text:
    2007 ND 114
    STATE of North Dakota, Plaintiff and Appellee, v. Mitchell David HOLBACH, Defendant and Appellant.
    No. 20060297.
    Supreme Court of North Dakota.
    July 25, 2007.

      Timothy C. Wilhelm, Assistant State’s Attorney, Minot, ND, for plaintiff and ap-pellee.
    Kent M. Morrow, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Mitchell Holbach appeals from an order partially revoking his probation for stalking and an order disposing of his motions to withdraw his guilty plea to the stalking charge, for new counsel, for a continuance, and for the return of seized property. We affirm.

I

[¶ 2] In July 2006, Holbach entered a guilty plea to a charge of stalking. He was sentenced to serve time in jail and placed on probation for two years. As a condition of probation, Holbach was prohibited from having any contact with the stalking victim. Holbach was also required to keep his probation officer informed of where he was living and working, and to meet with the probation officer on a regular basis. In September 2006, the State filed a petition to revoke Hol-bach’s probation, alleging he failed to meet several conditions of probation.

[¶ 3] The court held a hearing on the State’s petition to revoke Holbach’s probation. Before the hearing, Holbach asked the court to appoint a different lawyer, after having previously been appointed at least four other lawyers to assist him after the criminal judgment. All of the previous lawyers had moved to withdraw from representing Holbach. The court informed Holbach that it intended to proceed with the hearing, but gave Holbach the option to represent himself or have his current lawyer represent him. The court also informed Holbach that if he chose to represent himself, the court would order the lawyer to serve as standby counsel in case he needed help. Initially, Holbach refused to answer the court’s questions concerning whether he understood his options. Hol-bach said he wanted a lawyer to represent him, but wanted someone other than his current lawyer. When the court reiterated he had two options — proceed with his current lawyer or represent himself — Hol-bach fired his lawyer in open court. The court required Holbach’s just-fired lawyer to serve in a standby capacity. The court found Holbach, through his behavior, had effectively waived his right to counsel. At the conclusion of the hearing, the court found Holbach had violated the conditions of his probation. The court revoked Hol-bach’s probation and resentenced him to serve time in jail. Holbach was also placed on supervised probation.

[¶ 4] After the hearing, Holbach filed a motion to withdraw his guilty plea to the original stalking charge, a motion for new counsel, a motion for a continuance, and a motion for the return of seized property. The court denied the motion to withdraw his guilty plea, as Holbach failed to prove the withdrawal of his guilty plea was necessary to correct a manifest injustice under N.D.R.Crim.P. 32(d). The court also denied Holbach’s motion for new counsel and for a continuance because the issues were moot. The court granted Holbach’s motion to return seized property, so long as the seized items were not contraband or part of an ongoing investigation. Holbach appealed the court’s order partially revoking his probation and the order disposing of his post-hearing motions.

II

[¶ 5] On appeal, Holbach argues the district court erred in concluding he had voluntarily and intelligently waived his right to counsel. Holbach also argues the court erred by partially revoking his probation and in denying Holbach’s motions to withdraw his guilty plea, for new counsel, for a continuance, and for granting Hol-bach’s motion for the return of seized property.

A

[¶ 6] Holbach argues the district court committed reversible error when it concluded he made a voluntary and intelligent waiver of his right to counsel. On appeal, both Holbach and the State have framed their arguments based on the assumption a probationer has a Sixth Amendment right to counsel and, as such, any waiver of the right to counsel must be demonstrated to have been made knowingly, voluntarily, and intelligently. We do not agree with the parties’ assumption. See State v. Wardner, 2006 ND 256, 725 N.W.2d 215, State v. Ennis, 464 N.W.2d 378 (N.D.1990), and John v. State, 160 N.W.2d 37 (N.D.1968).

[¶ 7] However, even under the Sixth Amendment “voluntary, knowing, and intelligent waiver” jurisprudence, we conclude the district court did not err in determining Holbach’s conduct amounted to the functional equivalent of a waiver of his right to counsel. Assuming, but without deciding, that the waiver of a probationer’s right to counsel is subject to the same standard as the United States Supreme Court has articulated for waiving the Sixth Amendment right to counsel, Holbach’s conduct constituted the functional equivalent of a waiver of his right to counsel.

[¶ 8] Under the Sixth Amendment, “the denial of the right to counsel ... requires reversal of a defendant’s conviction because prejudice is presumed.” City of Fargo v. Habiger, 2004 ND 127, ¶ 18, 682 N.W.2d 300 (quoting State v. Poitra, 1998 ND 88, ¶ 7, 578 N.W.2d 121). As a corollary to the right to counsel, a probationer also has the right to self-representation. See N.D.R.Crim.P. 32(f) (3) (A) (iii) (probationer has right to counsel unless waived); Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (discussing the Sixth Amendment right to counsel and the corollary right to self-representation). To assert the right to self-representation, a probationer must necessarily waive the right to counsel. N.D.R.Crim.P. 32(f)(3)(A)(iii); City of Fargo v. Rockwell, 1999 ND 125, ¶ 8, 597 N.W.2d 406 (“[B]y electing to proceed pro se a defendant necessarily relinquishes many of the benefits of counsel.”). In Faretta, the United States Supreme Court explained that before a defendant can waive the right to counsel, the defendant should be made aware of the dangers and disadvantages of self-representation so the record establishes the defendant’s decision is knowingly and intelligently made. 422 U.S. at 834-36, 95 S.Ct. 2525; accord State v. Dvorak, 2000 ND 6, ¶ 10, 604 N.W.2d 445. In Dvorak, we discussed the proper procedure for obtaining a voluntary, knowing, and intelligent waiver of the right to counsel under the Sixth Amendment:

