author: HANSON, Justice.

text:
    Bob Makor GEORGE, as Trustee for the Heirs of Gonkartee Dekpah II, deceased, Appellant, v. ESTATE OF Dennis Allen BAKER, et al., defendants and third party plaintiffs, Respondents, v. CRST, Incorporated, et al., third party defendants, Respondents.
    No. A05-108.
    Supreme Court of Minnesota.
    Nov. 22, 2006.

      Patrick D. Reilly, Erstad & Riemer, P.A., Minneapolis, MN, Jeannie Provo-Petersen, Johnson, Provo-Petersen, LLP, Saint Paul, MN, for Respondents.
    Phillip K. Jacobson, Kelly & Jacobson, Minneapolis, MN, for Appellant.
   OPINION

HANSON, Justice.

Gonkartee Dekpah was killed when the taxicab in which he was a passenger swerved across a median in a winter storm and was crushed by an oncoming tractor-trailer truck. Dekpah’s brother, appellant Bob Makor George, brought a wrongful death action against the drivers of the cab and truck. The jury found that both drivers were negligent but that neither one’s negligence caused the accident. The court of appeals affirmed the district court’s denial of judgment notwithstanding the verdict (JNOV). George argues that the jury’s finding of negligence but not causation was perverse, that trial errors in evi-dentiary rulings and jury instructions require a new trial on liability, and that the district court erred by instructing the jury on the life expectancy of a Liberian male. We affirm in part, reverse in part, and remand.

On the morning of March 14, 2002, Dek-pah called a taxicab to take him from his home in Brooklyn Park to a medical appointment in Plymouth. Respondent Dennis Baker, driving for the Pioneer Taxi fleet, was dispatched and picked up Dek-pah. At approximately 10:49 a.m., Baker’s cab was southbound near Rockford Road on Interstate 494 when it fishtailed, crossed the 30-foot median, and entered northbound traffic roughly 10 feet in front of a semi driven by Respondent Brian Keith Losey. Losey applied his brakes but could not avoid broadsiding the taxi, killing Baker and Dekpah. George brought this wrongful death action against Baker’s estate, Baker’s employer AJD Transportation and the taxi’s owner Gabriel Russell Limongelli (collectively “Baker”), and against Losey and Losey’s employer, CRST, Inc. (collectively “Losey”).

George’s theory at trial was that Baker was negligent in failing to control his taxi and Losey was negligent in failing to stop. Baker and Losey each argued that they were not negligent and that the accident was due to inclement weather. All parties called accident reconstruction experts who offered conflicting testimony about the drivers’ respective speeds and behaviors.

The only known eyewitnesses to the accident were Losey and J.V., who was driving a box truck immediately behind Lo-sey’s semi. Losey first saw the taxi as it fishtailed in its left-hand lane prior to crossing the median but did not see what caused it to fishtail. J.V. did not see the taxi until it was leaving the median and entering oncoming traffic. Suggestions were made at trial that the taxi may have been traveling too fast or been cut off, rear-ended, or sideswiped by another car. Because weather at the scene precluded a full-fledged accident reconstruction and because the taxi was completely destroyed, none of these theories could be substantiated.

In support of the weather theory, Baker called a state statistician to testify, over George’s objection, that 481 other traffic accidents occurred on the same day in the metro area. J.V. and a Minnesota Highway Patrol trooper also testified about the inclement weather and a number of other accidents that occurred on that day. Four witnesses testified that Baker was generally a careful person and was unlikely to drive unsafely. George objected to some, but not all, of this testimony.

The parties disputed the applicable standards of care. George requested an instruction that Baker, as a common carrier, was subject to the “utmost caution” standard. George also requested an instruction that Losey, as a commercial motor vehicle driver, was subject to an “extreme caution” standard when driving conditions were hazardous. In his closing argument, George’s counsel told the jury that “[t]he reasonable care standard does not apply here to either the taxi or the semi; both have special standards.” In response to Baker and Lose/s objection to that statement, the district court began the next day of trial with this incorrect curative instruction: “Mr. Jacobson, during his final argument yesterday, stated that the reasonable person standard did not apply to either Defendant. This is erroneous. The reasonable person standard applies to both Defendantfe].” The court then read the full jury instructions, including an instruction that Baker was subject to the utmost caution standard for the taxi, that Losey could be subject to the extreme caution standard for the semi if the jury found hazardous conditions, but that Losey would be subject to the reasonable care standard if the jury did not find hazardous conditions. The court also instructed the jury that a “direct cause” is one which “has a substantial part in bringing about the accident.”

The parties also disputed the jury instructions regarding Dekpah’s life expec-fancy. Dekpah, who was 52 years old at the time of his death, was born in Liberia and immigrated to the United States in 1996. Baker requested that the court instruct the jury that the life expectancy of a Liberian male is 47.03 years, a figure taken from the CIA World Factbook. George objected that this information was irrelevant. The district court instructed the jury that future life expectancy of a 52-year-old African-American male is 73.4 years and that the life expectancy of a Liberian male is 47.03 years. The court further instructed that these figures were not conclusive, and that the jury should consider them along with Dekpah’s health, physical condition, and other relevant factors.

The jury returned a special verdict, finding that both Baker and Losey had operated their respective vehicles negligently, but that neither one’s negligence was a direct cause of the accident. The jury also found that Dekpah’s heirs were damaged in the amount of $68,000. The district court adopted the jury’s findings and dismissed the case. George then moved for JNOV or a new trial. In support of JNOV, George argued that the jury verdict was perverse. In support of a new trial, George argued that several evidentia-ry and jury instructions constituted reversible error. The district court denied both motions.

George appealed the denial of his motions. As to the motion for JNOV, the court of appeals held that the jury’s verdict was not perverse and not contrary to the evidence.

As to the motion for a new trial, the court of appeals held that the district court had erred in several respects. First, the district court’s curative instruction was mistaken because Baker was a common carrier subject to the utmost caution standard. George v. Estate of Baker, No. A05-108, 2005 WL 3289451, at *4 (Minn.App. Dec.6, 2005). Next, by allowing four witnesses to testify that Baker was a careful driver, the district court had allowed character evidence offered to prove conduct on a particular occasion, in violation of Minn. R. Evid. 404(a). George, 2005 WL 3289451, at *6. Finally, by allowing the statistician to testify to the number of other accidents that occurred that day, the district court abused its discretion because no foundation was laid to establish that those accidents were substantially similar to the one that killed Dekpah. Id. at *7. But the court of appeals held that none of these errors was prejudicial because the jury found both drivers negligent and because there was adequate independent evidence in the record to support the jury’s verdict of no causation. Id. at *4, *6, *7.

George also argued on appeal that the district court erred in providing the Liberian life expectancy figure to the jury. Id. at *5. The court of appeals held that the figure was relevant and that the jury was properly instructed on its use. Id.

We granted George’s petition for further review.

I.

George first asks us to reverse the denial of his motion for JNOV and determine liability as a matter of law against Baker. George argues that no reasonable jury could have found Baker negligent without also finding that his negligence was a direct cause of the accident, and thus that the jury’s verdict was perverse.

The standard that applies to a motion for JNOV is that the evidence must be “so overwhelming on one side that reasonable minds cannot differ as to the proper outcome.” Clifford v. Geritom Med, Inc., 681 N.W.2d 680, 687 (Minn.2004). We will not disturb a jury’s answer to special verdict questions if it can be reconciled on any theory, and will set aside a special verdict answer only if it is “perverse and palpably contrary to the evidence.” Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn.1984). Specifically, where a jury has found negligence without causation, we have been generally disinclined to second-guess the verdict.

Here, the jury could reasonably have found Baker negligent without causation for a variety of reasons. We will mention just one: the jury may have decided that Baker was negligent in passing another car given the road conditions, but that he would have lost control, whether he passed or not, because of the effect of the weather. We cannot know exactly how the jury arrived at its verdict, but we must accept it because it was potentially reasonable.

George suggests that the effect of the weather was already factored into the jury’s negligence finding and therefore should not have been considered in determining causation. George’s argument would have merit if we could conclude that the sole basis for the jury’s finding that Baker was negligent was the traffic violation that Baker committed when his vehicle crossed the center line and faced oncoming traffic. Crossing the center line is a traffic violation. Minn.Stat. § 169.18, subd. 9 (2004). Violation of a traffic regulation is prima facie evidence of negligence. Minn.Stat. § 169.96(b) (2004). Proof of a traffic violation shifts the burden to the violator to show excuse or justification for the violation or to rebut the prima facie case. Holten v. Parker, 302 Minn. 167, 177, 224 N.W.2d 139, 145 (1974). Thus, if the sole basis for finding Baker negligent had been his crossing the center line, the effect of the inclement weather would be relevant to Baker’s excuse or justification. In such a case, it would not be reasonable to also conclude that weather was an intervening cause of the accident. But, the premise for this analysis disappears when George acknowledges, as he must, that there is no way to conclude that the traffic violation was the sole basis for the verdict. George’s own arguments suggest an alternative basis for Baker’s negligence — driving too fast for conditions or passing another car in icy conditions. Accordingly, we affirm the court of appeals’ determination that the district court did not err in denying George’s motion for JNOV.

II.

George argues, in the alternative, that the trial errors mandate a new trial on the liability of Baker and Losey. Although he made this argument in his brief and at oral argument, George failed to specifically include it in the statement of the issues section of his petition for further review. He did, however, mention trial errors and his request for a new trial in the body of the petition. The first issue, then, is whether George has properly preserved for review the issues arising from his motion for a new trial.

