author: NEUMANN, Justice.

text:
    2002 ND 189
    STATE of North Dakota, Plaintiff and Appellant, v. Patrick William DUNN, Defendant and Appellee.
    No. 20020154.
    Supreme Court of North Dakota.
    Dec. 4, 2002.

      Mark Rainer Boening, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellant.
    Mark A. Beauchene, Wold Johnson, P.C., Fargo, N.D., for defendant and ap-pellee.
   NEUMANN, Justice.

[¶ 1] The State appealed from an order granting Patrick William Dunn’s motion to suppress evidence in his criminal prosecution for possession of marijuana and drug paraphernalia. We hold the police officer’s search of Dunn’s jacket violated Dunn’s Fourth Amendment rights against unreasonable search and seizure, and we affirm the order suppressing evidence obtained as a result of the illegal search.

I

[¶ 2] The facts in this case are stipulated and not in dispute. Fargo police officers were dispatched to a private residence in South Fargo on the evening of February 23, 2002 to investigate a report of a loud party and possible fight at a private residence. When the officers arrived at the residence they discovered numerous vehicles parked in the driveway and on the street. As they approached the door of the home, they observed a black leather jacket lying on the side of the driveway. After the officers knocked, a female opened the door and told them she lived in the home. An officer then asked her “if she could tell all the people that were hiding in the basement to come out and it was time for them to leave.” While waiting for her to do as the officer had requested, one of the officers picked up the jacket lying on the side of the driveway and searched the pockets. He discovered a drug pipe and a film canister containing “a green leafy vegetable material that smelled of marijuana.” When Dunn exited the home he was not wearing a sweatshirt or jacket and one of the officers asked him if the black jacket that had been lying beside the driveway was his. At first Dunn denied it but then stated the jacket was his. Dunn was arrested and charged with possession of marijuana and drug paraphernalia. He subsequently filed a motion to suppress the evidence found as a result of the officer’s search of the jacket pockets, asserting the search constituted a violation of his rights against unreasonable search and seizure under the Fourth Amendment of the United States Constitution and under Article 1, Section 8, of the North Dakota Constitution. After a hearing, the court entered an order granting the motion to suppress, and the State appealed.

II

[¶ 3] On appeal, the State asserts the district court erred in granting Dunn’s motion to suppress evidence. The State argues the officer inadvertently discovered the contraband while seeking to identify the owner of the jacket, and the officer’s actions did not constitute an illegal search under the federal or state constitutions.

[¶ 4] The Fourth Amendment of the United States Constitution, made applicable to the States by the Fourteenth Amendment, and Article 1, Section 8 of the North Dakota Constitution, prohibit unreasonable searches and seizures. City of Fargo v. Steffan, 2002 ND 26, ¶ 8, 639 N.W.2d 482. A search occurs when the government intrudes upon an individual’s reasonable expectation of privacy. State v. Winkler, 552 N.W.2d 347, 351 (N.D.1996). When an individual reasonably expects privacy in an area, the government must obtain a search warrant unless the intrusion falls within a recognized exception to the warrant requirement. State v. Gregg, 2000 ND 154, ¶ 23, 615 N.W.2d 515. In the absence of such an exception, evidence obtained in violation of the Fourth Amendment’s protections against unreasonable searches must be suppressed as inadmissible under the exclusionary rule. Id.

[¶ 5] When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts and testimony in favor of affirmance. State v. Haverluk, 2000 ND 178, ¶ 7, 617 N.W.2d 652. We affirm the district court’s decision unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. Id. Questions of law are fully reviewable. Id.

[¶ 6] The district court made an extensive analysis of the Fourth Amendment issue and entered the following relevant findings in its memorandum opinion:

[A] woman answered the door and identified herself as someone who lived there. Officer Benjamin told her that she had to tell the people in the basement to leave. Then Officer Stanger picked up the jacket that the officers had noticed earlier, and, without obtaining a warrant, he searched the pockets for identification. He found a drug pipe and marijuana.
The State appears to argue that the jacket was abandoned because it was laying on the ground outside the house. The State cites to several cases, which involved statutory duties to return lost property, where the courts found the searches were valid....
The common theme among these cases is that the object was found in a public place, and if people were in the vicinity, none of them claimed ownership of the object. In this case, the police found the jacket beside the driveway near the front door to a private home. Several cars were parked in the driveway and on the street by the home, and the officers knew that there were several people inside the home. This jacket was not found in a public place, and the officers never checked with the people at the home to verify that it was actually “lost” before searching it. The cases cited by the State are inapplicable to the facts in this case.
The State tries to justify the search by arguing that the officer was looking for identification. As already discussed, this justification fails since the officers never questioned the people in the house first to determine whether this item was actually “lost.” ...
Defendant did not abandon his jacket when he left it on the ground outside the house or when he initially denied ownership. Therefore, the search was illegal, and the evidence obtained is suppressed.

(Footnotes omitted.)

[¶ 7] Police with legitimate business may enter certain areas surrounding a home where persons may have a reasonable expectation of privacy, such as curtilage, but which are impliedly open to use by the public. State v. Kitchen, 1997 ND 241, ¶ 19, 572 N.W.2d 106. Consequently, the police had a right to go upon the private residence property to investigate the report of a loud party and possible fight.

[¶ 8] However, individuals have a reasonable privacy expectation in their personal property which is protected by the Fourth Amendment proscription against unreasonable search and seizure. Commonwealth of Pennsylvania v. Brundidge, 533 Pa. 167, 620 A.2d 1115, 1119 (1993) (motel guest retained expectation of privacy in jacket left in motel room after check out and search of jacket required judicial warrant issued upon probable cause); State v. Grant, 614 N.W.2d 848, 854 (Iowa App.2000) (guest in a private home retained a privacy interest in her jacket, and the homeowner did not have authority to consent to search of the jacket). While individuals have a constitutional privacy interest in their personal property, a warrantless search or seizure of personal property that has been abandoned does not violate the Fourth Amendment. State v. Huether, 453 N.W.2d 778, 780 (N.D.1990). Abandonment, in the Fourth Amendment sense, is primarily a question of intent which may be inferred from words, acts and other objective facts. Id. at 781. Abandonment is a question of fact dependent upon a factual inquiry. Id. A trial court’s findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affir-mance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994).

[¶ 9] The officers observed the jacket lying near the driveway of the private residence as they approached the front door of the home. Although the officers observed numerous cars parked in the immediate area and the officers knew many people may be in the home attending a party, they made no inquiry, prior to searching the jacket, whether the jacket belonged to someone in the home or whether it was lost and unclaimed. The district court specifically found the jacket was not abandoned. There is sufficient competent evidence fairly capable of supporting that finding by the trial court. Consequently, Dunn, as the jacket’s owner, had a reasonable expectation of privacy in the jacket protected by the Fourth Amendment. Under these circumstances, we conclude the police could not legally search the jacket pockets without a search warrant based upon probable cause to believe the jacket contained evidence of criminal activity.

[¶ 10] The State cites several cases to support its position the officers had a legal right to search the jacket in an attempt to identify its owner. We conclude, as did the district court, that all of these cases are distinguishable on their facts from this case. In U.S. v. Sumlin, 909 F.2d 1218, 1220 (8th Cir.1990), a woman was robbed of her purse as she arrived at her home late oné evening. An officer investigating the crime scene found a blue cloth purse in an alley behind the victim’s home. He searched inside the purse for identification to confirm ownership. During the search he discovered cocaine and a handgun, and the purse owner was subsequently charged with possession of contraband and illegal possession of a gun. The Eighth Circuit Court of Appeals concluded the officer’s search of the purse for identification was justified, because the officer was attempting to locate and identify the reportedly stolen and missing purse. The facts in this case are clearly distinguishable. Prior to the officer’s search of Dunn’s jacket, no one reported the jacket stolen or lost. Furthermore, the missing purse in Sumlin was found in a grassy alley behind the homeowner’s property, whereas the jacket in this ease was lying beside the driveway on private property. We, therefore, conclude the Sumlin opinion does not support the officer’s search of the jacket in this case.

[¶ 11] In U.S. v. O’Bryant, 775 F.2d 1528, 1533 (11th Cir.1986), an alleged Fourth Amendment violation occurred when an officer searched inside a discarded briefcase the officer found sitting next to an overflowing trash bin on a busy city street. The Eleventh Circuit Court of Appeals concluded that under those circumstances the owner of the briefcase did not have a reasonable expectation of privacy in it. This Court has also held that a person does not have a reasonable expectation of privacy in the contents of discarded garbage. See State v. Herrick, 1997 ND 155, ¶¶ 9-10, 567 N.W.2d 336. Clearly, the jacket in this case had not been placed in the trash or discarded as a piece of garbage. We conclude the O’Bryant decision does not support the officer’s search in this case.

