author: HANSON, Justice.

text:
    STATE of Minnesota, Appellant, v. Mohammad G. AL-NASEER, Respondent.
    No. A05-1394.
    Supreme Court of Minnesota.
    July 12, 2007.

      Lori Swanson, Attorney General, and Kelly O’Neill Moller, Assistant Attorney General, Saint Paul, MN, Brian J. Melton, Clay County Attorney, Moorehead, MN, for Respondent.
    John M. Stuart, State Public Defender, and Theodora Gaitas, Assistant State Public Defender, Office of the Public Defender, Minneapolis, MN, for Appellant.
   OPINION

HANSON, Justice.

The issue before us involves the mens rea element of the crime of criminal vehicular homicide for leaving the scene of an accident that caused the death of a human being. The district court found respondent Mohammad G. Al-Naseer guilty of the crime based on the finding that Al-Naseer knew that he had been involved in an accident. The court of appeals reversed, holding that the mens rea element required that the state prove beyond a reasonable doubt that the driver “knew or had reason to know that the accident caused bodily injury to or death of a person.” State v. Al-Naseer, 721 N.W.2d 623, 627 (Minn.App.2006) (Al-Naseer III). We adopt a mens rea standard that requires the state to prove beyond a reasonable doubt that Al-Naseer had knowledge that he had been involved in the type of accident that would impose a duty to stop, an accident with a person or another vehicle. Accordingly, we affirm the reversal of Al-Naseer’s conviction but remand to the district court for reconsideration of the verdict and for amended findings based on this mens rea standard.

In June 2002, a car driven by Al-Naseer struck and killed a person who was changing a tire along the side of Highway 10 near Glyndon, Minnesota. As a result of the victim’s death, Al-Naseer was charged with two counts of criminal vehicular homicide: (1) gross negligence under Minn. Stat. § 609.21, subd. 1(1) (2006) (“gross negligence”); and (2) leaving the scene of an accident under Minn.Stat. § 609.21, subd. 1(7) (2006) (“leaving-the-seene”).

At his first trial, Al-Naseer was convicted of both counts. The court of appeals affirmed the gross negligence conviction but reversed the leaving-the-seene conviction, concluding that “[t]he legislature has not clearly indicated its intent to dispense with a mens rea requirement, and the district court should have implied a knowledge requirement as a matter of law.” State v. Al-Naseer, 678 N.W.2d 679, 696 (Minn.App.2004) (“Al-Naseer I”). The court of appeals remanded the leaving-the-seene charge for a new trial, but did not specify the precise legal standard to be applied to determine mens rea. The state did not seek review of the reversal of the leaving-the-scene conviction.

We granted Al-Naseer’s petition for review of the gross negligence conviction to address whether the district court erred in refusing to instruct the jury on the lesser-included offense of careless driving. State v. Al-Naseer, 690 N.W.2d 744, 747-48 (Minn.2005) (“.Al-Naseer 17”). We reversed the gross negligence conviction and remanded for a new trial, holding that “the jury, as fact finder, was not given a jury instruction on the lesser-included offense of careless driving and therefore was not in a position to weigh whether Al-Naseer’s conduct constituted gross negligence or ordinary negligence.” Id. at 758.

On remand, Al-Naseer waived his right to a jury trial. The physical evidence and testimony at the second trial revealed the following facts. A friend of the victim, who was helping the victim change a flat tire at the time of the accident, testified that the back of the victim’s vehicle was well lit with three visible lights — two red flashing emergency lights and one constant white light from the trunk of the car; at the time of the impact, he heard a loud thud and then he saw the victim rolling in front of his car; and after the impact he saw Al-Naseer’s car continue driving and pull back from the shoulder of the road gradually onto the right lane of traffic with no “abrupt swerve.”

Trooper Randall Harms, a certified accident reconstructionist, testified that the victim’s vehicle was parked with flashers illuminated; there was a gouge and smudge on the roadway created by Al-Naseer’s vehicle running over the spare tire, showing that “a great amount of force was applied”; at the point of impact the victim was thrown between the two cars, causing a dent to the hood of Al-Naseer’s vehicle; Al-Naseer would have heard the impact because it created a loud noise; Al-Naseer would have felt a jolt; the impact sent debris from Al-Naseer’s car sliding down the road; when Al-Naseer’s car was stopped after the accident, one of the tires was flat, thus his vehicle would likely pull to one side; after the impact Al-Naseer had to steer his vehicle to get the vehicle back onto the highway; and when Al-Naseer’s car was stopped after the accident, Al-Naseer’s headlights were not working.

Al-Naseer did not testify at trial. Dil-worth police officer Jonathan Froemke testified that he pulled over Al-Naseer’s vehicle after he observed Al-Naseer’s vehicle traveling without any headlights. Officer Froemke testified that Al-Naseer was equivocal about whether he had hit something. Clay County Sheriffs Deputy Bruce Fleury, who joined Officer Froemke and Al-Naseer, testified that Al-Naseer stated, “Yes, I hit something just a few miles back,” but Al-Naseer would not clarify or expand on that admission except to say that he did not know what he had hit.

The district court found Al-Naseer not guilty of the gross negligence charge but guilty of the careless driving and leaving-the-scene charges. As to the mens rea element of the leaving-the-scene charge, the court found beyond a reasonable doubt that Al-Naseer “was aware and/or conscious that he had been involved in a motor vehicle accident and consciously and intentionally left the scene of the accident.”

Although the district court’s general verdict did not discuss the precise legal standard applied for determining mens rea, the court stated on the record, when announcing its verdict at the conclusion of trial, as follows:

The [cjourt interprets this statute that when a person dies as a result of an accident, it is not necessary for the defendant to actually know that he struck a person and killed him, but that it is only necessary for the defendant to know that he was involved in a motor vehicle collision. And the great damage to the vehicle and other circumstances I have just stated indicate to the [cjourt that the [sjtate has proven beyond a reasonable doubt that [Al-Naseer] was aware that he was involved in an accident.

(Emphasis added.)

The court of appeals reversed the leaving-the-scene conviction, concluding that the district court incorrectly determined that the mens rea standard only required that the driver knew that he hit “something.” Al-Naseer III, 721 N.W.2d at 626. The court of appeals concluded that the mens rea standard requires that “the driver knew or had reason to know that the accident caused bodily injury to or death of a person.” Id. at 627.

The statute under which Al-Naseer was charged is Minn.Stat. § 609.21, subd. 1(7), which provides:

A person is guilty of criminal vehicular homicide resulting in death and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if the person causes the death of a human being not constituting murder or manslaughter as a result of operating a motor vehicle:
(7) where the driver who causes the accident leaves the scene of the accident in violation of section 169.09, subdivision 1 or 6.

Minnesota Statutes § 169.09, subds. 1 and 6 (2000), referred to in section 609.21, subdivision 1(7), provides:

The driver of any vehicle involved in an accident resulting in immediately demonstrable bodily injury to or death of any person shall immediately stop the vehicle at the scene of the accident, or as close to the scene as possible, but shall then return to and in every event, shall remain at, the scene of the accident until the driver has fulfilled the requirements of this chapter as to the giving of information. The stop shall be made without unnecessarily obstructing traffic.
⅜ ⅜ ⅜ ⅜
The driver of a vehicle involved in an accident resulting in bodily injury to or death of any person shall, after compliance with the provisions of this section, by the quickest means of communication, give notice of the accident to the local police department, if the accident occurs within a municipality, or to a state patrol officer if the accident occurs on a trunk highway, or to the office of the sheriff of the county.

As can be seen, the statutes are silent about the mens rea element, which requires us to determine what degree of knowledge is required for this crime.

I.

We will first address two procedural concerns that could limit our review: (1) the failure of the state to seek review of Al-Naseer I and (2) the failure of Al-Naseer to argue for a more specific mens rea standard at the second trial.

As to the first concern, in Ah-Naseer I, the court of appeals held that the leaving-the-scene statute did not provide for strict liability because the legislature did not clearly indicate an intent to dispense with a mens rea element. 678 N.W.2d at 696. The court of appeals concluded that a mens rea element was implied. See id. The state did not seek further review of that holding and the second trial was conducted on the assumption that there was a mens rea element. The state argues, in its brief to this court, that the statute could be read to impose strict liability. Ordinarily, that argument would be precluded by the law of the case doctrine. See Sigurdson v. Isanti County, 448 N.W.2d 62, 66 (Minn.1989) (“Law of the case applies when the appellate court has ruled on a legal issue and remanded for further proceedings on other matters. The issue decided becomes law of the case’ and may not be relitigated in the trial court or reexamined in a second appeal.”).

As to the second concern, at the second trial Al-Naseer’s counsel appeared to accept a mens rea standard that only required proof that Al-Naseer knew he had been involved in an accident. In his opening statement he said that Al-Naseer could not be found guilty of leaving-the-scene “unless the state proves that Mr. Al-Naseer left with knowledge that the accident had occurred.” In his closing argument he said that the court must decide whether Al-Naseer knew that “he had an accident.” Al-Naseer’s counsel did not argue that the state must also prove either that Al-Naseer knew that the accident involved a “person” or that Al-Naseer knew that the accident involved “bodily injury to or death of a person.” Ordinarily, these two arguments would be precluded because they were not made in the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating that this court generally considers only those issues that were presented and considered by the district court).