A petition for review to this court must specify the legal issues to be reviewed. Minn. R. Civ.App. P. 117, subd. 3(a). The court will generally not address issues that were not specifically raised in the petition for review. In re GlaxoSmithKline PLC, 699 N.W.2d 749, 757 (Minn.2005); see also Northwest Racquet Swim & Health Clubs, Inc. v. Deloitte & Touche, 535 N.W.2d 612, 613 n. 1 (Minn.1995). We do, however, grant petitioners some latitude in their presentation of issues. Hapka v. Paquin Farms, 458 N.W.2d 683, 686 (Minn.1990).

We have never made clear precisely what is required to raise a particular legal issue in a petition for review. A petition for review has four parts: a statement of the legal issues sought to be reviewed, a statement of the criteria relied upon to support the petition, a statement of the case, and a brief argument in support of the petition. Minn. R. Civ.App. P. 117. A strict reading of a petition would require us to consider only those issues specified in the statement of issues. A liberal reading would allow us to consider any issues, whether mentioned in the petition or not. We decline to adopt either of these extremes and conclude that this question must be considered on a case-by-case basis and includes consideration of several factors, such as the relationship of the questioned issue to those specifically highlighted in the statement of issues, the procedural history concerning that issue, and any potential prejudice to the respondent by not specifically including it in the statement of issues.

On this record we conclude that George has adequately preserved for review the trial errors raised in his new trial motion. George made alternative motions for JNOV or a new trial before the district court and brought the denial of both motions for review by the court of appeals. From the beginning the two motions have been interrelated because they are, in a sense, two sides of the same coin. If the jury’s finding on causation is perverse, because a reasonable person could not conclude that there was negligence but not causation, then judgment on liability should be entered as a matter of law. But, if the finding of no causation is potentially reasonable, then the court should review whether errors at trial could have influenced the causation finding sufficiently to require a new trial. In the argument section of his petition for further review, George emphasized this relationship by stating:

In a bit of legal jujitsu, the Court of Appeals’ opinion places Baker in an oncoming lane of traffic due to his own negligence, in order to justify denying Petitioner a new trial based on the significant errors that occurred at trial, and then, in the same opinion, places Baker in an oncoming lane of traffic due to bad weather in order to justify the jury finding of no causation. This is an absurdity that needs to be corrected. Petitioner should either have been granted a new trial on liability because of the errors occurring at trial or a finding that Baker was causally negligent as a matter of law.

George also specifically stated that the district court “erred in instructing the jury that the standard of care applicable to the taxi was the ‘reasonable man’ standard of care rather than the ‘utmost caution’ standard applicable to common carriers.” As to the procedural history, George consistently presented these alternative issues to the district court and the court of appeals. In fact, the court of appeals’ opinion reflects full consideration of both alternative motions. More important, we are satisfied that counsel for Baker and Losey were on notice of George’s arguments for a new trial because they fully addressed them in their briefs and in their arguments before us. Although George’s petition for review was not artfully drafted, we are persuaded by the consistency of George’s presentation of these alternative motions through the course of this litigation, and by Baker and Losey’s ability to respond to those arguments at all levels, that the denial of the motion for new trial is adequately preserved for our review.

III.

The court of appeals held that the trial court erred in three ways: by allowing four witnesses to testify that Baker was generally a careful driver, by allowing a state statistician to testify to the number of other accidents in the metro area on that day, and by giving the curative instruction that the reasonable person standard of care applied to Baker. The court further held that all three errors were harmless. George argues that all three errors were prejudicial and'warrant a new trial on liability. We will address all three errors, first as they relate to Baker, and then to Losey.

Evidentiary Rulings.

We consider the evidentiary errors first. An improper evidentiary ruling resulting in the erroneous admission of evidence will only compel a new trial if it results in prejudicial error to the complaining party. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn.1997). An evidentiary error is prejudicial if it might reasonably have influenced the jury and changed the result of the trial. See Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn.1983) (applying standard to exclusion of evidence) superceded by rule on other grounds, Minn. R. Prof. Conduct 1.10(b), as recognized in Lennartson v. Anoka Hennepin Indep. Sch. Dist. 11, 662 N.W.2d 125, 134-35 (Minn.2003). But the admission of evidence that is cumulative or is corroborated by other competent evidence will be deemed harmless and will not warrant a new trial. See Estate of Lea v. Sheehan, 301 Minn. 253, 259, 222 N.W.2d 92, 97 (1974); Minn. R. Civ. P. 61.

The court of appeals held that testimony about Baker’s careful nature was evidence of character offered to prove conduct in conformity therewith, and therefore a violation of Minn. R. Evid. 404(a), but that the error was harmless because the jury found Baker negligent despite the testimony. George, 2005 WL 3289451, at *6. George argues that the error may have prejudiced the jury’s causation analysis.

The record shows that George objected to some, but not all, testimony about Baker’s careful nature, and elicited some of the testimony himself on cross-examination. Several witnesses also testified about Baker’s driving history and service as a driver in the military, and George did not object to this testimony. The cumulative weight of all this testimony would have allowed the jury to conclude that Baker was generally a careful person. Furthermore, whatever- the jury’s impression of Baker’s usual level of prudence, they found him negligent on this occasion. Accordingly, we.conclude that this character testimony could not have affected the jury’s causation analysis. We hold that the admission of this testimony was harmless error.

The court of appeals held that the district court erred in admitting the testimony of the statistician because, where evidence of similar accidents is introduced to show a common, inanimate cause, a foundation must be laid showing that the circumstances surrounding the other accidents were substantially the same as those involved in the accident in litigation. George, 2005 WL 3289451, at *7; see Haukom v. Chicago Great W. Ry. Co., 269 Minn. 542, 555, 132 N.W.2d 271, 279 (1964). The court of appeals held, however, that the error was harmless because the jury found both drivers negligent and because the record contained other evidence concerning the weather, road conditions, and other accidents. George, 2005 WL 3289451, at *7. Because the record contained ample testimony to which George did not object from which the jury could have concluded that weather caused the accident, we agree with the court of appeals and hold that this error was harmless.

Curative Jury Instruction.

The court of appeals held that the district court’s curative instruction was error as applied to Baker because, as a common carrier, he was subject to the utmost caution standard. George, 2005 WL 3289451, at *4; see Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 226, 214 N.W.2d 672, 674-75 (1974); McKellar v. Yellow Cab Co., 148 Minn. 247, 249, 181 N.W. 348, 349 (1921). The court further held that the error was harmless because the jury found Baker negligent despite the instruction.

Although district courts have broad discretion to fashion curative jury instructions, a court errs if it gives a jury instruction that materially misstates the law. See State v. Kuhnau, 622 N.W.2d 552, 555-56 (Minn.2001). Such an error does not necessitate a new trial unless the error was prejudicial. Rowe v. Munye, 702 N.W.2d 729, 743 (Minn.2005). A jury instruction is prejudicial if a more accurate instruction would have changed the outcome in the case. Lewis v. Equitable Life Assurance Soc’y of the U.S., 389 N.W.2d 876, 885 (Minn.1986). If the effect of the erroneous instruction cannot be determined, we will give the complainant the benefit of the doubt by granting a new trial. Rowe, 702 N.W.2d at 743; Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d 154, 159 (Minn.2002) (“A new trial is also required if the instruction was erroneous and its effect cannot be determined.”).

We agree with the court of appeals that Baker was subject to the utmost care standard and that the curative instruction was error. To determine whether that error was prejudicial, we must first decide whether the correct instruction, given later, ameliorated the error and, if not, whether the erroneous standard of care instruction could have influenced the jury’s causation analysis.

We conclude that the later instruction did not ameliorate the curative instruction. After George’s counsel correctly stated in his closing argument that the reasonable person standard did not apply to Baker, the district court began the next day of trial by announcing that George’s counsel made an erroneous statement of law and that the reasonable care standard applied to both defendants. The circumstances under which the court delivered the curative instruction made it more memorable and important to the jury than the correct statement of the utmost caution standard that was given in the midst of the court’s comprehensive instructions. The conflicting instructions may, at the least, have created confusion about which instruction to follow.

We must next consider whether this confusion could have affected the jury’s causation analysis. While the standard of care is more directly relevant to negligence, we believe that applying the wrong standard of care may influence the jury’s causation analysis because the standard of care defines the specific negligent act, which then becomes the central focus of a causation analysis.

We have recognized the close relationship between negligence and causation. In Clifford v. Geritom Med, Inc., we noted that “negligence and causation in this case are so closely related that we cannot say the jury’s confusion as to causation did not taint its understanding of negligence.” 681 N.W.2d at 688-89. See also Koenigs v. Werner, 263 Minn. 80, 85, 116 N.W.2d 73, 76 (1962) (“Here we have an intersection accident where the issue of liability may involve the closely related elements of proximate cause and negligence of the parties.”).

Minnesota applies the substantial factor test for causation. The negligent act is a direct, or proximate, cause of harm if the act was a substantial factor in the harm’s occurrence. 4 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Civil, CIVJIG 27.10 (4th ed.1999); Restatement (Second) of Torts § 431 (1965). Factual, or but-for, causation is insufficient to establish liability in Minnesota because “[i]n a philosophical sense, the causes of an accident go back to the birth of the parties and the discovery of America.” William L. Prosser, The Minnesota Court on Proximate Cause, 21 Minn. L.Rev. 19, 22 (1936). But-for causation, however, is still necessary for substantial factor causation because if the harm would have occurred even without the negligent act, the act could not have been a substantial factor in bringing about the harm. Restatement (Second) of Torts § 432 (1965); Draxton v. Katzmarek, 203 Minn. 161, 164-65, 280 N.W. 288, 290 (1938) (“If the accident * * * would have happened even if there had been an. absence of excessive speed, such speed was not a material element or substantial factor in bringing it about and hence not a proximate cause.”). The classic test for determining factual cause is to compare what actually happened with a hypothetical situation identical to what actually happened but without the negligent act. W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 41, at 265 (5th ed.1984). Because the negligent act is defined by the standard of care, an erroneous standard of care instruction will necessarir ly affect a jury’s causation analysis.

