author: GILBERT, Justice. PAUL H. ANDERSON, J. PAGE, Justice STRINGER, Justice

text:
    STATE of Minnesota, Respondent, v. Steven Mark LOGE, Appellant.
    No. C9-98-842.
    Supreme Court of Minnesota.
    March 2, 2000.

      John M. Stuart, MN State Public Defender, Scott G. Swanson, Assistant State Public Defender, Minneapolis, for appellant.
    Michael A. Hatch, MN Attorney General, James B. Early, Assistant Attorney General, St. Paul, for respondent.
   OPINION

GILBERT, Justice.

This case presents the question of whether knowledge is an element of the crime under the open bottle law when the driver is the sole occupant of a motor vehicle. Appellant Steven Mark Loge was cited on September 2, 1997, for a violation of Minn.Stat. § 169.122, subd. 8 (1998), which makes it unlawful for the driver of a motor vehicle, when the owner is not present, “to keep or allow to be kept in a motor vehicle when such vehicle is upon the public highway any bottle or receptacle containing intoxicating liquors or 8.2 percent malt liquors which has been opened.” Violation of the statute is a misdemeanor. See Minn.Stat. § 169.122, subd. 4 (1998). After a bench trial, the district court held that subdivision 3 imposed “absolute liability” on the driver/owner. Loge appealed. The court of appeals affirmed the conviction, holding that proof of knowledge that the open container was in the motor vehicle was not required. See State v. Loge, 589 N.W.2d 491, 494 (Minn.App.1999). We affirm.

On September 2, 1997, Loge borrowed his father’s pick-up truck to go to his evening job. Driving alone on his way home from work, he was stopped by two Albert Lea city police officers on County Road 18 at approximately 8:15 p.m. because he appeared to be speeding. Loge got out of his truck and stood by the driver’s side door. While one officer was talking with Loge, the second officer, who was standing by the passenger side of the truck, observed a bottle, which he believed to be a beer bottle, sticking partially out of a brown paper bag underneath the passenger’s side of the seat. He retrieved that bottle, which was open and had foam on the inside. He searched the rest of the truck and found one full, unopened can of beer and one empty beer can. After the second officer found the beer bottle, the first officer asked Loge if he had been drinking. Loge stated that he had two beers while working and was on his way home. Loge passed all standard field sobriety tests. The officers gave Loge citations for having no proof of insurance and for a violation of the open bottle statute but not for speeding. The no proof of insurance charge was later dismissed. Loge did not raise a probable cause challenge to either the stop or the officer’s actions in observing the open bottle on the floor of the truck.

The trial on the open bottle charge took place on January 29, 1998. Loge testified that the bottle was not his, he did not know it was in the truck and had said that to one of the officers. That officer did not remember any such statements. At the close of the testimony, the trial court requested memoranda from Loge’s counsel and the city attorney on the question of whether knowledge is an element of subdivision 3 of the open bottle statute. Both attorneys came to the same legal conclusion that proof of knowledge was required. The trial court found that one of the police officers “observed the neck of the bottle, which was wrapped in a brown paper sack, under the pickup’s seat of the truck being operated by defendant.” Based on an analysis of section 169.122 as a whole, the trial court held that subdivision 3 creates “absolute liability” on a driver/owner to “inspect and determine * * * whether there are any containers” in the motor vehicle in violation of the open bottle law and found Loge guilty. Loge was sentenced to five days in jail, execution stayed, placed on probation for one year, and fined $150 plus costs of $32.50.

Loge appealed the verdict. The city attorney did not file a respondent’s brief but sent a letter to the Clerk of Appellate Court stating that he “coneur[red] with the reasoning and rationale in the Appellant’s brief and therefore there [was] no reason for the State of Minnesota to file a Respondent’s brief.” In a published opinion, the court of appeals affirmed the decision of the trial court finding that the evidence, which establishes that one of the officers saw an open bottle containing intoxicating liquor underneath the passenger seat of the truck Loge was driving on a public highway, was sufficient to support Loge’s conviction. See Loge, 589 N.W.2d at 494. The court of appeals held that proof of knowledge that the bottle was in the truck is not required to sustain a conviction. See id.

Loge’s petition for further review was granted. The Attorney -General then assumed responsibility for this case and filed a respondent’s brief in which the Attorney General argues, contrary to the previous position of the state, that there is no knowledge requirement under subdivision 3.

Loge is seeking reversal of his conviction because, he argues, the trial court and court of appeals erroneously interpreted subdivision 3 of the open bottle statute not to require proof of knowledge. Loge argues that the words “to keep or allow to be kept” implicitly and unambiguously require a defendant to have knowledge of the open container in the motor vehicle in order for criminal liability to attach. He argues that “keep” means “to maintain, or cause to stay or continue, in a specified condition, position, etc.” Loge argues that that definition suggests that a person must purposely choose to continue possession. Further, Loge argues that the word “allow” from the phrase “allow to be kept” means “to permit; to grant license to,” suggesting awareness at the minimum.

The state argues that the language of subdivision 3 creates a strict liability offense. The statute was enacted in 1959 and subdivision 3 has not had any substantive change since its enactment. The state relies heavily on the presumption that the legislature intends the statute as a whole to be effective and certain, with no surplusage. See Minn.Stat. §§ 645.16, 645.17(2) (1998); State v. Orsello, 554 N.W.2d 70, 75-76 (Minn.1996). The state argues that subdivision 3’s “keep or allow to be kept” language must mean more than mere possession of alcohol because owners/drivers are already subject to liability under subdivision 2 for mere possession, which applies to all persons in the motor vehicle. The state further argues that to read subdivision 3 as requiring conscious or continuing possession would make it mere surplusage.

Statutory construction is a legal determination reviewed by this court under a de novo standard. See In re A.A.E., 590 N.W.2d 773, 776 (Minn.1999). An analysis of a statute must begin with a careful and close examination of the statutory language. See Orsello, 554 N.W.2d at 74. We undertake such a review to ascertain and effectuate legislative intent. See Minn.Stat. § 645.16. If the meaning of the statute is “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Id.

Except for search and seizure issues, this is the first time we have reviewed this statute since its enactment 40 years ago. We are asked only to interpret this statute under the facts presented. Although this statute addresses two potential, alternate situations involving a driver of “any private motor vehicle * * * when such vehicle is upon the public highway,” only one is presented under these facts. Minn.Stat. § 169.122, subd. 3. The statute establishes liability for such a driver when that driver “keep[s] or allow[s] to be kept” any open bottle containing intoxicating liquor within the area normally occupied by the driver and passengers. Id. (emphasis added). These two alternate concepts are separated by the disjunctive “or,” not “and.” Unlike the use of the word “and,” “or” signifies the distinction between two factual situations. We have long held that in the absence of some ambiguity surrounding the legislature’s use of the word “or,” we will read it in the disjunctive and require that only one of the possible factual situations be present in order for the statute to be satisfied. See, e.g., Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 385 (Minn.1999); Aberle v. Faribault Fire Dept. Relief Ass’n, 230 Minn. 353, 360, 41 N.W.2d 813, 817 (1950) (“The word ‘or’ is a disjunctive and ordinarily refers to different things as alternatives.”). Accordingly, we limit our opinion to the words “to keep.” Minn.Stat. § 169.122, subd. 3.

Further, even though this was a court trial, we note that similar to the statute, CRIMJIG 29.30 also recognizes the significance of the use of the disjunctive “or” and provides for separate, alternate instructions on “(kept) (allowed to be kept).” See 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, CRIMJIG 29.30 (4th ed.1999); see also 10 Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, Explanatory Note (4th ed. 1999) (“[PJarentheses indicate options for factual variations * * * .”). In prior versions of the jury instructions, the comment noted that the trial judges are divided as to whether knowledge is required under the statute. See 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 Comment (1989 ed.). The comment noted that “[s]inee the [question of proof of knowledge] has not been ruled upon by the Minnesota appellate courts, the trial judge should include or omit the bracketed portion according to his or her own reading of the statute.” Id. Thus, the instruction included then, as it does now, an optional portion in brackets which reads “[This means that defendant knew the (bottle) (receptacle) was in the vehicle.].” 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 (1989 ed.); see also 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, CRIMJIG 29.30 (4th ed. 1999) (“[Brackets indicate optional element choices, depending on the portion of the statute that has been charged.”). We take this opportunity to review Minn. Stat. § 169.122, subd. 3 as it relates to the facts in the record where there was only a sole occupant in the vehicle.

We are guided in our interpretation of section 169.122, subdivision 3 by the statutory presumption that the legislature intends an entire statute to be effective and certain. See Minn.Stat. § 645.17(2). We must therefore look to all subdivisions of section 169.122 together to help us determine whether the legislature intended to impose liability under subdivision 3 on a driver/owner without proof of knowledge. Subdivision 1 prohibits the consumption of alcohol by any person in a motor vehicle on a public highway. See Minn.Stat. § 169.122, subd. 1 (1998). Subdivision 2 prohibits the actual possession of, or conscious exercise of dominion and control over, an open bottle of alcohol by any person in the vehicle. See id. § 169.122, subd. 2 (1998). In contrast, subdivision 3 provides that the owner, or if the owner is not present, the driver is responsible for ensuring that no open bottles of alcohol are present in a vehicle on a public highway, regardless of consumption, actual possession or conscious exercise of dominion and control. See id. § 169.122, subd. 3. Consumption, possession and presence of an open container of alcohol in a motor vehicle are each separate risks. The legislature separately addressed each risk in section 169.122, subdivisions 1 through 3 in an effort to promote highway safety by decreasing the opportunity for alcohol consumption and drunken driving that an open container of alcohol anywhere in the vehicle creates. It is clear from reading the statute as a whole that the legislature intended to categorically prohibit open bottles of alcohol in a motor vehicle on a public road except under the limited circumstances that the legislature expressly addressed and carved out. Thus, we find no ambiguity in the legislature’s use of the word “keep.”