The strict enforcement of these two procedural bars would severely restrict our ability to interpret the relevant statutes, and thus make any interpretation of questionable application to future cases. Accordingly, we exercise our discretion to consider all arguments concerning the mens rea standard for the leaving-the-scene statute.

II.

Statutory interpretation is a question of law that we review de novo. State v. Loge, 608 N.W.2d 152, 155 (Minn.2000). If the language of the statute is clear and free of all ambiguity we will apply the plain meaning. Id. If the meaning is not plain, but is ambiguous, we may ascertain the intention of the legislature by considering: (1) the occasion and necessity for the law; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained; (5) the former law; (6) the consequences of a particular interpretation; (7) the contemporaneous legislative history; and (8) legislative and administrative interpretation of the statute. Minn.Stat. § 645.16 (2006). In addition, we rely on certain presumptions, such as that the legislature does not intend a result that is absurd, impossible of execution, or unreasonable; the legislature intends the entire statute to be effective; and the legislature intends to favor the public interest against any private interest. MinmStat. § 645.17(1), (2), and (5) (2006).

The district court, court of appeals, and the parties each advance a different mens rea standard. From the most general to the most specific, they are: (1) the state supports, but does not primarily advocate for, a “strict liability” standard — that the driver simply failed to stop at the scene of an accident; (2) the district court applied an “accident” standard — that the driver knew that he was in an accident; (3) the state advocates for the “person or vehicle” standard — that the driver knew that he was in the type of an accident that would impose a duty to stop, meaning an accident involving a person or another vehicle; (4) Al-Naseer advocates for the “person” standard — that the driver knew that he was in an accident and that the accident involved another person; and (5) the court of appeals applied the “bodily injury or death” standard' — that the driver knew that he was in an accident, that the accident involved a person, and that the person sustained bodily injury or death.

There is a split of authority among other jurisdictions on the degree of knowledge required under leaving-the-scene statutes that are silent about the mens rea element.

In many jurisdictions, the statutes defining the offense of hit-and-run do not contain the express requirement of knowledge by the motorist of the accident, injury, or damage. In such jurisdictions, some courts have taken the view that proof of the defendant’s knowledge of the occurrence of the collision only was required, and it need not also be shown that the defendant knew of any resulting injury or damage. However, a number of courts have held that * * * proof of the defendant’s knowledge of both the collision and the resultant injury or damage was required.
In a few jurisdictions, courts have held * * * that * * * such proof [of a collision, injury, or damage] was not required in a prosecution under the statute, essentially making the offense one of strict liability, although noting that a showing of a lack of knowledge may be a valid defense.

Marjorie A. Caner, Annotation, Necessity And Sufficiency of Showing, In Criminal Prosecution Under “Hit-And-Run” Statute, Accused’s Knowledge of Accident, Injury, or Damage, 26 A.L.R.5th 1, 22-23 (1995) (internal cross-references omitted).

At least one state has held that strict liability applies where the statute is silent about mens rea in a leaving-the-scene statute. See People v. Manzo, 144 P.3d 551, 559 (Colo.2006). The Colorado Supreme Court concluded that the driver’s failure to perform his duty to stop at the scene, render aid, and fulfill other statutory requirements satisfied the mens rea standard because it constituted an omission to perform an act that the driver was capable of performing. Id. at 555.

Some courts have determined that the mens rea standard only requires that the driver know that an accident has occurred. See, e.g., Dettloff v. State, 120 Nev. 588, 97 P.3d 586, 590 (2004) (noting the additional requirement of proof that the driver have knowledge that the accident caused bodily harm would defeat the public interest and encourage drivers to hastily retreat in order to avoid gaining knowledge that someone was injured); State v. Vela, 100 Wash.2d 636, 673 P.2d 185, 188 (1983) (concluding that any requirement of additional knowledge “would tend to defeat the public interest which is served by requiring persons involved in vehicle collisions to stop and provide identification * * * and to be available to render assistance if required”); State v. Wall, 206 Kan. 760, 482 P.2d 41, 45 (1971) (noting that only requiring knowledge that an accident has occurred is consistent with the humanitarian purpose of the statute).

One court determined that the mens rea standard requires proof of knowledge that there was an accident and that the accident involved a “person.” See People v. Digirolamo, 179 Ill.2d 24, 227 Ill.Dec. 779, 688 N.E.2d 116, 124 (1997). The Illinois Supreme Court said that the requirement that the state prove knowledge that the accident involved a person “best effectuates the legislative intent” because “the only reason for this substantial increase in the penalty * * * is because a person, as opposed to a piece of property, has been injured.” Id. (emphasis in original).

Other courts have held that the mens rea standard requires proof of knowledge that there was an accident, that the accident involved a person, and that the person was injured. In People v. Holford, the California Supreme Court concluded that the appropriate mens rea standard is one that attaches criminal liability to “a driver who knowingly leaves the scene of an accident if he actually knew of the injury or if he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person.” 63 Cal.2d 74, 45 Cal.Rptr. 167, 403 P.2d 423, 427 (1965). See also, e.g., State v. Dumas, 700 So.2d 1223, 1225-26 (Fla.1997) (requiring knowledge of an injury but not of death); Micinski v. State, 487 N.E.2d 150, 152-53 (Ind.1986) (requiring knowledge of an injury); State v. Sidway, 139 Vt. 480, 431 A.2d 1237, 1240 (1981) (requiring constructive knowledge of an injury: “It is not necessary to show, by direct or circumstantial evidence, that the defendant had actual knowledge of any resultant injury or damage. If an impact occurs under such circumstances that a reasonable person would anticipate injury to person or property, knowledge of that fact is imputed to the driver.”).

The “Strict Liability” Standard

In its brief to this court, the state suggests that we could conclude that criminal vehicular homicide for leaving-the-scene is a strict liability crime, but at oral argument the state conceded that the statute required some level of knowledge and was therefore not a strict liability crime. We agree that both section 169.09, subdivisions 1 and 6, and section 609.21, subdivision 1(7), require some level of knowledge and are not strict liability statutes.

We have said that strict liability offenses are disfavored. State v. Arkell, 672 N.W.2d 564, 567 (Minn.2003). And the rule of lenity requires that we construe a statute against strict criminal liability. See id. This is particularly true for traffic offenses. In City of Minneapolis v. Altimus, we said:

While general traffic offenses do not require that the wrongdoer specifically intend to commit the crime for which he is charged, we have held that before criminal liability can attach it is essential that the defendant intentionally or negligently do the act which constitutes the crime.

306 Minn. 462, 466, 238 N.W.2d, 851, 855 (1976).

Here, the act of continuing to drive (or failing to stop) is not criminal in itself, but only becomes criminal if the driver has caused an accident that is of the type that imposes a legal obligation to stop. In order for a person to be criminally liable for failing to stop, basic fairness requires that the person be on notice that events that trigger the legal duty to stop have occurred.

This conclusion is consistent with the distinctions we made in our decisions in State v. Benniefield, 678 N.W.2d 42 (Minn. 2004), and In re C.R.M., 611 N.W.2d 802 (Minn.2000). In Benniefield, we held that knowledge that a defendant was in a school zone was not required because the underlying act of possession of illegal drugs was already a crime. 678 N.W.2d at 48-49. But, in In re G.R.M., we held that knowledge that the defendant possessed a knife on school property was required because possession of a knife was not a crime in all circumstances. 611 N.W.2d at 810. Similarly, because failure to stop is not a crime in all circumstances, knowledge that an event has occurred that triggered the duty to stop is required.

The “Bodily Injury to or Death of any Person” Standard

To the other extreme, the court of appeals construed subdivision 1 of section 169.09 as requiring that the state prove that Al-Naseer knew or should have known three facts: that (1) he was involved in an accident; (2) the accident was with a person; and (3) the person sustained bodily injury or death. Al-Naseer III, 721 N.W.2d at 626-27.

The court of appeals relied in part on the words “an accident resulting in immediately demonstrable bodily injury to or death of any person,” contained in section 169.09, subdivision 1, as reinforcing its interpretation. See Al-Naseer III, 721 N.W.2d at 626. But, as the state points out, it is more likely that the legislature included the phrase “immediately demonstrable” to prevent criminal liability for leaving-the-scene after first stopping, where the victim does not complain of injury at the scene of the accident. And, although section 609.21, subdivision 1(7), applies where the driver violates either subdivision 1 or 6 of section 169.09, subdivision 6 does not include “immediately demonstrable” language.

It may be impossible for the driver to know, without stopping, whether or not the accident produced bodily injury or death. In fact, the requirement that the bodily injury or death be “immediately demonstrable” suggests that the driver has performed some investigation. Stated another way, if the duty to stop only arises when the driver can perceive, at the moment of the accident, that the person has an immediately demonstrable bodily injury, the duty to stop will be severely reduced. This is inconsistent with the public safety purposes of section 169.09, to encourage drivers to stop, to notify authorities, and to give aid.

