State v. Helland

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                Plaintiff and Appellant
       v.
Leon Glenn Helland,                                  Defendant and Appellee



                                 No. 20240224

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bobbi B. Weiler, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Isaac O. Lees (argued) and Gabrielle J. Goter (on brief), Assistant State’s
Attorneys, Bismarck, ND, for plaintiff and appellant.

Alexander R. Grosz, Bismarck, ND, for defendant and appellee.
                                State v. Helland
                                 No. 20240224

Bahr, Justice.

[¶1] The State appeals from a district court judgment dismissing four counts of
unlawful possession of a firearm against Leon Helland. On appeal, the State
argues the court erred in considering evidence not in the record and in finding
the State did not show probable cause for the charges. We affirm.

                                        I

[¶2] In March 2024, the State charged Helland with four counts of unlawful
possession of a firearm, a class C felony, in violation of N.D.C.C. § 62.1-02-
01(1)(b). Section 62.1-02-01(1)(b) reads, in relevant part:

      A person who . . . has been convicted of a class A misdemeanor
      offense involving violence or intimidation in violation of chapters
      12.1-16 through 12.1-25 . . . and the offense was committed while using
      or possessing a firearm . . . is prohibited from owning a firearm or
      having one in possession from the date of conviction and continuing
      for five years after the date of conviction or the date of release from
      incarceration, parole, or probation, whichever is latest.

(Emphasis added.)

[¶3] At the preliminary hearing, the State called the arresting officer who
testified to the events leading up to the charges. The officer testified that on
March 22, 2024, Helland was at a gas station and had a handgun in his waistband
and two handguns and a shotgun in his vehicle. The officer further testified her
records search revealed Helland was convicted of menacing in 2021, and the
affidavit of probable cause in that case indicated Helland used or was in
possession of a firearm during the events that formed the basis of the menacing
charge. She further testified Helland’s sentence in the menacing case included
supervised probation, and that Helland was prohibited from possessing firearms
for five years after his release from probation.




                                        1
[¶4] On cross-examination, the officer admitted she did not review the
charging document (amended information) in the menacing case; that she
believed Helland was placed on supervised probation, not unsupervised
probation; that she did not know Helland received a deferred imposition of
sentence; and that she did not know Helland successfully completed the deferred
imposition of sentence.

[¶5] The State did not offer any evidence other than the officer’s testimony.
Helland did not offer any evidence.

[¶6] During the preliminary hearing, Helland argued he successfully
completed the deferred imposition of sentence for menacing, that the guilty plea
was withdrawn, the case dismissed, and the record sealed. Thus, he argued,
there was no conviction on his record that prevented him from possessing
firearms. During the State’s argument, the district court referenced and
questioned the State about the amended information and the written plea
agreement in the menacing case. Ultimately, the court reserved judgment and
instructed the parties to submit briefs addressing whether the menacing case
prohibited Helland from possessing a firearm “given the factual basis and the
Amended Information [and] all of the things that were filed in that prior case.”

[¶7] Both parties submitted post-hearing briefs. In its brief, the State asserted it
is error for the district court “to consider extraneous information not presented
to the court through testimony or notice and merely contained in defense
counsel’s argument in favor of dismissal, and to do so at the time of the
preliminary hearing without proper notice, motion, or briefing.” Helland
provided three exhibits from the menacing case with his brief: the plea
agreement, the amended information, and a transcript of the preliminary
hearing. As part of the plea agreement, Helland admitted he committed the
offense of menacing by attempting to place another human being in fear of
imminent serious bodily injury. Neither the plea agreement nor the allegations
in the amended information mention a firearm.

