text:
    2007 ND 43
    STATE of North Dakota, Plaintiff and Appellee v. Daniel MULSKE, Defendant and Appellant.
    No. 20060184.
    Supreme Court of North Dakota.
    March 22, 2007.
    James A. Hope, Assistant State’s Attorney, Dickinson, N.D., for-plaintiff and ap-pellee; submitted on brief.
    William S. Kirschner, Fargo, N.D., for defendant and appellant; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Daniel Mulske appeals the district court judgment after a jury found him guilty of theft. Concluding the district court did not abuse its discretion by failing to appoint new counsel for Mulske and hold a hearing to inquire whether he waived his right to testify, we affirm;

I

[¶ 2] In December 2005, the State charged Mulske with theft of an automobile after he allegedly stole a vehicle and crashed it near Medora. Mulske pled not guilty, and the case was tried to a jury in May 2006. The jury found Mulske guilty of theft, a class C felony. After the jury returned its verdict and was excused from the courtroom, Mulske asked to make a statement. The district court reopened the record. This was the exchange between Mulske and the district court:

MR. MULSKE: Yeah, I wish to be noted that while the jury was deliberating I wanted to take the stand and he said that it was better that I wouldn’t. I rather would took the stand so they would have heard my opinion, my testimony, my statement, come from me and he advised me not to. I wish I would have done it myself, advised myself so I would have took the stand and told the jury my part of what happened.
THE COURT: Anything else you want to tell me?
MR. MULSKE: No, I guess my story of what happened and I move to — during the statement here it was never said, I guess, what happened, where I was at, what I was doing and my statement, what happened, Dickinson to Beach, you know, catch a ride with a trucker and stuff, that I wasn’t even there, in Medo-ra and stuff and my statement, you know, it was never heard. Even though it was — I wrote a — it was written in there, from [Officer] Cianni, he took my statement when the — in the interview room and — you know I would have took the stand I guess so I could have been heard.
THE COURT: Anything you want to respond, Mr. Henning [State’s Attorney]?
MR. HENNING: No, Your Honor.
THE COURT: Mr. McCabe [Mulske’s attorney]?
MR. MCCABE: Nothing, Your Honor.
THE COURT: Okay. Thank you for appearing, Court is adjourned.

(Emphasis added.)

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

II

[¶ 4] Mulske argues the district court abused its discretion by failing to appoint new counsel for him and by failing to conduct a hearing after his conviction to inquire whether he waived his right to testify.

[¶ 5] A defendant’s right to testify, although constitutionally guaranteed, see Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), has limitations:

It must, at times, yield to interests of order and fairness. Accordingly, the right to testify must be exercised at the evidence-taking stage of trial. Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court’s discretion.

United States v. Blum, 65 F.3d 1436, 1444 (8th Cir.1995) (internal quotations and citations omitted). “A trial court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.” State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498.

[¶ 6] In Blum, the defendant chose not to testify, but after the close of the evidence, she sent a message from her cell to the trial court that she had changed her mind. 65 F.3d at 1444. The Blum court noted that she “was clearly aware of her constitutional right to testify because she belatedly attempted to assert it.” Id. The court held “that if an accused desires to exercise her constitutional right to testify the accused must act affirmatively and express to the court her desire to do so at the appropriate time or a knowing and voluntary waiver of the right is deemed to have occurred.” Id. (citing United States v. Bernloehr, 833 F.2d 749, 752 (8th Cir.1987)).

[¶ 7] In Bemloehr, the defendant waited until his sentencing hearing to raise the issue of a violation of his right to testify. 833 F.2d at 751. The court said, “The defendant may not, as Bemloehr did, indicate at trial his apparent acquiescence in his counsel’s advice that he not testify, and then later claim that his will to testify was ‘overcome.’ ” Id. at 752. The Bemloehr court held that a knowing and voluntary waiver of the right may be found on the basis of a defendant’s silence when his counsel rests without calling him to testify. Id. at 751-52.

[¶ 8] Other courts have also acknowledged that when the record shows no timely and adequate demand to testify, a defendant may not wait for the outcome of the trial and then seek reversal by claiming that, despite having expressed to counsel a desire to testify, he or she was deprived of that opportunity. See, e.g., People v. Bradford, 14 Cal.4th 1005, 60 Cal.Rptr.2d 225, 929 P.2d 544, 574 (1997).

[¶ 9] Mulske said he wished he had taken the stand rather than have followed his attorney’s advice not to testify. He waited until after the jury convicted him to raise this concern. Therefore, Mulske waived his right to testify.

[¶ 10] Mulske contends the district court had a duty to inquire “whether the defendant understood that he had a right to testify and to knowingly and intelligently waived [sic] that right, or whether counsel made the tactical choice to waive such right without the consent of the defendant.”

[¶ 11] In State v. Antoine, we explained no such inquiry is required:

[U]nlike other constitutional rights that can be waived only after the court makes a formal inquiry, the court does not have a duty to verify that the defendant who is not testifying has waived his or her right voluntarily. United States v. Pennycooke, 65 F.3d 9, 11 (3rd Cir.1995) (providing a list of federal case law supporting this contention and explaining “a trial court’s advice as to the right to testify could inappropriately influence the defendant to waive his or her constitutional right not to testify”). Instead, the court is entitled to presume the attorney and the client discussed the right, and the defendant voluntarily agreed upon the final decision. Pennycooke, 65 F.3d at 12.

State v. Antoine, 1997 ND 100, ¶ 5, 564 N.W.2d 637 (emphasis added).

[¶ 12] Mulske contends that his attorney “prevented” him from testifying and that he “sufficiently raised the allegation of attorney misconduct” by his comments to the court after the jury returned its verdict and was excused.

[¶ 13] Mulske’s statement — “I wanted to take the stand and he said that it was better that I wouldn’t” — reflects that Mulske knew he could have testified but chose not to, at least not until the jury had returned a guilty verdict. The record contains nothing about any discussion between Mulske’s attorney and Mulske regarding his right to testify, and does not reflect that Mulske’s attorney misinformed him about the right to testify, improperly influenced his decision about testifying, or otherwise prevented him from testifying. See, e.g., Bernloehr, 883 F.2d at 752 n. 2 (“cases in which courts have found a denial of a defendant’s right to testify almost invariably involve ineffective assistance of counsel”).

[¶ 14] Because Mulske failed to exercise his right to testify during the evidence-taking stage of his trial, he made a knowing and voluntary waiver of that right. The district court did not abuse its discretion by refusing to reopen the evidence. The record does not support Mulske’s “allegation of attorney misconduct.”

Ill

[¶ 15] We affirm the district court judgment.

[¶ 16] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: YANDE WALLE, Chief Justice. KAPSNER, Justice,

license: Public Domain

text:
    2007 ND 40
    STATE of North Dakota, Plaintiff and Appellee, v. Melissa Sue OLSON, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Bryan James Bienek, Defendant and Appellant.
    Nos. 20060182, 20060183.
    Supreme Court of North Dakota.
    March 22, 2007.

      Meredith Huseby Larson, Assistant State’s Attorney, Grand Forks, N.D., for plaintiff and appellee.
    Alexander F. Reichert, Reichert Law Office, Grand Forks, N.D., for defendants and appellants.
   YANDE WALLE, Chief Justice.

[¶ 1] Melissa Sue Olson and Bryan James Bienek appealed from the district court’s order denying their motions to suppress evidence and from the criminal judgments entered upon their conditional pleas of guilty to the offense of minor in consumption of alcohol. We conclude the district court did not err in denying Olson and Bienek’s motions to suppress evidence, and we affirm.

I

[¶ 2] At approximately 2:30 a.m., on a December 2005 morning, Officer Dan Lund of the University of North Dakota Police Department was on patrol traveling eastbound on University Avenue in Grand Forks when he observed two individuals on foot going westbound on the sidewalk. Officer Lund testified he saw a female individual, later identified as Olson, running away from a male individual, later identified as Bienek. Suspecting a possible domestic situation, Officer Lund turned his patrol vehicle around to further investigate the situation.

[¶ 3] Officer Lund testified that upon doing so, he further noticed the individuals appeared to be arguing, observing that the female appeared to be crying and the male appeared to be talking quite loudly. Officer Lund then stopped his patrol vehicle and asked Olson and Bienek to stop. Officer Lund saw Olson crying and asked her if she was okay. Olson responded that she was okay. During this encounter, Officer Lund detected an odor of alcoholic beverage coming from either Bienek or Olson and, further, observed that they did not appear to be over 21 years old. Officer Lund asked Bienek and Olson for their identification, determining Bienek was 20 years old and Olson was 19 years old. Officer Matt Beland, another officer with the University of North Dakota Police Department, then arrived on the scene.

[¶ 4] Olson was placed ’ in Officer Be-land’s vehicle while Bienek was placed in Officer Lund’s vehicle. While seated in Officer Lund’s car, Officer Lund detected an odor of alcohol emanating from Bienek and observed that Bienek had bloodshot, watery eyes and slightly slurred speech. Meanwhile, while seated in Officer Be-land’s car, Officer Beland detected an odor of alcohol emanating from Olson and also observed that Olson had bloodshot, watery eyes. Olson voluntarily took and failed a preliminary breath test. Olson and Bien-ek were arrested for minor in consumption of alcohol.