Finally, the court of appeals’ interpretation would be particularly limiting when applied to some of the other subdivisions of section 609.21. In 1996, when the legislature amended section 609.21 to add the leaving-the-scene offense, it inserted that crime within each of the six subdivisions that describe criminal vehicular crimes: criminal vehicular homicide resulting in death (subdivision 1), criminal vehicular operation resulting in great bodily harm (subdivision 2), criminal vehicular operation resulting in substantial bodily harm (subdivision 2a), criminal vehicular operation resulting in bodily harm (subdivision 2b), criminal vehicular operation resulting in death to an unborn child (subdivision 3), and criminal vehicular operation resulting in injury to an unborn child (subdivision 4). Act of Apr. 11, 1996, ch. 442, § 33, 1996 Minn. Laws 1176, 1194-1198. Applying the court of appeals’ interpretation of the mens rea standard of section 609.21 would render subdivisions 3(7) and 4(7) virtually meaningless because it would require that the driver not only know that he hit a person who had immediately demonstrable bodily injury, but also know that there was injury to an unborn child.

Ultimately, we reject the requirement of knowledge of bodily injury or death because a driver has an affirmative duty to stop in situations where there has been no bodily injury or death. For example, a driver has a statutory duty to stop if the driver has an accident involving an unattended vehicle. See Minn.Stat. § 169.09, subd. 4 (2006). We conclude that the mens rea standard must relate to the culpable act (failing to stop when there was a duty to stop), not to the consequences of that act (causing property damage or bodily injury).

The “Accident” Standard

The district court applied an “accident” mens rea standard that only required proof that the driver knew that there was an accident. This standard would be appropriate if there was a legal requirement to stop for every type of accident, because then knowledge of any accident would put the driver on notice of the duty to stop. But some accidents do not impose a duty to stop, and thus knowledge of an accident alone is not sufficient to satisfy the mens rea element.

The “Person” Standard

Al-Naseer argues that a driver is required to know that (1) he had an accident, and (2) the accident involved a “person.” We agree that this is part of the mens rea standard, but we do not agree that the required knowledge is limited to the involvement of a person because the statutes also impose a duty to stop if the driver’s vehicle hit another vehicle, whether occupied or unattended. Minn.Stat. § 169.09, subds. 2 and 4 (2006).

The “Person or Vehicle” Standard

At oral argument the state made clear that it was advocating for a mens rea standard that would require knowledge that the driver’s vehicle was in an accident of the type that imposes a duty to stop— i.e., one involving a person or another vehicle. We agree that this is the appropriate standard because it bases the mens rea element on the culpable act.

This conclusion is supported, at least indirectly, by the court of appeals’ decision in State v. Angulo, which held that “a defendant who fires a gun intending to kill is put on notice that if a peace officer engaged in official duties is killed, whether or not the defendant knew the officer’s identity, the defendant will be charged [with an enhanced crime] under Minn.Stat. § 609.185(4).” 471 N.W.2d 570, 573 (Minn.App.1991), rev. denied (Minn. Aug. 2, 1991). Similarly, a driver who knows that he or she has been involved in an accident with a person or another vehicle is put on notice that there is a duty to stop, and the failure to stop justifies an enhanced crime where the accident results in the death of another person, whether or not the driver knew that the accident caused the death of another person.

This conclusion also serves the public welfare purpose of the statutes, to assure that drivers who are involved in an accident with a person or another vehicle stop, notify authorities, and give aid to any injured persons until the authorities arrive.

The “Reason to Know" Standard

The state’s full argument is that the mens rea element is satisfied if the driver knew “or had reason to know” that the accident involved a person or a vehicle. But we are reluctant to imply a negligence standard for criminal liability where the legislature has not expressed such a standard. Where the legislature has intended to include negligence in a criminal mens rea standard, it typically has done so expressly. Because the leaving-the-seene statute does not describe any mens rea standard, we decline to imply an intent to base criminal liability on a reason to know.

This is not to say that the state must prove knowledge by direct evidence. The proof of knowledge may be by circumstantial evidence. See State v. Siirila, 292 Minn. 1, 10, 193 N.W.2d 467, 473 (1971) (noting that it is permissible to infer that the defendant knew he had marijuana in his jacket from evidence that the marijuana was found in the jacket the defendant was wearing). Actual knowledge that there was a duty to stop is proven where the circumstantial evidence leads the fact finder to conclude, beyond a reasonable doubt, that the driver must have known that there was an accident that involved a person or a vehicle. See, e.g., Sidway, 431 A.2d at 1239-40 (stating that a driver’s actual knowledge of an accident may be proven by circumstantial evidence concerning the extent of the damage and the force of the impact); Tooke v. Commonwealth, 47 Va.App. 759, 627 S.E.2d 533, 536-37 (2006) (stating that the circumstantial evidence is sufficient to prove beyond a reasonable doubt that the defendant knew he had caused an accident in which occupants of the vehicle forced off the road would have sustained personal injury, where the evidence shows that two other drivers stopped and rendered aid or reported the accident and that the defendant had an opportunity to observe the accident equal to or better than that of the other drivers).

III.

We next consider whether the district court’s verdict applied this mens rea standard. The state argues that the district court’s verdict incorporated this standard because the court found that Al-Naseer was aware that he had been involved in a “motor vehicle accident.” The state argues that the words “motor vehicle accident” imply that the defendant’s vehicle hit a person or another vehicle. The state suggests that if the “driver hits a wild animal, for example, he has not been in an ‘accident.’ ”

We do not find this differentiated definition of “motor vehicle accident” in the statute and conclude that it cannot be implied from the context. Section 169.09 does not use the term “motor vehicle accident,” but repeatedly uses the term “accident” to describe both situations where there is a duty to stop and situations where there is no duty to stop. Compare Minn.Stat. 169.09, subd. 1 (stating that the driver who is “involved in an accident resulting in immediately demonstrable bodily injury to or death of any person shall immediately stop the vehicle” (emphasis added)), with Minn.Stat. § 169.09, subd. 5 (2000) (stating that the driver who is “involved in an accident resulting only in damage to fixtures legally upon or adjacent to a highway” need only notify the owner and report the accident (emphasis added)).

The state further argues that we can infer that the district court applied the “accident with a person or vehicle” standard from the finding that Al-Naseer “consciously and intentionally left the scene of the accident in violation of Minn. Stat. § 609.21, subd. 1(7).” But this finding simply begs the question of what standard was used to establish a violation of section 609.21, subdivision 1(7).

Accordingly, we affirm the reversal of Al-Naseer’s conviction but remand to the district court to reconsider its verdict based on the present record and to make amended findings in light of the mens rea standard that requires proof that Al-Na-seer knew that his vehicle was involved in an accident with a person or another vehicle.

Affirmed in part, reversed in part, and remanded for reconsideration.

      . The parties cite to the 2000 version of this statute, but neither subdivision 1(1) nor subdivision 1(7) have been amended since the accident at issue in this case, and thus we will refer to the 2006 version of section 609.21.

      . See, e.g., Benniefield, 678 N.W.2d at 48-49 (concluding that because the mere possession of drugs is an illegal act, the possessor need not know that the illegality is enhanced by possession in a particular location, such as school property).

      . See, e.g., Minn.Stat. § 169.09, subd. 5 (2006) (providing that the driver involved in an accident resulting in damage to fixtures legally upon or adjacent to a highway is only required to take reasonable steps to locate and notify the owner or person in charge of the property). As the state concedes, and Al-Naseer agrees, the statutes do not impose a duty to stop if a vehicle hits a deer, or a highway sign. Thus a person who does not know what his vehicle hit is not on notice that he has a duty to stop. In other words, knowledge of an accident alone is not enough to provide notice because certain accidents (animals and fixtures) do not require the driver to stop.

      . If the factfinder determines that the driver did not have knowledge that the accident was of the type that triggered the duty to stop, the mens rea element described above would not be satisfied. This may be a shortcoming in the statute because there could be good reason for the legislature to require such a driver to stop for the limited purpose of determining what type of accident occurred, and then to prohibit the driver from leaving the scene if the investigation reveals that the accident was of the type that imposed a duty to stop. But the statute as currently written cannot be reasonably read to include that requirement.

      . See, e.g., Minn.Stat. § 609.322, subd. 1(3) (2006) (“receives profit, knowing or having reason to know that it is derived from the prostitution” (emphasis added)); Minn.Stat. § 609.342, subd. l(e)(ii) (2006) ("the actor knows or has reason to know that the complainant is mentally impaired” (emphasis added)); Minn.Stat. § 609.53, subd. 1 (2006) ("knowing or having reason to know the property was stolen” (emphasis added)); Minn. Stat. § 609.749, subd. 1(1) (2006) (the actor knows or has reason to know [that the conduct] would cause the victim under the circumstances to feel frightened (emphasis added)).


source: Caselaw Access Project

author: COLLINS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Robert Andrew Lee KELLEY, Appellant.
    No. A06-408.
    Court of Appeals of Minnesota.
    June 26, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; WRIGHT, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge.

