author: G. BARRY ANDERSON, Judge

text:
    STATE of Minnesota, Respondent, v. Terry Kim BREAUX, Appellant.
    No. C0-00-309.
    Court of Appeals of Minnesota.
    Jan. 2, 2001.

      Mike Hatch, Minnesota Attorney General; and Susan Gaertner, Ramsey County Attorney; and Jeanne L. Schleh, St. Paul, MN, (for respondent).
    Frederick J. Goetz, Goetz Law Office, Minneapolis, MN, (for appellant).
    Considered and decided by KLAPHAKE, Presiding Judge, HARTEN, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge

Appellant Terry Kim Breaux was convicted of possession of a firearm by an ineligible person in violation of Minn.Stat. § 624.713, subd. 1(b) and subd. 2 (1998). Appellant claims he was prejudiced by a mid-trial in camera hearing held outside his presence. Appellant further challenges the court’s ruling allowing the prosecutor to make a rebuttal argument pursuant to Minn.Stat. § 631.07 (Supp.1999). Finally, appellant asserts there was insufficient evidence to sustain his conviction. We affirm.

FACTS

On August 2, 1999, St. Paul police officers responded to a domestic disturbance call at 311 West George Street, in St. Paul, where J.N. lived with her mother . A female caller identified appellant as an ex-boyfriend in possession of a handgun in his waistband and reported he was walking east toward an apartment building at the end of the block. Officers responding to the call observed appellant walk into a nearby apartment building and into a first floor apartment in the building. Police followed appellant and found him in the apartment bathroom.

After searching appellant and finding no weapon, appellant and the officers were walking out of the apartment and into the entryway together when an officer noticed a rolled-up newspaper in a plastic delivery bag. The bag was approximately eye-level, adjacent to the wall on the sixth step of the stairway leading from the entryway up to the second floor apartments. There are only four apartments in the building.

The bag was examined and contained a silver .22 caliber handgun. Police seized the gun and arrested appellant. The state charged appellant with possession of a firearm by an ineligible person. As the police were preparing to leave the scene, J.N. turned over appellant’s Newport cigarette box which contained five .22 caliber bullets.

At trial, J.N. testified that, from a distance of three or four feet, she saw appellant slide something silver, later presumed to be the handgun, under a sofa in her living room the night before the 911 call. She then saw appellant put the Newport cigarette box on a stand next to the television. At trial she identified the cigarette box as the one appellant left in her front room which she helped to find and then ultimately turned over to the police. J.N. further testified that appellant was the only person in her house who smoked Newport cigarettes.

Appellant would not tell J.N. what the silver object was and so she told him if it was something illegal to take it out of the house. Appellant, with his back to J.N., reached under 'the couch, grabbed the silver item, made a motion towards the front of his body and walked out the door. He was gone for a few hours and then returned to the house.

The following day appellant demanded the return of the Newport cigarette box which he had left in the living room. He looked for it but could not find it. J.N. testified that appellant got upset because the box could not be found. J.N.’s mother asked appellant to leave the house if he was going to be upset about the missing box. J.N. testified that appellant said “don’t let me catch you outside” as he left the house. After leaving the house J.N. saw appellant momentarily in her backyard bushes before finally leaving.

J.N. testified that her cousin had put the cigarette box in another room. She and the cousin went to the front room where the cousin produced the Newport cigarette pack. After J.N. saw the bullets in the cigarette box, she told her mother and the decision was made to call the police

During cross-examination at trial, J.N., a prosecution witness, refused to provide the first name of the cousin. The district court called a recess and ordered the court reporter, the witness, and both counsel to retire to chambers for an in camera on-the-record discussion. Appellant remained in the courtroom. Appellant’s counsel did not object to the defendant’s absence from the conference.

In chambers the district court was unable to convince J.N. to answer the question. The court instead concluded it would be able to obtain the name from J.N.’s mother. Court then adjourned for the day. The following day, discussions continued outside the presence of the jury regarding what, if any, jury instruction should be given in light of J.N.’s refusal to give her cousin’s name. Ultimately, nothing further was said to the jury regarding the matter by the district court, and the issue was not revisited in the testimony of any witnesses.

After the close of evidence, the prosecution requested automatic rebuttal pursuant to Minn.Stat. § 631.07 (Supp.1999). The court granted the request over appellant’s objection that the statute violated the separation of powers doctrine, and was thus unconstitutional. The jury found appellant guilty of possession of a firearm by an ineligible person. This appeal followed.

Respondent has also filed a motion to strike a portion of appellant’s brief on the ground that it refers to matters outside the record on appeal.

ISSUES

I. Is Minn.Stat. § 631.07 (Supp.1999) constitutional in light of its apparent conflict with Minn.R.Crim.P. 26.03, subd. 11?

II. Was appellant deprived of his right to be present at every stage of his trial?

III. Was the evidence sufficient to support the jury’s guilty verdict?

ANALYSIS

I. The State’s Right of Rebuttal

The central issue in this case is the construction and application of Minn. Stat. § 631.07 (Supp.1999) in light of a conflicting provision found in Minn. R.Crim.P. 26.03, subd. 11. “In evaluating challenges to the constitutionality of statutes, this court recognizes that the interpretation of statutes is a question of law * * * .” In re Blilie, 494 N.W.2d 877, 881 (Minn.1993) (citation omitted). Accordingly, “this court ‘is not bound by the lower court’s conclusions.’ ” Id. (quoting Sherek v. Independent Sch. Dist. No. 699, 449 N.W.2d 434, 436 (Minn.1990)). Our review of this matter, however, is guided by principles of comity:

Due respect for the coequal branches of government requires the court to exercise great restraint before striking down a statute as unconstitutional, particularly when it involves a determination of what is a legislative and what is a judicial function.

State v. Willis, 332 N.W.2d 180, 184 (Minn.1983).

“Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citation omitted). To successfully challenge a statute, a party must demonstrate “beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.” Id. (citation omitted).

Following the close of evidence in this case, the prosecution requested automatic rebuttal under revised Minn.Stat. § 631.07, and the court granted the request over appellant’s objections. Minn.Stat. § 631.07 provides that:

When the giving of evidence is concluded in a criminal trial, unless the case is submitted on both sides without' argument, the prosecution may make a closing argument to the jury. The defense may then make its closing argument to the jury. The prosecution shall then have the right to reply in rebuttal to the closing argument of the defense.

At the time this new statute took effect on August 1, 1999, Minn.R.Crim.P. 26.03, subd. 11 provided, in relevant part, the following:

h. At the conclusion of the evidence, the prosecution may make a closing argument to the jury.
i. The defendant may then make a closing argument to the jury.
j. On the motion of the prosecution, the court may permit the prosecution to reply in rebuttal if the court determines that the defense has made in its closing argument a misstatement of law or fact or a statement that is inflammatory or prejudicial. The rebuttal must be limited to a direct response to the misstatement of law or fact or the inflammatory or prejudicial statement.

Thus, Minn.Stat. § 631.07 modified the existing order of final argument and gave the prosecution the right of automatic rebuttal. After the 1999 legislature amended the statute, the supreme court invited comment by interested parties on the issue of prosecutor rebuttal argument. The supreme court subsequently issued an order on February 11, 2000 amending Rule 26.03, subd. 11. The new rule provides as follows:

h. At the conclusion of the evidence, the prosecution may make a closing argument to the jury.
i. The defendant may then make a closing argument to the jury.
j. The prosecution may then make a rebuttal argument to the defense closing argument. The rebuttal must be limited to a direct response to those matters raised in the defendant’s closing argument.
k. On the motion of the defendant, the court may permit the defendant to reply in surrebuttal if the court determines that the prosecution has made in its rebuttal argument a misstatement of law or fact or a statement that is inflammatory or prejudicial. The surrebuttal must be limited to a direct response to the misstatement of law or fact or the inflammatory or prejudicial statement.
l. At the conclusion of the arguments the court shall allow the parties an opportunity, outside the presence of the jury and on the record, to make any objections they may have to the content or manner of the other party’s argument based upon existing law and to request curative instructions. This rule does not limit the right of any party under existing law to make appropriate objections and to seek curative instructions at any other time during the closing argument process.

Minn.R.Crim.P. 26.03, subd. 11. This rule change applied to all trials commencing on or after March 14, 2000. The new rule differs from Minn.Stat. § 631.07 in that it provides a slightly more restricted right of rebuttal as well as limited surrebuttal.

Appellant challenges Minn.Stat. § 631.07 as unconstitutional based on division of powers:

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

Minn. Const, art. Ill, § 1. Our supreme court has the authority to “regulate the pleadings, practice, procedure, and the forms thereof in criminal actions in all courts of this state, by rules promulgated by it from time to time.” Minn.Stat. § 480.059, subd. 1 (1998). This authority, acknowledged by the legislature, arises from the court’s inherent judicial powers. Willis, 332 N.W.2d at 184. Despite this recognized inherent power, the enabling legislation for the Rules of Criminal Procedure also purports to reserve to the legislature the right to “enact, modify, or repeal any statute or modify or repeal any rale of the supreme court adopted pursuant thereto.” Minn.Stat. § 480.059, subd. 8 (1998).

But our supreme court has previously concluded that

since the 1956 amendment to the Judiciary Article of the Minnesota Constitution removed the constitutional requirement that pleadings and proceedings be under the direction of the legislative body, under the separation of powers doctrine the legislature “has no constitutional authority in their enabling acts or otherwise to reserve a right to modify or enact statutes, that will govern over court rules [of procedure] already in place.”

State v. Johnson, 514 N.W.2d 551, 554 (Minn.1994) (quoting Maynard E. Pirsig & Randall M. Tietjen, Court Procedure and the Separation of Powers in Minnesota, 15 Wm. Mitchell L.Rev. 141,182 (1989)).