[¶ 5] Both Olson and Bienek subsequently made motions to suppress evidence. Their motions to suppress were heard together, and the district court denied their motions. Olson and Bienek entered conditional guilty pleas to the charges and were sentenced.

II

[¶ 6] Olson and Bienek argue the district court erred in denying their motions to suppress because the arresting officer obtained evidence as a result of an unlawful stop and seizure.

[¶ 7] When reviewing a district court decision on a motion to suppress, we apply a deferential standard of review:

We will defer to a trial court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Torkelsen, 2006 ND 152, ¶ 8, 718 N.W.2d 22 (quoting State v. Seglen, 2005 ND 124, ¶ 5, 700 N.W.2d 702). “Questions of law, such as the ultimate conclusion of whether the facts support a reasonable and articulable suspicion, are fully reviewable on appeal.” State v. Parizek, 2004 ND 78, ¶ 7, 678 N.W.2d 154 (citing State v. Fields, 2003 ND 81, ¶ 6, 662 N.W.2d 242).

[¶ 8] In denying the defendants’ motions to suppress, the district court specifically found:

I.
On December 8, 2005 at or about 2:31 A.M., Officer Lund with the University of North Dakota Police Department, was on patrol traveling eastbound on University Avenue when he observed a male and female walking westbound. The male was later identified as Defendant Bryan James Bienke [sic] and the female as Defendant Melissa Sue Olson.
II.
Officer Lund observed the female to be running ahead of the male and appeared to be crying and the male was waiving [sic] his arms in the air.
III.
Officer Lund, suspecting a possible domestic situation, stopped his patrol vehicle in the bike lane of University Avenue and made contact with Mr. Bienek and Ms. Olson asking them to stop.
IV.
Officer Lund observed Ms. Olson to be crying as he exited his vehicle and asked Ms. Olson if she was okay. Ms. Olson said she was okay.
V.
Officer Lund detected an odor of alcoholic beverage coming from Mr. Bienek and/or Ms. Olson; Officer Lund could not tell who the odor was coming from. Officer Lund observed that the Defendants did not appear to be over the age of 21 years.
VI.
Based on those observations, Officer Lund asked for Mr. Bienek’s and Ms. Olson’s identification and upon checking those identifications determined that Mr. Bienek was 20 years old and Ms. Olson was 19 years old.
VI. [sic]
Officer Beland arrived on the scene and Ms. Olson was seated in Officer Beland’s patrol vehicle and Mr. Bienek was seated in Officer Lund’s vehicle.
VII.
When seated in Officer Lund’s patrol vehicle, Officer Lund detected an odor of alcohol emanating from Mr. Bienek. Officer Lund further observed Mr. Bienek to have blood shot, watery eyes, and slightly slurred speech and cited him with Minor In Consumption.
VIII.
When seated in Officer Beland’s patrol vehicle, Officer Beland detected an odor of alcohol emanating from Ms. Olson. Officer Beland additionally observed Ms. Olson to have bloodshot, watery eyes. Ms. Olson voluntarily took a SD-2 preliminary breath test, blew a .13, and was subsequently cited for Minor in consumption.

[¶ 9] “All searches and seizures must be reasonable, under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution.” State v. Haibeck, 2004 ND 163, ¶ 9, 685 N.W.2d 512. This Court has previously defined the permissible types of law enforcement-citizen encounters, which include:

(1) arrests, which must be supported by probable cause; (2) Terry stops, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), seizures which must be supported by a reasonable and articu-lable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures.

Torkelsen, 2006 ND 152, ¶ 10, 718 N.W.2d 22. Within the context of the Fourth Amendment, a seizure occurs “when the officer, by means of physical force' or show of authority, has in some way restrained the liberty of a citizen.” City of Jamestown v. Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478 (citing State v. Boline, 1998 ND 67, ¶ 25, 575 N.W.2d 906).

[¶ 10] Here, the district court concluded that the initial stop of Olson and Bienek by Officer Lund fell within the community caretaker exception and did not constitute a Fourth Amendment seizure. On appeal, Olson and Bienek argue that they were unlawfully stopped and detained and that the district court erroneously concluded the stop was a community caretaking encounter. We do not need to decide whether this case involves the legitimate exercise of the community caretaking function because we conclude Officer Lund had a reasonable and articulable suspicion to justify a Terry stop of Olson and Bienek for further investigation.

[¶ 11] “Under Terry, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot.” Torkelsen, 2006 ND 152, ¶ 11, 718 N.W.2d 22 (citing Anderson v. Director, N.D. Dep’t of Transp., 2005 ND 97, ¶ 8, 696 N.W.2d 918). In reviewing whether an investigative stop is valid, we use an objective standard and look to the “totality of the circumstances.” Parizek, 2004 ND 78, ¶ 9, 678 N.W.2d 154. “The question is whether a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity.” Id. In City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466 (quoting City of Fargo v. Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901(citations omitted)), this Court explained:

We do not require an officer to isolate single factors which signal a potential violation of the law; but instead, “officers are to assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.” When assessing reasonableness, we consider inferences and deductions an investigating officer would make which may elude a layperson.

[¶ 12] Here, the district court found Officer Lund made several observations before asking Olson and Bienek to stop. Officer Lund observed that Olson appeared to be running from Bienek and seemed to be crying while Bienek was waving his arms in the air. Additionally, considering this was occurring in public at approximately 2:30 a.m. in December, Officer Lund reasonably suspected the presence of a possible domestic situation. We have said the “lateness of the hour” is “another factor that may raise the level of suspicion to justify an investigative stop.” Parizek, 2004 ND 78, ¶ 12, 678 N.W.2d 154 (citing Fields, 2003 ND 81, ¶ 20, 662 N.W.2d 242).

[¶ 13] Under the totality of the circumstances, we conclude the district court’s findings support the ultimate conclusion that Officer Lund had a reasonable and articulable suspicion that unlawful activity had been, or was about to be, engaged in sufficient to justify an investigative stop of Olson and Bienek. For this reason, we conclude the district court did not err in denying the motions to suppress evidence.

Ill

[¶ 14] The criminal judgments are affirmed.

[¶ 15] DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEH-LEN MARING, JJ., concur.

KAPSNER, Justice,

concurring in the result.

[¶ 16] I concur with the result reached by the majority. However, based upon the first four findings of fact made by the district court, I concur with the analysis of the district court that the initial encounter, when the officer requested these defendants to stop, the officer was exercising a community caretaking function. Subsequent events gave the officers the basis to detain them, justifying the ultimate arrest.

[¶ 17] CAROL RONNING KAPSNER


author: CROTHERS, Justice.

text:
    2007 ND 39
    STATE of North Dakota, Plaintiff and Appellee v. Rodney BROSSART, Defendant and Appellant.
    No. 20060242.
    Supreme Court of North Dakota.
    March 22, 2007.

      Steven James Simonson, State’s Attorney, P.Lakota, ND, for plaintiff and appel-lee.
    Neil W. Fleming, Cavalier, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Rodney B. Brossart appeals from a district court judgment convicting him of preventing arrest or discharge of other duties. We affirm, concluding the judgment is supported by sufficient evidence.

I

[¶ 2] Brossart is a Nelson County landowner and farmer. In the spring of 2006 the Williams Township Board, Nelson County, sent Brossart a letter instructing him not to conduct maintenance on township roads. The Nelson County Sheriff also sent Brossart a letter containing the same message. On April 4, 2006, the Nelson County Sheriffs Department was notified that a pile of gravel debris had been left on a township road by unknown equipment. On April 5, Deputy Eric Braathen contacted Brossart to confirm Brossart was not allowed to maintain the road. On April 6, Brossart was driving a four-wheel-drive tractor pulling a 45-foot>-wide, 16,000 pound steel roller on the same township road which Brossart and the deputy discussed the previous evening. The steel roller was extended from the bottom of one ditch, over the top of the road, and down the opposite ditch, obstructing the roadway completely. Brossart testified he was rolling the ditches to push rocks farther into the soil, allowing him to hay the ditches without damaging his equipment.

[¶ 3] When the Nelson County Sheriffs Department received a call that a tractor was obstructing a road, Deputy Tom Sten-vold drove to the road and spoke with Brossart. Off-duty Deputy Braathen also went to the scene because his prior dealings with Brossart concerned him. After the deputies began to cite Brossart for disorderly conduct for using his equipment on the road, the contact between the deputies and Brossart became a confrontation. The confrontation escalated to the point the deputies decided to handcuff Brossart for their safety and for Brossart’s safety while they issued the disorderly conduct citation. Brossart physically resisted the detention, and the deputies had to exert force to finish handcuffing Brossart. At that point, the deputies cited Brossart for preventing arrest.

