author: KAPSNER, Justice.

text:
    2000 ND 158
    In the Interest of S.J.F. S.J.F., J.C.F., Guardian ad Litem for S.J.F., and J.C.F., Plaintiffs and Appellees, v. R.C.W., Defendant and Appellant.
    Nos. 990356, 20000036.
    Supreme Court of North Dakota.
    Aug. 18, 2000.

      Dale Richard Rivard, Grand Forks Child Support Enforcement Unit, Grand Forks, N.D., for plaintiffs and appellees.
    Shirley A. Dvorak, Moosbrugger, Dvorak & Carter, Grand Forks, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] R.C.W. (“Roger,” a pseudonym) appeals from a judgment and an amended judgment finding him to be the father of S.J.F. (“Susan,” a pseudonym) and ordering him to pay child support. We affirm.

I

[¶ 2] Roger and J.C.F. (“Jane,” a pseudonym) began dating in 1979. Jane was widowed and had four children. The parties continued what they described as an “on-and-off ’ relationship, including lengthy periods when they lived together, until 1988. Jane became pregnant with Susan in December 1982 or January 1983. Roger and Jane lived together in Grand Forks from February 1983 until some time 'after Susan was born in September 1983.

[¶ 3] When Roger moved. to Ohio in 1986, Jane and Susan went to live with him. Jane and Susan returned to. Grand Forks in 1987. Throughout this entire time frame, and up until 1990, Roger provided financial assistance,, including monthly checks when,the parties ;were not living together, to Jane and her children.

[¶ 4] From 1990 until 1996 there was no contact between Roger and Jane. In June 1996, Jane commenced this paternity action against Roger, with the assistance of the Regional Child Support Unit. The case was tried on April 10, 1997. Jane testified Roger was the only man she had sexual intercourse with during the time Susan was conceived. Roger admitted the parties had engaged in sexual intercourse during their relationship, but was not sure if he was in North Dakota or Ohio in December 1982 and January 1983 because his company.was restructuring at that time. Neither side requested genetic testing to determine paternity. The trial court concluded the evidence was insufficient to support a finding that Roger was Susan’s father and dismissed the action.

[¶ 5] Jane and Susan filed a post-trial motion to amend the findings of fact or for a new trial. They also for the first time sought genetic testing. The court denied the motions.

[¶ 6] Jane and Susan appealed, arguing the trial court had erred in failing to make specific findings of fact on paternity and in failing to order genetic testing on its own motion. The case was assigned to the Court of Appeals. That Court remanded to the trial court, concluding the trial court had erred in failing to make specific findings on paternity and in failing to consider ordering genetic testing on its own motion. See In re S.J.F., 1998 ND APP 4, 582 N.W.2d 382. Roger’s petition to this Court for review of the Court of Appeals’ decision was denied. See N.D.C.C. § 27-02.1-06.

[¶ 7] On remand, the trial court ordered the parties to submit to genetic testing. Roger petitioned this Court for a writ of certiorari, asserting the trial court had exceeded its authority on remand by ordering genetic testing. We denied the petition on November 25,1998.

- [¶ 8] Genetic testing performed in February 1999 showed a 99.88 percent probability that Roger was Susan’s father. Several hearings followed, and Roger was ordered to provide his tax returns for 1996, 1997, and 1998. On October 15, 1999, the trial court entered a -memorandum decision and order finding that Roger is Susan’s father and ordering him .to pay child support of $830 per month commencing November 1, 1999. The court also ordered Roger to pay back child support for March through October 1999, taking into consideration that the testing establishing paternity occurred in February 1999. A judgment was entered on October 22, 1999, incorporating those provisions and further providing that back child support for the period between June 1996, when the paternity action was filed, and February 1999 would be ordered after receiving additional evidence.

[¶ 9] At the direction of the trial court, Jane submitted an affidavit outlining her expenses for Susan from June 1996 through February 1999. The court ordered back child support for that period in the amount of $21,912, and an amended judgment was entered on January 28, 2000. Roger has appealed from the October 22, 1999, judgment and the January 28, 2000, amended judgment.

II

[¶ 10] Roger asserts the trial court failed to comply with the mandate of the Court of Appeals by ordering genetic testing and allowing additional evidence on remand.

[¶ 11] On the first appeal, the Court of Appeals addressed two issues: whether the trial court had failed to make specific findings of fact on paternity, and whether the trial court erred in failing to order genetic testing on its own motion. On the first issue, the Court of Appeals concluded the trial court’s “finding” that the evidence was insufficient to establish paternity was a general assessment of the evidence, not a finding of fact. S.J.F., 1998 ND APP 4, ¶ 4, 582 N.W.2d 382. The Court of Appeals concluded it was impossible from the record to determine the basis for the trial court’s decision, and remanded with directions the trial court review the evidence, make explicit findings, and explain its rationale. Id. at ¶¶ 9-10.

[¶ 12] On the second issue, the Court of Appeals concluded it was unclear whether the trial court had properly considered its own authority to order genetic testing in a paternity case. Id. at ¶ 14; see N.D.C.C. § 14-17-10(1). The Court of Appeals therefore directed that, on remand, “the further decision of the trial court should include, as part of the record, its reason for either ordering or declining to order genetic testing on its own motion, a technological procedure that is still an option in this proceeding.” S.J.F., at ¶ 14.

A

[¶ 13] Roger argues the trial court exceeded its authority upon remand, and the Court of Appeals’ opinion did not authorize it to order genetic testing and take further financial evidence. Roger asserts the Court of Appeals intended only a qualified remand for the limited purpose of allowing the trial court to make more explicit findings of fact upon the evidence which had already been presented. He characterizes the last line of the opinion, in which the Court of Appeals directs that genetic testing is still an available option, as “dictum.”

[¶ 14] Resolution of this issue requires us to interpret the judgment of the Court of Appeals. Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished. Greenwood v. Greenwood, 1999 ND 126, ¶ 8, 596 N.W.2d 317; Schmalle v. Schmalle, 1998 ND 201, ¶ 26, 586 N.W.2d 677. Language contained in a judgment that is clear and unambiguous must be construed to give effect to the unambiguous language. Webster v. Regan, 2000 ND 89, ¶ 13, 609 N.W.2d 733. The determination whether a judgment is ambiguous is a question of law. Greenwood, at ¶ 8; Schmalle, at ¶ 26. A judgment should be construed to give effect to each and every part of it and to bring all the different parts into harmony, if this can be done by fair and reasonable interpretation. Dakutak v. Dakutak, 1997 ND 76, ¶ 11, 562 N.W.2d 750.

[¶ 15] We construe the Court of Appeals’ judgment to clearly and unambiguously authorize the trial court to order genetic testing on its own motion upon remand. The Court of Appeals specifically stated genetic testing “is still an option in this proceeding,” and directed the trial court on remand to “include, as part of the record, its reason for either ordering or declining to order genetic testing on its own motion." S.J.F., 1998 ND APP 4, ¶ 14, 582 N.W.2d 382, If, as Roger contends, the Court of Appeals only intended for the trial court to further explain its reasons for declining to order testing in the previous proceedings, its language indicating testing is still an available option and directing the court to explain its reasons for "ordering or declining to order" testing would be mere surplusage.

[11 16] We do not agree with Roger's contention that this language is mere dictum. This language is included in the last sentence of the opinion, in which the Court of Appeals explained its directives on remand. Construing the judgment to give effect to bach and ever~r part of the judgment, Dak~tak, 1997 ND 76, ¶1 11, 562 N.W.2d 750, we conclude the judgment clearly authorized the trial court to order genetic testing upon remand.

B

[~i 17] Roger argues the trial court's decision to order genetic testing upon remand violates the public policy favoring finality in judicial proceedings, and allowed Jane and Susan to shift their trial strategy and get a second chance to prove their case. The Court of Appeals explicitly directed that genetic testing on the trial court's own motion was "still an option in this proceeding." The decision or the Court of Appeals beca~ue final when we denied Roger's petition to review it. Once an appellate court has finally determined a legal question and remanded the case for further proceedings, its decision be~cornes the law of the case and will riot be differently determined on a subsequent appeal in the same case. State v. Burckhard, 1999 ND 64, ¶7, 592 N.W.2d 523; Tom Beuchler Construction, Inc. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987). Thus, the Court of Appeals' decision that genetic testing was still an option upon remand became the law of the case.

C

[11 18] Roger asserts the trial court's decision to allow Jane and Susan to present additional financial evidence exceeded the scope of the remand.

[11 19] After the trial court had ordered genetic testing and found paternity based upon the results of those tests, the court was required to consider an appropriate award of éhild support. See N.D.C.C. § 14-17-14. By that time, more than two years had passed since the original 1997 trial. Roger's tax returns foi~ the interim `c~ould have been unavailable at the time of the original trial, and constituted the best evidence of his financial condition during that time frame. Furthermore, an award of prospective child support should be based upon the parties' most current financial ii~formation. See N.D. Admin. Code § 75-02-04.1-02(7) and (8). Similarly, evidence of Jane's expenses in raising the child while the action and appeals were pending would have been unavailable at the time of trial as well.

[~l 20] The Court of Appeals authorized the trial court to order genetic testing, and it was clearly foreseeable the result of that testing might create a finding of paternity. Under these circumstances, the trial court did not exceed the scope of the remand by allowing evidence of the parties' current financial circumstances for the purposes of determining child support at that time.

III

[IT 211 Roger challenges the trial court's award of back child support for the period from June 1996 through February 1999. Roger does not challenge the amount ~f support awarded for that period or the award of support from March 1999 oti, but argues the lengthy delay in bringing the paternity action, and Jane and Susan's failui~e to earlier request genetic testing, makes it inequitable to order him to pay childsupport for any period prior to February 1999, when the genetic test results established paternity.

[Ii 22] Roger relies upon N.D.C.C. § 14-17-14(4), which authorizes the court to award back child support in a paternity case under N.D.C.C. ch. 14-17. See Rydberg v. Johnson, 1998 ND 160, ¶ 9, 583 N.W.2d 631. At the time relevant to this case, N.D.C.C. § 14-17-14(4) provided, in pertinent part:

The court may limit the father’s liability for past support of the child to the proportion of the expenses already incurred that the court deems just.

The determination of back child support under N.D.C.C. § 14-17-14(4) lies within the trial court’s discretion, and its decision will be reversed on appeal only if the court abused its discretion. Rydberg, at ¶ 6. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Berg v. Berg, 2000 ND 36, ¶ 22, 606 N.W.2d 895.

