author: MARING, Justice. KAPSNER, Justice,

text:
    2006 ND 239
    STATE of North Dakota, Plaintiff and Appellant v. Tyler J. DOOHEN, Defendant and Appellee.
    No. 20060089.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Tom M. Henning, State’s Attorney, and James A. Hope (argued), Assistant State’s Attorney, Dickinson, N.D., for plaintiff and appellant.
    Michael R. Hoffman (argued), Bismarck, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] The State of North Dakota appeals the trial court’s order suppressing evidence found during a search of Tyler Doohen’s vehicle after a Highway Patrol Trooper viewed butane lighters and syringes in a tote bag next to Doohen on the front passenger’s seat. The State claims the butane lighters and syringes gave the trooper probable cause to search the vehicle. We reverse the trial court’s order suppressing the evidence found in Doo-hen’s vehicle and remand for further proceedings.

I

[¶2] On February 28, 2005, Highway Patrol Trooper Roger Clemens received a dispatch about a vehicle that was being driven erratically on the interstate. Clemens responded to the call and stopped the vehicle. Clemens asked Tyler Doohen, the driver, for his license and registration, and advised Doohen of the reason for the stop. Doohen stated he was driving erratically because of problems with his tires.

[¶ 3] Clemens suspected Doohen was driving under the influence, but Clemens did not detect signs of alcohol consumption to substantiate his suspicion. Clemens noticed a tote bag next to Doohen on the front passenger’s seat that contained butane lighters and syringes. The butane fighters were of a higher grade and disposable. The syringes, which were wrapped in plastic, were sticking out of the tote bag’s pockets. Clemens did not notice whether the syringes were medicinal or hypodermic syringes. Clemens testified he knew, based on his training and experience, butane fighters are frequently used in drug production and use, and syringes are often used to inject drugs. Clemens took Doohen to his patrol vehicle and asked Doohen about the items in the tote bag. Doohen indicated the syringes were used to spray water. At some point, Doo-hen mentioned to Clemens that he did glass blowing and glass sculptures. Doo-hen did not consent to a search of his vehicle. Clemens placed Doohen in the backseat of the patrol vehicle. Clemens waited for Sergeant Eldon Mehrer to arrive before taking further action. Clemens and Mehrer then searched Doohen’s vehicle. Items in the tote bag caused them to call the canine unit.

[¶ 4] Clemens had a camera in his vehicle when he pulled Doohen over, but did not take any pictures of the tote bag. Clemens did not present the tote bag as evidence because it was returned to Doo-hen’s mother. The syringes were not sent to the state laboratory because the laboratory does not accept unused items. Clemens believes pictures were taken of the syringes, but did not have them at the suppression hearing. The butane lighters and syringes were disposed of and, therefore, unavailable for the suppression hearing.

[¶ 5] During the search, Clemens found a metal tray with residue on it in the tote bag. The tray was sent to the state laboratory where the residue was determined to be methamphetamine. Clemens also found a machete covered with a sleeping bag.

[¶ 6] Doohen was charged with carrying a concealed weapon and possession of drug paraphernalia. Doohen moved to suppress the items found in his vehicle. The trial court granted Doohen’s motion to suppress the evidence, finding the State did not establish probable cause to search Doohen’s vehicle. The State appeals.

II

[¶ 7] The State argues the evidence seized from Doohen’s vehicle was improperly suppressed because Clemens had probable cause to search the vehicle.

[¶ 8] As we recently explained in State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 881 (citations omitted):

In reviewing a district court’s decision on a motion to suppress evidence, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. We will affirm a district court’s decision on a motion to suppress if there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence. Our standard of review recognizes the importance of the district court’s opportunity to observe the witnesses and assess their credibility. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.

[¶ 9] Unreasonable searches and seizures are prohibited by the Fourth Amendment to the United States Constitution and Article I, Section 8, of the North Dakota Constitution. State v. Woinarowicz, 2006 ND 179, ¶ 21, 720 N.W.2d 635. A warrantless search is unreasonable unless it falls within a recognized exception to the warrant requirement. State v. Genre, 2006 ND 77, ¶ 17, 712 N.W.2d 624. The automobile exception is a well-established exception to the warrant requirement. State v. Haibeck, 2004 ND 163, ¶ 10, 685 N.W.2d 512; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

[¶ 10] Under the automobile exception, law enforcement may search for illegal contraband without a warrant when probable cause exists. Haibeck, 2004 ND 163, ¶ 10, 685 N.W.2d 512. “Probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.” Roth v. State, 2006 ND 106, ¶ 13, 713 N.W.2d 513. “[I]f the search of an automobile without warrant is made upon probable cause, based upon a reasonable belief arising out of the circumstances known to the officer — -that the automobile contains articles which are subject to seizure — the search is valid.” State v. Gregg, 2000 ND 154, ¶ 33, 615 N.W.2d 515. In Gregg, we held the automobile exception applied when an officer discovered a controlled substance when seizing a syringe that was on the floor next to the suspect’s feet. Id. at ¶¶ 34-35. The totality of the circumstances is reviewed when determining the presence of probable cause. Roth, 2006 ND 106, ¶ 13, 713 N.W.2d 513

[¶ 11] “[A] police officer may draw inferences based on his own experience in deciding whether probable cause exists.” Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Clemens was trained to identify drug paraphernalia. Drug paraphernalia includes “[h]ypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body.” N.D.C.C. § 19-03.4-01(11). Clemens used his training and experience to conclude that the butane lighters and syringes were probably connected with criminal activity. Clemens knew butane lighters can be used as paraphernalia in the production and use of drugs, and that syringes are used to inject drugs. Based on Clemens’ training and experience that the presence of butane lighters and syringes indicated the probability of criminal activity, Clemens had probable cause to search Doohen’s vehicle.

[¶ 12] “Probable cause demands not that an officer be sure or certain but only that the facts available to a reasonably cautious man would warrant a belief that certain items may be contraband or stolen property or useful as evidence of a crime.” United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir.1997) (citations omitted). Clemens saw syringes in the tote bag but was not certain they were hypodermic syringes, which are commonly used to inject drugs. However, a reasonably cautious individual would have believed that the syringes may have been drug paraphernalia. This belief was supported by the presence of the butane lighters. Although Clemens may not have been certain Doohen’s syringes were for drug use, when combined with the butane lighters, they were enough to warrant a belief that they may be drug paraphernalia and evidence of drug activity.

[¶ 13] When determining whether there is probable cause, the evidence should not be considered individually, but as a collective whole. In State v. Nelson, 2005 ND 11, ¶ 21, 691 N.W.2d 218 (citation omitted), we stated:

Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... which is not weighed in individual layers but in the laminated total.

[¶ 14] Although Doohen’s statements about spraying water and blowing glass alone may not have constituted probable cause, those statements were layers which contributed to the totality of the circumstances that resulted in probable cause. Clemens was reasonable to have his suspicions raised by the statements. Although there may be an innocent explanation for why an individual has butane lighters or syringes, when the items are together, and known to be used for the production and use of drugs, they are sufficient to establish probable cause. When the lighters, syringes, and statements are layered together, probable cause was established to search Doohen’s vehicle.

[¶ 15] Based on the presence of butane lighters and syringes, both known by Clemens to be used for drug production and use, and Doohen’s statements, a reasonable person in Clemens’ position would have concluded that there was probable cause to search Doohen’s vehicle. Because Clemens had probable cause to search, the evidence found in Doohen’s vehicle is admissible under the automobile exception to the warrant requirement.

Ill

[¶ 16] The trial court erred in concluding Clemens did not have probable cause to search Doohen’s vehicle. We reverse the trial court’s order suppressing the evidence found in Doohen’s vehicle and remand for further proceedings.

[¶ 17] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, J., concur.