Applying this reasoning to the facts of this case, the jury might have believed (for example) that a reasonable person would have driven no more than 30 miles per hour under the conditions, but that a person exercising the utmost caution would have driven no more than 20 mph, or even would have pulled off the road. If the jury concluded that Baker was traveling 40 mph, it would have found that Baker’s negligent act was driving 10 mph faster than a reasonable person, whereas the jury could have found that Baker was driving 20 mph faster than a person exercising utmost caution, or that a person exercising utmost caution would not have been driving at all. Under the reasonable care standard a jury would compare actual events to events if Baker had driven 10 mph slower, and could possibly conclude that the accident would have occurred anyway and that but-for causation, and thus direct causation, was lacking. But the same jury, under the utmost caution standard, would compare actual events to events if Baker had driven 20 mph slower or had stopped driving entirely, and could possibly conclude that this difference would have been enough to avoid the accident, allowing the jury to find causation because the negligent act of driving 20 mph faster than a person exercising utmost care, or perhaps of failing to pull off the road, was a substantial factor in the harm.

Because it is analytically and practically possible that the erroneous standard of care instruction affected the jury’s causation analysis, we hold that the curative instruction was reversible error- and remand the case for a new trial on Baker’s liability. Because we grant a new trial on this error, we need not decide whether the erroneous admission of character evidence regarding Baker’s careful nature or of the state’s statistical evidence regarding other accidents was also prejudicial.

IV.

In support of his motion for a new trial against Losey, George relies on the same evidentiary and jury instruction errors. The improperly-admitted character evidence and statistical evidence do not compel a new trial against Losey for the same reasons that they do not compel a new trial for Baker. This leaves the curative instruction. George argues that the instruction may have prejudiced the jury’s causation analysis as to Losey by leading the jury to apply a reasonable care, rather than an extreme caution standard. The court of appeals held that the question of whether hazardous conditions existed to give rise to the extreme caution standard was a fact question for the jury, and therefore the district court’s instruction on both the extreme caution and reasonable care standards was proper. George, 2005 WL 3289451, at *4. We agree with the court of appeals that the existence of hazardous conditions was a fact issue for the jury and we decline to order a new trial on Losey’s liability.

V.

Because we remand for a new trial on Baker’s liability, we will also reach the issue of the use of the Liberian life expectancy figure. The court of appeals held that the figure was relevant to Dek-pah’s life expectancy and that the jury was properly instructed on its use. George argues that the figure was irrelevant to Dekpah’s life expectancy and that the information was biased in that it invited the jury to view Dekpah as an outsider. This court has yet to decide to what extent, if any, a court should take notice of life expectancy data for foreign countries.

American mortality tables are compiled from the collective experience of insurers, who are financially motivated to ensure that the tables are accurate. Due to this inherent reliability, courts have taken judicial notice of American mortality tables as statistical facts of general and common knowledge. 29 Am.Jur.2d Evidence §§ 102-03 (1994). Certain tables were so readily recognized as reliable that courts identified them by name. See, e.g., Lincoln v. Power, 151 U.S. 436, 441, 14 S.Ct. 387, 38 L.Ed. 224 (1894) (“There is high authority for the proposition that courts can take judicial notice of the Carlisle Tables, and can use them in estimating the probable length of life, whether they were

introduced in evidence or not.”); Tollefson v. Ehlers, 252 Minn. 370, 377, 90 N.W.2d 205, 210 (1958) (accepting the American Experience Tables of Mortality); Hallada v. Great N. Ry., 244 Minn. 81, 95, 69 N.W.2d 673, 684-85 (1955) (accepting the U.S. Life Experience Table of Mortality), overruled on other grounds by Busch v. Busch Const., Inc., 262 N.W.2d 377 (Minn.1977); Thoirs v. Pounsford, 210 Minn. 462, 464, 466-67, 299 N.W. 16, 17-18 (1941) (accepting the American Experience Mortality Table). Presumably, American mortality tables include the life expectancies of immigrants who die in America.

Life expectancy figures from other countries may display few or none of these indicia of reliability. Countries that have no insurance industry, census, or other reliable data may not be able to provide accurate mortality information. Although the presence of the Liberian mortality information in the CIA World Factbook might allow a court to conclude that it is authentic, i.e., it is the official Liberian information, it does not provide any information about how the information was compiled or why it should be regarded as reliable.

American mortality tables have the additional benefit of providing remaining life expectancy based on the age of the individual in question. “A mortality table consists of a schedule showing for each age the number of persons who die and the number who survive out of a known number under observation.” Henry Moir, Sources and Characteristics of the Principal Mortality Tables 1 (1932). A single life expectancy figure for an entire population, however, is considerably less meaningful. That figure will be skewed by the country’s infant mortality rate and understate the life expectancy of any individual who survives infancy. A single figure will be of no relevance to an individual who has already exceeded the life expectancy of a newborn. For these reasons, “tables which do not show the expectation at an age approximately that of the person in question should not be received.” 32A C.J.S. Evidence § 1007 (1996) (citing Decker v. McSorley, 111 Wis. 91, 86 N.W. 554 (1901)).

The standard jury instruction recognizes the need for tables that show the remaining life expectancy of a person- who is the age of the decedent. It provides:

According to life expectancy tables, the future life expectancy of a_-year old (male) (female) is _years. This means (he)(she) is expected to live to age-

4A Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Civil, CIVJIG 91.85 (4th ed.1999) (emphasis added).

The Liberian life expectancy figure lacks any indicia of reliability, in general and as applied to Dekpah. First, it was not a life expectancy “table” but provides only a single life expectancy figure for all males in Liberia. Applied to Dekpah, the Liberian figure loses whatever probative value it may have had. He had outlived the stated expectancy by seven years. He had survived infant mortality. He was no longer endangered by Liberia’s internal conflicts. He did not, as far as the record reveals, carry any chronic diseases from Liberia. He had access to American health care. We fail to see how the figure could aid a jury in evaluating Dekpah’s life expectancy. We hold that its use in the jury instructions was error and we remand for a new trial on damages.

George invites us to hold that “absent convincing proof of relevance, life expectancy tables for residents of foreign countries should never be used to assist a jury in determining life expectancies of U.S. residents.” Although we are not prepared to rule that the district court may never take judicial notice of life expectancy data for a foreign country, we caution that such data should be received only where a foundational basis can be laid. That basis should include indicia of the general reliability of the data and a showing that the data provides a life expectancy for individuals approximately the age of the individual in question.

Affirmed in part, reversed in part, and remanded.

      . See 4 Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Civil, CIVJIG 48.15 (4th ed.1999).

      . "Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist." 49 C.F.R. § 392.14 (2005).

      . See 4 Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Civil, CIVJIG 25.10 (4th ed.1999).

      . See 4 Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Civil, CIVJIG 27.10 (4th ed.1999)

      . See 4A Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Civil, CIVJIG 91.85 (4th ed.1999).

        . See, e.g., Fallin v. Maplewood-N. St. Paul Dist. No. 622, 362 N.W.2d 318, 323 (Minn.1985) (affirming jury’s finding that shop teacher was negligent for leaving the room contrary to school policy, but that this negligence did not cause partial amputation of student’s thumb on a table saw); Hauenstein, 347 N.W.2d at 276 (affirming jury’s finding that adhesive manufacturer was negligent for failing to warn of potential eye irritation, but that this negligence did not cause injury suffered when plaintiff squirted adhesive into his eye); Norberg v. Northwestern Hosp. Ass'n, 270 N.W.2d 271, 275 (Minn.1978) (affirming jury’s finding that hospital was negligent but that this negligence did not cause mentally ill man’s injuries when he flung himself through an open window); Kilbane v. County of Ramsey, 292 Minn. 86, 91, 193 N.W.2d 301, 304 (1971) (affirming jury's finding that hospital was negligent but that this negligence did not cause burns suffered by plaintiff on an exposed steam radiator); Jorgensen v. Hawton, 281 Minn. 370, 375-76, 161 N.W.2d 676, 680 (1968) (affirming jury's finding that a farmer who drove an unlit tractor along the side of the road at night was negligent but that this negligence did not cause the ensuing collision). But see Clifford, 681 N.W.2d at 688-89 (upholding district court’s grant of a new trial where negligence without causation verdict evidenced mistake or confusion on the part of the jury because of the apparent absence of superseding cause).

      . Although no one has argued that the negligence verdict was improper, we remand for a new trial on both negligence and causation due to the practical impossibility of separating the two for trial.

      . In his post-trial motion for JNOV or a new trial, George presented, as newly discovered evidence, two studies which he says demonstrate that black immigrants actually live longer than American-born African-Americans. Based on these studies, George argues that the jury likely underestimated Dekpah’s life expectancy by 33 years. "A motion for a new trial upon the ground of newly discovered evidence is properly denied for lack of diligence of the moving party where the same diligence which led to the discovery of the new evidence after trial would have discovered it had such diligence been exercised prior thereto.” Carl v. De Toffol, 223 Minn. 24, 33, 25 N.W.2d 479, 484 (1946). George offers no reason why he could not have produced the two studies before the jury was instructed. We will not consider these studies in our analysis and we express no opinion on whether they can be used in the new trial.

