author: SANDSTROM, Justice.

text:
    2007 ND 125
    STATE of North Dakota, Plaintiff and Appellee, v. Dennis James GAEDE, Defendant and Appellant.
    No. 20060188.
    Supreme Court of North Dakota.
    July 25, 2007.

      Mark Rainer Boening, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee.
    William Kirschner, Fargo, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Dennis James Gaede appeals from a criminal judgment entered after a jury found him guilty of murder. We affirm, concluding there was sufficient corroborating evidence to support the verdict, the district court did not err in admitting testimony about Gaede’s post-arrest statements, the court did not abuse its discretion in admitting evidence about Gaede’s convictions, and the court did not have a duty to inquire whether Gaede knowingly and voluntarily waived his right to testify.

I

[¶ 2] The State charged Gaede with intentionally or knowingly killing Timothy Wicks on December 28, 2001, at Gaede’s residence in Gardner, North Dakota. The State’s theory of the case was that Gaede moved to North Dakota from Milwaukee, Wisconsin, in the summer of 2001 to avoid going to prison in Wisconsin, and he assumed the identity of Wicks, a person for whom Gaede had prepared taxes in Wisconsin. The State asserted Gaede made plans for Wicks to travel from Wisconsin to North Dakota under the pretext of playing a “music gig” in Canada, and Gaede subsequently shot Wicks in the kitchen of Gaede’s home in Gardner. The State claimed Gaede and his wife, Diana Fruge, cleaned the kitchen and eventually transported Wicks’ body to Michigan in a U-Haul truck, where Gaede dismembered the body and separately disposed of the torso, head, and hands. The State presented evidence that Gaede and Fruge then returned to the Fargo area and shortly thereafter went to the Milwaukee area where Gaede withdrew money from Wicks’ bank accounts and purchased an RV that he and Fruge used to travel around the country until they were arrested in Nebraska in March 2002.

[¶ 3] At trial, Fruge testified she had married Gaede in May 2001, and in July 2001, Gaede was convicted of “some felonies” in Wisconsin. Fruge testified Gaede told her that he did not want to go to prison for those felonies and if they moved to another state, he could assume another identity and start a new life. Gaede and Fruge moved from Wisconsin to North Dakota, where Gaede assumed Wicks’ identity and began working in Fargo as a bookkeeper and bought a house in Gardner using Wicks’ identity. Gaede also got a North Dakota drivers’ license in Wicks’ name. There was evidence Gaede had met Wicks in Milwaukee, where Gaede had prepared Wicks’ taxes. Sometime in late December 2001, Gaede’s employer discovered that Gaede, who was known to the employer as Wicks, had stolen money from the business. Fruge testified Gaede called Wicks sometime in December 2001, after which Gaede told her that Wicks had found out someone was using one of his credit cards. She also testified Gaede had told her that he wanted to take Wicks to Canada to play a “music gig” and he might have to kill Wicks.

[¶ 4] On December 24, 2001, Wicks told his brother-in-law that he and Gaede were going to Canada “to get a job doing his jazz drumming” and Gaede wanted it to be a “big secret.” On December 25, 2001, Wicks told his landlord that he and a friend were going to Canada to play a “band gig,” and Wicks left a card with the landlord which said “Dennis <& Tim Wicks” with a telephone number. Fruge testified that she and Gaede visited Milwaukee in late December 2001, and they returned to North Dakota in their vehicle. She also testified Wicks followed them to North Dakota in his vehicle and stayed at Gae-de’s house in Gardner.

[¶ 5] According to Fruge, on the night of December 28, Gaede and Wicks had been drinking beer and smoking marijuana in the basement of Gaede’s house in Gardner when she went upstairs to put her son to sleep and she also fell asleep. Fruge testified she was sleeping in an upstairs bedroom when Gaede woke her and told her to come downstairs. According to Fruge, she went downstairs and found Wicks laying on the floor between a foyer and the kitchen. Fruge testified Gaede told her that he had shot Wicks. According to Fruge, Gaede and Fruge subsequently moved Wicks’ body to a barn and cleaned the kitchen. Fruge testified that on December 29, 2001, Gaede used Wicks’ credit card and rented some equipment to dig a hole next to the Gardner house to try to bury Wicks’ body, but the ground was too frozen to bury the body. Gaede’s employer testified that on December 29, Gae-de called him at home and asked to use one of the company’s service pickups to haul a trailer because Gaede wanted to rent a Bobcat. Gaede’s employer did not authorize him to use a pickup, and the State presented evidence that Gaede rented a backhoe to try to bury Wicks’ body near the house in Gardner, but the ground was too frozen to bury the body. On December 30, Gaede used Wicks’ credit card to purchase several items at Fleet Farm in Fargo. On December 30, Gaede also used Wicks’ credit card to rent a U-Haul truck in Fargo, which was driven 1,786 miles and returned to Fargo on January 4, 2002. Fruge testified she helped Gaede put Wicks’ body in the back of the U-Haul in wardrobe boxes, they left Fargo on December 31, looking for a place to dispose of Wicks’ body, and they drove to Iron Mountain, Michigan, where they purchased diesel for the truck using Wicks’ credit card. Fruge testified that Gaede dismembered Wicks’ body near Powers, Michigan, and she helped Gaede throw the torso in a ditch on January 1, 2002.

[¶ 6] On January 2, 2002, after Gaede had failed to appear at work in Fargo for several days, his employer called the Cass County Sheriff to go to Gaede’s house for a “welfare check.” A deputy sheriff observed Wicks’ car at the residence and left a note about the “welfare check” in the house. On January 2, 2002, Wicks’ torso was found in Michigan near a bridge over the Menominee River. The head and the hands had been severed from Wicks’ body. According to Fruge, Gaede and Fruge returned the U-Haul to Fargo on January 4, 2002, and a few days later, after discovering the note from a Cass County deputy sheriff in the house in Gardner, they went to Milwaukee, where Gaede withdrew money from Wicks’ bank accounts. Fruge testified that on the trip to Milwaukee, Gaede disassembled the handgun used to kill Wicks and had Fruge throw it into Lake Michigan. According to Fruge, they used Wicks’ money to purchase an RY and traveled around the country. On January 16, 2002, Wicks’ head was discovered in the Menominee River about 12 miles from where the torso was found.

[¶ 7] Gaede and Fruge were arrested in Nebraska in March 2002. Fruge initially made statements to several different individuals that indicated she had shot Wicks, but Fruge testified she made those statements because she and Gaede had concocted a plan whereby she would say she killed Wicks after he had raped her. Gaede did not testify at trial, but claimed Fruge shot Wicks and his only involvement was to help cover up the killing. A jury found Gaede guilty of murder, and he was sentenced to life imprisonment without parole.

[¶ 8] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 9] Gaede argues there was insufficient evidence to support his conviction because Fruge’s testimony was not corroborated. Gaede claims Fruge was an accomplice and her testimony was not corroborated under N.D.C.C. § 29-21-14, which provides:

A conviction cannot be had upon the testimony of an accomplice unless the accomplice is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

[¶ 10] Gaede asserts the independent evidence after Wicks’ death is equally as capable of proving Gaede was merely helping to cover up Fruge’s crime as it is of proving he shot Wicks. Gaede claims that because Fruge was shown to be a dishonest person and a liar and because she confessed to the shooting, the evidence is insufficient to convict him of murder. The district court decided not to give an instruction requiring corroboration of the testimony of an accomplice, and Gaede did not object to the court’s decision. The State thus claims Gaede failed to raise this issue in the district court and cannot now argue that corroboration of Fruge’s testimony was necessary. The State also argues Fruge’s testimony was corroborated in many important regards and there was sufficient evidence to support the conviction.

[¶ 11] “The purpose of corroborative evidence is to show that a testifying accomplice is a reliable witness and worthy of credit.” State v. Zimmerman, 524 N.W.2d 111, 114 (N.D.1994); State v. Hogie, 454 N.W.2d 501, 503 (N.D.1990); State v. Haugen, 448 N.W.2d 191, 194 (N.D.1989). In State v. Pacheco, 506 N.W.2d 408, 409 (N.D.1993), this Court said N.D.C.C. § 29-21-14 requires corroboration when a witness could be criminally responsible as an accomplice under N.D.C.C. § 12.1-03-01(1), which defines an accomplice as:

A person may be convicted of an offense based upon the conduct of another person when:
a. Acting with the kind of culpability required for the offense, he causes the other to engage in such conduct;
b. With intent that an offense be committed, he commands, induces, procures, or aids the other to commit it, or, having a statutory duty to prevent its commission, he fails to make proper effort to do so; or
c. He is a coconspirator and his association with the offense meets the requirements of either of the other subdivisions of this subsection.
A person is not liable under this subsection for the conduct of another person when he is either expressly or by implication made not accountable for such conduct by the statute defining the offense or related provisions because he is a victim of the offense or otherwise.

[¶ 12] In assessing whether a witness is an accomplice, this Court has said if the facts as to the witness’s culpability are disputed or susceptible of different inferences, the decision is a question of fact, but if the facts as to the witness’s culpability are neither disputed nor susceptible of different inferences, the decision is a question of law. State v. Kelley, 450 N.W.2d 729, 731 (N.D.1990); State v. Thorson, 264 N.W.2d 441, 442-43 (N.D.1978). Mere presence at the scene of a crime is not enough to make one an accomplice; however, presence at the scene of a crime, together with other facts, may support a finding that a person is an accomplice. Kelley, at 732; State v. Bonner, 361 N.W.2d 605, 612-13 (N.D.1985).

