author: VANDE WALLE, Chief Justice.

text:
    2004 ND 191
    Andrew HECKELSMILLER, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20040111.
    Supreme Court of North Dakota.
    Oct. 12, 2004.

      Donavin L. Grenz, Linton, ND, for petitioner and appellant.
    Tyrone J. Turner, Assistant State’s Attorney, Bismarck, ND, for respondent and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Andrew Heckelsmiller appealed from a South Central Judicial District Court memorandum opinion- containing an order denying post-conviction relief. Andrew Heckelsmiller was charged with committing criminal trespass, a class C felony, and was found guilty by a jury verdict. Andrew Heckelsmiller appealed his conviction to this Court. We affirmed the judgment of conviction but allowed him to raise a claim of ineffective assistance of counsel in a post-conviction proceeding. State v. Heckelsmiller, 2004 ND 3, ¶ 2, 676 N.W.2d 813. Andrew Heckelsmiller’s claim of ineffective assistance of trial counsel was examined during a post-conviction proceeding and, following an evidentiary hearing, the district court issued a memorandum opinion and order denying relief. We hold trial counsel’s representation constituted ineffective assistance of counsel and we reverse the district court’s order denying post-conviction relief.

[¶ 2] Andrew Heckelsmiller was convicted on August 29, 2002, of the crime of criminal trespass, a class C felony. N.D.C.C. § 12.1-22-03(1), Criminal trespass, provides: “A person is guilty of a class C felony if, knowing that he is not licensed or privileged to do so, he enters or remains in a dwelling or in highly secured premises.” Andrew Heckelsmiller and a friend entered a trailer house owned by Andrew Heckelsmiller’s uncle, Tim Heck-elsmiller. Upon being discovered, Andrew Heckelsmiller fled the trailer house through a back window and was later arrested. Andrew Heckelsmiller testified that everyone in his family had a right to stay at the trailer house while in Bismarck because his grandmother, Donna Heckel-smiller, repaid a loan associated with the trailer house. In his subsequent motion for post-conviction relief, Andrew Heckel-smiller raised a number of claims of ineffective assistance of trial counsel.

I.

[¶ 3] The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel. DeCoteau v. State, 1998 ND 199, ¶ 6, 586 N.W.2d 156. In accord with the test established by the United States Supreme Court in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. DeCo-teau, 1998 ND 199, ¶ 6, 586 N.W.2d 156 (citing Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995)). “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” Lange v. State, 522 N.W.2d 179, 181 (N.D.1994) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). The defendant must first overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D. 1993) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight. Lange, 522 N.W.2d at 181.

[¶ 4] The prejudice element requires a defendant to “establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Syvertson v. State, 2000 ND 185, ¶22, 620 N.W.2d 362. Not only does a criminal defendant have “the heavy, demanding burden of proving counsel’s assistance was ineffective,” Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995) (internal quotations omitted), a defendant claiming ineffective assistance of counsel “must specify how and where trial counsel was incompetent and the probable different result.” State v. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. at 697,104 S.Ct. 2052.

[¶ 5] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Varnson v. Satran, 368 NW.2d 533, 536 (N.D.1985). The issue of ineffective assistance of counsel is a mixed question of law and fact that is fully reviewable by this Court. Breding v. State, 1998 ND 170, ¶ 4, 584 N.W.2d 493 (citing Falcon v. State, 1997 ND 200, ¶ 21, 570 N.W.2d 719). Nonetheless, a trial court’s findings of fact in a post-conviction relief proceeding will not be disturbed unless clearly erroneous. N.D.R.Civ.P. 52(a); Frey v. State, 509 N.W.2d 261, 263 (N.D. 1993). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made. Burlington Northern and Sante Fe Railway Co. v. Burlington Resources Oil & Gas Co., 1999 ND 39, ¶ 10, 590 N.W.2d 433.

II.

[¶ 6] Andrew Heckelsmiller’s most significant claim for ineffective assistance of his trial counsel involves the sequestration of witnesses at trial. Specifically, trial counsel requested the sequestration of witnesses at trial, yet two potential witnesses for the defense, Donna Heckelsmiller and William Heckelsmiller, Andrew Heckel-smiller’s grandmother and father, were denied the opportunity to testify because they did not comply with the sequestration order. For purposes of the post-conviction proceeding, these witnesses prepared affidavits to establish what their testimony would have been at trial. Donna Heckel-smiller would have testified to her payment of a loan associated with the trailer house and the existence of a subsequent agreement between herself and Tim Heck-elsmiller that allowed family members, such as Andrew Heckelsmiller, to stay in the trailer house while in Bismarck. William Heckelsmiller would have offered testimony supporting the existence of this family agreement. William Heckelsmiller would have further testified that he told Andrew Heckelsmiller to stay at the trailer house on the evening in question. Finally, William Heckelsmiller would have testified as to Tim Heckelsmiller’s alleged resentment toward Andrew Heckelsmiller and to his belief that Andrew Heckelsmil-ler “fled the trailer house because he knew that Tim Heckelsmiller would chew him out or give him a bad time for being there, in spite of the family policy.”

[¶ 7] During the post-conviction evi-dentiary hearing, trial counsel justified his strategies and actions during the course of the trial. Trial counsel stated he requested additional information from Andrew Heckelsmiller, Heckelsmiller’s grandmother, and Heckelsmiller’s father to validate their claims, but that he failed to receive any such corroborating information. He testified he was aware of the evidence Donna and William Heckelsmiller sought to offer but, having considered this unsubstantiated evidence, he chose not to put these witnesses on the stand due to credibility concerns. And, given that he did not plan to call Andrew Heckelsmiller’s grandmother or father to testify, there was no need to sequester them.

[¶ 8] At some point during the trial, counsel apparently decided to change his trial strategy and call Donna and William Heckelsmiller to testify. Such a shift in strategy may not be uncommon or even undesirable, and we do not attempt to second-guess trial strategies or tactics. Trial counsel indicated he only altered his trial strategy and called Andrew Heckel-smiller’s father and grandmother to the stand in an effort to accommodate the family members’ strong desire to testify. But, because Donna and William Heckel-smiller were present in the courtroom during previous witnesses’ testimony, the State promptly objected to their testimony and the district court judge refused to let them testify due to the sequestration order. At this point, trial counsel should have made an offer of proof as to why these individuals should be allowed to testify despite the sequestration violation. An offer of proof is defined as:

A presentation of evidence for the record (but outside the jury’s presence) usually made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge’s ruling. An offer of proof, which may also be used to persuade the court to admit the evidence, consists of three parts: (1) the evidence itself, (2) an explanation of the purpose for which it is offered (its relevance), and (8) an argument supporting admissibility.

Black’s Law Dictionary 1112 (7th ed.1999).

[¶ 9] Trial counsel did not, however, make an offer of proof or any other affirmative argument to justify calling these witnesses to testify. Even granting trial counsel all reasonable inferences that can be drawn from his testimony, counsel’s trial performance is ineffective in this one discrete, yet critically important, aspect. The only defense trial counsel anticipated offering, and in fact the only defense offered, was the defense involving the family arrangement to stay at the trailer house. Further, trial counsel testified that, at the beginning of the trial, he only anticipated calling Andrew Heckelsmiller as a witness. While trial counsel was under no obligation to call any defense witness he did not believe to be credible, he obviously developed enough confidence in these two witnesses to call them to the stand. His reasoning that he only called these witnesses to accommodate the family’s desire to testify is no excuse for not making an offer of proof once their testimony was challenged. When counsel consciously altered his trial strategy and decided to call Donna and William Heckelsmiller to testify, he assumed a basic responsibility to vindicate that alteration. Trial counsel’s concerns over credibility may have provided a valid justification for not anticipating calling either of these witnesses and, thus, not initially ensuring compliance with the sequestration order, but these same concerns do not justify the decision to essentially abandon the new strategy to call the witnesses.

[¶ 10] Given that N.D.C.C. § 12.1-22-03(1) requires knowing misconduct, trial counsel should have made a strong offer of proof to the district court judge. Both Donna and William Heckelsmiller, who would have been the only other defense witnesses besides Andrew Heckelsmiller to testify, would have offered corroborating testimony to bolster Andrew Heckelsmil-ler’s only defense, the family arrangement to stay at the trailer house. William Heckelsmiller would have testified he gave Andrew Heckelsmiller permission to stay at the trailer house, which could directly impact a jury’s determination of whether Andrew Heckelsmiller possessed the requisite mental state to be guilty of criminal trespass. William Heckelsmiller would have testified as to Tim Heckelsmiller’s allegedly negative feelings toward Andrew Heckelsmiller, which could have worked to explain Andrew Heckelsmiller’s flight from the trailer house. Trial counsel should also have pointed out that Donna and William Heckelsmiller apparently did not observe a significant quantity of the State’s case that would have been directly relevant to their testimony. And, at the very least, trial counsel should have asked the court to inquire into the testimony that Donna and William Heckelsmiller did observe. If the district court judge nonetheless excluded this testimony, trial counsel would have preserved the record for appeal, permitting a meaningful appellate review of the trial judge’s refusal to allow the witnesses to testify. Cf Whiteman v. State, 2002 ND 77, ¶ 10, 643 N.W.2d 704 (applying the two-part test for ineffective assistance of counsel to a failure to file a notice of appeal, which results in a forfeiture of judicial process).

[¶ 11] Counsel’s representation fell below an objective standard of reasonableness when, after calling Donna and William Heckelsmiller to the stand and discovering that they had not complied with a defense-requested sequestration order, he made no offer of proof as to the substance of their testimony, despite this testimony being critical to corroborating Andrew Heckelsmiller’s only proffered defense.

