                Filed 06/02/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 121



State of North Dakota,                                 Plaintiff and Appellee
      v.
James Lee McGowen,                                 Defendant and Appellant



                                No. 20190225

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Douglas A. Bahr, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

Dennis H. Ingold, Assistant State’s Attorney, Bismarck, ND, for plaintiff and
appellee.
                            State v. McGowen
                              No. 20190225

Crothers, Justice.

[¶1] James McGowen, a/k/a James McGowan, appeals from the amended
criminal judgment finding him guilty of two counts of simple assault on a
corrections officer and ordering $1,855.31 in restitution. We affirm.

                                     I

[¶2] On February 22, 2019, McGowen was brought from a holding cell at the
Burleigh-Morton County Detention Center into the booking area. Detention
officer Behrens asked McGowen booking questions. McGowen became agitated
and angry. Correctional officers Psyck and Beine walked around the corner to
assist, and Psyck attempted to restrain McGowen with handcuffs. Psyck felt
something hit him in the face and believed McGowen punched him. In order to
restrain McGowen, Beine tackled McGowen and Psyck. McGowen continued to
attack Psyck as they fell to the ground. On the ground McGowen continued to
flail and swing punches.

[¶3] McGowen was charged with two counts of simple assault on corrections
officers Psyck and Beine. A jury found McGowen guilty on both counts.
Restitution was left open for 60 days. McGowen appealed the criminal
judgment. The State moved to amend the criminal judgment to include
$1,855.31 in restitution. The case was remanded to the district court for a
restitution hearing, which was held on September 9, 2019. The State called a
paralegal at Workforce Safety & Insurance (WSI). She testified she did not
determine whether WSI would pay for the officers’ injuries or approve the
payments for the officers’ medical treatments. The State requested a
continuance to secure testimony of the individual at WSI who made decisions
about WSI’s payments for the officers’ injuries. McGowen objected to the
continuance. The district court continued the first hearing. After a second
hearing on September 26, 2019, and testimony from another witness at WSI,
the district court ordered restitution of $1,855.31.




                                     1
[¶4] McGowen argues evidence was insufficient to convict him, and the
district court abused its discretion by continuing the restitution hearing, and
by ordering $1,855.31 in restitution.

                                       II

[¶5] McGowen argues evidence was insufficient to sustain his convictions.
The State argues it presented sufficient evidence at trial for the jury to convict
McGowen. We affirm both counts of simple assault on a corrections officer.

[¶6] “The appellate standard of review for a claim of insufficiency of the
evidence is well established. A defendant challenging the sufficiency of the
evidence on appeal ‘must show that the evidence, when viewed in the light
most favorable to the verdict, reveals no reasonable inference of guilt.’” State
v. Mohammed, 2020 ND 52, ¶ 5, 939 N.W.2d 498 (citing State v. Jacobson, 419
N.W.2d 899, 901 (N.D. 1988)). “This Court’s role is ‘to merely review the record
to determine if there is competent evidence that allowed the jury to draw an
inference “reasonably tending to prove guilt and fairly warranting a
conviction.’’’” Id. (quoting State v. Matuska, 379 N.W.2d 273, 275 (N.D. 1985)).
“The Court does not weigh conflicting evidence or judge the credibility of
witnesses.” Mohammed, at ¶ 5, (citing State v. Brandner, 551 N.W.2d 284, 286
(N.D. 1996)).

[¶7] Section 12.1-17-01, N.D.C.C., provides the requirements for simple
assault. In pertinent part it states:

      “1. A person is guilty of an offense if that person:
      a. Willfully causes bodily injury to another human being; or
      ....
      2. The offense is:
      a. A class C felony when the victim is a peace officer or correctional
      institution employee acting in an official capacity, which the actor
      knows to be a fact; . . . .”

The criminal code defines “willfully” as “if he engages in the conduct
intentionally, knowingly, or recklessly.” N.D.C.C. § 12.1-02-02(e). N.D.C.C. §
12.1-02-02, defines intentionally, knowingly, or recklessly as:


                                        2
      “a. ‘Intentionally’ if, when he engages in the conduct, it is his
      purpose to do so.
      b. ‘Knowingly’ if, when he engages in the conduct, he knows or has
      a firm belief, unaccompanied by substantial doubt, that he is doing
      so, whether or not it is his purpose to do so.
      c. ‘Recklessly’ if he engages in the conduct in conscious and clearly
      unjustifiable disregard of a substantial likelihood of the existence
      of the relevant facts or risks, such disregard involving a gross
      deviation from acceptable standards of conduct, except that, as
      provided in section 12.1-04-02, awareness of the risk is not
      required where its absence is due to self-induced intoxication.”