[¶ 13] In Haugen, 448 N.W.2d at 194-95 (citations omitted), this Court discussed the type of evidence necessary for corroboration:

[U]nder Section 29-21-14 it is not necessary to corroborate every fact testified to by an accomplice. All that is required is that the evidence, circumstantial or otherwise, corroborate the testimony of an accomplice as to some material fact or facts, and tends to connect the defendant with the commission of the crime. It is not necessary that the corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. Furthermore, the State need not point to a single isolated fact which is sufficient corroboration, as it is the combined and cumulative weight of the evidence other than the testimony of the accomplice witness which satisfies the statute. In cases involving the use of corroborative evidence, it is incumbent upon the trial court to first determine, as a matter of law, whether or not there is any evidence corroborating the testimony of the accomplice, and only after the court has found such corroborative evidence is it allowed to leave the question of the sufficiency of the corroborative evidence to the jury.
“The corroboration [of an accomplice’s testimony] need not directly link the accused to the crime.” Rather, corroboration merely requires that there be evidence “tending to connect the defendant with the offense committed." Indeed, the language of Section 29-21-14 requires only corroborative evidence which “tends to connect” a defendant with the commission of an offense.

[¶ 14] In Kelley, 450 N.W.2d at 730-31, there was disparate testimony about the trigger person for a shooting, and the district court refused to give the defendant’s requested corroboration instruction. An opinion written by former Chief Justice Erickstad and concurred in the result by one other justice said an accomplice instruction was not warranted, and even if warranted, any error in failing to give the instruction was harmless because it could not have had a significant impact upon the verdict. Id. at 732-33. An opinion by then Justice VandeWalle and concurred in by three other justices concluded a corroboration instruction should have been given, but the failure to give the instruction was harmless because there was sufficient corroborating evidence tending to connect the defendant with the commission of the murder. Id. at 733-34.

[¶ 15] Here, we conclude the error, if any, in not giving a corroboration instruction was harmless because there was sufficient evidence that is corroborative of Fruge’s testimony. There is circumstantial evidence of events before the actual shooting that tends to corroborate Fruge’s testimony, including that Gaede had been using Wicks’ name in his employment in Fargo, that Wicks’ car was at the Gardner home, that Gaede had procured a North Dakota drivers’ license in Wicks’ name, and that the Gardner home was bought in Wicks’ name. That evidence demonstrates a motive for Gaede to kill Wicks and tends to connect Gaede with the shooting. Moreover, there is independent evidence of the circumstances surrounding the disposal of Wicks’ body that also tends to connect Gaede with the shooting and corroborates Fruge’s testimony. That independent evidence includes Gaede’s use of Wicks’ credit card to rent equipment to dig a hole next to the Gardner house, Gaede’s telephone conversation with his employer to borrow one of the company’s service pickups, the marks in the frozen ground near the Gardner house, Gaede’s use of Wicks’ credit card to purchase items at Fleet Farm in Fargo, Gaede’s use of Wicks’ credit card to rent the U-Haul in Fargo and purchase fuel in Iron Mountain, Michigan, and the discovery of Wicks’ dismembered body. Although there was no independent and direct evidence about the actual trigger person for Wicks’ death, the combined and cumulative effect of the other independent evidence tends to connect Gaede to the murder and corroborates Fruge’s testimony. We conclude there is sufficient evidence to corroborate Fruge’s testimony, and the error, if any, in failing to give a corroboration instruction was harmless under the rationale of Kelley.

Ill

[¶ 16] Gaede argues he was denied a fair trial because the district court allowed the State to introduce testimony about statements made by him after his arrest. Gaede argues that testimony violated his right to remain silent.

[¶ 17] At trial, Gaede initially called Sherri Cotter, a correctional specialist in Nebraska, to testify about Fruge’s statements and reaction to a newspaper article, which were made shortly after the couple’s arrest in Nebraska. Cotter testified her interview of Fruge was to gauge how she was coping with confinement. Cotter testified she informed Fruge that she was a correction officer, that Fruge should not discuss any of the particulars of the case with her, and that anything Fruge had to say regarding the case should be discussed with an attorney. Cotter testified she provided Fruge with a newspaper article about the couple’s arrest, and Fruge said “I did it; he didn’t.” The State thereafter called Cotter to testify in rebuttal about Cotter’s interview with Gaede. Cotter testified her interview with Gaede was also to see how he was coping with confinement, and she followed the same procedure she used for her interview with Fruge. Cotter testified:

Q. What was the Defendant’s-this Defendant’s response, Dennis Gaede’s response, when you did the same thing with him that you did with Diana [Fruge]?
A. Essentially, he was calm and didn’t give much of a reaction. Indicated that he—
[DEFENSE COUNSEL]: Objection, hearsay.
THE COURT: Overruled.
Q. (By Mr. Boening) Go ahead.
A. Indicated that he knew about the person stated in the article.
Q. Did he ask about what he was being charged with?
A. No, he did not.
Q. So he never asked you any questions about being charged with the murder?
A. No.
Q. That of course was what was being discussed in the newspaper article, the fact that he was suspected of being responsible for a murder; is that correct?
A. Correct.
Q. Did you find that unusual as part of your observation of-of inmates who are brought into jail that when you confront them with a newspaper article alleging that they’re involved in a murder, you confront them with that, that they have no reaction to that?
A. His only reaction was that he didn’t commit the crime.
Q. And what crime was he referring to?
A. Well, I would image the crime in the article which was essentially about the murder that he was being accused of.

Gaede argues Cotter’s testimony was an unconstitutional comment about his post-arrest silence.

[¶ 18] Testimony or argument about a defendant’s post-arrest silence may constitute an improper comment about a defendant’s invocation of the right to remain silent. State v. Hill, 1999 ND 26, ¶ 16, 590 N.W.2d 187; City ofWilliston v. Hegstad, 1997 ND 56, ¶ 9, 562 N.W.2d 91; State v. Schneider, 270 N.W.2d 787, 792 (N.D.1978); State v. Carmody, 253 N.W.2d 415, 417-18 (N.D.1977); State v. Bragg, 221 N.W.2d 793, 799-801 (N.D.1974). Improper comment about a defendant’s invocation of the right to remain silent is a constitutional error that may be reviewed on appeal even though not raised at trial. Hill, at ¶ 16; Schneider, at 792. In Hill, at ¶ 17 (quoting State v. Janda, 397 N.W.2d 59, 66 (N.D.1986)), we outlined the following factors for deciding whether improper comment about a defendant’s post-arrest silence was harmless error:

1. The use to which the prosecution puts the post arrest silence.
2. Who elected to pursue the line of questioning.
3. The quantum of other evidence indicative of guilt.
4. The intensity and frequency of the reference.
5. The availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

[¶ 19] Here, Cotter’s testimony does not unequivocally demonstrate an improper comment about Gaede’s post-arrest silence, nor does this record reflect a Miranda violation. Moreover, the court gave the following jury instruction:

Testimony has been received in this case concerning certain statements made by the Defendant out-of-court and before trial as to the Defendant’s involvement in the commission of the crime charged.
In determining the weight, if any, to be given an out-of-court statement by the Defendant, you should consider all the evidence of the circumstances under which the statement was made.

On this record and under the relevant factors outlined in Hill, assuming Cotter’s testimony could be construed as a comment about post-arrest silence, we do not believe that testimony about Gaede’s effective denial of involvement in the murder was prejudicial to him or could have affected the outcome of the proceeding. We therefore conclude the court did not err in admitting Cotter’s testimony.

IV

[¶ 20] Gaede argues he was denied a fair trial because the district court allowed the State to introduce evidence of his convictions in Wisconsin and in North Dakota. Gaede argues the evidence of his North Dakota convictions for theft, theft of property, and embezzlement and his Wisconsin conviction were used to show he was a bad person.

[¶21] Before trial, the State notified Gaede that it intended to offer:

1) evidence of the fact that Dennis Gae-de represented himself to be Timothy Wicks before and after Wicks’ head was found on 2 January 2002, and, 2) evidence of the fact that Gaede used Wicks’ credit card in North Dakota and/or Michigan in December 2001 or January 2002, and, 3) evidence of the fact that Gaede took moneys from Wicks’ bank account [in] Wisconsin in January 2002.

The State claimed that evidence was admissible to show Gaede’s “motive, intent, preparation or plan for Wicks’ murder.” This record does not reflect that Gaede made a pretrial motion to preclude the State from using that evidence.

[¶ 22] At trial, Gaede did not object to Fruge’s testimony about Gaede’s Wisconsin convictions for “some felonies.” When the State offered evidence about Gaede’s January 2002 withdrawals from Wicks’ bank accounts in Wisconsin, Gaede objected on the ground of relevance. The State argued the evidence was “an indication of [Gaede’s] intent and/or plan in this case to kill ... Wicks, and then benefit from his death by stealing his money.” The district court overruled Gaede’s objection and subsequently allowed Gaede to make an additional record:

[DEFENSE COUNSEL]: Only to the extent, Your Honor, that the transactions in question are some time removed from the date of the alleged offense here in Cass County, that being on or about the 28th of December. I think it’s obvious where the State is going. Those-the argument of course goes to motive. Before motive becomes even something the jury can consider, the State hasn’t made a prima facie case that the homicide was committed here in Cass County. To this point, the only evidence that a homicide was committed here in Cass County is the statement of Diana Fruge. Her statement has been compromised by her statements to several other individuals on several other occasions that she in fact was the responsible party. The evidence in question is far more prejudicial than [probative]. Based on all those factors, we would ask the Court to reconsider its earlier decision and ask that the jury be instructed not to consider any of that evidence.
THE COURT: All right. As Mr. Boening had indicated, the evidence was being offered pursuant to Rule 404(b). Rule 404(b) would allow evidence of other crimes or wrongs or acts for purposes to prove such things as motive or plan or scheme or intent which Mr. Boening indicated was in fact the State’s purpose. The burden is incumbent upon the State to state the purpose if they’re offering evidence under Rule 404(b). They have — Mr. Boening has also indicated that notice was provided in advance of trial as required by the rule.
As [Defense Counsel] correctly points out, the Court still has to conduct the weighing, the balancing under Rule 403. The Court rules that the probative value does substantially outweigh the danger of unfair prejudice. In this case I think the State’s point about a plan or scheme — at least its theory is supported by other evidence. I’d also note that we have more than simply one withdrawal at one bank. We have a series of withdrawals over a very short period of time in different banks. On that basis, I do find that that balance of probative value does substantially outweigh the danger of unfair prejudice and my ruling stands.

