author: SANDSTROM, Justice.

text:
    2005 ND 191
    STATE of North Dakota, Plaintiff and Appellee v. Virgil Scott LAIB, Defendant and Appellant.
    No. 20050099.
    Supreme Court of North Dakota.
    Nov. 9, 2005.

      Walter M. Lipp, State’s Attorney, MeClusky, N.D., for plaintiff and appellee; submitted on brief.
    Kent M. Morrow, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] At a jury trial, Virgil Laib was convicted of terrorizing under N.D.C.C. § 12.1-17-04. He appeals, arguing the evidence was insufficient to convict him. Specifically, he argues that because he made no verbal threats, his conduct the night of the alleged offense does not meet the threat element of terrorizing. Holding that a threat does not have to be made verbally to be a terroristic threat under N.D.C.C. § 12.1-17-04, we affirm the criminal judgment and commitment.

I

[¶ 2] One night in February 2004, Laib and his wife were involved in a domestic dispute. The exact circumstances are themselves disputed. According to Laib’s testimony at trial, his wife struck one of their children with a spoon earlier that evening, and he and his wife argued over the alleged abuse. Laib testified that he then discovered $1,000 was missing from the family safe, and when he asked his wife about the missing money, she said she had purchased $500 worth of medicine. According to Laib’s testimony, their argument continued until he led his wife by the arm toward the door and out of the house. Laib testified that she came back into the house and slept on the couch.

[¶3] Laib’s wife disputed Laib’s account of the facts. Laib’s wife testified that Laib wanted to have sex, and that after she refused, he became angry and a fight ensued. She testified Laib grabbed her around the neck with his arms, choking her, and then he stopped choking her, pushed her into a wall, and forced her outside of the house. She testified that she was dressed only in a nightshirt. She testified that after a couple of minutes, she reentered the house and slept on the family’s living room floor because one of the children was sleeping on the couch. According to her testimony, Laib was standing inside at the top of the stairs, watching her when she reentered the house, and he periodically watched her throughout the night.

[¶ 4] Law enforcement authorities were not informed of this incident until June 2004, when Laib’s wife sought a protection order against him. Laib was charged with terrorizing. A jury found him guilty of the charge. He was sentenced to three years imprisonment with all but 60 days suspended.

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

II

[¶ 6] The standard of review for an appeal based on the sufficiency of the evidence is deferential to the fact-finder’s verdict:

In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the verdict to decide whether a reasonable fact finder could have found the defendant guilty beyond a reasonable doubt. The tasks of weighing the evidence and judging the credibility of the witnesses belong to the jury. On appeal, we assume the jury believed the evidence which supports the verdict and disbelieved any contrary evidence.

State v. Carlson, 1997 ND 7, ¶ 51, 559 N.W.2d 802 (citations omitted). Laib moved for an acquittal, thus preserving the issue for appeal. N.D.R.Crim.P. 29.

III

[¶ 7] Laib argues the evidence is insufficient to support a conviction for terrorizing because there is no evidence that he verbally threatened his wife, which he contends is required by the threat element of the offense. The State argues that the threat contemplated by N.D.C.C. § 12.1-17-04 does not need to be verbal; it requires only that a threat be communicated by speech, writing, or act. We hold that a threat does not have to be made verbally to be a terroristic threat under N.D.C.C. § 12.1-17-04.

[¶ 8] Section 12.1-17-04, N.D.C.C., provides, in part:

A person is guilty of a class C felony if, with intent to place another human being in fear for that human being’s or another’s safety or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious disruption or public inconvenience, or in reckless disregard of the risk of causing such terror, disruption, or inconvenience, the person:
1. Threatens to commit any crime of violence or act dangerous to human life[J

For Laib’s conviction of terrorizing, the State had to prove: (1) the defendant intended to put the victim in fear for her safety or acted with reckless disregard of the risk of causing her fear; and (2) the defendant made a threat of a “crime of violence or act dangerous to human life.” N.D.C.C. § 12.1-17-04; Carlson, 1997 ND 7, ¶ 36, 559 N.W.2d 802. “[T]he critical inquiry is whether the defendant intended to place others in fear for their safety.” Carlson, at ¶ 20. Whether N.D.C.C. § 12.1-17-04 requires verbal threats is a question of law, fully renewable by this Court. Estate of Kimbrell, 2005 ND 107, ¶ 9, 697 N.W.2d 315.

[¶ 9] Section 12.1-17-04 does not define “threat.” Words used in statutes are to be given their ordinary meaning. N.D.C.C. § 1-02-02. Black’s Law Dictionary defines “threat” as: “A communicated intent to inflict harm or loss on another or on another’s property, esp. one that might diminish a person’s freedom to act voluntarily or with lawful consent.” Black’s Law Dictionary 1519 (8th ed.2004). “Communication” is defined as: “The expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another’s perception.” Id. at 296. The plain reading of these definitions is that a threat can be communicated in several ways, only one of which is verbal. Webster’s New World Dictionary defines threat as “an expression of intention to hurt, destroy, punish, etc., as in retaliation or intimidation.” Webster’s New World Dictionary 1482 (2d coll, ed.1980). Neither definition limits the method of communicating a threat to speaking.

[¶ 10] Section 12.1-23-10(12), N.D.C.C., defines threat for theft and related offenses. Threat in this context is defined, in part, as:

an expressed purpose, however communicated, to:
a. Cause bodily injury in the future to the person threatened or to any other person;
c. Subject the person threatened or any other person to physical confinement or restraint;
d. Engage in other conduct constituting a crime; [or]
1. Do any other act which would not in itself substantially benefit the actor or a group he represents but which is calculated to harm another person in a substantial manner with respect to his health, safety, business, employment, calling, career, financial condition, reputation, or personal relationship.

N.D.C.C. § 12.1-23-10(12). Although the definition provided in N.D.C.C. § 12.1-23-10 specifically applies only to chapter 12.1-23, the definition demonstrates what the legislature intends when it uses the word “threat.” The phrase “however communicated” implies that a threat could be in words, verbal or written; actions; gestures; suggestive innuendo; or any other form of communication.

[¶ 11] Section 12.1-17-04, N.D.C.C., was patterned after § 1614 of the proposed Federal Criminal Code, and we look to the Working Papers of the National Commission on Reform of Federal Criminal Laws for guidance when interpreting sections of the North Dakota criminal code. E.g., Carlson, 1997 ND 7, ¶ 19, 559 N.W.2d 802. The Working Papers discussing terrorizing and menacing state: “The threat may be a prank, or may be made in anger; while there may be no intent to inflict actual injury, such acts can be intended to cause fear.” II Working Papers of the National Commission on Reform of Federal Criminal Laws 837 (July 1970).

[¶ 12] To hold that a threat must be verbal would lead to the irrational result that a perpetrator could clearly threaten and terrorize a victim, but would be immune .from the crime of terrorizing merely by not saying a word. For example, a perpetrator could tie a victim to a chair, pour gasoline around the victim, step away, and light a match, all without saying a word. Although the perpetrator has never said, “I’m going to kill you,” or “you’re going to burn,” this message is still clearly communicated. Actions can speak louder than words.

[¶ 13] Weighing the evidence in a light most favorable to the verdict supports the conviction. Laib’s act of forcing his wife outside their house in the middle of winter while she was wearing only a nightshirt constituted a threat of a crime of violence or act dangerous to human life. Laib’s wife testified that after attempting to choke her, Laib took her by the arm and forced her outside. She testified that it was cold and that she was wearing only a nightshirt. Although Laib did not lock the door, his wife did not know that until she tried to reenter. She reentered after a couple of minutes because she could no longer stand the cold, especially on her bare feet. Being outside during a cold winter night without proper attire or shelter can be dangerous to human life. A communication, either verbal or nonverbal, is sufficient to be a threat if a reasonable person could conclude that it was a threat under the circumstances. State v. Hass, 268 N.W.2d 456, 463 (N.D.1978). The jury, as a reasonable fact-finder, could easily conclude that Laib was threatening to commit an act dangerous to human life, specifically, locking someone outside during a cold winter night without sufficient clothing or shelter. There was sufficient evidence for the jury to find Laib guilty of terrorizing as provided for in N.D.C.C. § 12.1-17-04.

[¶ 14] We affirm the criminal judgment and commitment.

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

      . The jury also found Laib not guilty of other charges relating to other incidents involving his wife and children.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2005 ND 189
    STATE of North Dakota, Plaintiff and Appellee v. Lyle J. NOORLUN, Defendant and Appellant.
    No. 20040329.
    Supreme Court of North Dakota.
    Nov. 9, 2005.
    Rehearing Denied Dec. 20, 2005.

      Birch Peterson Burdick, State’s Attorney, Fargo, ND, for plaintiff and appellee.
    Chad Rory McCabe, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Lyle J. Noorlun appealed from a judgment entered upon a jury verdict finding him guilty of nine counts of violating North Dakota securities law. We hold the trial court did not err in denying Noorlun’s request to include additional language in a jury instruction, the court did not abuse its discretion in admitting five letters into evidence, there was sufficient evidence to sustain the convictions, and the statute of limitations did not bar Noorlun’s prosecution. We affirm.

