source: Caselaw Access Project

author: HANSON, Justice.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Duane Nathaniel BARKER, Respondent.
    No. A04-1453.
    Supreme Court of Minnesota.
    Nov. 17, 2005.

      John M. Stuart, State Public Defender, Susan J. Andrews, Benjamin Butler, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Donna J. Wolfson, Assistant Hennepin County Attorney, Minneapolis, MN, for Respondent.
   OPINION

HANSON, Justice.

Respondent Duane Barker was convicted of possession of a controlled substance. The district court sentenced him under Minn.Stat. § 609.11 (2004) (providing for a mandatory minimum sentence of 36 months after a judicial finding of firearm possession during the commission of a predicate offense) to 36 months in prison. The court of appeals reversed the sentence as violating Barker’s Sixth Amendment right to a jury trial based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The state sought further review, arguing that sentencing under the statute is advisory and therefore exempted from Blakely by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 750, 160 L.Ed.2d 621 (2005). In the alternative, the state argues that Barker’s sworn admissions at his sentencing hearing satisfy the “Blakely admission exception” and thus permit enhancement. We affirm the court of appeals.

Officers from the Hopkins Police Department found Barker sleeping in the driver’s seat of his car with the lights on and the motor running. While interviewing Barker, the officers observed a handgun in plain view on the front passenger seat within Barker’s reach. They placed Barker under arrest after determining that he had outstanding warrants for his arrest and that he did not have a permit for the handgun. The officers searched Barker and found drug paraphernalia, marijuana, and what was later determined to be 2.08 grams of powder cocaine.

Barker was charged with one count of fifth-degree possession of a controlled substance committed while possessing a firearm, in violation of Minn.Stat. § 152.025, subds. 2(1), 3(a) (2004), and Minn.Stat. § 609.11, subd. 5(a). The firearm possession component subjected Barker to a mandatory minimum executed sentence of 36 months. Minn.Stat. § 609.11, subd. 5(a). Because Barker’s criminal history score was zero, the presumptive sentence for the underlying controlled substance offense without the firearm enhancement was 1 year and 1 day stayed. Minn. Sent. Guidelines V, IV.

Barker’s attorney argued that the possession of a firearm component was an element of the charged offense, and therefore Barker was entitled to a jury trial on that allegation. Although the district court agreed, it felt the “present state of the law” was otherwise so it denied his request. After his request for a jury trial on the sentencing factors had been denied, Barker waived his right to a jury trial on the issue of guilt, and submitted the matter to the court on stipulated facts. For convenience, the court proceeded to conduct a sentencing hearing on the issue of the application of section 609.11 before adjudicating guilt.

Barker and both arresting officers testified at the sentencing hearing. Barker testified that he is not a drug dealer and admitted that he had the gun on his front passenger seat. He said he had the gun for “protection only.” On cross-examination, Barker admitted that he owned the gun, that at one point while in the car he pulled it out from under the back seat, and that he could have grabbed and racked it “in a second” to “protect” himself. The essence of Barker’s argument at the sentencing hearing was that the state did not prove that his possession of the firearm “increased the risk of violence” associated with the controlled substance offense. This is an additional finding that the district court must make before sentencing under section 609.11 where the firearm possession is merely constructive, as opposed to actual. State v. Royster, 590 N.W.2d 82, 85 (Minn.1999).

The district court found Barker guilty of fifth-degree possession of a controlled substance. In addition, the court found “beyond a reasonable doubt that the defendant had a loaded handgun in his possession on November 28, 2003, at the time he possessed the controlled substance.” The court explained that although Barker was not a drug dealer, the firearm posed a “potential for serious violence.” The court sentenced Barker to 36 months in prison.

The court of appeals reversed the sentence holding (1) sentencing pursuant to Minn.Stat. § 609.11 violated Barker’s right to a jury trial under Blakely v. Washington, and (2) the Blakely admission exception did not apply because, although Barker admitted possession of the gun, he “did not admit that his possession of the gun increased the risk of violence of whatever crime he was then committing.” State v. Barker, 692 N.W.2d 755, 757-60 (Minn.App.2005).

I.

The first issue before us is whether the mandatory minimum sentencing provision in Minn.Stat. § 609.11 implicates Barker’s Sixth Amendment right to a trial by jury. Questions of constitutional interpretation are issues of law that we review de novo. Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn.2004). Minnesota statutes are presumed constitutional, and the “party challenging a statute * * * must demonstrate, beyond a reasonable doubt, that the statute violates a provision of the constitution.” State v. Grossman, 636 N.W.2d 545, 548 (Minn.2001).

The United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Court subsequently applied this rule to sentencing guidelines, holding that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S.Ct. at 2537. The Court determined that the presumptive sentence under the Washington Sentencing Guidelines was the maximum sentence authorized by the jury verdict and that sentence enhancements beyond this maximum, made pursuant to judicial fact-finding, violate the Sixth Amendment. Id. at 2538. Finally, in Booker, the Court clarified that Blakely does not apply to advisory sentencing guidelines that merely recommend, rather than require, the selection of particular sentences in response to differing sets of facts. Booker, 125 S.Ct. at 750.

We recently addressed the effect of this Apprendi line of cases on the Minnesota Sentencing Guidelines and the sentencing enhancements required by Minn.Stat. § 609.109 (2004). State v. Shattuck, 704 N.W.2d 131 (Minn.2005). Prior to 2005 statutory amendments to conform with Blakely, section 609.109 required that a court impose a 30-year sentence upon the conviction of certain sex offenses where it determined that the person has a previous conviction of other enumerated sex offenses and “the crime involved an aggravating factor that would provide grounds for an upward departure under the Sentencing Guidelines.” Minn.Stat. § 609.109, subd. 4 (2004), amended by Act of June 2, 2005, ch. 136, art. 16, § 9, 2005 Minn. Laws 901, 1117. Shattuck challenged his 30-year sentence, which the district court imposed pursuant to section 609.109 after it found four aggravating factors. Shattuck, 704 N.W.2d at 134-35. Based on the jury verdict alone, Shattuck’s presumptive guideline sentence was 161 months’ imprisonment. Id. at 134.

We first noted that “because section 609.109, subdivision 4, expressly incorporates the procedures of the Sentencing Guidelines for upward durational departures, the constitutional validity of the statute necessarily implicates the constitutional validity of upward durational departures under the Sentencing Guidelines.” Id. at 138. After recognizing the limitations on a sentencing judge’s discretion to depart from the presumptive guideline sentence, we held that “like the sentencing guidelines systems at issue in Blakely and Booker, under the Minnesota Sentencing Guidelines imposition of the presumptive sentence is mandatory absent additional findings.” Id. at 141. Accordingly, the “presumptive sentence prescribed by the Minnesota Sentencing Guidelines is the ‘maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.’ ” Id. (quoting Blakely, 124 S.Ct. at 2537). We held that section 609.109 is unconstitutional because it authorizes upward durational departures from the presumptive guideline sentence “upon finding an aggravating factor without the aid of a jury.” Id. at 142-43.

The mandatory minimum statute at issue here is slightly different from section 609.109 because instead of simply incorporating the aggravating factors of the Sentencing Guidelines, section 609.11 establishes separate factors that trigger its application. See Minn.Stat. § 609.11, subds. 4, 5 (use of a dangerous weapon or possession of a firearm during the commission of a predicate offense). But we see no basis to distinguish the two for Sixth Amendment purposes. As noted by the court of appeals in this case, because “[t]he mandatory minimum creates an alternative presumptive sentence * * * entirely determined by a judicial finding[,] * * * [it] functions the same as an aggravating factor by increasing what otherwise would be the presumptive sentence.” Barker, 692 N.W.2d at 760.

The state argues that, unlike section 609.109 as addressed in Shattuck, the enhancements contemplated by section 609.11 are advisory, not mandatory. It relies on our decision in State v. Olson, 325 N.W.2d 13, 18-19 (Minn.1982), which held that the authority given to prosecutors to initiate sentencing without regard to the statutory minimum would violate separation of powers if the authority were not also given to the courts. But section 609.11, as interpreted in Olson, does not make the mandatory minimum sentence merely advisory. Olson simply recognized that judges had the same powers that the statute already gave to prosecutors: the power to “initiate sentencing without regard to statutory mínimums.” Olson, 325 N.W.2d at 19. And under the amendments made to subdivision 8 of section 609.11 to conform to Olson, judges who wish to depart from the mandatory minimum sentence must justify that departure with “substantial and compelling reasons.” MinmStat. § 609.11, subd. 8 (2004). In other words, the decision to apply the mandatory minimum sentence, like a decision to depart from the guideline presumptive sentence, requires judicial fact-finding. Such a requirement of judicial fact-finding renders the statute mandatory, not advisory. Shattuck, 704 N.W.2d at 141. Therefore we hold section 609.11 is unconstitutional to the extent that it authorizes the district court to make an upward durational departure upon finding a sentencing factor without the aid of a jury or admission by the defendant.

II.

