author: PER CURIAM. ANDERSON, G. BARRY, Justice

text:
    Rick STUDER, Petitioner, v. Mary KIFFMEYER, Minnesota Secretary of State, Respondent, Randy Schreifels, Stearns County Auditor/Treasurer, Respondent, Joan Neyssen, Benton County Auditor/Treasurer, Respondent, Ramona Doebler, Sherburne County Auditor/Treasurer, Respondent, and Sue Ek, Intervenor-Respondent.
    No. A05-2412.
    Supreme Court of Minnesota.
    April 20, 2006.

      Alan W. Weinblatt, Asha Sharma, Wein-blatt & Gaylord, P.L.C., St. Paul, MÑ, for Petitioner.
    Kathleen A. Heaney, Sherburne County Attorney, Todd R. Schoffelman, Assistant County Attorney, Elk River, MN, for Respondent, Ramona Doebler.
    Robert J. Raupp, Benton County Attorney, Foley, MN, for Respondent, Joan Neyssen.
    Tony P. Trimble, Matthew W. Haapoja, Trimble & Associates, Ltd., Minneapolis, MN, for Respondent, Sue Ek.
    Janelle P. Kendall, Stearns County Attorney, Marcus W. Miller, Chief-Civil Division, Stearns County Attorney’s Office, St. Cloud, MN, for Respondent, Randy Schreifels.
    Mike Hatch, Attorney General, Kenneth E. Raschke, Jr., Assistant Attorney General, St. Paul, MN, for Respondent, Mary Kiffmeyer.
   OPINION

PER CURIAM.

Petitioner Rick Studer filed a petition under Minn.Stat. § 204B.44 (2004) requesting an order directing respondent election officials to remove the name of Sue Ek from the ballot for State Representative from House District 15B at the special election to be held on December 27, 2005. Petitioner alleged that Ek would not have resided in District 15B for six months immediately preceding the special election as required by Minn. Const, art. IV, § 6. Ek intervened as a respondent, filed a response in opposition to the petition, and moved to dismiss the petition. The matter was referred to a referee to take evidence and make findings of fact. The referee found that Ek claimed residency in St. Paul, which is not in District 15B, within the six-month period preceding the election. This opinion confirms our order filed December 19, 2005, granting the petition and ordering Ek’s name removed from the ballot.

On November 21, 2005, Governor Tim Pawlepty filed a Writ of Special Election for House District 15B and Senate District 15 with respondent Secretary of State, under MinmStat. §§ 204D.17 and 204D.22, subd.. 1 (2004). The writ established November 28-December 1 as the candidate filing period, December 2 as the deadline for candidate affidavits of withdrawal, December 13 as the date for a special primary, and December 27 as the date for the special election.

On November 28, 2005, Ek filed a Minnesota Affidavit of Candidacy for the District 15B house seat, in which she swore or affirmed that on the day of the special election she would have been a resident of District 15B for six months immediately preceding the election. Ek’s affidavit of candidacy listed her residence as her parents’ home in St. Cloud, Minnesota.

On December 9, 2005, Studer, an eligible voter in District 15B, filed a petition with this court under section 204B.44 alleging that Ek resided at an address on Niles Avenue in St. Paul, Minnesota (the “Niles Avenue home”), until at least July 9, 2005, a date less than six months before the December 27 special election. The petition requested an order requiring that respondent election officials remove Ek’s name from the special election ballot, on the grounds that Ek would not have resided in the district for six months immediately preceding the special election as required by Minn. Const, art. IV, § 6. Petitioner attached to the petition voter registration documents purporting to show that Ek was registered as a voter in St. Paul until September 16, 2005, various website references showing a St. Paul address for Ek, and a City of St. Paul Office of License, Inspections and Environmental Protection (“LIEP”) Home Occupation Affidavit signed by Ek, indicating the Niles Avenue home as her “principal residence.” Petitioner later submitted affidavits in support of the petition from two neighbors who claimed to have observed Ek residing at the Niles Avenue home until mid-September 2005, and an affidavit from an employee of LIEP describing his communication with Ek concerning a complaint that she was operating a business out of the Niles Avenue home, including the Home Occupation Affidavit she submitted in response to the complaint.

We issued an order requiring service on Ek and setting a deadline for response to the petition. Ek moved to intervene, filed a response denying the allegations in the petition, and moved to dismiss based on untimeliness. We appointed the Honorable George Stephenson to serve as referee to take evidence and make findings of fact and provided an opportunity for the parties to file objections to the referee’s findings and argue the matter to this court.

At the evidentiary hearing, the two neighbors of the Niles Avenue home testified that they saw Ek living at the St. Paul home, picking up mail, mowing the lawn, walking a dog, and having groups of visitors, into the fall of 2005. One of the neighbors testified that he filed a complaint with the city about excessive business-related traffic around the Niles Avenue home.

A license inspector from LIEP testified that he spoke with Ek in response to the neighbor’s traffic complaint in July 2005. The inspector testified that he explained the rules of running a home business to Ek, including the requirement that “in order to be able to run a home occupation, basically a business out of a home, you had to live at * * * that home.” He testified that Ek told him that she lived at the Niles Avenue home. The inspector testified he told Ek he would send her the rules for a home business and that she should read them and send back a signed affidavit of home occupation. He testified that the form Ek signed states that the home must be the principal residence of the person running the business to qualify as a home occupation.

The form, titled Home Occupation Affidavit, was introduced as an exhibit. The form, signed by Ek and dated July 9, 2005, states, “I, Susanne Ek, the undersigned, certify that I reside (RENTER) in the dwelling located at * * * Niles Avenue in Saint Paul. I would like to establish a non-profii/home office type of business at the aforementioned address. I understand and agree to comply with the conditions stipulated for home occupation.” The form also includes the following statements:

A home occupation is an occupation carried on in a dwelling unit by the resident thereof; provided that the use is limited in extent and incidental and secondary to the use of the dwelling unit for residential purposes * * *.
All home occupation activities in dwelling units of less than 4,000 square feet of total living area, * * *, shall be conducted by no more than two (2) persons, for one (1) of whom the dwelling unit shall be the principal residence.
For the purpose of subdivision (7), “principal residence” shall mean the dwelling where a person has established a permanent home from which the person has no present intention of moving. A principal residence is not established if the person has only a temporary physical presence in the dwelling unit.

(Emphasis added.)

Ek testified that she resided first in a Randolph Avenue property owned by her parents and then at the Niles Avenue home, also owned by her parents. She ran a business in which she was engaged with her mother from both residences. The business paid rent to Ek’s parents for the Niles Avenue home.

Ek testified that she decided in early 2005 to move back to St. Cloud permanently and told her parents and others about that decision. She began moving her possessions from the Niles Avenue home to her parents’ home in St. Cloud, where she intended to live until she bought either her parents’ home or a neighbor’s home.

Ek testified that she continued to visit, and occasionally stay overnight, at the Niles Avenue home in conjunction with running the business. Especially when she had to travel out of state for her business, she would stay overnight at the St. Paul address because it was close to the airport.

Ek testified that she changed her driver’s license address only when she wanted to change her voter registration because she associated the two together. She said she did not file a change-of-address form with the post office because she did not want mail from mailing lists following her to St. Cloud.

Ek testified that her conversation with the St. Paul license inspector did not involve whether the Niles Avenue home was her residence, but only the limit on the number of people she could have at the house at one time for her business. Ek testified that she did not carefully read the Home Occupation Affidavit that she signed and that she did not understand it to say anything about her residency. She also thought she was only agreeing to the limit on the number of clients who could be at the house that she had discussed with the inspector. She thought her signature was on behalf of the business, indicating the business rented and occupied the property.

Ek’s parents testified they understood Ek intended to move back to St. Cloud permanently. They believed she had done so before July 2005.

Based on the testimony and stipulated exhibits, the referee found as follows. Ek registered to vote in Sherburne County on September 16, 2005; she had been registered in Ramsey County until that date. Before November 21, 2005, Ek’s home address was in St. Paul, according to Department of Public Safety driver’s license records indicating that Ek was issued a license with an address in St. Cloud on November 21, 2005.

Ek’s St. Paul next-door neighbor confirmed that during the summer of 2005 Ek continued to reside at the Niles Avenue home. In July of 2005, that neighbor lodged a complaint with LIEP concerning the volume of business-related traffic in and around the Niles Avenue home. Although Ek resided there, the Niles property was owned by her parents and at that time was also the site of a business operated by Ek, as the executive director, and her mother, as the company president.

The LIEP inspector discussed with Ek the complaint and the Home Occupation Affidavit that Ek would have to sign for permission to run her business out of the home. During the discussion, Ek told the inspector that she resided at the Niles Avenue home. The inspector also testified, and Ek acknowledged in her testimony, that no license for a home occupation would have been granted by the city if the person carrying on the business was not residing there.

Based on her conversation with the LIEP inspector, on July 9, 2005, Ek signed a Home Occupation Affidavit, in which she declared that she was residing at the Niles Avenue home. The document defines “Home Occupation” as “an occupation carried on in a dwelling unit by the resident thereof.” In the affidavit, Ek acknowledged that she understood and agreed to comply with conditions stipulated for a home occupation.

Ek testified that she had only “skimmed” the Home Occupation Affidavit, that she was “terrible at reading documents like that,” that she had signed the document at the direction of her mother, that she had done so as an officer of the company, and that she had not intended to indicate that she resided at the Niles Avenue home on July 9, 2005, when she signed the affidavit. Ek’s attorney argued that the document confused her.

