text:
    2003 ND 134
    Patrick T. McMORROW, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20030007.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      Monty Grant Mertz, Fargo, N.D., for petitioner and appellant; submitted on briefs.
    Lori Sue Mickelson, Assistant State’s Attorney, and Trent William Mahler, Assistant State’s Attorney, Fargo, N.D., for respondent and appellee; submitted on briefs.
   NEUMANN, Justice.

[¶ 1] Patrick T. McMorrow appealed a judgment denying his motion for post-conviction relief. We affirm.

I

[¶ 2] McMorrow pleaded guilty to charges of failure to register as a convicted sex offender, terrorizing, and violation of a protection order. McMorrow appealed the convictions for violation of a protection order and terrorizing, but the appeals were dismissed at his request. McMorrow filed an application for post-conviction relief, asserting ineffective assistance of counsel, excessive bail, failure to comply with discovery requests under N.D.R.Crim.P. 16, failure to dismiss counsel, an inadequate law library, cruel and unusual treatment in jail, police violation of his civil rights, and failure to appoint a private investigator. The State filed a response to McMorrow’s application and, under N.D.C.C. § 29-32.1-09, moved for summary disposition dismissing McMor-row’s application. After a hearing, the court concluded McMorrow failed to meet his burden and denied his application.

[¶ 3] McMorrow has raised the following issues on appeal from the judgment denying his application:

I. Whether The Trial Court’s Finding that Mr. McMorrow Failed to Prove Prosecutorial Misconduct was Clearly Erroneous.
II. Whether The Trial Court’s Finding that Mr. McMorrow Failed to Prove Relevance of the Civil Restraining Order Proceedings was Clearly Erroneous.
III. Whether The Trial Court’s Finding that Mr. McMorrow Failed to Prove that He was Prejudiced by Excessive Bail was Clearly Erroneous.
IV. Whether The Trial Court’s Finding that Mr. McMorrow Failed to Prove a Rule 16 Violation was Clearly Erroneous.
V. Whether The Trial Court’s Finding that Mr. McMorrow Failed to Prove Ineffective Assistance of Counsel was Clearly Erroneous.
VI. Whether the Trial Court’s Denial of Mr. McMorrow’s Several Pre-Hearing Motions was an Abuse of Discretion.

II

[¶ 4] “Post-conviction proceedings under N.D.C.C. ch. 29-32.1 are civil in nature.” Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. An applicant for post-conviction relief has the burden of establishing grounds for relief. Berlin v. State, 2000 ND 206, ¶ 7, 619 N.W.2d 623.

[¶ 5] McMorrow pleaded guilty to the charges involved in this post-conviction proceeding. Defendants who voluntarily plead guilty waive the right to challenge nonjurisdictional defects occurring before entry of the guilty plea. Eaton v. State, 2001 ND 97, ¶¶ 6, 7, 626 N.W.2d 676. “[A] defendant may not withdraw an accepted guilty plea unless withdrawal is necessary to correct a manifest injustice,” Berlin v. State, 2000 ND 13, ¶ 13, 604 N.W.2d 437, and “[a] defendant who pleads guilty upon the advice of counsel ‘may only attack the voluntary and intelligent character of the guilty plea,’ ” Damron v. State, 2003 ND 102, ¶ 9, 663 N.W.2d 650, quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Because McMorrow has asserted alleged prosecutorial misconduct, violations of N.D.R.Crim.P. 16, and excessive bail occurring before he pleaded guilty made the pleas involuntary, we will address those issues.

III

A

[¶ 6] McMorrow contends the trial court’s finding he failed to prove prosecu-torial misconduct is clearly erroneous. He argues in his brief:

Mr. McMorrow presented testimony and exhibits which established that he was prosecuted at the same time that Ms. Paula Larson was engaging in similar behavior, and his requests for equal treatment were rejected at every turn. There was no legitimate reason for the discriminatory behavior of the authorities. This unequal treatment violated his substantial rights.

[¶ 7] “Selective prosecution, if based upon improper motives, can violate equal protection.” Gale v. North Dakota Bd. of Podiatric Medicine, 1997 ND 83, ¶ 32, 562 N.W.2d 878. We addressed selective prosecution in State v. Kraft, 539 N.W.2d 56, 58 (N.D.1995):

A defendant alleging selective prosecution must show that the State has not generally prosecuted other similarly situated persons and that the State selected the defendant for prosecution for discriminatory ' reasons.... A failure to prosecute one person, similarly situated, does not meet the threshold of our selective enforcement test. Kraft’s fundamental complaint is that he has been prosecuted while an equally guilty person has not been; even if this is true, it is not a defense.

The trial court found McMorrow “has not made a sufficient showing of improper motive of law enforcement or prosecutors in pursuing prosecution of [McMorrow]. Based upon the records before the Court, there is no showing of selective prosecution.” We conclude the court’s finding there was no showing of selective prosecution is not clearly erroneous.

B

[¶ 8] McMorrow contends the trial court’s finding he failed to prove the relevance of earlier civil restraining order proceedings was clearly erroneous, arguing the transcript of that proceeding shows “there was no basis for the entry of the protection order or of the criminal conviction for terrorizing.” The State argues McMorrow did not raise this issue “before entry of his guilty pleas in the criminal matters” and raising it now is a misuse of process. The domestic violence protection order was affirmed on direct appeal in Larson v. McMorrow, 2002 ND 108, 651 N.W.2d 692, 2002 WL 31190944. We conclude the trial court properly determined this issue was “not appropriate for post-conviction relief.”

C

[¶ 9] McMorrow contends the trial court’s finding he failed to prove he was prejudiced by excessive bail is clearly erroneous, arguing “his bail of $60,000 when he was charged with a Class A Misdemeanor violated his constitutional right to be admitted to a reasonable bail, and to prepare his defense.” McMorrow has not drawn our attention to any decisions holding post-conviction relief under N.D.C.C. ch. 29-32.1 is available for a trial court’s pretrial bail orders. Furthermore, McMorrow admitted at the hearing that there were five other arrests for violation of a protection order and that “the Court had information that there was a terrorizing charge on five or six or whatever, for violation of protection order, charges all involving the same person, when they set that bail.” While McMorrow made conclusory assertions that his bail was excessive, “the record contains no facts ... explaining why it was excessive.” State v. McMorrow, 332 N.W.2d 232, 234 n. 1 (N.D.1983). We conclude the court properly determined McMorrow’s bail “was within the discretion of the trial judge.”

D

[¶ 10] McMorrow contends the trial court’s finding he failed to prove ineffective assistance of counsel is clearly erroneous. “A criminal defendant is entitled to effective assistance of counsel.” Abdi, 2000 ND 64, ¶ 29, 608 N.W.2d 292. “On a claim of ineffective assistance of counsel, the defendant has the ultimate burden of proving counsel’s performance was deficient and the deficient performance prejudiced the defendant.” Steinbach v. State, 2003 ND 46, ¶ 15, 658 N.W.2d 355. See also Wiggins v. Smith, — U.S. -, -, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471,-(2003) (“A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.”). “To establish deficient performance, a petitioner must demonstrate that counsel’s representation ‘fell below an objective standard of reasonableness.’ ” Id. (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The prejudice element requires a defendant to “establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Syvertson v. State, 2000 ND 185, ¶ 22, 620 N.W.2d 362. “A criminal defendant has the ‘heavy,’ ‘demanding’ burden of proving counsel’s assistance was ineffective,” Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995), and a defendant claiming ineffective assistance of counsel “must specify how and where trial counsel was incompetent and the probable different result.” State v. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18.

[¶ 11] McMorrow did not specify with particularity how and where his trial counsel was incompetent or establish a reasonable probability that, but for his attorney’s asserted errors, the result of the proceeding would have been different. We conclude the trial court’s finding that McMorrow “provided insufficient evidence to substantiate this claim” is not clearly erroneous.

E

[¶ 12] McMorrow contends the trial court’s finding he failed to prove a N.D.R.Crim.P. 16 discovery violation is clearly erroneous and the trial court’s denial of several pre-hearing motions he made pro se while he was represented by counsel was an abuse of discretion. “[A] party waives an issue by not providing supporting argument,” and “without supportive reasoning or citations to relevant authorities, an argument is without merit.” Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶27, 643 N.W.2d 29. Other than a citation to N.D.R.Crim.P. 16, which provides for discovery in criminal prosecutions, and a citation to N.D.C.C. § 29-32.1-08, which authorizes a trial court to permit discovery for good cause in post-conviction proceedings, McMorrow has provided no supportive reasoning or citations to relevant authorities on these issues. McMorrow’s conclusory arguments on these issues are, therefore, without merit.

IV

[¶ 13] The judgment is affirmed.

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


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2003 ND 131
    Rachel E. BENSON, Plaintiff and Appellee, v. Barry L. BENSON, Defendant and Appellant.
    No. 20030033.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      Carrie L. Francis, Legal Assistance of North Dakota, Minot, for plaintiff and ap-pellee.
    Tom P. Slorby, Minot, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Barry Benson appealed a district court judgment which concluded the state of Texas had jurisdiction to decide his child custody action. We reverse and remand for further proceedings consistent with this opinion.