We are mindful of Loge’s argument that, as a criminal statute, section 169.122 must be strictly construed. See State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993). Where we have found a statute ambiguous, we have said, “if criminal liability, particularly gross misdemeanor or felony liability, is to be imposed for conduct unaccompanied by fault, the legislative intent to do so should be clear.” State v. Neisen, 415 N.W.2d 326, 329 (Minn.1987). However, we have held that the rule of strict construction does not require this court to assign the narrowest possible interpretation to the statute or to adopt a construction that would render the statute or one of its subdivisions meaningless. See Zacher, 504 N.W.2d at 473. Furthermore, where, as here, we have interpreted the statute and find no ambiguity, “the so-called ‘rule of lenity,’ which holds that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity towards the defendant,” has no application. Orsello, 554 N.W.2d at 74 (emphasis added) (citations omitted). As we did in Gullings v. State Bd. of Dental Examiners, 200 Minn. 115, 119, 273 N.W. 703, 705 (1937), we adhere to the rule of strict construction for a penal statute but hold that where the language of the statute is clear, the court is bound to give effect thereto.

In delineating the elements of the crime, we have also held that the legislature is entitled to consider what it deems “expedient and best suited to the prevention of crime and disorder.” State v. Morse, 281 Minn. 378, 382, 161 N.W.2d 699, 702 (1968) (citations omitted). The Supreme Court has addressed the dichotomy between the opportunity to discover and the difficulty of proof in arranging a statutory scheme establishing criminal liability for an unknowing individual:

Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof oí knowledge contributed to this conclusion.

United States v. Balint, 258 U.S. 250, 254, 42 S.Ct. 301, 66 L.Ed. 604 (1922) (emphasis added). Here, if knowledge was a necessary element of the open container offense, there would be a substantial, if not insurmountable, difficulty of proof. The legislature may have weighed the possible injustice of subjecting a driver to a penalty against the opportunity of the driver to discover any open bottle and the difficulty of proof of knowledge. It is therefore reasonable to conclude that the legislature, weighing the significant danger to the public, decided that proof of knowledge under subdivision 3 was not required.

The legislature has made knowledge distinctions within its traffic statutes that also guide our interpretation. For example, with respect to marijuana in a motor vehicle, the Minnesota legislature has used language similar to the language found in section 169.122, subdivision 3 (“keep or allow to be kept”) but added a knowledge requirement. An owner, or if the owner is not present, the driver, is guilty of a misdemeanor if he “knowingly keeps or allows to be kept” marijuana in a motor vehicle. Minn.Stat. § 152.027, subd. 3 (1998) (emphasis added). The use of the word “knowingly” in section 152.027, subdivision 3 to modify the same language as contained in section 169.122, subdivision 3 indicates that the legislature does not perceive the word “keep” alone to imply or contain a knowledge element. Section 152.027 became effective in August of 1989, 30 years after section 169.122 was enacted. If the legislature had intended section 169.122 to have a knowledge requirement, it could have added the word “knowingly,” as the legislature did in section 152.027, when section 169.122 was amended in 1990, 1991, 1993 and 1994 or at any other time.

In the absence of such a modifier, we believe that the parallels between subdivision 3 and other non-alcohol related traffic statutes also support our holding. The phrases “it shall be unlawful” or “no person shall” appear throughout the traffic code and have never been understood to require a showing of intent to prove a violation of the statute. See generally Minn.Stat. § 169.14 (1998) (speeding); Butler v. Engel, 243 Minn. 317, 336, 68 N.W.2d 226, 238 (1954). In fact, Loge concedes that other provisions of the traffic code that use such language are strict liability offenses. See generally Minn.Stat. §§ 169.14, 169.48 (1998).

Lastly, Loge argues that an interpretation excluding knowledge as an element could lead to absurd results. While it is true that the legislature does not intend a result that is absurd or unreasonable, see Minn.Stat. § 645.17(1) (1998), we do not believe such a result exists here. Loge’s conviction resulted from an officer standing outside the truck observing the open container of beer sticking partially out of a brown bag underneath the seat on the passenger side of the truck Loge was driving. By simply taking control of the truck, Loge took control and charge of the contents of the truck, including the open bottle, even if he did not know the open bottle was in the truck.

Though the dissent acknowledges the authority of the legislature to create criminal statutes without regard to intent or knowledge, it cites to the rule enunciated in Kremer as a limitation: “it is not essential that the wrongdoer should intend to commit the crime to which his act amounts, but it is essential that he should intend to do the act which constitutes the crime.” State v. Kremer, 262 Minn. 190, 191, 114 N.W.2d 88, 89 (1962) (citations omitted). However, although dicta, we also stated:

If the defendant * * * went through a stop light that he did not see, and was defending on the ground that he did so without any criminal intent, a court could be justified in finding him guilty of a violation of the ordinance involved. When the driver intends to proceed forward, or is negligent in any way, he can be held liable for his acts.

Id. at 192, 114 N.W.2d at 89. Similarly, here, even though Loge did not see the open bottle and argues therefore that he had no criminal intent, he, as the driver, intended to proceed forward. As in the Kremer hypothetical, not seeing a stop sign or, as here, not seeing an open bottle, a court is justified in finding a defendant guilty of a violation of the statute if the defendant intended to proceed forward. In order to avoid violating this statute, Loge had an affirmative duty to ensure that there were no open containers in the area of a motor vehicle normally occupied by the driver or passenger on a public highway. He had the opportunity and was in the best position to find out the fact of the open bottle?s presence “with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.” Id. (citing Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). Here, all Loge had to do was observe an open beer bottle protruding from a bag under the passenger’s seat, which the trial court found was visible even to the officer who was standing outside the truck looking in.

The “to keep” an open bottle language of subdivision 3 means more than knowingly continuing possession because such conduct is already made illegal by subdivision 2. Any other interpretation would render subdivision 3 mere surplusage and would violate the statutory presumption that the legislature intends an entire statute to be effective and certain. See Minn.Stat. § 645.17(2); Orsello, 554 N.W.2d at 75-76. Therefore, we hold that in a prosecution under section 169.122, subdivision 3, the state need not prove that the driver and sole occupant of a motor vehicle on a public highway knew of the existence of the open bottle containing intoxicating liquors in the motor vehicle.

Affirmed.

PAUL H. ANDERSON, J.

(dissenting).

I respectfully dissent. In its effort to reach a correct policy decision, the majority disregards our proper role as interpreters of the law. In doing so, the majority has preempted the legislature’s function and assumed the mantle of policymaker. I agree that under certain circumstances the legislature may provide that criminal liability attach without requiring any showing of intent or knowledge on the part of the person charged. See In re A.A.E., 590 N.W.2d 773, 777 (Minn.1999). Further, in the context of open containers of alcohol in motor vehicles, there is a credible argument that it is good public policy given the social and economic costs that result from the combination of alcohol and motor vehicles. But, all of that said, the majority’s analysis simply does not demonstrate the requisite clear statement of legislative intent necessary to create criminal liability in the absence of a showing of knowledge or intent.

It is a fundamental principle of our substantive law, especially for statutes carrying criminal sanctions, that obligations imposed by law must be stated in clear and understandable terms. See State v. Lanesboro Produce & Hatchery Co., 221 Minn. 246, 253, 21 N.W.2d 792, 795 (1946). Due process requires that a penal statute be based on “knowable criteria which [persons] of common intelligence who come in contact with the statute may use with reasonable safety in determining its command.” Id. (citing Collins v. Kentucky, 234 U.S. 634, 34 S.Ct. 924, 58 L.Ed. 1510 (1914)). A statute is unconstitutionally vague “if it requires or forbids in terms so vague that [persons] of common intelligence must guess at its meaning and differ as to its application.” Lanesboro Produce, 221 Minn, at 254, 21 N.W.2d at 795.

We have stated that when the legislature intends to make an act unlawful and to impose criminal sanctions without any requirement of intent or knowledge, it must do so clearly. See State v. Neisen, 415 N.W.2d 326, 329 (Minn.1987). Further, the legislature’s authority to impose criminal sanctions without any requirement of knowledge or intent is subject to another important limitation. While a person need not intend his acts to be criminal, he must intend to do the act that is criminal. We have stated that “[i]t is not essential that the wrongdoer should intend to commit the crime to which his act amounts, [but] it is essential that he should intend to do the act which constitutes the crime.” State v. Kremer, 262 Minn. 190, 191, 114 N.W.2d 88, 89 (1962). The United States Supreme Court, confronted with a similar issue, noted:

Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.

Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (citations omitted). Further, it is worth noting that in Morissette the Court held that the “mere omission from [a statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced.” Id. at 268, 72 S.Ct. 240.

The majority’s analysis of the language of MinmStat. § 169.122 does not demonstrate the level of certainty necessary to allow me to conclude that the statute manifests a clear intent by the legislature to impose criminal liability regardless of intent or knowledge. The plain language of the statute, the unreasonable results that arise from the majority’s interpretation, the differing application of the statute by district courts, and even the cases cited by the majority lead me to this conclusion. Minnesota Statutes § 169.122, subd. 3, simply lacks the requisite clarity to support the imposition of criminal liability without any showing of intent or knowledge.

We are guided by our accepted rules of statutory interpretation when determining the meaning of a statute. One rule, which the majority claims to follow, is to look to the plain language of the statute. See Minn.Stat. § 645.16. The majority states that the language is plain and dispositive because the legislature frequently uses the phrase “it shall be unlawful” or “no person shall” to indicate strict liability for motor vehicle offenses. However, this is not the dispositive language in this statute. Rather, the question turns on the use of the phrase “keep or allow to be kept,”

The majority attempts to avoid the implications of the phrase “allow to be kept” by discarding it on the grounds that Loge was the sole occupant of the vehicle. While we may limit the application of law to the facts presented, that does not mean that we may disregard inconvenient language contained in the statute as a whole. See Kollodge v. F & L Appliances, 248 Minn. 357, 360, 80 N.W.2d 62, 64 (1956) (stating that the court may not read statutory language out of context). The majority cannot avoid the implications of the term “allow” because it is convenient to do so. In other contexts, we have held that the inclusion of words like “permit” (a synonym of “allow”) clearly indicates a legislative intent to require some level of knowledge or intent. See, e.g., Peterson v. Pawelk, 263 N.W.2d 634, 637 (Minn.1978) (stating that the use of the term “permit” in a statute clearly indicates that the legislature did not intend to impose strict liability). While it is possible to find definitions of “keep” that do not appear to implicate knowledge or intent, there are, as Loge points out, many definitions of “keep” that imply some level of conscious knowledge or intent. The multiple definitions of the word “keep” cited by the parties underscore the lack of clarity in the statute’s language. None of these definitions clearly indicate that proof of knowledge or intent is either required or clearly excluded.

