author:
GILBERTSON, Justice
      SABERS, Justice

text:
    2001 SD 51
    STATE of South Dakota, Plaintiff and Appellee, v. Marjorie OLSON-LAME, Defendant and Appellant.
    No. 21646.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2001.
    Decided April 18, 2001.

      Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General Pierre, for plaintiff and appellee.
    Nora K. Kelley, Rapid City, for defendant and appellant.
   GILBERTSON, Justice

[¶ 1.] Marjorie Olson-Lame appeals the restitution provision of a judgment and sentence requiring her to reimburse Pennington County for extradition costs. We affirm.

FACTS

[¶ 2.] Olson-Lame was arrested on October 19, 1998 in Sioux Falls for numerous charges including possession of a motor vehicle that was stolen in Pennington County. Olson-Lame fled the state after her arrest and remained a fugitive until March 2000 when she was arrested in Raleigh, North Carolina. Olson-Lame refused to waive extradition to South Dakota and, pursuant to an agreement with Pennington County, the United State’s Marshals’ Service served her with a South Dakota Governor’s Warrant on May 12, 2000. The Service also transported Olson-Lame back to Pennington County and charged the county $1,175 for its services.

[¶ 3.] Olson-Lame and the Pennington County State’s Attorney eventually reached a plea bargain concerning the Pennington County charges and, during arraignment, her counsel explained the bargain as follows:

Basically, that with the waiver of the preliminary hearing, Miss Lame will be pleading guilty to the possession charge, the possession of a stolen motor vehicle charge. In addition, she’d be responsible for all costs of prosecution and any restitution ordered by the Court. In exchange for that, the State would be dismissing two counts of grand theft and agree not to file a part two habitual information; and at the time of the sentencing the State would recommend a cap of three years in the South Dakota State Penitentiary, (emphasis added).

[¶ 4.] Olson-Lame agreed this was her understanding of the plea agreement and went forward to plead guilty to the charge outlined in the plea bargain. The trial court later sentenced Olson-Lame to three years in the penitentiary with credit for time served plus court costs of twenty-two dollars, the crime victim’s surcharge of two dollars and fifty cents, the court automation surcharge of twenty-five dollars and fifty cents, attorney’s fees of $375 and reimbursement to Pennington County of $1,175 for extradition costs. Olson-Lame appeals.

ISSUE

[¶ 5.] Did the trial court err in ordering Olson-Lame to pay extradition costs as restitution to Pennington County?

[¶ 6.] Citing several prior decisions of this Court, Olson-Lame argues that the trial court erred in ordering her to pay extradition costs as restitution to Pennington County because the county was not a “victim” of her crime that was statutorily entitled to restitution. Olson-Lame failed to object to the reimbursement award before the trial court and explicitly agreed to the terms of the plea bargain requiring her to pay all costs of the prosecution and any restitution ordered. Generally, this Court will not address issues raised for the first time on appeal and not presented to the trial court. See State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763.

[¶ 7.] To the extent that Olson-Lame’s argument may be jurisdictional, we do agree with her contention that it was improper for the trial court to award extradition costs as restitution to Pennington County. SDCL 23A-28-1 provides that it is the policy of the State that restitution be made to the “victims” of criminal activities. As set forth in State v. Ryyth, 2001 SD 50, ¶ 10, — N.W.2d -, --, 2001 WL 392660, another case where a county was awarded the costs of extradition as part of a criminal sentence:

SDCL 22-1-2(53) defines victim as “any natural person against whom the defendant in a. criminal prosecution has committed or attempted to commit a crime[.]” In this case, County is not a victim under this definition, except in the indirect sense that the public itself is a victim of any crime committed against the State. This is not the type of “victim” the legislature sought to make whole under the restitution statute (“any person ... who has suffered pecuniary loss resulting from the defendant’s criminal activities ...” SDCL 23A-28-2(5)). (footnote omitted).

See also State v. No Neck, 458 N.W.2d 364, 365 (S.D.1990) (trial judge had no authority to require defendant to pay restitution to county as victim for jurors’ fees and mileage incurred in prosecution of case); State v. Garnett, 488 N.W.2d 695, 698 (S.D.1992) (trial court erred in ordering defendant to make restitution to county for overtime paid to officers who apprehended defendant because county was not a victim entitled to restitution); State v. Sprecher, 2000 SD 17, 606 N.W.2d 138, 139 (trial court appropriately denied county restitution for costs of abating a public nuisance because county was not a victim entitled to restitution).

[¶ 8.] Notwithstanding the foregoing conclusion, we hold that the trial court’s award of extradition costs to Pennington County was appropriate as an award of "costs of the prosecution under SDCL 23A-27-26:

In all criminal actions, upon conviction of the defendant, the court may adjudge .that the defendant pay the whole or any part of the costs of that particular prosecution in addition to the liquidated costs provided by § 23-3-52. However, the costs shall not include items of governmental expense such as juror’s fees, bailiffs fees, salaries and expenses of special agents, and reporter’s per diem. Payment of costs may be enforced as a civil judgment against the defendant.

As explained in Ryyth, 2001 SD 50 at ¶ 15, — N.W.2d at -, 2001 WL 392660:

The majority of jurisdictions having considered the question presently before this Court hold that the definition of prosecution costs includes extradition costs. Their logic is sound and persuasive. Certainly, monies expended to return a defendant to this state for prosecution are recoverable from the defendant as prosecution costs under SDCL 23A-27-26.

[¶ 9.] Based upon the foregoing, we find no err in the award of extradition costs to Pennington County as part of Olson-Lame’s sentence.

[¶ 10.] Affirmed.

[¶ 11.] MILLER, Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 12.] SABERS. Justice, concurs in result.

SABERS, Justice

(concurring in result).

[¶ 13.] I concur with the majority opinion that Olson-Lame is required to pay these costs of extradition to Pennington County. The reason for this is simple, she consented and agreed to pay these costs as part of her plea bargain agreement with the State. The majority opinion needlessly and erroneously proceeds to hold that these costs are recoverable nonetheless as costs of prosecution under SDCL 23A-27-26, and improperly bases the same on State v. Ryyth. .

[¶ 14.] No matter how many cases from foreign jurisdictions State v. Ryyth parades as authority, it cannot justify its errant interpretation of a clear statute enacted by the South Dakota Legislature. SDCL 23A-27-36 is a statute of exclusion. It states in relevant part “the costs shall not include items of governmental expense such as juror’s fees, bailiffs fees, salaries and expenses of special agents, and reporter’s per diem.” (emphasis added). The statement that these costs shall not include governmental expense followed by a list prefaced by “such as” is clearly demonstrative of prohibited costs, not included costs. The majority opinion instead erroneously views that list as all-inclusive. Extradition costs are clearly “salaries and expenses of special agents.” Whatever happened to plain meaning?

[¶ 15.] What is the real difference between the specifically excluded items and costs of extradition? None. I submit this question has not been answered by the majority opinion, and if the only authority for the majority opinion’s holding is State v. Ryyth, it seems it never will. Interestingly, if it were not for the new found rationale incorrectly based on State v. Ryyth, all of the majority opinion’s citations to the cases decided under the restitution statute are contrary to its holding here. Perhaps this is notice to the South Dakota Legislature that plain meaning does not mean plain meaning any more.

[¶ 16.] For the reasons stated herein and my dissent in State v. Ryyth, I concur in result only based on Olson-Lame’s agreement and consent to pay these costs.

      . Jurisdiction includes the power of a court to set a penalty and cannot be conferred by agreement, consent or waiver. See State v. Haase, 446 N.W.2d 62, 64 (S.D.1989). Jurisdiction may be raised at any time and even for the first time on appeal. State v. Neitge, 2000 SD 37. ¶ 9. 607 N.W.2d 258. 260.

      . “ 'We will uphold the judgment of the trial court if it is right for any reason.’ ” Ryyth, 2001 SD 50 at ¶ 11, - N.W.2d at -, 2001 WL 392660 (quoting In re C.W., 1997 SD 57, ¶ 14, 562 N.W.2d 903, 906).


source: Caselaw Access Project

author: AMUNDSON, Justice.

license: Public Domain

text:
    2001 SD 47
    STATE of South Dakota, Plaintiff and Appellee, v. David GONZALEZ, Defendant and Appellant.
    No. 21469.
    Supreme Court of South Dakota.
    Argued Oct. 25, 2000.
    Decided April 18, 2001.

      Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Larry M. Yon Wald of Truhe, Beardsley, Jensen, Helmers & Von Wald, Rapid City, SD, Attorneys for defendant and appellant.
   AMUNDSON, Justice.

[¶ 1.] David Gonzalez appeals his conviction of two counts of attempted statutory rape. We reverse.