In [State v. Harmon ], 1997 ND 233, ¶ 23 n. 1, 575 N.W.2d 635, we acknowledged increasing problems with defendants who proceed pro se, and suggested “[t]rial courts should be careful to make specific on-the-record determinations about whether a defendant unequivocally, knowingly, and intelligently waived either his right to counsel or self-representation. Such a determination should make clear the dangers and disadvantages of self-representation.” Although we have not required trial courts to engage in a specific colloquy with a defendant who appears pro se, we prefer that trial courts eliminate any ambiguity about a waiver by making a specific on-the-record decision the defendant voluntarily, knowingly, and intelligently waived the right to counsel. Our preference for an on-the-record determination parallels the well-established principle that a waiver of the right to counsel will not be presumed from a silent record and courts will indulge every reasonable presumption against waiver.

Dvorak, at ¶ 11 (emphasis added and citations omitted).

B

[¶ 9] Before accepting a waiver of the right to counsel, we have stated the district court should engage in a two-part, fact-specific inquiry to determine the waiver of the right to counsel is voluntary, and to determine the waiver of counsel is made knowingly and intelligently. See Dvorak, 2000 ND 6, ¶ 12, 604 N.W.2d 445; Rockwell, 1999 ND 125, ¶ 9, 597 N.W.2d 406; Harmon, 1997 ND 233, ¶ 22, 575 N.W.2d 635.

[¶ 10] First, the Court must determine whether the waiver is voluntary. We have previously rejected the argument that the record must show an unequivocal statement indicating the defendant’s desire to represent himself. See Dvorak, 2000 ND 6, ¶ 13, 604 N.W.2d 445; Harmon, 1997 ND 233, ¶¶ 15, 21, 575 N.W.2d 635. In both Dvorak and Harmon, we held the defendant’s conduct may rise to the “functional equivalent” of a voluntary waiver. In Dvorak, we concluded the repeated requests for continuances and new counsel was best described as an attempt to avoid the trial of the charge against the defendant. Dvorak, at ¶ 14. We noted “[although we prefer the waiver of the right to counsel be expressed on the record, where there is a pattern of obstructing the legal process that waiver will seldom be acknowledged by the defendant.” Id. at ¶ 15. We concluded Dvorak’s conduct was the functional equivalent of a voluntary waiver. Id.

[¶ 11] Here, Holbach’s behavior is indicative of using pretrial motion practice and requesting different lawyers to obstruct the legal process. We have held a request for a new lawyer after the trial court denied an initial request for new counsel constituted the functional equivalent of a voluntary waiver. See Rockwell, 1999 ND 125, ¶ 14, 597 N.W.2d 406; Harmon, 1997 ND 233, ¶ 21, 575 N.W.2d 635. Holbach was represented by at least four different lawyers after the criminal judgment, all of whom either withdrew or were fired before the probation revocation hearing. Holbach also requested several judges recuse themselves from the case, claiming prejudice and judicial bias. The district court noted Holbach has “gone out of [his] way to alienate virtually everyone that represented — appointed to represent [him].” The court said new counsel would likely be faced with the same issues as his current lawyer, and then left Holbach to choose whether he was going to represent himself or have his current lawyer represent him at the hearing. After the court reiterated that the hearing would go on as scheduled and Holbach had the option of having his current lawyer represent him or to represent himself, Holbach fired his lawyer in open court. We conclude the trial court did not err in holding Holbaeh’s conduct constituted the “functional equivalent” of a voluntary waiver of counsel.

[¶ 12] Second, the Court must determine whether a waiver was knowingly and intelligently made. “A knowing and intelligent waiver requires a defendant be aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows what he is doing and his choice is made with eyes open.” Dvorak, 2000 ND 6, ¶ 16, 604 N.W.2d 445 (citing Faretta, 422 U.S. at 835, 95 S.Ct. 2525). This inquiry involves a fact-specific determination. See id. However, a specific, on-the-record warning of the dangers of self-representation is not required to establish the defendant had the required knowledge from other sources. Id. “Under our cases, the test is not limited to what the trial court said or understood, the inquiry focuses on what the defendant understood.” Id. (citing 3 LaFave et al., Criminal Procedure § 11.5(c), at 578-79 (2d. ed.1999)).

[¶ 13] In Dvorak, we concluded the defendant knowingly and intelligently waived counsel due to his significant experience with the criminal justice system, the trial court informed him of his right to counsel in the preliminary hearing, Dvorak had previously represented himself in pretrial proceedings, and Dvorak knew a lawyer would be beneficial in his proceedings. 2000 ND 6, ¶ 25, 604 N.W.2d 445. Similarly, in Rockwell, we concluded the defendant made a knowing and intelligent waiver when the court informed the defendant he would be responsible for making his own statements, cross-examination, examining his own witnesses, and for complying with the rules of procedure. 1999 ND 125, ¶ 16, 597 N.W.2d 406. Rockwell also acknowledged he would “do whatever the lawyer is supposed to do ... [and be] responsible for the aspect of the lawyer.” Id. In Harmon, we looked to the defendant’s previous contacts with the criminal justice system; the trial court provided the defendant with a copy of the court rules and the criminal code; the court explained the defendant would be given no special consideration and the rules would apply equally to him; the defendant was very involved in his case, was literate, and directed correspondence to the court; and the court appointed standby counsel. 1997 ND 233, ¶ 23, 575 N.W.2d 635.

[¶ 14] Here, the record reflects Hol-bach is very familiar with the criminal justice system and the legal process. He has inundated the district court with motions which he has prepared. Holbach was very involved in his case, was literate, and has directed voluminous correspondence to the court. He acknowledged he had received a copy of the amended petition to revoke his probation. The court also appointed standby counsel. When asked whether he understood his rights, the lower burden of proof, and the potential penalties, Holbach asserted he did not understand. However, the court responded:

THE COURT: Well, you seem to have a working knowledge of the constitution. You seem to have a working knowledge of the law. You certainly seem to have knowledge of how the system works through your various filings and your motions. And I am not going to accept “I don’t understand any of it,” as an answer. Do you have a specific question about any of those rights that we have just talked about, sir?
MR. HOLBACH: I will invoke my right to remain silent at this time to preserve my rights to due process.

[¶ 15] In the revocation hearing, Hol-bach was effective in his cross-examination of the State’s witnesses and made numerous objections to the State’s presentation of evidence. Although there was no specific inquiry into whether the waiver was knowing or intelligent, the record and transcript indicate Holbach had the requisite knowledge to make an informed decision. As in Dvorak, Harmon, and Rockwell, we conclude Holbach knowingly and intelligently waived his right to counsel.

Ill

[If 16] We have considered Holbach’s remaining arguments and conclude they are either unnecessary to our opinion, moot, or without merit. See State v. Decoteau, 2004 ND 139, ¶ 17, 681 N.W.2d 803 (declining to address unnecessary or non-meritorious arguments). We affirm the order partially revoking Holbaeh’s probation based upon findings that were not clearly erroneous and the order disposing of his motions to withdraw his guilty plea to the stalking charge, for new counsel, for a continuance, and for the return of seized property.

[¶ 17] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2007 ND 120
    Delia McGHEE, Plaintiff and Appellant, v. Rebekah MERGENTHAL, Defendant and Appellee.
    No. 20060268.
    Supreme Court of North Dakota.
    July 25, 2007.

      Mark R. Fraase, Johnson, Ramstad & Mottinger, P.L.L.P., Fargo, N.D., for plaintiff and appellant.
    Christoper M. McShane, Ohnstad Twichell, P.C., West Fargo, N.D., for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Delia McGhee appealed from a judgment denying her request for a court order declaring that she holds a life estate interest in a Traill County farmstead. McGhee also appealed from an order denying her post-judgment motion for a new trial or, alternatively, for amendment of the findings and judgment. We affirm the judgment and the court’s order denying McGhee’s post-judgment motion.

I

[¶ 2] In 1972, McGhee’s parents deeded the family farm in Traill County to McGhee’s brother, Willard Jennings Mer-genthal (“Jennings”). As consideration for the deed, Jennings paid cash, assumed some of the parents’ debt obligations, and orally promised that he would maintain the property, pay the property taxes, and allow the parents and McGhee to live on the farmstead for as long as they lived. Jennings received a warranty deed, but it did not reserve a life estate or other interest to the parents or grant any interest to McGhee.

[¶ 3] Both parents died in the 1980s, but McGhee continuously lived on the farm until 1997 when flood damage necessitated that she move until repairs could be made to the home. McGhee applied to the Federal Emergency Management Agency (“FEMA”) for funds to defray the costs of repairing the damage. That agency required verification of McGhee’s status on the farmstead before issuing funds to her. To help McGhee meet that requirement, Jennings signed a notarized letter stating that McGhee “could live [on the farmstead] as long as [she] lived.” Funds were obtained, the property was repaired, and McGhee resumed living on the farmstead until November 2001, when she moved to an apartment, because the farmstead home became uninhabitable due to mold, bat infestation, and additional flood damage.

[¶ 4] In 2004, Jennings and his wife, Mary Mergenthal, deeded the property to their daughter, Rebekah Mergenthal. They issued to her a quitclaim deed, which specifically reserved a life estate for Jennings but did not mention any right by McGhee to reside on the property. Jennings died in October 2004. Rebekah Mergenthal’s attorney then sent notice to interested parties, including McGhee, to remove their personal property on the farmstead because the buildings were going to be demolished.

[¶ 5] After receiving notice, McGhee filed this action seeking a declaratory judgment that she has a life estate in the farmstead. After a bench trial, the court concluded McGhee did not have a life estate in the property. The court also concluded Jennings’ promise to allow McGhee to live on the farmstead was not a covenant running with the land which would obligate Rebekah Mergenthal to honor the promise. The court held that the 2004 deed conveyed to Rebekah Mergenthal a fee simple title, and judgment was entered denying McGhee’s request for declaratory relief.

[¶ 6] McGhee filed a post-judgment motion seeking a new trial or, alternatively, amendment of the findings and judgment to state that she has a lifetime right to reside on the farmstead. In support of the motion, McGhee argued she was entitled to equitable relief under theories of implied trust and unjust enrichment. McGhee had not raised these arguments during the trial, but in deciding the post-judgment motion the court discussed the merits of McGhee’s equitable claims and issued an order denying McGhee’s motion.

II

[¶ 7] On appeal, McGhee raises the following single issue:

Whether the trial court erred because [McGhee] was the beneficiary of an implied trust allowing her to live on and enjoy the farmstead for as long as she lived?

[¶ 8] McGhee raised the theory of implied trust for the first time in her motion for a new trial under N.D.R.Civ.P. 59(b) or, alternatively, to amend the findings and judgment under N.D.R.Civ.P. 52(b).

[¶ 9] The trial court’s decision on a motion to alter or amend a judgment rests in its sound judgment and will not be reversed on appeal unless there is a manifest abuse of discretion. Woodworth v. Chillemi, 1999 ND 43, ¶ 7, 590 N.W.2d 446. This Court also reviews a trial court’s denial of a motion for a new trial under the abuse-of-discretion standard. State ex rel. Bd. of Univ. and School Lands v. Alexander, 2006 ND 144, ¶ 7, 718 N.W.2d 2, cert. denied, — U.S. —, 127 S.Ct. 1360, 167 L.Ed.2d 118 (2007). A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. City of Bismarck v. Mariner Constr., Inc., 2006 ND 108, ¶ 8, 714 N.W.2d 484. Within the context of this limited review, we address McGhee’s argument that the trial court erred in failing to impose an implied trust allowing McGhee to live on the farmstead for her lifetime.

Ill

[¶ 10] An implied trust is one that is created by operation of law. N.D.C.C. § 59-01-05. There are two types of implied trusts: resulting trusts and constructive trusts. Spagnolia v. Monasky, 2003 ND 65, ¶ 15, 660 N.W.2d 223. An implied trust, whether resulting or constructive, must be established by clear and convincing evidence. Schroeder v. Buchholz, 2001 ND 36, ¶ 5, 622 N.W.2d 202

A

[¶ 11] In her brief supporting the post-judgment motion, McGhee argued the trial court should impose a resulting trust against Rebekah Mergenthal:

[T]he evidence would clearly indicate a resulting trust under the law. The acts and expressions of the parties have continually indicated an intent that such a relationship existed. Jennings Mergen-thal held title to the land but allowed his sister to remain there. The land bene-fitted from her improvements and her attention. At no time did Jennings Mer-genthal attempt to remove his sister from the property. Rebekah Mergen-thal voluntarily assumed the relation of personal confidence with Delia McGhee when she accepted delivery of the deed.

In denying the motion, the trial court reasoned:

[McGhee] makes several new arguments in support of [her] post-trial motion. [McGhee] argues that Delia is a third party beneficiary of Jennings Mer-genthal’s promise to [Willard] and Lillian Mergenthal that Delia could live on the farmstead for the rest of her life. The Court agrees. However, this was Jennings Mergenthal’s promise, not Rebekah Mergenthal’s promise. Jennings Mergenthal’s promise did not run with the land, and therefore, Rebekah Mergenthal cannot be held responsible for any promise that Jennings Mergen-thal made.

[¶ 12] Whether or not a resulting trust has been created is primarily a question of intention. Zundel v. Zundel, 278 N.W.2d 123, 128 (N.D.1979); N.D.C.C. § 59-01-06(4). A resulting trust stems from acts or expressions of the parties indicating an intent that a trust relation result from their transaction. Paulson v. Meinke, 389 N.W.2d 798, 800 (N.D.1986). Imposition of a resulting trust gives a vague or incomplete agreement the substance that was originally intended by the parties. Id. The intention to create a trust must be present at the time the property is conveyed. See Scheid v. Scheid, 239 N.W.2d 833, 837 (N.D.1976).

[¶ 13] McGhee did not try this case on a theory of implied trust and did not present argument at trial that Willard and Lillian Mergenthal’s intentions were to create a trust relationship between Jennings and McGhee when they deeded the property to Jennings in 1972. The trial court found that although Jennings had made a personal promise to allow McGhee to reside on the farmstead, his promise was not a covenant running with the land and did not create a trust relationship. In a case like this, an implied trust would contradict the record title to the property, and the evidence to create an implied trust must be clear and convincing. Durward v. Nelson, 481 N.W.2d 586, 588 (N.D.1992). The court did not find the evidence was clear and convincing that Willard and Lillian Mergenthal intended to create a trust relationship between Jennings and McGhee. Having reviewed the record, we conclude the trial court did not abuse its discretion in denying McGhee’s request for a new trial or for amended findings on a theory the property was held with a resulting trust.

B

[¶ 14] In support of her motion, McGhee also argued the trial court should impose a constructive trust:

Furthermore, the facts clearly support a finding of a constructive trust. The confidential relationship is clearly established. Even prior to the deeding of the land to Jennings Mergenthal, he was greatly involved with his parents and his sister in maintaining and farming the land. After he received the deed from the land he continued to ensure and protect his sister’s right to live on and use the property. Rebekah Mer-genthal would be unjustly enriched at the expense of Delia McGhee if she were allowed to remove Delia from the property after Delia’s contributions, maintenance, and improvements of the property. Delia would be impoverished, losing the valuable right to the use of the property in which she made great investments, financially, physically, and emotionally. And there is no justification for the enrichment or the impoverishment.

[¶ 15] In denying McGhee’s motion, the court reasoned in its memorandum opinion:

[McGhee] cites N.D.C.C. § 59-01-06(2), arguing that one who gains a thing by fraud, accident, mistake, undue influence, or the violation of a trust or other wrongful act is an implied trustee of the thing gained for the benefit of the person who would otherwise have had it. Here, however, Rebekah was not a party to any promises that Jennings made.... If some provision should have been made to allow Delia McGhee to continue to reside on the property after Jennings!’] death, this was Jennings’ responsibility. This responsibility cannot be passed on to Rebekah Mergenthal.
Finally, [McGhee] argues unjust enrichment. This also was a new theory presented in the post-trial motion.
In any event, at the trial of this case there was no evidence presented on what the value of the house and buildings were at the time of trial, compared to what the value of the house and buildings were at the time Delia began living on the property after her parents passed away. The testimony at trial was that Rebekah planned on destroying the house and the outbuildings. The Court concludes that [McGhee] has not proved that Rebekah Mergenthal was unjustly enriched.

[¶ 16] A constructive trust has two essential elements: an unjust enrichment and a confidential relationship. Spagnolia v. Monasky, 2003 ND 65, ¶ 16, 660 N.W.2d 223. A confidential relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another. Id. The essential element of recovery under unjust enrichment is the receipt of a benefit by the defendant from the plaintiff which would be inequitable to retain without paying for its value. Schroeder v. Buchholz, 2001 ND 36, ¶ 14, 622 N.W.2d 202. Five elements must be established to prove unjust enrichment: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) absence of a justification for the enrichment and impoverishment; and (5) an absence of a remedy provided by law. Id. at ¶ 15.

[¶ 17] We agree with the trial court that McGhee failed to present clear and convincing evidence of a constructive trust. The evidence does not demonstrate an unjustified enrichment to Rebekah Mergenthal or an impoverishment to McGhee within a confidential relationship between the two. Having reviewed the record evidence submitted at the trial by McGhee, we conclude the trial court did not abuse its discretion in denying the motion for a new trial or amended findings on a theory of constructive trust.

C

[¶ 18] McGhee also asserts an implied trust should be imposed against the property held by Rebekah Mergenthal under N.D.C.C. § 59-01-06(3), which provides:

An implied trust arises in the following cases:
3. Each one to whom property is transferred in violation of a trust holds the same as an implied trustee under such trust, unless the person purchased it in good faith and for a valuable consideration.

McGhee argues Jennings held the farmstead in trust for McGhee to live there for her lifetime and Jennings’ transfer of the property to Mergenthal violated that trust. She asserts Mergenthal received the property as a gift knowing it was encumbered and is not a person who purchased the property “in good faith and for a valuable consideration.” McGhee asserts Mergen-thal is, therefore, obligated under N.D.C.C. § 59-01-06(3) to allow McGhee to continue residing on the property.

[¶ 19] We have concluded the trial court did not err in deciding Jennings did not hold the property with an implied trust to allow McGhee to reside on the farmstead. Consequently, Jennings’ transfer of the property to Rebekah Mergenthal was not in violation of a trust, resulting in any obligation upon her under N.D.C.C. § 59-01-06(3).

IV

[¶ 20] We conclude the trial court did not err in deciding- McGhee failed to meet her heavy burden in this case of proving by clear and convincing evidence the existence of an implied trust. We, therefore, conclude the trial court did not abuse its discretion in denying McGhee’s post-judgment motion for amended findings or, alternatively, a new trial, and we affirm the judgment and the order denying the post-judgment motion.

[¶ 21] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, DANIEL J. CROTHERS, DALE Y. SANDSTROM, JJ., concur.


author: SANDSTROM, Justice.

text:
    2007 ND 122
    STATE of North Dakota, Plaintiff and Appellee, v. Jodi Rae SCHWEITZER, Defendant and Appellant.
    No. 20060243.
    Supreme Court of North Dakota.
    July 25, 2007.

      Jodi Bass (argued), third-year law student, under the Rule on Limited Practice of Law by Law Students, and Deborah Louise Garner (appeared), Assistant State’s Attorney, Grand Forks, N.D., for plaintiff and appellee.
    Larry James Richards, Grand Forks, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Jodi Rae Schweitzer appeals from a criminal judgment entered after a jury convicted him of aggravated assault. We affirm, concluding the district court did not abuse its discretion in admitting certain testimony as an excited utterance, sufficient evidence exists to sustain the conviction, and the record on appeal does not support Schweitzer’s claim that he received ineffective assistance of trial counsel.

I

[¶ 2] In December 2005, Laurie Stamness suffered a broken and dislocated jaw, a broken nose, and a laceration under her lip. Schweitzer and Stamness had been consuming alcohol and arguing at the home of Schweitzer’s ex-girlfriend, Dawn Standing Chief. After sustaining the injuries, Stamness went to her home and sought treatment for her injuries the following morning. While receiving treatment at the hospital, Stamness gave a written statement to Grand Forks police that Schweitzer had assaulted her.

[¶ 3] Schweitzer was charged with aggravated assault under N.D.C.C. § 12.1-17-02. During an August 2006 jury trial, Stamness testified that she and Schweitzer were in a dating relationship on the evening she was injured and that she, Schweitzer, Standing Chief, and Dennis Hanson had been drinking at Standing Chiefs apartment. At trial, Stamness testified she and Schweitzer were still dating, and she was reluctant to testify against him. Stamness nevertheless testified she had argued with Schweitzer on the night of her injuries and as she was leaving Standing Chiefs apartment, she turned away and remembered she had left her purse and eyeglasses “in the kitchen area or somewhere” when someone assaulted her by striking her in the nose and face. Stamness testified at trial that she did not see who had struck her. Stamness said she then walked home and recalled that her sons were there when she walked in the door, but she did not recall her conversation with them. She was taken to the emergency room the next day by her sister, Nancy Johnson. Stamness testified that while in the emergency room she gave a written statement that Schweitzer had assaulted her to Grand Forks Police Officer Jennifer Lammers. On cross-examination, however, Stamness also acknowledged that she later told someone she thought she could have fabricated the story because she was angry with Schweitzer.

[¶ 4] Nancy Johnson testified that in a telephone call from Stamness’s son, whom she described as “extremely upset,” she learned about the assault approximately two hours after it had occurred. Over defense counsel’s hearsay objection, Johnson testified that Stamness’s son told her “the bastard broke her nose,” referring to Schweitzer. Johnson also testified Stamness told her that Schweitzer had assaulted her.

[¶ 5] Officer Lammers testified Stamness had told her Schweitzer had grabbed her when she tried to leave Standing Chiefs residence and started hitting her. Officer Lammers testified Stamness said Schweitzer had kicked her in the face with his steel-toed boots while she was on the ground. Officer Lammers also testified Stamness had given a contemporaneous written statement and it was common for victims of domestic violence to recant or change their stories.

[¶ 6] Standing Chief testified she had heard a commotion in another room, but she did not see who assaulted Stamness. Standing Chiefs testimony reflects that she observed Schweitzer and Stamness arguing just before the assault and observed Stamness’s condition immediately following the commotion. Standing Chief does not suggest someone else was present during the commotion, and she denied having caused the injuries to Stamness. Troy Peterson, M.D., an oral maxillofacial surgeon, testified Stamness was referred to him “by the emergency room” for evaluation of possible jaw and nose fractures. Dr. Peterson’s examination revealed Stamness had sustained a nasal fracture, jaw fracture, and tooth fracture, in addition to a laceration associated with the fractured tooth. Dr. Peterson testified he treated her for the nasal and jaw fractures. Dr. Peterson testified Stamness’s injuries were consistent with someone’s having been punched or kicked in the face. Dr. Peterson also testified, over defense counsel’s objection, that Stamness had told him during the examination that her injuries were the result of being assaulted by her boyfriend.

[¶ 7] After presenting Dr. Peterson’s testimony, the State rested. Schweitzer did not call any witnesses, but moved for a judgment of acquittal. The district court denied Schweitzer’s motion, concluding there was sufficient evidence to submit the case to the jury. The jury found Schweitzer guilty of aggravated assault.

[¶ 8] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the criminal judgment was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 9] Schweitzer contends the district court erred in allowing hearsay testimony to be admitted into evidence as an excited utterance. Nancy Johnson testified she found out about her sister’s assault shortly after it occurred. At trial, Johnson testified that Stamness’s oldest son had called her and was quite upset upon seeing his mother after she was assaulted:

Q And when did he call you?
A Approximately an hour and a half to two hours after what happened.
Q What was his state of mind at the time that he had called you?
A He was extremely upset. His — very extremely upset. He said his mom was bleeding—
THE COURT: Just — not what he said just what was his state of mind.
THE WITNESS: Severely upset.
Q (Ms. Garner continuing) And what did he tell you had happened?
MR. SORENSEN: Objection, Your Honor, that would be hearsay.
THE COURT: I’m going to overrule the objection. I believe it qualifies as an excited utterance. Please proceed.
Q (Ms. Garner continuing) What did he tell you had happened?
A The first thing he said was “the bastard broke her nose”.
Q And who was he referring to?
A Jodi Schweitzer.
Q What did you do next?
A I said who? Who broke her nose? And he said Jodi broke my mom’s nose, and of course, I said what, you know, I was so—
Q What did you do next?
A I called the police.

[¶ 10] “We review a district court’s evidentiary ruling under an abuse-of-discretion standard.” State v. Streeper, 2007 ND 25, ¶ 11, 727 N.W.2d 759. A district court abuses its discretion in evi-dentiary rulings when it acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law. State v. Mulske, 2007 ND 43, ¶ 5, 729 N.W.2d 129.

[¶11] Rule 803(2), N.D.R.Ev., provides: “The following are not excluded by the hearsay rule, even though the de-clarant is available as a witness: ... (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” “The proponent of the evidence has the burden of establishing the foundational facts to make a statement admissible as an ‘excited utterance’ exception to the hearsay rule.” State v. Whalen, 520 N.W.2d 830, 832 (N.D.1994); see also Staiger v. Gaarder, 258 N.W.2d 641, 647 (N.D.1977). The foundational facts must show: (1) a startling event or condition; and (2) the statement is the product of the declarant’s stress or excitement resulting from the startling event or condition. Falcon v. State, 1997 ND 200, ¶ 23, 570 N.W.2d 719; Whalen, at 832.

[¶ 12] Johnson’s testimony establishes that Stamness’s son was “extremely upset” when he saw his mother bleeding. The startling event or condition here is Stamness’s physical condition after having been assaulted. Johnson’s testimony regarding the statement by Stamness’s son reflects the son’s stress and excitement when he saw his mother. Although Schweitzer argues Johnson’s testimony about the son’s statement is not admissible as an “excited utterance” because the son did not have personal knowledge of the assault, the startling event or condition affecting Stamness’s son was not observing the assault, but was seeing his mother arriving home bloodied shortly after having been assaulted. We conclude the district court did not abuse its discretion in permitting Johnson to testify regarding the son’s statement under the “excited utterance” hearsay exception in N.D.R.Ev. 803(2).

[¶ 13] Schweitzer’s argument about the son’s lack of personal knowledge, however, does suggest an issue of “hearsay within hearsay” or double hearsay. Under N.D.R.Ev. 805, “[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these Rules.” See also State v. Lefthand, 523 N.W.2d 63, 68-69 (N.D.1994) (offered private investigator testimony was classic example of hearsay-within-hearsay and was properly excluded); Hirschkorn v. Severson, 319 N.W.2d 475, 478 n. 5 (N.D.1982) (probable “hearsay-within-hearsay” question noted but declining to address it because parties did not raise the question on appeal).

[¶ 14] Johnson’s testimony does not establish how Stamness’s son learned that Schweitzer had assaulted his mother. Johnson’s testimony is silent as to whether Stamness told her son that Schweitzer had assaulted her, whether the son assumed his mother’s assailant was Schweitzer, or whether he came to this conclusion by some other means. Schweitzer asserts there is no dispute that Stamness’s son did not see his mother’s assault. Although we have sustained the district court’s ruling that Johnson’s testimony regarding Stamness’s son’s statement was an “excited utterance,” the son’s identification of Schweitzer as his mother’s assailant was allowed without further factual foundation as to how Stamness’s son knew who had assaulted his mother. There was, however, substantial other testimony presented at trial that plainly identified Schweitzer as the assailant and that was admitted into evidence without objection. We conclude any potential error in admitting the son’s identification was harmless.

[¶ 15] Johnson testified that while she was helping her sister get medical treatment the following morning, Stamness told her Schweitzer had assaulted her. There is also testimony from both Officer Lam-mers and Dr. Peterson indicating that Stamness identified Schweitzer as her assailant. Although Schweitzer’s hearsay objection at trial could have been more specific as to the “hearsay within hearsay” issue and Schweitzer has not specifically identified the “hearsay within hearsay” issue on appeal, to the extent that Schweitzer’s argument regarding Stamness’s son’s apparent lack of personal knowledge of the assault raises this issue, we conclude any potential error does not affect Schweitzer’s substantial rights and was harmless under N.D.R.Crim.P. 52(a). We therefore conclude the district court did not abuse its discretion in admitting into evidence Johnson’s testimony regarding the statement of Stamness’s son.

Ill

[¶ 16] Schweitzer argues there was insufficient evidence to sustain his conviction.

[¶ 17] Schweitzer timely moved for a judgment of acquittal under N.D.R.Crim.P. 29, thus preserving the issue of sufficiency of the evidence for appellate review. State v. Austin, 2007 ND 30, ¶ 24, 727 N.W.2d 790. Our standard of review of a sufficiency of the evidence claim gives deference to the jury’s verdict. State v. Jacob, 2006 ND 246, ¶ 6, 724 N.W.2d 118; Austin, at ¶ 24. “This Court will reverse a conviction on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Steen, 2000 ND 152, ¶ 17, 615 N.W.2d 555.

[¶ 18] Here, the jury found Schweitzer guilty of aggravated assault under N.D.C.C. § 12.1-17-02, which, in part, states: “A person is guilty of a class C felony if that person: 1. Willfully causes serious bodily injury to another human being....” Serious bodily injury is defined as “bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ, or a bone fracture.” N.D.C.C. § 12.1-01-04(29).

[¶ 19] Schweitzer essentially argues there is insufficient evidence to sustain his conviction for aggravated assault because Stamness testified at trial that she did not know who had assaulted her. Schweitzer asserts the only other testimony identifying him as the assailant came from witnesses who were told of the “false account” by Stamness. Schweitzer also maintains much of the testimony provided by those witnesses is inadmissable hearsay.

[¶ 20] Here, there was sufficient testimony admitted without objection that identified Schweitzer as Stamness’s assailant. In addition to the previously discussed testimony of Johnson, Officer Lammers, and Dr. Peterson, Dawn Standing Chief was present the night of the assault and testified at trial. Standing Chief, who was Schweitzer’s ex-girlfriend and who had four children with Schweitzer, testified Schweitzer and Stamness were drinking at her apartment when Standing Chief returned home from work, and she starting drinking with them after putting her son to bed:

Q Do you recall the incident that took place on December 10th, 2005?
A Yes.
Q And where were you that night?
A At my apartment.
Q Did you see Mr. Schweitzer and Laurie Stamness?
A Yes.
Q Where did you see them?
A They were at my apartment when I returned home from work.
Q What happened that evening at your apartment?
A When I got home they — well, Jodi, had, had my son, our son. He was watching him overnight and they brought them back. When I got home from work they were there, they were drinking.
Q Were people intoxicated?
A Yes.
Q What happened later?
A Okay. Well, I put my son to bed and I started drinking with them, with him and Laurie. And she — well, Jodi was making remarks to me like, he’d say, honey, or I mean Dawn, he’d correct himself, and she would get very angry about that and she, she would grab his hair and pull his hair and he would get up and my brother was also there. And he got up, he told them if you guys are going to fight, you guys have to leave and so they settled down. And then it started again when—
Q You say they settled down, Jodi and Laurie Stamness?
A And Laurie, yeah. And then later on about, within like 10 more minutes he was saying, he was making more remarks to me saying you broke my heart and I still love you, though, and stuff and she would get mad again and she grabbed him by the balls. And he got up again like he’s going to push her away and my brother had told them again, you guys, last time, you guys do it again, you have to leave.
And so they knocked — they quit again. And my brother had got, had left to his friends, it was a neighbor. He got up and he left and I went into the bathroom and when I came out Jodi was walking into the hallway towards the bathroom and Laurie had followed him and I went back and I sat back in the kitchen in my apartment and they started arguing.
Q And is that when the assault occurred?
A I believe so.
Q Did you see the assault?
A No, I didn’t. I just, I heard a commotion and I looked and Laurie was coming back into my living room from the hallway and she, she just like dropped to her knees and she had a bloody nose.
Q And you didn’t — you did not assault Laurie Stamness?
A No, I didn’t.

[¶21] Standing Chiefs testimony establishes that Schweitzer and Stamness were arguing before the assault took place, and although Standing Chief did not see the assault, she saw Schweitzer walk into a hallway toward the bathroom and Stamness follow him. Further, Standing Chief testified that her brother had left the residence and that she did not assault Stamness. Despite Stamness’s lack of recollection of her assailant at trial, Standing Chiefs testimony supports a reasonable inference for the jury to conclude Schweitzer assaulted Stamness. The evidence, when viewed in a light most favorable to the verdict, supports the jury’s verdict, and we therefore reject Schweitzer’s claim that there was insufficient evidence to sustain his conviction.

IV

[¶ 22] Schweitzer contends he received ineffective assistance of trial counsel. He argues his trial counsel’s representation was plainly defective and affected the ultimate result at trial.

[¶ 23] “A criminal defendant is guaranteed the right to effective assistance of counsel under the Sixth Amendment of the United States Constitution and N.D. Const. art. I, § 12.” Austin, 2007 ND 30, ¶ 29, 727 N.W.2d 790. On appeal, whether a defendant has received ineffective assistance of counsel is a mixed question of law and fact that is fully reviewable. Id. at ¶ 28; Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809. This Court’s standard for assessing an ineffective assistance claim is in accord with the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

[A] defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” The defendant must first overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.

Flanagan v. State, 2006 ND 76, ¶ 10, 712 N.W.2d 602 (quoting Heckelsmiller v. State, 2004 ND 191, ¶¶ 3-4, 687 N.W.2d 454 (citations omitted)); see also State v. Bates, 2007 ND 15, ¶ 19, 726 N.W.2d 595.

[¶ 24] “To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was. incompetent and the probable different result.” Bates, 2007 ND 15, ¶ 19, 726 N.W.2d 595. “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome. ‘If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” Flanagan, 2006 ND 76, ¶ 10, 712 N.W.2d 602 (quoting Heckelsmiller, 2004 ND 191, ¶¶ 3-4, 687 N.W.2d 454 (citations omitted)).

[¶ 25] We have said an ineffective assistance claim should normally be brought in a post-conviction proceeding “so the parties can fully develop a record ... of counsel’s performance and its impact on the defendant’s claim.” State v. Bertram, 2006 ND 10, ¶ 39, 708 N.W.2d 913. However, when an ineffective assistance of counsel claim is argued on direct appeal, we will review whether counsel’s representation was plainly defective:

[W]e review the record to decide if the assistance of counsel was plainly defective. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the complaining party must show some evidence in the record to support the claim. Representations and assertions of appellate counsel are not enough to establish a claim of ineffective assistance. To successfully claim ineffective assistance of counsel, a defendant must establish counsel’s representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel’s deficient performance.

Bertram, 2006 ND 10, ¶ 39, 708 N.W.2d 913 (citation omitted). On appeal, we do not second-guess matters of trial tactics such as whether to call certain witnesses. See Sayler v. State, 2005 ND 166, ¶ 10, 704 N.W.2d 559. “ ‘[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ ” State v. Schlickenmayer, 364 N.W.2d 108, 112 (N.D.1985) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

[¶ 26] Here, Schweitzer points to a number of his trial counsel’s alleged deficiencies. Schweitzer asserts that before trial, his counsel complained of his workload and requested continuances, delaying his trial and resulting in a lengthy pre-trial incarceration. From the record, however, it appears Schweitzer was actually arrested for another offense while out on bond, which resulted in his bond being revoked. Thus, despite any delay leading up to the trial on the present charges, Schweitzer’s continued incarceration was due to his own actions, rather than the result of any alleged ineffective assistance of counsel.

[IT 27] Schweitzer also points to his trial counsel’s failure to object to certain opinion and hearsay testimony, in addition to his counsel’s timing in making two motions for judgment of acquittal during trial and failure to poll the jury after the verdict was read. Schweitzer also asserts his counsel erred by not giving an opening statement and failing to call witnesses on his behalf.

[¶28] On this record, however, Schweitzer has not established that his trial counsel was plainly defective. Schweitzer’s claimed deficiencies of his trial counsel conceivably could be explained as trial strategy. “When the record on direct appeal is inadequate to determine whether the defendant received ineffective assistance, the defendant may pursue the ineffectiveness claim at a post-conviction proceeding where an adequate record can be made.” State v. Strutz, 2000 ND 22, ¶ 26, 606 N.W.2d 886.

[¶ 29] From our review of this record, we conclude Schweitzer has failed on direct appeal to establish he received ineffective assistance of counsel.

V

[¶ 30] The district court judgment is affirmed.

[¶ 31] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.