author: PAGE, Justice. BLATZ, Chief Justice

text:
    STATE of Minnesota, Respondent, v. Francisco ORNELAS, Appellant.
    No. C4-02-1693.
    Supreme Court of Minnesota.
    Feb. 26, 2004.

      John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN, Earl E. Maus, Cass County Attorney, Walker, MN, for Respondent.
   OPINION

PAGE, Justice.

Appellant Francisco Ornelas challenges the revocation of his probation on a 1994 third-degree criminal sexual conduct conviction. Ornelas’s probation was revoked for having unsupervised contact with a minor. The question presented is whether the district court abused its discretion when it revoked Ornelas’s probation and executed the 48-month prison sentence imposed but stayed at the time of the conviction. A divided court of appeals affirmed the district court. State v. Ornelas, No. C4-02-1693, 2003 WL 1818011, at *2 (Minn.App. Apr.8, 2003). In this appeal, Ornelas argues that the district court abused its discretion when it revoked his probation because: (1) having no contact with individuals under 18 years of age was never made a condition of his probation on his criminal sexual conduct conviction; (2) assuming that the no-contact provision was a condition of probation, the violation was unintentional; (3) assuming that the no-contact provision was a condition of probation, the violation was excusable; (4) the district court impermissibly based his probation revocation on an accumulation of technical violations; and (5) the policies favoring probation outweigh the need for confinement. We reverse.

During the early morning hours of July 30, 1994, Ornelas sexually assaulted an adult female co-worker by digitally penetrating her vagina without consent. Ornelas was intoxicated at the time of the assault. The state charged Ornelas with first- and third-degree criminal sexual conduct. On December 5, 1994, Ornelas pleaded guilty to third-degree criminal sexual conduct in exchange for the dismissal of the first-degree charge and a recommendation by the state that he receive a stayed sentence. The court sentenced Ornelas to a stayed 48-month prison term and 15 years’ supervised probation. As part of the 15-year supervised probationary period, the court imposed the following conditions in writing: (1) that Ornelas was subject to all rules and regulations of the Department of Corrections; (2) that he remain law abiding and of good behavior; (3) that he serve one year in the county jail; (4) that he pay various fines; (5) that he complete a Rule 25 chemical dependency evaluation and follow all recommendations, including all aftercare, and provide collateral contacts; (6) that he follow the recommendations of the sex offender evaluation, including all aftercare; (7) that he have no contact with the victim; (8) that he abstain from the use of alcohol and controlled substances; (9) that he not enter any establishment serving or selling alcohol; (10) that he submit to random drug and alcohol testing; (11) that he have no same or similar offenses; (12) that he complete his GED while in jail; and (13) that he provide a DNA sample and register as a sex offender. A requirement that Ornelas have no contact with individuals under the age of 18 was not included as one of the conditions imposed.

Ornelas’s annual progress reports dated April 16, 1996, and January 13, 1997, recommended that probation be continued and listed the same conditions as imposed at sentencing. In June of 1997, Ornelas admitted to violating his probation by consuming alcohol. The court reinstated Ornelas’s probation but ordered him to serve 45 days in jail, complete 20 hours of community service at an alcohol recovery center, and pay certain outstanding financial obligations out of his next paycheck. The court ordered that all other terms and conditions of probation remain the same.

Ornelas’s annual progress report dated December 11, 1997, again recommended that probation be continued and listed the same conditions as imposed at sentencing. In January of 2000, Ornelas admitted to violating his probation again by consuming alcohol. The court reinstated Ornelas’s probation, this time ordering him to serve 60 days in jail with all other conditions of probation remaining the same.

On the evening of December 23, 2000, Ornelas’s probation agent made a spot visit to Ornelas’s home. The agent made the visit based on a call from a concerned person who alleged that Ornelas was using alcohol and drugs and that Ornelas’s girlfriend’s 14-year-old daughter L.H. was staying at the residence. Ornelas was at home and the agent obtained permission from Ornelas’s girlfriend to look around the house. The agent found a gun case containing a 30/30 rifle and ammunition in Ornelas’s bedroom. Ornelas admitted the gun was his and admitted to consuming alcohol.

The state charged Ornelas with the felony offense of being a felon in possession of a firearm and violating his probation. On January 31, 2001, he pleaded guilty to a gross misdemeanor firearms possession offense and admitted that he violated his probation by possessing a firearm and consuming alcohol. On February 22, 2001, the probation agent filed a uniform case report addendum. The report recommended that the court reinstate Ornelas’s probation in the criminal sexual conduct case under the same terms and conditions. The report also recommended that the court impose the following additional terms: (1) that Ornelas receive credit for 40 days served in jail; (2) that Ornelas follow the recommendation of the Rule 25 evaluation; and (3) that Ornelas “[h]ave no unsupervised contact with children under the age of 18” unless a supervisor approved by the Department of Corrections was present.

On February 26, 2001, a sentencing and probation violation hearing was held. At that hearing, with respect to the firearms charge, the district court imposed a one-year stayed jail term and two years’ probation. Ornelas also had to serve 40 days in jail with credit for time served as a condition of probation on the firearms charge. On that charge, the judge imposed numerous other probation conditions, one of which was “no unsupervised contact with anyone under the age of eighteen without agent approval.” After delineating all of the conditions of the sentence in the firearms matter, the court stated, “If there is nothing further, the hearing is adjourned.”

After adjourning the sentencing hearing, the court said: “On the [third-degree criminal sexual conduct] charge, he’ll be reinstated on probation on the same terms and conditions as were previously imposed.” While the no-contact provision as stated on the record was included in the written probation agreement for the firearms conviction, the district court did not issue a written modification of the terms of probation in the criminal sexual conduct matter to include the no-contact provision. It is unclear from the record whether the probation agent, on her own initiative, attempted to impose the no-contact provision as a condition of probation on the criminal sexual conduct offense.

On June 24, 2002, Ornelas’s probation agent went to the house where Ornelas and his girlfriend were living. The agent observed Ornelas walking out of the house with his girlfriend, her daughter L.H. who was then 16 years old, and L.H.’s 19-year-old boyfriend. Neither L.H.’s mother nor L.H.’s boyfriend were approved supervisors.

As a result of this unsupervised contact with L.H., the probation agent sought to revoke Ornelas’s probation. A probation revocation hearing was held on July 8, 2002, at which Ornelas, his girlfriend, L.H., L.H.’s boyfriend, and L.H.’s grandmother testified on Ornelas’s behalf. The essence of their testimony was that L.H. was living with her grandmother but storing her belongings in the house where Ornelas and L.H.’s mother were living and that L.H. would occasionally visit the house while Ornelas was at work. Knowing this, Orne-las would sometimes call home before leaving work to ensure that L.H. was not at the house when he arrived. However, he did not make such a call on June 24, 2002. According to the testimony, on that day, Ornelas’s girlfriend’s car had a flat tire and L.H. and her boyfriend came to the house to help get the tire repaired. The three went to a garage to get the tire repaired, but the garage was closed for the day and they returned to the house. When Ornelas arrived home, L.H. and her boyfriend were still there. Ornelas asked L.H. and her boyfriend to leave, and after delaying their departure for about ten minutes, they were on their way out the door when the probation agent arrived.