[¶ 12] Is there a reasonable probability that, but for trial counsel’s error, the result of the trial would have been different? Syvertson, 2000 ND 185, ¶22, 620 N.W.2d 362. In this regard, it is important to note the crime with which Andrew Heckelsmiller was charged. The criminal trespass statute provides: “A person is guilty of a class C felony if, knowing that he is not licensed or privileged to do so, he enters or remains in a dwelling or in highly secured premises.” N.D.C.C. § 12.1-22-03(1) (emphasis added). We need not speculate whether or not a reasonable probability exists that Andrew Heckel-smiller would have been acquitted of a crime requiring knowing misconduct if Donna and William Heckelsmiller were allowed to corroborate Andrew Heckel-smiller’s only defense, and if William Heckelsmiller were allowed to testify he told Andrew Heckelsmiller to stay in the trailer house on the evening in question and were to offer an explanation for why Andrew Heckelsmiller fled the trailer house. Rather, the significant point is that counsel’s failure to make an offer of proof prevented a meaningful appeal on the issue of whether or not Donna and William Heckelsmiller should have been allowed to testify. Heckelsmiller, 2004 ND 3, ¶1, 676 N.W.2d 813; cf. Whiteman, 2002 ND 77, ¶ 17, 643 N.W.2d 704 (overruling cases that can be construed to require defendant to demonstrate how appeal would have been meritorious in order to establish that defendant was prejudiced by attorney’s failure to preserve a requested appeal).

[¶ 13] Accordingly, the denial of post-conviction relief is reversed and the case is remanded to the district court for a new trial.

[¶ 14] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2004 ND 190
    The ESTATE OF George GROSS, Appellant v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 20040071.
    Supreme Court of North Dakota.
    Oct. 12, 2004.
    Rehearing Denied Nov. 19, 2004.

      Gregory C. Larson (argued), Damian J. Huettl (appeared), Wheeler Wolf, Bismarck, N.D., and Bradley D. Peterson (appeared), Legal Services of ND, Bismarck, N.D., for appellant.
    Jean R. Mullen, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for appellee.
   SANDSTROM, Justice.

[¶ 1] The Estate of George Gross appeals from a judgment affirming a Department of Human Services’ decision that Gross’s total countable assets for his household exceeded the maximum allowed for medicaid eligibility. We hold the Department’s finding that George Gross’s wife, Julia Gross, did not make a good faith effort to sell the monthly payments from a nonassignable annuity is supported by a preponderance of the evidence, and we affirm.

I

[¶ 2] George Gross was institutionalized at the Napoleon Care Center from June 14, 2002, until his death on December 27, 2003. Logan County Social Services denied his September 11, 2002, application for medicaid benefits, concluding his countable assets for purposes of his household’s medicaid eligibility were $215,354.08 and exceeded the allowed amount of $92,280, which consisted of $3,000 for his personal exemption and $89,280 for a community spouse asset allowance for Julia Gross.

[¶ 3] George Gross appealed to the Department, and after a hearing, an administrative law judge recommended affirming the denial of benefits by Logan County Social Services. The Department adopted the administrative law judge’s recommendation and denied benefits. The Department concluded a nonassignable $150,000 annuity purchased by and issued to Julia Gross in July 2002 was an available asset for purposes of determining George Gross’s medicaid eligibility.- Under the terms of the annuity, which the Department found were actuarially sound, Julia Gross paid $150,000 and contracted to receive sixty payments of $2,855.91 per month beginning on August 22, 2002. The Department concluded Julia Gross’s ownership of the annuity and the monthly payments from the annuity constituted ownership of a contractual right to receive a money payment, and George Gross had not rebutted a presumption that her right to receive money payments from the annuity was saleable without working an undue hardship under N.D. Admin. Code § 75-02-02.1-30. The Department decided, although the annuity was not assignable, the stream of income from the annuity was an available asset because it could be sold in a fáctors market. The Department found Julia Gross had “offered only the annuity contract itself for sale, and not the contractual rights to receive money payments, or stream of income from the annuity,” and she “did not offer to sell her contractual rights to receive money payments, or the ‘stream of income’ from the annuity, for 75% of fair market value.” The Department found a preponderance of evidence established Julia Gross had failed to make a good faith effort to sell the stream of income from the annuity, and she had not demonstrated her contractual rights to receive money payments were not saleable without working an undue hardship.

[¶ 4] George Gross appealed the Department’s decision to the district court. He died pending the appeal to the district court, and his Estate was substituted as the appellant. The district court affirmed the Department’s decision, concluding a reasoning mind reasonably could have determined the Department’s factual decision that Julia Gross failed to make a good faith effort to sell her rights to the income stream from the annuity was proved by the weight of the evidence from the entire record.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 28-32-42. The Estate’s appeal to this Court is timely under N.D.C.C. § 28-32-49 and N.D.RApp.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, §§ 2 and 6, and N.D.C.C. § 28-32-49.

II

[¶ 6] Although a district court’s analysis of an appeal from a decision by an administrative agency is entitled to respect if the court’s reasoning is sound, when an administrative agency’s decision is appealed from the district court to this Court, we review the agency’s decision and the record compiled before the agency rather than the district court’s decision and findings. Gross v. North Dakota Dep’t of Human Servs., 2004 ND 24, ¶ 6, 673 N.W.2d 910. Under N.D.C.C. §§ 28-32-46 and 28-32-49, we affirm an agency’s decision if its findings of fact sufficiently address the evidence and-, are supported by a preponderance ‘of the evidence, its conclusions of law and'order are supported by its findings of fact, its decision is supported by its conclusions of law, its decision is in accordance with the law and does not violate the claimant’s constitutional rights, its rules or procedures have not deprived the claimant of a fair hearing, its conclusions of law and order sufficiently explain its rationale for not adopting a contrary recommendation by an administrative law judge, and the provisions of N.D.C.C. ch. 28-32 have been complied with in proceedings before the agency. In reviewing an agency’s findings of fact, we do not make independent findings of fact or substitute our judgment for that of the agency. Gross, at ¶ 6. Rather, we determine only whether a reasoning mind reasonably could have determined the agency’s factual conclusions were supported by the weight of the evidence from the entire record. Id. An agency’s decision on a question of law is fully reviewable by this Court. Wahl v. Morton County Soc. Servs., 1998 ND 48, ¶4, 574 N.W.2d 859.

Ill

[¶ 7] The Estate argues the Department erred in deciding Julia Gross’s annuity was a countable asset for purposes of George Gross’s medicaid eligibility.

[¶ 8] An applicant for medicaid benefits must prove eligibility. Opp v. Ward County Soc. Servs. Bd., 2002 ND 45, ¶ 10, 640 N.W.2d 704; Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, ¶ 7, 607 N.W.2d 237. Medicaid law includes provisions to prevent the impoverishment of a “community spouse” while the “institutionalized spouse” resides in a nursing home. Wahl, 1998 ND 48, ¶ 11, 574 N.W.2d 859. An “institutionalized spouse” is an individual who is in a medical institution or nursing facility and is married to an individual who is not in a medical institution or nursing facility, while the “community spouse” is the spouse of the institutionalized spouse. Id. An institutionalized spouse is eligible for medicaid benefits if the total value of all countable assets of the community spouse and the institutionalized spouse does not exceed the community spouse asset limit plus the institutionalized spouse asset limit. N.D. Admin. Code § 75-02-02.1-24(2)(g) (at the time of the Department order, now 75-02-02.1-24(2)(h)). The parties agree the asset limit for an institutionalized spouse is $3,000, and at the time of George Gross’s application for benefits, the asset limit for a community spouse was $89,280. All assets must be considered in establishing medicaid eligibility, and an asset is “any kind of property or property interest, whether real, personal, or mixed, whether liquid or illiquid, and whether or not presently vested with possessory rights.” N.D. Admin. Code § 75-02-02.1-01(3) (now 75-02-02.1-01(2)). An asset must be actually available to the applicant to be considered a countable asset. N.D. Admin. Code § 75-02-02.1-25(2) (now 75-02-02.1-25(1)). Assets are actually available when at the disposal of an applicant, recipient, or responsible relative who has a legal interest in a liquidated sum and has a legal ability to make the sum available for support, maintenance, or medical care. Id.

[¶ 9] “Contractual rights to receive money payments” are available assets. N.D. Admin. Code § 75-02-02.1-32(5) (now 75-02-02.1-30(1)). There is a presumption a holder’s interest in a contractual right to receive money payments is sale-able without working an undue hardship, and the presumption may be rebutted by evidence demonstrating the contractual right to receive money payments is not saleable without working an undue hardship. N.D. Admin. Code § 75-02-02.1-30 (now 75-02-02.1-30(2)). “Property which is not saleable without working an undue hardship” means property that the owner has made a good faith effort to sell and has produced no buyer willing to pay an amount equal to or exceeding seventy-five percent of the fair market value of the property. N.D. Admin. Code § 75-02-02.1-01(24) (now 75-02-02.1-01(28)). A “good faith effort to sell” means an honest effort to sell in a manner that is reasonably calculated to induce a willing buyer to believe the property offered for sale is actually for sale at a fair price and includes, at a minimum, making an offer equal to seventy-five percent of the fair market value of the property. N.D. Admin. Code § 75-02-02.1-01(13) (now 75-02-02.1-01(12)).

[¶ 10] The Estate argues the Department erroneously found Julia Gross failed to make a good faith effort to sell the annuity. The Estate argues Julia Gross made an unsuccessful, good faith attempt to sell the annuity, and the Department should not have found the annuity to be a countable asset. The Estate concedes the annuity itself is a contractual right to receive money payments, but argues the evidence clearly establishes there was no market for the sale of the annuity itself because it was not assignable. The Estate argues the Department’s decision that Julia Gross should have attempted to sell the income stream separately from the annuity is contrary to law.

