text:
    2008 ND 129
    Virgil LAIB, Plaintiff, Appellee and Cross-Appellant v. Lisa LAIB, Defendant, Appellant and Cross-Appellee.
    No. 20070079.
    Supreme Court of North Dakota.
    June 26, 2008.

      Lori Kim Weisz, Harvey, N.D., for plaintiff, appellee and cross-appellant.
    Paul M. Probst, Probst Law Firm, Minot, N.D., for defendant, appellant, and cross-appellee.
   KAPSNER, Justice.

[¶ 1] Lisa Laib appeals from an amended judgment changing custody of her three children to their father, Virgil Laib. Virgil Laib cross-appeals from an order denying his motion for relief from the parties’ divorce judgment. We conclude the district court misapplied the law in granting a change of custody to Virgil Laib, but did not abuse its discretion in denying his motion for relief from the divorce judgment. We reverse the amended judgment and remand for further findings and for consideration of Lisa Laib’s request for attorney fees for this appeal. We affirm the order denying Virgil Laib’s motion for relief from the judgment.

I

[¶ 2] The parties were married in 1996 and had three sons during the course of their marriage. Virgil Laib also has a son from a previous marriage. The family lived north of McClusky on a farm and ranch Virgil Laib had been operating since 1989. During the marriage, the Laibs entered into a contract for deed to purchase three quarter sections of land from Virgil Laib’s parents.

[¶ 3] Virgil Laib filed for divorce in June 2004, when he was 38 years old and Lisa Laib was 39 years old. When the parties separated, Virgil Laib’s son from the previous marriage stayed with his father on the farm and the parties’ three sons lived with Lisa Laib in Minot. The district court awarded custody of the parties’ three minor children to Lisa Laib. The court found Virgil Laib had committed domestic violence based on his conviction for terrorizing in an incident involving Lisa Laib, see State v. Laib, 2005 ND 191, 705 N.W.2d 815, and “[ojther evidence of mental and physical abuse ... in the record” sufficient to trigger the rebuttable presumption against an award of custody under N.D.C.C. § 14-09-06.2(l)(j). Although Lisa Laib had been the subject of a Social Services investigation initiated by Virgil Laib in July 2004 regarding abuse of the children, the investigation resulted in a recommendation that no services were necessary, and the court found no evidence of an ongoing pattern of domestic violence by Lisa Laib. The court found Virgil Laib had not “rebutted [the presumption] by clear and convincing evidence that it would be in the children’s best interests to grant Virgil sole or joint custody of the children.” The court granted Virgil Laib supervised visitation with the children for the first six months from the date of entry of judgment, supervised visitation with some unsupervised visitation for the next six months, and unsupervised visitation thereafter.

[¶ 4] In dividing the parties’ property, the court noted, “[ojther than the farmstead and the three quarters of land, neither party introduced evidence of the value of any of the property. Therefore, it is impossible for the Court to equitably divide the property by value.” The court accepted the parties’ agreement on distribution of some of the property and further ruled:

The parties agree Virgil should keep the farmstead and any debt associated with the farmstead. As to the three quarters of land, the testimony at trial was that this property’s ownership is in litigation due to Virgil’s default on the contract for deed under which he was purchasing the property. Because the ownership is disputed the Court cannot include the property in the marital estate.

The divorce judgment was entered in September 2005, and neither party appealed.

[¶ 5] In April 2006, Virgil Laib filed a motion for an ex parte interim order granting him custody of the three children and also moved for permanent modification of custody. Virgil Laib alleged that Lisa Laib was continuing to abuse the children, she had threatened suicide, and she also had guns in her home. The district court granted the interim order pending a hearing on the change of custody motion. Following a hearing in August 2006, the district court granted the motion to change custody of the three boys from Lisa Laib to Virgil Laib. The court noted Lisa Laib had checked herself into a psychiatric ward in Minot after having suicidal thoughts, had driven a car toward Virgil Laib’s girlfriend, and the children had expressed a preference to live with their father on the farm. The court explained:

The Court finds that there has been a significant change in circumstances in that the children have now clearly expressed their desire to live on the farm. The Court is also concerned about Lisa’s mental stability based on her suicidal threats and on her behavior in driving a car toward [Virgil Laib’s girlfriend]. The Court finds it would be in the children’s best interests to grant Virgil’s Motion for Change of Custody ... because it is the childrens’ [sic] expressed preference, because the evidence presented at the original trial and at the hearing on the Motion establishes that there are many things to do on the farm that the children enjoy and that are not available to them in Minot, and that they are now doing well in school when they were struggling in Minot. There is also evidence that Lisa has hit the children and that she tied [a child] to a chair. Lisa also uses profanity toward the children.

[¶ 6] Virgil Laib also filed a N.D.R.Civ.P. 60(b) motion for relief from the property distribution provisions of the divorce judgment. Virgil Laib alleged the cancellation action over the contract for deed to the three quarter sections of farmland had been resolved and both Virgil and Lisa Laib had redeemed the property. He further alleged that Lisa Laib had initiated an action to partition the farmland. He argued, because the contract for deed had been excluded as marital property during the divorce proceedings, and the legal ownership of the property had now been determined, the divorce court was obligated to determine whether Virgil or Lisa Laib should be awarded the farmland under principles of equitable property distribution. Virgil Laib also alleged Lisa Laib had given “false testimony” in the contract for deed action and her testimony during the divorce proceedings was not credible because, although she testified she had situational depression caused by Virgil Laib, she had been hospitalized for mental health issues before the marriage. The district court denied the motion for relief from the judgment, concluding it had no jurisdiction to rule on the motion because “[t]he referenced real property is not part of the marital estate and is the subject of other litigation.”

II

[¶ 7] On appeal, Lisa Laib contends the district court erred in granting Virgil Laib’s motion to change custody of the three children.

[¶ 8] When a motion to change custody is brought less than two years after a divorce judgment is entered establishing custody, a stricter or more rigorous modification standard applies. Graner v. Graner, 2007 ND 139, ¶ 30, 738 N.W.2d 9; Seibel v. Seibel, 2004 ND 41, ¶ 6, 675 N.W.2d 182. The applicable standard in this case is set forth in N.D.C.C. § 14-09-06.6(5)(b), which provides:

5. The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development;

See also N.D.C.C. § 14-09-06.6(3)(b).

[¶ 9] The party moving for a change of custody within two years after entry of an order establishing custody has the burden to show modification is necessary to serve the best interests of the children and to show the children’s present environment may endanger their physical or emotional health or impair their emotional development. Damron v. Damron, 2003 ND 166, ¶ 11, 670 N.W.2d 871. Although the statute does not list a material change of circumstances as a factor to consider when a motion is brought within the two-year time frame, this Court has said “[ejvidence of physical child abuse constituting an environment which endangers the child’s physical or mental health is, as a matter of law, a material change of circumstances warranting a change of custody under both N.D.C.C. § 14-09-06.6(5) and (6).” Quame v. Quame, 1999 ND 188, ¶ 12, 601 N.W.2d 256; see also Holtz v. Holtz, 1999 ND 105, ¶ 17, 595 N.W.2d 1; Hill v. Weber, 1999 ND 74, ¶ 11, 592 N.W.2d 585.

[¶ 10] A district court’s decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Clark v. Clark, 2006 ND 182, ¶ 18, 721 N.W.2d 6. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶ 11] In this case the district court made no finding that the children’s present environment with Lisa Laib may endanger their physical or emotional health or impair their emotional development. A court may not modify a prior custody order within the two-year period unless it makes an appropriate finding that one of the factors under N.D.C.C. § 14-09-06.6(5) have been met. See Engh v. Engh, 2003 ND 5, ¶8, 655 N.W.2d 712. Virgil Laib relies on evidence of Lisa Laib’s mental health and her behavior with his girlfriend and the children. However, Lisa Laib voluntarily checked herself into a hospital for treatment of her mental health issues and continues to receive counseling. She attributed her suicidal thoughts to situational depression caused by Virgil Laib’s demands for custody of the children and ownership of the farmland. The court made no finding that the children were affected by the episode. Furthermore, from our review of the record it appears the court’s reference to Lisa Laib hitting the children stems from her pre-divorce conduct which the court had already considered in originally awarding her custody of the children.

[¶ 12] Although we do not remand for clarification if we can clearly understand the court’s factual determinations and discern through inference or deduction the rationale for the district court’s result, see Hilgers v. Hilgers, 2004 ND 95, ¶ 23, 679 N.W.2d 447, this is not such a case. Indeed, the court’s findings strongly suggest the primary basis for the court’s decision is the preference of the children and the many activities they enjoy on the farm. The “reasonable preference of the child” is one of the best interest factors under N.D.C.C. § 14-09-06.2(1)®, but it cannot justify a change of custody under N.D.C.C. § 14-09-06.6(5)(b) unless the court finds modification is “necessary to serve the best interest of the child” and further finds the “child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.” (Emphasis added.)

