author: VANDE WALLE, Chief Justice.

text:
    2005 ND 158
    In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Doris Muriel ONSTAD. Elizabeth Onstad, Petitioner and Appellant v. Mary Onstad and John Onstad, Guardians and Conservators, Respondents and Appellees Doris Muriel Onstad, through her Guardian Ad Litem, C. Nicholas Vogel, Appellee.
    No. 20040235.
    Supreme Court of North Dakota.
    Sept. 26, 2005.
    Monty G. Mertz, Mertz Law Office, Fargo, N.D., for petitioner and appellant.
    Mark R. Hellerud, Ada, MN, for respondents and appellees.
    C. Nicholas Vogel (on brief), Guardian Ad Litem, Vogel Law Firm, Fargo, N.D., for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Elizabeth Onstad appealed from an order denying her petition to remove John Onstad and Mary Onstad as guardians and conservators of Doris Onstad, and an order for restitution of property to the guardians and conservators, which was conditionally stayed pending appeal. We reverse and remand for further proceedings.

I

[¶ 2] John and Mary Onstad filed a petition seeking their appointment as co-guardians and co-conservators for their mother, Doris Onstad. The district court appointed a visitor to interview Doris, an attorney to represent her as guardian ad litem, and a physician to examine her. Their reports were available at the hearing held on August 27, 2002. Elizabeth On-stad objected to the proposed guardians and conservators and to proceeding without the presence of Doris.

[¶ 3] Based on the physician’s and visitor’s reports, Judge Dawson ruled there was good cause for Doris Onstad’s absence from the hearing and that the reports showed by clear and convincing evidence she “is an incapacitated person who is in need of a guardian.” Judge Dawson found John and Mary Onstad “are appropriate persons, and the Court will appoint them as the guardians.” She also determined a conservatorship was necessary and Doris’ house needed to be sold. On September 6, 2002, Judge Dawson issued an order finding it was necessary to appoint a guardian and a conservator for Doris Onstad, finding John and Mary Onstad have the highest priority and no other person with equal priority has petitioned the court, and appointing John and Mary Onstad as guardians of the person and conservators of the estate of Doris Onstad.

[¶ 4] In a letter of September 10, 2002, the attorney for John and Mary Onstad advised Elizabeth Onstad’s attorney, in part: “You have expressed concerns over Doris’ absence from the August 27 hearing. In light of the concerns, my clients would consider a re-hearing on the guardianship issue.” On November 26, 2002, Elizabeth Onstad filed a motion seeking vacation of the order appointing John and Mary Onstad as Doris’ guardians and conservators and an order re-opening the proceeding alleging in essence a violation of due process, and asserting she “has priority superior to all other persons to be appointed guardian of her mother,” requesting that she be appointed as the guardian for Doris Onstad, and requesting that Northern Capital Trust be appointed as the conservator of the estate of Doris On-stad. On that same day, Elizabeth also filed a petition for removal of John and Mary Onstad as the guardians and conservators, appointment of herself as guardian, and appointment of Northern Capital Trust as conservator of the estate of Doris Onstad. Elizabeth supported her motion and petition with affidavits of herself and several other individuals. In his response to the motion for reconsideration, counsel for John and Mary Onstad asserted that the issues raised in the motion should have been raised in an appeal.

[¶ 5] At the outset of a December 19, 2002, hearing on the motion and petition, Judge Dawson stated “it probably would have been better ... to have had an opportunity to explore more fully both sides of the issue” and that she appreciated the “opportunity to hear more fully both sides.” Judge Dawson said she was adhering to her “decision that it wasn’t in the best interests of the ward to be here,” and she liked “the idea of having North Capital Trust be the conservator.” Judge Dawson said “this will be scheduled for a hearing in my next hearing week and we’ll block a significant amount of time, enough time for everybody to be heard.” Judge Dawson directed the attorneys to address the sale of Doris’ house “at that next hearing,” directed John and Mary Onstad’s attorney “to draw an order covering everything that I’ve just said,” and advised that “I’ll sign the order then for the visitor, the doctor and guardian ad litem to just do another report so that I can be current.” Judge Dawson also ordered that a pending proceeding to evict Elizabeth from Doris’ house “will be in abeyance until the hearing’s over so we can deal with the house.”

[¶ 6] No order was drawn by John and Mary Onstad’s attorney, Bruce Johnson, as directed by Judge Dawson, nor did Elizabeth Onstad seek the entry of the order. Rather, on September 15, 2003, the court issued an order allowing Bruce D. Johnson to withdraw as counsel for John and Mary Onstad, and allowing Mark R. Hellerud as substitute counsel. On December 5, 2003, the district court issued an order (1) appointing a physician and a visitor to examine and interview the proposed ward and submit reports by January 5, 2004; (2) appointing a guardian ad litem for the proposed ward and directing him to submit a response to the petition by January 5, 2004; and providing (3) “the eviction proceeding initiated by petitioner Mary Onstad and John Onstad concerning the house of the ward shall be held in abeyance until the next hearing in this matter, which is scheduled for January 15 2004. at 1:30 pm.” The court issued amended orders on December 11, 2003, and December 18, 2003.