The referee expressly found that Ek’s testimony regarding her lack of understanding about the affidavit of occupation was not credible. He found that the LIEP inspector’s testimony was the most compelling. Finally, he found that Ek had submitted no credible evidence to refute the assertion that Ek would not have resided in District 15B for six months immediately preceding the December 27 election. .

I.

In responding to the petition, Ek moved for dismissal based on lack of timeliness. She asserted that the petitioner did not bring the action as soon as he could have, and therefore the petition should be dismissed. Ek argued that the petition should have been filed as soon as she filed her affidavit of candidacy, on November 28.

We have explained that this kind of challenge to candidacy must be timely made: “An applicant for the order must proceed promptly in view of the inherent limitations upon adequate judicial consideration.” Moe v. Alsop, 288 Minn. 323, 331, 180 N.W.2d 255, 260 (1970). In assessing timeliness challenges in candidate residency cases, we stated, “In considering laches, we have held that the practical question in each case is whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant the relief prayed for.” Piepho v. Bruns, 652 N.W.2d 40, 43 (Minn.2002) (quoting Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952)). In two recent cases, we found that the record did not disclose when the petitioner became aware of the alleged question of residency, and therefore we could not conclude on the record that the petitioner failed to assert a known right in a reasonable time. Id.; Olson v. Zuehlke, 652 N.W.2d 37, 39 (Minn.2002).

Here, petitioner testified that he became aware of the information about Ek’s residence in St. Paul in a telephone call from his counsel on December 7. Petitioner argues that although the writ of election stated that candidate filings closed on December 1, under the governing statute they actually did not close until December 6, making the deadline for withdrawal of candidates December 7. He says, based on the information he received on December 7, he recognized a possible claim on December 8 and filed the petition on December 9.

In light of the tight time frame presented by the compressed deadlines of the special election schedule and the filing of the petition on December 9, two days after petitioner learned of the residency issue, we cannot fault petitioner for not bringing the petition sooner. Accordingly, in these circumstances, the petition was timely, and Ek’s motion to dismiss fails.

II.

A candidate who has not resided in the legislative district for six months immediately preceding the special election is not qualified to run for state legislative office in that district. See Melendez v. O’Connor, 654 N.W.2d 114, 118 (Minn.2002). After the decennial legislative redistricting had taken place, in 2002 we heard several candidacy challenges based on the six-month residency requirement. In addressing the standard for determination of residency for purposes of this requirement, we noted that the legislature has provided no definition of residency for these purposes and has chosen not to expressly incorporate statutory voter residency principles in this context. Piepho, 652 N.W.2d at 43-44. Nevertheless, we explained that, as with voter residency, “the foremost considerations with respect to residency in the election context are physical presence and intent.” Id. at 44. Previously, the court had established that the party challenging residency bears a heavy burden:

An application for an order preventing the placement of a candidate’s name upon an election ballot for any office must be timely made and clearly established. The burden upon .the applicant to establish ineligibility must be a heavy one in view of the drastic nature of an affirmative order, both to the candidate and to the electorate.

Moe, 288 Minn, at 330-31, 180 N.W.2d at 260 (footnote omitted).

Ek filed written objections to the referee’s findings. She primarily argued that the referee erroneously relied exclusively on the Home Occupation Affidavit and the license inspector’s testimony, improperly ignoring substantial and uncontroverted testimony concerning Ek’s intent to reside in St. Cloud and her physical presence there. She argued that the referee’s singular reliance on the Home Occupation Affidavit ignores the standard for candidate residency established by this court in the 2002 cases, in which intent and physical presence were the key factors. Ek contended that the evidence here of intent and physical presence is far greater than was held sufficient to satisfy the residency requirement in those 2002 cases. At most, she asserted, the licensing evidence is one factor, and it is overcome by the significant intent and physical presence evidence, especially considering the heavy burden that petitioner must satisfy in order to prevail.

We have held that the factors that establish residency “are largely questions of fact, and we therefore defer to the findings of the referee who heard the witnesses testify.” Piepho, 652 N.W.2d at 44-45 (citing Bell v. Gannaway, 303 Minn. 346, 350, 227 N.W.2d 797, 801 (1975)). Furthermore, we have emphasized that “[i]t is the role of the referee, and not this court, to evaluate the credibility of witnesses.” Lundquist, 652 N.W.2d at 37 (citing Nelson v. O’Neil Amusements, 274 Minn. 555, 555-56, 142 N.W.2d 647, 648 (1966)).

In this case, the factual dispute does turn largely on credibility, and the referee made very explicit and emphatic findings in that regard. He stated:

Intervenor-Respondent Ek’s testimony on this crucial issue [her misunderstanding of the affidavit of occupation] is simply not credible. Intervenor-Re-spondent Ek is an articulate woman who is and was well aware of the financial benefit derived by operating her business out of her home; she is the Executive Director of that business and in that capacity has been authorized to bind her company in contracts and other financial obligations. Her assertion in the Affidavit that “I, Susanne Ek, the undersigned, certify that I reside (RENTER) in the dwelling located at * * * Niles Avenue in St. Paul” is clear and unmistakable. The Court is unable to understand how a college graduate with degrees in Public Relations and Journalism might have been confused by this simple language.

The referee found further:

The most credible testimony and the most compelling evidence submitted at the hearing was that introduced through [the] LIEP Inspector ⅜ * *; he was the only objective, disinterested, apparently non-partisan witness at the hearing. In-tervenor-Respondent Ek has submitted nothing to credibly refute the Petitioner’s assertion that she will not have resided within District 15B for six months immediately preceding the special election on December 27, 2005.

In essence, Ek argues that the evidence of her intent to establish residence in St. Cloud and of her physical presence there before June 27, 2005, outweighs the contrary evidence of continued residence at the Niles Avenue home after that date. There is certainly uncontroverted evidence of Ek’s physical presence in St. Cloud before June 27, and there is testimony of Ek and her parents that Ek intended to change her residence from St. Paul to St. Cloud. If that evidence were counterbalanced by nothing more than evidence that Ek occasionally visited or stayed at the Niles Avenue home, it is very possible we would find, as we did in several of the 2002 cases, that the petitioner’s heavy burden had not been met.

But here, there is more. The Home Occupation Affidavit signed by Ek on July 9 repeatedly references the requirement of residency. In that one-page document, in addition to the declaration that “I reside” in the subject dwelling, the document references “resident,” “residency,” or “residential purposes” at least seven times. Although Ek contends that she did not read or understand the document she signed, she presents no sound basis on which we can overcome the referee’s credibility determinations in this respect. The affidavit, coupled with the objective and impartial testimony of the LIEP inspector and supported by the observations of the St. Paul neighbors, is strong evidence of residency in St. Paul into July 2005. Ek counterbalanced that evidence only with her own testimony and that of her parents, which the referee found not credible.

The record fully supports the referee’s findings. We conclude that petitioner did satisfy his heavy burden to establish that Ek did not reside in District 15B for the six months immediately preceding the December 27 special election. Ek was therefore not eligible to run for state legislative office in that district at the December 27 special election.

Petition granted.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ANDERSON, G. BARRY, Justice

(concurring).

I join in the majority opinion but write separately because of concerns regarding the appropriate level of deference to the referee’s findings. I begin with the observation that this court has original, rather than appellate, jurisdiction in cases challenging the residency of candidates for election to the Minnesota Legislature. See Minn.Stat. § 204B.44 (2004).

As the majority notes, we have previously indicated that we will defer to a referee’s findings of fact and credibility determinations in these cases. See Piepho v. Bruns, 652 N.W.2d 40, 44-45 (Minn.2002); Lundquist v. Leonard, 652 N.W.2d 33, 37 (Minn.2002). These decisions, however, relied on prior cases over which we exercised appellate, not original, jurisdiction. See Bell v. Gannaway, 303 Minn. 346, 347-48, 227 N.W.2d 797, 800 (1975) (appeal from district court); Nelson v. O’Neil Amusements, 274 Minn. 555, 555, 142 N.W.2d 647, 647 (1966) (appeal from decision of the Industrial Commission).

We have not discussed in any detail what deference, if any, we should grant to a referee’s factual findings in a dispute involving a residency challenge to a candidate seeking election, or reelection, to the Minnesota Legislature. While it seems not unreasonable to defer to the “credibility” findings of the referee, and we have so held in fairly summary fashion, these actions are unlike any other proceeding considered by this court. Discovery is limited and sometimes impossible to conduct. There are enormous time pressures and media firestorms surrounding these disputes can and do occur. And there are external pressures in residency litigation as well, including the probability that the interested parties in the litigation are not limited to a “voter” challenging a “candidate,” and the results of a decision in these cases can be far-reaching.

Given the nature of actions brought under Minn.Stat. § 204B.44, I believe the better approach is that taken by the United States Supreme Court. In cases over which the Court exercises original jurisdiction, the Court can appoint a special master who hears evidence and makes recommendations to the Court. See Colorado v. New Mexico, 467 U.S. 310, 313, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). The Court conducts an “independent review” of the record, however, “because ‘the ultimate responsibility for deciding what are correct findings of fact remains with [the Court].’ ” United States v. Maine, 475 U.S. 89, 98, 106 S.Ct. 951, 89 L.Ed.2d 68 (1986) (quoting Colorado, 467 U.S. at 317, 104 S.Ct. 2433).

