State v. Edwards

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404 286 NEBRASKA REPORTS
§ 77-6203(5)(b) does not violate either article VIII, § 4,
or article III, § 18. Accordingly, we reverse the judgment
of the district court and remand the cause with directions
to dismiss.
R eversed and remanded with directions.
McCormack, J., participating on briefs.
Wright, J., not participating.
State of Nebraska, appellee and
cross-appellant, v. John Blake
Edwards, appellant and
cross-appellee.
___ N.W.2d ___
Filed August 2, 2013. No. S-12-777.
1. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
2. Prosecuting Attorneys: Appeal and Error. A motion for the appointment of a
special prosecutor is addressed to the discretion of the trial court, and absent an
abuse of discretion, a ruling on such a motion will not be disturbed on appeal.
3. Appeal and Error. Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
4. Jury Instructions. Jury instructions are not prejudicial if they, when taken as a
whole, correctly state the law, are not misleading, and adequately cover the issues
supported by the pleadings and the evidence.
5. Criminal Law: Proof. The State carries the burden to prove all elements of the
crime charged.
6. Jury Instructions. An instruction which withdraws from the jury an essential
element in the case is prejudicial.
7. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court would have been sufficient to sustain a guilty verdict.
8. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
9. Criminal Law: Entrapment: Estoppel. The elements of the defense of entrap-
ment by estoppel are (1) that the defendant must have acted in good faith before
Nebraska Advance Sheets
STATE v. EDWARDS 405
Cite as 286 Neb. 404taking any action; (2) that an authorized government official, acting with actual
or apparent authority and who had been made aware of all relevant historical
facts, affirmatively told the defendant that his conduct was legal; (3) that the
defendant actually relied on the statements of the government official; and (4)
that such reliance was reasonable.
10. Trial: Evidence: Proof. The nature of an affirmative defense is such that the
defendant has the initial burden of going forward with evidence of the defense.
When the defendant has produced sufficient evidence to raise the defense, the
issue is then one which the State must disprove.
Appeal from the District Court for Keith County: James E.
Doyle IV, Judge. Reversed and remanded for a new trial.
Clarence E. Mock, Denise E. Frost, and Matt M. Munderloh,
of Johnson & Mock, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
As the Keith County Attorney, John Blake Edwards estab-
lished a pretrial diversion program. After an audit by Nebraska’s
state auditor and an investigation by the Nebraska State Patrol,
Edwards was charged with three counts of theft by unlaw-
ful taking for checks written from diversion program funds.
Edwards was acquitted by a jury of two of the theft counts and
convicted of the third, which was based on a check he wrote
on a diversion program account to a local trapshooting team
(trap team). He was sentenced to probation. Edwards appeals.
We find plain error in the jury instructions, and therefore, we
reverse, and remand for a new trial.
I. FACTS AND PROCEDURAL
BACKGROUND
Edwards took office as the Keith County Attorney in January
2007. He established a pretrial diversion program, which
allowed for dismissal of criminal charges after the offender
completed program requirements, such as community service
or alcohol education. Participants paid an enrollment fee and
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406 286 NEBRASKA REPORTS
court costs and entered into a contract with the county attor-
ney’s office. The diversion program was initially approved by
the Keith County Board of Commissioners on March 7, 2007,
with the understanding that the program would be self-funded.
The fees and costs paid by program participants were depos-
ited into a separate bank account in the name of the diversion
program, with Edwards as the only authorized signer on the
account. Edwards spent $7,257.11 from the diversion program
bank account on supplies for the diversion program between
March 7, 2007, and August 13, 2008.
In April 2008, a Keith County commissioner submitted a
complaint to the Nebraska Attorney General’s office, express-
ing concern that the diversion program did not have formal
approval of the county board and that public funds were being
misused. The complaint stated that the program funds were
kept in an account available only to Edwards rather than being
remitted to the county treasurer. Edwards submitted a response
in which he explained that all financial records were kept
on the program’s computer by his staff and that all deposits
and dispersals had been recorded and cross-checked by two
employees other than Edwards.