[¶ 13] The district court also failed to address its findings in the divorce proceeding that Virgil Laib had committed domestic violence sufficient to trigger the rebuttable presumption against an award of custody under N.D.C.C. § 14-09-06.2(l)(j) and that he had failed to rebut the presumption. If the pre-divorce domestic violence triggers the presumption against an award of custody, custody may not be changed to the perpetrator unless the court finds by clear and convincing evidence that the presumption has been rebutted. See Holtz, 1999 ND 105, ¶¶ 27, 30, 595 N.W.2d 1. The district court ignored this factor in its decision to change custody of the children from Lisa Laib to Virgil Laib.

[¶ 14] We conclude the district court misapplied the law in its decision to change custody. Before a change of custody may be granted under these circumstances, the court must first find whether the children’s present environment may endanger their physical or emotional health or impair their emotional development. If so, the court must further find whether Virgil Laib has rebutted the domestic violence presumption against an award of custody with clear and convincing evidence that the best interests of the children require his participation as the custodial parent and that modification is necessary to serve the children’s best interests. See N.D.C.C. §§ 14-09-06.2(l)(j) and 14-09-06.6(5). We reverse and remand for the court to correctly apply the law and make the appropriate findings of fact on the record.

Ill

[¶ 15] In his cross-appeal, Virgil Laib argues the district court erred in denying his motion for relief from the judgment.

[¶ 16] A district court’s decision on a N.D.R.Civ.P. 60(b) motion for relief from the judgment is within the court’s sound discretion and will not be reversed on appeal absent an abuse of discretion. Olander Contracting Co. v. Gail Wachter Invs., 2003 ND 100, ¶ 8, 663 N.W.2d 204. An abuse of discretion exists only when the district court acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶ 10, 609 N.W.2d 90. The moving party bears the burden of establishing sufficient grounds for disturbing the finality of the judgment, and relief should be granted only in exceptional circumstances. Id.

[¶ 17] A motion for relief from a judgment under N.D.R.Civ.P. 60(b) is not a substitute for an appeal. Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶ 17, 699 N.W.2d 45. We do not determine whether the district court was substantively correct in entering the judgment from which relief is sought, but determine only whether the court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not established. Knutson v. Knutson, 2002 ND 29, ¶ 7, 639 N.W.2d 495. “When it is disclosed that a judgment is so blatantly one-sided or so rankly unfair under the uncovered circumstances that courts should not enforce it, N.D.R.Civ.P. 60(b)(vi) provides the ultimate safety valve to avoid enforcement by vacating the judgment to accomplish justice.” Kopp v. Kopp, 2001 ND 41, ¶ 10, 622 N.W.2d 726.

[¶ 18] During the divorce proceedings Lisa Laib listed the value of the three quarter sections of land at $125,280, but Virgil Laib assigned no value to the property and instead wrote “Defaulted— Don’t Own” on the property and debt listing. The land was involved in other litigation brought by Virgil Laib’s parents to cancel the contract for deed. The district court ruled the land could not be included in the marital estate because its ownership was disputed in the cancellation action. To the extent there was a value that could be assigned to the parties’ redemption rights, the property should have been considered marital property in the divorce proceeding. See Hitz v. Hitz, 2008 ND 58, ¶ 11, 746 N.W.2d 732 (all property held by either party jointly or individually is considered marital property); Werre v. Bowman County, 79 N.D. 617, 624, 58 N.W.2d 792, 797 (1953) (right to make redemption is an interest in land “at least of some potential value”). However, neither party appealed from the divorce judgment to correct this error. Only after Lisa Laib was awarded the right to redeem with Virgil Laib in the cancellation action almost one year after the divorce judgment was entered did Virgil Laib seek the aid of a different court through this N.D.R.Civ.P. 60(b) motion in the divorce proceedings to “deny[] Lisa Laib equity in his parent’s farmland.”

[¶ 19] The circumstances here are distinguishable from Kraft v. Kraft, 366 N.W.2d 450 (N.D.1985), the primary case relied upon by Virgil Laib. In Kraft, at 452, the wife appealed from the divorce judgment and from the denials of her motions for new trial and for relief from the judgment filed eight days after notice of entry of the divorce judgment. The wife argued the court should not have merely offset the parties’ retirement pensions in distributing the marital property because the husband’s retirement benefits were worth substantially more than her own and she should be allowed to present additional evidence to establish the value. Id. This Court concluded the district court erred in offsetting the retirement plans because “enough evidence was presented for the trial court to observe the great disparity in values between the two plans.” Id. at 454 (footnote omitted). We reversed and remanded to permit the wife to present additional evidence on the value of the plans “for the limited purpose of having the trial court consider whether or not any adjustment should be made to its order concerning property division and alimony.” Id. Unlike the present case, the motion for relief from the judgment in Kraft was filed within days of entry of the divorce judgment and the appeal from the denial of the motion accompanied the direct appeal from the judgment itself. This ease lacks the “great disparity” in the values of the parties’ contested property that was crucial in Kraft. The court in the cancellation action ruled the parties, upon redeeming, would be tenants in common. Tenants in common generally hold an undivided one-half interest in property. See Black’s Law Dictionary 1465 (6th ed.1990). The parties have each essentially received one-half of the three quarter sections of farmland after a nine-year marriage, a result which might not have been different if the farmland had been considered marital property in the original divorce proceeding. Denial of a motion to reopen a judgment is proper when the movant fails to show how the result would be different if the judgment were reopened. Estate of Wieland, 1998 ND 130, ¶ 19, 581 N.W.2d 140.

[¶ 20] Virgil Laib’s claim that relief should be granted because of newly discovered evidence that Lisa Laib had been hospitalized for mental health reasons before the marriage, which he claims places her credibility in question, is also unpersuasive. Impeachment evidence is generally insufficient to constitute newly discovered evidence warranting vacation of a judgment and a new trial. See Evenson v. Evenson, 2007 ND 194, ¶ 30, 742 N.W.2d 829 (evidence must not be merely cumulative or impeaching before a new trial may be granted on the basis of newly discovered evidence); State v. Steinbach, 1998 ND 18, ¶ 23, 575 N.W.2d 193 (impeaching affidavits are generally insufficient grounds for granting a new trial).

[¶ 21] Virgil Laib has not established exceptional circumstances or that the divorce judgment is “so blatantly one-sided or so rankly unfair” that it should not be enforced. Kopp, 2001 ND 41, ¶ 10, 622 N.W.2d 726. We conclude the district court did not abuse its discretion in denying the N.D.R.Civ.P. 60(b) motion for relief from the judgment.

IV

[¶ 22] Lisa Laib has requested attorney fees on appeal. Attorney fees may be awarded in divorce proceedings when one spouse has a need for them and the other spouse has the ability to pay. Wold v. Wold, 2008 ND 14, ¶20, 744 N.W.2d 541. Although we have concurrent jurisdiction with the district court to award attorney fees for an appeal in a divorce proceeding, we prefer that the district court decide the issue. Dvorak v. Dvorak, 2006 ND 171, ¶24, 719 N.W.2d 362. We therefore remand to the district court to determine whether an award of attorney fees under N.D.C.C. § 14-05-23 is appropriate for this appeal.

V

[¶ 23] We reverse the amended judgment and remand for further findings and for consideration of Lisa Laib’s request for attorney fees for this appeal. We affirm the order denying Virgil Laib’s motion for relief from the judgment.

[¶ 24] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

DALE V. SANDSTROM, J., concurs in the result.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice. SANDSTROM, Justice,

license: Public Domain

text:
    2008 ND 128
    In the Matter of the ADOPTION OF C.D. K.D., Petitioner and Appellant v. M.L., Respondent and Appellee and Oglala Sioux Tribe, Intervenor and Appellee.
    No. 20070171.
    Supreme Court of North Dakota.
    June 26, 2008.

      Paul R. Sanderson, Zuger, Kirmis & Smith, Bismarck, N.D., for petitioner and appellant.
    Bradley D. Peterson (appeared), Bismarck, N.D., for respondent and appellee.
    B.J. Jones, Grand Forks, N.D., for inter-venor and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] K.D. (“Karen”) appealed from a district court judgment dismissing her petition to terminate the parental rights of M.L. (“Mary”). We reverse and remand, concluding the district court erred in determining that the Indian Child Welfare Act (“ICWA”), 25 U.S.C. §§ 1901-1963, applied in this case.

I

[¶ 2] Mary and E.D. (“Edward”) are the biological parents of C.D. (“Chad”), who was born in 1993. Karen is married to Edward and is Chad’s stepmother. Although Chad initially resided with Mary after his birth, he was removed from her custody upon a petition by Morton County Social Services in 1996. Edward was awarded full legal and physical custody in 1997, and Chad has lived with Edward and Karen since that time.

[¶ 3] Mary’s father was a full-blood Native American and was an enrolled member of the Oglala Sioux Tribe (“Tribe”). Mary is one-half Oglala Sioux blood and Chad is one-quarter Oglala Sioux blood. Mary has never been an enrolled member of the Tribe, but had filed an application for enrollment which was pending at the time of the hearing in this case.

