Filed 3/18/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 86

State of North Dakota, Plaintiff and Appellee

v.

John Phillip Hamre, Defendant and Appellant

No. 20180055

Appeal from the District Court of Cass County, East Central Judicial District,

the Honorable Steven L. Marquart, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Nicholas S. Samuelson (argued), under the Rule on Limited Practice of Law

by Law Students, and Tristan J. Van de Streek (appeared), Assistant State’s Attorney,

Fargo, North Dakota, for plaintiff and appellee.

Samuel A. Gereszek, East Grand Forks, Minnesota, for defendant and

appellant.
State v. Hamre

No. 20180055

Tufte, Justice.

[¶1] John Hamre appeals from a judgment entered after a jury found him guilty of

two counts of simple assault on a peace officer, one count of fleeing or attempting

to elude a peace officer, and one count of preventing arrest. Hamre argues he was

denied his state and federal constitutional rights to a speedy trial, he was denied an

evidentiary hearing on his motion to dismiss, and the evidence was insufficient to

support the convictions. We affirm the judgment.

I

[¶2] On June 16, 2017, the State charged Hamre with two counts of simple assault

on a peace officer, one count of preventing arrest, and one count of fleeing or

attempting to elude a peace officer. The charges related to incidents on June 5, 2017,

when Fargo Police Detective Phil Swan stopped a vehicle driven by Hamre for

expired license plates and Hamre drove away from the scene of the stop after

surrendering his driver’s license to Detective Swan, and on June 15, 2017, when

Detectives Swan and Brent Malone approached Hamre at a Fargo storage unit and an

altercation occurred.

[¶3] After an initial appearance on June 16, 2017, the district court set bail for

Hamre at $20,000, and he remained in jail pending his trial. The court’s scheduling

order set Hamre’s preliminary hearing for July 19, 2017, a motions hearing for

September 18, 2017, a dispositional conference for September 20, 2017, and a jury

trial for October 3, 2017. On June 22, 2017, counsel was appointed to represent

Hamre, and he was arraigned after a contested preliminary hearing on July 19, 2017. 

The court thereafter denied his request for a bail reduction.

[¶4] At the September 20, 2017, dispositional conference, Hamre indicated that his

counsel had not filed his requested motion to dismiss for a claimed failure to follow

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police protocol in arresting him on June 15, 2017, on an outstanding Clay County,

Minnesota, warrant. Hamre stated that he may represent himself, he wanted a hearing

on his motion, and he wanted more time. The court informed him a hearing must be

properly noticed and continued the proceeding until its next scheduled date for a

dispositional conference on October 18, 2017. That continuance effectively continued

the jury trial scheduled for October 3, 2017.

[¶5] On October 11, 2017, Hamre filed a letter with the district court, seeking to

dismiss his court-appointed counsel and represent himself and requesting a speedy

trial. Hamre’s court-appointed counsel contemporaneously moved to withdraw as

counsel. At an October 17, 2017, hearing the district court informed Hamre about the

requirements for self-representation and found that he knowingly and voluntarily

waived his right to counsel. The court granted Hamre’s court-appointed counsel’s

motion to withdraw as counsel of record, but required her to appear as standby

counsel. Hamre stated he wanted a hearing on his yet unfiled motion to dismiss, and

the court continued the dispositional conference scheduled for the next day so Hamre

could notice a hearing on his anticipated motion. The court advised Hamre to comply

with applicable procedures for hearing motions based upon a notice of motion, and

Hamre indicate he wanted time to make a motion. The court thereafter scheduled

another dispositional conference for November 20, 2017.

[¶6] On November 6, 2017, Hamre filed another letter with the district court, again

requesting a speedy trial. At the November 20, 2017, dispositional conference,

Hamre filed a self-represented motion to dismiss, citing N.D.R.Crim.P. 48 and

N.D.R.Ct. 3.2 and claiming “malicious abuse of legal process and police protocol

negligence.” Hamre’s motion stated:

that when police can see that a warrant is extraditable, they are required

via protocol to call dispatch/jail, requesting agency to confirm the

warrant. Once the warrant is confirmed, they are good to arrest.

Again the protocol is, whether they (police) can see themselves on

the NCIC database that the warrant is extraditable or not, they

will be told it is or is not when they call dispatch to confirm.

Dispatch/jail/requesting agency must be called either way to confirm

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the warrant, whether the officer can see it is extraditable via the NCIC

database, or not.