In the spring of 2008, after the commissioner’s complaint
had been filed, Edwards attended a seminar for county attor-
neys in Kearney, Nebraska. At the seminar, Edwards had a con-
versation with John Freudenberg, chief of the criminal division
of the Nebraska Attorney General’s office. The two men later
disagreed as to the substance of the conversation. According to
Edwards, Freudenberg motioned for Edwards to come talk to
him and then said, “Don’t worry about the letter that you’ve
received.” Edwards thought Freudenberg was referring to the
commissioner’s complaint. Edwards testified that Freudenberg
told him that he could use the diversion program funds to pay
salaries, to supplement employees, or for donations. He further
testified that Freudenberg advised him that diversion program
funds could be given to employees without being based on the
hours they worked.
In contrast, Freudenberg testified that Edwards approached
him during a break between sessions of the seminar and
that the two discussed the county commissioner’s complaint.
Nebraska Advance Sheets
STATE v. EDWARDS 407
Cite as 286 Neb. 404Freudenberg told Edwards that if he were a county attorney,
he probably would not have a diversion program. Freudenberg
denied telling Edwards that he could use diversion funds to pay
employees or to make donations. In fact, Freudenberg said they
did not discuss the use of diversion program funds, because
that was not the nature of the complaint from the county
commissioner.
In June 2008, the Attorney General’s office informed the
county commissioner that it found no basis for involvement
by the Attorney General and recommended that the matter be
considered by the county board. At its meeting on August 13,
2008, the county board passed a resolution adopting a revised
diversion program. An agreement was attached to the resolu-
tion. It specifically provided that all program participant fees
and costs were to be deposited with the county treasurer. In
addition, the county attorney was to maintain a checking
account for payment of court costs for diversion participants.
Any surplus funds after program costs were paid were to be
made available for public projects related to education and
prevention of criminal activity, as approved by the board. The
board did not give Edwards any direction as to the use of the
previous diversion program’s checking account.
On January 20, 2009, Edwards wrote a check on the account
of the previous diversion program to a local trap team in the
amount of $3,681.09. This check was the basis of the theft
charge on which he was convicted. The trap team is a program
for junior and senior high trapshooters. Edwards testified that
the trap team is a nonprofit organization affiliated with a local
sports club which is also a nonprofit organization. However,
an investigator for the Nebraska Department of Revenue testi-
fied that there was no record with the Secretary of State or the
Internal Revenue Service that the trap team was a nonprofit
organization. Edwards volunteered with the trap team, assist-
ing with legal work, coaching, and fundraising. He was an
authorized signer on the team’s checking account. On January
20, a check for $981.03 drawn on the account of the trap
team was written to Edwards and signed by Edwards and his
wife. The memorandum line indicated “knives, shells 09 sea-
son reimb.”
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408 286 NEBRASKA REPORTS
In April or May 2010, the state auditor’s office notified
Keith County it would conduct an audit of the county, includ-
ing the county attorney’s office. The audit was conducted in
July, and a report was issued in September. The audit found
that Edwards had been paid $7,257.11 in excess of the amount
the board authorized for his salary. It also found that payments
of $18,989.04 had been made from the previous diversion
program without board approval. Edwards explained that he
had been unable to locate the receipt folder for the diversion
account. He also stated that various payments made to him
were not salary but were for reimbursement for items pur-
chased for the office, both for the diversion program and for
general office use.
After the auditor’s report was released, the Attorney
General’s office referred the matter to the Nebraska State
Patrol for an investigation. Freudenberg was initially assigned
to monitor the investigation. But after the State Patrol investi-
gator notified Freudenberg of Edwards’ claim that Freudenberg
had given Edwards permission to make a donation to the trap
team, Freudenberg removed himself from the case because he
was a potential witness.
Edwards was charged on September 19, 2011, with three
counts of theft by unlawful taking, two counts of income tax
evasion, and three counts of filing a false income tax return.
