author: KAPSNER, Justice. VANDE WALLE, Chief Justice,

text:
    2007 ND 145
    STATE of North Dakota, Plaintiff and Appellee, v. Douglas Alexander DEMARS, Defendant and Appellant.
    No. 20070015.
    Supreme Court of North Dakota.
    Aug. 30, 2007.
    Kimberlee Jo Hegvik, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee.
    Lorelle A. Moeckel (argued) and Steven M. Light (appeared), Larivee & Light, Fargo, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Douglas A. Demars appeals from a criminal judgment entered upon his conditional plea of guilty to driving under the influence in violation of N.D.C.C. § 39-08-01. We reverse, concluding the district court erred in denying Demars’s suppression motion because the record lacks sufficient competent evidence to establish the police officer stopped Demars’s vehicle within the officer’s geographical jurisdiction.

I

[¶ 2] In June 2006, West Fargo police officer Ryan O’Donnell was on patrol when he overheard the Red River Regional Dispatch inform the Cass County Sheriffs Department of a possible intoxicated driver “northbound on Sheyenne Street or Cass 17 from Horace.” Officer O’Donnell testified that because he was close to the area, he proceeded by driving west on Interstate 94 to Sheyenne Street. After arriving at Sheyenne Street, Officer O’Donnell proceeded to follow a dark Blazer east on Interstate 94. Upon confirming the license plates did not match the number given by the dispatch, Officer O’Donnell turned around in the ditch and headed back toward Sheyenne Street where he observed a silver Blazer entering the eastbound lane of Interstate 94. Officer O’Donnell again turned around and caught up to the vehicle, confirming it was the vehicle described by the dispatch.

[¶ 3] Officer O’Donnell testified that he then followed the vehicle eastbound and observed the vehicle weaving within its lane before reaching the intersection of Interstate 94 and Interstate 29. Officer O’Donnell also observed the vehicle drive into the exit lane on Interstate 94 to enter northbound Interstate 29, crossing back into the driving lane without using a turn signal, and then crossing back into the exit lane. Officer O’Donnell followed the motor vehicle onto the exit ramp and proceeded into the northbound lane of Interstate 29. Officer O’Donnell then stopped the vehicle on Interstate 29 near the 17th Avenue overpass for having failed to signal when changing lanes. Officer O’Donnell requested assistance, and Cass County Deputy Daniel Herman arrived and assisted O’Donnell at the scene of the stop on Interstate 29. As a result of the stop, Demars, who was operating the motor vehicle, was cited for driving under the influence in violation of N.D.C.C. § 39-08-01.

[¶ 4] Demars moved the district court to suppress the evidence against him, arguing Officer O’Donnell was outside of his geographical jurisdiction when he stopped Demars. In November 2006, the district court heard Demars’s motion. At the hearing, the State presented testimony from Officer O’Donnell, Cass County Deputy Sheriff Daniel Herman, and West Fargo engineering assistant Christopher Brungardt.

[¶ 5] At the conclusion of the hearing, the district court denied Demars’s motion to suppress the evidence. Demars entered a conditional guilty plea under N.D.R.Crim.P. 11, preserving his right to contest the district court’s denial of his motion to suppress on appeal.

II

[¶ 6] Demars argues the district court erred in denying his motion to suppress and dismiss by improperly taking judicial notice of the West Fargo police officer’s geographical jurisdiction and by considering facts not in evidence to conclude De-mars committed a traffic violation within the police officer’s jurisdiction.

[¶ 7] Our standard of review for a district court’s decision on a motion to suppress evidence is well-established. In State v. Albaugh, 2007 ND 86, ¶ 8, 732 N.W.2d 712, we stated:

When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We recognize that the district court is in a superior position to assess the credibility of witnesses and weigh the evidence. State v. Woinarowicz, 2006 ND 179, ¶ 20, 720 N.W.2d 635 (citations omitted). Generally, a district court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the district court’s findings, and if its decision is not contrary to the manifest weight of the evidence. Id. Questions of law are fully renewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.

Albaugh, at ¶ 8 (quoting State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578). In other words, we will reverse the district court’s denial of a suppression motion where the decision lacks sufficient competent evidence fairly capable of supporting its findings, and the decision is contrary to the manifest weight of the evidence.

Ill

[¶ 8] The dispositive issue in this case is whether sufficient competent evidence established the West Fargo police officer stopped Demars’s vehicle within the officer’s one and one-half mile geographical jurisdiction. The general rule is that a police officer acting outside of his jurisdiction is without official capacity and without official power to arrest. State v. Littlewind, 417 N.W.2d 361, 363 (N.D.1987).

[¶ 9] A city police officer’s geographical jurisdiction is set forth in N.D.C.C. § 40-20-05, which states in part:

1. The chief of police shall perform such duties as shall be prescribed by the governing body for the preservation of the peace. The chief of police shall have the authority to administer oaths to police officers under the chiefs supervision. Within the city limits, and for a distance of one and one-half miles [2.⅛1 kilometers] in all directions outside the city limits, the police officers and watchmen of the city shall perform the duties and exercise the powers of peace officers as defined and prescribed by the laws of this state.
2. A police officer in “hot pursuit” may continue beyond the one and one-half mile [2.⅛1 kilometers] limit to make an arrest, in obedience to a warrant or without a warrant under the conditions of section 29-06-15, whenever obtaining the aid of peace officers having jurisdiction beyond that limit would cause a delay permitting escape. As used in this subsection, “hot pursuit” means the immediate pursuit of a person who is endeavoring to avoid arrest.

(Emphasis added.)

[¶ 10] This Court has also recognized that city police officers have jurisdiction to stop vehicles and arrest individuals outside of their geographical jurisdiction when responding to requests from another law enforcement agency for aid and assistance. See State v. Graven, 530 N.W.2d 328, 330 (N.D.1995) (holding that although officer’s observation and stop of the defendant’s vehicle occurred outside of the officer’s geographical jurisdiction, the officer still had jurisdiction where the officer was requested by a state trooper to stop the suspect’s vehicle). See also N.D.C.C. § 44-08-20(3) (stating, “Peace officers employed by a law enforcement agency within the state have the power of a peace officer ... [w]hen responding to requests from other law enforcement agencies or officers for aid and assistance.”); Mead v. North Dakota Dep’t of Transp., 1998 ND App 2, ¶ 12, 581 N.W.2d 145 (holding peace officer who responded to a request from another law enforcement agency for assistance had authority to complete the investigation and make an arrest). There is no evidence Officer O’Donnell requested authorization to make an extra-territorial stop.