Appellant Robert Andrew Lee Kelley challenges his felony assault-in-the-fourth-degree conviction under Minn.Stat. § 609.2231, subd. 1 (2004), for spitting at a police officer, arguing that an independent physical assault is also required in order to constitute a felony offense. We affirm.

FACTS

On March 18, 2005, a police officer transported appellant Robert Andrew Lee Kelley and another man to the detoxification unit because the men were noticeably and publicly intoxicated. Both detainees yelled profanities, insults, and threats of bodily injury at the officer while enroute to the jail. The men also spat at the officer, although neither successfully made contact.

The state charged appellant with felony fourth-degree assault in violation of Minn. Stat. § 609.2231, subd. 1 (2004). Prior to trial, appellant moved to dismiss for lack of probable cause, arguing that “spitting at a police officer, unless accompanied by a physical assault, does not constitute felony fourth-degree assault.” The district court denied the motion, and appellant submitted his case for a bench trial on a stipulated record. The district court found appellant guilty and sentenced him to a stayed year-and-a-day prison term and three years’ probation. This appeal follows.

ISSUE

Does Minn.Stat. § 609.2231, subd. 1 (2004), require a physical assault in addition to “intentionally throwing] or otherwise transfer[ing] bodily fluids or feces at or onto the officer” to constitute a felony?

ANALYSIS

Statutory construction is a question of law, which we review de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). “The object of statutory interpretation is to effectuate the intent of the legislature.” State v. Koenig, 666 N.W.2d 366, 372 (Minn.2003) (citing Minn. Stat. § 645.16 (2002)). “The rules of statutory construction require that a statute’s words and phrases are to be given their plain and ordinary meaning.” Id. “When reviewing a statute, we assume that the legislature does not intend to violate the United States and Minnesota Constitutions or intend absurd or unreasonable results.” Id. “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation and citation omitted). “When the language of the statute is ambiguous, the intent of the legislature controls.” Koenig, 666 N.W.2d at 372. “A statute should be interpreted, whenever possible, to give effect to all of its provisions; no word, phrase, or sentence should be deemed superfluous, void, or insignificant.” Am. Family Ins. Group, 616 N.W.2d at 277 (quotation omitted).

We are “to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Id. A statute defining a criminal offense must be strictly construed so that all reasonable doubt concerning legislative intent is resolved in favor of the defendant. See State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002). But we need not adopt the narrowest possible construction. State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993).

Here, the challenged statutory language states:

Whoever physically assaults a peace officer ... when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor.... If the assault inflicts demonstrable bodily harm or the person intentionally throws or otherwise transfers bodily fluids or feces at or onto the officer, the person is guilty of a felony.

Minn.Stat. § 609.2231, subd. 1 (2004) (emphasis added).

Appellant presents a question of first impression. Appellant argues that the language is not ambiguous and that by the statute’s plain language, a person must not only intentionally transfer bodily fluids or feces at or onto a peace officer, but also commit a separate physical assault against the officer to be guilty of felony fourth-degree assault. He asserts that the second sentence of the statute enhances the first by creating two conditions that increase a gross-misdemeanor “physical assault” to a felony: (1) if “the physical assault” referred to in the first sentence inflicts demonstrable bodily harm, or (2) if “the person” referenced in the second sentence not only commits “the physical assault” referred to in the first sentence but also “intentionally throws or otherwise transfers bodily fluids or feces at or onto the officer.” Appellant argues that the second sentence provides “enhancement factors” and does not “creat[e] separate and distinct crimes.” We disagree.

The evolution of the statutory language evinces the legislature’s intent that the act of “intentionally throwing or otherwise transferring bodily fluids or feces at or onto the officer” is a felony and does not additionally require an independent physical assault. “Assault” is defined generally, and in the fifth-degree assault statute, as “(1) An act done with intent to cause fear in another of immediate bodily harm or death; or (2) The intentional infliction of or attempt to inflict bodily harm upon another.” Minn.Stat. § 609.02, subd. 10 (2004); Minn.Stat. § 609.224, subd. 1 (2004) (defining misdemeanor assault). “ ‘Bodily harm’ means physical pain or injury, illness, or any impairment of physical condition.” MinmStat. § 609.02, subd. 7 (2004).

Bodily fluids and feces can carry and transmit a variety of diseases. The transfer of bodily fluids or feces at or onto another can cause physical pain or injury, illness, or otherwise impair one’s physical condition. Intentionally throwing or transferring bodily fluids or feces at or onto another person therefore satisfies the requirements of simple, fifth-degree assault. Minn.Stat. § 609.224, subd. 1.

In 1998, Minn.Stat. § 609.2231, subd. 1, providing elevated penalties for certain assaults committed against peace officers, read, in part, “[wjhoever assaults a peace officer ... when that officer is effecting a lawful arrest or executing any other duty imposed by law and inflicts demonstrable bodily harm is guilty of a felony.” Id. (1998). Any lesser assault on a police officer would then fall under the fifth-degree misdemeanor-assault catch-all provision. See Minn.Stat. § 609.224, subd. 1 (1998). In 1998, the act of spitting at a police officer performing his duties would have been a fifth-degree assault.

In 2000, the fourth-degree assault statute was changed to read, “Whoever physically assaults a peace officer ... when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor .... If the assault inflicts demonstrable bodily harm, the person is guilty of a felony.” MinmStat. § 609.2231, subd. 1 (2000) (emphasis added). By this amendment, the legislature elevated an assault on a police officer performing his duties that does not result in demonstrable bodily harm from a misdemeanor to a gross misdemeanor under the fourth-degree assault statute, removing it from the fifth-degree misdemeanor-assault statute. In 2000, the act of spitting at a police officer performing his duties would have been a gross misdemeanor under the fourth-degree assault statute rather than a misdemeanor fifth-degree assault.

In 2004, the legislature again amended the statute to its current form. These successive statutory amendments show that the legislature has progressively increased punishments for various assaults against peace officers over the past ten years. Appellant’s argument that the legislature intended that a person not only transfer bodily fluids or feces at or onto a peace officer but also commit a separate physical assault on the officer runs counter to the legislature progressively increasing the severity of punishment for assaults against peace officers.

While we recognize that appellant’s interpretation would increase the punishment for intentionally throwing or otherwise transferring bodily fluids or feces onto or at a peace officer if the perpetrator also committed an independent physical assault on the officer, we do not agree that the legislature intended only the compound conduct to be punishable as a felony.

Appellant argues that the difference in wording between subdivisions 1 and 3 of Minn.Stat. § 609.2231 is significant and supports his interpretation. We disagree. Subdivision 3 states:

Whoever commits either of the following acts against an employee of a correctional facility ... or against a probation officer or other qualified person employed in supervising offenders while the employee, officer, or person is engaged in the performance of a duty imposed by law, policy, or rule is guilty of a felony ...:
(1) assaults the employee and inflicts demonstrable bodily harm; or
(2) intentionally throws or otherwise transfers bodily fluids or feces at or onto the employee.

Id., subd. 3 (2004). Appellant argues that because the legislature formatted the prohibition in subdivision 3 against transferring bodily fluids or feces at or onto someone differently than it formatted the subdivision 1 prohibition, the legislature must have intended a different result for the conduct under subdivision 1 than under subdivision 3.

The legislature added the specific felonious prohibition against transferring bodily fluids or feces at or onto a peace officer under subdivision 1 in 2004, after it prohibited the same conduct under subdivision 3, but chose to structure the statute differently than it did in subdivision 3. Id., subds. 1, 3. In 2005, the legislature added subdivision 3a, which prohibits the same felonious conduct as subdivisions 1 and 3, but against certain secure-treatment-facility workers. Id., subd. 3a (Supp.2005). The structure the legislature adopted in subdivision 3a mirrors the structure in subdivision 3, but not that in subdivision 1. Id., subds. 1, 3, 3a. We acknowledge that the legislature could have adopted a similar structure in subdivision 1 as it had already crafted in subdivision 3. But unlike subdivisions 3 and 3a, subdivision 1 includes two categories of offenses, gross misdemeanors and felonies. The subdivision 1 structure must therefore necessarily be different from subdivisions 3 and 3a. The legislature is not required to use identical structure or language to effect the same or similar intent, and we conclude that its decision not to use parallel structure in this case is not dispositive.

We also note that subdivisions 3 and 3a prohibit as felonies the intentional transfer of bodily fluids or feces at or onto corrections employees, probation officers, and certain secure-treatment-facility workers. Subdivisions 1, 3, and 3a prohibit similar conduct against various employees whose jobs require daily interaction with people in custody or under close supervision of the state. And subdivision 1 protects those who engage such people in the least-restrictive environment. The legislature has chosen to protect these public servants while conducting their business from having bodily fluids or feces intentionally thrown or otherwise transferred at or onto them by making such conduct a felony.

