author: HUITINK, P.J.

text:
    In re The MARRIAGE OF Sheri R. BERNING and Vernon R. Berning Upon the Petition of Sheri R. Berning n/k/a Sheri R. Carter, Petitioner-Appellant, And Concerning Vernon R. Berning, Respondent-Appellee.
    No. 07-0371.
    Court of Appeals of Iowa.
    Dec. 12, 2007.

      Andrew B. Howie of Hudson, Mallaney & Shindler, P.C., West Des Moines, for appellant.
    Kirke C. Quinn, Boone, for appellee.
    Heard by HUITINK, P.J., and MILLER and EISENHAUER, JJ.
   HUITINK, P.J.

Sheri Berning appeals the physical care provisions of the district court’s dissolution decree. We affirm.

I. Background Facts and Proceedings

Vern and Sheri Berning began living together in 1999. Sheri gave birth to their son, Ethan, in June 2001. Vern and Sheri were married in 2003.

Sheri was forty years old and working as a teacher’s aide at the time of the dissolution hearing. She was married previously. This previous .marriage produced two children. The children were placed with their father pursuant to the 1992 dissolution decree.

Vern was fifty-three years old at the time of the dissolution hearing. Vern has been employed with the railroad since 1978. He works a unique work schedule where he works eight consecutive days, often away from home, and then does not work for the next seven consecutive days. Vern was also previously married. This previous marriage produced two children, one of whom was placed with Vern pursuant to the dissolution decree. Both children are now adults living outside of the home.

Sheri took twelve weeks of family leave from work to care for Ethan when he was born. In February 2003 Sheri left her job for eight months and stayed home to care for Ethan. She began working again in October 2003, and Ethan was placed in daycare.

Sheri filed a petition for dissolution of marriage on March 31, 2006. Sheri and Ethan moved to a new residence a few miles away. Shortly after the petition was filed Vern, without advice from counsel, signed a stipulation, indicating that Sheri would have temporary physical care and he would receive “reasonable and liberal visitation as agreed between the parties.” Vern also agreed to pay $587.68 per month in child support.

Vern and Sheri met with a licensed psychologist on four occasions for their marital difficulties, and then met individually with the psychologist on other occasions. Sheri stopped attending the counseling sessions, but Vern continued on. Sheri met a man over the Internet and began traveling to Canada to visit him. Ethan stayed with Vern during Sheri’s numerous trips to Canada.

The parties eventually ágreed to an arrangement whereby they would alternate care for the child. Vern cared for Ethan during the seven days he was off from work, and Sheri cared for Ethan during the eight days he was away at work. However, in late August Sheri determined this schedule was not appropriate during the school year so she decided to end the arrangement. Vern filed a motion to modify temporary custody, and the court ordered that Sheri would have temporary physical care and Vern would have visitation from Thursday evening through Sunday during the weeks he was not working.

At the dissolution hearing, Sheri requested primary physical care, and Vern requested joint physical care. On January 3, 2007, the district court entered an order awarding both parties joint physical care. The physical care arrangement shadowed Vern’s work schedule. The court also distributed the marital assets, ordered Vern to pay a reduced amount of monthly child support, and ordered him to pay a portion of Sheri’s attorney fees.

On appeal, Sheri claims the district court erred in granting joint physical care. Vern resists, arguing the joint physical care arrangement is appropriate. Both parties request appellate attorney fees.

II. Standard of Review

We review claimed error in dissolution of marriage decrees de novo. See In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). “Although we decide the issues raised on appeal anew, we give weight to the trial court’s factual findings, especially with respect to the credibility of the witnesses.” In re Marriage of Witten, 672 N.W.2d 768, 778 (Iowa 2003).

III. Applicable Law

“Joint physical care” means an award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child. Iowa Code § 598.1(4) (2005). The rights and responsibilities include, but are not limited to, shared parenting time with the child, maintaining homes for the child, and providing routine care for the child. Id. With joint physical care, “neither parent has physical care rights superior to the other parent.” Id. Iowa Code section 598.41(5)(a) (Supp. 2005) provides:

If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent.... If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.

Our supreme court recently devised a nonexclusive list of factors to be considered when determining whether a joint physical care arrangement is in the best interests of the child. In re Marriage of Hansen, 738 N.W.2d 683, 697 (Iowa 2007). The factors are (1) “approximation” — what has been the historical care giving arrangement for the child between the two parties; (2) the ability of the spouses to communicate and show mutual respect; (3) the degree of conflict between the parents; and (4) “the degree to which the parents are in general agreement about their approach to daily matters.” Id. at 697-99.

IV.Merits

Generally, we give considerable deference to the district court’s credibility determinations because the court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992). The district court noted it was “somewhat skeptical of Sheri’s credibility” in this case. This credibility finding is reflected throughout the court’s ruling.

Upon our de novo review of the record, we agree with this court’s credibility finding. Sheri’s testimony in this case paints a much different picture than that of other witnesses who have no interest in this case. For example, Sheri contends that she and Ethan’s preschool teacher determined Ethan’s behavioral problems at preschool coincided with his visits with Vern. However, the preschool teacher’s testimony revealed no such correlation; instead, she labeled his behavioral problems as “sporadic.” Also, Sheri’s description of an incident at the daycare provider where she called the sheriff to keep Vern from taking Ethan contradicts the provider’s description of the incident and the proportionate response by the authorities. Finally, the psychologist who counseled both parties testified that Sheri was originally amenable to a joint care arrangement. However, Sheri said she never told the psychologist she was amenable to a joint care arrangement. Accordingly, we give considerable weight to the district court’s credibility determination.

Approximation. Sheri argues the district court should have granted her primary physical care because she was Ethan’s primary caregiver. As noted in her appellate brief, “When Vern was gone [for work], Sheri took care of Ethan 100% of the time. When Vern was home from work, at best, he took care of Ethan 50% of the time.” She also points out that she has played a larger role in taking Ethan to routine doctor and dentist appointments.

While the proportionate amount of time spent with each parent prior to the dissolution is a significant factor in determining the post-dissolution physical care arrangement, there are several factors mitigating its importance in this case.

The record reveals that Vern has been a very active and interested parent since Ethan’s birth. Sheri’s attempts to argue that Vern’s interest and care for Ethan was limited prior to the separation are belied by the record. For example, Ethan’s former daycare provider, who had known the family long before the separation, described Vern as an “excellent father” who always put Ethan’s needs in the forefront. Likewise, Ethan’s preschool teacher for the past two years testified that Vern had a positive relationship with his son and that Vern was a concerned and good parent. Also, the family psychologist testified that Vern was “imminently capable” of being a stable parent for Ethan. Finally, when Sheri wanted to travel to Canada to see her boyfriend, she had no hesitation leaving Ethan with Vern for extended periods of time.

We also find approximation is mitigated in this case because Ethan has spent a considerable portion of his life in daycare or pre-school. There have been short spans of time where Sheri stayed home with Ethan, but this time at home with Ethan is outweighed by the amount of time he has spent in daycare or preschool while both parents worked.

In sum, Sheri’s role as the predominant caretaker is a factor in this case, but it is not an overwhelming factor mandating that she be awarded physical care of Ethan.

Communication and Conñict. Sheri points to several incidents that allegedly demonstrate a lack of communication and conflict between herself and Vern. The district court minimized these incidents and noted the parties “appearance in Court and contact during separation did not suggest an adversarial relationship.” The psychologist who counseled both Sheri and Vern agreed that there was a level of tension between the two parents, but found the tension was not extraordinary. He also testified that he did not believe the tension would prohibit a split custody arrangement. We, like the district court, find Sheri’s claims concerning the parties’ inability to communicate are overstated. After a thorough review of the record, we find there is no reason to conclude the existing communication or level of respect between the parties would be a significant impediment to joint physical care.

Daily Matters of Care. Sheri claims both parents cannot agree on the daily matters of child care. Upon our review of the record, we find little support for these assertions because both parents appear to be operating on the same page as to child rearing style and discipline.

Unique Schedule. Sheri also argues that a custody arrangement which follows Vern’s unique work schedule is too disruptive for Ethan. She contends that Ethan needs stability, and Vern’s eight-day-on and seven-day-off work schedule will mean that Ethan will never have a set routine as to what days of the school week he stays with his father and what days he spends with his mother.

Vern has worked this unique schedule during Ethan’s entire life. This schedule may be untraditional, but it is also relatively stable and provides Ethan with a substantial amount of time with his father. Any other visitation or physical care arrangement would still need to be adjusted to accommodate Vern’s work schedule. On balance, we find the ordered schedule serves Ethan’s best interests as it provides him with the maximum amount of contact with his two loving parents.

After reviewing all of the evidence through the lens of the foregoing factors, we find the district court properly awarded joint physical care in this case. The district court’s findings concerning the parties’ abilities to communicate and express mutual respect for each other are amply supported by the evidence, and we adopt them as are own. Accordingly, we deny Sheri’s request for physical care and affirm the district court’s award of joint physical care.

V. Attorney Fees

Both parties seek attorney fees for this appeal. An award of appellate attorney fees is not a matter of right, but rests within our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App.1997). We consider the needs of the party making the request, the ability of the other party to pay, and whether the party was required to defend the district court’s decision on appeal. Id. After considering these factors, we decline to award appellate attorney fees to either party.