“Bodily injury” is defined as “any impairment of physical condition, including
physical pain.” N.D.C.C. § 12.1-01-04(4).

[¶8] “The defendant bears the burden of showing the evidence reveals no
reasonable inference of guilt when viewed in the light most favorable to the
verdict.” State v. Demarais, 2009 ND 143, ¶ 7, 770 N.W.2d 246. “A conviction
rests upon insufficient evidence only when no rational fact finder could have
found the defendant guilty beyond a reasonable doubt after viewing the
evidence in a light most favorable to the prosecution and giving the prosecution
the benefit of all inferences reasonably to be drawn in its favor.” State v.
Crissler, 2017 ND 249, ¶ 10, 902 N.W.2d 925 (citing State v. Knowels, 2003 ND
180, ¶ 6, 671 N.W.2d 816 (internal citations and quotation marks omitted).

                                       A

[¶9] Psyck testified that when Beine put a hand on McGowen’s shoulder to
handcuff him McGowen came at him and attacked him. He also testified, “At
one point, I believe [he] punched me in the face. So very, very aggressive
behavior. I mean, he was trying to hurt me.” Psyck was asked, “Why do you
say you believed he punched you in the face?” He answered, “There was a lot
of movement, a lot of things going on in a very short period of time and through
the course—through the course of it, other things hurt a lot worse than getting
punched in the face.” Ms. Lawyer also asked, “Okay. So you felt something hit
your face?” Psyck responded, “Yes.” Psyck also testified he pushed McGowen
into the wall and attempted to restrain McGowen. Then Beine tackled


                                       3
McGowen and both of them landed on top of Psyck. Psyck testified, “he was
attacking me as we were getting—as we were falling over.” He also stated he
“landed face first, little on my side, but I landed on my elbow, my elbow and
my shoulder.” He also testified that once on the ground he believed McGowen
was still attempting to throw punches at him, and he tried to cross his arms
around McGowen’s head and neck so McGowen could not punch him.

[¶10] Psyck testified he had pain in his hips, right leg, left and right shoulders,
left elbow, face, and head and neck, and he was wearing the same uniform he
was wearing in court.

[¶11] Beine testified McGowen had his arms inside of his shirt out of his
sleeves to stay warm, and as they walked towards McGowen he put his arms
back into the sleeves and clenched his fists and “took a bladed stance.” Beine
described “bladed stance” as when “[y]ou put one foot forward and you kind of
at an angle towards someone so you can—it’s like a fighting stance.” Beine also
testified McGowen started making comments similar to, “I can see you coming
up on me. Like you don’t want to do that.”

[¶12] Beine testified he reached for McGowen’s arm to turn him so Psyck could
handcuff him and bring him to the detox cell to cool off. Beine testified when
the handcuffs came out McGowen put his head down and charged at Psyck. He
testified McGowen ran into Psyck and “he started swinging and trying to throw
punches.” After the three individuals were on the floor, officer Beine testified
McGowen continued to struggle and “he was still trying to swing I think . . . .
Like I would hold his arms and his legs and he would just fight every place we
tried to put it.”

[¶13] Behrens testified she ran over and “saw the Defendant assaulting Officer
Dave [Psyck].” Ms. Lawyer asked, “And how was he doing that?” She testified,
“He was trying to throw punches and trying to kick and just he wouldn’t stop
moving his body and Officer Beine was also on top of both of them too. I just
saw them struggling.” In addition to the testimony, the jury also watched a
video of the event.




                                        4
[¶14] The officers’ testimony plus the video provide sufficient evidence for the
jury to draw an inference reasonably tending to prove guilt and fairly
warranting a conviction. We affirm the simple assault on Psyck, a corrections
officer.

                                        B

[¶15] In addition to the evidence outlined under Psyck’s analysis, Beine
testified he was the officer who assisted McGowen to the booking area, he was
wearing a tan button-up shirt with his name, a badge, brown pants and black
boots, and a patch on the shoulder of the shirt that stated, “Burleigh County
Sheriff’s Department.”

[¶16] Beine testified he had a head injury from the incident which was either
from “hitting both of them when I tackled them or catching a swing when we
hit the ground. I can’t recall. I couldn’t tell you.” He testified he was
transported to the emergency room because when he was trying to write his
report he started having headaches and felt dizzy.

[¶17] The officers’ testimony plus the video provide sufficient evidence for the
jury to infer guilt that McGowen willfully caused bodily injury to Beine, and
McGowen knew Beine was a correctional institution employee acting in an
official capacity. We affirm.