[¶ 12] The State also relies upon the Oregon cases of State v. Pidcock, 306 Or. 335, 759 P.2d 1092, 1095 (1988) and State v. Belcher, 306 Or. 343, 759 P.2d 1096, 1097 (1988). In Pidcock a mother and daughter found a black leather briefcase lying near their mailbox. They summoned law enforcement to help them find the owner. The police searched the contents of the briefcase to identify the owner and discovered contraband. The Supreme Court of Oregon concluded that, under the circumstances, the officer’s warrantless search of the discarded or lost briefcase to find the identity of its owner was justified and did not constitute a Fourth Amendment violation. In Belcher, the defendant, after engaging in a fight in a tavern, ran from the scene and left behind a red backpack. The trial court found that the defendant had abandoned the backpack. The Supreme Court of Oregon concluded the police did not violate the defendant’s Fourth Amendment rights in searching the contents of the abandoned backpack for identification of the owner. In both of these Oregon cases the items searched by the police clearly had been abandoned or lost with no identified owner, and the court concluded the police were lawfully justified in searching the contents of the items to identify the rightful owners. Both cases are distinguishable from the facts in this case, because the officer’s search of the jacket was conducted prior to any inquiry or ascertainment by the officer whether the jacket was lost or abandoned and unclaimed.

Ill

[¶ 13] We conclude that the officer’s warrantless search of Dunn’s jacket, under the circumstances of this case, violated Dunn’s Fourth Amendment rights against unreasonable search and seizure. The search did not fall outside the protections of the Fourth Amendment as a permissible inspection to identify the owner of personal property, because the circumstances did not justify an inference that the jacket was stolen, lost, or abandoned. Furthermore, there is no claim the officer’s search was based upon probable cause to believe the jacket contained evidence of criminal activity. We, therefore, hold there is sufficient competent evidence fairly capable of supporting the trial court’s findings and its decision is not contrary to the manifest weight of the evidence, and we affirm.

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


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2002 ND 192
    The RAMSEY COUNTY SOCIAL SERVICE BOARD, and the North Dakota Department of Human Services, as assignees of Jane Kamara, and Jane Kamara, individually, Plaintiffs and Appellees, v. Abdul KAMARA, Defendant and Appellant.
    No. 20020174.
    Supreme Court of North Dakota.
    Dec. 4, 2002.
    Rehearing Denied Dec. 20, 2002.

      Abdul Kamara (submitted on brief), pro se, Bismark, N.D., for defendant and appellant.
    Mary Christianson Berg (submitted on brief), Devils Lake, N.D., for plaintiffs and appellees.
   MARING, Justice.

[¶ 1] Abdul Kamara appeals from the district court’s Order Denying Modification” of Child Support. We affirm.

[¶ 2] Appellant, Abdul Kamara, was arrested in September of 2000, convicted, and incarcerated, leaving his wife unable to provide for the financial needs of their four children. As a result, Kamara’s wife applied for and received public assistance benefits from July 2001 to March 2002.

[¶ 3] On March 21, 2002, a hearing was held to establish Kamara’s child support and to determine Kamara’s obligation to reimburse the Ramsey County Social Service Board (“Social Service Board”) and the North Dakota Department of Human Services for public assistance benefits provided. The judicial referee ordered Ka-mara to make child support payments in the amount of $264.00 per month, which would be reduced to $232.00 per month when there remained only three children to be supported. He also ordered Kamara to reimburse the Social Service Board and the Department of Human Services for the $2,120.00 of public assistance benefits paid to his children. Kamara did not timely request a review of the judicial referee’s findings and order. See N.D. Sup.Ct. Admin. R. 13, § 11(a). Judgment was entered May 7, 2002.

[¶ 4] On May 23, 2002, Kamara filed a document titled “Request for Review of Arrearages of Child Support: Motion for Modification of the Amount of Child Support.” The district court issued its Order Denying Modification of Child Support on June 25, 2002, stating that Kamara had failed to show the requisite material change of circumstances necessary to modify child support within one year of the support order. Kamara appeals from the Order Denying Modification-of Child Support.

[¶ 5] Kamara asserts that he is entitled to a reduction in his monthly child support payments. Specifically, he argues that it was error for the judicial referee to impute minimum wage income when calculating his child süpport obligations because he is incarcerated and earning less than minimum wage. Kamara also claims that he should not have to pay back the public assistance benefits that were paid to his children. We disagree with Kamara’s arguments.

I

[¶ 6] When reviewing a child support order, this Court applies a de novo standard of review for questions of law, a clearly erroneous standard of review for questions of fact, and an abuse of discretion standard of review for discretionary matters. Shaw v. Shaw, 2002 ND 114, ¶ 17, 646 N.W.2d 693. The district court’s determination of whether a material change of circumstances has occurred is a finding of fact and, therefore, will not be reversed unless clearly erroneous. See Hager v. Hager, 589 N.W.2d 304, 305 (N.D.1995); see also N.D.R.CivJP. 52(a). 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, on the entire record, the Court is left with a definite and firm conviction that a mistake has been made. See Logan v. Bush, 2000 ND 203, ¶ 8, 621 N.W.2d 314.

[¶ 7] Section 14-09-08.4, N.D.C.C., provides for the review of an existing child support order. It states in pertinent part: “If a motion or petition for amendment is filed within one year of the entry of the order sought to be amended, the party seeking amendment must also show a material change of circumstances.” N.D.C.C. § 14-09-08.4(4) (Supp.2001). Because Kamara’s motion seeking modification of the child support order was brought within one year of its entry, Ka-mara has the burden of establishing a material change of circumstances before any modification of the order can take place. If Kamara had timely sought review of the judicial referee’s decision, he would not have needed to show a material change of circumstances but, rather, the district court would have reviewed it under the clearly erroneous standard. See State ex rel. Melling v. Ness, 1999 ND 73, ¶ 6, 592 N.W.2d 565. The district court found that Kamara had not established a material change of circumstances and, therefore, denied his request to modify child support.

[¶ 8] In Kamara’s motion for modification of child support, he states, “[i]t is the contention of this petitioner, that his incarceration constitutes a change of circumstances sufficient to warrant the modification of his [c]hild [sjupport [o]bligation, pursuant to N.D.C.C. chp. 14-09-08.9[sie].” However, the record reflects that Kamara was incarcerated and earning less than minimum wage at the time the child support order was initially entered. There is no evidence to suggest that any material change of circumstances, financial or otherwise, had occurred in the time between the court’s issuance of the original child support order and Kamara’s request for modification of child support. We conclude the district court’s determination that no material change of circumstances had occurred was not clearly erroneous.

II

[¶ 9] Even if Kamara could show a material change of circumstances, his argument would fail. Kamara contends that his child support obligation was miscalculated. He claims a minimum wage income should not have been imputed because he is earning less than minimum wage working in the prison library. This Court has held that “[t]hough arguably the [child support] guidelines do not contemplate the situation of an incarcerated obli-gor, it is nonetheless necessary to apply them and develop a workable solution.” Surerus v. Matuska, 548 N.W.2d 384, 387 (N.D.1996).

[¶ 10] There is a rebuttable presumption under N.D.C.C. § 14-09-09.7 that the amount of support designated in the child support guidelines is correct. See Dufner v. Dufner, 2002 ND 47, ¶ 22, 640 N.W.2d 694. Further, under N.D.C.C. § 14-09-08.4, the party seeking modification of a child support order has the burden of proving that the existing level of support is not in conformity with the guidelines. See Henry v. Henry, 2000 ND 10, ¶ 7, 604 N.W.2d 234.

[¶ 11] According to the guidelines, any person who earns less than “[o]ne hundred sixty-seven times the federal hourly minimum wage” is presumed to be underemployed. N.D. Admin. Code § 75-02-04.1 — 07(2)(b). When calculating the child support obligation of an underemployed person, income is to be imputed in one of the following three ways:

a. An amount equal to one hundred sixty-seven times the hourly federal minimum wage.
b. An amount equal to six-tenths of prevailing gross monthly earnings in the community of persons with similar work history and occupational qualifications.
c. An amount equal to ninety percent of the obligor’s greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided.

N.D. Admin. Code § 75-02-04.1-07(3). Usually, the subsection which will result in the greatest income is applied. See id. However, N.D. Admin. Code § 75-02-04.1-07(6) provides:

If an unemployed or underemployed ob-ligor shows that employment opportunities, which would provide earnings at least equal to the lesser of the amounts determined under subdivision b or c ... are unavailable in the community, income must be imputed based on earning capacity equal to the amount determined under subdivision a ... less actual gross earnings.

Our Court has previously applied this provision to incarcerated obligors concluding:

We recognize this analysis for an incarcerated obligor might be viewed as a strained application of the imputed income guideline, especially subsection (6), but we reiterate the guidelines do not otherwise address the particular circumstance of an incarcerated obligor ... (citation omitted). Also, we think it unreasonable to assume the guideline drafters intended to impute income to incarcerated obligors based on employment opportunities not available to those obligors.