KAPSNER, Justice,

dissenting.

[¶ 18] I respectfully dissent. There was competent evidence to support the district court’s findings, the court’s decision was not against the manifest weight of the evidence, and the information known to law enforcement at the time of the search, without more, did not constitute probable cause. I would affirm the district court’s suppression order.

I

[¶ 19] In reviewing a district court’s decision on a motion to suppress evidence, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We will affirm a district court’s decision on a motion to suppress if “there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.” Id. (quoting City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994)). Our standard of review recognizes the importance of the district court’s opportunity to observe the witnesses and assess their credibility. State v. Mitzel, 2004 ND 157, ¶ 10, 685 N.W.2d 120. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.

II

[¶20] The Fourth Amendment of the United States Constitution and Article 1, Section 8 of the North Dakota Constitution prohibits unreasonable searches and seizures. A warrantless search is per se unreasonable unless it falls into a narrowly-defined exception to the warrant requirement. See State v. Genre, 2006 ND 77, ¶ 17, 712 N.W.2d 624. The automobile exception is a recognized exception to the warrant requirement. State v. Haibeck, 2004 ND 163, ¶ 10, 685 N.W.2d 512.

[¶ 21] To search under the automobile exception, law enforcement must have probable cause. Id. “Probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.” Roth v. State, 2006 ND 106, ¶ 13, 713 N.W.2d 513. The probable cause determination is reviewed objectively under the “totality of the circumstances,” where all information known to the officer at the time of the search is considered. State v. Torkelsen, 2006 ND 152, ¶ 13, 718 N.W.2d 22. The court takes into account “ ‘inferences and deductions that a trained and experienced officer makes.’ ” State v. Guthmiller, 2002 ND 116, ¶ 15, 646 N.W.2d 724 (quoting State v. Olson, 1998 ND 41, ¶ 24, 575 N.W.2d 649 and State v. Mische, 448 N.W.2d 415, 419 (N.D.1989)). While each piece of information alone may be insufficient to establish probable cause to search, “the sum total layers of information and the synthesis of what the police know, have heard, and observed as trained officers, weighed in a ‘laminated total’ may amount to probable cause.” State v. Rangeloff, 1998 ND 135, ¶ 28, 580 N.W.2d 593 (citing State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912).

Ill

[¶ 22] The suppression order should be upheld because our standard of review is dispositive and, without more, Troopers Clemens and Mehrer did not have probable cause to search Doohen’s vehicle.

A

[¶ 23] This Court should affirm a district court’s decision on a motion to suppress if “there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.” Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381 (quoting Thompson, 520 N.W.2d at 581). This recognizes the importance of the district court’s opportunity to observe the witnesses and assess their credibility. Mitzel, 2004 ND 157, ¶ 10, 685 N.W.2d 120. On this record, the district court’s decision was supported by competent evidence and not contrary to the manifest weight of the evidence.

[¶ 24] To the contrary, the court had ample competent evidence to support its findings. Trooper Clemens testified he saw what appeared to be syringes and butane lighters sticking out from the pockets of a tote bag when he approached Doohen’s vehicle. Although the items have no immediately incriminating character, Clemens testified that based on his training and experience, the lighters and syringes made him suspicious that Doohen was in possession of drug paraphernalia. Doohen was cooperative with Clemens except he did not want his vehicle to be searched and made no furtive movements or gestures to support Clemens’ probable cause determination. Clemens admitted that, prior to placing Doohen in the patrol car, Doohen may have told him he used the syringes to blow water when he was sculpting and blowing glass. Clemens also acknowledged the syringes were wrapped in plastic and appeared clean. In the district court’s memorandum opinion, it stated “Clemens testified he was not quite sure what the syringes were designed for and could not say whether they were medicine syringes that could be used for taking medicine and could not be hooked to a needle or whether they were hypodermic syringes to which a needle could be attached.” Although Clemens had a digital camera in his car, he did not photograph any of the evidence, nor was any of the evidence presented to the court at the time of the suppression hearing. Even after searching the vehicle and examining the evidence, the trooper could not say whether the syringes were hypodermic, which would qualify as drug paraphernalia under N.D.C.C. § 19-03.4-01(11).

[¶25] Additionally, we recognize the importance of the district court’s opportunity to observe the witnesses and assess their credibility. Mitzel, 2004 ND 157, ¶ 10, 685 N.W.2d 120. Here, the district court observed Clemens’ testimony and was able to assess his credibility. Clemens testified at the suppression hearing, but did not photograph or retain any of the items to present at the hearing. The court noted Clemens “seemed uncertain as to whether or not a needle could be attached to what he saw.”

[¶26] Under our standard of review, the district court had evidence to support its findings, which was not contrary to the manifest weight of the evidence. The court observed the testimony and evidence, weighed its relative credibility, and determined there was not probable cause to search Doohen’s vehicle. The suppression order should be affirmed.

B

[¶27] Troopers Clemens and Mehrer did not have probable cause to search Doo-hen’s vehicle. At the time of search, Clemens had only two pieces of information to evaluate: (1) the observation of the syringes and lighters and (2) Doohen’s explanation regarding his usage of the syringes. Instead of probable cause to search, the troopers merely had information that may have warranted further investigation. State v. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861 (citing State v. Lewis, 527 N.W.2d 658, 663 (N.D.1995)); see also State v. Gregg, 2000 ND 154, ¶¶ 29, 34-35, 615 N.W.2d 515 (upholding a search under the plain view doctrine when the officer observed a syringe on the floor and then conducted further inquiry into whether the syringe was used for medicinal purposes). In Thieling, we stated the observation of seemingly innocent items, such as baggies, plastic, and tin foil, were merely a very thin layer in the probable cause analysis. Id. at ¶ 9. We stated “[t]he ‘relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Since baggies, plastic, and tin foil were common household goods used in packaging, but not necessarily packaging of illegal contraband, we held the items were of minimal value in the probable cause analysis. Id.

[¶ 28] In Lewis, we held evidence that the defendant had equipment consistent with indoor growing operations was insufficient to establish probable cause. 527 N.W.2d at 663. Lewis had styrofoam and fiberglass insulation on his windows and had increased his electrical usage. Id. at 660. We emphasized the equipment could be used for growing legal plants and the extra insulation is consistent with both “[wjeatherproofing one’s home for winter” and the indoor growing of legal plants. Id. at 662-63. We refused to view innocuous activities like efforts to reduce heat loss, without more, as circumstantial evidence sufficient to support probable cause. Id. at 663. That is, “suspicion, without anything more specific, does not amount to probable cause to search.” Id.

[¶ 29] Doohen’s situation is similar to those presented in Thieling and Lewis. Clemens merely observed innocuous items in Doohen’s vehicle. Clemens could not say, even after examining the syringes, that they were drug paraphernalia under N.D.C.C. § 19-03.4-01(11). Furthermore, Doohen’s explanation for the syringes, although possibly warranting further investigation, provided a perfectly legal explanation. The information available to Clemens at the time of the search was merely a very thin layer to support his probable cause determination. Taken together, the evidence did not amount to probable cause. The district court did not err by suppressing the evidence.

IV

[¶ 30] There was competent evidence to support the district court’s findings, the court’s decision was not against the manifest weight of the evidence, and the information known to law enforcement at the time of the search, without more, did not constitute probable cause. Therefore, I would affirm the district court’s suppression order.

[¶ 31] DANIEL J. CROTHERS, J., agrees.


source: Caselaw Access Project

author:
CROTHERS, Justice.
      DALE V. SANDSTROM.

license: Public Domain

text:
    2006 ND 244
    Joseph J. IBACH, Plaintiff and Appellant v. Shelly ZACHER, Defendant and Appellee.
    No. 20060129.
    Supreme Court of North Dakota.
    Nov. 28, 2006.

