Filed 4/11/19 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2019 ND 101

State of North Dakota, Plaintiff and Appellee

v.

Abdiwali Mohamud, Defendant and Appellant

No. 20180333

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Justice.

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.
State v. Mohamud

No. 20180333

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

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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.

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[¶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 eightmonth 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 (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). 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

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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 (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

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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 wire connected to the line, so as to interfere with an emergency telephone

call.”

[¶16] Mohamud’s wife testified that once she was able to get away from Mohamud,

she called 911. She then testified Mohamud told her she could not call 911, grabbed

the phone from her, and threw it on the couch. There is also testimony in the record

indicating a 911 call was received from the number associated with Mohamud’s

wife’s phone, and there was no answer when the call center called the number back. 

Mohamud disputes the sequence of events and questions his wife’s suggestion the

battery came out of her phone when he threw it. However, on appeal, we do not

reweigh conflicting evidence or judge the credibility of witnesses. There is evidence

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in the record suggesting Mohamud intentionally removed the phone from his wife’s

possession and obstructed her attempt to make an emergency phone call. When the

evidence is viewed in the light most favorable to the verdict, it was reasonable for the

jury to find Mohamud guilty of interference with an emergency call.

[¶17] Mohamud argues there was not sufficient evidence to convict him of

terrorizing. Under N.D.C.C. § 12.1-17-04, an individual is guilty of terrorizing if the

individual “with intent to place another human being in fear for that human being’s

or another’s safety . . . or in reckless disregard of the risk of causing such terror,

disruption, or inconvenience, the person . . . [t]hreatens to commit any crime of

violence or act dangerous to human life[.]” In order to sustain a conviction of

terrorizing, the State had to prove: (1) the defendant intended to put the victim in fear

for her safety or acted with reckless disregard of the risk of causing her fear; and (2)

the defendant made a threat of a “crime of violence or act dangerous to human life.”

N.D.C.C. § 12.1-17-04; State v. Carlson, 1997 ND 7, ¶ 36, 559 N.W.2d 802; State v.

Laib, 2005 ND 191, ¶ 8, 705 N.W.2d 815.

[¶18] Here, Mohamud’s wife testified while Mohamud was strangling her, he stated,

“I’m going to break your neck. This is your last night.” She also testified she believed

she was going to die during Mohamud’s attack. The statement asserting Mohamud

would break his wife’s neck and kill her was a threat of violence dangerous to human

life. The statement, taken in conjunction with the attack, allows the jury to infer

Mohamud made the statement either intentionally or with reckless disregard of the

risk of causing his wife fear.

[¶19] Mohamud disputes that his wife was in fear of her life because she did not

respond when the 911 call center called her back. However, on appeal, we do not

reweigh conflicting evidence or judge the credibility of witnesses. When the evidence

is viewed in the light most favorable to the verdict, it was reasonable for the jury to

find Mohamud guilty of terrorizing.

IV.

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[¶20] Mohamud argues he was given an illegal sentence because the criminal

judgment does not allow contact with his minor child. A sentence is illegal if it is in

excess of a statutory provision or in some other way contrary to an applicable statute. 

State v. Booth, 2015 ND 59, ¶ 4, 861 N.W.2d 160. “This Court will vacate a district

court’s sentencing decision only if the court acted outside the limits prescribed by

statute or substantially relied on an impermissible factor in determining the severity

of the sentence.” State v. Klein, 2014 ND 166, ¶ 7, 851 N.W.2d 159. Appellate

review of a criminal sentence is generally limited to determining whether the district

court acted within the statutory sentencing limits or substantially relied upon an

impermissible factor. State v. Corman, 2009 ND 85, ¶ 15, 765 N.W.2d 530. 

Statutory interpretation is a question of law, which is fully reviewable on appeal. Id.

“Penal statutes are generally strictly construed against the government.” Id.

[¶21] Mohamud relies on State v. Wilder to support his position the district court was

not allowed to prohibit contact with his minor child as part of its sentence. 2018 ND

93, 909 N.W.2d 684. In Wilder, the defendant was found guilty of murdering his wife

and he was ordered to have no contact with the children he shared with the victim

until they turned eighteen. Id. at ¶ 14. This Court held that while the legislature

authorized the court to issue no-contact orders in other similar situations, it did not

authorize the court to order no contact as part of only a sentence of imprisonment. Id.

at ¶ 19.

[¶22] There are important distinctions between Wilder and the matter before this

Court. Wilder was sentenced to only a term of imprisonment, and N.D.C.C. § 12.1-

32-02 did not allow for a court to issue no-contact orders along with only a term of

imprisonment. Here, Mohamud was sentenced to three years of supervised probation

as part of his sentence.

[¶23] In Wilder, this Court noted under N.D.C.C. § 12.1-32-07(2), a district court

may order a probation condition prohibiting the defendant from entering a specific

location when the condition would assist the defendant in leading a law-abiding life. 

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2018 ND 93, ¶ 19, 909 N.W.2d 684. It is a logical extension that a court may also

issue a no-contact order prohibiting a probationer from contacting individuals when

the condition would assist the defendant in leading a law-abiding life as well.

[¶24] While the no-contact order is permissible as a condition of probation, it appears

in the criminal judgment here. The conditions of probation then go on to incorporate

the terms of the judgment into the probationary sentence. There are two reasonable

interpretations of this sentence: (1) the no-contact order enumerated in the judgment

is really a condition of probation and, (2) the no-contact order is part of the judgment. 

These reasonable interpretations lead to extremely different outcomes—the latter of

which results in an illegal sentence. If the no-contact order is part of the conditions

of probation, it is proper and expires in three years when the probationary period

ceases. If the no-contact order is part of the judgment, it continues in perpetuity and

is an illegal sentence. “[T]he rules for interpreting judgments mirror the rules for

interpreting contracts.” Silbernagel v. Silbernagel, 2007 ND 124, ¶ 10, 736 N.W.2d

441. A contract should be construed to follow the law, not to contravene it. See

Seher v. Woodlawn Sch. Dist. No. 26, 59 N.W.2d 805, 810 (N.D. 1953). “This court

will not place an interpretation on a judgment that permits it to be rendered ineffective

and unenforceable.” Zent v. Zent, 281 N.W.2d 41, 47 (N.D. 1979). If there are two

reasonable interpretations of a judgment, one which is lawful and another that is

unlawful, this Court will interpret the judgment using the lawful interpretation. In

turn, we interpret the no-contact order to be a condition of probation.

V.

[¶25] The district court did not err when it denied Mohamud’s motion to dismiss. 

When the evidence is viewed in the light most favorable to the verdict, it was

reasonable for the jury to find Mohamud guilty of all three charges. We interpret the 

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no-contact order as a condition of probation and affirm the criminal judgment.

[¶26] Jon J. Jensen

Jerod E. Tufte

Lisa Fair McEvers

I concur in the result.

Daniel J. Crothers

Gerald W. VandeWalle, C.J.

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