VI. Conclusion

Having considered all issues presented on appeal, whether or not specifically addressed in this opinion, we find the custody and placement provisions set forth by the district court are appropriate.

AFFIRMED.

      . Ethan began the preschool program at age three. Ethan goes to an after school daycare when preschool is over.


source: Caselaw Access Project

author: ANDERSON, PAUL H„ Justice.

license: Public Domain

text:
    Gary Lee COOPER, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-1038.
    Supreme Court of Minnesota.
    Feb. 28, 2008.

      Gary Lee Cooper, Stillwater, appellant pro se.
    Lori Swanson, Attorney General, St. Paul, Michael 0. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Minneapolis, for respondent.
   OPINION

ANDERSON, PAUL H„ Justice.

A Hennepin County jury found Gary Lee Cooper guilty of first-degree murder for the death of Gregory Peterson. Cooper was convicted and sentenced to life in prison. Cooper filed a direct appeal, which we affirmed, and two postconviction petitions in district court, which the district court denied. Cooper now appeals from a summary denial of his third post-conviction petition, arguing that (1) the state engaged in prosecutorial misconduct in its opening statement; (2) the trial judge erred in communicating with the jury outside the presence of counsel and Cooper; and (3) both Cooper’s trial and appellate counsel were ineffective. We affirm.

On March 1, 1995, appellant, Gary Lee Cooper, fatally shot Gregory Peterson outside a Minneapolis apartment. The specific facts underlying this case are detailed in our decision in Cooper’s direct appeal, State v. Cooper, 561 N.W.2d 175 (Minn.1997). At trial, Cooper did not dispute the fact that he shot Peterson but claimed that he acted in self-defense. On February 15, 1996, a Hennepin County jury found Cooper guilty of first-degree murder in violation of Minn.Stat. § 609.185(a)(1) (2006). The Hennepin County District Court convicted Cooper for this offense and sentenced him to life in prison.

Cooper appealed his conviction, alleging insufficiency of the evidence, and we affirmed. Cooper, 561 N.W.2d at 176. Cooper subsequently filed a pro se petition for postconviction relief alleging ineffective assistance of trial counsel. The postconviction court denied the petition without a hearing on the ground that Cooper failed to allege any facts to support his claim. Cooper did not appeal this decision.

Five years later Cooper filed a second petition for postconviction relief. This time he was represented by counsel. Cooper again alleged ineffective assistance of trial counsel based on his counsel’s alleged failure to raise a mental deficiency defense at trial. Cooper also asserted that his appellate counsel was ineffective for not raising this claim on his direct appeal. This second petition was denied without a hearing. Although Cooper filed a notice of appeal with this court, no appeal was ever undertaken.

Proceeding pro se, Cooper filed a third petition for postconviction relief alleging prosecutorial misconduct, improper communication between the trial judge and the jury, and ineffective assistance of counsel. The postconviction court denied this third petition without a hearing, and this appeal followed. On appeal Cooper asks us to consider whether (1) the prosecutor engaged in misconduct in his opening statement; (2) the trial judge’s communication with the jury in the absence of counsel and Cooper violated Cooper’s Sixth Amendment right under the United States Constitution. to be present at all stages of his trial; and (3) Cooper was prejudiced by ineffective assistance of trial or appellate counsel.

I.

A person convicted of a crime may petition for postconviction relief to vacate and set aside the judgment, grant a new trial, or “make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1 (2006). The petition must contain a “statement of the facts and grounds upon which the petition is based and the relief desired.” Minn.Stat. § 590.02, subd. 1(1) (2006). The postconviction court must hold an evidentiary hearing only if the petitioner alleges facts that, “if proved, would entitle [the] petitioner to the requested relief.” Spann v. State, 740 N.W.2d 570, 572 (Minn.2007) (internal quotations omitted). When reviewing a post-conviction court’s denial of relief, we review legal issues de novo and we review factual findings to determine if there is sufficient evidence in the record to sustain the findings. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003).

Once a petitioner has taken a direct appeal, all claims raised in the direct appeal as well as “all claims known but not raised” at the time of direct appeal are barred from consideration in any subsequent petitions for postconviction relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). This Knaffla bar extends to “all claims that the appellant should have known of at the time of [direct] appeal.” Mckenzie v. State, 687 N.W.2d 902, 905 (Minn.2004). Such claims will be considered on postconviction review only if they are so novel that the legal basis was not reasonably available on direct appeal or if fairness requires that we review them and the petitioner did not deliberately and inexcusably fail to raise them on direct appeal. Id.

Cooper first claims that he should be granted a new trial because of the prosecutor’s alleged misconduct during the opening statement. This claim was not raised on direct appeal or in either of Cooper’s previous two postconviction petitions. We have consistently held that claims regarding the state’s closing argument are known or should have been known at the time of a direct appeal. E.g., Pippitt v. State, 737 N.W.2d 221, 229 (Minn.2007); Severson v. State, 636 N.W.2d 808, 810 (Minn.2001). Similarly, because Cooper knew the content of the state’s opening statement at the time he filed his direct appeal with this court, we conclude that the postconviction court did not abuse its discretion in finding that Cooper’s prosecutorial misconduct claim was barred by Knaffla.

II.

Cooper next argues that he should be granted a new trial because of improper communication between the trial judge and the jury during the jury’s deliberations. During its deliberations, the jury sent a note to the trial judge requesting to review a state’s witness’ testimony. The judge responded to the note in writing, stating that no transcript was available and that the jury members would have to rely on their own memories. This note was sent to the jury in the absence of Cooper and his counsel. The note was placed in the district court file the next morning. Cooper asserts that because neither he nor his counsel was present when the communication between the judge and the jury occurred, his Sixth Amendment right under the U.S. Constitution to be present at all stages of his trial was violated.

When a deliberating jury requests to review evidence, the rules of criminal procedure mandate that the district court give notice to both the prosecutor and defense attorney, bring the jury into open court, and then determine whether to allow the jury to review the evidence as requested. Minn. R.Crim. P. 26.03, subd. 19(2)(1). A defendant has a Sixth Amendment right to be present at such a proceeding because “[r]esponding to a deliberating jury’s question is a stage of trial.” State v. Sessions, 621 N.W.2d 751, 755 (Minn.2001).

We first conclude that Cooper’s claim regarding this communication is Knaffla-barred. Cooper did not raise this claim on his direct appeal, nor was it raised in either of his first two postconviction petitions. Unlike Mckenzie v. State, in which it was necessary for us to remand to the postconviction court to determine when the defendant should have known about the communication between the judge and the jury, 670 N.W.2d 582, 583 (Minn.2003), here the record is clear — the judge’s response to the deliberating jury’s question is a part of the trial record. Therefore, we are able to conclude on this record that any claims stemming from the communication were known or should have been known at the time of Cooper’s direct appeal.

Furthermore, we have reviewed the merits of Cooper’s claim and conclude that the trial judge’s error in communicating with the jury outside the presence of Cooper and his counsel was harmless error. See, e.g., Mckenzie, 687 N.W.2d at 906 (noting that “it is well settled that ‘[e]ven if a defendant is wrongfully denied the right to be present at every stage of trial, a new trial is warranted only if the error was not harmless’ ” (quoting Sessions, 621 N.W.2d at 756)). Here, the judge’s response to the jury’s question gave “no new information * * * [and] did not favor either the prosecution or the defense.” Id. Even if the judge had brought the jury, Cooper, and counsel into open court to respond to the jury’s question, the substance of the judge’s answer would have been the same: no transcript would have been available to the jury. While the better practice is for the district court to follow the mandates of Minn. R.Crim. P. 26.03 to ensure that the criminal defendant’s Sixth Amendment right to be present at all stages of the trial is protected, the judge’s actions in this case were harmless error.

III.

Finally, Cooper claims that he received ineffective assistance of counsel both at trial and on his direct appeal. When considering such claims, we apply the two-prong ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Fields v. State, 733 N.W.2d 465, 468 (Minn.2007). The test’s first prong requires that the petitioner prove that “counsel’s representation fell below an objective standard of reasonableness.” Id. (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). Objective reasonableness requires that an attorney exercise “the customary skills and diligence that a reasonably competent attorney would [exercise] under the circumstances.” Leake v. State, 737 N.W.2d 531, 536 (Minn.2007) (quoting State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999). “There is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’ ” Fields, 733 N.W.2d at 468 (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn.1986)). The second prong requires that the petitioner prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Fields, 733 N.W.2d at 468 quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). This second prong requires that the petitioner demonstrate actual prejudice. State v. Blanche, 696 N.W.2d 351, 376 (Minn.2005).

Ineffective Assistance of Trial Counsel

This is the third time Cooper has raised a claim of ineffective assistance of trial counsel. In his first petition for post-conviction relief, which he filed pro se, he claimed his trial counsel failed to prepare and present a defense. In his second petition, which he filed with the assistance of counsel, he based his claim on the failure of his trial counsel to raise a mental deficiency defense. Cooper now argues pro se that his trial counsel was ineffective because the self-defense claim raised at trial was not supported by any evidence and that his counsel should have instead presented the theory of “heat of passion” manslaughter. Although the grounds for the current ineffective assistance of trial counsel claim are slightly different from Cooper’s earlier claims, we conclude that his current claim is barred by our rule in Knaffla because this claim was known or should have been known at the time of Cooper’s earlier postconviction petition.