I

[¶ 2] Before her death in May 2002, Norma Jordee invested $250,000 with Noorlun in three promissory notes that were renewed at various times. There was evidence Jordee lived in Fargo, North Dakota, and issued a $170,000 check for a June 26, 1997 promissory note that was renewed on December 18, 1998; a $50,000 check for a November 6, 1997 promissory note that was renewed on May 5, 1999; and a $30,000 check for a September 14, 1998 promissory note that was renewed on March 13,1999.

[¶ 3] The State claimed the renewals of the three promissory notes constituted the sale or offer to sell unregistered and nonexempt securities under N.D.C.C. ch. 10-04. By information dated December 17, 2003, the State charged Noorlun with three counts of selling or offering to sell unregistered or non-exempt securities to Jordee in Cass County on December 18, 1998, on March 13, 1999, and on May 5, 1999; three counts of acting as a security salesman or agent for those transactions without registering in North Dakota; and three counts of violating a cease and desist order issued by the North Dakota Securities Commissioner in January 1998.

[¶ 4] After a preliminary hearing on March 25, 2004, Noorlun moved to dismiss the prosecution. He claimed he did not sell or offer to sell unregistered or nonexempt securities to Jordee on the dates alleged in the information, and he merely renewed pre-existing promissory notes on those dates. He essentially claimed prosecution on the original notes was barred by the five-year statute of limitations in N.D.C.C. § 10-04-18, and the renewals of the original notes were not new transactions. The trial court denied Noorlun’s motion to dismiss.

[¶ 5] At trial, there was evidence that Noorlun and Jordee had initially entered into a $170,000 promissory note on June 26, 1997, a $50,000 promissory note on November 6,1997, and a $30,000 promissory note on September 14,1998. The State introduced evidence of typewritten letters purportedly signed by Noorlun and sent by him from Henderson, Nevada, to Jar-dee in Fargo, which indicated those promissory notes had been renewed on the dates alleged in the information. The State introduced evidence that neither the promissory notes nor the renewals were registered in North Dakota; neither Noor-lun nor his company, Management Services, was a registered security agent in North Dakota; and the North Dakota Securities Commissioner had issued a cease and desist order against Noorlun and Management Services in January 1998. A jury found Noorlun guilty of all nine charges.

II

[¶ 6] Noorlun contends the trial court erred in denying his request to include language in a jury instruction regarding renewals of promissory notes. Relying on Liberty Nat’l Bank & Trust Co. v. Dvorak, 199 N.W.2d 414 (N.D.1972), Noorlun argues the court’s instruction on “notes” was incomplete because it did not explain the difference between a note and a renewal of a previous note. He claims any prosecution on the three original promissory notes was barred by the five-year statute of limitations in N.D.C.C. § 10-04-18(4). He essentially asserts the renewals of the previous notes were not new transactions, and any prosecution on those notes was also barred by that five-year statute of limitations.

[¶ 7] On appeal, we review jury instructions as a whole and consider whether they correctly and adequately advise the jury of the applicable law and do not mislead or confuse the jury. State v. Jaster, 2004 ND 223, ¶ 17, 690 N.W.2d 213. If jury instructions, when considered in their entirety, correctly advise the jury of the applicable law, there is no error even though a trial court refuses to submit a requested instruction that is a correct statement of the law, or even if part of the instructions, standing alone, may be insufficient or erroneous. Id. We will reverse a conviction only if the instructions, as a whole, are erroneous, relate to an essential subject in the case, and affect a substantial right of the accused. Id.

[¶ 8] Under N.D.C.C. § 10-04-18(1), any person who willfully violates certain provisions of N.D.C.C. ch. 10-04, or an order by the securities commissioner under that chapter, or who engages in any act, practice, or transaction declared to be unlawful under that chapter is guilty of a class B felony. Section 10-04-10, N.D.C.C., prohibits a person from selling or offering to sell securities in this state unless registered as a dealer or salesman, and N.D.C.C. § 10-04-04 prohibits a person from selling, or offering to sell any unregistered or non-exempt securities in this state. Noorlun has not argued the promissory notes or renewals in this case were exempt securities under N.D.C.C. §§ 10-04-05 or 10-04-06. Section 10-04-02, N.D.C.C., defines “security” as “any note; ... evidence of indebtedness; ... or, in general, any interest or instrument commonly known as a ‘security.’ ” Under N.D.C.C. § 10-04-02, “sale” or “sell” means “every sale or other disposition of a security or interest in a security for value, and every contract to make any such sale or disposition.” An “offer for sale” or “offer to sell” means “every attempt or offer to dispose of, or solicitation of an order or offer to buy, a security or interest in a security for value.” N.D.C.C. § 10-04-02. Under those definitions, we have consistently construed promissory notes to be securities. See State v. Goetz, 312 N.W.2d 1, 4-5 (N.D.1981); State v. Weisser, 161 N.W.2d 360, 365-66 (N.D.1968); State v. Davis, 131 N.W.2d 730, 732-33 (N.D.1964).

[¶ 9] Here, the trial court instructed the jury in language following N.D.C.C. § 10-04-02 on the definitions of security, sale or sell, and offer for sale or offer to sell. The court instructed the jury that it was unlawful to willfully sell or offer to sell securities in North Dakota unless the securities were registered or exempt and that persons who sell or offer to sell securities must register as a salesman or agent with the securities commissioner. The court instructed the jury on three counts of selling or offering to sell securities on the dates alleged in the information, three counts of acting as a security salesman or agent without registering as an agent in North Dakota, and three counts of violating a cease and desist order.

[¶ 10] In language from Dvorak, 199 N.W.2d at 416-17, the trial court also instructed the jury:

The purpose of a renewal note is to extend the time the debtor has within which to pay his obligation. Whether the renewal note is actually a renewal or a new note depends upon the intention of the parties. A renewal signifies a substitution of the obligation on the same terms and conditions. In other words, the only change is an extension of time in which to pay the note.
If the obligation changes, for instance the principal amount of the note is increased, the transaction is not a renewal. The transaction is a new obligation, a new note. We have stated a note is a security. The new note is subject to the North Dakota Securities Act, just as the original note was subject to the Act.

Noorlun claims the court erred in not including language in that instruction from Dvorak, at 416-17, to the effect that “a note is renewed when a new note evidencing the same obligation is executed and delivered by the maker to the holder of the old note.”

[¶ 11] In Dvorak, 199 N.W.2d at 416-17, the issue was whether a guarantor’s obligation under an initial promissory note was exonerated under N.D.C.C. § 22-01-15 when the debtor executed a second note without a guarantee by the guarantor. The second note was secured in part by the same collateral, and it substantially increased the principal debt and extended payments over a longer period of time. Dvorak, at 417. We held the second note altered the first note within the meaning of N.D.C.C. § 22-01-15, and exonerated the guarantor from any further liability on the first note. Dvorak, at 417. In reaching that conclusion, we decided the second note was not a renewal of the first note. Id. at 416-17. We quoted Douglas County State Bank v. Sutherland, 52 N.D. 617, 204 N.W. 683, Syll. ¶4 (1925), to define “renewed” to mean a “ ‘note’ is ‘renewed’, within the meaning of that term as used in ch. 91, S.L. 1921, when a new note evidencing the same obligation is executed and delivered by the maker to the holder of the old note.” Dvorak, at 416-17. In deciding the second note was not a renewal of the first note, we said the purpose of a renewal note was to extend the length of time the debtor has to pay the obligation:

Whether a new note is a renewal of another note depends upon the intention of the parties. A renewal signifies the substitution in place of one engagement of a new obligation on the same terms and conditions; that is, the re-establishment of a particular contract for another period of time. An obligation is renewed when the same obligation is carried forward by the new paper or undertaking, whatever it may be. There may be a change of parties. There may be an increase of security, but there is no renewal unless the obligation is the same. What makes the renewal is an extension of time in which to discharge the old obligation.

Dvorak, at 417 (quoting 11 Am.Jur.2d, Bills and Notes § 307, at 332).

[¶ 12] In Douglas County, 52 N.D. at 626, 204 N.W. at 685, a statute made it illegal for any person to take a renewal note without returning the original note unless the renewal note had written across it the words “renewed note.” In an action on a second note, the plaintiff contended the statute did not apply because the second note was a new and independent obligation and not a renewal of the original note. This Court concluded the statute applied to the second note, stating the plaintiff treated the second note as a renewal note and “in any event, ... every renewal is a new and independent obligation in so far as concerns the original of which it is a renewal.” Douglas County, 52 N.D. at 630, 204 N.W. at 687.

[¶ 13] Both Dvorak and Douglas County involved actions to recover on promissory notes rather than alleged violations of securities law, and contrary to Noorluris claim that the renewals of the previous notes were not new transactions, Douglas County recognizes every renewal note is a new and independent obligation in relation to the original note. Moreover, although commercial concepts may provide a defense to criminal intent in some prosecutions, see State v. Kraft, 413 N.W.2d 303, 306-07 (N.D.1987), North Dakota securities law does not distinguish between a new note and a renewal for purposes of a securities violation. Rather, the issue under N.D.C.C. ch. 10-04 is whether, on the dates in question, Noorluris conduct constituted a sale or offer to sell unregistered or non-exempt securities as defined in N.D.C.C. ch. 10-04. The court correctly instructed the jury on the definition of security, on sale or sell, and on offer for sale or offer to sell under that law, and the court’s instructions adequately informed the jury on those issues. Had Noorlun been entitled to a defense based on his theory of renewal, his requested language was effectively included in the trial court’s instruction from Dvorak, and any further instruction on renewals was surplusage under N.D.C.C. ch. 10-04. We conclude the trial court did not err in refusing to instruct the jury in the language requested by Noorlun.