[¶ 11] An officer’s authority to arrest also extends beyond the officer’s geographical jurisdiction when in “hot pursuit” under N.D.C.C. § 40-20-05. See, e.g., Littlewind, 417 N.W.2d at 362. There is no evidence Officer O’Donnell activated his lights within his geographical jurisdiction.

[¶ 12] West Fargo engineering assistant Brungardt testified at the suppression hearing that he had worked there for ten years and had “become intimately knowledgeable of the city limit boundaries through review of the plats before they record it, by design of roadways on section lines and boundary streets, and through work with the DOT of the same roads.” Brungardt testified regarding West Fargo’s city limits, stating:

A This would be 17th Street from Seventh Avenue East south of 13th Avenue, then would be the extension as it goes along the backyards of these single family homes along what would be 17th Street East down to the Interstate, this center line Interstate right-of-way here. That would then — then it jogs back to the west to Ninth Street East and goes down the center line back of that section or line down here to 40th Avenue, which goes back to the west of the Sheyenne River called Sheyenne River Down, then north in the area of McMahon’s Addition, back to the east down to the east drew line of the McMahon’s Addition down to 52nd Avenue South....

In response to questions from the court seeking to clarify West Fargo’s boundary on the east side of the city, Brungardt testified:

THE WITNESS: It follows the center line of 17th Street is actually the quarter section line. When Ninth Street and 45th Street are the section lines, so this is mid-section.
THE COURT: And then the city limit boundary where it jogs back to the west approximately, it looks like a quarter mile there or thereabouts, on Interstate 94, is that on the north, south, mid-point or whereabouts, if you know?
THE WITNESS: It jogs back a half mile down the center line, right down the section line. The Interstate is slightly skewed, not quite following the center line.
REDIRECT EXAMINATION BY MR. MARTENS:
Q. According to what you said earlier, Seventh Avenue;
A. Seventh Avenue East,—
Q. —is that correct?
A. —correct.
Q. Seventh Avenue. How far does the — the city limits, does that continue eastward along Seventh?
A. Eastward for a half mile to 45th Street.

[¶ 13] Although Brungardt had also prepared a map for the hearing, the district court did not allow the map into evidence, and instead only allowed the map to be used for demonstrative purposes during the hearing. Whether the map was properly excluded from evidence is not an issue presented for review. Based upon the engineer’s testimony concerning West Fargo’s eastern city limit, the district court made its own “calculations” regarding the officer’s geographical jurisdiction extending one and one-half miles beyond West Fargo’s city limits.

[¶ 14] In denying Demars’s motion to suppress, the district court found:

[T]he evidence established that the city limits of the City of West Fargo extend on the east side of the city to a point on Interstate Highway 94, even with the section line, which is at the center line of 17th Street, I believe it is, in West Fargo.
The officer testified that he observed some weaving within the lane within one and a half mile distance to the east. That, as Mr. Light correctly notes, would not in and of itself be enough to stop the vehicle. However, that is not the only evidence and it’s the totality of the circumstances that we have to look at to see if there is a reasonable and articulable suspicion for a stop of the vehicle.
The officer further testified that he observed the vehicle enter into the turn lane on the west side of the Interstate Highway 29, which again would be within the one and half mile limit and that it exited that turn lane without making a turn signal, again, before he — that vehicle had crossed into the northbound or the west side and outside the one and a half mile limit.

(Emphasis added.)

When Demars’s attorney asked for clarification, the district court stated:

Well, I said that I could do the calculating, and the calculating as I understand it is if I know where the limit is on the east side, I can calculate the limit — the one and a half mile limit. And my calculation is that the one and a half mile limit would be at the dividing line of the center of Interstate Highway 29. ... Since all the testimony here was that the offensive conduct occurred before the Interstate — that that — that line, then it happened within the one and a half mile area. That is the basis for my ruling.

(Emphasis added.)

[¶ 15] The district court, in making its ruling, found that Officer O’Donnell’s observation of “offensive conduct,” i.e., the vehicle weaving within its lane and exiting and re-entering the Interstate 94 exit lane to Interstate 29 without using a turn signal, occurred before reaching the one and one-half mile limit of the officer’s jurisdiction. The court, however, made no finding that the officer initiated the stop of Demars’s vehicle within this jurisdictional limit. Cf. State v. Bachmeier, 2007 ND 42, ¶ 10, 729 N.W.2d 141 (stating interaction with trooper for Fourth Amendment seizure purposes began when trooper activated his overhead lights and exerted some authority).

[¶ 16] In support of his motion to suppress, Demars submitted as an exhibit a transcript of the administrative hearing related to his arrest. During that hearing, Officer O’Donnell testified on direct examination by the hearing officer about his stop of Demars’s vehicle:

Q. What did you do then?
A. Once it got off the exit ramp, it was going northbound, I stopped the vehicle and asked our dispatch center to get a hold of either Fargo or the highway patrol or Cass County because I was out of my jurisdiction a little bit.
Q. Okay. So what did you do though as far as—
A. I activated my red lights and stopped the vehicle. I made contact with the driver identified as Mr. DeMars [sic] and let him know I had stopped him for a traffic violation and asked for license, registration, and proof of insurance card.

Later, during cross-examination by De-mars’s attorney, Officer O’Donnell testified:

Q. All right. Now, why is it that you did, just for clarification, call for backup or call for units from Fargo?
A. To make sure that the testing and implied consent and everything was done in their jurisdiction.
Q. And also because you made the stop outside of your' jurisdiction; correct?
A. The vehicle traveled—
Q. I am not asking that. Yes or no?
A. Yes.

Officer O’Donnell further testified on recross-examination:

Q. Can you testify here truthfully today in certain terms as to the distance between the end of your jurisdiction and where the stop was made?
A. No.

[¶ 17] Although the district court found that Officer O’Donnell’s observations of the vehicle’s weaving and traffic violation occurred within his geographical jurisdiction, there is no evidence establishing that the stop occurred within the officer’s jurisdiction. There is also no testimony that Interstate 29 is on a section line. If the district court’s findings based upon its own calculations are correct, Officer O’Donnell’s initiation of the stop of Demars’s vehicle was outside of his geographical jurisdiction. The district court, based upon its own calculation, stated that “the one and a half mile limit would be the dividing line of the center of Interstate Highway 29.”

[¶ 18] At the suppression hearing, Officer O’Donnell testified that after he observed Demars’s vehicle change lanes without signaling, he continued to follow:

A. We took the exit ramp, at the point we were northbound. I activated my red lights and. stopped the vehicle.
Q. Okay. Do you remember how far you followed him onto Interstate 29?
A. When he finally stopped, he was near the 17th Avenue overpass.

