author: MARING, Justice. SANDSTROM, Justice,

text:
    2005 ND 220
    Interest of L.B.B., a Child. Brandi Sasse Russell, Petitioner and Appellee v. L.B.B., Child, Respondent and Appellant and C.B.B., Father, D.B.B., Mother, Respondents.
    Nos. 20050252-20050254.
    Supreme Court of North Dakota.
    Dec. 20, 2005.

      Susan Schmidt, Bismarck, N.D., respondent and appellant.
    Justin J. Schwarz, Assistant State’s Attorney, Bismarck, N.D., petitioner and ap-pellee.
   MARING, Justice.

[¶ 1] L.B.B. appeals from the juvenile referee’s findings of fact and order of June 29, 2005 and the juvenile court’s June 15, 2005, order on review confirming the referee’s May 18, 2005, findings of fact and order adjudicating him a delinquent child. The delinquency adjudication resulted from a finding by the juvenile referee that L.B.B. had committed gross sexual imposition. L.B.B. argues the petitioner failed to establish all of the elements of gross sexual imposition. L.B.B. also argues that the juvenile referee failed to apply the rules of evidence and that those rules should apply in juvenile court. Finally, L.B.B. argues the petitioner may not prove an allegation against a juvenile using the juvenile’s out-of-court statement and no other evidence of the offense. We reverse, holding there was insufficient evidence presented to the juvenile referee to support a finding that L.B.B. committed gross sexual imposition.

I

[¶ 2] A petition was filed with the juvenile court on December 6, 2004, alleging L.B.B. committed the delinquent act of gross sexual imposition. Specifically, the petitioner alleged L.B.B. engaged in a sexual act with a child under the age of 15 between July 1, 2004, and September 1, 2004. L.B.B. was 17 when the petition was filed.

[¶ 3] The juvenile referee heard evidence on the gross sexual imposition allegation at an April 19, 2005, hearing. The evidence presented consists solely of the testimony of Bismarck Police Detective Gary Malo and spans four pages of the hearing transcript. Malo testified that Burleigh County Social Services contacted him to report that B.S., the alleged victim, had told Social Services she had a “sexual relationship” with L.B.B. The juvenile referee allowed this testimony over a hearsay objection. Malo then testified regarding what B.S. had told him during an interview. L.B.B. objected, again on hearsay grounds, and the petitioner did not pursue the fine of questioning. Malo’s testimony then turned to his interview with L.B.B. Malo testified that L.B.B. admitted to having a “sexual relationship” with B.S. between July and August, presumably of 2004. Malo was then asked B.S.’s birth date. L.B.B. objected, again on the grounds of hearsay. Malo then testified as to B.S.’s exact date of birth, a date in late 1989. On cross examination, L.B.B.’s only question was where Malo had received his information as to B.S.’s date of birth. Malo responded that he had received the information from Social Services.

[IT 4] In its May 18, 2005, findings of fact, the juvenile referee found a factual basis for the allegation that L.B.B. had committed gross sexual imposition and adjudicated L.B.B. a delinquent and unruly child. On June 15, following a request for review, the juvenile court found that the juvenile referee’s findings of fact were supported by competent, admissible evidence. L.B.B. appealed on June 24, 2005. A dis-positional hearing was held on June 28, 2005, and the juvenile referee issued a findings of fact and order on June 29, 2005. L.B.B. amended his notice of appeal on July 25, 2005, to include the June 29, 2005, findings of fact and order.

[¶ 5] On appeal, L.B.B. argues the petitioner failed to prove each and every element of the offense of gross sexual imposition; it was error for the juvenile referee to find a factual basis for gross sexual imposition based solely on L.B.B.’s out-of-court statements; and, the juvenile referee erred by not applying the rules of evidence to a juvenile court proceeding. The petitioner argues it provided sufficient evidence to prove the allegation of gross sexual imposition and that applying the rules of evidence in juvenile court must be balanced against the conflicting interest of conducting an informal hearing.

II

[¶ 6] On appeal, this Court reviews a juvenile court’s findings of fact under a clearly erroneous standard. N.D.R.Civ.P. 52(a). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by the evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction that a mistake has been made.” Syvertson v. State, 2005 ND 128, ¶ 4, 699 N.W.2d 855.

[¶ 7] In this case, the petitioner alleged L.B.B. committed the delinquent act of gross. sexual imposition in violation of N.D.C.C. § 12.1-20-03, constituting a class A felony. Specifically, L.B.B. was alleged to have engaged in a sexual act with a victim less than fifteen years old. A sexual act is defined under N.D.C.C. § 12.1-20-02(3) as:

“Sexual act” means sexual contact between human beings consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any other portion of the human body and the penis, anus, or vulva; or the use of an object which comes in contact with the victim’s anus, vulva, or penis. For the purposes of this subsection, sexual contact between the penis and the vulva, the penis and the anus, any other portion of the human body and the anus or vulva, or an object and the anus, vulva, or penis of the victim, occurs upon penetration, however slight. Emission is not required.

Detective Malo’s testimony never specifies the sexual act alleged to have occurred between L.B.B. and the victim; nor does the petitioner ever elicit any specific detail that would aid a fact finder’s understanding of the crime purported to have been committed. The testimony on record alludes only to a “sexual relationship.”

[¶ 8] The trier of fact should not be required to engage in determinations of what acts constitute a “sexual relationship.” The term “sexual relationship” is not readily defined and could encompass all manner of social interactions. Does a kiss constitute a sexual relationship? A hug? Is any relationship not “platonic” defined as “sexual”? Are sexual acts contemplated in the term “romantic relationship?” This Court will not engage in the semantical acrobatics of guessing what is meant by a vague term never defined, explained, or elaborated upon. Proof beyond a reasonable doubt of a “sexual act” requires specific evidence that an act clearly defined by N.D.C.C. § 12.1-20-02(3) occurred. An inference based on one interpretation of a vague term will not suffice in this case.

[¶ 9] Allegations against a juvenile must be proven beyond a reasonable doubt. N.D.C.C. § 27-20-29(2). The juvenile referee’s findings of fact that L.B.B. had committed the crime of gross sexual imposition are clearly erroneous. Based on the record before us, even if all the hearsay evidence were considered, the petitioner did not meet the burden of establishing beyond a reasonable doubt that L.B.B. engaged in a sexual act with a victim less than fifteen years old. We therefore need not address the other issues raised by L.B.B.

[¶ 10] Further proceedings against L.B.B. in this matter are prohibited by double jeopardy.

A conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. When a court, be it an appellate court or a trial court on motion for entry of a judgment of acquittal, concludes that evidence is legally insufficient to support a guilty verdict, it concludes that the prosecution has failed to produce sufficient evidence to prove its case. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars retrial in such a case.
On the other hand, when a court is asked to consider whether or not a conviction is against the weight of the evidence, the court must evaluate for itself the credibility of the evidence. Id. If the trial court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury.
Therefore, while in challenges based on the weight of the evidence a trial court acts as a “thirteenth juror” and independently assigns value to and weighs evidence, in challenges based on the sufficiency of the evidence the court asks only if the prosecution’s case could have been believed by a rational factfin-der.

State v. Yineman, 2002 ND 145, ¶¶ 8-10, 651 N.W.2d 648 (citations omitted); see also State v. Berger, 235 N.W.2d 254, 262 (N.D.1975) (noting “a proceeding under the juvenile system which has reached final disposition constitutes jeopardy and a subsequent adult trial of the same person on the same offense constitutes double jeopardy, which is not permissible”).

Ill

[¶ 11] Because the petitioner did not establish by proof beyond a reasonable doubt that L.B.B. has committed the crime of gross sexual imposition, the juvenile court’s findings of fact were clearly erroneous and we reverse the orders appealed.

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

SANDSTROM, Justice,

concurring.

[¶ 13] I agree with Justice Maring’s opinion.

[¶ 14] I write separately to note that the Rules of Evidence apply to hearings such as this one.

[¶ 15] The North Dakota Rules of Evidence are adopted and amended under the quasi-legislative authority granted the Supreme Court by the North Dakota Constitution: “The supreme court shall have authority to promulgate rules of procedure, including appellate procedure.... ” N.D. Const, art. 6, § 3.

[¶ 16] Rule 101, N.D.R.Ev., provides:

These rules govern proceedings in the courts of North Dakota, to the extent and with the exceptions stated in Rule 1101.

[¶ 17] Rule 1101, N.D.R.Ev., provides in part:

(a) Courts and Magistrates. These rules apply to all courts and magistrates of this State.
(d) Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:
(3) Miscellaneous Proceedings.... [Detention hearings, transfer and dis-positional hearings in juvenile court....

[¶ 18] The juvenile courts are courts of North Dakota to which the Rules of Evidence apply with the exceptions stated. None of the exceptions apply here.