[¶ 23] Later, the State offered certified copies of a second amended information and a criminal judgement in a North Dakota prosecution of Gaede for theft, theft by deception, and insurance fraud. Those documents involved Gaede’s guilty plea to taking more than $500 from his Fargo employer between September 27 and December 13, 2001, to representing himself as Wicks and taking more than $500 from his Fargo employer between those dates, and to making a false statement to an insurance company between October and December 2001, which resulted in him and his dependents acquiring medical services in excess of $5,000. In each of these cases, Gaede was representing himself as Wicks. Gaede objected to the admission of that evidence on the ground of relevance, and the district court overruled Gaede’s objection, citing its earlier ruling.

[¶ 24] Rule 404(b), N.D.R.Ev., deals with the admissibility of evidence of other crimes, wrongs, or acts, and provides:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

[¶ 25] Under N.D.R.Ev. 404(b), “evidence of prior bad acts or crimes is generally not admissible ‘unless it is substantially relevant for some purpose other than to point out the defendant’s criminal character and thus to show the probability that he acted in conformity therewith.’ ” State v. Osier, 1997 ND 170, ¶4, 569 N.W.2d 441 (quoting State v. Biby, 366 N.W.2d 460, 463 (N.D.1985)). Rule 404(b), N.D.R.Ev., acknowledges the prejudicial effect that prior bad act evidence may have on the trier of fact. Osier, at ¶4 (citing State v. Micko, 393 N.W.2d 741, 744 (N.D.1986)). Rule 404(b), N.D.R.Ev., does not authorize automatic admission of prior bad act evidence merely because the proponent advances a proper purpose for the evidence; rather, the relevance and probative value of the evidence must be demonstrated. Osier, at ¶ 4; State v. Frye, 245 N.W.2d 878, 884 (N.D.1976).

[¶ 26] Under N.D.R.Ev. 404(b), a district court applies a three-step analysis in considering the admissibility of evidence of other crimes, wrongs, or acts: 1) the court must look to the purpose for which the evidence is introduced; 2) the evidence of the prior act or acts must be substantially reliable or clear and convincing; and 3) in criminal cases, there must be proof of the crime charged which permits the trier of fact to establish the defendant’s guilt or innocence independently on the evidence presented, without consideration of the evidence of the prior acts. State v. Parisien, 2005 ND 152, ¶25, 703 N.W.2d 306; State v. Ramsey, 2005 ND 42, ¶23, 692 N.W.2d 498; State v. Christensen, 1997 ND 57, ¶ 7, 561 N.W.2d 631; Micko, 393 N.W.2d at 744. The final step in that analysis may usually be satisfied with a cautionary instruction about the evidence’s admissibility and its use for a limited purpose. Micho, at 744. If a district court concludes this three-part test has been satisfied, the evidence is not automatically admissible, and the court must also consider whether, under N.D.R.Ev. 403, the probative value of the evidence outweighs any possible prejudicial effect. Parisien, at ¶ 25; Ramsey, at ¶ 26; Micho, at 744-45. This Court has also recognized that evidence of other crimes, wrongs, or acts may be admissible when “ ‘the evidence provides a more complete story of the crime by putting it in context of happenings near in time and place.’ ” Biby, 366 N.W.2d at 463 (quoting Frye, 245 N.W.2d at 883).

[¶ 27] We review a district court’s evidentiary rulings under an abuse of discretion standard. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498; Christensen, 1997 ND 57, ¶ 5, 561 N.W.2d 631. A district court abuses its discretion when its decision is arbitrary, capricious, or unreasonable, or when the court misapplies or misinterprets the law. Ramsey, at ¶ 8; Christensen, at ¶ 5.

[¶28] Here, we conclude the evidence of Gaede’s prior conduct and convictions was admissible to show Gaede’s motive and intent and to provide a more complete story of Wicks’ death by putting it in context of happenings near the time and place of the death. The evidence of Gae-de’s conduct and the convictions was intertwined with the factual scenario leading up to Wicks’ death and tends to demonstrate a motive or reason for Wicks’ death. Moreover, the district court gave the following jury instruction about the use of that evidence:

For the purpose of showing motive, intent, scheme or plan with respect to the offense charged, the Court received evidence of other acts or offenses committed by the Defendant or others. Before considering evidence of other acts or offenses for this purpose, you must first find beyond a reasonable doubt that the Defendant committed the acts constituting the offense charged.

[¶29] The record reflects the district court made a reasoned analysis of the reasons for the admission of the evidence, and on this record, we cannot say the district court’s decision to admit the evidence of Gaede’s conviction of “some felonies” in Wisconsin and the convictions in North Dakota was arbitrary, capricious, or unreasonable, or was a misinterpretation or misapplication of the law. We therefore conclude the district court did not abuse its discretion in admitting that evidence.

V

[¶ 30] Gaede also argues he was denied a fair trial because the district court failed to inquire whether he knowingly waived his right to testify in this case. He asks this Court to revisit its recent decision in State v. Mulske, 2007 ND 43, ¶¶ 10-11, 729 N.W.2d 129, in which we followed prior precedent and held a court does not have a duty to verify that a defendant who does not testify at trial has waived his or her right voluntarily. See State v. Antoine, 1997 ND 100, ¶ 5, 564 N.W.2d 637. Gaede has presented no persuasive reason to reconsider Mulshe or Antoine. Moreover, we also note that the North Dakota Trial Court Benchbook 1-73, ¶ 9, provides a checklist for a felony arraignment, which includes a dialogue for the court to tell a defendant “you have the right at trial to testify or not testify as you alone may choose.” We decline Gaede’s invitation to revisit Mulske and Antoine, and we reject Gaede’s argument that he was denied a fair trial because the district court failed to make this inquiry.

VI

[¶ 31] We affirm the criminal judgment.

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


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice. CROTHERS, Justice, KAPSNER, Justice,

license: Public Domain

text:
    2007 ND 126
    STATE of North Dakota, Plaintiff and Appellee, v. Alexander VANTREECE, Defendant and Appellant.
    No. 20060139.
    Supreme Court of North Dakota.
    July 25, 2007.

      Leah Jo Viste, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appel-lee.
    Dennis D. Fisher, Fargo, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Alexander Vantreece appealed from a criminal judgment entered upon a jury verdict finding him guilty of gross sexual imposition under N.D.C.C. § 12.1-20 — 03(l)(a). We hold there is not substantial evidence upon which a jury could reasonably find Vantreece compelled the complainant to submit to a sexual act by force, and we reverse the criminal judgment and remand for entry of judgment of acquittal.

I

[¶ 2] The charges against Vantreece stem from an incident which occurred at the Fargo apartment of Zelandra Van-treece, the defendant’s ex-spouse. Their young son lives in the apartment with Zel-andra. The complainant, Zelandra’s sister-in-law, was visiting her. At the time of the incident, the complainant was 27 years old, married, and the mother of two young children, including a 17-month-old infant who accompanied her on this visit.

[¶ 3] On the morning of August 15, 2005, Zelandra, knowing the complainant had not had much sleep the previous night because she was tending to her infant child, took her son and the complainant’s baby with her to run errands so the complainant could rest. After Zelandra left with the children, the complainant went into the son’s room and lay down on a foldout bed. The complainant was having “trouble falling asleep” when Vantreece came into the room. He and the complainant knew each other. The complainant testified that, just as she had on prior occasions, she let Vantreece try to put her to sleep “[b]y laying down beside me and rocking me.” After rocking her, Van-treece left the room for a few minutes and then returned. Although the complainant had not fallen asleep, she pretended to be asleep. Vantreece again lay down beside her. The complainant was lying on her side facing one direction and Vantreece was lying behind her, facing the same direction. The complainant testified:

Q (Mr. Boening continuing) After he came back into the room, what happened?
A He cut a hole in the pajamas that I was wearing.
Q Okay. Do you remember how you were dressed when you were trying to sleep?
A Yeah. Plaid pants with a pink shirt, I believe.
Q Do you remember how he made the hole in your pants?
A No, I couldn’t see. I was pretending to be asleep.

The complainant did not say anything to the defendant. She testified that Van-treece tried to insert his penis into her vagina but was unable to do so. He then left the room again and returned a few minutes later. She continued to pretend she was asleep. When he returned to the room the second time, he again lay on the bed with her, and he pulled her pants “down a little.” She testified he again tried to penetrate her but was not successful. He then left the room a third time. When he came back a “few seconds later,” he again lay down by her. The complainant testified Vantreece was then successful in penetrating her vagina with his penis which “seemed like it was lubricated.” She testified Vantreece used tissues to wipe her off, pulled her pants back up, and left the room.

[¶ 4] The complainant continued to pretend she was asleep and did not leave the room “for a few minutes afterwards” so the defendant “wouldn’t know that I was awake.” After 15 minutes or so, she went outside to have a cigarette, where she was joined by Vantreece. While they were smoking, Vantreece told her that Zelandra wanted her to take a shower before Zelan-dra returned home. The complainant testified that she then “went in and washed my hair,” but she did not wash any other part of her body, so that she would not “wash away all the evidence.” Wihen Zel-andra returned, the complainant told her what had happened. Zelandra then drove her to a hospital, where she was examined and an emergency room nurse “took a number of swabs” to gather DNA and other evidence.

[¶ 5] After an investigation was conducted by the Fargo Police Department, Vantreece was initially charged with committing gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(l)(e), a class A felony, for engaging in a sexual act with a person who suffers from a mental disease or defect rendering her incapable of understanding the nature of her conduct. The information was later amended to charge Vantreece under N.D.C.C. § 12.1-20-03(l)(a):

[T]he above-named defendant engaged in a sexual act with another, or caused another to engage in a sexual act, when the defendant compelled the victim to submit by force, namely, physical action, to-wit.... The defendant ... ripped open a hole in the crotch of [the complainant’s] pants ... tried to put his penis in her vagina, pulled off her pants, touched her vaginal area and then engaged in a sex act with [the complainant].