[¶ 19] Although Deputy Herman also testified during the suppression hearing, his testimony only established that he had assisted Officer O’Donnell on Interstate 29, “south of 13th Avenue.” During the hearing, both Officer O’Donnell and Deputy Herman were asked to place “X’s” on a map where the vehicle had been pulled over on Interstate 29. This map was not admitted into evidence by the district court and was used only for demonstrative purposes. Therefore, for purposes of this Court’s review, there is insufficient evidence to establish that the officer was actually within his jurisdiction when he initiated or completed the stop.

[¶ 20] The district court made no findings, nor is there evidence, of other circumstances which could support the officer’s stop of the vehicle outside his jurisdiction. There is no evidence that Officer O’Donnell was in “hot pursuit” of the vehicle driven by Demars as that term is defined by N.D.C.C. § 40-20-05(2). Nor is there evidence that Officer O’Donnell was assisting other law enforcement officers at the time he stopped the vehicle. Rather, Officer O’Donnell testified at the suppression hearing that he “overheard” the dispatch regarding a possible intoxicated driver, and he requested assistance from other law enforcement after he had already made the stop.

[¶21] Because the district court did not find the stop of Demars’s vehicle was within the West Fargo police officer’s geographical jurisdiction, and there is no evidence the vehicle was stopped within the geographical jurisdiction, we conclude sufficient competent evidence does not support the court’s finding that the West Fargo police officer acted within his jurisdiction. We therefore conclude the district court erred in denying Demars’s motion to suppress evidence. Because our conclusion is dispositive of the appeal, we do not address Demars’s remaining argument, and we do not address the district court’s finding about the location of the offensive conduct.

IV

[¶ 22] The district court judgment is reversed and the case is remanded to allow Demars to withdraw his conditional plea.

[¶ 23] MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

VANDE WALLE, Chief Justice,

dissenting.

[¶ 24] As the majority notes, in reviewing a district court’s ruling on a motion to suppress, “we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance,” citing State v. Albaugh, 2007 ND 86, ¶ 8, 732 N.W.2d 712. Applying this standard in this case I conclude there is sufficient evidence in the record to support the district court’s finding that the West Fargo police officer acted within his jurisdiction. I would therefore affirm the judgment of the district court.

[¶ 25] DALE V. SANDSTROM, J., concur.

      . The State does not argue on appeal and consequently we do not address the issue of whether the officer could effect the stop under N.D.C.C. § 29-06-20.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2007 ND 146
    STATE of North Dakota, Plaintiff and Appellee, v. Art TIBOR, Defendant and Appellant.
    No. 20060274.
    Supreme Court of North Dakota.
    Aug. 30, 2007.

      Nicole Elian Foster, Williston, N.D., for plaintiff and appellee.
    Kevin Joseph Chapman, Williston, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Art Tibor appeals from a judgment entered after a jury found him guilty of two counts of gross sexual imposition. Tibor argues the district court abused its discretion in allowing expert testimony, allowing the expert witness to vouch for the victim’s credibility, and allowing cumulative and hearsay testimony. Tibor also argues there is insufficient evidence to sustain his convictions. We affirm.

I

[¶ 2] On December 9, 2005, Jane Doe, an eleven-year-old girl, gave her school counselor a note telling the counselor something had been happening at her house since she was in kindergarten and she needed to tell someone. The counsel- or met with Doe- and Doe told her Art Tibor, her stepfather, had been touching her breasts and vagina every day after school when her mother was not home.

[¶ 3] Doe’s allegations were reported to social services, and Monique Goff, a social worker and forensic interviewer, interviewed Doe on December 9, 2005. Doe said Tibor used his hands to touch her breasts and vagina. Doe said the incidents occurred after school in her bedroom, the laundry room, Tibor’s bedroom, and the basement living room, when her mother was at work.

[¶ 4] On December 13, 2005, Dr. Beverly Tong, an OB/GYN, conducted a sexual assault exam on Doe. Doe told her Tibor had touched her vagina with his fingers, the incidents would occur at least several times a month and sometimes more than once a week, and it would sometimes hurt when she urinated after Tibor touched her vagina. During the exam, Dr. Tong observed a healing tear, about 4 millimeters long, on Doe’s posterior fourchette, an area of her genitals. Tong testified the abrasion was consistent with Doe’s allegations.

[¶ 5] Tibor was initially charged with one count of gross sexual imposition. An amended information was filed on June 7, 2006, charging Tibor with five counts of gross sexual imposition for allegedly abusing Doe between August 1, 2005, and December 10, 2005, in violation of N.D.C.C. §§ 12.1-20-03(2)(a) and 12.1-20-03(l)(d). Count 1 alleged Tibor touched Doe’s breasts. Count 2 alleged Tibor made Doe touch his penis with her hands. Count 3 alleged Tibor inserted his penis into Doe’s mouth. Count 4 alleged Tibor inserted his tongue into Doe’s vulva. Count 5 alleged Tibor touched Doe’s vagina with his finger.

[¶ 6] Before trial, the State disclosed that it planned to call Paula Condol as an expert witness to testify about the typical behaviors of sexually abused children. Condol is the Coordinator for the Dakota Children’s Advocacy Center and a forensic interviewer who has interviewed over 800 children. The State’s disclosure said:

Ms. Condol will testify regarding the Child Sexual Abuse Accommodation Syndrome and the typical behaviors of sexually abused children. She may provide some testimony about child development as it relates to perception, memory recall, and vocabulary.
Ms. Condol may testify regarding her analysis of the child’s interview and whether there are indications that the child was just repeating what was suggested to her, or whether she was willing to correct inaccurate information or deny the premise of certain questions.
Without the assistance of an expert, the trier of fact often misinterprets delayed reporting, initial minimization of the abuse, and inconsistent accounts as evidence that the child was not abused. Ms. Condol will describe her review of the materials presented to her regarding the Art Tibor case and whether the behaviors of and disclosures of the victim are consistent with or inconsistent with typical reactions of sexually abused children.
Ms. Condol will not be asked whether she believes that the victim is telling the truth or whether she believes the victim was sexually abused, as those areas are the province of the jury.

The State also disclosed that it planned to call Dr. Alonna Norberg, a pediatrician and the medical director of the Red River Children’s Advocacy Center, as an expert witness to testify about the abrasion on the child’s genitals and whether it was consistent with Doe’s allegations.

[¶ 7] Tibor moved in limine to exclude Condol’s testimony, arguing the State was attempting to invade the province of the jury, the testimony would be prejudicial, would not be helpful, and would only confuse the jury. The district court denied Tibor’s motion, finding Condol is an expert witness and her specialized knowledge about typical behaviors of sexually abused children may assist the jury in understanding the evidence or determining the facts in issue.