[¶ 23] Roger argues our opinion in Rydberg is controlling, and requires a determination the trial court abused its discretion in allowing back child support in this case. Rydberg is clearly distinguishable. In that case, the mother brought a paternity action in 1996, when the child was thirteen years old. She sought ten years of back child support, prior to the date the action was filed. Furthermore, the evidence showed that for much of that time the child resided with the father’s mother, not the mother. The trial court denied back child support. On appeal, we concluded the trial court did not abuse its discretion when it refused to order back child support under those circumstances. See Rydberg, 1998 ND 160, ¶¶ 11-12, 583 N.W.2d 631.

[¶ 24] By contrast, in this case Jane and Susan never sought child support for any time prior to June 1996, when Roger was served with the paternity action. For all times during which support is sought Jane had custody of and provided all support for Susan. Although we recognize there was a lengthy delay in initiating the paternity action, that delay has inured to the benefit of Roger in this case because Jane and Susan have not sought child support for that period.

[¶ 25] Roger also asserts it is inequitable to order back child support for the time from June 1996 to February 1999 because it was Jane and Susan’s failure to timely request genetic testing which caused the delays in these proceedings. The trial court considered these factors and ordered back child support commencing in June 1996. Under the circumstances of this case, we conclude the trial court did not abuse its discretion in awarding back child support.

[¶ 26] The judgment and amended judgment are affirmed.

[¶ 27] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., concur.

      . The parties agree the 1999 amendment to N.D.C.C. § 14-17-14 does not apply in this case. See N.D. Sess. Laws ch. 141, § 12.


source: Caselaw Access Project

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

license: Public Domain

text:
    2000 ND 155
    In the Matter of the ESTATE OF Arthur W. KIESOW, Deceased. The North Dakota Department of Human Services, Claimant and Appellant, v. Norma V. Brenden, as Personal Representative of the Estate of Arthur W. Kiesow, deceased, Respondent and Appellee.
    No. 20000081.
    Supreme Court of North Dakota.
    Aug. 18, 2000.

      Blaine L. Nordwall,. Special Assistant Attorney General, Bismarck, N.D., for claimant and appellant.
    Brent M. Olson (submitted on brief), Pringle & Herigstad, P.C., Minot, N.D., for respondent and appellee.
   NEUMANN, Justice.

[¶ 1] The North Dakota Department of Human Services (“Department”) has appealed district court orders denying interest on its claim for medical assistance benefits provided to Arthur W. Kiesow. We affirm.

[¶ 2] Arthur W. Kiesow received medical assistance benefits from the Department before . his death on October 22, 1996. Norma V. Brenden applied for informal probate of Kiesow’s will and appointment ■of a personal representative. -Copies of the petition commencing probate proceedings and a list of legatees, surviving joint tenants, and heirs at law were sent to the Department in accordance with N.D.C.C. §§ 50-06.3-07 and 50-24.1-07. Brenden was appointed the personal representative of Kiesow’s estate.

3] On May 17, 1999, the Department filed with the district court an amended claim for reimbursement of medical assistance of $4,153.79, plus interest of $512.99 from six months after Kiesow’s death. On May 21, 1999, the attorney for the Estate filed a notice informing the Department its amended claim was allowed for medical assistance of $4,153.79, but the claim for interest was disallowed. The notice also informed the Department its claim would be forever barred if the Department did not file a petition or commence a proceeding against the personal representative within 60 days. ■

[¶ 4] On July 15, 1999, the Department petitioned the district court for allbwance of its full amended claim for $4⅞666.78. Brenden moved for partial summary judgment, asserting the $4,153.79 medical assistance claim was valid, but the Department lacks statutory authority to charge interest. The Department moved for summary judgment allowing the full amount of its amended claim. On December 23, 1999, the court issued an order finding “[tjhere is no record that the personal representative published a notice to creditors,” concluding N.D.C.C. § 30.1-19-06(5) authorizes the Department to receive interest on its claim, and disallowing the Department’s claim for interest. The court expláined:

Accrual of interest under 30.1-19-06(5) begins 60 days after the time for original presentation of the claim has expired. Under 30.1-19-03 there are two methods for presenting claims. The first is by publication of notice to creditors and mailing of notices [30.1 — 19— 03(a) ]. The creditors have ninety (90) days to present their claims after first publication. Interest begins to accrue sixty (60) days after the ninety day period has expired. If a notice to creditors is not published, the creditors have three (3) years from date of death within which to file claims [30.1-19-03(b) ]. Thus, interest does not begin to accrue until sixty (60) days after expiration of the three year period.... The earliest date for accrual of interest would be December 22, 1999, which is three years and sixty days from date of death.
... Because there was no publication of notice to creditors, the later time period of three years after death is applicable. Thus, no interest would accrue until sixty days after three years from the date of death.

The Department moved to amend the court’s order. The court denied the motion in an order issued March 10, 2000. The Department appealed both orders.

Section 30.1-19-06(5), N.D.C.C., provides:

Unless otherwise provided in any judgment in another court entered against the personal representative, allowed claims bear interest at the legal rate for the period commencing sixty days after the time for original presentation of the claim has expired unless based on a contract making a provision for interest, in which case allowed claims bear interest in accordance with that provision.

We agree with the district court’s conclusion that, under N.D.C.C. § 30.1-19-06(5), the Department’s claim, like any other allowed claim, bears interest.

[¶ 5] Under N.D.C.C. § 30.1-19-06(5), interest on an allowed claim commences “sixty days after the time for original presentation of the claim has expired.” When “the time for original presentation of the claim has expired” for claims arising before the death of a decedent, is governed by N.D.C.C. § 30.1-19-03(1), which provides, in part:

All claims against a decedent’s estate which arose before the death of the decedent, including claims of the state ... if not barred earlier by other statute of limitations, are barred ... unless presented as follows:
a. Within three months after the date of the first publication and mailing of notice to creditors if notice is given in compliance with section 30.1-19-01; provided, claims barred by the nonclaim statute at the decedent’s domicile before the first publication for claims in this state are also barred in this state.
b. Within three years after the decedent’s death, if notice to creditors has not been published and mailed.

[¶ 6] The Department contends the legislature used the word “and” disjunctively, rather than conjunctively, in the first phrase in N.D.C.C. § 30.1 — 19—03(l)(a), and the time for filing claims expires three months after either the notice to creditors is given or notice is published. Therefore, the Department asserts:

The personal representative provided notice of Mr. Kiesow’s death by mail to the Department on December 2, 1996. The time for the presentation of the Department’s claim expired on March 2, 1997 (three months after the personal representative’s notice). Therefore, the Department’s claim should bear interest at six percent per annum beginning sixty days after March 2, 1997 which is May 1,1997.

[¶ 7] The Department’s argument assumes the information required by N.D.C.C. §§ 50-06.3-07 and 50-24.1-07 constitutes a “notice to creditors” under our probate code. Section 30.1-19-01, N.D.C.C., provides, in part:

Unless notice has already been given under this section, a personal representative upon appointment may publish a notice to creditors whose identities are not reasonably ascertainable.... If the personal representative elects to publish a notice to creditors then, in addition to publishing the notice to creditors, the personal representative shall mail a copy of the notice to those creditors whose identities are known to the personal representative or are reasonably ascertainable and who have not already filed a claim. The notice must announce the personal representative’s appointment and address and notify creditors of the estate to present their claims within three months after the date of the first publication or mailing of the notice or be forever barred.

[Emphasis added.] The copy of the petition commencing probate proceedings and list of legatees, surviving joint tenants, and heirs at law sent to the Department in accordance with N.D.C.C. §§ 50-06.3-07 and 50-24.1-07 is not a notice to creditors complying with N.D.C.C. § 30.1-19-01, and as the district court found, “[t]here is no record that the personal representative published a notice to creditors.” Because a notice to creditors was neither mailed nor published, N.D.C.C. § 30.1 — 19—03(l)(a) does not apply in this case.

[¶ 8] Because- no notice to creditors was mailed or published, the time for original presentation of claims under N.D.C.C. §’30.1-19-06(5) was three years, under N.D.C.C. § 30.1 — 19—03(l)(b). In re Estate of Hooey, 521 N.W.2d 85, 87 (N.D.1994). Thus, under N.D.C.C. § 30.1-19-06(5), the Department’s claim would not have begun to bear interest until three years and sixty days after Kiesow’s death on October 22, 1996. We conclude the district court properly disallowed the Department’s claim for interest.

[¶ 9] Affirmed.

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

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 11] I agree that a copy of the publication commencing probate proceedings and list of legatees, surviving joint tenants, and heirs-at-law sent to the Department under N.D.C.C. §§ 50-06.3-07 and 50-24.1-07 is not a “notice to creditors” under the plain language of N.D.C.C. § 30.1-19-01. I also agree that no notice to creditors was given and that the three-year period for presentation of claims under N.D.C.C. § 30.1-19-06(5) applies. But, I do not understand why, when a personal representative decides no notice will be given, a creditor is not entitled to interest until three years and 60 days after the decedent’s death but is entitled to interest within three months and 60 days of the notice when notice is given. While that is the plain language of the statute, which we are obliged to follow under N.D.C.C. § 1-02-02, it means a creditor may be denied interest by the inaction of the personal representative for over three years.

[¶ 12] We do not decide whether and” means “or” in N.D.C.C. § 30.1-19-03(l)(a). Although I agree with the Department that “or” appears to be the logical meaning, logic does not always prevail in view of N.D.C.C. § 1-02-02. The Legislature is better able to determine what it meant than are we.

[¶ 13] Gerald W. Vande Walle, C.J.

      . The obligation to repay medical assistance benefits arose "upon receipt of the benefits, i.e., prior to the decedent’s death.” In re Estate of Hooey, 521 N.W.2d 85, 87 (N.D.1994).

      . Because no notice to creditors was published, we need not decide whether the legislature used "and” disjunctively or conjunctively in N.D.C.C. § 30.1 — 19—03(l)(a), as an answer to that question is not necessary to a determination of this appeal. See, e.g., In re S.R.A., 2000 ND 46, ¶ 8, 607 N.W.2d 575.


author: SANDSTROM, Justice.

text:
    2000 ND 159
    CITY OF FARGO, Plaintiff and Appellee, v. Duane Eddie EGEBERG, Defendant and Appellant.
    No. 20000027.
    Supreme Court of North Dakota.
    Aug. 18, 2000.
    Rehearing Denied Sept. 18, 2000.