This court has previously stated that “[w]hile the legislature creates law, it has no constitutional authority to modify or enact statutes that overrule court rules of procedure.” Lombardo v. Seydow-Weber, 529 N.W.2d 702, 704-705 (Minn.App.1995) (citing Johnson, 514 N.W.2d at 553-54), review denied (Minn. Apr. 27, 1995). In Lombardo, we went on to conclude that “[cjreation of court procedure is purely a judicial function.” Id. at 705. As our supreme court has previously warned,

if it is a judicial function that the legislative act purports to exercise, we must not hesitate to preserve what is essentially a judicial function.

Sharood v. Hatfield, 296 Minn. 416, 423, 210 N.W.2d 275, 279 (1973).

Recently, in State v. Wolf, 605 N.W.2d 381 (Minn.2000), our supreme court was faced with a conflict between a state statute and a rule of criminal procedure, both involving venue for a criminal trial. The court concluded, as a matter of comity, that to the extent the statute conflicted with the rule, it nevertheless could be applied in the circumstance presented:

While retaining our inherent rule-making authority over the courts and their procedures, we have deferred to limited legislative involvement in procedural matters, however our deference is that of comity.

Id. at 387. We likewise defer to the legislature’s enactment of § 631.07 here not as any acknowledgement of legislative authority but strictly as a matter of comity. We thus reject appellant’s constitutional challenge.

Finally, “[i]n matters of procedure rather than of substance, the Rules of Criminal Procedure take precedence over statutes to the extent there is any inconsistency.” State v. Cermak, 350 N.W.2d 328, 331 (Minn.1984). This case is no different. Thus, courts should look to Minn. R.Crim.P. 26.03, subd. 11, as the final word on the right of rebuttal during closing argument, and the limited right of surre-buttal.

II. Right to be Present

Appellant contends that he was wrongfully excluded from an in-chambers hearing regarding J.N.’s refusal to answer a question on cross-examination. The court determined that the name could be obtained from J.N.’s mother and decided to let the matter of contempt go. The name and phone number of the cousin was obtained and the cross-examination of J.N. proceeded without further incident. The defense chose not to call J.N.’s cousin as a witness. Then, during closing argument, the defense repeatedly characterized J.N.’s cousin as her “mysterious cousin,” and attempted to use the fact that J.N. was unwilling to provide the cousin’s first name to its advantage.

Under the Minnesota Rules of Criminal Procedure, criminal defendants have a right to be present at every stage of their trial. Minn.R.Crim.P. 26.03, subd. 1; State v. Ware, 498 N.W.2d 454, 457 (Minn.1993). The right to be present under this rule is broader than the federal constitutional right to be present at all critical stages of trial. Id. A defendant may waive the right to be present, but the “decision to waive is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel.” Id. Here, there was no evidence of waiver.

While appellant can make a reasonable argument for error here, we need not reach the question of whether the court erred. Even if a defendant’s right to be present is violated, “the defendant is not entitled to relief if it can be said that the error was harmless error beyond a reasonable doubt.” Id. at 457-58.

In performing harmless error analysis, we must examine the record as to whether the evidence against the defendant was overwhelming, the strength of the defense’s evidence, what the defendant would have contributed to his defense if he had been present, and whether an appropriate cautionary instruction was given. See State v. Bolte, 530 N.W.2d 191, 198-99 (Minn.1995) (listing factors of harmless error analysis); State v. Bouwman, 354 N.W.2d 1, 8 (Minn.1984) (defendants have right to be personally present at every stage of the trial “where their presence relates to the fullness of their opportunity to defend against the charge”) (citation omitted).

The paramount issue at trial was whether or not appellant was in possession of a firearm. J.N.’s cousin was relevant only to the location of the cigarette box which contained some .22 caliber bullets on the day of appellant’s arrest. This evidence was only a small piece of the state’s substantial circumstantial case. “In our analysis, we look to the record as a whole.” State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997).

Here the evidence against appellant was significant, if not overwhelming. The court concluded it was unnecessary to give a curative instruction, given that the name of the cousin was readily provided by J.N.’s mother. The district court has “broad discretion” to fashion appropriate curative instructions. Poston v. Colestock, 540 N.W.2d 92, 94 (Minn.App.1995), review denied (Minn. Jan. 25, 1996). The court’s decision not to give a curative instruction in this case was a permissible exercise of that discretion.

It is highly doubtful that the court’s in-chambers attempt to get J.N. to provide the first name of her cousin without the presence of appellant was a factor in appellant’s conviction. Appellant has not offered any theory regarding what appellant would have contributed to his defense had he been present in chambers. Because there is no reasonable probability of a verdict more favorable to appellant if he had been present in chambers, any violation of appellant’s right to be present was harmless beyond a reasonable doubt.

III. Sufficiency of the Evidence

Appellant challenges his conviction for unlawful possession of a firearm in violation of Minn.Stat. § 624.713, subd. 1(b) (1998). Appellant claims the state presented insufficient evidence to support the jury’s verdict.

Where a claim of insufficiency of the evidence is made, the reviewing court’s function is limited to

ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.

State v. Johnson, 568 N.W.2d 426, 435 (Minn.1997) (citation omitted). The evidence must be viewed in a light most favorable to the conviction and the reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence. Id.

Appellant contends that the state’s case was built entirely on circumstantial evidence. A conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence. State v. Jones, 516 N.W.2d 545, 549 (Minn.1994). Despite this stricter standard of review, however, a jury is in the best position to evaluate circumstantial evidence, and its verdict must be given due deference. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). In cases based on circumstantial evidence, “[a]s in all cases, the jury determines the credibility and weight given to the testimony of individual witnesses.” State v. Bias, 419 N.W.2d 480, 484 (Minn.1988) (citations omitted).

[A] conviction based on circumstantial evidence will be upheld and such evidence is entitled to as much weight as any other kind of evidence, so long as a detailed review of the record indicates that the reasonable inferences from such evidence are consistent only with the defendant’s guilt and inconsistent with any rational hypothesis except that of guilt. Inconsistencies in the state’s case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable. Thus, to succeed in a challenge to a verdict based on circumstantial evidence, a convicted person must point to evidence in the record that is consistent with a rational theory other than guilt.

State v. Ostrem, 535 N.W.2d 916, 923 (Minn.1995) (citations omitted) (emphasis added).

The state may obtain a conviction for violation of Minn.Stat. § 624.713, subd. 1(b), by establishing either actual or constructive possession. State v. Loyd, 321 N.W.2d 901, 902 (Minn.1982). In order to prove constructive possession, the state must show: (a) that the police found the item in a place under defendant’s exclusive control to which other people did not normally have access, or (b) that, if police found the item in a place to which others had access, there is a strong probability, inferable from the evidence, that defendant was consciously exercising dominion and control over it at the time. State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975). Proximity is an important factor in establishing constructive possession. See, e.g., State v. Cusick, 387 N.W.2d 179, 181 (Minn.1986) (holding evidence of constructive possession by driver sufficient where cocaine was found next to driver’s wallet on ground near vehicle, even though vehicle’s owner testified that the cocaine was hers).

The circumstantial evidence against appellant is substantial. “Deciding the credibility of witnesses is generally the exclusive province of the jury.” State v. Doppler, 590 N.W.2d 627, 635 (Minn.1999) (citations omitted). Here, the jury likely believed the testimony of J.N. and the law enforcement officers; in fact, the reviewing court must make this assumption. Johnson, 568 N.W.2d at 435. “A conviction can rest on the uncorroborated testimony of even a single credible witness.” State v. Head, 561 N.W.2d 182, 188 (Minn.App.1997) (citation omitted), review denied (Minn. May 28,1997).

The defense called no witnesses. Appellant has failed to point to any evidence in the record that is consistent with a rational theory other than guilt. The evidence is sufficient for a reasonable jury to find appellant guilty beyond a reasonable doubt. Appellant’s sufficiency of the evidence claim is without merit.

IY. Respondent’s Motion to Strike

Respondent filed a motion to strike a portion of appellant’s brief on the ground that it refers to matters outside the record on appeal. The request refers specifically to an article from the Star Tribune in the briefs appendix, and the citation made to it in appellant’s brief.

The general rule is that this court will not consider evidence outside the record. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd, 504 N.W.2d 758 (Minn.1993). The record on appeal is comprised of “[t]he papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.” Minn.R.Crim.P. 28.02, subd.8. A reviewing court “cannot base its decision on matters outside the record’ on appeal and any matters not part of the record must be stricken.” Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn.App.1987).

We conclude that this newspaper article is not offered either as evidence, nor to establish facts outside the record. We find no justification for striking the newspaper article or citations to it. See State v. Rewitzer, 617 N.W.2d 407, 411 (Minn.2000) (declining to strike reference to materials the court could have discovered on its own, in the course of its own research).

DECISION

Minn.Stat. § 681.07 is not unconstitutional. The district court properly granted the prosecution’s request for rebuttal. Any error in failing to include appellant in the in-ehambers hearing was harmless. Appellant’s conviction is supported by the evidence.

Affirmed.

      . Also living in the house at the time were J.N.'s cousin, J.N.'s brother, the brother’s girlfriend and their child.

      . It is worth noting that the prosecution's rebuttal argument was very limited, consisting of less than two pages of transcript, and appellant does not allege that anything specifically argued by the respondent in rebuttal was inflammatory or otherwise objectionable. Appellant asserts in its brief to this court only that allowing the prosecution "the last word * * * contributed to the verdict against him." But appellant offers no support for this claim.


source: Caselaw Access Project

author: WILLIS, Judge

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Brian Edward LARKIN, Respondent.
    No. C0-00-1153.
    Court of Appeals of Minnesota.
    Jan. 2, 2001.
    Mike Hatch, Attorney General, St. Paul, and G. Paul Beaumaster, Rice County Attorney, Nathaniel J. Reitz, Assistant County Attorney, Rice County Courthouse, Far-ibault, for appellant.
    Stephen R. Ecker, Faribault, for respondent.
    Considered and decided by WILLIS, Presiding Judge, FORSBERG, Judge, and HOLTAN, Judge.