The evidence was overwhelming, and well summarized and analyzed by the referee, that the candidate did not meet the constitutional residency requirement, and thus, because it is not necessary to resolve what deference, if any, to grant the referee’s credibility finding, I join the majority opinion. But while, in many cases, we might very well agree with the credibility determination of a referee in residency litigation, I do not believe we should adopt deference as the legal standard to be applied to all such disputes.

      . District 15B is located in parts of Benton, Sherburne, and Stearns Counties.

      . Because only one candidate filed for each office from each participating party, no primary election was needed. Minn.Stat. § 204D.20, subd. 2 (2004).

      . Petitioner named Mary Kiffmeyer, Secretary of State, and the County Auditors/Treasurers of the three counties in which District 15B is located as respondents. We ordered petitioner to serve Ek and granted her subsequent motion to intervene.

      . Article IV, section 6, provides, “Senators and representatives shall be qualified voters of the state, and shall have resided one year in the state and six months immediately preceding the election in the district from which elected.”

      . According to petitioner, under Minn.Stat. § 204D.23, subd. 2 (2004), the last day for filing affidavits of candidacy was December 6, seven days before the scheduled special primary date of December 13. He contends the earlier date contained in the writ of election was incorrect. Section 204D.23, subdivision 2, does provide that "the affidavits and petitions shall be filed no later than the seventh day before the special primary.” Arguably, the governor can set a filing deadline earlier, which would still result in filings that comply with the "no later than” deadline of the statute. We need not decide the limits of the governor’s authority in this case.

      . Melendez, 654 N.W.2d 114; Piepho, 652 N.W.2d 40; Olson, 652 N.W.2d 37; Lundquist v. Leonard, 652 N.W.2d 33 (Minn.2002).

      . We note, in addition, that the LIEP inspector sent Ek a letter dated July 6, 2005, confirming their telephone conversation about the complaint and the requirements for a home occupation. Enclosed with the letter was a document that detailed the same residency requirements for a home occupation that were described on the affidavit form.


source: Caselaw Access Project

author: RANDALL, Judge. TOUSSAINT, Chief Judge

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Scott Allen AMUNDSON, Appellant.
    No. A04-2072.
    Court of Appeals of Minnesota.
    April 11, 2006.

      Mike Hatch, Attorney General, Mary R. McKinley, Assistant Attorney General, St. Paul, MN; and Gordon L. Moore, III, Nobles County Attorney, Worthington, MN, for respondent.
    Dennis J. Rutgers, Rushford, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; TOUSSAINT, Chief Judge; and RANDALL, Judge.
   OPINION

RANDALL, Judge.

In this appeal from convictions and a sentence for first- and fifth-degree controlled substance crime, appellant argues that the warrant authorizing the search of his house was not supported by probable cause and that the search-warrant application did not contain sufficient information supporting the no-knock and nighttime provisions of the warrant. Appellant also argues that the enhancement of his sentence under the firearm-enhancement statute violated his Sixth Amendment rights under Blakely. We conclude that the information supporting the no-knock and nighttime provisions in the search warrant was illegally obtained. Reversed and remanded.

FACTS

On September 17, 2003, while investigating a car crash, a Nobles County sheriff and a state trooper went to appellant Scott Amundson’s house in search of an injured motorist they believed to have been dropped off there. The police announced their presence and knocked on the door. No one answered, and the door was locked, apparently from the inside. Because they believed that the injured motorist might be inside the house but unable to answer the door, the police forced the door open and entered the house. Police observed several firearms and open boxes of ammunition. They did not find the injured motorist and left the house. While the police were outside, Amundson exited the house and met the officers in the yard. He told the police that the injured motorist was not there, but the police still handcuffed Amundson and went back inside the house. Amundson did not resist the police or act in a threatening manner. The police later found the injured motorist at a house on nearby acreage.

One week later, on September 24, 2003, Amundson’s estranged wife, M.A., reported to the police that a rock had been thrown though her kitchen window. M.A. told police that she and Amundson had been separated for about one year, that during that year Amundson had harassed her on multiple occasions, that she thought that Amundson had thrown the rock, and that two days before the rock incident, Amundson had left several threatening messages on her voicemail. The next day, M.A. filed a petition for an order for protection against Amundson. A Nobles County deputy attempted to serve Amund-son with the order that evening. Amund-son was not home, but the deputy located him at a house nearby and served him with the order for protection. Again, at no time did Amundson present danger to the deputy.

On September 27, 2003, a Nobles County sheriff stopped a vehicle and learned from the driver and passenger that Amundson believed that he was in trouble with the law. The driver said that they were going to Amundson’s house to pick up Amundson’s dog.

Later that day, a Nobles County deputy applied for a warrant to search Amund-son’s house and arrest Amundson on charges of terroristic threats and felony pattern of harassment. The application stated that police were looking for firearms, destructive devices, and weapons; cell phones, cell phone records, and house phone records; and documents showing that Amundson owned the house. The application requested a no-knock and a nighttime warrant for officer safety.

The district court issued the requested warrant, and police executed the warrant at 1:30 am. without announcing their presence. While executing the warrant, officers found evidence of a methamphetamine lab. Amundson was charged with first-degree controlled substance crime, in violation of Minn.Stat. § 152.021, subd. 2a (2002); conspiracy, in violation of Minn. Stat. § 152.096, subd. 1 (2002); fifth-degree controlled substance crime, in violation of MinmStat. § 152.025, subd. 2(1) (2002); and possession of a small amount of marijuana, in violation of Minn.Stat. § 152.027, subd. 4(a) (2002). After the district court denied his motion to suppress the evidence seized in the search, Amundson agreed to waive his right to a jury trial and submit the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). In consideration for his waiver, the state dismissed the conspiracy and possession-of-a-small-amount-of-marijuana charges.

The district court found Amundson guilty of first- and fifth-degree controlled substance crime. The presumptive sentence for both of these convictions is 13 months stayed. Because the district court found that Amundson was in possession of firearms when he committed the offenses, the district court applied the firearm-enhancement statute and imposed the mandatory minimum 36-month sentence. Amundson’s appeal from his convictions and his sentence follows.

ISSUES

1. Did the district court err by concluding that search-warrant application provided sufficient information supporting the no-knock, nighttime search warrant?
2. Does appellant’s sentence violated his Sixth Amendment rights under Blakely?

ANALYSIS

I.

Amundson first argues that the district court erred by denying his motion to suppress the evidence obtained during the September 29, 2004 search. He argues that there was no probable cause to issue the search warrant and that the no-knock and nighttime provisions were not supported by sufficient or legally obtained information.

The United States and Minnesota constitutions provide that no warrant shall issue without a showing of probable cause. U.S. Const. Amend. IV; Minn. Const, art. I, § 10. Generally, a search is lawful only if it is executed under a valid search warrant issued by a neutral and detached magistrate upon a finding of probable cause. Minn.Stat. § 626.08 (2002); State v. Harris, 589 N.W.2d 782, 787 (Minn.1999). To determine whether probable cause exists, the issuing magistrate must make a practical, commonsense decision whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).

We review a search-warrant application to determine whether the issuing magistrate had a “substantial basis” to conclude that probable cause exists. State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995) (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332). But we will not review each component of the search-warrant application and affidavit in isolation but must determine the sufficiency of the application from its totality. Wiley, 366 N.W.2d at 268. A magistrate has a substantial basis when there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (quotation omitted). We give great deference to the issuing magistrate’s probable-cause determination. State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001).

Here, the search-warrant application provides a substantial basis for the issuing magistrate to conclude that probable cause exists. It describes the September 24 incident and contains excerpts from the messages left on M.A.’s voicemail in which Amundson threatened to hurt M.A. The search-warrant application lists the items believed to be at Amundson’s house and explains their connection to terroristic-threat and felony-pattern-of-harassments charges. We conclude that the search-warrant application, when viewed in its totality, provided a reasonable basis for the issuing magistrate to conclude that probable cause exists.

The search warrant provisions authorizing a no-knock and a nighttime search of Amundson’s house is the issue. We independently determine whether evidence obtained during a search conducted with a no-knock warrant should be suppressed. State v. Wasson, 615 N.W.2d 316, 320 (Minn.2000). When reviewing a determination that an unannounced entry is warranted, the standard of review is reasonable suspicion, not probable cause. Id. Although the United States Supreme Court has stated that this showing “is not high,” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1422, 137 L.Ed.2d 615 (1997), a request for a no-knock provision must be based on more than an unar-ticulated hunch. Wasson, 615 N.W.2d at 320. The application “must point to something that objectively supports the suspicion at issue.” Id. Boilerplate language that an announced entry would be dangerous is insufficient. Id. Failure to supply the necessary supportive facts for a no-knock provision will nullify the search warrant. Garza v. State, 632 N.W.2d 633, 638 (Minn.2001).

Requests for nighttime search warrants require similar support. State v. Lien, 265 N.W.2d 833, 840 (Minn.1978). Minnesota law requires that search warrants must be executed between “7:00 a.m. and 8:00 p.m. unless the court determines on the basis of the facts stated in the affidavits that a nighttime search outside those hours is necessary To prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.” Minn.Stat. § 626.14 (2002). Nighttime searches are discouraged because they generally involve “a much greater intrusion upon privacy and [are] presumably more alarming than an ordinary daytime search of a home.” Lien, 265 N.W.2d at 839-40. Section 626.14 requires that the application demonstrate by more than “bare assertions” that the warrant can only be executed successfully in the nighttime. Id. at 840.