      Timothy Michael O’Keeffe, City Prosecutor, Fargo, N.D., for plaintiff and appel-lee.
    Zenas Baer, Zenas Baer <& Associates, Hawley, MN, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Duane Egeberg appeals from a judgment of conviction resulting from his conditional plea of guilty under N.D.R.Crim.P. 11(a)(2), to the charge of driving while under the influence of intoxicating liquor. We affirm, concluding the officer had probable cause to arrest Ege-berg for driving under the influence and Egeberg’s statements to the officer did not violate his privilege against self-incrimination.

I

[¶2] At about 9:00 p.m. on August 10, 1999, two women were walking on 4th Street in Fargo when a man “pulled down his shorts and exposed his buttocks” to them. One of the women testified she did not see the man’s face, but she described him as “tall and slim, dark hair, he had on a pair of shorts and dark colored sweatshirt.” She testified she believed the man deliberately exposed himself, and she provided law enforcement officers with the license number for the vehicle she saw the man get into and drive from the scene.

[¶ 3] A Fargo police officer took the report from the woman and ran a license check on the 'vehicle. The officer ascertained the registered owner of the vehicle was Egeberg. The officer testified she then proceeded to Egeberg’s address to investigate a possible disorderly conduct. The officer, upon arriving at Egeberg’s address, saw his parked vehicle and knocked on the door. An elderly lady answered and stated Egeberg was her son, and he came to the door. According to the officer, Egeberg generally matched the woman’s’ description of the man, and the officer asked him to step outside the house to speak with her. Egeberg stepped out of the house and spoke with the officer about the incident. According to the officer, Egeberg confirmed he was the owner of the vehicle, and he had left a bar and restaurant and was attempting to tuck his shirt into his shorts when his shorts had fallen. The officer testified Egeberg told her that he then entered his vehicle and drove it home. The officer testified she detected a strong odor of alcohol on Ege-berg during their conversation, and she then began investigating him for driving under the influence of intoxicating liquor. She testified Egeberg submitted to field sobriety tests. According to the officer, she arrested Egeberg for driving under the influence after he completed three field sobriety tests. The officer testified she informed Egeberg of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he agreed to submit to a blood test. The officer testified that while transporting Egeberg to a hospital for a blood test, he stated “he didn’t feel very drunk,” “he only had a few beers,” and “he was almost sober now.”

[¶ 4] The City of Fargo charged Ege-berg with driving under the influence of intoxicating liquor. Egeberg moved to dismiss, claiming the officer lacked probable cause to investigate him for driving under the influence. Egeberg moved to suppress the results of the blood test, claiming an illegal search and seizure. Egeberg also moved to suppress statements he made to the officer, claiming a violation of his Fifth Amendment right against self-incrimination. The trial court denied Egeberg’s motion, ruling the officer had probable cause to arrest Egeberg, there was no illegal search and seizure because the results of the blood test were obtained as the result of a valid arrest, and there was no Miranda violation because any statements made by Egeberg prior to his arrest were made during the course of an investigation when he was free to leave and any statements after his arrest were made after he was given the Miranda warning. Egeberg entered a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2), and appealed.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Egeberg’s appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 29-01-12 and 29-28-06.

II

[¶ 6] We will not reverse a trial court’s findings of fact in preliminary proceedings of a criminal case if, after resolving the conflicts and testimony in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the court’s findings, and the decision is not against the manifest weight of the evidence. State v. Steinmetz, 552 N.W.2d 358, 360 (N.D.1996). Our standard of review recognizes the trial court’s superior opportunity to weigh the credibility of witnesses and testimony. Id. The question whether the facts found by the trial court meet a particular legal standard is a question of law which is fully reviewable. Id.

Ill

[¶ 7] Egeberg argues the officer lacked probable cause to investigate him for driving under the influence. He argues the officer did not have probable cause to transform her investigation for disorderly conduct into an investigation for driving under the influence. He argues the results of the blood test must be suppressed because the officer did not have probable cause to arrest him.

[¶ 8] Probable cause to arrest exists when the facts and circumstances within police officers’ knowledge and of which they have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed. See Seela v. Moore, 1999 ND 243, ¶ 6, 603 N.W.2d 480; Presteng v. Director, N.D. Dep’t of Transp., 1998 ND 114, ¶ 7, 579 N.W.2d 212; Torstenson v. Moore, 1997 ND 159, ¶ 17, 567 N.W.2d 622. An officer need not know facts sufficient to establish guilt. Presteng, at ¶ 7. To establish probable cause to arrest a driver for driving under the influence of alcohol, a law enforcement officer must observe some signs of physical or mental impairment and have reason to believe the driver’s impairment is caused by alcohol. Seela, at ¶ 6; Pres-teng, at ¶ 7. Whether certain facts constitute probable cause is a question of law, which is fully reviewable on appeal. Seela, at ¶ 6. Presteng, at ¶ 7.

[¶ 9] At the suppression hearing, the woman testified she was walking on 4th Street in Fargo when a man deliberately dropped his shorts and then got into a vehicle and drove away. Although she testified she did not see the man’s face, she provided the officer with a general description of the man and the license plate number of the vehicle he drove away. At that time, the officer clearly had reason to further investigate the woman’s complaint. The officer determined Egeberg was the registered owner of the vehicle, and when she went to his address, she saw the vehicle parked there. Egeberg came to the door of the residence, and the officer testified he matched the woman’s general description. The officer asked Ege-berg to step outside of the house, away from his mother, to talk about the incident, and Egeberg complied. The officer testified Egeberg told her that he had left a bar near the incident and he was attempting to tuck his shirt into his shorts when his shorts fell down. The officer testified Egeberg said he then entered his vehicle and drove it home. According to the officer, she detected a strong odor of alcohol on Egeberg’s breath during their conversation, and she asked him to perform field sobriety tests. The officer testified she arrested Egeberg after he completed three field sobriety tests.

[¶ 10] The officer knew Egeberg had a strong odor of alcohol on his breath and he had either deliberately or inadvertently dropped his shorts in public. We need not decide whether Egeberg deliberately or inadvertently dropped his shorts in public, because either scenario, coupled with the strong odor of alcohol on his breath, provides some signs of physical or mental impairment caused by alcohol. Egeberg also admitted driving his vehicle. Although the officer did not specifically testify whether Egeberg failed the field sobriety tests, she testified she arrested him after those tests. The clear implication from the arrest immediately after Egeberg completed those tests is that he failed the tests. During the course of the disorderly conduct investigation, the officer obtained reasonably trustworthy incremental information about Egeberg’s level of intoxication which was sufficient to warrant a reasonable person in believing he had driven while under the influence. Probable cause does not require the commission of an offense be established with absolute certainty, or beyond a reasonable doubt. See State v. Serr, 1998 ND 66, ¶ 10, 575 N.W.2d 896. We believe the incremental facts and circumstances within the officer’s knowledge and of which she had reasonable trustworthy information were sufficient to warrant a person of reasonable caution in believing Egeberg had driven while under the influence of alcohol. We conclude the officer had probable cause to arrest Egeberg for driving under the influence. The results of Egeberg’s blood test were obtained incident to that lawful arrest, and the trial court did not err in refusing to dismiss the charges against him, or in denying his motion to suppress the results of the blood test.

IV

[¶ 11] Egeberg argues statements he made to the officer were obtained in violation of his Fifth Amendment right against self-incrimination. Egeberg argues he was in custody when he was questioned by the officer.

[¶ 12] In Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. 1602, the United States Supreme Court held the prosecution may not use statements made during the “custodial interrogation” of a defendant unless it demonstrates the use of procedural safeguards, now generally referred to as Miranda warnings, to secure the privilege against self-incrimination. The Court defined “custodial interrogation” to mean “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. See State v. Fields, 294 N.W.2d 404, 408 (N.D.1980) (applying custody test for determining application of Miranda).

[¶ 13] The trial court, in its oral decision from the bench, found Egeberg was not in custody when he made statements prior to the Miranda warning, and after he was arrested, he was given the Miranda warning. The court denied Egeberg’s motion to suppress his statements to the officer, stating he was free to leave prior to the arrest and he was read the Miranda warning after he was arrested. The officer testified Egeberg was free to leave when she was initially discussing the incident with him. The court’s finding Egeberg was free to leave is supported by competent evidence, and the officer’s general investigatory questioning of Egeberg outside his residence about a possible disorderly conduct was not a custodial situation. See State v. Martin, 543 N.W.2d 224, 228 (N.D.1996) (holding defendant was not in custody for investigatory questioning in police car during winter storm). The trial court did not err in refusing to suppress those statements. Egeberg’s statements after the Miranda warning were also admissible, and the court did not err in refusing to suppress those statements.

V

[¶ 14] We affirm the conviction.

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


author: NEUMANN, Justice.

text:
    2000 ND 156
    LaVern PEPLINSKI, Plaintiff and Appellant, v. COUNTY OF RICHLAND, a Municipal Corporation; and Christian M. Anderson, Defendants, Third-Party Plaintiffs, and Appellees, v. The United States of America, Farm Service Agency, f/k/a Farmers Home Administration, United States Department of Agriculture; The United States of America, Commodity Credit Corporation, U.S. Department of Agriculture; Nodak Mutual Insurance Company; PHI Financial Services, Inc.; Farmers Union Oil Company of Lidgerwood/Wyndmere, a North Dakota Cooperative; Wyndmere Farmers Elevator, a North Dakota Cooperative; and Farm Credit Services, f/k/a Federal Land Bank Association of St. Paul, Third-Party Defendants
    No. 990376.
    Supreme Court of North Dakota.
    Aug. 18, 2000.
    Rehearing Denied Sept. 18, 2000.

      David A. Garaas, Garaas Law Firm, Fargo, N.D., for plaintiff and appellant.
    Steven J. Lies (on brief), Lies & Bullís, Wahpeton, N.D., for defendant, third-party plaintiff, and appellee, County of Richland.
    Christian M. Anderson, Anderson Law Office, Wahpeton, N.D., for defendant, third-party, plaintiff, and appellee, Christian M. Anderson.
   NEUMANN, Justice.

[¶ 1] Lavern Peplinski appealed from an amended judgment quieting title in 80 acres in Christian M. Anderson. We hold the proceedings for a tax sale and the issuance of a tax deed for the 80 acres complied with applicable statutory requirements. We affirm.