[¶8] The district court dismissed the unlawful possession of a firearm charges
for lack of probable cause. After noting Helland’s charges, the court stated, “The


                                         2
question before the Court is whether the State is able to provide supplemental
testimony regarding the element of ‘the offense was committed while using or
possessing a firearm’ rather than have such fact proven or admitted to in a
previous criminal action.” The court explained the State offered testimony
Helland “had a prior conviction for menacing in 2020 and the facts contained in
the case’s affidavit stated [Helland] used a firearm.” But Helland “provided the
Court a copy of the plea agreement in the case which shows he never admitted
or was convicted of possessing a firearm when he committed the menacing.” The
court explained, “Nowhere else in the plea agreement or admissions by
[Helland] does the allegation of a firearm appear. An affidavit is not a factual
finding made by the Court. Therefore, the Court finds the record is clear,
[Helland] was convicted of menacing, but not while using or possessing a
firearm.” The court stated “that providing supplemental testimony pertaining to
whether [Helland] committed the menacing while using a firearm is
insufficient—that the State was required to prove the conviction involved the use
of a firearm.” The court concluded “the State has failed to meet its burden of
showing by probable cause that the Defendant had been convicted of an A
misdemeanor offense involving the use of a firearm, as required under N.D.C.C.
§ 62.1-02-01(1)(b).”

                                         II

[¶9] The State argues the district court erred in considering evidence not
introduced at the probable cause hearing. The State’s argument relates to court
documents filed in Helland’s menacing case. The State does not cite a single
authority, rule, or case in support of its position. The State does not even identify
the standard of review for this issue. See N.D.R.App.P. 28(b)(7)(B)(i) (stating an
appellant’s brief must contain, for each issue, “a concise statement of the
applicable standard of review”).

[¶10] Helland asserts the district court properly took judicial notice under
N.D.R.Ev. 201. He further argues the State did not object to or dispute the facts
the court took judicial notice of, nor request to be heard on the propriety of the
court taking judicial notice. See N.D.R.Ev. 201(e) (“If the court takes judicial
notice before notifying a party, the party, on request, is still entitled to be


                                         3
heard.”). Helland does not cite or address the impact of N.D.R.Ev. 1101(d)(3)(C)
on his argument. Except for rules relating to privilege, under Rule 1101(d)(3)(C)
the rules of evidence do not apply to “preliminary examination in a criminal
case.” That necessarily includes Rule 201.

[¶11] Some courts have stated appellate and trial courts have inherent power to
take judicial notice. See, e.g., Eagan Econ. Dev. Auth. v. U-Haul Co. of Minn., 

 (Minn. 2010) (stating the court has inherent power to take
judicial notice of public records where the orderly administration of justice
commends it); Gnecchi v. State, 

, 

 (1961) (“It is the
function and inherent power of the court (whether it be trial or appellate) to take
judicial notice of facts outside the record, provided they meet certain
standards.”). According to one commentator, “The taking of judicial notice of a
fact outside [of] the record is part of the inherent power and function of every
court, whether a trial or appellate tribunal.” Emerson v. State, 

(Tex. Crim. App. 1994) (quoting George R. Currie, Appellate Courts Use of Facts
Outside of the Record by Resort to Judicial Notice and Independent Investigation, 1960
Wis.L.Rev. 39, 39).

[¶12] We hold a district court has inherent power to take judicial notice in a
preliminary proceeding where the rules of evidence do not apply, provided
certain standards are met. “We review a district court’s decision to take judicial
notice under an abuse of discretion standard.” Koon v. State, 

,
1 N.W.3d 593. “A court abuses its discretion when it acts in an arbitrary,
unreasonable, or unconscionable manner, it misinterprets or misapplies the law,
or if its decision is not the product of a rational mental process leading to a
reasoned determination.” 

 (quoting Orwig v. Orwig, 

, 

). Our review of a district court’s decision to take judicial notice in a
preliminary hearing is informed by N.D.R.Ev. 201 and the case law interpreting
Rule 201.