[¶ 6] Vantreece was tried by jury, which returned a verdict of guilty. A criminal judgment was entered convicting Vantreece of “class A” felony gross sexual imposition. The court sentenced Van-treece to incarceration for 17 years, to serve a period of imprisonment of 12 years and the balance of five years suspended for a period of five years, commencing after the period of incarceration.

[¶ 7] A charge under N.D.C.C. § 12.1-20-03(l)(a) is designated a class AA felony, under N.D.C.C. § 12.1-20-03(3)(a). It appears the prosecutor improperly designated the charge as a class A felony instead of a class AA felony. However, in view of our reversal of the conviction, this mistake is without consequence.

II

[¶ 8] On appeal, Vantreece has designated a single issue:

Whether the evidence supports the criminal judgment and commitment for gross sexual imposition based upon the use of force when there was no force used.

However, in his appellate brief, Vantreece argues the sufficiency of the evidence issue “is bound up with prosecutorial overreaching,” because the prosecutor “made repeated suggestions that the alleged victim’s mental disease or defect was the key element of its proof.”

[¶ 9] During opening statements, the prosecutor asserted “defendant took advantage of a ... developmental^ disabled person.” Vantreece’s defense attorney at the trial responded in his opening statement that “I do believe that the testimony [is] going to show that [the complainant] has a developmental disability.” During closing argument the prosecutor told the jury:

This is a crime of opportunity. Alexander Vantreece knew that [the complainant] was a vulnerable adult. He knew he could take advantage of her, and he did just that. [The complainant] is a woman. She has a woman’s body. However, she does not have a woman’s ability to protect herself. She does not have the mind of an adult woman. Hers comes from her experience and her disability.

[¶ 10] In State v. Evans, 1999 ND 70, ¶ 11, 593 N.W.2d 336, this Court explained the standard upon which we review an issue of improper argument by a prosecutor:

“The control of closing arguments is largely within the discretion of the trial court, and we will not reverse on the ground that a prosecutor exceeded the scope of permissible closing argument unless a clear abuse of the trial court’s discretion is shown.” State v. Ash, 526 N.W.2d 473, 481 (N.D.1995). To establish a trial court abused its discretion with regard to a prosecutor’s argument, a defendant must establish the argument was improper and prejudicial. State v. Schimmel, 409 N.W.2d 335, 342 (N.D.1987). “To be prejudicial, absent a fundamental error, improper closing argument by the state’s attorney 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.” Id. “A state’s attorney’s statements of fact to the jury which are not warranted by the evidence are improper and such statements are presumed to be prejudicial unless harmless in themselves.” State v. Mehralian, 301 N.W.2d 409, 418 (N.D.1981).

[¶ 11] The record in this case contains evidence that the defendant was aware the complainant had mental limitations. Jim LeDoux, a detective with the Fargo Police Department, testified that Vantreece told officers he knew the complainant is a vulnerable adult and that she has the education of an eighth grader. However, Van-treece asserts the prosecutor’s argument relating to the complainant’s mental capabilities is prejudicial and irrelevant, because he was not charged under N.D.C.C. § 12.1-20-03(l)(e), for engaging in a sexual act with a person who suffers from a mental disease or defect, but under N.D.C.C. § 12.1 — 20—03(l)(a), for engaging in a sex act by force. Vantreece correctly asserts that the prosecutor had the burden to prove the victim was compelled to submit by force. However, his argument fails to recognize that a complainant’s mental capacity is relevant in a charge of having sex by force to the question of the extent of force required to compel the victim to submit. See People v. Kline, 197 Mich.App. 165, 494 N.W.2d 756, 758 (1992) (evidence of a complainant’s mental capacity relevant to show complainant may have had a diminished capacity to consent and to show that such diminished capacity may have made her more susceptible to the defendant’s coercion); Barnett v. State, 820 S.W.2d 240, 242 (Tex.Ct.App.1991) (a victim’s diminished mental capacity, along with all other evidence, can be considered by the jury in determining sufficiency of the evidence on the issue of physical force and consent); State v. Hawkins, 778 S.W.2d 780, 782 (Mo.Ct.App.1989) (evidence of complainant’s mental capacity is relevant to show whether she consented to sex with defendant charged with forcible rape).

[¶ 12] We conclude the prosecutor’s argument in this case was neither improper nor prejudicial. Statements relating to the complainant’s diminished mental capacity were supported by record evidence. That evidence was relevant to the issue of the amount of force which was required by the defendant to compel this victim to submit to engaging in a sexual act with him.

Ill

[¶ 13] The primary issue raised by Vantreece on appeal is whether there is sufficient evidence of force to convict him of the charge brought against him. The prosecution charged that Vantreece compelled the complainant to submit by force to engage in a sexual act with him in violation of N.D.C.C. § 12.1-20-03(l)(a) which provides:

1. A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if:
a. That person compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnaping, to be inflicted on any human being.

The information charged that Vantreece “ripped open a hole in the crotch of [the complainant’s] pants ... tried to put his penis in her vagina, pulled off her pants, touched her vaginal area and then engaged in a sex act” with her.

[¶ 14] In reviewing a sufficiency of the evidence challenge, we review the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt. State v. Keller, 2005 ND 86, ¶ 50, 695 N.W.2d 703. A reversal is warranted only if, after viewing the evidence and all reasonable eviden-tiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. Id. We do not weigh conflicting evidence nor do we judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction. State v. Manke, 328 N.W.2d 799, 805 (N.D.1982).

[¶ 15] The trial court instructed the jury on the elements of the offense:

The State’s burden of proof is satisfied only if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) That on or about the 15th day of August, 2005, in Cass County, North Dakota, the Defendant, Alexander Van-treece, willfully engaged in a sexual act with [the complainant]; and
2) The Defendant did so by willfully compelling [the complainant] to submit by force.

The prosecution had the burden to introduce substantial evidence for the jury to find the use of force by the defendant sufficient to overcome resistance. State v. Joern, 249 N.W.2d 921, 922 (N.D.1977). The use of the word “compels” under the statute negates consent, as does the requirement that the use of force must be found by the jury. Id. at 922-23.

[¶ 16] As we have previously stated, our criminal code is modeled on the proposed Federal Criminal Code, which relies heavily on the Model Penal Code. See State v. Brown, 420 N.W.2d 5, 6 (N.D.1988). The commentary by the drafters of the Model Penal Code § 207.4(l)(a) (Tentative Draft No. 4 1953), which contains language substantively identical to the crime charged in this case, is instructive. That commentary states:

The situations covered by paragraph (a) of subsection (1) are the classic rape cases, where the woman is overpowered by violence or the threat of it. Sometimes, in order to make it perfectly clear that a token initial resistance is not enough, existing law specifies that the woman must resist “to the utmost.” We believe that the text requirement that she be “compelled to submit” is adequate for this purpose.

Id. at 246.

[¶ 17] The commentary to the final draft of the Model Penal Code § 213.1(l)(a) (1962), which section also contains substantively identical language to the criminal statute under which Van-treece was charged, is also instructive regarding the proof required to convict:

The primary problem in determining how the elements of rape should be stated concerns the method by which the imposition by the male or the lack of consent by the female should be described .... There is considerable difficulty, however, in determining how the elements of force or threat should be defined. As has been stated elsewhere, rape “is the only form of violent criminal assault in which the physical act accomplished by the offender ... is an act which may, under other circumstances, be desirable to the victim.” This unique feature of the offense necessitates the drawing of a line between forcible rape on the one hand and reluctant submission on the other, between true aggression and desired intimacy....
As will be elaborated below, the effort in Subsection (l)(a) is to meet these difficulties in the most serious form of rape by focusing upon objective manifestations of aggression by the actor. Accordingly, the offense is defined to occur when the actor “compels” the victim “to submit by force or by threat” of certain specified serious harms....
With respect to grading, the Model Code is drafted on the premise that three major factors should control: the culpability and dangerousness manifested by the actor; the presence or absence of factors objectively verifying these conditions in the actor; and the degree of harm inflicted upon the victim. ...
Subsection (l)(a) of Section 213.1 punishes forcible rape. The definition of the offense is stated not in terms of the victim’s lack of consent but of the actor’s use of force that “compels her to submit” to intercourse....
As a practical matter, juries may require resistance to show that the male compelled her to submit, but there is little reason to encase this generalization in a rule of law. Where the proof establishes that the actor did compel submission to intercourse by force, the failure of a weak or fearful victim to display “utmost” or even “earnest” resistence should not be exculpatory.
By focusing upon the actor who “compels” the victim “to submit to force” and by omitting express language of consent and resistance, the Model Code casts away encrusted precedents and strikes a fresh approach. This is not to say that consent by the victim is irrelevant or that inquiry into the level of resistence by the victim cannot or should not be made. Compulsion plainly implies non-consent, just as resistance is evidence of non-consent. By the same token, the lack of resistance on a particular occasion will not preclude a conviction of rape if the jury can be convinced by the context and the degree of force employed by the actor that the submission was by compulsion.

Model Penal Code and Commentaries, Part II, § 213.1 cmt. at 279-280, 304-307.

[¶ 18] As the commentary clarifies, the crimes to which this statutory language applies are “classic rape cases” wherein a woman is overpowered by violence or threat of violence. The serious nature of these criminal acts is underscored by the legislature classifying them as class AA felonies, carrying a potential sentence of life imprisonment without parole. N.D.C.C. §§ 12.1-20-03(3)(a) and 12.1-32-01(1). Our legislature has defined force to mean “physical action.” N.D.C.C. § 12.1-01-04(11). It is the force or physical action by the defendant which must “compel” the victim to “submit” to a sex act for a crime to be committed under N.D.C.C. § 12.1-20-03(l)(a).