[¶ 4] In May 2004, Karen filed petitions to adopt Chad and to terminate Mary’s parental rights. Mary moved to dismiss the petitions, alleging Chad was an Indian child and Karen had failed to comply with the notice requirements of ICWA. Following a hearing, at which Karen argued that ICWA did not apply, the district court continued the matter and directed Karen’s counsel to provide notice of the proceedings to the Tribe. Karen provided notice to the Tribe, and the Tribe served motions to intervene and to transfer jurisdiction to the Oglala Sioux Tribal Juvenile Court and dismiss the state case. The district court granted the Tribe’s motion to intervene, but denied its motion to transfer jurisdiction and dismiss the case.

[¶ 5] An evidentiary hearing was held on Karen’s petitions on March 20, 2007. At the conclusion of Karen’s case-in-chief Mary moved for judgment as a matter of law, arguing Karen had failed to meet the heightened evidentiary standards required under ICWA to terminate her parental rights. Karen again argued ICWA did not apply because there was no evidence establishing Chad was an “Indian child” as defined by ICWA. The court concluded that ICWA applied and that Karen had failed to meet ICWA’s heightened burden of proof. The court accordingly dismissed the petition to terminate Mary’s parental rights and found it unnecessary to consider Karen’s petition to adopt Chad. Karen appealed.

II

[¶ 6] ICWA was enacted, in part, to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families.” 25 U.S.C. § 1902. Thus, when termination of parental rights to an Indian child is sought, the party seeking termination must satisfy the requirements of both the state statutory scheme and the more stringent requirements of ICWA.

[¶ 7] We have summarized the dual burdens placed upon petitioners seeking termination of parental rights to an Indian child:

Those state and federal provisions create a dual burden of proof for a party seeking to terminate the parental rights of a parent of an Indian child. “Under N.D.C.C. § 27-20-44(1)(b)(1) the juvenile court may terminate parental rights if a child is deprived, the conditions and causes of the deprivation are likely to continue, and the child is suffering, or will in the future probably suffer serious physical, mental, moral, or emotional harm.” In re D.Q., 2002 ND 188, ¶ 19, 653 N.W.2d 713. A party seeking termination of parental rights must prove all the necessary elements by clear and convincing evidence. Under 25 U.S.C. § 1912(d), a petitioner must demonstrate, “by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts were unsuccessful.” In re M.S., [2001 ND 68, ¶ 18, 624 N.W.2d 678]. Under 25 U.S.C. § 1912(f), a petitioner must prove continued custody of a child by a parent or Indian custodian is likely to result in serious emotional or physical damage to the child by proof beyond a reasonable doubt.

In re J.P., 2004 ND 25, ¶ 7, 674 N.W.2d 273 (citations omitted). Thus, the elements of state law must be proven by clear and convincing evidence, but ICWA’s requirement that continued custody of the child would likely result in serious emotional or physical damage to the child must be satisfied with proof beyond a reasonable doubt. In re T.F., 2004 ND 126, ¶ 7, 681 N.W.2d 786; In re M.S., 2001 ND 68, ¶4, 624 N.W.2d 678.

[¶ 8] The district court in this case concluded that ICWA applied and that Karen had failed to meet ICWA’s higher burden of proof. Karen does not challenge the court’s determination that she did not meet the requirements for termination under ICWA, but on appeal argues only that ICWA does not apply in this action because Chad is not an “Indian child” as defined by ICWA.

[¶ 9] ICWA’s heightened standards for termination of parental rights apply only if an Indian child, as defined in the Act, is involved, and the district court must make a threshold determination that an Indian child is involved in the case. See, e.g., 25 U.S.C. § 1912; In re A.G.-G., 899 P.2d 319, 321 (Colo.Ct.App.1995); In re AW., 741 N.W.2d 793, 807 (Iowa 2007); In re Anderson, 176 Or.App. 311, 31 P.3d 510, 512 (2001). “Indian child” is defined in 25 U.S.C. § 1903(4):

“Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

[¶ 10] The parties agree that Chad is not a member of the Tribe, and subsection (a) of the statute does not apply. Mary and the Tribe allege Chad is an Indian child under 25 U.S.C. § 1903(4)(b) because Chad is eligible for membership in the Tribe and Mary, his biological mother, is a member. Karen argues that Mary and the Tribe failed to present any evidence that Mary was a member of the Tribe or that Chad was eligible for membership, and therefore Chad is not an Indian child under 25 U.S.C. § 1903(4)(b) and ICWA does not apply.

Ill

[¶ 11] Before we consider the issue Karen raises on appeal, we address the Tribe’s assertion that Karen waived any challenge to the applicability of ICWA when she failed to timely object to the Tribe’s motion to intervene in the district court.

[¶ 12] Resolution of this issue requires an explanation of the somewhat convoluted proceedings in this case. Karen filed her petitions for termination of Mary’s parental rights and for Chad’s adoption in May 2004. At a July 8, 2004, hearing on the petitions, the court continued the matter and appointed counsel for Mary. In October 2004, Mary moved to dismiss the petitions because Karen had failed to comply with the notice requirements under ICWA. See 25 U.S.C. § 1912(a). Karen opposed the motion, arguing ICWA did not apply because Chad was not an Indian child under the Act. A second hearing on the petitions was held on November 15, 2004, and the court again continued the hearing and directed Karen’s attorney to serve notice of the proceedings upon the Tribe and to schedule another hearing. On November 24, 2004, Karen’s counsel served notice upon the Tribe and Mary, advising that a hearing on the petitions would be held on January 4, 2005.

[¶ 13] The Tribe did not file any written response to the notice prior to the January 4, 2005, hearing, and no representative of the Tribe appeared at the hearing. Mary’s counsel indicated at the hearing that he had contacted the Tribe the previous day and the Tribe had faxed to him copies of a motion to intervene and a motion to transfer jurisdiction to the Ogla-la Sioux Tribal Juvenile Court. Although dated December 16, 2004, the documents had not been filed with the court or served upon Karen. Karen argued the Tribe should not be allowed to intervene because ICWA did not apply and because the Tribe had failed to timely move to intervene. Over Karen’s counsel’s objection, the court again continued the matter and allowed the Tribe five days to file the original documents with the court. The court, however, further held that it was granting the Tribe’s motion to intervene and would delay ruling on the motion to transfer jurisdiction. The Tribe finally filed its motions with the court on January 11, 2005. Karen filed a brief objecting to the Tribe’s motion to transfer jurisdiction, but did not file a written response to the motion to intervene, which the court had already granted.

[¶ 14] The Tribe contends that Karen’s failure to file a separate written objection to the motion to intervene after the Tribe properly filed the motion constitutes a waiver of her objection to application of ICWA in this case. The record indicates, however, that Karen raised these specific challenges to ICWA’s applicability at the January 4, 2005, hearing when the court considered and ruled upon the Tribe’s un-filed motion. Karen has consistently throughout these proceedings, up to and including the final evidentiary hearing, argued that Chad is not an Indian child and ICWA does not apply. We conclude Karen adequately objected to the Tribe’s motion and did not waive her right to contest ICWA’s applicability.

[¶ 15] Because we conclude Karen adequately objected to the Tribe’s motion, we need not address the separate issue whether a party’s failure to object to a Tribe’s motion to intervene may constitute a waiver of the right to challenge ICWA’s applicability. We note, however, that an order allowing intervention is not final or appealable, and does not finally determine the rights or claims of any party. In re A.B., 2005 ND 216, ¶6, 707 N.W.2d 75. Accordingly, an order allowing intervention may be reconsidered at any time, and all parties retain the right to appeal upon entry of a final judgment or order. Id.

IV

[¶ 16] The Tribe contends that it has conclusively established Chad is an Indian child and ICWA applies because its “Finding, as asserted in its Motion to Intervene, that [Chad] is a member or eligible for membership with the Oglala Sioux Tribe was binding upon the Court below.”

[¶ 17] There are two problems with the Tribe’s argument. First, the Tribe in its motion to intervene and its motion to transfer jurisdiction alleged that Chad was an Indian child because he was under eighteen years of age and was eligible for enrollment in the Tribe. However, in order to establish that Chad is an Indian child under 25 U.S.C. § 1903(4)(b), the relevant statute in this case, the Tribe must establish both that Chad is eligible for membership in the Tribe and that he is the biological child of a member of the Tribe. The Tribe’s motions did not allege that Mary is a member of the Tribe. Alleging that Chad is eligible for membership addresses only half of the equation and is not conclusive of the determination whether he is an Indian child, triggering application of ICWA.

[¶ 18] More importantly, however, the Tribe’s argument is premised upon a misconception of the procedure and burden of proof employed in determining whether ICWA applies. The Tribe’s underlying assertion is correct. An Indian tribe’s determinations of its own membership and eligibility for membership are binding and conclusive in an ICWA proceeding. E.g., In re Junious M., 144 Cal.App.3d 786, 193 Cal.Rptr. 40, 44 (1983); In re S.N.R., 617 N.W.2d 77, 84 (Minn.Ct. App.2000); In re Phillip A.C., 122 Nev. 1284, 149 P.3d 51, 56 (2006); In re A.L.W., 108 Wash.App. 664, 32 P.3d 297, 301 (2001); 41 Am.Jur.2d Indians; Native Americans § 119 (2005); 42 C.J.S. Indians § 156 (2007); see also Roe v. Doe, 2002 ND 136, ¶8, 649 N.W.2d 566 (“an Indian tribe has exclusive jurisdiction over wholly internal tribal subject matter, such as membership disputes”). The rule is premised upon a tribe’s inherent power to define and determine its own membership, which is central to its existence as an independent political community. Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Therefore, in determining whether ICWA applies, state courts “may not second-guess the internal decision-making processes of the tribe in regard to its membership determination.” Phillip A.C., at 56.