The majority asserts that because the legislature used the similar language “keeps or allows to be kept” in MinmStat. § 152.027, but added the word “knowingly,” the lack of the word “knowingly” in Minn.Stat. § 169.122 means that no knowledge requirement was intended. While we do presume that the legislature uses words in a 'consistent manner, here such analysis yields no clear answers. It is clear that the use of the word “knowingly” in section 152.027 indicates that the legislature intended to require knowledge for the possession of marijuana in a vehicle. However, the fact that it is not included in section 169.122, a law passed some 20 years earlier and on a different subject, does not indicate that the legislature intended to disregard any requirement of knowledge or intent.

The majority’s analysis also disregards those situations where there is more than one person in the vehicle. However, limiting their holding in this way does not allow the majority to artificially limit the scope of the statute and then claim that requiring knowledge in this case would make subdivision 2 of the statute surplusage. I cannot ignore the fact that the legislature intended this statute to be applied in all situations regardless of the number of persons in the vehicle. Viewed as such, requiring some level of intent on the part of the driver or owner would not render subdivision 2 of the statute surplusage. Also, when viewed in the situation where more than one person is in the vehicle, the majority’s interpretation of section 169.122 implies some very troubling and unreasonable outcomes.

Under subdivision 2 of the statute, criminal liability is imposed for possession of an open container of alcohol by any person in a motor vehicle. See Minn.Stat. § 169.122, subd. 2. Possession here means actual possession of or the conscious exercise of dominion or control over the container. See id. The majority claims that because this subdivision already imposes liability for the knowing possession of an open container of alcohol in a vehicle, to do so again in subdivision 3 is unnecessary. This line of reasoning only works in the majority’s interpretation and only in the case where one person is in the vehicle. When more than one person is in the vehicle, the purpose of the different subdivisions becomes clear. A passenger may have an open container of alcohol and not have disclosed that fact to the driver. Clearly subdivision 2 applies to that passenger. But it is also clear that because the passenger concealed this fact from the driver, the driver should not be held liable. To do otherwise would be to hold the driver criminally liable for an act he did not intend to commit and over which he had no control. In the case when a container is open and visible in the passenger compartment of a vehicle and none of the passengers are shown possessing it, then the owner, or driver, remains ultimately responsible. Simply because the subdivision may not have application in a unique fact pattern does not make it surplusage for the purposes of our analysis.

The above example highlights one of the unreasonable results of the majority’s interpretation. A driver could be held responsible for the acts of passengers that they conceal from him. An absent owner could be held liable for acts of passengers he has never met. . In interpreting a statute, we assume that the legislature does not intend an unreasonable or absurd result. See Minn.Stat. § 645.17. •

The majority also implies that in this case the bottle was in plain sight and that under the circumstance of this case, Loge actually knew (or should have known) that the open bottle was in the truck. The district court made no such finding nor is it our province to do so. The majority attempts to mollify the results of its holding by saying that in this case Loge really knew. While an interesting conclusion on the part of the majority, it renders the majority’s holding unnecessary. If Loge knew, or reasonably should have known, that this open container was present in his vehicle, the majority’s holding is unnecessary. In such a case, there is a showing of knowledge or intent sufficient to sustain Loge’s conviction without interpreting the statute as having no requirement for knowledge or intent.

While the majority mentions the history of the application of this statute by district courts, it fails to consider its import. While not binding on this court, we do look to the practical construction of a statute by public officials in determining its meaning. See Governmental Research Bureau, Inc. v. St. Louis County, Minn., 258 Minn. 350, 357, 104 N.W.2d 411, 416 (1960). The district court judges of Minnesota are divided about the meaning of Minn.Stat. § 169.122, subd. 3. The Minnesota District Judges Association highlighted the ambiguity of the statute when it noted in the 1989 CRIMJIG on Minn.Stat. § 169.122, subd. 3 that 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, M-JIG 3.17 (1989 ed.). Later editions continued to carry the knowledge requirement as optional, leaving its inclusion to the discretion of the trial judge. See 10a Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Misdemeanor and Gross Misdemeanor, Preface and CRIM-JIG 29.30 (4th ed.1999). Such division by the trial bench of this state indicates that the meaning of the statute’s language is much less clear than the majority contends.

Trial judges in Minnesota are divided as to whether or not knowledge is required under the statute, and an early Attorney General Opinion maintains that the language of the statute does not require knowledge. Op. Atty. Gen., 989a-25, Jan. 5,1960.

The majority cites two of our earlier decisions to support the proposition that the legislature may impose criminal liability without regard to intent or knowledge. While I do not disagree with this proposition, the cited cases also demonstrate the way we have analyzed statutes when it is claimed that knowledge or intent is not required to impose criminal liability. In State v. Dombroski, we noted that the legislature clearly and unambiguously manifested its intent to impose criminal liability for the statutory rape of an incompetent female without regard to whether the accused knew that the victim was incompetent. See 145 Minn. 278, 279, 176 N.W. 985, 985-86 (1920). Here, the statute did not require knowledge that the victim was incompetent, but it required intent to commit an act that, in combination with the victim’s status, would constitute statutory rape.

In In re A.A.E, we acknowledged that the legislature may make a person criminally liable for injuries resulting from the discharge of a firearm regardless of whether that person intended to cause injury, but we held that some level of intent, reckless disregard of a known danger, was required. See 590 N.W.2d at 777. While the actor need not intend to cause injury, he must intend to recklessly discharge a firearm. See id. The dispute in AA.E. was not whether intent was required, but whether a specific intent to injure another was required. See id. We observed that the language of the statute could have been read to impose liability under any circumstance where a firearm was discharged and an injury resulted; however, we noted that such an interpretation conflicted with other language in the statute and would produce unreasonable results. See id. Importantly, in both Dombroski and AA.E., there needed to be an intent to commit the act for which criminal sanctions would be imposed.

The majority, limiting its analysis of this statute to the narrow facts in this case, proceeds undistracted by the implications of other contextual language in the statute and the fact that district courts of this state have differed on both the meaning and the application of the statute. While the majority claims that their holding is limited only to those situations where there is one occupant in the vehicle, they also note that this is the first time we have directly addressed the question of whether knowledge or intent is required for this statute. Given the obvious lack of clarity, the majority’s holding will likely have much wider effect.

Finally, under the majority’s holding, we now will impose criminal liability on a person, not simply for an act that the person does not know is criminal, but also for an act the person does not even know he is committing. While the district court and the majority seem to assume that everyone who drives a motor vehicle knows that he or she is obligated to search the entire passenger compartment of the vehicle before driving on the state’s roads, the law imposes no such requirement. Most drivers would be surprised to discover that after anyone else used their vehicle — children, Mends, spouse — they are criminally liable for any open containers of alcohol that are present, regardless of whether they know the containers are there. This also means that any prudent operator of a motor vehicle must also carefully check any case of packaged alcohol before transport and ensure that each container’s seal is not broken. See Minn.Stat. § 169.122 (defining an open bottle as a container that is open, has the contents partially removed, or has the seal broken). Under the majority’s interpretation, all of these situations would render the driver criminally liable under Minn.Stat. § 169.122. Without a more clear statement by the legislature that this is the law, I cannot agree with such an outcome.

PAGE, Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

STRINGER, Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

      . Minnesota Statutes § 169.122 reads in part:
      Subdivision 1. No person shall drink or consume intoxicating liquors or 3.2 percent malt liquors in any motor vehicle when such vehicle is upon a public highway.
      Subdivision 2. No person shall have in possession while in a private motor vehicle upon a public highway, any bottle or receptacle containing intoxicating liquor or 3.2 percent malt liquor which has been opened, or the seal broken, or the contents of which have been partially removed. For purposes of this section, "possession" means either that the person had actual possession of the bottle or receptacle or that the person consciously exercised dominion and control over the bottle or receptacle. This subdivision does not apply to a bottle or receptacle that is in the trunk of the vehicle if it is equipped with a trunk, or that is in another area of the vehicle not normally occupied by the driver and passengers if the vehicle is not equipped with a trunk.
      Subdivision 3. It shall be unlawful for the owner of any private motor vehicle or the driver, if the owner be not then present in the motor vehicle, to keep or allow to be kept in a motor vehicle when such vehicle is upon the public highway any bottle or receptacle containing intoxicating liquors or 3.2 percent malt liquors which has been opened, or the seal broken, or the contents of which have been partially removed except when such bottle or receptacle shall be kept in the trunk of the motor vehicle when such vehicle is equipped with a trunk, or kept in some other area of the vehicle not normally occupied by the driver of passengers, if the motor vehicle is not equipped with a trunk. A utility compartment or glove compartment shall be deemed to be within the area occupied by the driver and passengers.

      . A 1986 amendment removed gender specific references throughout the Minnesota Statutes but did not change the substance of the statutes amended. See Act of March 25, 1986, ch. 444, §§ 1-4, 1986 Minn. Laws 775, 775-77. A 1991 amendment instructed the revisor of statutes to substitute "3.2 percent malt liquor” for "nonintoxicaling malt liquor.” See Act of May 31, 1991, ch. 249, § 31, 1991 Minn. Laws 782, 794.

      . The use of the word "allow” may have other implications that are not present in this record which we decline to address.

      . Minnesota Statutes § 169.122, subd. 5 (1998) exempts charter buses and limousines from the scope of the statute.