[¶ 19] Dale V. Sandstrom


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2005 ND 213
    In the Matter of the ESTATE OF Deloris PLADSON, Petitioner and Appellee v. TRAILL COUNTY SOCIAL SERVICES and the Department of Human Services for the State of North Dakota, Respondents and Appellants.
    No. 20050154.
    Supreme Court of North Dakota.
    Dec. 20, 2005.

      Richard R. LeMay (argued) and Edward B. Reinhardt, Jr. (appeared), Legal Services of North Dakota, Minot, N.D., for petitioner and appellee.
    Jean R. Mullen, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondents and appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] The Department of Human Services appealed from a district court judgment reversing the Department’s decision that Deloris Pladson was not eligible for Medicaid benefits because her countable assets, including a nonassignable annuity, exceeded the $3,000 eligibility limit, and from an order denying the Department’s motion to alter or amend the court’s judgment. We conclude the Departmént’s finding that Pladson’s estate failed to make a good-faith effort to sell the contractual right to receive money payments from the nonassignable annuity is not supported by a preponderance of the evidence. We affirm the district court’s judgment and order.

I

[¶ 2] On July 21, 1988, Pladson, then age 62 and widowed, purchased a single premium deferred annuity from Lutheran Brotherhood. The annuity was annuitized through a “Supplementary Contract” with Lutheran Brotherhood dated April 25, 1995. The settlement provisions of the contract provided for a monthly income payment to Pladson of $645.98 beginning April 25, 1995, and ending March 25, 2010. Pladson’s daughter, Linda R. Erickson, was listed as the beneficiary on the contract. The contract allowed no withdrawals, had no' surrender value, and further provided that “[t]his contract and any payments under it may not be assigned.”

[¶ 3] On October 1, 1997, Pladson executed a durable power of attorney that appointed Erickson as her attorney in fact. Suffering from Alzheimer’s disease, Plad-son entered a Hatton nursing home in November 1997. While in the nursing home, Pladson received income of $540 per month from Social Security and $60 per day in nursing home insurance proceeds in addition to the monthly annuity payments.

[¶ 4] Pladson applied for Medicaid benefits on January 22, 2003. Traill County Social Services denied the application on May 6, 2003, because Pladson’s assets were in excess of the $3,000 Medicaid limit. Traill County determined Pladson’s countable assets totaled $48,057.81, an amount that included a $45,467.74 valuation for the annuity. Pladson appealed and an administrative hearing was held on August 18, 2003. After the Department learned the annuity was not assignable, the hearing was continued until the Department could reevaluate Pladson’s eligibility. On September 5, 2003, the Department sent Plad-son’s attorney a letter informing her that the Department continued to consider the annuity, which was actuarially sound, an available asset for Medicaid purposes. The Department explained:

While the annuity, by its terms, cannot be assigned, there is nothing in law to prevent Ms. Pladson from contracting to sell the payments she receives under the annuity.
There is an active market for the sale and purchase of such “streams of income,” referred to as the factoring transaction market. In this market, sales and purchases are made of streams of income resulting from instruments such as structured settlement agreements, mortgage payments, lottery or casino winnings, estates, trusts, and annuities. I have enclosed, for your information, copies of printouts from websites for companies that purchase such streams of income, providing the individual with lump sum cash payments immediately. Neither the Department staff nor I have contacted any of these companies nor are we endorsing their services. These companies’ websites are offered solely for purposes of illustrating the existence of the market.
Ms. Pladson is required to make a good faith effort to sell the income she has a right to receive under the annuity. She will not be eligible for Medicaid until she spends down the receipts from any such sale or shows that she is unable to make such a sale.

The letter included printouts of Internet websites for five factoring companies. Erickson contacted four of the five companies and faxed them copies of the “Supplementary Contract” for the annuity. Three of the four companies responded and declined Erickson’s offer. The other company told Erickson there were “some legal problems” and had not made an offer to purchase at the time of the second administrative hearing.

[¶ 5] At the second administrative hearing on November 12, 2003, the Department took the position that the salea-ble fair market value of the stream of income from Pladson’s annuity, more likely than not, exceeded $429.93, which is the difference between the $3,000 Medicaid asset limit and Pladson’s other assets excluding the originally estimated annuity value of $45,467.74. The focus of the hearing was whether Pladson, through Erickson, had made a good-faith effort to sell the stream of payments from the annuity. Pladson died on November 22, 2003, and Erickson, as the personal representative of Pladson’s estate, continued the appeal.

[¶ 6] The Administrative Law Judge (“ALJ”) determined that Pladson was not eligible for Medicaid benefits because Pladson’s total countable assets, including the annuity, exceeded the maximum asset limit of $3,000. The ALJ determined that Erickson erroneously offered to sell to the companies provided to her by the Department the annuity contract itself, which was not assignable, rather than the stream of income from the annuity. According to the ALJ, the companies “may have considered the matter differently had Ms. Erickson offered to write a separate contract for the sale of the stream of income from the annuity at a price equal to 75% of fair market value.” The ALJ ruled “[t]he preponderance of the evidence shows that Ms. Erickson, on behalf of Ms. Pladson, failed to show that she made a good faith effort to sell her asset, the contractual right to receive money payments.” The ALJ further ruled “it is entirely reasonable to conclude the value of the contract would have exceeded $3,000,” and “[t]herefore, having an exact valuation of the annuity would not have changed the outcome of the determination that the annuity was an available asset or the eligibility determination.” The Department adopted the ALJ’s recommendations, and the estate appealed.

[¶ 7] The district court reversed the Department’s decision, concluding among other things, there was no support in the record that there was “a factor’s market for the particular annuity or stream of income from the annuity in question.” The court also ruled the ALJ erred in finding Pladson failed to make a good-faith effort to sell the income stream from the annuity and in finding the stream of income from the annuity had any value. The court denied the Department’s motion to alter or amend its judgment reversing the Department’s decision.

II

[¶ 8] The dispositive issue in this case is whether the Department’s finding that Erickson failed to make a good-faith effort to sell the stream of income from Pladson’s annuity is supported by a preponderance of the evidence.

[¶ 9] When a decision of an administrative agency is appealed from district court to this Court, we review the decision of the agency rather than the decision of the district court. Martin v. Stutsman County Soc. Servs., 2005 ND 117, ¶ 8, 698 N.W.2d 278. Nevertheless, a district court’s analysis of an appeal from a decision by an administrative agency is entitled to respect if the court’s reasoning is sound. Sutherland v. North Dakota Dep’t of Human Servs., 2004 ND 212, ¶ 6, 689 N.W.2d 880. Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

In reviewing an administrative agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency, but we determine only whether a reasoning mind reasonably could have determined the agency’s factual conclusions were supported by the weight of the evidence from the entire record. Roberts v. North Dakota Dept. of Human Servs., 2005 ND 50, ¶ 6, 692 N.W.2d 922. An administrative agency’s decisions on questions of law are fully reviewable. Martin, at ¶ 8.

[¶ 10] Generally, a person without sufficient assets to meet the cost of necessary medical care and services is eligible for Medicaid benefits. Schmidt v. Ward County Soc. Servs. Bd., 2001 ND 169, ¶ 9, 634 N.W.2d 506. The Medicaid program is intended to be a payor of last resort, and available resources must be exhausted before Medicaid will pay for an individual’s care. Wahl v. Morton County Soc. Servs., 1998 ND 48, ¶ 18, 574 N.W.2d 859. An applicant for Medicaid benefits must prove eligibility. Roberts, 2005 ND 50, ¶ 7, 692 N.W.2d 922. Under the Department’s rules for determining Medicaid eligibility, a one-person unit is eligible for Medicaid benefits if the total value of that person’s assets does not exceed $3,000. N.D. Admin. Code § 75-02-02.1-26(l)(a); Linser v. Office of Attorney General, 2003 ND 195, ¶ 7, 672 N.W.2d 643. An “asset” is defined as “any kind of property or property interest, whether real, personal, or mixed, whether liquid or illiquid, and whether or not presently vested with pos-sessory rights.” N.D. Admin. Code § 75-02-02.1-01(2). Although certain assets are exempt or excluded from consideration, see N.D. Admin. Code §§ 75-02-02.1-27 and 75-02-02.1-28, other assets that are “actually available” must be considered in determining the applicant’s eligibility for Medicaid. N.D. Admin. Code § 75-02-02.1-25(1); Estate of Gross v. North Dakota Dep’t of Human Servs., 2004 ND 190, ¶ 8, 687 N.W.2d 460. Assets are “actually available” under N.D. Admin. Code § 75-02-02.1-25(1) when the assets are at the disposal of the applicant, recipient, or responsible relative who has a legal interest in a liquidated sum and that person has the legal ability to make the sum available for support, maintenance, or medical care. Estate of Gross, at ¶ 8.

[¶ 11] Determining whether an asset is “actually available” for purposes of Medicaid eligibility is largely a fact-specific inquiry depending on the circumstances of each case. Linser, 2008 ND 195, ¶ 11, 672 N.W.2d 648. The “actually available” requirement must be interpreted reasonably, and the focus is on the applicant’s actual and practical ability to make an asset available as a matter of fact, not legal fiction. Opp v. Ward County Soc. Servs. Bd., 2002 ND 45, ¶ 11, 640 N.W.2d 704.