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

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

   OPINION

WILLIS, Judge

On appeal from dismissal for lack of probable cause, the state challenges the district court’s determination that temporary loss of consciousness is not “substantial bodily harm,” an element of third-degree assault under MinmStat. § 609.223, subd. 1 (1998). Because we conclude that an individual who assaults another, causing temporary loss of consciousness, has inflicted substantial bodily harm, we reverse and remand.

FACTS

On January 12, 2000, two jailers at the Rice County jail noticed inmate Tracy Sailor trying to get their attention on a surveillance monitor. When they investigated, they found Jesse Fenney unconscious on the floor of the cell he shared with Sailor and respondent Brian Larkin. The jailers called Fenney’s name several times; when he eventually opened his eyes he appeared dazed and disoriented. Because Fenney could not stop shaking, he was taken to the hospital, where he was examined and released without treatment. Larkin admitted to having choked Fenney because Fenney had been “pushing his buttons all day” and had insulted him. Larkin was charged with third-degree assault.

At the probable-cause hearing the only issue before the district court was whether temporary loss of consciousness is “substantial bodily harm,” an element of third-degree assault. The court determined that it is not and dismissed the charge against Larkin for lack of probable cause. The state appeals that determination.

ISSUE

Is an individual who assaults another, causing temporary loss of consciousness, guilty of third-degree assault under Minn. Stat. § 609.223, subd. 1 (1998)?

ANALYSIS

Larkin was charged with third-degree assault. Under Minnesota law, “[wjhoever assaults another and inflicts substantial bodily harm” is guilty of assault in the third degree. Minn.Stat. § 609.223, subd. 1 (1998). Substantial bodily harm is

bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.

Minn.Stat. § 609.02, subd. 7a (1998). The district court, concluding that temporary loss of consciousness is not substantial bodily harm, dismissed the charge against Larkin for lack of probable cause. A dismissal for lack of probable cause is appeaL able if it is based on a legal determination such as interpretation of a statute. State v. Ciurleo, 471 N.W.2d 119, 121 (Minn.App.1991). As with other legal determinations, such a dismissal is reviewed de novo. See State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999) (reviewing de novo dismissal for lack of probable cause based on statutory interpretation).

In State v. Stafford, the supreme court stated, “Arguably, ‘great bodily harm’ is inflicted if one knocks someone out briefly.” State v. Stafford, 340 N.W.2d 669, 670 (Minn.1983) (citing State v. Jones, 266 N.W.2d 706 (Minn.1978)). But the Stafford court went on to state that “[w]e need not decide this” because the defendant was charged with only third-degree assault, and the court was satisfied that if the state could establish that the defendant broke the victim’s nose, this alone would meet the requirement of “substantial bodily harm.” Id. In State v. Jones, the case the Stafford court cited for the proposition that unconsciousness is “arguably” great bodily harm, the victim was not merely knocked unconscious, but was

unconscious and on the verge of shock. She had to be put in a “shock suit” for transfer to the hospital. She did not regain consciousness until the following day. She remained hospitalized for a week. * ⅞ ⅞ [S]he almost suffered a miscarriage and was prescribed bed rest. ⅜ * * [H]er left leg was numb for several weeks, she had dizziness and headaches until just before trial, and she still had numbness in her teeth at the time of trial.

Jones, 266 N.W.2d at 710. The court concluded that these “injuries would seem to fit within the phrase ‘other serious bodily harm,’ ” which is part of the definition of great bodily harm. Id. (emphasis added). The court did not determine whether unconsciousness alone was either substantial bodily harm or great bodily harm. See id. In State v. Gorman, this court cited Jones for the proposition that “[a] state of unconsciousness verging on shock” satisfied the “higher standard” of great bodily harm. State v. Goman, 532 N.W.2d 229, 233 (Minn.App.1995). Therefore, the court concluded, “loss of consciousness” and “a concussion” satisfied the standard of substantial bodily harm. Id. Whether a temporary loss of consciousness, on it own, is substantial bodily harm for the purpose of Minn.Stat. § 609.223, subd. 1, is a question of first impression.

Substantial bodily harm includes “bodily injury * * * which causes a temporary but substantial loss or impairment of the function of any bodily member or organ.” Minn.Stat. § 609.02, subd. 7a. Thus, if an individual assaults another and inflicts bodily injury that causes a temporary but substantial loss or impairment of the function of any bodily member or organ, he or she is guilty of third-degree assault. See Minn.Stat. § 609.223, subd. 1. “Unconscious” means “[Hacking awareness and the capacity for sensory perception” or “not conscious.” American Heritage Dictionary 1873 (4th ed.2000). Definitions of “conscious” include “[hjaving an awareness of one’s environment and one’s own existence, sensations, and thoughts” and “[mjentally perceptive or alert.” Id. at 391. The brain is “the primary center for ⅜ * * receiving and interpreting sensory impulses.” Id. at 222. Thus, an individual who is rendered unconscious temporarily loses or is impaired in a function of the brain, that is, the ability to receive and interpret sensory impulses. Although temporary, this loss or impairment of sensory brain function is total and thus “substantial.” Therefore, we conclude that temporary loss of consciousness, on its own, is substantial bodily harm for the purpose of Minn.Stat. § 609.223, subd. 1.

Because the district court believed “it is ambiguous whether a brief period of unconsciousness can be characterized as ‘substantial bodily harm,’ ” it applied the rule of lenity, under which “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity towards the defendant.” State v. Orsello, 554 N.W.2d 70, 74 (Minn.1996) (quotation and citations omitted). “A statute is ambiguous if it is reasonably susceptible to more than one interpretation.” State v. Collins, 580 N.W.2d 36, 41 (Minn.App.1998), review denied (Minn. July 16, 1998) (quotation omitted). In applying the rule of lenity, courts determine the reasonableness of an interpretation by reference to the purpose of the rule, which is to ensure fair public notice of what conduct is considered illegal. Id.

Here, there is no question whether the statute makes illegal “assaulting] another and inflicting] substantial bodily harm.” Minn.Stat. § 609.223, subd. 1. Defining the infliction of substantial bodily harm to include causing a loss of consciousness is reasonable under the plain-meaning rule. See Collins, 580 N.W.2d at 41-42 (applying plain-meaning rule in determining that statute was not ambiguous and rule of lenity did not, therefore; apply); Minn.Stat. § 645.08(1) (1998) (providing that words and phrases are to be construed “according to their common and approved usage”). We do not find it reasonable to conclude that (1) one who assaults another and causes him or her to lose consciousness has not inflicted substantial bodily harm on that person or (2) that a defendant reading the statute would presume so. Because the statute is not reasonably susceptible to more than one interpretation it is not ambiguous, and the rule of lenity is therefore inapplicable.

DECISION

An individual who assaults another and causes temporary loss of consciousness has inflicted substantial bodily harm and is guilty of third-degree assault under Minn. Stat. § 609.223, subd. 1 (1998).

Reversed and remanded.

      . " 'Great bodily harm' means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.” Minn.Stat. § 609.02, subd. 8 (1998). It is an element of first-degree assault under Minn.Stat. § 609.221, subd. 1 (1998).

      . In State v. Williams, this court noted that the word “substantial,” as used in the phrase "substantial bodily harm,” "is a term employed in common usage and legal proceedings to mean 'considerable size or amount.’ State v. Williams, 451 N.W.2d 886, 890 (Minn.App.1990).


author: MARING, Justice. MARING, Justice,

text:
    2000 ND 185
    Charles E. SYVERTSON, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20000100.
    Supreme Court of North Dakota.
    Oct. 26, 2000.
    Rehearing Denied Dec. 21, 2000.

      Charles E. Syvertson (submitted on brief), pro se, North Dakota State Penitentiary, Bismarck, ND, petitioner and appellant.
    Wade L. Webb (submitted on brief), Assistant State’s Attorney, Cass County Courthouse, Fargo, ND, for respondent and appellee.
   MARING, Justice.

[¶ 1] Charles E. Syvertson appeals from a judgment denying his application for post-conviction relief. We affirm the judgment.

I.

[¶ 2] In January of 1998, Syvertson was convicted of two class B felony counts of gross sexual imposition. Syvertson appealed his conviction to the North Dakota Supreme Court, where it was affirmed. State v. Syvertson, 1999 ND 134, 597 N.W.2d 652.

[¶ 3] On January 20, 2000, Syvertson, acting pro se, applied for post-conviction relief. In his application, Syvertson states seven grounds for post-conviction relief. He claims: (1) he was denied due process of law and fair hearings because the State failed to comply with discovery requests; (2) he was denied effective assistance of counsel; (3) his Fifth Amendment rights to counsel and against self-incrimination were violated; (4) certain testimony given at trial violated his rights to due process of law and confrontation; (5) the December 23, 1997, Order granting partial suppression was void; (6) he was denied his Sixth Amendment right to confrontation; and (7) he was denied due process of law by the “State’s deception on Rule 16 Discovery.” Syvertson filed a “Notice of Motions For Hearing,” dated January 17, 2000. His motion stated that oral arguments would proceed “at a time and date that Syvertson will set and notify the respondents of....”

[¶ 4] On January 31, 2000, Syvertson filed a demand for a change of judge. In his brief to support the change of judge demand, he argued a change of judge was necessary because in his application for post-conviction relief he claimed errors of law. That same day, the State filed its response to Syvertson’s demand for change of judge. On February 2, 2000, the trial court denied Syvertson’s demand for a change of judge, reasoning that under Falcon v. State, 1997 ND 200, 570 N.W.2d 719, Syvertson was not entitled to a new judge because the post-conviction judge was also the trial judge.