FACTS

[¶ 2.] In 1998, B.H., who was approximately twenty-one years old at the time of trial, filed a criminal complaint against David Gonzalez involving incidents she alleged to have occurred in 1993. At the time of the alleged assaults, she worked as a hostess and bus person at a restaurant named The Sluice. The owner/manager of the restaurant was David Gonzalez.

[¶ 3.] B.H. testified that while working at the restaurant one night in September of 1993, Gonzalez asked her to come to his office to talk to him about something. According to B.H., she obliged and went down the staircase to the basement office. Once inside, Gonzalez turned off the lights and physically directed B.H. to a certain physical position. He partially undressed B.H. and attempted to penetrate B.H. with his penis. B.H. immediately jumped from her position and ran out of the office. She finished this shift at the restaurant, but did not report this incident to anyone, including the authorities.

[f 4.] B.H. also testified at trial that approximately three days after this first incident, she was again asked to speak to Gonzalez in private. This time, she followed him to an upstairs office. Once again, Gonzalez shut the door and turned off the light. This time he physically led B.H. to a closet where he partially undressed her and again tried to penetrate her with his penis. He was unable to penetrate B.H. because she moved in a fashion that thwarted his efforts. B.H. left work without knowing whether she completed her shift.

[¶ 5.] Following a two-day trial in December of 1999, Gonzalez was convicted of two counts of attempted statutory rape and acquitted of two counts forcible rape. Gonzalez appeals raising the following issues:

1) Whether the trial court erred in failing to grant defendant a new trial based upon newly discovered evidence and upon the failure of the prosecution to disclose the counseling records of the complaining witness.
2) Whether defendant may be convicted of attempted statutory rape upon the uncorroborated testimony of the complaining witness.

STANDARD OF REVIEW

[¶ 6.] Trial courts possess wide discretion to remedy injustice by granting a new trial. Simmons v. City of Sioux Falls, 374 N.W.2d 631, 632 (S.D.1985). We review such decisions under an abuse of discretion standard. Berry v. Risdall, 1998 SD 18, ¶ 9, 576 N.W.2d 1, 4.

Although the abuse of discretion standard governs regardless of the grounds for which the new trial is requested, new trials granted because a jury verdict is against the weight of the evidence must be distinguished from new trials ordered for other reasons: for example, improperly introduced evidence, other extraneous improper disclosures to the jury such as prejudicial statements by counsel, an improper charge to the jury, or newly discovered evidence.

Wangen v. Knudson, 428 N.W.2d 242, 244 (1988) (citing Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir.1960)).

[¶ 7.] Our standard of review of a denial of a motion for judgment of acquittal is whether the State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged. State v. Abdo, 518 N.W.2d 223, 227 (S.D.1994); State v. Gallipo, 460 N.W.2d 739, 742 (S.D.1990). In determining the sufficiency of the evidence to constitute a crime, the question is “whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict.” State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994) (citations omitted).

DECISION

ISSUE I

[¶ 8.] Whether the trial court erred in .failing to grant defendant a new trial based upon newly discovered evidence and upon the failure of the prosecution to disclose the counseling records of the complaining witness.

[¶ 9.] On August 31, 1999, Gonzalez filed a Motion to Produce Counseling Records. On September 29,1999, approximately three months prior to trial, the trial court granted Gonzalez’ motion to produce B.H.’s counseling records. Throughout the proceedings the State’s Attorney insisted that counseling records did not exist. After Gonzalez was found guilty, Gonzalez filed, on February 3, 2000, another motion to compel the State to produce counseling records. Again, on February 14, 2000, the trial court granted the motion and ordered the State to produce B.H.’s counseling records. After confusion and miscommunication on the part of the State and its witness, the records were eventually turned over to Gonzalez. Thus, the “newly discovered evidence” in this case are the counselor’s notes which were never delivered to the defense until after the trial.

[¶ 10.] In Brady v. Maryland, the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). In United States v. Bag-ley, the Supreme Court revisited the issue and held that favorable evidence is material, and constitutional error results from its suppression by the government, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985). See also Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490, 505 (1995).

[¶ 11.] We have stated that the failure to disclose evidence demands a new trial if four questions can be answered in the affirmative. In Black v. Class, 1997 SD 22 ¶ 16, 560 N.W.2d 544, 548, we established that a new trial must be granted if these questions can be answered affirmatively: (1) was the defense unaware of the evidence, (2) is the evidence favorable to the accused, (3) is the evidence material to the defense, (4) did the defense make a request for the evidence. Both parties agree that the first prong has been met, thus we will examine the three remaining prongs.

[¶ 12.] The second prong of whether the evidence is favorable to the defendant has also been met. This is especially true when the only evidence against the defendant is the word of the alleged victim, and the new evidence gives a different version than that given at trial. At trial, B.H. testified that she had not been raped; that she was physically able to counter Gonzalez’ advances; and that there were two encounters between she and Gonzalez. According to the counseling notes, B.H. told Ms. Wales that she, in fact, had been raped; that she was unable to neutralize Gonzalez physically; and that it had occurred only once. With these inconsistencies, the function of weighing the credibility of the words spoken in a counseling session against those spoken at trial should be left to the jury. State v. Christensen, 1998 SD 75, ¶ 37, 582 N.W.2d 675, 682 (citing State v. Ristau, 290 N.W.2d 487, 490 (S.D.1980)). The importance of the counselor’s notes will not be known unless a jury is able to hear B.H.’s explanation for the inconsistencies. If the defense was able to impeach B.H. with this evidence coupled with its substantive value, there, is a possibility that the jury could return a verdict of not guilty. At the very least, we can say that the evidence is favorable to Gonzalez and it raises a reasonable probability that the outcome would be different. Bagley, supra, at 682, 105 S.Ct. 3375; Kyles, supra, at 1565.

[¶ 13.] The third prong of “materiality” of the evidence is established in this case. The counselor’s notes portend to give a different version of the incidents than that given at trial. “[W]here there are no other direct witnesses to allegations of sexual [assault], the credibility of the complaining witness and the defendant is a key determination.” State v. Letcher, 1996 SD 88, ¶ 85, 552 N.W.2d 402, 408. The reliability of her statements is the cornerstone of this prosecution. The notes withheld by her counselor are not only relevant to B.H.’s credibility, but also relevant to what happened. To reiterate, B.H. testified that she was able to thwart Gonzalez’ attempts, and that she escaped with relative ease. The notes reveal, among other things, that she told her counselor that she was unable to escape and that she in fact had been raped. The notes also imply that there was only one incident, rather than the two as told at trial. Thus, the counsel- or’s notes are material as to the exact conduct which supports the charges.

[¶ 14.] The fourth prong is also satisfied. Again, it is worth noting that on August 31, 1999, Gonzalez served and filed a Motion to Produce Counseling Records. The motion sought the State to produce counseling records generated by- .Cherly Wales, B.H.’s counselor. Two months later, the motion was granted. Lawrence County State’s Attorney informed defense counsel that the B.H. counseling records did not exist. After Gonzalez’ conviction, defense counsel' renewed its motion for counseling notes for the purpose to rebut the State’s characterization of B.H.’s mental trauma stemming from the rapes at sentencing. Again the State’s Attorney insisted that “there’s not a piece of paper” relating to Cheryl Wales’ contact with B.H. Only upon a second order by the trial court, and that order being sent by the defense directly to Ms. Wales, did the defense receive the records. The defense did all it could under the rules of evidence to procure the counseling records; thus, due diligence was exercised by the defense.

[¶ 15.] The State’s Attorney’s failure to obey a direct order of the court and deliver relevant discovery material to Gonzalez prior to trial constituted a violation of Gonzalez’ due process rights under the Brady rule and deprived Gonzalez of a fair trial. The State argues there was miscommuni-cation between the State and Ms. Wales regarding whether the State asked for “case notes” instead of all records. The excuse of miscommunication with the counselor proffered by the State’s Attorney is tenuous at best. The court order demanded that all counseling records be supplied to the defense, and made no distinction among the varying notes and records. It is irrelevant whether the State knew or did not know of the existence of the counseling records. It was the sole obligation of the State, in accordance with the court order, to produce such records.

[¶ 16.] It is important to note that Ms. Wales was listed as a State’s witness and was subpoenaed for trial. Although she was never called as a witness, the State communicated with her prior to trial and listed her as a potential witness. The record does not adequately explain why the State failed to provide the requested records. Regardless of its excuse, the State was ordered to supply the defense with the appropriate records, which it failed to do. It took two court orders to procure the counseling records. As we have said before, a defendant is not afforded a perfect trial, however, he is afforded a fair one. Davi v. Class, 2000 SD 30, ¶ 51, 609 N.W.2d 107, 118. Because Gonzalez met the four-prong test of Black, he is entitled to a new trial.

