### 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, NortheastCentral Judicial District, the Honorable Lolita G. Hartl Romanick, Judg e.

AFFIRMED.
Opinion of the Court by Jensen, Justice

. Rachel R. Egstad, Assistant Stat e’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 af ter a jury found him guilty of aggravated assault—domestic violence, interferenc e with telephone during an emergency call, and terrorizing. On appeal, Mohamud argues the district court erred in denying his motion to dismiss for unnecessary de lay, 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 mo tion to dismiss,
conclude there was sufficient evidence to convict Mohamud of th e 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 inv olving 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 t o 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 cas e without prejudice on September 20, 2016, prior to any response by Mohamud. [¶3] Roughly eight months later , on May 5, 2017, the State re-ch arged Mohamud with aggravated assault—domestic violence, interference with te lephone during an emergency call, and terrorizing. Mohamud was ordered to have n o contact with his wife on June 12, 2017 and also not to have contact with his sonon June 13, 2017. Mohamud’s attorney filed a motion to dismiss the case on Septem ber 28, 2017. The
district court denied Mohamud’ s motion to dismi ss on October 27 , 2017. On December 7, 2017, Mohamud made an oral motion to the court requ esting the case
1be dismissed. The court denied the second motion to dismiss ba sed on timeliness and on the merits. A trial was held August 21 through August 23, 2 018. Mohamud was found guilty on all three charges. As part of the criminal jud gment, Mohamud was
ordered to have no contact with his minor child.
II. [¶4] Mohamud argues the district court erred in denying his moti on to dismiss based on unnecessary delay. Mohamud argues that under N.D.R.Cr im.P. 48, the eight-month delay between the dismissal without prejudice and the refiling of charges constituted an unnecessary delay which requires dismissal of th e charges with prejudice. [¶5] A district court’s decision on a motion to dismiss a crimin al 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 act s 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 mi sinterprets 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 ap plicable 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 m otion 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 pu blic 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.
2[¶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 preju diced by the eightmonth delay. The dismissal may have been inconvenient, but Moh amud was essentially put back in the place he was before charges were fi led. 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 revi ew a district court’s speedy trial decision de novo, with the court’s findings of fac t 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) l ength 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 mu st be weighed. Moran , at ¶ 8. [¶9] Here, the length of the delaywas eight months. A delay of one year or more is presumptively prejudicial triggering an analysis of the othe r 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 d ue to “family emergency or other circumstances.” The record indicates Mohamu d’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 St ate’s reasoning for the
3dismissal and stated “Mohamud has not shown that this explanati on was untrue.” The court went on to indicate the record was silent to Mohamud requ esting a speedy trial, and that Mohamad had produced no evidence of prejudice resultin g 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 fa ith. 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 e vidence of bad faith on the part of the State in the underlying motion to dismiss without p rejudice. The court did not err as a matter of law and did not come to any erroneous fa ctual determinations in its analysis. In turn, Mohamud’s right to a speedy trial wa s not violated.
III. [¶12] Mohamud challenges the sufficiency of the evidence regardi ng 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 c ould allow a jury to draw a reasonable inference in favor of the con viction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most fav orable to the verdict. We do not reweigh conflicting evidence or judg e 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 convic t 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. § 12.1-01-0 4, “serious bodily injury” is defined as “bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extrem e pain, permanent
4loss 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 p ut her in a choke hold and she felt like she was going to pass out. There was al so 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 strangulati on. The testimony stating Mohamud intentionally put his wife in a choke hold sati sfies the requirement that the conduct be “willful.” The testimony that Mohamud’s wi fe 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 in jury” language of N.D.C.C. § 12.1-01-04. When the evidence is viewed in the ligh t most favorable to the verdict, it was reasonable for the jury to find Mohamud gui lty of aggravated
assault. [¶15] Mohamud argues there was not sufficient evidence to convic t 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 t estimony in the record indicating a 911 call was received from the number associated w ith Mohamud’s wife’s phone, and there was no answer when the call center call ed 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 ap peal, we do not reweigh conflicting evidence or judge the credibility of witnes ses. There is evidence
5in the record suggesting Mohamud intentionally removed the phon e from his wife’s possession and obstructed her attempt to make an emergency phon e 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 c all. [¶17] Mohamud argues there was not sufficient evidence to convic t him of terrorizing. Under N.D.C.C. § 12.1-17-04, an individual is gui lty of terrorizing if the individual “with intent to place another human being in fear fo r 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 c ommit any crime of violence or act dangerous to human life[.]” In order to sustai n a conviction of terrorizing, the State had to prove: (1) the defendant intende d 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 dang erous 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 stranglin g her, he stated, “I’m going to break your neck. This is your last night.” She a lso testified she believed she was going to die during Moham ud’s attack. The statement as serting Mohamud
would break his wife’s neck and kill her was a threat of violen ce dangerous to human life. The statement, taken in conjunction with the attack, all ows the jury to infer Mohamud made the statement either intentionally or with reckles s disregard of the risk of causing his wife fear. [¶19] Mohamud disputes that his wife was in fear of her life be cause 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 witnes ses. When the evidence is viewed in the light most favorable to the verdict, it was re asonable for the jury to find Mohamud guilty of terrorizing.
IV.
6[¶20] Mohamud argues he was given an illegal sentence because th e criminal judgment does not allow contact with his minor child. A senten ce is illegal if it is in excess of a statutory provision or in some other way contrary t o an applicable statute.
State v. Booth , 2015 ND 59, ¶ 4, 861 N.W.2d 160. “This Court will vacate a d istrict court’s sentencing decision only if the court acted outside the limits prescribed by statute or substantially relied on an impermissible factor in d etermining 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 determini ng whether the district court acted within the statutory sentencing limits or substanti ally 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 r eviewable on appeal. Id. “Penal statutes are generally strictly construed against the go vernment.” 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 shar ed 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 sente nce 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, an d N.D.C.C. § 12.1-
32-02 did not allow for a court to issue no-contact orders alon g 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 c ourt may order a probation condition prohibiting the defendant from entering a specific
location when the condition would assist the defendant in leadi ng a law-abiding life.
72018 ND 93, ¶ 19, 909 N.W.2d 684. It is a logical extension th at a court may also issue a no-contact order prohibiting a probationer from contact ing individuals when the condition would assist the defendant in leading a law-abidi ng life as well. [¶24] While the no-contact order is permissible as a condition o f probation, it appears in the criminal judgment here. The conditions of probation the n go on to incorporate the terms of the judgment into the probationary sentence. Ther e 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 orde r is part of the judgment. These reasonable interpretations lead to extremely different outcomes—the latter of which results in an illegal sent ence. 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 co ntinues in perpetuity and is an illegal sentence. “[T]he rules for interpreting judgment s 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 lawf ul interpretation. In turn, we interpret the no-contact order to be a condition of pr obation.
V. [¶25] The district court did not err when it denied Mohamud’s mo tion 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

8no-contact order as a condition of probation and affirm the cri minal 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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