Surerus, 548 N.W.2d at 388.

[¶ 12] The district court recognized Ka-mara was serving time in prison and nothing had changed since the original order. The district court also concluded that the original support order was in compliance with statutory law and the administrative code. In the original order, the judicial referee found Kamara was underemployed, earning less than minimum wage with no other income or opportunity for income. The district court, therefore, concluded that it was appropriate to impute a minimum wage income to Kamara under N.D. Admin. Code § 75-02-04.1-07(3)(a). We conclude that even if Kamara had shown a material change of circumstances, the district court’s Order Denying Modification of Child Support was not clearly erroneous.

Ill

[¶ 13] Kamara finally argues that requiring him to reimburse the Social Service Board and the Department of Human Services is contrary to the purposes for which public assistance programs were established, namely, “to help individuals or their families to achieve, maintain, or support the highest attainable level of personal independence and economic self-sufficiency” and “to preserve, rehabilitate, and reunite families.” Our Court, however, has stated:

any state agency providing AFDC (Aid to Families with Dependent Children) benefits is, likewise, given a statutory assignment to seek reimbursement from support payments made for the benefit of a child.!.. [T]he legislature has clearly given state agencies who provide assistance to needy persons the right to be reimbursed for that assistance from persons who have support obligations to those receiving the assistance.

Mehl v. Mehl, 545 N.W.2d 777, 779 (N.D.1996); see also N.D.C.C. 50-09-06.1 (Supp.2001). Because Kamara owes a support obligation to his children, the Social Service Board and the Department of Human Services clearly have the right to seek reimbursement for the public assistance benefits provided to Kamara’s children. Kamara’s argument would be more properly addressed to the legislative and executive branches of government.

[¶ 14] We conclude the district court’s Order Denying Modification of Child Support is not clearly erroneous and affirm.

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


author: KAPSNER, Justice.

text:
    2002 ND 190
    STATE of North Dakota, Plaintiff and Appellee, v. Edward SKORICK, Defendant and Appellant.
    No. 20020090.
    Supreme Court of North Dakota.
    Dec. 4, 2002.

      Cynthia M. Feland, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Thomas K. Schoppert, Schoppert Law Firm, Minot, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Edward Skorick appeals his jury trial conviction for gross sexual imposition. We hold there was no prosecutorial misconduct during the State’s rebuttal closing argument which denied the defendant a fair trial, and although the trial court erred in permitting sequestered witnesses to remain in the courtroom after they testified for purposes of returning as rebuttal witnesses, the error was harmless. We affirm.

I.

[¶ 2] Skorick was charged with class A felony gross sexual imposition under N.D.C.C. § 12.1 — 20—03(l)(d), for engaging in sexual contact with a minor under the age of 15. The jury found Skorick guilty, and the trial court sentenced him as a habitual offender to 20 years incarceration with the North Dakota Department of Corrections and Rehabilitation. On appeal, Skorick argues the trial court erred when the judge sequestered the witnesses until they offered direct testimony, but permitted them to remain in the courtroom for purposes of returning as rebuttal witnesses. Skorick also argues the State committed prosecutorial misconduct in its rebuttal closing argument by vouching for the complaining witness’s date of occurrence and for suggesting the burden shifted.

II.

[¶ 3] Skorick claims the trial court committed reversible error by allowing a rebuttal witness to testify for the State, even though he had listened to testimony of other witnesses in violation of Rule 615, N.D.R.Ev.

[¶ 4] Rule 615, N.D.R.Ev., provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party’s cause.

It is mandatory to order exclusion of witnesses when requested by a party. State v. Heart, 334 N.W.2d 479, 482 (N.D.1983). This Court has applied Rule 615, N.D.R.Ev., to rebuttal witnesses. State v. Hill, 1999 ND 26, ¶6, 590 N.W.2d 187.

[¶ 5] Prior to trial in this case, the judge ordered “all witnesses be sequestered until they have offered direct testimony. Once they have testified I’m going to allow witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses, and I believe that is appropriate under the rules.” Skorick objected to the judge’s order and argued Rule 615, N.D.R.Ev., does not provide for witnesses who may be recalled to remain in the courtroom after they have testified. The judge responded, “We’ll address the matter should it arise, if there is a request for rebuttal.” On the second day of trial, Skorick renewed his objection about witnesses remaining in the courtroom. The State was in the middle of its case-in-chief and responded: “[a]t this point we don’t even know if the defense will put on any evidence. We don’t know if there will be any rebuttal. Pretty hard to anticipate if there will be rebuttal at this point.” At this time, only the complaining witness for the State was present and she was ordered to leave pursuant to the sequestration order.

[¶ 6] The trial judge erred when he permitted witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses. See Hill, at ¶ 6 (applying N.D.R.Ev. 615 to rebuttal witnesses). Our review of the trial court error is guided by Rule 52(a), N.D.R.Crim.P. This rule provides: “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Trial court error which does not prejudice substantial rights of the accused may be disregarded. State v. Micko, 393 N.W.2d 741, 746 (N.D.1986). In deciding whether an error is harmful, we examine the entire record and evaluate the error in the context of the circumstances in which it was made to see if it had a significant impact upon the jury’s verdict. State v. Demery, 331 N.W.2d 7, 12 (N.D.1983). In cases of nonconstitutional error, we do not have to find the error was harmless beyond a reasonable doubt. State v. Thiel, 411 N.W.2d 66, 70 (N.D.1987).

[¶ 7] In this case, the State’s rebuttal witness was called to address several issues raised during the defense, including the placement of the coffee table. Skorick argues one of the critical contentions of his defense was the placement of the coffee table; and if the witness had not heard the prior testimony, he might not have known the importance of the placement of the coffee table. The rebuttal witness’s testimony supported the defense’s witnesses that there was a coffee table in the room. Because the weight of the evidence and the credibility of witnesses are questions for the jury, Heart, at 481, we cannot conclude, after examining the entire record, the rebuttal witness’s testimony affected Skorick’s substantial rights. Therefore, the trial court’s error in permitting witnesses to remain in the courtroom for purposes of returning as rebuttal witnesses was harmless and does not require reversal.

[¶ 8] During the trial, Skorick renewed his objection to witnesses remaining in the courtroom after they have testified, and argued it was a violation of N.D.R.Ev. 615 for the trial court to allow the rebuttal witness to testify after having heard prior testimony. Our review of the trial court’s decision to permit the rebuttal witness to testify despite a sequestration order is governed by Hill. A trial court’s decision during trial to permit a witness to testify even though the witness heard prior testimony in violation of a sequestration order is reviewed under an abuse of discretion standard. Hill, at ¶ 6. A court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner. Id. at ¶ 14.

[¶ 9] “If the objecting party clearly shows, by offer of proof or other appropriate means, a witness’s testimony would be influenced by prior testimony the witness heard in violation of a sequestration order, it would be an abuse of discretion for the court to allow the witness to testify.” Hill, at ¶ 14. No such showing is present in this case. “The purpose of the sequestration rule ⅛ to prevent witnesses from tailoring their testimony to that which has already been presented and to help in detecting testimony that is less than candid.’ ” Id. at ¶ 5 (citing United States v. Hargrove, 929 F.2d 316, 320 (7th Cir.1991)). There is no showing that the rebuttal witness’s testimony was either tailored to a prior witness or made less candid by his having heard prior testimony. The testimony supported Skorick’s witnesses that a coffee table was present in the living room. Skorick made his objection to this rebuttal witness having heard prior testimony in the presence of the jury. The jury was, therefore, alerted to the potential for the rebuttal testimony being affected by prior testimony and could factor that information into its determination of credibility. Thus, we are not convinced that allowing the rebuttal testimony amounted to an abuse of discretion.

III.

[¶ 10] Skorick also argues the State committed prosecutorial misconduct in its rebuttal closing argument by vouching for the complaining witness’s date of occurrence and for suggesting the burden shifted.

A.

[¶ 11] “The control and scope of opening and closing arguments is largely a matter left to the discretion of the trial court, and a case will not be reversed on the ground that the prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown.” State v. Schimmel, 409 N.W.2d 335, 342 (N.D.1987). Unless the error is fundamental, the defendant must demonstrate that the prosecution’s comments during closing argument were improper and prejudicial. Id. Ordinarily, “inappropriate prosecutorial comments, standing alone, do not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.” Thiel, 411 N.W.2d at 71.

[¶ 12] Skorick argues the prosecutor committed prosecutorial misconduct in her rebuttal closing argument when she vouched for the credibility of the victim and was allowed to change the date of the occurrence by stating:

Okay. When did [K.B.] say this happened? When did it happen? Between fourth and fifth grade. At the end of fourth grade, commencing fifth grade. When about after fourth grade? June, May or June. She said 1997. The school year started in '97. It didn’t end in '97. It ended in '98. That is right as she is sitting up here that that slip is made. I think when I started out in opening statement I said to you that it happened in '97. I missed that. And she said '97 the way that Mr. Schoppert did. Then it is my fault for not jumping on it and correcting it and asking some specifics.