The probation agent testified that when she arrived at the house, Ornelas was walking out of the house with L.H., her mother, and her boyfriend. L.H. and her boyfriend departed and L.H.’s mother went back inside, at which point Ornelas came up to the agent’s car. “When the agent asked Ornelas for permission to look inside the house, Ornelas responded that L.H.’s belongings were being stored in a bedroom. The two entered the house and Ornelas showed the agent the room where L.H.’s belongings were being stored. The agent observed that L.H.’s belongings appeared to be unpacked, there was a pack of cigarettes and cigarette butts next to the bed, the windows were open, and the room looked as if L.H. was living in it. As a result, the agent arrested Ornelas and petitioned to have his probation revoked. Finally, the agent testified that Ornelas was aware that L.H.’s mother was not an approved supervisor and that she had discussed with him on a number of occasions that he was not permitted to have unsupervised contact with anyone under the age of 18.

The district court found that Ornelas violated his probation because he admitted to being in the presence of L.H. without an approved supervisor. The court revoked Ornelas’s probation on both the criminal sexual conduct and firearms convictions, executed the 48-month sentence in the criminal sexual conduct case and the 12-month sentence in the firearms case, and ordered that the sentences be served consecutively. In revoking Ornelas’s probation, the court noted that this was Orne-las’s fifth probation violation and that he did not seem to understand that he had to follow court orders. The court also remarked that it believed Ornelas had “been less then candid” in his testimony. Orne-las appealed the revocation of his probation in the criminal sexual conduct matter and, as noted above, the court of appeals affirmed. This court granted Ornelas’s petition for review.

A district court “has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion.” State v. Austin, 295 N.W.2d 246, 249-50 (Minn.1980). The state has the burden of proving the probation violation by clear and convincing evidence. Minn. R.Crim. P. 27.04, subd. 3. When revoking probation, the district court must: “1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation.” Austin, 295 N.W.2d at 250.

We begin our analysis with the first Austin factor. The specific condition of probation designated by the district court as having been violated by Ornelas was the requirement that he have no contact with any person under 18 years of age. As indicated, Ornelas contends that this requirement was never made a condition of his probation. The state responds that the evidence clearly shows Ornelas was aware of the no contact with individuals under 18 years of age requirement and believed the requirement was a condition of his probation. On that basis, the state argues that Ornelas’s failure to raise the no-contact issue below estops him from arguing to the contrary at this stage.

Generally, “this court is most reluctant to address issues that have not been raised at the lower courts.” State v. Sorenson, 441 N.W.2d 455, 459 (Minn.1989). However, “we have at times opted to review an appellant’s claims on the merits in the interests of justice.” Boitnott v. State, 631 N.W.2d 362, 369-70 (Minn.2001); see also Minn. R.Crim. P. 28.02, subd. 11 (stating that the court of appeals “may review any other matter as the interests of justice may require”); Minn. R.Crim. P. 29.04, subd. 11 (stating that “Rule 28.02, subd. 11, concerning the scope of review” applies to appeals to this court from the court of appeals).

Here, it is clear from the record that Ornelas did not raise the no contact with individuals under 18 years of age issue in the district court, in the court of appeals, or in his petition for review to this court. Moreover, Ornelas acknowledged that the no-contact condition was a condition of probation in his brief to the court of appeals and in his petition for review. Ornelas’s failure to raise the issue below notwithstanding, the first Austin factor requires us to consider the specific condition designated to have been violated. Inherent in our consideration of the specific condition designated as having been violated is the question of whether the condition was actually imposed as a condition of probation.

Further, if the condition was not properly imposed, it would be anomalous to conclude that the first Austin factor had been satisfied and go on to consider whether the violation was intentional or inexcusable or whether the policies favoring probation outweigh the need for confinement. See Austin, 295 N.W.2d at 250. Thus, if we are to address the Austin factors in this case, we must determine whether the no-contact requirement was actually imposed by the district court as a condition of probation. As the Supreme Court said in Morrissey v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), “Society * * * has an interest in not having parole revoked because of erroneous information.” The Court’s reasoning is equally applicable to revocation of probation. Therefore, to properly consider the Austin factors, the interests of justice require that we determine whether the no-contact condition was actually imposed.

“The imposition of sentences,” including “determining conditions of probation is exclusively a judicial function that cannot be delegated to executive agencies.” State v. Henderson, 527 N.W.2d 827, 829 (Minn.1995). When sentencing a defendant, a court “[s]hall state the precise terms of the sentence.” Minn. R.Crim. P. 27.03, subd. 4(A). In imposing a probationary sentence, “if noncriminal conduct could result in revocation, the trial court should advise the defendant so that the defendant can be reasonably able to tell what lawful acts are prohibited.” Id., subd. 4(E)(2). “It is an essential component of due process that individuals be given fair warning of those acts which may lead to a loss of liberty. This is no less true whether the loss of liberty arises from a criminal conviction or the revocation of probation.” United States v. Dane, 570 F.2d 840, 843 (9th Cir.1977) (citations omitted). When the acts prohibited by the probation conditions are not criminal, “due process mandates that the petitioner cannot be subjected to a forfeiture of his liberty for those acts unless he is given prior fair warning.” Id. at 844. It follows that before a probation violation can occur, the condition alleged to have been violated must have been a condition actually imposed by the court. 9 Henry W. McCarr & Jack S. Norby, Minnesota Practice-Criminal Law and Procedure § 36.47 at 228 (3d ed.2001) (stating “that the condition allegedly violated [must be] actually imposed by the judge, and [be] valid”) (emphasis added).

Relying on the fact that Ornelas was aware of and believed that the no-contact provision was a condition of his probation, the state contends that it met its burden of proving that no contact with individuals under 18 years of age was a condition of Ornelas’s probation. The fact that a probationer is aware of or believes something to be a condition of probation does not necessarily make it so. See, e.g., State v. B.Y., 659 N.W.2d 763, 769 (Minn.2003) (executing a stayed juvenile disposition order based on an admitted curfew violation was improper when the curfew was not made a part of the disposition order). Indeed, the facts of this case are similar to those we held did not support the disposition order violation in B.Y.

In B.Y., the curfew requirement was evidently imposed by the juvenile’s probation officer and was not part of the disposition order. Id. at 766. The district court found that the juvenile admitted failing to meet the required curfew and that missing the curfew constituted a violation of the disposition order. Id. We held that “the curfew does not appear to have been part of the disposition order. Therefore, his admission to violating the curfew cannot be the basis for executing his sentence under the rule.” Id. at 769. Like B.Y., Ornelas’s acknowledgement that he was aware of the no-contact provision and his admission that he violated the provision cannot be the basis for revoking his probation if that condition was not actually imposed by the district court.

Here, it is clear from the record that the no contact with individuals under 18 years of age requirement was never imposed by the district court. The requirement is not contained in any district court order or other writing, was not stated as a condition of probation at the time of Ornelas’s initial sentencing hearing, and was never added as an additional condition of probation at any of the probation revocation hearings at which Ornelas’s probation was reinstated. To the extent that the state’s argument is that the provision was made a condition of probation in the criminal sexual conduct matter at the same hearing that it was imposed as a condition on the firearms conviction, we disagree. At that hearing, the district court had before it the specific recommendation from the uniform case report addendum that the no-contact provision be added as a condition of probation. After explicitly imposing the no-contact requirement as a condition of probation in the firearms case, the district court closed the hearing with respect to that case and took up the criminal sexual conduct probation revocation matter separately. Specifically, the court stated, “On the other charge, he’ll [Ornelas] be reinstated on probation on the same terms and conditions as were previously imposed.” That language, although not identical, is strikingly similar to the language used to reinstate Ornelas’s probation at each of his earlier probation revocation hearings. We therefore conclude that the no-contact provision was not imposed as a condition of probation on the criminal conduct conviction at the February 26, 2001, joint sentencing and probation revocation hearing.