I

[¶ 2] Barry and Rachel Benson were divorced in July 1998. They had one child, Dalton, who was born in August 1996. By a stipulation incorporated into the North Dakota judgment, the parties agreed to the following visitation arrangements: “[Rachel] shall have care, custody and control and provide the home residence of the minor child ... [Barry] shall be allowed reasonable and liberal visitation upon 48-hour advance notice.” Furthermore, the stipulation stated each party

shall keep the other party and the Clerk of the District Court advised of any change in residence, address, or home telephone number by providing written notification, within 10 days of any change, in order to expedite contact with, and communication regarding any minor child of the parties. [Rachel] may remove the minor child in her custody outside the State of North Dakota.

[¶ 3] In 1998, Rachel obtained a restraining order against Barry, and visitation arrangements were made with a supervised visitation center. Rachel contends Barry wrongfully removed Dalton from the center and thereafter did not request further visitation. In 1999, Rachel and Dalton moved to Texas. Barry alleges he did not know Rachel’s location, but Rachel asserts Barry knew she had relocated to Texas, as permitted by the parties’ stipulation and approved by the court.

[¶ 4] In February 2002, Barry filed an ex parte motion seeking a change of custody and suspension of his child support obligation. In March 2002, the district court issued an ex parte order granting temporary custody of Dalton to Barry and suspending his child support obligation until further court order. The court subsequently issued an amended ex parte order which notified Rachel of her right to file a written motion and have a hearing concerning the order. Rachel was served the amended ex parte order in Texas. In May 2002, Rachel made a special appearance through her attorney and moved to vacate the order, asserting she and Dalton had been residents of the state of Texas since 1999 and Texas would be the appropriate state to exercise jurisdiction over child custody matters.

[¶ 5] The district court concluded:

The parties consented to [Rachel] being allowed to remove the child from North Dakota in their stipulation , to the court. The court in its order allowed for the child to be removed from the State of North Dakota. Texas is and has been the residence of [Rachel] and the child since 1999. Therefore, the State of Texas would have jurisdiction in this case.

On appeal, Barry argues the court erred in determining it was without jurisdiction.

II

[¶ 6] The Uniform Child Custody Jurisdiction Act (“UCCJA”) was enacted in North Dakota in 1969. See 1969 S.L. ch. 154. Among the primary goals of the UC-CJA were avoiding jurisdictional competition and conflict, promoting cooperation between states, deterring abductions, and facilitating enforcement of custody decrees between states. See N.D.C.C. § 14-14-01 (repealed). However, under the UCCJA, courts were not required to give custody determinations full faith and credit. See Kelly Gaines Stoner, The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) — A Metamorphosis of the Uniform Child Custody Jurisdiction Act (UC-CJA), 75 N.D. L.Rev. 301, 303 (1999). In 1980, the federal government enacted the Parental Kidnaping Prevention Act (“PKPA”), 28 U.S.C. § 1738A, which requires states to give full faith and credit to other states’ custody decrees if the decrees are made consistent with the PKPA. The PKPA was also intended to remedy other problems the UCCJA failed to solve, including the issue of continuing jurisdiction and the potential for two states to have concurrent jurisdiction. Luna v. Luna, 1999 ND 79, ¶ 10, 592 N.W.2d 557.

[¶ 7] The Uniform Child Custody Jurisdiction and Enforcement Act (“UC-CJEA”) was promulgated in an effort to clarify ambiguous provisions in the UC-CJA and to rectify conflicting state interpretations of the UCCJA. See David Carl Minneman, Annotation, Construction and Operation of Uniform Child Custody Jurisdiction and Enforcement Act, 100 A.L.R.5th 1 (2002). The most significant changes in the UCCJEA are prioritizing home-state jurisdiction and providing for exclusive, continuing jurisdiction in the initial decree state. Id. The North Dakota Legislature adopted the UCCJEA in 1999, repealing the UCCJA. See N.D.C.C. §§ 14-14.1-01 to-37.

Ill

[¶ 8] Our prior cases involving interstate custody disputes have been decided under the UCCJA and the PKPA. See, e.g., Luna, 1999 ND 79, 592 N.W.2d 557; Zimmerman v. Newton, 1997 ND 197, 569 N.W.2d 700. Therefore, we now outline the multi-step process a court must follow in interstate custody disputes in determining whether to exercise jurisdiction under the UCCJEA and the PKPA. Cf Luna, at ¶ 9 (outlining the proper jurisdictional framework to be used under the UCCJA and the PKPA). First, a court must determine whether it has jurisdiction, and, if it finds that it does, it then must determine whether there is a custody proceeding pending‘or a decree made by another state which has jurisdiction. If there is a pending custody proceeding in another state, a court must follow the process in N.D.C.C. § 14-14.1-17 and PKPA § 1738A(g). A court may not modify a decree issued by another state, except as provided in N.D.C.C. § 14-14.1-14 and PKPA §§ 1738A(f) and (h). Finally, assuming there is neither a proceeding pending in another state nor a decree by which another state retains jurisdiction, the court may decline to exercise jurisdiction under N.D.C.C. § 14-14.1-18 on the basis of an inconvenient forum, and the court shall decline to exercise its jurisdiction under the provisions of N.D.C.C. § 14-14.1-19 if a person seeking to invoke the court’s jurisdiction has engaged in unjustifiable conduct.

[¶ 9] We stated in Luna, at ¶ 9, “[p]ro-cedurally, a court must first consider whether it has jurisdiction to decide custody and, if it does, the court must then decide, within the framework of the UC-CJA and the PKPA, whether to exercise its jurisdiction.” (quoting Hangsleben v. Oliver, 502 N.W.2d 838, 842 (N.D.1993)). We now proceed with the same analysis within the framework of the UCCJEA and the PKPA to consider the issue of North Dakota’s exclusive, continuing jurisdiction to modify a child custody decree.

[¶ 10] Section 14-14.1-13(1), N.D.C.C., pertaining to a court’s exclusive, continuing jurisdiction, states:

Except as otherwise provided in section 14-14.1-15 [temporary emergency jurisdiction], a court of this state which has made a child custody determination consistent with section 14-14.1-12 or 14-14.1-14 has exclusive, continuing jurisdiction over the determination until:
a. A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
b. A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.

[¶ 11] Neither party disputes the validity of the original custody determination made by Ward County. Therefore, under N.D.C.C. § 14-14.1-13(l)(a), North Dakota will retain exclusive, continuing jurisdiction unless: (1) a North Dakota court determines the child and at least one parent no longer have a significant connection with the state and the state no longer has substantial evidence concerning the child, or (2) it is determined by North Dakota or another state that all of the parties to the custody dispute have moved away from the state. Because Barry still resides in the state, North Dakota retains exclusive, continuing jurisdiction until a court of this state determines Dalton no longer has a significant connection with the state and the state no longer has substantial evidence concerning Dalton. The original-decree state retains exclusive, continuing jurisdiction provided the general requirements of the substantial connection jurisdiction provisions are met, even if a child has acquired a new home state. See Stoner, supra, at 316 n. 93 (quoting UCCJEA § 202 comment, 9 U.L.A. 252-53). However, exclusive jurisdiction will no longer exist “[i]f the relationship between the child and the person remaining in the state with exclusive, continuing jurisdiction becomes so attenuated that a court could no longer find significant connections and substantial evidence.” Id.

[¶ 12] In addition, under N.D.C.C. § 14-14.1-18, a court “may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” Thus, even if the district court concludes North Dakota has exclusive, continuing jurisdiction, it may, under the last step of the multi-step analysis described above, decline to exercise its jurisdiction if it determines the state of Texas is the more appropriate forum for this action.

[¶ 13] But here, the district court concluded “the State of Texas would have jurisdiction in this case.” In light of this statement and after reviewing the record, we are unable to determine whether the court concluded it had exclusive, continuing jurisdiction but declined to exercise jurisdiction under N.D.C.C. § 14-14.1-19, whether the court concluded North Dakota did not have jurisdiction, or whether it determined Texas would be the more appropriate forum. Because we are unable to make this determination, we reverse and remand with instructions for the district court to first determine whether under N.D.C.C. § 14-14.1-13(l)(a) the child and at least one parent no longer have a significant connection with this state and that substantial evidence is no longer available in North Dakota concerning the child’s care, protection, training and personal relationships. If the court finds North Dakota has continuing exclusive jurisdiction it must follow the multi-step process described above in determining whether to exercise jurisdiction.

IV

[¶ 14] Therefore, we reverse and remand for proceedings consistent with this opinion.

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

      . This process is also consistent with the continuing jurisdiction requirements of the PKPA, which provides:
      The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
      28 U.S.C. § 1738A(d). Cf. Dahlen v. Dahlen, 393 N.W.2d 765, 767 (N.D.1986) (noting because the PKPA is federal legislation, it will govern if state law conflicts). Subsection (c)(1) allows a child custody determination to be made by a court only if the court has jurisdiction under its own state laws. Thus, the original issue of whether the district court had jurisdiction to modify the custody decree under North Dakota law remains the issue under the PKPA.


text:
    2003 ND 137
    STATE of North Dakota, Plaintiff and Appellee, v. Milton Theodore STOPPLEWORTH, Jr., Defendant and Appellant.
    Nos. 20020345, 20020346.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      Frederick Russell Fremgen, State’s Attorney, Jamestown, for plaintiff and appel-lee.
    Thomas John Glass, Jamestown, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Milton Stoppleworth appealed from a judgment of conviction entered upon a jury verdict finding him guilty of aggravated assault and reckless endangerment. We affirm.