[¶ 19] Although the Tribe is correct that it has the right to conclusively determine its own membership, the Tribe makes an unsubstantiated leap in logic by alleging that the assertion in its motion to intervene that Chad is eligible for membership is conclusive of his Indian child status and mandates application of ICWA in this case. While the Tribe has the authority to determine its own membership, it is for the state court to correlate that information to the statute, apply the law, and make the legal determination whether the child is an Indian child under 25 U.S.C. § 1903(4), thereby triggering application of ICWA. Thus, the court must initially determine whether a tribe has concluded that the child or parent is a member or is eligible for membership in the tribe, and that determination by the trial court is a finding of fact. S.N.R., 617 N.W.2d at 84; Phillip AC., 149 P.3d at 56; A.L.W., 32 P.3d at 301. In resolving this factual issue, the court must determine whether the party who states that the child or parent is a member or is eligible for membership in the tribe is authorized to make such statements on the tribe’s behalf. S.N.R., at 84; Phillip AC., at 56; AL.W., at 301. The burden of proof is upon the party asserting the applicability of ICWA to produce evidence for the court to decide whether a child is an Indian child. In re A.L., 2001 ND 59, ¶ 10, 623 N.W.2d 418; In re H.D., 343 Ill.App.3d 483, 278 Ill.Dec. 194, 797 N.E.2d 1112, 1117-18 (2003); In re J.D.B., 584 N.W.2d 577, 582 (Iowa Ct.App.1998); In re J.L.M., 234 Neb. 381, 451 N.W.2d 377, 387 (1990); Anderson, 31 P.3d at 512; In re AS., 2000 SD 94, ¶ 13, 614 N.W.2d 383; 42 C.J.S. Indians § 156(2007).

[¶ 20] The question here is not whether the Tribe has the authority to determine its own membership. It clearly does. The question here is whether any admissible evidence of such a determination by the Tribe was presented to the district court. The Tribe and Mary, as the parties urging ICWA’s application in this case, had the burden to present evidence that Chad was eligible for membership in the Tribe and that Mary was a member of the Tribe. Allegations in pleadings, motions, or briefs are not evidence. See Medd v. Fonder, 543 N.W.2d 483, 486-87 (N.D.1996); First Nat’l Bank of Hettinger v. Clark, 332 N.W.2d 264, 268 (N.D.1983). Furthermore, there was no evidence that the person who signed the written motions, identified as a social worker, had the authority to make statements on tribal membership on the Tribe’s behalf. Accordingly, the allegations in the Tribe’s motions were not evidence, and were not binding and conclusive on Chad’s status as an Indian child under 25 U.S.C. § 1903(4) and on applicability of ICWA to this case.

V

[¶ 21] The Tribe and Mary contend that, even if the allegations in the Tribe’s motions do not conclusively establish that Chad is an Indian child and that ICWA applies, other evidence presented to the court establishes that Mary was a member of the Tribe and that Chad was therefore an Indian child under 25 U.S.C. § 1903(4)(b).

A

[¶ 22] Much of the parties’ arguments on this issue center upon Mary’s enrollment status with the Tribe. Mary has twice applied for enrollment in the Tribe. Mary testified that her father applied to enroll her in the Tribe when she was seven years old, but her parents were told Mary would have to apply for membership on her own when she was an adult. In August 2004, after Karen filed her petitions to adopt Chad and to terminate Mary’s parental rights, Mary filed an application for enrollment in the Tribe. At the time of the evidentiary hearing on March 20, 2007, the Tribe had not acted and Mary’s application was still pending.

[¶ 23] Karen has argued throughout these proceedings that Mary is not a member of the Tribe because she has not been accepted for enrollment. As the Tribe correctly points out, however, membership in an Indian tribe is not synonymous with enrollment as a member of the tribe. For purposes of application of ICWA, a party may be a member of a tribe without being enrolled in the tribe. See, e.g., In re Jeffrey A., 103 Cal.App.4th 1103, 127 Cal.Rptr.2d 314, 317 (2002); In re Hunter, 132 Or.App. 361, 888 P.2d 124, 125 (1995); In re Arianna, 2003 WI 11, ¶ 17, 259 Wis.2d 563, 657 N.W.2d 363; 41 Am.Jur.2d Indians; Native Americans § 134 (2005). As the court noted in In re Junious M., 144 Cal.App.3d 786, 193 Cal.Rptr. 40, 45 (1983) (quoting Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,586 (Nov. 26, 1979)):

Enrollment is not always required in order to be a member of a tribe. Some tribes do not have written rolls. Others have rolls that list only persons that were members as of a certain date. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.

Mary’s lack of enrollment in the Tribe is not dispositive of the issue of whether she is a member of the Tribe.

B

[¶24] The remaining dispositive issue is whether Mary or the Tribe presented any evidence from which the district court could find that Mary was a member of the Tribe other than by enrollment.

[¶ 25] Mary and the Tribe argue that evidence of Mary’s Indian heritage, her receipt of benefits provided only to Indians, her acceptance in the Indian community, and her application for enrollment with the Tribe all constitute evidence that Mary is a member of the Tribe. While these factors may support an inference that Mary is ethnically an Indian, they do not demonstrate membership in the Tribe. The definition of “Indian child” in 25 U.S.C. § 1903(4) requires more than a showing that the child and parent have an Indian heritage. The statute expressly requires either that the child be a member of a federally recognized tribe, or that the child be eligible for membership and the parent be a member of such a tribe. An assertion that a child or parent “is of Indian ‘heritage’ or ‘blood’ provides no evidence that any of the children are Indian children under the ICWA.” In re R.M.W., 188 S.W.3d 831, 833 (Tex.App.2006).

[¶ 26] ICWA’s requirement of current tribal membership of at least one party to the proceedings is an outgrowth of the limits on Congressional authority in Indian legislation. Congressional authority to legislate extends only to tribal Indians, and creates a political, rather than a racial, preference. Rice v. Cayetano, 528 U.S. 495, 519-20, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000); United States v. Antelope, 430 U.S. 641, 645, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977); Morton v. Mancari, 417 U.S. 535, 553 n. 24, 554, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); see In re A.W., 741 N.W.2d 793, 809 (Iowa 2007). Such preferences are granted to Indians “not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities.” Rice, at 520, 120 S.Ct. 1044; Antelope, at 645, 97 S.Ct. 1395; Morton, at 554, 94 S.Ct. 2474. In In re A.B., 2003 ND 98, ¶36, 663 N.W.2d 625, this Court recognized that ICWA is not premised upon racial classifications, concluding that “[t]he different treatment of Indians and non-Indians under ICWA is based on the political status of the parents and children and the quasi-sovereign nature of the tribe.”

[¶ 27] The Iowa Supreme Court addressed this distinction between ethnic Indians and tribal Indians in the context of ICWA in In re AM., 741 N.W.2d at 806-13. Noting that the traditional constitutional basis for federal Indian legislation is advancement of tribal self-government, the court concluded ICWA’s focus is necessarily limited to tribal membership, not the ethnic background of an individual, and any attempt to expand ICWA’s definition of “Indian child” to include ethnic Indians not eligible for membership in a federally recognized tribe would constitute an improper racial classification. Id. at 810. Viewed in this context, the evidence presented by Mary establishing her Indian heritage, Indian blood quantum, acceptance in the Indian community, and receipt of Indian scholarships, awards, and benefits, but without a corresponding connection to tribal membership, was irrelevant to the determination whether Chad is a biological child of a member of an Indian tribe and thus an Indian child under 25 U.S.C. § 1903(4)(b).

[¶ 28] Similarly, evidence that Mary had applied for enrollment with the Tribe is irrelevant to the determination of Indian child status. Subsection (b) of 25 U.S.C. § 1903(4) clearly requires proof that a biological parent is currently a member of the tribe, not that she is eligible for membership or has applied for membership. If anything, the fact that the Tribe had not yet approved Mary’s application, which had been pending for more than two-and-one-half years at the time of the hearing on March 20, 2007, may call into question her eligibility for membership in the Tribe.

[¶ 29] Mary and the Tribe contend Mary did present evidence of her membership in the Tribe in the form of a document from the Department of the Interior dated October 27, 1980, which certified that Mary was at that time “listed on the Pine Ridge Indian Reservation Census Ledger ... as being 1/2 degree Oglala Sioux Indian blood, with Roll No. Pending.” This document does not purport to be an official declaration that she is a member of the Tribe, but certifies only that she has a one-half degree blood quantum. Absent some other evidence showing that being listed on the Census Ledger is an official designation of membership in the Tribe, this document, standing alone, is not sufficient to satisfy the burden of demonstrating that Mary is currently a member of the Tribe.