Hamre also indicated he again wanted court-appointed counsel, and the court

continued the dispositional conference to December 20, 2017, so Hamre could reapply

for court-appointed counsel.

[¶7] On November 27, 2017, the State responded to Hamre’s motion to dismiss,

arguing it did not articulate any coherent theory for suppression of evidence or

dismissal. On November 30, 2017, Hamre filed a letter with the court, again

requesting a speedy trial. On December 1, 2017, Hamre filed his second request for

court-appointed counsel, and a different court-appointed counsel was ultimately

appointed to represent him on December 8, 2017. On December 11, 2017, the State

filed a response to Hamre’s most recent request for a speedy trial, indicating the State

was ready for trial as soon as a date was available on the court’s calendar.

[¶8] On December 12, 2017, the district court judge recused himself, and another

judge was assigned. On December 13, 2017, the clerk of court’s office issued notice

of a dispositional conference scheduled for January 10, 2018. At a December 21,

2017, hearing the district court orally granted Hamre’s request to represent himself

and allowed his recently appointed counsel to withdraw. The court also issued a

written order on December 21, 2017, denying Hamre’s motion to dismiss. On January

2, 2018, Hamre filed a letter with the court, again requesting a speedy trial. At the

January 10, 2018, dispositional conference, a jury trial was scheduled for January 23,

2018, and the district court responded to Hamre’s inquiry about a speedy trial by

stating the scheduled trial was “pretty speedy.” Hamre represented himself during the

scheduled jury trial, and the jury found him guilty of all four charges.

[¶9] On appeal, Hamre, through his court-appointed appellate counsel, argues

he was denied his state and federal constitutional rights to a speedy trial, the district

court erred in failing to provide him an evidentiary hearing on his pretrial motion

to dismiss, and the evidence was insufficient to support the convictions. In a

self-represented supplemental statement filed under N.D.R.App.P. 24, Hamre claims

the evidence was insufficient to support his convictions, the State improperly removed

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all but two men from the jury, and the Fargo law enforcement officers failed to follow

proper procedure in executing a Clay County, Minnesota, warrant while arresting him

on June 15, 2017.

II

[¶10] A defendant in a criminal proceeding has the right to a speedy trial under N.D.

Const. art. I, § 12, and the Sixth Amendment to the United States Constitution. We

review a district court’s speedy trial decision de novo, but the court’s findings are

reviewed under the clearly erroneous standard. Koenig v. State, 2018 ND 59, ¶ 12,

907 N.W.2d 344; State v. Hall, 2017 ND 124, ¶ 12, 894 N.W.2d 836; State v. Moran,

2006 ND 62, ¶ 8, 711 N.W.2d 915.

[¶11] In State v. Erickson, 241 N.W.2d 854, 859 (N.D. 1976), we adopted a four-part

balancing test from Barker v. Wingo, 407 U.S. 514, 530 (1972), to decide speedy trial

claims under the state and federal constitutions. See Koenig, 2018 ND 59, ¶ 20, 907

N.W.2d 344; Moran, 2006 ND 62, ¶ 8, 711 N.W.2d 915; State v. Bergstrom, 2004 ND

48, ¶ 15, 676 N.W.2d 83. Under Barker, the four factors are: (1) the length of the

delay; (2) the reason for the delay; (3) the accused’s assertion of the right to a speedy

trial; and (4) the prejudice to the accused. Koenig, at ¶ 20; Moran, at ¶ 8. In Barker,

407 U.S. at 533, the United States Supreme Court described the balancing of those

factors:

We regard none of the four factors identified above as either a

necessary or sufficient condition to the finding of a deprivation of the

right of speedy trial. Rather, they are related factors and must be

considered together with such other circumstances as may be relevant.

In sum, these factors have no talismanic qualities; courts must still

engage in a difficult and sensitive balancing process. But, because we

are dealing with a fundamental right of the accused, this process must

be carried out with full recognition that the accused’s interest in a

speedy trial is specifically affirmed in the Constitution.

Under that analysis, we have said a delay of one year or more is “presumptively

prejudicial” and triggers an analysis of the other speedy trial factors. Moran, 2006

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ND 62, ¶ 9, 711 N.W.2d 915 (citing Doggett v. United States, 505 U.S. 647, 651-52

(1992)). See also Koenig, 2018 ND 59, ¶ 21, 907 N.W.2d 344.