I

[¶ 2] At approximately 3:30 a.m. on February 12, 2002, Allen Buchanan arrived at the Jamestown Hospital emergency room with a slashed throat and a cut on his hand. Buchanan initially refused to identify his .attacker, telling a nurse and a police officer that he did not want to be labeled a “snitch” or a “narc.” Later, however, Buchanan told the police officer and nurse that Milton Stoppleworth, the brother of Buchanan’s long-time girlfriend, had cut his throat. He also told a friend who was present at the hospital that Stop-pleworth had done it. In interviews after being released from the hospital, Buchanan told a deputy sheriff and a detective that Stoppleworth had cut his throat.

[¶ 3] Stoppleworth was charged with attempted murder, aggravated assault, and reckless endangerment. At the preliminary hearing, Buchanan testified he was too intoxicated the night of the incident to remember who had attacked him and he did not remember his statements to the police. Stoppleworth filed a motion in li-mine seeking to exclude Buchanan’s statements identifying him as the assailant, arguing the statements were hearsay. The trial court held the statements were prior statements of identification which are admissible under N.D.R.E 801(d)(l)(iii).

[¶ 4] At trial, Buchanan testified he did not remember who had cut his throat and he did not remember identifying Stopple-worth as his attacker in prior statements at the hospital and to police. The court admitted evidence of Buchanan’s statements identifying Stoppleworth as his attacker to law enforcement, the nurse, and the friend. The court also admitted into evidence photographs taken at the hospital depicting Buchanan’s injuries. The jury acquitted Stoppleworth on the attempted murder charge, but found him guilty of aggravated assault and reckless endangerment.

II

[¶ 5] Stoppleworth argues Buchanan’s out-of-court statements identifying Stoppleworth as his attacker were inadmissible under the hearsay rule, N.D.R.E 802.

[¶ 6] In discussing this issue, we begin with the recognition the trial court has broad discretion in evidentiary matters, and we will not overturn a trial court’s decision to admit or exclude evidence unless the court abused its discretion. State v. Wiest, 2001 ND 150, ¶ 9, 632 N.W.2d 812. This abuse of discretion standard thus applies when reviewing a trial court’s evidentiary rulings under the hearsay rule. See State v. Hirschkom, 2002 ND 36, ¶ 7, 640 N.W.2d 439. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Wiest, at ¶ 9.

[¶ 7] Hearsay is defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.D.R.E 801(c). However, the rule further identifies specific statements which are not hearsay:

(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (in) one of identification of a person made after perceiving the person. ...

N.D.R.E 801(d)(l)(iii).

[¶ 8] Courts construing identical versions of this rule, including Fed.R.Evid. 801(d)(1)(C), have concluded the rule allows admission of evidence of prior identification of an assailant when the witness or victim is unable or unwilling to identify the assailant at trial. See, e.g., United States v. Owens, 484 U.S. 554, 561-64, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988); United States v. Lopez, 271 F.3d 472, 485 (3rd Cir.2001); United States v. Anglin, 169 F.3d 154, 159 (2nd Cir.1999); United States v. O’Malley, 796 F.2d 891, 899 (7th Cir.1986); United States v. Elemy, 656 F.2d 507, 508 (9th Cir.1981); Lewis v. State, 777 So.2d 452, 454 (Fla.Dist.Ct.App.2001); Nance v. State, 331 Md. 549, 629 A.2d 633, 639-40 (1993); State v. Grover, 55 Wash.App. 923, 780 P.2d 901, 905-07 (1989).

[¶ 9J The United States Supreme Court explained the rationale for the rule in Owens, 484 U.S. at 562-63, 108 S.Ct. 838:

The premise for Rule 801(d)(1)(C) was that, given adequate safeguards against suggestiveness, out-of-court identifications were generally preferable to courtroom identifications. Advisory Committee’s Notes on Rule 801, 28 U.S.CApp., p. 717. Thus, despite the traditional view that such statements were hearsay, the Advisory Committee believed that their use was to be fostered rather than discouraged. Similarly, the House Report on the Rule noted that since, “[a]s time goes by, a witness’ memory will fade and his identification will become less reliable,” minimizing the barriers to admission of more contemporaneous identification is fairer to defendants and prevents “cases falling through because the witness can no longer recall the identity of the person he saw commit the crime.” H.R.Rep. No. 94-355, p. 3 (1975). See also S.Rep. No. 94-199, p. 2 (1975). To judge from the House and Senate Reports, Rule 801(d)(1)(C) was in part directed to the very problem here at issue: a memory loss that makes it impossible for the witness to provide an in-court identification or testify about details of the events underlying an earlier identification.

[¶ 10] Courts have also explained that the rule allows testimony by third persons about a witness’s prior identification when the witness is unable or refuses to identify the defendant at trial:

The reasons for admitting identification statements as substantive evidence are that out-of-court identifications are believed to be more reliable than those made under the suggestive conditions prevailing at trial, and the availability of the declarant for cross-examination eliminates the major danger of hearsay testimony. See Fed.R.Evid. Advisory Committee Note to rule 801(d)(1)(C); Gilbert v. California, 388 U.S. 263, 272-73 n. 3, 87 S.Ct. 1951, 1956-57 n. 3, 18 L.Ed.2d 1178 (1967). These reasons remain fully applicable when the person who testifies to the statement of identification is not the person who uttered it, so long as the latter also testifies and is available for cross-examination.
Our interpretation of the rule is supported by its legislative history. That history indicates that Congress enacted the provision to remedy two perceived problems: (1) the typical situation where the witness’s memory no longer permits a current identification and he therefore can only testify as to his previous identification; and (2) the instance where before trial the witness identifies the defendant and then because of fear refuses to acknowledge his previous identification. 121 Cong.Rec. 31, 866-67 (Congressmen Hungate and Wiggins). It is plain that in the second situation the witness’s prior identification can only be introduced into evidence by a third party who was present at the original identification.

Elemy, 656 F.2d at 508; see also Lopez, 271 F.3d at 485; Nance, 629 A.2d at 639-40; Grover, 780 P.2d at 906.

[¶ 11] In this case, Buchanan testified at trial and was available for cross-examination. Accordingly, his prior statements identifying Stoppleworth as his assailant were not hearsay under N.D.R.E 801(d)(l)(iii). We conclude the trial court did not abuse its discretion in admitting evidence of Buchanan’s prior statements.

Ill

[¶ 12] Stoppleworth argues the trial court erred in admitting photographs depicting Buchanan’s injured neck and hand, arguing that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice.

[¶ 13] We recently outlined the standard governing admissibility of photographs in State v. Klose, 2003 ND 39, ¶¶ 28-29, 657 N.W.2d 276 (citations omitted):

Under N.D.R.E 401, 402, and 403, a district court has broad discretion in admitting or excluding evidence. We will reverse the district court’s decision in admitting evidence only if the court has abused its discretion by acting in an arbitrary, unconscionable, or unreasonable manner. All relevant evidence is allowed; however, even relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.” N.D.R.E 403. A district court has broad discretion in deciding whether evidence is relevant or not relevant. While N.D.R.E 403 gives a district court the power to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, that power should be sparingly exercised.
Photographs may be admitted in criminal trials, at the district court’s discretion, even if the photographs could have the additional effect of exciting the emotions of the jury.... When photographs are relevant or aid a witness’s testimony, even gruesome pictures are admissible for the purpose of offering proper proof.

[¶ 14] Although the photographs in this case were somewhat graphic, they accurately depicted Buchanan’s injury. We conclude the trial court did not abuse its discretion in determining that the evidence was relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice.

IV

[¶ 15] We have reviewed Stopple-worth’s remaining issues and arguments and find them to be without merit. The judgment of conviction is affirmed.

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


text:
    2003 ND 127
    In the Interest of D.P.O. D.P.O., A.D.O., the parent and natural mother of D.P.O., G.O., grandparent of D.P.O., and the Grand Forks County Social Service Board, Assignee for A.D.O. and G.O., Plaintiffs, v. N.H., Defendant and Appellant, G.O., grandfather of D.P.O., and L.O., grandmother of D.P.O., Appellees. In the Interest of D.P.O. D.P.O., A.D.O., the parent and natural mother of D.P.O., G.O., grandparent of D.P.O., and the Grand Forks County Social Service Board, Assignee for A.D.O. and G.O., Plaintiffs, v. N.H., Defendant and Appellee, G.O., grandfather of D.P.O., and L.O., grandmother of D.P.O., Appellants.
    Nos. 20030002, 20030020.
    Supreme Court of North Dakota.
    Aug. 20, 2003.
    Rehearing Denied Sept. 23, 2003.

      Ralph F. Carter, Moosbrugger, Carter & McDonagh, P.L.L.P., Grand Forks, N.D., for defendant, appellant, and appel-lee, N.H.
    Rex A. Hammarback, Hammarback, Du-sek & Associates, P.L.C., Grand Forks, N.D., for appellees and appellants, G.O. and L.O.
   VANDE WALLE, Chief Justice.

[¶ 1] G.O. (“Glen”) and L.O. (“Laura”), the maternal grandparents of D.P.O. (“Denise”), appealed from a judgment awarding custody of Denise to her biological father, N.H. (“Ned”). Ned has appealed from that part of the judgment awarding Glen and Laura grandparent visitation. We affirm.