[¶ 30] It is apparent from the record that the district court carefully considered, but struggled with, this issue. At the March 20, 2007, hearing on the petitions for termination of parental rights and adoption, Karen again challenged the applicability of ICWA in this case, reasserting her argument that there was no evidence Mary was a member of the Tribe. In response, the court acknowledged the lack of evidence of Mary’s membership but suggested ICWA would apply because Mary had done all she could to be recognized as a member:

I understand your position, Mr. Sander-son and I understand that technically I have nothing in front of me that says she is a member but I have evidence in the record that says she has done absolutely everything she can to be a member and she qualifies as a member and the fact that it’s not been recognized in the last 27 years is beyond her control.
I may be wrong and I may be overturned but I am going to hold that I.C.W.A. applies.

At the conclusion of the hearing, the court again addressed ICWA’s applicability:

While technically [the Tribe is] not acting to accept her, it recognized her on the census. It recognized her by providing her benefits that are available only to Native Americans.
I maybe [sic] wrong but in my heart I believe she is Native American. She should be given the benefit of the Native American Indian Child Welfare Act. That’s my ruling.

[¶ 31] The court’s rulings indicate a misunderstanding of the showing required to establish that a child is an Indian child under 25 U.S.C. § 1903(4)(b). It is not enough that a party show she has attempted to become a member and that the Tribe’s failure to recognize her as a member is “beyond her control.” Nor is it enough that the court believes the mother is Native American. Under 25 U.S.C. § 1903(4)(b), the question is not whether she is Native American but whether she is currently a member of a federally recognized Indian tribe. The court failed to recognize ICWA’s distinction between ethnic Indians and tribal Indians. Furthermore, the court’s statements that there was evidence she qualified as a member and the Tribe had provided benefits to her are not supported by evidence in the record. There was no evidence before the court of the Tribe’s regulations or provisions on eligibility for membership, and there was no evidence that the benefits Mary had received as a Native American had been provided by the Tribe.

[¶ 32] The court’s misinterpretation of the requirements of ICWA carried over into its findings of fact. In order to conclude that Chad was an Indian child under 25 U.S.C. § 1903(4)(b), triggering application of ICWA, Mary and the Tribe were required to prove, and the court was required to find, that Chad was eligible for membership in the Tribe and that Mary was a current member of the Tribe. The court made neither finding. The court’s relevant findings state only:

14.
[Mary] is listed on the Pine Ridge Indian Reservation Census Leger [sic] as being 1/2 degree Oglala Sioux Indian Blood.
15.
[Mary’s] enrollment is pending with the Oglala Sioux Tribe.
16.
[Chad] is 1/4 Oglala Sioux Indian Blood.

These findings by the district court do not support its conclusion of law that ICWA was applicable in these proceedings.

[¶ 33] Proof of Indian child status in cases such as this should not be particularly difficult. Because the Tribe’s determination that a person is a member or is eligible for membership is conclusive and binding, all that is necessary under 25 U.S.C. § 1903(4) is admissible evidence that the Tribe has determined either that the child is a member, or that the child is eligible for membership and a biological parent is a member. An affidavit or testimony of a tribal representative, providing the relevant facts on the parties’ membership status and establishing the authority of the person making the statement to speak on behalf of the tribe, would be sufficient. See, e.g., In re A.L., 2001 ND 59, ¶ 10, 623 N.W.2d 418; In re A.G.-G., 899 P.2d 319, 321-22 (Colo.Ct.App.1995); In re J.L.M., 234 Neb. 381, 451 N.W.2d 377, 387 (1990); In re Phillip A.C., 122 Nev. 1284, 149 P.3d 51, 56 (2006); In re Angus, 60 Or.App. 546, 655 P.2d 208, 212 (1982). No such affidavit or testimony was presented by Mary or the Tribe in this case.

C

[¶ 34] We conclude Mary and the Tribe failed to satisfy their burden of producing evidence establishing that Mary was a member of the Tribe as required under 25 U.S.C. § 1903(4)(b). Therefore, the district court erred in concluding that ICWA applied in this case. Because we conclude there was insufficient evidence presented to establish that Mary was a member of the Tribe, we need not address whether Mary and the Tribe met their burden to produce evidence that Chad was eligible for membership in the Tribe.

VI

[¶ 35] We have considered the remaining issues and arguments raised by the parties and find them to be either without merit or unnecessary to our decision. We reverse the judgment dismissing the petition for termination of Mary’s parental rights and remand for further proceedings consistent with this opinion.

[¶ 36] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

SANDSTROM, Justice,

concurring specially.

[¶ 37] In ¶ 23, the majority asserts: “As the Tribe correctly points out, however, membership in an Indian tribe is not synonymous with enrollment as a member of the tribe.”

[¶ 38] The authority cited by the majority actually reflects that “membership in an Indian tribe is not always synonymous with enrollment as a member of the tribe.” See, e.g., In re Arianna, 2003 WI 11, ¶ 17, 259 Wis.2d 563, 657 N.W.2d 363 (“[M]any tribes require a person to register or enroll in order to be considered a member of the tribe, but some do not and automatically include a person as a member if the person is descended from a tribal member who was listed on the tribal rolls as of a specific date.”).

[¶ 39] The majority then arrives at a logical fallacy:

• Enrollment is not determinative of membership in some Indian tribes.
• The Oglala Sioux Tribe is an Indian tribe.
• Enrollment is not determinative of membership in the Oglala Sioux Tribe.

[¶ 40] Because this fallacious reasoning is in the nature of dicta, unnecessary to deciding the case, I concur in the result.

[¶ 41] Dale V. Sandstrom.


author: SANDSTROM, Justice.

text:
    2008 ND 133
    Paul Joseph SAMBURSKY, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20070177, 20070182.
    Supreme Court of North Dakota.
    June 26, 2008.

      Rebecca Jo Heigaard McGurran, Grand Forks Public Defender Office, Grand Forks, N.D., for petitioner and appellant.
    David Thomas Jones (argued), Assistant State’s Attorney, and Stephanie A. Weis (on brief), Legal Intern and third-year law student, under the Rule on Limited Practice of Law by Law Students, Grand Forks, N.D., for respondent and appellee.
   SANDSTROM, Justice.

[¶ 1] Paul Sambursky appeals from a district court order, which was entered after a remand in Sambursky v. State, 2006 ND 223, 723 N.W.2d 524 (“Sambursky I ”), denying his post-conviction relief application based upon his claim of ineffective assistance of counsel. We affirm, concluding the district court did not err in finding Sambursky failed to meet his burden of proving his trial counsel’s representation fell below an objective standard of reasonableness.

I

[¶ 2] Facts relevant to this case are set forth in Sambursky I, 2006 ND 223, 723 N.W.2d 524, and we will not reiterate them here except as necessary to explain the resolution of this appeal.

[¶ 3] In 2003, Sambursky was charged with five counts of gross sexual imposition and one count of disorderly conduct, arising from a series of sexual assaults in Grand Forks in 2001 and 2002. Sambur-sky pled guilty to the charges. After reviewing the plea agreements and a pre-sentence investigation report, the district court rejected Sambursky’s first guilty plea. After a second plea agreement was reached, Sambursky again pled guilty to the charges, and the court accepted his plea. In accordance with this plea agreement, the court sentenced Sambursky to 30 years’ incarceration with an additional 50 years suspended. Sambursky subsequently moved for reduction of his sentence under N.D.R.Crim.P. 35, which the court denied.

[¶ 4] In 2004, Sambursky filed an application for post-conviction relief, alleging his guilty plea was not entered knowingly and voluntarily and he received ineffective assistance of counsel. The district court summarily denied his application, and Sambursky appealed. In Sambursky I, 2006 ND 223, ¶ 11, 723 N.W.2d 524, this Court held that the district court did not err in finding Sambursky’s guilty plea was made knowingly and voluntarily. However, because a majority of this Court concluded Sambursky had raised genuine issues of material fact on his claim for ineffective assistance of counsel, we remanded to the district court for an evidentiary hearing on that claim. Sam-bursky I, at ¶ 27.

[¶ 5] After a March 2007 evidentiary hearing, the district court denied Sambur-sky’s application for post-conviction relief. The court concluded Sambursky had not met his burden to establish a claim of ineffective assistance of counsel. The court found that Sambursky’s trial counsel had not “actively misinformed” him about the length of time he would serve in the state penitentiary under the plea agreement. The court found the evidence showed that Sambursky’s trial counsel “merely failed to inform Sambursky of the 85% service requirement” and that his counsel’s performance fell within the range of reasonable professional assistance. The district court held that since Sambursky had not met his burden with regard to the “performance prong” of establishing this ineffective assistance claim, it was unnecessary for the court to address the second prong, or “prejudice prong,” which requires the petitioner to prove the attorney’s deficient performance prejudiced him. Sambursky appeals from the order denying his application for post-conviction relief.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 29-32.1-03. Sambursky’s appeal was timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 7] Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809. Under N.D.R.Civ.P. 52(a), the district court’s findings of fact will not be disturbed on appeal unless clearly erroneous. “A finding of fact 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 the finding, a reviewing court is left with a definite and firm conviction a mistake has been made.” Heckelsmiller v. State, 2004 ND 191, ¶ 5, 687 N.W.2d 454.