[¶ 4] At the bench trial, Brossart made a motion for a judgment of acquittal under N.D.R.Crim.P. 29, which the court denied. The district court ruled on the merits that the state did not prove the elements of disorderly conduct, but the court did find Brossart guilty of preventing arrest or discharge of other duties under N.D.C.C. § 12.1-08-02. Brossart appeals, arguing that the district court erred in finding Brossart guilty of preventing arrest or discharge of other duties and that he had the right to resist arrest under N.D.C.C. § 12.1-05-03(1).

II

A

[¶ 5] Brossart argues the evidence supporting his conviction was insufficient as a matter of law because his angry demeanor, yelling and disagreeing with the deputies did not create a substantial risk of bodily injury to the public servants and did not require them to use substantial force to overcome it.

[¶ 6] “For a criminal trial by the court without a jury, our standard of review is the same as for a trial by jury.” State v. Brandner, 551 N.W.2d 284, 286 (N.D.1996). In reviewing challenges to the sufficiency of the evidence, this Court reviews the record to determine if there is competent evidence to support an “inference reasonably tending to prove guilt and fairly warranting a conviction.” State v. Igou, 2005 ND 16, ¶ 5, 691 N.W.2d 213. The defendant has the burden to show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. Id. “A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.” Id. (citing State v. Knowels, 2003 ND 180, ¶ 6, 671 N.W.2d 816).

[¶ 7] Brossart was charged with violating the statute providing:

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

N.D.C.C. § 12.1-08-02(1) (emphasis added). Evidence at trial showed Brossart indicated his understanding that he was not authorized to maintain roads when the sheriffs department called him the prior evening to discuss the condition of the road. When the sheriffs department was notified that Brossart was on the road with his equipment the next day, the deputies went there to investigate. Despite the deputies’ subsequent intentions merely to cite Brossart for disorderly conduct for using his equipment on the road, Brossart became angry, belligerent and uncooperative. The deputies became concerned for Brossart’s and their safety, and they decided to detain Brossart by handcuffing him.

[¶ 8] The essence of Brossart’s claims is that this Court’s decisions in State v. Ritter, 472 N.W.2d 444 (N.D.1991); State v. Cox, 532 N.W.2d 384 (N.D.1995); and State v. Barth, 2001 ND 201, 637 N.W.2d 369, require that a person must actually threaten the officers or become physically aggressive before a charge of resisting arrest or preventing an officer from discharging an official duty is legally justifiable. Brossart misreads our prior decisions. While the defendant in Ritter did shove an officer, the defendant in Cox did clench his fists, make threats, swear at, run away from and fight with the officer, and the defendant in Barth did clench his fists and raise his arms, these cases should not be read to require actual or imminent physical combat between an officer and a defendant before charges under N.D.C.C. § 12.1-08-02 are sustainable.

[¶ 9] The defendant in Cox was charged under N.D.C.C. § 12.1-08-02 with preventing arrest. Cox argued the district court erred when it did not suppress the evidence or dismiss the charge in its entirety because of the officer’s alleged misconduct in making the arrest. Cox, 532 N.W.2d at 386. The question of the reasonableness of Cox’s resisting his arrest was properly determined by the factfinder upon reviewing all of the facts. Id. at 388 (citations omitted). Like in Cox where the factfinder determined Cox’s use of force was unreasonable, whether Brossart created a substantial risk of injury or whether his actions presented substantial risk to overcome are questions of fact directly bearing on Brossart’s guilt under N.D.C.C. § 12.1-08-02. We therefore disagree with Brossart that the district court erred as a matter of law by failing to dismiss his charge.

[¶ 10] After a trial to the bench, the district court found:

[Tjhings got carried away. [Brossart’s] anger was escalating because he was stopped.... [T]he anger was getting to the point where it did create a safety issue for the deputies and also for [Bros-sart]. Officer Stenvold was going to cite [Brossart], handcuff him so that he could cite him and handcuff him for their safety sake. And at that point, [Brossart] did resist. It was more than just a tensing of his arm as he testified to. [Brossart had] the intent to prevent the officers from handcuffing him and discharging that duty as far as maintaining the safety and getting the citation issued. [Brossart’s resistance] did create a substantial risk of bodily injury to the deputies ... [and] also to the point where it required force, substantial force, by the deputies to overcome [Brossart’s] resistance to their discharge of their duty.

[¶ 11] When viewing the evidence and all reasonable inferences in a light most favorable to the verdict, we conclude substantial evidence supports Brossart’s conviction for violating N.D.C.C. § 12.1-08-02(1). However, our inquiry does not end with that conclusion because Brossart also argues he had the right under N.D.C.C. § 12.1-05-03(1) to resist being handcuffed.

B

[¶ 12] Brossart claims he was within his legal rights to resist being handcuffed because, as a matter of law, the deputies used excessive force to subdue him. North Dakota law allows a person to resist a deputy’s performance of duty when excessive force is used. The statute provides, “A person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public servant under color of law, but excessive force may be resisted.” N.D.C.C. § 12.1-05-03(1).

[¶ 13] In Ritter, this Court examined the legislative history and the purposes of N.D.C.C. § 12.1-05-03(1) and held a defendant’s forceful resistance to an arrest under color of law is not legally justified unless “excessive force” is used by the officers. Ritter, 472 N.W.2d 444. We explained:

We believe that individual violence cannot replace the rule of law.... Forceful resistance to an unlawful search or seizure is no longer automatically excused, as a matter of law, by exclusion of related evidence or by judicial dismissal.... [T]he criminal statutes still recognize justification defenses as factual remedies for official misconduct.... These defenses do not depend on judicial suppression- of evidence or dismissal of charges. Rather, they depend upon full presentation of the facts to the trier of fact, usually the jury, for determination of the independent nature of the charged offense. Official misconduct is a justification defense to a charge of resisting arrest.

Id. at 450-53.

[¶ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his resistance as a justification defense to the preventing-arrest charge. State v. DuPaul, 509 N.W.2d 266, 271 (N.D.1993); Cox, 532 N.W.2d at 388.

[¶ 15] Here, Brossart received a bench trial and was convicted. Evidence introduced at trial included testimony from both deputies about concerns for their safety. After Brossart had once gone to his tractor cab, Deputy Stenvold testified to his concern that Brossart might retrieve and use items in his tractor as a weapon. The deputies also testified Brossart was going to be handcuffed as long as necessary to cite him for disorderly conduct for maintaining the road. The deputies were unable to handcuff Brossart with one set of cuffs when Brossart resisted their efforts to detain him and would not put his hands together. They had to apply a mandibular angle pressure point maneuver and ultimately pulled Brossart down to the ground to finish handcuffing him with an additional set of handcuffs.

[¶ 16] The district court properly considered whether the officers used excessive force as a question of fact for trial rather than as a question of law. The district court did not make explicit findings on Brossart’s claim that the deputies used excessive force, nor was it required to do so. See State v. Ennis, 464 N.W.2d 378, 384 (N.D.1990) (In a criminal case tried without a jury, N.D.R.Crim.P. 23(d) provides the trial court usually need make only a general finding of guilty or not guilty.). By finding Brossart guilty under N.D.C.C. § 12.1-08-02(1), the district court implicitly rejected his “excessive force” defense under N.D.C.C. § 12.1-05-03(1). After viewing the evidence and all reasonable inferences in the light most favorable to the verdict, we conclude substantial evidence supports the district court’s rejection of Brossart’s defense under N.D.C.C. § 12.1-05-03(1).

Ill

[¶ 17] We affirm, concluding the judgment is supported by sufficient evidence.

[¶ 18] MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE Y. SANDSTROM, JJ., and GERALD W. VANDEWALLE, C.J., concur.


author: KAPSNER, Justice. DANIEL J. CROTHERS.

text:
    2007 ND 42
    STATE of North Dakota, Plaintiff and Appellee v. Darren Lee BACHMEIER, Defendant and Appellant.
    No. 20060235.
    Supreme Court of North Dakota.
    March 22, 2007.

      Mark A. Flagstad (argued), Assistant State’s Attorney, Minot, ND, for plaintiff and appellee.
    Jeffrey L. Sheets (argued), Minot, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Darren Baehmeier appeals from a judgment entered after a jury trial for driving while under the influence and from an order denying his motion to suppress the evidence gathered from a traffic stop. We affirm, concluding the district court did not err by denying Bachmeier’s motion to suppress.

I

[¶ 2] Baehmeier was driving home from a rural tavern shortly before 12:50 a.m. A highway patrol trooper saw his vehicle leave Carpió, North Dakota, and travel south on State Highway 28. The trooper was some distance away from Ba-chmeier’s vehicle when the trooper noticed his taillights. The trooper, without observing any traffic violations, believed it statistically likely that a driver on the road after midnight may be intoxicated. To observe Bachmeier’s vehicle, the trooper accelerated to at least 80 miles-per-hour in a 65 mile-per-hour zone without activating his emergency lights. Once in a position to see the vehicle, the trooper observed Bachmeier’s vehicle weave within its lane, and cross the center and fog lines. The trooper then initiated a traffic stop. The trooper noticed signs of intoxication, so he administered several field sobriety tests. The tests confirmed the trooper’s suspicion, and Baehmeier was arrested for driving while under the influence.