[¶13] Under N.D.R.Ev. 201(b), a court “may judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” The
filings in Helland’s menacing case could be accurately and readily determined


                                          4
from the court’s records and the accuracy of the court’s records could not
reasonably be questioned. Thus, the amended information and plea agreement
in Helland’s menacing case are the type of facts of which the district court could
take judicial notice. See Interest of D.K.A., 

, 13 N.W.3d 133
(stating a court may take judicial notice of adjudicative facts accessible from the
court’s case management system); In re J.C., 

, ¶ 9, 

(stating a court “may take judicial notice of orders in prior proceedings”); In re
Ests. of Kjorvestad, 

 (N.D. 1981) (stating the probate and district
court could take judicial notice of prior litigation).

[¶14] Under N.D.R.Ev. 201(c) and (d), a court “may take judicial notice on its
own” “at any stage of the proceeding.” Under Rule 201(e), “On timely request, a
party is entitled to be heard on the propriety of taking judicial notice and the
nature of the fact to be noticed.” Rule 201(e) further provides, “If the court takes
judicial notice before notifying a party, the party, on request, is still entitled to
be heard.”

[¶15] Here, the information charging Helland with four counts of unlawful
possession of a firearm specifically identified the menacing case by case number
and identified it as the predicate offense to the charges. During the State’s
argument in the preliminary hearing, the district court referenced and
questioned the State about the amended information and the written plea
agreement in the menacing case. The court also instructed the parties to file post-hearing briefs addressing the issue “given the factual basis and the Amended
Information [and] all of the things that were filed in that prior case.” The court’s
questions and instruction evidenced it was considering the court records in the
menacing case. The State did not object to the court doing so at that time. The
State did object to the court considering “extraneous information not presented
to the court through testimony or notice” in its post-hearing brief. The State did
not request to be heard on the propriety of the court taking judicial notice after
the court issued its order holding the State failed to show probable cause.

[¶16] We hold the district court did not abuse its discretion by taking judicial
notice of the amended information and plea agreement in the menacing case
under the facts of this case. The information incorporated the menacing case by


                                         5
reference, relying on it as the predicate offense. Cf. Krile v. Lawyer, 

, 

 (“The district court may consider the pleadings, materials
embraced by the pleadings, and materials that are part of the public record in
deciding a motion to dismiss under N.D.R.Civ.P. 12(b)(6).”); Bala v. Stenehjem,

 (D.N.D. 2009) (stating a court may consider materials
“necessarily embraced by the pleadings and exhibits attached to the complaint.”
(quoting Mattes v. ABC Plastics, Inc., 

, 697 n.4 (8th Cir. 2003)). The
accuracy of the court’s records are verifiable and cannot reasonably be
questioned. Finally, the State did not object to the court considering the records
at the preliminary hearing or request to be heard on the propriety of the court
taking judicial notice of the records after it did so. See Hadland v. Schroeder, 

 (N.D. 1982) (stating the court did not commit error when it took
judicial notice on its own and neither party objected after “the court delivered
its memorandum decision and, therefore, had an opportunity to object”).
Although it would have been best for the court to state it was taking judicial
notice of the court records and provide the parties the opportunity to object,
under the specific facts of this case and arguments presented, we conclude the
district court did not abuse its discretion by considering its own records in a case
cited in the information as the basis for the charged offenses.

                                        III

[¶17] The State argues the district court erred in not finding probable cause to
support the four counts of unlawful possession of a firearm. The State requests
this Court reverse the judgment and remand the case for trial.

                                         A

[¶18] We review the dismissal of a criminal complaint under an abuse of
discretion standard. State v. Carrillo, 

, 

. “A trial
court abuses its discretion only when it acts in an arbitrary, unreasonable, or
capricious manner, or misinterprets or misapplies the law.” 

 (quoting State v.
Cain, 

, 

).

[¶19] Preliminary hearings are governed by N.D.R.Crim.P. 5.1. “A preliminary
hearing serves as a screening tool to determine whether probable cause exists.”

                                         6
State v. Brown, 

, 

. “[P]robable cause exists when
the facts and circumstances are sufficient to warrant a person of reasonable
caution in believing an offense has been or is being committed.” Carrillo, 

 (quoting State v. Mitchell, 

, 

).