I

[¶ 2] Peplinski was the record title owner of 80 acres of agricultural land in Rich-land County, and he failed to pay his 1991 real estate taxes for the land. Between November 1 and November 15, 1992, Rich-land County mailed Peplinski notice of a December tax sale of the 80 acres. See N.D.C.C. § 57-24-01. Peplinski denied receiving the notice. On Tuesday December 1 and Friday December 4, 1992, Rich-land County caused notice of a scheduled tax sale beginning on December 8,1992, to be published in the official county newspaper. Richland County concedes the publication did not comply with N.D.C.C. § 57-24-07, which requires notice to be published once a week for two consecutive weeks with the first publication at least 14 days before the sale. On December 10, 1992, Richland County purchased the 80 acres at the tax sale and received a tax sale certificate for the land. See N.D.C.C. § 57-24-23. Peplinski also failed to pay his 1992 through 1995 real estate taxes for the 80 acres, which resulted in the county receiving subsequent tax sale certificates for those years under N.D.C.C. § 57-24-25.

[¶ 3] Richland County prepared a May 20, 1996 notice of expiration of the period of redemption for the 1991 taxes, stating the amount necessary to redeem the land was $607.45. See N.D.C.C. §§ 57-28-01 and 57-28-02. In May 1996, Richland County mailed Peplinski the notice by certified mail, restricted delivery, and also mailed him a “courtesy” notice. Richland County also mailed the notice by certified mail to all lien holders of record. The notice said a tax deed would be issued unless the property was redeemed on or before October 1. See N.D.C.C. § 57-28-02. The notice of expiration of the period of redemption sent by certified mail to Peplinski was returned undelivered despite two efforts by post office employees to deliver the notice at Peplinski’s home and despite notices to Peplinski to pick up his certified mail at the post office. Richland County also published notice of expiration of the redemption period in the official county newspaper on July 28, August 4, and August 11, 1996. See N.D.C.C. § 57-28-06.

[¶ 4] On September 12, 1996, Richland County assigned all of its right, title and interest in the 80 acres to Anderson for $1,753.58. On October 2, 1996, Peplinski called the Richard County Treasurer’s Office and was informed it was too late to redeem the 80 acres. Richland County issued a tax deed for the 80 acres to Anderson on October 3, 1996. Peplinski thereafter tried to redeem the land by tendering payment to Richland County in October 1996, but Richland County rejected his redemption attempts.

[¶ 5] Peplinski initiated this quiet title action against Richland County and Anderson, claiming the proceedings for the tax sale and the issuance of the tax deed were deficient. Anderson answered, asserting title to the land under the tax deed. Anderson also initiated a quiet title action against Peplinski’s potential judgment or lien creditors. Peplinski subsequently amended his complaint to allege the 80 acres were part of his homestead. All lien holders except the United States defaulted, and the United States appeared and conceded if the tax sale was upheld, its lien position was terminated. After an evidentiary hearing, the trial court quieted title in the land in Anderson. Peplinski appealed.

II

[¶ 6] To understand the issues raised in this appeal, we briefly summarize the applicable statutory scheme regarding tax sales and issuance of a tax deed for delinquent real estate taxes. See fn.l. After real estate taxes are levied for a particular year, the county treasurer mails tax statements by December 26 of that year to property owners at their last known address. See N.D.C.C. § 57-20-07.1. If a property owner fails to pay those taxes, the treasurer mails each owner a notice between November 1 and November 15 of the following year which states the owners property will be sold at an annual tax sale on the second Tuesday of December. See N.D.C.C. § 57-24-01. In addition to the mailed notice, the county auditor posts a list of the delinquent real estate taxes in the auditor’s office, see N.D.C.C. §§ 57-24-02 and 27-24-03, and causes notice of the tax sale to be published in the official county newspaper. See N.D.C.C. § 57-24-07. If the taxes remain unpaid, the auditor may sell the property at a public auction beginning on the second Tuesday of December for a bid equal to the total amount of taxes, penalties, and sale costs. See N.D.C.C. § 57-24-12. A purchaser at a tax sale is entitled to a tax sale certificate describing the land purchased, the sum paid, and the time when the purchaser will be entitled to a tax deed. See N.D.C.C. § 57-24-19. If there is no private bidder at the sale, the treasurer bids for the county, which acquires the same legal and equitable rights as a private bidder, see N.D.C.C. § 54-27-14, and a tax sale certificate is deemed issued to the county. See N.D.C.C. § 57-24-23. A tax sale certificate is presumptive evidence of the regularity of all prior proceedings, see N.D.C.C. § 57-24-19, and is prima facie evidence that all requirements for the sale were satisfied. See N.D.C.C. § 57-24-29. A tax sale may not be set aside or held invalid unless a party objecting to the sale proves notice of the sale as required by law was not given. See N.D.C.C. § 57-24-29.

[¶ 7] Chapter 57-26, N.D.C.C., outlines procedures for redeeming property sold at a tax sale. After the tax sale, any person having an interest in the property can redeem it by paying the amount it sold for, plus interest, before the expiration of the redemption period. See N.D.C.C. §§ 57-26-02 and 57-26-03. Under N.D.C.C. § 57-26-01, a tax sale certificate, whether owned by the county or anyone else, may be redeemed at any time before the period of redemption expires and within 90 days after notice of the expiration of the redemption period is given as required by law.

[¶ 8] If the land is not redeemed, N.D.C.C. ch. 57-27 outlines the rights of a private purchaser, and N.D.C.C. ch. 57-28 outlines the rights of a county. If the property is not redeemed within three years after the county acquires a tax sale certificate, the auditor serves notice by certified mail before June 1 that the redemption period will expire on October 1, see N.D.C.C. §§ 57-28-01 through 57-28-05, and causes notice to be published once before August 1 in the official county newspaper. See N.D.C.C. § 57-28-06. If the property is not redeemed on or before the expiration of the redemption period on October 1, N.D.C.C. § 57-28-09 authorizes the auditor to issue a tax deed for the property. Under N.D.C.C.- § 57-28-08, the failure of an owner, mortgagee, or lien holder to redeem the land before expiration of the period of redemption operates to pass any interest of the owner to the county, to foreclose all rights of redemption, and to waive all errors, irregularities, or omissions which do not affect substantial rights, except jurisdictional defects. We consider Peplinski’s arguments within the context of that statutory scheme.

Ill

[¶ 9] Peplinski argues the entire tax sale proceeding was invalid because the trial court found Richland County’s publication of the notice of the tax sale did not comply with N.D.C.C. § 57-24-07. The trial court found the notice of tax sale published on December 1 and December 4, 1992, for the sale on December 10, 1992, did not comply with N.D.C.C. § 57-24-07, which requires notice to be published once a week for two consecutive weeks with the first publication at least 14 days before the sale. The court nevertheless decided the irregularities in the publication were not jurisdictional and did not invalidate the tax sale proceeding. Peplinski argues Rich-land County’s failure to strictly follow the publication requirements in N.D.C.C. § 57-24-07 is a jurisdictional defect under Dever v. Cornwell, 10 N.D. 123, 86 N.W. 227 (1901) and Fibelstad v. Grant County, 474 N.W.2d 54 (N.D.1991), -and denied him due process.

[¶ 10] In Dever, 10 N.D. at 129-30, 86 N.W. at 230, the governing statute, Section 1255 of the Revised Codes of 1895, required publication of a notice of tax sale once a week for three consecutive weeks preceding the sale. This Court construed that language to mean publication must continue for and during three full weeks of seven days each, a total period of 21 days, preceding the sale. Dever, 10 N.D. at 129-30, 86 N.W. at 230-31. There, the first publication was 18 days before the sale, not 21 days as required by that statute, and this Court said the publication was insufficient, the defect was jurisdictional, no legal notice had been given prior to the sale, and the deed issued after the sale was void. Id.

[¶ 11] In Fibelstad, 474 N.W.2d at 60, we discussed the meaning of “jurisdictional defect” and quoting from Remmich v. Wagner, 77 N.D. 120, 125, 41 N.W.2d 170, 173 (1950), said:

[A] mere irregularity in the proof of the making and posting of the tax lists would not be sufficient to set aside the tax sale unless that became an essential part of proving that the notice of the tax sale was not given. In other words, before the deed based on that tax sale could be set aside under the evidence of this ease the proof must fail to show that the notice of the sale was given as required by law. It is the giving of the notice of tax sale that is jurisdictional to a valid tax sale. It is only for jurisdictional defects that this tax deed could be set aside at this time.

(Emphasis in original). In Fibelstad, at 61-62, we held the total failure to publish notice of a tax sale was a jurisdictional defect which rendered the tax sale invalid under N.D.C.C. § 57-28-08(3).

[¶ 12] In K & L Homes, Inc. v. Burleigh County, 478 N.W.2d 376, 378 (N.D.1991), we held the posting of a list of properties to be sold at a tax sale in two public places, instead of four as required by N.D.C.C. § 57-24-07, was a non-jurisdictional defect which did not render the tax sale invalid, We said there was not a total failure of notice as in Fibelstad and “it is the publication in the newspaper that is the notice of sale required by that statute, not the posting of the list of delinquent lands.” K & L Homes, at 378-79.

[¶ 13] In Van Roden Homes, Inc. v. Dakota View Estates, 546 N.W.2d 843, 847-48 (N.D.1996), we held there was no jurisdictional defect in a tax sale notice which was mailed to the property owner in August rather than between November 1 and 15 as required by N.D.C.C. § 57-24-01 and which stated the “tax” rather than the “lots” would be sold. We said it was the giving of the notice of the tax sale that was jurisdictional, and a mere irregularity in the notice was not sufficient to set aside the tax sale unless the irregularity was an essential part of proving notice of the tax sale was not given. Van Raden, at 848. We held the timing and form of the notice were irregularities that were cured by the issuance of tax sale certificates. Id.

[¶ 14] Our recent cases indicate the giving of actual notice of the tax sale is jurisdictional, and to be a jurisdictional defect, any irregularity in the notice must be an essential part of proving no notice of the sale was given. When Dever was decided, the governing statute was Section 1255 of the Revised Codes of 1895, which required notice by publication. The provisions requiring the county treasurer to give owners notice by mail were enacted by initiated measure on November 8, 1932. See 1933 N.D. Laws, p. 500. See also K & L Homes, 478 N.W.2d at 379 n. 1. Although notice by publication serves as “an additional means of notifying the owner as well as others with an interest in the property ‘that a sale will be had at a certain time and place,’ ’’and is “the primary means of notifying potential buyers in the general public, thereby increasing the likelihood that the lands will be sold and lost tax revenue recovered,” the “ ‘essential part of the notice of sale’ ” is that the sale will be held at a certain time and place. Fibelstad, 474 N.W.2d at 61.