The state argues that Barker’s sentence was constitutional because he admitted to the enhancement factor — possession of the handgun — in his sworn testimony at the sentencing hearing. Barker argues that because he invoked his right to a jury trial on the firearm possession component and his request for a jury trial was denied, his subsequent statements cannot be considered.

In Blakely, the Supreme Court said that the statutory maximum sentence for Sixth Amendment purposes is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S.Ct. at 2537 (emphasis in original). The Court has not explained the scope of this “Blakely admission exception.”

Barker urges this court to follow the rule adopted by the court of appeals for the Blakely admission exception in State v. Hagen, 690 N.W.2d 155 (Minn.App.2004). After the sentencing. hearing, the court sentenced Hagen to 216 months, an upward departure from the 144-month presumptive sentence. Id., 690 N.W.2d at 157. The state argued that the enhancement was justified because it was based in part on Hagen’s admission at the sentencing hearing that “his crime would have longstanding effects on the victim.” Id. at 158. ' The Hagen court noted that because there is “no basis to distinguish a stipulation to an aggravating sentencing factor from a stipulation to an element of the offense,” the defendant’s admission to an aggravating factor is not effective unless the defendant also waived the right to a jury trial on the use of that factor in sentencing. Id. at 159. The court held that such a waiver must be supported in the same manner as a waiver of a jury trial on the elements of the offense; knowingly, voluntarily, and intelligently. Id. at 158-59.

We agree in concept with the court of appeals’ determination that the waiver of the right to a jury trial on sentencing factors requires the same support as a waiver of the right to a jury trial on the elements of the offense. But we need not base our decision on that rationale because we conclude that any admission that Barker made after the erroneous denial of his request for a jury trial on sentencing factors was necessarily the product of that error and cannot be used to satisfy the Blakely admission exception. Otherwise, a defendant such as Barker is placed in an untenable position. If he stands by his position that he was entitled to a jury trial and does not testify at the sentencing hearing, he will have given up his constitutional right to present a defense on the sentencing factors. If, instead, he chooses to testify on the sentencing factors, he runs the risk that his testimony “implicitly” waived his right to a jury trial on those factors. Under the state’s reasoning, each of these options would require Barker to give up a constitutional right, either the right to a jury trial or the right to present a defense.

For these reasons, we conclude that the denial of Barker’s request for a jury trial on sentencing factors was error and that all sentencing proceedings following that denial were the product of that error and therefore cannot be considered. Stated another way, our reversal of the denial of Barker’s request for a jury trial voids all proceedings that depended on that denial. Accordingly, the admissions made by Barker at the sentencing hearing following the denial of his request for a jury trial do not qualify under the Blakely admission exception.

The state argues that this conclusion is contrary to our holding in State v. Leake, 699 N.W.2d 312, 323-25 (Minn.2005). Following Leake’s conviction of first-degree premeditated murder, the district court found he had been convicted in 1998 of a “heinous crime,” which subjected him to a mandatory minimum sentence of life without the possibility of release under Minn. Stat. § 609.106 (2004). Leake, 699 N.W.2d at 319. In order to determine that his 1998 conviction of third-degree criminal sexual conduct was a “heinous crime,” the district court had to find that “the offense was committed with force or violence.” Id. at 321 (quoting Minn.Stat. § 609.106, subd. 1(3) (2004)). The court based that finding, in part, on admissions Leake made during the plea hearing when he had waived his right to a jury trial, pleaded guilty to third-degree criminal sexual conduct, and testified to the factual basis for his plea. Id. at 322, 324. We recognized that these plea-hearing admissions were sufficient to support the Blakely prior conviction exception and affirmed the use of the 1998 conviction to enhance Leake’s murder sentence. Id. at 323.

Leake is distinguishable both because of the time when Leake made his admissions and the context within which he made them. As to the time, Leake made these admissions in the criminal sexual conduct proceeding before his right to a jury trial on sentencing factors had arisen in the murder proceeding. Thus, the admissions were not the product of the erroneous denial of his right to a jury trial on sentencing factors in the murder case. As to context, Leake made these admissions as a part of a guilty plea which first required Leake to knowingly, intelligently and voluntarily waive his right to a jury trial. See Minn. R.Crim. P. 15.01.

Further, our decision in Leake was based primarily on Blakely’s prior conviction exception, which appears to incorporate its own admission exception. In Shepard v. United States, — U.S. —, 125 S.Ct. 1254, 1262-63, 161 L.Ed.2d 205 (2005), the United States Supreme Court addressed the use of admissions to support the Blakely prior conviction exception. The United States sought to enhance the defendant’s sentence under a statute that mandates a minimum sentence for felons who have three prior convictions for violent felonies or serious drug offenses. Shepard, 125 S.Ct. at 1257-58. The Court had previously held that because some states have very expansive definitions of burglary, an attempted enhancement under this statute can only be based on a prior burglary conviction involving a building, not cars or boats. Taylor v. United States, 495 U.S. 575, 598-602, 110 S.Ct. 2143,109 L.Ed.2d 607 (1990). In Shepard, the Court concluded that a sentencing court can look to the indictment or information, jury instructions, or the plea agreement in the prior proceeding to determine whether the prior burglary conviction involved a building. Shepard, 125 S.Ct. at 1259-60. Because all of Shepard’s prior burglary convictions were pursuant to guilty pleas that did not specify whether they involved buildings, the United States urged the district court to look to the police reports and complaint applications— documents that were not part of the record in the plea hearings on the factual basis for the three guilty pleas — to prove this additional fact. Id. at 1258.

Although resting its holding primarily on statutory interpretation grounds and not addressing the jury trial waiver issue, the Court did note a “serious [risk] of unconstitutionality” with the United States’ proposal in light of the Apprendi line of cases. Shepard, 125 S.Ct. at 1262-63. Accordingly, it limited proof of a defendant’s prior guilty plea — i.e. his admissions — to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Id. at 1263 (emphasis added). Although the Court has not further clarified the scope of the admissions that may be considered to satisfy Blakely’s, prior convictions exception, Shepard sug-’ gests that admissions to support Blakely’s prior convictions exception may not need to be precisely the same as those used to satisfy Blakely’s admissions exception when that exception is standing alone. Of course, we need not address that narrow issue here because the prior convictions exception is not presented here. But, we do conclude that the focus in Leake on the prior convictions exception provides a further basis to distinguish it from the present case.

We hold that where a defendant requests and is denied a jury determination of a fact necessary to enhance the sentence beyond the range of the presumptive guideline sentence, any statements the defendant makes subsequent to that denial may not be considered for the purposes of the Blakely admissions exception.

III.

The state in oral argument raised the issue of remedy should we affirm the court of appeals. The state argued that we should remand to the district court for resentencing, with directions that the district court impanel a jury to determine the sentencing factors required by section 609.11. The state suggested that the district court’s authority to impanel a jury can be based on the inherent power of the court.

In Shattuck, we rejected the suggestion that the district court should use its inherent power to impanel a resentencing jury. We noted that although “[t]he authority to regulate matters of court procedure arises from the court’s inherent judicial powers,” this “authority extends only to its unique judicial functions.” Shattuck, 704 N.W.2d at 147. And while imposing a sentence within the limits of punishment for criminal acts is a judicial function, we observed that the power to fix these limits lies with the legislature and we ultimately left to the legislature the task of amending the Minnesota sentencing scheme to comport with the requirements of Blakely and Apprendi. Shattuck, 704 N.W.2d at 147. “For us to engraft sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines and sentencing statutes would require rewriting them, something our severance jurisprudence does not permit.” Id.

The state also asks us to find authority to empanel a sentencing jury on remand based on the 2005 amendments to Minn. Stat. § 244.10. The amendments authorize the district court to “impanel a resentenc-ing jury” to determine “the existence of factors in support of an aggravated departure.” Act of July 25, 2005, eh. 7, § 17, 2005 Minn. Laws, 1st Spec. Sess. 3059, 3079. But that section does not address the procedure for imposing a mandatory minimum sentence under section 609.11. See § 17. It applies solely to situations where the state seeks an aggravated departure under the sentencing guidelines, and not to mandatory minimum sentences. And, importantly, the legislature did not simultaneously amend section 609.11, which continues to provide that

the question of whether the defendant * * *, at the time of commission of an offense listed in subdivision 9, used a firearm * * * or had in possession a firearm shall be determined by the court on the record at the time of a verdict or finding of guilt at trial * * *.

Minn.Stat. § 609.11, subd. 7 (2004).

Finally, several other mandatory minimum statutes were amended in 2005 to provide for sentencing juries and bifurcated trials at resentencing hearings. Act of June 2, 2005, ch. 136, art. 2, § 6, art. 16, §§ 9-12, 2005 Minn. Laws 901, 923, 1117-19. These changes affect Minn.Stat. § 609.108 (2004) (relating to certain “patterned and predatory sex offenders”); Minn.Stat. § 609.109 (relating to certain repeat sex offenders; the statute at issue in Shattuck); and Minn.Stat. § 609.1095 (2004) (relating to certain dangerous and repeat felony offenders). Art. 2, § 6; art. 16, §§ 9-12. Noticeably absent from this list is section 609.11. The maxim that the expression of one thing indicates the exclusion of another persuades us that the legislature did not intend to authorize sentencing juries for sentences made under section 609.11. See Harris v. County of Hennepin, 679 N.W.2d 728, 731 (Minn.2004); Maytag Co. v. Comm’r of Taxation, 218 Minn. 460, 463, 17 N.W.2d 37, 40 (1944) (“Where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others.”).