      . The Liberian life expectancy information may also have posed a danger of arousing bias and prejudice among the jury. See Minn. R. Evid. 403.


source: Caselaw Access Project

author: PAUL H. ANDERSON, Associate Justice.

license: Public Domain

text:
    Steven R. TURNER, Relator, v. EVTAC MINING, and CNA ClaimsPlus, Respondents, and Iron Range Rehab Center, and Orthopaedic Associates of Duluth, P.A., Intervenors.
    No. A06-1195.
    Supreme Court of Minnesota.
    Nov. 22, 2006.
    Diana L. Brennan, Brennan Law Office, Inver Grove Hts., MN, for Relator.
    Thomas F. Coleman, Cousineau McGuire Chartered, Minneapolis, MN, for Respondents.
   ORDER

PAUL H. ANDERSON, Associate Justice.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed May 25, 2006, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that, [s]ummary affirmances have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).


author: /s/Helen M. Meyer Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Julius A. NOLEN, a Minnesota Attorney, Registration No. 177349.
    No. A06-2005.
    Supreme Court of Minnesota.
    Nov. 22, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Julius A. Nolen committed professional misconduct warranting public discipline, namely, criminal conviction for possession of cocaine, in violation of Minn. R. Prof. Conduct 8.4(b).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and probation, for a period coextensive with respondent’s five-year criminal probation, with the following additional conditions:

(a) Respondent shall maintain total abstinence from all alcohol and controlled substances, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician;
(b) Respondent shall attend meetings of either Alcoholics Anonymous or Narcotics Anonymous at least twice a month. Respondent shall, without a specific reminder or request, submit to the Director a quarterly attendance verification on a form provided or approved by the Director; and
(c) Respondent shall comply with all conditions of his criminal sentence and probation. If requested by the Director, respondent shall additionally submit to random urinalysis for drug screening at respondent’s expense at a facility approved by the Director.

This court has independently reviewed the file and approves the jointly recommended disposition, with the additional proviso that should respondent violate either his criminal probation or the terms of this probation, the Director may, after notice to respondent and an opportunity to be heard, move the court to impose additional discipline.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Julius A. Nolen is publicly reprimanded and placed on probation for a term coextensive with his criminal probation, subject to the conditions set forth above. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice

GILDEA, J., took no part in the consideration or decision of this case.


author: RANDALL, Judge.

text:
    STATE of Minnesota, Respondent, v. Elmer Mark MELDRUM, Appellant.
    No. A05-2365.
    Court of Appeals of Minnesota.
    Nov. 28, 2006.
    Review Denied Jan. 24, 2007.

      Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, Saint Paul, MN, and Janelle Kendall, Stearns County Attorney, St. Cloud, MN, for respondent.
    John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Minneapolis, MN, for appellant.

      Elmer Mark Meldrum, St. Cloud, MN, pro se appellant.
    Considered and decided by PETERSON, Presiding Judge, RANDALL, Judge, and KALITOWSKI, Judge.
   OPINION

RANDALL, Judge.

This is an appeal from appellant’s conviction of domestic assault, Minn.Stat. § 609.2242, subds. 1(1), 4 (2004); terroristic threats, Minn.Stat. § 609.713, subd. 1 (2004); and obstructing legal process or arrest, Minn.Stat. § 609.50, subd. 1(2) (2004). Appellant argues that the district court committed plain error by failing to provide a cautionary instruction upon the state’s introduction of relationship evidence. Appellant, in a pro se supplemental brief, raises additional issues challenging his conviction, which we found to be without merit. We affirm here because the absence of a cautionary instruction did not constitute reversible error.

FACTS

Appellant Elmer Mark Meldrum was convicted in Stearns County District Court of domestic assault, Minn.Stat. § 609.2242, subds. 1(1), 4 (2004); terroristic threats, Minn.Stat. § 609.713, subd. 1 (2004); and obstructing legal process or arrest, Minn.Stat. § 609.50, subd. 1(2) (2004). Appellant’s convictions arose from an altercation with his wife, Sandra Meldrum, on March 25, 2005. Appellant and Sandra, married 16 years, resided outside the city limits of Cold Spring, Minnesota, with their 13-year-old daughter, S.M.

All three family members were home on March 25, 2005. Sandra, recovering from foot surgery, was confined to sitting in a recliner elevating her foot. Appellant was supposed to be caring for his wife but began binge drinking two days prior, on March 23, 2005. Sandra and S.M. knew appellant had been drinking because of his changed behavior patterns. Appellant “has a tendency to become more argumentative, belligerent, and sometimes aggressive ... like he’s a different person.”

S.M. was at a neighbor’s house when the altercation between her parents began but later returned home after a friend reported hearing her parents arguing. Sandra “called” appellant on his excessive drinking and appellant became aggressive towards Sandra. Appellant lay across Sandra’s legs, pinning her down in the recliner. Appellant refused to allow Sandra to move even after her persistent requests that appellant “move away [and] back off.” Appellant spoke incompletely, repeatedly asking Sandra “what if?” or “guess what?” Appellant grew angrier, expecting Sandra to answer. A few times appellant told Sandra, “[y]ou know, I could hurt you.”

As appellant continued pinning her down, Sandra grew uncomfortable and afraid. Sandra feared appellant would hurt her or himself. Sandra’s fears stemmed from appellant’s level of intoxication as well as past situations where appellant had grown out of control, shoving and choking her.

Although this altercation primarily involved verbal threats, appellant, more than once, grabbed Sandra by the chin, firmly turning her head towards his. Appellant continued lying across Sandra’s legs, keeping his face within a foot or two of hers. The altercation lasted three hours with appellant screaming at Sandra and “literally spitting and drooling like a crazy man.”

S.M. returned home and witnessed appellant holding Sandra captive in the chair. S.M. found Sandra visibly upset and screaming at appellant to get off her. Appellant told S.M. to leave or else she “would pay” but Sandra requested S.M. stay. Afraid of what appellant might do next, S.M. ran to the neighbor’s house, called the police, and told them appellant was threatening her mother.

Upon arrival at the Meldrum residence, Cold Spring police officers Eric Boucher and Delroy Hageman heard arguing and a female in distress. After no one responded to their knocking, Boucher and Hage-man entered the open front door. The officers found Sandra crying in a bathroom and appellant seated in a chair. Sandra reported what had happened — appellant threatened her, grabbed her beneath the throat, forced her to look at him, and held her down against her will. Sandra appeared “completely terrified” to the officers. The officers decided to arrest appellant for domestic assault at which point appellant became uncooperative and argumentative. Appellant resisted arrest and was tasered after approaching one of the officers.

Prior to trial, the district court denied a request for use of Spreigl evidence and ruled that appellant’s prior convictions could not be used for impeachment under the Jones factors. However, the court ruled that evidence of appellant’s four pri- or domestic abuse convictions were admissible as “relationship evidence” under Minn.Stat. § 634.20 (2004). Appellant’s four prior convictions include two domestic abuse gross misdemeanors in 1997 and felony domestic abuse convictions in 1999 and 2002.

At the end of trial, the court indicated that no Spreigl evidence cautionary instruction would be given unless counsel could provide a reason to include it. Neither counsel provided a reason. Again, before instructing the jury, the court questioned whether either counsel had any additions or corrections to the jury instructions. Neither party commented.

ISSUES

1. Did the district court commit plain error by failing to give the jury a cautionary instruction on evidence of appellant’s prior convictions admitted as relationship evidence?

2. Does appellant state any valid claim in his pro se supplemental brief?

ANALYSIS

I. Plain Error

District courts are granted “considerable latitude” in the selection of language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). “An instruction is in error if it materially misstates the law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001) (citation omitted). Where a defendant fails to object to the jury instructions at trial, a reviewing court may “reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence.” State v. Butler, 295 N.W.2d 658, 659 (Minn.1980).

Absent an objection at district court, an appellate court may only review for “plain error.” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001); see Minn. R.Crim. P. 26.03, subd. 18(3) (“No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict.”); see also Minn. R.Crim. P. 31.02 (“Plain errors or defects affecting substantial rights may be considered by the court ... on appeal although they were not brought to the attention of the trial court.”). Plain error exists “only if the trial court’s failure seriously affected substantial rights and only if the error was prejudicial error.” State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990).

Under a review for plain error, an unobjected-to alleged error will only be corrected upon a finding of the following: (1) error; (2) it is plain; and (3) it affects the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). If the three-prong test is satisfied, the error should be corrected only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)) (quotations omitted); see Griller, 583 N.W.2d at 741 (holding that appellant bears the “heavy burden” of showing that the error was prejudicial to the degree that “giving of the instruction in question would have had a significant effect on the [jury’s] verdict”).

Appellant claims the district court erred by failing to provide the jury with a cautionary instruction related to the “relationship evidence,” thereby entitling him to a new trial. We disagree.

In 1985, the legislature enacted Minnesota Statute § 634.20, granting the district court discretion to admit “relationship evidence,” evidence of an accused’s similar conduct of domestic abuse, after determining that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. State v. McCoy, 682 N.W.2d 153, 159 (Minn.2004).