[¶ 7] Judge Backes held a hearing on the pending motion and petition on January 15, 2004. John and Mary Onstad were represented by counsel and Elizabeth On-stad appeared pro se. The court denied Elizabeth’s request for a continuance. At the outset of the hearing before Judge Backes, the attorney for John and Doris Onstad noted he “was also led to believe that this — we might be somewhat almost starting from scratch on the — actually the appointment of who was going to be guardian and conservator the way the issues shaped up.” Judge Backes said the court was “not going to go into” appealable errors that occurred in the initial proceedings, and continued:

We are not going back to the original hearing. In fact, I’ll make it very clear at this point. The motion for reconsideration of the order appointing guardians and conservators and for a new hearing, the Court has reviewed the files and will dismiss that motion on its merits as a matter of law. The only hearing that we are having today is a brief — the motion for reconsideration — the petition for removal of guardians and conservators and the appointment of successor[ ] guardians and conservators.

On May 27, 2004, Judge Backes issued a memorandum opinion providing, in part:

The Court, having considered all of the documents and reports available, cannot find that the Petition for removal contains any grounds that would justify the removal of Mary Onstad and John On-stad as guardians and conservators of Doris Muriel Onstad. The Court cannot find a significant change of circumstances, nor can the Court determine that it would be in the best interest of the Ward, Doris Muriel Onstad, to change guardians or conservators. The Court is of the further opinion that Elizabeth Onstad’s failure to assert a priority for appointment at the time of the August 27, 2002 hearing is now barred by doctrines of laches and res judicata.
The Petition to remove Mary Onstad and John Onstad as guardians and conservators is in all respects denied. The attorney for Mary Onstad and John On-stad is directed to prepare an Order accordingly.

An order was prepared for Judge Backes’ signature. That order provided:

The petition of Elizabeth Onstad for an order for Removal of Guardians and Conservators and Appointment of Successor Guardian and Conservator came on for hearing before the Court, the

Honorable Norman Backes, Judge of the District Court, presiding at the Cass County Courthouse in Fargo, North Dakota on the 12th of January, 2004, at 1:45 p.m. The Court having considered the records and files in the action, and being full[y] advised in the premises,

IT IS HEREBY ORDERED:

1. The petition to remove Mary On-stad and John Onstad as guardians and conservators is hereby denied.
2. The eviction proceeding concerning the ward’s house that was held in abeyance by this Court pursuant to Judge [Georgia] Dawson’s oral order of December 19, 2002 until this matter could he heard is hereby reinstated and the abeyance lifted.

After Judge Backes retired, Judge Herman signed the order on June 10, 2004. There is no certificate of familiarity with the record as provided by N.D.R.Civ.P. 63 in the record before us.

[¶ 8] In ruling on the guardians’ and conservators’ motion for an order evicting Elizabeth Onstad from Doris Onstad’s home and Elizabeth’s motion for a continuance and sanctions, the district court issued an order denying Elizabeth’s motions and ruling the guardians and conservators were entitled to restitution of the premises, but conditionally staying restitution pending appeal to this Court.

II

[¶ 9] Elizabeth Onstad has raised several issues on appeal. We deem the first due-process issue — whether or not she had “a meaningful opportunity to be heard on her application to be her mother’s guardian” — to be dispositive of this appeal.

[¶ 10] Section 30.1-28-04(2)(e), N.D.C.C., provides that a court may appoint a guardian upon finding, on clear and convincing evidence, that a proposed ward is an incapacitated person. Section 30.1-28-11(3), N.D.C.C., specifies a priority list for appointment of guardians. Section 30.1-28-11(4), N.D.C.C., provides, in part: “With respect to persons having equal priority, the court shall select the one it deems best qualified to serve.” Elizabeth has never received a fair opportunity to show the court why she should be appointed to serve as Doris Onstad’s guardian. Instead, Judge Backes required Elizabeth to show why the court should remove a guardian and appoint a successor under N.D.C.C. § 30.1-28-07(1).

[¶ 11] In ruling that the question of whom should be appointed as a guardian was not an issue and in dismissing the motion for reconsideration as a matter of law, Judge Backes misperceived the record. Judge Dawson, who originally appointed John and Mary Onstad as guardians, had already granted Elizabeth’s motion for reconsideration after determining she had made the decision without enough information, to give herself “an opportunity to hear more fully both sides,” with enough hearing time to be scheduled “for everybody to be heard.” Thus, Elizabeth’s motion for reconsideration of the appointment of John and Mary Onstad as Doris’ co-guardians and co-conservators had already been granted on due process grounds and the issue of whom should be appointed was properly before Judge Backes. In the procedural posture of this case, we agree with the court in Ellis v. United States, 313 F.3d 636, 646 (1st Cir.2002), noting there is a presumption “that a successor judge should respect the law of the case” and “orderly functioning of the judicial process requires that judges of coordinate jurisdiction honor one another’s orders and revisit them only in special circumstances.”

[¶ 12] The only reason Judge Backes gave for dismissing the motion for reconsideration and limiting the proceeding to removal of the appointed guardians and conservators and appointment of substitutes was because “we’re talking an awful lot about errors that occurred in the initial proceedings, which were appealable, and the Court, of course, is not going to go into those errors.” Judge Dawson had already rejected such an argument by John and Mary Onstad and ordered a new hearing on the question of whom should be appointed as Doris Onstad’s guardian. Furthermore, while N.D.R.Civ.P. 60(b) ordinarily may not be used as a substitute for an appeal or to relieve a party from deliberate choices, Olander Contracting Co. v. Gail Wackier Invs., 2003 ND 100, ¶ 10, 663 N.W.2d 204, that “is not an inflexible rule and in unusual cases a party who has not taken an appeal may obtain relief on a 60(b) motion,” Neubauer v. Neubauer, 524 N.W.2d 593, 595 (N.D. 1994). Courts have an inherent power “to vacate or otherwise grant relief from a judgment in the interest of justice.” Kopp v. Kopp, 2001 ND 41, ¶ 9, 622 N.W.2d 726.