Ill

[¶ 14] Noorlun argues the evidence was insufficient to sustain the convictions, because no rational fact finder could have found the alleged offenses occurred in North Dakota. He claims five typewritten letters with his purported signature at the bottom and Jordee’s name and address at the top do not establish a crime was committed in Fargo, because there was no proof the letters were signed or mailed by him and no proof the letters were received by Jordee. He argues those letters lacked the necessary foundation for admission into evidence.

A

[¶ 15] We reject Noorluris claim the trial court erred in admitting the five typewritten letters into evidence. An adequate foundation may be established by testimony that identifies the evidence and establishes the competency, materiality, and relevancy of the evidence. Erdmann v. Thomas, 446 N.W.2d 245, 246 (N.D.1989). Generally, before documentary evidence is admissible, it must be authenticated under a process establishing the relevancy of the document by connecting it with a person, place, or thing. R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 386 (N.D.1986); State v. Haugen, 392 N.W.2d 799, 801 (N.D.1986). In Christianson, at 386 (citations omitted), we said:

N.D.R.Ev. 901(a) treats questions of authentication as matters of conditional relevance to be determined according to N.D.R.Ev. 104(b). The relevancy of a document is conditioned upon its authen-tlcity. Thus, when a document is offered, a. judge must make a preliminary determination whether sufficient proof has been introduced to allow a reasonable fact finder to conclude the document is authentic; ie., it is what its proponent claims it to be. If so, the judge must admit the evidence and the question of its weight and prosecutive force is one for the jury.

A document may be authenticated by circumstantial evidence, including the events preceding, surrounding, and following the transmission of the writing. Haugen, 392 N.W.2d at 802. The circumstantial evidence also may include information in the contents of the writing which is known by the purported sender and the recipient. Id.

[¶ 16] Whether evidence should be excluded for lack of authentication is primarily within the trial court’s sound discretion. Erdmann, 446 N.W.2d at 246; Christianson, 392 N.W.2d at 386. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. State v. Bell, 2002 ND 130, ¶ 6, 649 N.W.2d 243.

[¶ 17] Here, the State presented evidence from Joseph Mongelluzzo, an ex: pert in handwriting comparison with twenty-seven years of experience. Mongelluzzo testified that he compared the signatures of the letters with known writing samples from Noorlun and concluded Noorlun signed the letters. The State also introduced testimony by Fargo Police Detective Jim LeDoux indicating Jordee provided the letters to him at her residence in'response to a request for information pertaining to her involvement with Noorlun. The information in the letters also supports a determination that Noorlun sent the letters to Jordee in Fargo. We conclude the foundational evidence was sufficient to establish Noorlun signed and sent the letters to Jordee and she received them in Fargo.

[¶ 18] Noorlun’s reliance on Kvale v. Keane, 39 N.D. 560, 168 N.W. 74 (1918), is misplaced. Kvale was decided in 1918, well before this Court adopted the rules of evidence in 1977. Kvale involved a specific rule for authentication of a reply letter in the context of an issue about the formation of a contract. Kvale, 39 N.D. at 571-73, 168 N.W. at 76-78 (quoting 3. Wigmore on Evidence § 2153 (1904)). See People v. Rosenbloom, 119 Cal.App.Supp. 759, 2 P.2d 228, 232-33 (1931) (holding letter inadmissible under rule for reply letters). In addition to the specific rule for reply letters, Professor Wigmore’s 1904 treatise also explained that documents may be authenticated by evidence of a comparison of handwriting samples. See 1 Wigmore on Evidence, at §§ 99, 383; 3 Wigmore on Evidence, at § 2131. Our law recognizes that circumstantial evidence may be used to authenticate documents, see Haugen, 392 N.W.2d at 802, and Kvale does not control the foundational requirements for the admission of the letters in this ease.

[¶ 19] The trial court’s decision to admit the letters into evidence was not arbitrary, unreasonable, or unconscionable, and the court therefore did not abuse its discretion in admitting those letters into evidence.

B

[¶ 20] We also reject Noor-lun’s claim there was insufficient evidence to sustain the convictions. In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. State v. Knowels, 2003 ND 180, ¶ 6, 671 N.W.2d 816. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. Id. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses. State v. Klose, 2003 ND 39, ¶ 19, 657 N.W.2d 276. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. State v. Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d 193. A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Id. Moreover, a jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict. State v. Wilson, 2004 ND 51, ¶ 9, 676 N.W.2d 98.

[¶ 21] Section 10-04-04, N.D.C.C., prohibits any person from selling or offering to sell unregistered or nonexempt securities in this state. Section 10-04-10, N.D.C.C., prohibits an unregistered agent from selling or offering to sell any securities within or from this state. The trial court instructed the jury on those elements of the crime for securities violations. Jordee died before the information was filed in this case, and she did not testify at trial. The jury nevertheless heard evidence that Jordee had lived in Fargo, and her checks for the initial promissory notes stated a Fargo address and included cancellation notations from Noor-lun’s bank in Nevada. The jury also heard evidence that the typewritten letters were signed by Noorlun and addressed to Jor-dee in Fargo. Those letters referred to the three original promissory notes, and the renewals of those notes on the dates alleged in the information. The State also introduced testimony from Detective Le-Doux indicating Jordee provided the letters to him at her residence in response to a request for information pertaining to her involvement with Noorlun. There was sufficient circumstantial evidence, viewed in the light most favorable to the verdict, from which the jury could have rationally concluded that Jordee received Noorlun’s letters in Fargo, and Noorlun offered to sell her or sold her securities on the dates alleged in the information in violation in N.D.C.C. ch. 10-04. We conclude the circumstantial evidence was sufficient to establish Noorlun was guilty of securities violations in North Dakota on the dates alleged in the information.

IV

[¶ 22] Noorlun argues the five-year statute of limitations in N.D.C.C. § 10-04-18(4) barred the prosecution of six counts charged in the information. He contends the State had no jurisdiction or authority to file a criminal information under N.D.R.Crim.P. 7(a) until after the preliminary examination that was held on March 25, 2004. Noorlun thus rationalizes the information was not properly filed until after the March 25, 2004 preliminary examination, and the five-year statute of limitations barred prosecutions for the six counts relating to the December 18, 1998 note and the March 13,1999 note.

A

[¶23] Rule 3(a), N.D.R.Crim.P., and its accompanying explanatory note generally provide that a complaint is the initial document for charging a person with a misdemeanor or felony. See also N.D.R.Crim.P. 7(a) and explanatory note (“even though a felony is initially charged by complaint, the subsequent prosecution must be by indictment or information”). Here, the State initially charged Noorlun with nine felonies by information filed in the district court on December 17, 2003, within the five-year statute of limitations of N.D.C.C. § 10-04-18(4), which provides “[a]n information must be filed or an indictment must be found under this chapter within five years after the alleged violation.” Chapter 29-04, N.D.C.C., generally deals with limitations in criminal actions, and N.D.C.C. § 29-04-05, provides:

When action is commenced. An information is filed or an indictment found within the meaning of this chapter when it is presented, if an information, by the state’s attorney or person appointed to prosecute, or, if an indictment, by the grand jury, in open court, and they are received and filed, or if a complaint, when filed by a magistrate having jurisdiction to hear, try, and determine the action.

[¶ 24] In State v. Dimmler, 456 N.W.2d 297, 298-99 (N.D.1990), we affirmed the dismissal of a criminal information charging the defendant with theft of property, holding the prosecution was barred by the three-year statute of limitations in N.D.C.C. § 29-04-02. In Dimmler, at 297-98, on August 8, 1989, the State charged the defendant by criminal complaint with theft of property allegedly occurring on October 6,1986. The complaint was signed by the state’s attorney and a county judge. Id. at 297. After a preliminary examination on September 20,1989, a magistrate found sufficient probable cause to hold the defendant on the charge. Id. at 298. After an arraignment on December 7, 1989, the State filed a criminal information against the defendant on that date. Id. The defendant moved to dismiss the charge under the three-year statute of limitations in N.D.C.C. § 29-04-02, which then provided an information for any felony must be filed within three years after its commission. Dimmler, at 298. The district court granted the defendant’s motion to dismiss, concluding the information was not filed within three years of the commission of the alleged felony. Id.

[¶ 25] On appeal, we concluded the State filed the information more than three years after the defendant allegedly committed the theft of property, and the action was barred by the three-year statute of limitations. Dimmler, 456 N.W.2d at 298. We rejected the State’s argument that the filing of the complaint satisfied the statute of limitations, concluding although the criminal complaint was filed in county court within the limitation period, it was not filed by a magistrate having jurisdiction to hear, try, and determine the action within the meaning of N.D.C.C. § 29-04-05, because the defendant was charged with a felony rather than a misdemeanor and the county court did not have jurisdiction to try the felony. Dimmler, at 299.

[¶ 26] In State v. Hersch, 445 N.W.2d 626, 631 (N.D.1989), we concluded felony prosecutions against a defendant were commenced by the filing of informations in district court. We said felony complaints filed in county court were not sufficient to commence the prosecutions under N.D.C.C. § 29-04-05, because the county court did not have jurisdiction to hear, try, and determine the actions. Hersch, at 631.