[¶ 11] The Estate offered some evidence through its witness, Dale Krause, that there were no buyers for Julia Gross’s annuity because it was not assignable, and at least two entities declined to buy the annuity because it was not assignable. Blaine Nordwall, the Department’s Director for Economic Assistance Policy, testified, however, there is a factors market for selling payments, or the income stream, from an instrument such as the annuity. Although the Estate characterizes Nordwall’s testimony as a “belief’ there was a market for the income stream from the annuity and argues that evidence does not reasonably support the Department’s decision, Nordwall’s testimony is more definite than a “belief.” At the administrative hearing, the following colloquy occurred:

MS. MULLEN: Mm-hmm. The testimony that was given prior to this concerned the nonassignability of the particular annuity that Ms. Gross purchased. And if the annuity is not assignable, how can it be an available asset?
MR. NORDWALL: Well, what you have is a bundle of rights associated with an annuity. One of those rights, if the annuity has been annuitized, if there’s been a, an arrangement entered into with the issuing company to, for a stream of payments, it is those payments. But, but there are other rights associated with ownership, typically the ability to designate beneficiaries, sometimes the ability to choose a payout method or, or time, and the ability to transfer the contract by assignment to an, another, another person. Such a transfer doesn’t change who’s the annuitant. But it changes who receives the, the payments. And this annuity that is not assignable is still subje [sic], the, the individual who is the annuitant, has the right to the stream of income, the payments that are received, and those are, constitute a contractual right to receive money payments. We treat those as, because they can be, they can be conveyed to somebody else.
MS. MULLEN: Who would buy it?
MR. NORDWALL: Well, there’s, there’s a, who would be, I’ll answer that in the sense of a category of individuals as opposed to ...
MS. MULLEN: Is there a market for them?
MR. NORDWALL: There’s a market, Certainly ...
MS. MULLEN: Yeah ...
MR. NORDWALL: Certainly there’s a market. I usually refer it to as a Factors Market or a Factoring Market. Factors are, are the individuals who buy receivables for, almost always for a discount. And factoring is the practice of doing that. And there is a, there is a, a market, nationwide market and local market, both concerning factors. We’ve, we’ve seen those, oh gosh, they used to advertise a lot in the, in the daily papers in North Dakota. You don’t really see the advertising anymore. But it was a particularly active market because the State of Montana uses the Factors Market for establishing values of contracts for deed and other contracts with rights to receive money payments.
MS. MULLEN: Through their Medicaid Program?
MR. NORDWALL: Through their Medicaid Program.

[¶ 12] On cross-examination, Nordwall testified “there’s no question that a factor would make an offer” for the monthly payments from the annuity. Scott Cordell, an employee of the company that issued the annuity to Julia Gross, also testified that he was aware of a secondary market for the sale of payments for annuities. We conclude there was evidence from which a reasoning mind could reasonably conclude there was a market for the monthly payments from this annuity.

[¶ 13] The Estate also argues the record does not support the Department’s finding that Dale Krause’s testimony that he received no offers for the annuity was of little value because he had no authority to sell the annuity. The Estate claims Krause clearly had authority to sell the annuity. The Department’s decision, however, does not rest solely on Krause’s authority to sell the annuity itself. Rather, the Department’s decision states, “More importantly, [Krause] offered only the annuity contract itself for sale, and not the contractual rights to receive money payments, or stream of income from the annuity.”

[¶ 14] The Department’s decision distinguishes between the annuity itself and the income stream from the annuity, and the crux of this case is whether Julia Gross must have made a good faith effort to sell the monthly payments from the annuity as opposed to the annuity itself. The Estate argues the Department erred in concluding the monthly payments from the annuity were “contractual rights to receive money payments.” The Estate argues the annuity and the monthly payments from the annuity are part of the same thing, a contractual right to receive money payments. The Estate argues the annuity is the contract “with various aspects comprising the whole, consisting of the annuity’s irrevocability, nonassignability, non-transferability, and the stream of income.” The Estate argues the Department erred in treating the income stream and the annuity itself as distinct and separate from each other, and because the annuity was not assignable, the income stream from the annuity could not be sold.

[¶ 15] An annuity is “a payment of a fixed sum of money at regular intervals of time,” see Webster’s New World Dictionary 56 (2nd Coll. Ed.1980), which parallels the administrative regulation that a contractual right to receive money payments is an available asset. See N.D. Admin. Code § 75-02-02.1-32(5). Although the annuity itself was not assignable, Julia Gross was designated as the owner and the payee of the annuity, and the annuity authorized her to “change the Payee at any time.” Although the Estate argues the change of payee issue was not raised below, that issue was contemplated by Nordwall’s testimony that there was a market for the monthly payments from the annuity. According to Nordwall, there was a market for the monthly payments or income stream from the annuity, and the Estate has cited no other provisions in the annuity that would preclude a separate sale of those payments.

[¶ 16] We conclude the monthly payments from Julia Gross’s annuity are a holder’s interest in a contractual right to receive money payments within the meaning of N.D. Admin. Code §§ 75-02-02.1-30 and 75-02-02.1-32(5). A medicaid applicant must prove eligibility, see Opp, 2002 ND 45, ¶ 10, 640 N.W.2d 704, and must overcome a presumption that the holder’s interest in a contractual right to receive money payments is saleable without working an undue hardship, which, in turn, requires the owner to make a good faith effort to sell the property. N.D. Admin. Code §§ 75-02-02.1-01(13), 75-02-02.1-01(24), and 75-02-02.1-30. Here, there is evidence from which a reasoning mind could have reasonably concluded there was a market for the monthly payments or income stream from the annuity, and Julia Gross did not make a good faith effort to sell those monthly payments from the annuity. We therefore conclude the Department’s finding that Julia Gross did not make a good faith effort to sell the monthly payments from the annuity is supported by a preponderance of the evidence, and the annuity was a countable asset for purposes of George Gross’s medicaid eligibility.

IV

[¶ 17] The Estate argues the Department’s unreasonable denial of George Gross’s medicaid application mandates an award of attorney’s fees and costs. See N.D.C.C. § 28-32-50. The Estate argues the Department acted without substantial justification by denying the medicaid application on a belief that the income stream at issue could be sold in the secondary market. The Estate argues the Department erroneously required a good faith attempt to sell the income stream separately from the contractual right to receive money payments. Because of our resolution of the merits of the Estate’s appeal, however, we conclude the Estate is not entitled to attorney’s fees.

V

[¶ 18] We affirm the judgment affirming the Department’s decision.

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


author: MARING, Justice.

text:
    2004 ND 186
    Albert KOUBA, Plaintiff and Appellant v. STATE of North Dakota; Marsha M. Lembke, Director of ND Drivers License Division of NDDOT; Debra M. Nichols, Clerk of Court, Stanley, ND; and Rosalie I. Trones, Clerk of Court, Williston, ND, Defendants and Appellees.
    No. 20040129.
    Supreme Court of North Dakota.
    Oct. 12, 2004.

      Albert Kouba, pro se, Williston, ND, plaintiff and appellant.
    Douglas Alan Bahr, Solicitor General, Office of Attorney General, Bismarck, ND, for defendants and appellees, State of North Dakota, Lembke, and Trones.
    Collin P. Dobrovolny, McGee, Hankla, Backes & Dobrovolny, Wells Fargo Bank Center, Minot, ND, for defendant and ap-pellee, Nichols.
   MARING, Justice.

[¶ 1] Albert Kouba (“Kouba”) appeals from a judgment granting a motion to dismiss his complaint against Mountrail County Clerk of Court Debra M. Nichols (“Nichols”) and a motion for judgment on the pleadings with regard to his claims against Williams County Clerk of Court Rosalie I. Trones (“Trones”), the Director of N.D. Drivers License Division of the North Dakota Department of Transportation (“NDDOT”), Marsha M. Lembke (“Lembke”), and the State of North Dakota (“State”). We affirm.

I

[¶ 2] Kouba received traffic citations on February 13, 2003, and April 15, 2003. On both occasions, he appeared before the appropriate court the day after receiving the citations, admitted the violation, was assessed a fine, and left without paying the fine. Clerk of Court Nichols notified the NDDOT that Kouba had appeared but had not paid his obligation and requested that his license be suspended. Clerk of Court Trones notified the NDDOT that Kouba had failed to appear or post bond and requested that his license be suspended. The Driver’s License Division of the NDDOT suspended Kouba’s driver’s license based on these notifications. Kouba claims he did not receive notice of the suspension of his driver’s license. In November 2003, Kouba was again stopped for a traffic violation and was then charged with Driving Under Suspension. In December 2003, the NDDOT acknowledged that the suspension was not proper because, although he had not paid his fines, Kouba had made an appearance before the appropriate forum. Kouba’s driving privileges were restored.

[¶ 3] In January 2004, Kouba filed a complaint against the two Clerks of Court, the director of the NDDOT, and the State of North Dakota, alleging “loss of his civil and constitutional rights” and “violation of rights ... to appeal the suspension and redress of grievances” due to not receiving notice of his driver’s license suspension. The trial court found, as to the Clerks, the complaint failed to state a claim on which relief could be granted and, as to Lembke and the State, the complaint failed because they enjoyed quasi-judicial immunity.

II

[¶ 4] “A trial court’s decision for granting judgment on the pleadings under Rule 12(c), N.D.R.CivJP., is reviewed de novo.” Tibert v. Minto Grain, 2004 ND 133, ¶ 6, 682 N.W.2d 294. A party may move for judgment on the pleadings under our civil rules of procedure:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Rule 12(c), N.D.R.Civ.P. Matters outside the pleadings were not presented to the trial court in the instant case.