After a preliminary hearing, the Keith County Court found
that the State had not met its burden of proof on the charges
of income tax evasion and filing a false income tax return,
and those counts were dismissed. Edwards entered a not
guilty plea to the theft charges. The first two were based on
checks Edwards wrote on the diversion program account to
his wife for her work for the program. They totaled $2,850.
The third theft charge was based on the check written to the
trap team.
The jury found Edwards guilty on the third theft charge. He
was acquitted of the other two charges. Edwards’ motion for a
new trial was overruled.
Edwards was sentenced to 36 months of community-based
intervention probation, to include intensive supervision pro-
bation as set forth in Neb. Rev. Stat. § 29-2262.04 (Reissue
Nebraska Advance Sheets
STATE v. EDWARDS 409
Cite as 286 Neb. 4042008). He filed this timely appeal. The State filed a cross-
appeal, asserting that the sentence is excessively lenient.
II. ASSIGNMENTS OF ERROR
Edwards assigns the following errors: The trial court erred
in (1) giving an “entrapment by estoppel” instruction that
erroneously allocated the burden of proof to Edwards, (2)
allowing the trial court clerk to divide the jury panel into two
groups for jury selection, (3) failing to disqualify the Attorney
General’s office from prosecuting Edwards, (4) refusing to
allow testimony from members of the county board regarding
use of pretrial diversion funds, (5) refusing to allow Edwards
to introduce evidence about the working structures of other
diversion programs, (6) admitting evidence of joint income
tax returns filed by Edwards and his wife, and (7) failing
to give the jury a limiting instruction about the admissible
purpose of the income tax returns. Edwards also asserts that
his trial counsel provided ineffective assistance of counsel
by failing to object to the “entrapment by estoppel” instruc-
tion and by failing to follow the specific procedure outlined
in Neb. Rev. Stat. § 25-1637 (Reissue 2008) to quash the
jury panel.
In a cross-appeal, the State assigns that the trial court abused
its discretion in imposing an excessively lenient sentence.
III. STANDARD OF REVIEW
[1] Whether jury instructions given by a trial court are cor-
rect is a question of law.1 When dispositive issues on appeal
present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below.2
[2] A motion for the appointment of a special prosecutor
is addressed to the discretion of the trial court, and absent an
abuse of discretion, a ruling on such a motion will not be dis-
turbed on appeal.3
1
State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013).
2
Id.
3
State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437 (2008).
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IV. ANALYSIS
1. Jury Instructions
Edwards assigns error to the trial court’s instruction No. 4,
dealing with his affirmative defense of “entrapment by estop-
pel.” Edwards claims the instruction erroneously allocated the
burden of proof to him. The instruction listed the elements of
the defense and stated: “The defendant must prove all of the
elements of the defense by the greater weight of the evidence.”
It also included the following paragraph:
C. Effect of Findings
If you find the defendant proved each of the forego-
ing elements of the defense by the greater weight of the
evidence, then you must find him not guilty of Count III,
theft by unlawful taking, and complete the appropriate
verdict form. If you find the defendant did not prove each
of the foregoing elements of the defense by the greater
weight of the evidence, then you must find him guilty
of Count III, theft by unlawful taking, and complete the
appropriate verdict form.
At oral argument, counsel for the State candidly advised this
court that the last sentence of paragraph C quoted above was
problematic because it could be understood to remove the bur-
den of proving Edwards’ guilt from the State and impermissi-
bly require Edwards to prove his innocence. Counsel suggested
that the instruction may constitute plain error.
[3,4] Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from
the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process.4 Jury instruc-
tions are not prejudicial if they, when taken as a whole, cor-
rectly state the law, are not misleading, and adequately cover
the issues supported by the pleadings and the evidence.5
We note that instruction No. 3 correctly instructed the jury
on the elements of the offense of theft by unlawful taking as
4
State v. Watt, 285 Neb. 647, ___ N.W.2d ___ (2013).
5
See State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).