[¶ 27] The underlying rationale of Dimmler and Hersch was that a felony complaint filed in a county court without jurisdiction to hear, try, and determine the action was insufficient to commence the action under N.D.C.C. § 29-04-05. However, the applicable law has changed since Dimmler and Hersch were decided, with the abolishment of county courts, effective January 1, 1995. See 1991 N.D. Sess. Laws ch. 326, §§ 203-204. We conclude Dimmler and Hersch do not control the resolution of this issue.

[¶ 28] Under N.D.C.C. § 29-01-13(4), an information is an accusation in writing charging a person with a crime or public offense, signed and verified by some person and presented to and filed in the district court. In State v. Buehler, 125 N.W.2d 155, 158 (N.D.1963), this Court held that a filing of a criminal complaint was equivalent to an information for purposes of satisfying the state constitutional requirement that every criminal prosecution for a misdemeanor be by indictment or information. Under Buehler, a complaint and an information may be equivalent. Here, the information was filed in district court on December 17, 2003, within the five-year statute of limitations in N.D.C.C. § 10-04-18(4). On its face, the information does not show that the prosecution is barred by the statute of limitations. See Hersch, 445 N.W.2d at 629 (stating information that shows on face a prosecution is barred by the statute of limitations fails to state a public offense and may be noticed for the first time on appeal). An arrest warrant was issued by a district court judge with jurisdiction to hear, try, and determine the action under N.D.C.C. § 29-04-05. The information contained the same essential facts as would be alleged in a complaint and was accompanied by an affidavit of probable cause subscribed and sworn before a notary public. Although the information was filed before a preliminary examination was held, the fact a preliminary examination was neither had nor waived does not invalidate an information unless the defendant objects before entering a plea. N.D.C.C. § 29-09-02(3). See State v. Rudolph, 193 N.W.2d 237, 242 (N.D.1971). Noorlun entered a not guilty plea without objecting to the information. The information was not invalid under N.D.C.C. § 29-09-02(3), and we reject Noorlun’s claim that an information could not be filed under N.D.R.Crim.P. 7(a) until after a preliminary examination was held.

[¶ 29] Under these circumstances, we conclude the information received and filed in district court on December 17, 2003, was sufficient to commence the action against Noorlun under N.D.C.C. § 29-04-05, within the five-year statute of limitations in N.D.C.C. § 10-04-18(4). We therefore conclude the State’s prosecution of Noor-lun is not barred by the statute of limitations.

B

[¶ 30] Noorlun claims his trial counsel was ineffective because he did not move to quash the defective information under N.D.C.C. § 29-09-02(3). A defendant claiming ineffective assistance of counsel must establish counsel’s performance was deficient and counsel’s deficient performance prejudiced the defendant. State v. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18. In Palmer, at ¶ 11, we said “[t]o 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.” A claim of ineffective assistance of counsel ordinarily should be raised in a post-conviction proceeding so the parties can fully develop a record on the issue of counsel’s performance and its impact on the defendant’s ease. Id. at ¶ 12. When ineffective assistance of counsel is raised on direct appeal, we will review the record to determine if counsel was plainly defective. Id. If we cannot conclude that assistance of counsel was plainly defective and if no other grounds for reversal exist, we will affirm the judgment without prejudice to the defendant pursuing a claim for ineffective assistance of counsel at a post-conviction proceeding where an adequate record can be developed. State v. Strutz, 2000 ND 22, ¶ 26, 606 N.W.2d 886.

[¶ 31] In our examination of this record, we cannot conclude that assistance of counsel was plainly defective. There is some evidence Noorlun was not in North Dakota for significant periods of time between the dates of the notes and the filing of the information on December 17, 2003. The time of a defendant’s absence from the State is not counted as part of the limitation period under N.D.C.C. § 29-04-04. Noorlun’s trial counsel’s failure to object to the lack of a preliminary examination did riot invalidate the December 17, 2003 information under N.D.C.C. § 29-09-02(3). Although Noorlun’s appellate counsel claims Noorlun’s trial counsel’s failure to move to quash the information constituted ineffectiveness of' counsel on its face, trial counsel’s conduct and the statute of limitations must be considered in the context of Noorlun’s possible absence from the State. We affirm the judgment without prejudice to Noorlun to pursue an ineffective assistance of counsel claim at a post-conviction proceeding.

V

[¶ 32] We affirm the criminal judgment.

[¶ 33] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.

      . Section 29-04 — 02, N.D.C.C., now provides "[ejxcept as otherwise provided by law, a prosecution for any felony other than murder must be commenced within three years after its commission.”


author: MARING, Justice.

text:
    2005 ND 188
    Robert L. JOHNSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050230.
    Supreme Court of North Dakota.
    Nov. 9, 2005.

      Robert L. Johnson, pro se, Jamestown, N.D., submitted on brief.
    Frederick R. Fremgen, State’s Attorney, Jamestown, N.D., submitted on brief.
   MARING, Justice.

[¶ 1] Robert L. Johnson appeals from a July 7, 2005, trial court judgment summarily dismissing his application for post-conviction relief. On appeal, Johnson argues the trial court erred by not allowing him the time required by N.D.R.Ct. 3.2 to respond to the State’s motion to dismiss his application. Johnson also argues the trial court erred by not appointing counsel to represent him in his post-conviction relief application. We reverse in part, affirm in part, and remand to the trial court to allow Johnson to respond to the State’s motion.

I

[¶ 2] On March 21, 1996, Johnson was charged with endangering by fire. The charges arose after Johnson started a fire at the Doerr Jewelry building in Jamestown. Johnson pled guilty to the charges, and the trial court ordered a judgment of conviction on December 10, 1996. Johnson was sentenced to five years in prison, to run consecutive with his sentence on another conviction.

[¶ 3] On May 2, 1997, Johnson moved for a psychological evaluation to determine if, at the time of his plea, he was mentally and emotionally capable of entering a plea. In support of the motion, Johnson’s attorney enclosed his own affidavit stating that Johnson displayed dramatic changes in mood and personality that made him unpredictable and difficult to work with during his case. The trial court denied Johnson’s motion on May 16,1997.

[¶ 4] On June 24, 2005, Johnson filed an application for post-conviction relief and a motion for the appointment of counsel. In his application, Johnson alleged he was denied effective assistance of counsel, his conviction was obtained by a coerced confession, he did not realize his statement given to law enforcement could be used against him, he was under stress when giving his statement to law enforcement, and the States Attorney failed to give him discovery materials. The State’s response, including a motion for summary disposition, was filed on July 1, 2005. The trial court issued its order summarily denying Johnson’s application for post-conviction relief and his motion for the appointment of counsel on July 5, 2005.

[¶ 5] Johnson appeals raising two issues. First, the trial court erred in dismissing his motion because the summary order denying post-conviction relief was entered before the expiration of his statutory time to respond under N.D.R.Ct. 3.2. Second, the trial court erred by not appointing an attorney to represent him before entering the order for summary disposition.

II

[¶ 6] A post-conviction relief proceeding is civil in nature. Johnson v. State, 2004 ND 130, ¶ 6, 681 N.W.2d 769. Because it is civil in nature, all rules and statutes applicable in civil proceedings are available to the parties. Id. Therefore, the North Dakota Rules of Civil Procedure govern. Id. The North Dakota Rules of Court are also applicable. N.D.R.Ct. 1.1 (Providing “these rules apply to all trial courts of this state in all civil and criminal cases”); see Johnson v. State, 2005 ND 19, ¶¶ 3-6, 691 N.W.2d 288 (applying Rule 3.2’s ten-day answer period to a motion for summary disposition on an application for post-conviction relief).

[¶ 7] In his appeal, Johnson correctly argues that Rule 3.2, N.D.R.Ct., is applicable. He is incorrect, however, in asserting that, under the terms of the rule, he should have been given ten days to respond to the State’s motion for summary disposition. Johnson’s misapplication is likely based in part on his reliance on the State’s notice of motion, which was inaccurate. In its July 1, 2005, notice of motion, the State provided Johnson with the following information:

[P]ursuant to Rule of Court 3.2, you are hereby notified ... (ii) that your answer brief and supporting papers, if any, must be served and filed within 10 days of the date this notice and motion was served upon you....

For most motions, this notice would be correct. It is not correct, however, under the facts presented here. In this case, the State’s motion asked the court to go beyond the face of Johnson’s application; therefore, it was analogous to a motion for summary judgment under Rule 56, N.D.R.Civ.P. Accordingly, Johnson should have been given thirty days to respond, which is allowed for a response to a motion for summary judgment.

[¶ 8] Explaining the process and requirements of filing an application for post-conviction relief, we have said:

While our case law requires a petitioner to establish a basis for post-conviction relief, a petitioner need not provide evidence or proof with an application. N.D.C.C. § 29-32.1-04. A petitioner meeting the required conditions and applying for post-conviction relief must “set forth a concise statement of each ground for relief, and specify the relief requested. Argument, citations, and discussion of authorities are unnecessary.” N.D.C.C. § 29-32.1-04(1). “Affidavits or other material supporting the application may be attached, but are unnecessary.” N.D.C.C. § 29-32.1-04(2).

Vandeberg v. State, 2003 ND 71, ¶4, 660 N.W.2d 568 (citations omitted).

[¶ 9] The Post-Conviction Procedure Act also provides the State can respond and move to dismiss an application.

The state may move to dismiss an application on the ground that it is evident from the application that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings. In considering the motion, the court shall take account of substance regardless of defects of form.