Ineffective Assistance of Appellate Counsel

The two-prong Strickland test also applies to ineffective assistance of counsel claims for appellate counsel. McDonough v. State, 675 N.W.2d 53, 56 (Minn.2004). We have said that “[a]ppellate counsel need not raise all possible claims on direct appeal, and a claim need not be raised if ‘appellate counsel could have legitimately concluded that [it] would not [prevail].’” Leake, 737 N.W.2d at 536 (Minn.2007) (quoting Schneider v. State, 725 N.W.2d 516, 523 (Minn.2007)).

Cooper argues that his appellate counsel was ineffective because his counsel failed to address the issues that Cooper thought should be raised on his direct appeal. In support of this claim, Cooper submitted a letter he wrote to the public defender’s office before his direct appeal, in which he states that he would like to have two issues raised in that appeal: (1) an ineffective assistance of trial counsel claim and (2) a claim that his right to a fair trial was violated because the district court failed to instruct the jury on the lesser-included offense of first-degree manslaughter. We conclude that both of Cooper’s ineffective assistance of appellate counsel claims are barred by Knaffla. Although he knew of both grounds of this claim once his direct appeal was completed, Cooper did not raise them until the petition that is currently before us — his third petition for postconvietion relief. See, e.g., Townsend v. State, 723 N.W.2d 14, 19 (Minn.2006) (holding that an ineffective assistance of appellate counsel claim is barred if not raised in the next postconviction petition); Stiles v. State, 716 N.W.2d 327, 329 (Minn.2006) (holding that a post-conviction claim that a district court erred in failing to submit a lesser-included offense to the jury is barred by the rule of Knaffla).

Even though we conclude that Cooper’s claim is barred by Knaffla, we discuss the merits of Cooper’s second ineffective assistance of appellate counsel claim — that his appellate counsel was ineffective for failing to argue on appeal that his trial counsel should have argued that the jury should have been instructed on the lesser-included offense of first-degree manslaughter. We will do so because we have clarified our jurisprudence on this issue since the time Cooper was convicted of first-degree murder and brought his direct appeal.

In State v. Dahlin, we affirmed our “core principles” regarding lesser-included offense instructions and “provide[d] further clarification of our lesser-included jurisprudence to better guide trial courts.” 695 N.W.2d 588, 593 (Minn.2005). Lesser-included offense instructions are required “when a rational basis exists in the evidence to acquit on the greater charge and convict of the lesser.” Id. at 596. In making this determination, we clarified that district courts may not consider “either the strength of the evidence or the credibility of the witnesses” because these tasks are reserved for the jury. Id. Additionally, we held that district courts must “view the evidence in the light most favorable to the party requesting the instruction.” Id. at 597. We then stated that if a district court errs by denying a requested lesser-included offense instruction, we will reverse unless the defendant was not prejudiced by the error. Id. at 598. When determining whether a defendant has been prejudiced by a district court’s failure to give an instruction on a lesser-included offense, we “consider the instructions actually given [to the jury] and the verdict rendered by the jury.” Id. at 599.

Here, we conclude that, if the district court erred by failing to instruct the jury on the lesser-included offense of first-degree heat-of-passion manslaughter, this error did not prejudice Cooper. As agreed upon by the state, defense counsel, and the district court, the jury was given instructions on first-degree murder, second-degree murder, and second-degree manslaughter. The jury was not instructed on first-degree manslaughter, which is a lesser-included offense of first-degree murder, and such an instruction was not proposed by either party or discussed on the record. Even when the evidence is viewed in the light most favorable to Cooper, the jury’s verdict of guilty of first-degree murder “indicated that it not only believed the defendant acted with intent, but that he acted with premeditation as well.” Dahlin, 695 N.W.2d at 599 (citing State v. Merrill, 274 N.W.2d 99, 105 (Minn.1978)). Because the jury had the choice of finding Cooper guilty of intentional murder without premeditation (i.e., second-degree murder), but instead found Cooper guilty of intentional murder with premeditation, this verdict indicates that the jury would not have found Cooper guilty of first-degree manslaughter, which requires an intent triggered by the heat of passion but no premeditation. Therefore, we conclude that Cooper was not prejudiced by the district court’s failure to instruct on first-degree heat-of-passion manslaughter.

Because we conclude there was no error by the district court in not instructing the jury on first-degree heat-of-passion manslaughter, appellate counsel could have legitimately concluded that this claim would not prevail on appeal. Therefore, we conclude that appellate counsel did not act unreasonably by failing to raise this claim on appeal, and we conclude that Cooper’s claim of ineffective assistance of appellate counsel on this ground lacks merit.

We hold that the postconviction court did not err when it denied Cooper’s third postconviction petition without holding a hearing.

Affirmed.

DIETZEN, 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.

      . The jury's handwritten note, signed by the foreperson, states in its entirety: "We would like to review the testimony of David Lind-man.” David Lindman, a forensic scientist for the Bureau of Criminal Apprehension, testified on behalf of the state.

      . Directly below the jury’s request is the handwritten response of the judge, which states in its entirety: "There is no transcript available for David Lindman or any other witness. You will have to rely upon your own memory.” The note is signed and dated by the judge.

      . We also note that the events underlying Cooper’s claim of improper communication between judge and jury occurred in 1996 before several of our more recent decisions regarding the protocol district courts must follow. E.g., Mckenzie, 687 N.W.2d at 904-06; Brown v. State, 682 N.W.2d 162, 166-68 (Minn.2004); Mckenzie, 670 N.W.2d at 583-84.


author: MINGE, Judge.

text:
    EDINA COMMUNITY LUTHERAN CHURCH, Respondent, Unity Church of St. Paul, Respondent, v. STATE of Minnesota, Appellant.
    No. A07-131.
    Court of Appeals of Minnesota.
    Feb. 5, 2008.

      David L. Lillehaug, Frederikson & Byron, P.A., Minneapolis, MN, for respondent Edina Community Lutheran Church.
    Marshall H. Tanick, Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, for respondent Unity Church of St. Paul.
    Lori Swanson, Attorney General, Peter Marker, Jocelyn F. Olson, Assistant Attorneys General, St. Paul, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge; HALBROOKS, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant State of Minnesota challenges the district court’s grant of a permanent injunction barring enforcement of certain provisions of the 2005 Minnesota Citizens’ Personal Protection Act (the 2005 Act) against respondent churches. Appellant contends that the district court erred by (a) concluding that the 2005 Act excessively burdens the rights of respondents protected by Minn. Const, art. I, § 16; (b) determining that the 2005 Act violates respondents’ rights under U.S. Const, amend. I; and (c) finding that the 2005 Act violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc. Appellant also argues that the recognition of an exemption for the churches from statutory provisions generally applicable to private establishments violates the Establishment Clause of the federal constitution.

Because the district court did not err in granting injunctive relief based on the state constitutional provision guaranteeing religious liberty, and because the district court’s recognition of an exemption does not constitute an impermissible establishment of religion, we affirm in part. Because this decision rests on independent and adequate state constitutional grounds, we do not reach the question of whether the district court erred in finding the 2005 Act unconstitutional under the First Amendment of the United States Constitution. Finally, because we conclude that the provisions of the 2005 Act pertaining to the exclusion of guns from private property do not constitute “land use regulations,” we reverse that part of the district court’s decision finding the 2005 Act to be in violation of RLUIPA.

FACTS

In April 2003, the Minnesota Legislature adopted 2003 Minn. Laws ch. 28 (the 2003 Act). The legislation was immediately challenged in at least two separate actions: its enforcement was temporarily enjoined by one district court at the request of religious organizations asserting violations of state and federal constitutional provisions, and it was declared by a different district court to violate the single-subject requirement of Minn. Const. art. IV, § 17. See Unity Church of St. Paul v. State, 694 N.W.2d 585, 590, 599 n. 2 (Minn.App.2005) (discussing different challenges to the 2003 Act), review dismissed (Minn. June 9, 2005).

On appeal from the judgment in favor of the challengers in the single-subject suit, this court affirmed the determination that articles 2 and 3 of the session law were unconstitutional because they were not germane to the same subject as article 1, which contained many provisions on topics relating to natural resources, but which were unrelated to handgun permitting and firearm regulation. Id. at 595. Although the district court had indicated its willingness to find the 2003 Act unconstitutional under Minnesota’s Freedom-of-Conscience Clause, Minn. Const. art. I, § 16, this court declined to offer an advisory opinion on the alternative arguments raised by the challengers, leaving those issues for another day. Id. at 600.

This court’s opinion was filed on April 12, 2005, and the state petitioned the supreme court for further review. Id., pet. for rev. filed (Minn. May 11, 2005). Shortly thereafter, the legislature reenacted the provisions of articles 2 and 3 “retroactively and without interruption from April 28, 2003” and added certain amendments in a session law that dealt exclusively with the permitting and regulation of firearms. 2005 Minn. Laws ch. 83, §§ 1-11 at 442-50 (the 2005 Act). The state then withdrew its petition for further review of this court’s ruling concerning the 2003 Act.