I

[¶ 2] Ned and Denise’s mother, A.O. (“Ann”), had a brief relationship in 2000 from which Denise was conceived, but the couple never married. Denise was born on February 23, 2001. Ned was not informed of Ann’s pregnancy or the child’s birth until months later, and he did not know he was the biological father until December 18, 2001, after paternity tests had been completed. Upon learning he was Denise’s father, Ned immediately took action to start visitations and to pay child support.

[¶ 3] Three days after Denise was born, Ann, who was then incarcerated, placed Denise in Glen and Laura’s physical custody. On September 26, 2001, Ann stipulated that Denise was a deprived child, and legal custody was placed with Grand Forks County Social Services. On June 13, 2002, Ned filed a motion seeking court-ordered custody of Denise. Denise remained in the physical custody of her maternal grandparents until mid October 2002, when she was placed with Ned. On August 13, 2002 a petition was filed by Grand Forks County Social Services to extend Denise’s custody placement with that office. On September 18, 2002, Glen filed a motion requesting that Denise be placed in the physical custody of her maternal grandparents. Ann acquiesced in that request, but she later requested the court to place custody of Denise with her. Attorney Carol Johnson was appointed custody investigator and attorney Mary Seaworth was appointed Denise’s guardian ad litem.

[¶ 4] All issues in these cases were consolidated for trial on November 20, 2002. After the trial, the court awarded legal custody jointly to Ned and Ann and awarded Ned physical custody, with supervised visitation for Ann and separate visitation for the maternal grandparents.

II

[¶ 5] Glen and Laura appealed from the court’s custody placement, asserting the court’s decision was clearly erroneous because the court failed to give adequate consideration to the grandparents’ psychological parent relationship with Denise. They also claim the court arbitrarily disregarded the expert testimony of Maxine Rasmusson, Ph.D., that removing Denise from the grandparents’ custody would be detrimental to her.

A.

[¶ 6] An award of custody is a finding of fact which this Court will not disturb unless it is clearly erroneous. Hamers v. Guttormson, 2000 ND 93, ¶ 4, 610 N.W.2d 758. Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous only if it is induced by an erroneous view of the law or, although there is some evidence to support it, on the entire record we are left with a definite and firm conviction a mistake has been made. Id. Parents generally have a right to the custody and control of their children superior to that of any other person. Goter v. Goter, 1997 ND 28, ¶ 7, 559 N.W.2d 834. Absent exceptional circumstances triggering a best-interest analysis, a natural parent is entitled to custody of his or her child. Id. See Hust v. Hust, 295 N.W.2d 316, 319 (N.D.1980). Establishment of a psychological parent relationship does not end the trial court’s inquiry in making a custody decision, but merely furnishes a justification for the award of custody to a party other than the natural parent. Daley v. Gunville, 348 N.W.2d 441, 445 (N.D.1984). When a psychological parent and a natural parent each seek a court-ordered award of custody, the natural parent’s paramount right to custody prevails unless the court finds it in the child’s best interests to award custody to the psychological parent to prevent serious harm or detriment to the welfare of the child. Cox v. Cox, 2000 ND 144, ¶ 22, 613 N.W.2d 516; Simons v. Gisvold, 519 N.W.2d 585, 587 (N.D.1994).

[¶ 7] A brief recitation of the relevant facts will enable our review of the trial court’s custody decision. Ann, age 23, resides in Bemidji, Minnesota, and is completing her first year of college there. Ned, age 30, is a Syrian citizen, living in Grand Forks on a work visa which expires in 2004. The visa is renewable upon his employer’s request unless there is good cause shown why it should not be renewed. Ned has lived in Grand Forks for about four years and is employed at the University of North Dakota School of Medicine, with an annual salary of about $44,000. He plans to continue his education and to obtain a Ph.D. in information systems.

[¶ 8] The trial court found that Glen and Laura have established a psychological parent bond with Denise, but that finding alone does not determine custody. The court also found that a bond has developed between Denise and Ned. The court specifically found “there was nothing presented” to show that “awarding physical custody to one of the biological parents at this time would constitute serious harm or detriment to [Denise], especially if continuing contact were allowed between [Denise] and her maternal grandparents.”

[¶ 9] The trial court evaluated the factors under N.D.C.C. § 14-09-06.2, to determine whether, in Denise’s best interests, she should be placed in the physical custody of Ned or Ann. The court found that the bond between Ned and Denise had been conclusively established but that, because of Ann’s prolonged absence from her daughter’s life, very little bonding had occurred between Ann and Denise. The court found that both parents love their daughter, but that only Ned had taken positive steps to learn how to be a parent by taking formal parenting classes and by seeking to provide a nurturing home environment for Denise. The court found that Ned offers the greater likelihood of providing a permanent stable environment for Denise.

[¶ 10] The court found that Ann has a history of violent behavior which has resulted in criminal convictions and periods of incarceration. He also found that she has exhibited bizarre behavior and emotional instability and needs professional attention. Consequently, the court found that Ned has the better physical and mental health as a parent.

[¶ 11] The court found that the maternal grandparents have been an integral part of Denise’s life but that the relationship between the biological parents and the maternal grandparents is quite strained. The court found that it is in Denise’s best interests the maternal grandparents remain a part of her life.

[¶ 12] We conclude the trial court’s findings on the custody issue are supported by the record evidence and are not clearly erroneous. After finding the maternal grandparents had established a psychological parent relationship with the child, the court properly applied the law in determining whether those exceptional cir-cumstanees required, in the child’s best interests, that she be placed with the maternal grandparents rather than one of her natural parents to prevent serious harm or detriment to the welfare of the child. The court concluded the evidence did not demonstrate that Denise would suffer serious harm or detriment if she were placed in the custody of one of her natural parents rather than her psychological parents.

B.

[¶ 13] The grandparents assert the court “arbitrarily disregarded” testimony of Dr. Rasmusson, who is engaged in a marriage and family counseling practice in Grand Forks. The court-appointed custody investigator, attorney Carol Johnson, recommended Ned be awarded physical custody and the maternal grandparents be given visitation. The court-appointed guardian for the child also recommended custody be awarded to Ned. However, Dr. Rasmusson testified that if a child is removed from its caregiver after a twenty-month period it would be detrimental to the child. She testified that she did not, however, observe Denise long enough with the maternal grandparents to form an opinion whether the child had psychologically bonded with them. She also testified that she had never interviewed the child’s mother or father and that she had not reviewed any documents from social services or medical providers regarding the case. It is for the trial court to weigh an expert’s opinion against the specific facts and circumstances of a case. See Daley v. Gunville, 348 N.W.2d 441, 445-46 (N.D.1984). This record does not reflect that the trial court arbitrarily disregarded Dr. Rasmusson’s testimony.

[¶ 14] We conclude the trial court applied the appropriate law in reaching its custody decision and the court’s finding that in Denise’s best interests physical custody should be awarded to Ned is supported by the record evidence and is not clearly erroneous.

Ill

[¶ 15] Ned appealed from that part of the judgment which awarded visitation to the maternal grandparents. He asserts the court should not have awarded grandparent visitation under N.D.C.C. § 14-09-05.1, because the grandparents did not make a specific request for visitation. That statute provides in relevant part:

The grandparents and great-grandparents of an unmarried minor may be granted reasonable visitation rights to the minor by the district court upon a finding that visitation would be in the best interests of the minor and would not interfere with the parent-child relationship .... An application for visitation rights under this section may be considered by the district court in conjunction with a divorce proceeding involving the parent of the minor child. If any district court of this state retains jurisdiction over the custodial placement of the minor child or children by virtue of any prior proceedings, the rights conferred by this section may be enforced by the grandparents or the great-grandparents through motion under the prior proceeding. If no district court otherwise has jurisdiction, a proceeding to enforce grandparental rights may be brought against the custodial parent as a civil action and venued in the county of residence of the minor child.

[¶ 16] Generally, it is error for the trial court to direct grandparent visitation privileges under this statute that are not requested. Peterson v. Peterson, 1997 ND 14, ¶ 23, 559 N.W.2d 826. We explained the purpose of the statute in requiring a request for grandparent visitation in Alvarez v. Carlson, 474 N.W.2d 79, 82-83 (N.D.1991):

Although the children’s paternal grandmother testified at the hearing, she did not file a motion requesting the court to award her visitation privileges. The statute envisions enforcement of rights granted under the provision by motion or by the filing of a separate action if the court does not have jurisdiction under a prior proceeding. By requiring the grandparent to request visitation through a motion or a separate action, the statute protects the rights of the custodial parent or other interested party who may be adverse to the request, giving them notice and an opportunity to voice objection to the request. Absent a motion requesting visitation privileges, the court should not have awarded the paternal grandmother visitation under the statute.

[¶ 17] We conclude the statutory requirement that the grandparents must request visitation has been substantially complied with by Glen and Laura in this case. After having had physical custody of the child for the first 20 months of her life, these maternal grandparents filed a petition with the court seeking an award of permanent physical custody as the psychological parents. Glen testified during the hearing that if the grandparents were not awarded custody they would want to maintain as much of a relationship with the child as the court would permit. We conclude that Ned and Ann were given adequate notice and opportunity to respond to the grandparents request for custody or other significant relationship with the child, including visitation privileges.