Reading and construing the statute as a harmonious whole, as we must, we see no indication that the legislature intended that the conduct proscribed under subdivision 1 toward peace officers carry a lesser penalty than the same conduct proscribed under subdivisions 3 or 3a toward corrections employees, probation officers, and certain secure-treatment-facility workers. We conclude that under Minn.Stat. § 609.2231, subd. 1, the conduct of spitting at a police officer is by itself a felony offense.

Appellant cites CRIMJIG 13.22 in support of his position. 10 Minnesota Practice, CRIMJIG 13.22 (Supp.2006). The CRIMJIG sets forth the elements of a fourth-degree assault against a peace officer, including that “the defendant [physically] assaulted_” CRIMJIG 13.22 (footnote omitted). After setting out the elements, for use in appropriate cases— particularly when the facts are such that the jury could have found only a different form of physical assault — the CRIMJIG provides a format for the jury to decide whether the defendant “thr[e]w or otherwise transferred] bodily fluids or feces at or onto the officer” and whether the defendant “act[ed] intentionally in doing so.” CRIMJIG 13.22. While we agree that in appropriate cases the CRIMJIG properly requires the jury to make additional findings that the defendant threw or otherwise transferred bodily fluids or feces at or onto an officer and did so intentionally, we do not agree that the CRIMJIG therefore necessarily requires that the conduct be in addition to the finding that the defendant physically assaulted the officer in some other manner. Instead, we read the CRIMJIG to require confirmation in appropriate cases that the physical assault the jury found took the form of intentionally throwing or otherwise transferring bodily fluids or feces at or onto the officer. Moreover, we note that jury instruction guides merely provide guidelines and are not mandatory rules; jury instruction guides are instructive, but not precedential or binding on this court. Appellant’s reliance on CRIMJIG 13.22 is unavailing.

Finally, appellant asserts that if legislative history must be consulted to determine the legislature’s intent, the statute is necessarily void for vagueness. We disagree. Courts rely on legislative history as only one tool to aid in discerning legislative intent. See Minn.Stat. § 645.16-17 (2004); see also State v. Richmond, 730 N.W.2d 62 (Minn.App.2007) (interpreting statute to determine legislative intent). “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement.” State v. Krawsky, 426 N.W.2d 875, 878 (Minn.1988) (quotation omitted). Reliance on or reference to legislative history to aid a court’s statutory interpretation does not necessarily render the scrutinized statute void for vagueness. Here, appellant does not allege that ordinary people cannot understand what conduct is prohibited nor that the statute encourages arbitrary or discriminatory enforcement. Appellant has not shown that the statute is void for vagueness.

DECISION

We conclude that the statute’s language is not ambiguous. Generally, physical assaults on peace officers are gross misdemeanors. But if the assault results in demonstrable bodily harm or if the assault is in the form of an intentional throwing or otherwise transferring of bodily fluids or feces at or onto an officer, then the assault is a felony. Even if the statute’s language is ambiguous, legislative history supports our interpretation. The conduct of spitting at a police officer was correctly charged as a felony.

Affirmed.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.


author: WILLIS, Judge.

text:
    Aaron R. CARLSON, et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Respondent, Midwest Family Mutual Insurance Company, Respondent, and Allstate Insurance Company, defendant and third party plaintiff, Respondent, v. Michael J. Fay, et al., third party defendants, Respondents.
    No. A06-1664.
    Court of Appeals of Minnesota.
    July 11, 2007.

      Darrold E. Persson, David A. Arndt, Matonich & Persson, Hibbing, MN, for appellants.
    Robert C. Barnes, McCarthy & Barnes, PLC, Duluth, MN, for respondent Allstate Insurance Company.
    Karen K. Hatfield, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for respondent Midwest Family Mutual Insurance Company.
    Rolf E. Sonnesyn, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, MN, for respondent Michael J. Fay, et al.

      Considered and decided by RANDALL, Presiding Judge; WILLIS, Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

WILLIS, Judge.

Appellants challenge the district court’s grant of summary judgment to respondent insurance company. Appellants argue that (1) under the plain language of the insurance policy, appellant Aaron Carlson is entitled to uninsured-motorist coverage for injuries that he suffered as a pedestrian or (2) even if the plain language of the policy does not provide coverage for Carlson, appellants had a “reasonable expectation” of uninsured-motorist coverage that must be honored by the insurance company. Appellants argue also that because Carlson “is insured” by the Allstate policy, uninsured-motorist coverage is mandated by Minn.Stat. § 65B.49, subd. 8a(5) (2006). We affirm.

FACTS

On January 1, 2003, appellant Aaron Carlson (Carlson) parked his 2002 Ford Focus on Lyndale Avenue in Minneapolis and began walking across the street. As he reached the centerline of Lyndale Avenue, an uninsured motorist who had been parked on the opposite side of the street made a U-turn and struck Carlson. As a result, Carlson suffered several injuries, including a significant injury to his right knee. The Ford Focus was leased for Carlson by his father, appellant Robert Carlson, who added the vehicle to his automobile-insurance policy with respondent Allstate Insurance Company (Allstate).

In April 2004, Carlson obtained a default judgment in the amount of $170,000 against the uninsured motorist who struck him. Appellants then brought a suit against Allstate and Midwest Family Mutual Insurance Company (Midwest), the assigned servicing carrier for the Minnesota Assigned Claims Bureau. Appellants claimed damages in excess of $50,000 against Allstate under the uninsured-motorist provisions of the insurance policy and alleged that if Allstate were to be found not to be liable, Midwest would be liable to Carlson for no-fault benefits. The parties brought cross-motions for summary judgment. The district court granted Allstate’s motion against appellants and granted appellants’ motion against Midwest. This appeal follows.

ISSUES

I. Did the district court err when it determined that the Allstate policy did not provide uninsured-motorist coverage to Carlson when he was injured while walking across the street?

II. Did the district court err when it determined that appellants did not have a reasonable expectation of coverage for Carlson’s injuries?

III. Did the district court err when it determined that the Minnesota No-Fault Automobile Insurance Act does not mandate uninsured-motorist coverage for Carlson?

ANALYSIS

On an appeal from summary judgment, this court determines (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We must view the record in a light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). There is no genuine issue of material fact when the record taken as a whole would not permit a rational fact-finder to find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). Thus, when the nonmoving party bears the burden of proof on an element essential to the non-moving party’s case, the nonmoving party must make a showing sufficient to permit reasonable persons to draw different conclusions regarding that essential element. Id. at 71.

I.

Appellants argue first that the district court erred when it determined that the Allstate policy did not provide uninsured-motorist coverage to Carlson for his injuries. The construction of an insurance policy is a question of law, which we review de novo. Steele v. Great W. Cas. Co., 540 N.W.2d 886, 888 (Minn.App.1995), review denied (Minn. Feb. 9, 1996). A court construes an insurance policy according to the plain and ordinary meaning of the text with the purpose of effectuating the parties’ intent. Canadian Universal Ins. Co. v. Fire Watch, Inc., 258 N.W.2d 570, 572 (Minn.1977). When construing a policy, a court should consider both the policy and any endorsements, and should give effect to all of the provisions. Steele, 540 N.W.2d at 888. But the policy is “construed according to what a reasonable person in the position of the insured would have understood the words to mean,” not what the insurance company intended the text to mean. Canadian, 258 N.W.2d at 572. And any reasonable doubt as to the meaning of the policy is resolved in favor of the insured. Steele, 540 N.W.2d at 888.

Under the policy at issue here, Allstate agrees to pay an “insured person” damages for bodily injury that the insured person “is legally entitled to recover from the owner or operator of an uninsured or underinsured auto” if the injury is caused “by [an] accident and arise[s] out of the ownership, maintenance or use of an uninsured or underinsured auto.” The policy defines an “insured person” as (1) “[y]ou and any resident”; (2) “[a]ny person while in, on, getting into or out of an insured auto with your permission”; and (3) “[a]ny other person [who] is legally entitled to recover because of bodily injury to you, a resident, or an occupant of your insured auto with your permission.” And the policy defines “you” as “the policyholder named on the Policy Declarations and that policyholder’s [resident] spouse,” and “resident” as “a relative who actually resides in” the policyholder’s household.

There is no dispute that Carlson’s injuries were caused by an accident that arose out of the use of an uninsured motor vehicle, nor is it disputed that when he was injured, Carlson was not residing in his parents’ home in Hibbing, but rather lived in Minneapolis, and that Carlson was not “in, on, getting into or out of an insured auto.” Thus, under the policy, Carlson is entitled to uninsured-motorist coverage for his injuries only if he is a “policyholder.”

Appellants note that the policy-declarations page does not use the term “policyholder” and argue that Carlson is a “policyholder” because he is identified on the policy-declarations page as a listed driver. We disagree. While the policy-declarations page does not use the term “policyholder,” it does identify the “named insured(s),” and the named insureds are Robert and Gail Carlson only. The policy-declarations page identifies Carlson only as one of the “driver(s) listed.” Given the facts that Robert Carlson acquired the policy and paid the premiums, we conclude that a reasonable person would understand that the policyholders are the “named insured(s),” not the listed drivers.

We conclude, therefore, that because Carlson is not a policyholder, Carlson is not entitled to uninsured-motorist coverage for his injuries under the plain language of the policy.