      Camille O’Kara Hann, Melbye Law Office, Dickinson, ND, for plaintiff and appellant; on brief.
    Mary E. Nordsven, Hardy, Maus & Nordsven, P.C., Dickinson, ND, for defendant and appellee; on brief.
   CROTHERS, Justice.

[¶ 1] Joseph Ibach appeals from a district court order denying his motion to amend the child custody and support judgment to modify visitation of the parties’ child. We reverse and remand.

I

[¶2] Joseph Ibach and Shelly Zacher are the parents of S.F.I., born in 2001. Shelly has custody of the child under a May 8, 2002 judgment and decree, subject to Joseph’s right to reasonable visitation upon reasonable notice. The decree established visitation that included, at a minimum, the first and third weekends each month from Friday at 4:30 p.m. until Sunday at 6:00 p.m. (MT). Both Joseph and Shelly lived in Dickinson at that time.

[¶ 3] In July 2005, Shelly and her children moved to Minot. That same month, Joseph was diagnosed with a serious disease requiring a twelve-month-long course of treatment. The treatments, delivered on Fridays, resulted in Joseph becoming exhausted. Driving to Minot to pick up his child became a physical difficulty as well as more expensive and time-consuming. Joseph brought a motion to amend the 2002 judgment in September 2005, asking the court to require Shelly to help transport S.F.I. for visitation weekends. Both parties filed affidavits, and a hearing was held in February 2006. The court did not hear testimony from either party. The district court denied Joseph’s motion, holding Joseph had not shown a “material change in circumstances” had occurred. Joseph appeals.

II

[¶ 4] Joseph argues he was denied due process because the district court did not receive oral testimony at the hearing. The hearing was conducted pursuant to a notice issued by the court which provided,

[u]nless the Court otherwise orders, evidence either in support of or in opposition to the motion must be presented by affidavit. Evidence presented by affidavit may not be considered unless, at the time of the evidentiary hearing, the party offering the affidavit makes the affi-ant available for cross examination. The party initially seeking relief shall proceed first at the hearing. The moving party’s affidavits must be served and filed no later than ten days prior to the commencement of the hearing. Respondent’s affidavits must be served and filed no later than three days prior to the commencement of the hearing.

[¶ 5] The court’s notice is consistent with the rule governing motions. Rule 3.2, N.D.R.Ct., provides a court “may allow or require testimony on [a] motion.” Rule 43(e), N.D.R.Civ.P. provides, ‘When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct the matter be heard wholly or partly on testimony or depositions.” N.D.R.Civ.P. 43(e). This Court has stated that “whether testimony is allowed on a motion is within the sound discretion of the court.” O & K Glass Co. v. Innes Constr. Co., Inc., 2000 ND 56, ¶ 12, 608 N.W.2d 236. “A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process.” Id.

[¶ 6] Here, counsel attempted to call Joseph for direct examination and Shelly objected based on the notice of hearing. The district court did not expressly rule on the objection, but instructed Joseph’s counsel to proceed with her argument to the court. No offer of proof was made so we have no record of the evidence that would have been offered had direct examination occurred. Based on this record, we conclude the district court’s refusal to allow oral testimony on the motion was not an abuse of discretion.

Ill

[¶ 7] Joseph asserts the district court erred when it denied his motion to modify the visitation provision after concluding he did not establish a material change in circumstances. Joseph contends Shelly’s move to Minot and his medical condition establish a material change in circumstances requiring the district court to consider whether visitation is in the minor child’s best interest.

[¶ 8] Once an initial custody decision has been made, as it has in this case, an award of visitation is governed by N.D.C.C. § 14-05-22(2). Subsection 2, N.D.C.C. § 14-05-22, requires the court to “grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.” Any modification of visitation is governed by the standard set forth in our case law. Simburger v. Simburger, 2005 ND 139, ¶ 13, 701 N.W.2d 880. The moving party has the burden of establishing a material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order. Id. “This Court has defined a material change in circumstances as important new facts that were unknown at the time of the initial custody decree.” Lanners v. Johnson, 2003 ND 61, ¶ 7, 659 N.W.2d 864.

[¶ 9] Undisputed evidence before the district court was that the parties lived in the same town when visitation was established, but that Shelly and the children moved to Minot in July 2005. That same month Joseph was diagnosed with a serious disease requiring a twelve-month-long course of weekly treatments. Joseph received treatments on Fridays, resulting in Joseph being exhausted. Accomplishing visitation by driving to Minot to pick up his child became physically difficult as well as more expensive and time-consuming.

[¶ 10] After a hearing, the district court determined Joseph had not established a material change in circumstances, and the court declined to consider whether modifying visitation was in the minor child’s best interest. However, based on the record before us, we conclude the change in circumstances since the original decree is material as a matter of law. We reach this conclusion based on Shelly’s move from Dickinson to Minot, Joseph’s medical condition and required treatments, and their impact on S.F.I.’s two weekend per month minimum right to visitation with her father. We, therefore, reverse the district court’s order denying Joseph’s motion to modify visitation and remand for the district court to conduct a best interests analysis.

IV

[¶ 11] We reverse the district court’s order denying modification of visitation and remand for further proceedings to determine whether modification of visitation is in the best interests of the minor child.

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

DALE V. SANDSTROM.

I concur in the result.


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 242
    STATE of North Dakota, Plaintiff and Appellee v. Daniel MYERS, Defendant and Appellant.
    No. 20050368.
    Supreme Court of North Dakota.
    Nov. 28, 2006.
    Rehearing Denied Dec. 13, 2006.

      Cynthia Mae Feland, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Daniel Myers appealed from a judgment entered after a jury found him guilty of three drug-related offenses. We conclude the prosecutor’s closing argument did not violate Myers’s right against self-incrimination, the district court’s failure to admonish the jury before a recess was not reversible error, and there was sufficient evidence to convict Myers of the three offenses. We affirm.

I

[¶ 2] In late March 2003, Bismarck police were investigating a drug transaction based upon information received from a confidential informant. The information concerned a shipment of methamphetamine from Minot to a motel in Bismarck. Police also had information about two individuals who were recipients of the methamphetamine. Two individuals were apprehended at the Bismarck motel, but a third individual eluded police. Police believed the third individual was Myers. Police investigators distributed flyers with Myers’s picture to several local motels where they suspected Myers would be staying.

[¶ 3] Subsequently, Bismarck police received a telephone call from a manager at a Bismarck motel, informing them that Myers was staying in a room at that motel. Relying upon a previously obtained search warrant and the information from the manager that Myers was staying at the Bismarck motel, police sought and obtained a search warrant for room 336 at that motel. Police officers and a motel maintenance supervisor were proceeding to room 336 when they encountered an individual in the stairway leading up to the third floor. The maintenance supervisor identified the individual as Myers. A police officer stopped the individual and confirmed he was Myers. The officer then handcuffed Myers and escorted him to room 336.

[¶ 4] As the police officer and Myers walked to room 336, Myers told the officer he wanted to cooperate because, according to the officer, Meyers indicated he had “a lot of things hanging over his head.” The officer informed Myers they would talk at the police department after the room was searched. Upon entering room 336, law enforcement officers found Myers’s wife in the room. A search of the room yielded marijuana and various drug paraphernalia, in addition to approximately $866 in cash found on Myers’s wife. Police officers also observed suitcases and both men’s and women’s clothing, including swim suits, in the room.

[¶ 5] Myers and his wife were taken to the Bismarck police department and interviewed in separate rooms. During Myers’s interview, he was given his Miranda rights, including his right to remain silent, and he again indicated that he wanted to cooperate with the police. Myers provided information regarding two drug deals and individuals involved with those drug deals. Myers was charged with possession of marijuana with intent to deliver and two counts of possession of drug paraphernalia. A jury convicted Myers on all counts.