The respondents on this appeal are Edina Community Lutheran Church (Edina) and Unity Church of St. Paul (Unity) (or collectively “churches”). Both were involved in a challenge to the 2003 Act, and both argued in that action that the act violated freedom-of-conscienee and religious-association rights protected by the Minnesota and federal constitutions. As indicated above, those claims were not addressed on appeal because the act was declared unconstitutional on other grounds. See Unity Church of St. Paul, 694 N.W.2d at 600. After the legislature reenacted the Minnesota Citizens’ Personal Protection Act in 2005, Edina and Unity brought the action now before us, seeking injunctive relief on grounds that were substantially similar to their earlier challenge.

Here, the district court granted permanent injunctive relief, prohibiting enforcement against the respondent churches of the statutory provisions relating to signage and personal notice, parking areas, and landlords. For ease of reference, we refer to the following provisions of the 2006 Minnesota Statutes as the “challenged provisions”: Minn.Stat. § 624.714, subds. 17(a) and (b) (2006) (prescribing two options for notifying visitors that guns are banned from private establishments); 17(c) and 18(c) (barring private establishments and employers from prohibiting firearms in parking areas and facilities); and 17(e) (prohibiting landlords from restricting the possession of firearms by tenants or their guests).

The churches submitted the matter to the district court on the basis of a stipulated record, and the parties do not dispute the facts. That record contains un-controverted affidavits from the churches describing the religious burden imposed by the challenged provisions. Edina provided affidavits from its bishop and pastors stating that compliance with the act would violate sincerely held religious beliefs and the church’s statement of mission and purpose, which includes a commitment to peacemaking and nonviolence in all relationships. Edina’s religious leaders assert that the church is considered to be a place of sanctuary. Regarding the requirement that signs be posted at every entrance, Edina’s religious leaders explained that the entrances of Lutheran churches are reserved for important religious messages and this can be traced to Martin Luther’s act of nailing the Ninety-Five Theses to the door of the Castle Church in Witten-berg, Germany.

Edina owns and operates a church building, contiguous parking areas, and a contiguous playground for children. The lower level of the church, which is used for Sunday school instruction and nursery school, is directly accessible from the parking lot. Edina provided specific evidence that its parking lot is used for worship activities, including the Vigil of Easter. As part of its religious mission, Edina asserts that it serves as employer of religious persons and landlord for a licensed child-care center that is operated in its church building. Finally, Edina provided evidence that its leadership and congregation unanimously seek to prohibit firearms on all of the church’s property.

Unity also provided uncontroverted affidavits from its co-ministers. Unity’s mission and values establish that the church strives to be a free and inclusive religious community that provides a place of sanctuary and is openly welcoming. On Sunday mornings, Unity has greeters at entrances to the church building to personally welcome visitors. Unity asserted that compliance with the signage and personal notice requirements of the act would be inconsistent with its mission to provide a safe sanctuary and welcoming place of worship. Unity’s building — encompassing approximately 54,000 square feet — houses a large sanctuary and chapel, office space, classrooms, a nursery, gathering places and meeting rooms, a parish hall and kitchen, libraries, and a courtyard. Unity also considers two parking lots on church property important in accomplishing its religious mission. These lots, along with the church building, are used for weddings, funerals, religious education classes for youth and adults, prayer vigils, car washes and other fundraisers, and numerous community meetings and events.

Unity is also a landlord and an employer. At times, Unity’s church premises serve as an overflow homeless shelter for Ramsey County’s Project Home. Families arrive and leave by taxi through a church parking lot and, when needed, the church uses Sunday school classrooms as bedrooms. As part of Unity’s commitment to peacemaking and nonviolence, church leaders have adopted resolutions prohibiting firearms on all church property. The resolutions reflect Unity’s belief that the challenged provisions violate the right to use church property to communicate and exercise religious beliefs and burden the right to welcome worshippers and visitors as Unity sees fit.

The state does not challenge the sincerity of the religious beliefs asserted by the churches. The state presented affidavit evidence on the purposes underlying adoption of the 2003 Act and the 2005 Act, but did not present specific evidence on the impact, if any, of enjoining enforcement of the challenged provisions on church property.

ISSUES

I. Did the district court err by concluding that the challenged provisions violate respondent churches’ fundamental religious liberty rights protected by Minn. Const, art. I, § 16?

II. Did the district court err by finding that the challenged provisions violate freedom-of-association rights protected by the First Amendment of the United States Constitution?

III. Does the district court’s grant of a permanent injunction and recognition of a religious exemption violate the Establishment Clause?

IV. Did the district court err by finding that the challenged provisions violate RLUIPA?

ANALYSIS

I.

We begin with the determination under the Minnesota Constitution. The constitutionality of a statute is a question of law to be decided de novo, and an appellate court is not bound by the district court’s decision. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). Statutes are presumed constitutional, and an appellate court should exercise extreme caution in deciding whether to declare a law to be unconstitutional. Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 298-99 (Minn.2000).

A. Statutory Framework

A preliminary review of the specific provisions of the Minnesota Citizens’ Personal Protection Act at issue may be helpful. Although the 2003 Act and the 2005 Act modified several statutes, most of the provisions that are the focus of this opinion are now codified in Minn.Stat. § 624.714 (2006) and were not significantly altered when reenacted in 2005. With the adoption of the 2003 Act, Minnesota became a “shall-issue” state, requiring county sheriffs to issue permits to carry firearms to qualified applicants. Id., subds. 2(b) (defining those to whom permits must be issued), 6 (requiring sheriff to issue permit or deny on specified grounds within 30 days after receipt of application).

The manner and extent to which property owners, occupants, and operators of establishments may exclude firearms is treated differently in the applicable statutes, depending primarily on the type of property involved. Limitations on the possession of firearms on school property are addressed principally in the criminal code. See Minn.Stat. § 609.66, subd. Id (2006). With limited exceptions, people— including those who have permits to carry firearms — are not entitled to possess firearms on school property, including public and private elementary, middle, and secondary schools and their improved grounds; licensed child-care centers at which children are present and participating in child-care programs; or school buses. Id.

Other types of property are treated differently. The possession of firearms at private establishments is addressed in subdivisions 17 and 18 of section 624.714, and the parties to this appeal agree that these are the most pertinent provisions. Permit holders cannot be prohibited from carrying or possessing “firearms in a [private establishment’s] parking facility or parking area.” Id., subd. 17(c). Beyond the parking areas, owners and operators of private establishments may request that those carrying guns leave their premises: “A person carrying a firearm ... under a permit or otherwise who remains at a private establishment knowing” of “a reasonable request” by the establishment’s owner or operator that guns not be brought onto the premises “may be ordered to leave the premises.” Id., subd. 17(a). If someone who knows of a reasonable request to refrain from bringing guns onto the premises (a) fails to honor that request, (b) is ordered to leave, and (c) nonetheless fails to leave; the person may be found guilty of “a petty misdemeanor,” but cannot be fined more than $25 for a first offense. Id.; cf. Minn.Stat. § 609.0331 (2006) (providing that maximum penalty for other petty misdemeanors is $300). To qualify as a “reasonable request” to refrain from carrying guns onto the premises, the owner either (a) must post “a conspicuous sign at every entrance” stating that the operator of the establishment “BANS GUNS IN THESE PREMISES,” and the placement of the sign must conform to detailed requirements as to typeface, color, size, lateral distance from the entrance, and height from the floor; or (b) must “personally inform[ ] the person that guns are prohibited in the premises” and must “demand! ] compliance.” Id., subd. 17(b).

Respondents object to the provisions requiring churches to post signs or provide personal notice, to the requirement that they order a gun-carrying individual to leave the premises before the statutory sanction (a petty misdemeanor) may be invoked, and to the statutory prohibition against banning guns in church parking areas.

The statutory provisions on signage and personal notice contained in subdivision 17 have no application “to private residences.” Id., subd. 17(d). “The lawful possessor of a private residence may prohibit firearms, and provide notice thereof, in any lawful manner.” Id. While the possessor of a private residence can exclude guns, “(a] landlord may not restrict the lawful carry or possession of firearms by tenants or their guests.” Id., subd. 17(e). In their role as landlords, the respondents object to the statutory prohibition against churches restricting the carrying and possession of guns by their tenants and the guests of their tenants.

In addition to the possessors of private residences, some other property owners are authorized to limit the carrying and possession of guns without complying with statutorily-mandated signage or personal notice requirements. Employers can limit the carrying of guns by employees who are acting within the scope of their employment, and postsecondary schools can restrict the possession of firearms by students on school property, but neither group can “prohibit the lawful carry or possession of firearms in a parking facility or parking area.” Id., subd. 18. Thus, although employers and postsecondary schools — like the owners and operators of private establishments — cannot ban guns from parking areas, they are free to adopt “policies” restricting the possession of guns on the job or on postsecondary school property and to impose “[ejmployment related civil sanctions” or “!a]cademic sanctions” for violations. See id., subd. 18(a) (employment-related civil sanctions), (b) (academic sanctions). Neither the language of those policies nor the manner of imposing sanctions for violations is prescribed by the statute.

B. Constitutional Analysis

We turn now to appellant-state’s challenge to the district court’s determination that the challenged portions of the 2005 Act violate the churches’ freedom-of-conscience rights under the Minnesota Constitution.

Article I, section 16 of the Minnesota Constitution states:

The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed ... nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state[.]

(Emphasis added.)