The search-warrant application here cited boilerplate officer safety as the reason for both the no-knock and nighttime provisions. The stated concern for officer safety was based on the presence of firearms at Amundson’s house. The information regarding the presence of firearms was obtained from the warrantless entry of the house on September 17, 2003. Amundson argues that this information was illegally obtained and improperly considered by the issuing magistrate. The state argues that the September 17 warrantless entry was legal under the emergency exception to the warrant requirement.

Under the emergency exception to the warrant requirement, police may make a warrantless entry and search a home when they reasonably believe that a person within is in need of immediate aid. State v. Halla-Poe, 468 N.W.2d 570, 572 (Minn.App.1991) (citing Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978), and State v. Terrell, 283 N.W.2d 529, 532 (Minn.1979)). The officers that entered Amundson’s house were investigating a car crash and had information that a wounded motorist was there. The state argues that the police were concerned that the motorist might not be able to answer the door because of his injuries and that a warrant-less entry was therefore required.

The state’s argument is dubious. We cannot think of a reason why, if the injured motorist was present at Amund-son’s house, the door would be locked. Presumably, the injured motorist or Amundson would have called for the appropriate help and waited. If the injured motorist was not well enough to drive, presumably he would have had Amundson drive him to medical help or call another friend. Someone coming into someone else’s house injured does not normally think, “Oops, I’d better lock the door.” It is worthy of note that the police do not claim that the “injured motorist” was suspected of being a fleeing felon and that they were in “hot pursuit.” If that were the record, that would provide a legitimate reason for their entry and explain the door locked from the inside. We do not have those facts. The state’s reliance on the emergency exception to the warrant requirement is pure speculation. We conclude the information regarding the presence of firearms at Amundson’s house was not legally obtained and thus not available for consideration in the search-warrant application.

Moreover, the affidavit indicates that police encountered Amundson twice in the days prior to executing the search warrant. The first encounter happened at Amundson’s house after the warrantless entry. A second encounter occurred a week later, after the criminal conduct directed toward his estranged wife. On that day, a deputy, with full knowledge of Amundson’s alleged violent conduct, went to his home during the day to attempt service of the order for protection. Although Amundson was not home, the deputy found him nearby and served the order without incident. Neither encounter involved any violence on Amundson’s part or compromise to officer safety. It is disingenuous to argue that officer safety was a serious concern necessitating no-knock and nighttime provisions.

In light of the recent peaceful encounters with Amundson and without the information regarding the presence of firearms, the search-warrant application has no particularized showing of dangerousness. The application fails to point to something that objectively supports concern for officer safety. We find the no-knock and nighttime provisions in the search warrant are invalid. The search executed on that warrant was unauthorized and the evidence seized must be suppressed.

II.

Amundson also argues that his sentence violates his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the district court applied the firearm-enhancement statute and imposed the mandatory minimum sentence of 36 months. Because we reverse Amund-son’s convictions, we need not reach the merits of this issue. But we note that Blakely applies to Lothenbach trials and that a Lothenbach stipulation does not waive the right to a jury trial on aggravating factors that might be used for sentencing. State v. Johnson, 689 N.W.2d 247 253-54 (Minn.App.2004), review denied (Minn. Jan. 20, 2005). Because the firearm-enhancement statute “authorizes the district court to make an upward durational departure upon finding a sentencing factor without the aid of a jury or admission by the defendant,” any sentence enhanced under that statute based on judicial findings would be unconstitutional. See State v. Barker, 705 N.W.2d 768, 773 (Minn.2005).

DECISION

Because the information supporting the no-knock and nighttime provisions in the search warrant was illegally obtained, the search was unauthorized and evidence seized in Amundson’s house must be suppressed. The state can, if they wish, attempt to recharge Amundson without the offending evidence.

Reversed and remanded.

TOUSSAINT, Chief Judge

(dissenting).

I respectfully dissent. When reviewing the sufficiency of a search-warrant application, we use a totality-of-the-circumstances test. State v. Albrecht, 465 N.W.2d 107, 108-09 (Minn.App.1991). “[CJourts must be careful not to review each component of the affidavit in isolation.” Id. at 109. And although we review de novo a district court’s decision to admit evidence over a defendant’s motion to suppress, we generally give great deference to the issuing magistrate’s decision to include no-knock and nighttime provisions in a search warrant. State v. Martinez, 579 N.W.2d 144, 146 (Minn.App.1998), review denied (Minn. July 16, 1998). . Given the totality of the circumstances and the presence of firearms, I conclude that the search-warrant application sufficiently supports the request for no-knock and nighttime provisions. I would affirm the district court’s denial of Amundson’s motion to suppress.


author:
COLLINS, Judge.
     MINGE, Judge

text:
    In the Matter of the Disposition of MOLLY, a German Shorthaired Pointer Owned by William Frederick Klumpp, Jr.
    No. A05-1130.
    Court of Appeals of Minnesota.
    May 2, 2006.

      Thomas F. Pursell, Lindquist & Ven-num, P.L.L.P., Minneapolis, MN, for appellant William Frederick Klumpp, Jr.
    Jerome P. Filia, Peterson, Fram & Bergman, St. Paul, MN, for respondent City of Arden Hills.
    Considered and decided by MINGE, Presiding Judge; RANDALL, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge.

Appellant challenges the district court’s order designating his dog a “dangerous dog” under Minn.Stat. § 347.50, subd. 2(2) (2004). Because we conclude that (1) respondent lacked legal authority to bring an action under the statute and (2) it cannot be concluded from the record that appellant’s dog “killed” the other dog within the plain meaning of the statute, we reverse the designation.

FACTS

Appellant William Frederick Klumpp, Jr., owns Molly, a German shorthaired pointer that weighs approximately 60 pounds. On the afternoon of October 24, 2004, Molly escaped from her kennel in the yard of Klumpp’s Arden Hills home and ran onto a neighboring property belonging to Paul and Linda Mertensotto, who were in the yard with their six-pound dog, Scooter. Molly grasped Scooter by the head with her mouth and shook her back and forth. After extricating Scooter from Molly, the Mertensottos took her to the University of Minnesota Veterinary Clinic. The examining veterinarian’s report states that upon arrival, Scooter had “severe head trauma,” was “almost comatose,” and was hemorrhaging from the mouth and nose. The report further states that when the veterinarian “requested permission [to insert an] IV catheter to begin stabilization [the Mertensottos] declined and elected for euthanization.”

After the Mertensottos reported the incident, the City of Arden Hills (Arden Hills) moved the district court for an order requiring Klumpp to appear and show cause why Molly should not be designated a dangerous dog under MinmStat. § 347.50, subd. 2(2) (2004). The district court issued the show-cause order.

At the hearing, Arden Hills acknowledged that its city code does not provide for a dangerous-dog designation and that it had not adopted any procedure to enforce the statutory dangerous-dog provision, which is not by its terms self-executing. Arden Hills explained' that it was proceeding along the lines set forth in its vicious-dog ordinance, which provides that when the city seeks to have a dog declared “vicious,” it “shall petition the appropriate court for a summons directing the owner of the dog to appear before the court to show cause why” the declaration is inappropriate. Arden Hills, Minn., City Code § 410.06, subd. 1, (2002).

The district court determined that Arden Hills’s decision to enforce the statute by adopting the procedure in the vicious-dog ordinance was procedurally sound. The court then found that “Scooter died as a result of the wounds inflicted by Molly” and concluded that because she had killed Scooter without provocation while off of Klumpp’s property, Molly must be designated a “dangerous dog” under Minn.Stat. § 347.50, subd. 2(2), compelling Klumpp to comply with the statutory registration and restriction requirements or give up Molly. This appeal follows.

ISSUES

1. Did respondent City of Arden Hills act within its authority in bringing an action to enforce MinmStat. § 347.50 (2004)?

2. Did Molly “kill” Scooter within the meaning of Minn.Stat. § 347.50, subd. 2(2)?

ANALYSIS

I.

In disputing the district court’s order, Klumpp contends that Arden Hills’ effort to have Molly declared dangerous under MinmStat. § 347.50 (2004) constituted an inappropriate exercise of municipal authority because Arden Hills has never incorporated that statute into its code of ordinances and because neither the statute nor any Arden Hills ordinance sets out an enforcement procedure for dangerous-dog declarations. We agree.

Minnesota Statutes chapter 347 — titled “Dogs and Cats” — establishes procedures for enforcing certain of its provisions. See, e.g., Minn.Stat. §§ 347.04, .15 (2004) (describing procedure for having a dog declared a public nuisance and procedure whereby individuals whose domestic animals are killed by a dog may recover damages from the dog’s owner). A dangerous dog is defined under MinmStat. § 347.50, subd. 2(2), as a dog that has “killed a domestic animal without provocation while off the owner’s property.” That designation requires the owner to register the dog and pay an annual fee of up to $500; purchase and maintain a surety bond or liability insurance of at least $50,000; confine the dog in a proper enclosure; muzzle, leash, and restrain the dog while at any place outside the proper enclosure; and comply with other requirements of the statute. Minn.Stat. §§ 347.51, subds. 2(2), (3), .52(a) (2004). But the statute does not establish a procedure by which a dog may be declared dangerous and is, therefore, not self-executing as to such a declaration. See Davis v. Burke, 179 U.S. 399, 403, 21 S.Ct. 210, 212, 45 L.Ed. 249 (1900) (observing that self-executing provisions supply “a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced” and that provisions that “merely indicate[] principles, without laying down rules by means of which those principles may be given the force of law,” are not self-executing (quotation omitted)). It is undisputed that Arden Hills has not incorporated or adopted the dangerous-dog statute or otherwise promulgated a procedure for its enforcement by ordinance, as have other cities seeking to enforce provisions of chapter 347. See, e.g., St. Paul, Minn., Legislative Code § 200.12, .121 (2005) (defining “dangerous animal” and setting forth procedure for dangerous-animal designation); see also Davis, 179 U.S. at 403, 21 S.Ct. at 212 (recognizing that when a provision is not self-executing, “legislation is essential” for its enforcement).