II

[¶ 6] Myers argues the prosecutor’s reference to his post-arrest silence in closing argument violated his right against self-incrimination.

[¶ 7] It is a fundamental principle of constitutional law that a prosecutor may not comment on a defendant’s failure to testify in a criminal case. State v. His Chase, 531 N.W.2d 271, 273 (N.D.1995); State v. Flohr, 310 N.W.2d 735, 736 (N.D.1981). “A comment on the silence of a defendant is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the [United States] Constitution.” State v. Ebach, 1999 ND 5, ¶ 15, 589 N.W.2d 566. See also N.D. Const. art. I, § 12; N.D.C.C. § 29-21-11. This Court reviews de novo a claim of a constitutional rights violation. State v. Keyes, 2000 ND 83, ¶ 9, 609 N.W.2d 428.

[¶ 8] We have also explained a district court’s discretion in controlling closing argument.

In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument. Unless the error is fundamental, a defendant must demonstrate a prosecutor’s comments during closing argument were improper and prejudicial. In order to be prejudicial, the improper closing argument must have “stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence.”

State v. Schmidkunz, 2006 ND 192, ¶ 7, 721 N.W.2d 387 (citations omitted). Argument by counsel must be limited to the facts in evidence and the inferences that properly flow from those facts. Ebach, 1999 ND 5, ¶ 10, 589 N.W.2d 566; City of Williston v. Hegstad, 1997 ND 56, ¶ 8, 562 N.W.2d 91. Generally, where a prosecutor’s statements have been improper, the appropriate remedy is a mistrial rather than dismissal. His Chase, 531 N.W.2d at 273; State v. Nordquist, 309 N.W.2d 109, 119 (N.D.1981).

[¶ 9] Here, the prosecutor stated in her closing argument:

Well there is a definition in the instructions that you were given of possession and possession is in two forms. Actual possession meaning we found this on his person, which is not the case in this particular instance, or constructive possession, meaning he has access and ability to utilize this particular piece of paraphernalia. Did he? Absolutely. How do we know that? It was found in the motel room, not found on [Myers’s wife], but found in the motel room. The same motel room that is connected with Mr. Myers. How do we know it’s connected with Mr. Myers — because when the maintenance man pointed out yep, that’s the guy from that room — we had that testimony through the officer. We have that. What else do we have? We have male clothing in the room, so is there any question that Mr. Myers is associated with that. Do we have any statements at this point where Mr. Myers said oh no, I have nothing to do with this room, I’m only a mere visitor? No. In addition we have him making all kinds of comments about drug activities, do we not? Absolutely. So is there really any reasonable doubt that he had the ability to utilize that? No. (Emphasis added.)

[¶ 10] Myers’s trial counsel objected to the statement in a subsequent exchange with the court:

MR. GLASS: I don’t know if this is appropriate or not but I’m going to object to part of her closing where she talks about Mr. Myers not testifying here today. She said he testified that he wasn’t at the hotel. Did he come up here and tell us he wasn’t at the hotel?
MS. FELAND: No, I didn’t say that. I didn’t say that he testified, I said he didn’t tell the officers.
THE COURT: Well regardless, you can — I’ll allow the objection and you can preserve it for the record.
MR. GLASS: Pardon me?
THE COURT: I said I’ll allow you to object to the comment. All right. Go ahead Mr. Glass.
(In open court)
MR. GLASS: Yes, Your Honor. I’d like to object to the part of Ms. Feland’s closing statement where she referred to Mr. Myers not testifying here today. He has the absolute right not to testify.
MS. FELAND: State’s position is that wasn’t the reference to the comment. The comment was that he didn’t give that information to the officers when he was questioned.
THE COURT: I recall you saying something about him not denying being in the hotel room or whatever. I don’t recall if you used the word testified or not. If in fact Ms. Feland did use that term, you are to disregard it. As I’m going to instruct you shortly, the defendant does have no burden of proof in this case, has an absolute right not to testify and you are not to draw any inferences or conclusions from that, so if Ms. Feland did say that, you are to ignore that. Mr. Glass, is that acceptable?
MR. GLASS: Thank you, Your Honor.

[¶ 11] Myers asserts that when the prosecutor made the statement during closing argument, the prosecutor knew Myers had not testified, the time for Myers to testify had passed, and the testimony by the police officers established Myers had been given his Miranda rights. Relying on Hegstad, 1997 ND 56, 562 N.W.2d 91, Myers argues the prosecutor’s statement is reversible error because it was made after he elected not to testify and implied criticism because he did not testify.

[¶ 12] In Hegstad, at ¶¶ 9-10, this Court concluded that a prosecutor’s reference in closing argument to the defendant’s silence after he had received his Miranda warnings, or more generally to the defendant’s failure to come forward with his version of events at any time before trial, violated the defendant’s right to due process. In concluding the district court abused its discretion and the errors were not harmless beyond a reasonable doubt, we focused on the prosecutor’s closing argument, which coupled improper comment on the defendant’s post-arrest silence after receiving Miranda warnings with improper argument that a police officer’s job was to tell the truth. Id. at ¶ 14. Myers’s reliance on Hegstad, however, is misplaced.

[¶ 13] In this case, Myers has taken the prosecutor’s statement out of context. See, e.g., Ebach, 1999 ND 5, ¶ 15, 589 N.W.2d 566 (prosecutor’s statement merely drew attention to the inconsistency of accounts of what happened and was not a statement regarding defendant’s silence before testifying). Rather than commenting on Myers’s failure to testify at trial or exercising a right to remain silent, the prosecutor’s statement refers to Myers’s failure in his voluntary assertions to law enforcement before being given Miranda warnings to deny that it was his motel room where the drugs and drug paraphernalia were found.

[¶ 14] We conclude the prosecutor’s statement was a comment about the evidence and was not an improper reference to Myers’s silence. We therefore conclude the prosecutor’s statement did not violate Myers’s constitutional rights. Moreover, the district court instructed the jury to ignore the prosecutor’s statement. We conclude the court did not abuse its discretion in addressing Myers’s objection and the prosecutor’s statement does not require reversal.

Ill

[¶ 15] Myers argues the district court committed reversible error by failing to admonish the jury before a ten-minute recess, as required by N.D.C.C. § 29-21-28, which provides:

The jurors also, at each adjournment of the court, whether permitted to separate or required to be kept in charge of officers, must be admonished by the court that it is their duty not to converse among themselves nor with anyone else on any subject connected with the trial, nor to form or express any opinion thereon, until the case is finally submitted to them.

At the close of the prosecution’s case, the following exchange took place:

MS. FELAND: State rests, Your Hon- or.
THE COURT: All right. Mr. Glass.
MR. GLASS: Could I have a five minute recess, Your Honor?
THE COURT: Sure. Why don’t we make it ten.
(2:10 p.m. — reconvened in open court with all parties present).

[¶ 16] The State relies upon State v. West, 57 N.D. 652, 654, 223 N.W. 705, 706 (1929), for the proposition that a temporary cessation of proceedings for purpose of hearing a motion is not an “adjournment” within the law requiring admonishment. Our more recent decisions, however, suggest the jury should be admonished before all breaks, even if in a short-form admonition referring back to a full admonition. See State v. Olson, 274 N.W.2d 190, 191 (N.D.1978) (no prejudice to defendant where short-form admonition was given and defendant failed to object, despite lack of full admonition in the record); State v. Julson, 202 N.W.2d 145, 155-56 (N.D.1972) (better practice was to repeat full admonition at each adjournment, but short-form admonition was not prejudicial to defendant). However, this Court generally will not consider issues that a defendant has failed to bring to the attention of the district court. State v. Brown, 420 N.W.2d 5, 7 (N.D.1988) (refusing to consider failure of trial court to admonish jury prior to a brief recess, citing State v. Ronngren, 361 N.W.2d 224, 231 (N.D.1985) (issue not raised or considered in the district court cannot be raised for the first time on appeal)).