[¶12] In Erickson, 241 N.W.2d at 859, we said that N.D.R.Crim.P. 48 acts as a

vehicle for enforcing the right to a speedy trial and authorizes a court to dismiss a

prosecution whenever there has been an unnecessary delay without requiring the court

to decide whether the delay deprived a defendant of a constitutional right. The

explanatory note for N.D.R.Crim.P. 48(b) explains that it is a codification of the

inherent power of the court to dismiss a case for want of prosecution. See State v.

Runck, 418 N.W.2d 262, 265 ( N.D. 1987).

[¶13] We have also recognized that under federal law, “a defendant’s claim that his

Sixth Amendment right to speedy trial was violated must be brought before the trial

court by a timely motion to dismiss the charges.” Koenig, 2018 ND 59, ¶ 14, 907

N.W.2d 344 (citing 5 Wayne R. LaFave et al., Criminal Procedure § 18.1(d) (4th ed.

2015)). In Koenig, we said that if a defendant fails to move to dismiss and instead

either pleads guilty or submits to trial, the speedy trial claim cannot be raised for the

first time on appeal. Koenig, at ¶ 14 (citing LaFave, at § 18.1(d)). Professor LaFave

explains that the failure to raise a speedy trial claim in a motion to dismiss may

constitute ineffective assistance of counsel and appellate courts have assessed speedy

trial claims in the absence of a timely motion to dismiss in the trial court. LaFave, at

§ 18.1(d). In Koenig, at ¶¶ 2, 14-24, the defendant filed speedy trial requests, but did

not move to dismiss the charges for a claimed speedy trial violation; rather, he raised

the issue in a post-conviction claim for ineffective assistance of counsel. We

concluded the defendant was not denied effective assistance of counsel, because his

speedy trial rights were not violated. Id. at ¶ 24.

[¶14] Other than the district court’s statement at the January 10, 2018, dispositional

conference that the scheduled January 23, 2018, trial was “pretty speedy,” this record

does not reflect that the court addressed Hamre’s speedy trial requests. Although

Hamre filed four letters with the district court requesting a speedy trial, he did not

make a motion to dismiss the charges based on a claim that he was denied a speedy

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trial, and the district court was not explicitly asked to engage in the balancing of the

Barker factors.

[¶15] Our review of this issue is de novo, however, and the record in this case

indicates the delay was attributable to Hamre’s actions involving his court-appointed

counsel and his self-represented status during the dispositional conferences. Hamre

first asserted a speedy trial right in a letter filed with the district court on October 6,

2017, and his trial began on January 23, 2018. During the interim, Hamre was either

self-represented or represented by one of two different court-appointed attorneys, and

he stated on more than one occasion at dispositional conferences that he wanted more

time to file a motion to dismiss relating to his claim about the proper procedure for

effectuating a Minnesota arrest warrant. During that time, one district court judge 

recused himself and a second judge was assigned to the case. The delay was not more

than one year and was not presumptively prejudicial, and the reasons for the delay

involved Hamre’s decisions about court-appointed counsel and representing himself,

his failure to comply with appropriate procedures for making a motion, and his

request for more time to make a motion. Nothing in this record indicates the delay

was attributable to the prosecution. Although Hamre was incarcerated from June

2017 through his trial in January 2018, the delay was not presumptively prejudicial

and he has not otherwise established prejudice in the form of an impairment to his

defense. On this record, we conclude as a matter of law that Hamre was not denied

his constitutional right to a speedy trial.

III

[¶16] Hamre argues he was denied an evidentiary hearing on his motion to dismiss. 

Hamre filed his self-represented motion at the November 20, 2017, dispositional

conference. Although Hamre’s motion cited N.D.R.Ct. 3.2, he did not make a request

for oral argument or the taking of evidence under N.D.R.Ct. 3.2(a)(3). The motion

was denied by the district court in a written order issued without a hearing on

December 21, 2017.

[¶17] We have said:

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Rule 3.2, N.D.R.Ct., applies to all motion practices, unless a

conflicting rule governs the matter. Paxton [v. Wiebe], 1998 ND 169,

¶ 13, 584 N.W.2d 72. Under N.D.R.Ct. 3.2(a)(3), a court may decide

routine motions on briefs without holding a formal hearing, unless a

party requests one. Breyfogle v. Braun, 460 N.W.2d 689, 693 (N.D.