[¶ 5] Syvertson filed a “Motion to Remove Judge/Affidavit of Prejudice/Brief,” on February 8, 2000, alleging the trial judge was biased against him throughout the original proceedings. The State did not file a response to this motion. In its final judgment, the trial court denied Sy-vertson’s motion to remove the judge.

[¶ 6] On February 22, 2000, the State filed its response to Syvertson’s post-conviction relief application, opposing Syvert-son’s seven stated grounds for relief. Sy-vertson filed a response to the State’s motion for summary disposition on March 2, 2000. Accompanying that response was Syvertson’s cross motion for summary disposition in his favor. On that same date, Syvertson filed a “Notice for Motions for Hearing,” stating a hearing on the state’s motion for dismissal and Syvertson’s cross motion for judgment would be set “at a time and date set by the calander [sic] clerk and which will be notifyed [sic] in the futiré [sic].”

[¶ 7] Syvertson sent a letter to the court, on March 23, 2000, requesting it rule on his motion to remove the judge based on prejudice. The court filed a three page memorandum and opinion denying Syvert-son’s post-conviction relief application on March 24, 2000. In its opinion, the court stated all matters in support of Syvertson’s post-conviction relief were fully and fairly determined in previous post-conviction proceedings and a previous appeal to the Supreme Court. Specifically, the trial court stated that Syvertson’s issues 1, 3, 4, 5, 6, and 7 were raised in a previous post-conviction application and appeal and were fully adjudicated. The court went on to state that “[Syvertson’s] issue number 2, ineffective assistance of counsel, appealed] to be simply a means by which [Syvertson] raise[d] issues previously fully adjudicated upon the basis of ineffective assistance of counsel.” The court noted that Syvertson failed to raise this issue in both his previous application and his appeal to this Court. The trial court further stated that Syvertson’s current application for post-conviction relief was a misuse of process, “including, but not limited to, that it arises from an inexcusable failure of the applicant to raise a claim for relief in other proceedings and that it is frivolous both on factual and legal grounds.”

[¶ 8] In denying Syvertson’s post-conviction application, the trial court mistakenly quoted the wrong appeal to this Court. It considered Syvertson’s appeal to the North Dakota Supreme Court of Criminal Nos., 980269, 980270, 980340. State v. Syvertson, 1999 ND 137, 597 N.W.2d 644. The issues in that appeal stem from an incident in West Fargo on July 10, 1997. That case is not applicable to the issues in this case. The issues in this case stem from two incidents involving a minor girl in Fargo in late 1993. Although Syvertson has not previously applied for post-conviction relief regarding his conviction stemming from these incidents he has brought a direct appeal. Syvertson, 1999 ND 134, 597 N.W.2d 652. Syvertson filed his notice of appeal from the trial court’s order denying post-conviction relief on March 31, 2000.

II.

[¶ 9] Syvertson first contends that he was denied due process of law because the trial court erred in denying him oral arguments with respect to certain motions. Specifically, Syvertson argues he requested oral arguments on January 20, 2000, and again on March 2, 2000, and twice he was denied such arguments. We disagree.

[¶ 10] North Dakota Rule of Court 3.2(a) provides that timely requests for oral argument must be granted to any requesting party, including a prison inmate, who has timely served and filed a brief. Walbert v. Walbert, 1997 ND 164, ¶ 9, 567 N.W.2d 829. The Rule, however, also provides that “[t]he party requesting oral argument shall secure a time for the argument and serve notice upon all other parties.” N.D.R.Ct. 3.2(a). A request is rendered incomplete if one fails to secure a time for oral argument. Huber v. Oliver County, 529 N.W.2d 179, 183 (N.D.1995).

[¶ 11] In this case, Syvertson’s requests for oral arguments are incomplete. The first request, filed January 20, 2000, stated oral arguments would proceed “at a time and date that Syvertson will set and notify the respondents of....” The second request, filed March 2, 2000, stated oral arguments would be set “at a time and date set by the calander [sic] clerk and which will be notifyed [sic] in the futiré [sic].” Syvertson made no further attempts to secure a time for oral arguments, thus, his requests are rendered incomplete.

III.

[¶ 12] Syvertson next contends that the trial court made erroneous findings of fact. He argues the trial court’s findings correspond to his application for post-conviction relief concerning the West Fargo case and not the case involving the incidents in Fargo in 1993. We agree. However, with the exception of issue number two, we conclude Syvertson’s stated grounds for relief have either been fully and fairly determined in his previous direct appeal or he inexcusably failed to raise them in that appeal. Syvertson, 1999 ND 134, 597 N.W.2d 652.

[¶ 13] North Dakota Century Code § 29-32.1-09(1), provides that a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292 (citation omitted). Our review of a summary denial of post-conviction relief is similar to our review of an appeal of a summary judgment. Owens v. State, 1998 ND 106, ¶ 13, 578 N.W.2d 542. A “party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding, and is entitled to an evidentia-ry hearing if a reasonable inference raises a genuine issue of material fact.” DeCoteau v. State, 1998 ND 199, ¶ 4, 586 N.W.2d 156. If the moving party establishes there is no genuine issue of material fact the burden shifts to the nonmoving party to show a genuine issue of fact exists. Wilson v. State, 1999 ND 222, ¶ 14, 603 N.W.2d 47 (citation omitted). The resisting party may not merely rely on pleadings or unsupported conclusory allegations. Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329. Rather, the resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. Id.

[¶ 14] The State’s motion to dismiss Sy-vertson’s application asserted the affirmative defenses of res judicata and misuse of process under N.D.C.C. § 29-32.1-12(1) and (2). In summarily dismissing Syvert-son’s application, the trial court relied on both affirmative defenses. Although it relied on the wrong opinion, we conclude Syvertson’s claims for post-conviction relief are subject to the affirmative defenses set forth in N.D.C.C. § 29-32.1-12(1) and (2).

[¶ 15] Section 29-32.1-12(1), N.D.C.C., authorizes the denial of post-conviction applications if the same claim or claims have been fully and finally determined in a previous proceeding. Clark, 1999 ND 78, ¶ 8, 593 N.W.2d 329. Claims that have been previously raised on direct appeal cannot subsequently be raised again in a post-conviction application. Id.

[¶ 16] Following a thorough examination of the record, we find that several of Syvertson’s issues fall within the doctrine of res judicata. N.D.C.C. § 29-32.1-12(1). Post-conviction applicants are not entitled to avoid the res judicata rule by raising contentions in an application which are “simply variations” of previous arguments. Owens, 1998 ND 106, ¶ 41, 578 N.W.2d 542. Syvertson’s issues 1, 3, 4, 5, and 6 are all related to the issue of the admissibility of statements made by Syvertson that were not suppressed at trial. Syvertson contended on direct appeal that the trial court erred in denying his motion to suppress statements made at the second interrogation because he was not provided counsel after he requested an attorney when first booked into jail. Sy-vertson, 1999 ND 134, ¶ 15, 597 N.W.2d 652. We concluded the undisputed evidence established Syvertson was offered the opportunity to contact a lawyer, but failed to do so, and his claim that his statements should be suppressed because he demanded an attorney was without merit. Id. at ¶ 16. Syvertson further contended his confession during the second interrogation was involuntary and tainted by the lack of Miranda warnings during the first interview and the use of coercive tactics by the officer. Id. at ¶ 17. We concluded the statements made during the second interview were voluntary and untainted. Id. at ¶ 27. Therefore, all issues regarding the admissibility of Syvertson’s statements have been fully and fairly determined in his previous appeal to this Court.

[¶ 17] However, even if Syvertson’s arguments are not barred under the doctrine of res judicata clearly they are barred under N.D.C.C. § 29-32.1-12(2), misuse of process. Syvertson’s issues 1, 3, 4, 5, and 6 are of the type appropriate for review on direct appeal, and Syvertson did not provide us with a reason why he should be excused from not raising these issues on direct appeal.

[¶ 18] In Clark, 1999 ND 78, ¶23, 593 N.W.2d 329, we explained under N.D.C.C. § 29-32.1-12(2), a misuse of process “occurs (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings; and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application.” (Citations omitted.)

[¶ 19] Syvertson’s issue number 7 is subject to the affirmative defense of misuse of process. Syvertson contends certain transcripts were not made available to him and that audio and video tapes of his interrogations are not complete and accurate. On July 28, 1997, Syvertson, through his attorney, made a Rule 16 Motion for Discovery. Thereafter, the State provided Syvertson with certain transcripts and interrogation tapes. Syvertson now claims that he was not given all the tapes or that such tapes were spliced and are missing crucial testimony. Upon receiving these transcripts and interrogation tapes, Syvertson inexcusably failed to pursue these issues in the proceedings leading to his conviction. He also has offered no explanation for his failure to pursue the issue on direct appeal. He asserts he had no knowledge of certain contents of the tapes, but admits he and his counsel reviewed them at trial. Because both audio and video tapes were made available to Syvertson at the time of trial, and he failed to pursue the issue on direct appeal, the issue is barred as a misuse of process.

[¶ 20] Syvertson also contends that law enforcement personnel broke the chain of custody with respect to these tapes because a secretary made a transcript of the tapes prior to trial. He states that the State violated discovery rules because he was under the impression that these tapes remained locked away in the police officer’s office until trial. If indeed Syvertson objected to the foundation that was laid at trial prior to the admission of the tapes, he should have raised the issue then and on direct appeal. Accordingly, Syvertson’s pursuit of this issue is a misuse of process.