“Religious liberty is a precious right.” State v. Hershberger, 462 N.W.2d 393, 398 (Minn.1990). The people of this state have always cherished religious liberty and the high importance of protecting this right is demonstrated by its treatment in our constitution, where it appears even before any reference to the formation of a government. State by Cooper v. French, 460 N.W.2d 2, 8-9 (Minn.1990). The Minnesota Supreme Court has consistently held that article I, section 16 of the Minnesota Constitution affords greater protection against governmental action affecting religious liberties than the First Amendment of the federal constitution. Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 864-65 (Minn.1992); Hershberger, 462 N.W.2d at 397. “Whereas the first amendment establishes a limit on government action at the point of prohibiting the exercise of religion, section 16 precludes even an infringement on or an interference with religious freedom.” Hershberger, 462 N.W.2d at 397. Thus, government action that is permissible under the federal constitution because it does not prohibit religious practices but merely infringes on or interferes with religious practices, may nonetheless violate the Minnesota Constitution. Id.

Minnesota courts employ a heightened “compelling state interest balancing test” when determining whether a challenged law infringes on or interferes with religious practices. Hill-Murray, 487 N.W.2d at 865. The test has four prongs: (1) whether the objector’s beliefs are sincerely held; (2) whether the state regulation burdens the exercise of religious beliefs; (3) whether the state interest in the regulation is overriding or compelling; and (4) whether the state regulation uses the least restrictive means. Id.

1. The Sincerity of the Churches’ Religious Beliefs

The state does not challenge the sincerity of the churches’ religious beliefs. Both churches are committed to peacemaking and nonviolence, to maintaining and providing a place of sanctuary, and to using church property in furtherance of their religious missions. Edina also submitted uncontroverted evidence that church entrances have a special significance in the Lutheran tradition. This prong of the test is clearly met.

2. Whether the Challenged Provisions Burden the Exercise of Religious Beliefs

The state argues that the challenged provisions of the 2005 Act present only a de minimis burden on the churches’ exercise of their religious beliefs. The churches counter that the challenged provisions burden their rights to communicate and worship as they see fit, to use church-owned property to further their religious missions, to preclude employees from possessing firearms in parking areas, and to restrict the possession of firearms on church property by tenants.

Under the second Hill-Murray factor, those challenging the application of a law have the burden of establishing that challenged provisions infringe on their religious autonomy or require conduct inconsistent with their religious beliefs. Shagalow v. Minn. Dep’t of Human Servs., 725 N.W.2d 380, 390-91 (Minn.App.2006), review denied (Minn. Feb. 28, 2007). To constitute such a burden, the challengers must establish that the risk of interference with religious beliefs or practice is real and not “remote.” Hill-Murray, 487 N.W.2d at 866. Religious institutions can be required to comply with statutes of general application, and the focus is on whether compliance requires a change in “religious conduct or philosophy.” Rooney v. Rooney, 669 N.W.2d 362, 369 (Minn.App.2003), review denied (Minn. Nov. 25, 2003).

(a) Church Building; Reasonable Request” Alternatives

Under the statute, two options are prescribed for private establishments that wish to communicate their preference that visitors refrain from carrying guns. They must either (a) post “a conspicuous sign at every entrance” that states the operator of the premises “BANS GUNS IN THESE PREMISES,” and each sign must conform to specific statutory requirements on typeface, size, color, and placement, or (b) personally inform “the person that guns are prohibited in the premises and demand[] compliance.” Minn.Stat. § 624.714, subd. 17(b)(l)(i)-(ii) (2006). Even after making a “reasonable request” that guns not be brought onto the premises, and even if that request complies precisely with the terms of the statute, the owner or operator of a private establishment must also order a person who refuses to comply “to leave the premises,” before that person can be prosecuted for petty misdemeanor trespass. Minn.Stat. § 624.714, subd. 17(a). In addition, the gun possessed by the trespasser is not subject to forfeiture. Id.; cf. Minn.Stat. § 609.531, subds. 1(b), 4 (2006) (weapons subject to forfeiture).

(i) The Sign Provision

The state contends that the first option — posting signs at every entrance to the church premises — constitutes only a de minimis burden and does not force the churches to change their religious conduct or philosophy. The state presented no evidence to the district court to establish that the use of signs at every entrance would have no impact on protected religious beliefs. Instead, the state argues that the sign provision is religiously neutral and presents no greater burden than public welfare laws, such as those requiring exit signs and the allowance of seeing-eye dogs.

But the uncontroverted affidavits before us establish that the sign provision does compel churches that wish to exclude firearms to act in a manner that is inconsistent with their religious beliefs by requiring that they place specific, conspicuous signs at every entrance to the church. The churches’ affidavits also establish that they adhere to a philosophy of welcoming visitors to a place of sanctuary and that compelling the use of specific prohibitory language is inconsistent with their religious beliefs. None of the evidence shows that exit signs or signage related to persons with disabilities requires any change in the churches’ religious conduct or philosophy, is inconsistent with any religious belief, or would be immediately apparent to all entering the churches’ front doors in the same manner as the signs at issue. The analogy is not persuasive.

The state also argues that the churches’ use of alternative signs demonstrates that the statutory provision does not substantially burden the exercise of religious beliefs. The record discloses that Edina posted a sign that reads: “Blessed are the peacemakers. Firearms are prohibited in this place of sanctuary.” The state argues that the churches could easily comply with the law by inserting “Edina Community Lutheran Church bans guns in these premises” between the first and second sentences of the existing sign. However, the statute requires very specific language; even the alternative proposed by the state appears to violate the sign provision. See Minn.Stat. § 624.714, subd. 17(b)(l)-(3) (mandating the use of specified language and typeface and establishing requirements as to color, size, and placement of sign), (f) (providing that this statute “sets forth the exclusive criteria” for notifying permit holders that “otherwise lawful firearm possession is not allowed in a private establishment”).

The Minnesota Supreme Court has recognized that the compelled use of a specific warning, whose color and meaning are mandated by the state, may sometimes be “antithetical to” sincerely held principles of religious faith. Hershberger, 462 N.W.2d at 396. The fact that religious adherents are willing to convey a warning or message on the same subject, using different methods or means of communication, did not preclude the supreme court in Hershberger from finding that the state-mandated slow moving vehicle symbol at issue substantially burdened religious freedom. Id. (declining to reconsider court determination that sincere religious beliefs of the Amish precluded use of state-mandated symbol and court rejection of a proposed less-restrictive alternative based on use of “reflective tape with lighted red lanterns”). Similarly, the willingness of respondents to convey their views about the possession of guns on church property through alternative methods does not render the compelled notice provisions a minimal burden on sincerely held religious beliefs.

(ii) The Personal Notification Provision

If a church elects not to post signs that comply with the statute at every entrance, it may satisfy the statutory requirement of making a “reasonable request” to refrain from bringing guns onto the premises by “personally informing] the person that guns are prohibited in the premises and demanding] compliance.” Minn.Stat. § 624.714, subd. 17(b)(1)(h). ■ Given the number of entrances to church buildings, stationing representatives of the church at every door to speak with every visitor about the gun ban may well be unrealistic or, at the very least, a burden on the churches.

The state asserts that the statute does not require individual oral notice and proposes that churches call their members, send letters and e-mails, or place notices in the church bulletin. The state’s proposed alternatives to face-to-face contact are troublesome. At the outset, it is not clear that the state’s proposed alternatives are consistent with the statute. The statute requires that the churches’ “agent personally inform[ ]” others. Id. Mailed or published notice is not recognized as an alternative. Phone calls, letters, and e-mails would reach only regular members or attendees who have chosen to provide contact information, and will not provide the statutorily required personal notice to first-time or casual visitors. To ensure effective notice, church, staff, members, or volunteers would still have to monitor every church entrance and identify all visitors, verifying that they have previously received notice or personally informing them of the churches’ policy on guns. This would be inconsistent with the churches’ stated mission of providing a welcoming and open place of sanctuary and worship.

The state also suggests that churches announce their gun policies prior to or at the beginning of services, asserting that this would not constitute a significant burden because other announcements are often made at that time regarding the birthdays of members and upcoming community events. Such an announcement may not reach those who arrive late to services, parents tending to fractious children or assisting with Sunday school, and those who are inattentive. Even assuming that a general announcement would satisfy the statutory requirement that “the person” having a gun be personally informed of the policy, the suggestion that religious leaders incorporate a state-mandated message about gun possession into every worship service is constitutionally troublesome because the record establishes that the message is inconsistent with the churches’ religious philosophy.

We agree with the district court that the record establishes that the personal notice provision significantly burdens the sincerely held religious beliefs of the respondent churches. We need not determine whether all religious organizations would be similarly burdened by enforcement of the statutes or whether requiring personal notice could be permissible on church property not used for worship or religious purposes.

(b) The Parking Area Provisions

The 2005 Act provides that “[t]he owner or operator of a private establishment may not prohibit the lawful carry or possession of firearms in a parking facility or parking area.” Minn.Stat. § 624.714, subd. 17(c). Similarly, while churches, as employers, can establish policies restricting the possession of firearms by employees acting in the course and scope of employment, employers cannot prohibit the carrying or possession of guns by employees in privately owned parking lots or facilities. Id., subd. 18(a), (c).