                                      III

[¶18] McGowen argues the district court abused its discretion in granting a
continuance because it did not do a “good cause” analysis, but rather focused
on prejudice to the defendant. McGowen further argues the district court
abused its discretion in granting the continuance and reopening evidence
because it did not remain neutral. The State argues the district court did not
abuse its discretion in granting the continuance because the court employed a
reasonable process given the competing interests involved. We conclude the
district court did not abuse its discretion when it granted the continuance.

[¶19] “The decision to grant or deny a motion for a continuance rests with the
district court.” Everett v. State, 2008 ND 199, ¶ 25, 757 N.W.2d 530 (citing State

                                        5
v. Kunkel, 452 N.W.2d 337, 339 (N.D. 1990)). “We review a district court’s
decision to grant a continuance under an abuse of discretion standard.” Id. “A
district court abuses its discretion by acting unreasonably, arbitrarily, or
unconscionably.” Id. “When reviewing a trial court’s decision on a motion for
continuance, an appellate court must look to the particular facts and
circumstances of each case as there is no mechanical test for determining
whether or not a trial court abused its discretion.” Kunkel, at 339.

[¶20] Rule 6.1(b), N.D.R.Ct., controls motions for continuance and states:

      “Other Continuances. Motions for continuance shall be
      promptly filed as soon as the grounds therefor are known and will
      be granted only for good cause shown, either by affidavit or
      otherwise. Stipulations for continuance will not be recognized
      except for good cause shown. Every continuance granted upon
      motion must be to a future date consistent with the docket
      currency standards for district courts, except for good cause
      shown.”

[¶21] At the first restitution hearing McGowen’s counsel, Mr. Balzer, disputed
the amounts requested and challenged the lack of medical testimony given.
The State responded and argued their witness testified to the date of injury,
and that services were approved and reviewed by WSI. The district court
inquired, “but what about someone who actually reviewed and approved
payment of the claims instead of someone who just added them up at the end?”
In response the State asked for a continuance to have that person appear and
explained why the witness who testified was chosen. The district court noted
that the burden was a preponderance of the evidence and explained its concern
that there was no explanation of why WSI made the determinations. The
district court then stated, “So, Mr. Balzer, the State has, in essence, based upon
the Court’s tentative ruling, asked for a continuance to continue to provide
factual information. Any objection to that?” Balzer objected and both parties
presented arguments. The district court stated, “And so the Court does not feel
that the victim should be—lose their right to restitution because the State did
not call the witness, and in light of the fact that there is no prejudice that has
been shown . . . .” It further stated, “In light of the conflicting interest, I am


                                        6
going to continue this matter but I’m going to ask it be rescheduled as soon as
possible and that the State needs to bring any witness that’s relevant at that
time to have enough information. But I—in the detail I do want it to be
rescheduled as soon as possible so that Mr. McGowen is able to pursue his
current appeal without delay.”

[¶22] The court balanced the defendant’s prejudice from delay of his current
appeal against WSI’s constitutional right as a victim to seek restitution. The
district court provided a reasoned explanation for why it granted the State’s
motion for a continuance, and its decision was not arbitrary, unreasonable, or
capricious, or a misinterpretation or misapplication of the law. Therefore, the
court did not abuse its discretion in granting the State’s motion for a
continuance.

                                       IV

[¶23] McGowen argues the district court abused its discretion in awarding
restitution of $1,855.31 because the injuries were not a direct result of
McGowen striking Psyck or Beine, and Psyck’s shoulder was injured because
Beine tackled him and not from any criminal action by McGowen. The State
argues the district court did not abuse its discretion in ordering McGowen pay
$1,855.31 in restitution.

[¶24] The district court concluded the State established by a preponderance of
the evidence that $1,855.31 in restitution should be ordered. We agree.

[¶25] “We review a district court’s order for restitution made pursuant to
N.D.C.C. § 12.1-32-08 to determine whether the court acted within the limits
set by the statute.” State v. McAllister, 2020 ND 48, ¶ 33, 939 N.W.2d 502
(citing State v. Strom, 2019 ND 9, ¶ 3, 921 N.W.2d 660). “This is similar to our
abuse of discretion standard.” Id. “Under § 12.1-32-08(1), the district court
shall order restitution when it determines the defendant’s ‘criminal activities’
have caused a victim ‘pecuniary damages.’ Restitution must be limited to
damages that are ‘directly related to the criminal offense and expenses actually
incurred as a direct result of the defendant’s criminal action.’” Id. “This direct
relationship requires an immediate and intimate causal connection between


                                        7
the criminal conduct and the damages or expenses for which restitution is
ordered.” Id. (quoting State v. Clayton, 2016 ND 131, ¶ 5, 881 N.W.2d 239).
“The determination of whether damages are directly related to a defendant’s
criminal conduct is a question of fact for the court to decide.” Id. (citing Clayton,
at ¶ 7). “We will not set aside a court’s finding of fact in a restitution hearing
unless it is clearly erroneous.” Id.