[¶ 3] Baehmeier moved to suppress the evidence gathered during the traffic stop. The district court held a suppression hearing, after which it denied Bachmeier’s motion. The court held there was a reasonable and articulable basis for the stop after the trooper observed Baehmeier weaving and crossing the center and fog lines. The district court concluded the trooper’s speeding was not an appropriate basis for the suppression of the evidence. After a jury trial, Baehmeier was found guilty of driving while under the influence.

II

[¶ 4] The issue on appeal is whether the district court erred by not applying the exclusionary rule, and not suppressing the evidence of Bachmeier’s intoxication gathered during the traffic stop. Specifically, Baehmeier argues the district court erred in not suppressing the evidence because the trooper did not have reasonable and articulable suspicion when he began to pursue Baehmeier. The State argues the district court’s decision was appropriate.

[¶ 5] The standard for reviewing a district court’s decision on a motion to suppress is well established:

We will defer to the [district] court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affir-mance, as we recognize the [district] court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a [district] court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the [district] court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Oien, 2006 ND 138, ¶ 7, 717 N.W.2d 593 (quoting State v. Linghor, 2004 ND 224, ¶ 3, 690 N.W.2d 201; State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106). “Questions of law, such as the ultimate conclusion of whether the facts support a reasonable and articulable suspicion, are fully reviewable on appeal.” State v. Parizek, 2004 ND 78, ¶ 7, 678 N.W.2d 154.

III

[¶ 6] To justify a traffic stop for investigative purposes, a law enforcement officer must have a reasonable and articu-lable suspicion that the motorist has violated or is violating the law. Gabel v. N.D. Dep’t of Transp., 2006 ND 178, ¶ 9, 720 N.W.2d 433; City of Fargo v. Ovind, 1998 ND 69, ¶ 8, 575 N.W.2d 901. Determining whether an officer has a reasonable and articulable suspicion is measured by a flexible, fact-specific inquiry. Gabel, at ¶ 9. The inquiry cannot readily, or even usefully, be reduced to a neat set of legal rules. Id.; State v. Loh, 2000 ND 188, ¶ 5, 618 N.W.2d 477. However, “observed traffic violations provide officers with the requisite suspicion for conducting investigatory stops.” Gabel, at ¶ 9; accord Loh, at ¶ 10. Weaving onto the wrong side of the roadway is a traffic violation. See N.D.C.C. § 39-10-08(1); Loh, at ¶ 7.

[¶ 7] Here, the trooper testified once he was in a position to view Bachmeier’s vehicle, he observed the vehicle cross the center and fog lines of a two-lane highway. The trooper’s onboard camera captured video images of the vehicle crossing the fog line, corroborating the trooper’s testimony. Since the trooper observed Bachmeier violate the traffic law, the district court did not err in concluding the trooper had reasonable and articulable suspicion for the traffic stop.

IV

[¶ 8] Bachmeier argues the district court should have excluded evidence of his intoxication because the trooper violated the law by speeding. Bachmeier claims the officer could not have formulated the reasonable and articulable suspicion for the traffic stop without violating the law. We conclude the trooper’s conduct, traveling in excess of the posted speed limit, does not invoke the exclusionary rule.

A

[¶ 9] The United States Constitution protects individuals from unreasonable searches and seizures. U.S. Const, amend. IV; Oien, 2006 ND 138, ¶ 8, 717 N.W.2d 593. Generally, the exclusionary rule is a judicially created remedy that prevents the government from introducing unlawfully seized evidence against the defendant in a criminal prosecution. See Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); see also Oien, at ¶ 8. The exclusionary rule must also be applied to statutory violations but only where the statutory violation is tantamount to a violation of the individual’s Fourth Amendment rights. State v. Utvick, 2004 ND 36, ¶ 27, 675 N.W.2d 387. Nevertheless, the exclusionary rule is only “designed to safeguard ... rights generally through its deterrent effect, [and is not] a personal constitutional right of the party aggrieved.” United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)). “An individual is only entitled to the protection of the exclusionary rule if the individual’s ... Fourth Amendment rights were violated.... ” Oien, at ¶ 8.

[¶ 10] In this case, Bachmeier’s Fourth Amendment rights were not violated by the officer’s conduct. The trooper had a reasonable and articulable suspicion when the trooper initiated the traffic stop. Bachmeier’s interaction with the trooper for Fourth Amendment seizure purposes began when the trooper activated his overhead lights and exerted some authority over him. State v. Langseth, 492 N.W.2d 298, 800 (N.D.1992); see also Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (concluding the Fourth and Fourteenth Amendments were implicated because law enforcement initiated a traffic stop); Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”). Bachmeier’s constitutional rights were not violated. Further, Bachmeier did not raise any issue of a statutory violation that was so intertwined with his constitutional rights that it is appropriate to apply the exclusionary rule. See Utvick, 2004 ND 36, ¶ 27, 675 N.W.2d 387. “ ‘Our Court will not consider an argument that is not adequately articulated, supported, and briefed.’ ” State v. Loughead, 2007 ND 16, ¶ 10, 726 N.W.2d 859 (quoting State v. Haibeck, 2006 ND 100, ¶ 9, 714 N.W.2d 52). Even if he had properly raised the issue, we do not believe a law enforcement officer exceeding the posted speed limit involves a statutory violation so closely related to an individual’s constitutional rights that applying the exclusionary rule would be proper. See Utvick, at ¶ 27; see also Hudson v. Michigan, — U.S. -, -, 126 S.Ct. 2159, 2163, 165 L.Ed.2d 56 (2006) (“Suppression of evidence [under the exclusionary rule] ... has always been our last resort, not our first impulse.”).

[¶ 11] We conclude Bachmeier’s rights were not violated by the trooper’s conduct, the exclusionary rule is inapplicable, and the district court did not err in refusing to suppress the evidence.

B

[¶ 12] Contrary to Bachmeier’s assertions, the trooper need not have a reasonable and articulable suspicion at the time Bachmeier’s vehicle was initially pursued.

[¶ 13] Chapters 39-09 and 39-10, N.D.C.C., set speed restrictions for motor vehicle operation. See Jones v. Ahlberg, 489 N.W.2d 576, 580-81 (1992). Chapter 39-10, titled “General Rules of the Road”, includes a general provision regulating class A emergency vehicles, including vehicles operated by law enforcement personnel. See N.D.C.C. § 39-10-03. Section 39-10-03, in pertinent part, provides:

1. The driver of a class A authorized emergency vehicle may:
c. Exceed the speed limit so long as the driver does not endanger life or property.
2. The exceptions herein granted to a class A authorized emergency vehicle apply only:
a. When the authorized emergency vehicle is in pursuit of or apprehension of a violator or a suspected violator requiring the use of these exemptions.

(Emphasis added). The Legislature adopted the limitation to the class A emergency vehicle “speed” exception as it is currently enacted in 1963. See 1963 N.D. Sess. Laws ch. 264, § 3.

[¶ 14] Chapter 39-09, N.D.C.C., titled “Speed Restrictions”, governs speed restrictions in North Dakota. Section 39-09-06, N.D.C.C., specifically exempts class A authorized emergency vehicles from the speed limitations imposed by chapter 39-09. Section 39-09-06 provides:

The speed limitations provided for in this chapter do not apply to class A authorized emergency vehicles. The exemptions provided for in this section do not protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others.

Id. This provision was amended in 1963 to its current form in the same act as the relevant provisions of N.D.C.C. § 39-10-03. See N.D. Sess. Laws ch. 264, § 5.

[¶ 15] We have addressed these statutes once before in the context of civil liability when a law enforcement officer caused a traffic-related fatality after a high-speed car chase. See Jones, 489 N.W.2d 576. In Jones, we said:

Under Section 39-09-06, N.D.C.C., class A emergency vehicles, including vehicles operated by law enforcement personnel, are exempted from the speed limitations, but the provision expressly states that the exemptions “do not protect the driver of any such vehicle from the consequences of a reckless disregard of the safety of others.” Under Section 39-10-03, N.D.C.C., a class A emergency vehicle is also exempted from adhering to other specified rules of the road “only ... when the ... vehicle is in pursuit of ... a suspected violator requiring the use of ...” the exemptions. That section also states that the driver of the emergency vehicle may exceed the speed limit “so long as he does not endanger life or property.”

Jones, at 580-81 (emphasis added). However, we have never addressed the class A emergency vehicle “speed” exception in a criminal context, as it is presented here.