II.

Appellants next argue that under the doctrine of reasonable expectations, Carlson is entitled to uninsured-motorist coverage. The doctrine of reasonable expectations protects the objectively reasonable expectations of an insured even if a close study of the insurance policy would negate those expectations. Jostens, Inc. v. Northfield Ins. Co., 527 N.W.2d 116, 118 (Minn.App.1995), review denied (Minn.Apr. 27, 1995). When determining whether the insured’s expectations are objectively reasonable, courts consider any ambigu ity in the policy, whether the insured was orally informed of an important but obscure provision, and whether the provision is of a type that is generally known to the public. Hubred v. Control Data Corp., 442 N.W.2d 308, 311 (Minn.1989). The doctrine is generally applied when an insurance policy has been misrepresented or misunderstood, or when a legal technicality would defeat the insured’s objectively reasonable expectations. Reinsurance Assn. of Minn. v. Johannessen, 516 N.W.2d 562, 565-66 (Minn.App.1994), review denied (Minn. Aug. 24, 1994).

Appellants argue that they had a reasonable expectation that uninsured-motorist coverage extended to Carlson because Robert Carlson’s insurance agent told him that his two children were “covered the same as” he and his wife and because Carlson’s name was added to the policy-declarations page and insurance cards were issued accordingly. The district court determined that any expectation of coverage that appellants may have had was defeated by the plain language of the policy, noting that uninsured-motorist coverage is extended “only to those who are considered ‘insured [persons]’ under the policy” and that Carlson was not an “insured person” when he was struck by the uninsured motorist.

As we have noted above, we agree with the district court that Carlson was not an “insured person” as a pedestrian. Thus, regardless of whether Carlson was a listed driver on the policy-declarations page, the plain language of the policy excludes coverage for Carlson’s injuries. See Reinsurance Ass’n, 516 N.W.2d at 566 (noting that the doctrine of reasonable expectations does not apply when a prominent term excludes coverage). Further, even if Robert Carlson was told that his two children were “covered the same” as he and his wife, the doctrine of reasonable expectations does not eliminate the policyholder’s obligation to read the policy. See Hubred, 442 N.W.2d at 311. And we note that while Carlson was in, on, or getting into or out of the vehicle, he had the same uninsured-motorist coverage that his parents had. Thus, under the plain language of the policy, appellants had no reasonable expectation of coverage for Carlson’s injuries.

III.

Appellants argue finally that uninsured-motorist coverage for Carlson in these circumstances is mandated by Minn. Stat. § 65B.49, subd. 3a(5) (2006), which is part of the no-fault act. When construing a statute, we must first determine whether the statute is ambiguous, that is, whether the statute is reasonably subject to more than one interpretation. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). If the statute is not ambiguous, we must apply the plain meaning of the statute. In re Welfare of E.S.C., 731 N.W.2d 149, 152 (Minn.App.2007). We construe a statute to give effect to all of its provisions, and a statute is construed as a whole to avoid conflicting interpretations. Schroedl, 616 N.W.2d at 277. If a statute fails to define a term, we give that term its ordinary and plain meaning. See Possis Corp. v. Cont’l Machs., Inc., 425 N.W.2d 286, 290 (Minn.App.1988), review denied (Minn. July 28, 1988).

The purpose of the no-fault act is “to relieve the severe economic distress of uncompensated automobile accident victims.” Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn.1998). Under the statute, every automobile-insurance policy issued in Minnesota must include uninsured-motorist coverage. Minn. Stat. § 65B.49, subd. 3a(l) (2006). A policy that does not provide the mandatory minimum coverage required by the statute is extended by operation of law to afford that level of coverage. See Osterdyke v. State Farm Mut. Auto. Ins. Co., 420 N.W.2d 900, 902 (Minn.1988).

Section 65B.49, subdivision 3a(5), is the part of the no-fault act that establishes the order in which an injured person should seek uninsured-motorist coverage from “relevant policies.” Schons v. State Farm Mut. Auto. Ins. Co., 621 N.W.2d 743, 745 (Minn.2001). The statute provides in full:

If at the time of the accident the injured person is occupying a motor vehicle, the limit of liability for uninsured and underinsured motorist coverages available to the injured person is the limit specified for that motor vehicle. However, if the injured person is occupying a motor vehicle of which the injured person is not an insured, the injured person may be entitled to excess insurance protection afforded by a policy in which the injured party is otherwise insured. The excess insurance protection is limited to the extent of covered damages sustained, and further is available only to the extent by which the limit of liability for like coverage applicable to any one motor vehicle listed on the automobile insurance policy of which the injured person is an insured exceeds the limit of liability of the coverage available to the injured person from the occupied motor vehicle.
If at the time of the accident the injured person is not occupying a motor vehicle or motorcycle, the injured person is entitled to select any one limit of liability for any one vehicle afforded by a policy under which the injured person is insured.

The first paragraph of section 65B.49, subdivision 3a(5), governs the right of an injured person who was occupying a motor vehicle to seek underinsured- or uninsured-motorist coverage. Holmstrom v. Ill. Farmers Ins. Co., 631 N.W.2d 102, 104 (Minn.App.2001). The second paragraph “declares the benefits for those, such as pedestrians, who [were] not.” Id. (quoting Northrup v. State Farm Mut. Auto. Ins. Co., 601 N.W.2d 900, 904 (Minn.App.1999), review denied (Minn. Jan. 25, 2000)). Because there is no dispute that Carlson was a pedestrian when he was injured, we apply the second paragraph.

Appellants argue that because the second paragraph of section 65B.49, subdivision 3a(5), provides that an injured person may select any one policy for any one vehicle under which the injured person “is insured,” and because even if Carlson was not a policyholder under the Allstate policy, he “is insured” by that policy, the statute mandates uninsured-motorist coverage here.

Respondents argue that an injured person “is insured” by a policy only if that person is the named insured under the policy or the spouse or other relative who resides in the same household as the named insured and is not named on any other insurance policy, relying on the supreme court’s decision in Becker v. State Farm Mut. Auto. Ins. Co., 611 N.W.2d 7 (Minn.2000). But Becker construed the term “an insured” as it appears in the first paragraph of section 65B.49, subdivision 3a(5), not “is insured,” which is the term used in the second paragraph of section 65B.49, subdivision Sa(5). See id. at 11.

The district court concluded that section 65B.49, subdivision 3a(5), does not mandate coverage because Carlson “was insured” by the Allstate policy only when he was “in, on, or getting out of the vehicle.” We agree.

For the purpose of the second paragraph of Minn.Stat. § 65B.49, subd. 3a(5), an injured person “is insured” by an automobile-insurance policy if he is entitled to uninsured-motorist coverage under that policy for his injury. The statute does not define the term “is insured.” We therefore apply the plain and ordinary meaning of “is insured.” See Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). To “insure” is defined as, inter alia, to “have insurance for.” The American Heritage Dictionary 909 (4th ed.2000). Thus, a person “is insured” by a policy only in those circumstances for which he has insurance. See Sullivan v. City of Minneapolis, 570 N.W.2d 8, 11-12 (Minn. App.1997) (concluding that because a police officer, who was injured while chasing a suspect on foot, was not covered by the Minneapolis insurance policy, which only covers city employees while they are occupying a city vehicle, he was not insured by that policy for the purpose of the second paragraph of section 65B.49, subdivision 3a(5)).

Because there is no claim that the Allstate policy did not provide the mandatory minimum uninsured-motorist coverage required by statute, whether Carlson was insured by the Allstate policy when he was struck by the uninsured motorist depends on the terms of the policy. See Stewart v. Ill. Farmers Ins. Co., 727 N.W.2d 679, 684 (Minn.App.2007) (noting that when an insurance policy provides the minimal coverage required by statute, the terms of the policy determine the extent of the insurer’s liability). We have already concluded that Carlson was not entitled to uninsured-motorist coverage under the policy when he was struck by the uninsured motorist; he was not, therefore, insured under the policy for the purpose of the second paragraph of section 65B.49, subdivision 3a(5).

DECISION

Carlson was not entitled to uninsured-motorist coverage for his injuries under the plain language of the Allstate policy; appellants had no reasonable expectation of uninsured-motorist coverage for Carlson’s injuries; and Carlson was not insured by the Allstate policy when he was injured by the uninsured motorist and, thus, Minn.Stat. § 65B.49, subd. 3a(5) (2006), does not mandate coverage for Carlson’s injuries. We therefore affirm the district court.

Affirmed.

      . We note that the statute does define the word "insured'' as "an insured under [an insurance policy],” which the statute then defines as the named insured of an insurance policy and, inter alia, the named insured's spouse or other relative who resides in the same household as the named insured. See Minn.Stat. § 65B.43, subd. 5 (2006). This definition applies to the term "an insured,” not the term "is insured.” See Becker, 611 N.W.2d at 11 (defining “an insured” as those categories of individuals identified in section 65B.43, subdivision 5); see also Minn.Stat. § 65B.43, subd. 1 (2006) (providing that the definition of "insured” is applicable unless the "context clearly indicates a different meaning”). But we also note that, in any event, Carlson would not qualify as "an insured” under section 65B.43, subdivision 5, because it is undisputed that he was not residing in his parents' home.


author: KAPSNER, Justice.

text:
    2007 ND 99
    STATE of North Dakota, Plaintiff and Appellee v. Nathan FEHL-HABER, Defendant and Appellant.
    No. 20060086.
    Supreme Court of North Dakota.
    June 26, 2007.