[¶ 12] “Contractual rights to receive money payments” are considered available assets and there is a presumption that the holder’s interest in contractual rights to receive money payments is saleable without working an undue hardship. N.D. Admin. Code § 75-02-02.1-30(1) and (2). The presumption may be rebutted by evidence demonstrating that the contractual rights are not saleable without working an undue hardship. N.D. Admin. Code § 75-02-02.1-30(2). “Property which is not sa-leable without working an undue hardship” is defined as “property which the owner has made a good-faith effort to sell which has produced no buyer willing to pay an amount equaling or exceeding seventy-five percent of the property’s fair market value.” N.D. Admin. Code § 75-02-02.1-01(23). Under N.D. Admin. Code § 75-02-02.1-01(12), a “[g]ood-faith effort to sell” is defined as “an honest effort to sell in a manner which is reasonably calculated to induce a willing buyer to believe that the property offered for sale is actually for sale at a fair price” and “includes, at a minimum, making the offer at a price based on ... [a] method which produces an accurate reflection of fair market value.” A good-faith effort to sell also includes offering the property for sale “[t]o the regular market for such property, if any regular market exists.” N.D. Admin.Code § 75-02-02.1-01(12)(b).

[¶ 13] In Estate of Gross, 2004 ND 190, ¶ 16, 687 N.W.2d 460, this Court held monthly payments from an annuity are a holder’s interest in a contractual right to receive money payments within the meaning of N.D. Admin. Code § 75-02-02.1-30(1) and (2). The institutionalized spouse in that case entered a nursing home in June 2002 and his community spouse purchased a nonassignable $150,000 annuity in July 2002, which was designed to provide her 60 monthly payments beginning in August 2002. Estate of Gross, at ¶¶2-3. The institutionalized spouse’s September 2002 application for Medicaid benefits was denied because Logan County Social Services concluded his countable assets included the nonassignable annuity and the total of those assets exceeded his personal exemption and the community spouse’s asset allowance. Id. The institutionalized spouse’s estate argued that the Department erred in treating the income stream and the annuity itself as distinct and separate from each other, and because the annuity was not assignable, the income stream from the annuity could not be sold. Id. at ¶ 14. We rejected this argument:

An annuity is “a payment of a fixed sum of money at regular intervals of time,” see Webster’s New World Dictionary 56 (2nd Coll. Ed.1980), which parallels the administrative regulation that a contractual right to receive money payments is an available asset. See N.D. Admin. Code § [75-02-02.1-30(1) ]. Although the annuity itself was not assignable, Julia Gross was designated as the owner and the payee of the annuity, and the annuity authorized her to “change the Payee at any time.” Although the Estate argues the change of payee issue was not raised below, that issue was contemplated by Nordwall’s [the Department’s Director for Economic Assistance Policy] testimony that there was a market for the monthly payments from the annuity. According to Nordwall, there was a market for the monthly payments or income stream from the annuity, and the Estate has cited no other provisions in the annuity that would preclude a separate sale .of those payments.

Id. at ¶ 15.

[¶ 14] We also concluded a preponderance of the evidence supported the Department’s finding that the community spouse failed to make a good-faith effort to sell the monthly payments from the annuity. Estate of Gross, at ¶ 1. Although the estate had presented evidence that there were no buyers for the annuity because it was nonassignable, a Department representative and an employee of the company that issued the annuity testified there was a secondary market for the sale of monthly payments from the annuity. Id. at ¶ 12. Because the estate offered only the annuity contract itself for sale, rather than the contractual rights to receive money payments or the stream of income from the annuity, we concluded the Department’s finding that the community spouse did not make a good-faith effort to sell the monthly payments from the annuity was supported by a preponderance of the evidence. Id. at ¶¶ 13,16.

[¶ 15] Although the Department relies on Estate of Gross as authority for its denial of Medicaid benefits in this case, Estate of Gross is distinguishable for several significant reasons. First, in Estate of Gross, the community spouse’s purchase of the annuity one month after the institutionalized spouse entered a nursing home and two months before applying for benefits was an obvious attempt to shelter $150,000 in otherwise available assets from Medicaid. Here, Pladson purchased the annuity more than nine years before entering a nursing home and more than 14 years before applying for benefits. Second, the annuities are fundamentally different. Although the annuity involved in Estate of Gross, 2004 ND 190, ¶ 15, 687 N.W.2d 460, was not assignable, the annuity authorized the owner and payee to “ ‘change the Payee at any time.’ ” Plad-son’s annuity is more restrictive, expressly prohibiting the assignment of the annuity contract itself as well as “any payments under it.”

[¶ 16] Third, in Estate of Gross, at ¶¶ 11-12, the Department presented “definite” evidence through its representative and an employee of the company that issued the annuity that there was a long-established secondary factors market for the sale of annuity payments or the “stream of income” from that particular type of annuity. In this case, the evidence presented of an available market for Plad-son’s annuity is ambiguous at best. The Department’s primary witness, Melissa Hauer, the director of the Department’s legal advisory unit, did not differentiate between an annuity prohibiting assignment of the contract itself and-an annuity also prohibiting assignment of the payments or stream of income when addressing, saleability. She testified that, “based on the research that I’ve done and I’ve done extensive research on annuities and companies and investors who will purchase income stream, such as annuities, and yes, I am aware that there is a market out there for the purchase of even ‘nonassignable’ annuities.” Hauer said she had spoken with companies about selling the stream of income from an annuity “without changing the contract between ... the insurer and the annuitant,” and was “told” there are “at least a couple of ways ... it can be done” if the annuitant and purchaser enter into a separate contract. She- testified:

One of the ways it can be done is for the owner of the annuity to open a joint bank account with the purchaser of the annuity. The payments from the annuity goes [sic] into that joint account and the purchaser of the annuity then withdraws the funds. Another way that I understand this can be done is through the use of a post office box where the owner of the annuity directs the payment to- be mailed to the post office box, and the owner of the annuity also signs a Power of Attorney authorizing the purchaser of the annuity to go into the PO box, take the check, and endorse it.

Hauer testified she had spoken with two of the three companies that had rejected Erickson’s offer “not about this particular annuity, just about their business ... [i]n general.” Hauer testified that she had spoken to other companies that would purchase a stream of income from an annuity, but discussed “nonassignable annuities in general.” Although Hauer testified Plad-son’s annuity's prohibition against payment assignments “doesn’t mean that they can’t be sold,” she did not identify a factoring company that would buy a stream of payments from an annuity that prohibited payment assignments.

[¶ 17] The fourth reason this' case is distinguishable from Estate of Gross is because the Department provided to Erickson a list of “companies that purchase such streams of income, providing the individual with lump sum cash payments immediately,” and Erickson documented their refusals to accept her offer. Erickson testified that she contacted four of the five companies provided to her by the Department and offered to sell the stream of income from Pladson’s annuity. The company Erickson did not contact advertised itself on its Internet website as only “Buyers of Structured Settlements and Lottery Payments.” The website for one of the companies contacted by Erickson stated the company “buys payments stemming from structured settlements, senior settlements, state lottery winnings, casino jackpot winnings, estates, trusts and other periodic payment contracts.” (Emphasis added). This company responded by fax that it was unable' to make a purchase “because the annuity is nonassignable.” The website for another company Erickson contacted advertised that it provided “direct funding for cash flows derived from structured settlements [and] annuities,” and that it “liquidates cash flows of all types” (Emphasis added). This company responded that after carefully reviewing the supplementary agreement, it “purchases annuity payments that have been set up through structured settlements. Unfortunately your policy does not fall within our current requirements, and we are unable to make an offer.” Another company website advertised, “Sell Your ... Annuity Payments,” and that the company provided “new and exciting options never before available for people to solve their cash flow problems, by selling their payments in exchange for a lump sum of cash today!” Yet, this company also rejected Erickson’s offer, responding:

The second type of annuity we work with is a self-purchased annuity. These are most often assignable, and are therefore available for purchase. Unfortunately, your mothers [sic] annuity, although self-purchased, clearly states that it is non-assignable. Furthermore, Thrivent Financial for Lutherans (the administrator of this annuity) has stated clearly in our inquiries that they absolutely would not allow any assignment or transfer to a for-profit company.
This is the extent of our options. I am very sorry that after all our research, we have found no way to liquidate this annuity. It appears that the annuity is not sellable, not assignable, and will have to run it’s [sic] course as it was ■written.