[¶26] “Article I, § 25(1)(n), N.D. Const., provides victims ‘[t]he right to full and
timely restitution in every case and from each offender for all losses suffered
by the victim as a result of the criminal or delinquent conduct.’” McAllister,
2020 ND 48, ¶ 32, 939 N.W.2d 502. “Section 12.1-32-08(1), N.D.C.C., allows the
district court to order a defendant to pay restitution in a criminal case.” Id.
“We have said N.D. Const. art. I, § 25(1)(n) does not change the restitution
amount a district court may order under § 12.1-32-08.” Id. (citing State v.
Kostelecky, 2018 ND 12, ¶ 12, 906 N.W.2d 77). “Harmonizing these two
provisions, we have concluded ‘a victim is entitled to be made whole through a
reasonable restitution amount based on the entirety of his or her actual
losses.’” Id.

[¶27] “The ‘reasonable damages sustained by the victim’ must be ‘limited to
those directly related to the criminal offense and expenses actually incurred as
a direct result of the defendant’s criminal action.’” State v. Rogers, 2018 ND
244, ¶ 24, 919 N.W.2d 193 (citing State v. Carson, 2017 ND 196, ¶ 6, 900
N.W.2d 41). “This Court found that ‘directly related’ and ‘direct result’ require
that there ‘must exist an immediate and intimate causal connection between
the criminal conduct and the damages or expenses for which restitution is
ordered.’” Rogers, at ¶ 24 (citing State v. Pippin, 496 N.W.2d 50, 53 (N.D.
1993)).

[¶28] In State v. Clayton, 2016 ND 131, ¶ 12, 881 N.W.2d 239, we stated:

      “When precisely the ankle injury occurred relative to Clayton
      assaulting his father in this melee may never be known. To require
      the State to establish when an injury occurred on a blow-by-blow,
      punch-by-punch basis in heat of the moment situations such as
      this would all but foreclose the State’s ability to obtain restitution.


                                         8
      The direct relationship necessary for restitution, though requiring
      an immediate causal connection, does not require absolute
      certainty the criminal conduct caused the injury. On this record,
      the district court received sufficient evidence and testimony to
      infer Clayton’s criminal conduct directly resulted in the ankle
      injury. The district court did not act outside the scope of its
      statutory authority by ordering restitution for the ankle injury.”

[¶29] In State v. McAllister, 2020 ND 48, ¶ 37, 939 N.W.2d 502, we concluded,
“Because the district court heard testimony indicating the victim was treated
for the type of injuries [the defendant] was convicted of causing, we cannot say
the court abused its discretion or acted outside the bounds of the restitution
statute.”

[¶30] Here, the district court heard testimony indicating the victims were
treated for the type of injuries McGowen was convicted of causing. After the
incident both Beine and Psyck went to the emergency room. Christine Coffey,
claims adjuster for WSI, testified she worked on Beine’s and Psyck’s claims.
She testified, “We review medical records for a compensable work injury along
with first reports of injury from both employer and injured worker.” She also
testified she receives bills from medical facilities to determine whether the
amount paid matches the services received. She also testified about the process
to ensure that the medical records and bills are associated with that claim of
injury and not some other injury. She testified she followed that process in this
case by checking that the medical records match the diagnosis codes in the
medical documenation and billing formats.

[¶31] In Psyck’s case Coffey testified she reviewed the incident report, medical
records, and billings for the February 22, 2019 claim. She testified she paid
$1,304.87 to Sanford Hospital, and that before she paid the claim she ensured
the bills were associated with the February 22, 2019 injury. On cross-
examination Coffey testified that officer Psyck also received medical services
on May 14, June 12 and June 18, 2019, for continued left-shoulder pain from
the February 22, 2019 incident.

[¶32] In Beine’s case she testifed she reviewed the first report of injury from
the employer, an injury report form from Beine, and emergency room medical

                                       9
records. She also testified WSI paid $550.44 to Sanford Hospital and ensured
the costs were related to the claim for the February 22, 2019 incident.

[¶33] On this record, the district court received sufficient evidence to infer
McGowen’s criminal conduct directly resulted in the injuries and therefore the
court acted within the limits set by the statute.

                                     V

[¶34] We affirm the convictions against McGowen and affirm the district
court’s amended criminal judgment awarding $1,855.31 in restitution.

[¶35] Daniel J. Crothers
      Gerald W. VandeWalle
      Lisa Fair McEvers
      Jerod E. Tufte
      Jon J. Jensen, C.J.




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