[¶ 5] When our Court reviews the dismissal of a complaint after a judgment on the pleadings under Rule 12(c), N.D.R.Civ.P.,

we recognize that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The court’s inquiry is directed to whether or not the allegations constitute a statement of a claim under Rule 8(a), N.D.R.Civ.P., which sets forth the requirements for pleading a claim and calls for a short and plain statement of the claim showing that the pleader is entitled to relief. The complaint is to be construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true. The motion for dismissal of the complaint should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.

Tibert, 2004 ND 133, ¶ 7, 682 N.W.2d 294 (citation omitted).

[¶ 6] A trial court’s decision granting-judgment of dismissal for failure to state a claim upon which relief can be granted under Rule 12(b)(vi), N.D.R.Civ. P., will be affirmed by our Court if we cannot “discern a potential for proof to support it.” Vandall v. Trinity Hospitals, 2004 ND 47, ¶ 5, 676 N.W.2d 88 (quoting Towne v. Dinius, 1997 ND 125, ¶ 7, 565 N.W.2d 762).

Ill

[¶ 7] Kouba argues the trial court erred in granting Clerk of Court Nichols’ motion to dismiss for failure to state a claim upon which relief can be granted and in granting Clerk of Court Trones’ motion for judgment on the pleadings. The authority to issue and suspend driver’s licenses rests with the State of North Dakota and is delegated by the State to the North Dakota Department of Transportation. See N.D.C.C. § 39-01-01.1. While neither the state constitution nor the statutes expressly provide that the sole authority to issue and revoke driver’s licenses rests with the State, the language throughout N.D.C.C. tit. 39, Motor Vehicles, is clear — the power to issue, refuse to issue, suspend, and revoke driver’s licenses, lies with the director of the NDDOT. See N.D.C.C. tit. 39. The Clerks of Court, Nichols and Trones, have no authority to suspend driver’s licenses. In addition, Kouba has not alleged that the conduct of either of the Clerks of Court was grossly negligent, or was willful or wanton misconduct, or that either was acting outside the scope of her employment. See N.D.C.C. § 32-12.1-04(3); N.D.C.C. § 32-12.2-.01; N.D.C.C. § 32-12.2-03. Therefore, any claims Kouba has regarding the suspension of his driver’s license would be against the NDDOT, not the Clerks of Court.

IV

[¶ 8] Kouba argues the trial court erred in deciding that the actions of Lemb-ke were quasi-judicial in nature and, therefore, immune from liability. Under N.D.C.C. § 32-12.2-02(3)(d), a state employee’s decision to revoke a driver’s license is a “quasi-judicial act” immune from liability. Section 32-12.2-02(3)(d), N.D.C.C., provides:

3. Neither the state nor a state employee may be held liable under this chapter for any of the following claims: d. A claim resulting from a decision to undertake or a refusal to undertake any judicial or quasi-judicial act, including a decision to grant, to grant with conditions, to refuse to grant, or to revoke any license, permit, order, or other administrative approval or denial.

[¶ 9] This Court, in KFGO Radio, Inc. v. Rothe, 298 N.W.2d 505, 510 (N.D.1980), quoted directly from Black’s Law Dictionary (5th ed. 1979) to define both the terms quasi-judicial and quasi-judicial act. The current edition has essentially the same definitions: “quasi-judicial — Of, relating to, or involving an executive or administrative official’s adjudicative acts; quasi-judicial act — A judicial act performed by an official who is not a judge.” Black’s Law Dictionary 1278-79 (8th ed. 2004). Other jurisdictions have considered what the term “quasi-judicial act” means. See also Romano v. Bible, 169 F.3d 1182, 1187 (9th Cir.1999) (a commission that conducts hearings with many of the traditional safeguards of courts and then issues orders is performing a quasi-judicial act), cert, denied, 528 U.S. 816,120 S.Ct. 55,145 L.Ed.2d 48 (1999); Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534,1540 (9th Cir.1993) (an administrative determination is quasi-judicial when the agency is required to adjudicate disputed facts in particular cases); Field v. Kearns, 43 Conn.App. 265, 682 A.2d 148, 151 (1996) (a proceeding is quasi-judicial when the agency has the power to exercise judgment and discretion, hear and determine or ascertain facts, make binding orders and judgments affecting personal or property rights, examine witnesses, and enforce decisions or impose penalties), cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).

[¶ 10] There is no dispute that Lemb-ke, in her capacity as the Director of the Driver’s License Division of the NDDOT, is an administrative official responsible for the decision to grant, to refuse to grant, to revoke or to suspend driver’s licenses in the State of North Dakota. The adjudicative acts performed by her in carrying out her duties are specifically referred to as quasi-judicial in , nature under NJD-C.C. § 32-12.2-02(3)(d) and, therefore, immune from liability. Accordingly, Kouba’s complaint fails to state a claim as a matter of law.

V

[¶ 11]- Kouba argues the trial court erred when it concluded that no private right of action exists under the North Dakota Constitution. Kouba asserts the State violated his rights by not providing him with a “Notice of Suspension” of his driver’s license. The State denies that notice of the suspension was not provided, but whether it was or not is not dispositive of the issue. Article I, Section 9, of the North Dakota Constitution provides in part that “... [s]uits may be brought against the state in such a manner, in such courts, and in such cases, as the legislative assembly may, by law, direct.” Our Court has held, however, that the North Dakota Constitution should not be read to condone an absolute bar to tort liability of the State. See Bulman v. Hulstrand Const Co., 521 N.W.2d 632 (N.D.1994). Yet, public policy demands that the State retain immunity for the exercise of discretionary acts in its official capacity, including legislative, judicial, quasi-legislative, and quasi-judicial functions. Id. at 640. Section 32-12.2-02(1), N.D.C.C., describes what type of suits the legislature allows to be brought against the State:

The state may only be held liable for money damages for an injury proximately caused by the negligence or wrongful act or omission of a state employee acting within the employee’s scope of employment under circumstances in which the employee would be personally liable to a claimant in accordance with the laws of this state, or an injury caused from some condition or use of tangible property under circumstances in which the state, if a private person, would be liable to the claimant. No claim may be brought against the state or a state employee acting within the employee’s scope of employment except a claim authorized under this chapter or otherwise authorized by the legislative assembly.

[¶ 12] Section 32-12.2-02(1), N.D.C.C., does not authorize Kouba’s constitutional claims. Further, the exceptions to State liability expressed by the legislature in N.D.C.C. § 32-12.2-02(3) provide that neither the state nor a state employee may be held liable for a claim resulting from a decision “to grant, to grant with conditions, to refuse to grant, or to revoke any license.”

[¶ 13] Kouba argues that somehow N.D.C.C. § 39-06-33(1), which requires the director to give notice of intention to suspend, creates a private cause of action against the director. This Court has held that “[t]he legislature’s silence in failing to expressly provide a private right of action is a strong indication it did not intend such a remedy. The party urging an implied right of action therefore bears the burden of proof to establish the legislature intended to create the remedy.” Trade ‘N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, ¶ 14, 628 N.W.2d 707. In the instant case, not only has the legislature failed to expressly provide a right of action for failure of the director to give notice in driver’s license suspensions, but it has expressly prohibited such actions under N.D.C.C. § 32-12.2-02(3)(d). Therefore, the trial court was correct in holding that no private right of action exists under the North Dakota Constitution or statutorily for Kouba’s constitutional claim.

[¶ 14] It is worth noting, however, that our Court has fashioned a remedy for a systemic violation of due process rights by governmental entities. See Madison v. N.D. Dept, of Transp., 503 N.W.2d 243 (N.D.1993). “When a governmental agency systemically disregards the requirements of law, reversal may be required to prophylactically ensure the government acts consistently and predictably in accordance with the law.” Jacobson v. N.D. Workers Comp. Bureau, 2000 ND 225, ¶24, 621 N.W.2d 141 (quoting Scott v. N.D. Workers Comp. Bureau, 1998 ND 221, ¶ 20, 587 N.W.2d 153). The instant case, however, can be distinguished. It is not an appeal from the suspension of a driver’s license, but rather an appeal from a judgment of dismissal of a complaint for damages against the State, its employees and a county employee. The State admitted it should never have suspended Kou-ba’s driver’s license and promptly reinstated his driving privileges. In addition, Kouba did not allege a systemic violation of the law by the NDDOT. This Court concluded in Kouba v. State Dept, of Transp., 1999 ND 233, ¶8, 603 N.W.2d 696, that the NDDOT “may not suspend the license of a driver under N.D.C.C. § 39-06-32(6) if the driver, who has signed a promise to appear, posts and forfeits bond or appears at the given time.” Therefore, we reiterate that, under those circumstances if the driver appears, the NDDOT may not suspend his license for failure to appear or post bond. This is a matter that the legislature should address, and we encourage it to do so.

VI

[¶ 15] Kouba argues the trial court erred when it stayed discovery pending a decision on the motion for judgment on the pleadings. Rule 26(c)(1) of the North Dakota Rules of Civil Procedure authorizes the trial court to stay discovery pending a dispositive motion. Rule 26(c)(1), N.D.R.Civ.P., provides in pertinent part:

Upon motion by a party ... and for good cause shown, the court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... that discovery not be had ...

[¶ 16] While we have not previously ruled on this issue, this Court has noted that when considering Rule 26(c), great deference should be given to any case law interpreting and construing Fed.R.Civ.P. 26(e). See Gerhardt v. D.L.K, 327 N.W.2d 113, 114 (N.D.1982). Federal courts have held that a protective order to stay discovery pending determination of a motion is an appropriate exercise of the court’s discretion when the motion will be dispositive of all the claims. See Chavous v. District of Columbia Fin. Resp. and Mgmt. Asst. Auth., 201 F.R.D. 1, 2 (D.D.C.2001); Kutilek v. Gannon, 132 F.R.D. 296, 298 (D.Kan.1990); Simpson v. Specialty Retail Concepts, Inc., 121 F.R.D. 261, 263 (M.D.N.C.1988).