For these reasons, we find no legislative authorization to impanel a resentencing jury for the purpose of imposing an upward departure from the presumptive sentence pursuant to Minn.Stat. § 609.11. The judgment of the court of appeals is affirmed and the case is remanded to the district court for imposition of a sentence within the presumptive range.

Affirmed and remanded for resentenc-ing.

      . Although we find error in the district court's denial of Barker's request for a jury trial on sentencing factors, we are not suggesting that the court should or could have impaneled a jury. For this case, it is enough to say that the failure of the district court to provide a jury trial on sentencing factors, for whatever reason, violated Barker's Sixth Amendment right to a jury trial. Where there is no constitutional mechanism available to address an enhancement to .the guideline presumptive sentence, the presumptive sentence must be imposed.

      . In Shattuck we declined to express any opinion about the validity of these provisions. 704 N.W.2d at 148 n. 17. We similarly decline to do so here.


author: ANDERSON, RUSSELL A., Justice. PAGE, Justice ANDERSON, PAUL H., J.

text:
    STATE of Minnesota, Appellant, v. James Douglas McLEOD, Respondent.
    No. A04-2404.
    Supreme Court of Minnesota.
    Nov. 17, 2005.

      Mike Hatch, Attorney General, St. Paul, MN, Robert D. Goodell, Special Assistant Hennepin County, Anoka, MN, for Appellant.
    William J. Mauzy, Amos Cohen, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

Respondent James Douglas McLeod, a pediatrician for 30 years, was charged by single complaint with three counts of criminal sexual conduct arising out of incidents of alleged sexual abuse against Child A and an incident of alleged sexual abuse against Child B. The alleged abuse against Child A began only six days after the alleged abuse of Child B. Both children, who were teenage male patients of McLeod, came forward independently to complain of sexual abuse that had occurred when their parents were out of the examination room. For the alleged incidents of abuse against Child A, McLeod was charged with one count of criminal sexual conduct in the first degree, Minn.Stat. § 609.342, subd. 1(b) (2004), and one count of criminal sexual conduct in the second degree, Minn.Stat. § 609.343, subd. 1(b) (2004). For the alleged incident of abuse against Child B, McLeod was charged with one count of criminal sexual conduct in the second degree. Id. On motion by McLeod, the district court severed the charges relating to Child A from the charge relating to Child B.

After the district court severed the charges relating to the two teenage patients, the state moved to introduce evidence of the alleged sexual abuse against Child B as Spreigl evidence in the trial pending on the charges of criminal sexual conduct against Child A. The district court denied the state’s Spreigl motion, determining that there was not clear and convincing evidence that McLeod acted toward Child B with sexual or aggressive intent, a requisite element for criminal sexual conduct in the second degree, the crime McLeod allegedly committed against Child B. The state appealed from the pretrial order under Minn. R.Crim. P. 28.04, subd. 2. Before the court of appeals received the Spreigl hearing transcript, it dismissed the pretrial appeal, concluding that the state had failed to make the requisite threshold showing that exclusion of the evidence would have a critical impact on the pending trial. We conclude that exclusion of the Spreigl evidence would have a critical impact on the pending trial and that the district court’s Spreigl ruling was in error, and we reverse and remand to the district court for further proceedings.

Child A

In 2003, Child A’s therapist reported to the police Child A’s allegations of criminal sexual conduct by McLeod, which the state claims occurred when Child A was between 13 and 15 years old. According to the criminal complaint, Child A claimed that the sexual abuse began during a medical examination on August 15, 2001. McLeod told Child A to remove all of his clothes for a physical exam and then, after touching Child A’s penis, McLeod “put his mouth on [Child A’s] penis and performed oral sex on him.” Then, McLeod allegedly told Child A that what happened should be kept between the two of them. The complaint against McLeod further alleges that on approximately seven or eight occasions between August 2001 and the summer of 2003, McLeod “would masturbate [Child A’s] penis, perform oral sex on him, or both.”

Child B

The state’s allegations regarding Child B arise from a single medical appointment with McLeod on August 9, 2001, when Child B was 15 years old. Previously, at his annual checkup in June, Child B had mentioned to McLeod that he had difficulty retracting his foreskin when he had an erection. At the June appointment, McLeod recommended that Child B try to stretch the foreskin and said that he would check back at their next appointment to see if there was any improvement. At the August 9 appointment, Child B, Child B’s mother, and McLeod first discussed Child B’s Attention Deficit Disorder (ADD). Then McLeod told Child B’s mother to leave the examination room. McLeod and Child B were alone. McLeod then asked Child B about his foreskin problem and Child B told him that the stretching treatment was not helping. McLeod told Child B that he wanted to see the problem for himself.

Child B’s report of what happened next differs from McLeod’s statement to the Health Investigations Division of the Minnesota Attorney General’s Office for the Minnesota Board of Medical Practice (Medical Board). Child B stated that he got up on the examination table and McLeod instructed Child B to lay down and to lower his pants and underwear. When Child B moved to lower his pants and underwear, McLeod grabbed both articles of clothing and pulled them down himself. McLeod, without using any gloves, then pulled back Child B’s foreskin a few times and asked Child B if it was painful. Child B explained that his problem was not painful but that he could not retract his foreskin when he had an erection. Child B then stated that McLeod began massaging Child B’s penis in order “to get me an erection.” Child B said that he told McLeod that he thought McLeod’s actions were “kind of weird,” but McLeod responded, “Oh, I know you’re not homosexual,” and told Child B that everyone has thoughts about homosexuality.

When Child B was not becoming stimulated, Child B reported that McLeod tried various other methods, including “flicking” water from the sink onto Child B’s penis and telling Child B to imagine a “hot” girl with “big tits.” At one point, McLeod left the examination room and came back with two packets of K-Y jelly, which McLeod applied to Child B’s penis. Child B reported that, after a few more minutes, McLeod licked his fingers two or three times and continued massaging. McLeod stopped after about 10-15 minutes and told Child B to get off the table and pull up his pants. According to Child B, McLeod said, “That’s okay. We’ll try again [in] 6-8 weeks though.” McLeod washed his hands and they both left the examination room.

Child B quickly walked to the waiting area and sat very close to his mother. Child B’s mother reported that Child B looked “flushed,” was acting “different[ly],” and was very quiet. McLeod mentioned that he wanted to see Child B in 6 to 8 weeks to monitor the ADD medication. Child B’s mother stated that McLeod curtly said that he wanted to see “just [Child B]” — which she found odd because she-would have to drive Child B to any examination because he did not yet have his driver’s license.

After they left, Child B told his mother what had happened. Child B’s mother contacted other medical professionals to verify that McLeod’s behavior was inappropriate in a medical examination and they instructed her to call the police. Both Child B and his mother gave statements to the police. Child B also provided the boxer shorts he had been wearing for DNA testing, but results showed DNA consistent with only one contributor, Child B. Minnesota Bureau of Criminal Apprehension forensic scientist, Kristine Deters, however, suggested that it was possible that a second DNA source could be present, but that Child B’s DNA was predominant, thus blocking any other source from showing up on the tests. A doctor who had advised Child B’s mother to contact the police also reported McLeod to the Medical Board.

In his statement to the Medical Board, McLeod’s version of the August 9, 2001, appointment is significantly different. He stated that while he did examine Child B’s genitalia, it was at Child B’s request for treatment of Child B’s foreskin problem. He did not pull down Child B’s pants, he did not attempt to give Child B an erection, he did not use water, saliva, or K-Y jelly on Child B’s genitalia, and he used gloves. McLeod also denied telling Child B to fantasize about “hot” girls or that everyone gets turned on a bit by homosexual thoughts. McLeod stated that he only moved Child B’s foreskin back and forth a few times and that “he spent perhaps a minute putting traction on [Child B’s] penis * * * to ‘simulate’ an erection.” McLeod did report that he asked Child B to stimulate himself so that he could get a sense of the extent of Child B’s problem, which McLeod admitted “was a terrible error in judgment.” He denied that he told Child B’s mother that he wanted to see “just [Child B]” alone in 6 to 8 weeks.

Prior to the August 9, 2001, appointment, Child B stated that he had never had any concerns about McLeod. But he changed pediatricians after the August 2001 appointment. In 2001, Child B did not want criminal charges to be pursued against McLeod because he hoped the Medical Board would resolve the issue. The Medical Board “closed” their investigation of McLeod in July 2002, but an evaluator expressed concern that McLeod compounded his error in judgment by communicating poorly with Child B’s mother and by keeping poor records. The evaluator also concluded that there had been no need for McLeod to examine Child B’s problem while Child B was having an erection.