[¶ 18] Ned also asserts the grandparents should not have been awarded visitation, because there was no finding by the court that visitation would not interfere with the parent-child relationship. The trial court’s determination on visitation is a finding of fact that will not be overturned on appeal unless it is clearly erroneous. Schempp-Cook v. Cook, 455 N.W.2d 216, 217 (N.D.1990). The statute expressly requires the court, as a prerequisite to awarding grandparent visitation, to determine whether the visitation would be in the best interests of the child and whether the visitation would interfere with the parent-child relationship. Id. The trial court found the maternal grandparents had established a psychological bond with the child, but also found that the evidence did not demonstrate the child would suffer serious harm or detriment if custody was awarded to one of the natural parents “especially if continuing contact were allowed between [Denise] and her maternal grandparents.” The court also made the following specific finding:

[Denise’s] maternal extended family in Grand Forks [has] been an integral part of her life since her birth. Unfortunately for the young child, the relationship between her biological parents and her extended family is quite strained. Regardless of the custody determination, it appears that the maternal grandparents certainly should remain a part of [Denise’s] life. It is in her best interests that they do. For that to happen, however, every party to this action is going to have to put their personal feelings about one another and the past behind them. If they can’t or won’t, they will be responsible for causing perhaps irreparable harm to these relationships. If they can’t or won’t, they won’t have [Denise’s] best interests at heart.

[¶ 19] We conclude these findings by the trial court are adequate to meet the statutory requirement that the court find an award of grandparent visitation is in the child’s best interests and will not interfere with the parent-child relationship. The court’s findings imply that not only is it in Denise’s best interests that she continue to have substantial contact with the maternal grandparents but that serious harm could result to her if such contact were not presently allowed.

[¶ 20] Ned claims grandparent visitation would interfere with his parent-child relationship in this case, because the maternal grandparents are biased against his nationality and religion. Relevant to this issue the trial court made the following findings of fact:

[Ann] and her parents both expressed fear that if [Ned] were awarded legal custody of [Denise], he would remove her from the United States and they would thereafter be unable to have any contact with her.
Because of their obvious deep-rooted concerns about the mid-eastern Islamic culture and perceived universal Muslim attitudes toward females, the [grandparents] feel that [Ned] either will not, or is simply incapable of, providing the needed care and nurturing for [Denise]. The court makes a specific finding that these concerns are unfounded in this particular case. Other than a litany of concerns expressed by their attorney, nothing in the form of admissible evidence was presented to lend credence to them, nor about [Ned] being unfit to be a custodial parent of his daughter.

Although the grandparents expressed concern that Ned’s cultural background could result in parenting differences from their own and also expressed concern that he might attempt to flee from this country with Denise, the court found those concerns were unfounded. The court did not find that the grandparents, by expressing these concerns, held a bias or prejudice against Ned that would result in their visitations interfering with his parent-child relationship. From a review of the record evidence, we conclude the findings of the court are not clearly erroneous. The trial court can revisit the matter of grandparent visitation if there is evidence of interference with the parent-child relationship.

IV

[¶ 21] We conclude the trial court’s finding that, in Denise’s best interests, she should be placed in the physical custody of her father, Ned, is not clearly erroneous.

[¶22] We further conclude the trial court’s award of grandparent visitation is in accordance with the statutory requirements and is not clearly erroneous.

[¶ 23] Judgment affirmed.

[¶ 24] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, JJ„ concur.

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


author: MARING, Justice.

text:
    2003 ND 132
    Duane E. LANGNESS, Plaintiff and Appellant, v. FENCIL URETHANE SYSTEMS, INC., a corporation, Defendant and Appellee, RDO FARM PARTNERSHIP, d/b/a RD Offutt, Inc., a corporation; James Behrens; and Polydyne, Inc., Defendants.
    No. 20030004.
    Supreme Court of North Dakota.
    Aug. 20, 2003.

      Duane A. Lillehaug (argued), Leland F. Hagen (on brief), and Robert M. Light (on brief), Lee Hagen Law Office, Fargo, N.D., for plaintiff and appellant.
    Randall J. Bakke (argued) and Shawn A. Grinolds (on brief), Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Duane Langness appealed from a judgment entered upon a jury verdict dismissing his action against Fencil Urethane Systems, Inc. for negligent application of epoxy primer and exposure to toxic chemicals. We hold the trial court abused its discretion in excluding the proffered testimony of Langness’ expert, Dr. Alan Buck. We reverse and remand for further proceedings.

I

[¶ 2] In 1997, Langness sold RDO Farms a 70 by 186 foot steel-arched quon-set for use as a potato warehouse near Mandan. Langness assisted RDO Farms in the construction of the building, including an air-exchange system. RDO Farms hired Fencil, a Wisconsin corporation owned by Darrell Fencil and his wife, to apply an epoxy primer and to spray urethane foam insulation in the interior of the warehouse. The epoxy primer was manufactured by Polydyne, Inc., and contained methyl ethyl ketone (“MEK”). The epoxy primer was in fifty-five gallon barrels with a label that cautioned not to breathe vapor or spray mist of the primer and to wear approved respirators. The label also cautioned to use the primer only in a ventilated area. A material safety data sheet (“MSDS”) for the epoxy primer stated “[s]hort-term inhalation toxicity is low. Breathing small amounts during normal handling is not likely to cause harmful effects. Breathing large amounts may be harmful. Symptoms are more likely seen at air concentrations exceeding the recommended exposure limits.” The MSDS for the epoxy primer also indicated “[v]apors are heavier than air and may travel along the ground or may be moved by ventilation.”

[¶ 3] On September 11, 1997, Fencil began applying the epoxy primer while Langness and other workers were finishing work on the east end of the building, where the only openings to the building were located. Fencil arrived at the building site at about one p.m. 'and set up' his equipment to begin spraying the epoxy primer in the interior of the west end of the building, placing a pump in the middle of the building and a scissors lift in the west end of the building. Fencil covered the scissors lift with polyethylene wrap and put on protective clothing, including a hood and mask with an outside air supply.

[¶ 4] According to Langness, he and several other people were working inside the east end of the building, and Fencil agreed not to start spraying until the workers were finished, which Langness told Fencil would be about two hours. According to Langness, he was working inside the building on scaffolding when he and the other workers began smelling the epoxy primer and were enveloped in a blue fog, and he asked Fencil to stop spraying. According to Donald Black, one of the other workers in the building, Fencil sprayed for a “good half hour” before Langness asked Fencil to stop. Black testified the building was full of fog and visibility was about forty feet. According to Langness, Fencil agreed to stop spraying until the workers were done, but Fencil subsequently began spraying a second time while Langness and other workers were working inside the building and a blue fog again enveloped the workers. Gary Cox, another worker in the building, testified that he saw Fencil switch the sprayer from one fifty-five gallon barrel of primer to another .fifty-five gallon barrel. According to Langness, he became ill from the exposure to the spray, gathered his equipment, left the building site, and returned about a week later to complete his work. According to Cox and Langness, some of the workers had immediate reactions to the primer and were coughing and throwing up.

[¶ 5] Fencil testified he did not remember any people working inside the building when he arrived at the site. According to Fencil, he initially warned the workers he was going to start spraying in the west end of the building and no one objected. One of Fencil’s employees testified all the workers were offered a protective mask to wear while the building was being sprayed, but none of them accepted the offer. Fen-cil testified he began spraying in the west end of the building, about 180 feet from Langness’ work area, and he stopped spraying on both occasions when Langness asked him to stop. According to Fencil, he sprayed for about five minutes on each occasion at a rate of one-half gallon per minute and only sprayed about two and one half gallons of primer each time he sprayed.

[¶ 6] Langness claims Fencil negligently applied the epoxy primer inside the building and exposed him to toxic chemicals. Langness alleges he suffers from Reactive Airways Dysfunction Systems (“RADS”). Langness sued Polydyne for strict liability in tort and negligence, and Fencil, RDO, and an RDO employee for negligence. Before trial, Langness settled with all the defendants except Fencil. A jury returned a special verdict finding Fencil was not negligent. Langness appealed.

II

[¶ 7] Langness argues the trial court erred in excluding the proffered testimony of his expert, Dr. Alan Buck.

[¶ 8] Rule 702, N.D.R.Ev., provides “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Rule 702, N.D.R.Ev., “envisions generous allowance of the use of expert testimony if [proffered] witnesses are shown to have some degree of expertise in the field in which they are to testify.” Anderson v. A.P.I. Co., 1997 ND 6, ¶ 9, 559 N.W.2d 204. A witness must be qualified as an expert before testifying, by opinion, as to scientific, technical or other specialized knowledge. Estate of Aune, 478 N.W.2d 561, 564 (N.D.1991). A witness need not have a formal title or be licensed in any particular field to qualify as an expert, and the witness’s actual qualifications may be established by knowledge, skill, experience, training, or education. Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990). Experts need not be a specialist in a highly particularized field if their knowledge, training, education, and experience will assist the trier of fact. Kluck v. Kluck, 1997 ND 41, ¶ 10, 561 N.W.2d 263.