ISSUE II

[¶ 17.] Whether defendant may be convicted of attempted statutory rape upon the uncorroborated testimony of the complaining witness.

[¶ 18.] SDCL 23A-22-15.1 and our decision in State v. Ree, 331 N.W.2d 557 (S.D.1983) make it clear that corroboration is not required in sex crimes. Whether a complainant’s testimony is improbable or impeached is a determination best reserved for the jury. It is not the role of the court to become a 13th juror. To the extent that State v. Grey Owl, 316 N.W.2d 801 (S.D.1982) is inconsistent with SDCL 23A-22-15.1 and the Ree decision, we overrule that portion of the opinion.

[¶ 19.] For the foregoing reasons the trial court is reversed and remanded for new trial.

[¶ 20.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

        State v. Ree was a sexual contact case where this Court specifically stated:
      [T]he 1975 enactment of the South Dakota Legislature repealing and reenacting SDCL 22-22-12 was intended to modernize the rape statute to place the act in a proper perspective and to try the actor for the crime, not the victim. Again we see no reason to vary the treatment of the complaining witness in a sex contact case.... Thus, to apply a stricter test of credibility to the victim than to other witnesses in a trial is clearly against the modem trend which the legislature has set.
      331 N.W.2d at 561 (internal citations omitted).


text:
    2001 SD 53
    STATE of South Dakota, Plaintiff and Appellee, v. Brian COREY, Defendant and Appellant.
    No. 21567.
    Supreme Court of South Dakota.
    Argued Jan. 11, 2001.
    Decided April 25, 2001.

      Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    John C. Wiles of Wiles, Rylance & Hol-gerson, Watertown, SD, Attorneys for defendant and appellant.
   AMUNDSON, Justice.

[¶ 1.] Brian Corey (Corey) was convicted of first degree robbery after a jury trial. Corey appeals based on numerous issues. We affirm.

FACTS

[¶2.] On June 20, 1999, at approximately 10:40 p.m., Kim Strohschein Nigg (Nigg), the manager of the local Pizza Ranch restaurant in Watertown, South Dakota, was robbed at gunpoint in a nearby parking lot. According to Nigg’s testimony, her assailant approached her from an adjacent alley, pointed a gun near her face, and demanded her purse. Nigg gave him her purse and her assailant fled the area on foot. Nigg then called police at a nearby convenience store.

[¶ 3.] Nigg described the assailant as male, 5'9" to 6' tall, and approximately 170 lbs. Due to the time of night and the assailant’s use of a mask, Nigg was unable to give a detailed physical description of her attacker. According to her report to police, however, Nigg recounted that her assailant vocally demanded her to “Give me the money” or something to that effect.

[¶ 4.] On June 21, the next day, Corey, a former employee of Pizza Ranch who was fired by Nigg, entered the restaurant and approached the counter to ask Nigg a question as to the status of the pizza buffet. Upon immediately recognizing Corey’s voice with that of her attacker, Nigg proceeded to her office to call police. Corey left the restaurant before police arrived. Nigg’s husband, who happened to witness this encounter, observed Corey flee the area, but was able to describe the vehicle in which Corey was travelling. Police pulled Corey’s vehicle over and subsequently found a firearm, which Nigg later testified was the weapon used in the commission of the robbery.

[¶ 5.] After a three-day trial, the jury rendered a verdict of guilty on the armed robbery charge. Corey was sentenced to eight years on that charge. Corey appeals raising the following issues:

1) Whether there was sufficient evidence to identify Corey as the robber;
2) Whether the trial court erred in not suppressing Corey’s statements to police;
3) Whether the trial court erred in limiting the expert’s testimony;
4) Whether Corey is entitled to a new trial due to alleged prosecutorial misconduct during closing argument;
5) Whether evidence was sufficient to support Corey’s conviction.

ISSUE 1

[¶ 6.] Whether there was sufficient evidence to identify Corey as the robber.

[¶ 7.] When Nigg identified Corey’s voice in court, Corey failed to object. Corey’s claim of unreliability of this voice identification came when the State rested its case and upon a motion for new trial.

[¶ 8.] Corey argues on appeal that the trial court abused its discretion in denying his post-trial Motion to Set Aside the Verdict and for Judgment of Acquittal. State argues Corey has not preserved the identification issue for appeal. State relies on the fact that Corey failed to place in the record transcripts of all relevant proceedings as required by SDCL 15-26A-49. See also State v. Stepner, 1999 SD 40, ¶ 8, 590 N.W.2d 905, 907. If the appellate record is incomplete, this Court presumes that the trial court acted correctly. Baltodano v. North Central Health Services, Inc., 508 N.W.2d 892, 895 (S.D.1993). In addition, Corey did not file a pretrial motion to suppress the voice identification. A motion to suppress must be brought prior to trial. State v. Hofman, 1997 SD 51, ¶10, 562 N.W.2d 898, 901-02; see also SDCL 23A-8-3(4).

[¶ 9.] Furthermore, the record contains no decision by the trial court regarding suppression or admission on the identification evidence. The burden of producing a ruling rests upon the party desiring it, and if that party permits the trial court to proceed to judgment without action on his motion or objection, the issue is waived. Jameson v. Jameson, 1999 SD 129, ¶ 25, 600 N.W.2d 577, 583. A defendant in a criminal case must give the trial court the opportunity to make a ruling on an issue before it will be reviewed on appeal. State v. Lachowitzer, 314 N.W.2d 307, 309 (S.D.1982).

[¶ 10.] In conclusion, based on the dearth of effort to preserve this issue for a meaningful appellate review, this Court finds the issue has been waived.

ISSUE 2

[¶ 11.] Whether the trial court erred in failing to suppress Corey’s statements to police.

[¶ 12.] Corey argues that his statements he made to police during interviews on June 21, 1999 were inadmissible because they were involuntary. Corey has failed to preserve this issue for appeal as he has failed to provide a transcript of the suppression hearing. It is the obligation of the defendant to request a transcript of all relevant proceedings. Stepner, supra, ¶ 8. Without such transcript this Court has no record to review the voluntariness of the statements made to police. As such, this Court presumes that the trial court acted correctly. Baltodano, supra, at 895. This issue is also waived for Corey did not object to admission of his statements at trial. State v. Gallipo, 460 N.W.2d 739, 743 (S.D.1990). Therefore, we do not address the merits of Corey’s claim.

ISSUE 3

[¶ 13.] Whether the trial court erred in limiting the expert’s testimony.

[¶ 14.] In his confession to police, Corey made statements to police that sometimes he is a dragon and sometimes a wolf, and depending on which one he was that night he could determine whether he committed the robbery. Corey asserts that the trial court erred in limiting the testimony of his psychologist, Dr. Buri (Bmi). The trial court allowed Buri to testify about his observations of Corey during treatment in order to assist the jury 'in understanding why Corey made such statements to police. The trial court also allowed Buri to testify as to the reliability of Corey’s statements to law enforcement. The State, however, moved to restrict Buri’s testimony to exclude any mention of Corey’s state of mind. The trial court granted the motion, as Corey did not plead insanity, nor was it relevant to competency, as that had already been determined; thus Corey’s state of mind was irrelevant.

[¶ 15.] A trial court has broad discretion concerning the qualifications of an expert and the admissibility of expert testimony, and it will not be reversed on appeal without a clear showing that it abused its discretion. State v. Koepsell, 508 N.W.2d 591, 593 (S.D.1993); State v. Spawns, 455 N.W.2d 596, 598-99 (S.D.1990). It is also true that as a general rule, expert testimony regarding credibility is inadmissible. McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989) (reversed on other grounds). The fundamental test for admission of expert testimony, however, is whether it will assist the jury in resolving the factual issues before it. Koepsell, supra.

[¶ 16.] The trial court correctly limited Buri’s testimony to the reliability of Corey’s statements. Id. Corey argues that Buri should have been allowed to also testify to Corey’s frame of mind during the police interviews and explain why Corey resorted to role-playing games as a way to protect himself. Corey set out no scientific basis for the proposed testimony. In fact, Corey could not point to any psychological tests that would make Buri’s testimony credible or reliable for these extended purposes. The limit placed on Buri’s testimony by the trial court was within its discretion. The additional testimony may have added confusion rather than making things clearer for the jury. As such, the trial court did not err by limiting Buri’s testimony.

ISSUE 4

[¶ 17.] Whether Corey is entitled to a new trial due to alleged prosecutorial misconduct during closing argument.