[¶ 16] “ ‘Construction of statutes is a question of law and therefore fully reviewable.’ ” State v. Higgins, 2004 ND 115, ¶ 13, 680 N.W.2d 645 (quoting State v. Beciraj, 2003 ND 173, ¶ 14, 671 N.W.2d 250). The primary goal in construing and interpreting statutes is to ascertain the Legislature’s intent. See State v. Zahn, 2007 ND 2, ¶ 9, 725 N.W.2d 894 (citing State v. Buchholz, 2005 ND 30, ¶ 6, 692 N.W.2d 105; State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878). “Legislative intent must first be sought from the language of the statute.” Zahn, at ¶ 9 (internal quotations omitted). We give the words in the statute their plain, ordinary, and commonly understood meaning. N.D.C.C. § 1-02-03. The Court interprets statutes to give meaning and effect to every word, phrase, and sentence, and we do not adopt a construction which would render part of the statute mere surplusage. See N.D.C.C. §§ 1-02-02 and 1-02-03; see also Zahn, at ¶ 9. If possible, we construe statutes on the same subject to harmonize them and to give full force and effect to the Legislature’s intent. Zahn, at ¶ 9; Higgins, at ¶ 13. However, if a conflict between two statutes is irreconcilable, the more particular statute “must be construed as an exception to the general provision, unless the general provision is enacted later and it is the manifest legislative intent that such general provision shall prevail.” N.D.C.C. § 1-02-07.

■ [¶ 17] When read together, N.D.C.C. §§ 39-09-06 and 39-10-03 authorize law enforcement personnel to exceed the posted speed limit to pursue a suspected violator, so long as it can be done without danger to life or property. Here, the trooper asserted that he suspected Bachmeier might be driving under the influence based on his training and experience. The trooper determined that at the time he observed Bachmeier, he suspected Bachmeier may be driving under the influence because “[t]here is a better percentage for driving under the influence of alcohol” after midnight. The district court concluded the trooper’s suspicion was not “a reasonable justification for exceeding the posted speed limit,” but stated the trooper’s conduct was not so outrageous it would suppress the evidence of intoxication because the trooper exceeded the speed limit “on a rural stretch of highway, late at night,” where the trooper knew only of Bachmeier’s car on the road.

[¶ 18] We need not review the district court’s conclusion that the trooper lacked a “reasonable justification” for speeding because N.D.C.C. § 39-10-03 does not impose a “reasonableness” requirement on law enforcement’s suspicion. The Legislature declined to provide a standard for the suspicion that will justify mere pursuit. We decline to specifically address that issue here. The reference to “suspected violator” in N.D.C.C. § 39-10-03 differs from and is less stringent than the “reasonable and articulable suspicion” standard we apply to investigative stops, as it illustrates the difference between the ability to follow a suspected violator and the authority to seize a suspect for investigative purposes.

[¶ 19] The mere pursuit of a suspected violator does not implicate the Fourth Amendment concerns until some authority or control is exercised over the suspect. See Langseth, 492 N.W.2d at 300; Prouse, 440 U.S. at 653, 99 S.Ct. 1391; Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. Therefore, while the reasonable and articulable suspicion standard does not apply before an officer may follow a motorist, the reasonable and articulable suspicion standard must be met before the officer can exert some authority or control over the motorist by stopping him.

V

[¶ 20] The district court’s judgment and its order denying Bachmeier’s motion to suppress the evidence gathered from a traffic stop are affirmed.

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

DANIEL J. CROTHERS.

I concur in the result.


author: SANDSTROM, Justice.

text:
    2007 ND 45
    STATE of North Dakota, Plaintiff and Appellee, v. Kelly FROHLICH, Defendant and Appellant.
    No. 20060178.
    Supreme Court of North Dakota.
    March 22, 2007.

      Lloyd C. Suhr, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and ap-pellee.
    Steven Balaban, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Kelly Frohlich appeals the district court judgment after a jury found him guilty of attempted murder and reckless endangerment. Concluding the denial of a continuance was not an abuse of discretion and the evidence was sufficient for the jury to convict, we affirm.

I

[¶ 2] On August 25, 2005, Frohlich was arrested and charged with attempted murder after he allegedly tried to kill himself and his passenger — his seventeen-year-old girlfriend — by driving through a red light to collide with a semi tractor-trailer. Frohlich was also charged with reckless endangerment, because he did not hit the semi, but crashed into a van and injured its driver.

[¶ 3] In August 2005, Frohlich retained Ralph Vinje as counsel. On September 29, 2005, the district court held a preliminary hearing and bound Frohlich over for trial. On November 4, 2005, the district court granted Frohlich’s motion for a continuance, and the trial date was changed from January 10-12, 2006, to March 7-9, 2006. On February 17, 2006, Frohlich again moved for a continuance on the basis of his need for “some additional time to prepare for the trial of this matter.” The district court denied that motion on February 27, 2006.

[¶ 4] On March 1, 2006, the district court conducted a hearing to “reconsider a motion for continuance as a result of or in conjunction therewith a motion for substitution of counsel,” despite the fact that neither of Frohlich’s motions alleged as a basis for the continuance a conflict of interest or the need for substitution of counsel. The hearing transcript reveals the chronology of events that ultimately caused the district court to conduct the March 1 hearing. After Frohlich retained Vinje, the passenger was charged in a drug-related juvenile matter. Vinje represented her in that matter. In the “middle of December” 2005, Vinje learned the passenger had changed her story from one protecting Frohlich to one implicating him in the attempted murder charge in this case. Frohlich learned of the passenger’s recantation in January 2006 and told Vinje about his concerns of a possible conflict of interest arising from Vinje’s prior representation of her. Frohlich said he began looking for substitute counsel in January 2006. Frohlich met with another attorney, Steven Balaban, in “early” February 2006. At that meeting, Balaban told Frohlich he had a scheduling conflict with the March 7, 2006, trial. Balaban advised Frohlich to seek a continuance to .reschedule the trial so he could represent Frohlich.

[¶ 5] According to the district court, Balaban “informally inquired” about the need for a hearing to reconsider Frohlich’s motion for a continuance, because the actual basis for the motion was not alleged— namely, Frohlich’s desire for substitute counsel. The district court said it caused Balaban to schedule the March 1 hearing. [¶ 6] At the hearing, Vinje said that he did not have a conflict of interest but that Frohlich believed a conflict did exist which would hinder Vinje’s representation of him. As prospective counsel, Balaban said that because he had a scheduling conflict with the March trial date, a continuance was necessary to allow him to represent Frohlich and avoid the risk of disciplinary proceedings against Vinje. Finding no conflict that would limit Frohlich’s attorney’s ability to cross-examine the passenger, the district court denied the motion for a continuance; however, the court advised Frohlich and Vinje that it would allow another attorney to cross-examine the passenger. The district court also concluded the additional statutory language the State added to the charging document did not merit a continuance.

[¶ 7] At trial, Frohlich made no offer of proof regarding the alleged conflict of interest. On direct examination, the State questioned the passenger, and she admitted having lied to the police on the day of the incident. She testified she initially lied to protect Frohlich. She testified she originally told police that Frohlich wanted to kill only himself and that she had “made matters worse” by arguing with him in the car. She also admitted having lied at the September 29, 2005, preliminary hearing by testifying that the crash was an accident. She testified she had called the investigating officer after the preliminary hearing and confessed to lying. That officer testified he met with her on October 14, 2005, and she changed her story.

[¶ 8] Frohlich did not hire another attorney to cross-examine the passenger, nor did he raise the issue of the conflict of interest during the trial. The jury found Frohlich guilty of the attempted murder of his passenger and guilty of reckless endangerment of the van driver. Frohlich appeals.

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

II

[¶ 10] Frohlich contends the district court abused its discretion by failing to grant his motion for a continuance.

[¶ 11] Under the North Dakota Rules of Court, motions for continuance “will be granted only for good cause shown, either by affidavit or otherwise.” N.D.R.Ct. 6.1(b). “We will not reverse a trial court’s decision to deny a continuance absent an abuse of discretion.” State v. Hilgers, 2004 ND 160, ¶ 38, 685 N.W.2d 109 (citation omitted). “A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586.

A

[¶ 12] Frohlich argues that because his attorney had previously represented the passenger — a victim in this case and a prosecution witness — Frohlich perceived a conflict of interest that he claims forced his attorney to refrain from a vigorous cross-examination of the passenger. He contends the district court’s denial of his motion for a continuance to resolve a scheduling conflict for one particular attorney he wanted as trial counsel resulted in an unfair trial.

[¶ 13] “ ‘When a continuance is sought to retain or replace counsel, the right to select counsel must be carefully balanced against the public’s interest in the orderly administration of justice.’ ” State v. Wicks, 1998 ND 76, ¶ 26, 576 N.W.2d 518 (quoting Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.1984)). In exercising its discretion, the district court may consider the time required for trial preparation and the diligence of the moving party. Wicks, at ¶ 27.

[¶ 14] At the March 1 hearing to reconsider the motion for the continuance, Froh-lich’s trial counsel said:

I’m not alleging that I have a conflict of interest. I am alleging that because I have previously represented Ms. S-B my client has the perception' — -and it may be correct — that I would not cross-examine her as aggressively as I would a police officer or somebody that was otherwise a complete stranger. When I represented her, she was on his side. Now she is not on his side. She has obviously committed perjury, either in the beginning or now, and that requires a very vigorous cross-examination, and my client, Mr. Frohlich, isn’t convinced I am the person to do it. And so for those reasons I think there should be a continuance.

