from the District Court of Burleigh County, South Central
Judicial District, the Honorable Sonna M. Anderson, Judge.
O. Diamond, Fargo, N.D., for petitioner and appellee.
Spahr, Assistant State's Attorney, Bismarck, N.D. for
respondent and appellant.
The State appeals from a district court order finding Michael
Brewer had received ineffective assistance of counsel and
granting him a new trial. At trial, Brewer's attorney did
not object to evidence that was likely inadmissible under
N.D.R.Ev. 404(b). We affirm the district court's order.
Brewer was convicted of two counts of Gross Sexual Imposition
("GSI"). He appealed the judgment of conviction,
and this Court affirmed the judgment. See State v.
Brewer, 2017 ND 95, 893 N.W.2d 184. Both victims of the
GSI counts, J.L. and G.H., were minors. Three interviews were
received into evidence: one interview given by G.H. regarding
a separate incident occurring at the home of Brewer and
G.H.'s aunt, Brewer's girlfriend, prior to the pool
incident; and two interviews regarding the charged
incident-one from each of the minor children about
interactions Brewer had with them in a hotel pool. In the
interview about the home incident, G.H. stated Brewer had
placed his hand on her buttocks inside her pa nts but outside
her underwear. In a pretrial motion, Brewer sought to exclude
this interview from trial, arguing it was inadmissible under
Rules 403 and 404(b). The district court found the interview
was not unduly prejudicial and would be admissible at trial
to prove motive, intent, plan, absence of mistake or lack of
accident under N.D.R.Ev. 404(b)(2). Brewer's attorney
failed to renew his objection to the evidence at trial when
the State offered a recording of the interview into evidence.
After his conviction was affirmed on appeal, Brewer applied
for postconviction relief. In 2018, a postconviction hearing
was held. The same district court judge presided over both
the original trial and the postconviction hearing. The court
explained in its postconviction relief order that at trial it
was not "given the opportunity to re-consider [its]
ruling after hearing . . . G.H.'s actual court
testimony." The district court specifically noted that
if an objection had been raised at trial, the court would
"have had the opportunity to view the alleged conduct in
light of the definition of sexual conduct and the actual
evidence produced at trial." The court stated it likely
would have sustained the objection to the interview had the
evidence been objected to at trial.
"Postconviction proceedings are civil in nature and
governed by the North Dakota Rules of Civil Procedure."
Broadwell v. State, 2014 ND 6, ¶ 5, 841 N.W.2d
750. The "applicant has the burden of establishing
grounds for post-conviction relief." Rourke v.
State, 2018 ND 137, ¶ 5, 912 N.W.2d 311.
A trial court's findings of fact in a post-conviction
proceeding will not be disturbed on appeal unless clearly
erroneous under N.D.R.Civ.P. 52(a). A finding is clearly
erroneous if it is induced by an erroneous view of the law,
if it is not supported by any evidence, or if, although there
is some evidence to support it, a reviewing court is left
with a definite and firm conviction a mistake has been made.
Questions o f l a w are fully reviewable on appeal of a
Middleton v. State, 2014 ND 144, ¶ 5, 849
N.W.2d 196; see Rourke, at ¶ 5.
"The issue of ineffective assistance of counsel is a
mixed question of law and fact and is fully reviewable by
this Court." Rourke, 2018 ND 137, ¶ 5, 912
N.W.2d 311. The analysis for ineffective assistance of
counsel claims under the United States Constitution's
Sixth Amendment is well established:
In order to prevail on a post-conviction relief application
based on ineffective assistance of counsel, the petitioner
must (1) "show that counsel's representation fell
below an objective standard of reasonableness" and (2)
"show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have ...