[¶ 19] The complainant in this case testified about her past experience and its effect on her psyche. She was sexually molested by a stepfather at age 14 or 15. At age 18 she quit school and lived with friends of her mother for four years. She testified that during this period she was sexually molested by “the lady’s husband” on a “daily basis.” She testified that she would pretend to be asleep so this man would not have sex with her. She said that on “numerous occasions” she would try to tell him no, and the last time she said “no” he “picked me up by the throat and threw me on a bed and told me, ‘don’t ever tell me that again or you’ll regret it.’ ” After living four years with that family, she left one day on her own and went to the Salvation Army. She moved to Texas and had her first child with a man she met there. She later met her current husband, with whom she had her second child.

[¶ 20] The complainant was acquainted with the defendant. She testified that on prior occasions “[h]e tried to put me to sleep ... [b]y laying down beside me and rocking me.” She consented to have the defendant lay beside her and rock her in his arms on August 15, 2005. He then left the room, and when he returned he lay down beside her and tore a small hole in the crotch of her pants to have intercourse with her.

[¶ 21] The complainant testified that when Vantreece attempted to have sex with her she pretended to be asleep because “[i]t was much safer that way.” She testified that she never asked him to stop and she did not attempt to resist or flee from the situation. On cross-examination she further testified:

Q Now, at any point did Alex hold you down and make you—
A No.
Q —do this with him?
A No. ‘Cause he didn’t need to. I was sleeping. Or he thought I was—
Q Or pretending to be asleep?
A Yeah. So he didn’t need to hold me down.
Q He never forced you to — to lay there?
A No. I chose to lay there because I was scared to say anything.
Q He didn’t threaten you in any way? Like you mentioned that A1 had threatened you the one time. Alex never did threaten you this day, did he?
A No. I was sleeping. He couldn’t have threatened me. He didn’t know I was awake, so he didn’t say nothing.
Q He didn’t hold your hands back, anything like that?
A No. I was sleeping.
Q Well, you were pretending to be sleeping?
A Yeah.

To convict, the State had to show Van-treece exerted force upon the complainant which compelled her to submit to having sex with him. In the absence of force or threats of death or serious bodily injury, there was no crime under N.D.C.C. § 12.1 — 20—03(l)(a). It was not sufficient to prove Vantreece committed this crime with evidence that the complainant acquiesced in a sexual act with him because she “learned from the past” to acquiesce in sexual advances without protest or resistance of any kind.

[¶ 22] The record evidence in the ease is entirely devoid of any showing that Vantreece exerted physical action or force against the complainant which compelled her to submit to having sex with him. After Vantreece opened a hole in her pajama, he left the room twice before he eventually had sex with her. Evidence of the tearing of the pajama is not adequate under these circumstances to demonstrate force sufficient to compel the complainant to submit to having sex with the defendant.

[¶ 28] In a case with factual similarities, the Texas Court of Appeals in Jiminez v. State, 727 S.W.2d 789, 792 (Tex.Ct.App.1987), reversed a conviction of sexual assault. The complainant was a 21-year-old university student, who went to the campus in the early morning hours to meet her boyfriend. She did not find him, but she consumed some wine and then fell asleep on the floor in a music building. Her first awareness was of someone in the unlighted room with her who had his hand on her vaginal area outside of her clothing. She eventually recognized that her assailant was a university police officer. She did not protest, but pretended to be asleep. He continued to enter and leave the room several times, and he eventually moved her underwear aside and inserted his finger inside her vagina. He then attempted to have intercourse with her. At that point, she coughed loudly to make him think she was awaking. He immediately ran from the room. The alleged attacker was ultimately charged with sexual assault by compelling the complainant to submit by the use of physical force or violence. A jury found him guilty, but the Texas Court of Appeals reversed the conviction, concluding there was insufficient evidence to sustain the verdict:

The undisputed evidence shows that the complainant pretended to be asleep throughout the episode; that there was no communication whatsoever between her and her attacker; and that the attacker fled at the first sign that the complainant was not unconscious or unaware that the assault was occurring. We find no evidence in the record that appellant intentionally or knowingly used or threatened to use force or violence.
We recognize that it is natural and reasonable for one who is involuntarily confronted with distasteful options to select the one that is the least distasteful, and we emphasize that the evidence herein is not insufficient because the victim did not resist. A victim is not required to resist, and it may be wise not to do so.... The fatal defect in this case is not the absence of resistance, but the absence of the threat or use of force or violence.

Id. at 792.

[¶ 24] Similar to the facts in Jiminez, there is no record evidence to show Van-treece used physical force or threats to compel the complainant to submit to having sex with him.

[¶ 25] In another case with factual similarities, the Supreme Court of Michigan in People v. Patterson, 428 Mich. 502, 410 N.W.2d 733, 734 (1987), reversed a sexual assault conviction for insufficient evidence on the elements of force or coercion. The complainant, a 17-year-old high school student, testified that while sleeping at home alone one night she was awakened by the feel of a hand on her genital area outside her underwear. She called out, “[w]ho is it?” No one answered, and she reached up and felt a face “with scratchy hair and stubble on it.” She then rolled over in the bed, turned on the light, and, staring at the man squatting beside her, told him to get out of the house. The defendant immediately turned around and left the room. He was later apprehended and charged with fourth-degree criminal sexual conduct for having sexual contact with the complainant by force or coercion. The jury found the defendant guilty, but the Michigan Supreme Court reversed the conviction:

[T]here was insufficient evidence of the element of force and coercion as required under the fourth-degree criminal sexual conduct statute.... The Legislature specifically required force or coercion to convict a defendant of fourth-degree criminal sexual conduct where the defendant is charged as this defendant was charged in the information. If the Legislature had wanted to make all unconsented-to sexual contact punishable, with or without force, it should have said so....
[W]e decline to expand the definition of force or coercion to include the defendant’s conduct in this case.
In this case, the defendant had accomplished the unconsented-to touching before the complainant woke up. The complainant reached over to turn on the light and the hand left her body.
The Legislature specifically provided under subsection (l)(b) that sexual contact with a person who is physically helpless, i.e., asleep, is a crime.... Therefore, the Legislature intended to treat sexual assaults accomplished by force or coercion separately from assaults on physically or mentally incapacitated victims.
If this Court was to interpret defendant’s conduct in this case to be included within the provisions of subsection (l)(a) of the fourth-degree criminal sexual conduct statute, this would render the language of subsection (l)(b) of the statute a nullity.

Id. at 743.

[¶ 26] While the complainant in this case, unlike the complainant in Patterson, was not sleeping, she was pretending to be sleeping. The complainant candidly testified that Vantreece did not utter any threats and did not exert any force to hold her down or to restrain her from moving or fleeing. Her testimony shows that although Vantreece had sex with her, it was accomplished without resort to force or threats to compel her submission.

[¶ 27] The State did not charge Van-treece with class B misdemeanor sexual assault under N.D.C.C. § 12.1-20-07(l)(a), which makes it an offense to have sexual contact with another person when the perpetrator “knows or has reasonable cause to believe that the contact is offensive to the other person.” Nor did the State charge Vantreece under N.D.C.C. § 12.1-20-03.1(a)(c), for engaging in a sexual act with a person when the perpetrator “knows that the victim is unaware that a sexual act is being committed upon him or her.” See Jiminez v. State, 727 S.W.2d 789, 792-93 (Tex.Ct.App.1987). In its discretion, the prosecution charged Vantreece under N.D.C.C. § 12.1-20-03(l)(a). Its burden thereunder was to prove Vantreece by force compelled the complainant to submit to engaging in a sex act with him. While the defendant’s conduct may have been reprehensible and he may have willfully taken advantage of someone he knew was “vulnerable,” there is not substantial evidence upon which a reasonable factfin-der could conclude the complainant was compelled to submit to a sexual act by force or threat.

IV

[¶ 28] We hold there is not substantial evidence upon which the jury could reasonably find that Vantreece compelled the complainant to submit to a sexual act with him in violation of N.D.C.C. § 12.1-20-03(l)(a). We, therefore, reverse the criminal judgment and remand for entry of judgment of acquittal.

[¶ 29] DALE V. SANDSTROM, J., concur.

CROTHERS, Justice,

concurring.

[¶ 30] The legislature has comprehensively defined and provided for punishment of sex offenses in N.D.C.C. ch. 12.1-20. This Court’s “function in construing the statutes is to harmonize and reconcile the various sections within the same chapter whenever possible rather than develop inconsistencies or incongruities.” Reliance Ins. Co. v. Public Serv. Comm’n, 250 N.W.2d 918, 922 (N.D.1977). Reading the provisions of Chapter 12.1-20 in harmony leads me to the same conclusion reached by the majority.

[¶ 31] Section 12.1-20-03, N.D.C.C., addresses gross sexual imposition and makes certain sexual acts and sexual contact unlawful, and increases punishment based on the degree of violence threatened or realized, or upon the difference in age of the actor and the defendant. This case only relates to the degree of violence, and I limit my discussion of the statutes accordingly.

[¶ 32] Section 12.1-20-03(l)(c), N.D.C.C., punishes conduct as a class A felony if the perpetrator “knows that the victim is unaware that a sexual act is being committed upon him or her.” A class A felony carries a maximum punishment of 20 years imprisonment and up to a $10,000 fine. N.D.C.C. § 12.1-32-01(2). Under subsection (l)(a) the crime is punished as a class AA felony if the sexual act was performed by a person who “compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being.” All sexual crimes listed in section 12.1-20-03 become class AA felonies if the victim suffers serious bodily injuries or dies as a result of the sexual assault. N.D.C.C. § 12.1 — 20—03(3)(a) and (4). A class AA felony is punishable by up to life imprisonment without parole. N.D.C.C. § 12.1-32-01(1). Therefore, the same sexual conduct is punished differently — more severely — if the act is accompanied by the threat or use of violence.

[¶ 33] Section 12.1-20-04, N.D.C.C., addresses sexual imposition and punishes sexual acts or contact as a class B felony if the actor “[c]ompels the other person to submit by any threat that would render a person of reasonable firmness incapable of resisting....” A class B felony is punishable by a maximum penalty of 10 years imprisonment and up to a $10,000 fine. N.D.C.C. § 12.1-32-01(3).