The district court found no conflict of interest that would impede Frohlich’s representation, but offered an alternative to alleviate the alleged conflict and limit the interference with Frohlich’s choice of trial counsel:

It appears to me that if Mr. Frohlich wishes to hire co-counsel for the purpose of cross-examination of a single witness that is certainly your prerogative. In this matter there has been sufficient time to prepare for trial. There has been discovery achieved. There has been disclosure. I find nothing in terms of a basis of conflict of interest such as to place Mr. Vinje in a position where he could not effectively represent you. But indeed, if you wish to have co-counsel for the purpose of cross-examination of a particular witness who Mr. Vinje has previously represented, you are certainly entitled to do that and you are free to do so. But we’ll proceed to trial as scheduled.

[¶ 15] At trial, Frohlich did not substitute counsel for the cross-examination of the passenger. The record does not reflect why Frohlich did not hire an attorney other than Balaban for the cross-examination. This record reveals little, if any, evidence of the diligence Frohlich used in securing substitute counsel.

[¶ 16] Frohlich had several weeks to find another attorney to represent him at trial, which would likely have fully resolved his perceived conflict. Frohlich said he began looking for another attorney in January 2006. The trial was scheduled for March 7, 2006.

[¶ 17] On March 1, 2006, the district court offered Frohlich the remedy of having a different attorney cross-examine the victim; however, for reasons not in the record, Frohlich did not avail himself of that remedy. On this record, the district court did not abuse its discretion by denying the continuance.

B

[¶ 18] Frohlich argues the State’s “last minute” amendment to the charging document, which he claims added a new culpability level, prevented him from adequately preparing for trial.

[¶ 19] The State charged Frohlich with the attempted murder of his passenger. See N.D.C.C. §§ 12.1-06-01(1) and 12.1-16-01.

[¶ 20] The Information need only “name or otherwise identify the defendant, and must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” N.D.R.Crim.P. 7(c). “For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated.” Id. Under Rule 7(e), N.D.R.Crim.P., “[u]nless an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit an information to be amended at any time before the verdict or finding.” (Emphasis added.)

[¶ 21] “A defective information cannot be ‘cured’ through proper jury instruction or other means short of amendment.” State v. Frankfurth, 2005 ND 167, ¶ 25, 704 N.W.2d 564 (citations omitted) (affirming the arrest of a judgment because the information lacked an essential element of the charged offense); but see State v. Bertram, 2006 ND 10, ¶¶ 29-31, 708 N.W.2d 913 (limiting Frankfurth to its facts and holding that because the issue of a defective information was raised during trial, harmless error analysis under N.D.R.Crim.P. 52(a) was appropriate).

[¶ 22] In this case, the State did move to amend the information. It did so on February 22, 2006, approximately one week prior to the hearing and approximately two weeks prior to trial. On March 3, 2006, the district court granted the motion. Therefore, absent any substantial prejudice to any of Frohlich’s rights or the inclusion of a new or different charge, the State satisfied Rule 7(c) — rendering Frankfurth and Bertram inapposite to the facts of this case.

[¶ 23] Frohlich’s argument that the State added an element or changed the culpability level for the attempted murder charge fails. This is the original charging language:

COUNT I: The defendant intentionally engaged in conduct which, in fact, constitutes a substantial step toward the commission of the crime of murder; specifically, the defendant attempted to kill A.S. by attempting to drive his vehicle into a semi truck while A.S. was a passenger.
N.D.C.C. 12.1-06-01(1)
12.1-16-01
12.1-32-01(2)

The amended information only added two witnesses. The second amended information added language to count one and added one more witness:

COUNT I: The defendant, acting with the kind of culpability otherwise required for the commission of the crime of murder, intentionally engaged in conduct which, in fact, constitutes a substantial step toward the commission of the crime of murder; specifically, the defendant attempted to kill A.S. by attempting to drive his vehicle into a semi truck while A.S. was a passenger. N.D.C.C. 12.1-06-01(1)
12.1-16-01
12.1-32-01(2)

(Emphasis added.) Our criminal attempt statute provides, in part:

A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A “substantial step” is any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.

N.D.C.C. § 12.1-06-01(1).

[¶ 24] The State did not add a new element to the offense or change the offense culpability merely by reproducing the remaining statutory language of N.D.C.C. § 12.1-06-01(1). As N.D.C.C. § 12.1-06-01(1) provides, the culpability level of the substantial step conduct is always elevated to “intentionally”; therefore, regardless of the required culpability of the underlying offense of murder, the State has to prove beyond a reasonable doubt that Frohlich intentionally drove his vehicle into another vehicle to kill his passenger. All versions of the charging doc: uments included the correct citation to section 12.1-06-01(1), N.D.C.C., criminal attempt; section 12.1-16-01, N.D.C.C., murder; and section 12.1-32-01(2), class A felonies. At all times Frohlich was on notice of the elements of the offense of attempted murder.

[¶ 25] The district court did not abuse its discretion by denying the continuance.

Ill

[¶ 26] Frohlich argues the evidence was both insufficient for the jury to convict him and unduly cumulative.

A

[¶ 27] Because Frohlich timely moved for an acquittal under N.D.R.Crim.P. 29, he preserved the issue of sufficiency of the evidence for appellate review. State v. Steen, 2000 ND 152, ¶ 16, 615 N.W.2d 555. When we review a challenge to the sufficiency of the evidence, we consider only the evidence and reasonable inferences most favorable to the verdict to determine whether there is sufficient evidence to warrant a conviction. State v. Buchholz, 2006 ND 227, ¶ 20, 723 N.W.2d 534. “A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.” Id. (quotation and citation omitted). We do not weigh conflicting evidence or judge the credibility of witnesses. Id.

[1128] In this case, several witnesses testified about Frohlich’s conduct, statements, and demeanor after the collision. Some of those witnesses’ testimony is reproduced here, in part:

Officer Ryan O’Donnell: I don’t recall his exact statements, but I remember specifically him saying “kill us” ... I asked who “us” was ... [a]nd he stated he had a passenger, which was a female that had — that was not at the scene.... Multiple times he said that.
Officer Joe Arenz: I ... sat in the ambulance and rode in the back with one of the paramedics and Mr. Frohlich.... He was using his cell phone.... He made the statement that he ivas trying to kill himself and that f* * * * *g bitch. ... He was yelling into his cell phone to whoever he was talking to.
The State: Did you question or talk to Mr. Frohlich while you were waiting for the other officers [at the hospital]?
Officer Arenz: No, I did not.
The State: Was he making any statements during this time?
Officer Arenz: Yeah, he was.
The State: What did he say?
Officer Arenz: He was making statements about that his girlfriend ... had made him very angry and that he just couldn’t take it anymore. Made statements about just wanting to die because his life had been so miserable.
Paramedic Neil Frame: [H]e was on a cell phone talking to someone, I’m not sure who it was. I think he made a couple different calls, but he was real intent on using that cell phone.... But when I was trying to get information from him, he was on the cell phone and I heard him say “I tried to kill us.”... Those were his exact words. And I put that in quotation marks because that’s the type of thing that we want to, or that I would document. ... Once we were enroute in the back of the ambulance enroute to the hospital asking him what was going on, his words were, “/ had snapped and I had tried to kill myself.” The State: So he said it both ways then? Paramedic Frame: Yup.
Dr. Madeline Free: As [Frohlich] explained to me, his girlfriend tended to push his buttons. He indicated that he had intended to hit a semi trailer, but other events had interfered and another car pulled around the semi and he ended up hitting another vehicle. He indicated that initially it was his intent to kill the girlfriend and himself.
The State: The defendant told you he had tried to hit a semi truck with the car to kill himself and his girlfriend?
Dr. Free: Mm-hmm.
The State: Did he talk about whether he had a red or green light?
Dr. Free: He indicated that he went through a red light.
The State: So he was aware there was a red light and he went through it?
Dr. Free: Yes.
The State: What is your professional opinion?
Dr. Free: That it was a deliberate calculated act.
The State: And what is the bases [sic] for that opinion?
Dr. Free: My psychiatric evaluation at the hospital in the emergency room, the time I spent with him in the emergency room immediately following that event.
The passenger: I asked him where we were going? And he was looking straight ahead, both hands on the wheel, and both feet out straight, he said, “I’m going to kill us. ”
Detective Gaddis: He told me that during the interview that he got upset, snapped. He got to the stop light at the intersection—
The State: He said he “snapped,” or is that you paraphrasing?
Detective Gaddis: No, he said that he snapped ... He said that he got to the stop light, he floor boarded the car and he said he was angling for the semi. He remembered the van traveling faster than the semi, and he ended up hitting the car or the van, excuse me.
He talked about hitting specifically the wheels. And also at one point of the interview he talked about hitting the bumper and specifically wanted to hit the semi, but instead of the van, the semi was bigger and could take him out.

(Emphasis added.)