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STATE v. EDWARDS 411
Cite as 286 Neb. 404charged in count III of the information. It stated: “The State
has the burden of proving beyond a reasonable doubt each
one of the foregoing elements necessary for conviction, and
this burden never shifts.” Thus, there is no doubt that the
jury was correctly instructed that the State had the burden to
prove Edwards guilty of the charged offense beyond a reason-
able doubt. But the last sentence of instruction No. 4 states
a contrary and incorrect proposition that if Edwards did not
prove his affirmative defense, the jury was required to find
him guilty.
We considered a similarly conflicting jury instruction in
State v. Abram.6 In that case, a written jury instruction con-
tained the following sentence: “‘The fact that the Defendant
did not testify must be considered by you as an admission of
guilt and must not influence your verdict in any way.’”7 Due
to a typographical error, the word “not,” which should have
preceded the word “be,” was omitted from the instruction.
There was no objection to the instruction. When the court read
the instruction aloud to the jury, the court correctly stated that
the defendant’s failure to testify “‘must not be considered’” as
an admission of guilt.8 We concluded that the incorrect written
instruction constituted plain error requiring reversal.9 We rea-
soned that in light of the Sixth Amendment issue at stake, “the
risk that the jury at a minimum was confused by the instruction
and at worst thought it was required to consider [the defendant]
as having admitted guilt prevents us from concluding that the
error was harmless.”10
[5,6] We reach the same conclusion here. The error in
instruction No. 4 implicates both the presumption of innocence
and the State’s burden to prove guilt beyond a reasonable
doubt. The State carries the burden to prove all elements of the
6
State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).
7
Id. at 60, 815 N.W.2d at 903 (emphasis omitted).
8
Id. at 67-68, 815 N.W.2d at 907 (emphasis omitted).
9
State v. Abram, supra note 6.
10
Id. at 70, 815 N.W.2d at 909.
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412 286 NEBRASKA REPORTS
crime charged.11 An instruction which withdraws from the jury
an essential element in the case is prejudicial.12 When read in
conjunction with instruction No. 3, which defined the elements
of the crime of theft by unlawful taking which the State had
the burden to prove, the jury could easily have been confused
as to which elements must be proved and which party had
the burden of proof. At worst, the jury could have concluded
that if Edwards failed to prove his affirmative defense, it was
required to find him guilty. We conclude that the last sentence
of instruction No. 4 resulted in plain error which necessi-
tates reversal.
[7] Having found reversible error, we must determine
whether the Double Jeopardy Clause bars a second trial. The
Double Jeopardy Clause does not forbid a retrial so long as
the sum of all the evidence admitted by a trial court would
have been sufficient to sustain a guilty verdict.13 We conclude
that the totality of the evidence admitted by the trial court was
sufficient to sustain Edwards’ conviction on count III. Thus,
double jeopardy does not preclude a remand for retrial on that
count only.
2. Issues Likely to R ecur
[8] An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings.14 We conclude
that the issues raised in this appeal regarding the affirmative
defense of entrapment by estoppel and the disqualification of
the Attorney General’s office are likely to recur on remand, and
we therefore address them here.
11
State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012).
12
See, State v. Merchant, supra note 1; State v. Smith, 284 Neb. 636, 822
N.W.2d 401 (2012).
13
State v. Merchant, supra note 1; State v. Payne-McCoy, 284 Neb. 302, 818
N.W.2d 608 (2012).
14
State v. Smith, supra note 12.
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STATE v. EDWARDS 413
Cite as 286 Neb. 404(a) Entrapment by Estoppel
This court has not ruled definitively on the availability of
the affirmative defense of entrapment by estoppel in criminal
cases. In State v. LeDent,15 we noted that our law on this point
is “not crystallized” and we found it unnecessary to achieve
greater clarity in that case. We do so now.
