              Filed 07/27/2020 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                2020 ND 173

State of North Dakota,                                Plaintiff and Appellant
     v.
Jerome Greenshields,                                 Defendant and Appellee

                                No. 20190393

Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Daniel D. Narum, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Joseph K. Nwoga, Assistant State’s Attorney, Jamestown, ND, for plaintiff and
appellant.

Mark A. Friese (argued) and Drew J. Hushka (appeared), Fargo, ND, for
defendant and appellee.
                            State v. Greenshields
                                No. 20190393

Jensen, Chief Justice.

[¶1] The State appeals from a district court order dismissing its criminal
complaint against Jerome Greenshields with prejudice. We affirm.

                                        I

[¶2] In February 2018, the State charged Greenshields with one count of
sexual assault occurring in 1997 and one count of gross sexual imposition
occurring in 2001. Greenshields requested a bill of particulars, and the district
court ordered the State to file a bill of particulars within ten days. The State
failed to produce the bill of particulars. After Greenshields moved for
dismissal, the court dismissed the complaint. The order of dismissal did not
specify whether the dismissal was with or without prejudice, and the State did
not appeal the dismissal.

[¶3] In January 2019, the State filed another criminal complaint against
Greenshields. The State charged Greenshields with two counts of sexual
assault, one occurring between June 1, 1997, to July 31, 1997, and the other
occurring in August 1997. The complaint also charged Greenshields with gross
sexual imposition occurring in September 2001.

[¶4] Greenshields moved to dismiss the complaint, arguing the charges could
not be refiled because the district court dismissed the first case with prejudice.
In response, the State argued the earlier dismissal was silent as to whether it
was with or without prejudice. After the case was assigned to a new judge, the
court dismissed the complaint without a hearing, concluding the first judge
intended to sanction the State and dismiss the first case with prejudice.

[¶5] The State appealed, and this Court reversed and remanded, holding
there was no evidence showing whether the district court dismissed the first
complaint with or without prejudice. State v. Greenshields, 2019 ND 229, ¶ 10,
932 N.W.2d 903. We stated, “Greenshields may renew his motion and present
evidence of the first judge’s intent in dismissing the case.” Id.


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[¶6] On remand, Greenshields renewed his motion to dismiss, claiming the
district court intended to dismiss the first complaint with prejudice. After a
hearing, at which the judge who dismissed the first complaint testified, the
court found the judge intended to dismiss the first complaint with prejudice.
The court dismissed the complaint in this case with prejudice.

                                       II

[¶7] The State argues the district court abused its discretion by dismissing
its complaint against Greenshields with prejudice. Under N.D.R.Crim.P.
48(b), a district court may dismiss an indictment, information, or complaint.
“A district court’s dismissal with prejudice is reviewed for an abuse of
discretion.” State v. Tweeten, 2004 ND 90, ¶ 7, 679 N.W.2d 287. A court abuses
its discretion when it acts arbitrarily, unreasonably, or unconscionably, it
misinterprets or misapplies the law, or its decision is not the product of a
rational mental process leading to a reasoned determination. Nw. Grading,
Inc. v. N. Star Water, LLC, 2020 ND 47, ¶ 11, 939 N.W.2d 512.

[¶8] In Greenshields, 2019 ND 229, ¶¶ 8, 10, 932 N.W.2d 903, we held the
first judgment of dismissal was silent as to whether it was with or without
prejudice, and there was no evidence of whether the first judge intended the
dismissal to be with or without prejudice. If intent cannot be determined from
a document’s language, extrinsic evidence may be considered to determine
intent, which becomes a question of fact. Border Res., LLC v. Irish Oil & Gas,
Inc., 2015 ND 238, ¶ 15, 869 N.W.2d 758; see also Greenshields, at ¶ 7. We do
not condone obtaining that extrinsic evidence from a judicial officer who
authored the document in question. See Stein v. Professional Center, S.A., 666
So.2d 264, 265-66 (“The law is well settled that a trial judge may not be
compelled to testify in a cause concerning either (1) the meaning of an order
previously entered by the judge in a pending or closed case, or (2) the judge’s
mental processes or reasoning in entering such an order.”).

[¶9] We review a district court’s findings of fact under the clearly erroneous
standard. A finding of fact is clearly erroneous if it is induced by an erroneous
view of the law, it is not supported by any evidence, or if, although there is
some evidence to support the finding, a reviewing court is left with a definite

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and firm conviction a mistake has been made. Tornabeni v. Creech, 2018 ND
204, ¶ 22, 916 N.W.2d 772.

[¶10] Greenshields renewed his motion to dismiss on remand and the district
court heard testimony from the judge who dismissed the State’s first complaint
against Greenshields. The court found that on the basis of the judge’s
testimony, the judge intended to dismiss the first complaint with prejudice.
Because the first dismissal was with prejudice, the court dismissed the
complaint against Greenshields in this case with prejudice.

[¶11] During the judge’s testimony at the hearing on remand, he agreed the
first dismissal was a sanction on the State for its failure to file the bill of
particulars on at least four occasions. Greenshields’ attorney asked the judge,
“In this case, you didn’t intend to punish Mr. Greenshields by dismissing the
charge just to subject him to recharging on a whim. Did you?” The judge
responded, “That was not my intent, no.”

[¶12] Relying on Tweeten, 2004 ND 90, 679 N.W.2d 287, the State contends
the district court abused its discretion by dismissing the complaint with
prejudice because the first judge testified that while dismissing the first case,
he did not make any findings that the State’s actions constituted harassment,
bad faith, or misconduct. The judge also testified that he did not find the
State’s failure to file a bill of particulars to be an extreme circumstance that
warranted dismissal with prejudice. The State argues the complaint cannot
be dismissed with prejudice without a finding of harassment, bad faith, or
misconduct.

[¶13] In Tweeten, 2004 ND 90, ¶ 9, 679 N.W.2d 287, this Court stated “the
district court should not dismiss a case with prejudice unless the court has had
an opportunity to determine issues of bad faith, harassment, or misconduct.”
We held, “The district court’s dismissal of the case was an abuse of discretion
because the court did not make the requisite finding of bad faith or harassment
on the part of the prosecution by clear and convincing evidence.” Id. at ¶ 16.

[¶14] Here, the State recharged Greenshields and did not appeal the district
court’s dismissal of the first complaint. Therefore, whether the court failed to

                                       3
make findings of harassment, bad faith, or misconduct is not at issue in this
appeal. The State cannot collaterally attack an order it did not appeal. See
Sorenson v. Bakken Investments LLC, 2017 ND 127, ¶ 7, 895 N.W.2d 302
(stating, “A party may not collaterally attack a final decision, that was not
appealed, in subsequent proceedings.”). In Greenshields, 2019 ND 229, ¶ 10,
932 N.W.2d 903, we remanded for the limited purpose of determining “the first
judge’s intent in dismissing the case.”

[¶15] The district court found the judge in the first case intended to dismiss
the complaint with prejudice. After reviewing the record, there is evidence to
support the court’s findings and we are not left with a definite and firm
conviction a mistake was made. Because the court’s findings were not clearly
erroneous, we conclude the court did not abuse its discretion by dismissing the
criminal complaint against Greenshields with prejudice.

                                     III

[¶16] The order dismissing the complaint against Greenshields with prejudice
is affirmed.

[¶17] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Gerald W. VandeWalle
      Rhonda R. Ehlis, D.J.

[¶18] The Honorable Rhonda R. Ehlis, District Judge, sitting in place of
Tufte, J., disqualified.




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