[¶20] The State has the burden of proof in a preliminary hearing. State v. Blunt,

, 

. “The State is not required to prove with
absolute certainty or beyond a reasonable doubt that a crime occurred, but rather
need only produce sufficient evidence to satisfy the court that a crime has been
committed and that the accused is probably guilty.” Carrillo, 

(quoting Blunt, ¶ 15). “The probable cause showing required at a preliminary
hearing under N.D.R.Crim.P. 5.1 is a minimal burden of proof.” Brown, 

 (quoting State v. Gratton, 

, 

) (cleaned up).

[¶21] The North Dakota Rules of Evidence do not apply to preliminary hearings
on criminal matters. N.D.R.Ev. 1101(d)(3)(C). “The finding of probable cause
may be based on hearsay evidence in whole or in part.” N.D.R.Crim.P. 5.1(a); see
also Brown, 

 (stating the finding of probable cause may be based
on hearsay and other evidence that would be inadmissible at trial).

                                        B

[¶22] The district court concluded “that providing supplemental testimony
pertaining to whether [Helland] committed the menacing while using a firearm
is insufficient—that [under N.D.C.C. § 62.1-02-01(1)(b)] the State was required to
prove the conviction involved the use of a firearm.” Thus, the issue presented is
whether the use or possession of a firearm in committing the predicate offense
under section 62.1-02-01(1)(b) had to be proven or admitted to in the predicate
criminal action.

[¶23] The district court’s interpretation of N.D.C.C. § 62.1-02-01(1)(b) is a
question of law, which we review de novo. State v. Riggin, 

, 

; State v. Craig, 

, 

. “Our primary goal
in statutory interpretation is to determine the intent of the legislature, and we
first look to the plain language of the statute and give each word of the statute
its ordinary meaning.” Henry Hill Oil Servs. LLC v. Tufto, 

, 987

  

; see also N.D.C.C. § 1-02-02. “In construing statutes, we consider the
context of the statutes and the purposes for which they were enacted.” State v.
McCleary, 

, ¶ 8, 16 N.W.3d 445 (quoting State v. Nupdal, 

, 

).

[¶24] For a conviction under N.D.C.C. § 62.1-02-01(1)(b), the statute’s plain
language as it relates to this case requires: (1) Helland has a conviction; (2) the
conviction be a class A misdemeanor offense; (3) the offense involved violence
or intimidation; (4) the offense is codified in N.D.C.C. chs. 12.1-16 through 12.1-
25; (5) “the offense was committed while using or possessing a firearm”; and (6) the
date of conviction or release from incarceration, parole, or probation, whichever
is later, was within five years. Significantly, the fifth element is that the predicate
offense “was committed while using or possessing a firearm,” not that an
element of the offense required the use or possession of a firearm or that the
conviction was based on the use or possession of a firearm. The plain language
of section 62.1-02-01(1)(b) only requires the individual used or possessed a
firearm when the predicate offense was committed.

[¶25] United States v. Hayes, 

, 

 (2009), supports this
conclusion. In Hayes, law enforcement charged the defendant with possessing
firearms under 

(g)(9) and 924(a)(2) after discovering he had a
predicate misdemeanor crime of domestic violence. Id. at 418-19. The predicate
misdemeanor crime was a conviction for battery in violation of West Virginia
law involving the defendant’s then-wife. Id. at 419. The defendant moved to
dismiss, asserting his “battery conviction did not qualify as a predicate offense
under § 922(g)(9)” because the statute for battery did not require a domestic
relationship as an element of the crime. Id.

[¶26] A person convicted of a “misdemeanor crime of domestic violence” is
prohibited from possessing a firearm. 

(g)(9). The Supreme Court
explained the definition for a “misdemeanor crime of domestic violence” under

(a)(33)(A) imposes two requirements: first, the offense must have
been committed with “the use or attempted use of physical force, or the
threatened use of a deadly weapon.” Hayes, 

. Second, the



                                          8
defendant must have a domestic relationship with the victim. 