[¶ 8] We have explained the applicant’s “heavy burden” required to prevail on a post-conviction claim for ineffective assistance of counsel:

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. DeCoteau [v. State], 1998 ND 199, ¶ 6, 586 N.W.2d 156 (citing Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995)). “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” Lange v. State, 522 N.W.2d 179, 181 (N.D.1994) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The defendant must first overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Stop-pleworth v. State, 501 N.W.2d 325, 327 (N.D.1993) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight. Lange, 522 N.W.2d at 181.

Heckelsmiller, 2004 ND 191, ¶ 3, 687 N.W.2d 454. We use the same Strickland test to assess ineffective assistance of counsel claims under the state constitution. Flanagan, 2006 ND 76, ¶ 11, 712 N.W.2d 602.

Ill

[¶ 9] Sambursky argues the district court erred in finding he did not receive ineffective assistance of counsel when it concluded that he was not actively misinformed about the length of time he would serve in the state penitentiary under the plea agreement.

[¶ 10] In Sambursky I, 2006 ND 223, ¶¶ 20-21, 723 N.W.2d 524, a majority of this Court held that Sambursky had raised a genuine issue of fact as to whether trial counsel’s representation fell below an objective standard of reasonableness under the “performance” prong of the Strickland analysis. In his post-conviction relief application, Sambursky asserted that his trial attorney told him that he would serve only “8-10 years” of his 30-year sentence and that counsel purported to research the issue and called the parole board to support his position. Sambursky I, at ¶ 18. The majority concluded Sambursky raised a material fact issue as to whether Sambur-sky’s trial attorney “actively misinformed him of the length of time he would serve under the plea agreement.” Id. On the basis of Sambursky’s affidavit asserting he asked his trial counsel whether he “had to serve any sort [of] minimum amount of time,” the majority decided there were disputed factual issues about whether Sambursky inquired into how much time of his sentence he would actually serve. Id. at ¶ 20. The majority concluded Sambur-sky’s affidavit raised material fact issues regarding “whether he was asking about the actual time he would serve under the plea agreement and whether his attorney’s advice was objectively deficient when the attorney advised him of the length of time he would actually serve.” Id. The majority concluded that if Sambursky established his assertions were correct, then his attorney’s performance fell below the standard of reasonable assistance when “he actively misinformed his client about the effects of the law.” Id. at ¶ 21. The majority, taking Sambursky’s assertions as true and construing all reasonable inferences in his favor, held that Sambursky had raised material fact issues entitling him to an evi-dentiary hearing.

[¶ 11] In State v. Raulston, 2005 ND 212, ¶ 15, 707 N.W.2d 464, we stated that it was unlikely that a trial counsel’s failure to inform the defendant of the 85 percent service requirement under N.D.C.C. § 12.1-32-09.1 would fall outside the wide range of reasonable professional assistance. In Sambursky I, 2006 ND 223, ¶ 19, 723 N.W.2d 524, a majority of this Court concluded Raulston was not controlling because it did not hold that “providing misinformation is the same as failing to provide information at all.” Raulston states, however, that a trial counsel’s failure to advise the defendant of the 85 percent service requirement does not per se fall below the objective standard of reasonable representation. Raulston, 2005 ND 212, If 15, 707 N.W.2d 464. Raulston stands for the principle that it is likely not ineffective assistance of counsel to fail to inform a defendant about the 85 percent rule, but our remand in Sambursky I focused on whether Sambursky’s trial counsel had provided “active misinformation” about the length of sentence.

[¶ 12] Here, the district court, after an evidentiary hearing, found Sambur-sky had not proven his attorney “actively misinformed” him about the length of time he would serve in the state penitentiary under the plea agreement. In reaching its conclusion, the court made a number of credibility determinations and findings regarding both Sambursky’s testimony and his trial counsel’s testimony at the eviden-tiary hearing. “The task of weighing the evidence and judging the credibility of witnesses belongs exclusively to the trier of fact, and we do not reweigh credibility or resolve conflicts in the evidence.” Greywind v. State, 2004 ND 213, ¶ 22, 689 N.W.2d 390; see also Patten, 2008 ND 29, ¶ 11, 745 N.W.2d 626.

[¶ 13] In concluding Sambursky had not met his burden under the Strickland “performance” prong, the district court found that Sambursky’s trial counsel had merely failed to inform Sambursky of the 85 percent service requirement and that trial counsel’s performance, therefore, fell -within the range of reasonable professional assistance.

[¶ 14] The district court found that the parties did not dispute Sambursky was informed during his state penitentiary orientation that the 85 percent service requirement applied to him and that he had to serve approximately 25 years before he would be eligible for parole. The court also found it was undisputed that trial counsel did not advise Sambursky that he would be subject to the 85 percent requirement before his entry into both the first and second plea agreements or before sentencing. The district court found that Sambursky’s testimony and his trial counsel’s testimony were directly contradictory as to whether trial counsel actually misinformed Sambursky as to the amount of time he would serve in the penitentiary under the plea agreement. The district court stated:

Sambursky testifies that on three (3) occasions prior to entering into the first plea agreement he specifically asked his attorney about the 85 % rule and his attorney advised him that it did not apply to him and further that' his attorney also advised him that after one year he could apply for parole and be released early if he behaved. Whereas [trial counsel] testifies that Sambursky never brought up the 85% rule or sentencing violent offenders until after sentencing, that he never knew about the 85% service requirement until after sentencing, and that he never promised any early release from prison and had specifically advised Sambursky that he had no right to parole or early release. This court, as the fact finder, has to determine credibility of Sambursky and [trial counsel] and in doing so the court may consider other evidence that may either support or contradict the testimony of the parties as well as consistency or inconsistency of testimony, demeanor of witnesses, and motivation for testimony.

[¶ 15] In its memorandum decision, the district court examined the testimony of both Sambursky and his trial counsel in reaching its conclusion. The court stated Sambursky had testified that his trial counsel misled him because trial counsel told him the 85 percent service requirement did not apply to him when he specifically asked about the 85 percent rule. Sambursky testified that trial counsel also told him that he could apply for parole after one year in the penitentiary regardless of how much time he received. Sam-bursky testified that before he signed the first plea agreement, another inmate told him about the 85 percent rule and that the very next day he asked his trial counsel about the 85 percent rule. Sambursky testified trial counsel specifically told him the 85 percent rule did not apply to him because he was not considered a violent offender. Sambursky indicated there were two additional times before entering into the first plea agreement that he had asked his trial counsel about the 85 percent rule, and his trial counsel again told him the 85 percent rule did not apply to him. Sam-bursky testified that after the third time, trial counsel told him he had talked to the parole board and had done some legal research on the issue and again said the 85 percent rule did not apply to him. Sam-bursky testified that he specifically used the term “85 percent” when discussing this with his trial counsel. The district court found Sambursky’s assertions were not credible.

[¶ 16] On the other hand, Sambursky’s trial counsel testified that Sambursky never asked him about an 85 percent rule or sentencing of violent offenders until after Sambursky was sentenced. Despite Sam-bursky’s assertion to the contrary, trial counsel testified Sambursky first asked him about the 85 percent rule a couple of days after sentencing when Sambursky called him from the Grand Forks correctional center and said another inmate had told him about the rule. Trial counsel testified it was this discussion that prompted the filing of the request for a reduction in sentence under N.D.R.Crim.P. 35.

[¶ 17] Trial counsel denied he had ever told Sambursky that he would have to serve less time than what was agreed to in the plea agreements. Trial counsel testified that he had called the parole board midway through his representation of Sambursky to answer a question Sambur-sky had asked. In its memorandum opinion, the district court stated, “[Trial counsel] testified that Sambursky wanted [him] to find out if there were any rights a convict in North Dakota has to parole ... any hard and fast rules or rights of a convict as to when he could be considered for parole.” Trial counsel testified that the parole board told him there were no rights to parole and this was discretionary with the board. Trial counsel then advised Sambursky of the parole board’s answer that a convict had no right to parole. Trial counsel said this was the only discussion he had with Sambursky regarding parole rights. Counsel’s testimony contradicts Sambursky’s testimony on this issue.

[¶ 18] On appeal, Sambursky asserts the district court erred in finding that because trial counsel testified Sambursky did not specifically ask about the 85 percent rule, there was no active misinformation. Sambursky asserts that even if he had asked his counsel only about his parole eligibility and not the 85 percent rule, trial counsel had an additional obligation “to clarify he understood Sambursky’s question” and provide accurate information. However, Sambursky also concedes it is unchallenged that trial counsel informed Sambursky that he was not subject to any mandatory minimum sentence and that North Dakota had no parolee rights and that both of these statements were factually accurate. Further, hearing testimony established that trial counsel denied ever telling Sambursky he would serve less time than what was agreed to in the plea agreements and that Sambursky understood he could serve up to 30 years under the second plea agreement.