[¶ 8] The State also gave notice of its intent to offer hearsay testimony. The State planned to present testimony about Doe’s out-of-court statements made to Dr. Tong and Goff. Tibor objected, a hearing was held, and the court concluded Doe’s out-of-court statements were admissible because the requirements for admission of a child’s statement about sexual abuse under N.D.R.Ev. 803(24) had been met and there were sufficient guarantees of trustworthiness.

[¶ 9] A jury trial was held on July 31, 2006, to August 2, 2006. Doe, two of Doe’s brothers, Dr. Tong, Dr. Norberg, Detective Ladwig, Goff, Condol, and others testified. Tibor testified and presented testimony from a number of witnesses, including family members, friends, and an expert witness, who testified about other possible causes of the abrasion on Doe’s genitals.

[¶ 10] Doe was reluctant to talk about the abuse, but testified Tibor touched her breasts with his hands, she had to touch Tibor’s penis with her hands and her mouth, and he touched her vagina with his fingers and his tongue. Doe testified it would hurt when she urinated after he touched her vagina with his fingers. Doe testified the abuse would occur after school in her bedroom, Tibor’s bedroom, and in the laundry room, when her mother was still at work. She testified the abuse occurred when she was in sixth grade, and she told her school counselor about the abuse the day after Tibor put his tongue in her vagina. Doe’s brothers testified there were times when Tibor was alone with Doe in a room with the door closed.

[¶ 11] Dr. Norberg reviewed Doe’s medical records and testified about Dr. Tong’s examination. She testified Doe’s complaint about pain when she urinated after Tibor touched her vagina was consistent with sexual abuse. She testified the condition of the abrasion on Doe’s genitals indicated Doe had suffered the injury more than 24 to 48 hours before the physical examination, and the abrasion was consistent with Doe’s allegations. She also testified that abrasions of this type heal very quickly.

[¶ 12] Condol testified about the child sexual abuse accommodation syndrome, which is a model used to help understand how children react to sexual abuse. She testified the child sexual abuse accommodation syndrome has five categories of behaviors exhibited by sexually abused children: secrecy, helplessness, accommodation and entrapment, delayed or unconvincing disclosures, and retraction. Condol testified about each category of behavior explaining how a child typically reacts to abuse and how their reaction is different from what most people expect.

[¶ 13] Condol did not interview Doe, but reviewed Goffs interview with Doe. She testified she observed a change in Doe’s demeanor when she was talking about the abuse; Doe became very quiet and still, and children typically react this way when talking about sexual abuse. Condol also testified Doe’s behavior and the process she went through disclosing the abuse was consistent with the five categories of the child sexual abuse accommodation syndrome:

Well, it’s my understanding from reviewing those five areas that she did keep it a secret for a number of years. That, you know, she was helpless; she didn’t fight back, things like that. That she just kind of accommodated to the situation. You know, her disclosure was, you know, different at times, and she did not retract, but, you know, she did minimize when she did her first interview about what had happened to her.
So, you know, from my — just view of the information and the research, you know, it seems that she has gone through those stages.

On cross-examination, Tibor’s attorney asked Condol if she had an opinion about whether Doe had been sexually abused, and she testified she did not.

[¶ 14] Goff testified Doe’s demeanor changed when she talked about Tibor; her shoulders slumped, she did not make as much eye contact, and her voice lowered. Goff testified Doe’s change in demeanor was consistent with someone who has suffered a traumatic event. Williston Police Department Detective Tom Ladwig observed the interview and also testified Doe’s demeanor changed when she talked about the abuse. Detective Ladwig testified Doe withdrew into herself when she was questioned about Tibor, her eyes went down to the table, and she was reluctant to answer the questions. He testified Doe’s behavior was consistent with that of an abuse victim. Tibor objected to the testimony about Doe’s demeanor, arguing it was hearsay and was not disclosed in the State’s pretrial notice of its intent to use hearsay testimony. The court overruled Tibor’s objection, and allowed the testimony.

[¶ 15] The jury found Tibor guilty of counts 4 and 5, but acquitted him of the three remaining counts. Tibor was sentenced to twelve years in prison.

II

[¶ 16] Tibor argues the court abused its discretion in allowing Condol’s testimony about child sexual abuse accommodation syndrome. He also argues the court further abused its discretion in allowing Condol to testify to matters outside of what was disclosed before trial; he claims Condol vouched for the child’s credibility and testified the abuse actually occurred.

[¶ 17] The admissibility of expert testimony is governed by N.D.R.Ev. 702 through 706. Rule 702, N.D.R.Ev., allows the admission of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Whether the testimony is useful and will assist the trier of fact is within the court’s discretion, and a court’s decision to allow expert testimony will not be overturned on appeal unless the court has abused its discretion. State v. Austin, 2007 ND 30, ¶¶ 9-10, 727 N.W.2d 790. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id. at ¶ 10. “Expert testimony is not admissible if ‘its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Id. at ¶ 9 (quoting Praus v. Mack, 2001 ND 80, ¶ 34, 626 N.W.2d 239).

[¶ 18] Before deciding whether to allow Condol’s testimony, the record reveals the district court heard arguments from both sides, took time to consider the arguments, and found:

Given Ms. Condol’s education, experience and training, and recognizing that she has interviewed over eight hundred (800) children during the course of her career — with approximately ninety-five percent (95%) of that number having made allegations of sexual abuse — the Court has no difficulty concluding that Ms. Condol qualifies as an expert in relation to what has become known as the Child Sexual Abuse Accommodation Syndrome. Based upon the information submitted to the Court, the Court is satisfied that Ms. Condol possesses specialized knowledge concerning typical behaviors of sexually abused children, which may assist the jury in this case in understanding the evidence or determining a fact (or facts) in issue. Accordingly, it is the Court’s decision to allow Ms. Condol to testify as an expert in this case.

The court concluded Condol’s testimony was useful and would assist the jury.