Because there is nothing in the record indicating that the no-contact provision was ever made a condition of Ornelas’s probation, we can only conclude that the specific condition designated by the district court as having been violated fails to support the probation violation. In that the no-contact provision was the only basis upon which Ornelas’s probation was revoked, we also conclude that the state failed to meet its burden of proving a probation violation by clear and convincing evidence, that the first Austin factor has not been satisfied, and that the district court abused its discretion when it revoked Ornelas’s probation on the criminal sexual conduct offense. Because we conclude that the first Austin factor has not been satisfied, we need not address whether the second and third factors were satisfied.

Reversed.

BLATZ, Chief Justice

(dissenting).

Because the appellant acknowledges that his probation condition included a no-unsupervised contact with a minor provision and because the appellant did not raise the issue in the district court, the court of appeals, or his petition for review to this court, I respectfully dissent.

In my view, it is incongruous to acknowledge that Ornelas waived the probation condition issue and then proceed to comb the record — or more accurately, the lack thereof — to determine whether the no-contact requirement was actually imposed. Here, the majority recognizes that Ornelas acknowledged that the no-contact condition was a term of probation in his brief to the court of appeals and in his petition for review. Nonetheless, while recognizing that the probation condition was never contested, the majority concludes that “there is nothing in the record indicating that the no-contact provision was ever made a condition of Ornelas’s probation.”

How or why Ornelas “knew” that such a condition was a condition of probation could have been clarified had Ornelas contested the issue below. Instead, without the benefit of a developed record, the majority rules on the issue emphasizing the need for defendants to understand the probationary terms imposed. While I agree that probationary conditions need to be understandable and communicated, there is no evidence that such flaws in the imposition of probation occurred here. We should not equate the waiver of an issue and therefore a lack of a developed record with proof that a condition was not properly imposed.

Finally, it is particularly troubling that the majority’s holding rewards litigants who do not raise issues in the lower courts and therefore deprive opposing parties of an opportunity to respond. This injustice is further underscored by the facts of this case wherein Ornelas agrees with the state that the no-contact provision was a probation condition.

For the reasons stated above, I would affirm the lower court’s rulings and uphold the district court’s revocation of Ornelas’s probation. In the alternative, I would remand the case to the district court so that both parties could be heard and a record developed. Such a holding would be more in line with the duty of appellate courts to address the issues presented in a case and not usurp the role of the fact finder. See Haugen v. Peterson, 400 N.W.2d 723, 726-27 (Minn.1987). I respectfully dissent.

      . At the time his probation was revoked on the criminal sexual conduct conviction, Orne-las's probation was also revoked on a separate firearms conviction. On appeal, Ornelas did not challenge the revocation of his probation in the firearms matter or whether no contact with individuals under 18 years of age was a proper condition of probation with respect to the firearms offense. Therefore, we will not consider these issues.

      . The violation report indicated that Ornelas understood why he should not reside with the 14-year-old daughter of his significant other. Issues about risk for both parties were discussed and will be elaborated on with the [c]ourt, if the [c]ourt requests. The 14-year-old is a victim in another [c]ourt matter. She has not completed counseling and it was felt that her safety issues were a priority.
      This is the first mention in the record of any requirement that Ornelas have no contact with individuals under 18 years of age. The same violation report lists the conditions of Ornelas's probation, and no contact with individuals under 18 years of age is not one of the listed conditions.

      . Ornelas filed a motion requesting that the sentences be served concurrently because at the time of the sentencing on the firearms charge the court did not impose a consecutive sentence and a consecutive sentence may not be imposed retroactively. See State v. Klang, 320 N.W.2d 718, 719 (Minn.1982). The court granted the motion.

      . The five violations arise out of four separate occurrences, the June 1997 and January 2000 alcohol violations, the December 2000 firearms and alcohol violations, and the June 2002 violation of the no-contact condition.

      . Conditions of probation should be set forth in writing and given to the defendant. Austin, 295 N.W.2d at 251; Minn. R.Crim. P. 27.03, subd. 4(E)(3).

      . The dissent would place the burden on Ornelas to prove whether the district court imposed the no-contact condition as a condition of probation on the criminal sexual conduct offense when, in fact, the district court has the duty to develop the record and the state has the burden of proving the probation violation.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    In re the Marriage of Robert PORRO, Petitioner, Appellant, v. Rhonda PORRO, Respondent.
    No. A03-1086.
    Court of Appeals of Minnesota.
    Feb. 24, 2004.

      Robert A. Lengeling, Richard Rhinehart & Associates, LLP, Sioux City, Iowa, for appellant.
    Rhonda Porro, Woodbury, MN, pro se respondent.
    Considered and decided by ANDERSON, Presiding Judge; KLAPHAKE, Judge; and WILLIS, Judge.
   OPINION

WILLIS, Judge.

Appellant-father appeals from a child-support magistrate’s order modifying a child-support order issued in Massachusetts. Father argues that, under the Uniform Interstate Family Support Act, Minnesota courts lacked subject-matter jurisdiction either to enforce or to modify the Massachusetts order. Because we agree that the magistrate lacked jurisdiction to modify the order, we vacate the magistrate’s order.

FACTS

Appellant-father Robert Porro and respondent-mother Rhonda Porro dissolved their marriage in Massachusetts in June 1999. The divorce judgment granted the parties joint legal custody of their only child, with mother receiving sole physical custody. The judgment included an order establishing child-support obligations for the father. Mother and the child moved to Minnesota in June 1999 and remain residents of this state. In August 2000, father moved to Nebraska, where he continues to reside.

In June 2001, mother registered the Massachusetts divorce judgment and child-support order for enforcement and modification in Minnesota by submitting to the Washington County District Court the information required by Minn.Stat. § 518C.602(a) (2002), including an affidavit alleging that father was in arrears on his share of the child’s health-care expenses. On August 3, she filed a motion in district court for modification of the support order. Father subsequently moved the court for an order denying mother’s request for modification.

In December 2001, the child-support magistrate dismissed mother’s motion after concluding that Minnesota courts lacked jurisdiction under the Uniform Interstate Family Support Act (UIFSA) to modify the child-support order. Mother moved the district court for review of the dismissal order. The district court granted review and. concluded that, by invoking the power of Minnesota courts in his previously submitted motion, father had consented to the Minnesota court’s exercise of personal jurisdiction over him. The order did not address whether Minnesota courts had subject-matter jurisdiction over the Massachusetts child-support order.

Father appealed the district court’s order to this court, and we affirmed the district court’s determination that Minnesota courts had personal jurisdiction over father in this dispute. See Porro v. Porro, No. C3-02-647 (Minn.App. Nov.26, 2002). The opinion did not address the issue of subject-matter jurisdiction.

A hearing on mother’s motion to modify the child-support order was held in January and February 2003. On March 26, the child-support magistrate filed findings of fact, conclusions of law, and an order modifying father’s child-support obligations. In her findings, the magistrate noted that a question remained concerning whether Minnesota has subject-matter jurisdiction over the Massachusetts order and that she was ruling on the matter “on the assumption that the parties want the issues resolved by the State of Minnesota and that the parties will file written consent in the issuing tribunal as required by Minn.Stat. § 5180.611(a)(2) or otherwise contest the issue of subject-matter jurisdiction.”