The defense has been recognized by a number of federal
and state jurisdictions.16 It is rooted in the Due Process Clause
of the Fifth Amendment, as interpreted by the U.S. Supreme
Court in Raley v. Ohio17 and Cox v. Louisiana.18 In Raley, the
defendants were convicted of contempt for refusal to testify
before a state commission. They had invoked their privilege
against self-incrimination as guaranteed by the state constitu-
tion after being specifically advised by members of the com-
mission that they had a right to do so. That advisement was
incorrect because a state immunity statute deprived them of the
protection of the privilege. The Court held that a state court’s
affirmance of the convictions violated due process and that
permitting the convictions to stand “would be to sanction the
most indefensible sort of entrapment by the State—convicting
15
State v. LeDent, 185 Neb. 380, 383, 176 N.W.2d 21, 23 (1970).
16
See, e.g., U.S. v. Hale, 685 F.3d 522 (5th Cir. 2012); U.S. v. Bader, 678
F.3d 858 (10th Cir. 2012); U.S. v. Theunick, 651 F.3d 578 (6th Cir. 2011);
U.S. v. Schafer, 625 F.3d 629 (9th Cir. 2010); U.S. v. Kieffer, 621 F.3d
825 (8th Cir. 2010); U.S. v. Giffen, 473 F.3d 30 (2d Cir. 2006); U.S. v.
Sousa, 468 F.3d 42 (1st Cir. 2006); U.S. v. Marshall, 332 F.3d 254 (4th
Cir. 2003); U.S. v. Pitt, 193 F.3d 751 (3d Cir. 1999); U.S. v. Funches,
135 F.3d 1405 (11th Cir. 1998); U.S. v. Howell, 37 F.3d 1197 (7th Cir.
1994); U.S. v. Levin, 973 F.2d 463 (6th Cir. 1992); U.S. v. Austin, 915
F.2d 363 (8th Cir. 1990); People v. Bradley, 208 Cal. App. 4th 64, 145
Cal. Rptr. 3d 67 (2012); State v. Barr, 721 S.E.2d 395 (N.C. App. 2012);
People v. Stephens, 34 Misc. 3d 43, 937 N.Y.S.2d 822 (2011); Com. v.
Cosentino, 850 A.2d 58 (Pa. Commw. 2004); State v. Krzeszowski, 106
Wash. App. 638, 24 P.3d 485 (2001); State v. Guzman, 89 Haw. 27, 968
P.2d 194 (1998); Miller v. Com., 25 Va. App. 727, 492 S.E.2d 482 (1997);
Commonwealth v. Twitchell, 416 Mass. 114, 617 N.E.2d 609 (1993).
17
Raley v. Ohio, 360 U.S. 423, 79 S. Ct. 1257, 3 L. Ed. 2d 1344 (1959).
18
Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965).
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414 286 NEBRASKA REPORTS
a citizen for exercising a privilege which the State clearly had
told him was available to him.”19
In Cox, the Court reversed the Louisiana Supreme Court’s
affirmance of convictions for violation of a state statute which
prohibited picketing “‘in or near’” a courthouse.20 The defend­
ant was part of a group that had been picketing across the street
from a courthouse. Police officials had told the defendant he
must confine the demonstration to that area. Concluding that
these circumstances were similar to those in Raley, the Court
concluded: “The Due Process Clause does not permit convic-
tions to be obtained under such circumstances.”21
[9] Given the constitutional roots of the entrapment by
estoppel defense, we conclude that it should be recognized in
this state. In this case, paragraph A of instruction No. 4 listed
the elements of the defense. The jury was instructed (1) that
the defendant must have acted in good faith before taking any
action; (2) that an authorized government official, acting with
actual or apparent authority and who had been made aware of
all relevant historical facts, affirmatively told the defendant
that his conduct was legal; (3) that the defendant actually relied
on the statements of the government official; and (4) that such
reliance was reasonable. Although jurisdictions have formu-
lated the elements of the entrapment by estoppel defense in
various ways, we agree that the instruction as given accurately
states the essential elements of the defense.22
[10] The trial court instructed the jury that “[t]he defend­
ant must prove all of the elements of the defense by the
greater weight of the evidence.” Some courts have held that
the defendant bears the burden of proving the defense.23 But,
in the absence of a statute placing the burden of proving an
19
Raley v. Ohio, supra note 17, 360 U.S. at 438.