Arden Hills argues that the legislature, in section 347.53, gives cities “the power to enforce the dangerous dog statute.” But section 347.53 authorizes cities to “regulate potentially dangerous dogs,” a statutory category expressly separate from and exclusive of “dangerous dogs.” See Minn. Stat. § 347.50, subds. 2, 3 (defining “dangerous dog” and “potentially dangerous dog”). Moreover, the issue raised by Klumpp’s assertion that Arden Hills acted outside its authority in enforcing the statute is not whether Arden Hills has the general authority to regulate dangerous dogs; Klumpp concedes that it does, provided it adopts the statute and a procedure that complies with due process. Rather, the issue is whether Arden Hills may enforce the statute without first adopting it or promulgating procedures for its enforcement.

The cases cited by Arden Hills in support of its argument that it is inherently authorized to enforce an unadopted statute — City of St. Paul v. Whidby and Park v. City of Duluth — are inapposite because they address substantive conflicts between municipal and state laws, not the municipal authority to enforce a state law in the absence of any codified enforcement procedure. Whidby, 295 Minn. 129, 136, 203 N.W.2d 823, 827 (1972); Park, 134 Minn. 296, 298, 159 N.W. 627 (1916). The Whid-by court, commenting on the authority of municipal corporations to regulate various activities, held that municipalities’ “legislative authority is conferred upon them by the constitution and the laws of the state and, ‘as to matters of municipal concern they have all the legislative power possessed by the Legislature of the state, save as such power is expressly or impliedly withheld.’ ” 295 Minn. at 136, 203 N.W.2d at 827 (quoting Park, 134 Minn. at 298,159 N.W. at 628). This language gives municipalities broad subject-matter legislative authority but does not of itself ordain the enforcement of unadopted statutes.

Arden Hills also cites State v. Dailey for the proposition “that statutes and ordinances on the same subject are intended to be coexistent.” 284 Minn. 212, 215, 169 N.W.2d 746, 748 (1969). True; but the issue before us is not the breadth of regulatory jurisdiction. Instead, the issue calls into question Arden Hills’s authority to enforce state statutes that are not self-executing; i.e., statutes that must be implemented and enforced by local agencies, in this case animal-control authorities. Arden Hills points to no authority supporting the proposition that it may enforce unadopted, non-self-executing statutory provisions absent an implementing ordinance.

We therefore hold that because neither chapter 347 nor any Arden Hills ordinance contains an enabling procedure addressing dangerous-dog designations, and because Arden Hills has never adopted or promulgated such a procedure, Arden Hills exceeded its municipal authority by bringing the action against Klumpp for enforcement of the dangerous-dog statute.

II.

Furthermore, even if Arden Hills was authorized to proceed under the statute, the district court’s designation of Molly as a “dangerous dog” must be reversed because the factual record does not support the conclusion that Molly “killed” Scooter within the plain meaning of Minn. Stat. § 347.50, subd. 2(2). We review the district court’s construction of a statute de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

In interpreting and construing statutory language, our goal is to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004). The words and phrases of statutes must be construed according to their common meaning unless they have otherwise acquired a technical or special meaning. Id. at § 645.08(1) (2004). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Id. at § 645.16. ‘Where the intention of the legislature is clearly manifested by plain unambiguous language ... no construction is necessary or permitted. Thus, prior to consideration of legislative history, a determination that [the statute under consideration] is ambiguous is necessary.” Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995) (citation omitted). A reviewing court may not read ambiguity into an otherwise clear statute under the guise of statutory interpretation. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986).

When interpreting a statute, we first determine whether the' statute’s language, on its face, is ambiguous. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). A statute is ambiguous only when its language is subject to more than one reasonable interpretation. Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999). Here, section 347.50, subdivision 2(2), defines a “dangerous dog” as a dog that has “killed a domestic animal without provocation while off the owner’s property.” The statute does not define “killed,” or any variation of the verb “kill,” and the word has no special or technical meaning; nor is it ambiguous. We therefore look to its plain meaning: “To put to death” or “[t]o deprive of life.” The American Heritage College Dictionary 762 (4th ed. 2002). Therefore, Molly killed Scooter within the meaning of the statute only if Molly deprived the other dog of life, or, as the district court found, if “Scooter died as a result of the wounds inflicted by Molly.”

It is undisputed that Scooter was badly injured by Molly during the attack, but she was not dead then or upon arrival at the veterinary clinic. The Mertensottos’ election to order euthanasia precluded even basic medical treatment beginning with the attempt to stabilize Scooter’s condition, as suggested by the veterinarian, and her possible recovery. That is not to criticize the Mertensottos’ heart-rending decision; indeed, it may be that the gravity of Scooter’s condition was more apparent to them at the time than is revealed in or can reasonably be inferred from the limited record before us. However, the statute’s plain language requires the direct causal connection between the act of the attacking dog and its victim’s death. Therefore, in order to determine that Molly killed Scooter within the meaning of the statute, record evidence must permit conclusions that death was the direct and inescapable consequence of the attack; that the attack rendered medical assistance futile; and that euthanasia merely hastened Scooter’s inevitable, imminent death.

Whether that is the case or not cannot be known. The record before us is not sufficiently developed to permit such conclusions. Arden Hills argues that “[t]he wounds inflicted upon Scooter were so severe that the Mertensottos were forced to euthanize Scooter.” But the record is void of fact or opinion evidence — from the veterinarian or otherwise — to support that assertion or to support any determination that routine medical attention was futile and that Scooter’s death was the natural or inevitable result of the attack. Whether Scooter would have survived with the immediately available medical attention or that she surely would have died without it cannot be determined from the record. But the district court’s legal conclusion that Molly killed Scooter within the meaning of the statute requires a factual finding that Scooter would certainly have died despite the offered medical intervention and that Scooter’s death was thus directly attributable to the attack. No such factual finding was made or would have been supported by record evidence. We therefore must hold, on the record presented, that the district court erred in its legal conclusion that Molly had killed a domestic animal within the plain meaning of Minn.Stat. § 347.50, subd. 2(2).

In light of our decisions on the issues of the authority of Arden Hills to enforce the dangerous-dog provisions of chapter 347 and the district court’s interpretation of section 347.50, subdivision 2(2), we do not address the other issues Klumpp raises.

DECISION

Because Arden Hills acted without authority to enforce chapter 347, and because the record does not support the conclusion that Klumpp’s dog killed a domestic animal within the plain meaning of Minn.Stat. § 347.50, subd. 2(2) (2004), we reverse the order of the district court designating Klumpp’s dog a “dangerous dog” under the statute.

Reversed.

MINGE, J., files dissenting opinion.

MINGE, Judge

(dissenting).

I respectfully dissent. With respect to whether Molly killed Scooter, I agree the record is sparse. However, it indicates that Linda Mertensotto is a nurse and that she and her husband concluded that Scooter was so badly injured that the most humane treatment was euthanization. The veterinarian noted that Scooter was almost comatose and offered what could be viewed as heroic measures. This was sufficient evidence for the district court to conclude that Molly’s attack killed Scooter.

I also dissent from the holding that Arden Hills acted without authority in enforcing Minn.Stat. § 347.50, subd. 2(2) (2004), for several reasons. First, this section and the subchapter of which it is a part (Minn.Stat. §§ 347.50-.56 (2004)) set a baseline for dealing with dangerous dogs on our state. See Minn.Stat. §§ 347.51, subd. 1. (“No person may own a dangerous dog in this state unless.... ”), .515 (“The owner of a dangerous or potentially dangerous dog must have a microchip implanted.... [A]ll costs related to ... the microchip must be borne by the dog’s owner.”); .52 (stating that the owner of a dangerous dog must do certain things); .54 (stating that confiscation of dangerous dogs is required under certain circumstances); .55 (providing misdemeanor penalties for certain violations of earlier sections). The definitional provisions of Minn.Stat. § 347.50 are crucial to those preceding provisions. To say that the mandatory or “shall” provisions of those sections are a nullity in the state of Minnesota, absent the adoption of an ordinance or other quasi-legislative action by local governments, nullifies the legislature’s will in enacting these provisions.

Second, when implementing or further action is expected by this dangerous-dog subchapter, the subchapter acknowledges such action. See Minn.Stat. §§ 347.51, subds. 3 (county may charge a fee); 7 (commissioner of public safety shall by rule provide for the design of a dangerous-dog tag); 8 (certain ordinances void); and .53 (local governments may regulate potentially dangerous dogs). These provisions suggest that the mandatory or “shall” provisions of the subchapter are intended to be effective and self-executing.

Third, the subchapter contains substantial detail with respect to dangerous dogs, and potentially dangerous dogs are not so addressed. This suggests that the core, mandatory dangerous-dog provisions should be self-executing. See Minn.Stat. §§ 347.50 (definitions); .51, subd. 2 (registration of dangerous dogs); § 347.52 (keeping dangerous dogs); and .54 (confiscation of dangerous dogs).