      Cynthia M. Feland (argued), Assistant State’s Attorney and Lloyd C. Suhr (on brief), Assistant State’s Attorney, Bismarck ND, for plaintiff and appellee.
    Kent M. Morrow (argued), Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Nathan Fehl-Haber appeals from a judgment entered after a jury verdict finding him guilty of gross sexual imposition. He also appeals from the district court’s denial of his motion for a new trial. We affirm.

I

[¶ 2] In May 2005, Fehl-Haber and K.L.S., a seventeen-year-old female, attended a party in Bismarck. K.L.S. consumed alcohol, became intoxicated, vomited, and passed out. While she was unconscious, K.L.S. was moved from the bathroom to a bedroom. Later, L.H., another partygoer, saw Fehl-Haber leave the bedroom while pulling up and zipping his pants. L.H. went into the bedroom to check on K.L.S. and found her unclothed. K.L.S. only remembered someone being pulled from the bed she was in and someone yelling at Fehl-Ha-ber to get out of the bed. While leaving the party, K.L.S. complained her groin area hurt. The next morning, K.L.S. was taken to a hospital to be examined for a possible sexual assault. A sexual assault nurse examiner (S.A.N.E.) concluded K.L.S. had been sexually assaulted.

[¶ 3] Fehl-Haber was charged with delivery of alcohol to a minor and gross sexual imposition. At trial, Fehl-Haber attempted to introduce L.H.’s written statement concerning her observations while at the party. The State objected. The court refused to allow the statement into evidence, informing Fehl-Haber’s counsel that he could cross-examine L.H. concerning her statement. After a two-day trial, the jury received the ease shortly after 12:30 p.m. At 4:20 p.m., the jury submitted a question to the court, asking whether “it [was] an option to be a hung [jury].” The court discussed how to respond to the question with counsel and Fehl-Haber on the record. The court informed counsel it intended to send a written response into the jury room asking the jurors to keep working to reach a decision. Neither the State nor the defense objected to the court’s procedure. At 5:35 p.m., the jury asked another question: “How long do we go before we can call it a night [and] can we order supper?” After another discussion with counsel on the record, the court again instructed the jury to keep working to reach a decision. The court also informed the jurors they would have a break at 6:00 p.m. to eat, after which they would return to continue deliberating. At 7:35 p.m., the jury returned a verdict of not guilty on the delivery of alcohol count, but a guilty verdict on the gross sexual imposition count.

[¶ 4] Fehl-Haber appealed. While the matter was pending on appeal, Fehl-Ha-ber discovered the victim had made a similar allegation against another individual, Terry Pribyl, in July 2005. This information was not disclosed to him prior to his November 2005 trial. Fehl-Haber asked this Court to remand the case so he could file a motion for a new trial with the district court. While retaining jurisdiction over the pending appeal, this Court remanded the case for the limited purpose of deciding Fehl-Haber’s motion for a new trial. Fehl-Haber’s motion was based on newly discovered evidence, the State’s failure to disclose the second allegation. Fehl-Haber claimed KL.S.’s second accusation was relevant to her credibility. The district court denied the motion, finding the new evidence was non-exculpatory, irrelevant, immaterial, and would not likely have resulted in an acquittal. Fehl-Haber appealed, adding the court’s denial of his motion for a new trial to his issues on appeal.

II

[¶ 5] On appeal, Fehl-Haber argues the district court erred in excluding L.H.’s written statement; the court should have called the jury into court to discuss its written questions; and the evidence was insufficient to support the verdict. He also argues the district court erred in denying his motion for a new trial. We conclude the district court did not abuse its discretion in excluding L.H.’s written statement; the court’s procedure to address the jury’s questions did not rise to the level of obvious error under N.D.R.Crim.P. 52(b); there was sufficient evidence to support the verdict; and the district court did not abuse its discretion in denying Fehl-Haber’s motion for a new trial.

A

[¶6] Fehl-Haber argues the district court erred when it excluded a written statement L.H., another partygoer, made regarding the night in question. When Fehl-Haber sought to admit L.H.’s written statement as substantive evidence, the State objected, arguing the statement had been given to them with insufficient notice and the statement was barred under N.D.R.Ev. 412(a) as a statement involving KL.S.’s alleged past sexual behavior. Fehl-Haber offered to redact any reference to K.L.S.’s sexual behavior before offering the statement. When asked about the purpose of admitting it, Fehl-Haber’s attorney argued the statement was not intended to attack the victim’s credibility, but rather to “allow the jury to see other statements such as even the next day K.L.S. didn’t see the police which Nathan suggested to do, which I think is important as to whether a sexual event happened, whether she reported it.” The district court excluded the written statement, telling Fehl-Haber’s counsel he could question L.H. about the assertions she made in the statement.

[¶ 7] A district court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned unless there has been an abuse of discretion. State v. Jaster, 2004 ND 223, ¶ 12, 690 N.W.2d 213. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or when it misapplies the law. Id. Here, the district court did not abuse its discretion.

[¶ 8] The State called L.H. as a witness. Fehl-Haber was able to cross-examine L.H. about the assertions she made in the statement concerning K.L.S. and Fehl-Haber, but could not use L.H.’s written statement as substantive evidence. See State v. Kelly, 2001 ND 135, ¶ 23, 631 N.W.2d 167 (holding a prior inconsistent statement can be used for impeachment purposes, but may not be offered as substantive evidence unless the statement was made under oath); State v. Demery, 331 N.W.2d 7, 11-12 (N.D.1983) (same); see also N.D.R.Ev. 801(d)(1)(I).

[¶ 9] If L.H.’s testimony was inconsistent with her written statement, Fehl-Ha-ber could use it to impeach her testimony under N.D.R.Ev. 613. Further, the State was not provided adequate notice of the defendant’s intention to use the statement if it was offered to prove that someone other than the accused was the source of the sexual injury. See N.D.R.Ev. 412(b)-(c) (requiring the party intending to offer evidence to show that someone other than the defendant caused the sexual injury to file a written motion at least 14 days before trial). We conclude the district court did not abuse its discretion in excluding L.H.’s written statement.

B

[¶ 10] Fehl-Haber argues the failure to call the jury into open court to address its questions constitutes reversible error. On this record, his claim is without merit.

[¶ 11] A defendant has a right to be present in the courtroom at every stage of the trial. State v. Parisien, 2005 ND 152, ¶ 7, 703 N.W.2d 306. Section 29-22-05, N.D.C.C., governs the general procedure for addressing jury questions posed to the court after the jurors have retired for deliberation. Section 29-22-05 provides:

After the jurors have retired for deliberation, if they desire to be informed on a point of law arising in the cause, or to have any testimony about which they are in doubt or disagreement read to them, they, upon their request, must be conducted into the courtroom by the officer who has them in custody. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the state’s attorney and the defendant or the defendant’s counsel, or after they have been called.

This Court has construed N.D.C.C. § 29-22-05 to require that “all communications with the jurors, after a case has been submitted to them, must be made in open court and in the presence of the defendant.” Parisien, at ¶ 8; see also State v. Klose, 2003 ND 39, ¶¶ 32-34, 657 N.W.2d 276; Hill v. State, 2000 ND 143, ¶¶ 16-18, 615 N.W.2d 135; State v. Ash, 526 N.W.2d 473, 481 (N.D.1995); State v. Zimmerman, 524 N.W.2d 111, 117 (N.D.1994); State v. Smuda, 419 N.W.2d 166, 167 (N.D.1988); State v. Hatch, 346 N.W.2d 268, 277-78 (N.D.1984). This right, however, is not absolute. Parisién, at ¶ 8. It “may be waived by failing to object to the trial court’s procedure in responding to the jury’s request.” Id.

[¶ 12] At trial, Fehl-Haber failed to object to the court’s procedure when the jury submitted the written questions. As we stated in Parisién:

When a problem arises during a trial, the party affected must bring the irregularity to the trial court’s attention and seek appropriate remedial relief, because issues not raised below, even constitutional issues, generally will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b). To establish obvious error, the defendant has the burden of establishing plain error that affects substantial rights. Only constitutional error that is “egregious” or “grave” is subject to the obvious error rule.

Parisien, at ¶ 17 (citations omitted).