[¶ 17] Each of the four defendants, Nichols, Trones, Lembke, and the State made a dispositive motion before the trial court, asking for judgment on the pleadings. This Court has recognized that it is only appropriate that a motion for judgment on the pleadings be granted if “... it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” McCroskey v. Cass County, 303 N.W.2d 330, 332 (N.D.1981). Taking all the allegations of the complaint as true, there is no claim against Nichols or Trones upon which relief could be granted and Lembke and the State are immune from suit under N.D.C.C. § 32-12.2-02(3)(d). Thus, the facts sought through discovery would not affect the resolution of the motions. We conclude the trial court did not abuse its discretion in staying discovery.

VII

[¶ 18] We affirm the district court’s judgment granting dismissal of Kouba’s complaint against Nichols, Trones, Lemb-ke, and the State of North Dakota.

[¶ 19] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

      . Kouba does not allege a 42 U.S.C. § 1983 claim against Lembke and we do not reach a decision on this issue. In a § 1983 action, a plaintiff must allege that a defendant's conduct, under color of state law, deprived the plaintiff of a right, privilege, or immunity secured by federal law. See Frey v. City of Jamestown, 548 N.W.2d 784, 790 (N.D.1996).


text:
    2004 ND 181
    Ronald R. ERNST, Plaintiff and Appellant v. Birch BURDICK, Brett Shasky, and Sherri Arnold, Defendants and Appellees. Ronald R. Ernst, Plaintiff and Appellant v. Birch Burdick, Defendant and Appellee.
    Nos. 20040104, 20040105.
    Supreme Court of North Dakota.
    Oct. 12, 2004.
    Rehearing Denied Nov. 19, 2004.

      Ronald R. Ernst (on brief), pro se, Bismarck, ND, for plaintiff and appellant.
    Stacey E. Tjon, Solberg, Stewart, Miller & Tjon, Fargo, ND, for defendants and appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Ronald R. Ernst appealed from a summary judgment dismissing his claim for damages against Birch Burdick, Brett Shasky, and Sherri Arnold for disseminating criminal history information about him to the media, in violation of N.D.C.C. § 12-60-16.6 and related statutory provisions. Ernst also appealed from a summary judgment dismissing his claim for damages against Burdick for allegedly disseminating the same criminal history information a second time, after Ernst had filed his action against Burdick, Shasky, and Arnold for disseminating that information. We hold that our statutory law on gathering and disseminating criminal history record information does not create a private cause of action for violating its provisions. We, therefore, affirm both summary judgments dismissing Ernst’s claims against these defendants.

I

[¶ 2] In April 2002, Ernst became a suspect in a criminal investigation of a break-in at a Fargo apartment where a number of women’s undergarments had been stolen. Ernst was arrested and subsequently pled guilty to burglary, stalking, theft of property, disorderly conduct, and criminal mischief, all relating to the break-in of the Fargo apartment. He was sentenced and is currently incarcerated at the North Dakota State Penitentiary.

[¶ 3] On May 28, 2002, Ernst filed a complaint against Burdick, Cass County State’s Attorney who oversaw Ernst’s prosecution relating to the Fargo apartment break-in, Brett Shasky, a Cass County Assistant State’s Attorney who handled Ernst’s prosecution, and Sherri Arnold, a detective with the Fargo police department, alleging these defendants violated state statutory law by releasing information to the media about his criminal history. Ernst sought damages of $250,000 each against Shasky and Arnold and $50,000 against Burdick. On June 27, 2003, Ernst filed a second action against Burdick, alleging Burdick told the media the first action was frivolous and “again stated the same items that brought on the first court action” for which Ernst sought $250,000 damages against Burdick. The defendants filed motions in these two cases requesting the trial court to summarily dismiss the claims brought against them. The trial court granted the motions to dismiss in both cases, finding there were no genuine issues of material fact, and the defendants were entitled to judgment as a matter of law. On appeal the cases were consolidated for resolution by this Court.

II

[¶ 4] On appeal, Ernst asserts the trial court erred in summarily dismissing his claims. Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without a trial if there is no genuine issue of material fact, or if the law is such that resolution of factual disputes will not alter the result. Stout v. Fisher Industries, Inc., 1999 ND 218, ¶7, 603 N.W.2d 52. Although the party seeking summary judgment has the burden of showing there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Minn-Kota Ag Products, Inc. v. Carlson, 2004 ND 145, ¶ 5, 684 N.W.2d 60. Nor may the opposing party rely upon unsupported, concluso-ry allegations. Id. Rather, the resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions Ar other comparable documents containing testimony or evidence raising an issue of material fact. Id. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief. Id. Whether a district court appropriately granted summary judgment is a question of law subject to a de novo standard of review on the entire record. Azure v. Belcourt Public School Dist., 2004 ND 128, ¶ 8, 681 N.W.2d 816.

A

[¶ 5] Burdick filed an affidavit stating that he had no personal knowledge of the source of the media’s information about Ernst’s criminal history and he did not have any conversations with the media regarding that matter. Ernst has not filed any competent admissible evidence by affidavit or other comparable means to refute Burdick’s affidavit and has, therefore, failed to raise a genuine issue of material fact in support of his claim for damages against Burdick. We conclude, therefore, the trial court did not err in summarily dismissing Ernst’s claims against Burdick for failure to raise a genuine issue of material fact.

B

[¶ 6] Shasky, by affidavit dated March 5, 2004, states that he received the assignment to handle Ernst’s prosecution for the charges brought against Ernst relating to the Fargo apartment break-in and that “[d]uring the course of the prosecution, the media, through Court documents and interviews with me, published stories about the case, including Ernst’s prior criminal history, which dates back to 1969.” Arnold, by affidavit, dated February 4, 2004, states “[djuring the course of the prosecution, the media, through Court documents and interviews with me, published stories about the case, including information regarding Ernst’s criminal history dating back to 1969.” Shasky’s and Arnold’s affidavits permit an inference that both of them disseminated information to the media about Ernst’s criminal history. To determine whether it was appropriate for the trial court to summarily dismiss Ernst’s claims against them, we review the relevant law to determine whether Ernst has a private cause of action for damages for the alleged violations.

[¶ 7] In 1987, our legislature enacted laws for centralized reporting, collecting, maintaining, and disseminating criminal history record information. S.L. 1987, ch. 162. This legislation is currently codified under N.D.C.C. §§ 12-60-16.1 through 12-60-16.10. The Interim Law Enforcement Committee of the 50th Legislative Assembly drafted the bill, and the 1987 Report of the North Dakota Legislative Council explained the primary focus of the legislation:

The issue of the adequacy of criminal records primarily arises in the context of punishment meted out to a defendant after conviction.... It is frequently difficult, especially in misdemeanor cases, for a sentencing judge to obtain accurate information concerning the criminal history of the defendant and decide whether the defendant is entitled to more lenient treatment.
Other issues that are important in this context are determining whether a given defendant before the court has been accurately identified ... the ultimate result of a given criminal prosecution, and who has access to the information contained in the state’s criminal history record system.

Report of the N.D. Legis. Council 135 (1987). The legislation established the Bureau of Criminal Investigation as the agency for the centralized gathering and dissemination of “criminal history record information,” which includes:

information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other criminal charges, any dispositions arising therefrom, sentencing, correctional supervision, and release.

N.D.C.C. § 12-60-16.1(3). A “criminal justice agency” means:

any government law enforcement agency or entity authorized by law to provide information regarding, or to exercise the powers of, arrest, detention, prosecution, correctional supervision, rehabilitation, or release of persons suspected in, charged with, or convicted of, a crime.

N.D.C.C. § 12-60-16.1(4). The defendants, two prosecutors and a police officer, are part of a criminal justice agency as defined by this statute.

[¶ 8] Section 12-60-16.5, N.D.C.C., allows disclosure of criminal history record information for official purposes:

The bureau and other criminal justice agencies shall disclose criminal history record information:
1. To a criminal justice agency that requests the information for its functions as a criminal justice agency or for use in hiring or retaining its employees.
2. To a court, on request, to aid in a decision concerning sentence, probation, or release pending trial or appeal.
3. Pursuant to a judicial, legislative, or administrative agency subpoena issued in this state.
4. As otherwise expressly required by law.

Section 12-60-16.6, N.D.C.C., limits other dissemination of such information: “[o]nly the bureau may disseminate criminal history record information to parties not described in section 12-60-16.5.” The legislation makes a “willful violation” of its provisions a class A misdemeanor. N.D.C.C. § 12-60-16.10.

[¶ 9] Relevant to Ernst’s claims, one could argue that if Shasky and Arnold disseminated criminal record history information about Ernst to parties other than those described under N.D.C.C. § 12-60-16.5, they did so in violation of N.D.C.C. § 12-60-16.6. However, that determination, were we to make it, would not resolve this appeal, unless these statutory provisions create a private cause of action for damages. Greybull v. State, 2004 ND 116, ¶ 9, 680 N.W.2d 254 (it is well established that an appellate court need not address questions, the answers to which are unnecessary to the determination of an appeal).

[¶ 10] Clearly, the language of the statutes does not expressly create a private action for damages. The issue, then, is whether the legislature impliedly intended to create a private right of action. Ernst, as the party urging an implied right of action, bears the burden of proof to establish the legislature intended to create the remedy. Trade ’N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, ¶ 14, 628 N.W.2d 707. We conclude Ernst has failed to meet that burden.

[¶ 11] To determine whether to imply a private right of action under a state statute, we employ the first three factors enunciated by the United States Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) for deciding whether a private right of action should be implied under a federal statute. Trade ’N Post, 2001 ND 116, ¶ 13, 628 N.W.2d 707. Those three factors are: (1) whether the plaintiff is one of the class for whose special benefit the statute was enacted; (2) whether there is an indication of legislative intent, explicit or implicit, either to create such remedy or to deny one; and (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff. Id. at ¶ 11.