[¶ 34] Section 12.1-20-07, N.D.C.C., addresses sexual assault. Under section 12.1-20-07 the prohibited conduct is no longer accompanied by “force” or “threat.” Focus instead shifts to whether the sexual contact is “offensive.” Punishment becomes a class C felony or a class A or B misdemeanor. A class C felony is punishable by 5 years in prison and a $5,000 fine. N.D.C.C. § 12.1-32-01(4). A class A misdemeanor carries a maximum punishment of 1-year imprisonment and a $2,000 fíne, and a class B misdemeanor can be punished by up to 30 days imprisonment and a $1,000 fine. N.D.C.C. § 12.1-32-01(5) and (6).

[¶ 35] All of the crimes described above involve offensive sexual contact. For purposes of our inquiry in this case, what separates one offense from the other is the actual or threatened violence that accompanies the improper sexual contact. Reading these sections together, as we must, makes apparent that section 12.1-20-03(l)(a), which is the subsection at issue in this case, carries an enhanced sentence of life in prison without parole if the State proves the sexual act or contact was accomplished by force that compelled the victim to submit. The “force” that must be proven is not “physical action” standing alone, as suggested by the dissent. Some “force,” meaning some “physical action,” would be present in any sexual act or sexual contact committed in violation of any of the three statutes cited above. We therefore need to look at what sets apart conduct proscribed in one statute from the conduct proscribed in the other statutes. Under North Dakota’s statutory scheme for sexual offenses, the answer is the nature of the sexual contact, along with the actual or threatened violence that accompanied the contact.

[¶ 36] Using the degree of punishment as a measuring device, N.D.C.C. ch. 12.1-20 establishes that compelling a victim to submit by force is a more serious crime than are sexual assaults where — by diminishing punishments — the actor engages in a sexual act after drugging the victim (class A felony), the actor engages in a sexual act and the victim was unaware a sexual act was being committed on them (class A felony), the perpetrator used threat to overcome the will of a reasonable person (class B felony), or the actor’s conduct was offensive (class C felony or misdemeanor).

[¶ 37] Because of the framework given to us in N.D.C.C. ch. 12.1-20, for sexual conduct to be punished as a AA felony “force” must be more than what would be punishable as a misdemeanor or a class C, B, or A felony. To constitute a class AA felony, the “force” must be that which “compels the victim to submit” to the sexual act. Here, it was charged in the information and proven at trial that Vantreece “ripped open a hole in the crotch of [the complainant’s] pants ..., tried to put his penis in her vagina, pulled off her pants, touched her vaginal area and then engaged in a sex act” with her. As despicable as Vantreece’s conduct was, the facts in this record do not provide sufficient evidence upon which the jury could have found Van-treece’s conduct forced the victim to submit to the sexual assault. The “force” proven at trial therefore was not sufficient to support finding Vantreece guilty of the class AA felony with which he was charged. To conclude otherwise would nullify the legislative effort in N.D.C.C. ch. 12.1-20 to increase punishment according to the violence that accompanied the sexual assault. I therefore concur in the result reached by the majority.

[¶ 38] DANIEL J. CROTHERS, J.

KAPSNER, Justice,

dissenting.

[¶ 39] I respectfully dissent. A rational factfinder could conclude the force incident to the nonconsensual sexual penetration is sufficient under the gross sexual imposition statute. I would affirm the district court’s judgment entered upon a guilty verdict.

[¶ 40] The essential issue raised by Vantreece on appeal is whether there is sufficient evidence of “force” to convict him of gross sexual imposition under N.D.C.C. § 12.1-20-03(l)(a), which provides:

1. A person who engages in a sexual act with another ... is guilty of an offense if:
a. That person compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being.

“Force” is defined as “physical action.” N.D.C.C. § 12.1-01-04(11). Section 12.1-20 — 03(l)(a), N.D.C.C., is a statute of several alternatives. The State need not show any threat of death or serious bodily injury. The State needs to prove only force by “physical action.” The information in this case claimed Vantreece “ripped open a hole in the crotch of [the complainant’s] pants ..., tried to put his penis in her vagina, pulled off her pants, touched her vaginal area and then engaged in a sex act” with her.

[¶ 41] Under our standard of review for insufficiency of the evidence claims, this Court should uphold the jury verdict. The standard of review is well settled:

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.

State v. Zahn, 2007 ND 2, ¶ 13, 725 N.W.2d 894 (quoting State v. Buchholz, 2006 ND 227, ¶ 20, 723 N.W.2d 534). 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, a rational factfinder could have concluded Vantreece’s physical actions — tearing a hole in the complainant’s sleepwear, lubricating himself, forcing himself onto a woman whom he thought was asleep, and having nonconsensual sexual intercourse with her — met the legal requirements of N.D.C.C. § 12.1 — 20—03(l)(a).

[¶ 42] Although the majority relies on two cases which it describes as factually similar, neither is of much assistance or persuasion in deciding this case because of the legal dissimilarities between the applicable law under which they were decided and our law.

[¶ 43] In Jiminez v. State, 727 S.W.2d 789, 790 (Tex.Ct.App.1987), in which the conviction for sexual assault was reversed, the opinion makes no mention of a statutory definition of force. The court held it could “find no evidence in the record that appellant intentionally or knowingly used or threatened to use force or violence.” Id. at 792. In so holding, the court relied, not on its statutes, but on prior case law. Id. “The cases cited by the State do not allow this case to be affirmed because each involved express threats, the use of weapons, or both.” Id. By contrast, the jury in this case was instructed on the statutory definition of “force” in the North Dakota Century Code, which it appropriately applied and which the majority opinion appears to ignore.

[¶ 44] Even more problematic is reliance on People v. Patterson, 428 Mich. 502, 410 N.W.2d 733 (1987). Michigan has a statutory definition of force which is so dissimilar from the definition in N.D.C.C. § 12.1-01-04(11), that the case has no persuasive effect. Under the Michigan statute applied in Patterson:

Force or coercion includes but is not limited to any of the circumstances listed in section 520b(l)(f)(i) to (iv).
The circumstances are:
(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, “to retaliate” includes threats of physical punishment, kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.

People v. Patterson, 428 Mich. 502, 410 N.W.2d 733, 734-35 (1987).

[¶ 45] The effect of the majority opinion is to judicially import concepts of force similar to those in Michigan when the North Dakota legislature has explicitly indicated how the word is to be interpreted. The jury was provided with and applied the correct definition of the word.

[¶ 46] The majority concludes that for the State to convict, it must show Van-treece exerted force upon the complainant which compelled her to submit to having sex with him, and it “was not sufficient to prove Vantreece committed this crime with evidence that the complainant acquiesced in a sexual act with him because she ‘learned from the past’ to acquiesce in sexual advances without protest or resistance of any kind.” Majority, at ¶ 21.

[¶ 47] The majority’s position creates a dangerous legal precedent, either reintroducing the “resistance” requirement, requiring the State to prove the attacker’s extrinsic use of force overbore the victim’s will; or that the force used by the attacker must be so pervasive that it is self-evident the force was used to overcome the victim’s will. I strongly disagree. An attacker exhibits sufficient “force” by exerting the force necessary to penetrate a non-consenting victim. See, e.g., State v. Garron, 177 N.J. 147, 827 A.2d 243, 264 (2003); State v. Sedia, 614 So.2d 533, 535 (Fla.App.4 Dist.1993). The determination of whether force was used and whether that force was sufficient to compel the victim to engage in a sexual act is a jury issue, which should not be disturbed lightly. See State v. Barth, 2005 ND 134, ¶ 7, 702 N.W.2d 1. Further, gross sexual imposition is criminal because of the attacker’s conduct, not the victim’s resistance. See N.D.C.C. § 12.1-20-03(l)(a). Other jurisdictions have moved away from requiring resistance because it “ ‘may prove an invitation to danger of death or serious bodily harm.’ ” 2 Wayne R. LaFave, Substantive Criminal Law § 17.4(a) (2d ed.2003) (quoting Model Penal Code § 213.1, cmt. at 305 (1980)). Finally, “ ‘it is wrong to excuse the male assailant on the ground that his victim failed to protect herself with the dedication and intensity that a court might expect of a reasonable person in her situation.’ ” Id.

[¶ 48] On this record, based on the jury verdict, I find it disturbing to even use the word “acquiesce” to describe the woman’s attitude to the sexual encounter. It suggests a woman pretending to be sleeping must do more in order not to be victimized. From the perpetrator’s perspective, a sleeping woman is not communicating consent, and should not be available to be victimized because she is “acquiescing.” There may be concern that sometimes intercourse which begins consensually can evolve into nonconsensual contact and “force” and “compulsion” may be more difficult to analyze in such circumstances. However, it is peculiarly the province of the jury to be the fact-finders and to analyze such matters. In this case, if the jury believed the statements of the woman, as it must have to reach the verdict it did, this woman did nothing to “acquiesce” in having intercourse. Intercourse would not have happened but for the action of Van-treece. She was compelled to have intercourse solely by virtue of the physical action of Vantreece forcing his penis into her vagina. Given the plain language of our statute and the jury instructions given, the jury analyzed the evidence and came to a verdict that is concordant with our statute.

[¶ 49] There is sufficient evidence, when viewed in the light most favorable to the verdict, to support Vantreece’s conviction of gross sexual imposition. I would affirm the district court’s judgment.

[¶ 50] MARY MUEHLEN MARING, JJ., concur.


text:
    2007 ND 124
    John M. SILBERNAGEL and Tom Silbernagel, Plaintiffs and Appellants, v. Stephen SILBERNAGEL a/k/a Steve Silbernagel and Jane Silbernagel a/k/a Jane Y. Silbernagel, Defendants and Appellees.
    No. 20060037.
    Supreme Court of North Dakota.
    July 25, 2007.