Pretrial Spreigl motion and Spreigl hearing

After the charges related to Child A were severed from the charge related to Child B, the state chose to prosecute the charges concerning Child A first and, by pretrial motion, sought to admit the evidence of McLeod’s conduct toward Child B during the August 2001 exam as Spreigl evidence. At the beginning of the pretrial hearing, the district court explained that the purpose of the hearing was to determine whether “there is clear and convincing evidence of [Child B’s] allegations.”

Child B’s hearing testimony

Child B’s testimony at the hearing was consistent with his previous statements to the police and to the Medical Board. He also testified that he had not initially believed that McLeod’s actions during the exam were sexual, but that he changed his mind when McLeod told him to fantasize about a girl at school, when McLeod did not wash his hands throughout the exam, and when McLeod dabbed his finger on his tongue. On cross-examination, Child B stated that he understood that his conversations with McLeod about his foreskin problem would be confidential, but he also stated that McLeod never told him to keep what happened a secret. McLeod did not testify at the hearing.

Expert testimony

McLeod called Dr. Peter Dehnel, a specialist in pediatrics. Dr. Dehnel spoke about the importance of confidentiality in a pediatrician’s relationship with young patients to encourage them to disclose information on sensitive topics such as sexuality, sexually transmitted diseases, drug use, and alcohol use. He also testified that because Child B’s medical problem primarily occurred when he had an erection, “it would have been extremely helpful” and “within the standard of care” for McLeod to have examined Child B with an erection.

On cross-examination, Dr. Dehnel did not explicitly say that using saliva on a patient was outside of the standard of care, but said, “I would not personally do that.” When pressed by the state to say that McLeod’s actions toward Child B were wrong, Dr. Dehnel said, “[i]f it leads to patient injury and if it’s outside the standard of care and if it’s defined under peer review as not good practice, that would be then something that would be wrong behavior, wrong treatment.”

District court denial of motion and appeals

The district court denied the state’s Spreigl motion on December 7, 2004, focusing in its order on whether there was clear and convincing evidence that McLeod’s acts against Child B constituted the charged offense of criminal sexual conduct in the second degree. The court concluded that there was not clear and convincing evidence that McLeod had acted “with sexual or aggressive intent.” See Minn.Stat. § 609.341, subd. 11 (2004). The court stated that it found Child B’s testimony credible “insofar as he perceived that the exam was inappropriate and that he was embarrassed by it,” but stated that it was not Child B’s perception of the events that matters but the evidence of McLeod’s intent. The court also stated that it was “not convinced by clear and convincing evidence of the manner in which [Child B] described how [McLeod] assisted him in trying to reach an erection.” Because McLeod’s actions toward Child B occurred during a single examination of a medical problem brought to McLeod’s attention by Child B, the court determined that the state had failed to meet its burden of establishing “that [McLeod’s] actions were undertaken with sexual or aggressive intent.”

Because the lack of clear and convincing evidence of McLeod’s intent was disposi-tive for the district court, it specifically stated it was not deciding whether any of the other Spreigl requirements had been met. However, the court observed that Spreigl rulings usually occur at the end of the state’s case and that Child B’s allegations against McLeod were sufficiently different from Child A’s allegations to very likely render them inadmissible under Minn. R. Evid. 404(b).

The state appealed the district court’s pretrial ruling to the court of appeals on December 15, 2004, and ordered a transcript of the district court proceedings. Before the transcript was prepared and delivered, McLeod moved to dismiss the appeal, arguing that the court of appeals had no jurisdiction because the determination of whether a district court’s alleged error has a critical impact on the outcome of a trial is a threshold jurisdictional issue and “no Minnesota holding supports the proposition that exclusion of 404(b) evidence constitutes critical impact.” The state objected to McLeod’s motion to dismiss, arguing that McLeod’s motion was premature because the transcript had not yet been prepared, and, alternatively, that the state had met the critical impact requirements.

Before receiving a copy of the transcript, the court of appeals granted McLeod’s motion to dismiss the appeal on January 6, 2005. The court concluded that the state had failed to “make a threshold showing of critical impact.” The court also stated that the state “erroneously attempts to premise critical impact on future rulings ‘it expects the district court will make.’ ” The transcript was filed with the district court on January 7, 2005.

The state petitioned to this court, asserting that the court of appeals erred when it held that the state had failed to present a record sufficient to show critical impact, and we granted review.

I.

We must first determine whether the state has proven that the exclusion of the Spreigl evidence of Child B’s testimony will have a critical impact on its ability to prosecute the case. Critical impact is a threshold issue and “[i]n the absence of critical impact we will not review a pretrial order.” In re L.E.P, 594 N.W.2d 163, 168 (Minn.1999); see also State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (explaining that although we had previously stated that we decide the evidentiary issue first, we changed the order in State v. Zanter, 535 N.W.2d 624 (Minn.1995), making critical impact a threshold issue).

When the state appeals a pretrial order, it must show clearly and unequivocally (1) that the ruling was erroneous and (2) that the order will have a “critical impact” on its ability to prosecute the case. State v. Anderson, 683 N.W.2d 818, 821 (Minn.2004); State v. Richardson, 622 N.W.2d 823, 825 (Minn.2001); see also Minn. R.Crim. P. 28.04, subd. 2(2). The state can show that evidence that has been excluded has a critical impact not only when excluding the evidence “completely destroys” the state’s case, but also when excluding the evidence “significantly reduces the likelihood of a successful prosecution.” State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn.1987). Critical impact is intended to be a “demanding standard.” Zanter, 535 N.W.2d at 630. But excluded evidence that is “particularly unique in nature and quality is more likely to meet the critical impact test.” L.E.P., 594 N.W.2d at 168. “Whether [exclusion] of a particular piece of evidence will significantly reduce the likelihood of a successful prosecution depends in large part on the nature of the state’s evidence against the accused.” Zanter, 535 N.W.2d at 630.

Our decisions finding critical impact have generally involved exclusion of evidence directly relating to the charged crime. See, e.g., Anderson, 683 N.W.2d 818 (evidence of impaired driving relating to charges of impaired driving); State v. Robb, 605 N.W.2d 96 (Minn.2000) (suppressed shotgun relating to charges of felonious possession of a firearm); Scott, 584 N.W.2d 412 (confession). But we have not required that the excluded evidence be direct evidence of a crime to meet the requisite showing of critical impact. See Zanter, 535 N.W.2d at 631.

In fact, we have allowed some flexibility in determining whether excluded evidence will have a critical impact on the trial. In Zanter, we determined that indirect evidence in a murder case had a critical impact on a trial when we considered the state’s evidence as a whole. Id. at 631. The state sought to introduce keys that had belonged to the murder victim and photographs of women as Spreigl evidence to identify Zanter as the person who had been harassing the murder victim before her death. Id. at 630. We said that even though the indirect evidence was not as critical to the state’s case as, for example, statements of an unavailable victim or a confession of a criminal defendant, “circumstantial evidence that forms a link in the chain of the prosecution’s case can be critical to the outcome of the trial because the loss of one link may prevent the state from meeting its evidentiary burden.” Id. at 631. Because the case against Zanter was circumstantial, we concluded that the indirect evidence was critical to establish both Zanter’s identity as the person who harassed the victim and his motive to kill. Id.

The state argues that the exclusion of Spreigl evidence has a critical impact on its ability to prosecute McLeod in the trial involving Child A. The state contends that excluding the evidence of McLeod’s actions toward Child B significantly reduces the likelihood that it can successfully prosecute McLeod because Child B’s testimony uniquely shows that McLeod has demonstrated a pattern of sexual abuse against teenage male patients that was closely proximate in time. In its pretrial statement, the state provided the following critical impact statement:

The case set for trial involving Child A is a one-on-one case involving allegations of ongoing sexual abuse and a delayed report. The defense is one of fabrication. The evidence concerning Child B was sought to be admitted under the common scheme or plan exception, i.e., to establish that the act involving Child A occurred. * * * * The suppression of the evidence involving Child B will significantly reduce the likelihood of a successful prosecution.

The state lists secrecy, victim vulnerability, and the difficulty of assessing the credibility of child witnesses as among the problems the state faces in all child sex abuse cases. The state also points to its need for Child B’s testimony because of potential credibility problems and sexual identity issues involving Child A and the fact that Child A continued to have appointments with McLeod after the abuse began. The state urges that Child B’s testimony is necessary to rebut McLeod’s defense that Child A made up the abuse or that Child A falsely remembered sexual abuse after sessions with his therapist. McLeod asserts that exclusion of Spreigl evidence cannot have a critical impact on a trial because no evidence in the state’s case in chief is excluded.

To determine if the exclusion of certain evidence will have a critical impact on a trial that is pending, we first examine all of the state’s admissible evidence as a whole. L.E.P., 594 N.W.2d at 168; Zanter, 535 N.W.2d at 631. Here, the state has not delineated all of the admissible evidence because the district court has not made formal rulings on the admissibility of some of the evidence, in particular, the admissibility of expert witness opinions. The record does indicate, however, that Child A’s allegations of several incidents of sexual abuse are the state’s primary evidence and that McLeod’s defense is that Child A has fabricated the abuse. The state’s case appears to rest primarily on whether the jury believes Child A. According to the state, McLeod will attempt to show that Child A is not credible because of psychological problems, including some history of lying.