. The
Supreme Court explained:

       The question here is whether the language of § 921(a)(33)(A) calls for
       a further limitation: Must the statute describing the predicate
       offense include, as a discrete element, the existence of a domestic
       relationship between offender and victim? In line with the large
       majority of the Courts of Appeals, we conclude that § 921(a)(33)(A)
       does not require a predicate-offense statute of that specificity.
       Instead, in a § 922(g)(9) prosecution, it suffices for the Government
       to charge and prove a prior conviction that was, in fact, for “an
       offense … committed by” the defendant against a spouse or other
       domestic victim.

Id. Similarly, N.D.C.C. § 62.1-02-01(1)(b) only requires a firearm was used or
possessed during the commission of the predicate offense, not that the use or
possession of a firearm was an element of the predicate offense.

[¶27] When interpreting a statute, we construe the statute “in a practical
manner, giving consideration to the context of the statutes and the purpose for
which they were enacted.” Henry Hill Oil Servs., 

. Section 62.1-
02-01(1)(b), N.D.C.C., applies to class A misdemeanor offenses “involving
violence or intimidation in violation of chapters 12.1-16 through 12.1-25[.]”
Chapters 12.1-16 through 12.1-25 appear to include only one class A
misdemeanor offense involving violence or intimidation that requires, as an
element, the use of a firearm. See N.D.C.C. § 12.1-17-01.1 (providing assault is “a
class A misdemeanor, except if the victim is under the age of twelve years in
which case the offense is a class C felony,” when the person “[n]egligently causes
substantial bodily injury to another human being by means of a firearm,
destructive device, or other weapon, the use of which against a human being is
likely to cause death or serious bodily injury.”).1 It is impractical to construe the




1 Although N.D.C.C. § 12.1-17-01 provides a person is guilty of simple assault when the person

“[n]egligently causes bodily injury to another human being by means of a firearm, destructive
device, or other weapon, the use of which against a human being is likely to cause death or

                                              9
statute’s reference to offenses “involving violence or intimidation in violation of
chapters 12.1-16 through 12.1-25” to only apply to one offense. If the legislature
only intended the language to apply to one offense, there would be no reason to
refer to multiple chapters of the Century Code. Moreover, limiting application
of the language to a single offense would not serve the purpose for which the
statute was enacted.

[¶28] We conclude the requirement in N.D.C.C. § 62.1-02-01(1)(b) that the
predicate misdemeanor offense be “committed while using or possessing a
firearm” does not require the use or possession of a firearm be an element of the
predicate offense. We further conclude the requirement in section 62.1-02-
01(1)(b) that the predicate misdemeanor offense be “committed while using or
possessing a firearm” does not require the use or possession of the firearm in
committing the predicate offense be proven or admitted to in the predicate
criminal action. Rather, in a prosecution under section 62.1-02-01(1)(b), the State
has the burden to prove the defendant used or possessed a firearm when the
defendant committed the predicate offense.

[¶29] Here, at the preliminary hearing, the officer testified that in 2021 Helland
was convicted of menacing. When questioned whether she saw Helland received
a deferred imposition of sentence, the officer testified, “No.” When questioned
whether she saw Helland successfully completed his deferred imposition of
sentence, the officer responded, “No, I didn’t see that.” No evidence was
presented at or after the hearing that Helland received a deferred imposition of
sentence and completed that sentence.2 Thus, the State presented sufficient
evidence at the preliminary hearing Helland “has been convicted” and the date




serious bodily injury.” Simple assault cannot be a predicate offense under N.D.C.C. § 62.1-02-
01(1)(b) because simple assault is a class B misdemeanor. N.D.C.C. § 12.1-17-01.

2The plea agreement submitted by Helland with his post-hearing brief does not show whether
the Morton County district court accepted the plea agreement, whether Helland successfully
completed any imposed probation, or whether the court eventually dismissed the menacing
charge.