      Donavin L. Grenz, Linton, N.D., for plaintiffs and appellants.
    Joseph J. Cichy, Bismarck, N.D., for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] John M. Silbernagel and Tom Sil-bernagel appeal from a judgment dismissing their breach of contract action against Stephen Silbernagel and Jane Silbernagel involving a settlement agreement reached in a lawsuit over the estate of John P. Silbernagel. We conclude the district court did not err in refusing to allow the introduction of parol evidence to vary the terms of the parties’ settlement agreement. We further conclude that the court’s findings of fact are sufficiently specific to apprise this Court of the reasoning and rationale for its decision, and that those findings are not clearly erroneous. We affirm and impose sanctions against John M. and Tom Silbernagel, and their attorney, for violating N.D.R.App.P. 30.

I

[¶ 2] John P. Silbernagel, who died in 2003, was the father of John M., Tom, and Stephen Silbernagel. A dispute arose between the brothers over land owned by John P. Silbernagel and his mother, Marcella Silbernagel, who died in 1983 but whose estate had not been probated or settled. Stephen Silbernagel, who had been farming the land, was named the beneficiary of “any interest I have in agricultural real estate” in John P. Silberna-gel’s will. John M. and Tom Silbernagel sued Stephen and Jane Silbernagel over the right to the property. On October 19, 2004, after jury selection had started, the parties entered into a settlement agreement, which was read into the record by Stephen and Jane Silbernagel’s attorney:

Okay the agreement is that my clients Steve and Jane Silbernagel will pay to the plaintiffs $150,000. There will be a reasonable time given to my clients to secure the financing for that. In exchange for that the plaintiffs will release any and all interests they have in the estate of John P. and the estate of Marcella to Steve. They will release any and all interests in the FSA payment to Steve. My clients Steve and Jane will pay the debts associated with the administrator of the estate of John P. which includes Malcolm Brown and the personal representative Bill Chaussee, with the exception of $3500 to the nursing home. That will be $3500, the equivalent of or value of will be responsible by the plaintiffs. Also, in exchange for that, if a quiet title action is required to clear title on Marcella’s property the plaintiffs will agree to cooperate with that to the fullest extent necessary that’s required. If Jane and Steve should ever elect to sell the property, any of the property, they will give the plaintiffs the first option to purchase.

[¶ 3] On December 17, 2004, Stephen and Jane Silbernagel’s attorney wrote a letter to one of John M. and Tom Silberna-gel’s attorneys informing him that Stephen and Jane Silbernagel had been in contact with their bank in an attempt to obtain a $150,000 loan, and they were informed they could not obtain financing until the title to all of the property had been cleared. A December 17, 2004, letter from the bank to Stephen and Jane Silbernagel was enclosed with the correspondence and stated in part:

Due to the amount of the loan request, First Community Credit Union would need to secure the debt with a first mortgage position on said real estate. Following standard lending practices, First Community Credit Union will need an updated abstract on all said property to enable us to have a preliminary title opinion conducted. The preliminary title opinion will be performed by appropriate legal representation chosen by the credit union. This legal representation will need to have the warranty deed and any other documentation in their possession at closing to insure a clear title transfer and a valid mortgage. Loan funds will not be able to be disbursed until loan closing at which time conditions stated within are met.

Stephen and Jane Silbernagel’s attorney also informed John M. and Tom Silberna-gel’s attorney that she had prepared complaints for quiet title actions in Logan and Kidder counties concerning the property and asked that she be allowed to review the quit claim deeds that their attorney prepared relinquishing any interests they may have in the property.

[¶ 4] After the quiet title actions began, John M. and Tom Silbernagel resisted and contested the actions. In March 2005, they also brought this breach of contract action against Stephen and Jane Silberna-gel. They alleged Stephen and Jane Sil-bernagel breached the settlement agreement by “insisting that additional terms and conditions be added to the agreement” and “by refusing and neglecting to pay” them the $150,000 “within a reasonable time,” which they alleged was within 90 to 120 days after October 19, 2004. They sought a judgment for $150,000 “plus interest thereon as allowed by law.” In their answer to the complaint, Stephen and Jane Silbernagel alleged that a term in the settlement agreement concerning bequests was not recited onto the record. They also asserted that they “have at all times stood ready, willing and able to perform their obligations under the terms and conditions of the agreement” and “any delay in satisfying the terms of the agreement has been caused and is the responsibility of the plaintiffs.”

[¶ 5] John M. and Tom Silbernagel’s attorney subsequently prepared findings, conclusions, and a judgment for the action, which resulted in the parties’ settlement agreement. The judgment was entered on April 29, 2005, and the findings of fact set forth the terms of the settlement agreement:

a. In full settlement of the pending actions, Steve and Jane Silbernagel will pay to John M. Silbernagel and Tom Silbernagel the sum of $150,000.00.
b. Steve and Jane Silbernagel will be given a reasonable period of time within which to secure financing to make the $150,000.00 payment.
c. In exchange for the $150,000.00 payment, John M. Silbernagel and Tom Silbernagel release to Steve Silber-nagel any and all interests which they have in the estates of John P. Silbernagel and Marcella Silberna-gel, including their interests in the George Silbernagel Estate arising from the Marcella Silbernagel Estate, including but not limited to FSA payments pertaining to the real property in question.
d. Steve and Jane Silbernagel will pay all debts and costs associated with the administration of the Estate of John P. Silbernagel, Deceased, including fees charged by William (Bill) Chaussee, the personal representative, and his attorney, Malcolm Brown, except for the sum of $3,500.00 owed to the Nursing Home for John P. Silbernagel’s care, which John M. Silbernagel and Tom Sil-bernagel agree to assume responsibility to pay to the Nursing Home from the $150,000 payment received from Steve and Jane Silbernagel.
e. Parties agreed that should a quiet title action be necessary to clear title on the lands involved in the Marcella Silbernagel estate, John M. Silber-nagel and Tom Silbernagel will cooperate with said action to the fullest extent necessary by releasing their respective interests therein.
f. Parties agreed that Plaintiffs shall receive the deer head from the home of John P. Silbernagel and the parties agreed to work amongst themselves to divide pictures and personal effects belonging to John P. and Lorraine P. Silbernagel.
g. Should Steve or Jane Silbernagel ever elect to sell all or any portion of the land involved in this action ... Plaintiffs, John M. Silbernagel and Tom Silbernagel shall have first option to purchase the same.

[¶ 6] In the meantime, John M. and Tom Silbernagel prepared quit claim deeds, but they were not accepted by Stephen and Jane Silbernagel because the deeds did not describe all of the subject property. In June 2005, Stephen and Jane Silbernagel received another letter from the bank stating that their $150,000 loan application had been approved subject to “a clear title transfer to allow a valid mortgage,” and again specifying, “[l]oan funds will not be able to be disbursed until loan closing at which time conditions stated therein are met.” Their attorney sent John M. and Tom Silbernagel’s attorney a copy of the bank’s letter and informed him:

In order to move this matter along, I would suggest that after you have prepared the additional Quit Claim Deeds to include all of the real property in question, that you have your clients sign them. I would then propose that we designate an individual/agency to function as an escrow agent so that the matter can be closed in escrow. Once the necessary Quit Claim Deeds and/or the Quiet Title Judgment regarding individuals signing the Quit Claim Deeds have been filed, this matter should be able to close. Although I am not involved in the Quiet Title Action, I am informed by Ms. Zimmerman that that case is moving forward and Judgment should be entered shortly.

John M. and Tom Silbernagel’s attorney responded with a letter stating the quit claim deeds would not be delivered and recorded unless his clients received the “sum of $150,000.00 plus interest thereon at 6% interest commencing from and after February 16, 2005.” Stephen and Jane Silbernagel refused the request.

[¶ 7] Following an August 10, 2005, trial on John M. and Tom Silbernagel’s breach of contract claim, the district court dismissed the action. The court concluded:

A contract requires the contracting parties to perform their respective obligations. The Court does not find that John M. and Tom Silbernagel, and Steve and Jane Silbernagel have overtly failed to perform on the contract, but the Court does find that each has not completed conditions required of them to allow the contract to be fulfilled. Steve Silbernagel and Jane Silbernagel have inserted a condition (withdrawn at the time of trial as an allegation of their Answer to the plaintiffs complaint) that was not part of the agreement regarding the interests of other heirs. John M. Silbernagel and Tom Silbernagel likewise have claimed that they are due interest when it was not part of the settlement agreement, and they have not assisted, or may even have hindered, Steve and Jane Silbernagel’s attempt to quiet title of the involved real estate.
While this action is not one to enforce the settlement contract, it is clear that the settlement agreement has not been completed as was stipulated due to the fault of both parties....
John M. and Tom Silbernagel have brought this action seeking damages in the sum of $150,000 for breach of the settlement contract. Their actions have not allowed Steve and Jane Silbe[r]nagel to perform their contractual obligations. John M. and Tom Silbernagel’s action must be dismissed for that reason.

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

II

[¶ 9] John M. and Tom Silbernagel argue the district court erred in refusing to permit the introduction of parol evidence to clarify parts of the settlement agreement “which were not recited into the court record.” The court sustained objections based on the parol evidence rule to questions intended to elicit testimony that the $150,000 was supposed to be paid within 90 to 120 days after the settlement agreement was reached and that interest was intended to accrue on the $150,000 debt.

[¶ 10] We note at the outset that this case was tried as a breach of contract action. After the action was commenced, a judgment was entered in the proceedings, resulting in the settlement agreement. Once a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties. See Thomas v. Stone, 2006 ND 59, ¶ 11, 711 N.W.2d 199; Sullivan v. Quist, 506 N.W.2d 394, 399 (N.D.1993). Although the district court should have treated this case as an action on the judgment, the rules for interpreting judgments mirror the rules for interpreting contracts. Compare Thomas, at ¶ 11 (interpretation of judgments) with Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 20, 606 N.W.2d 908 (interpretation of contracts). Furthermore, extrinsic evidence of the parties’ intent may be considered when a stipulation is incorporated into a judgment if, after an examination of the judgment, the stipulated language is ambiguous and the incorporating court’s intent cannot be determined. Webster v. Regan, 2000 ND 89, ¶ 8, 609 N.W.2d 733; Webster v. Regan, 2000 ND 18, ¶ 7, 605 N.W.2d 808. Under the circumstances, the court’s treatment of this case as a contract action as presented by the parties rather than as an action on the judgment is harmless error.