[¶ 18.] Corey claims that the State committed prosecutorial misconduct in the rebuttal phase of its closing argument. The statement made by the State complained of by Corey is “[w]e don’t know what his involvement was in that robbery, if he had anything to do with it or not.” The statement implies that Corey’s friend may have conspired to commit this crime. Corey objected to the statement because the State asserted facts not in the record. The trial court sustained the objection, and the State did not make further reference to the questionable role Corey’s friend may have played in executing this crime. Corey did not make a motion for mistrial, or to strike that statement from the record. Only upon a motion for new trial does he now seek remedial action for the State’s improper statement.

[¶ 19.] The standard of review for pros-ecutorial misconduct is the abuse of discretion standard. State v. Lee, 1999 SD 81, ¶ 21, 599 N.W.2d 630, 634; State v. Knecht, 1997 SD 53, ¶ 17, 563 N.W.2d 413, 420. As a threshold, however, Corey must cite relevant authority before this Court will consider granting relief. If no relevant authority is cited, the issue is deemed waived. State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599. No such authority has been provided by Corey for the proposition that prosecutorial misconduct has been grounds for a new trial or judgment of acquittal. Likewise, due to the harmless nature of such statement, the rule of “plain error” is inapplicable. The trial court, by sustaining the objection, and admonishing the jury via a limiting instruction, cured any prejudice caused by such statements. Corey absolutely fails to point to any error committed by the trial court or any resulting prejudice. Moreover, the issue is waived and does not rise to the level of “plain error.”

[¶ 20.] We have considered the other issue and determine that it need not be addressed except to say the evidence was sufficient.

[¶ 21.] Affirmed.

[If 22.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

      . If we were to address the merits, we would find Corey’s request to this Court to "please review” the Nigg's voice identification under our decision in State v. Loftus, 1997 SD 131, 573 N.W.2d 167, to be without merit. Corey argues that the witness' voice identification is unreliable, but fails to present a record showing why it was derived from an impermissibly suggestive identification procedure employed by the State, which resulted in an irreparable identification.
      Before this Court will analyze the five factors enunciated in Loftus to determine whether an identification is admissible, a defendant must show that the pre-trial identification was "impermissibly suggestive,” and based on the totality of the circumstances, the trial court abused its discretion "to allow the in-court identification.” Loftus, supra, ¶ 18. Based on the record before us, Corey has failed to prove that the voice identification made by Nigg was the product of "improper State motive or influence.” The issue in this case is not whether the victim could testify as to recognizing the voice, but whether her testimony regarding this voice identification was credible. Defense counsel was given the opportunity to vigorously cross-examine the witness on this point and to argue the lack of the credibility of the witness' voice identification to the jury. The jury obviously found against Corey on this credibility determination. This Court chooses not to accept Corey's invitation to act as the 13th juror and substitute our judgment for the jury. City of Bridgewater v. Monis, Inc., 1999 SD 64, 594 N.W.2d 712.

      . This is the test set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), a case which was adopted by this Court in State v. Hofer, 512 N.W.2d 482 (S.D.1994). After the adoption of the Daubert test, general acceptance in the scientific community is no longer required. State v. Moeller, 1996 SD 60, ¶ 52, 548 N.W.2d 465, 479. The trial judge must simply determine "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Id. Pertinent evidence based on scientifically valid principles will satisfy those demands. Id. (citing Hofer, 512 N.W.2d at 484) (citing Daubert, 509 U.S. at 597, 113 S.Ct. at 2799). Corey failed to make an offer of proof of reliability as required by Hofer and its progeny.

      . At oral argument, counsel for Corey represented that the record included transcripts of the Grand Jury proceeding and post-trial hearings. The settled record contains only the transcript of the trial. In the future, defense counsel should make sure the record contains what he represents it does.


text:
    Russull SCHWARTZ, et al., Relators, v. MORELL SERVICES, INC., Respondent, St. Paul Painting Industry Health and Welfare Fund, Intervenor.
    No. C6-01-213.
    Supreme Court of Minnesota.
    April 18, 2001.
    Russell Sundquist, Sundquist & Associates, Ltd., St.Paul, for relator.
    Craig B. Nichols, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed January 8, 2001, be, and the same is, affirmed without opinion. See Minn.R.Civ.App.P. 136.01, subd. 1(b).

BY THE COURT:

Joan Ericksen Lancaster Associate Justice


author: Edward C. Stringer Associate Justice

text:
    George PHILIP, Relator, v. FORD MOTOR COMPANY, Respondent, Health Partners, Inc., et al., Intervenors.
    No. C3-01-203.
    Supreme Court of Minnesota.
    April 25, 2001.
    George H. Smith, Trawick & Smith P.A.; Harold Sadoff, Law Offices of Harold Sa-doff, Minneapolis, for employees.
    Kathryn Hipp Carlson, Miller & Hipp, P.L.L.P., Minneapolis, for employers.
    Health Partner’s Inc., Darlene Peterson, Minneapolis, for intervenor.
   ORDER

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed January 3, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

BY THE COURT:

Edward C. Stringer Associate Justice


author: /s/ Alan C. Page Associate Justice

text:
    John P. BUTLER, Jr., Respondent, v. METRO SHEET METAL, and Federated Insurance Co., Respondents, General Sheet Metal, and CNA/Transcontinental Insurance Co., Relators, Air Conditioning Associates, and State Fund Mutual Insurance Co., Respondents, and Foot Clinics, Ltd., P.A., Walgreen Company, Minnhealth Family Physicians, Sheet Metal # 10 Benefit Fund, Intervenors.
    No. C7-01-205.
    Supreme Court of Minnesota.
    April 26, 2001.
    Kenneth D. Nelson, Law Offices of Joseph M. Stocco, Minneapolis, for appellant.
    Carl J. Sommerer, Sommerer & Schultz, P.A., Minneapolis, for employee John P. Butler.
    Deborah K. Sundquist and Kyle T. Kust-ermann, Aafedt, Forde, Gray & Monson, P.A., Minneapolis, for Metro Sheet Metal and Federated Ins. Co.
    Anne Kevlin, Lynn, Scharfenberg & Associates, Minneapolis, for Air Conditioning Associates and State Fund Mut. Ins. Co.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed January 4, 2001, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ Alan C. Page Associate Justice


author: /s/ James H. Gilbert Associate Justice

text:
    Willie SMITH, Relator, Respondent, v. INTEGRITY PLUS, and California State Compensation Ins. Fund, Cross-Appellants, Respondents, Relators, Integrity Plus, Uninsured, and California State Compensation Insurance Fund, Intervenor/Cross-Appellant, Respondent, Intervenor.
    Nos. C4-01-95, CX-01-103.
    Supreme Court of Minnesota.
    April 27, 2001.
    Raymond R. Peterson, McCoy, Peterson, Jorstad & Brabbit, Minneapolis, for Employee-Relator.
    Arlen R. Logren, Fitch, Johnson, Larson, Walsh & Held, P.A., Minneapolis, for Employer-Respondent.
    Roderick C. Cosgriff, Heacox, Hartman, Mattaini, Koshmrl, Cosgriff & Johnson, P.A., St. Paul, for Insurer-Respondent California State Compensation Ins. Fund.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 18, 2000, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ James H. Gilbert Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Robert C. SIPKINS, an Attorney at Law of the State of Minnesota.
    No. C7-01-544.
    Supreme Court of Minnesota.
    April 30, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Robert C. Sipkins committed professional misconduct warranting public discipline, namely, failing to oppose a summary judgment motion resulting in the dismissal of his client’s claim, failing to advise his client of the motion and dismissal, failing to timely forward tax forms to another client and failing to cooperate with the Director’s investigation in violation of Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 1.15(c)(1), 1.16(d) and 8.1(a)(3), Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct and he waives his rights pursuant to Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a 90-day suspension from the practice of law. Respondent agrees that he must petition for reinstatement under Rules 18(a) through (e), RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Robert C. Sipkins is suspended from the practice of law for 90 days and that he pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

/s/ Alan C. Page Associate Justice


author: PER CURIAM. STRINGER, Justice RUSSELL A. ANDERSON, Justice LANCASTER, Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard T. JELLINGER, an Attorney at Law of the State of Minnesota.
    No. C3-00-1681.
    Supreme Court of Minnesota.
    May 3, 2001.

      Edward J. Cleary, Director, Eric T. Cooperstein, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for appellants.
    Richard T. Jellinger, pro se.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) filed a petition and supplementary petition for disciplinary action against respondent Richard T. Jellinger requesting indefinite suspension for respondent’s failure to cooperate in the disciplinary investigations of overdrafts to his trust account, misuse of his trust account as an operating account and neglect of a client matter. Respondent did not answer and the allegations were deemed admitted pursuant to Rule 13(b), Rules on Lawyers Professional Responsibility (RLPR). Respondent appeared on his own behalf at the oral argument held for the purpose of imposing the appropriate discipline.