Relationship evidence is similar to, but is not considered, Spreigl evidence. See id. (stating that relationship evidence is at least “conceptually distinct from Spreigl evidence” because the latter is often evidence of an unrelated crime whereas the former is evidence of prior conduct between the accused and the alleged victim and may be offered to put the crime charged in the relationship between the two). However, the purpose of each type of evidence is similar. See State v. Henriksen, 522 N.W.2d 928, 929 (Minn.1994) (“Evidence bearing on the defendant’s relationship with the victim, including other-crime evidence, is often admitted in terror-istic threats and domestic abuse cases. Such evidence puts the alleged criminal conduct of the defendant in context, may help the jury in assessing the defendant’s intent and motivation, and may serve other valid purposes.”) (citations omitted); State v. Babcock, 685 N.W.2d 36, 40 (Minn.App.2004), review denied (Minn. Oct. 19, 2004) (stating that Spreigl evidence is not admissible to prove a defendant’s character in order to show action in conformity therewith, but may be admitted for the limited purpose(s) of showing absence of mistake, intent, knowledge, common plan or scheme, and identity). Additionally, courts typically apply a Spreigl-type analysis to relationship evidence. See State v. Bauer, 598 N.W.2d 352, 364 (Minn.1999).

Minnesota Rules of Evidence 105 states that “[w]hen evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Rule 105 addresses the specific situation where a particular jury instruction is requested. A specific instruction regarding the permissible use of Spreigl evidence should be given upon request. State v. Broulik, 606 N.W.2d 64, 69 (Minn.2000); see State v. DeYoung, 672 N.W.2d 208, 212 (Minn.App.2003) (holding that the district court erred by denying appellant’s request for a specific limiting instruction); see also Babcock, 685 N.W.2d at 41 (holding that the court erred by failing to instruct the jury on the limited purposes for which Spreigl evidence was admitted upon request to do so). Procedural requirements for Spreigl evidence require a general jury instruction limiting the use of such evidence:

[bjoth at the time the evidence is received and in the final charge, the court should admonish the jury that the testimony is received for the limited purpose of establishing identity. It is the court’s duty to advise the jury in unequivocal language that defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.

Broulik, 606 N.W.2d at 68 (quoting State v. Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 285 (1967)). Criminal jury instructions 2.01 and 3.16 utilize the Billstrom language, omitting only the reference to “identity,” and are currently used to provide a general cautionary instruction. Upon the admission of Spreigl evidence a limiting instruction is necessary to ensure that jurors do not convict the defendant of the uncharged Spreigl offense rather than the charged offense. See State v. Slowinski, 450 N.W.2d 107, 114-15 (Minn.1990) (holding that the reading of a cautionary instruction to the jury before testimony and at the close of the entire case lessened the probability of undue weight being given to the evidence); State v. Orfi, 511 N.W.2d 464, 471 (Minn.App.1994) (stating district court minimized prejudice by narrowly limiting scope of testimony and giving cautionary instruction at time evidence was admitted and at close of trial), review denied (Minn. Mar. 15, 1994).

The purpose of a cautionary instruction is to ensure that the jury uses the other-crimes evidence solely for the permissible purpose and not to convict the defendant due to the prior bad acts. State v. Williams, 593 N.W.2d 227, 237 (Minn.1999). The failure of the trial court to give those instructions in the absence of a request is not reversible error. Id. (“[Although the failure to give limiting instructions [in connection with the admission of relationship evidence] in certain circumstances may constitute plain error, we hold that it does not do so in this case.”), cert. denied, 528 U.S. 874, 120 S.Ct. 180, 145 L.Ed.2d 151 (1999). Upon admittance of relationship evidence, even in the absence of a request from counsel, the district court should provide a cautionary instruction when the evidence is admitted, and again during its final charge to the jury. Bauer, 598 N.W.2d at 365. Relationship evidence and Spreigl evidence are analogous. The danger both present is so significant that the precaution of providing a limiting instruction, as in Spreigl, should be applied to relationship evidence.

Here, appellant argues that the absence of a cautionary instruction led the jury to improperly utilize the evidence of his four prior convictions. Specifically, appellant is concerned that (1) the prosecutor focused extensively on the evidence during closing arguments to the extent that it likely became a focal point during jury deliberations; (2) the nature of the prior convictions rendered them particularly susceptible to misuse by the jury; and (3) reference to appellant owning a firearm may have led the jury to perceive appellant as posing a greater danger and consequently deserving of punishment.

This court must look at the entire record to determine if there is a significant likelihood that the jury misused the evidence, resulting in the evidence improperly affecting the verdict. State v. Frisinger, 484 N.W.2d 27, 31 (Minn.1992). Here, two eyewitnesses testified regarding the altercation on March 25, 2005; a 911 call resulted from S.M.’s fear of appellant; and further testimony from responding officers provided evidence supporting appellant’s conviction. Sandra testified regarding her 16-year marriage to appellant and referred to appellant as a lovable and good man when sober. The record indicates that all other jury instructions were properly given, including the presumption of appellant’s innocence, the state’s burden of proof beyond a reasonable doubt, and defining the elements of each charge. And, although the prosecutor did extensively refer to and summarize each of appellant’s prior convictions, he never suggested an improper use of the other-crimes evidence. See State v. Bissell, 368 N.W.2d 281, 283 (Minn.1985) (concluding that the failure to give a cautionary instruction was not prejudicial since “no one suggested that the evidence should be used for any [improper] purpose”). Instead, the prosecutor carefully used language such as “relationship with a history ...” and being “indicative of [appellant’s] intent and motive.”

A cautionary instruction is strongly preferred. However, the absence thereof does not automatically constitute plain error. Instead, other evidence offered during trial may negate the allegation that the probative value of other-crimes evidence is outweighed by its potential for unfair prejudice. Such is the case here where appellant failed to object to the lack of a cautionary instruction and other evidence presented at trial supported appellant’s conviction. In addition, the prosecution did not suggest an improper use of the other-crimes evidence.

II. Pro se Issues

Appellant raises six challenges in his pro se supplemental brief arguing that his convictions should be reversed. We find appellant’s arguments to be without merit.

Pro se litigants are generally held to the same standards as attorneys. Liptak v. State, 340 N.W.2d 366, 367 (Minn.App.1983). If the brief does not contain an argument or citation to legal authority in support of the allegations raised, the allegation is deemed waived. State v. Krosch, 642 N.W.2d 713, 719 (Minn.2002). Also, if a brief fails to make or develop any argument at all, the issue asserted is considered waived. State v. Butcher, 563 N.W.2d 776, 780-81 (Minn.App.1997), review denied (Minn. Aug. 5, 1997). Finally, if an allegation is outside of the record, it must be disregarded. See Minn. R.Crim. P. 28.02, subd. 8 (stating that “[t]he record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceeding, if any”).

First, appellant claims that 60 hours of recorded conversation between appellant (in jail) and his wife should have been played at trial. This assertion remotely refers to the record, however, it is deemed waived because appellant fails (1) to provide a record of the conversations; (2) to state a probative argument as to why the tapes should be admitted; and (3) to provide any legal authority supporting their admission. See Krosch, 642 N.W.2d at 719; see also State v. Palmer, 391 N.W.2d 857, 859 n. 1 (Minn.App.1986) (holding that the party seeking review has a duty to ensure that the appellate court is presented with a record sufficient to show the alleged error and all matters necessary to decide the question presented).

Second, appellant claims ineffective assistance of counsel because his attorney failed to effectively argue against the admission of appellant’s prior convictions and to ensure that the district court judge was removed for cause. These arguments lack merit because in order to succeed, appellant must affirmatively prove that: (1) “his counsel’s representation ‘fell below an objective standard of reasonableness’ ” and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). Appellant fails to make such a showing. Further, this claim is not supported by the record.

Appellant’s third, fourth, and sixth claims, that the district court judge should have recused himself, that appellant was not competent to stand trial, and that a letter submitted by appellant’s wife should have exonerated him, respectively, lack merit. These allegations are outside the record and appellant fails to provide any supporting legal authority. Therefore, these allegations are deemed waived.

Finally, appellant asserts that the police officers intentionally lied and falsified information. These arguments lack merit because the jury is the exclusive judge of witness credibility and determine the weight of the evidence. Dale v. State, 535 N.W.2d 619, 623 (Minn.1995).

DECISION

When relationship evidence is admitted, a cautionary instruction is strongly preferred, however, the absence thereof does not automatically constitute plain error. The absence of a cautionary instruction here did not constitute reversible error. Other evidence offered during trial negated appellant’s allegation that the probative value of the relationship evidence was outweighed by unfair prejudice. The issues raised by appellant in his pro se supplemental brief are without merit.

Affirmed.

      . State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965); State v. Jones, 271 N.W.2d 534 (Minn.1978).


author: SANDSTROM, Justice.

text:
    2006 ND 240
    Carol A. EIFERT, Plaintiff and Appellant v. Michael L. EIFERT, Defendant and Appellee
    No. 20060069.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, ND, for plaintiff and appellant.
    Jennifer M. Stanley, McGee, Hankla, Backes & Dobrovolny, Minot, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Carol Eifert appeals the district court’s divorce judgment giving Michael Eifert physical custody of their two children and setting her minimum visitation at every other Christmas and six weeks during the summer. We affirm.

I

[¶ 2] In 2001, when Carol Eifert was stationed in Texas with the Air Force, the Eiferts separated after three years of marriage. The parties have two unmarried minor children. Michael Eifert moved back to Minot, and Carol Eifert remained in Texas until she was assigned to a base in Honduras. That assignment did not allow family to accompany service members. The district court noted that the parties informally agreed, in 2001, to place both children temporarily with Michael Eifert’s sister, Michelle Hoffart, and her family in Dickinson; however, the children remained with the Hoffarts until 2004. Michelle Hoffart testified that the parties asked her to take care of their children because they were having marital problems. After caring for the children for nearly four years, Michelle Hoffart petitioned the district court for permanent co-guardianship of the children, but that request was denied. Michael Eifert then moved the children to his parent’s home in Minot. The couple was divorced in 2005. In awarding custody to Michael Eifert, the district court found that child custody factors (d), (e), and (m) favored him while none favored Carol Eifert. He resides in Minot with his parents. She lives in California with her parents.