[¶ 9] The trial court must ascertain whether proffered expert testimony is rehable and relevant. Hamilton v. Oppen, 2002 ND 185, ¶ 15, 653 N.W.2d 678. Whether a witness is qualified as an expert is ■ a discretionary decision for the trial court. Myer v. Rygg, 2001 ND 123, ¶ 8, 630 N.W.2d 62. The trial court’s decision that a witness is, or is not, qualified as an expert will not be reversed on appeal absent an abuse of discretion. Id. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Id. In Myer, at ¶ 15, we discussed several cases describing a trial court’s discretion within the context of the generous allowance of the use of expert testimony to assist the trier of fact:

a trial court does not abuse its discretion by admitting expert testimony whenever specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or specific certification. Botnen v. Lukens, 1998 ND 224, ¶ 13, 587 N.W.2d 141 (holding trial court did not abuse its discretion by permitting a psychologist to testify with regard to generalities despite the fact the expert had not interviewed or evaluated the child or any party to the litigation); Anderson, 1997 ND 6, ¶ 18, 559 N.W.2d 204 (deciding specialist in environmental engineering could testify about his perceptions of medical articles he had read to research asbestos-caused illnesses); Kluck, 1997 ND 41, ¶ 10, 561 N.W.2d 263 (agreeing an educated and experienced psychologist could be qualified as an expert to testify about child custody factors); Endresen [v. Beretta USA Corp.], 1997 ND 38, ¶ 14, 560 N.W.2d 225 (holding the trial court did not abuse its discretion in admitting expert’s testimony, treating the expert’s lack of direct experience with specific feeding and gas venting system design of semi-automatic weapons as bearing on the weight of his testimony); Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835, 837 (N.D.1995) (holding the trial court did not abuse its discretion by admitting expert who did not have a specialized scientific education in fireworks, but demonstrated extensive knowledge, skill, and experience from his 35 years in the fireworks industry); Wanner v. Getter Trucking, Inc., 466 N.W.2d 833, 837 (N.D.1991) (holding the trial court did not abuse its discretion by admitting testimony of expert who, although not familiar with the rigging procedure for a traveling block assembly of an oil rig prior to the case, after studying the information was able to form the opinion that the trucking company did not use the safest available method); Estate of Aune, 478 N.W.2d 561, 563-64 (N.D.1991) (holding trial court did not abuse its discretion in allowing decedent’s physician, who was not a psychiatrist, to testify about insane delusions); Oberlander, 460 N.W.2d 400, 402 (N.D.1990) (holding trial court’s per se disqualification of an expert witness based on the lack of a North Dakota psychologist license was an abuse of discretion because “to qualify as an expert, a witness need not be licensed in a given field, let alone licensed in the court’s jurisdiction, so long as the witness possesses the requisite knowledge, skill, experience, training, or education in that field”); Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D.1985) (holding the trial court did not abuse its discretion by allowing fire chief to testify in his opinion the fire was caused by a cigarette).

[¶ 10] Here, in response to Fencil’s discovery request, Langness identified Dr. Buck as an expert in “[t]oxicology, chemistry, biochemistry and physiology plus the general sciences of environmental toxicology and environmental sciences” who “will testify primarily as a toxicologist, but his expertise in chemistry, biochemistry, physical-chemistry will be used to substantiate his opinions.” Langness indicated Dr. Buck would testify about “[t]he concentrations of toxic materials released by the defendant, Fencil, during the spraying episodes”; “OSHA Permissive Exposure Limits (“PEL”) established for the toxic materials released by defendant Fencil”; “[m]edical syndromes manifested by those persons exposed to the toxic materials released by defendant Fencil [and consequences of exposures to less than the PEL, equal to the PEL and greater than the PEL or the IDLH (Immediately Dangerous to Life and Health)”; “[cjhronic and acute symptoms manifested by persons exposed to the above three levels or concentrations of toxic materials”; and “[p]rognosis of persons exposed to the above three levels or concentrations of toxic materials.”

[¶ 11] At trial, Langness made an offer of proof about Dr. Buck’s proffered testimony:

First, we would ask him to assume that the spray that was being applied at the rate of — was being applied at the rate of three gallons per minute in accordance with the specifications for the sprayer. Full capacity, so that one full 55-gallon drum would be applied in 18 minutes, or thereabouts. We’d ask him to assume that the wind was out of the southeast, or at 150 degrees and range from 20 to 30 miles per hour during the afternoon of September 11. That the temperature reached as high as 79 degrees and was still at 73 degrees by 6:00 p.m. That the openings cut in the west [sic] end for doors and louver as depicted in the various photographs were all open. That Mr. Langness was working at the height 20 feet at the east end of the plenum wall. Vaporized MEK and blue fog became so thick when Mr. Langness began to climb down that he could barely see his co-worker near him or — and, excuse me, and could not see much of his hand held out in front of his face.
We would ask him to assume, further, that all of the six or seven workers in the building felt respiratory irritation from the fumes, they felt dizziness, nauseous and similar circumstances by at least the point where they began to leave the building, which they did as fast as they could under the circumstances.
Further, that once outside some or all of the workers were throwing up and had what are known as the dry heaves, that some or all were coughing hard and repeatedlyf,] that some or all, including Mr. Langness, were bringing up the blue-colored particles from their lungs when coughing.
Further, that when the sprayer came out from the rear of the building, he was not visible to the people outside until he was within 20 to 50 feet or so of the door because of the blue fog. That all work stopped, and the people all left the building for about one hour after the spraying was brought to a halt.
Next, we would ask him to assume that Duane [Langness] and the other construction workers re-entered the building about one hour later and resumed their work.
Next, that about 45 minutes later the spraying resumed and at the same spray rate, and with the same results as the first time regarding the thickness of the evaporated MEK and the particles it carried and the effect on the workers. Next, that in addition to coming down from the scaffolding and the wooden platform were [sic] Mr. Langness was at, the workers, including Mr. Langness, spent additional time in the building removing scaffolding, saws, tools, hoses and related equipment because they observed the blue paint particles were coating that equipment.
That Mr. Langness experienced all of these health problems described by him in the deposition and described in the medical records. That the total exposure time to the MEK particles of Duane [Langness] was as high as 45 minutes to an hour and no less than 10 to 15 minutes.
And then we would ask that based on those assumptions and the other information he has, including the inspection of the building, the statements given by the coworkers, including Mr. Cox and other coworkers and supplied to Dr. Buck, and the information in the depositions and documents received in discovery, we would ask his opinions regarding the following: And the first question would be, did the epoxy primer reach the level of the STEL [short term exposure limit] of 300 parts per million at the place where Mr. Langness was at the east end of the building? Our offer of proof would indicate that Dr. Buck would testify that it definitely did, and actually would have reached significantly higher, and that even at the rate of one gallon per minute, the STEL was reached within three minutes at the point where the sprayer was. He would spray — that the spray would tend to sink to the floor, but it would build in layers and would tumble and roll in the building as it filled the interior, all tending to flow towards the east where the only openings were located.
He would testify the fog would enter the plenum through all of the 22 two-foot openings at the base of the plenum wall and would flow to the east as though in a chimney, thereby rapidly building up to at least as high a concentration there as it was where the sprayer was, and likely even greater because of the openings directly to the east where Mr. Langness was.
So his opinion would be that he definitely was exposed to the SDH limit of 15 minutes, and considerably more on both occasions of the spraying.
We would then ask his opinion as to whether the epoxy primer reached the level of the IDLH 3,000 parts per million, which Dr. Buck would testify to mean that at such levels one would expect that 50 percent of the people exposed at that level would die within 15 minutes. And we would ask him to state whether it was his opinion one way or another whether Mr. Langness, being at the east end of the building would have experienced that level at any time for any period of time of the IDLH, and Dr. Buck, we expect, would testify that at three gallons per minute, the IDLH was reached where the sprayer was within 18 minutes, and the spray would have filled the building at that level, at least by the time Duane [Langness] stated he could barely see his co-worker. And his opinion would be that considering the flow of gases and normal condition considering the building particularly from the point of view that it can only leave the building at the east end, not to any other directions, that the IDLH would have been reached where Mr. Langness and all of the workers were. And his opinion would be that that occurred on both the first spraying and the second.
Then we would ask him whether irrespective of the SDEL or IDLH limits and the time of exposure, whether he had an opinion as to whether Mr. Langness and the other workers became exposed to the chemical to a point in which they could have sustained physical damage, and his opinion we would expect would be that, yes, by the fact that they were bringing up these particles from their lungs, inhaled along with the spray, that Mr. Langness and the other workers, based solely on that evidence, would have inhaled enough of the spray of the level to have been likely to have experienced injury.

[¶ 12] The trial judge originally assigned to the case granted Fencil’s motion in limine to exclude Dr. Buck’s testimony. However, that judge was recused, and the case was assigned to a second judge, who issued his own ruling on the motion in limine. Because the second judge issued his own decision on the motion in limine, we review that judge’s ruling.

[¶ 13] The second judge granted Fen-cil’s motion in limine to exclude Dr. Buck’s testimony, concluding:

The record indicates that Dr. Buck has previously given considerable expert testimony, and that he has degrees in chemistry, biochemistry, and a Ph.D. in environmental physiology.
The record before the Court on this motion includes portions of Dr. Buck’s deposition. He acknowledged that his testimony would involve making certain assumptions and would, in essence, be theoretical, or speculative. It would appear that foundation would be lacking for some of the opinions he would intend to offer, i.e. his acknowledgment that he did not have a clear picture regarding the amount of toxic material that had actually been sprayed by the defendant in the Quonset on the day in question. Further, the fact that he has limited educational credentials in the toxicology field and would be intending to offer testimony regarding the effects of the alleged toxins on the plaintiffs body, the Court feels that area is more appropriately addressed by [Langness’ treating physician and] medical expert, ... Dr. [Blair] Anderson.