Respondent was admitted to practice law in Minnesota on May 13, 1982. Respondent was admonished nearly 13 years ago in July of 1988 for his failure to work diligently on a client matter and communicate with the client in violation of Rules 1.3 and 1.4, Minnesota Rules of Professional Conduct (MRPC). Respondent is engaged as a sole practitioner in general practice in the Anoka County area, practicing primarily in family law and criminal defense. Respondent alleged at oral argument to have a number of existing clients with pending legal matters that needed immediate attention. Respondent further alleged that a suspension would cause delay, disruption and additional costs to his existing clients.

On March 24, 2000, the Director received a notice of overdraft for respondent’s client trust account. The Director opened an inquiry file and wrote to respondent twice requesting an explanation and documentation relating to the overdraft. Respondent sent a letter of explanation and the requested documentation on May 11, 2000. Respondent explained that the overdraft was caused by an unexpected debit on the account and stated that no client funds had been deposited in the account. Respondent paid his attorney registration fee in May of 2000 with a check from the trust account and falsely certified that he was properly maintaining his trust account books and records.

In response to the admission that respondent was using his trust account as an operating account, the Director initiated a disciplinary investigation and requested that respondent provide trust and business account records for the previous year. Respondent provided an explanation and some of the requested records on June 12, 2000. Along with his explanation, respondent acknowledged that client funds for a transaction respondent was handling had passed through the trust account between February 28 and March 2, 2000. Respondent indicated that he began using the trust account as an operating account in December 1999, after his business account was closed by the bank following a number of overdrafts. Respondent later acknowledged that use of the trust account as an operating account was improper.

The Director wrote to respondent on June 23, 2000, requesting further explanation and directing respondent to immediately cease using the trust account for business or personal expenses. Respondent made no reply. The Director received notices of nine additional overdrafts on the trust account from the bank during July, indicating that respondent continued to mismanage the account. The Director wrote to respondent three times in July regarding the overdrafts but received no response.

On August 3, 2000, the Director issued charges of unprofessional conduct. Respondent did not reply when served with the charges and failed to appear at the pre-hearing meeting. On September 20, 2000, the Director personally served respondent with a petition for disciplinary action requesting indefinite suspension from the practice of law and alleging misuse of a trust account and failure to cooperate. Respondent did not answer.

On August 23, 2000, the Director received a complaint regarding respondent from a client alleging that respondent neglected to serve the client’s petition for divorce in a timely manner, resulting in adverse financial consequences for the client. The complaint and further investigation revealed that the client terminated representation and requested the return of the $1,000 retainer he paid to respondent. Respondent promised to mail a refund, but did not do so until the client confronted respondent in his office several weeks later. Respondent had not deposited the Ghent’s retainer in the trust account but instead signed the cheek over to a third party. Respondent repaid the client.

The Director immediately sent respondent a notice of investigation of the complaint and a request for an explanation, but respondent made no reply. The Director received notice of an overdraft on respondent’s trust account on September 1, 2000, indicating continuing misuse of the trust account. The Director filed a supplementary petition for disciplinary action on October 26, 2000, alleging neglect and additional non-cooperation with the disciplinary investigation and again requesting indefinite suspension. Respondent failed to answer the supplementary petition.

We granted the Director’s motion for summary relief on November 28, 2000, and ordered that the allegations in the petition be deemed admitted pursuant to Rule 13(b), RLPR. We directed the parties to submit written proposals regarding the appropriate discipline. The Director requested indefinite suspension. Respondent did not submit a proposal.

Respondent appeared before this court at oral argument. He expressed remorse and stated that he took responsibility for his misuse of the trust account and neglect of the client file. Respondent offered to cooperate with the Director and asked for the opportunity to complete his current client matters and rehabilitate himself under the supervision of an attorney while continuing to practice law. Respondent asserted that he was receiving medical treatment for depression.

Because the allegations against respondent have been deemed admitted, the only issue before us is the appropriate discipline to be imposed. The purpose of an attorney disciplinary proceeding is not to punish the attorney but to protect the public, the courts and the profession. In re Madsen, 426 N.W.2d 434, 435 (Minn.1988). When determining the appropriate discipline for attorney misconduct, this court considers: “(1) the nature of the misconduct; (2) the cumulative weight of the rule violations; (3) the harm to the public; and (4) the harm to the legal profession.” Id. at 436. Mitigating or aggravating circumstances relating to the misconduct may also be taken into consideration. In re Haugen, 543 N.W.2d 372, 375 (Minn.1996). Although we may look to cases involving similar misconduct as a guide in enforcing consistent discipline, “each case is unique and must be examined on its own facts.” In re Dvorak, 554 N.W.2d 399, 403 (Minn.1996).

Although respondent cooperated with the investigation at first, he failed to cooperate for several months before his appearance at oral argument. By respondent’s own admission, he did not read or respond to the Director’s inquiries, he commingled client funds with operating funds in the trust account, neglected a client matter, failed to place a client’s retainer in trust, and repaid the client with funds from a personal account.

Trust account violations and false certification of compliance with the rules governing trust account maintenance constitute serious misconduct, but trust account violations do not always warrant suspension. E.g., In re Haefele, 508 N.W.2d 780, 780-81 (Minn.1993). Similarly, while failure to cooperate in a disciplinary investigation is grounds for discipline, suspension is not always warranted. E.g., In re Stanbury, 614 N.W.2d 209, 213-14 (Minn.2000).

Respondent has engaged in misconduct over a period of months. However, respondent’s statements of remorse, his renewed commitment to professional and ethical duties, and his offer to cooperate fully with the Director in rehabilitating himself appear sincere. Respondent admitted to the one instance of commingling client funds between February 28 and March 2, 2000, and there is no allegation that the misconduct harmed a client and therefore no restitution was needed. Respondent’s failure to place a retainer in trust was serious misconduct, but we note that respondent refunded the Ghent’s money with his own personal funds. Respondent committed a series of trust account violations and compounded his misconduct by failing to cooperate in the disciplinary investigation that could have assisted him in returning to proper financial procedures, but it appears that respondent’s misconduct was primarily driven by recent escalating difficulty with his finances rather than a history of such misconduct. Further, respondent has practiced law for over 18 years and the only disciplinary matter on his record occurred nearly 13 years ago. Respondent also recognized the need for continuing medical-psychological treatment.

The Director conceded at oral argument that but for respondent’s failure to cooperate, indefinite suspension may not be an appropriate sanction for the other instances of misconduct in this case. While in the past it is true that we have used suspension as a sanction for trust account violations or non-cooperation, those acts of misconduct have generally been accompanied by other aggravating factors. For example, in In re Engel, 538 N.W.2d 906, 906-07 (Minn.1995), the attorney had a prior disciplinary history and, during the course of the investigation into allegations of client neglect, was suspended for non-payment of her attorney registration fee. We imposed indefinite suspension not only because the attorney failed to cooperate during the investigation, but also because she demonstrated disregard for her professional obligations and an inability to handle the consequences of her actions. Id. at 907. Another case warranting suspension involved not only trust account violations but also charges of improperly filing attorney liens on homesteads and allegations of charging illegal fees in workers’ compensation cases. In re Beal, 374 N.W.2d 715, 717 (Minn.1985). In yet another case involving multiple acts of misconduct, including failure to hold client funds in trust, commingling of client funds, failure to maintain proper books and records, and failure to promptly disburse settlement proceeds, we determined that a five-year suspension should be conditionally stayed, where mitigating factors were present. In re Isaacs, 406 N.W.2d 526, 527 (Minn.1987). Accordingly, the particular sanction imposed depends on the specific facts of the case. In re Heffernan, 351 N.W.2d 13, 14 (Minn.1984).

Based on the specific facts of this case, the Director admitted that respondent would be able to apply for reinstatement immediately after suspension. Prior to reinstatement after suspension, we would normally require respondent to establish that he would not be a threat to the public by demonstrating his fitness to practice law, show his commitment to comply with his ethical duties, present evidence that his medical condition is improving and show that he is following the advice of approved medical professionals. These objectives could also be immediately met by inserting additional measures of protection through a conditional probation of respondent, without the attendant dislocation that would result to respondent and his existing clients from having to close down his practice, with a right to reopen it in the near future upon reinstatement. Accordingly, in keeping with the principle that attorney discipline is not to punish the attorney but to protect the public, the courts, and the profession and in light of the specific facts presented here, we conclude that indefinite suspension is not necessary to fulfill the purposes of attorney discipline.

IT IS HEREBY ORDERED:

That respondent Richard T. Jellinger is publicly reprimanded and placed on probation for a period of two years pursuant to RLPR 15(a)(4) and subject to the following conditions:

1. Respondent must abide by the Minnesota Rules of Professional Conduct.

2. Respondent must nominate an attorney who agrees to monitor his compliance with the terms of his probation. If respondent does not obtain a supervisor acceptable to the Director, the Director may appoint a licensed Minnesota lawyer to supervise his probation. Respondent must fully cooperate with his supervisor’s oversight of his probation.