Evidence submitted by the churches established that parking areas on church property serve an important role in their religious missions. The parking areas of respondent churches are adjacent to their places of worship and are used for worship services, weddings and funerals, religious education classes, prayer vigils, fundrais-ing, and other church-approved events. There was no evidence that the respondent churches charge parking fees or operate these parking areas as commercial ventures. The state argues that the statutory requirement that permit holders be allowed to store guns in their vehicles while on church property does not require the churches to change their religious conduct or philosophy. The state proposes a “functional test” that would allow churches to ban guns from parking areas during worship services, but not when these areas are used solely for parking.

The state’s effort to reconcile both state and religious interests is not consistent with the language of the statute. The statute prohibits the churches from banning guns in its parking areas, without regard to the nature of the activities being conducted there — even if those activities include worship services. Minn.Stat. § 624.714, subds. 17(c), 18(c). Furthermore, the proposed test would create an additional burden for churches (and, potentially, for the courts), because it would require that the purpose of each function be examined to determine its connection to the churches’ religious missions, and whether guns could be temporarily banned from parking areas. State monitoring of the use of church property creates a substantial risk of interference with religious activities and philosophy. Existing case-law does not support placing the state in the position of second-guessing a church’s determination that, for example, a car wash held by a youth group to raise funds for mission work is sufficiently connected with the church’s religious mission to justify a temporary gun ban in the church parking lot.

The district court expressed its concern that the statutory provisions limiting a property owner’s control over privately-owned parking areas significantly alters and diminishes the rights of property owners. Although one of the fundamental elements of property rights is the right to exclude others and the government’s power to take that right without compensation is limited, see Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 392-93, 62 L.Ed.2d 332 (1979), we do not base our decision on concepts related to property ownership. And we need not consider whether the statutory limits on banning guns in parking areas would similarly burden religious freedom if applied to commercial parking facilities owned by churches or parking areas wholly unrelated to religious activities.

(e) The Tenant Provision

The state challenges the district court’s conclusion that barring a landlord’s ability to “restrict the lawful carry or possession of firearms by tenants or their guests” is unconstitutional as applied to tenant-used portions of church premises. Minn.Stat. § 624.714, subd. 17(e).

We presume that the restriction is intended to protect tenants and guests who have complied with the statutory provisions for obtaining permits to carry firearms and who are conducting themselves lawfully. The sincerely held religious beliefs of a landlord sometimes require an exemption from laws designed to protect the rights of tenants and potential tenants, especially if those affected are not members of constitutionally recognized classes. See State by Cooper, 460 N.W.2d at 10-11 (holding that landlord whose sincere religious beliefs were inconsistent with premarital cohabitation was entitled to exemption from state’s enforcement of human rights act prohibiting discrimination based on marital status). The record establishes that the respondent churches serve as landlords for licensed child care, homeless services, and various community organizations and programs operating on church property. The inability to control whether tenants or their guests possess guns on church property burdens the religious conduct of the churches because they are denied the opportunity to limit the use of the actual church premises to tenants whose operations are consistent with the churches’ commitment to nonviolence and their opposition to the carrying of guns. These are the same facilities where religious services are conducted. Thus, we conclude that the challenged provisions relating to landlords significantly burden the churches’ sincerely held religious beliefs and their right to religious freedom under the Minnesota Constitution.

3. Whether the State Interests Promoted by the Challenged Provisions are Overriding and Compelling

Because respondent churches have established that the challenged provisions significantly burden their exercise of religious beliefs, the burden now shifts to the state to demonstrate the existence of compelling and overriding governmental interests that may, under some circumstances, outweigh the important interest in preserving religious liberty. See Hill-Murray, 487 N.W.2d at 866. The state contends that -recognizing an exemption for the churches will affect the state’s interest in (a) regulating the fundamental, individual right to keep and bear arms; (b) increasing public safety by allowing citizens to protect themselves against violent crimes; (c) protecting the fundamental right to travel; and (d) ensuring clarity and uniformity in notices about the banning of guns.

Under article I, section 16, “[ojnly the government’s interest in peace or safety or against acts of licentiousness will excuse an imposition on religious freedom under the Minnesota Constitution.” Hershberger, 462 N.W.2d at 397. Even when public safety is at stake, the “blanket denial of a religious exemption” is not appropriate unless the government can establish that the affected religious practices are specifically “inconsistent with public safety.” Id. at 398. In Hershberger, the court specifically rejected the state’s assertion that public safety required the uniform use of a state-designated symbol to warn other drivers about slow-moving Amish buggies, concluding that the competing values of freedom of conscience and public safety could be achieved, despite the recognition of an exemption based on religious beliefs. Id. at 399.

The legislature has declared that the statute furthers a compelling state interest in regulating the “fundamental, individual right to keep and bear arms.” Minn. Stat. § 624.714, subd. 22 (2006). More specifically, the state contends that the purpose of the law is to protect citizens by allowing them to carry firearms to deter and defend against violent behavior. But the state presented no evidence in the district court that denying an exemption to religious institutions would result in the victimization of citizens at church functions, in church parking lots, or in church building areas used by tenants. The state therefore did not show that religious practices, including the religious-based exclusion of weapons from church property and activities, are actually “inconsistent with public safety” as the standard articulated in Hershberger demands. See Hershberger, 462 N.W.2d at 398. Some might argue that because conflicts over religious differences have occasionally led to volatility and violence, guns should be banned on church property. Others might argue that churchgoers are less likely to be targeted by those who disagree with their views if there is at least the possibility that congregants are armed. We need not decide which view is more persuasive, because the record before us simply does not include any evidence that permitting these respondents to ban guns on church property is inconsistent with the articulated state interest in public safety. Accordingly, we conclude that the state’s interest in public safety does not outweigh the churches’ right to freely exercise their religious beliefs.

The state also asserts that exempting churches from the law will burden the fundamental right to travel, claiming that the right to possess a firearm in a parking lot is crucial to travel. But the record establishes that on-street parking is available near both churches, and there was no evidence establishing that those wishing to visit the churches would have no alternative to the church parking lots. We note that the state’s argument is also inconsistent with the statutory exemption for the lawful possessors of private residences, who are free to prohibit firearms and provide notice of their preference to visitors “in any lawful manner.” Minn.Stat. § 624.714, subd. 17(d). If the fundamental right to travel is not violated by that exemption, it is unlikely to be violated by recognizing an exemption for church property.

Finally, the state asserts that the statute promotes a compelling interest in ensuring clarity and uniformity in the communication of messages about where guns are prohibited. A comparable argument concerning the use of uniform warning symbols was rejected in Hershberger, 462 N.W.2d at 399, and the argument is further undercut by the fact that uniformity is not required when lawful possessors of private residences communicate their preference that guns be excluded, when employers communicate their policies regarding the carrying of firearms by employees while acting in the scope of their employment, or when public postsecondary institutions communicate their policies about the carrying of firearms by students on school property. See Minn.Stat. § 624.714, subds. 17(d), 18. As a result, we conclude that the state failed to demonstrate that any compelling and overriding governmental interest promoted by the challenged provisions is significantly affected by recognizing an exemption for the churches.

4. Whether the 2005 Act Uses the Least Restrictive Means to Achieve the State Interests

The final Hill-Murray factor considers whether the statute uses the least restrictive means to achieve the state interests. The district court agreed with the churches that a religious exemption is the least restrictive means to accomplish the goals of the 2005 Act without burdening freedom-of-conscience rights.

The state presented no evidence that the churches’ communication, in whatever manner and language they deem appropriate, of the policies they have adopted against the carrying and possession of guns would not be an effective way of accommodating the competing public interests and religious liberty. The record indicates that more than 30% of the states with “right-to-carry” laws have recognized exemptions for religious institutions. Respondent churches have identified other possible means of achieving the state’s interest in protecting those who are not armed, including increased police patrols. But because the state in this case, as in Hershberger, “failed to provide a record which demonstrates that both” the constitutional value of freedom of conscience and the interests intended to be promoted by the statute “cannot be achieved through” the exemption sought by the challengers on religious grounds, we conclude that the state failed to establish that the challenged provisions constitute the least restrictive alternative. See Hershberger, 462 N.W.2d at 399.

II.

The second issue is whether the 2005 Act violates the churches’ right to freedom of association under the First and Fourteenth Amendments to the United States Constitution. The district court concluded that the 2005 Act forces churches to associate with people who wish to carry firearms on religious property by prohibiting churches from banning the possession of firearms in parking facilities and leased spaces.

“It is axiomatic that a state court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution.” State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985); see also Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975). “State courts are, and should be, the first line of defense for individual liberties within the federalist system.” Fuller, 374 N.W.2d at 726. Both Hill-Murray and Hershberger were based on the interpretation of the Minnesota Constitution provisions guaranteeing religious liberty, rather than the First Amendment of the United States Constitution. Hill-Murray, 487 N.W.2d at 864; Hershberger, 462 N.W.2d at 397. Because our affir-mance of the exemption recognized by the district court is based on independent and adequate state grounds, we find it unnecessary to address the district court’s grant of injunctive relief on federal constitutional grounds.

III.

The state argues that the district court’s permanent injunction confers a special benefit on religious institutions and constitutes an establishment of religion in violation of article I, section 16, of the Minnesota Constitution and the First and Fourteenth Amendments to the United States Constitution. Establishment and free-exercise claims are sometimes related, but when a law of general application is alleged to burden the rights of a religious institution, the issues “are most appropriately analyzed under the free exercise clause” and a claim that is framed in terms of the Establishment Clause may “actually [be] a free exercise question.” Hill-Murray, 487 N.W.2d at 863. Nonetheless, we will address the state’s argument.