Fourth, although the caselaw is sparse on the issue of whether statutes are self-executing, the caselaw does not mandate a level of specificity for a statute to be self-executing. See 2A Eugene McQuillin, Municipal Corporations § 10.30 (3d ed. 1996). Clearly, a general listing of municipal powers indicates a need for an implementing ordinance. Id. However, where the question is whether enough is said about the mode of enforcement, there does not appear to be a requirement that the legislature address all details. In fact, there is invariably some detail that is always lacking. The variety of circumstances in which cases arise is so unpredictable that it is unrealistic to expect such detail in statutes, regulations, or ordinances. Those administering the law must fill in some details. Unless the missing details go to the core of the statute and cannot be fairly supplied in its administration, we should avoid holding the legislature and municipalities to too exacting a standard before we cooperate with enforcement.

Fifth, to require local units of government to develop ordinances on dangerous dogs when the legislature has addressed the topic in the detail present in this sub-chapter places a substantial burden on counties and cities. We have 87 counties and more than 900 cities, many with modest populations and resources. It may be manageable for larger cities and most counties to develop dangerous-dog ordinances; however, for the smaller communities it is yet another task that requires the assistance of legal counsel. Local government is responsible for myriad matters. When a statute indicates a determination to address a problem and provides significant detail, we should not place a burden on local government to choose between investing in the development of an ordinance and leaving the subject area unaddressed. That is the result of our holding in this case.

Finally, Klumpp asserts that he was not afforded due process. Arden Hills used an order-to-show-cause procedure to notify Klumpp of its intent to proceed to classify Molly a dangerous dog. A hearing was scheduled before a district court judge on the merits. There is clearly compliance with the requirements of procedural due process. See Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976).

Based on the foregoing considerations, I would affirm.

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


author: PER CURIAM.

text:
    2006 ND 73
    In the Matter of the APPLICATION FOR REINSTATEMENT OF Charles T. EDIN. Charles T. Edin, Applicant, v. Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent.
    No. 20060102.
    Supreme Court of North Dakota.
    April 13, 2006.
   REINSTATEMENT ORDERED

PER CURIAM.

[¶ 1] Charles T. Edin was admitted to the practice of law in the State of North Dakota on April 16, 1984. Edin was placed on interim suspension effective September 24, 2003, and until further order of the Court. See Disciplinary Board v. Edin, 2003 ND 152, 669 N.W.2d 118. Subsequently, Edin was placed on suspension beginning with his September 24, 2003, interim suspension to June 7, 2005, the date of the opinion in Disciplinary Board v. Edin, 2005 ND 109, 697 N.W.2d 727.

[¶ 2] On December 15, 2005, Edin filed an Application for Reinstatement with the Disciplinary Board. A Stipulation of Facts, letter from the complainants, and Affidavit of Costs and Expenses were filed, and the matter was assigned to a Hearing Panel. The Hearing Panel filed its Report on April 5, 2006, recommending that Edin be reinstated to the practice of law, and that he pay the costs and expenses of the reinstatement proceedings in the amount of $510. The matter was referred to the Supreme Court under N.D.R. Lawyer Dis-cipl. 4.5.

[¶ 3] In its Report, the Hearing Panel considered the following factors in N.D.R. Lawyer Discipl. 4.5(F), relating to qualifications for reinstatement:

A. Fitness and Competence to Practice Law. Edin has substantial experience in the practice of law. Although his ethics have previously been called into question, his skills as a lawyer are not in question. He has the requisite fitness and competence to practice law.
B. Compliance with Disciplinary Orders. Edin has paid all costs associated with the disciplinary proceeding. Thus, he has complied with, the terms and conditions of all applicable disciplinary orders and rules.
C. Unauthorized Practice of Law. Edin has not engaged in the unauthorized practice of law during his suspension. There is no indication and Disciplinary Counsel has not pointed out any instances of the unauthorized practice of law during the period of suspension.
D. Recognizing the Wrongfulness of the Conduct. Edin recognizes the wrongfulness and seriousness of the misconduct for which he was suspended.
E. No Further Misconduct. It does not appear that there have been any further indications of misconduct during the period of suspension.
F. Requisite Honesty and Integrity to Practice Law. It appears that Edin has learned from this experience and will maintain an awareness of the ethical requirements of the Rules of Professional Conduct.

[¶ 4] Edin has paid the costs and expenses of the reinstatement proceedings in the amount of $510.

[¶ 5] ORDERED, the Report of the Hearing Panel is ADOPTED.

[¶ 6] FURTHER ORDERED, Charles T. Edin is reinstated to the practice of law in the State of North Dakota effective immediately.

[¶ 7] GERALD W. VANDE WALLE, C.J., DALE V.' SANDSTROM, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

[¶ 8] Justice CAROL RONNING KAPSNER, deeming herself disqualified, did not participate in this decision.


author: CROTHERS, Justice.

text:
    2006 ND 75
    John L. GUSTAFSON, Petitioner and Appellant, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Respondent and Appellee.
    No. 20050390.
    Supreme Court of North Dakota.
    April 19, 2006.
    Damian J. Huettl (argued) and Gregory C. Larson (on brief), Wheeler Wolf, Bismarck, N.D., for petitioner and appellant.
    Jean R. Mullen, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appellee.
   CROTHERS, Justice.

[¶ 1] John L. Gustafson appeals from a district court judgment affirming the decision of the Department of Human Services (“the Department”)’ that he is ineligible for Medicaid medical assistance. We reverse and remand with instruction.

I

[¶ 2] Mr. Gustafson was admitted to a full-time skilled nursing care facility on September 4, 2003. The next day, Mr. Gustafson’s wife purchased a single premium annuity for $50,000. The irrevocable, unassignable, and nontransferable annuity had no cash value and could not be surrendered or commuted. The annuity was to be paid out in 90 monthly installments of $576.78 over seven and one-half years. At the time of purchase, Mrs. Gustafson was 82 years and 11 months old. The Department’s life expectancy tables presumed an average life expectancy is 8.06 years for an 82-year-old woman and 7.56 years for an 83-year-old woman. Medicaid Policy Manual § 510-05-100-75.

[¶ 3] Mr. Gustafson applied for Medicaid benefits on November 25, 2003. The Department questioned whether he satisfied the financial requirements. The Department was particularly concerned with whether Mrs. Gustafson would survive the annuity’s seven and one-half year term in spite of her medical history and numerous diagnoses, including Alzheimer’s disease, congestive heart failure, diabetes, multiple heart surgeries, and placement in a nursing home. The Department determined the annuity was not actuarially sound; that is, Mrs. Gustafson could not reasonably be expected to receive all annuity payments within her lifetime. Therefore, Mr. Gustafson was denied benefits on the basis that his total household assets of $81,619 (including the $50,000 annuity) exceeded the maximum allowable amount of $46,725 (the sum of Mr. Gustafson’s $3,000 personal exemption and Mrs. Gustafson’s $43,725 community spouse allowance). Mr. Gustafson appealed.

[¶ 4] A hearing was held before an Administrative Law Judge (“ALJ”), whose findings were reviewed and adopted in part by the Department. The Department’s order found the annuity was not “actuarially sound” and was properly considered an available asset in Mr. Gustaf-son’s Medicaid eligibility calculation. Mr. Gustafson appealed to the district court, which affirmed the Department’s order.

[¶ 5] Mr. Gustafson now appeals to this Court, arguing the annuity was “actuarially sound.” In the alternative, he argues the Department erred in failing to disclose a life expectancy for his wife and should not have considered the entire annuity an available asset.

II

[¶ 6] The standard of review for an appeal from the decision of an administrative agency is well-established. The appeal is first made to the district court, which must affirm the decision unless it is determined that:

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 [Chapter 28-32] 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.

N.D.C.C. § 28-32-46. This Court reviews the underlying decision of the administrative agency in the same manner. N.D.C.C. § 28-32-49. Questions of law are fully renewable. Wahl v. Morton County Social Servs., 1998 ND 48, ¶ 4, 574 N.W.2d 859. This Court does not make independent findings of fact or substitute its judgment for that of the agency, but determines “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.” Estate of Pladson v. Traill County Social Servs., 2005 ND 213, ¶ 9, 707 N.W.2d 473.

Ill

[¶ 7] The issues brought on appeal include whether, and if so, to what extent, Mrs. Gustafson’s annuity was a disqualifying transfer, an available asset, or a combination of the two. We are unable to reach these issues because the Department failed to disclose its estimate of Mrs. Gustafson’s reasonable life expectancy to the Gustafsons. We therefore reverse the judgment of the district court and remand, instructing the Department to determine Mrs. Gustafson’s life expectancy and reevaluate Mr. Gustafson’s Medicaid eligibility.

[¶ 8] The 2003 version of N.D.C.C. § 50-24.1-02.8(2) states, in pertinent part:

The purchase of an annuity ... is considered an uncompensated assignment or transfer of assets under section 50-24.1-02, resulting in a penalty under the applicable rules established by the [Department of [Hjuman [Sjervices unless the following criteria are met:
d. The annuity will return the full principal and interest within the purchaser’s life expectancy as determined by the [Djepartment of [Hjuman [Sjervices.

