from the District Court of Burleigh County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
A. Keefe, Assistant State's Attorney, Burleigh County
Courthouse, for plaintiff and appellee; on brief.
B. Gray, self-represented, defendant and appellant; on brief.
1] David Gray appeals from a judgment entered after a jury
found him guilty of disorderly conduct under N.D.C.C. §
12.1-31-01(1)(h). Gray, self-represented, argues the district
court erred by not ruling on his motions to dismiss; N.D.C.C.
§ 12.1-31-01 should not apply because he was engaged in
a constitutionally-protected activity; the complaint against
him was "illegal;" N.D.C.C. § 12.1-31-01 is
unconstitutional for vagueness; there is insufficient
evidence to uphold the jury verdict; and the district court
erred in denying his motion to correct an illegal sentence.
We affirm the judgment.
2] The State charged Gray with disorderly conduct under
N.D.C.C. § 12.1-31-01(1)(h) for engaging in
"harassing conduct by means of intrusive or unwanted
acts, words, or gestures that are intended to adversely
affect the safety, security, or privacy of another
person." The State filed an affidavit from a Burleigh
County deputy containing the facts and circumstances
surrounding Gray's disorderly conduct charge with the
3] According to the affidavit, on September 12, 2015, a
Burleigh County deputy responded to a report of possible
harassment at Ronda and Terry Berg's residence. The Bergs
informed the deputy they observed their neighbor, Gray, on
numerous occasions trying to look into the Bergs'
residence with binoculars, and they showed the deputy
pictures of Gray standing on the property line watching their
home. The Bergs informed the deputy they were afraid in their
home based on Gray's actions. Ronda Berg informed the
deputy that she has to "constantly keep her shades
closed, and that she is afraid to go outside her own
home." The deputy spoke to Gray about these issues. Gray
became upset with the deputy and started yelling at him. Gray
admitted to watching the Bergs' windows with binoculars
claiming he did so because he was afraid that someone in the
Bergs' home would try to shoot him. Gray told the deputy
he needs "boots on the ground so they don't overrun
my territory." The deputy told Gray that the issues with
the Bergs needed to stop. Gray replied "[n]o, it's
going to continue."
4] Trial was scheduled for July 26, 2016. Gray filed two
motions to dismiss the morning of trial. In his motions, Gray
argued the complaint was "illegal" and he raised
affirmative defenses to the disorderly conduct charge,
including that N.D.C.C. § 12.1-31-01 should not apply
because he was engaged in a constitutionally-protected
activity under N.D.C.C. § 12.1-31-01(2). The record on
appeal does not contain the district court's ruling on
the motions to dismiss, because Gray did not file a
transcript. A jury convicted Gray of disorderly conduct.
After trial, Gray moved to correct an illegal sentence under
N.D.R.Crim.P. 35. Gray made a litany of arguments including
the complaint was "not a legal complaint, " the
State violated his Sixth Amendment right "to be informed
of the nature and cause of the accusation, " and
N.D.C.C. § 12.1-31-01 should not apply because he was
engaged in a constitutionally-protected activity under
N.D.C.C. § 12.1-31-01(2). The district court denied
Gray's Rule 35 motion, concluding "the Court finds
the defendant's motion to be frivolous and
meritless." Gray appeals.
5] Gray argues the district court erred in failing to rule on
his motions to dismiss filed July 26, 2016, the day of trial.
Gray moved to dismiss, raising several defenses to the
disorderly conduct charge, including that N.D.C.C. §
12.1-31-01 should not apply because he was engaged in a
constitutionally-protected activity under N.D.C.C. §
12.1-31-01(2). Gray also argued there was a defect in the
prosecution, and the complaint against him was "illegal,
" for failure to comply with N.D.R.Crim.P. 3.
6] In reviewing a district court's ruling on a motion to
dismiss, we "defer to the district court's findings
of fact and resolve conflicts in testimony in favor of
affirmance." State v. Zink, 2010 ND 230, ¶
5, 791 N.W.2d 161. "We affirm the district court's
decision unless we conclude there is insufficient competent
evidence to support the decision, or unless the decision goes
against the manifest weight of the evidence."
Id. This Court's review is limited to only those
issues raised to the district court. Id.
7] In both his motion to dismiss and on appeal to this Court,
Gray argues the complaint did not comply with N.D.R.Crim.P. 3
because it did not contain a statement of facts that
establish the elements of the crime charged. We addressed a
similar argument in State v. Bornhoeft, in which we
concluded an "affidavit can be read with the complaint
to test the sufficiency of the complaint on a motion to
dismiss." 2009 ND 138, ¶ 8, 770 N.W.2d 270.
According to Rule 3(a) & 3(b) of the North Dakota Rules
of Criminal Procedure, a "complaint is a written
statement of the essential facts constituting the elements of
the offense charged, " and the "magistrate may...
receive any affidavit filed with the complaint." A
similar provision allowing for consideration of an affidavit
filed with a complaint is found in N.D.R.Crim.P. 4(a)(1),
providing, "[i]f it appears from the complaint, and
any affidavit filed with the complaint, that there
is probable cause to believe that a criminal offense has been
committed... the magistrate must issue an arrest
warrant." The affidavit can thus be read with the
complaint to determine whether there is probable cause to
believe that a criminal offense has been committed, and it
follows that the affidavit can be read with the complaint to
test the sufficiency of the complaint on a motion to dismiss
Bornhoeft, 2009 ND 138, ¶ 8. 770 N.W.2d 270
(emphasis in original).
8] The purpose of a criminal complaint is to fairly inform
the defendant of the charge in order to prepare his defenses.
State v. Jelliff, 251 N.W.2d 1, 5 (N.D. 1977);
City of Minot v. Bjelland, 452 N.W.2d 348, 351 (N.D.
1990). Criminal complaints phrased in statutory language have
been held sufficient. Jelliff, at 5 (citing
State v. Prince, 75 N.D. 386, 28 N.W.2d 538 (1947)).
While an affidavit is not part of the complaint and does not
itself charge an offense, this Court has held an information,
a charging document similar to a complaint, is sufficient
when an affidavit was ...