[¶ 19] This Court has never addressed whether a district court abuses its discretion when it allows expert testimony about child sexual abuse accommodation syndrome. However, other courts have considered the issue and concluded an expert witness may testify about typical behaviors or characteristics of sexually abused children and whether a specific victim exhibits symptoms consistent with sexual abuse. See, e.g., United States v. Kirkie, 261 F.3d 761, 765-66 (8th Cir.2001); State v. Silvey, 894 S.W.2d 662, 670-71 (Mo.1995); State v. McCall, 162 N.C.App. 64, 589 S.E.2d 896, 900-01 (2004); State v. Huntington, 216 Wis.2d 671, 575 N.W.2d 268, 279 (1998). But see, Commonwealth v. Federico, 425 Mass. 844, 683 N.E.2d 1035, 1039 (1997) (expert can testify to general characteristics of a sexual abuse victim, but may not compare them to the victim in the case). Although the district court has discretion to allow expert testimony about child sexual abuse accommodation syndrome, the court must be careful not to allow an expert to vouch for the child victim’s credibility. See United States v. Azure, 801 F.2d 336, 340-41 (8th Cir.1986). We conclude a court does not abuse its discretion in allowing expert testimony about child sexual abuse accommodation syndrome if the testimony may assist the jury in understanding the evidence.

[¶ 20] The district court found Condol was qualified as an expert in the child sexual abuse accommodation syndrome and her testimony would assist the jury in understanding the evidence or determining a fact in issue. The court’s decision to allow Condol’s testimony was the product of a rational mental process, and the court did not act in an arbitrary, unreasonable, or unconscionable manner. We conclude the court did not abuse its discretion.

[¶ 21] Tibor claims Condol vouched for Doe’s credibility and testified she believed Doe had been abused. He claims this testimony exceeded the scope of what the State proposed in its disclosure, and the district court abused its discretion in allowing this testimony.

[¶ 22] In the State’s disclosure of expert witnesses, the State proposed that Condol would “describe her review of the materials presented to her regarding the Art Tibor case and whether the behaviors of and disclosures of the victim are consistent with or inconsistent with typical reactions of sexually abused children.” The State further said, “Ms. Condol will not be asked whether she believes that the victim is telling the truth or whether she believes the victim was sexually abused, as those areas are the province of the jury.” Tibor claims Condol testified that she believed Doe was abused, but Condol did not testify to the victim’s credibility or whether she believed the child was a victim of sexual abuse. Condol testified Doe appears to have gone through the five stages of child sexual abuse accommodation syndrome, and Doe’s behavior was consistent with someone who has been abused. Tibor’s attorney asked Condol, “you have no opinion on whether or not [Doe] has, in fact, been sexually abused; is that correct[,]” and Condol said, “[cjorrect.” While Con-dol’s testimony supports a determination that Doe’s allegations are true, it also left open the possibility that Doe’s testimony was not truthful and that Tibor did not sexually abuse her. Condol did not testify she believed Doe had been sexually abused, and Condol did not testify outside the scope of what the State disclosed before trial. Condol did not testify about the child’s credibility, and therefore her testimony did not invade the province of the jury.

[¶ 23] Tibor contends it is inconsistent to allow the State to present expert testimony about whether a child’s behavior is consistent with typical behaviors of children who have been sexually abused when a criminal defendant is not allowed to have an expert testify about the defendant’s alleged sexual interest in young females, as he claims we decided in Austin, 2007 ND 30, 727 N.W.2d 790.

[¶24] In Austin, the defendant proposed expert testimony about whether he had a sexual interest in children to help the jury decide whether he would assault a young female, and he claimed the evidence would only be presented as character evidence. Id. at ¶ 11. The district court excluded the testimony finding the tests used to determine the defendant’s sexual interests were not intended to be employed for the purpose of determining whether the defendant committed the act, the evidence would not be useful to determine whether the defendant committed the crime, and the court was concerned the jury would use the information to infer the defendant’s guilt or innocence and would not limit its use of the information to character evidence. Id. at ¶ 12. We affirmed the district court’s decision, concluding the court’s explanation for excluding the testimony was the product of a rational mental process and the decision was not arbitrary, unreasonable, or unconscionable. Id. at ¶ 13. The decision to allow expert testimony is within the court’s sound discretion, and we will not overturn that decision on appeal unless the court abuses its discretion. Id. at ¶ 10. Just as we held the district court’s decision to exclude expert testimony in Austin was the product of a rational mental process and the court did not abuse its discretion, we conclude the district court did not abuse its discretion in this case.

[¶ 25] We conclude the court’s decision to allow Condol’s testimony about child sexual abuse accommodation syndrome and her opinion that Doe’s behavior was consistent with that of a child who has suffered from sexual abuse was the product of a rational mental process, and therefore the court did not abuse its discretion.

Ill

[¶ 26] Tibor argues the district court abused its discretion in allowing Condol, Goff, and Detective Ladwig to testify about the change in Doe’s demeanor during her interview with Goff, because it was hearsay testimony. He also argues the court abused its discretion in admitting testimony about Doe’s demeanor and statements she made during the interview with Goff, because the testimony was cumulative and so prejudicial he was unable to effectively cross-examine Doe.

[¶ 27] A district court has broad discretion in evidentiary matters, and a court’s decision whether to admit evidence will not be overturned on appeal absent an abuse of discretion. State v. Wiest, 2001 ND 150, ¶ 9, 632 N.W.2d 812.

[¶ 28] Tibor argues the district court abused its discretion in allowing testimony about the change in Doe’s demeanor during her interview with Goff, because it was hearsay testimony and was not disclosed in the State’s pretrial notice. During the trial, Tibor objected to the testimony arguing it was additional hearsay that was not addressed in the State’s notice of intent to use hearsay. The State claimed it was not hearsay, but was testimony about Doe’s demeanor and attitude. The court overruled Tibor’s objection and allowed the testimony.

[¶ 29] Hearsay includes an out-of-court “oral or written assertion or ... nonverbal conduct of a person, if it is intended by the person as an assertion” and “offered in evidence to prove the truth of the matter asserted.” N.D.R.Ev. 801. Evidence of nonverbal conduct not intended as an assertion is not hearsay. N.D.R.Ev. 801, Explanatory Note. Doe’s nonverbal conduct during the interview was offered as evidence about Doe’s demeanor and attitude. The testimony about Doe’s demeanor was admissible, non-hearsay evidence, and therefore we conclude the district court did not abuse its discretion in allowing the testimony.

[¶ 30] Tibor also argues the district court abused its discretion in allowing the testimony of Condol, Goff, and Detective Ladwig about Doe’s demeanor and statements she made during the interviews because the testimony was cumulative and unfairly prejudicial. Relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.D.R.Ev. 403. “ ‘[Relevant evidence may be excluded under N.D.R.Evid. 403 if its probative value is substantially outweighed by the danger of unfairly prejudicing the defendant.’ ” Wiest, 2001 ND 150, ¶ 9, 632 N.W.2d 812 (quoting State v. Klein, 1999 ND 76, ¶ 5, 593 N.W.2d 325). Rule 403, N.D.R.Ev., should be used sparingly to exclude evidence. Wiest, at ¶ 10.