      . One year after the original open bottle statute was enacted, the Attorney General for the State of Minnesota issued an opinion construing the "keep or allow to be kept” language not to require proof of knowledge. See Op. Att’y Gen. No. 54, at 103-05 (Jan. 5, 1960). Attorney general opinions are entitled to "careful consideration” by this court particularly when the opinion is long-standing. See Billigmeier v. County of Hennepin, 428 N.W.2d 79, 82 (Minn.1988). Furthermore, this court has held that where the legislature amends a statute after it has been construed by an attorney general opinion without changing that construction, it is evidence of legislative intent to adopt the meaning attributed to the statute by the attorney general. See Stoecker v. Moeglein, 269 Minn. 19, 22-23, 129 N.W.2d 793, 796 (1964).

      . The dissent also cites State v. Dombroski, 145 Minn. 278, 176 N.W. 985 (1920) and In re A.A.E., 590 N.W,2d 773 (Minn. 1999) for support for this rule. In Dombroski, we held that with respect to a statute criminalizing the rape of an incompetent woman, the legislature had "clearly eliminate[d] the element of knowledge and intent” about a victim’s incompetence. See 145 Minn, at 281, 176 N.W. at 986. We found in A.A.E. that other statutory language ("under circumstances”) compelled us to hold that a person must act recklessly in endangering another. 590 N.W.2d at 777. Dombroski and A.A.E. involved construing the language of specific statutes; neither altered our basic understanding of the rule enunciated in Kremer.

      . The majority responds to this argument by noting that we also stated in Kremer that a person could be held liable for driving through a stop sign that he failed to see. However, the majority misses the essential point of Kremer. A wrongdoer must intend to do the act that constitutes the crime. As we went on to point out in Kremer, while operating a motor vehicle in a negligent manner (i.e., failing to observe traffic signs) can support a level of intent (negligence) to support criminal liability, running a stop sign due to unexpected brake failure would not. See Kremer, 262 Minn, at 191, 114 N.W.2d at 89. This is the distinction the majority fails to appreciate. At this time, there is no requirement for the operator of a motor vehicle to inspect the passenger compartment before driving in the same way that there is a requirement to observe and obey traffic signs. In this respect, Loge’s situation is more analogous to "brake failure” than to a "negligent failure” to observe the rules of the road.

      . This division was further demonstrated in this case when both the city attorney and defense counsel agreed that the statute required a showing of knowledge. The city attorney has maintained this position throughout the appellate process. It is the attorney general who now argues that the statute requires no showing of intent or knowledge.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge. CRIPPEN, Judge

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. James Scott SCAIFE, Respondent.
    No. C5-99-1769.
    Court of Appeals of Minnesota.
    March 14, 2000.
    Review Denied May 16, 2000.

      Mike Hatch, Attorney General, St. Paul, and Michael E. Molenda, Apple Valley City Attorney, for appellant.
    John M. Stuart, State Public Defender, Leslie Joan Rosenberg, Assistant State Public Defender, Minneapolis, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, CRIPPEN, Judge, and FOLEY, Judge.

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

   OPINION

TOUSSAINT, Chief Judge.

Appellant State of Minnesota challenges the trial court’s imposition of a stay of adjudication. Because the required special circumstances for such a stay did not exist, we reverse.

FACTS

Respondent James Scaife’s driving privileges were cancelled in April 1997, apparently due to a driving while intoxicated (DWI) approximately 15 to 20 years ago in Wisconsin. In September 1997, Scaife was stopped for driving after cancellation. Scaife failed to appear at his initial pretrial date, a warrant was issued and executed, and Scaife then appeared on August 16, 1999, for a jury trial in Dakota County. Scaife had three prior driving after withdrawal (DAW) convictions, but had maintained a current driver’s license since 1998. Scaife stated that if he went to jail or lost his driver’s license, he would lose his construction job. The trial court accepted Scaife’s guilty plea, sentenced him to serve 4 days in the Dakota County Jail with credit for time served, 16 days of electronic home monitoring with work release privileges, one year of probation, a fíne of $390, and stayed adjudication over the prosecution’s objection.

ISSUE

Did the trial court act within its authority by staying adjudication in this case?

ANALYSIS

While “a prosecutor has broad discretion in the exercise of the charging function,” State v. Foss, 556 N.W.2d 540, 540 (Minn.1996), stays of adjudication are within a trial court’s “inherent judicial power” and are appropriate in “special circumstances.” State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn.1996). The trial court’s inherent judicial power to impose a stay of adjudication is to be used “sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s dear abuse of discretion in the exercise of the charging function.” Foss, 556 N.W.2d at 541 (emphasis in original).

It is evident the trial court, in deciding upon a stay of adjudication, relied upon Scaife’s statement that he needed his driver’s fícense in order to work. The possibility that a defendant might lose a job as a result of a conviction is not a “special circumstance” justifying a stay of adjudication over the prosecutor’s objection. See State v. Twiss, 570 N.W.2d 487, 487 (Minn.1997) (holding that “possibility that defendant might lose job if convicted of gross misdemeanor malicious punishment of a child was not a special circumstance”). The trial court’s desire to prevent the collateral consequence of a loss of a driver’s license “does not by itself constitute ‘special circumstances’ warranting a stay of adjudication.” State v. Thoma, 569 N.W.2d 205, 209 (Minn.App.1997), aff'd mem. 571 N.W.2d 773 (Minn.1997). Whatever the reason for the cancellation of Scaife’s driver’s license, there is no evidence that the prosecutor has abused his discretion in charging respondent. And under Minnesota caselaw, the loss of a job and the loss of a driver’s license are not sufficient “special circumstances” to justify a stay of adjudication over the prosecutor’s objection. The trial court exceeded its authority in staying adjudication in this case.

DECISION

The district court erred in staying adjudication based on Scaife’s loss of his driver’s license and subsequent possible loss of his employment, which did not constitute “special circumstances.”

Reversed.

CRIPPEN, Judge

(dissenting),

It first seems instructive, here and in other Krotzer-Foss-Thoma appeals, to ask why the appeal is initiated. As against the defendant, the state seeks what is unworthy to pursue, a pound of flesh. The trial court has already imposed substantial conditions upon the defendant, including incarceration, a fine, and supervision, that protect the interests of public safety. In fact, as is so often the case in these matters, the conditions are especially ample in light of the wrong that has been done by the defendant; it is undisputed in this matter that the defendant’s lawlessness is mostly in failing to undo record-keeping errors associated with a wrongful act done over 15 years ago. Although nominally pursued in the interests of justice, this appeal is nothing more that the assertion by the prosecutor that the defendant should suffer senselessly, that he should lose his job.

If for no other reason, these appeals should not succeed because they condone this prosecutorial pursuit, lending support for deformation of the office of public prosecutor into a function that is wholly foreign to the appropriate model for a democratic society. In this regard, it is compelling to keep before us remarkable words attributed to a giant of the profession, Hennepin County Attorney Floyd B. Olson, in 1930:

As County Attorney, I’ve tried to be a minister of justice rather than a policeman. I do not believe that a prosecutor should always point with pride to the number of convictions he has secured. The administration of justice often means leniency and frequently it is to the best interests of society to put a wayward lad back with his home instead of in prison.

Sentiments like these may be out of sync with the aims of some modern prosecutors, but they are profoundly important to the system of government in which we live. Dishonor of the ideal reflects not its obsolescence but instead the bad judgment of another generation of practitioners.

Of course, there is more involved in these appeals than meanness directed at misdemeanants. The vision of the prosecutor is aimed differently, but toward a goal that is equally distasteful. The target is to diminish the authority of trial judges, to make them subservient to the will of the prosecution in the disposition of criminal cases. For good cause, students of American judicial administration have become convinced that the independence of the judiciary has suffered alarming erosion. A judiciary with a modicum of concern for its independence should not be sleeping through encroachments, thinly veiled as the pursuit of public safety, from another branch of government.

Can the courts be roused? It remains to be seen. The conditional stay of criminal proceedings is a historic element of sound judicial discretion, certainly in Minnesota, and it was an unchallenged element of justice in Minnesota’s courts until the last decade of the 20th century. It is disheartening to see the appellate decisions that have occurred on stays of proceedings, especially in misdemeanor cases, holdings that disregard history and tear down the structure of justice rather than strengthen it. It is even more discouraging to hear the resulting confident reports of some trial judges — acting in the good spirit of respect for appellate authority— who say that they will have nothing to do with stays of adjudication, acceding completely in that regard to the demands of the prosecutors who appear before them.

Because of these concerns about the role of the prosecutor and the function of the independent judiciary, the substance of the issue should no longer be determined without substantially greater deference to trial court discretion than is stated in Foss.

Equally as important, we should not agree to examine the trial court’s exercise of discretion in this case. I am not convinced that Thoma is defensible. As Judge Randall has continuously and wisely said, the state’s right of appeal can be no greater than the right of the parties to dispute a misdemeanor sentence or the right of the state to question a dismissal in the interests of justice. State v. Prabhudail, 602 N.W.2d 413, 415 (Minn.App.1999) (Randall, J., dissenting); State v. Thoma, 569 N.W.2d 205, 209 (Minn.App.1997) (Randall, J., dissenting). Stays for a later dismissal are dispositions of the case, sentencing decisions. They occur in lieu of a trial, almost always accompanying a plea of guilty, and they are not preliminary to a trial. They affect the prosecutor’s judgment on sentencing but do not affect pros-ecutorial discretion to file charges. In my opinion, the characterization of these stays as pre-trial decisions is indefensible.

Judge Randall pleads with the Minnesota judiciary to defend what it has enjoyed, a “nationwide reputation for fairness and stability in its criminal justice system.” Prabhudail, 602 N.W.2d at 420. I support this position. Out of concern for our system and its fundamental elements, I respectfully dissent in the present case. The matter should be dismissed. Alternatively, on its substance, the decision below should be affirmed as part of the ordinary, just exercise of discretion by the trial court.


author: DAVIES, Judge.

text:
    VIKING ENGINEERING & DEVELOPMENT, INC., Respondent, v. R.S.B. ENTERPRISES, INC., et al., Appellants.
    No. C9-99-1337.
    Court of Appeals of Minnesota.
    March 28, 2000.
    Review Denied May 23, 2000.

