar told him, that the defendant’s vehicle, which was driving out of the lot, was involved. There was nothing that the police officer saw or heard that would infer or suggest that the defendant was involved in criminal activity. The only reasonable inference that could be drawn from what the police officer heard and observed from dispatch, and the man standing outside the bar, is that one or both of the individuals in the vehicle leaving the parking lot were involved in an argument. Arguing is not a crime. Based on the statement given by the individual in the parking lot, Officer Rose radioed Officer Toso who had just arrived on scene, to stop the defendant’s vehicle. Police had no articulated suspicion that Mr. Lawrence or his passenger were involved in or were going to be participating in any criminal activity.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D'.C.C. § 27-05-06(4). The City’s appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-07(1).

II

[¶ 6] The City argues the district court erred in ruling the officers had no articula-ble and reasonable suspicion that Lawrence was involved in any criminal activity to justify the stop of his vehicle.

[¶ 7] When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Haverluk, 2000 ND 178, ¶ 7, 617 N.W.2d 652. We will affirm a trial court’s decision on a motion to suppress if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence. State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1. While we defer to the trial court’s findings of fact, questions of law are fully renewable. State v. Wanzek, 1999 ND 163, ¶5, 598 N.W.2d 811.

A

[¶ 8] To stop a moving vehicle for investigative purposes, an officer must have an articulable and reasonable suspicion that a law has been or is being violated. State v. Gregg, 2000 ND 154, ¶ 27, 615 N.W.2d 515. Reasonable suspicion for a stop exists when a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity. State v. Kenner, 1997 ND 1, ¶ 8, 559 N.W.2d 538. Although the concept of reasonable suspicion is not readily reduced to a neat set of legal rules, we have held reasonable suspicion does require more than a “mere hunch.” State v. Loh, 2000 ND 188, ¶ 5, 618 N.W.2d 477. In determining whether an investigative stop is valid, we use an objective standard and look to the totality of the circumstances. Id. at ¶¶ 9-13; City of Minot v. Johnson, 1999 ND 241, ¶ 5, 603 N.W.2d 485. In City of Fargo v. Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901 (citations omitted), we explained:

We do not require an officer to isolate single factors which signal a potential violation of the law; but instead, “officers are to assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.” When assessing reasonableness, we consider inferences and deductions an investigating officer would make which may elude a layperson.

[¶ 9] When, as here, one officer relays a directive or request for action to another officer without relaying the underlying facts and circumstances, the directing officer’s knowledge is imputed to the acting officer. Kenner, 1997 ND 1, ¶ 11, 559 N.W.2d 538. The ultimate conclusion of whether the facts support a reasonable and articulable suspicion is fully reviewable on appeal. Gregg, 2000 ND 154, ¶ 20, 615 N.W.2d 515.

B

[¶ 10] This case is somewhat similar to Ovind, 1998 ND 69, 575 N.W.2d 901. In Ovind, police officers responded at 1:45 a.m. to a dispatch reporting a fight at a Taco Bell restaurant. The first officer arrived at the scene between forty-five seconds to one minute after the dispatch and observed two vehicles in the parking lot. One vehicle was backing out of a parking spot, and the other vehicle was exiting the parking lot. The officer called for other officers to stop the car exiting the lot, and he activated his overhead lights and pulled his vehicle behind the car backing out of the parking spot. As the officer approached the vehicle, passengers yelled to him to stop the other car because “they beat us up.” Id. at ¶ 4. The officer smelled alcohol on the driver and eventually arrested him for driving under the influence of alcohol. The issue on appeal was whether the police officer had reasonable and articulable suspicion to stop the defendant’s car.