                                             10
of conviction was within five years, meeting the first and sixth elements under
N.D.C.C. § 62.1-02-01(1)(b).

[¶30] Menacing is a class A misdemeanor offense involving intimidation.
N.D.C.C. § 12.1-17-05 (providing a person is guilty of menacing if the person
“knowingly places or attempts to place another human being in fear by menacing
him with imminent serious bodily injury”). And the offense of menacing is
codified within N.D.C.C. chs. 12.1-16 through 12.1-25. Thus, the State presented
sufficient evidence at the preliminary hearing to meet the second, third, and
fourth elements under N.D.C.C. § 62.1-02-01(1)(b).

[¶31] At the preliminary hearing, the officer testified the affidavit of probable
cause in the menacing case indicated the offense was committed while using a
firearm. The officer’s testimony was sufficient to indicate Helland likely used or
possessed a firearm during the commission of his menacing conviction, meeting
the fifth element under N.D.C.C. § 62.1-02-01(1)(b). Although that portion of the
officer’s testimony may have been inadmissible at trial, a finding of probable
cause may be based on hearsay and other evidence that would be inadmissible
at trial. N.D.R.Crim.P. 5.1(a); N.D.R.Ev. 1101(d)(3)(C); Brown, 

.

[¶32] We conclude the district court abused its discretion in dismissing the case
because it misinterpreted N.D.C.C. § 62.1-02-01(1)(b), causing it to erroneously
conclude the State failed to meet its burden of showing probable cause Helland
had been convicted of an A misdemeanor offense committed while “using or
possessing” a firearm as required under section 62.1-02-01(1)(b).




                                       11
                                         IV

[¶33] Helland argues he no longer has a menacing conviction because he
successfully completed his probation, withdrew his guilty plea, and the district
court dismissed the case and sealed the record. Thus, he argues, there is no
predicate conviction to support the unlawful possession of a firearm charges. He
asserts the court erred by not addressing whether he had a conviction and
requests this Court address the issue. The State responds that a dismissed
deferred imposition of sentence constitutes a conviction under N.D.C.C. § 62.1-
02-01(2).

[¶34] Helland did not provide evidence to the district court whether or when
the court dismissed the menacing case. The plea agreement shows Helland
agreed to plead guilty on the condition he receive a deferred imposition of
sentence; the plea agreement does not show whether the court accepted the plea
agreement, whether Helland successfully completed any imposed probation, or
whether the court eventually dismissed the menacing conviction. To confirm
there is an actual case or controversy, we take judicial notice of the Morton
County district court order showing the court dismissed Helland’s menacing
conviction in February 2023, over a year before he is alleged to have unlawfully
possessed the firearms. See Interest of D.K.A., 

 (taking judicial
notice of party’s prior firearms prohibition because it is an adjudicative fact that
is not subject to reasonable dispute and can be accurately and readily determined
from the district court’s orders in a prior case); Eubanks v. Fisketjon, 

, 

 (taking judicial notice that a party “pled guilty to
disorderly conduct, a charge the [district] court incorrectly characterized as
simple assault in its analysis”); Wisnewski v. Wisnewski, 

, ¶ 18, 

 (taking judicial notice that a domestic violence protection order had
been extended); Patten v. Green, 

 (N.D. 1986) (taking “judicial
notice of the record in the divorce action and the opinions issued in related cases
that were appealed to this Court”).




                                         12
                                        A

[¶35] The district court did not address the deferred imposition of sentence issue
because it dismissed the case on the ground the State did not show probable
cause. The court did not err by not opining on this issue when it dismissed the
case on another ground.

[¶36] That the district court did not address whether Helland still has a
menacing conviction does not render the issue moot. As we stated in Powell v.
Statoil Oil & Gas LP, 

, 

, “The court’s refraining
from ruling on the issue does not render the issue moot. Otherwise, the court
could unilaterally moot any issue by not ruling on the issue.” “Nor is the issue
academic or raising an abstract legal question.” 