[¶ 15] Richland County did not precisely comply with all the publication requirements for notice of the tax sale, but unlike Fibelstad where there was no publication of the notice of sale, here there was publication of a notice of sale which indicated the sale was at a certain time and place. Although there were irregularities in the published notice, the trial court found the Richland County treasurer mailed a notice of the tax sale to Peplinski between the first and fifteenth of November. Peplinski claims he did not receive that notice, but the trial court discredited his testimony, and specifically decided the evidence supported a determination Pep-linski received the mailed notice of the tax sale. Simply because Peplinski may not have read the mailed notice does not render it invalid. See Mund v. Rambough, 432 N.W.2d 50, 54 (N.D.1988); Coverston v. Grand Forks County, 74 N.D. 552, 555-57, 23 N.W.2d 746, 749 (1946). The trial court found Peplinski had notice of the tax sale, and on this record, the court’s finding is not clearly erroneous.

[¶ 16] We conclude the defective notice by publication in this case involved an irregularity in the timing of the notice by publication, rather than an essential part of proving no notice was given. We conclude the defective publication coupled with Peplinski’s actual receipt of the mailed notice of the tax sale satisfied the jurisdictional requirements for the tax sale. We hold the defect in notice of publication in this case was not jurisdictional and did not violate due process or invalidate the tax sale.

IV

[¶ 17] Peplinski raises several issues involving his right to redeem the land. Because the failure of an owner to redeem property before the redemption period expires operates to waive all errors, irregularities, or omissions which do not affect substantial rights of the parties, except jurisdictional defects, see N.D.C.C. § 57-28-08(3), we initially consider whether Peplinski failed to redeem before the redemption period expired.

A

[¶ 18] Peplinski argues the redemption period did not expire on October 1, 1996. He argues the redemption period under N.D.C.C. § 57-26-01 is ninety days after notice is given as required by law. He claims notice was not “given” to him by the May 1996 certified mailing of the expiration of the redemption period because it did not result in actual delivery to him. He argues the only notice of expiration of the redemption period “given” to him was the notice by publication, which was first published on July 28, 1996, and he argues he attempted to redeem the land within ninety days of that notice.

[¶ 19] Chapter 57-28, N.D.C.C., outlines the procedure when the county is the original purchaser of the land and receives the tax sale certificate. Under N.D.C.C. § 57-28-01, the county shall give notice of the expiration of the period of redemption on or before June 1 of each year when three or more years have passed since tax sale certificates were issued to the county and the property has not been redeemed or assigned. The period of redemption for property bid in by the county expires on October 1 after service of the notice of expiration of the period of redemption. See N.D.C.C. § 57-28-02. Under N.D.C.C. § 57-26-01, a tax sale certificate may be redeemed at any time before the period of redemption expires and within 90 days after the notice of the expiration of the redemption period is given as required by law. When those provisions are construed together to give meaning to each statute, the ninety day requirement of N.D.C.C. § 57-26-01 is satisfied if the county is the original purchaser of the property and has the tax sale certifícate when it gives the owner notice of the expiration of the period of redemption by certified mail on or before June 1. Under that statutory scheme, the issue is whether the notice by certified mail to Peplinski was defective.

[¶ 20] In Mund, 432 N.W.2d at 54, we rejected a former landowner’s claim a notice of expiration of the period of redemption was defective:

Section 57-28-04, N.D.C.C., requires the county auditor to notify the landowner of the expiration of the period of redemption by means of registered or certified mail, return receipt requested. We said in Brovrn v. Otesa, 80 N.W.2d 92, 99 (N.D.1957), that
“[w]here the law prescribes a written notice as a method of giving information, the receipt of a letter containing the information is conclusive proof of knowledge of the purpose thereof. Whether as a matter of fact the recipient reads or takes notice of the letter makes no difference, because the notice contemplated has been given.”

In Mund, at 54, we concluded the county fulfilled the statutory requirements for notice in N.D.C.C. § 57-28-04 when it mailed the notice by certified mail, return receipt requested, to the owner’s address, and the fact the owner did not actually receive the notice in her hand or read it did not cause the service to be improper. In Mund, at 58, we also held service of notice by registered or certified mail did not deprive the former landowner of due process.

[¶ 21] Here, the trial court found Rich-land County mailed Peplinski a notice of expiration of the period of redemption by registered mail, restricted delivery in May 1996, and the mailed notice was returned undelivered despite two efforts by post office employees to deliver the notice at Peplinski’s home and despite notices to Peplinski to pick up his certified mail at the post office. The court also found Rich-land County mailed a “courtesy” notice of the expiration of the period of redemption to Peplinski, and concluded his failure to accept delivery of the mail or failure to read the published notice did not alter the effect of service. Although Peplinski claims there was no specific finding he refused delivery of his mail, the trial court’s written findings state they incorporated the court’s oral findings. Peplinski has failed to provide this Court with a complete transcript of the trial court proceedings, including the court’s oral findings, and he must assume the consequences for his failure. See Owan, 347 N.W.2d at 579. We reject Peplinski’s claim notice of expiration of the period of redemption was not “given” to him by the certified and courtesy mailings in May 1996. See Mund, 432 N.W.2d at 54; Coverston, 74 N.D. at 556-57, 23 N.W.2d at 749. We conclude Peplinski’s period of redemption expired on October 1, 1996.

B

[¶ 22] Peplinski argues Richland County was required to give him personal notice of the expiration of the period of redemption under N.D.C.C. § 57-27-02(2) because the 80 acres were part of his homestead in 1996. Peplinski’s residential buildings were located on the W/fc of the SWy4 of section 34 and the 80 acres that are the subject of this action are described as the E½ of the SW]4 of section 34. Pep-linski claims he was entitled to personal service of the notice of expiration of the period of redemption, because the 80 acres represented his homestead and were part of 240 contiguous acres of land that were worth less than $80,000. He argues a homestead arises by operation of law contemporaneously with the occupancy and use of the premises as a home, and he was not required to make a declaration of homestead under N.D.C.C. § 47-18-17. Peplinski argues the property was part of his homestead and was not subject to forced sale for real estate taxes except by judicial action.

[¶ 23] Under N.D.C.C. § 57-27-02(2), personal service of the notice of expiration of the redemption period is required if assessment records indicate the presence of residential buildings on the property. The status of property as a homestead involves factual determinations. See Farmers State Bank v. Slaubaugh, 366 N.W.2d 804, 808 (N.D.1985); Larson v. Cole, 76 N.D. 32, 37-41, 33 N.W.2d 325, 326-27 (1948). The trial court found there were no residential buildings on the 80-acre tract of land and the land was acquired and assessed as a tract distinct from the adjacent land upon which Peplin-ski’s residence was located. On this record, the trial court’s findings are not clearly erroneous and are dispositive of Peplinski’s homestead arguments.

C

[¶ 24] Peplinski argues Richland County was required to give notice of expiration of the period of redemption to his wife because she had a record interest in the property as a mortgagor. He argues his redemption rights were extended because of the defects in notice to his wife.

[IT 25] Under N.D.C.C. § 57-27-02(1), notice of the expiration of the period of redemption must be directed to “the person in whose name the property described in the certificate is assessed, to all lien holders of record, and to all mortgagees or assignees of mortgages holding unsatisfied recorded mortgages.” The county auditor must serve the notice by registered mail “upon each mortgagee, lien holder, and other person with an interest in the property.” N.D.C.C. § 57-27-02(5).

[¶ 26] Peplinski’s wife is not a party to this action, and the parties stipulated Pep-linski was the record title owner of the 80 acres. Assuming Peplinski’s wife was a person with an interest in the property, the trial court concluded the notice of the expiration of the period of. redemption was served on all persons entitled to notice. Peplinski’s wife essentially testified she was aware the redemption period was running and the land would be lost if Peplinski did not pay the taxes. Although there are no specific written findings that Peplinski’s wife received notice of the expiration of the period of redemption, the testimony of Peplinski’s wife supports a finding she had actual notice of the expiration of the period of redemption. Peplinski must assume the consequences for his failure to provide a complete transcript of the court’s oral findings, see Owan, 347 N.W.2d at 579, and on this record, we reject his argument about notice to his wife.

D

[¶ 27] Peplinski argues Richland County’s notice of expiration of the period of redemption was not reasonable under the circumstances and violated his due process rights.

[¶ 28] Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pending proceeding and to afford them an opportunity to present objections. E.g. Mund, 432 N.W.2d at 58. The trial court’s written findings support a conclusion the certified and courtesy mailings to Peplinski in May 1996 were reasonably calculated to provide him notice and an opportunity to redeem. Under these circumstances, Peplinski was not deprived due process.

E

[¶ 29] Peplinski argues Anderson’s failure to give further notice of the expiration of the period of redemption vitiated the tax deed. Peplinski argues Anderson was required to give a new notice of expiration of the period of redemption when Anderson took the assignment from Rich-land County in September 1996.

[¶ 30] Peplinski has cited no authority which requires Anderson to provide a new notice of expiration of the period of redemption when he took the assignment from Richland County. Section 57-27-07, N.D.C.C., contemplates a county’s interest may be assigned “at any time” prior to redemption of the property. Here, Anderson received the assignment after Richland County gave Peplinski the required redemption notices by mail and publication. Peplinski’s reliance on Axt v. Bank of America, 72 N.D. 600, 10 N.W.2d 430 (1943), is misplaced because that case stands for the proposition that the sufficiency of the notice of expiration of the period of redemption depends on the status of the holder of the tax sale certificate when the notice of expiration was given. In this case, the notice of expiration was given when Richland County was the holder of the tax sale certificate, and we reject Peplinski’s claim Aiderson was required to give further notice after he took the assignment from Richland County.

F

[¶31] Peplinski argues Richland County’s failure to charge Anderson the right price for the tax sale certificate vitiated the certificate and resulting tax deed. Peplinski argues the amount paid by Anderson for the tax sale certificate was not enough under N.D.C.C. § 57-27-07 to pay the amount Richland County bid for the property, interest from the date of the tax sale at the rate of six percent per annum, and the amount of any later delinquent taxes. Peplinski argues if the sale to Anderson was valid, he was entitled to further notice — including the right to know the true redemption price. Peplinski’s claims are nonjurisdictional and his failure to redeem during the period of redemption waived his right to complain about the price paid by Anderson. See N.D.C.C. § 57-28-08(3). See also Stutsman v. Smith, 73 N.D. 664, 672, 18 N.W.2d 639, 642 (1945).