We conclude that excluding the evidence of McLeod’s acts toward Child B would significantly reduce the state’s chances of a successful prosecution. The incident involving Child B suggests a pattern of conduct or design that continued with Child A and is arguably sexual in nature. The state contends that McLeod’s modus oper-andi for the acts against Child A and Child B is the same — he abused his trust and sexually abused teenage male patients when the patient’s parent had left the room under the guise of a medical examination and when the child was unclothed and vulnerable.

Acts that appear to be innocent may lose their innocent nature when repeated. See 2 John Henry Wigmore, Wigmore on Evidence § 302 (Chadbourn rev.1979). In State v. Wermerskirchen, we also explained that even one previous act or attempt of sexual misconduct can, when common features exist between the acts, be highly indicative of a design to commit sexual misconduct, stating:

The committing of a single previous rape, or rape attempt, upon another woman may not in itself indicate * * * a design * * *.
Nevertheless, a single previous act, even upon another woman, may, with other circumstances, give strong indication of a design (not a disposition) to rape * * *.
Courts have shown altogether too much hesitation in receiving such evidence. Even when rigorously excluded from any bearing it may have upon character, it may carry with it great significance as to a specific design or plan of rape. There is no reason why [this evidence] should not be received when it does convey to the mind, according to the ordinary logical instincts, a clear indication of such a design.

497 N.W.2d 235, 240 (Minn.1993) (quoting 2 Wigmore, supra § 357) (first two omissions in original). In Wermerskirchen, several of the Spreigl acts admitted into evidence did not constitute crimes, but when viewed collectively, the acts provided evidence that the defendant’s intent was criminal and that he had an ongoing pattern of opportunistic fondling of young girls. See Wermerskirchen, 497 N.W.2d at 242 (admitting, as Spreigl evidence, evidence that included the defendant smelling the victim’s underwear and the defendant walking in on his niece while she was taking a bath). In other words, a series of acts inform the factfinder of the actor’s intent in ways that a single act cannot.

Exclusion of Child B’s testimony would make it practically impossible for the state to demonstrate a pattern of conduct or design by McLeod to abuse male teenage patients when they were alone with him in his examination room. While we cannot know all of the admissible evidence before trial, the structure of the facts and arguments is sufficiently established in this case to determine that the excluded evidence would have a critical impact at trial. Child B’s testimony uniquely enables the state to show this possible pattern of conduct or design to abuse a second victim. Being able to demonstrate this pattern or design is particularly important in child sexual abuse cases where there will be problems of secrecy, victim vulnerability, the absence of physical proof of the crime, the unwillingness of some victims to testify, and a general lack of confidence in the ability of the jury to assess the credibility of child witnesses. See id. at 240-41. Accordingly, in this situation — a sexual abuse case where Child A’s allegations are the primary evidence, Child A’s credibility is affected by his delay in reporting abuse alleged to have occurred over a continuation of appointments with the alleged abuser, Child A has a reported history of psychological problems, and Child B has come forward with similar allegations — we conclude that the state has met its burden of proving clearly and unequivocally that the exclusion of Child B’s testimony will have a critical impact on its ability to prosecute McLeod in the trial involving McLeod’s alleged acts against Child A. Though this conclusion to some degree anticipates the future course of a trial yet to occur, such anticipation is well-founded given the case record presently before this court. The determination of the critical impact of evidence upon a trial yet to occur is, by its nature, forward-looking. We conclude that the court of appeals erred when it granted McLeod’s motion to dismiss the appeal. We hold that exclusion of the Spreigl evidence has a critical impact on the pending trial when exclusion of the evidence significantly reduces the likelihood that the state will be able to demonstrate a possible pattern of conduct or design that is sexual in nature.

II.

Having decided that the court of appeals erred when it concluded that the state did not show that exclusion of the Spreigl evidence involving Child B will have a critical impact on the trial, to avoid further delay in this pretrial appeal, we will also decide whether the district court erred when it excluded the Spreigl evidence. We review a district court’s ruling on Spreigl evidence for an abuse of discretion. State v. Blom, 682 N.W.2d 578, 611 (Minn.2004). A decision that is “based on an erroneous view of the law” is an abuse of discretion. State v. Storkamp, 656 N.W.2d 539, 541 (Minn.2003).

Spreigl evidence is “[e]vidence of another crime, wrong, or act [that] is not admissible to prove the character of a person in order to show action in conformity therewithf, but which] may * * * be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b); see also State v. Spreigl, 272 Minn. 488, 497,139 N.W.2d 167,173 (1965). A court can admit Spreigl evidence of another crime, wrong, or act only if the state meets five requirements:

(1) notice is given that the state intends to use the evidence; (2) the state clearly indicates what the evidence is being offered to prove; (3) the evidence is clear and convincing that the defendant participated in the other [crime, wrong, or act]; (4) the Spreigl evidence is relevant and material to the state’s case; and (5) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.

Blom, 682 N.W.2d at 611. But if “it is unclear whether Spreigl evidence should be admitted, the defendant receives the benefit of the doubt, and the evidence should be excluded.” Id.

Our focus in this case is whether evidence of a wrong or act can constitute Spreigl evidence under Rule 404(b). The district court focused only on whether there was clear and convincing evidence that McLeod’s actions toward Child B were committed with sexual or aggressive intent so as to constitute the crime of criminal sexual conduct in the second degree. See Minn.Stat. § 609.341, subd. 11. The court stated that it found Child B’s testimony credible, but that the evidence of McLeod’s intent was not clear and convincing. The court did not, however, determine whether there was clear and convincing evidence that McLeod’s actions toward Child B were a “wrong” or “act” under Rule 404(b). In its brief, the state does not appear to contest the court’s determination that McLeod’s acts toward Child B did not constitute clear and convincing evidence of a crime. Rather, the state contends that the court’s analysis was incomplete because the court did not consider whether McLeod’s acts were also a “wrong” or “act.” Because McLeod’s behavior does not have to be a crime to be admissible as Spreigl evidence, the state asserts that the district court committed a legal error by disregarding a critical part of Rule 404(b).

We agree with the state and hold that the district court erred when it only determined whether there was clear and convincing evidence of a crime. Rule 404(b) explicitly allows, for limited purposes, “evidence of another crime, wrong, or act.” We have required that the prior act have been a “bad” act. See Ture v. State, 681 N.W.2d 9, 16-17 (Minn.2004) (holding that evidence that defendant collected information on women was not admissible as Spreigl evidence because there is nothing inherently wrong with collecting information on women). But the prior bad act need not constitute a crime. Angus v. State, 695 N.W.2d 109, 122 (Minn.2005); see also State v. Ferguson, 581 N.W.2d 824, 834 (Minn.1998) (holding that the admission of non-crime related evidence of gang affiliation did not violate Rule 404(b) because the evidence tended to show the defendant’s motive for murdering a rival gang member).

Therefore, it is necessary to determine whether there is clear and convincing evidence that McLeod’s actions toward Child B constituted a wrong or act under Rule 404(b). To determine whether there is clear and convincing evidence, we review the district court’s findings, according great deference to the district court’s discretion on evidentiary findings. State v. Profit, 591 N.W.2d 451, 466 (Minn.1999); see also Ture, 681 N.W.2d at 15. If the record is sufficient for us to determine whether there is clear and convincing evidence of a wrong or act, we need not remand on this issue. The district court stated that it was “not convinced by clear and convincing evidence of the manner in which [Child B] described how [McLeod] assisted him in trying to reach an erection” (emphasis added), but it concluded that Child B’s testimony was essentially credible and that, except for McLeod’s intent, there was clear and convincing evidence for all elements of the crime of second degree criminal sexual conduct. The district court also concluded that Child B was credible when he expressed his belief that McLeod’s conduct during the August 9 exam was inappropriate and that Child B was embarrassed by it. Moreover, although McLeod denies the details of the examination, he admitted to the Medical Board that he made “a terrible error in judgment” when he asked Child B to stimulate himself during the examination.

We conclude that the record is sufficient to show clear and convincing evidence of a “wrong” or “act” under Rule 404(b) and we remand to the district court with instructions to complete the remainder of the Spreigl analysis. On remand, the district court must determine whether Child B’s testimony is relevant and material and is more probative than unfairly prejudicial. The court may defer its final decision on the admissibility of the Spreigl evidence until the state has presented at trial all non -Spreigl evidence and the court can determine the need for the evidence. State v. DeWald, 464 N.W.2d 500, 504 (Minn.1991).

In summary, we hold that the district court erred when it concluded that the Spreigl evidence was inadmissible based only on its determination that there was not clear and convincing evidence that McLeod’s actions toward Child B constituted a “crime.” We conclude that Spreigl evidence may be admissible when, as here, there was clear and convincing evidence of a “wrong” or “act” under Rule 404(b) and we remand to the district court with instructions to complete the Spreigl analysis according to our case law, taking all relevant evidence into consideration.

III.