Father moved the magistrate under Minn. R. Gen. Pract. 376 to review her decision, contesting two of the modifications ordered by the magistrate and arguing for the first time that Minnesota courts lack subject-matter jurisdiction over the Massachusetts order. The magistrate denied father’s requests and concluded that she had “jurisdiction in this matter pursuant to Minn.Stat. § 484.702, subds. 1 and 3,” which provide for the establishment of an expedited child-support hearing process for, inter alia, modification of child-support orders in IV-D cases. The magistrate’s findings of fact noted that the subject-matter jurisdiction requirements of Minn. Stat. § 518C.611 still had not been met. Father then filed this appeal, contesting Minnesota’s jurisdiction either to enforce or to modify the Massachusetts order.

ISSUES

1. Do Minnesota courts have subject-matter jurisdiction to enforce the Massachusetts child-support order?

2. Did the child-support magistrate have subject-matter jurisdiction to modify the Massachusetts child-support order?

ANALYSIS

This court reviews de novo questions regarding the jurisdiction of courts and the interpretation of statutes. Kasdan v. Berney, 587 N.W.2d 319, 321 (Minn.App.1999).

I.

Minnesota and Massachusetts have both adopted the Uniform Interstate Family Support Act. See Minn.Stat. §§ 518C.101-518C.902 (2002); Mass.' Gen Laws ch. 209D, §§ 1-101-9-902 (2002). Under the UIFSA, a support order issued by a tribunal of another state can be registered in Minnesota for enforcement and for modification. Minn.Stat. §§ 518C.601, 518C.609. Father, citing Stone v. Stone, argues that, if there are no arrearages, then there are no enforcement issues, and an obligee is not entitled to registration for enforcement. 636 N.W.2d 594, 596-97 (Minn.App.2001). Therefore, he contends, mother’s registration of the Massachusetts child-support order was ineffective and Minnesota courts do not have jurisdiction to enforce the order because nothing in the record shows that any arrearages existed when mother submitted the registration documents.

But Stone is distinguishable from this case. There, the petitioning mother failed to allege that the obligor was not in compliance with the foreign child-support or,der. Id. at 596. Because the mother had not alleged any non-compliance with the order, we held that there was no enforcement issue as to the ... support order and (mother was) not entitled to register it for enforcement in Minnesota. Id. at 596-97. Here, mother submitted an affidavit alleging arrearages in father’s child-support obligations, so there was an enforcement issue in regard to the Massachusetts order.

The requirements for registration of a foreign child-support order are set forth in Minn.Stat. § 518C.602(a), which provides that the registering party must submit the following to the registering court:

(1) a letter of transmittal to the tribunal requesting registration and enforcement;
(2) two copies, including one certified copy, of all orders to be registered, including any modification of an order;
(3) a sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrearage;
(4) the name of the obligor and, if known:
(i) the obligor’s address and social security number;
(ii) the name and address of the obli-gor's employer and any other source of income of the obligor; and
(iii) a description and the location of property of the obligor in this state not exempt from execution; and
(5) the name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.

MinmStat. § 518C.602(a). There is nothing in the statutory registration requirements or caselaw indicating that a showing that actual arrearages existed at the time of registration is necessary for registration to be effective. As we noted in Stone, an allegation that the obligor is not in compliance with the foreign order is necessary to register the order for enforcement. 636 N.W.2d at 596. After the order has been registered, the registering court must notify the obligor that it has been registered and, inter alia, of the amount of any alleged arrearages. Minn.Stat. § 518C.605. The obligor then has 20 days in which to request a hearing to contest the validity or enforcement of the registered order by establishing one of the seven defenses enumerated in Minn.Stat. § 518C.607(a). Minn.Stat. § 5180.606(a). If the obligor fails to establish one of the defenses in section 5180.607(a), the registering court shall issue an order confirming registration of the order. Minn.Stat. § 5180.607(c). If the obligor fails to contest the registration in a timely manner, the registration is confirmed by operation of law. Minn.Stat. § 5180.606(b). Confirmation of a registered order precludes further contest of the order with respect to any matter that could have been asserted at the time of registration. Minn.Stat. § 518C.608.

Here, mother complied with the procedures for registration set forth in Minn. Stat. § 5180.602(a), and father failed to contest the registration. We conclude that mother effectively registered the Massachusetts order and Minnesota courts have jurisdiction to enforce the order.

II.

Under section 205 of the UIFSA, as codified in Massachusetts, Massachusetts courts retain continuing, exclusive jurisdiction to modify a child-support order issued in Massachusetts

(1) as long as the commonwealth remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
(2) until all of the parties who are individuals have filed written consents with the tribunal of the commonwealth for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

Mass. Gen. Laws ch. 209D, § 2-205(a); see also Minn.Stat. § 5180.205(a) (providing identical statement of law applicable to child-support orders issued by Minnesota courts). When courts lose continuing, exclusive jurisdiction under section 205(a), they lose jurisdiction to modify the order, but the order may still be enforced by the issuing court and by courts of any states where the order has been registered. Unif. Interstate Family Support Act § 205 cmt. (amended 1996), 9 U.L.A. Pt. IB, at 286 (1999). Here, under Mass. Gen. Laws ch. 209D, § 2-205(a)(l), Massachusetts lost continuing, exclusive jurisdiction to modify the child-support order when the child and both parents moved out of the state. But although subsection 205(a) of the UIFSA identifies how the issuing court may lose continuing, exclusive jurisdiction to modify an order, it does not confer jurisdiction to modify the order on another court. Id Sections 611 and 613 of the UIFSA, codified in Minnesota as Minn. Stat. §§5180.611 and 518C.613, identify the three circumstances under which Minnesota courts can assume jurisdiction to modify the Massachusetts child-support order.

First, Minn.Stat. § 518C.611(a)(l) provides that a Minnesota court may modify a foreign child-support order if the order has been registered in Minnesota and, after notice and hearing, the registering court finds that:

(i) the child, the individual obligee, and the obligor do not reside in the issuing state;
(ii) a petitioner who is a nonresident of this state seeks modification; and
(iii) the respondent is subject to the personal jurisdiction of the tribunal of this state.

Minn.Stat. § 518C.611(a)(l). Here, mother petitioned for modification. Because she is a resident of Minnesota, the require-ment of section 518C.611(a)(l)(ii) was not met, and Minnesota courts, therefore, could not assume jurisdiction to modify the order under section 518C.611(a)(l).

Second, Minn.Stat. § 5180.611(a)(2), provides that a Minnesota court may modify a foreign child-support order if the child or one of the parents is subject to the personal jurisdiction of the Minnesota court and both parents have filed in the issuing court written consents for Minnesota courts to modify the support order and assume continuing, exclusive jurisdiction over it. Minn.Stat. § 518C.611(a)(2). Here, the parties have not filed the requisite consents in the Massachusetts court. Minnesota courts, therefore, cannot assume jurisdiction to modify the order under section 518C.611(a)(2).

Third, Minn.Stat. § 5180.613(a) provides that Minnesota courts can assume jurisdiction to modify the Massachusetts order if both parents live in Minnesota and the child no longer lives in Massachusetts. See Minn.Stat. § 5180.613(a). Here, father is not a Minnesota resident. Therefore, Minnesota courts do not have jurisdiction to modify the order under section 5180.613(a).

None of the circumstances identified in the UIFSA that would give Minnesota courts subject-matter jurisdiction to modify the Massachusetts child-support order is present here. The magistrate, therefore, did not have jurisdiction to modify the Massachusetts order.