[¶ 11] We noted corroboration of a tip through observation of illegality may not be practical in cases involving the propriety of a limited investigative stop near the scene of a recent crime:

In dealing with this issue, some courts, including the Minnesota Supreme Court, have recognized certain situations require facilitating police crime scene investigation. See State v. Moffatt, 450 N.W.2d 116 (Minn.1990); Appelgate [v. Commissioner of Public Safety, 402 N.W.2d 106, 108 (Minn.1987) ]; see generally 4 Wayne R. La-Fave, Search and Seizure § 9.4(g) (3d ed.1996). Where police officers are presented with such a situation, the court in Appelgate explains, “ ‘experience has shown that when a victim or witness cannot name the offender his apprehension is unlikely unless he is rather promptly found in the immediate area.’ ” 402 N.W.2d at 108 (quoting 3 Wayne R. LaFave, Search and Seizure § 9.3(d), at 460 (2d ed.1987)). It is therefore necessary for police officers investigating a reported crime scene to have some limited authority to “freeze” the situation. Id. Even in circumstances where no one person can be singled out as the probable offender, “ ‘police [officers] must sometimes be allowed to take some action intermediate to that of arrest and nonseizure activity.’ ” Id. Thus, an investigative stop of a person present at the scene of a recently committed crime may be permissible without violating the Fourth Amendment. Such a stop is especially deemed permissible where only a limited number of persons are present at the scene of a violent crime. Wold v. State, 430 N.W.2d 171, 175 (Minn.1988). We agree with this reasoning.
Professor LaFave, in his discussion of allowing police to “freeze” a situation, certainly does not condone a “dragnet approach,” which results “in the temporary seizure of a large number of persons within the range of [a suspect’s] possible flight.” 4 LaFave, supra, § 9.4(g), at 195. But rather in this context, “selective investigative procedures” are necessary “whereby seizures are made only of those as to whom there exists a ‘reasonable possibility’ ” of being involved in the criminal activity. Id. LaFave provides the following six factors which, among others, may be considered in determining what facts and circumstances establish this “reasonable possibility” and would justify stopping a motor vehicle or possible offender:
(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.
Id.

Ovind, 1998 ND 69, ¶¶ 12-13, 575 N.W.2d 901 (footnote omitted). We held “as a matter of law the officer had a particularized and objective basis for suspecting Ovind as having been involved in the reported fight; therefore, the officer was justified in the limited investigative stop of Ovind.” Id. at ¶ 17.

[¶ 12] The district court in this case found Ovind distinguishable because the police in Ovind “had an articulated suspicion that a crime had been committed,” and in this case, “[a]rguing is not a crime.” Although the evidence suggests Officer Rose “really didn’t have full understanding of what was going on” when he radioed Officer Toso to stop Lawrence’s vehicle upon Houle’s direction, we conclude the district court’s finding the officers knew there was no physical altercation, but only a “verbal altercation,” is supported by sufficient competent evidence, and is not contrary to the manifest weight of the evidence. Nevertheless, the district court’s conclusion that arguing cannot violate criminal law is incorrect.

[¶ 13] Disorderly conduct is proscribed by N.D.C.C. § 12.1-31-01(1), which provides, in part:

1. An individual is guilty of a class B misdemeanor 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 the individual’s behavior, the individual:
a. Engages in fighting, or in violent, tumultuous, or threatening behavior;
b. Makes unreasonable noise;
c. In a public place, uses abusive or obscene language, ... or makes an obscene gesture;
d. Obstructs vehicular or pedestrian traffic or the use of a public facility;
g. Creates á hazardous, physically offensive, or seriously alarming condition by any act that serves no legitimate purpose; or
h. Engages in harassing conduct by means of intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.

In City of Bismarck v. Nassif, 449 N.W.2d 789, 794-95 (N.D.1989), this Court upheld a disorderly conduct conviction based on the defendant’s use of “fighting words” likely to provoke violent reaction where the jury could have reasonably found bystanders in a public place heard the defendant make threatening statements from his private property. In City of Fargo v. Brennan, 543 N.W.2d 240, 242-43 (N.D.1996), this Court further upheld a disorderly conduct conviction based on the defendant’s “primarily [] verbal confrontation” with the victim while encroaching and invading her personal zone of privacy and waving his hands. Actions constituting disorderly conduct need be offensive to only one person. City of Bismarck v. Travis, 154 N.W.2d 918, 923 (N.D.1967).