[¶ 17] Here, although the district court did not admonish the jury before a brief recess, the court had admonished the jury prior to an earlier lunch break. While even a short-form admonition would have been appropriate, Myers did not object to district court’s failure to admonish the jury before the recess, and he has not claimed or demonstrated any prejudice. See His Chase, 531 N.W.2d at 273-74. Under Rule 52(a), N.D.R.Crim.P., any error, defect, irregularity or variance that does not affect substantial rights must be disregarded. We conclude the district court’s failure to admonish the jury before the recess was not reversible error.

IV

[¶ 18] Myers argues there is insufficient evidence to support his convictions.

[¶ 19] This Court has previously outlined our standard of review for challenges to the sufficiency of the evidence:

In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Moreover, a jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.

State v. Bertram, 2006 ND 10, ¶ 5, 708 N.W.2d 913 (quoting State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819 (citations omitted)).

[¶ 20] Myers contends this case consists of circumstantial evidence and according to the witnesses testifying at trial, he was never actually seen in the motel room where the drugs and drug paraphernalia were found. Myers further asserts that even if a jury could find he was in the motel room, there was no evidence he ever possessed the money associated with the drug transaction and there was no evidence he was ever in possession of the drugs with an intent to deliver or in possession of the drug paraphernalia.

[¶ 21] Testimony from police officers established sufficient corroborating evidence connecting Myers to the delivery of drugs and to the drug paraphernalia. Police officers testified that a search warrant was obtained for Myers’s motel room based upon information from the motel manager. There was evidence Myers had rented the motel room under a fictitious name, and Myers was detained in the stairway leading up to the floor where his room was located. Upon entering the room, Myers’s wife and suitcases with both men’s and women’s clothing were found in the room. Officers discovered $866 on Myers’s wife.

[¶ 22] During the search of the motel room, officers discovered a large bag containing four smaller baggies of marijuana, tin foil with burn marks, a scale with powdery residue, two small packs of baggies, a box of sandwich bags, a roll of tin foil, and two pen tubes with white residue. Testimony was presented that the baggies were sent to the state laboratory for testing which confirmed presence of cannabis or marijuana and, further, that the quantities of marijuana recovered from the motel room were consistent with the quantity sold on the street and were inconsistent with possession for personal use. Additionally, there was evidence the pen tubes tested positive for methamphetamine at the state laboratory.

[¶ 23] An officer testified that the amount of money found in combination with the scale, baggies, and individually wrapped marijuana, indicated both consumption of and dealing in narcotics. Moreover, after waiving his Miranda rights, Myers provided information to the arresting officers about two other simultaneous drug deals. An officer also testified he observed a recorded telephone call Myers made to another individual in which Myers indicated that some of the methamphetamine belonged to Myers. An officer also testified, “[Myers] indicated at that time that the money we had taken from him, the $866, really belonged to [another individual] for the marijuana that he had received.”

[¶ 24] From our review of the record, Myers has failed to demonstrate that no rational fact finder could find him guilty beyond a reasonable doubt of possession of marijuana with intent to deliver and two counts of possession of drug paraphernalia. Viewing the evidence in the light most favorable to the jury verdict, we conclude sufficient circumstantial evidence existed for the jury to find Myers guilty of the charged offenses. We therefore affirm Myers’s convictions.

V

[¶ 25] The district court judgment is affirmed.

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


author: SABERS, Justice.

text:
    2006 SD 96
    Donald Paul HUBER, Plaintiff and Appellant, v. DEPARTMENT OF PUBLIC SAFETY, Defendant and Appellee.
    No. 24004.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 2, 2006.
    Decided Nov. 01, 2006.

      Richard A. Engels, Engels Law Office, P.C., Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Donald Huber (Huber) appeals the Department of Public Safety’s (Department) decision that he is unlicensable under SDCL 32-12-35. He also alleges the circuit court abused its discretion when it did not grant a hearing to take additional evidence during his appeal. We affirm.

FACTS

[¶ 2.] In September of 2001, Huber struck and killed two pedestrians when he “blacked out” while driving. This accident was originally attributed to narcolepsy. The Department sent Huber a Notice of Driver Evaluation Request in order to review his ability to drive. The medical evidence provided by Dr. Richard W. Friess indicated Huber should not drive until they could prove a similar event would not occur. The Department canceled his driver’s license on September 28, 2001.

[¶ 3.] On October 5, 2001, Huber sent the Department an evaluation from Dr. Mark W. Mahowald. The doctor stated that Huber’s episode was of “unclear etiology” but thought there should be “no limitation placed upon his ability to operate a motor vehicle safely.” Huber’s driving status was reevaluated on October 30, 2001, and the Department granted him a temporary driver’s license for six months.

[¶ 4.] On December 14, 2001, the Department canceled Huber’s driver’s license. Huber requested a hearing and submitted medical evaluations from Dr. Friess, Dr. Hurley, and Dr. Mahowald. The administrative law judge found that under SDCL 32-12-35 Huber’s operation of a vehicle was “inimical to public safety and/or welfare.” On February 22, 2002, the Director of Driver Licensing, Cynthia D. Gerber (Gerber), accepted this decision and denied Huber a license until he went twelve months without any episodes and had medical documentations that his conditions were controlled by medication. Huber did not appeal this decision.

[¶5.] In July of 2002, Huber again blacked out on his way to work, while his child was in the car. Even though Huber was required under the February decision to remain episode free for twelve months, he again requested a six-month temporary license in May 2003. In support of this request, Huber submitted an evaluation by Dr. Jerome W. Freeman. This evaluation stated the cause of both accidents may have been cough syncope and not narcolepsy or seizures as previously thought. Dr. Freeman thought the likelihood of reoccurring episodes would be reduced if Huber stopped smoking.

[¶ 6.] In response to Huber’s temporary license request, the Department wrote a letter requiring him to provide more information. Specifically, the Department told Huber: 1) there was no medical report, as required by the February 2002 decision, that indicated the condition was controlled by medication; 2) there was no statement that indicated Huber did not have narcolepsy or seizures using the reasonable medical certainty standard; and 3) Huber had not provided confirmation he had ceased smoking or his black outs had been eliminated. Huber responded by again requesting a six-month temporary driver’s license and sending another evaluation from Dr. Freeman. In this evaluation, Dr. Freeman stated with reasonable medical certainty Huber did not have seizures or narcolepsy, Huber has not had anymore episodes of cough syncope, and Huber continued to smoke. The Department informed Huber that Dr. Freeman’s evaluation did not confirm that Huber would not have any episodes in the future.

[¶ 7.] Huber again sent a letter requesting reinstatement of his license, either completely or with six-month reevaluations. Attached to this letter was another medical statement from Dr. Freeman. Dr. Freeman stated he “[did] not feel that [Huber] has a likelihood of recurrent spells of loss of consciousness.” In this medical statement, Dr. Freeman reported Huber told him that he had quit smoking. The Director of Driver Licensing told Huber that he had failed to provide medical documentation that he had quit smoking and Huber had continued to drive despite having his license cancelled.

[¶ 8.] On April 5, 2005, Huber requested a hearing. On May 24, 2005, the hearing was held before administrative law judge (ALJ), Julie M. Johnson. After the hearing, both Huber and the Department submitted briefs, proposed findings of fact, and conclusions of law. The ALJ created a proposed decision, findings of fact and conclusions of law that recommended the Department should not issue a driver’s license to Huber, nor restore his license based on SDCL 32-12-35. She forwarded the proposed decision to the Secretary of the Department of Public Safety, Tom Dravland. On July 5, 2005, Secretary Dravland accepted the ALJ’s proposed recommendation.