1990). If a party who timely served and filed a brief requests a hearing

on a motion, then “such a hearing must be held and it is not

discretionary with the trial court.” Anton v. Anton, 442 N.W.2d 445,

446 (N.D. 1989). “[T]he party requesting oral argument must secure

a time for the argument and serve notice upon all other parties.” Matter

of Adoption of J.S.P.L., 532 N.W.2d 653, 657 (N.D. 1995). A request

for oral argument is not complete until the requesting party has secured

a time for oral argument. Bakes v. Bakes, 532 N.W.2d 666, 668 (N.D.

1995).

State v. $3260.00 U.S. Currency, 2018 ND 112, ¶ 12, 910 N.W.2d 839 (quoting

Desert Partners IV, L.P. v. Benson, 2014 ND 192, ¶ 18, 855 N.W.2d 608).

[¶18] This record does not reflect that Hamre requested an evidentiary hearing on his

motion to dismiss, or took steps to secure a time for the hearing. A self-represented

litigant is not granted leniency because of his status and is bound by the rules of

procedure. State v. Gray, 2017 ND 108, ¶ 12, 893 N.W.2d 484. We conclude the

district court did not err in deciding Hamre’s motion without an evidentiary hearing.

IV

[¶19] Hamre argues the evidence was insufficient to support his convictions. We

apply a highly deferential standard of review to claims that the evidence at trial was

insufficient to support a guilty verdict. State v. Carpenter, 2011 ND 20, ¶ 5, 793

N.W.2d 765. In State v. Owens, 2015 ND 68, ¶ 16, 860 N.W.2d 817, we explained

that standard:

“When the sufficiency of evidence to support a criminal conviction is

challenged, this Court merely reviews the record to determine if there

is competent evidence allowing the jury to draw an inference

reasonably tending to prove guilt and fairly warranting a conviction.”

State v. Schmeets, 2007 ND 197, ¶ 8, 742 N.W.2d 513. “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.” Id. “A conviction rests upon insufficient evidence only when

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no rational factfinder could have found the defendant guilty beyond a

reasonable doubt after viewing the evidence in a light most favorable

to the prosecution and giving the prosecution the benefit of all

inferences reasonably to be drawn in its favor.” Id.

In considering a sufficiency of the evidence claim, we do not reweigh conflicting

evidence or judge the credibility of witnesses. State v. Hannah, 2016 ND 11, ¶ 7, 873

N.W.2d 668.

A

[¶20] Under N.D.C.C. § 39-10-71, “[a]ny driver of a motor vehicle who willfully

fails or refuses to bring the vehicle to a stop, or who otherwise flees or attempts to

elude, in any manner, a pursuing police vehicle or peace officer, when given a visual

or audible signal to bring the vehicle to a stop, is guilty of” the offense of fleeing or

attempting to elude a police officer.

[¶21] At trial, Detective Swan testified that on June 5, 2017, he stopped Hamre for

driving a vehicle with expired license plates, and Hamre stopped his vehicle when

Detective Swan activated the emergency lights on his unmarked police car. According

to Detective Swan, he approached Hamre’s vehicle, identified himself as a law

enforcement officer, and obtained Hamre’s driver’s license. Detective Swan testified

that while he was waiting for backup to arrive, Hamre drove away while Detective

Swan retained the driver’s license. According to Detective Swan, his vehicle’s

emergency lights were still activated and he had not indicated to Hamre that he was

free to leave.

[¶22] Viewed in the light most favorable to the verdict, a rational fact finder could

have concluded that Hamre was guilty of fleeing or attempting to elude a police

officer. The jury heard testimony that Hamre was given a visual signal to stop when

Detective Swan activated his emergency lights. While the emergency lights were still

on and without any indication the officer had released him, Hamre drove away. 

Detective Swan’s testimony provided competent evidence allowing the jury to draw

an inference reasonably tending to prove guilt and fairly warranting a conviction. We

conclude there was sufficient evidence, viewed in the light must favorable to the

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verdict, to support Hamre’s conviction for fleeing or attempting to elude a police

officer.

B

[¶23] Under N.D.C.C. § 12.1-17-01(1)(a), a “person is guilty of [simple assault] if

that person: [w]illfully causes bodily injury to another human being.” Bodily injury

“means any impairment of physical condition, including physical pain.” N.D.C.C.

§ 12.1-01-04(4). Simple assault is a class C felony when the victim is a peace officer

acting in an official capacity, which the actor knows to be a fact. N.D.C.C.