[¶ 13] Unlike the Parisién case, the error here does not rise to the level of obvious error. Fehl-Haber failed to meet his burden. His essential claim is the jury should have been called into court so the judge could observe the effect of the “prolonged late-night deliberations” on the jurors. While the jury was kept after the normal working day, the jurors were informed they would be given a break at 6:00 p.m., after which they would return to continue deliberating. The jury returned its guilty verdict at 7:35 p.m. The jury in this case was not exposed to a prolonged late-night deliberation. Unlike Parisién, where the jury began to deliberate at 7:40 p.m. and returned a verdict at 2:19 a.m., the jury in this case was not required to deliberate late into the night. 2005 ND 152, ¶¶ 2-3, 703 N.W.2d 306. Also unlike Pansien, the defendant was present when the court considered how to respond to the jury’s questions. See id. Fehl-Haber failed to object to the court’s procedure to address the jury questions and failed to show how the court’s procedure constituted plain error affecting his substantial rights. The court’s procedure for responding to the jury’s written questions does not amount to obvious error under N.D.R.Crim.P. 52(b). Fehl-Haber’s claim is without merit.

C

[¶ 14] Fehl-Haber claims there was insufficient evidence to convict him because the evidence against him was circumstantial, inconclusive, and failed to exclude every reasonable hypothesis of his innocence. We conclude there was sufficient evidence to support Fehl-Haber’s conviction.

[¶ 15] The standard of review for a challenge to the sufficiency of the evidence is clear. As we recently explained in State v. Zahn:

When we review a challenge to the sufficiency of the evidence, we only consider the evidence and reasonable inferences most favorable to the verdict to determine if there is sufficient evidence to warrant a conviction. State v. Bertram, 2006 ND 10, ¶ 5, 708 N.W.2d 913. “ ‘A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.’ ” Id. (quoting State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819). We do not weigh conflicting evidence or judge witness credibility. Bertram, at ¶ 5.

Zahn, 2007 ND 2, ¶ 13, 725 N.W.2d 894 (quoting State v. Buchholz, 2006 ND 227, ¶ 20, 723 N.W.2d 534). On appeal, this Court assumes “the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.” State v. Goebel, 2007 ND 4, ¶ 32, 725 N.W.2d 578 (citing State v. Laib, 2005 ND 191, ¶ 6, 705 N.W.2d 815). A verdict may be supported by substantial evidence even though contrary evidence was presented. See id.; see also State v. Krull, 2005 ND 63, ¶ 14, 693 N.W.2d 631.

[¶ 16] In this case, several witnesses testified regarding what they saw at the party. While none actually observed Fehl-Haber engaged in a sex act with K.L.S., a jury could reasonably conclude Fehl-Haber performed a sexual act on her while she was unconscious. KL.S. testified she was passed out on the bed and awoke when people were yelling. She saw someone pulled from the bed. KL.S. testified: “And then I kind of came to a little more. I realized that the yelling person was EB’s dad yelling at Nathan to get out of the bed from next to me.” She recognized Fehl-Haber as the man who was pulled from her bed. K.L.S. also testified her clothes had been removed after she was passed out.

[¶ 17] The next morning, KL.S. went to a hospital for a sexual assault examination. The nurse examiner determined K.L.S. had been penetrated with an object, finger, or penis approximately 10-12 hours prior to the examination, which was consistent with the time of the alleged sexual assault. The nurse examiner had conducted at least 10,000 examinations in her career and conducted at least 16 forensic examinations since her S.A.N.E. certification. The nurse examiner concluded KL.S. had been sexually assaulted based on her physical examination. L.H. testified she observed Fehl-Haber exiting the room where KL.S. was sleeping. She said: “I heard a little bit of yelling from both [E.B.’s father] and Nathan and then I saw Nathan walking out of the room pulling up and zipping his pants.... ”

[¶ 18] A rational fact finder could find Fehl-Haber committed the crime. We conclude there was substantial evidence to support the jury verdict. Accordingly, Fehl-Haber’s insufficiency of the evidence argument is without merit.

Ill

[¶ 19] Fehl-Haber claims the court erred in denying his motion for a new trial. While the case was pending on appeal, Fehl-Haber learned the victim, KL.S., had made a sexual assault allegation against another person, Terry Pribyl. This second assault allegedly occurred in July 2005, two months after the incident in this case. The existence of the second assault was not disclosed before Fehl-Ha-ber’s trial. Fehl-Haber claims this newly discovered evidence could have been used to challenge KL.S.’s credibility, and it violated his due process right by failing to disclose exculpatory evidence. We conclude the trial court did not err in holding the evidence Fehl-Haber discovered after trial is immaterial and not likely to lead to an acquittal. As such, the district court did not abuse its discretion in denying Fehl-Haber’s motion for a new trial.

[¶ 20] Under N.D.R.Crim.P. 33(a), a court can grant a motion for a new trial if the interest of justice so requires. To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show: “(1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal.” State v. Steinbach, 1998 ND 18, ¶ 22, 575 N.W.2d 193; State v. VanNatta, 506 N.W.2d 63, 70 (N.D.1993). In pertinent part, N.D.R.Crim.P. 33 provides:

(a) Defendant’s Motion. On the defendant’s motion, the court may ... grant a new trial to that defendant if the interest of justice so requires. A motion for a new trial must specify the alleged defects and errors with particularity....
(b) Motions.
(1) Newly Discovered Evidence. Any motion ... based on newly discovered evidence must be filed within three years after the verdict or finding of guilty and be supported by an affidavit.
(2) Other Grounds. Any motion for a new trial based on any reason other than newly discovered evidence must be filed within 10 days after the verdict or finding of guilty, or within such further time frame as the court sets during the 10-day period....

N.D.R.CrimJP. 33 (2006). The denial of a motion for a new trial is reviewed under the abuse of discretion standard. State v. Lemons, 2004 ND 44, ¶ 18, 675 N.W.2d 148; State v. Sievers, 543 N.W.2d 491, 494 (N.D.1996). “ ‘A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.’ ” Lemons, at ¶ 18 (quoting State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586).

[¶ 21] Fehl-Haber claims it was a discovery violation to fail to disclose the evidence, and the allegation was relevant with regard to the victim’s credibility. The district court concluded Fehl-Haber had shown the evidence was obtained after trial, and it was not a result of a lack of the defendant’s diligence. However, the court concluded K.L.S. was unconscious at the time the sexual act was performed on her, so her credibility was not in issue. The court also concluded the material was not exculpatory, so Fehl-Haber’s due process rights were not violated.

[¶ 22] In support of his motion, Fehl-Haber submitted an affidavit of the man convicted based on KL.S.’s July 2005 accusation, Terry Pribyl. Pribyl stated he worked with K.L.S., and she told other employees that she had acquired a sexually transmitted disease (STD) in May 2005. Fehl-Haber claims the fact that she told other employees she contracted a STD was material and relevant because “Fehl-Ha-ber was unable to inquire either prior to trial or at trial as to the circumstances surrounding the acquisition of the STD.” Fehl-Haber claims this evidence would have been admissible under an exception to N.D.R.Ev. 412.

[¶ 23] Contrary to Fehl-Haber’s assertions, this evidence was not material or exculpatory. The alleged new evidence in this case did not warrant a new trial. Rule 412, N.D.R.Ev., generally precludes evidence offered to prove that the victim engaged in other sexual behavior or evidence offered to prove the victim’s sexual predisposition. N.D.R.Ev. 412(a). There are limited exceptions to the rule, which allow a defendant to introduce evidence of “specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence.” N.D.R.Ev. 412(b)(1). However, the rule does not allow a general probing of KL.S.’s sexual history. As such, unless Fehl-Haber’s proposed inquiry fell within the very narrow exception to the general rule, the inquiry would be inadmissible under N.D.R.Ev. 412. Fehl-Haber acknowledged he deposed K.L.S. prior to the trial. Fehl-Haber has not demonstrated that this alleged new evidence would provide any new evidence not already available to him by deposition, which would be admissible under N.D.R.Ev. 412.

[¶ 24] Pribyl’s factual assertions in his affidavit are mere generalities and are based entirely on hearsay. Pribyl simply repeated what “other employees” had gossiped. Fehl-Haber failed to provide any competent evidence K.L.S. actually acquired a STD in May 2005, and he failed to present evidence that he did not have a STD. Assuming for the sake of argument the factual assertions in Pribyl’s affidavit are true, the new information does not exculpate Fehl-Haber, as the crime for which he was committed occurred in May 2005, and Fehl-Haber offered no evidence that he could not be the source of the STD.

[II25] The nurse examiner noted the sexual injury she observed when she examined K.L.S. was inconsistent with vagin-itis or a STD. The nurse examiner testified KL.S.’s vaginal redness was different than redness caused by vaginitis or a STD, where the “entire area of the vulva or posterior is shaded red and ex[c]oriates.” The nurse examiner’s testimony indicates an acquittal would not have been likely had evidence of a STD been offered at trial.

[¶ 26] Fehl-Haber has not established that his alleged evidence was material or likely to result in an acquittal. The district court did not abuse its discretion in denying Fehl-Haber’s motion.

IV

[¶ 27] The district court’s judgment and order denying Fehl-Haber’s motion for a new trial are affirmed.

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

      . Rule 33, N.D.R.Crim.P., was amended, effective March 1, 2007, to eliminate the requirement that the trial court decide a motion for extension of time within ten days. The amendment is inapplicable in Fehl-Haber’s case.