[¶ 31] While the testimony about Doe’s demeanor and the statements she made during her interview with Goff was repetitious, “[t]he ‘mere repetition’ of a child’s out-of-court statements ‘does not make them unduly prejudicial.’ ” Wiest, at ¶ 10 (quoting People v. Salas, 902 P.2d 398, 401 (Colo.Ct.App.1994)). We conclude the district court did not abuse its discretion in admitting the testimony about Doe’s demeanor and statements she made during the interview.

IY

[¶ 32] Tibor argues the evidence in the record is insufficient to sustain his convictions. He contends Doe’s inconsistent statements and her unwillingness to talk about all the abuse she ever encountered when she first began disclosing the abuse are proof of his innocence. Tibor argues he could not be responsible for the abrasion on the child’s genitals because the last alleged incident of abuse occurred five days before the child’s physical examination, and Dr. Norberg testified the abrasion was probably more than 24^18 hours old and would heal quickly. Tibor claims he proved he did not have time to abuse Doe because of his work schedule and family responsibilities.

[¶ 33] We outlined the standard of review for challenges to sufficiency of the evidence in State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819:

In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Moreover, a jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.

(Citations omitted).

[¶ 34] Tibor was convicted of two counts of gross sexual imposition for inserting his tongue into Doe’s vulva and for using his finger to touch Doe’s vagina. While there was evidence presented that could have led to a not guilty verdict on all counts, there is also sufficient evidence to sustain Tibor’s convictions. Doe testified Tibor touched her vagina with his finger and his tongue when she was in sixth grade in 2005. Doe testified the abuse occurred after school when her mother was still at work. There was evidence Tibor often was home alone with Doe and her siblings after school. Doe’s brothers testified there were times when Doe was alone with Tibor in a room with the door closed or locked. Dr. Tong and Dr. Nor-berg testified the abrasion on Doe’s genitals was consistent with her allegations of sexual abuse. Condol testified Doe’s behavior was consistent with typical behaviors of sexually abused children. Reviewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, a rational fact finder could find Tibor guilty beyond a reasonable doubt. We conclude there is sufficient evidence to sustain Tibor’s convictions.

V

[1Í35] We conclude the district court did not abuse its discretion in allowing Condol’s testimony, or in allowing cumulative and hearsay testimony, and we conclude there is sufficient evidence to sustain Tibor’s convictions. We affirm the judgment.

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


author: MARING, Justice.

text:
    2007 ND 144
    Willis H. PETERSON, Patricia K. Peterson, and E-Z UZ Products, Inc., Plaintiffs and Appellants, v. DAKOTA MOLDING, INC., a Corporation, Defendant, v. National Fire Insurance Company of Hartford, a Corporation, Garnishee and Appellee.
    No. 20060356.
    Supreme Court of North Dakota.
    Aug. 30, 2007.

      Leland F. Hagen (argued), Lee Hagen Law Office, Ltd., and Fallon M. Kelly (on brief), Jones and Kelly, P.C., Lisbon, N.D., for plaintiffs and appellants.
    Christopher R. Carroll (argued), Carroll, McNulty & Kull, L.L.C., Basking Ridge, N.J., and Curtis L. Wike (appeared), Fleck, Mather & Strutz, Bismarck, N.D., for garnishee and appellee.
   MARING, Justice.

[¶ 1] Willis H. Peterson, Patricia K. Peterson, and E-Z UZ Products, Inc. (“Petersons”) appeal from a district court order denying their motion for leave to file a supplemental complaint joining National Fire Insurance Co. of Hartford (“National Fire”) as a garnishee. We conclude the district court did not err in denying the Petersons’ motion to join National Fire as a garnishee to the action because the National Fire commercial general liability (“CGL”) policy’s exclusions eliminate coverage for damages to the insured’s work and product. We affirm.

I

[¶ 2] The Petersons are owners of E-Z UZ Products, Inc., and invented and designed the E-Z UZ funnel product. The product is a two-gallon polyethylene funnel which includes a threaded brass fitting secured to the end of the funnel, allowing the funnel to be screwed into the top of a larger drum. Dakota Molding, Inc. (“Dakota Molding”) is in the business of molding or manufacturing plastic or polyethylene products.

[¶ 3] In 1998, the Petersons entered into an agreement with Dakota Molding to manufacture the funnel in accordance with the Petersons’ specifications. The Peter-sons required a tight bond between the brass fitting and plastic funnel. Despite this specification, the Petersons began receiving complaints that the funnels were failing at the bond.

[¶ 4] The Petersons investigated the complaints and discovered, contrary to their specifications, Dakota Molding had failed to “square off’ the end of the brass fittings. Although the Petersons and Dakota Molding attempted to fix the manufacturing problem, the Petersons continued receiving complaints, resulting in their inability to sell the funnels and termination of various distribution contracts. The Pe-tersons brought an action against Dakota Molding seeking in part their economic loss as a result of terminated distribution contracts based upon Dakota Molding’s defective manufacturing.

[¶ 5] The Petersons subsequently amended their complaint to allege damage to their property, asserting in part they had supplied certain component parts of the funnels which, as a result of their inability to sell the funnels, could not be repaired, restored, or reused. The Peter-sons and Dakota Molding entered into a Miller v. Shugart settlement agreement and release, in which Dakota Molding agreed to pay the Petersons $35,000 and allow entry of judgment against Dakota Molding in the amount of $1,519,420, on the condition that recovery would be collected only from the proceeds of the CGL policy issued by National Fire to Dakota Molding. See Sellie v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 151 (N.D.1992); Miller v. Shugart, 316 N.W.2d 729 (Minn.1982).

[¶ 6] The Petersons’ claim against Dakota Molding had previously been submitted to National Fire, but National Fire declined to defend Dakota Molding and, further, denied the claim. National Fire maintained there was no coverage under the CGL policy because the defective manufacturing and economic losses were not “occurrences” under the policy. National Fire also asserted one or more exclusions contained in the policy operated to preclude coverage of the claim.

[¶ 7] After judgment was entered against Dakota Molding, the Petersons moved the district court for leave to file a supplemental complaint against National Fire, making National Fire a party to the action as garnishee and seeking judgment in the amount of $1,519,420. In its October 2006 order, the district court denied the Petersons’ motion. In denying the Peter-sons’ motion for leave to file a supplemental complaint, the district court analyzed the CGL policy at issue and concluded there was no coverage and, therefore, no probable cause for Petersons’ motion to be granted.

[¶ 8] The Petersons appeal from the district court’s order denying their motion for leave to file a supplemental complaint to name National Fire as a garnishee in their action against Dakota Molding.