[¶ 14] Courts have found lawful temporary detentions of suspects based on law enforcement officers’ reasonable and articulable suspicion that the suspects had committed the offense of misdemeanor disorderly conduct. See, e.g., Kelly v. Bender, 23 F.3d 1328, 1330 (8th Cir.1994), abrogated on other grounds, Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding where officers heard a man yelling obscenities 100 yards away, asked him to talk to them, and another man appeared and repeated the obscenities, officers had reasonable suspicion of disorderly conduct to justify lawful temporary detention); People v. Snyder, 11 Cal. App.4th 389,13 Cal.Rptr.2d 837, 839 (1992) (holding limited investigative detention of defendant was justified where officer investigated a report that a panhandler at a drugstore had been creating a disturbance, potentially implicating a violation of the disorderly conduct statute, and defendant matched the description of the suspect); City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347, 1354 (1997) (holding officer had reasonable suspicion of criminal activity necessary to support traffic stop where officer received dispatch that defendant committed disorderly conduct and record check showed parked truck was registered to defendant); State v. Hayes, 138 N.H. 410, 640 A.2d 288, 289-90 (1994) (holding traffic stop was legal where eyewitness told officer defendant kicked over parking sign and officer observed defendant yelling and gesturing in parking lot; officer had at least reasonable grounds to suspect defendant of having committed disorderly conduct); Ste-Marie v. State, 32 S.W.3d 446, 448-9 (Tex.App.2000) (holding where first officer was informed by second officer that defendant cursed at her young daughter while driving by in vehicle, first officer could have formed reasonable belief that defendant engaged in disorderly conduct to justify stop of defendant’s vehicle). But see Van Patten v. State, 16 Ark.App. 83, 697 S.W.2d 919, 920-21 (1985) (holding officer who received a radio dispatch about a loud party disturbance at an apartment created by a person who left in brown Jeep did not give officer reasonable suspicion to stop defendant in brown Jeep, because officer had no reason to suspect that a misdemeanor involving personal or property damage had been committed as required by Ark. R.Crim. P. 3.1 to justify temporary detention). An officer's reasonable and articulable suspicion that an individual has committed the offense of disorderly conduct is sufficient to justify a temporary detention of that individual for investigative purposes.

C

[¶ 15] In this case, Officers Rose and Toso received a dispatch about a “fight that was going to begin” at a bar. Physical fights normally do not occur spontaneously. A law enforcement officer could reasonably infer and deduce from this dispatch, at the very least, the possibility that someone at the bar had engaged in, or was engaging in, “violent, tumultuous, or threatening behavior” with intent to harass, annoy, or alarm another person within the meaning of N.D.C.C. § 12.1-31-01(l)(a), to necessitate a call for police assistance. When Officer Rose arrived at the bar, Houle immediately informed him the two men leaving in the vehicle were “the ones you’ve got to talk too [sic]” about their “verbal altercation.” Houle’s indications to Officer Rose that the altercation was “verbal,” rather than physical, did not rule out the possibility that a violation of the disorderly conduct statute had occurred.

[¶ 16] In 4 W. LaFave, Search and Seizure § 9.4(g) n. 262 (1996), the author addresses the situation when police officers respond to a call for help and then see one or more persons leaving the area:

[T]hough it may not be more probable than not that a crime has occurred in such a situation, given the possibility that the call is a prank or is unrelated to criminal activity, it should be permissible to stop those fleeing the area while more specific information is obtained. Bell v. United States, 280 F.2d 717 (D.C.Cir.1960). This is so “even though it again was perfectly possible that no one present was guilty of wrong doing, and certain that not all of the persons were guilty of the commission of a crime.” United States v. Bonanno, 180 F.Supp. 71 (S.D.N.Y.1960).

Given the probability of a disorderly conduct violation occurring at the bar and the identification of the alleged perpetrators by a possible victim, the officers in this case had as much, if not more, justification for the investigative stop than was present in Ovind.

[¶ 17] We conclude, under the totality of the circumstances, Officers Rose and Toso had a reasonable and articulable suspicion that Lawrence had been involved in unlawful activity, and the officers were justified in stopping his vehicle to freeze the situation for further investigation. The district court erred in granting Lawrence’s suppression motion and in dismissing the driving under the influence of alcohol charge against him.

Ill

[¶ 18] We reverse the orders and remand for further proceedings.

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

      . This Court has ruled N.D.C.C. § 29-29-21, which sets forth specific instances in which a peace officer may stop a person in a public place upon reasonable suspicion, is not applicable to investigatory stops of motor vehicles. City of Bismarck v. Uhden, 513 N.W.2d 373, 376 (N.D.1994).