[¶ 21] Syvertson’s second issue is ineffective assistance of counsel. We have stated that claims of ineffective assistance of counsel should not be brought on direct appeal, unless the assistance of counsel was plainly defective on the record. State v. Fraser, 2000 ND 53, ¶ 23, 608 N.W.2d 244. Ordinarily, ineffective assistance of counsel claims are unsuited for summary disposition because they require development of the record in an evidentiary hearing. Abdi 2000 ND 64, ¶ 31, 608 N.W.2d 292. However, if the petitioner does not raise a genuine issue of material fact, summary disposition is appropriate. Mertz v. State, 535 N.W.2d 834, 838 (N.D.1995).

[¶ 22] In order to establish his claim of ineffective assistance of counsel, Syvert-son’s burden is two-fold. DeCoteau v. State, 2000 ND 44, ¶ 8, 608 N.W.2d 240. He must prove first, that his counsel’s representation fell below an objective standard of reasonableness, and second, that he was prejudiced by counsel’s deficient performance. Id. The prejudice element requires that Syvertson establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different. Mertz, 535 N.W.2d at 836.

[¶ 23] We conclude Syvertson failed to raise a genuine issue of material fact that he was prejudiced by his attorney’s alleged deficient representation. In his application, Syvertson claims two instances of ineffective assistance of counsel. Syvertson first argues his attorney failed to have transcripts prepared of the May 19, 1997, interrogation which would have shown that the police officers’- conduct tainted subsequent statements. Syvert-son’s second argument is that his attorney failed to argue he had demanded counsel when questioned about pornographic materials found in his car and that any subsequent interrogation, therefore, should not have taken place.

[¶ 24] Syvertson’s attorney made a motion to suppress statements made prior to Miranda warnings and following Miranda warnings. The trial court suppressed pre-Miranda statements, but refused to suppress post-Miranda statements. The fact that Syvertson’s attorney failed to make transcripts of the first interrogation that Syvertson claims could have shown that police techniques were paternalistic, sympathetic, and encouraging is of no consequence to the outcome of his case. The police officer who performed the interrogation admitted he had lied and that he used such techniques on Syvertson in the hope that Syvertson would make a confession. On direct appeal, we considered the effect of such techniques used in the pre-Mi-randa interrogation and determined that they did not render Syvertson’s post-Miranda statements involuntary or tainted. Syvertson, 1999 ND 134, ¶ 27, 597 N.W.2d 652. Thus, Syvertson has failed to satisfy his burden of raising a genuine issue of material fact of prejudice.

[¶ 25] Syvertson’s second claim of ineffective counsel is also without merit. He contends that his attorney failed to argue that he had demanded counsel when questioned about pornographic materials found in his car and again at the time of his arrest and booking and that as a result any subsequent interrogations should not have taken place. The trial court, however, did suppress all of Syvertson’s statements that were made at the first interrogation on May 19, 1997. On direct appeal to this Court, Syvertson claimed all of his statements should be suppressed because he was not provided an attorney when he was first booked on May 17, 1997. We concluded the undisputed evidence established Syvertson was given an opportunity to contact a lawyer, but failed to do so, and his claim that all subsequent statements should have been suppressed was without merit. Syvertson, 1999 ND 134, ¶ 16, 597 N.W.2d 652. During the second interview, Syvertson. was advised of his Miranda rights, and on direct appeal, we concluded his waiver of his rights was voluntary and not tainted by the first interview. Id. at ¶27. We stated: “[i]ndeed, the Supreme Court has said even a suspect who has expressed a desire to deal with police only through counsel may be subject to further interrogation by authorities if ‘the accused himself initiates further communication, exchanges, or conversations with the police.’ ” Id. (citations omitted). Syvertson has failed to raise a genuine issue of material fact of prejudice.

IV.

[¶ 26] Syvertson finally contends that upon his application for post-conviction relief he should have been entitled to a new judge. If he is not afforded a peremptory removal of a judge, Syvertson argues he should have been entitled to a new judge because his trial judge was prejudiced against him throughout the original proceedings. We disagree.

[¶ 27] In North Dakota, post-conviction proceedings are appropriately treated as a continuation of the criminal prosecution for purposes of N.D.C.C. § 29-15-21. Falcon, 1997 ND 200, ¶ 18, 570 N.W.2d 719. We have stated that when the post-conviction judge is also the trial judge, the party bringing a post-conviction application petition is not entitled to a new judge under N.D.C.C. § 29-15-12. Id. Moreover, we have stated no policy against using the same judge in a post-conviction proceeding. Id. at ¶ 15. Absent a showing of bias or prejudice, the post-conviction proceedings should be heard by the same judge. Id. at ¶ 18.

[¶28] Syvertson has alleged no meaningful allegations of prejudice or bias. Rather, his only contention is that the trial judge was without jurisdiction to rule on the matter once he alleged prejudice. A judge, however, may determine the matter of his or her own disqualification. Consequently, the trial court properly denied Syvertson a peremptory removal of the judge and a change of judge based on prejudice.

[¶ 29] We have considered Syvertsoris remaining issues, and we conclude they are without merit. No purpose would be served by further discussing them. The judgment of the trial court is affirmed.

[¶ 30] VANDE WALLE, C.J., NEUMANN, SANDSTROM, KAPSNER, JJ., concur.

On Petition for Rehearing

MARING, Justice,

on petition for rehearing.

[¶ 31] Syvertson has filed a petition for rehearing, contending he was denied oral arguments despite his request. Although we deny his petition, we take this opportunity to clarify our decision.

[¶ 32] On January 20, 2000, Syvertson filed a “NOTICE OF MOTIONS FOR HEARING.” He stated:

Oral arguments and [e]videntiary [h]ear-ing will be held ... at a time and date that Syvertson will set and notify the respondents of after responses, repl[i]es, orders accordingly, ap[p]rop[r]iate amendments and motions and orders related, review of transcripts and tapes[ ]by Syvertson and any experts, applications for [s]ubp[oe]nas filed and issued for needed witnesses.

[¶ 33] The State served and filed on February 22, 2000, a “Response by Answer Or Motion Of State Of North Dakota To Petitioner’s Post Conviction Application dated January 16, 2000 And Filed on January 20, 2000.” Therein, the State requested the court grant its motion for dismissal or summary disposition under § 29-32.1-09, N.D.C.C.

[¶ 34] Subsequently, on March 2, 2000, Syvertson filed a “NOTICE OF MOTIONS FOR HEARING,” stating:

Take notice that the petitioner in the above titled action brings on for hearing [t]he State[’]s Answer or motion of State of ND for dismissal or summary [disposition] and Syvertson’s cross[-]motion for [s]ummary disposition, at the [C]ass county court house, box 2806, Fargo, ND, at a time and date set by the calender clerk and which will be no-tif[i]ed in the fut[u]re....

Syvertson contends he also sent a letter, dated February 29, 2000, to the calender clerk. This letter reads:

Please set a hearing for the [S]tate[’]s .motion for summary [disposition] and Syvertson[’s] cross[-]motion for summary [disposition] in the above titled matter. This hearing will need to be set for a time in the future not to conflict with responses and other matters relevant. I am in the ND State Pen and will need [to be] transported for such a hearing thus a transport order will need [to be] prepa[ ]red.

[¶ 35] On March 24, 2000, the trial court filed a memorandum opinion summarily dismissing the application for post-conviction relief. A judgment of dismissal was filed April 7, 2000.

[¶ 36] In his petition for rehearing, Syvertson argues our Court overlooked his letter to the calender clerk. Under Rule 3.2, N.D.R.Ct., Syvertson contends he is entitled to oral argument because he requested the clerk provide him with a date. The letter, dated February 29, 2000, asking the calender clerk to set a hearing for the State’s motion for summary disposition and Syvertson’s cross-motion for summary disposition, however, is not in the certified record of this appeal. The letter is only found in Syvertson’s appendix on appeal. “Only items actually in the record may be included in the appendix.” N.D.RApp.P. 30(a). Syvertson never made a motion to supplement the record under Rule 10(h), N.D.R.App.P. Our Court has stated many times we will not consider documents not in the certified record. State v. McKinney, 518 N.W.2d 696, 703 (N.D.1994). However, our Court has the authority to supplement the record on its own motion with a document that was before the trial court. N.D.R.App.P. 10(h). It appears from an affidavit of service this letter was served on the clerk of the court and on the State’s Attorney.

[¶ 37] Assuming, without deciding, Syvertson’s request complies with Rule 3.2, we nevertheless conclude that even if the trial court erred in denying Syvertson oral arguments, it was harmless error. N .D.R.Crim.P. 52(a); N.D.R.Civ.P. 61. “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” N.D.R.Crim.P. 52(a). This Court’s objective in reviewing nonconstitutional error is to determine whether the error was so prejudicial that substantial injury occurred and a different decision would have resulted without the error. State v. Steen, 2000 ND 152, ¶ 13, 615 N.W.2d 555.

[¶ 38] The trial court’s failure to grant Syvertson oral argument was a procedural oversight and not prejudicial. Sy-vertson moved the court for summary disposition with accompanying briefs and conceded that no facts were in dispute. Syvertson’s application for post-conviction relief was denied on the grounds his claims have been fully and finally decided in a previous proceeding, misuse of process, and failure to raise a genuine issue of material fact of prejudice. We, therefore, conclude there is nothing in this record to indicate the trial court would have arrived at a different result had it granted Syvert-son oral argument.

[¶ 39] VANDE WALLE, C.J., NEUMANN, SANDSTROM, KAPSNER, JJ., concur.

      . On August 27, 1998, Syvertson filed a petition for post-conviction relief in a separate case. State v. Syvertson, 1999 ND 137, ¶ 34, 597 N.W.2d 644. In that case, Syvertson conditionally pleaded guilty to two counts of gross sexual imposition and one count of kid-naping. Id. at ¶ 13. Syvertson’s post-conviction relief claim alleged the State failed to produce certain documentary evidence relating to the two gross sexual imposition convictions. Id. at ¶ 34. We concluded that the trial court was correct in holding that 53^6⅜-son had failed to allege any sort of colorable claim under the post-conviction relief statute, N.D.C.C. § 29-32.1-0l(l)(a)-(h). Id. at ¶35.