[¶ 19] The district court also weighed trial counsel’s testimony that his representation of Sambursky in the plea negotiations and discussions with Sambursky “focused on the maximum sentence of incarceration and trying to limit the number of years of incarceration specified [in] the plea agreement because, without a right to parole, Sambursky could serve the maximum.” The district court also found significant that, at the evidentiary hearing, Sambursky testified he understood there was a possibility he could serve 21 years under the first plea agreement and that in discussing the second plea agreement with his trial counsel, Sambursky knew at sentencing they would be arguing for a downward departure from the 30 years provided in the plea agreement. Importantly, Sambursky also testified he was aware he could serve up to 30 years in the penitentiary under the second plea agreement.

[¶ 20] In resolving the contradictory testimony between Sambursky and his trial counsel, the district court examined additional evidence to either support or contradict the testimony of the parties. The district court addressed a February 2004 letter, which Sambursky argued was, in effect, an admission by his trial counsel that he had incorrectly advised him that the 85 percent rule did not apply. In the letter, trial counsel had stated: “I am sorry we [were] wrong about the 85 percent sentencing, but I don’t think it would have made any difference at the time of sentencing.” The district court, however, found trial counsel’s explanation of the letter at the evidentiary hearing plausible. Trial counsel testified that he was expressing that he was wrong in not knowing about the 85 percent rule and was sorry he did not know about the rule so he could have advised Sambursky about the rule.

[¶ 21] In support of trial counsel’s testimony, the district court also looked to the brief trial counsel filed in support of the motion for reduction in sentence under N.D.R.Crim.P. 35. The court pointed out the brief asserted there were four things Sambursky learned during penitentiary orientation that were not known at sentencing, the first of which was the 85 percent sentencing requirement. The court noted the motion and brief were served on Sam-bursky at the penitentiary and there was no evidence Sambursky objected to or attempted to correct the brief. Further, the court found that Sambursky did not indicate he was misled by his attorney relating to the 85 percent service requirement in a letter from Sambursky that was filed in support of his motion. The court found Sambursky was unable to provide a sufficient explanation for that letter at the evidentiary hearing. The court also found it was significant that Sambursky did not allege his attorney had misled him until his post-conviction relief application, “approximately 11 months after he was informed that the 85% service requirement applies to him.”

[¶ 22] The district court also found there was no documentary evidence that the 85 percent rule was discussed between Sambursky and trial counsel before sentencing. The court did, however, discuss documentary evidence supporting trial counsel’s assertion that Sambursky did not ask him about the 85 percent service requirement before sentencing and that trial counsel had never promised Sambursky he would be eligible for early release from prison through parole. The court focused on a December 2003 letter from trial counsel to Sambursky, in which trial counsel summarized the focus they were taking at the sentencing hearing. The district court observed that Sambursky had signed an acknowledgment at the bottom of the letter indicating he received and understood the letter. The district court again found significant that this letter did not mention parole, early release, or the 85 percent requirement. During the hearing, trial counsel testified that his letter attempted to address every issue he discussed with Sambursky relating to sentencing. Trial counsel testified the 85 percent rule had not been discussed and was not an issue. Trial counsel testified he could not have discussed the 85 percent rule with Sam-bursky before sentencing because he did not know about the rule.

[¶ 23] The district court, finding the December 2003 letter supported trial counsel’s testimony, stated that “they were focusing on getting the court to depart downward from the years of incarceration called for in the plea agreement in an attempt to minimize the time Sambursky would have to serve and his belief and subsequent advise [sic] to Sambursky that there was no right to parole or early release.” The court considered the letter to be a “careful outline” of the issues trial counsel and Sambursky discussed regarding the upcoming sentencing hearing. The court found that if trial counsel and Sam-bursky had discussed the 85 percent service requirement, it would have been addressed in his letter.

[¶ 24] The district court also specifically found that Sambursky admitted he would try anything to “null and void the plea agreement” so he could go to trial. On the other hand, the court found trial counsel had freely admitted to not knowing about the 85 percent service requirement and not advising Sambursky about the rule. The court found trial counsel did not appear to be hiding anything and was very open about what had happened. The court found there was nothing for the trial counsel to gain by his testimony, whereas Sam-bursky by his own admission had nothing to lose, but stood to gain a trial. The district court ultimately found Sambur-sky’s testimony was not credible “when taken in the context of the other evidence presented at the evidentiary hearing and the pleadings filed in the above cases and also taking into consideration the motivation that exists for Sambursky to not be truthful.”

[¶ 25] We conclude the district court did not err in finding that Sambursky’s trial counsel did not “actively misinform” him about the length of time he would serve in the state penitentiary under the plea agreement and that the evidence demonstrated his trial counsel merely failed to inform Sambursky of the 85 percent service requirement. On the basis of the record and the district court’s findings of fact, we are not left with a definite and firm conviction a mistake has been made. We therefore conclude Sambursky failed to carry his heavy burden to establish that his trial counsel’s representation fell below an objective standard of reasonableness.

IV

[¶26] The district court order is affirmed.

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


author: MARING, Justice.

text:
    2008 ND 134
    STATE of North Dakota, Plaintiff and Appellee v. Ernest COPPAGE, Defendant and Appellant.
    No. 20070304.
    Supreme Court of North Dakota.
    June 26, 2008.

      Lloyd C. Suhr, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and ap-pellee.
    Kent M. Morrow, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Ernest Coppage appeals the district court’s criminal judgment and a subsequent order denying his motion for a new trial entered on a jury’s verdict of guilty of attempted murder. We hold that the jury verdict was not legally inconsistent, the motion for a new trial was not timely, and the verdict was supported by sufficient evidence. We, therefore, affirm both the criminal judgment and the order denying Coppage’s motion for a new trial.

I

[¶ 2] In October 2006, Coppage was charged with attempted murder. He allegedly attempted to kill the victim by intentionally choking her to the point of unconsciousness, repeatedly striking her with a wooden rod about the head, and stabbing her with a scissors under circumstances manifesting an extreme indifference to the value of human life. Before trial, the district court issued preliminary jury instructions to the parties including the essential elements of attempted murder and aggravated assault. Aggravated assault was characterized in the instructions as a lesser-included offense of attempted murder. Both parties agreed these charges were the proper charges for the jury to consider.

[¶ 3] At trial, the victim testified that Coppage used a plunger and his hands to hit her. She said Coppage choked her with his hands and the plunger handle while she was on her stomach. She also testified that she pled with him not to kill her during the incident, to which he responded he did not care if he killed her. The victim testified that she managed to get to a couch, but Coppage followed her and hovered over her with a serrated steak knife. She testified she was able to grab the knife and throw it before running to a chair. Coppage followed her with a pair of scissors and stabbed her leg before she was able to grab the scissors from Cop-page and flee the home. The victim testified she left the residence. Coppage caught up to her, hit her in the head, told her to be quiet, and dragged her back into the residence.

[¶ 4] Coppage testified he told the victim during the altercation that he was not going to kill her. He claimed he only used his fists during the incident. He said the victim struck him three times, and that he was attempting to defend himself.

[¶ 5] The victim’s treating physician testified that the victim suffered soft tissue injuries and a right orbital fracture. He testified that a CAT scan showed the victim suffered from brain hemorrhaging. The victim was hospitalized for three days. The physician indicated the victim’s wounds were consistent with stabbing with a scissors and forceful application of a wooden rod against her throat area. He identified possible defensive wounds on the victim’s right thumb and left forearm. The physician also identified hemorrhaging in the victim’s eyes consistent with the infliction of force or trauma.

[¶ 6] During closing arguments, Cop-page conceded he was guilty of aggravated assault.

[¶ 7] The jury received instructions outlining the elements of attempted murder. Following the attempted murder instruction, the instructions continued by stating, “If you find the Defendant not guilty of the crime of Attempted Murder, then you must consider whether the Defendant is guilty of the crime of Aggravated Assault, a crime that is necessarily included in the offense charged.” The instructions then outlined the elements of aggravated assault.

[¶ 8] The verdict form contained two empty blanks where the jurors could indicate whether they found Coppage guilty or not guilty of each offense. During deliberations, the jury issued several questions to the district court, including a question regarding what constitutes a substantial step toward the commission of murder. This question came about one-half hour before the jury advised the court of its decision. Following deliberations, the jury returned the completed verdict form. On the form, the jury indicated it found Coppage guilty of both attempted murder and aggravated assault. The district court judge read only the top of the verdict form, where the jury indicated it found Coppage guilty of attempted murder.

[¶ 9] A sentencing hearing was held on October 9, 2007. Coppage was sentenced to fifteen years’ imprisonment with five years suspended for attempted murder. After the district court imposed the sentence for attempted murder, the court continued by stating, “It is the further order of the Court that said sentence ... is also imposed on Count 2.” The State interjected, “Your Honor, actually I think the Court might be getting confused. There was a lesser included, but no actual second count.” The court responded, “I’m sorry. I stand corrected. It is a lesser included. And, accordingly, the Court does not— even though there was a verdict form and a finding by the jury....” After sentencing and entry of the criminal judgment, Coppage moved for a new trial. The district court denied his motion.

[¶ 10] Coppage appeals the criminal judgment and the district court order denying his motion for a new trial. He argues the district court abused its discretion in denying the motion for new trial because the verdict form was legally and logically inconsistent, and that there was insufficient evidence to support the attempted murder conviction.