3. Respondent must demonstrate to the Director that he has adopted office procedures to ensure compliance with the applicable rules and precedent regarding the handling of client funds and maintenance of a trust account.

4. The Director shall develop recommendations for supervision of respondent’s trust account to ensure review of the activity in the trust account on a regular basis by an independent party. Respondent must comply with the Director’s instructions and inquiries regarding the monitoring of the trust account.

5. Respondent must demonstrate to the Director that he has adopted office procedures to facilitate timely review and completion of legal matters on behalf of respondent’s clients.

6. Respondent may not accept any new client matters for 60 days from the date of this order and must diligently work to ensure client matters are resolved in a timely manner.

7. Respondent must provide his supervisor a monthly inventory and status report of all open files by the 10th day of each month. Respondent must provide his supervisor with a monthly report of his billing and collection activities.

8. Respondent must seek medical treatment from a mental health professional or medical professionals approved by the Director and abide by the course of treatment recommended. Respondent must complete the necessary authorizations for release of medical information to ensure that information regarding respondent’s health status is shared with the Director on a regular basis.

9. Respondent must cooperate with the Director’s office in its efforts to monitor his compliance with this probation. Respondent shall comply with the Director’s requests for information and documentation promptly, truthfully and completely. Respondent must provide authorization for release of information and documentation at the Director’s request to verify compliance with the terms of the probation.

10. Respondent must cooperate with the Director’s investigation of any further allegations of professional misconduct, which may come to the Director’s attention.

11. Failure to abide by the conditions of probation will result in more severe sanctions, including the possibility of an immediate temporary suspension pending a full evidentiary hearing on any alleged violations of probation or further violations of the Rules of Professional Conduct.

12. Respondent must pay to the Office of Lawyers Professional Responsibility $900 in costs and disbursements as required by Rule 24, RLPR.

STRINGER, Justice

(dissenting).

DISSENT

I respectfully dissent. It is undisputed that when respondent’s bank closed his office business account in December of 1999 because of chronic overdrafts, he ran his business accounts through his trust account, at times commingling business account funds with trust account funds. But one feature remained unchanged — he was still chronically overdrawn, but now as to trust account assets. When the Director’s office was notified, efforts to get information about these overdrafts were all but ignored — respondent admitted he didn’t even open the Director’s frequent mailings. Perhaps nothing more pointedly underscores respondent’s reckless and irresponsible conduct, however, than when his certification of trust account compliance accompanied his attorney registration fee that was paid by a check drawn on his trust account.

After hearing nothing from respondent for almost a year, despite the Director’s frequent efforts to investigate his trust account overdrafts, respondent appeared at oral argument to explain how depression and other matters had led him down a path of irresponsible neglect of his practice and his professional responsibilities. His description was a heart-rending account of all that can go wrong when an attorney fails to conduct his practice within the rules prescribed for all practitioners, but the only facts that we may consider are those admitted on November 28, 2000 and our only task is to determine the appropriate sanction.

Respondent’s serious and admitted disciplinary rule violations overwhelmingly demonstrate his lack of fitness to practice law and he should be suspended from the practice of law. The Director received eleven overdraft notices in the months the Director attempted to investigate, warn and assist respondent regarding his misconduct. Although respondent initially appeared willing to cooperate, his subsequent utter lack of response and the continued overdrafts revealed an intent to continue misusing the trust account despite the Director’s, insistence that he stop doing so. Respondent’s failure to respond has left this court with no evidence of mitigating circumstances or indication that he is willing or able to change his behavior to conform with the Rules of Professional Conduct. Thus, respondent’s trust account violations are compounded by his failure to cooperate with the Director or heed warnings to stop using the trust account for operating funds.

The majority’s ruling is clearly out of step with numerous decisions of this court suspending attorneys for trust account violations. “Misappropriation of client funds reflects adversely on an attorney’s fitness to practice law and warrants serious sanctions, unless substantial mitigating circumstances exist.” In re Isaacs, 451 N.W.2d 209, 211 (Minn.1990). Further, respondent has demonstrated a complete unwillingness to cooperate, which we have clearly stated carries its own sanctions. See In re Engel, 538 N.W.2d 906, 906-07 (Minn.1995) (imposing indefinite suspension); see also In re Cartwright, 282 N.W.2d 548, 551-52 (Minn.1979) (imposing six-month suspension).

In In re Beal, we ordered a three-month suspension and a year of probation for trust account violations where an attorney fully cooperated with the Director and hired an accountant to implement proper bookkeeping procedures. 374 N.W.2d 715, 716-19 (Minn.1985) (sanctioning attorney who had commingled personal and client funds, filed improper attorney liens, charged illegal fees, failed to keep the required books and records and falsely certified that he was in compliance with trust account requirements). The sanction in Beal was light because the attorney was relatively inexperienced and the misconduct resulted from the attorney’s failure to understand and implement basic record keeping and business procedures rather than fraudulent intent. Id. at 719.

We were similarly lenient where an attorney presented evidence that he had changed his bookkeeping system to ensure that the misconduct would not recur, the misconduct was partially caused by disruption in his professional life stemming from the misconduct of others who were no longer part of his practice, and alcoholism was a mitigating factor. In re Isaacs, 406 N.W.2d 526 (Minn.1987) (ordering public reprimand and stayed five-year suspension where attorney failed to hold client funds in trust, negligently misappropriated client funds, faded to maintain proper books and records, falsely certified compliance with trust account procedures and failed to promptly disburse settlement proceeds).

The circumstances in this case demonstrate a much greater risk to the public than those in Beal and Isaacs because respondent has failed to cooperate with the Director or provide evidence that his misconduct will not recur. As the Director explained to the court, a supervising attorney has only a limited ability to monitor the daily activities of an attorney on probation, and “probation does not work where the lawyer does not cooperate.” The many examples of refusal to cooperate in this case indicate that probation is particularly unlikely to be effective in curbing respondent’s misconduct.

Further, unlike the attorney in Isaacs, respondent has failed to provide any evidence of mitigating circumstances. Respondent’s last-minute assertions that he suffers from depression and is undergoing treatment cannot be a part of our consideration as they were without any eviden-tiary support whatsoever. To show that psychological disability is a mitigating factor, the attorney must prove by clear and convincing evidence that the psychological problem is severe, that the problem was the cause of the misconduct, that the attorney is undergoing treatment and is making progress to recover from the psychological problem, that the recovery has arrested the misconduct, and that the misconduct is not likely to recur. In re Weyhrich, 339 N.W.2d 274, 279 (Minn.1983). Such a showing requires evidence going to each factor. See In re Hanvik, 609 N.W.2d 235, 240-41 (Minn.2000) (holding respondent did not establish depression was a mitigating factor where the diagnosis was moderate rather than severe and imposing indefinite suspension with leave to apply for reinstatement after two years for misappropriation of client funds and misrepresentations to the Director). No evidence going to any of these factors was presented here — indeed respondent was even unclear as to whether he suffered from a psychological disability.

Public reprimand and two years of probation was ordered where, as here, an attorney committed trust account violations and neglected client matters during a period of claimed emotional distress. In re Fling, 316 N.W.2d 556, 557-58 (Minn.1982). The trust account violations in Fling were less troubling than the ones here, however, as the attorney in Fling deposited all client funds in a trust account, did not commingle client funds with personal or firm funds, and did not convert client funds for his own use. Id. In contrast, respondent failed to put client funds in trust, misappropriated client funds to pay a third party and commingled client funds with operating funds. Further, there was evidentiary support in Fling for the attorney’s assertions that his misconduct was related to the distraction created by the aftermath of a crime committed against one of his children. Id. The temporary nature of the emotional distress in conjunction with the family problems in Fling provided assurance that the misconduct was temporary. Respondent has provided no such evidence. Therefore, indefinite suspension is the only sanction appropriate to protect the public from conduct respondent admitted at oral argument was beyond his control.

Demonstrated compliance with the trust account requirements in the conduct of the attorney’s practice and proven acceptance of his responsibility to cooperate fully with the Director in identifying and correcting misconduct is the only basis upon which this court might order probation without suspension when faced with serious trust account violations such as those before us here. Respondent appeared at oral argument and stated that he feels remorseful, has improved his business practices, and will not misuse his trust account again. There has been no fact finding on his argument before the court, however. Respondent had every opportunity to cooperate with the Director and present evidence on his own behalf but he did not do so. Suspension would appropriately put the burden on respondent to demonstrate his fitness to practice law and the diminished risk to the public. Further, as respondent has not cooperated and has demonstrated no interest in correcting his misconduct other than his appearance at oral argument, it is all the more important that he be put to the test of demonstrating he is trustworthy and that he no longer poses a risk to the public through the process of reapplication following suspension.