      . (a) Submission of Motion. Notice must be served and filed with a motion. The notice must indicate the time of oral argument, or that the motion will be decided on briefs unless oral argument is timely requested. Upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers. The moving party may serve and file a reply brief within 5 days after service of the answer brief. Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted to the court unless counsel for any party requests oral argument on the motion. If any party who has timely served and filed a brief requests oral argument, the request must be granted. A timely request for oral argument must be granted even if the movant has previously served notice indicating that the motion is to be decided on briefs. The party requesting oral argument shall secure a time for the argument and serve notice upon all other parties. The court may hear oral argument on any motion by telephonic conference. The court may require oral argument and may allow or require testimony on the motion. Requests for oral argument or the taking of testimony must be made not later than 5 days after expiration of the time for filing the answer brief.
      N.D.R.Ct. 3.2(a).

      . North Dakota Century Code § 29-15-21, provides in relevant part:
      1. Subject to the provisions of this section, any party to a civil or criminal action or proceeding pending in the district court may obtain a change of the judge before whom the trial or any proceeding with respect thereto is to be heard by filing with the clerk of the court in which the action or proceeding is pending a written demand for change of judge, executed in triplicate either:
      3... .In any event, no demand for a change of judge may be made after the judge sought to be disqualified has ruled upon any matter pertaining to the action or proceeding in which the demanding party was heard or had an opportunity to be heard....


author: SABERS, Justice

text:
    2000 SD 157
    Nancy REEDE, Claimant and Appellee, v. STATE of South Dakota DEPARTMENT OF TRANSPORTATION, Employer and Appellant.
    No. 21437.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 25, 2000.
    Decided Dec. 20, 2000.
    Rehearing Denied Feb. 2, 2001.

      Rodney C. Lefholz, Rapid City, SD, Attorney for claimant and appellee.
    Robert B. Anderson of May, Adam, Gerdes and Thompson, Pierre, SD, Attorneys for employer and appellant.
   SABERS, Justice

[¶ 1.] Nancy Reede was injured during the course of her employment with the South Dakota Department of Transportation (DOT). Reede worked and lived in the Black Hills at the time of injury and remained there for over two years. She briefly lived in several other places and eventually moved to Forsyth, Montana. Reede sought odd-lot benefits based on her inability to find suitable employment in her community. The Department of Labor (Department) determined her community to be Forsyth/Rosebud, Montana and not the Black Hills area. The Department found that suitable employment did not exist in Forsyth/Rosebud, Montana and awarded odd-lot benefits. We affirm issue 2 and reverse and remand issue 1 in part.

FACTS

[¶ 2.] Reede obtained employment in Rapid City with the help of her sister who was living in the area at that time. Reede had not worked in the Rapid City area prior to beginning employment with the DOT. On June 29, 1993, Reede was struck by a paver while on the job. She was thrown a short distance onto an asphalt surface and suffered extensive bruising of her right hand, right leg, left shoulder, left side of her back, left side of her pelvis and the left leg. She sought treatment at the Rapid City Regional Hospital a short time after this incident.

[¶ 3.] As a result of this injury, Reede suffers from a ten-percent impairment of her whole person. Reede was never instructed that she was unable to work following the incident. It is undisputed that Reede did not search for any jobs in the Black Hills area from August of 1994 until approximately May of 1996. Reede’s own vocational expert opined that “the Black Hills was a much more favorable job market for a person with [Reede’s] limitations.” Reede instead chose to home school her children and work as a homemaker.

[¶ 4.] Prior to the hearing, Reede moved a number of times for varying reasons. She lived in Wyoming, Miles City, Montana, Belle Fourche, South Dakota, Rosebud, Montana, Dupree, South Dakota and then in Forsyth, Montana. The Department found that Reede’s moves were to follow members of her family or to find work, and that she “was forced to move from Rapid City when [her] sister went bankrupt.”

[¶ 5.] In Forsyth, Montana, Reede lives with her sister again who relocated there from the Rapid City area. The Department found that Reede moved to Forsyth out of financial necessity, intends to stay there, has a good support network in that community, and had nowhere else to live. The Department specifically found that Reede’s intentions in moving to Forsyth, “have never been to establish a residence in Montana for the purpose of obtaining workers’ compensation benefits. Her intent has always been legitimate and she is not living in Montana to qualify for workers’ compensation benefits.”

[¶ 6.] While in Montana, Reede worked with a job placement specialist and a vocational counselor for the State. She registered with job service and unsuccessfully applied for more than thirty jobs. The Department found that Reede made a “reasonable search for work in her community.” The Department only considered the Forsyth/Rosebud area as her community for workers’ compensation purposes. The Department also found that there existed no evidence that “claimant has purposefully taken herself out of the labor market by moving to Forsyth, Montana.”

[¶ 7.] As a result of these determinations, the Department concluded that the Forsyth/Rosebud area was Reede’s community, and that she had met her “prima facie showing that she was obviously unemployable” in that community. Additionally, the DOT failed to demonstrate employment was regularly and continuously available in Reede’s community. Claimant was awarded total and permanent disability benefits pursuant to the odd-lot doctrine. The circuit court affirmed.

[¶ 8.] DOT appeals contending: The circuit court erred in affirming 1.) the Department’s decision to apply the For-syth/Rosebud, Montana, community as Reede’s “community” for purposes of determining employability, and in affirming 2.) the Department’s determination that Reede met her burden of demonstrating the unavailability of suitable employment.

STANDARD OF REVIEW

[¶ 9.] Our standard of review is succinctly stated in Sopko v. C & R Transfer Co., Inc.

Our standard of review, delineated in SDCL 1-26-36 requires us to give great weight to the findings and inferences made by the Department on factual questions. We examine agency findings in the same manner as the circuit court to decide whether they were clearly erroneous in light of all the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Questions of law, of course, are fully reviewable.

1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citations omitted).

[¶ 10.] 1. WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE DECISION OF THE DEPARTMENT TO APPLY FORSYTH/ROSEBUD, MONTANA, AS REEDE’S “COMMUNITY” FOR DETERMINING EMPLOYA-BILITY.

[¶ 11.] To claim odd-lot benefits, Reede must make a prima facie showing of total disability. Baker v. Dakota Min. & Const., 529 N.W.2d 583, 585 (S.D.1995).

A person is totally disabled if [her] physical condition, in combination with [her] age, training, and experience, and the type of work available in [her] community, causes [her] to be unable to secure anything more than sporadic employment resulting in an insubstantial income.

Welch v. Automotive Co., 528 N.W.2d 406, 410 (S.D.1995). “If it is ‘obvious’ that [Reede] is in the odd-lot category, then the burden shifts to the employer to show that suitable employment is available in the community for persons with [Reede’s] limitations.” Id. If it is not “obvious” that Reede falls within the odd-lot category, then the burden remains on her to demonstrate “the unavailability of suitable employment by showing that [she] has unsuccessfully made ‘reasonable efforts’ to find work.” Id.

[¶ 12.] The Department found that Reede “met her prima facie showing that she is obviously unemployable and not employable in the competitive market” in Forsyth/Rosebud, Montana. As a result, the Department found she was entitled to permanent and total disability from the date of injury. This determination was supported by findings of fact and conclusions of law that exclusively focused on the Forsyth/Rosebud, Montana, “community.” Based on the unique facts of this case, we must first determine whether Forsyth/Ro-sebud, Montana, was the proper community for determining employability.

[¶ 13.] Under current law SDCL 62-4-52(1) defines “community” as “the area within sixty road miles of a person’s residence.” However, Reede’s injury occurred in 1993 and SDCL 62-4-52(1) was not enacted until 1994 and is inapplicable. Yet, the requirement that Reede seek employment in her community existed in 1993. As previously stated, to obtain odd-lot benefits Reede is required to demonstrate that her “physical condition, in combination with [her] age, training, and experience, and the type of work available in [her] community, causes [her] to be unable to secure anything more than sporadic employment resulting in insubstantial income.” Shepherd v. Moorman Mfg., 467 N.W.2d 916, 919 (S.D.1991) (emphasis added).

[¶ 14.] The Department specifically found that Reede’s move was not to withdraw herself from the workforce, or to aid in obtaining workers’ compensation benefits, but instead a good faith move based on financial necessity. We are asked to determine whether Reede’s change of residence under these circumstances created and improperly imposed a new community for determining employa-bility to the detriment of the employer.

[¶ 15.] The Minnesota Supreme Court in Kurrell v. National Con Rod, Inc., determined that an injured employee may relocate and still be entitled to receive benefits. 322 N.W.2d 199, 202 (Minn.1982). However, the employee must demonstrate that they “made a diligent search” for other employment in the new area. Id. The injured employee’s motivation cannot be to “impede the return to gainful employment” or constitute “a plan to retire from the labor market.” Id. In recognizing the right to maintain these benefits, the Minnesota Supreme Court stated:

Indeed, [claimant’s] motivations in moving ... may be viewed as “merely personal,” but the relevant inquiry is whether her actions were antithetical to the purposes of the statute. It would be a harsh and rigid rule that allowed an employee to better her personal situation only at the expense of her statutory right.

Id.

[¶ 16.] The Minnesota Supreme Court recognized limits to this relocation policy in Paine v. Beek’s Pizza, 323 N.W.2d 812 (Minn.1982). The Paine court embraced the Kurrell rationale but found that the claimant did not satisfy the requirements of the rule. Paine, 323 N.W.2d at 815. A claimant “who, at the time of injury and for a considerable time before, had lived in the metropolitan area, but after the injury voluntarily removed himself from that job market to an area of low employment opportunity” was precluded from receiving workers’ compensation benefits. Id. The court recognized that “[t]he employee, of course, has the right to choose where to live. It does not follow, however, that if an employee chooses to live in an area where employment opportunities for him are virtually non-existent, an employer-insurer must subsidize him.” Id. By choosing to withdraw from the labor market the injured employee was found to have surrendered his entitlement to workers’ compensation benefits. Mat 816.