[¶ 13] Skorick has failed to prove the prosecutor’s remarks were improper and prejudicial. The date of the occurrence can be calculated through the testimony in the record, and it is consistent with the date the prosecutor stated in her rebuttal closing argument. The victim testified on direct examination:

Q. Okay. Now I am going to stop and back you up again. Do you know when about this was?
A. Right about the summer of '97 when I was entering fifth grade.
Q. Okay. So you would have — you finished fourth grade and were going to start fifth grade or you had already started fifth grade?
A. I was going into the fifth grade.

The victim also testified that she was in 7th grade last year. From her testimony, we can determine that fourth grade for the victim would have began in the Fall of 1997 and ended in the Spring of 1998. Thus, the victim would have begun fifth grade in the Fall of 1998, not 1997. Her testimony can be corroborated with testimony from one of the defense’s witnesses. A friend of Skorick who was also the father of the victim’s classmate testified on cross examination:

Q. Did [S.S.] and [K.B.] go to school together?
A. Yes.
Q. Were they in the same grade?
A. Yes.
Q. Okay. What grade is [S.S.] in right now?
A. He’s in the 8th grade.
Q. And so he would have started the 8th grade just this fall, so that would be August or September of 2001?
A. Correct.
Q. So the 8th grade school year would run from fall of 2001 to the spring of 2002, right?
A. Correct.
Q. Then in 7th grade it would follow— did he miss any grades or progressed right through?
A. He went right through.
Q. He has never been held back at all?
A. No.
Q. If we work this backwards this would be 2000-01. Okay. Maybe this will make it easier and then we can actually look at a time line and keep it squared with the age and grades the kids are in. 8th grade we know then he started fall of 2001?
A. Yes.
Q. And he hasn’t missed any grades.
THE COURT: Just a moment — just a moment, counsel. Please proceed.
Q. Okay. Okay. So in 7th grade, that would have been 2000, we keep going back a year. So in fourth grade that would have been '97 to '98, so fall of '97 to spring of '98?
A. Okay.

The prosecutor did not change the date of the occurrence in her rebuttal closing argument. The victim testified the act occurred in the summer after fourth grade and before fifth grade. The record indicates the date to reflect that time period is the summer of 1998. Thus, the trial court did not abuse its discretion in permitting the prosecutor’s remarks concerning the date of the occurrence.

B.

[¶ 14] Skorick also argues the prosecutor attempted to shift the burden during her rebuttal closing argument when she mentioned the lack of physical evidence. The prosecutor commented, “Yup, it would be nice if in any one of these kinds of cases I can give you physical evidence. I dare say we wouldn’t be here if I could, unfortunately.” The prosecutor’s remarks were made in response to defense counsel’s argument that the lack of physical evidence helps exonerate his client.

[¶ 15] We are concerned when a prosecutor comments personally on the evidence because he or she is acting as an unsworn witness for the prosecution who is not subject to cross-examination and who may be perceived as an expert witness. Schimmel, 409 N.W.2d at 343. It is possible the prosecutor’s comment in this case may have suggested to the jury, based on her special knowledge and expertise, that it is okay and typical in “these kinds of eases” not to have physical evidence. During closing argument, prosecutors may properly draw conclusions and argue permissible inferences which may reasonably flow from the evidence, however they cannot create evidence by argument or by incorporating personal beliefs. State v. Escobedo, 573 N.W.2d 271, 278 (Iowa App.1997). This is true whether counsel’s comments are based on knowledge of facts not possessed by the jury, personal experiences in similar cases, or any other ground other than the weight of the evidence presented at trial. Id.

[¶ 16] In this case, the prosecutor implied it was not unusual to not have any physical evidence. Courts have concluded the defendant was not denied a fair trial when statements concerning the lack of physical evidence were made by a prosecutor during closing argument. See State v. MacDonald, 2002 Ohio 4969, ¶ 42 (permitting the prosecutor to address the lack of physical evidence during closing argument since it was a key argument of the defense); State v. Saunders, 2000 WL 1724823, *2-3, 2000 Ohio App. Lexis 5385, *6-7 (10th Cir. Nov. 21, 2000) (allowing comments on the lack of physical evidence when the prosecutor was responding to defense counsel’s questioning and criticism as to the lack of physical evidence).

[¶ 17] When reviewing to determine if the comment or remark was so offensive to prejudice the defendant, we need to consider all of the evidence presented at trial. See City of Grand Forks v. Cameron, 435 N.W.2d 700, 704 (N.D.1989). Although we express concern with the prosecutor’s comment, when viewed in the context of the entire proceeding, we do not believe the comment regarding the lack of physical evidence affected the jury’s ability to judge the evidence fairly. The jury was instructed in the opening jury instructions that they are not to consider as evidence statements or arguments by the attorneys. The jury was also instructed to weigh the evidence and consider both direct and circumstantial evidence. We presume the jury follows the judge’s instructions. State v. Purdy, 491 N.W.2d 402, 411 (N.D.1992). The prejudice, if any, that resulted from the prosecutor’s rebuttal closing argument was minimized by the jury instructions. We have carefully reviewed the transcript of the defendant’s trial and are unable to conclude the State’s rebuttal closing argument denied the defendant a fair trial. Therefore, we conclude Skorick was not prejudiced by the prosecutor’s remarks and find the trial court did not abuse its discretion.

IV.

[¶ 18] We hold there was no prosecuto-rial misconduct during the State’s rebuttal closing argument which denied the defendant a fair trial, and although the trial court erred in permitting the sequestered witnesses to remain in the courtroom after they testified for purposes of returning as rebuttal witnesses, the error was harmless. We affirm.

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


author: VANDE WALLE, Chief Justice.

text:
    2002 ND 186
    Pamela MYHRE, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
    No. 20020083.
    Supreme Court of North Dakota.
    Dec. 4, 2002.
    Rehearing Denied Jan. 17, 2003.

      Steven L. Latham, Wheeler Wolf, Bismarck, N.D., for claimant and appellant.
    Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, N.D., for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Pamela Jo Myhre appealed from a district court judgment affirming a North Dakota Workers Compensation Bureau’s order which denied benefits for her back condition and chemical exposure. We affirm, concluding the Bureau did not err in determining Myhre failed to prove a causal relationship between her employment and her injuries.

I

[¶ 2] Myhre began working as the manager of the upholstery department at Mac’s, Inc. (“Mac’s”) in May 1995. Myhre made foam cushions at Mac’s, an activity which required her to use spray adhesive glue and other chemicals. She also lifted foam and fabric, stood for long periods of time, and walked on concrete floors. Myhre claimed she developed back and foot problems from the lifting, periods of standing, and walking on concrete floors. On November 30, 1999, Myhre filed a workers compensation claim for back and foot injuries. She stopped working at Mac’s on November 27,1999.

[¶ 3] On December 2,1999, Myhre added aldehyde poisoning to her original claim. An aldehyde is “[a]ny of a class of highly reactive organic chemical compounds obtained by oxidation of primary alcohols, characterized by the common group CHO, and used in resins, dyes, and organic acids.” American Heritage College Dictionary 32 (3rd ed.1997). Myhre originally called this portion of her claim aldehyde poisoning, but the parties have also used names such as chemical exposure, multiple chemical sensitivity, and chemical poisoning.

[¶ 4] Myhre believes aldehydes in the spray glue and other chemicals made her ill, causing various health problems. She claims the years of exposure to the aldeh-ydes “saturated” her body, and she became “ultrasensitive” to other chemicals, as well as to certain clothing, food, and smells. Besides these sensitivities, Myhre described multiple symptoms including fatigue, general pains, nausea, and headaches. On October 11, 2000, Myhre ultimately went to the Environmental Health Center in Dallas, Texas, a center run by Dr. William Rea. As of the filing of her appellant’s brief, Myhre was living on a ranch in Texas.

[¶ 5] Although Myhre sought workers compensation benefits for injuries to her feet and back and for aldehyde poisoning, the Bureau’s initial decision of March 28, 2000, accepted liability only for medical expenses for Myhre’s foot problem. Myhre requested reconsideration. On May 24, 2000, the Bureau issued an order comporting with the earlier decision: an award paying reasonable and necessary medical expenses for Myhre’s foot problem, but denying benefits for her back injury and the aldehyde poisoning. Myhre again requested reconsideration, and on August 31, 2001, a temporary administrative law judge (“TALJ”) issued findings of fact, conclusions of law, and an order which affirmed the Bureau’s earlier order. On September 11, 2001, the Bureau issued a final order adopting the TALJ’s findings of fact, conclusions of law, and order. On October 9, 2001, Myhre appealed the Bureau’s final order. The district court affirmed the Bureau’s final order on February 14, 2002.