[¶ 3] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. §§ 27-02-04 and 28-27-01.

II

[¶ 4] On appeal, Carol Eifert argues the district court erred in its application of the “best interests” test by unfairly focusing on the role of third parties rather than Michael Eifert’s alleged lack of involvement. She also argues that the district court erred in its findings by granting only minimal visitation.

[¶ 5] We exercise a limited review of child custody awards in divorce cases. Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142. We will not set aside a custody determination, which is a finding of fact, unless it is clearly erroneous. Id. Before we deem findings of fact clearly erroneous, we must understand the basis for the district court’s decision. Huntress v. Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351. “A reviewing court will not retry a custody case or substitute its judgment for that of the trial court, if the district court’s determination is supported by evidence in the record.” Ackerman v. Ackerman, 1999 ND 135, ¶ 8, 596 N.W.2d 332. This is especially true in the difficult case of deciding child custody between two parents not found unfit. See Gonzalez v. Gonzalez, 2005 ND 131, ¶ 12, 700 N.W.2d 711.

[¶ 6] Section 14-09-06.1, N.D.C.C., governs the award of child custody. In making an initial custody determination, the district court must consider all 13 factors specified in N.D.C.C. § 14-09-06.2(1) when they apply. Although a separate finding is not required for each factor under N.D.C.C. § 14-09-06.2(1), the district court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the decision. Huntress, 2002 ND 160, ¶ 8, 652 N.W.2d 351.

[¶ 7] In awarding custody to Michael Eifert, the district court found factors (d), (e), and (m) favored him while none favored Carol Eifert.

A

[¶ 8] Section 14-09-6.2(1)(d), N.D.C.C., addresses “[t]he length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.” This factor considers the “past stability of environment, including a consideration of place or physical setting, as well as a consideration of the prior family unit and its lifestyle as part of that setting. It also addresses the quality of that past environment, and the desirability of maintaining continuity.” Stoppler, 2001 ND 148, ¶ 9, 633 N.W.2d 142.

[¶ 9] The district court focused on the nearly four years the children lived in Dickinson in “a safe, stable, and loving home” with Michelle Hoffart, Michael Eifert’s sister. The district court found that Michael Eifert was able to maintain almost monthly visits with his children in Dickinson and spoke with them by telephone. The district court noted that Carol Eifert faced greater obstacles given her military service obligations. The district court totaled the amount of annual leave Carol Eifert spent with the children during their stay with the Hoffarts and found that she spent roughly 15 days with them in the first year, no time with them in the second year, and “a limited amount” during her third year. The district court did note that Carol Eifert communicated with the children via email and telephone. The district court did not calculate the time Michael Eifert actually spent with his children while living 180 miles away in Minot; however, it did find that Michael Eifert had satisfactorily eared for the children in the year before the divorce, “without significant financial support from Carol.”

[¶ 10] The district court’s finding that factor (d) favored Michael Eifert is not clearly erroneous.

B

[¶ 11] Section 14-09-6.2(1)(e), N.D.C.C., addresses “[t]he permanence, as a family unit, of the existing or proposed custodial home.” Although overlap exists between factors (d) and (e), factor (e) uses a forward-looking approach to the stability of the family unit, its interrelations and environment, versus the backward-looking factor (d). Stoppler, 2001 ND 148, ¶¶ 9-12, 633 N.W.2d 142. Interaction and interrelationships with relatives and others contribute to the analysis under factor (e). Schmidt v. Schmidt, 2003 ND 55, ¶ 13, 660 N.W.2d 196. “Children need interaction and interrelationship with their parents, siblings, and other persons who may significantly affect the child’s best interests.” Lapp v. Lapp, 293 N.W.2d 121, 130 (N.D.1980).

[¶ 12] The district court found that although both parties live with their respective parents and each set of grandparents would make a place for the children in their homes, the children’s “bonded closeness to the Hoffarts and their children,” which the district court found would likely continue, tipped factor (e) in favor of Michael Eifert. Furthermore, the district court reasoned that although the children could have the benefit of both sets of grandparents, the children “are no doubt closer to Michael’s parents in whose home they lived since November 2004.” According to the district court’s findings, the Eifert children developed sibling relationships with the Hoffart children. The district court noted Michelle Hoffart’s testimony that this sibling relationship would be certain to continue if Michael Eifert were awarded custody.

[¶ 13] The district court found that the potential for maintaining the relationship with the Hoffart family is best secured by the award of custody to Michael Eifert under this factor.

[¶ 14] The district court’s finding that factor (e) favors Michael Eifert is not clearly erroneous.

C

[¶ 15] Under section 14-09-6.2(1)(m), N.D.C.C., a district court considers “[a]ny other factors considered by the court to be relevant to a particular child custody dispute.” A district court is “entitled to give appreciable weight” to the role of the extended family in the care of the parties’ children. Corbett v. Corbett, 2001 ND 113, ¶ 9, 628 N.W.2d 312; accord Cox v. Cox, 2000 ND 144, ¶ 24, 613 N.W.2d 516 (noting the father’s “strong support system in his family,” including his aunt and uncle that were “willing!] to assist and support him in parenting the child”); Van Dyke v. Van Dyke, 538 N.W.2d 197, 201 (N.D.1995) (noting the importance of extended family who have “taken up the slack” in daily care of the children when necessary); Bashus v. Bashus, 393 N.W.2d 748, 751-52 (N.D.1986) (noting that the children’s grandmother cared for the children while the custodial parent was at work).

[¶ 16] The district court noted its concern that Carol Eifert’s plans to attend college full-time in California to earn an engineering degree, while admirable, would further impinge on her relationship with her children. Furthermore, the district court noted the absence of any record of daily care of the children by Carol Ei-fert, while highlighting Michael Eifert’s care of the children — at least since 2004. According to the district court, the children are doing well with Michael Eifert and his parents in Minot. The district court noted one witness’s testimony that “Carol has had the title of ‘mother’ ever since the children were born, but has not had the day-to-day responsibilities that go with that since February 2001.”

[¶ 17] The district court’s finding that factor (m) favored Michael Eifert is not clearly erroneous.

D

[¶ 18] Carol Eifert argues that although the district court awarded custody to Michael Eifert, the effect of that award was to grant custody to his extended family, specifically his sister and mother.

[¶ 19] In general, parents have a superior, but not absolute right to the custody and control of their children over the right of any other person. Goter v. Goter, 1997 ND 28, ¶ 7, 559 N.W.2d 834; N.D.C.C. § 14-09-06 (“The husband and father and wife and mother have equal rights with regard to the care, custody, education, and control of the children of the marriage-”); N.D.C.C. § 14-09-06.1 (“Between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.”); Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (“[W]e have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”); Hoff v. Berg, 1999 ND 115, ¶ 8, 595 N.W.2d 285 (“Natural parents have a fundamental liberty interest in the care, custody, and management of their children.”). “Absent exceptional circumstances triggering a best-interest analysis, a natural parent is entitled to custody of his or her child.” Goter, at ¶ 7 (citation omitted).

[¶ 20] The district court awarded custody of the children to Michael Eifert. Carol Eifert provides no authority that analyzes an actual award of custody and the possible impropriety of the effect of that award that places children in a grandparents’ home in which the custodial parent also resides, or in a situation that includes close daily interaction with the extended family or others. The cases she cites involve non-parents actually seeking custody — unlike the aunt or either parties’ grandparents in this case. See Interest of D.P.O., 2003 ND 127, ¶ 1, 667 N.W.2d 590 (maternal grandparents appealed award of custody to the biological father); Interest of Lukens, 1998 ND 224, ¶¶ 4-8, 16, 587 N.W.2d 141 (intervening grandparents sought custody in dispute between the mother and father); Goter, 1997 ND 28, ¶¶ 1-2, 559 N.W.2d 834 (intervening paternal aunt and uncle sought custody); Simons v. Gisvold, 519 N.W.2d 585, 586 (N.D.1994) (both the natural mother and stepmother sought custody after father’s death); Worden v. Worden, 434 N.W.2d 341, 343 (N.D.1989) (reversing the award of custody to a child’s step-parent in favor of the child’s natural mother for a want of exceptional circumstances to justify placing the child with a third party); Daley v. Gunville, 348 N.W.2d 441, 441-42 (N.D.1984) (mother appealed the award of custody to the child’s maternal grandmother); Buchholz v. Buchholz, 326 N.W.2d 203, 204 (N.D.1982) (aunt and uncle appealed the award of custody to the natural mother).

[¶21] Both Michael and Carol Eifert live with their respective parents; therefore, the effect of a custody award to either party would naturally include interaction between the children and their grandparents. In Schmidt, we concluded:

a trial court determining the best interest and welfare of a child in making a custody decision may appropriately consider such things as the child’s interaction and interrelationships with a party’s extended family and other people, such as childcare providers and others who may significantly affect the child’s best interests.

2003 ND 55, ¶ 13, 660 N.W.2d 196.

[¶ 22] We affirm the district court’s award of custody to Michael Eifert.

Ill

[¶ 23] Carol Eifert argues the district court erred in its findings on visitation, because visitation granted by the district court was minimal.

[¶ 24] A district court’s determinations regarding visitation are findings of fact that are not disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Sisk v. Sisk, 2006 ND 55, ¶ 8, 711 N.W.2d 203. 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, upon review of the entire record, we possess a definite and firm conviction that a mistake has been made. Bertsch v. Bertsch, 2006 ND 31, ¶ 5, 710 N.W.2d 113.