This conclusion is consistent with the intent of the UIFSA, which contemplates that, when the parents have both left the state where the child-support order was issued but do not currently reside in the same state, the party petitioning for modification of the support order must do so in a state that (1) has personal jurisdiction over the other parent, and (2) is not the state in which the petitioner resides. As the commissioner’s comment to section 611 explains,

[t]his restriction attempts to achieve a rough justice between the parties in the majority of cases by preventing a litigant from choosing to seek modification in a local tribunal to the marked disadvantage of the other party.... In short, the obligee is required to register the existing order and seek modification of that order in a state which has personal jurisdiction over the obligor other than the State of the obligee’s residence.

Unif. Interstate Family Support Act § 611 emt., 9 U.L.A. Pt. IB, at 371.

Finally, we conclude that the child-support magistrate erred by determining that she had subject-matter jurisdiction to modify the order under Minn.Stat. § 484.702 (2002). While the record indicates that an IV-D file was opened in mother’s name during the course of this dispute, we find nothing in section 484.702 or in the UIFSA suggesting that the creation of an TV-D file confers jurisdiction to modify a foreign child-support order.

DECISION

Mother complied with the statutory requirements for registering the Massachusetts child-support order, so Minnesota courts have jurisdiction to enforce the order. But because the requirements of neither Minn.Stat. § 5180.611(a) nor Minn. Stat. § 5180.613(a) were met, the magistrate lacked jurisdiction to modify the order. We therefore vacate the magistrate’s order.

Vacated.

      . An IV-D case is one in which a parly has assigned the rights to child support to the state because of the receipt of public assistance or has applied for child-support services under Title IV-D of the Social Security Act. Minn.Stat. § 518.54, subd. 14 (2002). The record shows that mother applied for IV-D services at some time after she moved for modification of the child-support order.

      . Minn.Stat. § 518C.607(a) provides that
      [a] party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
      (1) the issuing tribunal lacked personal jurisdiction over the contesting party;
      (2) the order was obtained by fraud;
      (3) the order has been vacated, suspended, or modified by a later order;
      (4) the issuing tribunal has stayed the order pending appeal;
      (5) there is a defense under the law of this state to the remedy sought;
      (6) full or partial payment has been made; or
      (7) the statute of limitation under section 518C.604 precludes enforcement of some or all of the arrearages.
      Minn.Stat. § 5180.607(a).


author: NEUMANN, Justice.

text:
    2004 ND 44
    STATE of North Dakota, Plaintiff and Appellee v. Michael Ray LEMONS, Defendant and Appellant.
    No. 20030029.
    Supreme Court of North Dakota.
    Feb. 25, 2004.

      William A. Mackenzie, Jamestown, N.D., submitted on brief.
    H.Jean Delaney, Assistant State’s Attorney, Valley City, N.D., submitted on brief.
   NEUMANN, Justice.

[¶ 1] Michael Ray Lemons appeals from the trial court’s criminal judgment and commitment finding him guilty of aggravated assault. Lemons also appeals from the trial court’s subsequent denial of his motion for a new trial. After learning Lemons’ witness was absent, the trial court denied Lemons’ request for a continuance and alternative request to allow the witness to testify by telephone. The trial court further denied Lemons’ motion for a new trial. Lemons also argues there was insufficient evidence to sustain his conviction. We affirm.

I

[¶ 2] Lauri Jutting, formerly married to Tracy Eleven, had a brief relationship with Michael Ray Lemons. Shortly after Jutting’s relationship ended with Lemons, Eleven visited Jutting in Valley City, North Dakota. On April 30, 2002, Lemons encountered Eleven and Jutting in a local bar. There was no confrontation at the bar, and Eleven and Jutting returned home at the end of the evening. Lemons went to the home of J.R., a juvenile. While at J.R.’s residence, Lemons telephoned Jutting. During the conversation, Jutting informed Lemons that he would need to come to her sister’s home, where she was staying, if he wanted to speak with her. After the conversation ended, Jutting and Eleven retired for the evening.

[¶ 3] Several hours later, at approximately one o’clock in the morning of May I, 2002, Eleven and Jutting were awakened by Lemons and J.R., who were outside the residence. Jutting went outside to speak with Lemons, and Eleven stepped outside shortly thereafter. A fight between Lemons and Eleven ensued. Whether Lemons initiated the altercation is disputed. Lemons asserts he was attempting to leave and Eleven was the initial aggressor, while Eleven recollects only that he and Lemons “got tangled up.” J.R. and Jutting eventually became involved in the altercation. It is disputed whether they were attempting to separate Lemons and Eleven or join the brawl. Lemons alleged that, at some point during the dispute, Eleven and Jutting were both holding him down. Lemons claims this is the point in the altercation when he bit off a one-half inch portion of Eleven’s nose. Eleven was taken to the hospital where he underwent reconstructive surgery the next day.

[¶ 4] Lemons was arrested for the assault and filed a speedy trial request on July 11, 2002. Lemons’ jury trial began on October 3, 2002, within 90 days of his speedy trial request. Lemons intended to have J.R. testify on his behalf during the trial and on September 27, 2002, attempted to issue a subpoena for J.R.’s presence at trial. J.R., however, was no longer in North Dakota. Lemons did not become aware of J.R.’s absence until the second day of trial, October 4, 2002. Upon learning of J.R.’s absence, Lemons requested J.R. be allowed to testify by telephone. Lemons’ counsel had a telephone number for J.R.’s out-of-state location. The trial court denied Lemons’ request. Lemons moved for a continuance to allow him time to procure J.R. The trial court denied the motion for a continuance. On October 4, 2002, a jury found Lemons guilty of aggravated assault.

[¶ 5] On October 15, 2002, Lemons moved for a new trial based on prosecuto-rial misconduct. In his motion, Lemons argued the State knew J.R. was unavailable and intentionally failed to disclose that information to Lemons. Lemons further argued the State had intentionally caused J.R.’s absence. Before the trial court conducted a hearing on the motion for a new trial, Lemons became satisfied that the State had not engaged in prosecu-torial misconduct.

[¶ 6] Lemons pursued the motion for a new trial, arguing the trial court erred in denying his request for a continuance or by failing to allow J.R. to testify by telephone. Lemons argued the trial court should have allowed J.R.’s testimony because it would either exonerate Lemons or substantiate his claim of self-defense. At the hearing on the motion, J.R. testified Eleven was the initial aggressor. J.R. also testified he had given a written statement of the incident to his mother and instructed her to give the statement to Barnes County law enforcement. However, law enforcement never conducted a follow-up interview, and J.R. later testified that his mother never gave the statement to law enforcement. At the conclusion of the hearing, the trial court denied Lemons’ motion for a new trial.

II

[¶ 7] Lemons argues the evidence presented at trial is insufficient to sustain the guilty verdict and does not support Lemons’ conviction for aggravated assault. “We will reverse a criminal conviction only if, after viewing the evidence and all evidentiary inferences favorable to the prosecution, no rational fact finder could have found the defendant guilty beyond a reasonable doubt.” City of Jamestown v. Tahran, 2003 ND 35, ¶ 4, 657 N.W.2d 235. A rational fact-finder could have found Lemons guilty beyond a reasonable doubt, based on the evidence presented at trial. Therefore, we summarily affirm this issue under N.D.R.App.P. 35.1(a)(3).

Ill

[¶ 8] Lemons argues the trial court abused its discretion in denying his motion to allow telephonic testimony, or, in the alternative, his motion for a continuance, based on J.R.’s absence. Lemons further argues the trial court’s abuse of discretion denied his right to a fair trial. We disagree.