N.D.C.C. § 29-32.1-06(2). This language is analogous to a motion for dismissal for failure to state a claim upon which relief may be granted and a motion for judgment on the pleadings. ND.R.Civ.P. 12(b)(vi) and (c).

[¶ 10] The Post-Conviction Procedure Act also provides that a trial court may act summarily on a motion for summary disposition made by either party.

The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

N.D.C.C. § 29-32.1-09(1).

[¶ 11] When describing the process the trial court must follow in considering a motion for summary disposition, we have said:

The procedure followed for a motion for the summary disposition of a petition for post-conviction relief is similar to that followed for a motion for summary judgment. Proceedings for post-conviction relief are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties. Our review of a summary denial of post-conviction relief is like the review of an appeal from a summary judgment. A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The initial burden is on the moving party to show there is no genuine issue of material fact. If the movant initially shows there is no genuine issue of material fact, the burden shifts to the non-movant to demonstrate there is a genuine issue of material fact. For the summary disposition of a petition for post-conviction relief, the moving party bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, and that the movant is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(1). A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts.

Vandeberg, 2003 ND 71, ¶ 5, 660 N.W.2d 568 (internal citations omitted).

[¶ 12] Our language stating that the “procedure followed for a motion for the summary disposition of a petition for post-conviction relief is similar to that followed for a motion for summary judgment,” and that “[o]ur review of a summary denial of post-conviction relief is like the review of an appeal from a summary judgment” must be read in conjunction with our statements that “[p]roeeedings for post-conviction relief are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties.” Id.

[¶ 13] When a court, acting on its own motion, summarily dismisses an application for post-conviction relief, we have said it is analogous to the dismissal of a complaint for failure to state a claim upon which relief can be granted under N.D.R.Civ.P. 12(b)(vi). Berlin v. State, 2005 ND 110, ¶ 7, 698 N.W.2d 266.

[¶ 14] When the State’s motion for summary disposition asks the court to rely solely on the pleadings, it should be treated like a N.D.R.Civ.P. 12(b) motion and, under N.D.R.Ct. 3.2(a), a ten-day response time should be provided the applicant before the trial court rules. Rule 3.2(a), N.D.R.Ct. 3.2, provides:

Submission of motion. Notice must be served and filed with a motion. The notice must indicate the time of oral argument, or that the motion will be decided on briefs unless oral argument is timely requested. Upon serving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers.

See Berlin, 2005 ND 110, ¶ 7, 698 N.W.2d 266; Johnson v. State, 2005 ND 19, ¶¶ 3-6, 691 N.W.2d 288 (holding, when the State moved for summary disposition, the non-moving party must be allowed ten days to respond under N.D.R.Ct. 3.2).

[¶ 15] If the State’s motion requesting summary disposition asks the trial court to go beyond the pleadings, it is no longer to be treated as a N.D.R.Civ.P. 12(b) motion, but rather as a N.D.R.Civ.P. 56 motion.

If, on a motion asserting defense numbered (vi), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment and disposed of as provided in N.D.R.Civ.P 56, and all parties must be given reasonable opportunity to present all material made pertinent to the motion by N.D.R.Civ.P. 56.

N.D.R.Civ.P. 12(b); see also N.D.R.CivJP. 12(c).

[¶ 16] Under N.D.R.Ct. 3.2(e), to the extent Rule 3.2 conflicts with another rule adopted by our Court, it does not apply. N.D.R.Ct. 3.2(e). The explanatory notes to the Rule explain:

Subdivision (e) was added, effective March 1,1997, to clarify that, in the case of a conflict between this rule and any other Supreme Court rule, the other rule will govern. For example, N.D.R.Civ.P. 56 allows parties 30 days to respond to a summary judgment motion, which conflicts with the 10 day response period specified in subdivision (a) of this rule. Under subdivision (e), the N.D.R.Civ.P. 56 response period would prevail.

N.D.R.Ct. 3.2, Explanatory Notes.

[¶ 17] In this case, the State’s motion for summary disposition was accompanied by 21 exhibits in support of the motion, thus clearly asking the trial court to go beyond the face of the pleadings. Pleadings are defined:

(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under Rule 14; and a third-party answer, if a third-party complaint if served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

N.D.R.Civ.P. 7(a). Under N.D.R.Ct. 3.2(e) and N.D.R.Civ.P. 56, Johnson should have been allowed thirty days to respond. Kaiser v. State, 2005 ND 49, ¶ 8, 693 N.W.2d 26.

[¶ 18] In circumstances when the State’s motion for summary disposition relies solely on the pleadings, the ten-day response period, required by Rule 3.2, is the appropriate time for an applicant to respond. In cases, like the one presented by this appeal, in which matters outside the pleadings are presented, a party has thirty days to respond.

In Johnson, 2004 ND 130, ¶ 6, 681 N.W.2d 769, we “treated the district court’s decision as a dismissal of the application on the pleadings under N.D.R.Civ.P. 12(b)(vi).” We cannot do that in this case, because the State submitted, and the district court relied on, matters in addition to the application.

Kaiser, 2005 ND 49, ¶ 9, 693 N.W.2d 26. As in Kaiser, here the State submitted matters outside Johnson’s application and the trial court relied upon them.

[¶ 19] The Post-Conviction Procedure Act specifically requires that a court state upon which grounds an applicant’s application is being denied.

If the court rules that the applicant is not entitled to relief, its order must indicate whether the decision is based upon the pleadings, is by summary disposition, or is the result of an evidentiary hearing.

N.D.C.C. § 29-32.1-11(2).

[¶ 20] We have stated that a trial court should not dismiss a motion on the pleadings under N.D.R.Civ.P. 12 unless it appears beyond doubt that the movant can prove no set of facts in support of his claim that would entitle him to relief. Kouba v. State, 2004 ND 186, ¶ 5, 687 N.W.2d 466.

[¶ 21] A trial court can dismiss an application based on a motion for summary disposition based on matters that go beyond the pleadings if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Johnson, 2004 ND 130, ¶ 5, 681 N.W.2d 769.

Whether summary judgment was properly granted is a question of law which we review de novo on the entire record. On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law.

In re Estate of Richmond, 2005 ND 145, ¶ 12, 701 N.W.2d 897 (citations omitted).

[¶ 22] Here, Johnson’s application alleged he was provided ineffective assistance of counsel when his attorney failed to get a second psychological evaluation. “Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction relief proceeding so the parties can fully develop a record on the issue of counsel’s performance and its impact on the defendant’s case.” Berlin, 2005 ND 110, ¶ 8, 698 N.W.2d 266.

[¶ 23] Johnson has not previously raised this issue in an application for post-conviction relief. Thus, the trial court is incorrect when it states: “Defendant’s application is simply an attempt to raise issues which could have been raised on appeal.” Further, the trial court incorrectly states: “Defendant fails to point to any portion of the record which would justify the relief he is seeking.” Under Vandeberg the applicant is not required to point to such statements in his initial application. 2003 ND 71, ¶ 4, 660 N.W.2d 568.

[¶24] We hold Johnson should have been given thirty days to respond to the State’s motion for summary disposition because it relied on matters outside the application. We reverse the judgment summarily dismissing his application for post-conviction relief.

[¶ 25] Johnson also argues that he should have been afforded counsel in his post-conviction relief proceeding. The appointment of counsel for motions brought under the Uniform Post-Conviction Procedure Act is discretionary with the trial court. Absent an abuse of discretion by the trial court, we will not overturn the court’s decision not to appoint counsel. Jensen v. State, 2004 ND 200, ¶ 13, 688 N.W.2d 374. We have said:

A trial court should read applications for post-conviction relief in the light most favorable to the applicant, and when a substantial issue of law or fact may exist, the trial court should appoint counsel. However, a trial court does not abuse its discretion in refusing to appoint counsel when the application for relief is completely without merit.

Id. (citations omitted). We do not see where, at this point, the trial court has abused its discretion and therefore affirm. However, if Johnson is able to show, in any response he may file, that a substantial issue of law or fact may exist, the trial court can revisit this issue.

Ill

[¶ 26] We reverse the trial court’s judgment summarily dismissing Johnson’s motion for post-conviction relief and remand so that he may be given the thirty days under N.D.R.Civ.P. 56 to respond to the State’s motion for summary disposition. We affirm the trial court’s denial of Johnson’s motion to have counsel appointed.

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


text:
    2005 ND 190
    Curt WETZEL, Petitioner and Appellee v. Orville P. SCHLENVOGT, Respondent and Appellant Cenex Oil, Petitioner and Appellee v. Orville Paul Schlenvogt, Respondent and Appellant.
    Nos. 20050121, 20050122.
    Supreme Court of North Dakota.
    Nov. 9, 2005.

      No appearance by petitioners and appel-lees.
    Chad C. Nodland, Chad C. Nodland, P.C., Bismarck, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] Orville Paul Schlenvogt appeals from a South Central Judicial District Court grant of two disorderly conduct restraining orders against him, enjoining him from having any contact with Curt Wetzel and Cenex Oil of Glen Ullin, North Dakota. We affirm the Wetzel restraining order, holding that a disorderly conduct restraining order does not require a pattern of behavior. We vacate the Cenex order, holding that when a case is commenced on behalf of a corporation by a non-attorney agent, the case and all legal documents signed by the non-attorney agent are void from the beginning.