[¶ 11] The parol evidence rule is partially codified in N.D.C.C. § 9-06-07:

The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.

[¶ 12] In Evenson v. Quantum Indus., Inc., 2004 ND 178, ¶ 11, 687 N.W.2d 241 (internal citations omitted), this Court explained:

The parol evidence rule is a rule of substantive law and precludes the use of evidence of prior oral negotiations and agreements to vary or add to the terms expressed in the written contract. All preliminary negotiations, conversations, and verbal agreements are merged into and superseded by the subsequent written contract. The rule is founded on experience and public policy, created by necessity, and designed to give certainty to a transaction that has been reduced to writing by protecting the- parties against the doubtful veracity and uncertain memory of interested witnesses.

A court may look to parol' evidence of intent when the written contract is ambiguous, or when it does not reflect the parties’ intent because of fraud, mistake, or accident. See Jorgensen v. Crow, 466 N.W.2d 120, 123 (N.D.1991). The parol evidence rule also does not preclude proof of the existence of a separate oral stipulation or agreement concerning any matter on which the written contract is silent, and which is not inconsistent with its terms, if the court infers from the circumstances that the parties did not intend the document to be a complete and final statement of the entire transaction. WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 39, 730 N.W.2d 841; Delzer v. United Bank, 459 N.W.2d 752, 755 (N.D.1990). The decision to admit parol evidence is a determination of law and is fully reviewable on appeal. See Jorgensen, 466 N.W.2d at 123.

[¶ 13] Here, John M. and Tom Sil-bernagel have not alleged fraud, mistake, or accident, or the existence of a separate oral agreement on which the settlement agreement is silent. Although they allege the settlement agreement is ambiguous because it' does not set forth a specific time within which the $150,000 was to be paid to them, the settlement agreement does provide Stephen and Jane Silbernagel “a reasonable period of time within which to secure financing to make the $150,000.00 payment.” The record establishes that Stephen and Jane Silbernagel have an approved loan from a bank for $150,000 subject to their providing evidence of clear title to the property, which would be used to secure the mortgage for the Iban. The inability of Stephen and Jane Silbernagel to provide evidence of clear - title to the property is due -in part to the failure of John M. and Tom Silbernagel to provide quit claim deeds to the property and their resistance to the quiet title actions. The attempt of John M. and Tom Silbernagel to present parol evidence that a specific number of days would be allowed to make the payment regardless of their efforts to thwart Stephen and Jane Silbernagel’s financing for the loan would directly conflict with the settlement agreement provision allowing Stephen and Jane Silbernagel “a reasonable period of time within which to secure financing to make the $150,000.00 payment.”

[¶ 14] Moreover, John M. and Tom Silbernagel’s attempt to introduce parol evidence that interest was intended to accrue on the $150,000 debt would vary and contradict the terms of the settlement agreement. The agreement succinctly provides that “[i]n full settlement of the pending actions, Steve and Jane Silberna-gel will pay to John M. Silbernagel and Tom Silbernagel the sum of $150,000.00.” Adding accrued interest would contradict the clear payment obligation of $150,000.

[¶ 15] We conclude the district court did not err in disallowing the introduction of parol evidence to vary the terms of the settlement agreement.

Ill

[¶ 16] John M. and Tom Silber-nagel argue the district court erred in denying their motion to amend the findings “to clarify and specify facts upon which it concluded that” they “had not performed their part of the settlement agreement to entitle them to recover damages from Steve and Jane Silbernagel, for their breach of the settlement agreement.”

[¶ 17] A district court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the decision. See Eifert v. Eifert, 2006 ND 240, ¶ 6, 724 N.W.2d 109. In ruling there was no breach of the settlement agreement, the district court relied on N.D.C.C. § 9-01-16, which provides in part:

Before any party to an obligation can require another party to perform any act under it, that party shall fulfill all conditions precedent thereto imposed upon that party and must be able, and shall offer, to fulfill all conditions concurrent so imposed upon that party on the like fulfillment by the other party, ...

[¶ 18] We can understand the factual basis for the court’s decision. The court specifically stated that John M. and Tom Silbernagel “have not assisted, or may even have hindered, Steve and Jane Sil-bernagel’s attempt to quiet title of the involved real estate,” and that “[t]heir actions have not allowed Steve and Jane Silbe[r]nagel to perform their contractual obligations.” Stephen and Jane Silberna-gel’s primary obligation under the settlement agreement is to pay John M. and Tom Silbernagel $150,000. The record unequivocally shows that John M. and Tom Silbernagel knew that Stephen and Jane Silbernagel needed a loan to make that payment, and the settlement agreement allowed them “a reasonable period of time within which to secure financing to make the ... payment.” Stephen and Jane Sil-bernagel secured financing, but only if they could produce “clear title” to the property. Cf. Kennedy v. Dennstadt, 31 N.D. 422, 154 N.W. 271, Syll. 1 (1915) (“An agreement by a vendor in an executory contract to furnish within a specified time an abstract showing a good and merchantable title to the property conveyed is a condition precedent, and the vendor must show a compliance therewith before he can require performance on the part of the vendee.”). John M. and Tom Silbernagel are charged with the responsibility under the settlement agreement that “should a quiet title action be necessary to clear title on the lands involved ... [they] will cooperate with said action to the fullest extent necessary by releasing their respective interests therein.” Instead, John M. and Tom Silbernagel have failed to provide appropriate quit claim deeds and have resisted the quiet title actions, even though Stephen and Jane Silbernagel have proposed an escrow agent to handle the transactions.

[¶ 19] Whether a party has breached a contract is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. WFND, LLG, 2007 ND 67, ¶ 13, 730 N.W.2d 841. We conclude the court’s finding that Stephen and Jane Silbernagel did not breach the settlement agreement is not clearly erroneous.

IV

[¶20] We granted Stephen and Jane Silbernagel’s motion to strike John M. and Tom Silbernagel’s inclusion of materials in their appendix and brief that were not a part of the record in violation of N.D.R.App.P. 30. Stephen and Jane Sil-bernagel argue sanctions should also be imposed.

[¶ 21] Whether to administer sanctions under N.D.R.App.P. 13 for noncompliance with the Rules of Appellate Procedure is discretionary with this Court. City of Fargo v. Wonder, 2002 ND 142, ¶ 7, 651 N.W.2d 665. We assess double costs against John M. and Tom Silbernagel, and assess attorney fees in the amount of $300 against their attorney, Donavin L. Grenz.

V

[¶ 22] The judgment is affirmed.

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


author: VANDE WALLE, Chief Justice.

text:
    2007 ND 113
    STATE of North Dakota, Plaintiff and Appellee, v. Charles Carnell EDWARDS, Defendant and Appellant.
    No. 20060254.
    Supreme Court of North Dakota.
    July 25, 2007.

      Thomas H. Falck, Jr., Grand Forks, ND, for plaintiff and appellee. Submitted on brief.
    Darla J. Schuman, Grand Forks, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Charles C. Edwards appealed from a district court order revoking his probation and resentencing him to serve the remaining 29 months on his conviction for aggravated assault. Edwards argues the district court erroneously revoked his probation in that case because his term of probation had expired. We reverse and remand for further proceedings.

I

[¶ 2] In August 1998, Edwards pleaded guilty to the offense of aggravated assault. The district court sentenced him to one year of imprisonment with 10 months suspended for four years, and four years of supervised probation. After his initial sentencing on the aggravated assault conviction, Edwards’ probation was revoked on that charge four times, in February 2000, July 2002, April 2005, and August 2006. Each time, the district court resentenced Edwards to additional time in prison. The district court also changed the terms of Edwards’ probation at several of these re-sentencings.

[¶ 3] Further complicating the facts in this case, Edwards was also sentenced on convictions for theft of property and bail jumping in February 2000. Edwards was sentenced to terms of imprisonment and supervised probation in each of these cases, to run consecutively with his sentence in the aggravated assault case. After his initial sentencing on these two charges, Edwards’ probation was revoked three times, in July 2002, April 2005, and August 2006. Each time, the district court revoked probation and resentenced Edwards on the aggravated assault, theft of property, and bail jumping charges at the same hearing.

[¶ 4] On appeal, Edwards argues the district court erroneously revoked his probation on the aggravated assault case in August 2006 because his term of supervised probation expired on September 22, 2003. The State concedes that an error was apparently made with regard to the aggravated assault case and that Edwards’ supervised probation may have expired prior to his resentencing in August 2006. If Edwards and the State are correct, Edwards is entitled to have his illegal sentence corrected, even though revocation of probation and resentencing on the other two charges was not illegal.

[¶ 5] Rule 35(a)(1), N.D.R.Crim. P., provides, “The sentencing court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided for reduction of sentence in Rule 35(b)(1).” A sentence is illegal under Rule 35(a) if it is not authorized by the judgment of conviction. State v. Raulston, 2005 ND 212, ¶ 7, 707 N.W.2d 464. We have recognized that an illegal sentence may be contrary to statute, fail to comply with a promise of a plea bargain, or be inconsistent with the oral pronouncement of the sentence. Id.

[¶ 6] In this case, Edwards claims his sentence was illegal because his probation in the aggravated assault case could not be revoked after the term of probation had expired. The district court has not had the opportunity to rule on the legality of the sentence, and we generally do not decide issues for the first time on appeal. Therefore, we reverse and remand for the purpose of allowing Edwards to make a motion to correct an illegal sentence under N.D.R.Crim.P. 35(a). If the district court finds that Edwards’ resentencing on the aggravated assault charge was illegal, it should issue an order correcting the sentence.

II

[¶ 7] We reverse the district court’s order and remand for further proceedings.

[¶ 8] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.