[¶ 13] From our review of the record, we conclude Judge Dawson did not abuse her discretion in granting Elizabeth On-stad’s motion for reconsideration and granting a new hearing on the issue of whom to appoint as Doris Onstad’s guardian. We further conclude Judge Backes erred as a matter of law in concluding that the issue of whom should be appointed as Doris Onstad’s guardian was precluded by Elizabeth’s failure to appeal the initial appointment and in limiting the proceeding to the issue of whether the appointed guardians should be removed and a successor guardian appointed.

[¶ 14] We need not address the other questions raised, which are unnecessary for the determination of this appeal. Huff v. North, Dakota State Bd. of Med. Exam’rs-Investigative Panel B, 2004 ND 225, ¶ 15, 690 N.W.2d 221.

Ill

[¶ 15] The orders appealed from are reversed and the matter is remanded to Judge Dawson for further proceedings in accord with Judge Dawson’s direction at the December 19, 2002 hearing. We express no view on the matter other than to draw to the attention of the parties, as well as the trial court, that neither Judge Dawson’s original order appointing John and Mary Onstad as Doris Onstad’s co-guardians and co-conservators, nor her order holding in abeyance proceedings to evict Elizabeth from Doris’ house have been vacated and they remain in effect pending resolution after remand.

[¶ 16] DONOVAN FOUGHTY, D.J., KIRK SMITH, S.J., BENNY GRAFF, S.J., and DANIEL J. CROTHERS, J., concur.

[¶ 17] The Honorable KIRK SMITH, S.J., the Honorable DONOVAN FOUGHTY, D.J., and the Honorable BENNY GRAFF, S.J., sitting in place of KAPSNER, J., MARING, J., and SAND-STROM, J., disqualified. Justices MAR-ING and SANDSTROM recused themselves following oral argument on June 10, 2005 and the case was reargued on September 1, 2005.

      . Elizabeth Onstad noted in her brief: “Prior to the new hearing, a judge rotation occurred.”

      . This Court has regularly described the law of the case doctrine as “the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.” See, e.g., Robertson v. North Dakota Workers Compensation Bureau, 2000 ND 167, ¶ 18, 616 N.W.2d 844 (citations omitted). We have been less effusive about application of the doctrine in a single proceeding, involving successor judges within a coordinate court. We therefore find it helpful to quote statements from Ellis explaining:
      [T]he law of the case doctrine affords litigants a high degree of certainty as to what claims are-and are not-still open for adjudication. For another thing, it furthers the abiding interest shared by both litigants and the public in finality and repose. Third, it promotes efficiency; a party should be allowed his day in court, but going beyond that point deprives others of their days in court, squanders judicial resources, and breeds undue delay. Fourth, the doctrine increases confidence in the adjudicatory process: reconsideration of previously litigated issues, absent strong justification, spawns inconsistency and threatens the reputation of the judicial system. Finally, judges who too liberally second-guess their co-equals effectively usurp the appellate function and embolden litigants to engage in judge-shopping and similar forms of arbitrage.
      313 F.3d at 647 (internal citations omitted).

        Ellis also illuminates when the law of the case doctrine may permit rulings to be revisited:
      [Tjhere are times when the law of the case may give way. The question of what circumstances justify revisiting a ruling previously made in the same proceeding by a judge of coordinate jurisdiction is case-specific. The resolution of that question is guided, however, by certain general principles. We enumerate those principles.
      First, reconsideration is proper if the initial ruling was made on an inadequate record or was designed to be preliminary or tentative. Second, reconsideration may be warranted if there has been a material change in controlling law. Third, reconsideration may be undertaken if newly discovered evidence bears on the question. Lastly, reconsideration may be appropriate to avoid manifest injustice. In that regard, however, neither doubt about the correctness of a predecessor judge’s rulings nor a belief that the litigant may be able to make a more convincing argument the second time around will suffice to justify reconsideration. For this purpose, there is a meaningful difference between an arguably erroneous ruling (which does not justify re-visitation by a co-equal successor judge) and an unreasonable ruling that paves the way for a manifestly unjust result.
      313 F.3d at 647-48 (internal citations omitted).


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2005 ND 166
    Bruce SAYLER, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050048.
    Supreme Court of North Dakota.
    Sept. 27, 2005.
    Rehearing Denied Oct. 18, 2005.

      Todd A. Schwarz, Bismarck, ND, for petitioner and appellant.
    Walter M. Lipp, State’s Attorney, McClusky, ND, for respondent and appel-lee.
   KAPSNER, Justice.

[¶ 1] Bruce Sayler appeals the district court order denying post-conviction relief. Because Sayler failed to meet his burden of proving ineffective assistance of counsel, we affirm.

I.

[¶ 2] In August 2003, Estel Naser and Sayler drove from McClusky to Bismarck for Sayler’s follow-up appointment at the Bone and Spine Clinic. Sayler, who had recently undergone rotator cuff surgery, was to have the stitches on his shoulder removed. Following the surgery, Sayler had received a prescription for Hydroco-done (Vieodin), a pain medication. After Sayler’s follow-up visit, he received a prescription for forty pills of Oxycodone (Per-cocet), a pain medication with a higher potency level. On the car ride to Bismarck, Sayler told Naser the reason Say-ler wished to receive a refill on his pain medication was to sell the pills, not because he was in pain.