I

[¶ 2] On January 3, 2005, two petitions for disorderly conduct restraining orders against Schlenvogt were filed with the South Central District Court. According to the petitions, Schlenvogt called Cenex in Glen Ullin on December 29, 2004. During the call, he complained that the lug nuts on a pickup tire Cenex had serviced for him were too tight. The conversation became heated after a Cenex employee stated the lug nuts could not have been overtightened. Schlenvogt hung up on the employee.

[¶ 3] According to the petitions, later that day Schlenvogt brought the tire into Cenex, where he continued to complain about Cenex’s service. Schlenvogt insisted that the lug nuts were too" tight and that he had to use a “cheater bar” to take the tire off. Three Cenex employees were present, including Wetzel. They insisted they use only a torque wrench when working on tires. According to the petitions, Wetzel’s response to Schlenvogt’s complaints was that it was “impossible.” Schlenvogt then approached Wetzel and hit him. According to the employees’ statements, one Cenex employee tended to Wetzel, while the other pushed Schlenvogt away and eventually out of the building.

[¶ 4] After the altercation, Wetzel, acting for himself, and Cenex, through its manager, Brian Schneider, petitioned for disorderly conduct restraining orders under N.D.C.C. § 12.1-31.2-01. Wetzel gave an unsworn statement to law enforcement officers, which was attached to his sworn petition. Copies of unsworn statements the other two Cenex employees had given to law enforcement officers were attached to Wetzel’s petition. Copies of all three unsworn statements were attached to the Cenex petition. On the basis of the petitions and attached statements, two temporary restraining orders were issued against Schlenvogt, prohibiting him from having any contact with Wetzel or Cenex.

[¶ 5] At the February 15, 2005, district court hearing on the restraining orders, Wetzel represented himself and Schlen-vogt appeared with counsel. Schneider was present. No lawyer appeared for Ce-nex. The lawyer for Schlenvogt made several arguments, including that Schneider was not an attorney and therefore could not appear in court on behalf of Cenex, that Schneider was committing a misdemeanor by appearing for Cenex and should be advised of his Fifth Amendment rights, and that the judge should recuse himself because he was a witness to Schneider’s possible misdemeanor. The lawyer also argued that Cenex’s temporary restraining order was unclear because it did not specify what Cenex property Schlenvogt must avoid. Finally, Schlenvogt’s lawyer argued there were insufficient grounds to sustain a restraining order because the petitions did not allege a pattern of disorderly conduct, which he argued was required by law. The court rejected .the arguments.

[¶ 6] Schlenvogt’s lawyer then cross-examined Wetzel and Schneider. Wetzel testified that Schlenvogt came into Cenex with a tire and soon after began arguing with the employees about the alleged overtightened lug nuts. Wetzel testified he told Schlenvogt it was impossible that the lug nuts had been overtightened because they use a torque wrench when working on tires. According to Wetzel’s testimony, Schlenvogt then hit him. Wetzel also testified that he had not had any contact with Schlenvogt for roughly 25 years before the incident. Schneider testified that he was not a licensed attorney. He also testified he was not at Cenex during the altercation but received a telephone call about it and arrived soon after. He also gave testimony regarding the property that the Glen Ullin Cenex owned.

[¶ 7] After hearing Wetzel’s and Schneider’s testimony, the court found there were reasonable grounds to support the petitions and therefore granted both restraining orders. While making its ruling, the court stated the restraining orders would “be in place for one year, until the 15th day of February of 2007.” The discrepancy was not clarified during the hearing, and the written orders, as stated, are in effect until February 15, 2007.

[¶ 8] On appeal, Schlenvogt argues that because his acts did not constitute a pattern of conduct, which he contends- is required by the statute, the trial court abused its discretion in granting both petitions. He also claims that the Cenex petition is invalid because Cenex was not represented by an attorney. Finally, Schlenvogt argues he was not given a full hearing by the district court.

[¶ 9] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. §§ 28-27-01, 28-27-02.

II

[¶ 10] Schlenvogt argues that the Cenex petition is invalid because Ce-nex was not represented by an attorney. Section 27-11-01, N.D.C.C., states:

Except as otherwise provided by state law or supreme court rule, a person may not practice law, act as an attorney or counselor at law in this state, or commence, conduct, or defend in any court of record of this state, any action or proceeding in which the person is not a party concerned, nor may a person be qualified to serve on a court of record unless that person has:
1. Secured from the supreme court a certificate of admission to the bar of this state; and
2. Secured an annual license therefor from the state board of law examiners.
Any person who violates this section is guilty of a class A misdemeanor.

Commencing an action and conducting oneself in court on behalf of another qualify as the practice of law. N.D.C.C. § 27-11-01; see also State v. Niska, 380 N.W.2d 646, 648 (N.D.1986) (“Niska’s drafting of legal instruments and pleadings and providing legal advice” for Schmidt constituted the practice of law). Whether a corporation can be represented by a non-attorney agent in a legal proceeding and what happens to the matter when a corporation is not represented by an attorney are questions of law. United Accounts v. Teladvantage, 524 N.W.2d 605, 606 (N.D.1994). Thus, the issues are fully reviewable on appeal. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. A district court errs as a matter of law when its decision is not in accordance with the law of North Dakota. Id.

[¶ 11] A corporation is an artificial person that must act through its agents. United Accounts v. Teladvantage, 499 N.W.2d 115, 117 n. 1 (N.D.1993). This Court has firmly adhered to the common law rule that a corporation may not be represented by a non-attorney agent in a legal proceeding. United Accounts, Inc. v. Teladvantage, Inc., 524 N.W.2d 605, 606-07 (N.D.1994) (citing Oahu Plumbing & Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372, 590 P.2d 570, 572 (1979)). This rule is born out of the necessity to have a court system that functions efficiently. Oahu Plumbing, 590 P.2d at 573 (citing Strong Delivery Ministry Ass’n v. Bd. of Appeals, 543 F.2d 32, 33 (7th Cir.1976)). Attorneys are knowledgeable of the law, the court system, and its rules of procedure, which keep legal matters moving smoothly through the courts. Id. Just as one unlicensed natural person may not act as an attorney for another natural person in his or her cause, an unlicensed natural person cannot attorn for an artificial person, such as a corporation. Id. at 574.

[¶ 12] This Court, however, has not decided what must happen to an underlying case or documents when a corporation is represented by a non-attorney agent. As a result of a corporation’s appearance through a non-attorney agent in United Accounts, we rejected the appellant’s brief and dismissed the appeal as frivolous. 524 N.W.2d at 607. Applying this logic to a trial court, the proper remedy would be to dismiss the action and strike all legal documents signed and filed by the non-attorney as void. Many other courts have refused to allow a corporation to appear before it without counsel and have disposed of the action. See, e.g., Carr Enter., Inc. v. United States, 698 F.2d 952, 953 (8th Cir.1983) (the plaintiff corporation’s appearance through a non-attorney agent would be sufficient alone to affirm the district court’s judgment against the plaintiff); Merco Constr. Eng’rs, Inc. v. Mun. Court, 21 Cal.3d 724, 147 Cal.Rptr. 631, 581 P.2d 636, 637 (1978) (refusing a writ of mandamus allowing a corporation to appear through a non-attorney agent in municipal court); Estate of Nagel, 950 P.2d 693, 694 (Colo.Ct.App.1997) (a petition or pleading that was not signed by an attorney on behalf of a corporation was void); Oahu Plumbing & Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372, 590 P.2d 570, 576 (1979) (default judgment was proper because the defendant corporation could not continue before the court without counsel); Berg v. Mid-Am. Indus., Inc., 293 Ill.App.3d 731, 228 Ill.Dec. 1, 688 N.E.2d 699, 704 (1997) (“a corporation can file a complaint only through a licensed attorney; any action filed without an attorney is null and void ab initio ”); Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 753, 754, 756 (Minn.1992) (trial court’s dismissal was appropriate because the petitioner appeared without an attorney); Lloyd Enters., Inc. v. Longview Plumbing & Heating Co., Inc., 91 Wash.App. 697, 958 P.2d 1035, 1038 (1998) (the district court properly struck documents signed by a non-attorney on behalf of a corporation) (citing United Accounts, 524 N.W.2d at 607); see generally Jay M. Zitter, Propriety and Effect of Corporation’s Appearance Pro Se Through Agent Who is Not Attorney, 8 A.L.R.5th 653 (1992).

[¶ 13] We are persuaded by this body of caselaw. We hold that when a case is commenced on behalf of a corporation by a non-attorney agent, the case and all documents signed by the non-attorney agent are void from the beginning. Cenex is a corporation. It is undisputed that Schneider is not an attorney. He signed and filed the restraining order petition on behalf of Cenex as its manager. Filing the petition began the action for a restraining order. Cenex also never appeared at the hearing because it was not represented by a lawyer. The district court found that Schneider’s appearance was as a witness. Because Cenex was never represented by an attorney, its petition was void from the beginning. Since the district court allowed Cenex to proceed with its petition, its decision was not in accordance with the law of North Dakota, and it erred as a matter of law. Cenex’s restraining order against Schlenvogt is vacated.

Ill

[¶ 14] Schlenvogt argues there were insufficient grounds to grant the restraining order against him under the Wetzel petition because his conduct did not form a “pattern of behavior,” which he contends is required by N.D.C.C. § 12.1-31.2-01 and its precedent. He also argues that the district court’s procedures denied him his right to a full hearing.