[¶ 25] In this case, the district court fashioned a visitation schedule that would accommodate Carol Eifert’s plans to attend college full-time in California by granting her visitation during typical college breaks — in the summer and every other Christmas. The district court also provided for Carol Eifert’s use of email and telephone contact, which her children had become accustomed to during her military service.

[¶26] We affirm the district court’s award of visitation, which can be increased by mutual agreement of the parties.

TV

[¶27] We affirm the district court’s judgment awarding custody to Michael Ei-fert with reasonable visitation for Carol Eifert.

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


author: CROTHERS, Justice.

text:
    2006 ND 241
    STATE of North Dakota, Plaintiff and Appellee v. Kenneth Wayne OLIVER, Defendant and Appellant.
    Nos. 20060082-20060085.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Nancy Darlene Yon (argued), Assistant State’s Attorney, and Michael Pitcher, third-year law student (on brief and appeared), Grand Forks, N.D., for plaintiff and appellee.
    Kerry Shannon Rosenquist (argued) and Travis Finck, third-year law student (appeared), Grand Forks, N.D., for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Kenneth Wayne Oliver appeals from four criminal judgments entered on a conditional plea of guilty for possession of a controlled substance with intent to deliver, possession of drug paraphernalia (methamphetamine), driving under suspension, and fleeing a police officer. He reserved his right to appeal the denial of his motion to suppress evidence found both in his car and on or near his person. Oliver claims the evidence was unconstitutionally seized as a result of a pretextual stop. We conclude the district court properly denied the motion, and we affirm the criminal judgments of the district court.

I

[¶ 2] During the late morning of July 6, 2005, an undercover narcotics task force detective surveilled Oliver after an informant reported a suspicious hand-to-hand exchange taking place at a local car wash/laundromat. The detective did not observe any drug-related activity but did note Oliver’s car lacked license plates and had what appeared to be a faded and illegible temporary registration sticker. The detective testified she would have stopped Oliver’s vehicle to check the registration if she had been driving a marked law enforcement vehicle with a light bar. Instead, she called uniformed patrol officers with information about the car and its direction of travel, telling the officers they would have to make their own decision regarding a stop.

[¶3] Grand Forks Police Officer Donald Beck responded to the detective’s call. Beck testified he was driving behind Oliver’s vehicle and noted the lack of license plates in possible violation of North Dakota vehicle registration laws. Officer Beck testified he saw what appeared to be a faded paper 30-day temporary registration sticker on the rear window of the car. Because of the faded sticker and the fact the writing on it was not visible, Officer Beck turned on his lights to initiate the stop when both cars were stopped at a yield sign. Oliver did not immediately stop but instead drove into a nearby convenience store parking lot. Oliver left his vehicle and fled into the store, even after Beck and another officer commanded him to stop. The officers apprehended Oliver in the store’s restroom where they found drug paraphernalia and a substance later determined to be methamphetamine. The police department’s K-9 unit was called in to perform an exterior sweep of Oliver’s car. When the dog indicated a “hit,” the officers searched the vehicle and found methamphetamine and a scale. Oliver was arrested for fleeing a peace officer, possession of a controlled substance with intent to deliver, possession of drug paraphernalia (methamphetamine), and driving under suspension. Oliver moved to suppress the evidence, arguing the stop and resulting search were unconstitutional. The district court denied the motion. Oliver conditionally pled guilty, reserving his right to appeal.

II

[¶ 4] Oliver argues the district court erred in denying his motion to suppress and to dismiss the charges because the stop of his vehicle was pretextual and therefore unconstitutional. The State argues the stop was constitutional because the officer had reasonable and articulable suspicion that Oliver was committing a vehicle license registration violation. The State argues whether the stop was pretex-tual is irrelevant because the officer observed a traffic violation, allowing for a lawful stop of the vehicle.

[¶ 5] When reviewing the denial of a suppression motion, we defer to the district court’s findings of fact. State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106. Although we defer to the district court’s findings of fact, questions of law are fully reviewable. State v. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703. Here, the district court determined:

[T]he officer making the investigatory stop had personally visually observed [Oliver’s] vehicle without a rear license plate before he initiated a traffic stop. Further, he did not attempt to initiate a conversation with [Oliver] until after he determined that the temporary registration application was illegible.

[¶ 6] The Fourth Amendment of the United States Constitution and article I, § 8 of the North Dakota Constitution guarantee “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The United States Supreme Court has stated:

Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of “persons” within the meaning of [the Fourth Amendment]. An automobile stop is thus subject to the constitutional imperative that it not be “unreasonable” under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Traffic violations, even if pretextual, provide a lawful basis to conduct an investigatory vehicle stop. State v. Loh, 2000 ND 188, ¶ 10, 618 N.W.2d 477. A police officer’s subjective intentions in making a stop are not important as long as a traffic violation has occurred. Whren, at 813, 116 S.Ct. 1769. As we have noted, “a party 'is going to have difficulty in using subjective motive to attack an arrest which is otherwise objectively justified by probable cause.’ ” State v. Gregg, 2000 ND 154, ¶ 46, 615 N.W.2d 515 (quoting Holland v. City of Portland, 102 F.3d 6, 11 (1st Cir.1996)).

[¶ 7] Here, Officer Beck testified he observed a Lincoln lacking license plates in possible violation of North Dakota law. Section 39-04-17, N.D.C.C., allows for a temporary paper certificate to be displayed on a vehicle while a title application is being processed. This temporary certificate is valid for thirty days from the date of application. The faded temporary registration certificate with no visible printing was indicative of a temporary certificate that was more than thirty days old and constituted an objective fact giving the officer a right to stop Oliver to check its validity.

[¶ 8] Oliver argues Officer Beck made the stop only after receiving information from an undercover narcotics task force detective who surveilled Oliver for a possible drug-related exchange at a carwash. Oliver argues this is not enough basis for a stop. He also argues displaying a faded temporary vehicle registration is not unlawful.

[¶ 9] In Texas, law enforcement officers observed a driver operating a used car with a very faded temporary registration “dealers tag.” Kennedy v. State of Texas, 847 S.W.2d 635, 635 (Tex.App.1993). The officers followed the car but could not determine the tag’s date of issue. Id. The officers believed the faded tag was expired, so they initiated a stop and arrested the driver for drug possession. Id. On appeal, the driver argued displaying a faded tag was not a violation and the officers therefore had no legal basis for a stop. Id. at 636. The Texas court disagreed, holding,

[T]he faded dealers tag gave the officers reasonable suspicion to believe that a violation had occurred, that Appellant was driving an unregistered car. Appellant was not stopped because the faded tag was a violation, but rather, under the circumstances, it was an indication that a violation had been, and was, occurring.

Id.

[¶ 10] Here, Officer Beck received a call from the undercover detective who did not stop Oliver but merely relayed information that Oliver may have been committing a traffic violation. The district court found Officer Beck personally observed a possible vehicle registration violation, thereby making the stop constitutional. Because Oliver fled when officers commanded him to stop, the subsequent searches of Oliver and the vehicle were incident to his arrest for fleeing a peace officer. We conclude, therefore, the district court properly refused to suppress the evidence obtained during the searches of Oliver and his vehicle.

Ill

[¶ 11] We affirm the judgments, concluding the stop was not unconstitutional and the searches were valid searches incident to arrest.

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


text:
    2006 ND 246
    STATE of North Dakota, Plaintiff and Appellee v. Kenneth Albin JACOB, Jr., Defendant and Appellant.
    No. 20060103.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Mark R. Boening (argued), Assistant State’s Attorney, Fargo, N.D., and Chris-tene Beaupre, third-year law student, appearing under the Rule on the Limited Practice of Law by Law Students, for plaintiff and appellee.
    Steven D. Mottinger, Fargo, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Kenneth Jacob, Jr., appeals after a jury found him guilty of leaving the scene of an accident involving death, a class B felony. Concluding it is legally and factually possible for a jury to find Jacob not guilty beyond a reasonable doubt of negligent homicide and guilty beyond a reasonable doubt of leaving the scene of an accident involving death, we affirm.

I

[¶ 2] Jacob, who has nearly 20 years of trucking experience, testified that he was driving a semi-tractor trailer from western North Dakota to his home in Minnesota when he stopped to see his brother at a Fargo tavern at about 11 p.m. on a Friday night in June. Jacob testified that he parked his truck in a lot across the street from the bar, locked both the driver and passenger doors, urinated “out behind the rear tires,” and then walked across the street into the bar. Two witnesses sitting in a van in the bar’s parking lot testified they noticed Jacob get out of his truck, go around the front of the truck to the passenger side, bend down, and then go into the bar. The witnesses testified they noticed this activity because they had been watching another man, obviously drunk, stagger about and eventually disappear behind Jacob’s truck. The two witnesses testified that when Jacob emerged from the bar, having stayed inside only five minutes, he looked toward the back of his truck and yelled something. One witness characterized it as an “angry yell.” Jacob testified that he then got into his truck, shifted and “got locked in reverse by accident,” backed up several feet — the trailer rocked — and then drove immediately from the scene. Jacob testified the truck was old and the transmission was “sloppy.” Jacob testified that when he got the truck moving forward he also “felt the trailer rock again a little bit back there ... [and] assume[d][he] went through a hole or over a small bump in the lot.” The witnesses testified that after Jacob pulled away, they saw a man, later identified as Stephen Nelson, lying in the parking lot where Jacob’s truck had been parked. An autopsy revealed that Nelson died from multiple blunt force injuries due to a pedestrian-motor vehicle collision and that the man had a blood-alcohol content of 0.42 percent. Another witness testified that he saw Jacob’s truck, which had “no lights on at all,” speeding away on a road heading east away from Fargo. That witness later notified police about seeing a truck matching the description given by a news bulletin of a truck possibly involved in the killing of a man at a Fargo bar’s parking lot. Jacob testified that he had been having electrical problems with his truck and that when his headlights completely failed, he stopped at an abandoned truck stop to spend the night. Jacob testified that he arrived at his place of employment later that Saturday and pressure-washed his truck as company policy required. Four days later, Fargo police arrested Jacob at a construction site in Cass County.