V

[¶ 32] Peplinski argues as a mortgagor with the United States, he is in privity with the United States and can assert the continued priority and redemption rights of its two mortgages, which were recorded before the tax sale proceeding. Before trial, the United States waived its right to appear and conceded if the tax sale was upheld, its rights as mortgagee were terminated. The trial court decided the United States had no interest or estate as lien holder or otherwise in the property. Peplinski does not stand in any better position than the United States under its waiver.

VI

[¶ 33] We affirm the amended judgment.

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

      . For taxable years beginning after December 31, 1998, the statutory scheme for delinquent ■ real estate taxes has been changed. See 1999 N.D. Sess. Laws ch. 503. The 1999 legislation streamlined the collection process by eliminating the tax sale and replacing it with a tax lien on the property with foreclosure and issuance of a tax deed to the county if the taxes were not paid by October 1 of the fourth year following application of the tax lien. See Hearing on S.B. 2334 Before Senate Finance and Taxation Comm., 56th N.D. Legis. Sess. (Jan. 25, 1999) (testimony of Leslie Korgel, McLean County Treasurer). This appeal is governed by the law in effect before the 1999 amendments.

      . At the time of the tax sale, N.D.C.C. § 57-24-07 provided:
      The county auditor shall give notice of the delinquent real estate tax sale by publishing in the official newspaper of the county a notice, over his signature, published once each week for two successive weeks, the first publication to be made at least fourteen days prior to such sale. Each notice, must contain the information that all lands upon which taxes for the preceding year remain unpaid will be sold, and must state the time and place of sale. The notice may not contain the name of the owner of any lot or tract, nor the description thereof, but it must state that a list of all lands subject to such sale is on file and may be examined at the office of the county auditor, and that a copy of such list with names of the owners and descriptions of the lands or tracts involved, and the total amount of taxes, penalties, interest, and cost of advertising, has been posted in the office of the county auditor and in four or more public places in the county, giving the name and location of such places of posting.

      . Before N.D.C.C. § 57-24-07 was repealed in 1999, see fn.l, it was amended in 1995 to delete the requirement for posting the list of properties in four public places. See 1995 N.D. Sess. Laws ch. 556, § 1.

      . Peplinski has failed to provide this Court with a complete transcript of proceedings in the trial court. The trial court’s written findings of fact state it specifically incorporated by reference all findings made in open court at the trial. Additionally, when the trial court denied Peplinski’s motion to amend the findings, the court’s written order said its denial was based on determinations and conclusions made in open court, which it incorporated by reference. Peplinski has not provided this Court with a complete transcript of either proceeding and he must assume the consequences for his failure. See Owan v. Kindel, 347 N.W.2d 577, 579 (N.D.1984).


text:
    2000 ND 152
    STATE of North Dakota, Plaintiff and Appellee, v. Vance Owen STEEN, Defendant and Appellant.
    Nos. 990332 to 990334.
    Supreme Court of North Dakota.
    Aug. 18, 2000.

      John R. Gregg, Special Assistant State’s Attorney, Bottineau, for plaintiff and ap-pellee.
    Richard B. Thomas, Thomas & Thomas, Minot, for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Vance Owen Steen appealed from criminal judgments entered on jury verdicts finding him guilty of negligent homicide, leaving the scene of an accident involving death or personal injury, and driving in violation of a restricted license. We conclude submission to the jury of an incorrect verdict form on negligent homicide was harmless error and the evidence was sufficient to support Steen’s conviction for leaving the scene of an accident. We further conclude the trial court failed to comply with N.D.R.Crim.P. 32(c)(4)(E), and we remand to the court for the limited purpose of preparing and attaching its findings on controverted statements to the presentence investigation report. We affirm and remand.

I

[¶ 2] During the afternoon of September 17, 1998, Steen drove from his father’s farmstead near Maxbass to Minot to visit Darren Foster, a friend whose wife had given birth to a baby girl the previous day. Before going to the hospital, they met at a Minot restaurant and drank several beers. After visiting Foster’s wife and baby, Foster and Steen left the hospital about 8:30 p.m. in Steen’s car. Foster had decided to spend the night at Steen’s home, rather than drive all the way back to his home in Rolla. Steen lived with his girlfriend in a trailer on his father’s farmstead. Before leaving for Steen’s home, they went to several Minot bars and drank more beer.

[¶ 3] Foster and Steen left Minot shortly before 1 a.m. According to Steen, he drove, rather than Foster, because “it was my car and I thought he was drunk — a lot drunker.” They purchased more beer from an off-sale establishment and left, driving on back roads to Steen’s farmstead. After reaching the junction of Bottineau County Highways 30 and 17C near the farmstead, Steen thought his cows might be loose and drove one mile north of the intersection. Steen discovered cows out on the road and attempted to chase them back into a fenced pasture with the car. Steen’s car became stuck in the process, and after unsuccessfully attempting to free the car, the two men began to walk to the farmstead so Steen could use his father’s pickup to pull the car out of the ditch. After walking about 200 yards south on a gravel road toward the intersection, Steen decided to take a shortcut and walk diagonally across a field directly to the farmstead about three-quarters of a mile away. Foster stayed on the road.

[¶ 4] Steen got his father’s pickup, drove about one-half mile west to the intersection and proceeded north, traveling between 40 and 45 miles per hour. According to Steen, he saw an object lying on the road and drove past it. Realizing it could have been a body, he returned and found Foster lying on the road. Steen said when he found Foster on the road, Foster was gasping. Steen drove the pickup back to the farmstead, awakened his girlfriend and told her to call 911. Steen, who was hysterical, told his girlfriend he thought Foster had been run over. His girlfriend said Steen “thought he ran him over but didn’t know for sure if he did.” Steen also told his girlfriend he did not think he saw any other vehicles on the road. Steen awakened his father and they drove back to the scene and waited for emergency assistance. The ambulance arrived about 3:30 a.m., and deputy sheriff and highway patrol officers arrived shortly afterward. Foster was pronounced dead at the scene.

[¶ 5] An autopsy revealed Foster had been run over while lying on his back. He had tire marks on his hip, chest and arm. His ribs and sternum were fractured and his heart had been ruptured. According to the pathologist, death would have resulted within three minutes of the rupture.

[¶ 6] Steen was charged with negligent homicide under N.D.C.C. § 12.1-16-03, driving in violation of a restricted license under N.D.C.C. § 39-06-17, and leaving the scene of an accident involving death or personal injury under N.D.C.C. § 39-08-04. The jury found Steen guilty of all counts, and Steen was sentenced to five years of imprisonment, with two years suspended and five years of supervised probation beginning at the time of his release. Steen appealed.

II

[¶ 7] Steen argues his negligent homicide conviction should be reversed because the jury was given a general verdict form for negligent homicide which contained a special interrogatory inquiring whether the conviction was based in part on evidence of Steen operating a motor vehicle while under the influence of alcohol.

A

[¶ 8] At trial, the prosecutor requested the following verdict form be submitted to the jury.

We, the Jury duly impaneled and sworn in the above-entitled action, do find the Defendant, Vance Owen Steen, GUILTY of the crime of negligent homicide, as charged in the Information.
If you find the Defendant, Vance Owen Steen, guilty of the offense of negligent homicide as charged in the Information, please answer the following question: Is the conviction based in part on evidence of Vance Owen Steen’s operation of a motor vehicle while under the influence of alcohol? ANSWER: _Yes_No

The prosecutor argued the special interrogatory was appropriate because, under N.D.C.C. § 39-08-01.2(l)(a), a mandatory minimum sentence is required if a “person is convicted of an offense under chapter 12.1-16 and the conviction is based in part on the evidence of the person’s operation of a motor vehicle while under the influence of alcohol or drugs.... ” Steen argued the interrogatory was inappropriate because it related to a sentencing matter which was for the trial court to decide at the time of sentencing. The trial court agreed with Steen’s argument, rejected the verdict form with the special interrogatory, and ruled a general verdict form would be used. Nevertheless, the jury was inadvertently given the rejected form for its deliberations, and answered the special interrogatory in the affirmative.

[¶ 9] Generally, the rules of criminal procedure do not provide for special verdicts or general verdicts accompanied by special interrogatories as do the civil rules, and the only proper verdicts are guilty or not guilty. State v. Morris, 316 N.W.2d 80, 83 (N.D.1982). Special verdicts or interrogatories in criminal cases are disfavored because they may “coerce the jurors into rendering a guilty verdict,” State v. Sheldon, 301 N.W.2d 604, 614 (N.D.1980), or “destroy[ ] the ability of the jury to deliberate upon the issue of guilt or innocence free of extraneous influences.” State v. Simon, 79 N.J. 191, 398 A.2d 861, 865 (1979). See also State v. Bartkowski, 290 N.W.2d 218, 222 (N.D.1980); 3 Wright, Federal Practice and Procedure: Criminal 2d, § 512 (2d ed.1982); 26 Moore’s Federal Practice § 631.03[1] (3d ed.1997). Thus, N.D.R.Crim.P. 31(e) provides for a special verdict form only in very limited circumstances in criminal trials, relating only to certain defenses raised by the defendant and overt acts of treason. See State v. Vetsch, 368 N.W.2d 547, 552 n. 5 (N.D.1985). Several courts have held the use of jury interrogatories in criminal trials is not per se impermissible. Their use has been approved in criminal trials where the special findings benefit the defendant, were neither inherently prejudicial nor predeterminative of the jury’s verdict, or assisted the court for sentencing purposes. See, e.g., United States v. Pforzheimer, 826 F.2d 200, 205-06 (2d Cir.1987); Commonwealth v. Golston, 373 Mass. 249, 366 N.E.2d 744, 752 (1977); People v. Ribowsky, 77 N.Y.2d 284, 567 N.Y.S.2d 392, 568 N.E.2d 1197, 1201 (1991). As the Minnesota Court of Appeals summarized in State v. Robinson, 476 N.W.2d 896, 903 (Minn.Ct.App.1991), aff'd as modified, 480 N.W.2d 644 (Minn.1992), “a special interrogatory may be used in a criminal case if it relates solely to sentencing and does not tend to lead a jury to a finding of guilt.”