A

[¶ 15] Generally, the grant of a restraining order is discretionary, and a district court’s decision must be reviewed under an abuse-of-discretion standard. Baker v. Mayer, 2004 ND 105, ¶ 7, 680 N.W.2d 261. Whether a pattern of behavior is required, however, is a question of statutory interpretation, fully reviewable by this Court. Estate of Kimbrell, 2005 ND 107, ¶ 9, 697 N.W.2d 315. Therefore, the district court’s decision will not be reversed unless it is not in accordance with the law of North Dakota. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215.

[¶ 16] Section 12.1-31.2-01(5), N.D.C.C., provides:

The court may grant a disorderly conduct restraining order ordering the respondent to cease or avoid the disorderly conduct or to have no contact with the applicant if:
a. A person files a petition under subsection 3;
b. The sheriff serves the respondent with a copy of the temporary restraining order issued under subsection 4 and with notice of the time and place of the hearing;
c. The court sets a hearing for not later than fourteen days after issuance of the temporary restraining order unless the time period is extended upon written consent of the parties, or upon a showing that the respondent has not been served with a copy of the temporary restraining order despite the exercise of due diligence; and
d. The court finds after the hearing that there are reasonable grounds to believe that the respondent has engaged in disorderly conduct. If a person claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

[¶ 17] Disorderly conduct, as defined by N.D.C.C. § 12.1-31.2-01(1), is “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Disorderly conduct does not include constitutionally protected activity.” This definition differs from the definition used for the crime of disorderly conduct. See N.D.C.C. § 12.1-31-01(1). “ ‘Reasonable grounds’ is synonymous with ‘probable cause.’ ” Tibor v. Lund, 1999 ND 176, ¶ 7, 599 N.W.2d 301 (citing Svedberg v. Stamness, 525 N.W.2d 678, 681-82 (N.D.1994)). Thus, “[reasonable grounds exist for obtaining a restraining order ... when the facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting disorderly conduct have been committed.” Wishnatsky v. Huey, 1997 ND 35, ¶ 14, 560 N.W.2d 878 (citing Svedberg, 525 N.W.2d at 682).

[¶ 18] Section 12.1-31.2-01 does not use the term “pattern” to describe disorderly conduct. The statute does not use the word “pattern” at all. Some of this Court’s opinions have used “pattern” to describe the disorderly conduct involved or alleged in certain eases. See Cusey v. Nagel, 2005 ND 84, ¶ 12, 695 N.W.2d 697 (the petitioner’s vague allegations of conduct did not establish a specific “pattern of intimidation”); Baker, 2004 ND 105, ¶ 20, 680 N.W.2d 261 (Baker did not establish a “pattern of intrusive behavior” that would support a restraining order); Skadberg v. Skadberg, 2002 ND 97, ¶ 10, 644 N.W.2d 873 (the district court did not err in ruling a pattern of telephone calls was disorderly conduct under the statute); Tibor, 1999 ND 176, ¶ 11, 599 N.W.2d 301 (the respondent’s actions were not a “pattern of intimidation”); Wishnatsky, 1997 ND 35, ¶ 9, 560 N.W.2d 878 (the petitioner did not show the respondent engaged in a “pattern of intimidation”); Cave v. Wetzel, 545 N.W.2d 149, 152 (N.D.1996) (the district court did not err in ruling a pattern of hang-up telephone calls was disorderly conduct under the statute); Svedberg v. Stamness, 525 N.W.2d 678, 687 (N.D.1994) (Levine, J., dissenting) (arguing a restraining order was not proper because the respondent did not engage in a “pattern of threatening behavior”).

[¶ 19] But this Court has never held that a pattern is necessarily required. These cases do not support the argument that a pattern of behavior is an element for the grant of a restraining order. They merely describe the type of disorderly conduct involved or alleged in those cases. All that is required under the statute are “reasonable grounds to believe that the respondent has engaged in disorderly conduct.” N.D.C.C. § 12.1 — 31.2—01(5)(d). In other words, an objective, reasonable person must believe the respondent has engaged in “intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person.” N.D.C.C. § 12.1-31.2-01(1); Wishnatsky, 1997 ND 35, ¶ 14, 560 N.W.2d 878. The statute’s use of plural words such as acts, words, and gestures does not mean that a pattern of behavior is required. A statute’s use of a singular or plural word includes its opposite, unless there is a plain intention to do otherwise. N.D.C.C. § 1-01-35. There is no plain intention to do otherwise here.

[¶ 20] The criminal offense for disorderly conduct is broad, declaring many kinds of action disorderly conduct. N.D.C.C. § 12.1-31-01(1). For example, disorderly conduct includes when a person “[e]ngages in fighting, or in violent, tumultuous, or threatening behavior” or “[mjakes unreasonable noise,” either of which by itself would be one act occurring at one time. N.D.C.C. § 12.1-31-01(l)(a) and (b). It also includes behavior that implies a pattern of conduct, such as when someone “[persistently follows a person in or about a public place or places.” N.D.C.C. § 12.1-31-01(l)(e). Finally, it includes conduct that is the same as the definition of disorderly conduct found in N.D.C.C. § 12.1-31.2-01. N.D.C.C. § 12.1-31 — 01(l)(h). Therefore, just as a single occurrence could be disorderly conduct under § 12.1-31-01, acts, words, or gestures occurring at one moment in time could easily be disorderly conduct under § 12.1-31.2-01, sufficient to impose a restraining order. This civil remedy cannot be denied people whose safety, security, or privacy has been intruded upon simply because the respondent’s actions occurred at one time.

[¶ 21] This case involves a direct confrontation in which Schlenvogt allegedly assaulted Wetzel. According to the petitions and hearing testimony, Schlenvogt first had a heated telephone conversation with a Cenex employee. Wetzel testified that Schlenvogt then went to Cenex, where he argued with three Cenex employees, punched Wetzel, and then lunged at him again until Schlenvogt was thrown out of the building. Even though the facts presented do not show a pattern of behavior over a period of time, Schlenvogt’s actions meet the definition of disorderly conduct. It is obvious that Schlenvogt’s hitting Wetzel constitutes an intrusive and unwanted act intended to adversely affect the safety and security of Wetzel. We hold a disorderly conduct restraining order does not require a pattern of behavior. The district court has not erred as a matter of law.

B

[¶ 22] Schlenvogt argues that the district court’s procedures denied him a full hearing. The district court is given discretion in how it conducts a trial or hearing. Gullickson v. Kline, 2004 ND 76, ¶ 16, 678 N.W.2d 138. Therefore, the decision of the district court will not be reversed unless the district court abused its discretion. Id. “A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably.” Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215.

[¶ 23] Before a restraining order may be granted, the petitioner’s case must be proven before the court in a full hearing. N.D.C.C. § 12.1-31.2-01(4). This Court has stated that the “full hearing” that must accompany a disorderly conduct restraining order is a “ ‘special summary proceeding,’ intended to ‘quickly and effectively combat volatile situations before any tragic escalation.’ ” Gullickson, 2004 ND 76, ¶ 8, 678 N.W.2d 138 (quoting Skadberg, 2002 ND 97, ¶ 13, 644 N.W.2d 873). This Court also noted, because of the restraint and stigma that a restraining order places on the respondent, due process requirements must be met. Id. The petitioner must prove his petition through testimony, rather than by affidavits alone, with an opportunity for cross-examination. Cusey v. Nagel, 2005 ND 84, ¶ 15, 695 N.W.2d 697. Furthermore, petitions and affidavits themselves are inadmissible hearsay under N.D.R.Ev. 801(c). Id.

[¶ 24] In Gullickson, we held there were numerous procedural errors during the district court’s hearing that deprived the respondent of a full hearing. 2004 ND 76, ¶ 16, 678 N.W.2d 138. For example, the district court had the petitioner sworn in from the counsel table instead of the witness stand, and the petitioner simply stated the affidavit was correct without actually giving testimony. Id. at ¶ 10. The court then allowed the petitioner to add to the information in the affidavits without notice to opposing counsel. Id. We concluded there had been no meaningful opportunity to cross-examine and much of the evidence was inadmissible hearsay. Id. at ¶ 12. Furthermore, the hearing was brief, as demonstrated by an 18-page transcript. Id. at ¶ 14. Finally, the district court did not allow closing arguments. Id. We held the district court had abused its discretion by not allowing both parties a meaningful opportunity to present evidence. Id. at ¶ 16.

[¶ 25] Sehlenvogt alleges he was denied a full hearing because the court seemed prepared to grant the restraining order on the basis of the petition alone, thus allowing the petition to be proven through hearsay. He also contends he was denied a full hearing because it ended before he had addressed all the issues and because there were no closing arguments. This case is different from Gullickson, however, because Sehlenvogt was provided a meaningful opportunity to cross-examine both Wetzel and Schneider. In addition, the court asked Schlenvogt’s attorney whether there was anything more he wished to present, and he said no. Wet-zel’s testimony alone was sufficient to support the district court’s grant of the restraining order. Wetzel testified that Sehlenvogt came to Cenex and complained that the lug nuts on his pickup tire had been overtightened. Wetzel replied that Schlenvogt’s allegations were impossible. Sehlenvogt then approached and hit Wet-zel. This attack, presented to the district court through open and admissible testimony, provided reasonable grounds for the court to find that Sehlenvogt had engaged in disorderly conduct. Any error due to the hearsay nature of the petitions became harmless after Wetzel’s testimony. N.D.R.Civ.P. 61; see also Wastvedt v. State, 371 N.W.2d 330, 335 (N.D.1985) (information contained in allegedly inadmissible exhibits was also presented through admissible oral testimony, so admission of the exhibits was not reversible error); Roll v. Keller, 356 N.W.2d 154, 157 (N.D. 1984) (when measuring damages, the district court’s consideration of a letter, which had been admitted for a limited purpose other than damages, was not reversible error, because there was sufficient evidence from other sources to support its decision). Therefore, the district court did not abuse its discretion when it granted Wetzel’s restraining order against Schlen-vogt.