[¶ 17.] Based on the findings of the Department, we cannot say that Reede surrendered her benefits by relocating to Forsyth. The Department’s determinations that Reede’s move to Forsyth was not a withdrawal from the labor market but was a good faith move is not clearly erroneous in light of the entire record. However, the key is what is lacking in the Department’s findings. The Department altogether failed to address the reasonableness of Reede’s search for employment in her other “community,” the Black Hills, yet awarded benefits for the period she resided there. To limit potential abuse, before addressing the employability of Reede in the new community of For-syth/Rosebud, Montana, the Department must consider her employability in the community where she lived, worked and was injured.

[¶ 18.] To establish a prima facie case that Reede is totally disabled based on her “physical condition, in combination with her age, training, and experience, and the type of work available in the community, [which] caused [her] to be unable to secure anything more than sporadic employment resulting in insubstantial income” she must initially meet this requirement in the community in which she resided when injured to recover for that period. Baker, 529 N.W.2d at 585. To hold otherwise would allow injured employees who move, even for good faith reasons, to collect benefits they would not otherwise be entitled to receive. A claimant’s private or personal choice not to seek work if it was available cannot be imposed upon the employer if work is otherwise available to the injured employee.

[¶ 19.] The record indicates that Reede may have been employable in the Rapid City area, but the Department made no specific findings on this issue and therefore we remand this case to the Department for a determination consistent with this opinion. On remand, Reede has the burden of demonstrating “the unavailability of suitable employment by showing that she unsuccessfully made ‘reasonable efforts to find work in the communities in which she resided to satisfy the prima facie case for the odd-lot category.’ ” Id. at 585. Upon a showing that Reede was entitled to odd-lot benefits in her prior community, the employer then has the burden of demonstrating the “availability of suitable employment.” Id.

[¶ 20.] A claimant who demonstrates that a change of community was done in good faith, and not for improper motives, is entitled to recover the benefits resulting from their workplace injury. Kurrell, 322 N.W.2d at 201. The claimant must then establish they are entitled to benefits in accord with our established procedures. An entitlement to benefits in a single community, based on an inability to secure anything more than sporadic employment, does not allow a claimant to recover benefits for periods outside that community. Such recovery is not warranted absent an independent showing the benefits are justified. It was error for the Department to award benefits for the period of over two years in which Reede resided in the Black Hills without any findings that such benefits would have been warranted at the time. Benefits based on the analysis of a single community cannot justify an award to a claimant as though she had resided there the entire time.

[¶ 21.] Therefore, we reverse and remand issue 1 for an employability determination as to the Black Hills community for the initial period exceeding 2 years. The record establishes that Reede is entitled to benefits in the Forsyth/Rosebud community thereafter.

[¶ 22.] 2. WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE DEPARTMENT’S DETERMINATION THAT REEDE ESTABLISHED THE UNAVAILABILITY OF SUITABLE EMPLOYMENT.

[¶23.] As indicated, we affirm on the unavailability of suitable employment in Forsyth/Rosebud, Montana, as we cannot say that “we are definitely and firmly convinced a mistake has been committed.” Sopko, 1998 SD 8, ¶ 6, 575 N.W.2d at 228.

[¶ 24.] Therefore, we affirm issue 2 and reverse and remand issue 1 for proceedings consistent with this opinion.

[¶ 25.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

      . Reede was diagnosed as suffering from "myofacial pain, headache syndrome, left tro-chanteric bursitis, possible depression, and chronic pain syndrome involving the left cervical thoracic paraspinals and left shoulder, left trochanteric bursa, left S.I. joint and left lumbar paraspinal musculature.”

      . Reede lives with her sister who helps her pay the rent and provide food for her four children that she raises alone.


author: AMUNDSON, Justice

text:
    2001 SD 2
    Thomas O. MILLIGAN, Plaintiff and Appellant, v. Roger T. WALDO, d/b/a Waldo Realty, L-7 Ranch Company a/k/a The L-7 Ranch Co., Inc., A South Dakota Corporation, Barry Dunn, Roger Dunn, Robert Lamoureaux, Gregg L. Dunn, Defendants and Appellees, and Carol Dunn Cade, Defendant.
    No. 21369.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 25, 2000.
    Decided Jan. 3, 2001.

      Thomas M. Issenhuth and William H. Dietrich of Arneson, Issenhuth & Gienapp, Madison, SD, Attorneys for plaintiff and appellant.
    Lonnie R. Braun and Gregory J. Bernard of Morrill, Thomas, Nooney & Braun, Rapid City, SD, Attorneys for defendant and appellee Waldo.
    Clint L. Sargent and Mark V. Meierhen-ry of Danforth, Meierhenry & Meierhenry, Sioux Falls, SD, Donald E. Covey, Winner, SD, Attorneys for defendants and appel-lees L-7 Ranch, Barry Dunn, Roger Dunn, Gregg Dunn and Roger Lamoureaux.
   AMUNDSON, Justice

[¶ 1.] Thomas Milligan appeals the trial court’s grant of summary judgment in favor of Roger Waldo, L-7 Ranch Company, Barry Dunn, Roger Dunn, Robert Lam-oureaux, Gregg Dunn, and Carol Dunn Cade (Ranch). We affirm.

FACTS

[¶ 2.] This case arises out of the sale and purchase of a ranch located in Todd County, South Dakota known as “L-7 Ranch.” The L-7 comprised approximately 14,000 acres, of which, some 7,089 acres were owned in fee simple. Close to 2,909 acres were held in trust, to which title was held by the Bureau of Indian Affairs of the Interior Department of the United States. The remaining 4,000 acres were leasehold interests.

[¶ 3.] In the summer of 1995, the shareholders of L-7 Co. Inc. decided to sell the ranch. Barry Dunn, acting as president of the L-7 Co. Inc., contacted Roger Waldo for the purpose of listing the property for sale. Waldo agreed to act as the exclusive agent of L-7 Co. Inc., and listed the property for sale.

[¶ 4.] In December of 1996, Thomas Milligan contacted Waldo in response to an advertisement flier listing the L-7 ranch for sale. Through Waldo, negotiations between Milligan and Dunn resulted in the sale of approximately 10,000 acres of the L-7 ranch for the price of roughly $2,000,-000. Per the purchase agreement, 7,089 acres were to be deeded upon closing, which L-7 Co. Inc. owned in fee simple. Another 2,909 acres were to be deeded upon the issuance of patents by the Department of Interior covering the trust land. The purchase agreement, at the request of Milligan’s lender, included an escrow agreement. The escrow agreement expressly stated that the “Trust Deed Land proceeds [are] to be escrowed until patents are received.”

[¶ 5.] The closing date on the purchase agreement was set for March 5, 1996. In advance of the closing date, Milligan received a draft copy of the escrow agreement. He also later received a revised copy of the escrow agreement, which now provided in relevant part:

(7) PROCEDURE IN THE EVENT OF FAILURE OF PATENTS: In the event that the title to the real estate described in the escrowed deeds is not insurable or that the trust patents are not issued by September 1, 1996, then and in the event, the escrow shall close, and the respective interests shall be adjusted as follows:
(A) The funds in escrow shall be with- - drawn from deposit with the principal of the escrowed funds returned to the Buyer in full ...

Upon recognizing the change in the escrow agreement, Milligan left the closing to inspect the revised escrow agreement. More than an hour later, Milligan returned and signed the revised escrow agreement without objection.

[¶ 6.] In May of 1996, the BIA issued a decision denying the application for patents on the trust land. Although the decision was appealed, a final determination was made on September 6, 1996 that the patents would be denied. Without the patents, L-7 Co. Inc. could not deed the entire property to Milligan and the money held in escrow was required to be remitted to him. On October 16, 1996, pursuant to the terms of the escrow agreement, the escrow was closed and Milligan received his money.

[¶ 7.] Milligan filed suit in the summer of 1998. On November 22, 1999, the trial court granted summary judgment in favor of Ranch on the claims alleging breach of contract, fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation. Milligan appeals raising the following issue:

Whether the trial court erred in granting summary judgment in favor of Ranch in regard to the Milligan’s claim of fraudulent concealment, fraudulent misrepresentation, and negligent representation.

STANDARD OF REVIEW

[¶ 8.] Our review of a trial court’s granting of summary judgment is well settled. See Wilson v. Great N. Ry. Co., 88 S.D. 207, 157 N.W.2d 19 (1968); Millard v. City of Sioux Falls, 1999 SD 18, ¶ 8, 589 N.W.2d 217, 218; Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, ¶ 14, 581 N.W.2d 527, 581; Specialty Mills, Inc. v. Citizens State Bank, 1997 SD 7, ¶ 7, 558 N.W.2d 617, 620.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of summary judgment is proper.

Kaiser v. North River Ins. Co., 2000 SD 15, ¶ 6, 605 N.W.2d 193, 195; Schipke v. Grad, 1997 SD 38, ¶ 5, 562 N.W.2d 109, 110; Walz v. Fireman’s Fund Ins. Co., 1996 SD 135, ¶ 6, 556 N.W.2d 68, 69; Harn v. Continental Lumber Co., 506 N.W.2d 91, 94 (S.D.1993).

DECISION

[¶ 9.] Whether the trial court erred in granting summary judgment in favor of Ranch in regard to Milli-gan’s claim of fraudulent concealment, fraudulent misrepresentation, and negligent representation.