[¶ 12] Considering the first factor, we conclude that Ernst is one of the class for whose benefit the legislation was enacN ed. While the primary focus of the legislation is to provide centralized collection and dissemination of criminal history records for use by criminal justice agencies, a secondary focus is to provide certain safeguards for the “record subject” and for limitations upon the dissemination of the information. For example, the legislation requires the attorney general to adopt rules regarding agency reporting and maintaining of criminal history record information and requires rules for the “inspection and challenging of criminal history record information by a record subject.” N.D.C.C. § 12-60-16.3(l)(b). The legislation also provides that when the Bureau of Criminal Investigation disseminates information under N.D.C.C. § 12-60-16.6, it must mail notice of that dissemination to the record subject. N.D.C.C. § 12-60-16.8. Additionally, under N.D.C.C. § 12-60-16.6, only the Bureau of Criminal Investigation may disseminate criminal history record information to parties other than courts and other criminal justice agencies as described under N.D.C.C. § 12-60-16.5. Consequently, we conclude that Ernst is within the class of persons for whose benefit some of the statutory safeguards were enacted.

[¶ 13] The second factor is whether there is any indication of legislative intent, explicit or implicit, to create or deny a private cause of action. The legislature’s silence in failing to expressly provide a private right of action is a strong indication it did not intend such a remedy. Trade ’N Post, 2001 ND 116, ¶ 14, 628 N.W.2d 707.

¶ 14 The legislature drafted these statutes closely following the Uniform Criminal History Records Act. Under the Uniform Act, a person whose criminal history record information is disseminated in violation of the Act is given an express right to “maintain an action for appropriate relief ... and recover compensatory damages sustained as the result of the violation ... and reasonable attorney’s fees.” Uniform Criminal History Records Act (U.L.A.) § 13. Our legislature chose not to include this language in our law. In construing statutes, this Court has recognized the maxim expressio unius est exclu-sio alterius, which means the mention of one thing implies the exclusion of another. Trade ’N Post, 2001 ND 116, ¶20, 628 N.W.2d 707. While the legislature expressly made a willful violation of these statutory provisions a class A misdemean- or, (N.D.C.C. § 12-60-16.10) it chose to exclude the Uniform Act language creating a private cause of action for such violations. That act of omission is a persuasive indication the legislature intended to deny private causes of action for violations of the law.

[¶ 15] The only authority cited by Ernst in his appellate brief to support his right to bring a cause of action for money damages under these statutes is Wren v. Harris, 675 F.2d 1144, 1147 (10th Cir. 1982). In Wren, an administrative law judge filed a civil action for money dam-

ages, alleging the defendants wrongfully refused to honor his request for information under the Privacy Act. The Tenth Circuit Court of Appeals held that, under the express provisions of the Privacy Act, if there is an intentional or willful deficiency in maintaining records an award of damages is authorized. 5 U.S.C. § 552a(g)(4). Wren does not, therefore, support Ernst’s claim for money damages, because the relevant federal statute in Wren expressly provided for monetary damages, whereas our statute does not.

[¶ 16] Having concluded the legislature did not intend to create a private cause of action, we need not address the third Ash factor whether such remedy would be consistent with the statutory scheme.

Ill

[¶ 17] We hold a record subject does not have a private cause of action for damages against a party who violates provisions of our criminal history record information legislation under N.D.C.C. §§ 12-60-16.1 through 12-60-16.10. We conclude, therefore, the trial court did not err in summarily dismissing Ernst’s claims against these defendants, and we affirm both summary judgments.

[¶ 18] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


text:
    2004 ND 189
    Kevin SCHMIDT, Donald Wittinger, and Kenneth Wittinger, Plaintiffs and Appellees v. Alfred WITTINGER, Defendant and Appellant.
    No. 20040051.
    Supreme Court of North Dakota.
    Oct. 12, 2004.
    Rehearing Denied Nov. 2, 2004.

      Albert J. Hardy, Hardy, Maus & Nord-sven, P.C., Dickinson, N.D., for plaintiffs and appellees.
    Jennifer M. Macaulay (argued), Saint Paul, MN, and Alfred Wittinger (appeared), pro se, Minneapolis, MN, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Alfred Wittinger appealed from a judgment ordering a partition sale of farmland and awarding compensatory damages to Donald and Kenneth Wittinger. We hold the trial court’s finding that a partition in kind could not be made without great prejudice to the co-owners is not clearly erroneous, and we affirm the partition sale of the property. We also hold that the court’s award of compensatory damages for loss of federal program payments is not supported by the record evidence, and we therefore reverse that part of the compensatory damages award to Donald and Kenneth Wittinger.

I

[¶ 2] Donald, Kenneth, and Alfred Wit-tinger are brothers who inherited from their parents undivided equal interests in farmland located in Dunn County. The property was leased by Kevin Schmidt, and Alfred Wittinger was sued by his brothers and Schmidt to specifically enforce a purchase option Schmidt held under the lease or, alternatively, for a partition sale of the property. Donald and Kenneth Wittinger also sued Alfred Wit-tinger for compensatory damages, asserting that he did not pay his pro rata share of property expenses and taxes and that he refused to sign documents for the parties to receive federal farm program payments. Alfred Wittinger filed an answer objecting to specific performance of the purchase option under the lease. That claim was subsequently withdrawn by the plaintiffs. Alfred Wittinger also filed a counterclaim for damages to compensate him for loss of “value, rental payments, government payments, CRP payments and market value.”

[¶ 3] At the bench trial, Alfred Witting-er neither appeared nor was represented by counsel. After the hearing, the trial court ordered a partition sale of the property with proceeds to be equally divided among the three cotenants. The court also awarded compensatory damages of $2,821.87 to Donald Wittinger and $2,244.50 to Kenneth Wittinger for Alfred Wittinger’s failure to pay his share of the farmland expenses and taxes and for his failure to sign federal farm program documents. The court dismissed Alfred Wit-tinger’s counterclaim.

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

II

[¶ 5] On appeal, Alfred Wittinger asserts the trial court erred in ordering a partition sale rather than a partition in kind. Partition of property is available under N.D.C.C. § 32-16-01 when there are cotenants with current possessory interests in the property. Treiber v. Citizens State Bank, 1999 ND 130, ¶ 1, 598 N.W.2d 96. Section 32-16-01, N.D.C.C., provides:

When several cotenants hold and are in possession of real or personal property as partners, joint tenants, or tenants in common, in which one or more of them have an estate or inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein and for a sale of such property or a part thereof, if it appears that a partition cannot be made without great prejudice to the owners. Real and personal property may be partitioned in the same action.

[¶ 6] Section 32-16-12, N.D.C.C., provides for a partition sale if a partition in kind cannot be made without great prejudice to the owners:

If it is alleged in the complaint and established by evidence, or if it appears by the evidence without such allegation in the complaint, to the satisfaction of the court, that the property, or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof. Otherwise, upon the making of requisite proof, it must order a partition according to the respective rights of the parties as ascertained by the court and appoint three referees therefor, and must designate the portion to remain undivided for the owners whose interests remain unknown or unascertained.

[¶ 7] The law favors partition in kind, and there is a presumption that partition in kind should be made unless great prejudice is shown. Schnell v. Schnell, 346 N.W.2d 713, 716 (N.D.1984). “The burden of proving that partition in kind cannot be made without great prejudice is on the party demanding a sale.” Id. Great prejudice exists when the value of the share of each in case of a partition would be materially less than the share of the money equivalent that each could probably obtain from the whole. Id.; see also Berg v. Kremers, 181 N.W.2d 730, 733 (N.D.1970).

[¶ 8] On the request for a partition sale of the property, the trial court made the following relevant findings of fact:

By reason of the existing fence, a partition in kind would necessitate surveying and the construction of a substantial amount of fence, some properties requiring more fencing than others. The river meanders through the property which makes fencing on section lines and boundary lines extremely difficult.... Portions of the property would not have road access in the event of a partition as all tracts of lands involved do not have access roads due to the river crossing the premises....
A partition, in kind would require the building of fences and the maintaining of fences by adjoining landowners. The Defendant, Alfred Wittinger, has evidenced and demonstrated that he will not discuss or communicate with others and has demonstrated hostility towards the Plaintiffs. It would be extremely difficult to conduct fencing arrangements between Alfred Wittinger and any adjoining property owner....
Not all tracts or separate parcels of land have a water supply, and thus a partition in kind would result in portions or parts of the property not having water available to it rendering the pasture lands of diminished value or requiring the owner to expend large sums of money for the drilling of wells or constructing dams....
The property is currently being operated and farmed in an efficient manner. In order to partition the land in kind it would require breaking the property up into small tracts of land. Such small tracts typically do not sell for as much per acre as with the larger machinery used by farmers today it is difficult and less efficient to farm smaller tracts of land....
The house that is on the premises appears to be on the section line between Sections 5 and 8 and cannot be partitioned ....
The value of the share of each of the Wittingers in case of a partition would be materially less than his share of the money equivalent that could probably be obtained for the whole....
The usefulness of the various tracts of land after partition would be substantially diminished....
A partition in kind would result in great prejudice to the owners.

[¶ 9] Alfred Wittinger did not appear at the evidentiary hearing to refute evidence introduced by the plaintiffs that a partition in kind could not be made without great prejudice to the owners. The trial court specifically found that great prejudice to the owners would result if an attempt were made to divide the farmland into three separate parcels. The court explained the difficulties in dividing the land with regard to fencing, access, and water availability. The court concluded the value of the share of each co-owner’s interest in the property would be materially less than a share of the money equivalent if the property remained as a whole.