[¶ 9] Here, we are unable to determine the portion of the annuity that will not be received by Mrs. Gustafson within her reasonably estimated life expectancy because the Department failed to provide such a figure. The Department argues Mr. Gus-tafson was obligated to provide a reasonable life expectancy for his wife because each Medicaid applicant has the duty to provide information sufficient to establish his or her eligibility for benefits. See N.D. Admin. Code § 75-02-02.1-02.1. Recognizing this requirement, we see no support for the Department’s contention that Mr. Gustafson somehow failed in his burden. Mrs. Gustafson obtained a statement from her physician providing an estimate of her life expectancy, which was in accord with the Department’s life expectancy table. The physician responded to the Department’s inquiries about his estimate. Mrs. Gustafson complied with inquiries into her medical history and efforts to obtain medical records. We are not persuaded that these steps did not amount to satisfying Mr. Gustafson’s burden in establishing his eligibility.

[¶ 10] Rather, the burden of establishing a life expectancy shifted to the Department after it rejected the life expectancy set by Mrs. Gustafson’s physician. Section 50 — 24.1—02.8(2)(d), N.D.C.C., indicates an annuity is actuarially sound if it “will return the full principal and interest within the purchaser’s life expectancy as determined by the [DJepartment of [HJuman [SJervices.” (Emphasis added.) The Department’s Medicaid Policy Manual further provides:

To determine whether the expected return of an annuity is commensurate with a reasonable estimate of the beneficiaries [sic] life expectancy, use the Life Expectancy table at Appendix 0. If the annuity beneficiary suffers from a condition which is likely to cause death at an earlier age, it must be verified' by a medical statement which estimates the remaining duration of life. The estimated remaining duration of life must be used, in conjunction with the life expectancy table, to determine the comparable age for application of the life expectancy table.

Section 510-05-7(M:5(3)(a). The Department argues this provision means that after the life expectancy supplied by an applicant is rejected, the applicant must supply a second life expectancy estimate, or a third, in the hopes of eventually stumbling across a figure acceptable to the Department. This “No, guess again” interpretation is contrary to the statute requiring determination of life expectancy by the Department. Thus, the Department’s order is not in accordance with the law and must be reversed. N.D.C.C. §§ 28-32-46 and 28-32-49.

IV

[¶ 11] We do not reach the other issues brought on appeal because they are dependent on Mrs. Gustafson’s life expectancy estimate, which the Department failed to provide.

. [¶ 12] We conclude the Department’s order is not in accordance with the law. We therefore reverse the judgment of the district court and remand for an assessment by the Department of Mrs. Gustaf-son’s reasonable life expectancy and further determination of Medicaid eligibility based on Department regulations and policies.

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

      . This statute was amended substantially in 2005, but the 2003 version controls this case because of the November 2003 application for benefits.


author: MARING, Justice.

text:
    2006 ND 76
    David FLANAGAN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050226.
    Supreme Court of North Dakota.
    April 19, 2006.

      Chad Rory McCabe, Vinje Law Firm, Bismarck, ND, for petitioner and appellant.
    Lloyd Clayton Suhr, Assistant State’s Attorney, Bismarck, ND, for respondent and appellee.
   MARING, Justice.

[¶ 1] David Flanagan appeals from a judgment denying his application for post-conviction relief. We conclude Flanagan’s claim about an erroneous jury instruction is res judicata and he has failed to establish his trial counsel was ineffective. We affirm.

I

[¶ 2] Flanagan was charged with gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) for allegedly engaging in sexual contact with a person less than 15 years old, specifically a 13-year-old female complainant. The incident precipitating the criminal charge occurred on July 28, 2002, at a birthday party at a motel swimming pool when Flanagan allegedly engaged in sexual contact with the complainant. The State presented evidence the complainant was 13 years old and Flanagan inappropriately put his hand under her swimsuit bottom, on her hips and the strings of her bikini bottom, on her bikini top over her breast, under the top part of her swimsuit, and on her buttocks. The State also presented evidence Flanagan pinched the complainant’s buttocks. Flanagan claimed any touching of the complainant’s “sexual or other intimate parts” which may have occurred was accidental and was not for the purpose of arousing or satisfying his sexual desires as required by the definition of sexual contact in N.D.C.C. § 12.1-20-02(4). Without an objection by Flanagan’s trial counsel, the jury was not instructed that the sexual contact must have been with a person less than 15 years old as required by N.D.C.C. § 12.1-20-03(2)(a). A jury found Flanagan guilty of gross sexual imposition.

[¶ 3] In State v. Flanagan, 2004 ND 112, 680 N.W.2d 241, we affirmed Flanagan’s direct appeal from the conviction. Under the framework for analyzing obvious error in N.D.R.Crim.P. 52(b), we held the trial court erred in failing to instruct the jury that the complainant must have been less than 15 years old. Flanagan, at ¶ 4. We concluded, however, that under the circumstances, the erroneous instruction did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings and did not require reversal because the identity and age of the complainant was essentially undisputed and the issue at trial was whether Flanagan accidentally touched the complainant or touched her for the purpose of arousing or satisfying his sexual desires. Id. at ¶ 10. We also held Flanagan’s acquiescence in a curative instruction waived his right to complain on appeal about a question by the prosecuting attorney and precluded him from raising the issue as obvious error. Id. at ¶ 14. We further held Flanagan’s failure to raise an issue at trial about the prosecution’s claimed use of gender-based peremptory challenges precluded him from raising the issue for the first time on appeal and was not obvious error. Id. at ¶ 16.

[¶ 4] Flanagan applied for post-conviction relief under N.D.C.C. ch. 29-32.1. He claimed he was entitled to post-conviction relief because the trial court’s erroneous instruction on the elements of the offense violated N.D.C.C. § 12.1-01-03(1), which requires that no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. Flanagan also claimed his trial counsel was ineffective because counsel failed to object to the instruction about the elements of the offense, failed to investigate, interview, and subpoena potential witnesses for trial, failed to object to the prosecution’s use of gender-based peremptory challenges, and failed to preserve a request for a curative instruction.

[¶ 5] After an evidentiary hearing, the district court denied Flanagan’s application for post-conviction relief. The court concluded Flanagan’s claim about the elements of the offense was res judicata under this Court’s decision in his direct appeal. The district court concluded Flanagan’s trial counsel was not ineffective in failing to obtain an instruction on the age and identity of the complainant because the matter was res judicata and there was no reasonable probability the result would have been different with a proper instruction. The court concluded Flanagan’s trial counsel was not ineffective in failing to interview witnesses and subpoena one witness because the evidence indicated Flanagan’s trial counsel was not aware of one of the witnesses, and even if counsel had been aware of that witness, the record did not indicate the substance of that witness’s testimony and there was insufficient evidence to show that witness’s testimony would have altered the result. The court concluded Flanagan’s trial counsel was not ineffective in failing to object to the State’s use of alleged gender-based peremptory challenges because counsel’s conduct did not fall below an objective level of competence and was reasonable. The court also concluded Flanagan’s trial counsel was not ineffective in failing to preserve an objection to a curative instruction about prosecutorial misconduct because counsel’s conduct did not fall below an objective level of competence and there was no evidence counsel’s conduct affected the outcome of the criminal proceeding.

II

[¶ 6] Flanagan argues the trial court’s failure to instruct the jury that the complainant must have been under 15 years of age violated the statutory requirement that no person may be convicted of an offense unless each element is proved beyond a reasonable doubt under N.D.C.C. § 12.1-01-03(1). He argues he is entitled to greater statutory protections under state law, and because he could not be convicted of an offense unless each element of the offense was proved beyond a reasonable doubt, the obvious error in failing to instruct the jury on this issue was a miscarriage of justice. He argues this statutory right was not addressed in his direct appeal from his conviction.

[¶ 7] Under N.D.C.C. § 29-32.1-12(1), an application for post-conviction relief may be denied on the ground of res judicata if the claim was fully and finally determined in a previous proceeding. Petitioners are not entitled to post-conviction relief when their claims are variations of previous claims that have been rejected in prior proceedings. Jensen v. State, 2004 ND 200, ¶ 9, 688 N.W.2d 374. Flanagan’s argument in his direct appeal was that due process under the state and the federal constitutions required the State to prove each element of the charge beyond a reasonable doubt, and that the state constitution may provide a defendant with greater rights than the federal constitution. In this proceeding, Flanagan’s argument is couched in terms of a greater state statutory right, but his claim is merely a variation of the argument we rejected in his direct appeal. We conclude Flanagan’s argument about N.D.C.C. § 12.1-01-03(1) is res judicata.

Ill

[¶ 8] Flanagan argues his trial counsel was ineffective under the state and federal constitutions for failing to object to the trial court’s instructions on the elements of gross sexual imposition; failing to interview, subpoena, and investigate witnesses; failing to object to the prosecution’s use of gender-based peremptory challenges; and failing to preserve a request for a curative instruction.

[¶ 9] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845. The issue of ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable by this Court. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809. A trial court’s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Klose, at ¶ 10; Laib, at ¶ 11.

[¶ 10] The burden of establishing grounds for post-conviction relief rests upon the petitioner. State v. Steen, 2004 ND 228, ¶ 9, 690 N.W.2d 239. In Heckelsmiller v. State, 2004 ND 191, ¶¶ 3-4, 687 N.W.2d 454 (citations omitted), we recently outlined the “heavy burden” required for a petitioner to prevail on a post-conviction claim for ineffective assistance of trial counsel:

The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel. In accord with the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] ..., a defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” The defendant must first overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.
The prejudice element requires a defendant to “establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Not only does a criminal defendant have “the heavy, demanding burden of proving counsel’s assistance was ineffective,” a defendant claiming ineffective assistance of counsel “must specify how and where trial counsel was incompetent and the probable different result.” A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”

[¶ 11] In Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D.1992), this Court said we use the same Strickland test to assess ineffective assistance of counsel claims under the state constitution. See also Kamara v. State, 2003 ND 179, ¶5, 671 N.W.2d 811. To the extent that Flanagan asserts he is entitled to greater protection for claims of ineffective assistance of counsel under the state constitution than under the federal constitution, we reject his assertion and we consider his arguments under the framework of Strickland.