[¶ 10] In line with this reasoning, we have interpreted N.D.C.C. § 12.1-32-02.1, which provides minimum prison terms for armed offenders, to require the jury to make a special finding that in the course of committing the offense, the accused was in possession of a dangerous weapon, an explosive, or a firearm. See, e.g., State v. Sheldon, 312 N.W.2d 367, 370 (N.D.1981). This result was also called for by the statute, which specifically provides the mandatory prison terms apply “only when possession of a dangerous weapon, explosive, destructive device, or firearm has been charged and admitted or found to be true in the manner provided by law.... ” N.D.C.C. § 12.1-32-02.1 (emphasis added). On the other hand, the trial court rather than the jury, has the duty, in accordance with the terms of the statute, of determining dangerous special and habitual offender status under N.D.C.C. § 12.1-32-09. See, e.g., State v. Marshall, 1999 ND 242, ¶¶ 6-8, 603 N.W.2d 878.'

[¶ 11] We believe the trial court properly rejected the special interrogatory proposed by the prosecutor. Under N.D.C.C. § 39-08-01.2(l)(a) and (2), a court is required to give a mandatory minimum sentence of imprisonment if a negligent homicide conviction is based in part on evidence of the person’s operating a motor vehicle while under the influence of alcohol, and is prohibited from suspending the sentence “unless the court finds that manifest injustice would result from imposition of the sentence.” The statute is silent about whether a judge or a jury is to decide whether a conviction is based in part .on evidence of a person driving while under the influence of alcohol. Punishment, however, is not the concern of the jury. State v. Mounts, 484 N.W.2d 843, 845 (N.D.1992); State v. Huber, 361 N.W.2d 236, 238 (N.D.1985).

[¶ 12] Because the statute provides no guidance and special verdicts and interrogatories in criminal cases are disfavored, we leave to the court, as part of the sentencing function, the duty to decide the factual issue whether a negligent homicide conviction is based in part on evidence of the defendant’s operation of a motor vehicle while under the influence of alcohol. The judge who has presided over the trial is able to assess whether evidence of driving under the influence of alcohol has played a part in the conviction. As a matter relevant to sentencing, it is proper for the judge, rather than the jury, to decide the question.

B

[¶ 13] Although the verdict form with the special interrogatory was erroneously submitted to the jury, an error is harmless and not grounds for reversal under N.D.R.Crim.P. 52(a) if it does not prejudice substantial rights of the accused. State v. Eugene, 536 N.W.2d 692, 696 (N.D.1995). Our objective in reviewing nonconstitutional trial error is to determine whether the error was so prejudicial that substantial injury occurred and a different decision would have resulted without. the error. State v. Murchison, 541 N.W.2d 435, 442 (N.D.1995).

[¶ 14] The error in submitting the incorrect verdict form to the jury was not prejudicial to Steen because the form instructed the jury to answer the interrogatory only if the jury found Steen guilty of negligent homicide. A jury is presumed to follow instructions provided by the court. State v. Osier, 1999 ND 28, ¶ 24, 590 N.W.2d 205. Because the interrogatory chronologically followed the general verdict, the jury necessarily found Steen guilty of negligent homicide- before addressing the interrogatory. Because the jury was first required to make a finding of guilt before the interrogatory could be answered, we conclude the interrogatory could not have led to a finding of guilt. See State v. Schmitz, 559 N.W.2d 701, 706 (Minn.Ct.App.1997); Robinson, 476 N.W.2d at 903.

[¶ 15] We reject Steen’s argument that the erroneous verdict form tainted the verdict itself because the prosecutor questioned witnesses about his consumption of alcohol the evening before the accident. The inadvertent admission of the incorrect verdict form did not open the door for the jury’s consideration of evidence of Steen’s alcohol consumption because evidence of intoxication can be relevant in a negligent homicide case regardless of the.mandatory minimum sentence provisions of N.D.C.C. § 39-08-01.2(l)(a) and (2). This Court has held evidence of- intoxication is relevant in a negligent homicide case if it is indicative of a defendant’s condition at a relevant time. See State v. Winkler, 552 N.W.2d 347, 356-57 (N.D.1996); State v. Smaage, 547 N.W.2d 916, 921-22 (N.D.1996); State v. Tranby, 437 N.W.2d 817, 822-24 (N.D.1989); State v. Erickson, 241 N.W.2d 854, 861-62 (N.D.1976). Under the circumstances, evidence of driving under the influence is relevant to- both the crime charged and the imposition of a mandatory minimum sentence. The submission of the incorrect verdict form does not constitute reversible error.

Ill

[¶ 16] Steen argues the evidence was insufficient to support his conviction for leaving the scene of an accident involving death or personal injury. Although Steen concedes he did not move for judgment of acquittal under N.D.R.Crim.P. 29, and therefore failed to preserve the issue of sufficiency of the evidence for review, see, e.g., City of Bismarck v. Towne, 1999 ND 49, ¶ 8, 590 N.W.2d 893, he argues the insufficiency of the evidence is obvious error affecting substantial rights under N.D.R.Civ.P. 52(b).

[¶ 17] To establish obvious error, a defendant must show an error that is plain and affects substantial rights. State v. Burke, 2000 ND 25, ¶ 16, 606 N.W.2d 108. This Court will reverse a conviction on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. City of Jamestown v. Neumiller, 2000 ND 11, ¶ 5, 604 N.W.2d 441.

[¶ 18] Under N.D.C.C. § 39-08-04(1), the driver of any vehicle involved in an accident involving death or personal injury must “immediately stop or return with the vehicle as close as possible to the scene of the accident and in every event shall remain at the scene of the accident until that driver has fulfilled the requirements of section 39-08-06.” Those requirements under N.D.C.C. § 39-08-06 include that the driver “shall give the driver’s name and address ... as well as the registration number, of the vehicle.” Steen contends the prosecution failed to prove that he was the driver of the vehicle involved in the accident, and assuming he was the driver, the prosecution failed to prove that he did not provide the information required by N.D.C.C. § 39-08-06.

[¶ 19] There is substantial circumstantial evidence Steen drove the vehicle involved in the accident. The prosecutor presented evidence that skid marks near Foster’s body were similar to the tire track width of Steen’s father’s pickup: Steen testified he drove the pickup 40 to 45 miles per hour and told his girlfriend he thought he ran over Foster “but didn’t know for sure.... ” Steen told his girlfriend he saw no other vehicles on the road and testified Foster was gasping when he found him on the road. The pathologist testified Foster would have died within three minutes from when his heart was ruptured: This evidence is sufficient to establish Steen ran over Foster with the pickup. Under N.D.C.C. •§ 39-08-06, Steen was required to provide the driver’s name and address and the registration number of the vehicle. Yet, at the scene of the accident, Steen did not acknowledge during discussions' with law enforcement and ambulance personnel that he was the driver of the vehicle which struck Foster. A highway patrol officer testified Steen denied driving his father’s pickup to where the body, was located.

[¶ 20] We conclude the evidence is sufficient to support the jury’s verdict finding Steen guilty of -leaving the scene of an accident involving death or personal injury. See State v. Engel, 289 N.W.2d 204, 210-11 (N.D.1980); State v. Manning, 148 N.W.2d 818, 820 (N.D.1967). Steen has not shown plain error affecting substantial rights.

IY

[¶ 21] Steen argues this case should be remanded for resentencing because the trial . court violated N.D.R.Crim.P. 32(c)(4)(E) by failing to make a finding on controverted information in the presentence investigation report or state that it would not be considered in sentencing.

[¶ 22] The presentence investigation report contained comments, designated as “[collateral information,” from Steen’s ex-wife, Stacey Myers. Myers reported that Steen’s drinking was a “major factor” in their divorce, related several incidents about his violent conduct when he drinks, and claimed he does not provide adequate care for their daughter when he exercises visitation. After reviewing the presen-tence investigation report, Steen’s attorney objected to Myers’ comments and opinions in a letter to the trial court. In the letter, the attorney informed the court he was attending a fourth order to show cause hearing to attempt to enforce Steen’s visitation rights and related Steen’s version of incidents surrounding the divorce. The attorney said “[t]o place any reliance on the statements of [Myers] would be giving credence to a person whose credibility is questionable and bias[ ] evident.” (Emphasis in original). At the sentencing hearing, Steen’s attorney again objected to the court’s consideration of Myers’ comments, characterized them as “lies,” and argued she had interjected herself in the case to attempt to terminate Steen’s parental rights to his daughter.

[¶ 23] Before pronouncing sentence, the trial court said:

[A]s to the presentence investigation report — and I believe it’s even stated in here that the information was provided to parole and probation from Ms. Myers, was collateral information. Obviously, when parole and probation do these reports, they’re looking for what they feel is any relevant information for the Court to consider.
And you know, I don’t ... know a lot of the history behind Ms. Myers and Mr. Steen, but obviously, if parole and probation thought that it was important information, they include it. And I’m not going to go back and revisit their divorce and their family situation here, but I do think if it’s something that’s presented in the presentence investigation report, obviously, the parole and probation looked at it and thought it was relevant for sentencing concerns.
So, to address your issue, Mr. Thomas, in regards to that, you know, it’s in there, and it’s what’s been presented to me as something I looked at.... I don’t know, I don’t give it too much weight other than what, I guess, what points that the parole and probation officer made in the report.
It’s jqst all information, and it’s something that the Court has been presented in this case. And I’ve had to deal with looking at it, and weighing the credibility and giving it the appropriate weight.

[¶ 24] A trial court has a duty to address alleged factual inaccuracies in a presentence investigation report under N.D.R.Crim.P. 32(c)(4)(E):

If the comments of the defendant and the defendant’s counsel oy testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or any of the information summarized, the court, as to each matter controverted, shall make (i) a finding as to the allegation, or (ii) a determination no finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of those findings and determinations must be appended to and accompany any copy of the presen-tence investigation report later made available to the State Parole Board or to the pardon clerk.

[¶ 25] We have not interpreted the requirements of N.D.R.Crim.P. 32(c)(4)(E), but its similar federal counterpart has generated a significant amount of case law. See Annot., Sufficiency of federal trial court’s compliance with requirements of Federal Rules of Criminal Procedure 32(a)(1)(A) and 32(c)(3)(D), that defendant has had opportunity to read and discuss presentence investigation report, and that written record of findings made in response to objections to report be appended to and accompany report, before imposing sentence, 101 A.L.R. Fed. 308, §§ 5-15 (1991). The purposes of the rule are two-fold: (1) to protect a defendant’s due process right to be sentenced on the basis of accurate information; and (2) to provide a clear record for appellate review of the disposition of controverted facts in the presentence report, which, in turn, reduces the likelihood that subsequent appellate or administrative decisions will be made based on improper or incomplete information. United States v. Grant, 114 F.3d 323, 327 (1st Cir.1997); United States v. Gerante, 891 F.2d 364, 367 (1st Cir.1989).