II

[¶ 9] In the garnishment proceeding under N.D.C.C. § 32-09.1-12, where a garnishee denies liability, the plaintiff “may move the court ... for leave to file a supplemental complaint making the garnishee a party to the action, and setting forth the facts upon which the plaintiff claims to charge the garnishee. If probable cause is shown, the motion shall be granted.” In Medd v. Fonder, 543 N.W.2d 483, 486 (N.D.1996) (quotations omitted) (emphasis added), this Court defined the “probable cause” requirement contained in N.D.C.C. § 32-09.1-12:

Probable cause in this type of proceeding has been defined as some showing by evidence which fairly and reasonably tends to show the existence of the facts alleged. The question whether probable cause has been shown depends on whether the evidence shows probable grounds for believing that the garnishee might be held liable under the policy involved here.

[¶ 10] In this case, the district court concluded that National Fire’s CGL policy with Dakota Molding did not provide coverage and, therefore, no “probable cause” existed for Petersons’ motion to be granted. Therefore, the issues raised in this appeal involve the interpretation of National Fire’s CGL policy, which is a question of law fully reviewable on appeal. ACUITY v. Burd & Smith Constr., Inc., 2006 ND 187, ¶7, 721 N.W.2d 33. This Court independently examines and construes an insurance contract to determine whether there is coverage. Fisher v. American Family Mut. Ins. Co., 1998 ND 109, ¶ 5, 579 N.W.2d 599.

“[A] term in an insurance policy should be construed ‘to mean what a reasonable person in the position of the insured would think it meant.’ ” “Limitations or exclusions from broad coverage must be clear and explicit.” “[W]hen the language of an insurance policy is clear and explicit, the language should not be strained in order to impose liability on the insurer.” However, any ambiguity or reasonable doubt as to the meaning of an insurance policy is strictly construed against the insurer and in favor of the insured. “If the language in an insurance contract will support an interpretation which will impose liability on the insurer and one which will not, the former interpretation will be adopted.” Exclusions from broad coverage in an insurance policy are strictly construed against the insurer.

Id. at ¶ 6 (citations omitted). “We construe insurance contracts as a whole to give meaning and effect to each clause, if possible. The whole of a contract is to be taken together to give effect to every part, and each clause is to help interpret the others.” State v. North Dakota State Univ., 2005 ND 75, ¶ 12, 694 N.W.2d 225 (citations omitted).

Ill

[¶ 11] The National Fire CGL policy with Dakota Molding which is at issue in this case provides, in part:

SECTION I — COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. ...
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; and
(2) The “bodily injury” or “property damage” occurs during the policy period.
2. Exclusions
This insurance does not apply to:
k. Damage To Your Product
“Property damage” to “your product” arising out of it or any part of it.
l. Damage To Your Work
“Property damage to your work arising out of it or any part of it and included in the “products-completed operations hazard”.
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.
SECTION V. — DEFINITIONS
“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. CO tH
17. “Property damage” means:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.
20. “Your product” means:
a. Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by:
(1) You;
(2) Others trading under your name; or
(3) A person or organization whose business or assets you have acquired; and
b. Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products.
“Your product” includes:
a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “your product”; and
b. The providing of or failure to provide warnings or instructions.
. “Your product” does not include vending machines or other property rented to or located for the use of others but not sold.
21. “Your work” means:
a. Work or operations performed by you or on your behalf; and
b. Materials, parts or equipment furnished in connection with such work or operations.
“Your work” includes:
a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “your work”; and
b. The providing of or failure to provide warnings or instructions.

IV

[¶ 12] Under the CGL policy, coverage may be triggered in the event of an “occurrence” that results in “property damage.” “Occurrence” and “property damage” are defined terms in the policy. In this case, the district court concluded that the facts alleged in the underlying lawsuit are sufficient to meet the definition of “occurrence,” but concluded that exclusions (k), (Z), and (m) preclude coverage. The district court thus denied Petersons’ motion for leave to file a supplemental complaint against National Fire as garnishee.

[¶ 13] On appeal, National Fire does assert, as an alternative ground for affirming the district court, that the underlying lawsuit does not allege an “occurrence.” We do not address, however, the court’s conclusion that there is an “occurrence” under the CGL policy. For purposes of this appeal, we will assume without deciding that the facts alleged in the underlying lawsuit constitute an “occurrence” because we hold the application of the policy exclusions (k) and (i) is dispositive. Cf. Ernst v. Acuity, 2005 ND 179, ¶ 11, 704 N.W.2d 869; Plasticert, Inc., v. Westfield Ins. Co., 923 A.2d 489, 493 (Pa.Super.2007).

[¶ 14] Exclusion (k) in the CGL policy is also known as the “your product” exclusion, and exclusion (l) is also known as the “your work” exclusion. Specifically, the CGL policy in this case states: “This insurance does not apply to: ... k. ‘property damage’ to ‘your product’ arising out of it or any part of it .... 1. ‘property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘produets-complet-ed operations hazard.’ ” These exclusions preclude coverage in situations where an insured seeks coverage for property damage to its product or work.

[¶ 15] Petersons assert this Court’s decisions in Fisher, 1998 ND 109, 579 N.W.2d 599, and ACUITY, 2006 ND 187, 721 N.W.2d 33, support its contention that these exclusions do not apply to exclude coverage for the alleged damage to the brass inserts and various other parts and equipment that Petersons provided to Dakota Molding in the manufacturing process.

[¶ 16] In Fisher, the insured was a contractor hired by a homeowner to sand and apply a polyurethane finish to flooring supplied and installed by other contractors. 1998 ND 109, ¶ 2, 579 N.W.2d 599. Within months, gaps had appeared in sections of the flooring and individual boards began splitting. Id. at ¶ 3. In the homeowner’s ensuing litigation, the insured contractor was subsequently named as a third-party defendant and submitted the suit to its insurer, which denied coverage. Id. The parties to the lawsuit then entered into a Miller v. Shugart settlement, in which the contractor that had sanded and finished the flooring assigned its rights against its insurer to the homeowner. Id. In granting summary judgment for the insurer, the district court concluded the coverage under the policy was precluded by exclusions in the policy. Id. at ¶ 4. This Court, however, reversed the district court, holding that the insurer was liable for the repair and replacement of the flooring, but based on the application of exclusions (k) and (l), the cost of the finish and the sanding and finishing performed by the insured were excluded from coverage. Id. at ¶¶ 15-18.