[¶ 18] Hauer testified, and the ALJ found that, in view of the correspondence rejecting Erickson’s offers, Erickson must have incorrectly attempted to sell the annuity contract itself rather than the stream of income or payments from the annuity, and therefore, Erickson failed to make a good-faith effort to sell the stream of income from the annuity. The Department seems to imply it is the seller’s burden to suggest to the buyer methods by which the buyer could purchase a particular annuity or its stream of payments. The Department’s position ignores that companies in the secondary factors market would be reasonably knowledgeable about the factoring business and, when provided annuity documents by less sophisticated potential sellers, those companies would explore and propose other options even if the seller’s specific offer could not be accepted. None of the companies responding to Erickson’s offers proposed the Department’s vision of a separate contract between a purchaser and an elderly institutionalized annuitant to obtain the stream of payments from the annuity.

[¶ 19] We must interpret the “actually available” requirement in a reasonable manner, and recognize that the focus is on the applicant’s actual and practical ability to make an asset available as a matter of fact rather than legal fiction. Opp, 2002 ND 45, ¶ 11, 640 N.W.2d 704. Even if we assume for purposes of argument that the evidence is sufficient to show there is a secondary factors market for the stream of income from Pladson’s annuity, but see Estate of F.K. v. Division of Med. Assistance and Health Servs., 374 N.J.Super. 126, 863 A.2d 1065, 1074, 1077 (A.D.2005) (no evidence supported findings of the existence of a viable secondary annuities market for a nonassignable annuity that also prohibited assignment of payments or that the income stream from the annuity could be sold on such a market), Erickson made offers of sale to the very companies the Department indicated would purchase the payment stream from the annuity without any success.

[¶ 20] We conclude a reasoning mind reasonably could not have determined from the evidence in the record that Erickson failed to make a good-faith effort to sell the stream of payments from Pladson’s annuity. Because Erickson made a good-faith effort that produced no purchasers, Pladson’s estate has shown the annuity and its stream of payments are not salea-ble without working an undue hardship. Consequently, we conclude the Department erred in ruling that Pladson’s available assets exceeded the $3,000 Medicaid limit because the annuity and its stream of payments should have been excluded from consideration in determining Pladson’s Medicaid eligibility.

Ill

[¶ 21] The district court’s judgment and order are affirmed.

[¶ 22] DALE Y. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author:
SABERS, Justice.
      ZINTER, Justice

text:
    2005 SD 118
    MGA INSURANCE COMPANY, INC. A Texas Insurance Company, Plaintiff and Appellant, v. Marshall GOODSELL, and Donita Goodsell, individually and as special administrator, parents or guardian of Jared Goodsell, a minor child, Derald W. Wiehl, as special administrator for the Estate of Gwen Dumarce, deceased, Infinity Insurance Company, an Alabama Insurance Company, Farm and City Insurance Company, Inc., an Iowa Insurance Company and Dakota Sioux Propane, Defendants. and Sandra White, as special administrator or guardian of Daniel Dumarce, a minor child, Defendant and Appellee.
    No. 23610.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 3, 2005.
    Decided Nov. 30, 2005.

      Matthew J. Kinney, Kinney Law Office, Spearfish, South Dakota, Attorney for appellant.
    Bram Weidenaar, James L. Hoy of Hoy Trial Lawyers, Sioux Falls, South Dakota, Attorneys for appellee.
   SABERS, Justice.

[¶ 1.] Insurer moved for summary judgment to enforce its household exclusion, which, purported to deny coverage to relatives residing with a permissive driver. The circuit court denied the motion and held the household exclusion void as a violation of public policy. We affirm.

FACTS

[¶2.] Lorenzo and Angelica Sanchez purchased an automobile insurance policy from MGA Insurance Company (MGA). The policy covered the Sanchez’s 1989 Chevrolet Camaro with liability limits of $25,000 per person.

[¶ 3.] Gwen DuMarce and her son, Daniel, had been living with Sanchez’s brother, Escubio. The three of them were living in Escubio’s mobile home in Madison, South Dakota. However, Gwen was contemplating moving to Sisseton with Daniel.

[¶ 4.] Gwen received permission from Lorenzo to borrow the Camaro on July 27, 2002. She decided to drive with Daniel to Sisseton for the weekend. During the drive, Gwen allegedly tried to elude a highway patrol officer near Sisseton. The Ca-maro collided with a Dodge pickup, killing Gwen and seriously injuring Daniel. Daniels’s maternal grandmother, Sandra White (White), was appointed his special administrator and guardian.

[¶ 5.] MGA brought this declaratory judgment action against White. MGA claimed that it had no contractual duty to defend Gwen or provide liability coverage for claims by Daniel or those making claims on his behalf. In support of its claims, MGA cited the “Household Exclusion” section of its policy with Sanchez.

[¶ 6.] MGA moved for summary judgment on November 29, 2004. Neither party disputed any of the material facts. Instead, MGA maintained that the “Household Exclusion” provision barred any recovery by Daniel. That section is as follows:

EXCLUSIONS
This coverage does not apply: ...
(10) For any bodily injury to:
(a) You;
(b) any other insured person under the policy;
(c) any member of your family residing in the same household with you; or
(d) any member of the family of any other insured person residing in the same household as that insured.

(emphasis added). The definitions section of the policy defined “insured” as:

(a) you;
(b) a relative or resident using your insured car;
(c) any other person using your insured car;

(emphasis added).

[¶ 7.] The circuit court denied summary judgment, holding that SDCL 32-35-70 “does not authorize exclusion of coverage to a relative residing with a permissive user of an insured vehicle and any attempt by Plaintiff to exclude such coverage is contrary to public policy and unenforceable in accordance with Cimarron Ins. Co. v. Croyle, 479 N.W.2d 881 (S.D.1992).” MGA raises one issue on appeal:

Whether the trial court erred in ruling that SDCL 32-35-70 renders MGA’s “Household Exclusion” clause unenforceable.

Standard of Review

[¶ 8.] Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c). Here, there are no genuine issues of material fact, so the question is whether the legal issue has been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987).

[¶ 9.] The proper interpretation of an insurance contract presents a legal question, reviewed de novo by this Court.

Gloe v. Union Ins. Co., 2005 SD 30, ¶ 9, 694 N.W.2d 252, 256. Finally, “statutory interpretation and application are questions of law.” Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 462.

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.

State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653-54 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611).

Decision

[¶ 10.] In Cimarron Ins. Co. v. Croyle, we examined whether an insurer can exclude coverage to the named insured or any resident family member. 479 N.W.2d at 882. We viewed the insurer’s exclusion in light of South Dakota’s Financial Responsibility Laws. The public policy set forth in South Dakota’s Financial Responsibility Laws was explained as strongly “favoring monetary protection and compensation for the benefit of those injured through the negligent operation of a vehicle.” Id. at 884. Ultimately, we held that the insurer’s household exclusion was void as contrary to that public policy, stating, “[insurer’s] household exclusion effectively renders the [insured], and others like her, uninsured and thus unprotected, in violation of public policy.” Id.

[¶ 11.] Our holding was underscored by the fact that:

[T]his class of victims is the one most frequently exposed to the potential negligence of the named insured [i.e., the operator]. Typical family relations require family members to ride together on the way to work, church, school, social functions, or family outings. Consequently, there is no practical method by which the class of persons excluded from protection by this provision may conform their activities so as to avoid exposure to the risk of riding with someone who, as to them, is uninsured.

Id. (citation omitted). Furthermore, the “vast majority of jurisdictions [had] [held] such household exclusions invalid under similar statutory schemes.” Id.

[¶ 12.] The Legislature acted quickly to prospectively alter our decision in Cimar-ron. 1992 SD Sess Laws, ch 233, § 1 (current version at SDCL 32-35-70 (2004); Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 756 n. 1 (S.D.1994)). The statute now provides in relevant part:

An owner’s policy of liability insurance ... shall insure the person named therein and any other person as insured, using any insured vehicle or vehicles with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the vehicle or vehicles[.] The policy may exclude or limit coverage pursuant to § 58-11-9.3 or for a relative residing in the named insured’s household.

SDCL 32-35-70 (emphasis added).

[¶ 13.] The amendment allows insurers to issue motor vehicle policies with resident family member exclusions. Employers Mutual Casualty Co. Inc. v. State Auto Ins., 2001 SD 34, ¶ 11, 623 N.W.2d 462 (citing Isaac, 522 N.W.2d at 756 n. 1). The Legislature, however, did not alter the statute in a manner that changes its underlying policy of “favoring monetary protection and compensation for the benefit of those injured through the negligent operation of a vehicle.” Instead, the amendment provides an exception that permits insurers to exclude coverage from a specific class of insureds: relatives residing in the named insured’s household. See SDCL 32-35-70.

[¶ 14.] The effect the amendment had on our decision in Cimarron is to preclude a similar result in future cases. Policies that exclude coverage for relatives residing in the named insured’s household are not contrary to public policy. While the result reached in Cimarron is no longer obtainable, the rationale remains alive and well. South Dakota’s Financial Responsibility Law continues to mandate coverage for those injured.

[¶ 15.] We examine whether in amending SDCL 32-35-70, the Legislature intended to permit insurer’s to exclude coverage for relatives (of a permissive driver) residing with a permissive driver. In doing so, we adhere to our longstanding precedent involving statutory construction.