The majority’s striking departure from long established precedent in discipline imposed for trust account violations is based on what it terms unique about the circumstances here. But the only unique feature of this matter is the level of disdain with which a practicing lawyer may treat his professional responsibility in managing his trust account, his duty to cooperate with the Director and his duty to attend to his clients’ affairs. Under the facts of this case, suspension is necessary to fulfill the duty of this court to protect the public, the legal profession, and the administration of justice.

RUSSELL A. ANDERSON, Justice

(dissenting).

I join in the dissent of Justice Stringer.

LANCASTER, Justice

(dissenting).

I join in the dissent of Justice Stringer.

      . Respondent advised the court that now he has no business or trust account and all transactions are in cash.


author: PETERSON, Judge

text:
    In the Matter of the WELFARE OF P.W.F., Child.
    No. C6-00-1254.
    Court of Appeals of Minnesota.
    April 17, 2001.
    Mike Hatch, Attorney General, St. Paul, MN; and Timothy R. Faver, Beltrami County Attorney, Bemidji, MN; and John J. Muhar, Itasca County Attorney, Grand Rapids, MN, (for respondent).
    Charlann Winking, Assistant State Public Defender, Minneapolis, MN, (for appellant).
    Considered and decided by PETERSON, Presiding Judge, SHUMAKER, Judge, and FOLEY, Judge.

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

   OPINION

PETERSON, Judge

Appellant P.W.F., a juvenile, challenges a trial court order that concludes that he possessed a dangerous weapon on school property. Appellant argues that the three-inch-blade folding knife that he possessed was not designed as a weapon and, therefore, is not a “dangerous weapon.” Because the state failed to submit evidence to show that the knife was designed as a weapon, we reverse.

FACTS

P.W.F., a high-school student, brought to school a folding-type knife with one sharply pointed blade approximately three inches long. While on the bus ride to school, appellant realized he had the knife in his pocket. He placed the knife in his locker for the entire day. After school, appellant went to a Mend’s house and left the knife with the Mend before returning to school for a dance. Appellant’s Mend gave the knife to her mother, who called the school principal to report that appellant had brought a knife to school.

Appellant admitted that the knife was his, that he knew he should not have brought it to school, and that he realized that he had the knife before he entered the school. School policy required that any time a student possessed a prohibited weapon on school grounds, the principal must suspend the student and contact the police. The school principal testified that any type of knife on school property violated this policy.

Appellant was charged with possession of a dangerous weapon on school property in violation of MinmStat. § 609.66, subd. ld(a) (1998). The trial court concluded that appellant “did possess, store or keep a dangerous weapon on school property.” After a disposition hearing, the court stayed adjudication and placed appellant on probation for one year. This appeal is from the order that concludes that appellant possessed a dangerous weapon on school property.

ISSUE

Did the state present sufficient evidence to demonstrate that appellant possessed a dangerous weapon on school property?

ANALYSIS

Whoever “possesses, stores, or keeps a dangerous weapon” on school property is guilty of a felony. Minn.Stat. § 609.66, subd. ld(a) (1998).

“Dangerous weapon” means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm.

Minn.Stat. § 609.02, subd. 6 (1998); see Minn.Stat. § 609.66, subd. ld(c)(2) (stating that “dangerous weapon” has the meaning given it in section 609.02, subdivision 6). Whether the trial court applied the proper legal standard in determining that an instrument is a dangerous weapon under the statute is a purely legal question, which we review de novo. See State v. Basting, 572 N.W.2d 281, 282 (Minn.1997) (applying de novo standard in determining whether fist was dangerous weapon).

Because it is undisputed that appellant’s knife is not a firearm or a fire and because there is no claim that appellant used or intended to use the knife to produce death or great bodily harm, appellant’s knife could be a dangerous weapon only if it was designed as a weapon and was capable of producing death or great bodily harm.

The state submitted no evidence that appellant’s knife was designed as a weapon. The trial court’s conclusion that appellant possessed a dangerous weapon implies that the court found that the knife was designed as a weapon, but the court made no findings concerning the purpose for which the knife was designed. Absent any evidence that appellant’s folding knife was designed as a weapon, we cannot conclude as a matter of law that the knife is a dangerous weapon. A folding knife has many uses, and while it is readily apparent that a folding knife could be used as a weapon, it is not apparent that appellant’s small folding knife was designed as a weapon rather than for its many other uses.

Although the trial court did not state that it was taking judicial notice of the fact that appellant’s knife was designed as a weapon, its decision appears to have been based on the judicially noticed fact that the knife was designed as a weapon. A trial court may properly take judicial notice of facts in criminal proceedings. See State v. Gerdes, 291 Minn. 353, 357, 191 N.W.2d 428, 431 (1971) (proper for trial court to take judicial notice of reliability of radar as a means of establishing speed without requiring operator to be qualified as expert in field of radar); State v. Gorman, 219 Minn. 162, 173, 17 N.W.2d 42, 47-48 (1944) (courts will take judicial notice of fact that $50 is not unusual fee to pay for expert medical testimony). But

[¡Judicial notice of adjudicative facts is normally limited to facts of common knowledge not in dispute, and those for which neither expertise nor foundation is needed
Criminal cases are not normally the appropriate setting for judicial notice, particularly of disputed facts.

State v. Pierson, 368 N.W.2d 427, 434 (Minn.App.1985) (citations omitted).

Justice Frankfurter explained long ago that

[i]t may be unnecessary to require formal proof, even as to an issue crucial in determining guilt in a criminal prosecution, of what is incontestably obvious. But some showing cannot be dispensed with when an inference is at all doubtful.

Garner v. Louisiana, 368 U.S. 157, 175, 82 S.Ct. 248, 258, 7 L.Ed.2d 207 (1961) (Frankfurter, J., concurring).

Whether appellant’s knife was designed as a weapon was a disputed issue in the trial court. Because the purpose for which the knife was designed is not a matter of common knowledge, and the inference that the knife was designed as a weapon is not free from doubt, the trial court could not take judicial notice of the fact that the knife was designed as a weapon.

The state had the burden to submit evidence to demonstrate that appellant’s three-inch-blade folding knife was designed as a weapon. Because the state failed to produce any evidence concerning the purpose for which the knife was designed, there is no basis to conclude that the knife is a dangerous weapon. See State v. Wagner, 555 N.W.2d 752, 754 (Minn.App.1996) (penal codes must be strictly construed with all reasonable doubts concerning legislative intent resolved in defendant’s favor).

DECISION

The state failed to meet its burden of proving that appellant’s knife was designed as a weapon.

Reversed.


author: G. BARRY ANDERSON, Judge.

text:
    LYON FINANCIAL SERVICES, INC., d/b/a The Manifest Group, with its principal offices in Marshall, Minnesota, Respondent, v. Maren WADDILL, Appellant, Lyman Waddill, Defendant.
    No. CX-00-1662.
    Court of Appeals of Minnesota.
    April 17, 2001.
    Review Denied June 19, 2001.

      Kevin K. Stroup, Christianson, Stone-berg, Giles & Stroup, P.A., Marshall, MN, for respondent.
    Eric J. Magnuson, Ben G. Campbell, John R. Neve, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge, ANDERSON, Judge, and, STONEBURNER, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

This breach of contract action stems from appellant’s lease of certain equipment from respondent. Appellant challenges the district court’s dismissal of appellant’s motion to vacate a Minnesota default judgment. The district court dismissed the motion based on the purported collateral-estoppel effect of a California court’s dismissal of appellant’s separate motion to vacate a sister-state judgment, which was based on the original Minnesota default judgment. We reverse and remand.

FACTS

This dispute arose from an equipment lease entered between respondent Lyon Financial Services, Inc., a Minnesota corporation, and Advantage Communications Group, Inc. (Advantage). To secure the lease, Lyman E. Waddill, an officer of Advantage, signed a personal guarantee. The signature of appellant Maren Waddill (wife of Lyman E.) appeared on the personal guarantee as well. Appellant, a resident of California, maintains that the signature was a forgery.

Advantage subsequently defaulted on the lease. Respondent then commenced a suit in Minnesota District Court against appellant and Lyman E. Waddill. Respondent attempted to serve the Minnesota summons and complaint on appellant at her former residence in Oakland, California, on January 8, 1997. The process server was told that appellant no longer lived at that address. Respondent subsequently attempted, unsuccessfully, to serve appellant at two additional addresses. Finally, on February 6, 1997, respondent delivered the summons and complaint to appellant’s son, Lyman D. Waddill, at his residence in Oakland, California. Appellant’s son refused to accept service of process and informed the process server that appellant did not reside at that address. Despite this admonition, the process server announced service and left the summons with the son.

