State v. Mohamud

925 N.W.2d 396

STATE of North Dakota, Plaintiff and Appellee

v.Abdiwali MOHAMUD, Defendant and Appellant

No. 20180333

Supreme Court of North Dakota.

Filed April 11, 2019

Rachel R. Egstad, Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

Jensen, Justice.

[¶1] Abdiwali Mohamud appeals from a criminal judgment issued after a jury found him guilty of aggravated assault—domestic violence, interference with telephone during an emergency call, and terrorizing. On appeal, Mohamud argues the district court erred in denying his motion to dismiss for unnecessary delay, there was insufficient evidence to convict him of the three charges, and he was given an illegal sentence. We affirm the criminal judgment denying Mohamud’s motion to dismiss, conclude there was sufficient evidence to convict Mohamud of the three charges, and find the no-contact order issued by the district court to be a condition of probation.

I.

[¶2] On March 14, 2016, Mohamud was charged with aggravated assault—domestic violence, interference with telephone during an emergency call, and terrorizing. These charges were related to an incident involving Mohamud’s wife, which occurred on March 12, 2016. A preliminary hearing was held on April 18, 2016, and the district court found probable cause existed to support the charges. On September 16, 2016, the State filed a motion to dismiss the case against Mohamud based upon an unavailable witness. The court dismissed the case without prejudice on September 20, 2016, prior to any response by Mohamud.

[¶3] Roughly eight months later, on May 5, 2017, the State re-charged Mohamud with aggravated assault—domestic violence, interference with telephone during an emergency call, and terrorizing. Mohamud was ordered to have no contact with his wife on June 12, 2017 and also not to have contact with his son on June 13, 2017. Mohamud’s attorney filed a motion to dismiss the case on September 28, 2017. The district court denied Mohamud’s motion to dismiss on October 27, 2017. On December 7, 2017, Mohamud made an oral motion to the court requesting the case be dismissed. The court denied the second motion to dismiss based on timeliness and on the merits. A trial was held August 21 through August 23, 2018. Mohamud was found guilty on all three charges. As part of the criminal judgment, Mohamud was ordered to have no contact with his minor child.

II.

[¶4] Mohamud argues the district court erred in denying his motion to dismiss based on unnecessary delay. Mohamud argues that under N.D.R.Crim.P. 48, the eight-month delay between the dismissal without prejudice and the refiling of charges constituted an unnecessary delay which requires dismissal of the charges with prejudice.

[¶5] A district court’s decision on a motion to dismiss a criminal case without prejudice is reviewed for an abuse of discretion. State v. Gwyther , 1999 ND 15, ¶¶ 11-12, 589 N.W.2d 575. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Id . ; see also State v. Moos , 2008 ND 228, ¶ 30, 758 N.W.2d 674. A criminal charge dismissed without prejudice may be refiled within the applicable statutory period. State v. Jones , 2002 ND 193, ¶ 23, 653 N.W.2d 668. Under N.D.R.Crim.P. 48(a), a prosecuting attorney may dismiss charges, provided a motion to dismiss is supported by a written statement concisely stating the reasons for the motion, the statement is filed with the clerk, and the motion is open to public inspection.

[¶6] Rule 48(b)(4), N.D.R.Crim.P., allows the district court to dismiss charges should there be an unnecessary delay in bringing a defendant to trial. Rule 48(b), N.D.R.Crim.P., "acts as a vehicle for enforcing the Sixth Amendment right to a speedy trial. The court can dismiss whenever there has been unnecessary delay without being required to decide whether the unnecessary delay was of such a nature as to deprive the defendant of a constitutional right." N.D.R.Crim.P. 48(b), explanatory note.

[¶7] Here, the district court reviewed the State’s reasoning for the dismissal without prejudice and did not find any irregularities. The court also noted there was an absence of factual information indicating how Mohamud was prejudiced by the eight-month delay. The dismissal may have been inconvenient, but Mohamud was essentially put back in the place he was before charges were filed. We conclude the district court did not abuse its discretion by denying Mohamud’s motion to dismiss for undue delay.