      Timothy J. Grande, Joanne H. Turner, Mackall, Crounse & Moore, P.L.C., Minneapolis, for respondent.
    Ronald H. Groth, Groth Law Firm, Ltd., Minneapolis, for appellants.
    Considered and decided by LANSING, Presiding Judge, DAVIES, Judge, and HARTEN, Judge.
   OPINION

DAVIES, Judge.

Respondent brought a breach-of-contract action in Minnesota against appellants. Appellants moved to dismiss, asserting that they did not have the minimum contacts with Minnesota required to support personal jurisdiction. The district court denied appellants’ motion. We affirm.

FACTS

Appellant R.S.B. Enterprises, Inc. (RSB), is an Ohio corporation that manufactures in Ohio machines that make and repair pallets. Appellant Timothy Beane (Beane) is employed by RSB and owns the technology for its pallet-repair machines. Appellant Janet Beane is the sole shareholder of RSB. They are Ohio residents. Appellants have never traveled to Minnesota for any purpose and have not done business that has a relevant connection to this state, other than with respondent.

Respondent Viking Engineering & Development, Inc., a Minnesota corporation with its principal place of business in Minnesota, also manufactures machines that make pallets. In July 1997, appellants and respondent signed a purchase order stating that RSB would manufacture for respondent three machines for repairing pallets. Although the purchase order referenced a purchase “agreement,” the parties did not sign a purchase “agreement.” They did, however, review and exchange numerous versions of an agreement and at least one version stated that the agreement would be governed by Minnesota law. Between January 1997 and February 1998, there were at least 24 phone calls as well as mail and faxes between the parties.

Respondent sent a $78,000 down payment to appellants, as required by the purchase order. When appellants did not ship the machines, respondent demanded that its down payment be refunded. Appellants did not return the down payment or ship the machine, but claim they have a defense.

ISSUE

Did the district court err in denying appellants’ motion to dismiss for lack of personal jurisdiction?

ANALYSIS

An order denying a motion to dismiss for lack of personal jurisdiction is appealable as a matter of right and this court reviews the denial de novo. Stanek v. A.P.I., Inc., 474 N.W.2d 829, 831-82 (Minn.App.1991), review denied (Minn. Oct. 31, 1991). When a defendant challenges personal jurisdiction, a plaintiff must provide prima facie evidence of the defendant’s minimum contacts with the forum state and the plaintiffs allegations must be taken as true. Hardrives, Inc. v. City of LaCrosse, 307 Minn. 290, 293, 240 N.W.2d 814, 816 (1976). Doubts should be resolved in favor of jurisdiction. Id. at 818.

A Minnesota court may exercise jurisdiction over a nonresident if Minnesota’s long-arm statute is satisfied and if there are contacts between the nonresident and Minnesota sufficient to satisfy federal due-process requirements. Stanek, 474 N.W.2d at 832; Minn.Stat. § 543.19 (1998). The long-arm statute is designed to “extend the personal jurisdiction of Minnesota courts as far as the Due Process Clause of the federal constitution allows.” Valspar Corp. v. Lukken Color Corp., 495 N.W.2d 408, 410 (Minn.1992). Thus, if constitutional due-process requirements are met, Minnesota’s long-arm statute will also be satisfied. Id. at 411.

Due-process requirements are satisfied when a nonresident has sufficient “minimum contacts” with the forum state so that maintaining jurisdiction does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). When a nonresident has purposefully directed its activities to residents of the forum state and the litigation results from injuries arising out of these activities, the nonresident has “fair warning” that it could be sued in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985). Specific jurisdiction, on which this case turns, can be based on a single transaction if the defendant purposefully solicited contacts, or initiated or induced the transaction out of which the cause of action arises. Marquette Nat’l Bank v. Norris, 270 N.W.2d 290, 295-96 (Minn.1978).

The Minnesota Supreme Court has adopted the five-factor test from Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir.1965), to determine whether a nonresident “has established enough contacts with Minnesota to justify being sued here” and whether the contacts were purposefully made to do business in this state. Real Properties, Inc. v. Mission Ins. Co., 427 N.W.2d 665, 668 (Minn.1988). The three primary factors are the quantity of contacts, the nature and quality of the contacts, and the connection or relationship between the cause of action and the contacts. Marquette Nat’l Bank, 270 N.W.2d at 295. Two secondary factors are the state’s interest in providing a forum and the parties’ convenience. Id.

. Appellant Timothy Beane, the “seller” in this transaction, concedes that he made the first contact between appellants and respondent, but claims the first contact, a call to Minnesota, was solely to explore options, not to sell respondent anything. “Mere inquiry by a prospective buyer or seller, without more, will not sustain jurisdiction.” Dent-Air, Inc. v. Beech Mountain Air Serv., Inc., 332 N.W.2d 904, 908 (Minn.1983).

Beane, as seller, contends that respondent subsequently initiated the serious contacts and then vigorously pursued a business transaction with appellants, in effect arguing that appellants did not either initially or subsequently act as the aggressors and thus did not purposefully avail themselves of Minnesota jurisdiction. See id. at 907-08 (no jurisdiction over lessee when prospective lessee merely makes inquiry to lessor and lessor unilaterally acts as aggressor). The traditional notion that a seller solicits customers, advertises, or otherwise initiates business activities does not translate into the notion that, for jurisdictional purposes, a seller is automatically presumed to be the aggressor in every business transaction. See id. (minimum-contacts requirement applies to both nonresident buyers and sellers, despite traditional scenario that seller solicits, advertís-es, or otherwise initiates dealings). The jurisdictional test is now applied in the same manner to both nonresident buyers and sellers. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 654 (8th Cir.1982).

In this case, notwithstanding who was the initial or primary aggressor, subsequent interstate communications by this nonresident seller demonstrate an eagerness to enter a business transaction that is equivalent to acting as the aggressor. Although appellants never physically traveled to Minnesota, the district court found that appellants’ minimum contacts included an executed purchase order for the sale of machinery to respondent; phone calls, mail, and faxes to Minnesota to promote the sale of appellants’ machines and technology rights; and acceptance of a $78,000 check from respondent. Taking respondent’s factual allegations and supporting affidavits as true, as we must, the record supports that appellants on occasion actively sought out respondents in Minnesota and fully engaged in interstate contract negotiations. The nature and quality of Beane’s numerous subsequent contacts constituted specific business activity purposefully directed to respondent in this state; the contacts satisfy due-process requirements.

DECISION

The district court did not err in denying appellants’ motion to dismiss for lack of personal jurisdiction.

Affirmed.

      . The corporate entity with which Beane was first affiliated during these negotiations was different from his present affiliation. This does not affect our analysis.


author: SANDSTROM, Justice.

text:
    2000 ND 58
    STATE of North Dakota, Plaintiff and Appellee, v. Kyle Kenneth BELL, Defendant and Appellant.
    No. 990290.
    Supreme Court of North Dakota.
    March 21, 2000.
    Mark R. Boening (argued) and Adam W. Hamm, Assistant State’s Attorneys, Fargo, for plaintiff and appellee.
    Steven D. Mottinger, Fargo, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] The State of North Dakota moved to dismiss Kyle Kenneth Bell’s appeal of his murder conviction. We grant the State’s motion to dismiss, concluding Bell forfeited and abandoned his appeal by escaping.

I

[¶ 2] On August 20, 1999, a jury found Bell guilty of murder for the killing of eleven-year-old Jeanna North. On September 24, 1999, the district court issued a criminal judgment and commitment, sentencing ' him to life imprisonment. Bell appealed his conviction on September 24, 1999. On October 13, 1999, Bell escaped from custody while being transported from the North Dakota State Penitentiary to a prison facility in Oregon.

[¶ 3] On November 5, 1999, the State moved to dismiss Bell’s appeal, asking this Court to adopt and apply the “fugitive dismissal rule.” Bell’s attorney filed a response, requesting this Court reject the fugitive dismissal rule and hear the appeal on the merits. On November 17, 1999, we considered the motion and ordered the matter set for oral argument. Following a nationwide manhunt, Bell was recaptured on January 9, 2000. We then directed the filing of supplemental briefs on the motion to dismiss. This Court has jurisdiction under N.D. Const, art. VI, § 2.

II

A

[¶ 4] The fugitive dismissal rule, also known as the “fugitive disentitlement doctrine,” allows courts to dismiss an appeal of a defendant who escapes during the pendency of his or her appeal. Ortega-Rodriguez v. United States, 507 U.S. 234, 239-40, 113 S.Ct. 1199, 122 R.Ed.2d 581 (1993); Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). Because North Dakota has not adopted the fugitive dismissal rule either judicially or by statute, the issue of whether to dismiss an appeal because of the defendant’s escape from the jurisdiction is one of first impression.

[¶ 5] The United States Supreme Court has upheld the fugitive dismissal rule in several cases, “consistently and unequivocally” authorizing dismissal of an appeal as an acceptable sanction when a defendant is a fugitive during the “ongoing appellate process.” Ortega-Rodriguez v. United States, 507 U.S. 234, 242, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). “It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Id. at 239, 113 S.Ct. 1199.

[¶ 6] In Molinaro v. New Jersey, the Supreme Court explained:

No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims.

396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970).

[¶ 7] In Ortegar-Rodriguez, the Supreme Court was asked to decide whether the same reasoning supported dismissal when the defendant had been a fugitive but was recaptured before he brought an appeal. 507 U.S. at 242, 113 S.Ct. 1199. The Supreme Court stated the fugitive dismissal rule rests partly on a theory of disentitlement, treating the defendant’s flight during the appeal’s pendency as a waiver or abandonment of the appeal. Id. at 240, 113 S.Ct. 1199. The Supreme Court held former fugitives returned to custody before filing an appeal generally are not subject to dismissal of an appeal brought after recapture, unless the defendant’s escape has significantly interfered with the appellate process. Id. at 249, 113 S.Ct. 1199.

[¶ 8] A fugitive flouts the court and its authority by escaping after filing an appeal. Ortega-Rodriguez, 507 U.S. at 240-41, 113 S.Ct. 1199. Accordingly, dismissal is appropriate because the fugitive has shown such disrespect for the legal system that the fugitive has no right to call upon the court to examine his or her appeal. Id. Adoption of the fugitive dismissal rule is also a tool to deter other defendants from escaping or fleeing the jurisdiction pending appeal. Id. at 242, 113 S.Ct. 1199.

[¶ 9] As early as 1897, the Supreme Court upheld not only a court’s dismissal of a fugitive defendant’s appeal, but also its refusal to reinstate the appeal after the defendant was recaptured. Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897). In 1975, the Supreme Court again held dismissal of an appeal after the defendant was recaptured was proper. Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (upholding dismissal of defendant’s appeal where he was recaptured two days after escaping). In Estelle, the Supreme Court upheld a Texas fugitive dismissal statute on grounds it discouraged escape and promoted efficiency in the appellate court. Id. at 537, 95 S.Ct. 1173. The Supreme Court held the state was free to implement laws to discourage escape and was “free to impose more severe sanctions on those whose escape is reasonably calculated to disrupt the very appellate process which they themselves have set in motion.” Id. at 541-42, 95 S.Ct. 1173. See Goeke v. Branch, 514 U.S. 115, 120, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995) (states have the ability to regulate appeals by use of reasonable rules of procedure).

B

[¶ 10] Federal appellate courts have held the fugitive dismissal rule is an independent and adequate state procedural rule. See Wood v. Hall, 130 F.3d 373, 378 (9th Cir.1997) (defendant procedurally defaulted by fleeing the state during his appeal). See also Daccarett-Ghia v. Comm’r, 70 F.3d 621 (D.C.Cir.1995) (a defendant’s fugitive status in a federal criminal case did not entitle the tax court to dismiss his petition for redetermination of a deficiency because the fugitive disentitlement doctrine should be applied by a court to manage its own docket, not the docket of another court).

[¶ 11] In a case factually similar to Bell’s, a federal appeals court held “[m]erely because — no thanks to him,” the defendant was recaptured, he was not entitled to have his full appellate rights restored. United States v. Puzzanghera, 820 F.2d 25, 26-27 (1st Cir.1987). Prior to the court’s ruling on whether to dismiss the appeal, the escaped appellant was captured and returned to custody. Id. at 26. Because the defendant was recaptured involuntarily after a period in excess of thirty days, and was found living “under an assumed name in a distant city,” the court found no reason why he should be given back his forfeited right of appeal. Id. at 27. “Escape, pursuit, and recapture not only put the government and the taxpayers to considerable expense,” but fugitives often put an appellate court to additional trouble “by diverting its attention from the merits of the appeal and involving it in a flurry of extraneous matters.” Id. at 26.

C

[¶ 12] Bell argues the fugitive dismissal rule should be adopted not by the Court, but by the legislature. The rule has been adopted by statute or rule in some jurisdictions, and has been judicially adopted by courts in other jurisdictions. State courts have recognized that the power to dismiss a fugitive’s ease is inherent. See, e.g., Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, 901 (1957) (adopting rule that a fugitive has no standing in court during his or her status as a fugitive); Joensen v. Wainwright, 615 F.2d 1077, 1079 (5th Cir. 1980) (upholding Florida’s judicially-adopted fugitive dismissal rule); Young v. State, 518 So.2d 822 (Ala.Crim.App.1987), cert. denied, 488 U.S. 834, 109 S.Ct. 93, 102 L.Ed.2d 69 (1988) (judicial adoption); State v. Patten, 134 N.H. 319, 591 A.2d 1329 (1991) (judicial adoption).

[¶ 13] For example, Wisconsin trial courts have both inherent and statutory power to exercise the fugitive dismissal rule. See Wis. Stat. § 805.03; Hlavinka v. Blunt, Ellis & Loewi, Inc., 174 Wis.2d 381, 497 N.W.2d 756, 761 (Wis.Ct.App.1993). The Wisconsin supreme court in State v. John, recognizing the court’s inherent power to dismiss when a defendant obstructs the administration of justice, stated “[c]ourts should not so coddle those who are defiant of its authority and the law, and who yet ask for its relief, that it is blinded to such inconsistencies.” 60 Wis.2d 730, 211 N.W.2d 463, 465 (1973) (citations omitted).

[¶ 14] In a Pennsylvania case, the defendant filed a petition for permission to file an appeal within thirty days. In the Interest of C.G., 428 Pa.Super. 314, 630 A.2d 1266, 1267 (1993). The petition was denied and the defendant then failed to appear at his probation review hearing, but filed an appeal the day after his hearing was scheduled. Id. The defendant also failed to attend a later probation review hearing. Id. The court quoted Ortega-Rodriguez v. United States and recognized dismissal of an appeal is appropriate when a defendant is a fugitive during “the ongoing appellate process.” Id. at 1268 n. 6 (citing 507 U.S. 234, 242, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993)). The court held “fw]here a defendant is a fugitive at any time after post-trial proceedings commence he forfeits his right to appellate review.” In the Interest of C.G., at 1268 (citation omitted). But see State v. Byrd, 448 N.W.2d 29, 30-31 (Iowa 1989).

[¶ 15] The court in In the Interest of C.G. further held such a forfeiture is irrevocable and cannot “be undone despite capture or voluntary return to custody.” 630 A.2d at 1268. A defendant who intentionally bypasses this process is “bound by the consequences” of his or her decision; therefore, the court was authorized under Pa.R.App.P.1972(6) to dismiss his appeal because the defendant was a fugitive at the time of his appeal. Id. at 1268-69.

Ill

[¶ 16] This Court addressed the fugitive dismissal rule in State v. LaFromboise, in which a defendant fled from North Dakota while his appeal was pending. 542 N.W.2d 110, 111 n. 1 (N.D.1996). In LaFromboise, however, the State did not move to dismiss the appeal under the fugitive dismissal rule. Id. at 112 n. 1. We stated we would “prefer to consider whether to adopt the ‘fugitive dismissal rule’ when it has been properly raised and documented in a pre-hearing motion to dismiss the appeal.” Id.

[¶ 17] Bell argues dismissal of his appeal would be improper because he has the right to an appeal under N.D.C.C. § 29-28-03, which states, “An appeal to the supreme court provided for in this chapter may be taken as a matter of right.” See State v. Kottenbroch, 319 N.W.2d 465, 469 (N.D.1982). Appeals from decisions of the district court to this Court, however, are subject to regulation by statute. See State v. Bobideaux, 475 N.W.2d 915, 916 (N.D.1991); Reub’s Minot Camera, Inc. v. General Elec. Credit Corp., 201 N.W.2d 877, 879 (N.D.1972) (citations omitted). Further, defendants have no federal constitutional right to appellate review of state criminal convictions. Estelle v. Dorrough, 420 U.S. 534, 536, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975). “The right of appeal is purely statutory in this state.” Robideaux, at 916 (citing City of Riverside v. Smuda, 339 N.W.2d 768, 769 (N.D.1983)). An appeal may be dismissed for noncompliance with our rules or statutes, such as for failure to file briefs, make timely service, or timely file a notice of appeal. See, e.g., Reub’s Minot Camera, at 879-80.

[¶ 18] Moreover, other courts have upheld the fugitive dismissal rule despite a defendant’s statutory right to a criminal appeal. See State v. Lundahl, 130 Or.App. 385, 882 P.2d 644, 645-46 (1994). In Lun-dahl, the appeal of a former fugitive brought after recapture was dismissed because of the fugitive’s escape of seven years. Id. (citing Or.R.App.P. 8.05(3), passed after judicial adoption of the rule, providing for dismissal of a fugitive defendant’s appeal if the fugitive has not surrendered by the time the motion to dismiss is decided by the court). The court held, without invoking Or.R.App.P. 8.05(3), dismissal was warranted because the appellate process was “significantly interfered with.” Id. at 644, 647. See State ex rel. Juvenile Dep’t of Multnomah County v. Linder, 142 Or.App. 527, 922 P.2d 691, 694 (1996) (even where a juvenile voluntarily turns himself or herself in, “protection of the dignity of the appellate court and deterrence” may require dismissal of his or her appeal).

[¶ 19] Bell also argues, because he can be prosecuted for escape, he should not be doubly punished by having his appeal dismissed. However, the United States Supreme Court in Allen v. Georgia held a defendant who escapes is committing a separate criminal offense as well as abandoning his right of appeal. 166 U.S. 138, 141, 17 S.Ct. 525, 41 L.Ed. 949 (1897).

[¶20] We hold Bell is precluded from maintaining his appeal because he forfeited and abandoned his appeal by escaping. The fugitive dismissal rule and the public policy reasons behind the rule are well established in both state and federal courts. Unlike the defendant in Ortega-Rodriguez v. United States, Bell filed his appeal before escaping, thus invoking the appellate judicial system. 507 U.S. 234, 249, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). He then defied that same system by escaping. In addition, the State followed the procedure outlined in State v. LaFromboise, 542 N.W.2d 110, 112 n. 1 (N.D.1996). The Ortego — Rodriguez requirement is satisfied because we are dismissing an appeal from our own docket. 507 U.S. at 246, 113 S.Ct. 1199. Furthermore, we adopt the fugitive dismissal rule to deter Bell and other defendants from escaping in the future.

[¶ 21] Dismissal of Bell’s appeal is in the best interests of both this Court and the taxpayers of this state. See State v. Bono, 103 Wis.2d 654, 309 N.W.2d 400 (Wis.Ct.App.1981). Dismissal prevents further time being spent on “a defendant who is no longer entitled to call upon the resources” of this Court. Id.

[¶ 22] We reserve, for an appropriate case, the issue of whether the fugitive dismissal rule would apply when a fugitive defendant voluntarily turns himself or herself in to the proper authorities. See Estelle v. Dorrough, 420 U.S. 534, 541, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (encouraging voluntary surrender is a valid justification for dismissing a fugitive defendant’s appeal); Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, 900 (1957) (holding courts should not grant new trials on the basis of bargaining with a defendant at large). See also Anthony Michael Altman, Comment, The Fugitive Dismissal Rule: Ortega-Rodriguez Takes the Bite out of Flight, 22 Pepp. L.Rev. 1047, 1082-83 (1995) (proposing a discretionary dismissal rule for fugitives, in which courts weigh the following three factors in deciding whether a former fugitive’s appeal should be dismissed: “(1) length and effect of the delay; (2) voluntary versus involuntary return; and (3) nature of the claim asserted”).

IV

[¶ 23] The State’s motion is granted, and Bell’s appeal is dismissed.

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


author: MARING, Justice.

text:
    2000 ND 56
    O&K GLASS CO., Plaintiff and Appellee, v. INNES CONSTRUCTION CO., INC., Defendant and Appellant.
    No. 990252.
    Supreme Court of North Dakota.
    March 21, 2000.

      Ralph F. Carter, Moosbrugger, Dvorak & Carter, Grand Forks, for defendant and appellant.
    Tracy A. Gompf (argued) and Jeff A. Bredahl, Bredahl & Associates, P.C., Fargo, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Innes Construction Co., Inc. (“Innes”) appeals from a trial court order denying its motion to vacate an arbitration award in favor of O&K Glass Co. (“O&K”), and also from the judgment entered by the trial court. We affirm.

I.

[¶ 2] Innes was awarded a contract to construct a skyway on the University of North Dakota (“UND”) campus in Grand Forks, North Dakota. Innes built the steel skyway frame and subcontracted with O&K for the installation of glass and acrylic panels. O&K subcontracted with Skytech Systems (“Skytech”) to manufacture the panels. Several months after execution of the subcontract between O&K and Skytech, Innes and O&K entered into a Joint Payment Agreement, which provided all sums due from Innes to O&K “for material and/or labor furnished by [Sky-tech] ... shall be paid by means of a check ... made payable jointly to” O&K and Skytech. The stated purpose of this agreement was to induce Skytech to provide labor and materials for the project.

[¶ 3] Delays occurred both before and after the arrival of the panels. First, problems at Skytech’s plant resulted in a later shipping date than anticipated. Then, when the panels arrived, they had been improperly packaged so O&K’s crews were required to re-sort the panels to determine their placement. In addition, the panels did not strictly conform to the steel framing Innes had previously installed; therefore O&K was forced to remanufac-ture the panels to fit them into the frame, which O&K asserted resulted in substantial delays. Finally, O&K claimed adverse weather conditions caused other delays: crews could not work on rainy days because some of the adhesive materials required for installation of the panels could not be used in the rain, and further, O&K’s owner did not want workers to be put at risk by using power tools outdoors in the rain. O&K also claimed the panels could not be installed on especially humid days because the humidity would be trapped between the panels.

[¶ 4] Innes disputed weather caused the delays, asserting O&K fell behind schedule because it did not sufficiently staff the site. Innes claimed O&K contracted to supply two crews working 6 days a week for 10 hours per day; yet sometimes only a few workers were at the site, and they worked much more limited hours than promised. Initially, Innes sought informal extensions from UND to give O&K time to complete the work. Then, Innes informed O&K it was bringing in another company, Fargo Glass and Paint (“Fargo Glass”), to help finish the job. Innes claimed O&K walked off the job site, leaving Fargo Glass to complete the work. O&K claimed Innes stopped paying for the installation; after inquiring whether Innes planned to start paying again, O&K ceased performing, which it asserted was its right under the subcontract.

[¶ 5] O&K demanded arbitration as provided in its subcontract with Innes, and Innes also submitted an arbitration claim against O&K. The arbitrator found Innes and O&K, through the Joint Payment Agreement, agreed to be jointly and severally liable to Skytech. Based on that agreement, the arbitrator imputed knowledge of the terms of O&K’s subcontract with Skytech to Innes. The arbitrator also found, due to the terms of that subcontract and the nature of the problems at Skytech’s plant, the only recourse against Skytech was rejecting its late tendered perfonnance, which neither Innes nor O&K did. The arbitrator concluded Innes waived the original installation schedule both by accepting the goods and by asking UND for extensions, and thus O&K was entitled to a new start date for performance of the installation work once the materials arrived. The arbitrator also found Innes unilaterally interfered with O&K’s performance by hiring Fargo Glass, essentially “accelerating” the installation schedule despite the delays. The arbitrator rejected Innes’ claim that it could charge O&K for the labor provided by Fargo Glass, because the decision to hire Fargo Glass was an interference with O&K’s work. The arbitrator awarded $47,500 to O&K, representing the unpaid balance on the subcontract between them, and awarded $400 to Innes for cleanup costs at the site.

[¶ 6] O&K filed a motion in the trial court to confirm the arbitration award. Innes moved to vacate the award and requested that the trial court allow additional testimony. The trial court refused and entered an order confirming the arbitration award.

II.

[¶ 7] Innes claims the arbitration award should be vacated because the arbitrator exceeded his powers. Under N.D.C.C. § 32—29.2—12(1)(c), an arbitration award may be vacated if the “arbitrators exceeded their powers”; however, we will vacate an arbitration, award under this subsection only if it is “completely irrational.” Carlson v. Farmers Ins. Group of Companies—Farmers Ins. Exchange, 492 N.W.2d 579, 581 (N.D.1992). “[A] decision is completely irrational if it is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud.” Byron’s Constr. Co. v. N.D. Dep’t of Transp., 463 N.W.2d 660, 662 (N.D.1990) (citing Nelson Paving Co., Inc. v. Hjelle, 207 N.W.2d 225 (N.D.1973)). An arbitrator’s mere mistake as to fact or law is not a sufficient ground for overturning an arbitration award. Carlson, at 582. As to the public policy underlying this strict standard of review, we have stated:

the effect of applying the clearly irrational standard of review is to give to the arbitrators every benefit of every doubt. It affords them the widest latitude to exercise their authority and arrive at their decision without the customary restraints of traditional judicial review. It is but a reflection of the strong public policy favoring the arbitration process.

Scherbenske Excavating, Inc. v. N.D. State Highway Dep’t, 365 N.W.2d 485, 489 (N.D.1985).

[¶ 8] Innes argues the arbitrator irrationally interpreted the Joint Payment Agreement and also claims the arbitrator’s conclusion that it waived the construction schedule was completely irrational. Our review of this matter is hampered somewhat by the absence of a record of the arbitration hearing. The hearing lasted one and one-half days and the parties presented some 79 exhibits, yet neither party arranged for a transcript to be made and few of the exhibits are a part of the record on appeal. However, after examining the record before us, we determine the arbitrator’s decision was not completely irrational and decline to overturn the arbitration award.

[¶ 9] The arbitrator concluded, through the Joint Payment Agreement, Innes and O&K agreed to be jointly and severally hable to Skytech. The agreement states its purpose was to induce Skytech to provide labor and materials under its subcontract with O&K and was “in consideration thereof.” While it does not expressly state the parties intended joint and several liability, it is not completely irrational to conclude the agreement created an obligation between Innes and Skytech for which Innes could be hable.

[¶ 10] The arbitrator concluded Innes waived the original construction schedule contained in its subcontract with O&K when it accepted delivery of the goods from Skytech and repeatedly asked UND for informal extensions. Innes knew O&K would begin installing the panels later than anticipated due to the shipping delay. Innes acknowledged it asked UND for extensions based on the delays O&K encountered. Innes’ actions “are inconsistent with an intention by the injured party to insist on rights to performance under the contract.” Weisser v. Grand Forks Federal Sav. and Loan Ass’n, 406 N.W.2d 696, 699 (N.D.1987). In Weisser, we noted a party who “accepts performance in a manner different from that required by the contract has been held to have acquiesced to the nonconforming performance made by the other party.” Id. (citing Dangerfield v. Markel, 252 N.W.2d 184, 191 (N.D.1977)). Thus, it is not completely irrational to conclude Innes’ acceptance of the delayed goods and requests for extensions ratified O&K’s performance delays and waived Innes’ right to demand performance according to the terms of the subcontract.

[¶ 11] It is possible the arbitrator’s decision was based on mistakes of law or fact; however, under our standard, that is not a sufficient ground to overturn the award. Strong public policy in this state favors judicial restraint in reviewing arbitration awards, such that arbitrators are given every benefit of every doubt and an award should not be overturned unless it is mistaken on its face. Reviewing the award, it appears neither of the arbitrator’s conclusions are completely irrational. Therefore, we decline to overturn the arbitration award.

III.

[¶ 12] Innes next argues the trial court abused its discretion when it refused to allow oral testimony at the hearing on its motion to vacate the award. Rule 3.2, N.D.R.Ct., which governs motions, states that a court “may allow or require testimony on [a] motion.” Rule 43(e), N.D.R.Civ.P. states:

[w]hen a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct the matter be heard wholly or partly on testimony or depositions.

We have stated that whether testimony is allowed on a motion is within the sound discretion of the court. Ennis v. Berg, 509 N.W.2d 33, 38 (N.D.1993). A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process. Gowin v. Trangsrud, 1997 ND 226, ¶ 8, 571 N.W.2d 824.

[¶ 13] We determine the trial court’s refusal to allow oral testimony on the motion was not an abuse of discretion. While no record or transcript of the arbitration proceeding existed, the trial court accepted affidavits from the parties and heard extensive oral argument at the hearing. In some circumstances, a trial court may wish to hear oral testimony in reviewing an arbitration award. However, given the facts of this case and that the standard of review of the arbitration decision by the trial court is limited to “completely irrational,” it was not an abuse of discretion for the trial court to refuse to hear oral testimony.

IV.

[¶ 14] We conclude the arbitration award in favor of O&K was not completely irrational and so decline to overturn it. We also determine that the trial court did not abuse its discretion when it refused to hear oral testimony on the motion to vacate the award. Therefore, we affirm the order of the trial court and the judgment.

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


author: NEUMANN, Justice.

text:
    2000 ND 44
    Gerald Lee DeCOTEAU, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 990238.
    Supreme Court of North Dakota.
    March 21, 2000.

      Rodney K. Feldner, Mandan, for petitioner and appellant.
    Brian D. Grosinger, Assistant State’s Attorney, Mandan, for respondent and ap-pellee.
   NEUMANN, Justice.

[¶ 1] Gerald Lee DeCoteau appeals from the trial court’s judgment denying his post-conviction relief petition alleging ineffective assistance of counsel. We affirm.

[¶ 2] In 1996, DeCoteau was convicted of gross sexual imposition. After this Court summarily affirmed the conviction in State v. DeCoteau, 1997 ND 121, 569 N.W.2d 288, DeCoteau petitioned for post-conviction relief, seeking a new trial. The trial court denied the petition without an evi-dentiary hearing. DeCoteau appealed. This Court remanded for further proceedings. DeCoteau v. State, 1998 ND 199, ¶ 13, 586 N.W.2d 156.

[¶ 3] On remand, the trial court held an evidentiary hearing. DeCoteau called Marsha Strecker, who has an intermittent personal relationship and children with DeCoteau, as a witness. Strecker testified she would have provided trial testimony suggesting victim consent. Strecker said she would have asserted the victim drank alcohol and watched a pornographic film with DeCoteau, voluntarily went for a ride with DeCoteau, and informed Strecker she would have sexual intercourse with DeCo-teau and satisfy him sexually if Strecker could not. Strecker stated she had met with DeCoteau’s trial counsel, Marvin Hager, before trial and Hager assured her she would testify at trial. Before trial, Strecker allegedly attempted to call Hager twice concerning her proposed testimony, but Hager did not return her calls.

[¶ 4] DeCoteau also testified at the evi-dentiary hearing. DeCoteau asserted he always expected Strecker to testify at trial, her testimony would have saved him from conviction, and his attorney double-crossed him by not calling her.

[¶ 5] After attempting to assert the attorney-client privilege, Hager testified at the evidentiary hearing. Hager presented his pre-trial notes as evidence of conversations with DeCoteau about calling Strecker as a trial witness. The notes showed De-Coteau agreed to try to elicit testimony relating to victim consent from other witnesses. This strategy was chosen because Strecker had secured a domestic violence protection order against DeCoteau in at least two counties, and two outstanding criminal complaints were pending against DeCoteau in which Strecker was the complaining witness. Hager testified he reminded DeCoteau of the strategy on the morning of trial, but also informed DeCo-teau that subpoenas could still be issued and Strecker’s testimony obtained. Hager said DeCoteau again agreed not to call Strecker and to continue with the strategy of eliciting victim consent evidence through other witnesses. Hager also denied Strecker attempted to call his office, offering office records as evidence, and pointed out DeCoteau did not attend their trial preparation appointment only days before trial.

[¶ 6] DeCoteau attempted to rebut Hag-er’s testimony. According to DeCoteau, on the morning of trial, Hager initially told him Strecker would be there shortly, only later informing him Strecker would not be called to testify. DeCoteau claimed he then asked Hager to request a continuance, but Hager told him it would be unavailable. As supporting evidence, DeCoteau presented a letter from Phyllis Wilcox, who wrote she had observed De-Coteau repeatedly asking Hager about a witness named Marsha on the morning of trial.

[¶ 7] After the evidentiary hearing, the trial court again denied the post-conviction relief petition, specifically denying DeCoteau’s ineffective assistance of counsel claim. The trial court found Hager was credible, and DeCoteau and Strecker were not credible. The court also found that Hager, by cross-examination of other witnesses at trial, had raised most of the facts Strecker would have testified to. DeCoteau appeals, alleging ineffective assistance of counsel.

[¶ 8] In Lange v. State, we explained the Strickland test for ineffective assistance of counsel. 522 N.W.2d 179, 181 (N.D.1994). Lange, like DeCoteau, appealed from a denial of post-conviction relief based on a claim of ineffective assistance of counsel. Id.

In order to establish his claim of ineffective assistance of counsel, defendant’s burden was twofold. First, he needed to prove that his counsel’s performance was defective. State v. McLain, 403 N.W.2d 16 (N.D.1987); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, he needed to show that his defense was prejudiced by the proven defects. Id. [The defendant] has not met this heavy burden.
Analysis of the first element of the Strickland test, whether counsel’s performance was deficient, requires consideration of all circumstances to determine whether there were “errors so serious” that defendant was not accorded that “counsel” guaranteed by the Sixth Amendment. McLain, 403 N.W.2d at 17; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Effectiveness of counsel is measured by an “objective standard of reasonableness” considering “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. A great deal of deference is accorded trial counsel. Id. at 689, 104 S.Ct. at 2065; State v. Motsko, 261 N.W.2d 860 (N.D.1977). Courts presume counsel’s conduct to be reasonable and consciously attempt “to limit ‘the distorting effect of hindsight.’ ” McLain, 403 N.W.2d at 18 [citing State v. Thompson, 359 N.W.2d 374, 377 (N.D.1985) ]; see also Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
This court will not disturb a trial court’s findings of fact in a post-conviction hearing unless they are “clearly erroneous.” Schwindt v. State, 510 N.W.2d 114 (N.D.1994). Decisions regarding ineffective assistance of counsel entail mixed questions of fact and law. State v. Skaro, 474 N.W.2d 711 (N.D.1991) [citing Strickland v. Washington, 466 U.S. at 698, 104 S.Ct. at 2070]. Our analysis proceeds with recognition that the district court “is in a better position to judge the credibility and demeanor of the witnesses.” Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D.1993).

Lange, at 181.

[¶ 9] The trial court had the opportunity to judge the credibility and demeanor of the witnesses. After observing the witnesses, the trial court found Hager was credible, and DeCoteau and Strecker were not. The court also found that during cross-examination of other trial witnesses, Hager had elicited most of the facts Strecker would have testified to.

[¶ 10] Under Rule 52(a), N.D.R.Civ. P., a trial court’s findings of fact in a post-conviction relief action will not be disturbed unless clearly erroneous. Breding v. State, 1998 ND 170, ¶ 4, 584 N.W.2d 493. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made. Burlington Northern and Sante Fe Railway Co. v. Burlington Resources Oil & Gas Co., 1999 ND 39, ¶ 10, 590 N.W.2d 433.

[¶ 11] Here, the trial court’s findings are supported by evidence. At the evidentiary hearing, Hager offered office records disproving Streeker’s claim that she twice called before trial, and presented pre-trial notes documenting DeCoteau’s agreement to the trial strategy of eliciting Strecker’s proposed testimony through other witnesses. DeCoteau relied on a letter from Phyllis Wilcox to bolster his evidence. The letter stated DeCoteau “repeatedly had asked about his wittnesses [sic] and had [Hager] contacted Marcia.” However, this letter does not contradict Hager’s evidence. Hager concedes DeCo-teau asked about Strecker’s possible testimony the morning of trial, but again agreed not to call Strecker as a witness after being reminded of the strategy he had agreed to earlier. The trial court found Hager’s testimony and evidence credible. We do not second-guess the trial court on its credibility determinations. Zimmerman v. Minot Public School Dist. No. 1, 1998 ND 14, ¶ 19, 574 N.W.2d 797.

[¶ 12] The trial court also pointed out Hager elicited testimony establishing the victim brought a pornographic movie to the premises, drank, wrestled with and acted in a sexual manner toward DeCo-teau. Hager brought those facts to the jury’s attention during cross-examination of the investigating officer. By arguing Strecker should have been called to testify to those facts, DeCoteau is now simply attacking the agreed-upon trial strategy. As we held in Stoppleworth v. State:

“[I]t is for trial counsel and not appellate courts to determine trial strategy and tactics.” State v. Wilson, 488 N.W.2d [618, 622 (N.D.1992) ]. The attorney gave coherent and rational reasons for proceeding the way he did at trial.... We will not second-guess the trial strategy and tactics of the attorney. Id. Instead, we follow our cautious directive in Skaro, where we said:
“In State v. Motsko, 261 N.W.2d 860, 863 (N.D.1977), Justice Vogel made the following observation which is particularly relevant to our analysis here: ‘It is easy for new counsel on appeal (or for an appellate judge, for that matter) to go through a transcript and find matters that could have been explored further, questions that could have been asked but were not, questions that were asked that should not have been asked, objections that could have been made that were not, and witnesses who could have been called but were not or witnesses who would have been better left uncalled. Hindsight is perfect and criticism is easy. But the lawyer engaged in a trial, who has made an investigation of the facts and has talked to the witnesses, may have his own reasons and they may be very good reasons for not asking a question or making an objection or calling a witness. In all fairness, courts must pay some respect to the right and duty of attorneys, whether court-appointed or not, to use judgment in the heat of a trial, and we must have some doubts about the accuracy of second-guesses later on.’ Thus, we should scrutinize trial counsel’s conduct with a great deal of deference and consciously attempt to limit the distorting effect of hindsight.”
State v. Skaro, 474 N.W.2d at 716. Under this standard, we do not believe that the attorney’s conduct regarding witnesses was deficient.

Stoppleworth v. State, 501 N.W.2d 325, 328 (N.D.1993).

[¶ 13] We affirm the trial court’s findings because they were supported by the evidence, and we are not left with a definite and firm conviction a mistake has been made. See Burlington Northern, at ¶ 10. Because we affirm the trial court’s findings, the first prong of the Strickland test, defective performance, has not been met. An unsuccessful trial strategy does not make defense counsel’s performance defective, and we will not second-guess counsel’s defense strategy through the distorting effects of hindsight. Breding, at ¶ 9.

[¶ 14] The trial court’s judgment denying the petition for post-conviction relief is affirmed.

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