Finally, we turn briefly to the state’s arguments that the court of appeals erred by making its decision before it had received the Spreigl hearing transcript. To review an issue, an appellate court must have a sufficient record. See State v. Carlson, 281 Minn. 564, 566, 161 N.W.2d 38, 40 (1968). To provide the court with a sufficient record, Minn. R.Crim. P. 28.04, subd. 2(2), requires the state to file a notice of appeal, a summary statement of the case with a critical impact analysis, and “a copy of the written request * * * for such transcript of the proceedings as [the state] deems necessary.” But most of the requirements under Rule 28.04, subd. 2(2), including the transcript requirements, are not jurisdictional. Minn. R.Crim. P. 28.04, subd. 2(2); cf. State v. Barrett, 694 N.W.2d 783 (Minn.2005) (holding that failure to serve notice of appeal on the State Public Defender is a jurisdictional defect because Minn. R.Crim. P. 28.04, subd. 2(2), does not include failure to serve this notice among nonjurisdictional defects). Here, the state filed its notice, including the required critical impact statement.

We conclude that although the court of appeals erred in its analysis on critical impact, it had a sufficient record to reach a decision on critical impact. The state filed its statement of the case explaining that Child A’s testimony would be the key evidence against McLeod and that Child B’s testimony is necessary to show that McLeod has engaged in a pattern of criminal sexual conduct. When combined with the state’s critical impact statement, the complaint and prehearing record provided sufficient information for an appellate court to determine the critical impact of excluding Child B’s testimony in the pending trial involving Child A.

It would have been better if the court of appeals, before deciding critical impact, had waited to receive a transcript that had been requested, especially when, under Minn. R.Crim. P. 28.04, subd. 2(3), the due date of briefs is related to the delivery of the transcript. Although we have held that the court of appeals erred in its critical impact analysis, we conclude that the lack of a completed transcript, in this case, did not prevent an appellate court from making a determination on critical impact.

Reversed and remanded to the district court.

BLATZ, C. J., took no part in the consideration or decision of this case.

PAGE, Justice

(dissenting).

I respectfully dissent. Based on the evidence in the record before us, I would hold that the state has failed to meet its heavy burden of establishing that the suppression of the Child B evidence will have a critical impact on the state’s prosecution of McLeod. I would, therefore, dismiss the state’s appeal.

Appeals by the state in criminal cases are not favored and “rules governing pretrial prosecution appeals are strictly construed.” State v. Barrett, 694 N.W.2d 783, 786 (Minn.2005). In order to proceed with a pretrial appeal, the state must establish that the trial court’s suppression of evidence will have a critical impact on the outcome of the trial, that is, “[t]o prevail, the state must ‘clearly and unequivocally’ show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Zanter, 535 N.W.2d 624, 630 (Minn.1995). “Critical impact is met when the suppression of the evidence significantly reduces the likelihood of a successful prosecution.” In re L.E.P., 594 N.W.2d 163, 168 (Minn.1999). When analyzing critical impact, the reviewing court must examine all of the admissible evidence to determine the impact the excluded evidence will have on the prosecution. Id.

Although the court, in its opinion, identifies the correct standard for determining critical impact, the court fails to properly apply that standard in this case. The court in effect ignores the requirement that all admissible evidence be examined to determine the impact the excluded evidence will have on the prosecution. While the court acknowledges that “the state has not delineated all of the admissible evidence because the district court has not made formal rulings on the admissibility of some of the evidence,” the court, without more, launches into a discussion of the fact that the state’s case hinges on Child A’s credibility and then summarily concludes that excluding the Child B evidence will “significantly reduce the state’s chances of a successful prosecution.” So much for strictly construing our rules governing prosecution pretrial appeals.

Interestingly, the court states, with a great deal of certainty, “[ejxclusion of Child B’s testimony would make it practically impossible for the state to demonstrate a pattern of conduct or design by McLeod to abuse male teenage patients when they were alone with him in his examination room.” How the court can reach this conclusion without knowing all the admissible evidence is puzzling. In reaching the conclusion that the exclusion of the Child B evidence will “significantly reduce the state’s chances of a successful prosecution” without first assessing its exclusion in light of all the admissible evidence, the court disregards our standard for assessing critical impact. How can the impact of excluding the evidence related to Child B be assessed without having the admissible evidence delineated? The court attempts to explain this inconsistency away by claiming “the structure of the facts and arguments is sufficiently established in this case to determine that the excluded evidence would have a critical impact at trial.” This explanation does not change the state of the law: the court must examine all of the admissible evidence. In re L.E.P., 594 N.W.2d at 168. Yet the state, as the court admits, has not even attempted to delineate all of the admissible evidence. Given that the state has failed to delineate the admissible evidence, which therefore cannot be assessed to determine the impact of excluding the evidence related to Child B, I would conclude that the state has not met its burden of establishing critical impact.

Three explanations come to mind for the court’s conclusion that the state has met the requirement of establishing critical impact without having assessed the impact of the Child B evidence in light of the other admissible evidence. One, the court has decided to apply the requirement in some cases, but not others, based on whim. Two, the court has, without saying so, simply changed the standards for assessing critical impact. Or three, the court has, again without saying so expressly, concluded that in child sexual abuse cases the exclusion of evidence relating to other acts of alleged sexual abuse by the defendant will always have a critical impact on the state’s ability to prosecute the case, presumably because without the evidence the state will not be able to show a pattern of conduct by the defendant. It is my hope that the court’s decision is not based on either of the first two explanations. I assume that its decision is based on the third. But, if the court is changing the rules for assessing critical impact in child sexual abuse cases, it should do so explicitly. It should also explain why it is changing the rules. Unfortunately, it has done neither. It certainly must do more than merely assert that the factors present in this case — “Child A’s allegations are the primary evidence, Child A’s credibility is affected by his delay in reporting abuse alleged to have occurred over a continuation of appointments with the alleged abuser, Child A has a reported history of psychological problems, and Child B has come forward with similar allegations,”- — warrant a critical impact determination.

I am also troubled by the court’s critical impact decision because it implies that the pretrial exclusion of evidence of other crimes, wrongs, or acts will always have a critical impact. Evidence of other crimes, wrongs, or acts is by its nature inadmissible except to the extent that Minn. R. Evid. 404(b) makes it admissible. Yet, to the extent that our precedent allows the admission of that evidence only when the state’s case is weak and the evidence is needed to bolster the prosecution’s burden of proof, there will always be a critical impact under the court’s analysis if the evidence is excluded pretrial.

It is true, as the court notes, that excluded evidence may have “a critical impact not only when the excluded evidence ‘completely destroys’ the state’s case, but also when excluding the evidence ‘significantly reduces the likelihood of a successful prosecution.’ ” However, it seems to me that when the evidence being excluded is by its very nature inadmissible, except under limited circumstances, something more than a significant reduction in the likelihood of a successful prosecution should be required before critical impact will be found. This is especially true when the evidence in question is highly inflammatory evidence involving child sexual abuse that can easily persuade by illegitimate means.

Having reached the conclusion that the state has not met its burden of establishing that the exclusion of the Child B evidence will have a critical impact on the prosecution, I would not reach the merits of whether that evidence was properly excluded.

ANDERSON, PAUL H., J.

(dissenting).

I join in the dissent of Justice Page.

      . Spreigl evidence is ”[e]vidence of another crime, wrong, or act [that] is not admissible to prove the character of a person in order to show action in conformity therewith[, but which] may * * * be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b); see also State v. Spreigl, 272 Minn. 488, 497, 139 N.W.2d 167, 173 (1965).

      . McLeod’s statement to the Medical Board is included in the record before this court. The record provides no indication of whether the district court has determined that McLeod's statement to the Medical Board will be admissible at trial. We note, however, that the district court stated that it did not rely on any of McLeod's statements when it made its ruling on the admissibility of the Spreigl evidence related to Child B.

      . One of the anticipated “future rulings” involves testimony from Dr. Michael Hunter, a psychotherapist, whose testimony the state asserts is relevant to explain why Child A delayed in reporting the sexual abuse and continued to have medical appointments with McLeod after the abuse began. Hunter also testified at the Spreigl hearing. McLeod argues that Hunter’s testimony should be excluded from trial because it does not meet the standard for admissibility under State v. Mack, 292 N.W.2d 764 (Minn.1980), because it would be unduly prejudicial, and because it would interfere with the jury's domain by vouching for Child A's credibility. At the hearing, Dr. Hunter testified that delayed disclosure is common among abuse victims, especially male victims. Child victims of abuse often fear that they will not be believed. Dr. Hunter also stated that "the majority of sexual abuse is covert in nature,” which is made worse when an adult in a position of authority sexually abuses a child. The court did not decide if Dr. Hunter's testimony would be admissible at trial.

      . Child A’s history of psychological problems is established even aside from Child A's disclosure to his therapist, the admissibility of which has yet to be determined.