 “By raising this issue in the
district court, [Helland] is permitted, as the appellee, to argue it again on
appeal.” Kalvoda v. Bismarck Pub. Sch. Dist. #1, 

, ¶ 14, 

.
“An appellee is entitled to attempt to save a judgment by urging any ground
asserted in the district court, regardless of whether a cross-appeal is filed.”
Powell, ¶ 9.

[¶37] Helland requests affirmance of the judgment on grounds he asserted at the
district court. Because he is not requesting a more favorable result on appeal, he
was not required to cross-appeal. Powell, 

; see also Kalvoda, 

, ¶ 14 (“A cross-appeal is necessary only if the appellee seeks a more
favorable result on appeal than it received in the district court.”); Tkach v. Am.
Sportsman, Inc., 

 (N.D. 1982) (“In the absence of a cross-appeal, the appellee may only seek affirmance of the judgment, and may not seek
a more favorable result on appeal than he received in the trial court.”). The issue
he raises is also a purely legal issue. Great Plains Royalty Corp. v. Earl Schwartz
Co., 

, 

 (declining to address alternative ground
for affirmance because it is not clear it is a purely legal issue). We therefore
consider Helland’s argument and decide whether his completion of the deferred
imposition of sentence means there is no conviction prohibiting him from
possessing a firearm.




                                        13
                                         B

[¶38] Resolution of whether Helland has a qualifying predicate conviction under
N.D.C.C. § 62.1-02-01(1)(b) involves interpretation of several statutes. When
possible, this Court interprets related statutory provisions together to harmonize
and to give meaning to each provision. Kroschel v. Levi, 

, 

. Also, section 62.1-02-01(1)(b) is a penal statute. “Criminal statutes
are strictly construed in favor of the defendant and against the government.”
State v. Beciraj, 

, 

. Thus, in interpreting penal
statutes, we resolve any doubt in favor of the criminal defendant. State v. Rohrich,

 (N.D. 1990).

[¶39] “Under N.D.C.C. § 12.1-32-02(4), a court may defer imposition of a
sentence and place a defendant on probation during the deferment period.” State
v. Ebertz, 

, 

. “Section 12.1-32-07.1, N.D.C.C., gives
a court the authority to dismiss a case when a deferred imposition of sentence
has been ordered and the defendant has fulfilled the conditions of probation or
has been discharged from probation.” Id. ¶ 9. If the court dismisses the case,
“[t]he defendant must then be released from all penalties and disabilities
resulting from the offense or crime of which the defendant has been convicted
except as provided by sections 12.1-32-15 and 62.1-02-01.” N.D.C.C. § 12.1-32-
07.1(2).

[¶40] “Rule 32.1, N.D.R.Crim.P., sets out the requirements for orders deferring
the imposition of a sentence for an infraction or a misdemeanor[.]” Ebertz, 

. “Under the requirements of N.D.R.Crim.P. 32.1, a case is
automatically dismissed sixty-one days after a defendant’s probation has ended,
unless the court has ordered otherwise before that date.” Id. ¶ 12.

[¶41] Under N.D.C.C. § 62.1-02-01(1)(b), a person is prohibited from owning or
possessing a firearm within five years of his conviction when the person “has
been convicted of a class A misdemeanor offense involving violence or
intimidation in violation of chapters 12.1-16 through 12.1-25[.]” The statute
provides a broad definition of “conviction”:




                                        14
      2. For the purposes of this section, “conviction” means a
      determination that the person committed one of the abovementioned crimes upon a verdict of guilt, a plea of guilty, or a plea
      of nolo contendere even though:
      ...
            b. The court deferred imposition of sentence in accordance
            with subsection 4 of section 12.1-32-02[.]