[¶ 6] Myhre argues the Bureau erred by failing to find a causal relationship between her employment and her back injury and aldehyde poisoning. She also asserts the Bureau did not state its reasons for disregarding the medical evidence favorable to her claim.

II

[f 7] On appeal from a judgment of an administrative agency’s decision, we review the decision of the administrative agency, giving respect to the district court’s analysis. Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884. We limit our review to the record before the agency. Wanstrom v. N.D. Workers Comp. Bureau, 2001 ND 21, ¶ 5, 621 N.W.2d 864. “Only items actually in the record may be included in the appendix.” N.D.R.App.P. 30(a).

[If 8] Under N.D.C.C. § 28-32-46, the district court-must affirm an administrative agency order, unless one of the following is present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The’conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

Under N.D.C.C. § 28-32-49, this Court reviews the judgment of the district court in an administrative appeal in the same manner as provided in § 28-32-46.

[¶ 9] In our appellate review of workers compensation cases,

We exercise restraint in deciding whether the Bureau’s findings of fact are supported by a preponderance of the evidence and do not make independent findings or substitute our judgment for that of the Bureau; rather, we decide whether a reasoning mind reasonably could have decided the Bureau’s findings were proven by the weight of the evidence from the entire record.
Paul v. N.D. Workers Comp. Bureau, 2002 ND 96, ¶ 6, 644 N.W.2d 884. However, we fully review questions of law, such as the interpretation of a statute, on appeal. Lawrence v. N.D. Workers Comp. Bureau, 2000 ND 60, ¶ 11, 608 N.W.2d 254.

Ill

[¶ 10] Myhre had the burden to prove by a preponderance of the evidence a causal connection between her injuries and her employment. See N.D.C.C. § 65-01-11; Negaard-Cooley v. N.D. Workers Comp. Bureau, 2000 ND 122, ¶8, 611 N.W.2d 898. To establish this causal connection, a claimant must demonstrate the work condition was a substantial contributing factor to the injury, not that his or her employment was the sole cause of the injury. Negaard-Cooley, at ¶ 8. Under N.D.C.C. § 65-01-02(11), a “ ‘Compensa-ble injury’ means an injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical findings.”

A

[¶ 11] Myhre first argues the Bureau erred in denying her benefits for her back condition. The Bureau attributed Myhre’s back injury to preexisting conditions and previous injuries. Myhre disputes her back condition resulted from preexisting conditions. Myhre also asserts any previous back condition involved a different area of her back and pain of a different type than the back injury she sustained while working. However, the Bureau found Myhre did not establish a causal connection between her work and her back injury, stating “[t]he record is replete with references to claimant’s preexisting back condition.”

[¶ 12] The Bureau’s findings of fact detailed Myhre’s back problems prior to her employment at Mac’s. Myhre was in a car accident in 1992, suffering lateral whiplash. After the accident, she received massage treatment for about eighteen months for her injuries.' The Bureau noted the record demonstrated Myhre received chiropractic treatment, including treatment for low back pain, for three years before filing her workers compensation claim. Medical records showed Myhre saw one chiropractor, Dr. Mittet, over seventy times from September 1995 to January 1999. However, Myhre testified she only saw a chiropractor every 6 months for maintenance purposes. In February 1999, she also went to the emergency room and spoke of an incident of severe back pain, occurring after she rolled over in bed and felt something pop in her back. However, when she filed her claim in November of 1999, Myhre stated she never had a prior back injury.

[¶ 13] The Bureau concluded:

As to claimant’s allegations of a back injury sustained in the course and scope of her employment at Mac’s, Inc. the greater weight of the evidence demonstrates that claimant’s back condition is not related to her employment at Mac’s, Inc. by competent, objective and reasonable medical evidence. The record is replete with references to claimant’s pre-existing back condition. Claimant had been involved in an automobile accident in 1992 for which she treated for over 18 months with complaints of low back pain and cervical pain. Further, several months before claimant submitted her claim for benefits she was treating with Dr. Mittet and Dr. Moon for low back pain shooting into the left hip. These symptoms for which she was receiving treatment are essentially the same as those for which she is now claiming a work related injury.

One of the references in the record is a letter from a review committee of chiropractors, hired by the Bureau, which supports the Bureau’s conclusion Myhre had a preexisting back condition. Although the Bureau’s final order does not specifically refer to the committee’s letter, the review committee examined Myhre’s medical records and found no relationship between Myhre’s previous back problems and her employment and “no evidence that this is a work comp injury.”

[¶ 14] Under N.D.C.C. § 65-01-02(ll)(b)(7), the term compensable injury does not include “[i]njuries attributable to a preexisting injury, disease, or other condition, including when the employment acts as a trigger to produce symptoms in the preexisting injury, disease, or other condition unless the employment substantially accelerates its progression or substantially worsens its severity.” Thus, even if Myhre could not prove her employment caused her back injury, she could recover partial workers compensation benefits through an aggravation award, if her employment substantially accelerated or worsened her preexisting back condition. See N.D.C.C. § 65-05-15 (detailing the method for calculating aggravation awards). During the deposition, both parties questioned Dr. Derryl Moon, another of Myhre’s chiropractors, about the aggravation issue:

Q. [Mr. Latham] Apparently it’s your opinion that the low back pain that you are treating her for and the instability in her lower back, it’s your opinion that’s from her walking and standing on cement floors at work?
A. Those things irritate the low back. Did they cause it? I can’t tell you that. I can say that it irritates it.
Q. Would you say that they are a substantial aggravating factors to her low back condition?
A. I had to set it many times so something was irritating the low back.
Q. Okay. And by “irritating,” we in the legal field use the word aggravation. Would that be the same thing as you’re referring to?
A. Yes.
Q. [Ms. Anderson] And, again, when you answered that that — that the work — the employment that Ms. — Ms. Myhre was doing at Mac’s was a substantial contributing factor to her low back treatment that you provided, on what are you basing that opinion?
A. I simply meant that what she did would aggravate the condition. Walking on hard surfaces will aggravate a low back.
Q. Did it — did it substantially accelerate the condition?
A. I have no way of — of telling you how much or if it did at all. It aggravated it.
Q. How about substantially worsened the severity of the condition?
A. It’s possible, but I can’t say positively that did it.
Q. So you can’t express an opinion on that?
A. No.
Q. [Mr. Latham] Dr. Moon, in reference to that last question, is it more likely than not that it made her condition — her back — that her work made her low back condition worse?
A. It’s more likely that it aggravated it enough to give them a great deal of pain. It’s like putting a cast on a broken arm. Before you set the bone, you aggravate it.

Thus, Dr. Moon did state, in general, standing on concrete floors would aggravate a low back condition, but he could not express an opinion regarding whether Myhre’s work substantially accelerated or worsened the severity of her low back condition.

[¶ 15] Myhre relied on Dr. Moon’s overall testimony regarding her back injury to support her back injury claim. However, the Bureau found Dr. Moon’s opinion was not supported by objective medical evidence. “Objective medical evidence” may include “a physician’s medical opinion based on an examination, a patient’s medical history, and the physician’s education and experience.” Engebretson v. N.D. Workers Comp. Bureau, 1999 ND 112, ¶ 24, 595 N.W.2d 312 (Maring, J., concurring). In this case, the Bureau noted Dr. Moon did not appear to have taken Myhre’s previous history of back problems into account. Dr. Moon also testified he only had medical records from one chiropractor who previously treated Myhre. The district court judge also noted: “Myhre’s own doctor [Dr. Moon] could not state that her work caused the lower back injury.” Thus, the Bureau weighed all of the medical evidence and concluded: “[t]he greater weight of the evidence in the record simply does not support an assertion that the claimant’s longstanding complaints of low back pain were related to her employment at Mac’s, Inc.”

[¶ 16] In view of Myhre’s history of back injuries and back pain and the lack of specificity in the testimony of her treating chiropractor, we conclude a reasoning mind reasonably could determine Myhre failed to prove by a preponderance of the evidence a causal relationship between her employment and her back condition.

B

[¶ 17] Myhre next argues the Bureau erred in denying her benefits for her chemical exposure claim. Myhre again had the burden to prove by a preponderance of the evidence a causal connection between her health problems and her employment. See N.D.C.C. § 65-01-11. The Bureau concluded Myhre failed to prove this causal connection, stating: “[t]he greater weight of the evidence in the record does not support the claimant’s allegations that she suffered a chemical poisoning, multiple chemical sensitivity or other health problem related to exposure to the chemicals during the course and scope of her employment with Mac’s, Inc.”