II

[¶ 11] A district court’s decision on a motion for a new trial is reviewed under an abuse of discretion standard. State v. Lemons, 2004 ND 44, ¶ 18, 675 N.W.2d 148. A district court abuses its discretion “only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” Id.

[¶ 12] Coppage argues the district court abused its discretion in denying his motion for a new trial. The State argues the district court did not abuse its discretion by denying Coppage’s motion for a new trial because Coppage’s motion for a new trial was not timely. Under N.D.R.Crim.P. 33(a), a court may vacate a judgment and grant a new trial “if the interest of justice so requires.” If a motion for a new trial is based on newly discovered evidence, it must be filed within three years after the verdict. N.D.R.Crim.P. 33(b)(1). Any motion for a new trial based on any other reason “must be filed within ten days after the verdict or finding of guilty.” N.D.R.Crim.P. 33(b)(2).

[¶ 13] The motion for a new trial was not based on newly discovered evidence. Therefore, it should have been filed within ten days of the verdict under N.D.R.Crim.P. 33(b)(2). The verdict was entered on July 27, 2006. Although there was an irregularity in the verdict, the record reveals Coppage knew of it by the time of his sentencing. At the sentencing hearing, the district court noted the verdict found him guilty of both attempted murder and aggravated assault. The Court was prepared to impose a sentence for the assault charge, but sentenced Coppage. only for the attempted murder conviction after the State pointed out that the assault conviction was charged as a lesser-included offense. The sentencing hearing took place on October 9, 2007. The motion for a new trial is dated December 28, 2007. Thus, we hold that Coppage’s motion for a new trial was not timely.

[¶ 14] The district court did not abuse its discretion in denying Coppage’s motion for a new trial. Coppage’s motion was not timely. We, therefore, affirm the district court order denying Coppage’s motion for a new trial.

Ill

[¶ 15] Coppage argues the verdict form was logically and legally inconsistent. Under N.D.R.App.P. 36(b)(2), we “may review any intermediate order or ruling which involves the merits or which may have affected the verdict or the judgment adversely to the appellant.”

[¶ 16] The State argues the verdict was not inconsistent. The State asserts that when two guilty verdicts are returned as to alternative charges, the guilty verdict on the greater charge stands, and the guilty verdict on the lesser charge merges into the greater charge.

[¶ 17] Logically inconsistent verdicts generally do not entitle a defendant to a new trial. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). An example of a logically inconsistent verdict would be a guilty verdict on both first and second degree murder because such a verdict would find both the presence and lack of premeditation. See id. Legally inconsistent verdicts may, however, entitle a defendant to a new trial. See State v. Jacob, 2006 ND 246, ¶ 10, 724 N.W.2d 118 (stating that the “standard for reconciling a jury verdict is whether the verdict is legally inconsistent”). “Verdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense.” State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). For example, a guilty verdict on both first and second degree murder is not legally inconsistent because the absence of premeditation is not a necessary element of second degree murder. Moore, 438 N.W.2d at 108.

[¶ 18] Here, the jury indicated on the verdict form that it found Coppage guilty of both attempted murder and aggravated assault. Under N.D.C.C. § 12.1-06-01, a “person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime.” A “substantial step” is defined as “any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime.” Id. The “culpability level of the substantial step conduct is always elevated to ‘intentionally.’ ” State v. Frohlich, 2007 ND 45, ¶ 24, 729 N.W.2d 148.

[¶ 19] Under N.D.C.C. § 12.1-16-01(1), a person is guilty of murder if the person:

a. Intentionally or knowingly causes the death of another human being;
b. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life; or
c. Acting either alone or with one or more other persons, commits or attempts to commit [one of the enumerated crimes] and, in the course of and in furtherance of such crime or of immediate flight therefrom, the person or any other participant in the crime causes the death of any person.

Murder under N.D.C.C. § 12.1 — 16—01(l)(b) is a crime of general intent; thus, the culpability required for conviction of murder under that subsection is “willfully.” State v. Erickstad, 2000 ND 202, ¶ 25, 620 N.W.2d 136; see N.D.C.C. § 12.1-02-02(2) (stating, “[i]f a statute or regulation thereunder defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is willfully”).

[¶ 20] Under N.D.C.C. § 12.1-17-02(1), a person is guilty of aggravated assault if that person “[wjillfully causes serious bodily injury to another human being.”

[¶ 21] Coppage argues proof of attempted murder negates a necessary element of aggravated assault because each crime requires a different state of mind. He asserts that attempted murder requires intentional conduct, and aggravated assault requires either willful or knowing conduct. He maintains that attempted murder requires conduct manifesting an extreme indifference to the value of human life, while aggravated assault requires serious or substantial bodily injury.

[¶ 22] We conclude Coppage is not entitled to a new trial because the verdict was not legally inconsistent. The culpability required for both murder under N.D.C.C. § 12.1 — 16—01(l)(b) and aggravated assault under N.D.C.C. § 12.1-17-02(1) is willfully. For attempt under N.D.C.C. § 12.1-06-01(1), the culpability level of the substantial step conduct is intentionally. See Frohlich, 2007 ND 45, ¶24, 729 N.W.2d 148. The culpability requirements for the two crimes are not identical because conviction of attempted murder in this case also required proof of “circumstances manifesting extreme indifference to the value of human life” and intentionality of the substantial step conduct. However, in order to convict an individual of aggravated assault, there is no need to prove an absence of circumstances manifesting an extreme indifference to the value of human life, nor is there a need to prove an absence of intentionality. Therefore, the jury’s verdict finding Coppage guilty of both crimes is not legally inconsistent.

[¶ 23] Moreover, although the district court characterized aggravated assault as a lesser-included offense, our previous decisions indicate that aggravated assault is not a lesser-included offense of attempted murder. See State v. Sheldon, 301 N.W.2d 604, 609-10 (N.D.1980). As we explained in Sheldon, at 610,

Aggravated assault ... is not a lesser included offense to the offense of attempted murder.... Aggravated assault, except under subsection 4 of § 12.1-17-02, N.D.C.C., requires that a bodily injury be suffered by the victim of the offense.... The offense of attempted murder does not require that the victim of the offense suffer a bodily injury. Although a substantial step toward commission of the crime may well involve a bodily injury, it is clear that the elements of proof involved in the offenses of aggravated assault under subsections 1, 2, and 3 of § 12.1-17-02, N.D.C.C., and attempted murder differ.

See also State v. Keller, 2005 ND 86, ¶31, 695 N.W.2d 703 (holding that we apply an elements-of-the-offense analysis to determine whether an offense is a lesser-included offense). Nonetheless, neither party objected to the instruction at trial. “Unchallenged jury instructions become the law of the case.” State v. Rogers, 2007 ND 68, ¶ 10, 730 N.W.2d 859. Therefore, under the law of the case, the State is correct in asserting that the lesser-included offense of aggravated assault would merge with the greater offense of attempted murder in this particular case.

IV

[¶ 24] Coppage argues the evidence supporting the attempted murder conviction is insufficient. “When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.” State v. Schmeets, 2007 ND 197, ¶ 8, 742 N.W.2d 513. “The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.” Id. “A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.” Id.

[¶ 25] Coppage asserts that other states’ courts have found insufficient evidence to support a conviction of attempted murder when a victim was not injured in a potentially fatal manner. He argues that the right orbital blowout fracture suffered by the victim was not potentially fatal. He contends the State did not prove beyond a reasonable doubt that Cop-page intended to kill the victim. He points to his trial testimony where he said he “wasn’t going to kill her.” Coppage maintains all of his actions were instinctual and responsive to the victim’s actions.

[¶ 26] The State argues that the evidence was sufficient to uphold the jury’s guilty verdict. The State asserts a rational fact finder could find the defendant guilty beyond a reasonable doubt. The State asserts that N.D.C.C. § 12.1-16-01(l)(b) requires only that Coppage’s actions were taken with an extreme indifference to human life. The attempted murder charge did not require proof of actual intent to cause death. The State maintains there was sufficient evidence for the jury to conclude that Coppage choked, struck, and stabbed the victim, and that those actions reflected an extreme indifference to the value of human life. The State argues the jury could have reasonably relied on this evidence to conclude that Cop-page manifested an extreme indifference to the victim’s life.

[¶ 27] We agree with the State that there is sufficient evidence to support the conviction. Section 12.1 — 16—01(l)(b), N.D.C.C., requires only that Coppage’s actions manifest an extreme indifference to human life, not that Coppage’s actions result in a potentially fatal injury. On appeal, Coppage has not met his burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. There was testimony that he stabbed the victim with a scissors, held a steak knife over her, and cut off her air supply by holding a plunger handle to her throat. This evidence allowed the jury to draw an inference reasonably tending to prove Coppage took a substantial step toward murdering the victim and fairly warranting his conviction. We, therefore, affirm the district court criminal judgment.

V

[¶ 28] The district court properly denied Coppage’s untimely motion for a new trial. The jury verdicts finding Coppage guilty of both aggravated assault and attempted murder were not legally inconsistent. There was sufficient evidence to uphold the jury verdict finding Coppage guilty of attempted murder. We, therefore, affirm the district court criminal judgment and the district court order denying Coppage’s motion for a new trial.

[¶ 29] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.