C

[¶ 26] Sehlenvogt also argues the restraining order must be reversed because of the district court’s inconsistent rulings about the duration of the restraining order. While making its ruling, the court stated the restraining order would “be in place for one year, until the 15th day of February of 2007.” The discrepancy was not clarified during the hearing, and the written order states the restraining order is in effect until February 15, 2007. Whenever there is a discrepancy between a trial court’s oral and written statements, the written statement controls. See Fenske v. Fenske, 542 N.W.2d 98, 102 (N.D.1996) (“ ‘[A] trial court’s written findings of fact prevail when a discrepancy exists between those findings and the court’s prior memorandum opinion or oral ruling.’ ”) (quoting Fed. Land Bank of St. Paul v. Lillehaugen, 404 N.W.2d 452, 454 (N.D.1987)). Therefore, the written order supersedes the ruling made from the bench. The duration of the restraining order is two years, until February 15, 2007.

IV

[¶ 27] The Cenex restraining order is vacated. We affirm Wetzel’s restraining order against Schlenvogt.

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


author: CROTHERS, Justice.

text:
    2005 ND 187
    Marvin LAIB, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050108.
    Supreme Court of North Dakota.
    Nov. 9, 2005.

      Jesse N. Lange (argued) and Steven M. Light (on brief), Larivee & Light, Fargo, N.D., for petitioner and appellant.
    Brian David Grosinger, Assistant State’s Attorney, Mandan, N.D., for respondent and appellee.
   CROTHERS, Justice.

[¶ 1] Marvin Laib appealed from a district court judgment denying his application for post-conviction relief. We affirm, concluding (1) Laib’s attempt to raise claims of prosecutorial misconduct that he did not raise on direct appeal constituted misuse of process, and (2) Laib failed to establish that he was prejudiced by any alleged ineffective assistance of counsel.

I

[¶2] In February 2001, search warrants were executed on Laib’s property in Mandan. Officers seized a pen containing residue of methamphetamine, a small amount of marijuana, a beer can containing one ounce of methamphetamine, an “owe sheet” listing drug transactions, $2,550 in cash, and a welder and welding helmet which had been recently stolen from a local business. Laib was charged with possession of methamphetamine with intent to deliver and possession of stolen property.

[¶ 3] A jury found Laib guilty on both counts. Laib was sentenced as a third-time drug offender to the mandatory minimum sentence of twenty years on the methamphetamine charge, and to five years to be served concurrently on the stolen property charge. Laib appealed to this Court, and the judgment of conviction was affirmed. See State v. Laib, 2002 ND 95, 644 N.W.2d 878.

[¶ 4] Laib filed an application for post-conviction relief, alleging that the prosecutor had committed misconduct during the trial and that he had received ineffective assistance of counsel at trial. Laib contended the prosecutor (1) improperly suggested to the jury that there was additional incriminating evidence; (2) emphasized that the searches of Laib’s property were authorized by court orders; (3) suggested that other items found on Laib’s property were stolen; . (4) improperly attempted to introduce evidence that Laib was associated with a convicted drug dealer; and (5) improperly sought to impeach defense witnesses with insinuations that they associated with people involved in drugs. Laib further argued his trial ■ counsel rendered ineffective assistance of counsel by failing to timely object to the prosecutor’s conduct and failing to challenge the qualifications of two witnesses for the State. Laib waived his right to an evidentiary hearing, but a deposition of his trial counsel was filed. The district court denied Laib’s application for post-conviction relief, and Laib appealed.

II

[¶ 5] Laib contends he is entitled to post-conviction relief because the prosecutor committed misconduct during the criminal trial. Laib did not raise this issue on his prior appeal from the judgment of conviction, see Laib, 2002 ND 95, 644 N.W.2d 878, and has not explained his failure to raise the issue at that time.

[¶ 6] Under N.D.C.C. § 29-32.1-12(2)(a), a court may deny an application for post-conviction relief on the ground of misuse of process when the defendant has inexcusably failed to raise an issue in a proceeding leading to a judgment of conviction, inexcusably failed to raise an issue on a prior direct appeal, or inexcusably failed to raise an issue in a prior application for post-conviction relief. E.g., Greybull v. State, 2004 ND 116, ¶ 5, 680 N.W.2d 254; Steinbach v. State, 2003 ND 46, ¶ 8, 658 N.W.2d 355; Hughes v. State, 2002 ND 28, ¶ 11, 639 N.W.2d 696. A defendant who has failed to raise an issue in prior proceedings may not raise it in a subsequent application for post-conviction relief. See Murchison v. State, 2003 ND 38, ¶ 11, 658 N.W.2d 320.

[¶ 7] Laib did not raise the issue of prosecutorial misconduct on his prior direct appeal and has failed to make any showing of excuse or justification for his failure to raise the issue. See Greybull, 2004 ND 116, ¶ 5, 680 N.W.2d 254. Laib’s attempt to raise the issue at this belated date constitutes misuse of process under N.D.C.C. § 29 — 32.1—12(2)(a), and we will not address the issue on appeal.

III

[¶ 8] Laib contends he received ineffective assistance of counsel at his criminal trial and is entitled to post-conviction relief.

A

[¶ 9] The Sixth Amendment of the United States Constitution and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel. E.g., Heckelsmiller v. State, 2004 ND 191, ¶ 3, 687 N.W.2d 454; Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568. In accord with the two-pronged test established 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 bears the 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. Greywind v. State, 2004 ND 213, ¶ 13, 689 N.W.2d 390; Heckelsmiller, at ¶ 3. The defendant must first overcome the “strong presumption” that trial counsel’s representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight. Heckelsmiller, at ¶ 3; Ernst v. State, 2004 ND 152, ¶ 9, 683 N.W.2d 891.

[¶ 10] To meet the “prejudice” prong of the Strickland test the defendant carries the heavy burden of establishing a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Greywind, 2004 ND 213, ¶13, 689 N.W.2d 390; Mathre v. State, 2000 ND 201, ¶ 3, 619 N.W.2d 627. The defendant must prove not only that counsel’s assistance was ineffective, but must specify how and where trial counsel was incompetent and the probable different result. Greywind, at ¶ 13; Garcia, 2004 ND 81, ¶ 5, 678 N.W.2d 568. Unless counsel’s errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel’s errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial. State v. Steen, 2004 ND 228, ¶ 19, 690 N.W.2d 239.

[¶ 11] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Heckelsmiller, 2004 ND 191, ¶ 5, 687 N.W.2d 454; Garcia, 2004 ND 81, ¶ 6, 678 N.W.2d 568. Although the issue of ineffective assistance of counsel is a mixed question of law and fact that is fully reviewable by this Court, the trial court’s findings of fact in a post-conviction relief proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). Greywind, 2004 ND 213, ¶ 13, 689 N.W.2d 390; Heckelsmiller, at ¶ 5; Garcia, at ¶ 6.

B

[¶ 12] If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed. Heckelsmiller, 2004 ND 191, ¶ 4, 687 N.W.2d 454. Reviewing Laib’s allegations of ineffective assistance of counsel within the context of the remaining evidence and the overall conduct of the trial, see Steen, 2004 ND 228, ¶ 19, 690 N.W.2d 239, we conclude Laib has failed to meet his burden of establishing a reasonable probability that, but for counsel’s purported errors, the result of his criminal trial would have been different.

[¶ 13] The majority of the claimed errors relate to trial counsel’s response to the alleged misconduct of the prosecutor. Laib claims his trial counsel failed to make timely objections or move for a mistrial when the prosecutor made improper arguments, solicited improper testimony, and improperly impeached defense witnesses. In effect, Laib is attempting to convert his prosecutorial misconduct claims into an ineffective assistance of counsel claim. The record demonstrates that Laib’s trial counsel did object to the alleged improper conduct by the prosecutor, albeit perhaps not as quickly as Laib in hindsight would have liked, and the objections were generally sustained. In several instances the trial court also gave curative instructions. Any potential prejudice from counsel’s responses to the prosecutor’s conduct was ameliorated by the ultimate sustaining of objections and giving of curative instructions.

[¶ 14] Furthermore, Laib’s claims of ineffective assistance of counsel, including counsel’s responses to the prosecutor’s conduct and failure to challenge the qualifications of two witnesses for the State, relate to tangential issues and do not outweigh the other significant physical and testimonial evidence untainted by the alleged errors of trial counsel. The State introduced evidence demonstrating that controlled substances, an “owe sheet” listing drug transactions, stolen property, and a large amount of cash were found on Laib’s property. Under the circumstances in this case, we conclude Laib has failed to establish a reasonable probability that, but for the alleged errors of counsel, the result of his criminal trial would have been different.

IV

[¶ 15] The judgment denying Laib’s application for post-conviction relief is affirmed.

[¶ 16] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ.