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State v. Greenshields

Supreme Court of North Dakota

August 29, 2019

State of North Dakota, Plaintiff and Appellant
Jerome Greenshields, Defendant and Appellee

          Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

          Opinion of the Court by McEvers, Justice. Joseph K. Nwoga, Assistant State's Attorney, Jamestown, ND, for plaintiff and appellant.

          Drew J. Hushka (argued) and Mark A. Friese (on brief), Fargo, ND, for defendant and appellee.



         [¶1] The State appeals from an order dismissing a criminal complaint charging Jerome Greenshields with two counts of sexual assault and one count of gross sexual imposition. Because there is no evidence to support the district court's ruling that an earlier order dismissing a similar criminal complaint and information was intended to be "with prejudice," we reverse and remand for further proceedings.


         [¶2] In February 2018, the State charged Greenshields with one count of sexual assault under N.D.C.C. § 12.1-20-07(1)(f) alleged to have occurred between June 1, 1997, and August 30, 1997, and one count of gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) and (c) alleged to have occurred between September 1, 2001, and September 31, 2001. In August 2018, Greenshields moved for a bill of particulars setting forth the specific date of the allegation of sexual assault because, effective August 1, 1997, the penalty for a violation of N.D.C.C. § 12.1-20-07(1)(f) changed from a class A misdemeanor to a class C felony. See 1997 N.D. Sess. Laws ch. 122, § 3. Greenshields argued the bill of particulars was necessary to adequately inform him of "his right to be free from ex post facto prosecution." On October 22, 2018, the district court granted the motion and ordered the State to "file a bill of particulars within ten (10) days of the filing of this Order."

         [¶3] After the State failed to timely produce the bill of particulars, Greenshields moved on November 5, 2018, for an order dismissing the case "for systemic disregard of the law" because the State had violated the district court's "explicit orders" and "[d]ismissal is required to prophylactically ensure the State's future compliance." Greenshields' motion and brief in support of the motion did not state whether he sought dismissal with or without prejudice. The State opposed the motion, arguing the victim could not remember the specific dates of the alleged offense. In his reply brief in support of the motion, Greenshields once again urged the court to "dismiss" for willfully disobeying its order. No hearing was requested or held on the motion. On November 21, 2018, the court ruled:

The State did not file a Bill of Particulars within ten (10) days. On November 5, 2018, Greenshields filed a motion to dismiss the charges. In its response, the State acknowledges being Ordered to file a Bill of Particulars, but still, for reasons unknown to this Court, refuses to do so. Therefore, Greenshields' motion to dismiss is hereby GRANTED.

         In December 2018, the State moved to vacate the order of dismissal and filed a bill of particulars. On January 9, 2019, the court denied the State's motion to vacate the order of dismissal. The State did not appeal.

         [¶4] On January 10, 2019, the State filed another criminal complaint against Greenshields alleging two counts of sexual assault, one charged as a class A misdemeanor occurring between June 1, 1997, to July 31, 1997, and the other charged as a class C felony occurring between August 1, 1997, to August 31, 1997. The criminal complaint's third count charged Greenshields with class B felony gross sexual imposition occurring between September 1, 2001, to September 30, 2001.

         [¶5] Greenshields moved to dismiss the criminal complaint, arguing the State could not recharge him because the first judge's dismissal was "with prejudice" and the State's misconduct foreclosed reinstatement of the charges. The State responded, arguing the prior dismissal was silent whether it was with or without prejudice, the failure to timely file a bill of particulars did not prejudice Greenshields' right to a fair trial, and collateral estoppel did not apply because there was no adjudication on the merits. After a recusal resulting in the same judge who dismissed the prior complaint being assigned to the case, the State demanded a change of judge under N.D.C.C. § 29-15-21, and a different judge was assigned to the case. On March 6, 2019, without holding a hearing, the second judge granted Greenshields' motion to dismiss, summarily concluding the prior dismissal was "as a sanction upon the State. That sanction would have no meaning at all if it was not WITH PREJUDICE."


         [¶6] The State argues the district court erred in dismissing the case based on its belief that the previous case was dismissed "with prejudice," because the earlier order of dismissal was silent whether it was with or without ...

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