      . The court's explanation for its failure to require a delineation of all of the admissible evidence is flawed. The court uses the very evidence that it is analyzing for critical impact — the Child B evidence — as justification for a finding of critical impact. Logically, the Child B evidence can only be evaluated for its critical impact in light of all the other admissible evidence.
      I would also note that the factors the court contends justify its consideration of critical impact without requiring delineation of the other admissible evidence in this case are not as unique as the court implies. In almost every sexual abuse case, particularly child sexual abuse, the victim's allegations will be the primary evidence. As such, the victim's credibility will be an issue. Moreover, the questions regarding Child A’s psychological health go to nothing more than the issue of credibility. Delayed reporting, which is typical in child sexual abuse cases, also goes to the victim's credibility. If almost every case of sexual abuse involves the factors relied on here, the court’s holding will impact far more than the specific situation presented here. In essence, the holding will allow courts to determine critical impact without examining all admissible evidence in every sexual abuse case.
      Finally, with respect to the court's statement that the determination of critical impact "is, by its nature, forward-looking,” I would note that, while a critical impact determination is always forward-looking, under our cases the forward look must be considered in light of the admissible evidence. Here, the court has made the critical impact decision without even having the admissible evidence delineated.

      . See State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967) ("Evidence of other crimes is admissible only if the trial court finds the direct or circumstantial evidence [ ] is otherwise weak or inadequate, and that it is necessary to support the state’s burden of proof.”).


author: MARING, Justice.

text:
    2005 ND 186
    Lucas HOFF, Plaintiff and Appellant v. Stacy FITTERER, f/k/a Stacy Hoff, Defendant and Appellee.
    No. 20050088.
    Supreme Court of North Dakota.
    Nov. 9, 2005.
    Eugene F. Buresh, Reichert, Herauf & Buresh, Dickinson, N.D., for plaintiff and appellant.
    Mary E. Nordsven, Hardy, Maus & Nordsven, P.C., Dickinson, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Lucas Hoff appealed from an amended judgment denying a motion to reduce his child support obligation. We hold the trial court erred, as a matter of law, in not following the child support guidelines for imputing income, and we reverse and remand for recalculation of Hoffs child support obligation.

I

[¶ 2] Hoff and Stacy Fitterer were divorced on June 16, 1998. At that time, Fitterer was awarded custody of the parties’ three minor children, and Hoff agreed to pay child support of $600 per month. On August 1, 2000, an Amended Judgment was entered reducing Hoffs child support obligation to $350 per month. On January 29, 2004, the Southwest Area Child Support Enforcement Unit, on Hoffs behalf, filed a motion requesting the court to further reduce Hoffs child support obligation to $232 per month. In support of the motion, the Enforcement Unit submitted Hoffs tax returns for five years showing that as a farmer-rancher he had average annual earnings of $5,683. However, the Enforcement Unit asserted that Hoff was underemployed and, therefore, wages of $10,320 per year should be imputed to him under the child support guidelines. Hoff did not object to the Enforcement Unit’s assertion that he was underemployed or that wages should be imputed to him, resulting in a child support obligation of $232 per month. The trial court found the evidence of Hoffs income was not credible and denied the motion to reduce Hoffs support obligation.

II

[¶ 3] On appeal, Hoff asserts the trial court’s findings are clearly erroneous and the court erred in denying the Enforcement Unit’s motion to reduce Hoffs child support obligation.

[¶ 4] Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion review. Dvorak v. Dvorak, 2005 ND 66, ¶ 25, 693 N.W.2d 646. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor’s child support obligation. Minar v. Minar, 2001 ND 74, ¶ 10, 625 N.W.2d 518. Under the child support guidelines, an obligor’s ability to pay child support is not determined solely upon actual income, but also takes into account the obligor’s earning capacity. Id. at ¶ 11.

[¶ 5] The Enforcement Unit introduced evidence that Hoff is underemployed as a farmer-rancher, and Hoff did not dispute that assertion by the Enforcement Unit. The trial court implicitly found that Hoff is underemployed, stating in its order denying the motion for reduction of the support obligation:

It’s apparent to me that [Hoff] can liquidate personal property, cash rent his real property, work only marginally and have vastly more personal income with which to support his children.

[¶ 6] The method for computing a support obligation when the obligor is underemployed is provided in N.D. Admin. Code § 75-02-04.1-07(3):

3. Except as provided in subsections 4, 5, and 9, gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross- earnings, must be imputed to an obligor who is unemployed or underemployed.
a. A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage.
b. An amount equal to six-tenths of - prevailing gross earnings in the community of persons with similar work history and occupational qualifications.
c. An amount equal to ninety percent of the obligor’s greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided.

Under this guideline, the subsection resulting in the greatest imputed income must be used. Buchholz v. Buchholz, 1999 ND 36, ¶ 14, 590 N.W.2d 215.

[¶ 7] The Enforcement Unit imputed income using the federal minimum wage standard under subsection (a). Although Fitterer did not file a cross-appeal, she argues the guidelines required the court to impute income to Hoff under subsection (c) of N.D. Admin. Code § 75-02-04.1-07(3). According to the unrefuted income tax records introduced by the Enforcement Unit, Hoffs gross income in 2001 was $18,696. Under subsection (c), Hoffs support obligation should be determined by using 90% of his 2001 earnings, which are the greatest average gross monthly earnings that he had in a 12 month period beginning on or after 36 months before commencement of these proceedings. The appropriate calculations under subsection (c) would result in a child support obligation of $418 per month. Based upon the unrefuted evidence of Hoffs gross income and the uncontested assertion by the Enforcement Unit that Hoff is underemployed, we conclude the trial court erred, as a matter of law, in failing to correctly apply the guidelines in determining Hoffs imputed income.

[¶ 8] The guidelines require Hoffs gross income be based upon earning capacity “equal to the greatest of subdivisions a through c” under N.D. Admin.Code § 75-02-04.1-07(3). The court was required to impute income based upon subsection (c) and Hoffs gross income in 2001 of $18,696. This case must, therefore, be reversed and remanded for a recalculation of Hoffs support obligation in accordance with the guidelines for imputed income.

III

[¶ 9] Other issues raised by Hoff on appeal are not necessary to resolution of this case and need not be addressed. An appellate court need not address questions, the answers to which are unnecessary to the determination of an appeal. Greybull v. State, 2004 ND 116, ¶ 9, 680 N.W.2d 254. The amended judgment is reversed and the case is remanded for recalculation of Hoffs child support obligation.

[¶ 10] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


text:
    2005 ND 192
    Timothy Gene KLOSE, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050044.
    Supreme Court of North Dakota.
    Nov. 9, 2005.
    Rehearing Denied Dec. 20, 2005.

      Timothy Gene Klose, pro se, Bismarck, N.D.; petitioner and appellant.
    Frederick Russell Fremgen, State’s Attorney, Jamestown, N.D., for respondent and appellee.
   MARING, Justice.

[¶ 1] Timothy Gene Klose appeals from a trial court judgment dismissing his application for post-conviction relief. On appeal, Klose argues his trial counsel was ineffective by failing to introduce certain evidence and in failing to review crime scene photographs with him. We affirm.

I

[¶ 2] On October 25, 2001, a jury convicted Klose of the murder of Ray Schultes, a neighbor who lived downstairs in Klose’s apartment complex. Klose killed Schultes in the early morning hours of March 22, 2001. Although originally charged with both murder and burglary, the jury acquitted Klose on the burglary count, but convicted him of murder. Klose has never disputed that he killed Schultes.

[¶ 3] Uncontested by the .parties is that, in the early morning hours of March 22, 2001, Klose forced his way into Schultes’ apartment, struggled with Schultes, fired shots from a New England shotgun, and killed Schultes. The parties differ on the amount of time that passed between Klose’s entry into Schultes’ apartment and the killing, whether Klose cleaned-up and changed clothes in between forcing his way into Schultes’ apartment and finally killing him, and whether Klose fired one or two guns during the incident.

[¶ 4] In his application for post-conviction relief, Klose argues his counsel was ineffective by failing to introduce evidence he believes would have aided his claim that he lacked criminal responsibility at the time of the killing. Klose maintains that, at the time of the killing, he was experiencing a hallucination that led him to believe he was on a spaceship, and the Earth’s atmosphere had been destroyed. Klose also asserts that the killing of Schultes ,was committed under a belief Schultes was his brother.

[¶ 5] Evidence presented at trial by Klose’s only witness, Dr. Joann Roux, supports Klose’s theory that he was suffering from delirium tremens at the time of the killing, which affected him to such an extent that his conduct was the result of either a loss or a serious distortion of his capacity to recognize reality. The State has maintained, however, that enough time passed between when Klose first forced his way into Schultes’ apartment and when Schultes was finally killed that Klose was criminally responsible for the murder.

[¶ 6] The trial court denied Klose’s application for post-conviction relief following a two-day evidentiary hearing.

[¶ 7] On appeal, Klose argues that, by not presenting evidence in three areas, his counsel was ineffective. First, Klose argues his trial counsel should have obtained forensic testing of the clothing, towel, and boxer shorts Klose was alleged to have used to clean-up. Second, Klose argues his counsel should have obtained independent testing of a Remington 870 shotgun the State alleges was also fired during the incident. Third, Klose argues his counsel should have called witnesses who would have attacked the State’s theory of the time line of events. Introducing evidence in these three areas, Klose asserts, would have aided his defense of lack of criminal responsibility.