[¶ 3] When Sayler returned to McClusky, he went to Barry Froehlich’s residence where they began drinking heavily. Sayler left Froehlich’s house leaving his prescription pills behind. Later that evening, Froehlich placed the prescription medication in a plastic container on a shelf in his house.

[¶ 4] A search warrant was issued to search Froehlich’s house. The Oxycodone pills were found in Froehlich’s house in a cabinet at the top of the stairs leading to the basement. Froehlich later pleaded guilty to possessing the Oxycodone pills with the name “Bruce Sayler” on the label.

[¶ 5] Sayler was convicted by a jury in Sheridan County on April 20, 2004, of two counts: acquiring a controlled substance by deception in violation of N.D.C.C. § 19-03.1 — 25(l)(c), a class C felony, and delivering a schedule II controlled substance in violation of N.D.C.C. § 19-03.1-23, a class AA felony. Trial counsel was appointed for Sayler.

[¶ 6] A day after a guilty verdict was returned, Sayler wrote a letter to Judge Burt L. Riskedahl claiming his trial counsel was “Totaly [sic] Incompatain [sic] at my Trail [sic].” Sayler further stated in his letter that trial counsel failed to make numerous objections and that Naser should not have been allowed to testify because his mental capacity was lacking. Another attorney was then appointed as counsel for Sayler. While no direct appeal was taken of the criminal convictions, Say-ler’s attorney did file a post-conviction relief action arguing, among other things, ineffective assistance of trial counsel.

[¶ 7] On January 4, 2005, a hearing was held in front of Judge Riskedahl on Say-ler’s petition for post-conviction relief. At the hearing, Billie Rud, a nurse practitioner at Medcenter One, testified that Dr. Philip Gattey performed the arthroscopic rotator cuff surgery. Rud testified to the painful nature of the surgery and the typical medication following a rotator cuff surgery. In response to a question regarding the type of prescription based on the level of pain, she testified that “you don’t really judge [pain] by how they move. You judge [pain] by what they tell you.”

[¶ 8] Several issues were raised at the post-conviction hearing, but on appeal, the only issue raised by Sayler is whether the failure to call a witness constitutes ineffective assistance of counsel.

II.

[¶ 9] Following Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court applies a two-part test to evaluate ineffective assistance of counsel claims. Heckelsmiller v. State, 2004 ND 191, ¶ 3, 687 N.W.2d 454. The test requires the defendant to show that counsel’s representation was objectively unreasonable and that the defendant was prejudiced by counsel’s deficient performance. Id. The unreasonableness prong requires that a defendant overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052). The prejudice prong requires proof that, “but for his counsel’s errors, the result of the proceeding would have been different.” Id. at ¶ 4. The Strickland test has been described by this Court as a “heavy, demanding burden.” Id.

[¶ 10] Matters of trial tactics, such as whether to call a certain witness, are not to be second guessed on appeal. Mathre v. State, 2000 ND 201, ¶ 7, 619 N.W.2d 627; Stoppleworth v. State, 501 N.W.2d 325, 328 (N.D.1993). This Court’s role is not to superimpose our collective judgment upon that of a trial counsel on a tactical decision as to whether a witness should testify. Smith v. Woodley, 164 N.W.2d 594, 598 (N.D.1969). But we have noted that a trial counsel’s failure to have a critical witness testify, coupled with other errors committed by counsel, can result in a denial of effective assistance of counsel. Heckelsmiller, 2004 ND 191, ¶¶ 11-12, 687 N.W.2d 454. When arguing that it was ineffective representation to fail to call a witness, a defendant must show how any additional witnesses would have aided the defense’s claim. Damron v. State, 2003 ND 102, ¶ 16, 663 N.W.2d 650 (citing State v. Wolf, 347 N.W.2d 573, 575 (N.D.1984)).

[¶ 11] Sayler argues that he has met his burden of proof on both prongs of the Strickland test with respect to both the delivery charge and the acquiring a prescription by deception charge. According to Sayler, a jury would find him not guilty on both of his charges had a treating physician or nurse practitioner testified at his trial.

[¶ 12] Sayler’s quixotic argument on his delivery charge is completely without merit. We do not see how a medical expert’s testimony could have aided a jury’s decision on whether Sayler delivered the prescription medication to Froehlich. Thus, only Sayler’s charge of acquiring the drug by deception will be analyzed under the two-prong Strickland standard.

A.

[¶ 13] We must first determine whether trial counsel’s failure to call a medical expert as a witness was objectively unreasonable. Sayler’s trial counsel did not testify at the post-conviction hearing. Without having trial counsel testify, the district court was left in a difficult position to evaluate whether trial counsel’s decision not to have a treating physician testify was trial strategy or an oversight. Trial counsel stated his reason for not calling a medical expert in a letter sent to the court after the petition for post-conviction relief was filed. There is no evidence in Judge Risk-edahl’s memorandum opinion that he relied on trial counsel’s letter, and the letter is not part of the evidentiary record in this matter. Without proper introduction into evidence, neither the trial court nor this Court can consider the assertions in the letter of trial counsel.

[¶ 14] While there was no direct evidence of trial counsel’s motivation in not calling a medical expert, Judge Riskedahl had ample basis to support his conclusion that an additional witness would not have affected the outcome of the trial. Judge Riskedahl presided over the trial, reviewed the transcript, and considered additional evidence at the post-conviction hearing before making his decision to deny Sayler’s petition for post-conviction relief.

[¶ 15] Rud’s testimony at the post-conviction hearing was that a post-operative prescription for Oxycodone is customary following a rotator cuff surgery. She testified that she always prescribes “at least Percocet or Hydrocodone for post-operative surgery like [Sayler] had.” And that “we’ve never performed that surgery and not given somebody a narcotic for at least a month after surgery, or more.” Rud’s testimony, while informative of typical medical procedure, does not go to the key question on the deception charge. Assuming the prescription to be medically appropriate and typical under the circumstances, the testimony does not address the element of Sayler’s intent.

[¶ 16] We have noted the importance of looking to the crime charged to determine whether a witness’s testimony is critical to the outcome of the case. Heckelsmiller, 2004 ND 191, ¶ 12, 687 N.W.2d 454. Specifically, a witness’s testimony on an essential element of a crime or a defense to a crime can be highly relevant testimony.

[¶ 17] In Heckelsmiller, the defendant entered into his uncle’s trailer house through a back window and was subsequently arrested and convicted of criminal trespass. Id. at ¶ 2. An essential element in the trespass charge was whether the defendant entered into the trailer house knowing that he was not privileged to do so. Id. at ¶ 12. We held that the defendant received ineffective assistance of counsel when counsel, changing trial strategies mid-stream, failed to sequester key witnesses in the defendant’s case and failed to make an offer of proof as to what the critical testimony would have been. The witnesses in Heckelsmiller would have corroborated the defendant’s testimony that he was privileged to enter his uncle’s trailer house. We reversed and remanded for a new trial based partly on the failure to call a critical witness, but also due to the combination of trial counsel errors.

[¶ 18] But in this case there was no offered testimony at the post-conviction hearing on the essential element of Say-ler’s intent. Sayler was charged with acquiring “a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.” N.D.C.C. § 19 — 03.1—25(l)(e). Although nurse practitioner Rud testified to the normal course of drug prescription following the surgery Sayler had, she did not testify regarding Sayler’s intent to take the drugs or to use them for some other purpose. Unlike in Heckelsmiller, nurse practitioner Rud’s testimony was not critical to an element of Sayler’s defense. Thus, we cannot say counsel’s failure to have a medical expert testify was objectively unreasonable.

B.

[¶ 19] Even assuming the trial counsel’s conduct was objectively unreasonable, Sayler must also show specifically how he was prejudiced and that the outcome of the case would be different absent those perceived errors.

[¶ 20] The jury in this case had ample evidence to support the conviction. The jury heard testimony from Sayler’s friend Naser that Sayler had an intent to deceive and did not need the prescription.

Q. Did you discuss with him on the trip down the relationship of the pain to the exercises?
A. Mm-hmm.
Q. And what did he say about the pain ' and his exercises?
A. Well, he said that it was gone, that he wasn’t having any pain any more.
Q. What, if anything, did Bruce Sayler say that he was going to tell the doctor about his pain?
A. He was going to tell him he had pain so he could get another bottle of his pills.
Q. Did you discuss with Bruce Sayler what he was going to do with the pills once he received them?
A. I never asked Bruce, you know. I never asked him any questions, but, yeah, he told me that he needed some money, and he was going to sell them to Barry.
Q. Did he say what price he hoped to receive for the pills?
A. $5 a pill.

[¶ 21] Sayler’s lack of need for the prescription is further corroborated by Froeh-lich pleading guilty to a possession charge and finding Sayler’s prescription at Froeh-lich’s house in a plastic container hidden on Froehlich’s shelf.

[¶ 22] Even if the jury heard testimony of nurse practitioner Rud that the prescription was customary following this type of surgery, the jury could still convict Say-ler on the deception charge based on the evidence presented at trial. There was no offer by Sayler that any additional witness would present helpful testimony on his intent. We cannot say the outcome would be different with the additional testimony of a medical expert describing the typical prescription of pain medication.

III.

[¶ 23] The district court, concluding Sayler did not receive ineffective assistance of counsel, properly analyzed the Strickland prongs. We affirm.

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


author: CROTHERS, Justice. KAPSNER, Justice,

text:
    2005 ND 167
    STATE of North Dakota, Plaintiff and Appellant v. Paul R. FRANKFURTH, Defendant and Appellee.
    No. 20050112.
    Supreme Court of North Dakota.
    Sept. 27, 2005.

      Cynthia M. Feland, Assistant State’s Attorney, Burleigh County Courthouse, Bismarck, N.D., for plaintiff and appellant.
    Thomas M. Tuntland, Mandan, N.D., for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] The State appeals from the district court’s order arresting judgment and subsequent orders granting reconsideration and clarification pertaining to Paul R. Frankfurth’s conviction for gross sexual imposition. We affirm.

I

[¶ 2] Frankfurth was arraigned on March 24, 2004, under an information purporting to charge him with gross sexual imposition under N.D.C.C. § 12.1-20-03. The information alleged, “The defendant engaged in a sexual act at a time when the victim was unaware that a sexual act was being committed on her.” On December 3, 2004, a jury trial was held, returning a guilty verdict.

[¶ 3] Frankfurth timely moved for arrest of judgment prior to sentencing, asserting the information lacked an essential element of the offense and, thus, failed to charge a crime. Frankfurth argued the information lacked a specific allegation that he had knowledge of his victim’s unawareness that a sexual act was being perpetrated on her. See N.D.C.C. § 12.1-20 — 03(l)(c) (gross sexual imposition is committed if “a person ... engages in a sexual act with another ... [and] he knows that the victim is unaware that a sexual act is being committed upon him or her.” (Emphasis added.)).

[¶ 4] The district court granted the motion, dismissing the charges with prejudice. Dismissal was amended to be without prejudice following motions made by the State for reconsideration and clarification; however, the district court would not reinstate the jury verdict.

II

[¶ 5] The State argues the information was not defective because it properly notified Frankfurth of the charges against him and any missing elements could be implied from the face of the information.

[¶ 6] This Court has stated technical defects in an information are not fatal to its validity. City of Grand Forks v. Mata, 517 N.W.2d 626, 628 (N.D.1994); City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 333 (N.D.1990). Furthermore, Sixth Amendment notice requirements are satisfied, provided a criminal information is sufficiently specific to provide the defendant with notice of the pending charges and to enable the defendant to prepare a defense. Mata, 517 N.W.2d at 628. The State reasons the language used, plus the inclusion of the citation for the statute violated, constituted sufficient and appropriate notice to the defendant. We disagree.

[¶ 7] An information must contain a “written statement of the essential elements of the offense.” State v. Gwyther, 1999 ND 15, ¶ 15, 589 N.W.2d 575 (quoting Mata, 517 N.W.2d at 628 and Desjarlais, 458 N.W.2d at 333); N.D.R.Crim.P. 7(c) (an information must be a “plain, concise, and definite written statement of the essential facts constituting the offense charged”). North Dakota has legislatively established the term “element of an offense” to mean:

a. The forbidden conduct;
b. The attendant circumstances specified in the definition and grading of the offense;
c. The required culpability;
d. Any required result; and
e. The nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.

N.D.C.C. § 12.1-01-03(1).

[¶ 8] This Court has held that the culpability element may be implied in some circumstances. State v. Hendrick, 164 N.W.2d 57, 63 (N.D.1969). In Hendrick, we inferred the element of “intent to escape therefrom” from the word “escape” on a criminal information. Id. However, in State v. Mutschler, 55 N.D. 120, 212 N.W. 832, 833 (N.D.1927), the phrase “willfully, unlawfully, and feloniously set fire to and burn” was not interpreted to charge the essential element of “malice.”

[¶ 9] Here, the State argues the words “engaged” and “committed” as used in the information imply intentional, rather than accidental, conduct. The State’s conclusion may very well be correct and, if only pertained to culpability, might be consistent with our holding in Hendrick, 164 N.W.2d at 63. However, the State fails to explain how this inference supplies the necessary element of the defendant’s knowledge that the victim was unaware a sexual act was being committed upon her. Even the most liberal interpretation of the information fails to lead this Court to the conclusion that the defendant’s knowledge of the victim’s unawareness can be inferred from the face of the information.

[¶ 10] We conclude Frankfurth’s knowledge of the victim’s unawareness was an essential element of the offense charged and could not be inferred. Because it was missing from the information, the criminal information was defective.

Ill

[¶ 11] The State argues Frankfurth improperly moved for arrest of judgment; therefore, such an Order was improper because Frankfurth’s motion was neither timely nor based on adequate grounds.

[¶ 12] The State first claims Frankfurth waived his objection to the information when he failed to seek pretrial relief. Rule 12(b), N.D.R.Crim.P., requires certain motions be made before trial, or they are waived. See State v. Neset, 462 N.W.2d 175, 176-77 (N.D.1990). Specifically, the following must be raised pretrial: “Defenses and objections based on defects in the indictment, information, or complaint other than that it fails to show jurisdiction in the court or to charge an offense, which objections must be noticed by the court at any time during the pen-dency of the proceeding.” N.D.R.Crim.P. 12(b)(2).

[¶ 13] Either of the grounds excepted from the Rule 12(b) pretrial filing requirement — the failure to show jurisdiction or failure to charge an offense — form a basis under Rule 34, N.D.R.Crim.P., for a post-trial motion to arrest judgment. Therefore, Rule 34 is consistent with Rule 12, allowing motions for arrest of judgment to be filed within seven days of a verdict or finding of guilty.

[¶ 14] Frankfurth argues adequate grounds existed for arrest of judgment because Rule 34, N.D.R.Crim.P., requires a court to arrest judgment if the information does not charge an offense or if the court did not have jurisdiction over the offense. Frankfurth argues both conditions were present in this case.

[¶ 15] Frankfurth claims the defective information prevented the district court from acquiring jurisdiction over him. Frankfurth’s argument that jurisdiction did not exist over his person or the crime charged is largely based on the holding in People v. Mack, 24 Ill.App.3d 455, 321 N.E.2d 446, 449 (1974). In Mack, a missing intent element in an information purporting to charge the defendant with attempted rape was deemed a flaw depriving the trial court of jurisdiction. Id. That holding, however, appears to be a throwback to the “somewhat expansive notion of ‘jurisdiction’ which was ‘more a fiction than anything else.’ ” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal citations omitted).

[¶ 16] In Cotton, the United States Supreme Court reinstated a conviction following dismissal by the Fourth Circuit Court of Appeals based on the thought that a defect in an indictment deprived the court of jurisdiction. 535 U.S. at 628-29, 122 S.Ct. 1781. Explaining the flaws of the precedent relied on, the Court explained:

[Earlier precedent’s] elastic concept of jurisdiction is not what the term “jurisdiction” means today, i.e., “the courts’ statutory or constitutional power to adjudicate a case.” This latter concept of subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.... [D]efects in [a charging instrument] do not deprive a court of its power to adjudicate a case.

Id. at 630, 122 S.Ct. 1781 (emphasis in original) (internal citations omitted).

[¶ 17] Cotton is consistent with our holding in Reichert v. Turner, 62 N.D. 152, 242 N.W. 308 (N.D.1932), where we held jurisdiction is not lost because of errors in an information if jurisdiction exists over the crime intended to be charged. Therefore, we conclude the district court had jurisdiction over Frankfurth and this matter, notwithstanding the defective information.

[¶ 18] Frankfurth argues in the alternative that even if jurisdiction existed, the criminal information failed to charge an offense. We concluded above the information was lacking essential elements and was therefore defective. These defects failed to charge Frankfurth with the offense of gross sexual imposition or, in fact, any crime cognizable under the laws of North Dakota.

[¶ 19] Because failure to charge an offense is a valid ground for arrest of judgment under Rule 34, N.D.R.Crim.P., and Frankfurth’s Rule 34 motion was timely made, the State’s Rule 12 argument is rejected.

IV

[¶ 20] The State further argues dismissal of the information was an inappropriate remedy, despite its defects. The State rests its contention on the inapplicability of the Fifth Amendment’s indictment clause to the states and the district court’s failure to conduct a harmless/obvious error analysis under N.D.R.Crim.P. 52.

[¶ 21] At the outset, judicial decisions uniformly hold that the right to indictment by a grand jury under the Fifth Amendment to the United States Constitution is not applicable to state court proceedings. 38 Am.Jur.2d Grand Jury § 2 (2004); see, e.g., Hurtado v. California, 110 U.S. 516, 4 S.Ct. Ill, 28 L.Ed. 232 (1884). We have not been provided with a contrary argument and, therefore, decline to hold otherwise.

[¶ 22] Rule 52, N.D.R.Crim.P., allows appellate court review of obvious errors or defects affecting substantial rights, regardless of whether they were brought to the trial court’s attention. Harmless errors, however, are to be disregarded. Id.

[¶ 23] The Court in Cotton analyzed the federal counterpart to N.D.R.Crim.P. 52 and stated that in order for an error to be noticed and corrected by an appellate court, a four-prong error test must be satisfied. Cotton, 535 U.S. at 631, 122 S.Ct. 1781. The test requires (1) error, (2) that is plain, which (3) affects substantial rights, and (4) seriously affects the fairness, integrity, or reputation of judicial proceedings. Id. To affect the “substantial rights” of a defendant, an obvious error must have been prejudicial or have affected the outcome of the proceedings. State v. Krull, 2005 ND 63, ¶ 6, 693 N.W.2d 631.

[¶24] The State claims dismissal was improper because Frankfurth’s substantial rights were not affected by the defective information. The State cites as support the fact that the jury convicted Frankfurth after being properly instructed on all essential elements of the offense. Thus, even though the information did not contain the words “he knows,” any error was harmless. The State argues Frankfurth knew the crime he was charged with committing, he was tried on that charge, and the jury received the proper law on the charge, including all essential elements.

[¶ 25] A defective information cannot be “cured” through proper jury instruction or other means short of amendment. See United States v. Denmon, 483 F.2d 1093, 1095 (8th Cir.1973); State v. Howell, 226 Kan. 511, 601 P.2d 1141, 1143-44 (1979). Moreover, the State does not direct us to any cases involving a state’s appeal from an order arresting judgment in which this or any Court conducted a Rule 52 analysis, and we have found none.

[¶26] Rule 12(b), N.D.R.CriimP., allows, and Rule 34, N.D.R.Crim.P., requires arrest of judgment when no offense is charged. Here, Frankfurth’s motion was timely made and was granted by the district court. A Rule 52 analysis was not required and will not be imposed by this Court as it would be tantamount to a repeal of N.D.R.Crim.P. 34.

V

[¶ 27] Frankfurth’s various arguments on appeal implicitly raise a question about the status of the charge against him if the district court’s decision is affirmed. Although not central to this appeal, we address issues that may reasonably arise upon retrial and subsequent proceedings in the district court. Olmstead v. Miller, 383 N.W.2d 817, 823 (N.D.1986).

[¶ 28] Upon arrest of judgment, Frank-furth was placed in the same position he would have been had no crime been charged because, in fact, no crime had been charged. The effect of an order arresting judgment is “to place the defendant in the same situation in which he was before the information was filed.” N.D.C.C. § 29-25-05. Therefore, Frankfurth may be reprosecuted under a new information as if there had been no prior proceedings. Montana v. Hall, 481 U.S. 400, 404, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987); 21 Am.Jur.2d Criminal Law § 419 (2004).

[¶ 29] The orders of the district court are affirmed.

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

KAPSNER, Justice,

concurring.

[¶ 31] I agree with the conclusion that the district court did not err when it arrested judgment. For the crime of gross sexual imposition under N.D.C.C. § 12.1-20-03(l)(c), “knowing” the victim was unaware of the sexual act is an element of an offense as defined by our legislature. N.D.C.C. § 12.1 — 01—03(l)(c). Under N.D.R.Crim.P. 7(c), this element must be in the information. Failure to charge an offense is a basis for an arrest of judgment under N.D.R.Crim.P. 34. I write separately to note my belief that this decision should not preclude district courts from analyzing the failure to include an essential element in an information under harmless error. N.D.R.Crim.P. 52(a).