No law shall be made respecting an establishment of religion, U.S. Const, amend. I, and no preference may be given by law to any religion or form of worship, Minn. Const. art. I, § 16. Exempting churches and church property from state laws that are otherwise generally applicable does not give rise to a violation of the Establishment Clause so long as no one religion is “favored over others and none sufferf ] interference.” State v. Am. Fundamentalist Church (In re Collection of Delinquent Real Prop. Taxes), 530 N.W.2d 200, 205 (Minn.1995) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 677, 90 S.Ct. 1409, 1415, 25 L.Ed.2d 697 (1970)) (holding that tax exemption for church property does not violate Establishment Clause). The state has not identified any Minnesota case finding an Establishment Clause violation in analogous circumstances where an injunction has been granted to prevent enforcement of a state statute against particular plaintiffs.

If we assume that the injunction is analogous to a state-imposed mandate, we apply Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), to determine whether it violates the Establishment Clause. See In re Rothenberg, 676 N.W.2d 283, 292 (Minn.2004) (applying the Lemon standard to evaluate a claim that supreme court rules requiring lawyers to take classes directed at the elimination of bias violated the Establishment Clause). To survive this challenge, the exemption and injunction must (1) have a secular purpose; (2) neither advance nor inhibit religion as their primary effect; and (3) not foster excessive governmental entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. “When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.” McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 860, 125 S.Ct. 2722, 2733, 162 L.Ed.2d 729 (2005).

The state has not established that the district court was motivated by a desire to advance the religious beliefs of respondents. Controlling caselaw required the district court to examine the impact of the challenged provisions on sincerely held religious beliefs, which it did, and to balance the constitutional rights of the respondents with the articulated state interests promoted by the challenged provisions. See Hershberger, 462 N.W.2d at 399 (requiring “balancing” of “competing interest[s]”). The determination that respondents are entitled to an exemption that is analogous to the exemption already afforded to possessors of private residences places them on equal footing; it does not improperly favor or advance religion. The exemption also avoids government entanglement with religion because the government need not monitor church policies on the carrying of weapons, the methods by which churches communicate with members and visitors on the topic, or the degree to which particular church activities are essentially “religious.”

Because the district court’s limited grant of injunctive relief properly balanced the state’s interest in general enforcement of the law with protecting religious freedoms guaranteed by article I, section 16, we conclude that this relief does not imper-missibly favor religious institutions or constitute an improper establishment of religion.

IV.

The final issue is whether the 2005 Act, as applied to churches, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc.

RLUIPA prohibits governmental entities from imposing or implementing a “land use regulation” that “treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution” or that “unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” 42 U.S.C. §§ 2000cc(b)(l), (3)(B).

The term “land use regulation” means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.

42 U.S.C. § 2000cc-5(5). Congress provided for a broad construction of RLUIPA, stating that the law “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000ce-3(g).

The threshold question is whether the 2005 Act qualifies as a zoning or landmarking law under the statute. A zoning law is one that regulates building development and use of property. Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162, 172 (Minn.2006); Advantage Capital Mgmt. v. City of Northfield, 664 N.W.2d 421, 426 (Minn.App.2003). A statute that imposes land-use restrictions that run with the land may also be considered a zoning law. Orme v. Atlas Gas & Oil Co., 217 Minn. 27, 32-33, 13 N.W.2d 757, 761 (1944). Black’s Law Dictionary describes “zoning” as “[t]he legislative division of a region ... into separate districts with different regulations within the district for land use, building size, and the like.” Black’s Law Dictionary 1649 (8th ed.2004). The 2005 Act does not impose land-use restrictions or regulate the development of church-owned property, and it does not single out religious institutions or activities.

The legislative history of RLUIPA is instructive in determining the scope of what Congress intended to include as a “zoning law.” Congress enacted RLUIPA in order to address a widespread pattern of religious discrimination in land-use regulation. 146 Cong. Rec. 6687-90 (Jul. 13, 2000); see also Roman P. Storzer & Anthony R. Picarello, Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 Geo. Mason L.Rev. 929, 945-46 (Summer 2001). Evidence was presented to Congress of land-use regulations that particularly affect religious institutions, including laws prohibiting the construction of places of worship, an ordinance requiring religious institutions (only) to obtain a $1,000 permit before supplying food to the homeless, a city’s permitting process that resulted in the refusal to allow Jewish prayer meetings but not school meetings and book clubs, locally imposed limitations on permissible operational hours, and a city directive limiting occupancy of a church to 70 people, even though the building seated 500 people. 146 Cong. Rec. S7774, S6689-90 (Jul. 13, 2000).

The challenged provisions of the 2005 Act interfere with some of the traditional rights of property owners to exclude others, but the act does not regulate the development or use of church property in any way that is analogous to zoning laws. The churches are still free to use and develop their property for all purposes authorized under existing zoning and land-use regulations. They are not being required to alter — or being restrained from altering — the structural or architectural design of any building. The churches clearly oppose the challenged provisions, but there is no analogy to the hurdles imposed by requiring that additional permits be obtained from the government, prohibiting religious services and gatherings, or limiting attendance at church functions.

We conclude that the challenged provisions are not properly characterized as “land use regulations,” within the meaning of RLUIPA, and we therefore reverse the grant of injunctive relief to the extent that it is based on RLUIPA.

DECISION

Because we conclude that the district court did not err in finding that certain provisions of the 2005 Act violated the churches’ freedom-of-conseience rights, we affirm the district court’s grant of a permanent injunction on state constitutional grounds as applied to the churches’ property, including related parking areas used for religious activities. We reverse the grant of injunctive relief to the extent it is based on RLUIPA because the 2005 Act may not properly be characterized as a zoning law.

Affirmed in part and reversed in part.

      . Some statutory provisions focus on the role of the person carrying the firearm, rather than the location. See, e.g., Minn.Stat. §§ 609.66, subd. 1d(e)(1), (2) (2006) (peace officers and military personnel exempt from provisions criminalizing possession of dangerous weapons on school property), 624.714, subd. 17(g) (2006) (exempting peace officers and security guards from provision providing for trespass for possession of a firearm on premises where they are banned).

      . The statute does not appear to be limited to those who are authorized to carry guns because they have lawfully obtained a carry permit and are carrying a lawful weapon, because it refers to a person who is carrying a firearm "under a permit or otherwise.” Minn.Stat. § 624.714, subd. 17(a).

      . In addition to the penalty for refusal to leave, a person carrying a gun without a permit may also be guilty of a gross misdemeanor under Minn.Stat. § 624.714, subd. la (2006) (unlawful possession).

      . We note that nonviolence beliefs may be core principles in faith communities and that Congress has accommodated such religious-based beliefs in the vital areas of national defense and military conscription. See 50 U.S.C.App. § 456(j) (2000) (exempting from combatant training and service in the United States armed forces those who by reason of their "religious training and belief” are "conscientiously opposed to participation in war in any form.”).

      . As previously stated, appellant does not challenge the sincerity of the churches’ beliefs in nonviolence. We note that not all churches may share those beliefs.

      . The state asserts that Utah is similar to Minnesota in not having a statutory ban on the possession of guns on church property. But Utah specifically allows churches and places of worship considerable flexibility in communicating their preferences regarding the possession of guns on church property. Churches may give personal notice, post signs that are 'reasonably likely to come to the attention” of those entering, make an announcement during services, publish notice in a bulletin or newsletter, or publish a notice "in a newspaper of general circulation in the county in which the house of worship is located or ... has its principal office....” Utah Code. Ann. § 76-10-530(2) (West 2007). In fact, Utah affords the same flexibility regarding the provisions of notice to both churches and those in lawful possession of private residences. Id.

      . See United States v. Lee, 455 U.S. 252, 261, 102 S.Ct. 1051, 1057, 71 L.Ed.2d 127 (1982) (stating that “followers of a particular sect” may sometimes be subject to “statutory schemes which are binding on others” when they “enter into commercial activity as a matter of choice,” notwithstanding the limits of their own conscience and faith).

      . The churches did not file a notice of review, so we do not address the district court's determination that off-site property owned by churches and used for commercial purposes unrelated to religious missions would not fall within the exemption.

      . The 2003 and 2005 Acts declare that they are necessary to regulating the rights of individuals to keep and bear arms as guaranteed by the Second Amendment of the United States Constitution. Minn.Stat. § 624.714, subd. 22 (2006). The state has not argued that the permanent injunction affects any Second Amendment rights. We are aware of the controversy regarding the proper interpretation of the Second Amendment and the pen-dency of an appeal on the extent to which the amendment guarantees individual rights before the United States Supreme Court. Parker v. D.C., 478 F.3d 370 (D.C.Cir.2007), pet. for cert. granted, — U.S. —, 128 S.Ct. 645, 169 L.Ed.2d 417 (2007) (No. 07-290). We need not address that issue and we do not anticipate that a decision by the Supreme Court will affect our consideration of the state's challenge to the injunction granted in this case.

      . Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), applies the First Amendment to the states by virtue of the Fourteenth Amendment.