N.D.C.C. § 62.1-02-01(2)(b). Under the plain language of section 62.1-02-01(2)(b),
a “conviction” includes a qualifying predicate offense where the court imposed
a deferred imposition of sentence. However, this Court has explained the
difference between the imposition of a deferred imposition of sentence and the
court setting aside the conviction and dismissing the charge.

[¶42] In State v. Nelson, 

, 

, we considered
“whether the mandatory minimum sentence under N.D.C.C. § 12.1-32-02 can be
triggered by a completed deferred sentence.” We discussed the language in
section 12.1-32-02(4) that “the prior conviction for which imposition of sentence
is deferred may be pleaded and proved[.]” Id. ¶ 10. We concluded “the phrase
‘the prior conviction for which imposition of sentence is deferred’ refers to a
deferred sentence that has not been dismissed.” Id. ¶ 11. We held “the court
could not consider [the defendant’s] previous conviction because it had been
dismissed and the court erred by using the dismissed case to trigger the
mandatory minimum sentence.” Id. “Had the prior offense not yet been
dismissed,” we explained, “the State would then have been entitled to an
opportunity to ‘plead and prove’ the prior conviction under N.D.C.C. § 12.1-32-
02(4). However, once a case is dismissed, the State may not plead and prove a
previous conviction.” Id.

[¶43] In State v. Johns, 

, 

, we addressed whether
a deferred imposition of sentence that has been dismissed can be used for
sentence enhancement purposes under N.D.C.C. § 19-03.4-03(2). We explained,
“The language of N.D.C.C. § 19-03.4-03(2), authorizes enhancement for unlawful
possession of drug paraphernalia ‘[i]f a person previously has been convicted of
an offense under this title, other than an offense related to marijuana.’” Id. ¶ 16.
We held that language “refers to a conviction for a deferred sentence that has not


                                        15
been dismissed.” Id. Because the defendant’s prior case had been dismissed, we
concluded the district court could not consider the defendant’s prior conviction
to enhance the charge. Id.

[¶44] Under N.D.C.C. § 62.1-02-01(2)(b), a “conviction” includes a deferred
imposition of sentence. A deferred imposition of sentence no longer exists when
the court sets aside the conviction and dismisses the information. We conclude
section 62.1-02-01(2)(b), when read together with N.D.C.C. §§ 12.1-32-02(4) and
12.1-32-07.1 and our decisions in Nelson and Johns, refers to a conviction for a
deferred imposition of sentence that has not been dismissed.

[¶45] We acknowledge this interpretation of N.D.C.C. § 62.1-02-01(2)(b) does not
give meaning and effect to every word, phrase, and sentence of N.D.C.C. § 12.1-
32-07.1(2). Nupdal, 

. The language “except as provided by
sections 12.1-32-15 and 62.1-02-01” in section 12.1-32-07.1(2) indicates an
exception to the defendant being “released from all penalties and disabilities
resulting from” a dismissed deferred imposition of sentence. However, section
12.1-32-07.1(2) references section 62.1-02-01, which in no way creates such an
exception. As previously explained, section 62.1-02-01(2)(b) simply confirms a
“conviction” includes a deferred imposition of sentence, not a dismissed case
where a deferred imposition of sentence was initially imposed. To the extent
section 12.1-32-07.1(2) may appear in conflict with section 62.1-02-01(2)(b), we
construe the statutes against the State and in favor of Helland. Beciraj, 

; Rohrich, 

.

[¶46] Under N.D.R.Crim.P. 32.1, the Morton County district court set aside
Helland’s conviction for menacing and dismissed the case more than a year
before Helland allegedly unlawfully possessed the firearms. Because the
deferred imposition of sentence for menacing had been set aside, it could not be
a predicate offense for the charges under N.D.C.C. § 62.1-02-01(1)(b). Although
the district court dismissed the case on a different ground, we affirm the
dismissal on the alternative legal ground raised by Helland to the district court
and this Court.




                                       16
                                    V

[¶47] We affirm the district court’s judgment dismissing the four counts of
unlawful possession of a firearm against Helland.

[¶48] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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