[¶ 10.] The cause of action of fraudulent concealment is governed by SDCL 20-10-2(3). To successfully prove fraudulent concealment, Milligan must show: (1) the suppression of a fact by one who is bound to disclose it, or (2) the suppression of a fact by one who gives information of other facts which are likely to mislead for want of communication of that fact. For misrepresentation to be actionable, Milligan must prove: (1) Ranch represented to Milligan as a fact the trust land would be deeded to Milligan, but that Ranch did not believe at the time that it would be deeded; or (2) Ranch represented to Milligan as a fact that the trust land would be deeded, but that Ranch did not have a reasonable ground for believing it to be true. See SDCL 20-10-2(1) and (2).

[¶ 11.] Milligan has failed to provide any evidence of fraudulent concealment or misrepresentation or negligent representation on the part of Ranch as it provided Milligan with all the information known to them concerning the issuance of the patents. Milligan was aware that patents had to issue before he was entitled to the 2,909 acres held in trust. He was aware that the signed escrow agreement provided for remittance of any monies if the patents were not issued. He was also aware that the Department of Interior, and not Ranch, had the sole authority to issue patents. Milligan must proffer specific facts as to Waldo’s alleged cover-up. SDCL 15-6-56(c). Without specific alleged facts, Milligan has failed in his resistance to motion for summary judgment. Hughes-Johnson v. Midland Hospital, 86 S.D. 361, 195 N.W.2d 519, 520 (1972).

[¶ 12.] Milligan’s argument that Ranch failed to diligently inquire into the patent process is without merit. Milligan had notice of the contingent nature of the patents, and if he had none, he is still charged with knowing the law. Meyer v. Santema, 1997 SD 21, ¶ 12, 559 N.W.2d 251, 255. The escrow agreement itself gave Milligan the first clue that there was a chance that the patents may not issue. A buyer of land must exercise due diligence in investigating contingencies placed in the contract. It is also fundamental that the buyer is bound by the consequential effect of contingencies that do not come to fruition. Milligan did not investigate the patent process, nor did he inquire into what would happen if the patents did not issue. Contrary to his position, Milli-gan knew that, according to the signed escrow agreement, he was to receive his money back if the patents did not issue. As we stated in Moller v. Moller, “we will not put trial courts in the position of relieving parties of an initial bad bargain[.]” 356 N.W.2d 909, 911-12 (S.D.1984). It is inconceivable that one could rely on another who does not control the issuance of the required patents. Under the record reviewed, we do not find any concealment or misrepresentation on the part of the defendants. Lack of diligence on the part of Milligan should not in anyway be attributable to Ranch.

[¶ 13.] We have also stated that an “actionable misrepresentation must relate to a past or existing fact and not a future event.” Sperry Corp. v. Schaeffer, 394 N.W.2d 727, 730 (S.D.1986). The closing took place on March 5,1996. The decision made by the BIA denying the issue of patents did not occur until May of 1996, with a final judgment issuing the denial of patents in September of 1996. It is quite clear that the denial of patents came after the closing. Meaning, the denial of patents was “a future event” for which there is no cause of action for misrepresentation. Meyer, supra. Thus, Milligan has no cause of action based on facts occurring after the closing.

[¶ 14.] It is important to note that Milligan was aware at the March 6, 1996, closing that patents had not yet issued, and that with full knowledge of this fact, chose to proceed with the sale of the closing of the non-trust land. In fact, Milligan insisted that the closing date remain at March 5, 1996 so he could be in possession of the ranch in time for the upcoming grazing season. His insistence on an early closing date is a risk he was willing to take. It is a general rule that “mere [ ] improvidence will not of itself be sufficient to warrant the rescission ofi a contract.” 12 CJS Cancellation of Instruments § 23; see also Orr v. Allen, 73 S.D. 547, 45 N.W.2d 737 (S.D.1951). Thus, it was his own doing that resulted in his partial demise of the sales transaction-i.e. the 2,909 acres of trust property.

[¶ 15.] Moreover, Milligan conceded through an answer to an interrogatory that “[a]t this time, Plaintiff has no direct knowledge that the Defendants knew that the patents for the trust land would not be issued by the federal government.” It is clear that Milligan’s reliance on Ranch was unreasonable and that he entered the purchase of the fee land at his own peril. It is not up to this Court to bail him out of a poor business decision by proceeding with the purchase agreement of the 7,089 acres of fee land without assurances from the BIA for the other 2,909 acres. According to a letter written on March 4, 1996 by Harold Compton, a realty agent for the BIA, the “process [of issuing patents] should take another 60-120 days” and that they did “not foresee any such problems at this time.” Milligan received a copy of this letter prior to closing. Thus, Milligan was privy to the same information as Ranch. These facts also militate against Milligan’s cause of action for misrepresentation as it shows that the defendants had a reasonable ground that the patents would issue.

[¶ 16.] Since the record shows that the closing date was at the insistence of Milli-gan, to assist him in the up-coming grazing season, he acted at his own peril. Such insistence certainly brought into play the risk associated with the possibility of patents not being issued and should not implicate any wrong-doing by Ranch. In essence, his insistence on the March closing reminds this Court of the old adage “haste makes waste.”

[¶ 17.] Affirmed.

[¶ 18.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

      . On October 8, 1996, Tribal Land Enterprise purchased the trust land for the same price at which Milligan offered to purchase it.

      . Milligan contends that he was not bargaining on a level playing field because he is non-Indian and most of the defendants are Indian. Milligan is a college educated experienced rancher who was attempting to acquire a $2 million parcel of land. He cannot now claim that there was unequal bargaining power to the degree that a special relationship existed. This was an "arms length” transaction, where the defendants had no fiduciary duty to protect Milligan's interests. There is absolutely no evidence that the defendants had any special knowledge concerning ,the patent process or that Milligan was in such an inferior bargaining position that the defendants had a duty to look out for his best interests. In any event, this argument is considered waived as it was never argued below. State v. Spiry, 1996 SD 14, ¶ 15, 543 N.W.2d 260, 263; In re Sioux Valley Hosp. Ass'n, 513 N.W.2d 562 (S.D.1994); In re Adoption of Baade, 462 N.W.2d 485, 488 (S.D.1990).


author: LARSON, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Renauld J. WAGENER, Respondent.
    No. 00-1262.
    Supreme Court of Iowa.
    Dec. 20, 2000.
    Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
    David L. Phipps, Des Moines, for respondent.
   LARSON, Justice.

Our Board of Professional Ethics and Conduct charged this respondent, Renauld J. Wagener, with several violations of our Code of Professional Responsibility arising out of his conviction of failure to file an Iowa income tax return. Following a hearing on the complaint, the Grievance Commission recommended a suspension of not less than six months.

I. The Facts.

Evidence in this case was established through the board’s request for admissions, application of issue preclusion based on the criminal case, and the testimony of the respondent and his wife. The respondent failed to file his own state tax return for 1993, although his wife filed her own state return for that year. (The status of the respondent’s 1993 federal income tax return was not established and is not involved in this disciplinary proceeding.) The respondent admitted his failure to file, but he asserted through his lawyer “he simply could not get focused on that task [preparing and filing a tax return] and didn’t do it.” He claimed his failure to file was largely based on his preoccupation with his wife’s serious back problems.

II. The Charges.

The respondent was convicted of violating Iowa Code sections 422.25(5), 714.8(10), and 714.11(1) (1993), constituting the crime of third-degree fraudulent practice. The board charged he thereby violated these provisions of our Code of Professional Responsibility: DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(5) (conduct prejudicial to the administration of justice), and DR 1-102(A)(6) (any other conduct adversely reflecting on fitness to practice law). The respondent admitted these violations, and the commission found the violations were established. On our review, we agree these violations were established by a convincing preponderance of the evidence. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Runge, 588 N.W.2d 116, 118 (Iowa 1999). The only remaining issue is what discipline should be imposed.

III. The Disposition.

While we understand the respondent was preoccupied with his wife’s illness, this does not excuse or mitigate his conduct. See Comm. on Prof'l Ethics & Conduct v. Crawford, 351 N.W.2d 530, 531-32 (Iowa 1984) (Respondent’s wife “required medical care and respondent spent considerable time with her”; supreme court nevertheless held this and other excuses for not filing did “not pose insurmountable obstacles to filing on time” and imposed suspension.). We have a similar case here; the respondent’s wife had a serious back problem in 1991, 1992, and 1993, but it had improved by 1994 when the return was due. In fact, the respondent assisted his wife in the preparation of her own return for the 1993 tax year.

Although the respondent admitted the allegations of the complaint and cooperated fully in the ease (he caused the matter to be brought to the attention of the board), discipline is nevertheless necessary to deter similar conduct by others and to maintain the reputation of the bar as a whole. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Doughty, 588 N.W.2d 119, 120 (Iowa 1999).

In determining the sanction to be imposed, we are mindful of the respondent’s similar problem in 1977 involving his failure to file his 1973 state income tax return. See Ct. R. 118.7 (commission and supreme court to consider prior discipline in imposing sanction). By aggregating both the present offense and the respondent’s prior discipline, a suspension is called for in view of analogous disciplinary eases involving multiple years’ tax returns. See, e.g., Runge, 588 N.W.2d at 117 (six-month suspension for failure to file returns for four years); Comm. on Prof'l Ethics & Conduct v. Baudino, 452 N.W.2d 455, 460 (Iowa 1990) (six-month suspension for failing to file federal and state returns for three years). Based on the respondent’s prior discipline (three-month suspension for income tax violation) and the present charges, we conclude a minimum suspension of six months is warranted. Accordingly, it is ordered that the respondent’s license be suspended indefinitely with no possibility of reinstatement for six months following the filing of this opinion. Upon application for reinstatement, the respondent shall have the burden of proving he has not practiced law during the period of suspension and that he has met the requirements for client notification set forth in Court Rule 118.18. Costs are assessed to the respondent. See Ct. R. 118.22.

LICENSE SUSPENDED.