[¶ 3] Jacob was charged with murder, a class AA felony, and leaving the scene of an accident involving death, a class B felony. At the close of the State’s case, Jacob moved for a judgment of acquittal under N.D.R.Crim.P. 29, which the district court denied. A jury found Jacob not guilty of both murder and the lesser included offense of negligent homicide, but guilty of leaving the scene of an accident involving death. Jacob moved for a new trial under N.D.R.Crim.P. 33(c), contending the evidence at trial was inconsistent with the verdicts; the district court denied the motion. Jacob appealed from the criminal judgment.

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

II

[¶ 5] Jacob argues that the district court erred in denying his Rule 29 motion for a judgment of acquittal because, as a matter of law, there was no evidence to show that he knew he had struck a person with his semi-tractor trailer.

[¶ 6] Because Jacob timely moved for an acquittal under N.D.R.Crim.P. 29, he preserved the issue of sufficiency of the evidence for appellate review. State v. Steen, 2000 ND 152, ¶ 16, 615 N.W.2d 555. The standard of review for an appeal based on the sufficiency of the evidence is deferential to the jury’s verdict. State v. Laib, 2005 ND 191, ¶ 6, 705 N.W.2d 815. “This Court will reverse a conviction on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Steen, at ¶ 17.

[¶ 7] The jury found Jacob guilty under N.D.C.C. § 39-08-04, which provides in part:

1. The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop or return with the vehicle as close as possible to the scene of the accident and in every event shall remain at the scene of the accident until that driver has fulfilled the requirements of section 39-08-06 [Duty to give information and render aid]. Every stop required by this section must be made without obstructing traffic more than is necessary.
2. Any person failing to comply with the requirements of this section under circumstances involving personal injury is guilty of a class A misdemeanor. Any person negligently failing to comply with the requirements of this section under circumstances involving serious personal injury is guilty of a class C felony. Any person negligently failing to comply with the requirements of this section under circumstances involving death is guilty of a class B felony.

N.D.C.C. § 39-08-04(1), (2) (emphasis added). Without objection from the State, the jury was instructed that a person acts negligently “if he engages in the conduct in unreasonable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct.” N.D.C.C. § 12.1-02-02(1)(d). Therefore, Jacob’s argument that he did not know he hit a person does not apply the proper culpability standard provided in N.D.C.C. § 39-08-04.

[¶ 8] Here, the jury heard eyewitness testimony regarding Jacob’s actions around his truck before he entered the bar. One witness even testified to having seen part of the decedent’s body protruding from beneath the truck before it was run over. The jury heard testimony that Jacob walked around the front of his truck and spent up to 10 minutes outside the truck near the middle of the trailer. After Jacob left the bar, witnesses testified that he stood on the driver’s side step and yelled something. Jacob testified that he felt the trailer rock when he backed up the truck and when he drove forward after eventually putting the truck in a forward gear. The autopsy revealed multiple injuries to various parts of the decedent’s body rather than a single injury to only one part of the body. A jury could have rationally found from this evidence that the “bump” or “rock” Jacob experienced was more significant than running over a hole in the parking lot. Jacob testified that he made a loop and pulled into the lot across from the bar. If that lot had been rutted or full of bumps or holes, it would have been reasonable for Jacob to have noticed them upon pulling in and parking. Only upon backing up did he feel the bump and then again when he drove back over that same area after shifting the truck into a forward gear. The witnesses’ testimony regarding the amount of time Jacob spent around his truck makes the jury’s conclusion that Jacob acted negligently by leaving the scene even more reasonable because it seems more likely he would have known a drunk man was in the vicinity and could have been the source of the bump, even if he did not think the man was behind the truck when he backed up. He failed to stop and at least check on his truck, which seems counterintuitive given his testimony about electrical problems he had been having, the age of the truck, and the sloppiness of the transmission. Therefore, the district court properly denied the Rule 29 motion for acquittal.

Ill

[¶ 9] Jacob argues that the jury verdict was inconsistent in finding him guilty of leaving the scene of an accident but not guilty of negligent homicide, because both require negligence.

[¶ 10] The standard for reconciling a jury verdict is whether the verdict is legally inconsistent. State v. Jahner, 2003 ND 36, ¶ 17, 657 N.W.2d 266; accord State v. McClary, 2004 ND 98, ¶ 16, 679 N.W.2d 455 (holding that the jury’s acquittal for murder and conviction for abuse or neglect of a child could be rationally reconciled and did not represent inconsistent verdicts). In Jahner we said:

Strict standards of logical consistency need not be applied to jury verdicts in criminal cases. Reconciliation of a verdict, therefore, includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.

2003 ND 36, ¶ 19, 657 N.W.2d 266 (internal quotations and citations omitted).

[¶ 11] The district court found that the first element, death, was satisfied without dispute. Therefore, the court correctly framed the issue when it said:

the issue boils down to whether the jury could rationally conclude both that the Defendant did not engage in conduct which caused the death of Stephen Nelson in unreasonable disregard of the substantial likelihood of the existence of relevant facts or risks ... and that the Defendant negligently failed to immediately stop or return with the vehicle ... and provide information and render aid....

(Emphasis in original.)

[¶ 12] Jacob was charged with and acquitted of both murder and the lesser included offense of negligent homicide. See N.D.C.C. § 12.1-16-03 (“A person is guilty of a class C felony if he negligently causes the death of another human being.”). Jacob was found guilty of leaving the scene of an accident involving death. See N.D.C.C. § 39-08-04(2) (“Any person negligently failing to comply with the requirements of this section under circumstances involving death is guilty of a class B felony.”). The culpability level for both offenses at issue is “negligently”; however, the conduct for each offense differs greatly. For negligent homicide, a person must act negligently, causing death. For leaving the scene involving death, a person need only negligently leave an accident scene where a death occurred. Therefore, the jury could have rationally found that Jacob did not negligently cause Nelson’s death, but it could have found that Jacob acted negligently by leaving the scene of the accident where Nelson died. This conclusion finds support from Jacob’s own testimony that he felt his trailer rock when he backed up to leave and again when he immediately drove forward to exit the lot. The jury could have rationally inferred that Jacob was alerted to the likelihood of an accident at that moment. The jury could have also inferred that Jacob’s subsequent conduct reflected that he was aware of that likelihood. The verdicts are not legally inconsistent.

IV

[¶ 13] Jacob argues for reversal, claiming the district court committed obvious error in instructing the jury.

[¶ 14] The district court must instruct the jury on the law; however, the parties must request and object to specific jury instructions. State v. Weaver, 2002 ND 4, ¶ 16, 638 N.W.2d 30. “[A] party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection.” N.D.R.Crim.P 30(c)(1).

When the defendant fails to properly object to a proposed instruction, or fails to specifically request an instruction or object to omission of an instruction, the issue is not adequately preserved for appellate review and our inquiry is limited under N.D.R.Crim.P. 52(b) to whether the jury instructions constitute obvious error affecting substantial rights.
... In determining whether there has been obvious error, we examine the entire record and the probable effect of the alleged error in light of all the evidence, and the burden is upon the defendant to show the alleged error was prejudicial. An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.

Weaver, at ¶¶ 16, 17 (internal citations omitted).

[¶ 15] The district court issued the following instruction for leaving the scene of an accident involving death, to which Jacob failed to object:

A driver who is involved in an accident resulting in the death of any person and negligently fails to immediately stop or return with the vehicle as close as possible to the scene of the accident is guilty of Leaving the Scene of an Accident Involving Death. A driver is required to remain at the scene of the accident until the information required by law is provided and reasonable assistance is given to any injured person.

(Emphasis added.) This language comports with N.D.C.C. § 39-08-04, which provides for the offense of leaving the scene of an accident involving death. The jury asked two questions about their instructions:

1. Can the defendant be found guilty of leaving the scene of accident [sic] ?
2. Does it have to be: “Leaving the scene of an accident involving death.”

After conferring with the lawyers, the district court did not answer the questions except to refer the jury back to the instructions. For the first time on appeal, Jacob argues that “the jury’s confusion would have been alleviated had it been instructed that the Defendant could only be convicted of leaving the scene of an accident involving death if he knew that the accident involved another person.” By that request, Jacob asks this Court to adopt the law of Illinois; however, that state’s law expresses no culpability level. See 625 Ill. Comp. Stat. Ann. 5/11-401 (West 1992). The Illinois Supreme Court interpreted their statute to require that the defendant know he was involved in an accident involving another person. People v. Digirolamo, 179 Ill.2d 24, 227 Ill.Dec. 779, 688 N.E.2d 116, 124 (1997) (holding that “for a conviction under section 11-401, the State must prove that the defendant had knowledge of an accident involving a person”). Therefore, the two statutes’ culpability requirements conflict. Knowledge that the accident involved another person is not the standard the North Dakota legislature established. As such, we are not persuaded by the Illinois authority.

[¶ 16] The jury returned a guilty verdict for leaving the scene of an accident involving death. The jury verdict acquitting Jacob of negligent homicide but finding him guilty of leaving the scene involving death demonstrates that the jury instructions properly informed the jury of the applicable law. Therefore, the district court did not obviously err.

V

[¶ 17] We affirm the judgment.

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