A

[¶ 9] During the trial, Lemons’ requested J.R. be allowed to testify by telephone. Lemons’ counsel indicated that just prior to the request he had attempted to contact J.R. using a telephone number Lemons provided, but was unsuccessful. However, he thought another attempt might be successful. Lemons’ counsel informed the trial court that, although he had not discussed “this matter,” with J.R., he had attempted to subpoena him and had spoken with J.R.’s mother. Counsel also requested time to interview J.R. before testifying. The State objected based on the jury’s inability to view the witness to ascertain his credibility. The trial court denied Lemons’ motion.

[¶ 10] Under Rule 26, North Dakota Rules of Criminal Procedure, “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or these rules.” North Dakota case law does not address whether telephonic testimony may be admitted in a criminal trial. The civil rule equivalent, Rule 43, N.D.R.Civ.P., requires testimony be taken orally in open court, but allows for deviation from this requirement under certain circumstances if all parties agree.

[¶ 11] Because there is no precedent for such a practice in criminal trials and such testimony appears to possibly violate Rule 26, N.D.R.Crim.P., the trial court did not act arbitrarily, unreasonably, or capriciously in denying Lemons’ request to allow J.R. to testify by telephone. Additionally, even if the extended provisions of the civil rule were deemed applicable in this case, there was no agreement between the parties because the State objected. Therefore, the trial court properly refused to allow J.R. to testify by telephone.

B

[¶ 12] “A trial court has great latitude and discretion in conducting a trial.” State v. Erban, 429 N.W.2d 408, 413 (N.D.1988). “A motion for a continuance ... rests in the discretion of the trial court, and its decision will not be set aside on appeal absent an abuse of discretion.” State v. Entzi, 2000 ND 148, ¶ 22, 615 N.W.2d 145. A trial court has broad discretion in determining evidentiary matters. State v. Carlson, 1997 ND 7, ¶ 8, 559 N.W.2d 802. “A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586.

[¶ 13] After the trial court denied Lemons’ telephonic testimony request, Lemons moved for a continuance to allow time to procure J.R., asserting J.R.’s testimony was essential to Lemons’ case and J.R. could provide exculpatory evidence. The State objected, and the trial court denied Lemons’ motion. Lemons’ counsel failed to make an offer of proof as to the substance of J.R.’s testimony.

[¶ 14] This issue is not preserved for appeal, due to Lemons’ failure to make an offer of proof regarding J.R.’s testimony. See N.D.R.Ev. 103(a)(2). “‘Error cannot be predicated upon a ruling which excludes evidence unless the party offering the evidence makes an offer of proof, or the substance of the evidence is apparent from the context in which the question was asked.’ ” State v. Glass, 2000 ND 212, ¶ 8, 620 N.W.2d 146 (quoting State v. Jensen, 2000 ND 28, ¶ 17, 606 N.W.2d 507 (citing N.D.R.Ev. 103)). The substance of the evidence is not demonstrated when Lemons’ counsel stated only that J.R. would provide “credible exculpatory evidence.” The trial court did not abuse its discretion in denying Lemons’ motion for a continuance. See Erban, 429 N.W.2d at 413 (concluding no abuse of discretion when trial court denied a continuance when a subpoenaed witness could not be located and the defendant failed to advise the court of the expected content of the witness’s testimony if called at trial); see also Flattum-Riemers v. Peters-Riemers, 2001 ND 121, ¶ 15, 630 N.W.2d 71 (holding no abuse of discretion when the moving party failed to make an offer of proof by showing “what the witness would testify to if present”).

C

[¶ 15] Even though Lemons failed to preserve this issue for appeal, we are still able to provide a limited review to determine whether the trial court committed obvious error affecting substantial rights. N.D.R.Crim.P. 52(b) (stating, “[o]bvious errors ... may be noticed although they were not brought to the attention of the court”); see Glass, 2000 ND 212, ¶ 11, 620 N.W.2d 146. We may not reverse unless the defendant shows “(1) error, (2) that is plain, and (3) affects substantial rights.” Glass, at ¶ 11. A substantial right is affected if the obvious error was prejudicial or affected the out come of the defendant’s case. Glass, at ¶ 14. We review the entire record and determine “the probable .effect of the alleged error in light of all the evidence.” Glass, at ¶ 11.

[¶ 16] At trial, Lemons, Eleven, and Jutting each testified about their recollection of the altercation between Eleven and Lemons. The evidence shows Lemons went to visit Jutting late at night after he had been drinking. Testimony and physical evidence show Lemons was larger than Eleven. A fight ensued between Lemons and Eleven. J.R. and Jutting became involved in the fight, although it is unclear as to whether they were attempting to separate Lemons and Eleven, or embroil themselves in the altercation. The jury also heard undisputed testimony that, eventually, Lemons and Eleven ended up on the ground, with Eleven on the ground underneath Lemons. The undisputed testimony also shows that while Lemons had Eleven underneath him on the ground, Lemons asked J.R. to kick Eleven. It is also undisputed that Lemons then bit off the end of Eleven’s nose while still on top of him. Despite Lemons’ claim that this act was inadvertent and he was acting in self-defense, the jury was able to observe all evidence and testimony and clearly concluded otherwise. The task of weighing evidence and assessing credibility is solely within the province of the jury. State v. Bell, 2002 ND 130, ¶ 25, 649 N.W.2d 243.

[¶ 17] Based on the evidence, we conclude a jury could have reasonably found Lemons guilty beyond a reasonable doubt. We will not presume exclusion of J.R.’s testimony would have affected the outcome or was prejudicial to Lemons. Lemons has not met his burden in demonstrating denial of a continuance affected his substantial rights and, as such, the trial court’s denial was not obvious error.

IV

[¶ 18] Lemons argues the trial court abused its discretion in denying his motion, for a new trial. We review a trial court’s decision on a motion for a new trial under an abuse of discretion standard. State v. Sievers, 543 N.W.2d 491, 494 (N.D.1996). We will not reverse a trial court’s denial of a motion for a new trial absent an abuse of discretion. Id. “A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586.

A

[¶ 19] Lemons initially moved for a new trial based on alleged prosecutorial misconduct, under N.D.R.Crim.P. 33. Under Rule 33, “the court may grant a new trial to that defendant if the interests of justice so require.” N.D.R.Crim.P. 33(a). Before a new trial may be granted, the “motion ..'. must specify the alleged defects and errors with particularity.” Id. Lemons properly raised the issue of prose-cutorial misconduct, specifying the alleged defects and errors with particularity, in compliance with Rule 33(a). However, before the trial court conducted the hearing on Lemons’ motion for a new trial, Lemons admits he became satisfied that, although the State knew J.R. was no longer in North Dakota, the State did not intentionally cause J.R.’s absence. Therefore, the issue of prosecutorial misconduct was abandoned by Lemons and was no longer before the trial court.

B

[¶ 20] In his brief on appeal, Lemons fails to allege specific legal grounds as to his theory of the trial court’s error in denying the motion for new trial. Lemons initially states the factual background regarding his prosecutorial misconduct allegation, and then proceeds into a discussion on J.R.’s appearance and testimony, without more. However, Lemons did identify “grounds alleged for the specific defect or error” in the “Facts” section of his brief on motion for a new trial by stating J.R. was a critical defense witness whose testimony would either exonerate Lemons or substantiate Lemons’ claim of self-defense. In that brief, Lemons further noted the trial court’s earlier denial of his requests for a continuance and telephonic testimony. Thus, we conclude Lemons is arguing the trial court abused its discretion in denying his motion for a continuance and request for telephonic testimony. Lemons properly raised this issue in compliance with Rule 33(a), North Dakota Rules of Criminal Procedure.