[¶ 18] In reaching its conclusion, the Bureau examined both Myhre’s original diagnosis and subsequent doctors’ evaluations. Dr. Moon originally diagnosed Myhre with aldehyde poisoning by using kinesiological testing. Dr. Moon described this method of muscle testing during his deposition. Dr. Moon would take a substance suspected of causing allergies and place it on Myhre’s upper lip, or he would have Myhre smell the substance. At the same time, Myhre would hold her arm straight out from her shoulder. If she reacted to the substance, she could not hold her arm up when Dr. Moon applied downward pressure. Dr. Moon also diagnosed Myhre with candida sensitivities using kinesiological testing. Her sensitivities would worsen and abate at various visits.

[¶ 19] Although Dr. Moon originally diagnosed Myhre with aldehyde poisoning, he could not make a causal connection between the chemicals Myhre used at work and her health condition. Dr. Moon testified “[a]nything that smells is an aldehyde” and Myhre’s symptoms could come from substances in her home, her car, or her work environment. After Dr. Moon’s diagnosis of aldehyde poisoning, Myhre consulted other doctors and a nurse practitioner, and the Bureau asked other doctors to review her medical records. Of these medical professionals, only Dr. Rea at the Environmental Health Center, along with his consultants, came to the conclusion Myhre had a chemical injury. Dr. Rea also specifically diagnosed Myhre with a work-related chemical injury.

[¶ 20] Dr. Robert Martino, an occupational health specialist at MeritCare Occupational Health, ultimately found Myhre had no chemical exposure injury, relying on a physical examination and standard laboratory testing, including blood and urine tests and x-rays. The Bureau had independent medical examiner Dr. Brian McCrary, a specialist in occupational medicine with other board certifications and eligibilities, review Myhre’s medical records. He found a lack of valid, objective medical evidence to support Myhre’s claims. He also challenged the methods of treatment and testing Dr. Rea used at his Environmental Health Center.

[¶ 21] Myhre testified she began to notice a correlation between using the glue and her headaches in the summer of 1998. She also testified she “really started noticing” other physical problems in 1999. Myhre testified she stopped using the glue in November or December of 1998. At this same time, Mac’s discontinued using the glue for most purposes, and if a project did need gluing, an employee would spray the cushions outside.

[¶ 22] As previously stated, Myhre testified she noticed a marked increase in her symptoms in 1999. Myhre’s condition continued to worsen after she left employment at Mac’s in November of 1999. Dr. McCrary explained if Myhre did have a chemical injury, Myhre should have improved when not exposed to the glue. Instead, Myhre claimed her condition worsened, and she now cannot tolerate exposure to various smells and chemicals, such as perfumes, detergents, and food preservatives. Furthermore, Dr. McCrary testified blood or other laboratory testing would detect chemicals if chemical exposure had caused the problems Myhre claimed.

[¶ 28] The Bureau enlisted MeritCare Occupational Health Services to perform a chemical exposure assessment at Mac’s. The air test revealed “the levels of the chemicals present at Mac’s, Inc. were below acceptable tolerances and limits and would not be sufficient to cause health problems alleged by the claimant.” While this air test did not replicate Myhre’s exposure to the spray glue on a daily basis, the testing does demonstrate daily use of the glue did not exceed a safe level. The Bureau also proposed causes other than Myhre’s employment which might relate to her multiple health complaints, including a car accident in 1992 and one in May 1999, her past history of migraine headaches, psychiatric problems, and marijuana use.

[¶ 24] Myhre argues the opinion of her treating physician Dr. Rea should receive more weight than those of other doctors involved in her case. We have previously declined to establish a presumption entitling a treating doctor’s opinion to “great weight.” Symington v. N.D. Workers Comp. Bureau, 545 N.W.2d 806, 809-10 (N.D.1996) (declining to adopt rules which rank the weight of evidence offered by physicians of different specialities or of treating and examining physicians). The Bureau must examine and weigh the credibility of the medical evidence. Id. at 809 (citing Latraille v. N.D. Workers Comp. Bureau, 481 N.W.2d 446, 450 (N.D.1992)).

[¶ 25] However, we do recognize “a long term physician-patient relationship may afford the treating doctor a more comprehensive view of the claimant’s medical history and condition.” Boger v. N.D. Workers Comp. Bureau, 1999 ND 192, ¶ 16, 600 N.W.2d 877. In the present case, Myhre first came to Dr. Rea’s clinic on October 11, 2000. By December 19, 2000, he wrote a “To Whom It May Concern” letter describing his diagnosis of work-related chemical sensitivity. Myhre also admitted she only forwarded a few of her medical records to Dr. Rea. Thus, although Dr. Rea was Myhre’s treating physician, arguably their relationship did not rise to the level of a long-term physician-patient relationship, which can provide the physician a more comprehensive view of a patient’s medical history and condition.

[¶ 26] The Bureau concluded evidence in the record suggested the medical opinions favorable to Myhre’s claim “were based solely on subjective testing and/or subjective complaints and history provided by the claimant.” The Bureau also concluded that many of the tests provided as supporting evidence either are not medically recognized or not considered medically or scientifically valid. The Bureau stated “[t]hose test findings were inconsistent with more established and recognized testing such as blood and urine testing all of which have been normal for the claimant since she first suspected that she had suffered chemical poisoning.”

[¶ 27] Specifically regarding Dr. Rea’s testimony, the Bureau concluded Dr. Rea made findings supporting his diagnosis which were inconsistent with prior findings of other treating physicians. For example, Dr. Rea found Myhre had a positive Rom-berg’s sign, indicating neurological damage. Myhre had a negative Romberg’s sign during an earlier physical examination by Dr. Martino.

[¶ 28] Although the Bureau’s reasons for accepting certain medical evidence can serve as the explanation for rejecting medical evidence favorable to a claimant, here the Bureau explained the reasons for accepting the medical evidence unfavorable to Myhre’s chemical injury claim. See Hibl v. N.D. Workers Comp. Bureau, 1998 ND 198, ¶ 10, 586 N.W.2d 167 (citing Nemec v. N.D. Workers Comp. Bureau, 543 N.W.2d 233, 238-39 (N.D.1996)). This evidence involved a consistent pattern of standard, objective medical tests showing Myhre did not suffer from aldehyde poisoning. After examining the results of Myhre’s medical tests from both parties, the Bureau found: “[t]he only consistency between the various opinions is that objective blood and urine testing did not show the presence of any harmful toxins or toxins at a harmful level in claimant’s body.” Thus, the Bureau sufficiently explained its reasons for accepting the medical evidence and conclusions of the doctors who used established medical testing and disregarding medical evidence not recognized by the mainstream medical community.

V

[¶ 29] We conclude the Bureau did not err in denying Myhre workers compensation benefits for her back injury or chemical exposure. Accordingly, we affirm.

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


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

text:
    2002 ND 188
    In the Interest of D.Q., D.M., S.S., and C.W., Children. Constance L. Cleveland, Petitioner and Appellee, v. Director, Cass County Social Services, S.S., L.Q., E.M., J.W., D.Q., C.W., Respondents, D.M., S.S., and Benjamin Thomas, Guardian Ad Litem, Respondents and Appellees, and S.S.,Respondent and Appellant.
    Nos. 20020078, 20020079.
    Supreme Court of North Dakota.
    Dec. 4, 2002.

      Constance Louise Cleveland, Assistant State’s Attorney, Fargo, N.D., for petitioner and appellee.
    Benjamin Eugene Thomas (on brief), Guardian Ad Litem, Fargo, N.D., for respondents and appellees D.M. and S.S.
    C. Charles Chinquist, Fargo, N.D., for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Susan Steel appealed a judgment extending prior orders placing two of her children, D.M. and S.S., in the legal and physical custody of the Cass County Social Services Board (“Board”) and terminating the parental rights of Steel and Ernest McNeel to S.S. We affirm.

[¶ 2] On April 29, 1999, the Richland County Juvenile Court issued an order finding four of Steel’s six children, D.Q., D.M., S.S., and C.W., were “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for their physical, mental, emotional health, or morals,” as shown by absences from school, inadequate clothing and hygiene concerns, and transferring the matter to the Juvenile Court in Cass County, where, by that time, they were living, for disposition.

[¶ 3] A Cass County Juvenile Court referee notified the parties a permanency hearing would be held on December 18, 2000. Constance L. Cleveland sought an order terminating all parental rights to S.S. As to D.Q., D.M., and S.S., a judicial referee held a hearing on the matters on August 15-17, 2001. Steel’s three other children were not involved in the proceedings, as one was an adult, and two were living with their father. The referee issued findings of fact, conclusions of law, and an order terminating the Board’s custody of D.Q., D.M., and S.S., and returning their custody to Steel.