[¶ 10] The trial court’s findings in a partition action will not be reversed on appeal unless they are clearly erroneous. McKechnie v. Berg, 2003 ND 136, ¶ 11, 667 N.W.2d 628. We conclude the trial court’s findings are not clearly erroneous. The plaintiffs have met their burden of proving that a partition in kind could not be made without great prejudice to the owners. We therefore affirm the trial court’s grant of a partition sale of the property.

Ill

[¶ 11] Alfred Wittinger asserts that “[d]amages and attorneys fees taxed against [him] were not appropriate given the adversarial posture of this case.” Under N.D.C.C. § 32-16-45, the cost of a partition, including reasonable attorney fees, must be paid by the parties in proportion to their respective interests in the property and may be included and specified in the judgment. The trial court ordered a partition sale of the property with the net proceeds to be divided equally among the three cotenants, and the court divided the cost of the partition sale among the cotenants in proportion to their respective interests in the property. These actions by the trial court were in accordance with the statute.

[¶ 12] The court also awarded compensatory damages of $2,244.50 to Kenneth Wittinger and $2,821.87 to Donald Witting-er for Alfred Wittinger’s “willful refusal and failure to sign various documents required by the U.S. Department of Agriculture and to pay his prorata share of the expenses and taxes.” Of the total compensatory damages award, Donald and Kenneth Wittinger each received $2,151.40 for lost Conservation Reserve Program (CRP) payments, because Alfred Wittinger would not sign the necessary federal documents for the owners to continue receiving those payments.

[¶ 13] A joint tenant is liable to account to his cotenants for receiving more than a proportionate share of the rents and profits. American Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 607 (N.D.1993). Generally, cotenants are considered to be in a confidential relationship and must do equity. See Bartz v. Heringer, 322 N.W.2d 243, 244 (N.D.1982). Every partition action includes a final accounting for charges, including rents and profits received beyond the cotenant’s fractional share, and for credits, including expenditures in excess of the cotenant’s fractional share of taxes, insurance, and similar expenses. 7 Powell on Real Property § 50.07(6) (2004).

[¶ 14] These cotenants were entitled to share equally in the profits from the land, and each had a duty to pay his proportionate share of the taxes and other expenses. It was, therefore, appropriate for the trial court to award Donald and Kenneth Wittinger compensatory damages to account for Alfred Wittinger’s share of the farmland taxes and expenses paid on his behalf by Donald and Kenneth Witting-er.

[¶ 15] Donald and Kenneth Wit-tinger, however, have not advanced a legal theory entitling them to receive compensatory damages for loss of CRP payments. This is a voluntary federal program whereby landowners can elect to keep land out of production in exchange for cash payments. 11 Harl, Agricultural Law § 91.03[4][e] (2004). Under certain circumstances, participation in the program is a desirable alternative to farming the land. See Schneider v. Schaaf 1999 ND 235, ¶ 5, 603 N.W.2d 869. Donald and Kenneth Wittinger, however, have not cited any authority showing that Alfred Wit-tinger had a duty to participate in the federal CRP program or that his failure to participate in the program constituted a legal breach entitling his cotenants to compensatory damages. We conclude the plaintiffs have failed to present a viable legal theory upon which to justify the court’s award of damages for the alleged “loss” of CRP payments, and we reverse that part of the compensatory damages awarded to them.

IV

[¶ 16] Alfred Wittinger asserts that the trial court acted with prejudice against him in deciding this case. Alfred Wittinger neither appeared nor was represented by counsel at the bench trial. He does not provide any specifics about how the judge acted with prejudice or bias, but merely states, “I felt uncomfortable with Judge Hilden’s attitude toward me and my counsel throughout our case.” A trial judge is allowed great latitude of discretion in conducting a trial, and absent an obvious abuse of discretion, the trial judge’s conduct will not constitute grounds for reversible error. Peters-Riemers v. Riemers, 2002 ND 72, ¶ 13, 644 N.W.2d 197, cert. denied, 537 U.S. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003). Alfred Wittinger has failed to demonstrate a prejudice or bias against him by the trial judge or an obvious abuse of discretion by the trial judge in conducting the case. We conclude, therefore, this issue is without merit.

V

[¶ 17] We hold the trial court’s finding that a partition in kind of the farmland could not be made without great prejudice to the owners is not clearly erroneous, and we affirm the partition sale of the property. We hold the trial court’s award of compensatory damages to Donald and Kenneth Wittinger for their payment of Alfred Wittinger’s proportionate share of the farmland expenses and taxes is in accordance with the law, and we affirm that award of compensatory damages. We further hold, however, that the trial court’s award of compensatory damages to Donald and Kenneth Wittinger, each in the amount of $2,151.40, for lost CRP payments is not supported by the evidence, and we reverse that part of the award.

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


text:
    2004 ND 187
    STATE of North Dakota, Plaintiff and Appellee v. Waylon L. CHARETTE, Defendant and Appellant.
    No. 20040001.
    Supreme Court of North Dakota.
    Oct. 12, 2004.

      Cynthia M. Feland, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Steven D. Mottinger (argued) and Douglas W. Nesheim (appeared), Fargo, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Waylon Charette appealed from a criminal judgment and commitment entered upon a jury verdict. The jury found Charette guilty of one count of murder, a class AA felony; one count of gross sexual imposition, a class A felony; and two counts of burglary, class B felonies. Char-ette claims there was insufficient evidence to support these verdicts and that the district court erred in two of its evidentiary rulings at trial. After reviewing the proceedings below, we hold the district court did not err in its evidentiary rulings and we affirm Charette’s convictions.

I.

[¶ 2] At approximately 8:00 p.m. on the evening of December 27, 2002, Diane Bate’s Driscoll home was burglarized and Bate’s wallet was stolen. Bate saw the suspect leaving her home and noticed the suspect fall while walking away from the residence. Bate drove to a local bar, called 911, and offered police a description of the person she saw leaving her house. Subsequently, Bate’s wallet was discovered in the neighboring home of Marian Swen-ning. Swenning had been sexually assaulted and murdered and her house had been ransacked. One of Swenning’s neighbors saw an individual looking into Swenning’s bay window at approximately 8:15 p.m. Another neighbor received a call from Swenning’s residence at 8:20 p.m., as noted on the neighbor’s caller identification system. The neighbor’s phone rang only twice and then stopped. A third neighbor saw an individual in the vicinity of the. Swenning residence between approximately 9:00 and 10:00 p.m. This neighbor stated that the individual fell while walking. There were shoe or boot tracks between Bate’s home and Swen-ning’s residence, and the tracks showed that the right foot appeared to be dragging in the snow, as if the, right leg was injured.

[¶ 3] Charette had been drinking since around noon on December 27, 2002, and he was asked to leave a local bar that evening. Charette left the bar and began walking in the direction of the Bate and Swenning residences. Charette’s sister testified Charette left the bar slightly after 8:00 p.m.; another witness placed Char-ette’s departure time at around 8:30-8:45 p.m. Charette’s whereabouts were unaccounted for from the time he left the bar until he returned to his'home at approximately 9:30-10:00 p.m. wearing only a coat and complaining of a knee injury. Char-ette was taken to an emergency room in Bismarck where he handed a security officer a coin purse he stated he found behind a telephone in the waiting area. The State later introduced evidence at trial that the coin purse belonged to Marian Swenning.

[¶ 4] Officers investigating the Swen-ning crime scene found a pair of hiking boots and pants between the victim’s legs. Charette claimed the boots and pants were not his, the pants were not of the size he was then wearing, and that the color of the pants did not match witnesses’ descriptions of the clothing he was wearing that day. Charette’s girlfriend testified that the pants found at the crime scene belonged to Charette. DNA found on a pair of boxer shorts discovered in Swenning’s home did not exclude Charette as a source of the DNA. A bloody footprint found at the Swenning crime scene matched Char-ette’s footprint. A bloody fingerprint found at Swenning’s home matched Char-ette’s print. The shirt Charette was wearing on December 27th, which police later discovered in Charette’s yard, contained bloodstains matching Swenning’s DNA profile. Swenning’s bloodstained shoes and a box containing various items of Swenning’s property were discovered at Charette’s home.

[¶ 5] Charette testified he was attacked by two men after leaving the bar, abducted, and hit over the head. Charette stated he did hot remember anything after being hit on the head until later waking up in the yard of his mother’s home.

[¶ 6] Charette points to the fact he does not meet the physical description of the person Diane Bate saw walking away from her home and that none of Bate’s belongings were found in his possession. Charette stresses that certain witnesses placed him at a local bar until after the time Bate placed her 911 call. Charette argues that, even if one accepts the time line offered by the State, he simply could not have single-handedly committed the burglaries, sexual assault, and murder in the time provided. He contends the evidence does not support the conclusion he was responsible for placing the box of Marian Swenning’s possessions outside his home and that various witnesses testified he was wearing dark blue or black pants on December 27th, whereas the pants discovered at the crime scene were tan.

II.

[¶ 7] In an appeal challenging the sufficiency of the evidence, this Court “look[s] only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction.” State v. Knowels, 2008 ND 180, ¶ 6, 671 N.W.2d 816 (quoting State v. Kunkel, 548 N.W.2d 773, 773 (N.D.1996)). “A conviction rests upon insufficient evidence only when no rational fact finder 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. This Court “will not weigh conflicting evidence, nor judge the credibility of witnesses.” State v. Klose, 2003 ND 39, ¶ 19, 657 N.W.2d 276. “A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts, and will not be disturbed on appeal unless it is unwarranted.” State v. Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d 193. “A conviction may be justified on circumstantial evidence alone if it is of such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt.” Id. And, importantly, “[a] jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.” State v. Wilson, 2004 ND 51, ¶ 9, 676 N.W.2d 98 (quoting State v. Hatch, 346 N.W.2d 268, 277 (N.D.1984)); see also Zander v. Workforce Safety and Insurance, 2003 ND 194, ¶ 13, 672 N.W.2d 668 (“The existence of conflicting testimony or other explanations of the evidence does not prevent the fact-finder from reaching a conclusion the evidence is clear and convincing or even clear beyond a reasonable doubt.” (quoting Zundel v. Zundel, 278 N.W.2d 123,129 (N.D.1979))).