20
Cox v. Louisiana, supra note 18, 379 U.S. at 560.
21
Id., 379 U.S. at 571.
22
See, e.g., U.S. v. Bader, supra note 16; U.S. v. Theunick, supra note
16; U.S. v. Howell, supra note 16; U.S. v. Levin, supra note 16; State v.
Guzman, supra note 16; Miller v. Com., supra note 16.
23
See, e.g, U.S. v. Theunick, supra note 16; U.S. v. Austin, supra note 16.
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STATE v. EDWARDS 415
Cite as 286 Neb. 404affirmative defense on the defendant in a criminal case,24 we
have held that the nature of an affirmative defense is such that
the defendant has the initial burden of going forward with
evidence of the defense.25 When the defendant has produced
sufficient evidence to raise the defense, the issue is then one
which the State must disprove.26 We conclude that this is
the appropriate burden of proof for the entrapment by estop-
pel defense.
(b) Disqualification of Attorney
General’s Office
Edwards also assigned as error the trial court’s failure to dis-
qualify the Nebraska Attorney General’s office from prosecut-
ing him. Edwards filed a motion seeking disqualification of the
Attorney General’s office and appointment of a special pros-
ecutor because there was a possibility that Freudenberg would
be called as a witness. The trial court overruled Edwards’
motion but disqualified Freudenberg from appearing as an
advocate in the case.
A motion for the appointment of a special prosecutor is
addressed to the discretion of the trial court, and absent an
abuse of discretion, a ruling on such a motion will not be
disturbed on appeal.27 In State v. Kinkennon,28 the defendant
sought a special prosecutor after an attorney who worked in the
same firm as his defense counsel began working for the county
attorney’s office. We declined to adopt a per se rule that would
require disqualification of an entire prosecuting office based on
the mere appearance of impropriety. Instead, we agreed with
other courts which had established a procedure whereby the
trial court evaluates the circumstances of a particular case and
then determines whether disqualification of the entire office is
24
See, e.g., Neb. Rev. Stat. §§ 28-202 (Reissue 2008) and 29-2203 (Cum.
Supp. 2012).
25
State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997).
26
Id.
27
State v. Kinkennon, supra note 3.
28
Id.
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416 286 NEBRASKA REPORTS
appropriate. Courts take into consideration whether the attor-
ney in question divulged any confidential information to other
prosecutors or participated in some way in the prosecution of
the defendant. We stated that disqualification is not required if
an attorney is “effectively isolated from any participation or
discussion of matters” related to the case.29
This court recognized in Kinkennon that “complete dis-
qualification of a prosecutor’s office may be warranted in cases
where the appearance of unfairness or impropriety is so great
that the public trust and confidence in our judicial system sim-
ply could not be maintained otherwise.”30 However, “when the
disqualified attorney is effectively screened from any participa-
tion in the prosecution of the defendant, the prosecutor’s office
may, in general, proceed with the prosecution.”31
In the case at bar, the concern was not whether Freudenberg
had shared confidences with the attorneys prosecuting the case,
but, rather, whether Freudenberg would serve dual roles as
an attorney for the State and as a witness. As noted, the trial
court disqualified Freudenberg from involvement in the case as
an advocate for the prosecution. Freudenberg was called as a
witness only after Edwards had related his version of the con-
versation between himself and Freudenberg. The record does
not support a finding that the trial court abused its discretion in
failing to appoint a special prosecutor.
V. CONCLUSION
For the reasons discussed, we reverse Edwards’ conviction
on one count of theft by unlawful taking and remand the cause
for a new trial on that count only. Because the conviction must
be reversed, the State’s cross-appeal need not be addressed.
R eversed and remanded for a new trial.
29
Id. at 576, 747 N.W.2d at 443.
30
Id. at 578, 747 N.W.2d at 444.
31
Id.