[¶ 8] Klose also argues his counsel was ineffective because counsel failed to go through some 300 crime scene photos with Klose prior to trial. On appeal, Klose argues he was also wrongfully denied access to these photos by his post-conviction relief hearing attorney and the Department of Corrections.

II

[¶ 9] The Sixth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, and N.D. Const, art. I, § 12, guarantees a defendant effective assistance of counsel. Mathre v. State, 2000 ND 201, ¶ 3, 619 N.W.2d 627 (citing DeCoteau v. State, 1998 ND 199, ¶ 6, 586 N.W.2d 156). The United States Supreme Court, in Strickland v. Washington, sets out the test to be used when determining if a defendant has been deprived of his Sixth Amendment right to counsel. 466 U.S. 668,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, it is the defendant’s burden to prove (1) his counsel’s representation fell below an objective standard of reasonableness, and (2) he was prejudiced by his counsel’s deficient performance. Mathre, 2000 ND 201, ¶3, 619 N.W.2d 627. Establishing both elements is a heavy burden and requires a defendant to both overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. This requires the defendant to demonstrate with specificity how and where trial counsel was incompetent, and it is probable a different result would have been obtained had trial counsel not performed incompetently. State v. Burke, 2000 ND 25, ¶ 36, 606 N.W.2d 108.

[¶ 10] “The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable by this Court.” State v. Steen, 2004 ND 228, ¶ 8, 690 N.W.2d 239. “[A] trial court’s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a).” Id. “In determining whether counsel’s performance was deficient, the court must consider all circumstances and decide whether there were errors so serious that defendant was not accorded that ‘counsel’ guaranteed by the Sixth Amendment.” Mathre, 2000 ND 201, ¶ 3, 619 N.W.2d 627 (citing Lange v. State, 522 N.W.2d 179,181 (N.D.1994)). A court need not address both prongs of the ineffective assistance of counsel standard if a defendant clearly fails to meet his burden on one of the prongs. See Steen, 2004 ND 228, ¶ 9, 690 N.W.2d 239.

[¶ 11] Based on the record, Klose has neither demonstrated that his attorney’s representation was deficient nor that a different result was probable. Klose states that forensic testing of the gun, boxer shorts, towel, and clothing would have shown the State’s time line of events was incorrect, and that Klose fired the fatal shot soon after entering Schultes’ apartment. Further, he argues the evidence would have shown that only the New England shotgun was fired. Klose’s view of the evidence is not supported by this record.

A

[¶ 12] Our review of the record is limited because Klose has failed to provide a transcript of the evidentiary hearing on his ineffective assistance of counsel claim.

[¶ 13] Under Rule 10(b), North Dakota Rules of Appellate Procedure, an appellant is required to file a trial transcript with the Court on appeal. Christianson v. Christianson, 2003 ND 186, ¶ 13, 671 N.W.2d 801. If the appellant fails to comply, he assumes the risks and consequences of such failure. Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 8, 660 N.W.2d 558. A pro se litigant is not granted leniency solely because of his status as such. Id. As we have repeatedly said, “we will decline to review an issue if the record on appeal does not allow a meaningful and intelligent review of the trial court’s alleged error.” Id; State v. Hilgers, 2004 ND 160, ¶ 19, 685 N.W.2d 109.

[¶ 14] Klose states his reason for not providing a transcript was his inability to afford the cost. Klose requested a transcript to be provided at state expense. The trial court denied the request. Klose has not raised or properly brought this issue before us.

B

[¶ 15] On the limited record before us, Klose’s contention that the Remington was not fired the night of the killing conflicts with Klose’s earlier recollections. At trial, Dr. Roux, Klose’s own and only witness', stated Klose had told her he fired two different guns. In the account presented in Dr. Roux’s Report of Psychiatric Evaluation, presented by the Defense as an exhibit at trial, Klose tells Dr. Roux:

When Randy wouldn’t open the door, I went up and got one of my guns, then I went back downstairs and shot the locks off the door.... Then I kicked down the door, and I remember walking into pitch blackness and not being able to see anything and calling for Randy.... Then Randy (who I now realize was really Ray, who was probably terrified and was just trying to defend himself) jumping out at me and hitting me with a stick.... I remember struggling with Randy for a while, and I overpowered him and I hit him with my gun and I think I shot him too.... Then I remember seeing Randy lying on the ground, and thinking that he was already dead— but I needed to make sure he was dead, then so I went up and got my 12-gauge and came back down and shot him in the head.

When first arrested, Klose’s story also included firing the Remington, according to testimony presented at trial by Detective Sergeant LeRoy Gross.

[¶ 16] Klose simply has not overcome the heavy burden, based on the record before us, of proving he was prejudiced by his counsel’s failure to secure an independent forensic test o'f the Remington, or by failing to introduce forensic evidence regarding the Remington at trial. Indeed, that the Remington was not used would directly contradict the story Klose gave to Dr. Roux, the police, and, presumably, to counsel before trial. In the absence of a transcript of Klose’s evidentiary hearing on the.motion before us, we cannot find sufficient evidence that would allow Klose to sustain his ineffective assistance of counsel burden of proof.

[¶ 17] Klose also argues his trial counsel should have submitted evidence to rebut the State’s theory of how long the incident took. Klose argues a witness, Sarena Putnam, told Officer Elizabeth Kapp that she had heard the first shot at 4:41 a.m. and the last shot at 4:46 a.m. Klose argues this evidence proves the killing happened over a short period of time, not the ten to fifteen minutes the State asserts Klose had to deliberate over his actions. Because we do not have a transcript, however, we are unable to make any determination of the legitimacy of Klose’s claims.

[¶ 18] As to the boxer shorts, towel, and clothing Klose believes should have been subjected to forensic testing, Klose fails to show how that testing would have aided his case. Klose simply states the evidence would have proven he did not change clothes between the first and fatal shot if forensic testing had come back with only his blood on those items. He does not explain why. Conclusory allegations of deficient performance do not constitute a showing sufficient to overcome the presumption that trial counsel’s conduct is professional. State v. Kunkel, 366 N.W.2d 799, 802 (N.D.1985).

C

[¶ 19] In denying Klose’s application for post-conviction relief, the trial court stated that none of the evidence Klose argues should have been introduced went to the issue of criminal responsibility. Klose argues this was error. The State agrees with Klose. We agree with Klose. Evidence supporting or attacking the time line and events that occurred during the killing go directly to the issue of criminal responsibility.

[¶ 20] In this ease, the jury found Klose not guilty of the crime of burglary but guilty of murder. The finding of guilt came in a bifurcated trial solely on the issue of Klose’s mental state. Klose had admitted to the actus rea of burglary and murder. He contested only that he had the requisite mental state to be found guilty and indeed Klose was acquitted of having the required mental state for the burglary. It is clear that the less time Klose had to understand what he was doing between the time of the burglary and the murder, the closer in time he brings his actions to the burglary for which the jury found him to not possess the mens rea required for a crime. Whether Klose had five minutes or fifteen minutes between the burglary and the murder, whether he changed clothes between the initial attack and the final killing shot, whether he took the time to go back upstairs to grab another weapon and fire the killing shot all go directly to the issue of criminal responsibility.

[¶ 21] The issue of ineffective assistance of counsel is a mixed question of law and fact that is fully reviewable by this Court. State v. Steen, 2004 ND 228, ¶ 8, 690 N.W.2d 239. We will not disturb a correct result merely because the trial court assigned an incorrect reason, if the result is the same under the correct law and reasoning. State v. Ramsey, 2005 ND 42, ¶ 12, 692 N.W.2d 498. Although Klose’s issues do go to the issue of criminal responsibility, Klose has limited our inquiry by not providing a transcript of the evidentiary hearing. Based on the record before us, he has not met his burden in establishing his counsel’s performance was deficient or that he was prejudiced by his counsel’s performance.

III

[IF 22] Klose also argues he was denied access to relevant information by his trial attorney, his evidentiary hearing attorney, and the Department of Corrections. Specifically, Klose argues he was not provided with copies of crime scene photographs or copies of the police reports. According to Klose, when his post-conviction relief evidentiary hearing counsel sent the photographs to him following the evidentiary hearing, Prairie Correctional Facility personnel shredded some of the more graphic photographs. Klose contends the Prairie Correctional Facility would not give him his reading glasses when the photographs arrived, access to certain legal papers during the preparation of his appeal, or sufficient access to the facility’s library.

[¶ 23] Klose did not raise these issues in his initial application for post-conviction relief or his amended application for post-conviction relief. Further, Klose does not explain how failure to provide him with a set of the crime scene photographs constitutes ineffective assistance of counsel. This Court will not address issues not presented at the trial court level. State v. Ramsey, 2005 ND 42, ¶34, 692 N.W.2d 498.

IV

[¶24] Accordingly, we affirm the trial court judgment.

[¶ 25] GERALD W. VANDE WALLE, ' C.J., DANIEL J. CROTHERS, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ„ concur.