[¶ 14] Langness alleged Fencil negligently sprayed the epoxy primer in the interior of the building while Langness was working inside the building and Fen-cil’s negligence exposed him to serious injury. One issue regarding Fencil’s alleged negligence was the amount of epoxy primer dispensed into the quonset by Fencil during the two spraying incidents and the concentration of toxic materials. Dr. Buck’s educational- background included degrees in chemistry and biochemistry and a Ph.D. in environmental physiology. His employment history included work with hazardous material disposal sites and transport systems and safety protocols for clean-up and closure of hazardous material sites. Dr. Buck had been a manager of environmental affairs for Gulf Interstate Engineering, where he supervised environmental and regulatory matters. Dr. Buck also worked at NASA and wrote scientific articles dealing with toxins in spacecraft cabins. Dr. Buck had taken graduate credit courses in toxicology and graduate seminar courses in gas dynamics and atmospherics. He taught environmental medicine, pulmonics, anatomy, and physiology courses to graduate and medical students. Dr. Buck had been a project manager for several studies, including “[dispersion of [mjethane in supersaturated fog (white-out) conditions”, “[dispersion/dissipation of ketone fumes in a factory; seasonal variation”, “[c]limatologieal model of solvent dispersion from a factory”, “[v]entilator plumes containing solvents, particulates and heavy metal fumes”, “[dispersion of Diazo printer fumes in a poorly ventilated building’, and “[h]uman pulmonics in orbital spacecraft.” Dr. Buck also had completed more than thirty audits for “toxic/hazardous materials.” Although Dr. Buck did not have a degree in toxicology, he had experience and training in chemistry, biochemistry, and physical chemistry with specialized knowledge which could have assisted the trier of fact to understand the amount and concentrations of toxic materials released by Fencil during the spraying incidents. To the extent the trial court concluded that Dr. Buck had limited educational credentials in the toxicology field and he did not have a toxicology degree, we conclude the trial court misapplied the law for the qualifications of an expert under N.D.R.Ev. 702. See Kluck, 1997 ND 41, ¶ 10, 561 N.W.2d 263; Aune, 478 N.W.2d at 568-64; Oberlander, 460 N.W.2d at 402.

[¶ 15] The trial court’s conclusion that Dr. Buck’s testimony would be speculative and theoretical because he did not know the amount of epoxy primer Fencil sprayed into the budding ignores the factual dispute about how much epoxy primer Fencil sprayed into the building and the use of hypothetical questions about that issue. Hypothetical questions asking for an expert opinion must be based upon “facts previously stated by the witness or upon facts testified to by others or upon facts agreed to or assumed to be true hypothetically.” Jore v. Saturday Night Club Inc., 227 N.W.2d 889, 896 (N.D.1975); see generally Modem Status of Rules Regarding Use of Hypothetical Questions in Eliciting Opinion of Expert Witness, 56 A.L.R.3d 300, ¶ 6 (2003); see also Fluckey v. Chicago & Northwestern Trans. Co., 838 F.2d 302, 303 (1988) (“A hypothetical question ‘should -include only such facts as are supported by the evidence’ ”). In addition, an expert opinion can be based on hearsay or facts not in evidence as long as those facts are of a type reasonably relied on by experts in the particular field in forming opinions. See Rule 703, N.D.R.Ev. Under Rule 705 of the North Dakota Rules of Evidence an expert can even state his opinion without first disclosing the underlying facts or data, unless the court requires otherwise. See Feuerherm v. Ertelt, 286 N.W.2d 509, 512 (N.D.1979). Although Fencil claims he sprayed for about five minutes on each of the two occasions and only sprayed about two and one half gallons of primer each time he sprayed, there was evidence that Fencil sprayed for a “good half hour” before Langness asked him to stop and Fencil had switched to a second fifty-five gallon barrel of epoxy primer during the process. There was also evidence Fencil’s sprayer was capable of spraying at least three gallons per minute. The disputed factual issues about the actual amount of epoxy primer sprayed in the building were issues for an appropriate hypothetical question. To the extent the trial court concluded that Dr. Buck’s proffered testimony was speculative or theoretical, we conclude the trial court misapplied the law regarding the use of expert testimony and hypothetical questions.

[¶ 16] Dr. Buck was prepared to testify about the concentrations of toxic materials released by Fencil under hypothetical questions within the range of evidence presented at trial. Although Dr. Buck did not have a toxicology degree and may not have been qualified to offer a medical opinion about the effect of the epoxy primer on Langness, his proffered testimony could have assisted the jury in understanding the dispersion of toxic materials in the building and in deciding whether Fencil was negligent. Under these circumstances, the trial court misapplied the law in excluding Dr. Buck’s proffered testimony and we therefore conclude the court abused its discretion in excluding his testimony.

[¶ 17] Under NJD.R.Ev. 103(a), error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected. Here, Langness offered testimony from his pul-monologist, Dr. Blair Anderson, who diagnosed Langness with RADS from the September 11 exposure. Although the trial court permitted Langness to call Fencil’s retained toxicologist, Aaron Rash, Rash did not testify that Langness was exposed to toxic chemicals during the spraying episodes. Dr. Buck’s proffered testimony that Langness was exposed to toxic chemicals during the spraying episodes was critical to Langness’ claim that Fencil was negligent in his application of the epoxy primer. Under these circumstances, we conclude Langness’ substantial rights were affected by the exclusion of Dr. Buck’s proffered testimony. We therefore reverse the judgment and remand for further proceedings consistent with this opinion. Because we reverse and remand for further proceedings, we briefly address other issues raised by Langness which are likely to arise again on remand. See Principal Residential Mortgage, Inc. v. Nash, 2000 ND 21, ¶ 18, 606 N.W.2d 120.

Ill

[¶ 18] Langness argues the trial court erred in admitting evidence about his settlements with the other defendants and in instructing the jury on this issue.

[¶ 19] Langness initially sued Polydyne for strict liability in tort and negligence, and Fencil, RDO, and an RDO employee for negligence. Before trial, Langness settled with all the defendants except Fen-cil. In opening instructions to the jury, the trial court said:

The Defendant has denied that it was negligent and contends that any injuries that have come about for the Plaintiff are as a result of his own negligence, or the negligence of other entities. Defendant also contends damages could have been lessened or avoided by things the plaintiff could have done.
In the early stages of this litigation there were other defendants who the Plaintiff contended may be hable for damages, including the owner of the budding being constructed and the manufacturer of the particular product being sprayed on the building. Claims against others have since been resolved, and your deliberations will only need to focus on whether or not the remaining Defendant has any liability in the case.
The law requires that fault be apportioned among those parties or other persons you might find to be at fault in causing the Plaintiffs damages.
When you are asked to return a verdict in this case, you will be asked to make special findings of fact determining: 1. Who was at fault, if anyone; 2. Whether such fault was a proximate cause of damages; 3. The respective percentages of fault allocated to the Defendant, the Plaintiff, or others who you might determine were at fault and contributed to proximately cause any damages suffered by the Plaintiff.
You should not concern yourselves with the reasons there may have been settlements with other defendants who were once a part of the lawsuit, and should not draw any conclusions from the fact of settlements, or the fact that Fencil Urethane Systems, Inc., is the only remaining Defendant in the lawsuit.

[¶ 20] At trial, the court sustained Langness’ objection to Fencil’s attempted introduction into evidence of the summons and complaint, but allowed Langness to review the complaint and permitted Fencil to question him about allegations regarding the liability of other parties. Although the court allowed Fencil to briefly ask Langness about claims of liability against other entities, the court eventually precluded Fencil from “going through different paragraphs” in the complaint.

[¶ 21] In Thomas v. Stickland, 500 N.W.2d 598, 600-01 (N.D.1993), this Court held a trial court erred in admitting into evidence the fact of a settlement between the plaintiff and a third-person tort-feasor. We concluded, however, in view of other evidence about the circumstances of an accident, there was no possibility of prejudice to the plaintiff and the error was harmless. Id. at 601. In Stickland, at 600, we said exclusion of settlement evidence is the norm and admission of settlement evidence is the exception. Rule 408, N.D.R.Ev., provides for the exclusion of evidence of settlement to prove liability, nonliability, or the amount of a claim, but does allow settlement evidence for other purposes, such as proving bias or prejudice of a witness. See Stickland, at 600. Whether to allow evidence for another purpose is within the discretion of the trial court, and a trial court may allow the introduction of evidence there was a settlement to explain the absence of a former party to a lawsuit. Id. at 600-01.

[¶ 22] Here, the court instructed the jury about the absence of the other parties because of settlements and told the jury not to draw any conclusions from those settlements. Langness has cited no evidence to indicate the jury was in any other way informed that he had settled with RDO, Polydyne, or the RDO employee. A party has the right to present evidence to a jury about the fault of other parties and nonparties, and a trial court must instruct the jury to allocate fault between the parties and nonparties. See Barnes v. Mitzel Builders, Inc., 526 N.W.2d 244, 247 (N.D.1995) (quoting N.D.C.C. § 32-03.2-02). Langness has cited no evidence to demonstrate Fencil presented evidence of a settlement between Langness and the other defendants to the jury. Rather, Fencil presented evidence that there had been other named defendants in this action who Langness blamed for his injuries. Although trial courts must be cautious with evidence and instructions about settlements with other entities, we have examined the evidence and instructions cited by Langness and we conclude the trial court did not abuse its discretion on this issue.