[¶ 32] Under a harmless error analysis, the failure to include the phrase “he knows” in an information may, when the entire record is examined, be harmless. N.D.R.Crim.P. 52(a) provides: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” In this case, if the district court had applied a harmless error analysis, the failure to include the knowing requirement in the information may very well have been determined not to affect the substantial rights of Frankfurth. The jury instructions included the requirement that Frankfurth must have known the victim was unaware of the sexual act. Based on proper jury instructions that recognized all of the essential elements of the crime, a unanimous jury returned a verdict that Frankfurth was guilty. Furthermore, the statute was referenced in the information and thus Frankfurth had notice of the crime for which he was charged. There is no evidence on the record that Frankfurth relied on the insufficient information to his detriment. To the contrary, it is apparent from the record and the oral argument before this Court that Frankfurth was aware of the error in the information and was not prejudiced by the error.

[¶ 33] The information could have been amended up until the time the verdict was rendered. N.D.R.Crim.P. 7(e). Although he was not required by N.D.R.Crim.P. 12 to raise the issue of a defective information, Frankfurth did not raise it until after the jury found him guilty and the prosecution made no motion to amend the information. Still, Frankfurth wins the right to a retrial of his case because of a prosecuto-rial mistake.

[¶ 34] This is precisely the type of issue N.D.R.Crim.P. 52(a) was meant to address. The harmless error doctrine “recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial.” Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

[¶ 35] Our case law recognizes that even “constitutional errors do not automatically require reversal if it is shown they were harmless.” City of Bismarck v. Judkins, 2005 ND 143, ¶ 7, 701 N.W.2d 911. Harmless error analysis is already used for a broad range of issues. See, e.g., Clark v. State, 2001 ND 9, ¶ 16, 621 N.W.2d 576 (imposing an enhanced sentence without having a jury find the predicate facts supporting the enhanced sentence was harmless error); State v. Syvertson, 1999 ND 134, ¶¶ 37-38, 597 N.W.2d 652 (violating the right against self-incrimination was subject to harmless error); State v. Sheldon, 301 N.W.2d 604, 613 (N.D.1980) (failing to give proper jury instructions was harmless error). Why should the adequacy of a criminal information be analyzed any differently? “If the harmless error doctrine is to be applied to a constitutional error, then it should be applied fairly and across the board to any constitutional error amenable to a harmless error analysis.” State v. Guzman, 119 Wash.App. 176, 79 P.3d 990, 996 (2003) (Sweeney, J., concurring) (arguing that harmless error analysis should be used for a defective information where proper jury instructions existed).

[¶ 36] There are, of course, certain errors that cannot be considered harmless. But such errors “infect the entire trial process” and “necessarily render [the whole] trial fundamentally unfair.” Neder, 527 U.S. at 8, 119 S.Ct. 1827. In State v. Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635, for example, we said the violation of Sixth Amendment right to effective assistance of counsel “can never be treated as harmless error.” Drafting an insufficient charging document would not be harmless error under N.D.R.Crim.P. 52(a) if the defendant relied on the document to his detriment or was otherwise prejudiced.

[¶ 37] Paragraph 25 of the majority opinion cites to two cases that apparently stand for the proposition that a defective information cannot be “cured” through proper jury instructions. See supra at ¶ 25 (citing United States v. Denmon, 483 F.2d 1093, 1095 (8th Cir.1973); State v. Howell, 226 Kan. 511, 601 P.2d 1141,1143-44 (1979)). But neither case, nor any case cited by the majority, precludes the use of harmless error analysis. Comparable errors in the indictment in the federal system are subjected to a Fed.R.Crim.P. 52 analysis. See, e.g., United States v. Cotton, 535 U.S. 625, 629, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (applying a Fed. R.Crim.P. 52 analysis and concluding , an omission in a federal indictment of a fact that enhanced the statutory, maximum sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not require reversal because the evidence was overwhelming); United States v. Prentiss, 256 F.3d 971, 981 (10th Cir.2001) (en banc) (holding the “failure of an indictment to allege an essential element of a crime does not deprive a district court of subject matter jurisdiction; rather, such failure is subject to harmless error review”).

[¶ 38] As we have stated, the primary purpose of the complaint or information is to inform the accused of the charges against him to enable him to prepare for trial. City of West Fargo v. Hawkins, 2000 ND 168, ¶ 8, 616 N.W.2d 856. There is nothing in this record to suggest that Frankfurth was not adequately informed of the crime charged or that he was not prepared for trial. Because of this, a retrial is an inefficient and ineffective use of judicial resources and provides incentives for defendants to withhold raising a defective information until after a verdict is entered. “Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” Neder, 527 U.S. at 18,119 S.Ct. 1827 (citing Roger J. Traynor, The Riddle of Harmless Error 50 (1970)).

[¶ 39] If the district court had subjected the error in the charging document to a N.D.R.Crim.P. 52(a) analysis and found that the error did not affect the substantial rights of the defendant, I am convinced on the record we have that such a decision could be affirmed. However, the district court applied a strict interpretation of N.D.R.Crim.P. 34 and it was not error to do so.

[¶ 40] Carol Ronning Kapsner

      . N.D.R.Crim.P. 52 differs from F.R.Crim.P. 52 only in its substitution of the word “obvious” for ''plain.”