[¶9.] Huber appealed the decision to the circuit court. Both parties briefed the issues, but neither party requested permission to provide additional evidence. The circuit court affirmed the Department’s decision. Huber appeals and raises three issues. He alleges the evidence does not support the decision to deny his license under SDCL 31-12-35, that the procedural process of SDCL 1-26-24 was not followed at the administrative level and the circuit court abused its discretion in failing to admit additional evidence.

STANDARD OF REVIEW

[¶ 10.] In appeals from administrative agencies, “[o]ur standard of review is controlled by SDCL 1-26-37.” Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 15, 711 N.W.2d 244, 247 (quoting Kassube v. Dakota Logging, 2005 SD 102, ¶ 25, 705 N.W.2d 461, 465). “When a circuit court has reviewed an administrative agency’s decision, we review the agency’s decision unaided by any presumption that the circuit court’s decision was correct.” Meligan v. Dept. of Revenue and Regulation, 2006 SD 26, ¶ 13, 712 N.W.2d 12, 17 (quoting Kassube, 2005 SD 102, ¶ 25, 705 N.W.2d at 465). “The Department’s factual findings and credibility determinations are reviewed under the clearly erroneous standard.” Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247 (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83) (additional citations omitted). “Questions of law are reviewed de novo.” Id. ¶ 16.

[¶11.] 1. Whether SDCL 32-12-35 may be used to deny Huber a license.

[¶ 12.] Huber makes several arguments that it was inappropriate for the Department to deny him licensure. He claims that the Department erred under all six subsections of SDCL 1-26-36, namely that the factual determinations were clearly erroneous, arbitrary and capricious, and constitute an abuse of discretion. He claims the facts the Department relied on are no longer present, and his current situation does not qualify for denial of his license. His main contention is that the Department cannot use SDCL 32-12-35 to deny licensure when more specific statutes apply to his factual situation. SDCL 32-12-35 provides, “[t]he Department of Public Safety shall not issue any license under this chapter to any person when the department has good cause to believe that the operation of a motor vehicle on the highways by such person would be inimical to public safety or welfare.”

[¶ 13.] In contrast, Huber claims there are more specific statutes that apply to these facts. Specifically, SDCL 32-12-49(3) and SDCL 32-12-32 prevent licen-sure if a person is incompetent to drive due to a mental or physical condition. Huber claims the Department is essentially arguing that he is physically or mentally incapable of driving, but cannot meet the tests under the specific statutes. According to Huber, the Department is impermis-sibly relying on the “catch-all” language of SDCL 32-12-35 to deny him a license.

[¶ 14.] This is a question of statutory interpretation. “Statutes are to be construed to give effect to each statute [ ] so as to have them exist in harmony. It is a fundamental rule of statutory construction that the intention of the law is to be primarily ascertained from the language expressed in the statute.” State v. $1,010 in American Currency, 2006 SD 84, ¶ 8, 722 N.W.2d 92, 94 (citing In re Estate of Meland, 2006 SD 22, ¶6, 712 N.W.2d 1, 2) (additional citations omitted). When determining legislative intent, “we assume no part of its statutory scheme be rendered mere surplusage.” Double Diamond Const. v. Farmers Co-op. Elevator Ass’n of Beresford, 2003 SD 9, ¶ 7, 656 N.W.2d 744, 746. Furthermore, “general statutes must yield to specific statutes if they are not consistent.” Wildeboer v. South Dakota Junior Chamber of Commerce, Inc., 1997 SD 33, ¶ 24, 561 N.W.2d 666 (citing U.S. Dumber, Inc. v. Fisher, 523 N.W.2d 87, 91 (S.D.1994)) (additional citations omitted).

[¶ 15.] The Department cited many reasons for denying Huber a license. Not only had he blacked out while driving on more than one occasion, but he killed two pedestrians during one of these episodes. While Huber points to his doctors’ medical statements that they believe he should be allowed to drive without restriction, the same doctors agree that there is no guarantee that a future loss of consciousness will not occur. Moreover, Dr. Freeman stated Huber’s cough syncope would be greatly reduced if Huber quit smoking completely. However, there was no medical testimony to support Huber’s claim he had quit smoking. The Department also emphasized Huber had been cited for several accidents and other traffic violations, many of which occurred while he was not licensed to drive.

[¶ 16.] There is no requirement the Department rely solely on one statute or one set of facts in its decision to deny a license. The legislature plainly stated “the Department ... shall not issue any license ... when [it] has good cause to believe that the operation of a motor vehicle on the highways by such person would be inimical to public safety or welfare.” SDCL 32-12-35. Contrary to Huber’s argument, there is no reason the Department has to rely solely on one fact and one statute in its determination. Under SDCL 32-12-35, the Department can look at all the facts and as long as it has “good cause to believe” the person’s driving “would be inimical to public safety and welfare,” they cannot grant a license. The Department’s findings of facts are not clearly erroneous. The decision made by the Department to deny Huber a license does not violate SDCL 1-26-36 and we affirm.

[¶ 17.] 2. Whether the final decision was issued using improper procedure.

[¶ 18.] Huber alleges that the Department violated its administrative procedures when it issued the final decision denying his license. Huber claims SDCL 1-26-24 was violated, which provides:

When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a tentative or proposed decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral arguments to the officials who are to render the decision. The tentative or proposed decision shall contain a statement of the reasons therefor and findings of fact on each issue and conclusions of law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this section.

Huber claims the Department violated SDCL 1-26-24 because there is no evidence Secretary Dravland actually read the record.

[¶ 19.] Contrary to Huber’s claims, the final decision issued by the Department contains a clear statement by Secretary Dravland that he reviewed the record and proposed decision prior to issuing the final decision. While Huber contends that this “boilerplate” language is insufficient, it does provide evidence that the Secretary read the record and that the procedural requirements of SDCL 1-26-24 were followed. Huber has only made broad allegations to support his contention, but has not pointed to any evidence to demonstrate the circuit court’s finding that Secretary Dravland did read the record was clearly erroneous. Since the record reflects that Secretary Dravland did read the record, SDCL 1-26-24’s procedures were not violated.

[¶20.] 3. Whether the circuit court abused its discretion by denying Huber’s request for a hearing.

[¶ 21.] Huber claims the circuit court abused its discretion when it denied his request for a hearing. Huber claims that the circuit court should have conducted a hearing in order to admit additional evidence. The Department contends that Huber did not request the opportunity to present additional evidence, and the failure to do so precludes determining this issue on appeal.

[¶ 22.] The decision to grant or deny oral argument is discretionary. See SDCL 1-26-35. “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Dacy v. Gors, 471 N.W.2d 576, 580 (S.D. 1991) (additional citations omitted). The standard for reviewing abuse of discretion is “whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.” Id. The circuit court already determined that Secretary Dravland read the record, SDCL 1-26-24 had been followed and “no reason exits to take additional evidence as provided [] in SDCL 1-26-35.” In order to find the circuit court abused its discretion, we would have to believe a “judicial mind ... could [not] reasonably” denied a hearing. See id.

[¶ 23.] The record indicates Huber asked for oral argument, but did not ask the circuit court for the opportunity to present additional evidence. As we have noted, failure to ask the court’s permission to present additional evidence precludes our consideration of the matter. Lee v. South Dakota Bd. of Pardons and Paroles, 2005 SD 103, ¶ 10, 705 N.W.2d 609, 612 (citing Weber v. South Dakota Dept. of Labor, 323 N.W.2d 117, 120 (S.D.1982)). For these reasons, there is no showing the circuit court abused his discretion.

[¶ 24.] We affirm.