Respondent subsequently moved for entry of default judgment against appellant in Minnesota District Court after appellant failed to answer the complaint. Default judgment in the amount of $85,571.07 was entered against appellant and her husband on July 9,1997.

Respondent then used the default judgment obtained in Minnesota to obtain a sister-state judgment in California. Lyon Financial sought to enforce the Minnesota judgment in California under the California Sister State Money-Judgments Act. Cal.Civ.Proc.Code §§ 1710.10-65. The sister-state judgment was entered on September 10, 1997. Appellant was personally served notice of the California judgment on October 9,1997.

Appellant then contacted an attorney in California. Her attorney failed to timely file a motion to vacate the California judgment. Her attorney nevertheless moved to vacate the judgment, even though the motion was technically time-barred, on the basis that the underlying Minnesota judgment had been improperly obtained. The hearing was held on January 19, 1999, in California. The California court denied appellant’s motion to vacate the registration of the Minnesota judgment without specifying reasons for the denial. Instead, the order stated: “Motion to Vacate Sister Judgment is DENIED on all grounds.” Appellant chose not to file a motion for reconsideration with the California court and did not appeal the decision in California. Respondent subsequently succeeded in garnishing monies due appellant from the sale of California property. Appellant attempted to stay execution upon the writ of garnishment in a separate action, but was unsuccessful.

Appellant filed a separate motion to vacate the original Minnesota judgment in Minnesota District Court on March 18, 1999. Appellant’s contention was that the Minnesota default judgment was void due to lack of personal jurisdiction as a result of improper service of process. While the motion in Minnesota was still under advisement, respondent executed on the monies garnished in California, collecting $35,571.07 on May 5,1999. The Minnesota District Court concluded that this satisfaction of judgment terminated Minnesota’s jurisdiction, and thus made appellant’s motion moot. Accordingly, appellant’s motion was denied.

On appeal to this court (the first appeal), we held that an involuntary satisfaction of a judgment did not render the case moot and that the district court improperly denied appellant’s motion to vacate. Lyon Fin. Servs., Inc. v. Waddill, 607 N.W.2d 453, 455 (Minn.App.2000). We remanded to allow the district court to address the merits of appellant’s motion to vacate. Id.

On remand, the district court again denied appellant’s motion to vacate, this time on the basis of collateral estoppel, by order dated July 19, 2000. A subsequent motion to reconsider was denied as untimely by order dated September 26, 2000. This second appeal follows.

ISSUES

I. Did the district court err in holding that the California court’s denial of a motion to vacate a sister-state judgment has collateral estoppel effect on a subsequent motion to vacate the underlying judgment brought in Minnesota?

II. Was appellant’s motion to vacate pursuant to Rule 60.02 of the Minnesota Rules of Civil Procedure timely?

ANALYSIS

I.

Enforcement of foreign decisions in Minnesota’s courts is guided by article IV, section 1 of the United States Constitution, which states that “[fjull faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” A state court judgment is entitled to full faith and credit in other states when it is determined that questions have been fully and fairly litigated and finally decided in the original court. Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 245, 11 L.Ed.2d 186, (1963).

Under full faith and credit, a judgment in one state is conclusive on the merits in every other state, but only if the court of the first state had jurisdiction to render the original judgment. Williams v. State of North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577 (1945). But if that same foreign court already fully and fairly addressed the contention that it lacked jurisdiction, then its decision on that issue must be given effect. United Bank of Skyline, N.A. v. Fales, 405 N.W.2d 416, 417 (Minn.1987).

The district court dismissed appellant’s motion to vacate based on the collateral-estoppel effect of the earlier California decision. Whether the district court erred in its application of issue preclusion is a mixed question of fact and law subject to de novo review. Green v. City of Coon Rapids, 485 N.W.2d 712, 718 (Minn.App.1992), review denied (Minn. June 30, 1992). Collateral estoppel is available where: (1) the issues are identical to those in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party in the previous action; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issues. Michels v. Kozitza, 610 N.W.2d 368, 373 (Minn.App.2000), review denied (Minn. July 25, 2000).

Appellant, in her memorandum to the California court, supported her motion to vacate the sister-state judgment under multiple theories including lack of personal service, lack of personal jurisdiction, collateral estoppel, equitable relief, and the existence of meritorious defenses to the Minnesota action. Appellant raises the same key issues in her subsequent motion to vacate in Minnesota. In its January 19, 1999 order, the California court denied appellant’s motion to vacate the sister-state judgment “on all grounds.”

The usual approach to addressing issues of personal service in the first instance would be a motion to quash. The Minnesota Supreme Court has established the standard for such motions:

Since the United States Supreme Court’s decision in Baldwin v. Iowa State Traveling Men’s Assn., 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931), * * * it has been settled that when a defendant is fully heard on his motion to quash service, and does not further participate in the case or take an appeal after his motion is denied, the judgment entered against him on the merits is res judicata on the question of jurisdiction and is not subject to collateral attack.

Zions First Nat’l Bank v. World of Fitness, Inc., 280 N.W.2d 22, 25 (Minn.1979). The Zions court went on to state that

despite the fundamental policy that a judgment is void absent effective service of process, controlling authority dictates the conclusion that the defendant * ⅜ * may not relitigate the issue of effective service on a motion to vacate after he has been fully and fairly heard on that issue.

Id. at 26.

In its September 26, 2000 memorandum, the Minnesota District Court referred to the transcript from the California hearing, noting that the California court claimed it had made a “substantive” ruling. But, while the California court denied appellant’s motion with the conclusory observation that it was doing so “on all grounds,” the transcript of the hearing in California reveals no substantive discussion of the personal-service issue. There is thus no record that the issue of personal service was fully and fairly litigated in California. Respondents acknowledge that the facts surrounding the original substituted service were never addressed or litigated.

We have carefully reviewed the record, including the proceedings conducted in California, and are left with the inescapable conclusion that the issues of personal service, and therefore personal jurisdiction of the Minnesota District Court rendering the original default judgment, were never fully and fairly litigated. Accordingly, vacation of the default judgment is not barred by application of collateral estop-pel.

II.

Respondent also contends that appellant’s Minnesota motion to vacate was not timely pursuant to Minn. R. Civ. P. 60.02. We disagree. Default judgments are to be “liberally” reopened to promote resolution of cases on the merits. Galatovich v. Watson, 412 N.W.2d 758, 760 (Minn.App.1987). Under Minn. R. Civ. P. 60.02(d), a court may relieve a party from a judgment if “[t]he judgment is void,” as long as the motion to vacate is “made within a reasonable time ⅜ * What is a reasonable time is determined in each case by considering the facts and circumstances before the court. Bode v. Minnesota Dept. of Natural Resources, 612 N.W.2d 862, 870 (Minn.2000). Appellant filed her motion to vacate in Minnesota District Court within two months of the denial of appellant’s motion to vacate in California. We consider this to be a reasonable time.

DECISION

The district court improperly dismissed appellant’s motion to vacate the original Minnesota default judgment because the issues of personal service and personal jurisdiction were not fully and fairly litigated in the California court. Appellant’s Minnesota motion to vacate was timely filed.

Reversed and remanded.

      . California requires the motion to vacate be filed within 30 days after the notice of the sister-state judgment. Cal Civ. Proc.Code § 1710.40

      . The California court did, however, vacate the judgment against appellant's husband on the basis that he had not been personally served with the sister-state judgment in California.

      . A judgment is void if the issuing court lacked jurisdiction over the subject matter, lacked personal jurisdiction over the parties through a failure of service that has not been waived, or acted in a manner inconsistent with due process. Bode v. Minnesota Dept, of Natural Resources, 594 N.W.2d 257, 261 (Minn.App.1999) (citations omitted), aff 'd 612 N.W.2d 862 (Minn.2000).

      . This memorandum was intended to clarify the July 19, 2000 order.

      . Ordinarily, personal service is achieved by the handing of a copy of the summons and complaint by a sheriff or process server personally to the defendant. The issue in this case is whether service of the summons and complaint on a nonresident defendant by leaving it with appellant's son (substituted service) constitutes personal service, when appellant at no time resided with her son, and when the son repeatedly refused to accept service. Respondent has not made any argument, or offered any evidence, to challenge appellant’s sworn statement that she does not live with her son and has never resided at his current address. The son made a similar sworn statement.

      .Substituted service must occur at a defendant's usual place of abode. Minn. R. Civ. P. 4.03(a): see also Thiele v. Stich, 425 N.W.2d 580, 584 (Minn.1988) (holding attempted service on office receptionist did not confer jurisdiction, despite defendant's actual knowledge of suit).