IV

[¶ 23] Langness argues the trial court erred in allowing Fencil to impeach him on a collateral matter. On cross-examination of Langness, the following colloquy occurred:

Q. [MR. BAKKE:] I have some questions for you also. First of all, is this your first lawsuit that you have been involved in?
MR. HAGEN: I object. I don’t know what relevance it has.
MR. BAKKE: Goes to bias and credibility.
THE COURT: Okay. Overruled.
THE WITNESS: In what type of lawsuit?
Q. (MR. BAKKE CONTINUING) In any type of lawsuit?
THE COURT: Well, let’s be more specific, Counsel.
Q. (MR. BAKKE CONTINUING) Any civil lawsuit?
A. Yes, I had one in, maybe, '68, '70, '69.
Q. Okay. Is that the one involving The Bowler?
A. Yes.
Q. In Fargo?
A. Yes.
Q. And you sued someone?
A. Yes.
Q. You sued The Bowler?
A. Yes, I did.
Q. As a result of an altercation that occurred?
A. That is correct.
Q. Okay. And is that the only civil lawsuit you have been involved in?
A. Yes, it is.
Q. And that’s what you testified to in your deposition, is that correct?
A. Yes.
Q. And you stick with that answer?
A. Yes, I do.
Q. And you understand when you gave that deposition testimony you were under oath to tell the truth?
A. Yes.
Q. You’ve lived in Cass County for quite sometime, is that correct?
A. Since 1957.
Q. Do you remember a lawsuit you were involved in, a civil lawsuit, by The Foreign Publishing Company versus Duane Langness?
A. No, I don’t.
MR. HAGEN: Your Honor, I object. We’re on some pretty remote collateral matters. He’s trying to pick something out 20, 30 years ago and then trying to make a liar out of him. Clearly, it’s improper.
MR. BAKKE: Your Honor, this is impeachment.
THE COURT: I guess he said he didn’t recall. I’m going to let you proceed a little bit further. We’re talking about something that’s how old here?
MR. BAKKE: 1990, Your Honor.
THE COURT: Okay. For now, the objection is overruled. Proceed.

Thereafter, Fencil’s counsel asked Langness about his involvement in several other lawsuits.

[¶ 24] Langness argues his involvement in unrelated litigation was irrelevant and could not be brought up on cross-examination under N.D.R.Ev. 608(b). Fencil responds Langness did not object on the grounds of improper character evidence or past conduct under N.D.R.Ev. 608(b) and is precluded from raising that argument on appeal.

[¶ 25] Evidence sought to be introduced through cross-examination must be relevant to be admissible. Williams County Soc. Servs. Bd. v. Falcon, 367 N.W.2d 170, 178 (N.D.1985). The scope of cross-examination for impeachment purposes is within the trial court’s discretion. Id. In State v. Tucker, 58 N.D. 82, 224 N.W. 878, 887 (1929), this Court recognized a witness may not be questioned about wholly irrelevant matters merely for the purpose of contradicting those matters with other extrinsic evidence, and if irrelevant questions are asked and answered, the answer cannot be contradicted by the cross-examiner:

Witnesses may often be questioned, on cross-examination, as to matters collateral to the issue for the purpose of testing their credibility. But it is a well-settled rule that witnesses cannot be interrogated as to matters wholly irrelevant, merely for the purpose of contradicting them by other evidence. Hence, if irrelevant questions are asked and answered, the answer cannot be contradicted by the cross-examiner. If a party inquires of a witness as to immaterial matters, he must take the answer, and cannot raise an issue thereon by introducing evidence to contradict it.

See also N.D.R.Ev. 403, 608(b). Because we remand for further proceedings, we need not decide whether Langness has properly preserved this issue for review, or whether the court abused its discretion in allowing this line of questioning. On remand, however, Fencil must establish that questions about prior lawsuits are relevant and tied to matters at issue in this lawsuit.

V

[¶ 26] Langness argues the trial court erred in excluding from evidence a technical data sheet for epoxy primer. At trial, Langness offered into evidence two technical data sheets about epoxy primer. One technical data sheet was prepared in 1997, and the court admitted that exhibit into evidence. The other technical data sheet was effective in June 1987, and the court excluded that exhibit as irrelevant and confusing, or potentially confusing to the jury. A trial court has broad discretion in deciding whether proffered evidence is relevant, and the court’s decision to admit or to exclude evidence on the ground of relevance will not be reversed absent an abuse of discretion. Wolf v. Estate of Seright, 1997 ND 240, ¶ 14, 573 N.W.2d 161. We conclude the trial court did not abuse its discretion in excluding the older technical data sheet.

VI

[¶ 27] Langness contends the trial court abused its discretion in excluding the testimony of therapist Geralyn Heitkamp, who had conducted a functional capacity evaluation which Langness claims established his breathing ability was below normal. Langness also argues the trial court erred in refusing to grant a continuance.

[¶ 28] Heitkamp performed the functional capacities evaluation on June .13, 2002. The trial court granted Fencil’s motion to exclude the testimony of Heitkamp, including the functional capacities evaluation conducted by her:

At the time of hearing on July 16, 2002, the Court announced its conclusion that the disclosure and proposed testimony of Geralyn M. Heitkamp, within a month of the trial date should not be permitted. Ms. Heitkamp is an occupation therapist who performed a functional capacities evaluation on the plaintiff on June 13, 2002. Given the fact that the defendant would be unable to counter this evidence, which has been disclosed at this late date, warrants the GRANT of the motion in limine to exclude Ms. Heitkamp’s testimony or evaluation report.

[¶ 29] This record includes a scheduling order with a July 15, 2001 deadline for Langness to disclose all experts, and Langness’ October 24, 2001 witness list, which did not disclose Heitkamp. In a supplemental answer to interrogatories on June 28, 2002, Langness identified Heitkamp as an expert. The trial began on July 22, 2002. Although the trial court could have granted a continuance for Fen-cil to counter this evidence, see Reimche v. Reimche, 1997 ND 138, ¶ 9, 566 N.W.2d 790, we need not decide if the court abused its discretion in excluding Heitkamp’s testimony and evaluation because an issue regarding the timing of the disclosure is not likely to arise on remand. See DeCoteau v. Nodak Mut. Ins. Co., 2000 ND 3, ¶ 26 n. 2, 603 N.W.2d 906.

VII

[¶ 30] Langness argues the trial court erred in refusing to give requested jury instructions on reckless endangerment, see N.D.C.C. § 12.1-17-03; menacing, see N.D.C.C. § 12.1-17-05; disorderly conduct, see N.D.C.C. § 12.1 — 31—01(g) and (h); and methyl ethyl ketone, see N.D.C.C. § 12.1-31-06(18) and N.D.C.C. § 19-03.1-22.1.

[¶ 31] Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. Rittenour v. Gibson, 2003 ND 14, ¶ 15, 656 N.W.2d 691. We review jury instructions as a whole to determine their correctness. Id. Instructions will be allowed if, as a whole, they advise a jury of the law on essential issues in the case. Id. The trial court is not required to instruct the jury in the exact language sought by a party if the court’s instructions adequately and correctly inform the jury of the applicable law. Western Nat’l Mut. Ins. Co. v. University of North Dakota, 2002 ND 63, ¶ 42, 643 N.W.2d 4.

[¶ 32] Here, the instructions requested by Langness pertained to criminal liability. The trial court instructed the jury on negligence. The court also instructed the jury on a strict liability in tort and duty to warn because there was evidence presented by a representative from Polydyne about its warnings for the epoxy primer. The trial court’s instructions correctly and adequately advised the jury on the law of negligence, and we conclude the court did not err in refusing to give Langness’ requested instructions.

VIII

[¶ 33] Langness claims the trial court erred in taxing costs. Because we reverse and remand for a new trial, this issue may not arise on remand and it is not necessary to address it. See DeCoteau, 2000 ND 3, ¶ 26 n. 2, 603 N.W.2d 906.

IX

[¶ 34] Langness argues the trial court erred in refusing to amend his complaint to include a claim for punitive damages and in refusing to submit punitive damages to the jury.

[¶ 35] A trial court’s denial of a motion to amend pleadings will not be reversed on appeal absent an abuse of discretion. Hartman v. Estate of Miller, 2003 ND 24, ¶ 9, 656 N.W.2d 676. The trial court did not abuse its discretion in denying Langness’ motion to amend his pleadings, and he has presented only a brief conclusory argument for submitting the issue of punitive damages to the jury. We decline to further consider these issues.

X

[¶ 36] Because Fencil included materials in its supplemental appendix which were not in the record on appeal, we award double costs on appeal. See N.D.R.App.P. 10, 13, 30; Estate of Wieland, 1998 ND 130, ¶ 22 n. 3, 581 N.W.2d 140.

XI

[¶ 37] We reverse the judgment and remand for proceedings consistent with this opinion.

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

      . The parties have not argued we should adopt the standards for admitting expert testimony articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and we need not consider that issue.