A

[¶ 12] Flanagan argues his trial counsel’s failure to object to the court’s instruction on the elements of gross sexual imposition constituted ineffective assistance of counsel. The district court decided trial counsel was not ineffective because there was no reasonable probability that, but for the error, the result would have been different.

[¶ 13] Flanagan’s argument about ineffective assistance of counsel on this issue is controlled by our decision in his direct appeal, in which we said the name and identity of the victim was not in dispute and a reversal on the trial court’s erroneous jury instruction would have seriously affected the fairness, integrity, or public reputation of the judicial proceeding under an obvious error analysis. Flanagan, 2004 ND 112, ¶ 10, 680 N.W.2d 241. We conclude Flanagan has not established a reasonable probability that, but for trial counsel’s error, the result of the proceeding would have been different. We therefore conclude Flanagan was not prejudiced by trial counsel’s failure to procure a correct jury instruction.

B

[¶ 14] Flanagan argues his trial counsel rendered ineffective assistance of counsel in failing to interview and subpoena his oldest stepdaughter for trial and in failing to interview his youngest stepdaughter. During trial, Flanagan’s youngest stepdaughter testified the complainant was “[n]ot really truthful.” When asked the basis for that opinion, the youngest stepdaughter testified that her sister, Flanagan’s oldest stepdaughter, told her the complainant “shoplifts a lot.” The State objected and the trial court instructed the jury to disregard that the youngest stepdaughter was told something by her sister and the youngest stepdaughter needed to testify as to her own personal knowledge. During jury deliberations, the jury specifically asked to rehear the youngest stepdaughter’s testimony.

[¶ 15] Flanagan asserts his trial counsel failed to interview and investigate the proposed testimony by the youngest stepdaughter, and if counsel had done so, counsel would have discovered the youngest stepdaughter learned her information about the complainant’s lack of truthfulness from the oldest stepdaughter. Flanagan claims if trial counsel would have had that knowledge, he would have subpoenaed the oldest stepdaughter for important testimony about the complainant’s truthfulness. He claims the oldest stepdaughter would have offered damaging direct testimony about the complainant’s credibility, whereas the youngest stepdaughter had only heard the evidence from the oldest stepdaughter, which was hearsay and was struck by the trial court for lack of personal knowledge. He claims the result of the criminal trial would have been different, because during deliberations, the jury asked to see the testimony of the, youngest stepdaughter.

[¶ 16] The district court determined there was not enough evidence to suggest Flanagan had informed trial counsel about the oldest stepdaughter,-and even if counsel knew about the oldest stepdaughter, nothing in the record established what she would have testified about, or that her testimony would have altered the result. The court also indicated that during the youngest stepdaughter’s testimony, the jury heard part of the oldest stepdaughter’s opinion that the complainant was not credible and lacked truthfulness.

[¶ 17] Under the second element for establishing a claim for ineffectiveness of counsel, the defendant must establish prejudice, which requires the defendant to show a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Heckelsmiller, 2004 ND 191, ¶4, 687 N.W.2d 454. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the jury verdict. Id. We have said that “ ‘eonclusory allegations that [trial] counsel failed to call certain witnesses without indicating what the testimony would have been, how it might have affected the outcome of the trial, or what prejudice may have resulted from the failure to call them, do not support a claim of ineffective assistance of counsel.’ ” Matthews v. State, 2005 ND 202, ¶ 12, 706 N.W.2d 74 (quoting State v. Schlickenmayer, 364 N.W.2d 108, 112 (N.D.1985)). We have also said the test is not necessarily whether a witness’s testimony would have aided the defense, but whether, within the context of the other evidence and the overall conduct of the trial, there was a reasonable probability of a different result in the proceeding if the witness had testified. Wright v. State, 2005 ND 217, ¶ 12, 707 N.W.2d 242.

[¶ 18] At the post-conviction hearing, the oldest stepdaughter did not testify, and Flanagan testified he did not know how his oldest stepdaughter would have testified and he could only speculate regarding her testimony about the complainant’s honesty. Flanagan asked the district court to consider that his oldest stepdaughter would have testified the complainant was untruthful. The credibility of the complainant was an important issue in this case, but Flanagan has offered only speculation to show a probability sufficient to undermine the confidence in the outcome of the jury verdict. The district court emphasized that fact when it indicated there was other corroborating testimony from witnesses who saw Flanagan inappropriately touching the complainant. The credibility of those witnesses was not in dispute. Assuming Flanagan’s trial counsel’s failure to interview and subpoena the oldest stepdaughter for trial and failure to interview the youngest stepdaughter fell below an objective standard of reasonableness, we conclude Flanagan has not satisfied his heavy burden to establish a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.

C

[¶ 19] Flanagan argues his trial counsel’s failure to object to the prosecution’s use of gender-based peremptory challenges constituted ineffective assistance of counsel. The jury that convicted Flanagan consisted of twelve women. Flanagan used five peremptory challenges to strike five men from the jury, and the State used six peremptory challenges to strike five men and one woman from the jury. Flanagan argues the State removed two men from the jury without talking to them or asking them questions and the State removed the last available man from the jury for no apparent reason. Flanagan argues, given the nature of the State’s voir dire and how peremptory strikes were exercised, the record presents an inference that the State’s use of peremptory challenges was based on gender and that, but for his trial counsel’s failure to object to the jury selection process, it would not have withstood judicial scrutiny under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), and City of Mandan v. Fern, 501 N.W.2d 739 (N.D.1993).

[¶ 20] The equal protection clause forbids any use of peremptory challenges to exclude jurors solely on the basis of their gender or race. J.E.B., 511 U.S. at 130-31, 114 S.Ct. 1419; Batson, 476 U.S. at 89, 106 S.Ct. 1712; Fern, 501 N.W.2d at 746-47. “ ‘The very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.’ ” Batson, at 86, 106 S.Ct. 1712 (quoting Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1879)).

[¶ 21] In a post-conviction proceeding challenging trial counsel’s method of jury selection, we have said counsel’s actions during voir dire involve matters of trial strategy. Garcia v. State, 2004 ND 81, ¶ 8, 678 N.W.2d 568. In post-conviction proceedings claiming ineffectiveness of counsel, other courts have deferred to trial counsel’s tactical decisions regarding gender-based peremptory challenges and jury selection. See Davis v. State, 2005 OK CR 21, ¶¶ 8-11, 123 P.3d 243; Sorensen v. State, 6 P.3d 657, 662-63 (Wyo.2000). Those courts declined to second guess trial counsel, stating that counsel may have had sound reasons related to the defendant’s theory of the case for not opposing the State’s peremptory challenges, or counsel may have been satisfied that the selected jury was a fair cross section of the community and the defendant’s chances for a favorable outcome would not improve with any changes and may instead lessen. Davis, at ¶ 10; Sorensen, at 662-63. We agree with that rationale because it is consistent with our recognition that counsel’s actions during voir dire may involve matters of trial strategy.

[¶ 22] At the evidentiary hearing on Flanagan’s application for post-conviction relief, Flanagan’s trial counsel testified he had been doing criminal work since 1981. He testified in this case he “was looking for individual jurors ... and how they answered questions,” and the jury selection process “snuck up” on him when he realized there were “a lot of women” on the jury. He testified his approach to jury selection involved ‘looking for body language. I’m looking for the way they answer questions. Maybe not just what they say, but how they say it.” He testified he was going to make an objection based on the prosecution’s gender-based strikes, but he realized he was not in a good position to do so because he had also struck men from the jury. The district court decided trial counsel’s decision about jury selection was a reasonable decision and did not fall below an objective standard of reasonableness. The district court’s decision accords with our decisions recognizing that voir dire and juror challenges often involve matters of trial strategy. On this record, we decline to second guess a seasoned defense counsel on matters implicating trial strategy, and we agree with the district court’s conclusion that trial counsel’s decision about jury selection was a reasonable decision and did not fall below an objective standard of reasonableness. We therefore reject Flanagan’s ineffective assistance claim on this issue.

D

[¶ 23] Flanagan argues his trial counsel was ineffective because counsel failed to preserve an issue about a curative instruction after the trial court sustained an objection when the prosecuting attorney asked Flanagan “[i]s this the first time that you’ve ever been accused of doing this?”

[¶ 24] The procedure regarding the curative instruction was described in detail in Flanagan’s direct appeal. Flanagan, 2004 ND 112, ¶¶ 11-14, 680 N.W.2d 241. In the post-conviction proceeding, the district court rejected Flanagan’s claim that his trial counsel was ineffective on this issue, concluding counsel’s action in dealing with the curative instruction did not fall below an objective standard of reasonableness and there was no prejudice by counsel’s performance on this issue. Trial counsel’s decision on the curative instruction represents a tactical decision and compromise, and we decline to second guess counsel. We conclude Flanagan’s trial counsel’s conduct did not fall below an objective standard of reasonableness on this issue.

IV

[¶ 25] We affirm the district court judgment denying Flanagan’s application for post-conviction relief.

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