[¶8] Mohamud also claims his Sixth Amendment right to a speedy trial was violated due to the eight-month delay related to the dismissal. We review a district court’s speedy trial decision de novo, with the court’s findings of fact reviewed under the clearly erroneous standard of review. State v. Moran , 2006 ND 62, ¶ 8, 711 N.W.2d 915. This Court has adopted the balancing test set forth in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which is used to evaluate the validity of a speedy trial claim under the United States Constitution, the North Dakota Constitution, and N.D.C.C. § 29-01-06(5). The test requires consideration of four factors: (1) length of the delay, (2) reason for the delay, (3) proper assertion of the right, and (4) actual prejudice to the accused. State v. Owens , 2015 ND 68, ¶ 9, 860 N.W.2d 817 (discussing Barker , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 ). No single factor is dispositive, and all factors must be weighed. Moran , at ¶ 8.

[¶9] Here, the length of the delay was eight months. A delay of one year or more is presumptively prejudicial triggering an analysis of the other speedy trial factors. Moran , 2006 ND 62, ¶ 9, 711 N.W.2d 915. Clearly the delay does not trigger the presumption of prejudice.

[¶10] The reason for delay was the unavailability of a witness due to "family emergency or other circumstances." The record indicates Mohamud’s wife was not willing to testify because her father was facing death threats in Somalia related to the charges against her husband. Once her father was safely in the United States, she was once again willing to testify. The district court cited the State’s reasoning for the dismissal and stated "Mohamud has not shown that this explanation was untrue." The court went on to indicate the record was silent to Mohamud requesting a speedy trial, and that Mohamad had produced no evidence of prejudice resulting from the delay.

[¶11] Further, in State v. Moore , this Court explained the right to a speedy trial does not apply to cases where the State dismisses charges in good faith. 2003 ND 83, ¶ 8, 662 N.W.2d 263 (discussing United States v. MacDonald , 456 U.S. 1, 7, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982) ). As part of its analysis, the district court found there to be no evidence of bad faith on the part of the State in the underlying motion to dismiss without prejudice. The court did not err as a matter of law and did not come to any erroneous factual determinations in its analysis. In turn, Mohamud’s right to a speedy trial was not violated.

III.

[¶12] Mohamud challenges the sufficiency of the evidence regarding each of his convictions. The standard of review regarding the sufficiency of the evidence in criminal convictions is well established:

In reviewing sufficiency of the evidence challenges, we review the record to determine whether there is sufficient evidence that could allow a jury to draw a reasonable inference in favor of the conviction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. We do not reweigh conflicting evidence or judge the credibility of witnesses.

City of Bismarck v. Schaffner , 2018 ND 168, ¶ 6, 914 N.W.2d 500 (citations and quotation marks omitted).

[¶13] Mohamud argues there was not sufficient evidence to convict him of aggravated assault. An individual is guilty of aggravated assault if they "[w]illfully cause[ ] serious bodily injury to another human being." N.D.C.C. § 12.1-17-02 (1)(a). "Willfully" is defined as engaging in conduct "intentionally, knowingly, or recklessly." N.D.C.C. § 12.1-02-02. Under N.D.C.C. § 12.1-01-04, "serious bodily injury" is defined as "bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ, a bone fracture, or impediment of air flow or blood flow to the brain or lungs."

[¶14] Here, there was testimony from Mohamud’s wife stating he put her in a choke hold and she felt like she was going to pass out. There was also evidence received documenting the injuries to Mohamud’s wife. Dr. Schanzenbach treated Mohamud’s wife after the incident. Dr. Schanzenbach testified regarding the injuries suffered by Mohamud’s wife and stated they were consistent with strangulation. The testimony stating Mohamud intentionally put his wife in a choke hold satisfies the requirement that the conduct be "willful." The testimony that Mohamud’s wife felt as though she was going to pass out, along with Dr. Schanzenbach’s testimony that her injuries were consistent with strangulation, satisfies the "serious bodily injury" language of N.D.C.C. § 12.1-01-04. When the evidence is viewed in the light most favorable to the verdict, it was reasonable for the jury to find Mohamud guilty of aggravated assault.

[¶15] Mohamud argues there was not sufficient evidence to convict him of interference with an emergency call. Under N.D.C.C. § 12.1-21-06.1, an individual is guilty of a class C felony if the individual intentionally "removes, damages, or obstructs any telephone or telephone line or any part or apparatus on the line, or severs any...