[¶ 26] Federal courts require strict compliance with the rule, and failure to comply will result in remand. See United States v. Rico, 895 F.2d 602, 603 (9th Cir.1990); 26 Moore’s Federal Practice § 632.02[8][c] (3d ed.1997). Rule 32 does not “require a catechismic regurgitation of each fact determined and each fact rejected.” United States v. Gaytan, 74 F.3d 545, 557 (5th Cir.1996) (internal quotation marks omitted). A court may make implicit findings on disputed factual questions by accepting the government’s recommendations at the sentencing hearing, see, e.g., United States v. Cruz, 981 F.2d 613, 619 (1st Cir.1992); Gerante, 891 F.2d at 367, or by adopting factual findings in the presentence investigation report. See, e.g., Grant, 114 F.3d at 327; Gaytan, 74 F.3d at 557.

[¶ 27] The trial court’s ruling on Steen’s objections to the presentence investigation report is ambiguous at best. We cannot determine if the trial court believed Steen’s version or Myers’ version of the factual statements made in the report, or if the court disregarded the objectionable material. The trial court failed to comply with the rule. However, noncompliance with the rule does not automatically entitle the defendant to resentencing. See Cruz, 981 F.2d at 619.

[¶ 28] Although a district court must resolve disputed issues of fact if it intends to use those facts as a basis for sentencing, the court can adopt facts contained in a presentence investigation report without inquiry, if thosé facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence. See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir.1994). A defendant’s rebuttal evidence must demonstrate that the information contained in the presentence investigation report is materially untrue, inaccurate or unreliable, and mere objections do not suffice as competent rebuttal evidence. See United States v. Huerta, 182 F.3d 361, 364 (5th Cir.1999), cert. denied, — U.S. -, 120 S.Ct. 1238, 146 L.Ed.2d 105 (2000); 26 Moore’s Federal Practice § 632.02[8][d] (3d ed.1997).

[¶ 29] In this case, Myers reported that Steen “has received numerous charges of Minor in Possession of alcohol and that he has had alcohol related accidents in which the charges were either reduced or dropped altogether.” Steen’s attorney argued this statement did not “jibe with the offenses listed by the probation officer.” But the probation officer listed two possession of alcohol offenses, in which the dispositions were “not listed” and “dismissed,” and a driving under the influence charge which was reduced to a reckless driving charge. The discrepancy, if any, is insignificant. The remainder of Steen’s objections consisted of his attorney’s characterization of Myers’ statements as “lies,” and the attorney’s written explanation of the child custody dispute and his client’s version of the incidents. The controversy essentially focused on the credibility of Myers versus the credibility of Steen.

[¶ 30] On this record, we believe-the trial court would have been legally justified in either rejecting Myers’ statements in the presentence investigation report and accepting Steen’s version, or accepting' Myers’ statements and rejecting Steen’s version. Alternatively, if the trial court did not consider Myers’ disputed statements in sentencing, Steen suffered no harm. Steen’s sentence is in the permissible range. Under these circumstances, re-sentencing is not appropriate. See United States v. Santana-Camacho, 931 F.2d 966, 969-70 (1st Cir.1991).

[¶ 31] However, the trial court has not made a written record of its findings and attached it to the presentence investigation report where it could prove useful to either Steen or to the State Parole Board. We therefore remand for the trial court to prepare a written record of its findings on the controverted statements and attach it to the presentence investigation report. See Cruz, 981 F.2d at 619; Santana-Camacho, 931 F.2d at 970.

[¶ 32] We add the following caveat:

When a district court confronts a challenge to the accuracy of information in a presentence report, it should explicitly state for the record either its finding regarding the challenge, or its decision not to take the matter controverted into account when imposing sentence. By adhering to this modest requirement, the district courts can help reduce unnecessary appeals based on the parties’ misunderstanding of the record.

United States v. Ibarra, 737 F.2d 825, 827-28 (9th Cir.1984) (footnote omitted).

V

[¶ 33] The criminal judgments are affirmed, and we remand for the limited purpose of preparing and attaching findings to the presentence investigation report.

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


text:
    2000 ND 157
    Patrick M. KRUG, Plaintiff and Appellant, v. Jody G. CARLSON, Defendant and Appellee.
    Nos. 990262, 990303.
    Supreme Court of North Dakota.
    Aug. 18, 2000.

      James D. Hovey, Pearson Christensen, Grand Forks, N.D., for plaintiff and appellant.
    Dale R. Rivard, Grand Forks Child Support Enforcement Unit, Grand Forks, N.D., for defendant and appellee. Argued by Marnie R. Soggie, third-year law student.
   KAPSNER, Justice.

[¶ 1] Patrick Krug appealed from an amended judgment ordering him to reimburse Jody Carlson for past expenses for their child. Concluding the trial court did not err in using the child support guidelines to compute a reasonable amount of reimbursement, we affirm.

[¶ 2] Patrick Krug and Jody Carlson were married on February 14, 1997. Within weeks, the parties separated and Carlson moved to Minnesotá to live with her ex-husband. Carlson was pregnant at the time of the marriage.

[¶ 3] Krug commenced a divorce action in May 1997. The parties entered into a stipulation agreeing to the divorce and division of property. The stipulation included the following provision;

PATERNITY: That the Plaintiff is determined not to be the father of the Defendant’s unborn child. All rights and liabilities with regard to the child are hereby terminated.

The trial court accepted the terms of the stipulation except for the paternity provision. The court entered a divorce judgment but did not determine paternity of Carlson’s unborn child. Carlson’s daughter was born on September 14,1997.

[¶ 4] In January 1999, the Grand Forks Regional Child Support Unit filed an action against Krug on behalf of Carlson and her daughter seeking a determination of paternity and child support. Blood test results conclusively established Krug was the father of the child. After a hearing, the court ordered Krug to pay $508 per month for future child support, set a visitation schedule, and ordered reimbursement of past expenses in the amount of $11,432. Those provisions were incorporated into an amended divorce judgment, and Krug appealed.

[¶5] The parties agree this is an action for reimbursement of past expenses under N.D.C.C. § 14-08.1-01, which provides:

Liability for support. A person legally responsible for the support of a child under the age of eighteen years who is not subject to any subsisting court order for the support of the child and who fails to provide support, subsistence, education, or other necessary care for the child, regardless of whether the child is not or was not in destitute circumstances, is liable for the reasonable value of physical and custodial care or support which has been furnished to the child by any person, institution, agency, or county social service board. Any payment of public assistance money made to or for the benefit of any dependent child creates a presumption that such payment equals the reasonable value of physical and custodial care or support.

As the natural father, Krug had an obligation to provide suitable financial support to his child. N.D.C.C. § 14-09-08; Ackerman v. Ackerman, 1999 ND 135, ¶ 21, 596 N.W.2d 332. Therefore, under N.D.C.C. § 14-08.1-01, Krug is liable for the reasonable value of support which has been furnished to the child.

[¶ 6] Krug asserts Carlson is not entitled to any reimbursement under N.D.C.C. § 14-08.1-01 because she failed to establish the precise amount of past support she has provided to the child. Citing Mougey v. Salzwedel, 401 N.W.2d 509 (N.D.1987), Krug argues Carlson must present a detailed itemization of all expenses furnished for the child from her birth in September 1997 through the filing of this action in January 1999.

[¶ 7] Neither Mougey nor the statutory scheme require an itemized accounting to support reimbursement of expenses to a custodial parent. In Mougey, a stepfather brought an action against the natural father for reimbursement of expenses paid for a minor child. The stepfather testified in general terms about the items provided for the child, and also testified he gave his wife approximately $200 per month for household expenses. We upheld the judgment awarding reimbursement to the stepfather at the rate of $100 per month. Mougey, 401 N.W.2d at 514.

[¶ 8] In this case, Carlson testified she has continuously provided all of the care and financial support of the child from the date of birth, except for rent expenses which were provided by her first husband. Carlson testified that for part of that period she paid $600 per month for daycare expenses. She has also paid $68 per month for health insurance for the child. She testified she depleted her savings paying the child’s expenses. Although Carlson did not fully quantify the total amount of funds expended on the child, her testimony is sufficient to provide a basis for reimbursement. We have recognized that a custodial parent makes a substantial monetary contribution to the child’s basic care by virtue of being the custodial parent. Richter v. Houser, 1999 ND 147, ¶ 22, 598 N.W.2d 193.

[¶ 9] Krug also contends the trial court was prohibited from considering the child support guidelines in determining a reasonable amount of reimbursement. The trial court in this case recognized it was not bound by the child support guidelines, but calculated a reasonable reimbursement based upon the guidelines and Krug’s past income.

[¶ 10] Krug’s argument fails to recognize the distinction between requiring usage of the guideline amount and merely considering the guideline amount as evidence to determine a reasonable amount of reimbursement. The guidelines have been fashioned to estimate the appropriate amount a noncustodial parent should provide for the ongoing support and care of the child. See N.D.C.C. § 14-09-09.7(1); Richter, 1999 ND 147, ¶22, 598 N.W.2d 193; Perala v. Carlson, 520 N.W.2d 839, 842 (N.D.1994). We conclude the trial court did not err in considering the guideline amount when determining reasonable reimbursement under N.D.C.C. § 14-08.1-01.

[¶ 11] We have considered the other arguments raised and they are either unnecessary to our decision or are without merit. The amended judgment is affirmed.

[¶ 12] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN ■ MARING, JJ., concur.

      . Because the parties agree this is an action for reimbursement governed by N.D.C.C. § 14-08.1-01, we need not address the application of N.D.C.C. § 14-17-14 and cases addressing actions for past child support brought on behalf of the child. See, e.g., Richter v. Houser, 1999 ND 147, 598 N.W.2d 193; Rydberg v. Johnson, 1998 ND 160, 583 N.W.2d 631.
      The parties did not cite N.D.C.C. § 14-09-14, which provides:
      When parent not liable for support of child. A parent is not bound to compensate the other parent or a relative for the voluntary support of the parent’s child without an agreement for compensation, nor to compensate a stranger for the support of a child who has abandoned the parent without just cause.

        See also Richter, at ¶¶ 14-17. Section 14-09-14 was repealed by the 1999 Legislative Assembly. See 1999 N.D. Sess. Laws ch. 141, § 25.