[¶ 17] In ACUITY, the insured was a construction company that had contracted with the owners of an apartment building to replace the building’s roof. 2006 ND 187, ¶ 2, 721 N.W.2d 33. The building owners, including two tenants who had sustained property loss due to water damage, subsequently claimed that the insured had failed to protect the apartment building from rainstorms while replacing the roof, which caused extensive damage to the interior of the building. Id. The insurer commenced a separate action, seeking a declaration that the insured’s CGL policy did not provide coverage for the damages in the underlying action. Id. at ¶ 4.

[¶ 18] On appeal, this Court concluded that any damages for repair or replacement of the defective roof were excluded from coverage under the CGL policy, but that damages to the apartment’s interior were not the “particular part” of the real property or any property as contemplated by exclusions k(5) and k(6). ACUITY, 2006 ND 187, ¶ 27, 721 N.W.2d 33. We thus held that the damages to the apartment building’s interior were not excluded from coverage under the policy’s exclusions.

[¶ 19] Although in the context of applying exclusions k(5) and k(6), we explained in ACUITY:

[O]ther courts have generally construed those property damage exclusions to exclude coverage when the property damage is to the property on which the insured has contracted to perform operations and not to exclude coverage when the property damage is to property that the insured was not performing operations on. Some courts have specifically recognized that facts in each case are determinative of the particular part of property on which an insured is performing its operations and that buildings may be divided into parts in attempting to determine which part or parts are the object of the insured’s work product. A common thread for deciding whether there is coverage for property damage is the scope of the insured’s contract.

2006 ND 187, ¶ 24, 721 N.W.2d 38 (citations omitted); See also Ernst, 2005 ND. 179, ¶ 11, 704 N.W.2d 869 (concluding “business risk” exclusion k(5) precluded coverage for insured’s improper installation of flooring).

[¶ 20] As discussed in 3 Rowland H. Long, The Law of Liability Insurance § 11.09[2] (2007), the injury to products or work exclusions’ purpose “is to prevent the insured from using its product liability coverage as a form of property insurance to cover the cost of repairing or replacing its own defective products or work.”

The injury to products or work exclusion is intended to exclude insurance for damage to the insured’s product or work, but not for damage caused by the insured’s product or work. Thus, the exclusion does not apply where the product or work causes damages to other persons or property. In such a situation, while there would not be coverage for damage to the work or product itself, damages caused by the product to other work or products would be covered.... The injury to work or products exclusion is consistent with the goal of the CGL, which is to protect the insured from the claims of injury or damage to others, but not to insure against economic loss sustained by the insured due to repairing or replacing its own defective work or products. As such, this type of exclusion is valid and enforceable.

3 Long, at ¶ 11.09[2].

[¶ 21] Here, the application of exclusions (k) and (i) depends largely upon the extent to which the completed funnels constitute the “product” and the “work” of Dakota Molding, in light of the definitions of the CGL policy. Under the policy, “[y]our product” is defined as “[a]ny goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by ... [y]ou ... and [containers (other than vehicles), material, parts or equipment furnished in connection with such goods or products.” “Your work” is defined as “[w]ork or operations performed by you or on your behalf’ and “[m]aterials, parts or equipment furnished in connection with such work or operations.”

[¶ 22] On appeal, Petersons attempt to downplay the role of Dakota Molding in the manufacturing process and to divide the funnel product, for purposes of the CGL policy analysis, into its component parts, contending “[t]he only part of the funnel provided by [Dakota Molding] was the plastic portion. The brass insert, label, burp tube, strainer, tether, and -rivets were supplied by Peterson, and [Dakota Molding] produced the plastic which assembled these parts together.” Indeed, Petersons argue that the various component parts, including brass fittings, various components, and equipment provided to Dakota Molding for purposes of manufacturing the funnel constitute other property such that damage to it would be covered by Dakota Molding’s CGL policy. However, the “your product” and “your work” exclusions and the policy’s definitions suggest otherwise.

[¶ 23] In applying exclusions (k) and (i), the district court here concluded that Dakota Molding’s product and work is the manufacturing of the whole funnel, such that damage to any of the various component parts would not fall outside of the exclusion. The district court correctly distinguished Fisher and ACUITY from the present case, stating:

In Fisher, [the insured] contracted to provide a specific service of sanding and applying a polyurethane finish to wood already installed, and the Supreme Court limited the scope of [the insured’s] work product to those services. In ACUITY, the [insured] roofer contracted to install a new roof, and the Supreme Court limited the scope of the roofer’s work product to that undertaking.”

(Citations omitted.)

[¶ 24] The district court looked to the scope of the Petersons’ agreement with Dakota Molding and reviewed the Peter-sons’ complaint, which provide that Peter-sons made an agreement with Dakota Molding to “manufacture the E-Z UZ Funnels in accordance with the requirements and specifications of the Petersons.” The court concluded that Dakota Molding’s work product was the production of the polyethylene cone used in the funnel and the assembly of the entire funnel. The court explained the Petersons’ alleged damages stem from Dakota Molding’s “failure to square up the funnels — in other words, [Dakota Molding] failed to assemble the funnels properly.”

[¶ 25] We conclude the district court’s analysis properly included consideration of the Petersons’ contract with Dakota Molding for purposes of determining the scope of Dakota Molding’s product and work. See ACUITY, 2006 ND 187, ¶ 24, 721 N.W.2d 33 (stating “[a] common thread for deciding whether there is coverage for property damage is the scope of the insured’s contract”).

[¶ 26] Dakota Molding’s product and work involved not only providing the plastic portion of the funnel, but also involved the manufacturing of the completed funnel product, and consequently included any material, parts or equipment furnished in connection with its goods or products or with its work or operations. Based upon the policy’s definitions, Dakota Molding’s product and work included all of the various parts and assembly of the funnel. As such, we conclude exclusions (k) and (i) apply, precluding coverage by Dakota Molding’s CGL policy to the Petersons’ alleged damages. To otherwise hold would effectively convert Dakota Molding’s CGL policy into a performance bond or guarantee of contractual performance, resulting in coverage for the repair or replacement of Dakota Molding’s own faulty workmanship.

[¶ 27] Because we conclude exclusions (k) and (l) clearly exclude coverage for the underlying claim, on this record, as a matter of law, no factual issues meet the burden under Medd v. Fonder, 543 N.W.2d 483 (N.D.1996). We, therefore, affirm the district court’s order concluding Petersons failed to demonstrate probable grounds for believing National Fire might be liable under its CGL policy for its damages, and denying Petersons’ motion for leave to file a supplemental complaint against National Fire as garnishee.

[¶ 28] In light of our disposition, we have considered the Petersons’ remaining issues and conclude they either lack merit or are unnecessary to our decision. See City of Bismarck v. Witzke, 2005 ND 170, ¶ 2, 709 N.W.2d 21.

[¶ 29] The district court order is affirmed.

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