[¶ 25.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . The accident resulted in three cases previously before this Court. See Gloe v. Union Ins. Co., 2005 SD 30, ¶¶ 1-2, 694 N.W.2d 252, 254-55; Gloe v. Iowa Mut. Ins. Co., 2005 SD 29, ¶ 1, 694 N.W.2d 238, 239-40; Nelson v. Farmers Mut. Ins. Co. of Nebraska, 2004 SD 86, ¶ 2, 684 N.W.2d 74-75.

      . Cough syncope is:
      a temporary loss of consciousness that may be induced by a severe spasm of coughing. This is the result of the high pressure that may be induced in the chest ... by such a spasm, which prevents the return of blood to the heart. The veins in the neck begin to bulge and the blood pressure falls; this may so reduce the blood flow to the brain that the individual feels giddy and may then lose consciousness.
      Black's Medical Dictionary 168 (41st ed. 2006).

      . Huber raises four issues in his brief; however, issues one and two can be consolidated into one issue and will be discussed as one issue in this opinion.

      . SDCL 32-12-49 reads in relevant part:
      The secretary of the Department of Public Safety may suspend, revoke, or cancel the driving privilege or license of a person after opportunity for hearing pursuant to chapter 1-26 if hearing is demanded, upon a showing by its records or other sufficient evidence that the licensee:

      (3) Is physically or mentally incompetent to drive a motor vehicle.

      .SDCL 32-12-32 provides:
      The Department of Public Safety may not issue any license under this chapter to any person who is physically or mentally incapable to drive. The Department of Public Safety may promulgate rules, pursuant to chapter 1-26, to establish criteria for determining an individual's physical or mental capability to drive.

      . SDCL 1-26-35 provides:
      The review shall be conducted by the court without a jury and shall be confined to the record. A trial de novo may not be granted unless otherwise authorized by law, but in cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, may hear oral argument.


author: KONENKAMP, Justice.

text:
    2006 SD 94
    STATE of South Dakota, Plaintiff and Appellee, v. Alemu Tadele BERHANU, Defendant and Appellant.
    No. 23760.
    Supreme Court of South Dakota.
    Argued Oct. 3, 2006.
    Decided Nov. 1, 2006.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Scott B. Carlson, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Defendant appeals his convictions for attempted first degree murder and two counts of aggravated assault. We affirm.

Background

[¶ 2.] Abraham Sandal was scheduled to work at Wal-Mart in Sioux Falls, South Dakota, at 11:00 p.m. on January 7, 2005. He decided to go to work around 10:00 p.m. that evening because he wanted an extra hour of work. After he arrived and parked his vehicle in the Wal-Mart parking lot, he began walking toward the store entrance. At the same time, defendant Alemu Berhanu, a fellow employee and former friend, sat in his parked car just a few spaces away from where Sandal had parked.

[¶ 3.] As Sandal was walking toward the store, Berhanu pulled out of his parking space and drove toward Sandal. Ber-hanu accelerated and ran his vehicle into him. The impact of the collision caused Sandal’s body to bounce off the front of Berhanu’s car. Sandal rolled off and got caught underneath. Berhanu continued driving forward with Sandal still pinned underneath his car. He drove between two concrete-based poles used to designate handicap parking. The right side of his car grazed one pole, yet Berhanu continued to drive toward the front of the Wal-Mart store. He did not stop until he ran into a car occupied by George Zahn. Zahn was parked in front of the store waiting for his wife to return. The collision sandwiched Zahn’s vehicle between Berhanu’s car and the Wal-Mart store, thereby pinning Zahn inside his vehicle. Sandal was still trapped underneath Berhanu’s car.

[¶4.] Berhanu got out of his car and began to walk away. Moments later, a bystander who witnessed him driving over Sandal, stopped Berhanu and restrained him until law enforcement officers arrived. Thereafter, Berhanu was taken into custody and charged with (1) attempted first-degree murder of Sandal, (2) aggravated assault on Sandal, (3) aggravated assault with a dangerous weapon against Zahn, and (4) violation of a protection order.

[¶ 5.] At the close of his jury trial, Ber-hanu moved the court for a judgment of acquittal, claiming that the evidence was insufficient to establish guilt for attempted murder and two counts of aggravated assault. The trial court denied Berhanu’s motion, and the jury found him guilty of all four charges. He was sentenced to twenty-five years for attempted first-degree murder, fifteen years for the aggravated assault against Zahn, and one year for violating a protection order. The court did not impose a sentence for the aggravated assault on Sandal. The fifteen and twenty-five year sentences were ordered to be served consecutively, with the one year sentence to be served concurrently. The court also ordered restitution of $458,084.94 for Sandal’s medical expenses.

[¶ 6.] On appeal, Berhanu asserts that (1) there was insufficient evidence to support the jury’s verdict beyond a reasonable doubt, and (2) his consecutive sentences amount to cruel and unusual punishment.

Standard of Review

[¶ 7.] “In measuring evidentiary sufficiency, we ask ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” State v. Disanto, 2004 SD 112, ¶ 14, 688 N.W.2d 201, 206 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). We will set aside a jury verdict only “where the evidence and all reasonable inferences to be drawn therefrom fail to sustain a rational theory of guilt.” State v. Hage, 532 N.W.2d 406, 410 (S.D.1995) (citations omitted).

The denial of a motion for judgment of acquittal presents a question of law, and thus our review is de novo. See United States v. Staula, 80 F.3d 596, 604 (1st Cir.1996). We must decide anew whether the evidence was sufficient to sustain a conviction. SDCL 23A-23-1 (Rule 29(a)); State v. Guthrie, 2001 SD 61, ¶ 47, 627 N.W.2d 401, 420-21; see also 2 Steven Alan Childress & Martha S. Davis, Federal Standards of Review § 9.10 (3d ed. 1999) (citing United States v. Scott, 437 U.S. 82, 100, 98 S.Ct. 2187, 57 L.Ed.2d 65 n. 13, 437 U.S. 82, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 n. 13, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)).

Disanto, 2004 SD 112, ¶ 14, 688 N.W.2d at 206. See also State v. Tofani, 2006 SD 63, ¶ 35, 719 N.W.2d 391, 399. Whether a sentence is cruel and unusual in violation of our state and federal constitutions is a question of law reviewed de novo. State v. Smiley, 2004 SD 119, ¶ 4, 689 N.W.2d 427, 429; State v. Bonner, 1998 SD 30, 1117, 577 N.W.2d 575, 580.

Analysis and Decision

[¶ 8.] Berhanu argues that the State failed to produce sufficient evidence establishing each element of attempted first-degree murder. He maintains that he did not intend to kill Sandal, but only meant to scare him. Moreover, he claims that the State failed to present evidence establishing his state of mind, and therefore, did not prove beyond a reasonable doubt that he had a “premeditated design to effect the death” of Sandal. In response, the State argues that at the very least Berhanu formed the intent to kill Sandal moments before he intentionally drove his car over him. This conclusion, the State contends, is supported by witness testimony and from the Wal-Mart surveillance video, showing that Berhanu intentionally drove into Sandal. Moreover, the State asserts that because of Berhanu and Sandal’s troubled relationship, there is further evidence to support an intent to kill Sandal.

[¶ 9.] At trial, the State offered the testimony of Detective Bruce Millikan from the Sioux Falls Police Department. Detective Millikan interviewed Berhanu after he was arrested. The interview was recorded and the tape was entered into evidence at trial. The tape was not played in open court, but Detective Millikan summarized for the jury the substance of the interview. He stated that Berhanu told him how he and Sandal had both immigrated to the United States from Ethiopia. They had become friends about nine years ago when they worked together at John Morrell. Sandal eventually left Morrell and began working at Wal-Mart, and Ber-hanu left to work in Omaha, Nebraska. A short time later, however, Sandal convinced Berhanu to join him in Sioux Falls. He had told Berhanu he would get him a job at Wal-Mart and that Berhanu could live with him.