      . As previously noted, possessors of private residences are free to ban guns on their property, including parking areas, and to communicate their preferences "in any lawful man-tier.” Minn.Stat. § 624.714, subd. 17(c). The district court's injunction extends to appellant’s similar protections.

      . "Landmarking laws generally involve the 'regulation] and restriction of) certain areas as national historic landmarks, special historic sites, places and buildings for the purpose of conservation, protection, enhancement and perpetuation of these places of natural heritage.’ ” Albanian Associated Fund v. Twp. of Wayne, No.06-CV-3217(PGS), 2007 WL 2904194, at *7 (D.N.J.Oct. 1, 2007).


author: KAPSNER, Justice.

text:
    2008 ND 31
    STATE of North Dakota, Plaintiff and Appellee v. Rockwell Dean SKARSGARD, Defendant and Appellant.
    No. 20070223.
    Supreme Court of North Dakota.
    Feb. 21, 2008.

      Mark A. Flagstad (argued), Assistant State’s Attorney, Minot, ND, for plaintiff and appellee.
    Mark S. Douglas (argued), N.D. Public Defenders’ Office, Williston, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Rockwell Skarsgard appeals from two criminal judgments following a jury trial in which he was found guilty of resisting arrest, a class A misdemeanor, and being in actual physical control of a vehicle while under the influence of alcohol (“APC”), a class C felony. We affirm the criminal judgments.

I

[¶ 2] On May 18, 2006, Skarsgard was cited for APC, driving under suspension, and resisting arrest. Deputy Kevin Nelson of the Ward County Sheriffs Department responded to a call from dispatch, reporting that a vehicle was parked in the middle of a county road northwest of Minot. When he arrived at the scene, Officer Nelson saw an individual slumped over the steering wheel of the running truck. When Officer Nelson opened the front passenger side door to the vehicle, the individual, Skarsgard, woke up. Officer Nelson stated he smelled a strong odor of an alcoholic beverage on Skarsgard’s breath and noticed Skarsgard had bloodshot eyes and slurred speech. Officer Nelson saw an open, partially full vodka bottle sitting on the front seat of the pickup truck. Officer Nelson asked Skarsgard to shut off the vehicle, but Skarsgard refused. Officer Nelson then reached inside of the vehicle and turned it off. He asked Skarsgard to step out of the vehicle. Skarsgard refused, grabbing the steering wheel and attempting to remain in the vehicle while Officer Nelson tried to remove him. Skarsgard was forcibly removed from the vehicle.

[¶ 3] Officer Nelson then read Skars-gard the notice of implied consent and requested that Skarsgard perform an SD-2 test. Skarsgard refused. Officer Nelson placed Skarsgard under arrest for APC.

[¶ 4] While attempting to place Skars-gard in his patrol car, Officer Nelson had to call for the help of another police officer; Skarsgard would not climb into the back seat of the patrol car until both officers used physical force to place him there. Officer Nelson repeatedly warned Skars-gard he would be charged with resisting arrest, and Skarsgard repeatedly refused to get into the patrol car, despite the warning of an additional charge. Skars-gard was charged with preventing arrest. Officer Nelson then called Minot Central Dispatch to check the status of Skars-gard’s driver’s license. Dispatch responded that Skarsgard’s license was suspended or revoked. Skarsgard was charged with driving under suspension (“DUS”). At no point before, during, or after arrest did Officer Nelson read Skarsgard a Miranda warning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (providing that in instances in which a defendant is subject to custodial interrogation, incriminating statements made by the defendant may be held inadmissible in criminal proceedings unless the defendant is afforded a warning regarding his privilege against self-incrimination).

[¶ 5] Before trial, Skarsgard filed a motion in limine, requesting that the district court exclude any evidence of prior driving under the influence (“DUI”) and DUS offenses. The district court denied the motion. Skarsgard filed no other motions in limine, nor did he attempt to raise the issue of the lack of Miranda warning at any time before trial. When the Mi randa issue was raised at trial, Skarsgard argued that the testimony of Officer Nelson regarding the lack of Miranda warning was necessary in the context of offering “a defense to the charge of preventing arrest.” When Skarsgard raised the Miranda issue during the trial, he did not request that any evidence be suppressed.

[¶ 6] After a motion for acquittal during trial, the district court acquitted Skars-gard of the DUS charge. The APC and preventing arrest charges were given to the jury, which returned guilty verdicts on both charges. For the APC, the court imposed a fine of $1,000 and a sentence of five years with the Department of Corrections, with two years suspended. This sentence was ordered to run concurrently with a one-year sentence imposed for preventing arrest.

[¶ 7] Skarsgard appeals, arguing all evidence derived from the arrest should have been suppressed because the arresting officer failed to deliver a Miranda warning. Skarsgard argues there was insufficient evidence to convict him of resisting arrest and this charge should also have been dismissed.

II

[¶ 8] Skarsgard argues the district court erred in failing to suppress all evidence “seized” on May 18, 2006 because the arresting officer failed to provide Skarsgard with a Miranda warning prior to or upon arrest. The failure to give a Miranda warning was not raised until trial was underway. Further, the manner in which the issue was raised at trial was not a request to suppress any evidence acquired after a Miranda warning should have been given. Instead, at trial, Skars-gard argued failure to provide a Miranda warning constituted a defense to the charge of preventing arrest. Skarsgard did not request evidence be suppressed at trial. He merely requested that he be allowed to question the arresting officer about the lack of a Miranda warning to demonstrate that the arrest was illegal, which Skarsgard argued created a defense to the preventing-arrest charge. Skars-gard’s counsel did question the deputy about the failure to give a Miranda warning. Only on appeal does Skarsgard raise the issue of suppression for a Miranda violation.

[¶ 9] Because Skarsgard did not provide the district court with a pre-trial motion under N.D.R.Crim.P. 12(b)(3)(C), motion to suppress evidence, he has waived his suppression argument and thus has not properly preserved the issue for appeal. “Rule 12(b), N.D.R.CrimJP., requires certain motions be made before trial, or they are waived.” State v. Frankfurth, 2005 ND 167, ¶ 12, 704 N.W.2d 564. However, this Court may grant relief from the waiver if the movant establishes “just cause.” State v. Schroeder, 524 N.W.2d 837, 839 (N.D.1994) (citing State v. Neset, 462 N.W.2d 175 (N.D.1990); State v. Raywait, 436 N.W.2d 234 (N.D.1989); State v. Valgren, 411 N.W.2d 390 (N.D.1987)).

[¶ 10] Skarsgard does not allege or provide “just cause” for his failure to raise the issue pre-trial at the district court level. He merely asserts that the district court should “be reversed on all counts” because all of the evidence gathered during the stop is “constitutionally suspect.” Skarsgard does not address the requirements of N.D.R.Crim.P. 12 and does not assert a just cause that would negate his waiver of defenses under this Rule. For these reasons, the issue was not properly preserved on appeal and will not be considered by this Court.

Ill

[¶ 11] Skarsgard argues there was insufficient evidence to charge him with resisting arrest under N.D.C.C. § 12.1-08-02(1), and, as a result, the district court erred in failing to dismiss the charge. Skarsgard did not make a pretrial motion to dismiss the charge. Rather, on appeal, Skarsgard raises the issue and argues it in terms of a challenge to the sufficiency of the evidence to sustain his conviction.

[¶ 12] “In reviewing challenges to the sufficiency of the evidence, this Court reviews the record to determine if there is competent evidence to support an ‘inference reasonably tending to prove guilt and fairly warranting a conviction.’ ” State v. Brossart, 2007 ND 39, ¶ 6, 729 N.W.2d 137 (quoting State v. Igou, 2005 ND 16, ¶ 5, 691 N.W.2d 213). “The defendant has the burden to show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt.” Id. (citations omitted). “ ‘A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing 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.’” Id. (citations omitted).

[¶ 13] Section 12.1-08-02(1), N.D.C.C., provides the elements needed to sustain a conviction for resisting arrest:

A person is guilty of a class A misdemeanor if, with intent to prevent a public servant from effecting an arrest of himself or another for a misdemeanor or infraction, or from discharging any other official duty, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty.

N.D.C.C. § 12.1-08-02(1).

[¶ 14] Officer Nelson testified he was not sure at what point he placed Skarsgard under arrest, but that he thought the arrest occurred after he removed Skarsgard from Skarsgard’s vehicle and held Skarsgard at the hood of the patrol car. Officer Nelson testified that while attempting to place Skarsgard in his patrol car, he had to call for the help of another police officer because Skarsgard would not climb into the back seat of the patrol car until both officers used physical force to place him there. “A person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public servant under color of law, but excessive force may be resisted.” N.D.C.C. § 12.1-05-03(1). “The question of the reasonableness of [the defendant’s] resisting his arrest [is] properly determined by the fact-finder upon reviewing all of the facts.” Brossart, 2007 ND 39, ¶ 9, 729 N.W.2d 137 (citations omitted). Officer Nelson’s testimony about the time at which the arrest occurred, coupled with his testimony regarding Skarsgard’s resistance to entering the patrol car, could, when viewed in a light most favorable to the verdict, allow a reasonable factfinder to determine guilt for resisting arrest. We conclude sufficient evidence exists to support Skars-gard’s conviction for violating N.D.C.C. § 12.1-08-02(1).

. [¶ 15] We affirm the criminal judgments.

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