[¶ 21] At the January 13, 2003, hearing, J.R. testified as to his recollection of the altercation between Eleven and Lemons. J.R. testified Eleven was the initial aggressor. However, J.R. also testified Lemons had not been drinking during the evening, in contradiction to testimony given at trial. J.R. also testified Eleven was larger than Lemons, which also contradicts testimony and physical evidence submitted at trial. In addition, J.R.’s rendition of events is contradictory to trial testimony given by Lemons. The trial court observed J.R.’s testimony “was the opposite of everything we heard at trial,” and denied Lemons’ motion.

[¶ 22] Despite the contradictory testimony, Lemons argues the fact-finder, in this case, the jury, should have the opportunity to observe J.R.’s testimony in court and determine his credibility, in order to afford Lemons his right to a fair trial. We disagree.

[¶ 23] Lemons’ motion for a new trial rested on his claim that J.R.’s testimony “would exonerate him or substantiate his claim of self defense.” The trial court acted within its discretion in denying Lemons’ motion. The trial court found the testimony was unsupported by any other trial testimony or evidence. J.R.’s testimony almost entirely failed to corroborate Lemons’ testimony, neither exonerating Lemons nor substantiating Lemon’s claim of self-defense. A new trial is appropriate, under Rule 33(a), N.D.R.Crim.P., “if the interests of justice so require.” Lemons was not prejudiced by the exclusion of J.R.’s testimony and Lemons’ conviction is supported by a sufficiency of the evidence. In this case, when a material defense witness is unavailable through no fault of either party, the trial court has the discretion to deny a motion for a new trial if the defendant fails to demonstrate prejudice. The trial court did not act arbitrarily, unreasonably, or capriciously in denying Lemons’ motion for a new trial.

V

[¶ 24] We do not determine any issues that could be considered to implicate Lemons’ rights under the North Dakota Constitution or United States Constitution. While Lemons argues his right to a fair trial was denied, he did not adequately brief any such arguments. “A party raising a constitutional challenge should bring up the heavy artillery or fore-go the attack entirely.” State v. Backlund, 2003 ND 184, ¶ 38, 672 N.W.2d 431.

VI

[¶ 25] The trial court did not abuse its discretion in denying Lemons’ motion for a continuance or request to allow a witness to testify by telephone. Lemons’ conviction is supported by sufficiency of the evidence. The trial court did not abuse its discretion in denying Lemons’ motion for a new trial. Accordingly, we affirm.

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


author: SANDSTROM, Justice.

text:
    2004 ND 45
    Ginger HARFIELD and Todd Harfield, Plaintiffs and Appellants v. Jeremy TATE, Defendant and Appellee.
    No. 20030039.
    Supreme Court of North Dakota.
    Feb. 25, 2004.

      Alan C. Erickson, Fargo, ND, for plaintiffs and appellants.
    Thomas R. Olson (argued) and Richard N. Jeffries (on brief), Jeffries, Olson & Flom, P.A., Moorhead, MN, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Ginger and Todd Harfield appealed from a judgment entered upon a jury verdict awarding Ginger Harfield damages for injuries sustained in an automobile accident, but ordering the Harfields to pay costs and disbursements to Jeremy Tate. We reverse and remand, concluding the trial court erred in admitting medical records and a letter from Ginger Harfield’s doctor about a prior unrelated surgery.

I

[¶ 2] On December 28, 1994, Tate had stopped his pickup in a line of vehicles at a stop sign at the top of an exit ramp off of Interstate 29 in Fargo. As the line progressed forward, Tate heard a noise coming from the back of his pickup and turned to look. Tate then noticed the vehicles ahead had stopped, and he applied his brakes but was unable to stop in time and rear-ended the vehicle in front of him, which was driven by Todd Harfield.

[¶ 3] Todd Harfield and Ginger Har-field, who had been a passenger in the vehicle driven by her husband, brought this negligence action against Tate, claiming they were injured in the crash. The case was tried to a jury in 1998, and the jury found Tate was not negligent. The Harfields appealed from the judgment dismissing their action, and this Court reversed the judgment, concluding the trial court had given an erroneous jury instruction and Tate was negligent as a matter of law. See Harfield v. Tate, 1999 ND 166, 598 N.W.2d 840. We remanded for a new trial on the issue of damages. Id. at ¶ 23.

[¶ 4] A second jury trial was held in August 2002, with the jury finding Todd Harfield had suffered no damages caused by the accident and awarding Ginger Har-field $2,401.30 for past medical expenses caused by the accident. Because Tate had earlier made an offer of settlement under N.D.R.Civ.P. 68 in excess of that amount, the court ordered that Ginger Harfield was entitled to the damages awarded by the jury plus her costs and disbursements of $4,559.37 incurred prior to Tate’s Rule 68 offer. This amount was ordered offset and satisfied by costs and disbursements of $15,253.10 incurred by Tate after the offer of settlement, resulting in a judgment in favor of Tate in the amount of $8,292.39. The Harfields appealed.

[¶ 5] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The Harfields’ appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] The Harfields contend the trial court erred in admitting into evidence medical records and a letter in which Ginger Harfield’s treating doctor from a 1985 surgery indicated Ginger Harfield was a malingerer and stated it would be a “travesty of justice” if she received disability benefits.

[¶ 7] Under N.D.R.Ev. 401, 402, and 403, the district court has broad discretion in admitting or excluding evidence. State v. Stoppleworth, 2003 ND 137, ¶ 13, 667 N.W.2d 586; State v. Klose, 2003 ND 39, ¶ 28, 657 N.W.2d 276. Relevant evidence is generally admissible. Brandt v. Milbrath, 2002 ND 117, ¶ 13, 647 N.W.2d 674; N.D.R.Ev. 402. Relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.D.R.Ev. 401. Under N.D.R.Ev. 403, the trial court also has discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Stoppleivorth, at ¶ 13; Klose, at ¶ 28. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, or if its decision is not the product of a rational mental process. Schaefer v. Souris River Telecomm. Coop., 2000 ND 187, ¶ 10, 618 N.W.2d 175.

[¶ 8] Prior to trial, the Harfields moved in limine to exclude evidence relating to Ginger Harfield’s 1985 breast surgery. Her surgeon, Dr. Robert Zarrett, had noted in her chart in 1985 that Ginger Harfield was probably a malingerer. In addition, Dr. Zarrett wrote a letter dated August 1, 1985, to Social Security Disability Determination Services pertaining to Ginger Harfield’s application for disability-benefits. Dr. Zarrett wrote:

[T]he patient informed me that she was on unemployment related to her inability to work since the biopsy. I suspect that she is using the breast biopsy as an opportunity to avoid acquiring gainful employment.
Recognizing that it is not my duty to determine whether or not this patient is disabled, I cannot help but to give an opinion. I think that she is a malingerer and I cannot find any evidence of a physiologic reason why a breast biopsy which is well healed should be affecting the use of the right arm. I personally do not think that she should be considered disabled and I believe it will be a travesty of justice if she i*eceives disability compensation.

The trial court determined this evidence was relevant and Dr. Zarrett’s medical notes and the August 1, 1985, letter were admissible.