[¶ 16.] The intent of the law is “ascertained primarily from the language of the statute.” Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d at 654. “When the language of the statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.” Id. However, we are not confined to the language of the statute at issue. Instead, “enactments relating to the same subject” are also relevant in determining legislative intent. Gloe v. Iowa Mutual Ins. Co., 2005 SD 29, ¶ 11, 694 N.W.2d 238, 242 (noting that this Court construes UM and UIM statutes together).

[¶ 17.] There are instances when it is necessary to look beyond the express language of a statute in determining legislative intent. Most notably, when the language is ambiguous, unclear, or if confining ourselves to the express language would produce an absurd result. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d at 654; Moeller v. Weber, 2004 SD 110, ¶ 46, 689 N.W.2d 1, 16 (“we must fall back on the rule of statutory construction that requires us to give a sensible reading to statutes”).

[¶ 18.] An example of this Court going beyond the express language of a statute is found in DeSmet Ins. Co. of S.D. v. Gibson, 1996 SD 102, 552 N.W.2d 98. DeSmet examined whether an insurer may exclude uninsured motorist coverage to a household family member residing with the named insured. Id. ¶ 4. South Dakota’s uninsured motorist statute did not expressly authorize the exclusion. However, the post Cimarron amendment to SDCL 32-35-70 permits insurer’s to exclude household residents of the named insured from liability coverage. As a result, this Court went beyond the language in the uninsured motorist statute and found that the exclusion was not inconsistent with public policy. A contrary holding would have “subverted the manifest purpose of the legislative amendment” to SDCL 32-35-70. DeSmet, 1996 SD 102, ¶7, 552 N.W.2d at 100.

[¶ 19.] Justice Konenkamp, writing for a unanimous Court, pointed out the general rule of statutory construction: “courts should not enlarge a statute beyond its declaration if its terms are clear and unambiguous.” Id. (citing State v. Fryer, 496 N.W.2d 54, 55 (S.D.1993)). He went on to write:

[I]n cases where a literal approach would functionally annul the law, the cardinal purpose of statutory construction — ascertaining legislative intent— ought not be limited to simply reading a statute’s bare language; we must also reflect upon the purpose of the enactment, the matter sought to be corrected and the goal to be attained.

Id. Thus, exclusions can be consistent with public policy even if the “enactments [do] not precisely contemplate [the] circumstances.” Id.

[¶ 20.] In the present case, we are not faced with an issue where a literal interpretation of SDCL 32-35-70 would functionally annul it, or produce an absurd result. Nor are the terms of that statute ambiguous. Consequently, it is not necessary to look beyond the express language of the statute to resolve this issue.

[¶ 21.] The MGA policy defined an “insured” to include not only the named insured, but also any other person who had permission to use the named insured’s vehicle. It is undisputed that Gwen had permission to drive the Sanchez’s Camaro. Thus, Gwen was an “insured” as defined by the policy.

[¶ 22.] The policy purports to exclude coverage for bodily injury to “any member of the family of any other insured person residing in the same household as that insured.” Daniel is Gwen’s son. It is undisputed that Daniel was residing with Gwen. Consequently, MGA would have no liability for any injuries suffered by Daniel if the policy provision is enforceable.

[¶ 23.] The first portion of SDCL 32-35-70 (the omnibus clause) refers to the named insured as “the person named therein.” It then refers to permissive drivers as “insured.” The Legislature clearly delineated between a “named insured” and an “insured.” Thus, the statute not only recognizes the difference between “named insured” and “insured,” but it only permits an insurer to limit coverage for a relative residing in “the named insured’s household.” SDCL 32-35-70. Had the Legislature intended to allow household exclusions to apply to relatives that resided with a permissive driver, it could have said so.

[¶ 24.] It is undisputed that the named insureds in this policy are Lorenzo and Angelica Sanchez. MGA does not contend that Gwen or Daniel DuMarce were relatives residing with the Sanchez’s. MGA is relying on the policy provision that excludes relatives residing with a permissive driver. Because SDCL 32-35-70 only permits insurers to exclude coverage of relatives residing with the “named insured,” we hold that MGA’s attempted exclusion is invalid as a violation of public policy.

[¶ 25.] Alternatively, even if we examine the public policy of South Dakota’s Financial Responsibility Law under the factors provided in DeSmet, we note that it continues to “create[ ] a strong public policy favoring monetary protection and compensation for the benefit of those injured through the negligent operation of a vehicle.” Cimarron, 479 N.W.2d at 884.

[¶ 26.] By amending SDCL 32-35-70, the Legislature did not change the public policy of the statute. It simply excepted the “named insured” from that public policy. The public policy of the statute remains the same as does the purpose of the mandated coverage, the matter sought to be corrected, and the goal to be attained. DeSmet, 1996 SD 102, ¶ 7, 552 N.W.2d at 100.

[¶ 27.] MGA cites Nodak Mutual Ins. Co. v. Wacker for the proposition that insurers can exclude coverage of relatives residing with a permissive driver. 154 N.W.2d 776 (N.D.1967). However, in No-dak, the North Dakota Supreme Court was only interpreting the underlying insurance contract. Id. The present case is more about statutory interpretation than it is contract interpretation.

[¶ 28.] MGA also asserts that a permissive driver’s rights are derivative. It argues that because a permissive driver receives the benefits of a named insured’s coverage, they should also be subject to the exclusions from such coverage. In addition, MGA argues that household exclusions prevent collusive claims amongst family members. Kentucky Farm Bureau Mutual Ins. Co. v. Harp, 423 S.W.2d 233, 234-35 (Ky.1967). Despite those arguments, we are satisfied that MGA’s purported exclusion is contrary to South Dakota law. See Kremer v. American Family Mut. Ins. Co., 501 N.W.2d 765, 768-69 (S.D.1993) (rejecting prevention of collusion as a policy that would justify consent to be bound provisions).

[¶ 29.] Even if MGA were correct, we cannot rewrite the statute. Instead, we must accept “what the legislature has said — and has not said — rather than attempt to rewrite the law to conform with what we or others think it should have said.” Stover v. Critchfield, 510 N.W.2d 681, 686 (S.D.1994) (quoting Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984) (internal quotations omitted)). The statute’s terms are clear and unambiguous. It, is not the province of this Court to enlarge this statute beyond its declaration.

. [¶ 30.] Affirmed.

[¶ 31.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 32.] ZINTER, Justice, concurs with a writing.

ZINTER, Justice

(concurring).

[¶ 33.] I concur and write only to point out one procedural aspect of this case. This is an appeal from a denial of a motion for summary judgment, and we usually do not hear such claims because our appellate jurisdiction is generally limited to a review of final judgments. See SDCL 15-26A-3. Consequently, we required these parties to demonstrate whether this appeal was properly before us. We ultimately entertained the appeal because the trial court certified its ruling as a final judgment under SDCL 15 — 6—54(b) and because both parties demonstrated that the denial of summary judgment was effectively a final judgment.

         MGA sued several parties in addition to White. None of them are involved with this appeal.


author: PER CURIAM.

text:
    2005 SD 123
    The PEOPLE of the State of South Dakota In The Interests of B.J.T., Minor Child, and Concerning K.H., Respondent Mother, and B.T., Respondent Father.
    No. 23640.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 7, 2005.
    Decided Dec. 14, 2005.

      Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, for appellee State of South Dakota.
    Kelly Stricherz, Minnehaha County Public, Defender’s Office, Sioux Falls, South Dakota, for appellant B.J.T.
   PER CURIAM.

[¶ 1.] B.J.T. appeals his adjudication as a juvenile delinquent. We affirm.

FACTS

[¶ 2.] Seventeen-year-old B.J.T. lived ■with his mother and stepfather in Sioux Falls and maintained joint checking and savings accounts with his stepfather at the Sioux Falls Federal' Credit Union (Credit Union). B.J.T. later moved out of his mother and stepfather’s residence and in with his father in Dell Rapids. Around July 4, 2004, B.J.T. received two statements from the Credit Union. One of the statements indicated he had an unexpectedly large balance of over $7,500 in his account. On July 6, B.J.T. went to the South Cliff Branch of the Credit Union in Sioux Falls and withdrew $4,600 in cash. Later that day, he went to the Louise Avenue Branch of the Credit Union in Sioux Falls where he attempted to withdraw another $3,500 in cash. After some confusion in verifying B.J.T.’s account, he was allowed to withdraw the $3,500. On July 9, B.J.T. returned to the Louise Avenue Branch of the Credit Union in Sioux Falls and withdrew another $1,000 in cash. On July 16, he returned to the South Cliff Branch of the Credit Union in Sioux Falls and withdrew yet another $1,000 in cash.

[¶ 3.] At the same time B.J.T. was withdrawing thousands of dollars from the Credit Union, B.C.T. (victim), an adult with the same first and last name as B.J.T., noticed that he was missing money from his account with the Credit Union. Victim contacted the Credit Union about his missing funds and asked for copies of some of the transactions that had taken place involving his account. When a Credit Union representative pulled the transactions and showed them to victim, victim claimed that they were not his.

[¶ 4.] Victim’s contact with the Credit Union led to an internal investigation and a report to law enforcement that the Credit Union had lost $10,100 because of the withdrawals from victim’s account. On July 23, 2004, a Sioux Falls police detective interviewed B.J.T. and his stepmother about the matter. B.J.T. conceded receiving a statement from the Credit Union on which he had noticed a large balance, but explained that he believed his mother had deposited funds in his account from an insurance settlement over an automobile accident in which he had been injured. He further explained that he made the cash withdrawals from the Credit Union in connection with an automobile purchase and a loan to his brother. The detective informed B.J.T. that the money he withdrew really belonged to victim and that he needed to contact the Credit Union to sort the matter out. The detective further informed B.J.T. that if he paid the money back that could be the end of the matter.

[¶ 5.] B.J.T. never contacted the Credit Union about paying back its money. On August 2, 2004, the State filed a petition alleging B.J.T. to be a delinquent child based upon an underlying charge of grand theft under SDCL 22-30A-6:

Any person who comes into control of property of another that he knows to have been lost, estrayed, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient, is guilty of theft if, with intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.

An adjudicatory hearing was held on December 2, 2004 and the juvenile court adjudicated B.J.T. a delinquent. B.J.T. was committed to the juvenile detention center for ninety days with seventy days suspended. He was further placed on supervised probation for six months and thereafter on case service monitoring for six months on various terms and conditions including payment of restitution to the Credit Union. B.J.T. appeals.

ISSUE

[¶ 6.] Did the juvenile court err in adjudicating B.J.T. a delinquent?

[¶ 7.] B.J.T. argues that the juvenile court erred in adjudicating him a delinquent because the evidence was insufficient to support the adjudication. This Court reviews the sufficiency of the evidence to support an adjudication of delinquency according to the same standards used in reviewing the sufficiency of the evidence to support a criminal conviction. See Matter of S.F.H.R., 292 N.W.2d 802, 803-804 (S.D.1980)(citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). Thus, we review the evidence and the most favorable inferences that can be drawn therefrom in a manner supporting the trial court’s decision and determine whether there was sufficient evidence for the court to find that the State’s allegations were true beyond a reasonable doubt. Id. See also SDCL 26-7A-86 & 26-7A-87 (allegations of petition for delinquency must be supported by evidence beyond a reasonable doubt). In our review, we give due deference to the ability of the trial court, as the ultimate fact-finder, to weigh the evidence and determine the credibility of witnesses. S.F.H.R., supra.

[¶ 8.] B.J.T. contends that there was inadequate proof that he took or exercised control over property belonging to the Credit Union. He argues that the evidence showed that the funds delivered to him belonged to victim and not to the Credit Union. However, the Credit Union’s vice president specifically testified during the adjudicatory hearing that when it was discovered that victim’s money was missing, the Credit Union had to credit his account and then filed a bond claim -with its insurer for the loss. This practice was consistent with the rule cited by the State that, generally, “a bank, in paying a forged check, must be considered as making the payment out of its own funds.” Central Nat. Bank of Richmond v. First & Merchants Nat. Bank, 171 Va. 289, 198 S.E. 883, 889 (1938). South Dakota has recognized its own version of this rule. See Flaherty v. Bank of Kimball, 75 S.D. 468, 471, 68 N.W.2d 105, 107 (1955)(bank must bear loss for paying a forged or altered check). See also SDCL 57A-3-401(a) & 57A-3-403(a)(person not liable on instrument unless person signed instrument and an unauthorized or forged signature is ineffective). Accord 12 AmJur2d Bills and Notes § 587 (2005)(Uniform Commercial Code initially places risk of forgeries on bank in that forged signature is wholly inoperative as that of person whose name is signed)(citing UCC § 3^403(a) (1990)). Based upon the testimony and applicable law, there was no failure of proof that B.J.T. took or exercised control over property belonging to the Credit Union.

[¶ 9.] B.J.T. next claims a lack of proof that he knew the funds he withdrew from the Credit Union were lost, estrayed, mislaid, or delivered under a mistake as to amount or identity. SDCL 22-30A-6. B.J.T. argues that the record shows that he believed the funds were from an insurance settlement and that there was no proof that he was aware that the funds were not his own.

[¶ 10.] “All elements of the crime, including intent may be established circumstantially.” State v. Moschell, 2004 SD 35, ¶ 40, 677 N.W.2d 551, 564. “The proof of fraudulent intent need not be direct; it may be inferred from expressly proven acts of the accused and surrounding circumstances.” State v. Teutsch, 80 S.D. 462, 466, 126 N.W.2d 112, 115 (1964).

[¶ 11.] The acts and circumstances surrounding B.J.T.’s withdrawal of funds supported the inference that he knew the funds were not his. B.J.T. testified that he thought his Credit Union account was closed when he moved in with his father and that he had no idea that there was any money in the account. Yet, immediately after his receipt of the Credit Union statement showing an unexpected balance of thousands of dollars, he proceeded to two separate branches of the Credit Union on the same day and withdrew a total of over $8,000 in cash. Moreover, B.J.T. made those withdrawals while on notice that there was confusion involving his account. He actually received two separate account statements from the Credit Union, only one of which showed a balance in the thousands of dollars. B.J.T.’s stepmother testified that she told B.J.T. at that time that he “should find out if that money was his” and “[to] contact the bank to see where that money came from[.]” B.J.T. did not do so.

[¶ 12.] There was additional confusion over B.J.T.’s account during the actual withdrawal of funds. B.J.T.’s social security number did not match the number on the account from which he was attempting to obtain funds. While trying to resolve that issue, the teller and teller supervisor discovered that there were actually two individuals named B.T. with Credit Union accounts, one with a balance of thousands of dollars and the other with a balance of only $70. B.J.T. insisted that the smaller account was not his, that the larger balance was and that he was not going to “back off.” He also stated that his stepfather was out in the car and offered to have him come in to discuss the matter. However, the evidence would later show that the stepfather was not with B.J.T. at that time.

[¶ 13.] B.J.T.’s only explanation for his actions was that he thought his mother had deposited money in his account from an insurance settlement. However, there was no reason for that belief. B.J.T. was not communicating with his mother at the time of the withdrawals and had received no information from her about a settlement. The evidence further showed that B.J.T. and his mother only met with a paralegal once about B.J.T.’s accident and never met with a lawyer about it. B.J.T. never made a court appearance in connection with a lawsuit and never discussed the lawsuit with his mother after the initial meeting with the paralegal. B.J.T. admitted during the adjudicatory hearing that he did not know what was going on with the lawsuit.

[¶ 14.] Additional facts and inconsistencies in B.J.T.’s story called his credibility into question. His mother testified during the adjudicatory hearing that B.J.T. lied to her about the circumstances of his traffic accident and who was driving his car at the time. During his interview by the Sioux Falls police detective, B.J.T. explained that he made the Credit Union withdrawals to purchase a motor vehicle from a relative for $9,000 and to loan his brother some money. During the adjudicatory hearing, however, B.J.T. claimed that he made the withdrawals to pay for three different vehicles and said nothing about a loan to his brother. The circumstances surrounding BJ.T.’s withdrawal of funds, his propensity to lie and the inconsistencies in his story supported the court’s rejection of his explanation for the withdrawals and its finding that he withdrew the money knowing that it belonged to another.

[¶ 15.] B.J.T. also argues that the element of a lack of reasonable measures to restore the Credit Union’s property was not established. The record shows that the only affirmative step ever taken by B.J.T. to restore the Credit Union’s property was to have an attorney contact a vice president for the Credit Union to inquire as to what could be done about the situation. The vice president testified that she instructed the attorney to have B.J.T. contact her about how the Credit Union was going to get its money back. B.J.T. never made any contact with the vice president or any other representative of the Credit Union. Thus, the element of lack of reasonable measures was established.

[¶ 16.] Finally, B.J.T. contends there was no evidence that he intended to deprive the Credit Union of the withdrawn funds. Like the other elements of theft, intent to deprive may be established by circumstantial evidence. See State v. Herrald, 269 N.W.2d 776, 779 (S.D.1978). The circumstances surrounding B.J.T.’s acquisition of funds from the Credit Union including his actions immediately after learning of the unexpectedly large balance in his account, his calculated withdrawals from various Credit Union branches at different times, his insistence to the tellers that the unexpectedly large balancé was his, his lie about the presence of his stepfather and his failure to return the funds when afforded an opportunity to do so are all circumstantial evidence indicating that when B.J.T. withdrew the funds he intended to deprive the Credit Union of them.

[¶ 17.]Based upon the foregoing, the evidence was sufficient to support the juvenile court’s adjudication of B.J.T. as a delinquent.

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Russell Lysle ALLOWAY, Appellant.
    No. 04-1080.
    Supreme Court of Iowa.
    Jan. 6, 2006.

      Linda Del Gallo, State Appellate Defender, and Greta A. Truman, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, and Karen Doland, Assistant Attorney General, for appellee.
   CADY, Justice.

This appeal requires us to again address a claim that the sentencing court abused its discretion in failing to suspend a sentence and grant probation in a case where the record fails to disclose the reasons for the sentence. We have previously urged trial courts to make a record of the reasons for the imposition of a sentence, and we again do so today. We vacate the decision of the court of appeals, and affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings

Russell Alloway filed a written plea of guilty to the crimes of possession of methamphetamine and possession of marijuana, in violation of Iowa Code section 124.401(5) (2003), on May 4, 2004. Both crimes are serious misdemeanors, and Alloway was represented by counsel. The written plea contained fifteen paragraphs and covered three pages. The last two paragraphs included the waiver of certain sentencing rights. In paragraph fourteen, Alloway waived his right to appear personally for sentencing and to make a statement in mitigation of punishment. See Iowa R.Crim. P. 2.23(3)(o¡). In paragraph fifteen, Alloway waived the requirement for the court to “state on the record its reasons for selecting the sentence imposed.” Id. More specifically, paragraph fifteen stated:

15. I understand that the court would normally be required to state on the record the reasons for selecting the sentence imposed and give up and waive the requirement that the court do so.

The district court accepted the written plea, but ordered Alloway to appear personally for sentencing notwithstanding the waiver of his right to do so.

Alloway eventually appeared for sentencing on July 2. The sentencing proceedings were not reported, nor was any plea agreement or presentence report made a part of the record. See id. r. 2.10(2) (“If a plea agreement has been reached by the parties the court shall require the disclosure of the agreement in open court at the time the plea is offered.”).

Instead, the record was limited to the written judgment and sentencing order filed by the district court on the same day as the sentencing. The court entered convictions against Alloway for possession of methamphetamine and possession of marijuana. It also fined Alloway $250 for each offense, revoked his driver’s license, and sentenced him to 180 days in jail on each conviction, with the sentences to run concurrently. The written order did not state any reasons for the sentences.

Alloway appealed. He claimed the district court erred by failing to state on the record its reasons for the sentence. He also claimed his trial counsel was ineffective for failing to make a record of the proceedings. We transferred the case to the court of appeals. The court of appeals affirmed. It found Alloway waived the requirement that the court state its reasons for sentencing on the record. The court also rejected Alloway’s ineffective-assistance-of-counsel claim, finding he suffered no prejudice. Alloway applied for, and we granted, further review.

II. Standard of Review

We normally review sentencing decisions for abuse of discretion. State v. Evans, 671 N.W.2d 720, 727 (Iowa 2003). We review claims of ineffective assistance of counsel de novo. State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005) (citing State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005)).

III. Discussion

Courts must follow many requirements in the imposition of a sentence in a criminal case in Iowa. See Iowa R.Crim. P. 2.23(3)(d). One requirement is that the sentencing court “shall state on the record its reason for selecting the particular sentence.” Id. On one hand, this reveals that criminal defendants are entitled to be informed of the consequences of their criminal acts. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001). Yet, the ultimate purpose of the reason-for-the-sentence requirement is to give appellate courts the opportunity to review the discretionary nature of sentencing. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). When a court is given discretion in sentencing, a statement of the reasons for the sentence is necessary to allow appellate courts to determine if the discretion in imposing one form of sentence over another form was abused.

The rule governing the court’s statement of reasons for a sentence actually imposes two separate requirements. The rule not only requires a statement of the reasons for the sentence be given by the court, but also that a record of the reasons be made. The court can satisfy these twin requirements in one of two ways. First, the court can orally state the reasons for sentencing at a reported sentencing hearing. See State v. Johnson, 445 N.W.2d 337, 342-43 (Iowa 1989) (the sentencing colloquy is part of the record). Second, the court can place the reasons in the written sentencing order. Lumadue, 622 N.W.2d at 304; Johnson, 445 N.W.2d at 343 (the sentencing order is part of the record). Ten years ago, we strongly encouraged trial courts to state the reasons for a sentence in the sentencing order when the sentencing proceeding is not reported. State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995) (per curiam). We have on numerous past occasions been required to remand a criminal case for resentencing when the reasons for the sentence were not established by the record. See, e.g., Lumadue, 622 N.W.2d at 304-05; Jacobs, 607 N.W.2d at 690; State v. Oliver, 588 N.W.2d 412, 415 (Iowa 1998); State v. Washington, 356 N.W.2d 192, 196-97 (Iowa 1984); State v. Harrington, 349 N.W.2d 758, 763 (Iowa 1984), abrogated on other grounds by Ryan v. Arneson, 422 N.W.2d 491 (Iowa 1988); State v. McFadden, 320 N.W.2d 608, 618 (Iowa 1982); State v. Smith, 309 N.W.2d 454, 457 (Iowa 1981); State v. Wilson, 294 N.W.2d 824, 824 (Iowa 1980); State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980); State v. Pierce, 287 N.W.2d 570, 575 (Iowa 1980); State v. Luedtke, 279 N.W.2d 7, 8 (Iowa 1979). This result is a waste of judicial time and resources.

A defendant can, of course, waive any error by the district court in failing to state the reasons for a sentence on the record. See Mudra, 532 N.W.2d at 767. A waiver of the twin requirements of rule 2.23(3)(d) constitutes a waiver to a challenge to the sentence based on an abuse of discretion.

The court of appeals found Alloway waived the rule 2.23(3)(d) requirement both in the written guilty plea and by failing to provide a record on appeal to support his claim of trial court error. The court of appeals also found Alloway failed to preserve his claim of ineffective assistance of counsel by sufficiently explaining how he was prejudiced by the lack of a record. We will address each issue separately.

Our rules of procedure permit criminal defendants to use written pleas of guilty in lieu of personal appearance before a court in serious and aggravated misdemeanor cases. See Iowa R.Crim. P. 2.8(2)(6). These written guilty plea forms often contain, as in this case, boilerplate language that further waives appearance at sentencing. See id. r. 2.27(1) (permitting a defendant to appear by counsel in court in non-felony cases).

In this case, the written form used by Alloway contained both a waiver of appearance at sentencing and a waiver that the court “state on the record the reasons for selecting the sentence.” Yet, a defendant can normally waive personal appearance before a court .in indictable misdemeanor cases only with the approval of the trial court. See id. x- 2.8(2)(6). Here, the district court rejected Alloway’s written waiver and required him to personally appear for sentencing. This action by the court, in turn, served to vitiate Alloway’s earlier written waiver of the requirement for the court to state on the record the reasons for the sentence. The district court, having required Alloway to appear for sentencing after he filed a waiver of his appearance, was required to follow the requirements for sentencing under our rules unless Allo-way provided a new waiver of the requirement for the court to place the reasons for the sentence on the record. Under the circumstances, Alloway’s written guilty plea did not waive the requirement that the court state the reasons for the sentence on the record.

When the district court fails to state the reasons for a sentence on the record so as to enable us to review a claim on appeal that the district court abused its discretion in sentencing, our remedy is normally to remand for resentencing. Yet, when the absence of a record of the reasons includes the absence of a transcript of the sentencing proceeding, we think a different rule applies. Although rule 2.23 requires the court to make the sentencing record, a record is not solely within the province of the district court. Our rules of criminal procedure permit a defendant in a criminal case to create a record by means of a bill of exceptions under rule 2.25 after sentencing, or by filing a supplemental statement of the record under Iowa Rule of Appellate Procedure 6.10(3) after an appeal has been filed.

In State v. Mudra, we held that a defendant waived any claim of sentencing error on appeal by failing to establish a record when the district court failed to make a record. State v. Mudra, 532 N.W.2d 765, 767. In that case, the defendant waived the reporting of the sentencing proceeding in district court. Id. However, there was no record to further show he waived the requirement for the court to state the reasons for the sentence on the record in the sentencing order. See id. (stating only that the defendant “waived transcription of the proceedings”). In other words, the waiver of the reporting of the proceedings only deprived the sentencing court of one means to make the required sentencing record, but did not prevent the court from satisfying its obligation to make a record by other means — i.e., by stating the reasons in the written judgment entry and sentence. Thus, just as in this case, in Mudra, there was no record to show that the defendant waived his right to challenge the sentence on appeal by waiving the requirement for the court to give reasons for the sentence. See id. Notwithstanding, we held that the defendant waived his right to challenge the sentence on appeal by failing to submit a record on appeal disclosing the district court’s error when a procedure was available to the defendant to make such a record. See id. at 767 (“[T]he lack of a record on this appeal is Mudra’s own doing. He voluntarily waived transcription and then, having decided to appeal, made no attempt to make a record of the district court proceedings under Iowa Rule of Appellate Procedure 10(c) [now 6.10(3)] or by creating a bill of exceptions under Iowa Rule of Criminal Procedure 23.1 [now 2.25].”).