[¶ 4] Cleveland requested the district court judge to review the referee’s findings and order. On February 1, 2002, the court issued a memorandum opinion and order. In its analysis, the court found, among other things:

The record developed from the proceedings in August 2001, provides clear and convincing evidence that D.M. and S.S. are deprived children and this deprivation is not primarily due to lack of financial resources. First, [Steel] has not provided adequate parental involvement with respect to education: [Steel] has failed to ensure regular school attendance by D.M. and has not responded in the past to correspondence or requests for information from school officials. [Steel’s] explanation that D.M. was absent from school because of a bully, and because school officials never did anything about the teasing ... is not a typical, or adequate reason, for a child to be absent 100 days during the school year.... Furthermore, the fact that D.M. did not attend school from January 2000 to April 2000, when she was in Pennsylvania, further illustrates that [Steel] has no concern for whether D.M. obtains even the most basi[c] education. ...
Second, [Steel] has failed to ensure that S.S. receives proper medical treatment. Even though [S.S.] was diagnosed with epilepsy in August 2000, and takes medication for seizures, [Steel] still disagrees with that diagnosis and will seek a second opinion. [Steel] is opposed to chemicals, i.e., prescription medication, and states she will seek an herbal alternative “in the mean time.” ... [Steel] also does not provide regular dental appointments for the children ... and has not properly monitored whether the children need eyeglasses.
Third, [Steel’s] past behavior is not consistent with a mother who is trying to obtain custody of her children. After the children were removed in January 2000, and at a time when she should have been conscious of how her behavior might reflect on her parenting skills, [Steel] (1) refused to comply with a court order that she produce D.Q. and D.M.... [Steel] also admitted she talked with D.Q. about D.Q. getting married so D.Q. could escape custody of social services.... Indeed, these incidents seem to indicate that [Steel] does not consider how her actions affect the needs of her children.
Another incident which cannot be taken lightly is the fact that [Steel] essentially abandoned S.S., C.W., and R.W., after she went to Pennsylvania, and had no contact with them until she returned to North Dakota in August 2000....
In addition, according to her own testimony, [Steel] has a history of abusive relationships with alcoholic and chemically addictive male partners, some of whom are fathers of the children, and some who have simply lived in the family home, acting as caregivers for the children.
[Steel] now states that throughout these proceedings, she has not had a problem with social services, but refuses to deal with Leslie Johnson and Carrie Smith and is now willing to do whatever is necessary for D.M. “to be free.” ... [Steel’s] testimony during the August 2001 proceedings, however, shows that she still refuses to take responsibility for her choices and behavior that have caused the children to be deprived.... In addition, Dr. Witte-Bakken’s report recommends that [Steel’s] “style of thinking and relating is entrenched.” ... Dr. Witte-Bakken also stated in her report that she did “not see evidence that [Steel] has motivation to look at things differently or to reassess her parenting style, therefore it would appear that [Steel] would continue on the same course, should the children be returned.” Id.
D.M. and S.S. have suffered from physical, mental and emotional harm as the result of past deprivation in connection with [Steel’s] past history disobeying court orders, refusal to cooperate with social services who are trying to provide services, to her children, apathetic attitude toward whether her children obtain a basic education, inattentiveness to the medical needs of her children, and disrespect for the property rights of others. For whatever reasons, [Steel] fails to recognize that D.M. and S.S. have' suffered as a result of her lifestyle choices and has in no way indicated that she is motivated in changing her parenting style. As a result, if returned to [Steel’s] custody,. D.M. and S.S. will return to the same environment where they were deprived of the most basifc] needs and that D.M. and S.S. in the future will probably suffer serious, physical, mental, or emotional harm.
[¶ 5] The court concluded:
D.M. and S.S. have been involved with social services since 1996, when they were removed from [Steel’s] home. [Steel’s] numerous relocations to different communities within the last several years illustrate the difficulty of providing services to a family. Each time [Steel] and the children have moved to a new community, and reports were filed with social services, the process of investigating whether the children were adequately cared for would begin anew. As a result, determining what services the children needed was a lengthy process. Based on [Steel’s] refusal to comply with court orders and social services, apathetic attitude toward whether her children obtain a basic education, inattentiveness to medical needs of her children ... there is clear and convincing evidence to find that D.M. and S.S. have suffered from physical, mental and emotional harm as the result of past deprivation, that the deprivation will continue in the future, and that it is probable that they will suffer physical, mental, or emotional harm [ ] if they are returned to their mother. As a result, [Steel’s] parental rights as to S.S. should be terminated and DM. shall remain in custody of Cass County Social Services. The juvenile court’s decision to the contrary is reversed.

[¶ 6] The court ordered that: (1) the judicial referee’s findings, conclusions, and order be reversed; (2) the petition to terminate parental rights to S.S. be granted; and (3) D.M. remain in the custody of the Board. Judgment was entered on February 28, 2002.

I

[¶ 7] Steel contends the court erred by engaging in a de novo review of the referee’s decision, instead of employing a “clearly erroneous” standard of review. She also contends that in employing a de novo review of the court’s decision, this Court must give appreciable weight to the referee’s findings, because the referee had the opportunity to observe the candor and demeanor of the witnesses.

[¶ 8] “[A] district court’s review of a judicial referee’s findings and recommendations under Administrative Rule 13, § 11(b), when it is a review of the record, is governed by Rule 53, N.D.R.Civ.P.” Benson v. Benson, 495 N.W.2d 72, 77 (N.D.1993). “Under Rule 53(f)(2), N.D.R.Civ.P., the district court was obliged to accept the referee’s findings unless they were clearly erroneous.... The correctness of a referee’s findings is an issue that must be determined by the district court in the first instance.” Benson, at 78. When the district court rejects a judicial referee’s factual findings, this Court employs a two-step review of the district court’s factual determinations:

First, we must review, as a matter of law, the correctness of the district court’s reversal, under the clearly erroneous standard, of any factual findings by the judicial referee. Second, if the district court’s reversal of findings is upheld, we must then review the substitute or additional findings of the district court under the clearly erroneous standard of Rule 52(a), N.D.R.Civ.P.

Benson, at 77. See also Darling v. Gosselin, 1999 ND 8, ¶6, 589 N.W.2d 192; Throndset v. Hawkenson, 532 N.W.2d 394, 397 (N.D.1995). A judicial referee’s conclusions of law are fully reviewable in the district court, and the district court’s conclusions of law are fully reviewable upon appeal to this Court. Darling, at ¶ 6.

[¶ 9] In proceedings under the Uniform Juvenile Court Act, this Court’s review of a juvenile court decision is governed by N.D.C.C. § 27-20-56, which provides, in part, that an appeal from a juvenile court’s final order, judgment, or decree “must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court.” “This court’s review of a juvenile court’s order is similar to a trial de novo.” In re A.E., 1997 ND 9, ¶3, 559 N.W.2d 215. “We independently review the evidence, and our review is not limited to a determination of whether the juvenile court’s findings are clearly erroneous.” Id. ‘We afford the juvenile court’s findings appreciable weight, but we are not bound by them.” In re A.V., 554 N.W.2d 461, 463 (N.D.1996).

[¶ 10] Although the juvenile court did not specifically state the referee’s findings were clearly erroneous, the court did reverse them, and did make substitute findings. We conclude the juvenile court found the referee’s findings were clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence 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. DesLauriers v. DesLauriers, 2002 ND 66, ¶ 6, 642 N.W.2d 892. From our independent review of the record, we conclude there is evidence which leaves us and obviously left the juvenile court judge with a definite and firm conviction a mistake had been made by the referee.

II

[¶ 11] Steel contends current or continuing deprivation of the children was not shown by clear and convincing evidence.

[¶ 12] Section 27-20-30(1), N.D.C.C., provides that if a “child is found to be a deprived child, the court may ... [p]ermit the child to remain with the child’s parents, guardian, or other custodian, ... transfer temporary legal custody to” another individual or agency, “[r]equire the parents, guardian, or other custodian to participate in treatment,” or place the child in “some other planned permanent living arrangement.” Section 27-20-02(8), N.D.C.C., defines a deprived child, in part, as one who has been abandoned or who:

Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.

“As used in N.D.C.C. § 27-20-02(8)(a), the phrase ‘proper parental care’ means the ‘minimum standards of care which the community will tolerate.’ See In Interest of K.R.A.G., 420 N.W.2d 325, 327 (N.D.1988).” In re J.R., 2002 ND 78, ¶ 9, 643 N.W.2d 699. But, lack of cleanliness of the home does not alone establish deprivation. In re J.K.S., 274 N.W.2d 244, 249 (N.D.1979).

[¶ 13] Prior to its repeal in 2001, N.D.C.C. § 15-34.1-01 required, with exceptions not relevant here, anyone with control over an educable child between seven and sixteen years of age to take or send the child to a public school the entire time school was in session. Section 15.1-06-04, N.D.C.C., provides, in part: “During each school year, a school district shall provide for a school calendar of at least one hundred eighty days.” Under N.D.C.C. § 27-20-02(1), a parent of a child not in the parent’s custody abandons the child by failing “without justifiable cause: (1) To communicate with the child; or (2) To provide for the care and support of the child as required by law.” A finding of deprivation under N.D.C.C. § 27-20-02(8) must be supported by clear and convincing evidence. In re J.R., 2002 ND 78, ¶ 9, 643 N.W.2d 699.