[¶ 29] Considering the evidence and reasonable inferences most favorable to the verdict, we conclude there was sufficient evidence to sustain the conviction.

B

[¶ 30] Frohlich argues the district court obviously erred by allowing needless cumulative testimony. Frohlich concedes that he is raising this issue for the first time on appeal.

[¶ 31] “ ‘[I]ssues not raised below, even constitutional issues, generally will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).’” State v. Haibeck, 2006 ND 100, ¶ 8, 714 N.W.2d 52 (quoting State v. Parisien, 2005 ND 152, ¶ 17, 703 N.W.2d 306). “An obvious error or defect that affects substantial rights may be considered even though it was not brought to the court’s attention.” N.D.R.Crim.P. 52(b).

[¶ 32] “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.D.R.Ev. 401. “All relevant evidence is admissible.... ” N.D.R.Ev. 402. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ... or needless presentation of cumulative evidence.” N.D.R.Ev. 403. Cumulative evidence is “[additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence (esp. that which does not need further support).” Black’s Law Dictionary 577 (7th ed.1999).

[¶ 33] Although some of the witness testimony might have been of the same character, its probative value far outweighs any prejudice to Frohlich. In fact, it appears that some of the witnesses at the scene actually helped Frohlich’s case by contradicting an investigating officer’s testimony in reconstructing the accident. Considering the variety of sources, the time at which they perceived or obtained their information about Frohlich, and their differing roles in this case, the district court did not commit obvious error by allowing several witnesses to testify.

IV

[¶ 34] We affirm the district court judgment.

[¶ 35] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: KAPSNER, Justice.

text:
    2007 ND 41
    Christy Claire JELSING n/k/a Christy Claire Hafner, Plaintiff, Appellee and Cross-Appellant, v. Terry Jay PETERSON, Defendant, Appellant and Cross-Appellee.
    No. 20060112.
    Supreme Court of North Dakota.
    March 22, 2007.

      Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, N.D., for plaintiff, appel-lee and cross-appellant.
    Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for defendant, appellant and cross-appellee.
   KAPSNER, Justice.

[¶ 1] Terry Peterson appeals from a judgment granting Christy Jelsing custody of the parties’ minor child and allowing Jelsing to move with the child from North Dakota to Arizona. Jelsing cross-appeals from the denial of her request for attorney fees. We affirm, concluding the district court did not clearly err in granting Jels-ing custody of the child and in allowing her to move with the child from North Dakota to Arizona, and the court did not err in denying Jelsing’s request for attorney fees.

I

[¶ 2] Peterson and Jelsing have never been married to each other. In a March 2003 stipulated judgment, Peterson acknowledged he was the father of a child born to Jelsing in December 2002. The stipulated judgment provided that “[f]or purposes of the child support guidelines Christy Claire Jelsing is the primary caregiver” of the child and set Peterson’s child support obligation at $168 per month. Since that time, the child has spent approximately an equal amount of time with each parent.

[¶ 3] In June 2005, Peterson moved for a determination of custody and sought an interim ex parte order. The district court issued an interim ex parte order, awarding the parties alternating interim custody of the child, requiring neither party to pay child support, prohibiting both parties from driving with the child in a motor vehicle without a valid drivers license, and prohibiting both parties from changing the child’s residence to another state without court approval. . Jelsing subsequently moved for a determination of custody and to change the child’s residence from North Dakota to Arizona.

[¶ 4] After a July 2005 hearing on the interim ex parte order, the court allowed Jelsing to take the child to Arizona with the understanding that she would return the child to North Dakota by September 11, 2005, and while the child was residing in Arizona, Peterson would be entitled to visitation upon reasonable advance notice to Jelsing. The court also said that from the time the child returns to North Dakota until a scheduled evidentiary hearing in October 2005, the child would spend an equal amount of time with each parent.

[¶ 5] After the evidentiary hearing on the parties’ custody motions and Jelsing’s request to change the child’s residence from North Dakota to Arizona, the district court decided the case was an original custody proceeding and awarded Jelsing custody of the child under the “best interests of the child” factors in N.D.C.C. § 14-09-06.2(1). The court then analyzed the relocation issue under Stout v. Stout, 1997 ND 61, 560 N.W.2d 903, and Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144 and granted Jelsing’s request to move with the child frqm North Dakota to Arizona. The court also denied Jelsing’s request for attorney fees.

II

[¶ 6] Peterson argues the district court erred in awarding Jelsing custody of the parties’ child under the best interest factors in N.D.C.C. § 14-09-06.2(1). Jelsing responds custody was originally with her by virtue of the March 2003 judgment, and she argues there was no necessity for an analysis under the best interests factors, because Peterson was seeking to change custody under N.D.C.C. § 14-09-06.6 and needed to show a material change in circumstances.

[¶ 7] Section 14-09-07, N.D.C.C., provides that a custodial parent “may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.” The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent’s visitation rights if the custodial parent seeks to move out of state. State ex rel. Melling v. Ness, 1999 ND 73, ¶ 7, 592 N.W.2d 565. In determining whether a custodial parent should be allowed to relocate with a child to another state, the primary consideration is the best interests of the child. Negaard v. Negaard, 2002 ND 70, ¶ 7, 642 N.W.2d 916. The custodial parent has the burden of proving, by a preponderance of the evidence, that a move is in the best interests of the child. Dickson v. Dickson, 2001 ND 157, ¶ 7, 634 N.W.2d 76.

[¶ 8] The relevant factors for evaluating whether a custodial parent should be allowed to move with a child out of state were enumerated in Stout, 1997 ND 61, 560 N.W.2d 903, and Hawkinson, 1999 ND 58, 591 N.W.2d 144:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move, [and]
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Hawkinson, at ¶¶ 6, 9. Under that four-part test, no single factor is controlling and a minor factor in one case may have a greater impact in another case. Hentz v. Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694.

A

[¶ 9] Our decisions for relocation recognize that a motion to relocate is not a motion for a change of custody, and in a motion to relocate, a decision about primary physical custody has already been made and is not the issue. Maynard v. McNett, 2006 ND 36, ¶ 15, 710 N.W.2d 369; Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762; Stout, 1997 ND 61, ¶ 54, 560 N.W.2d 903.

[¶ 10] Here, the initial March 2003 stipulated judgment said that “[f]or purposes of the child support guidelines Christy Claire Jelsing is the primary caregiver” of the parties’ minor child. Contrary to Jelsing’s claim, the plain language of the stipulated judgment reflects there was no initial custody determination in this case. The district court thus properly analyzed this case under the best interests factors in N.D.C.C. § 14-09-06.2(1) for an initial custody determination.

[¶ 11] We exercise a limited review of child custody awards. Eifert v. Eifert, 2006 ND 240, ¶ 5, 724 N.W.2d 109. A district court’s decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. Klein v. Larson, 2006 ND 236, ¶ 6, 724 N.W.2d 565. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court’s initial custody decision merely because we might have reached a different result. Dvorak v. Dvorak, 2006 ND 171, ¶ 11, 719 N.W.2d 362. A choice between two permissible views of the weight of the evidence is not clearly erroneous, Dvorak, at ¶ 11, and our deferential review is especially applicable for a difficult child custody decision involving two fit' parents. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 12, 700 N.W.2d 711.

[¶ 12] In awarding Jelsing custody of the parties’ child, the district court decided most of the factors for custody decisions under N.D.C.C § 14-09-06.2(1) favored neither party. The court decided Jelsing was the child’s closest nurturing parent and had the advantage under N.D.C.C. § 14-09-06.2(l)(d), the length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity, and (m), any other relevant factors, and Peterson had a “slight advantage” under N.D.C.C § 14-09-06.2(l)(f), the moral fitness of the parents. The court recognized this was a “ ‘close call’ ” with no “clear-cut ‘winner,’ ” but the factor that tipped the scales was that Jelsing was the child’s “ ‘closest, nurturing parent.’ ”

[¶ 13] Peterson argues the district court improperly found factors (a), the love, affection, and emotional ties between the parents and child, (b), the parents’ capacity and disposition to give the child love, affection, and guidance and to continue the child’s education, and (c), the parents’ disposition to provide the child with food, clothing, and medical care, favored neither party. Peterson claims those factors should have been found to favor him. In support of his claim, Peterson cites some of the court’s statements that he was not involved with the child for the first two months of the child’s life. The gist of the court’s analysis of these three factors, however, is that despite the court’s statements about Peterson, the court ultimately had no concerns about him and there was no discernable difference between the parents on those three factors. We decline Peterson’s request to reweigh the evidence on those three factors, and we conclude the court did not clearly err in analyzing those factors.