[¶ 10.] Berhanu told Detective Millikan that he came to Sioux Falls and began living with Sandal and working at Wal-Mart. It was at some point after this move that Sandal and Berhanu’s friendship deteriorated. Detective Millikan testified that Berhanu had several different stories on why the two began having problems. In one version, Berhanu said that Sandal wanted him to marry his sister who was still in Ethiopia so she could come to America. Then, because Berhanu did not want to, Sandal got upset. Berhanu also told the detective that Sandal started “intimidating him” by saying he got him the job at Wal-Mart, so he owed him a favor, and also threatened that he could get him fired.

[¶ 11.] Berhanu recalled for the detective two instances where he and Sandal fought publicly. The first was at a restaurant in Sioux Falls, where words were exchanged and drinks might have been thrown or spilled. The second was at a different restaurant, where the two again had a verbal disagreement. Berhanu explained that it was after this incident that Sandal sought and obtained a protection order against him. As a result of the protection order, Wal-Mart had to schedule Berhanu and Sandal for different work shifts. Berhanu told Detective Millikan how after the protection order was issued, Sandal began belittling him, calling him names at work, and telling coworkers and common friends that Berhanu was trying to kill him. This frustrated Berhanu, and Detective Millikan testified that “the overall attitude that I was picking up from my interview with Berhanu — [he was] frustrated with the courts, frustrate[d] with the lawyers, frustrated with [the] employer.”

[¶ 12.] Detective Millikan asked Ber-hanu about the evening of January 7, 2005, and why he ran his automobile into Sandal. According to the detective, Berhanu had several versions of how and why it happened:

One of the investigations was that Mr. Berhanu had gone to the store, [Wal-Mart], [to] check his schedule, his work schedule and that when he left the store, he was sitting in his car and saw that Abraham Sandal had come into the parking lot early, wasn’t suppose [sic] to be there that early and that Abraham Sandal looked at Berhanu and then that Abraham Sandal approached Mr. Ber-hanu and yelled at him, you are not suppose [sic] to be here and the next version was that Abraham Sandal actually walked from Sandal’s car to the [front] of Berhanu’s car and said if you’re going to hit me, go ahead and hit me, I’m not moving — called him on. Another version was that Mr. Berhanu didn’t feel like he had any other alternative but to run him over because he was blocking the roadway and Berhanu didn’t want to back up and go out a different way because he didn’t want to hit somebody else in the parking lot or back into a car. He then even went so far as to say this was the normal way he always drove out of the parking lot.

Detective Millikan had watched the Wal-Mart surveillance video tape, which recorded the entire incident in the parking lot, and knew that Sandal did not approach Berhanu or yell at him. He showed Ber-hanu the tape and then confronted him on his inconsistent stories. Berhanu’s only response was, “If that’s what you want to believe, that’s what you must believe.”

[¶ 13.] The State also called Sandal, who explained the nature and history of Berhanu and Sandal’s relationship. Sandal told the jury that the problems started after he and his girlfriend decided to get married, moved out of the apartment, and purchased a home. He disagreed with Berhanu’s statement to Detective Millikan that their problems arose because he wanted Berhanu to marry his sister. His sister, Sandal explained, is married, has been for 22 years, and has seven children. Nonetheless, he agreed that their friendship did deteriorate and that he did request and obtain a protection order against Berhanu in December 2004.

[¶ 14.] As for the evening of January 7, 2005, Sandal could not recall all the circumstances of the incident. He testified that he remembered parking his car and walking toward the entrance of Wal-Mart, when a car “was screaming behind” him. He turned back and looked at the car, but did not recognize it, because “[w]ithin a short time he was — within a second, the car was jumped at me — jumped on top of my whole body....” Beyond that rendition, Sandal remembered nothing else. However, the State offered the testimony of several witnesses, who saw Berhanu run into Sandal. Each witness explained how they saw Berhanu’s vehicle accelerate and proceed directly toward Sandal, which led each of them to believe that Berhanu had deliberately driven into Sandal.

[¶ 15.] First-degree murder is “perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being....” SDCL 22-16-4.

The term, premeditated design to effect the death, means an intention, purpose, or determination to kill or take the life of the person killed, distinctly formed and existing in the mind of the perpetrator before committing the act resulting in the death of the person killed. A premeditated design to effect death sufficient to constitute murder may be formed instantly before committing the act.

SDCL 22-16-5 (emphasis added). To be guilty of attempted first-degree murder, the State was required to prove beyond a reasonable doubt that Berhanu (1) had the specific intent to kill Sandal, (2) committed a direct act toward killing Sandal, and (3) failed or was prevented or intercepted in the perpetration of the crime. See Disanto, 2004 SD 112, ¶ 15, 688 N.W.2d at 206 (citations omitted); State v. Scherr, 2002 SD 140, ¶ 15, 654 N.W.2d 220, 223; SDCL 22-4-1.

[¶ 16.] Based on our review of the evidence, we conclude that a rational trier of fact could have found the essential elements of attempted first-degree murder and aggravated assault against Sandal beyond a reasonable doubt. The evidence presented by the State and reasonable inferences to be drawn therefrom support the verdict. See Hage, 532 N.W.2d at 410; see also State v. Motzko, 2006 SD 13, ¶ 6, 710 N.W.2d 433, 436-37. Although there is no evidence that Berhanu made any advanced preparation to kill Sandal, “extensive planning and calculated deliberation need not be shown to establish premeditation.” See State v. Owens, 2002 SD 42, ¶ 96, 643 N.W.2d 735, 758 (citations omitted). “The design to effect death need only exist for an instant before the commission of the crime.” Id. (citations omitted). The video evidence reveals that Berhanu drove directly into Sandal and did not attempt to avoid him or stop after he hit him. Even though Sandal was pinned underneath, Berhanu continued driving forward. It is undisputed that Sandal suffered life-threatening injuries and could have been killed by Berhanu.

[¶ 17.] Berhanu next argues that there was insufficient evidence to prove beyond a reasonable doubt the charge of aggravated assault with a dangerous weapon against Zahn. He concedes that an automobile is a dangerous weapon. However, he argues that the State failed to prove that he attempted to cause, or knowingly caused bodily injury as required under SDCL 22-18-1.1(2). Instead, he claims that the evidence merely established that he drove into Zahn’s car because it was in his direct line of travel, not because he attempted to cause bodily injury to Zahn.

[¶ 18.] To be guilty of aggravated assault with a dangerous weapon under SDCL 22-18-1.1(2), the State must prove beyond a reasonable doubt that Berhanu attempted to cause, or knowingly caused bodily injury to Zahn, with a dangerous weapon. “Knowingly” in this statute denotes “acts or circumstances where the result is likely to occur.” State v. Marshall, 495 N.W.2d 87, 89 (S.D.1993), overruled on other grounds, State v. Giroux, 2004 SD 24, 676 N.W.2d 139. Berhanu was aware that by driving his vehicle toward the entrance of Wal-Mart, he placed in danger any person or vehicle parked in his line of travel. Moreover, it is clear that Berhanu never attempted to stop his vehicle before it hit Sandal or collided with Zahn’s car. While he may not have tried to hit Zahn, his “act” of intentionally driving into Sandal, who was walking toward the entrance of the Wal-Mart store, and not stopping until he crashed into Zahn’s vehicle, was a result that was “likely to occur.” See Marshall, 495 N.W.2d at 89.

[¶ 19.] Berhanu’s last argument that his sentence amounts to cruel and unusual punishment is without merit. See State v. Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d 575, 580.

[¶ 20.] Affirmed.

[¶ 21.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . The Detective testified that the video of the interview was difficult to understand because several times there would be more than one person talking at a time. But, the detective took notes immediately after the interview. Jurors were allowed to view the interview videotape in the jury room if they so desired.