Mudra requires us to reach the same result in this case. The issue raised on appeal concerns an abuse of discretion in sentencing, and the defendant must submit a record on appeal to disclose the error. Id. If this record, once made, shows no sentencing reasons were given, or the reasons were inadequate, we can then remand for resentencing. If this record shows adequate reasons were given, we can decide the issue presented on appeal. If the record shows the defendant waived the sentencing requirement, we can affirm the district court’s sentence on that basis. In this case, Alloway failed to produce a record, and his failure to do so serves as a waiver of “the argument that the district court erred by failing to state its reasons for the sentence imposed on the record”. As in Mudra, we will not permit a defendant to raise an issue without attempting to give us a record upon which we can decide the issue.

Notwithstanding, unlike the defendant in Mudra, Alloway claims that his counsel was ineffective for failing to submit a record on his behalf to support his claim on appeal. Additionally, he claims he was prejudiced by the failure of his attorney to create a record to support his claim of error on appeal because the sentencing court did in fact have discretion to suspend the jail sentence imposed.

Claims of ineffective assistance of counsel on direct appeal are preserved for postconviction relief only if the defendant, makes a minimal showing of the potential viability of the claim. State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987). This requires the defendant to show the need to develop a further record, and to explain why the actions of counsel were ineffective and how those actions resulted in prejudice. Id. A bald assertion is insufficient. Id.

Alloway has failed to sufficiently articulate the prejudice prong of his claim. The existence of discretion by the sentencing court in the imposition of sentencing does not explain how Alloway was prejudiced by the lack of a record of the reasons for not suspending the sentence. Alloway was required to allege some reason or some particular circumstance that a record in the case would have brought to light to support an abuse of discretion in the imposition of the sentence. See People v. Williams, 96 Ill.App.3d 958, 52 Ill.Dec. 518, 422 N.E.2d 199, 205 (1981) (“There has been no showing by defendant that he has, in fact, been prejudiced by the judge’s omission and there is no indication that the sentence imposed would have been different had the court specified its reasons for the sentence.” (citing People v. Brown, 89 Ill.App.3d 852, 45 Ill.Dec. 229, 412 N.E.2d 580 (1980))).

IV. Conclusion

We conclude Alloway waived his claim of error on appeal. Additionally, Alloway’s ineffective-assistance-of-counsel claim fails because he failed to sufficiently allege or show prejudice. Accordingly, we vacate the decision of the court of appeals and affirm the sentence and judgment of the district court. Finally, we again urge district courts to fastidiously follow the reason-for-the-sentence requirements, absent a clear record supporting a waiver of the twin requirements, to head off the myriad challenges and claims that seem to arise when defendants are sentenced to incarceration without a record of the reasons for the sentence.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      . The district court had discretion in sentencing Alloway. Possession of marijuana and possession of methamphetamine are both punishable by a term of imprisonment of two days to six months and a fine of $250 to $1000. Iowa Code §§ 124.401(5), 903.l(l)(fe) (2003). Moreover, "[a]ll or any part of a sentence imposed ... may be suspended and the person placed upon probation.” Id. § 124.401(5); see also § 907.3(3). This point is important to make because we have held that when the court has no discretion in sentencing, any error in failing to state sentencing reasons is harmless. See State v. Matlock, 304 N.W.2d 226, 228 (Iowa 1981) ("In the present case, there could be no abuse of discretion since the court lacked the power to enter a less severe sentence. The error of the court in failing to state its reason did not harm defendant. A remand for resentencing could not change the sentence required under the relevant statutes.”); accord State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995) ("In State v. Snyder, 336 N.W.2d 728, 729 (Iowa 1983), this court held that where the State and the defendant have approved a plea agreement and the sentencing court incorporates the plea agreement in the sentence, 'the sentence was not the product of the exercise of the trial court’s discretion but of the process of giving effect to the parties’ agreement.' We went on to hold that under those circumstances, stating reasons for imposition of sentence would serve no useful purpose, and any failure to abide by the terms of rule 22(3)(d) was harmless.”).


author: ANDERSON, G. BARRY, Justice.

text:
    Mwati P. McKENZIE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-629.
    Supreme Court of Minnesota.
    Dec. 29, 2005.
    Rehearing Denied March 7, 2006.
    Mwati P. Mckenzie, Bayport, MN, pro se Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

In October 1993, a jury convicted petitioner-appellant, Mwati Pepi Mckenzie, of first-degree murder for the killing of Minneapolis police officer, Jerry Haaf. This court affirmed Mckenzie’s conviction on direct appeal. State v. McKenzie, 532 N.W.2d 210, 223 (Minn.1995). Subsequently, Mckenzie filed three unsuccessful petitions for postconviction relief, two of which were appealed to this court. See Mckenzie v. State, 687 N.W.2d 902 (Minn.2004); McKenzie v. State, 583 N.W.2d 744 (Minn.1998).

On December 23, 2004, Mckenzie filed his fourth petition for postconviction relief, arguing that the Hennepin County grand jury selection procedures systemically excluded African-Americans, and therefore violated his equal protection rights. Further, he claimed that his counsel’s failure to inform him of the unconstitutionality of the grand jury selection procedures denied him his right to effective assistance of counsel. Mckenzie additionally claimed that his trial counsel was ineffective for failing to respond to two jury notes sent to the trial judge during jury deliberation. Mckenzie further requested the postcon-viction court to appoint counsel to represent him at an evidentiary hearing and to remove the prosecuting attorney.

On February 22, 2005, the postconviction court denied Mckenzie’s petition without a hearing, stating Mckenzie had raised, or could have raised, the claims he made in the petition on direct appeal or in his prior postconviction petitions. The court additionally noted that this court had concluded in State v. Roan, 532 N.W.2d 563 (Minn.1995), that the Hennepin County jury selection process was constitutional.

Mckenzie appeals, arguing the court erroneously denied his petition for postcon-viction relief without an evidentiary hearing. We affirm.

In Minnesota, a postconviction court may deny a petition for postconviction relief without a hearing if the petition “conclusively show[s] that the petitioner is not entitled to relief’ and a reviewing court will reverse a postconviction court’s findings only if the findings constituted an abuse of discretion by the postconviction court. Ives v. State, 655 N.W.2d 633, 635 (Minn.2003).

In Knaffla, this court held that, in reviewing a petition for postconviction relief, a postconviction court would not con-sidér any issues that were raised by petitioner on direct appeal or known by the petitioner and not raised. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). This rule also applies if the petitioner should have known about the issue at the time of appeal. Boitnott v. State, 640 N.W.2d 626, 630 (Minn.2002). A post-conviction court, however, may hear previously known or considered claims if (1) a claim is so novel that the legal basis was not available on direct appeal or (2) fairness requires and the petitioner did not “deliberately and inexcusably” fail to raise the issue on appeal. Carney v. State, 692 N.W.2d 888, 891 (Minn.2005).

First, Mckenzie could have raised the claim that the Hennepin County grand jury selection procedures systemically excluded African-Americans in his direct appeal or in his previous postcon-viction petitions. As the postconviction court correctly observed, at the time of the trial, “[T]he composition of the Grand Jury was readily available to [Mckenzie] and his [trial] counsel” and Mckenzie was either aware of the alleged “systemic exclusion” or should have been aware of it at the time of his direct appeal. The postconviction court properly concluded that Mckenzie’s claims are barred by application of the rule in Knaffla. See Knaffla, 309 Minn, at 252, 243 N.W.2d at 741. Moreover, in light of our determination in Roan that a Hennepin County jury selection process, which, like the grand jury selection process in question, used registered voters, driver’s licenses, and registered Minnesota identification card holders, was constitutional, Mckenzie’s claim is not reviewable under either the “novel legal claims” or the “interests of justice” exceptions. See Roan, 532 N.W.2d at 569; see also Hennepin County v. Perry, 561 N.W.2d 889, 896 (Minn.1997). For the same reasons, Mckenzie’s ineffective assistance of counsel claim with respect to the grand jury selection procedure also fails.

Second, Mckenzie’s ineffective assistance of counsel claim with respect to his trial counsel’s alleged failure to respond to the notes sent by the jury is also barred under Knaffla. This court has previously determined that Mckenzie “either knew or should have known of the issues raised by the notes at the time of his direct appeal.” Mckenzie, 687 N.W.2d at 906. Moreover, this court further concluded that any error with respect to the issue was “harmless beyond a reasonable doubt” and Mckenzie “failed to meet his burden of establishing, by a preponderance of the evidence, facts that warrant a reopening of the case.” Id.

As we held in Carney, a petitioner is only entitled to an evidentiary hearing on an ineffective assistance of counsel claim if a reviewing court cannot resolve the claim based on the briefs and the record. Carney, 692 N.W.2d at 891. Here, the briefs and the record contained sufficient information for the disposition of Mckenzie’s claim, and the postconviction court correctly dismissed the claim without an evidentiary hearing. As Mckenzie is not entitled to an evidentiary hearing on the claim, we need not address Mckenzie’s request for appointment of counsel and removal of the prosecuting attorney.

Affirmed.