[¶ 14] As the juvenile court observed, “D.M. and S.S. have been involved with social services since 1996, when they were removed from [Steel’s] home. [Steel’s] numerous relocations to different communities within the last several years Alústrate the difficulty of providing services to a family.” “A parent’s frequent moving is evidence of the parent’s inability to provide a stable environment for a child.” In re D.F.G., 1999 ND 216, ¶ 16, 602 N.W.2d 697.

[¶ 15] In January 2000, Steel took D.Q. out of Home on the Range without permission. From January 2000 to April 2000, when they were retrieved by the Board, D.M. and D.Q. were living with Steel in Pennsylvania and were not in school. D.M.’s junior high school reported she had a long history of absenteeism. Steel testified she knew D.M. “had been absent in excess of 100 days in one school year” and was at home when she was absent from school. A teacher testified that, in the fourth grade, S.S. “never completed homework. And I would send correspondence every time she didn’t complete it. I would send home a sheet for her mother to sign, and that rarely happened.”

[¶ 16] S.S.’s case manager testified that when S.S. and two of Steel’s other children came into custody of Cass County Social Services in January 2002, S.S. needed glasses, and another had at least eight abscessed baby teeth, which had to be extracted, and, “because there was so many extractions, that they put some type of spacer in afterwards to keep the teeth from coming together.” Steel testified she would follow the doctor’s advice that S.S. stay on her epilepsy medication “[u]ntil I get a second opinion” and “I’m vehemently against chemicals of any kind. And if he’s mistaken, I would really hate to see her essence tainted, tainted with all them chemicals.” Steel had no physical contact with the three youngest children, including S.S., for a period of 8 months while she was in Pennsylvania and the children were in custodial care in North Dakota.

[¶ 17] Upon reviewing the record as a whole, and giving appreciable weight to the juvenile court’s findings, we conclude there is clear and convincing evidence D.M. and S.S. are deprived children and there was no evidence their deprivation is due primarily to their mother’s lack of financial means.

Ill

[¶ 18] Section 27-20-44(1), N.D.C.C., provides the court may terminate the parental rights of the parents of a deprived child:

The court by order may terminate the parental rights of a parent with respect to the parent’s child if:
a. The parent has abandoned the child;
b. The child is a deprived child and the court finds:
(1) The conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.

[¶ 19] Under N.D.C.C. § 27-20-44(1)(b)(1) the juvenile court may terminate parental rights if a child is deprived, the conditions and causes of the deprivation are likely to continue, and the child is suffering, or will in the future probably suffer serious physical, mental, moral, or emotional harm. See, e.g., In re AN., 1998 ND 181, ¶ 15, 584 N.W.2d 853. A party seeking parental termination must prove all elements by clear and convincing evidence. In re L.F., 1998 ND 129, ¶ 10, 580 N.W.2d 573. On appeal, we review the juvenile court’s decision regarding termination of parental rights and examine the evidence in a manner similar to a trial de novo. AN, at ¶ 13. “We review the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court. N.D.C.C. § 27-20-56(1).” In re C.R., 1999 ND 221, ¶ 4, 602 N.W.2d 520.

[¶ 20] The juvenile court found Steel “essentially abandoned S.S.” when she went to Pennsylvania in January 2000 and “had no contact with [her] until she returned to North Dakota in August 2000.” “Of great importance when considering a possible abandonment is the contact and communication with the child.” Pritchett v. Executive Dir., Soc. Serv. Bd. of North Dakota, 325 N.W.2d 217, 221 (N.D.1982). “A parent’s negligent failure to perform his parental duties is significant to the issue of abandonment.” Id. The court also found “D.M. and S.S. have suffered from physical, mental and emotional harm as the result of past deprivation, that the deprivation will continue in the future,' and that it is probable that they will suffer physical, mental, or emotional harm [ ] if they are returned to their mother.” S.S.’s case manager testified S.S. has been seeing a psychologist since a month or two after she was placed in foster care in Janu: ary 2000.

[¶ 21] “ ‘Although it is impossible to be certain what might occur in the future, any prediction of the future requires some reflection into the past conduct of the parties.’ ” Hentz v. Hentz, 2001 ND 69, ¶ 12, 624 N-W.2d 694, quoting Reede v. Steen, 461 N.W.2d 438, 442 (N.D.1990). Prognostic evidence, including reports and opinions of the professionals involved, that forms the basis for a reasonable prediction as to future behavior must be evaluated in determining if a child’s deprivation is likely to continue. In re D.F.G., 1999 ND 216, ¶20, 602 N.W.2d 697. “We are sensitive to the argument that it is dangerous to allow the judgment of social workers to determine how a family is run.” Bjerke v. D.T., 248 N.W.2d 808, 814 (N.D.1976). But, “we consider the lack of parental cooperation with social service agencies, which is insufficient to establish deprivation but is pertinent to whether deprivation will continue.” In re N.H., 2001 ND 143, ¶ 7, 632 N.W.2d 451. “[T]he primary purpose of N.D.C.C. ch. 27-20 is to protect the welfare of children.” In re A.M., 1999 ND 195, ¶ 6, 601 N.W.2d 253. “To terminate parental rights, a court need not await the happening of a tragic event.” In re T.K., 2001 ND 127, ¶ 17, 630 N.W.2d 38.

[¶ 22] Steel refused to produce D.M. when directed to do so by the juvenile court, when she “knew where [D.M.] was ... sort of.” Steel explained: “Say I didn’t want to lie in Court, so I told my friends to take her somewhere. — handy and be- available by cell phone, so that when I didn’t know where they were I was telling the truth.” A clinical psychologist who, performed a parental capacity evaluation reported, in part:

Ms. [Steel’s] style of thinking and relating is entrenched, and is not likely to change. I do not see evidence that she has motivation to look at things differently or to reassess her parenting style, therefore it would appear that she would continue on the same course, should the children be returned.

The children have suffered physical, men-tahand emotional harm. Steel has failed to cooperate with the juvenile court and social service agencies, she has been inattentive to the children’s medical needs, she has failed to ensure the children’s school attendance, she has a history of abusive relationships with alcoholic male partners living in the household, and she appears likely to continue as she has been. ■

[¶ 23] When appreciable weight is given to the juvenile court’s findings and the record is reviewed as a whole, we conclude the evidence clearly and convincingly shows S.S. is deprived, there is no evidence the deprivation is due’primarily to Steel’s lack of financial means, the conditions and causes of the deprivation are likely to continue, and S.S. is suffering, or will in the future probably suffer serious physical, mental, moral, or emotional harm, justifying the juvenile court’s decision to terminate Steel’s parental rights in S.S.

[¶ 24] The judgment is affirmed.

[¶ 25] CAROL RONNING KAPSNER, DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.

NEUMANN, Justice,

concurring specially.

[¶ 26] I agree with much of the majority opinion and with its result. I write separately to discuss standards of review.

[¶ 27] It strikes me as totally incongruous that a juvenile court judge is to apply only a clearly erroneous standard when reviewing a referee’s findings, but this Court will conduct a review “similar to a trial de novo.” In Interest of A.E., 1997 ND 9, ¶ 3, 559 N.W.2d 215. I recognize Benson v. Benson, 495 N.W.2d 72 (N.D.1993), says the district court is to apply the clearly erroneous standard in reviewing a referee’s findings, and that Benson is precedent. But Benson, which was not a juvenile case, also says this Court will apply a clearly erroneous standard in reviewing what the district court did. Benson makes sense, but what we are doing here does not.

[¶ 28] I have already written separately about our de novo review in juvenile eases. Interest of C.R.C., 2001 ND 83, 625 N.W.2d 533, (Neumann, J., concurring). It seems clear de novo review in juvenile cases is nothing more than a vestigial echo of an earlier time when all questions of fact in bench trials were subject to de novo appellate review. For virtually all other purposes, de novo review of fact questions was abolished in 1971, with an amendment to N.D.R.Civ.P. Rule 52. Interest of C.R.C., at ¶ 29. There is no reason to retain this anachronistic anomaly for juvenile cases. Its inappropriateness to the modern theories of appellate review is highlighted by the inconsistent standards applied in this case. This Court should no longer apply a de novo standard of review to questions of fact in juvenile cases.

[¶ 29] WILLIAM A. NEUMANN.

      . "Susan Steel” is a pseudonym.

      . "Ernest McNeel” is a pseudonym. He is S.S.’s father.

      . D.Q. had become an adult and was no longer involved in the case.

      . Compulsory attendance is now codified at N.D.C.C. § 15.1-20-01.