from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Lolita G. Hartl
R. Egstad, Assistant State's Attorney, Grand Forks, ND,
for plaintiff and appellee.
C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
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.
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.
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 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
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.
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.
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.
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 eight-month 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.
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 ...