[¶ 14] Peterson argues the district court misapplied the law for factor (d), the stability and continuity of the child’s environment, by looking only to the future and ignoring the past and the court clearly erred in finding Jelsing was the child’s closest nurturing parent. Although factor (d) uses an approach looking at the past, there is an overlap between factors (d) and (e), the permanence of the existing or proposed custodial home. Eifert, 2006 ND 240, ¶ 11, 724 N.W.2d 109. The court found that for the first two months of the child’s life, Jelsing was the child’s “closest, nurturing parent,” and the child thereafter spent an “approximately” equal amount of time with Peterson and Jelsing. The court’s statements do not reflect a misapplication of the law, and contrary to Peterson’s claim, the court recognized the child “has enjoyed a stable, satisfactory living environment throughout his young life, whether [the child] has been in [Jelsing’s] care or [Peterson’s] care.” The court found that both parents have provided the child with stability, but that Jelsing was, and remains, the closest nurturing parent of the child. We reject Peterson’s claim the court misapplied the law or ignored his evidence, and we conclude the court did not clearly err in analyzing factor (d).

[¶ 15] Peterson claims the court misapplied the law under factor (e) by looking only to the future and ignoring the past and the court clearly erred in concluding this factor favored Jelsing. Contrary to Peterson’s claim, however, the court decided this factor favored neither party. Moreover, factor (e) does look to the future, see Eifert, 2006 ND 240, ¶ 11, 724 N.W.2d 109, and permits a court to consider the “proposed” custodial home. The court’s finding did not ignore the parties’ existing homes. We conclude the court did not misapply the law for factor (e), and the court did not clearly err in analyzing that factor.

[¶ 16] Peterson claims the court’s finding on factor (f), the parents’ moral fitness, is clearly erroneous because the court only gave him a “slight” advantage. He argues the court improperly minimized the evidence of Jelsing’s misconduct for convictions for driving while intoxicated and issuing an NSF check, and for admitting to driving while her license was suspended with the child in the vehicle. Peterson claims the court should have found factor (f) “strongly” favored him. The court decided Jelsing’s conduct was not indicative of a character flaw so serious in nature as to disqualify her from being the child’s custodial parent. The court recognized a driving under the influence conviction was not a “trivial matter” and Jelsing exercised poor judgment in driving while her license was suspended. The court found the driving under the influence incident was isolated, Jelsing had seen the error of her ways, and that type of conduct was not likely to reoccur. The district court did not minimize Jelsing’s conduct, and we do not minimize evidence that may impact a parent’s moral fitness. See Klein, 2006 ND 236, ¶¶ 15-22, 724 N.W.2d 565. However, the district court accorded Peterson a “slight advantage,” and we decline Peterson’s invitation to reweigh factor (e) in the balance of the other relevant factors.

[¶ 17] Peterson claims the court’s finding on factor (k), the child’s interrelationship and interaction with others, is clearly erroneous because the finding ignored the child’s extended family in the Minot area. Peterson also asserts the court misapplied the law on factor (m), any other relevant factor, by using his lawful and appropriate comments against him, including his comments about requesting a paternity test and suggesting the possibility of other options, such as adoption. We conclude, however, the district court did not misapply the law with those comments or any other factors raised by Peterson. The factor that tipped the scales in this case is the court’s finding that Jelsing “is, and has always been, the ‘closest, nurturing parent’ ” for the child. We agree with the district court’s statement that this case was a “ ‘close call’ ” with “no clear-cut ‘winner.’ ” In situations like this, we recognize the admonishment of N.D.R.Civ.P. 52(a) that “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” We are not left with a definite and firm conviction the district court made a mistake in evaluating the best interests of the child factors under N.D.C.C. § 14-09-06.2(1) and in awarding primary custody of the child to Jelsing. We therefore conclude the court’s custody decision is not clearly erroneous.

B

[¶ 18] Peterson argues the district court erred in allowing Jelsing to move with the child to Arizona, because the court misapplied the law by ignoring the requirement to preserve and foster his relationship with his child under the fourth Stoutr-Hawkinson factor, which requires the court to consider:

The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144.

[¶ 19] In analyzing the fourth Stout-Hawkinson factor, the district court found:

[Jelsing] is confident that a visitation schedule can be devised which will enable [Peterson] and [the child] to develop and maintain a parent-child relationship which will be beneficial to both of them — even though this relationship will necessarily have to be sustained at a great distance if [Jelsing] is allowed to take [the child] with her to Arizona and [Peterson] remains in North Dakota.
[Jelsing] believes that things will work out, from a visitation standpoint, because:
(a) she has never attempted to keep [the child] from [Peterson] in the past, and will not do so in the future;
(b) she wants [the child] to be able see [Peterson] as often as possible;
(c) she will encourage [Peterson and his family] to visit [the child] in Arizona as often as they like;
(d) [Jelsing] will do her best to see that [the child] gets back to North Dakota as often as possible;
(e) [Peterson] can exercise visitation with [the child] for the majority of the summer each year, and on alternating major holidays throughout the year; and,
(f) [Jelsing] will facilitate regular telephone and e-mail communication between [Peterson and the child].
In summary, the Court agrees with [Jelsing’s] assessment that the advantages of allowing her to change [the child’s] residency from North Dakota to Arizona are many, and that the disadvantages can be ameliorated with the implementation of a visitation schedule which will enable [Peterson and the child] to maintain a meaningful parent-child relationship.

[¶ 20] Peterson argues the court’s statement that the disadvantages of the move can be “ameliorated” with a visitation schedule demonstrates a misapplication of the law to preserve and foster his relationship with his child. We conclude, however, the district court’s decision on this factor does not ignore the requirement of preserving and fostering Peterson’s relationship with his child. The context of the court’s decision recognizes that any of the obvious “distance” disadvantages of a move to Arizona could be alleviated with an appropriate visitation schedule. The court implemented a visitation schedule that, in the court’s opinion, “ameliorated” the disadvantages of the distance of the move. Our decisions have explicitly recognized that distance alone is not a sufficient basis to deny relocation and must be considered in the context of fashioning a visitation schedule to foster a relationship between the child and the noncustodial parent. Porter v. Porter, 2006 ND 123, ¶ 17, 714 N.W.2d 865. We have also said that although it may be impossible to establish a visitation schedule with exactly the same amount or frequency of visitation,, a visitation schedule that provides less frequent, but extended, visitation periods will preserve a noncustodial parent’s ability tó foster and develop a relationship with a child. Id. We conclude the court did not misapply the law, and we are not left with a definite and firm conviction the court erred in allowing Jelsing to move with the parties’ child from North Dakota to Arizona. We therefore conclude the court’s relocation decision is not clearly erroneous.

Ill

[¶ 21] In her cross-appeal, Jels-ing argues the district court should have awarded her attorney fees under N.D.C.C. § 14-05-23 and Bertsch v. Bertsch, 2006 ND 31, ¶ 8, 710 N.W.2d 113.

[¶ 22] Section 14-05-23, N.D.C.C., and Bertsch, 2006 ND 31, ¶ 8, 710 N.W.2d 113 involve awards of attorney fees in a divorce proceeding. In a divorce action, a court may award attorney fees under N.D.C.C. § 14-05-23, based upon one spouse’s need and the other’s ability to pay, and an attorney fee award will not be overturned on appeal unless the court abused its discretion. Lukenbill v. Fettig, 2001 ND 47, ¶ 14, 623 N.W.2d 7. Jelsing’s reliance- on N.D.C.C. § 14-05-23 and Bertsch is misplaced, however, because this is not a divorce proceeding.

[¶ 23] Attorney fees are not allowed to a successful litigant unless expressly authorized by statute or agreement. L.C.V. v. D.E.G., 2005 ND 180, ¶ 14, 705 N.W.2d 257. Jelsing has not cited any legal authority entitling her to attorney fees in this case. See L.C.V., at ¶¶ 12-14 (holding mother not entitled to attorney fees in paternity action under statutes in effect when action commenced); Lukenbill, 2001 ND 47, ¶¶ 14-15, 623 N.W.2d 7 (same). We conclude as a matter of law the district court did not err in declining to award Jelsing attorney fees for this proceeding.

rv

[¶ 24] We affirm the judgment.

[¶ 25] GERALD W. YANDE WALLE, C.J., and MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ„ concur.

DALE Y. SANDSTROM, J., I concur in the result.

      . The district court’s memorandum decision, with its extensive findings of fact, and the court's judgment are identical except for the title and "closing matters” about child support in the judgment. This unnecessary repetition is apparently based on a misconception by Peterson’s counsel, which is explained in a letter to the district court:
      As to the proposed judgment I submitted, I did so because in the dozen or so cases I have had before the supreme court in the last year or so, I have found the Court bothered by judges who do not place their reasoning in the final document (or worse yet, just put it in a letter, or even worse yet, give no reasoning at all) or make it necessary for the appellate court to go from document-to-document to find the court’s reasoning. In other words, the supreme court has clearly indicated (at least to me) that the findings should be in the final document and not incorporated by reference.
      Contrary to counsel’s representations to the district court, however, we do not require a district court's findings of fact to be repeated in the judgment. Under N.D.R.Civ.P. 52(a), it is “sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court.” We have also said a district court’s findings must be sufficient to enable an appellate court to understand the factual determinations made by the court as a basis for its conclusions of law and judgment. Gonzalez, 2005 ND 131, ¶ 4, 700 N.W.2d 711.