[¶ 9] The admissibility of character evidence or evidence of prior bad acts to prove a person acted in conformity therewith on a later occasion is strictly limited by N.D.R.Ev. 404:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of Accused. Except as otherwise provided by statute, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3)Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

[¶ 10] Under the rule, the commission of an act cannot be proved by showing the commission of similar acts by the same person at other times, or by showing the act was in conformity with the person’s character or a character trait. See, e.g., State v. Gagnon, 1999 ND 13, ¶ 10, 589 N.W.2d 560; Kunnanz v. Edge, 515 N.W.2d 167, 171 (N.D.1994); Lange v. Cusey, 379 N.W.2d 775, 777 (N.D.1985). We summarized the effect of the rule in State v. Strutz, 2000 ND 22, ¶ 21, 606 N.W.2d 886 (citations omitted):

Under N.D.R.Ev. 404(b), evidence of prior bad acts or crimes is generally not admissible unless it is substantially relevant for some purpose other than to point out the defendant’s criminal character and to show the probability that he acted in conformity therewith. The rule acknowledges the inherent prejudicial effect prior bad act evidence may have on the trier of fact.

We have also cautioned:

Specific instances of conduct, while considered the most probative of the types of character evidence, are also the most likely to confuse or create undue prejudice in the minds of the triers of fact. Explanatory Note, N.D.R.Ev. 405. For this reason, specific instances of conduct, as character evidence, are restricted to when character is in direct issue or when used on cross-examination to rebut an assertion by a witness concerning a person’s character.

Gagnon, 1999 ND 13, ¶ 13, 589 N.W.2d 560.

[¶ 11] The evidence at issue here was clearly character or prior bad act evidence. Unless admissible under one of the exceptions in the rule, this evidence was inadmissible. It cannot be admitted to show that Ginger Harfield had a propensity to malinger and that she acted in conformity with that propensity after the accident. Tate does not argue the medical notes and letter fit within one of the recognized exceptions under N.D.R.Ev. 404. The only possible relevance of this evidence was to show that Ginger Harfield had feigned the severity of an illness in the past in an attempt at financial gain and that she was doing so again in this ease. Rule 404 prohibits such use of propensity evidence.

[¶ 12] We are also mindful of the tenuous connection between this evidence and the subsequent accident and of the particularly inflammatory nature of this evidence within the context of this case. Dr. Zar-rett’s medical notes and letter pertain to a breast biopsy performed nearly ten years before this accident, and more than seventeen years before the second trial. There is no medical connection between the 1985 breast surgery and the injuries Ginger Harfield alleges she incurred as a result of the 1994 accident. Furthermore, use of the terms “malingerer” and “travesty of justice” could be highly inflammatory and unfairly prejudicial in a jury trial.

[¶ 13] We conclude that under the facts of this case, the district court abused its discretion by admitting the medical notes and the August 1, 1985, letter of Dr. Zar-rett. Accordingly, we reverse and remand for a new trial.

Ill

[¶ 14] We will briefly address two additional evidentiary issues that may arise upon retrial.

A

[¶ 15] The Harfields contend the trial court erred in admitting a 1998 deposition of Tate’s medical expert, Dr. Miles Belgrade, at the second trial.

[¶ 16] Dr. Belgrade conducted an independent medical examination of Ginger Harfield in 1998, and the parties took his deposition. The videotaped deposition was played for the jury at the first trial. After the judgment following the first trial was reversed' on appeal, the Harfields made a motion in limine requesting that Dr. Belgrade’s 1998 deposition not be admitted at the second trial. The trial court, noting Dr. Belgrade had conducted a second independent medical examination of Ginger Harfield, determined that the 1998 deposition could be used at the second trial provided the parties conduct a supplemental videotaped deposition of Dr. Belgrade, taking into account Ginger Harfield’s updated medical records and the second independent medical examination. A supplemental videotaped deposition of Dr. Belgrade was taken in 2002, and both the 1998 and 2002 depositions were shown to the jury at the second trial.

[¶ 17] The Harfields’ objection to use of the 1998 deposition goes to the form, not the substance, of the evidence. The Harfields do not point to specific questions or answers in the first deposition that were inadmissible. Rather, the Harfields contend it was confusing and prejudicial to allow the two bifurcated depositions, and Tate should have been required to conduct an entirely new deposition in 2002 covering both independent medical examinations rather than merely updating the first deposition.

[¶ 18] The trial court has great latitude and discretion in conducting the trial, including the manner of presentation of the evidence. See Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 580 (N.D.1991); Ward v. Shipp, 340 N.W.2d 14, 17 (N.D.1983). As we concluded in Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 35, 643 N.W.2d 29 (quoting State v. Leinen, 1999 ND 138, ¶ 7, 598 N.W.2d 102), “[t]he trial court has broad discretion in evidentiary matters and, absent an abuse of discretion, we will not reverse its decision.” A trial court’s decision admitting evidence will be reversed on appeal only if the court has abused its discretion by acting in an arbitrary, unconscionable, or unreasonable manner. State v. Klose, 2003 ND 39, ¶ 28, 657 N.W.2d 276.

[¶ 19] The Harfields do not challenge any specific content of the 1998 deposition. Evidence of the first independent medical examination and Dr. Belgrade’s opinions at that time would have been admissible if covered in a second deposition. The trial court had ruled the 1998 deposition would be admissible before the 2002 deposition was conducted, so the Harfields’ counsel had a full opportunity to challenge Dr. Belgrade’s 1998 opinions with Ginger Har-field’s subsequent medical records and history. Under these circumstances, we conclude the trial court did not abuse its discretion in allowing both depositions into evidence rather than requiring an entirely new deposition covering both independent medical examinations.

B

[¶ 20] The Harfields contend the trial court erred in admitting testimony of Myron Lofgren, Tate’s expert witness.

[¶ 21] We recently set forth the standards for introduction of expert testimony in Gonzalez v. Tounjian, 2003 ND 121, ¶ 24, 665 N.W.2d 705 (citations omitted):

Introduction of expert testimony is governed by N.D.R.Ev. 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Under Rule 702, expert testimony is admissible whenever specialized knowledge will assist the trier of fact. Rule 702 envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which she is to testify. Whether a witness is qualified as an expert and whether the witness’s testimony will assist the trier of fact are decisions within the sound discretion of the trial court which will not be overturned on appeal absent an abuse of discretion.

[¶ 22] In challenging Lofgren’s qualifications to testify as an expert, the Har-fields essentially argue their experts were better qualified and more highly specialized than Lofgren. They point out Lof-gren did not have a degree in mechanical engineering and was not specifically a glass breakage expert. We have previously held, however, that an expert need not be a specialist in a highly particularized field:

An expert need not be a specialist in a highly particularized field if his knowledge, training, education, and experience will assist the trier of fact. The rule does not require an expert to have a formal title or to be licensed in any particular field, but recognizes it is the witness’s actual qualifications that count by providing that an expert can be qualified by knowledge, skill, experience, training, or education.
We have previously held a trial court does not abuse its discretion by admitting expert testimony whenever specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification.

Myer v. Rygg, 2001 ND 123, ¶¶ 14-15, 630 N.W.2d 62; see also Gonzalez, 2003 ND 121, ¶ 25, 665 N.W.2d 705.

[¶ 23] Lofgren has an extensive background in accident reconstruction. He was employed by the Minnesota State Patrol for 21 years, received training in accident reconstruction, and taught accident reconstruction for the Minnesota State Patrol. Upon his retirement from the State Patrol in 1983, he formed a private consulting business in accident reconstruction. In his career he has reconstructed more than 3,000 accidents. He also testified he had received specialized training in windshield glass breakage. We conclude the trial court did not abuse its discretion in concluding Lofgren was qualified to testify as an expert.

rv

[¶ 24] We reverse and remand for a new trial.

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