§ 12.1-17-01(2)(a).

[¶24] Hamre claims he was not aware that the detectives were peace officers acting

in their official capacities, because they were in plain clothes when they approached

him at a Fargo storage unit on June 15, 2017. Detective Swan testified at trial,

however, that when he and Detective Malone first encountered Hamre, Detective

Swan recognized Hamre from the June 5 encounter with him and identified himself

and Detective Malone as police officers by saying, “Hi, John. Fargo Police.”

[¶25] Hamre also claims there was insufficient evidence of bodily injury to

Detectives Swan and Malone because they were not impaired in their physical

condition. The plain language of N.D.C.C. § 12.1-01-04(4) states “bodily injury

means any impairment of physical condition, including physical pain.” See Hannah,

2016 ND 11, ¶¶ 8, 12, 873 N.W.2d 668 (discussing proof of physical pain). The jury

heard testimony from Detective Swan that Hamre opened his car door and shoved

Detective Swan into a storage unit door; that Hamre closed his car door on Detective

Swan’s arm, causing pain; and that Detective Swan’s arm bruised after being caught

in the car door. The jury also heard testimony that Hamre kicked Detective Malone

in the chest and chin during the altercation, causing him pain.

[¶26] Viewed in the light most favorable to the verdict, a rational fact finder could

have concluded that Hamre was guilty of simple assault on a peace officer. 

“Pain, which is a qualifying, but not necessary, circumstance of bodily impairment

under N.D.C.C. § 12.1-01-04(4), is a phenomenon of common experience and

9
understanding.” Hannah, 2016 ND 11, ¶ 9, 873 N.W.2d 668. Detectives Swan and

Malone both testified that they felt pain when they were struck by Hamre. Detective

Swan’s testimony regarding the bruising on his arm is further evidence of bodily

injury. This Court has “long recognized juries may draw rational inferences based

upon common knowledge in reaching a verdict, and that is not only permissible but

also desirable.” Hannah, at ¶ 9. Testimony at trial supports the jury’s verdict, and we

conclude the evidence was sufficient to sustain Hamre’s convictions for simple assault

on a peace officer.

C

[¶27] A person is guilty of preventing arrest if, “with intent to prevent a public

servant from effecting an arrest of himself or another for a misdemeanor or infraction,

or from discharging any other official duty, he creates a substantial risk of bodily

injury to the public servant or to anyone except himself, or employs means justifying

or requiring substantial force to overcome resistance to effecting the arrest or the

discharge of the duty.” N.D.C.C. § 12.1-08-02(1).

[¶28] The criminal information alleged that Hamre, with intent to prevent officers

from arresting him, employed means requiring substantial force to overcome the

arrest. Detective Swan testified that he estimated the struggle to restrain Hamre

during the altercation took him and Detective Swan between five and seven minutes. 

Detective Swan also testified that at the end of the struggle, he and Detective Malone

were exhausted. Viewed in the light most favorable to the verdict, a rational fact

finder could have concluded that Hamre was guilty of preventing arrest. We conclude

the evidence was sufficient to sustain Hamre’s conviction for preventing arrest.

V

[¶29] In Hamre’s self-represented supplemental statement filed under N.D.R.App.P.

24, he argues the State struck all but two men from the jury, which ultimately

consisted of ten women. See Batson v. Kentucky, 476 U.S. 79, 87 (1986) (holding

equal protection clause forbids prosecution from challenging jurors solely on account

10
of race) and City of Mandan v. Fern, 501 N.W.2d 739, 749 (N.D. 1993) (discussing

district court evaluation of claimed sex discrimination in jury selection).

[¶30] Hamre did not raise this issue during jury selection. Rather, he raised it for the

first time on appeal in his supplemental statement under N.D.R.App.P. 24. We

decline to consider this issue because it was not raised in the district court and cannot

be considered for the first time on appeal. State v. Flanagan, 2004 ND 112, ¶ 16, 680

N.W.2d 241 (refusing to consider issue about peremptory challenges to male jury

panel members resulting in all-female jury because raised for first time on appeal);

State v. Steffes, 500 N.W.2d 608, 615 (N.D. 1993).

VI

[¶31] We affirm the judgment.

[¶32] Jerod E. Tufte

Lisa Fair McEvers

Daniel J. Crothers

Jon J. Jensen

Gerald W. VandeWalle, C.J.

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