[¶ 8] There is an abundance of evidence in the record before us from which a rational jury could have found Waylon Charette guilty on all counts. Few cases with such overwhelming circumstantial evidence have come before this Court. Many pieces of evidence link Charette to the Swenning crime scene. Boots, pants, and boxer shorts found at the crime scene were identified as belonging to Charette. Upon returning to his residence on the evening of December 27th, Charette was wearing only a coat. DNA profiles for both Charette and Swenning were found on the aforementioned boxer shorts. Hair found under Swenning’s body was microscopically similar to Charette’s hair. Bloody foot impressions found at the Swenning crime scene were consistent in size to Charette’s foot. A bloody fingerprint from the Swenning crime scene matched Charette’s print. DNA evidence established to a statistical certainty that Swenning’s blood was on Charette’s shirt and shoes belonging to Swenning, both of which were discovered at Charette’s home. Charette had bruises, scratches, and abrasions on his body that were consistent with a sexual assault. Charette turned over a coin purse, later identified as Swenning’s, to a security guard in a Bismarck emergency room. Various pieces of Swenning’s property were discovered at Charette’s residence. Testimony was adduced at trial that placed Charette in the location of the Bate and Swenning residences at the time the crimes occurred. Charette’s sister and two other witnesses testified that Charette left a local bar around 8:00 p.m. and began walking in the direction of Swenning’s residence. Charette’s whereabouts were unaccounted for from this time until he returned to his residence between approximately 9:30 and 10:00 p.m. Multiple witnesses reported seeing a single individual either on or in the vicinity of Swenning’s property. Finally, witnesses reported seeing this individual fall on multiple occasions, which could be consistent with Char-ette’s heavy drinking.

[¶ 9] There are also key pieces of evidence that serve to link Charette to the Bate burglary. Bate’s wallet was discovered at the Swenning crime scene. Investigators located track evidence between the Bate and Swenning residences, and the tread pattern of the tracks matched the tread pattern of the boots recovered from the Swenning crime scene. Once again, these boots were linked to Charette at trial. The track evidence also exhibited a noticeable drag of the right leg, and the State introduced evidence at trial that Charette had previously injured his right leg. Finally, Diane Bate saw the person who had burglarized her home and noted that the person was heading in the direction of Swenning’s residence. This evidence could logically and rationally permit a jury to find that the party responsible for the Swenning crimes was also responsible for the Bate burglary.

[¶ 10] When viewed in a light most favorable to the prosecution’s case, the evidence allowed the jury to conclude Waylon Charette was guilty of the crimes for which he was charged. That potentially contradictory or inconsistent evidence was introduced at trial does not undermine the jury’s verdict, given the substantial and significant evidence in this case. Every factual inconsistency need not be resolved. Rather, it is the jury’s role to weigh contradictory and inconsistent evidence to determine credibility and guilt.

III.

[¶ 11] Charette next argues the district court abused its discretion in refusing to allow him to try on the pants found at the murder scene. Charette wanted to demonstrate that these pants could not have been the ones he was wearing on December 27th. He emphasizes these pants were critical to the State’s case and that several witnesses described the pants he was wearing on December 27th as being of a darker color, which is inconsistent with the tan pants found at the murder scene. According to Charette, a demonstration would have assisted the jury in determining the credibility of these witnesses.

[¶ 12] Under N.D.R.Ev. 401, 402, and 403, a district court has broad discretion in admitting or excluding evidence. State v. Steinbach, 1998 ND 18, ¶ 9, 575 N.W.2d 193 (citing State v. Carlson, 1997 ND 7, ¶ 8, 559 N.W.2d 802). Specifically, “the determination whether to admit demonstrative evidence, including experiments, demonstrations, and tests, is left to the sound discretion of the trial court.” Butz v. Werner, 438 N.W.2d 509, 518 (N.D.1989). We will reverse a district court’s decision to admit or exclude such evidence only if the court has abused its discretion by acting in an arbitrary, unconscionable, or unreasonable manner. Id. All relevant evidence is allowed; however, even relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.D.R.Ev. 403. A district court has broad discretion in deciding whether evidence is relevant or not relevant. Steinbach, at ¶ 9. “While NDREv 403 gives a trial court the power to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, that power should be sparingly exercised.” State v. Ash, 526 N.W.2d 473, 477 (N.D.1995) (citing State v. Zimmerman, 524 N.W.2d 111, 114 (N.D.1994)).

[¶ 13] The district court did not abuse its discretion in refusing to allow Charette to try on the murder scene pants. First, the pants, which were covered in blood, had been specially packaged for trial. The State argued that allowing Char-ette to try on the pants could have created a potential bio-hazard harmful to those in the courtroom. More critical to our review, however, is the evidence adduced at trial that Charette had gained a “considerable” amount of weight during the almost year-long interval between the murder and the trial date. Given this change in circumstances, a demonstration posed the risk of misleading the jury. See South v. National R.R. Passenger Corp., 290 N.W.2d 819, 834 (N.D.1980) (trial court did not abuse its discretion in refusing testimony regarding the accuracy of various accident scene photographs when the witness’s only firsthand knowledge of the accident scene occurred after the installation of new warning signs); Higgs v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 16 N.D. 446, 451, 114 N.W. 722, 724 (1908) (photograph of an accident scene taken several months after the accident nonetheless admissible, provided no substantial changes to the scene occurred from the time of the accident).

[¶ 14] Finally, it is important to note Charette presented considerable evidence to refute the State’s assertion that the murder-scene pants belonged to him. For example, Charette testified the tan pants from the murder scene were not his, were not of a style or color he wore, and would have been too small for him to have worn. The district court’s ruling did not deprive the defendant of the means to rebut the State’s evidence. Accordingly, the district court did not abuse its discretion in refusing Charette’s proffered demonstrative evidence.

IV.

[¶ 15] Finally, Charette argues that the district court erred in allowing testimony from the victim’s granddaughter at trial. Swenning’s granddaughter was allowed to identify certain pieces of Swen-ning’s property, including the coin purse Waylon Charette turned over at a Bismarck emergency room. Charette objected to the introduction of this evidence at trial, contending the State failed to reveal the availability of this testimonial evidence in its responses to discovery requests. Charette couches his argument in N.D.R.Crim.P. 16. Under this rule, Char-ette argues the State was required to disclose the content of the granddaughter’s proposed testimony.

[¶ 16] In pertinent part, N.D.R.Crim.P. 16 states:

CO Demands for Production of Names, Addresses, and Statements of Witnesses; Statements of Codefendants; Statements of Other Persons.
(1) Names, Addresses, and Statements of Prosecution Witnesses. Upon written request of the defendant, the prosecution shall furnish to the defendant a written list of the names and addresses of all prosecution witnesses, and any statements made by them, whom the prosecuting attorney intends to call in the presentation of the case in chief, together with any records of prior criminal convictions of any of those witnesses which are within the knowledge of the prosecuting attorney. If a written request for discovery of the names, addresses, and statements of witnesses has been made by a defendant, the prosecuting attorney must be allowed to perpetuate the testimony of those witnesses in accordance with the provisions of Rule 15.
(4) The term “statement,” as used in this subdivision, means:
(i) a written statement made by the witness, codefendant, or other person and signed or otherwise adopted by the declarant; or
(ii) a stenographic, mechanical, electrical, or other record, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by the witness, codefendant, or other person to an agent of the prosecution and recorded contemporaneously with the making of the oral statement.

“Under N.D.R.Crim.P. 16, the prosecution must disclose, upon the defendant’s request, names and statements of witnesses the prosecution intends to call and also the relevant statements within the prosecution’s possession or control of other persons.” State v. Thorson, 2003 ND 76, ¶ 10, 660 N.W.2d 581; see N.D.R.Crim.P. 16(f)(1). Rule 16 is a discovery rule, not a constitutional mandate, designed to further the interests of fairness. State v. En-sminger, 542 N.W.2d 722, 723 (N.D.1996). Although the trial court may impose sanctions for a failure to comply with Rule 16, including prohibiting the delinquent party from introducing into evidence the material not disclosed under N.D.R.Crim.P. 16(d)(2), before the issue of sanctions becomes relevant there must be a threshold determination that Rule 16 was violated.

[¶ 17] Here, the State repeatedly informed the defendant that Candace Swenning, the victim’s granddaughter, could be called as a State’s witness, and defense counsel was free to interview her prior to trial. The “statements” made by every State’s witness, including Candace Swenning, were made available to the defendant by the State’s open file policy. Rule 16(f)(1) requires only “statements” be disclosed by the prosecution. “Statement” is defined quite technically and tends to emphasize formal, written, or recorded declarations. See N.D.R.Crim.P. 16(f)(4). There is no indication Candace Swenning made a formal “statement” regarding the identification of the victim’s property. Rather, the prosecution spoke with Candace Swenning to gain a sense of whether she might be able to identify her grandmother’s possessions at trial. The fact the State did not formally record these pretrial interactions, disclose the results of these conversations, or highlight that Candace Swenning may attempt to identify her grandmother’s possessions at trial, does not equate to a per se violation of Rule 16(f)(1). Rule 16 does not require disclosure of all information arguably labeled “important” or “big,” regardless of the form of such information.

[¶ 18] The judgment is affirmed.

[¶ 19] CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.