IN the SUPREME COURT STATE of NORTH DAKOTA State of North Dakota, Appellee, Vs. Samuel Elliot Hansford, Appellant. ) ) ) )

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20180179 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT SEPTEMBER 14, 2018 IN THE SUPREME COURT STATE OF NORTH DAKOTA STATE OF NORTH DAKOTA

) ) State of North Dakota, ) Supreme Court No.: 20180179 Appellee, ) ) vs. ) ) Samuel Elliot Hansford, District Court No.: 17-2017-CR-1 ) Appellant. )

APPEAL FROM THE SOUTHWEST JUDICIAL DISTRICT COURT, GOLDEN VALLEY COUNTY, NORTH DAKOTA

HONORABLE JAMES D. GION

BRIEF OF APPELLEE THE STATE OF NORTH DAKOTA

APPEAL TO THE SUPREME COURT OF THE STATE OF NORTH DAKOTA FROM THE ORDER OF DISTRICT COURT DATED MAY 4. 2018 OF GOLDEN VALLEY COUNTY, DISTRICT COURT BY THE HONORABLE JAMES D. GION, JUDGE OF THE DISTRICT COURT IN GOLDEN VALLEY COUNTY.

By: Christina M. Wenko ND State Bar ID No.: 06884 Golden Valley County State’s Attorney c/o Mackoff Kellogg Law Firm 38 Second Avenue East Dickinson, North Dakota 58601 Ph: (701) 456-3210 email: [email protected] Attorney for the Appellee

TABLE OF CONTENTS TABLE OF AUTHORITIES ...... iii

STATEMENT OF THE ISSUE ...... ¶1

STATEMENT OF THE CASE ...... ¶2

STATEMENT OF THE FACTS ...... ¶3

STATEMENT OF THE STANDARD OF REVIEW ...... ¶12

LAW AND ARGUMENT ...... ¶13 I. The district court properly denied Hansford’s Motion to Suppress because there was sufficient evidence to support its finding that Hansford’s due process rights were not violated based on the testimony presented...... ¶13 A. The district court did not err in admitting Hansford’s statements at trial because his Due Process rights were not violated as his statements were voluntary and not a result of coercion or intimidation...... ¶14 1. Hanford’s free will was not overpowered by law enforcement as there was no evidence that he was susceptible to manipulation, rather he articulated coherent responses and understood the consequences of his statements...... ¶19

2. Hanford’s free will was not overpowered by law enforcement as there was no evidence that the details of the setting in which he confessed overpowered Hansford’s will...... ¶28

II. The district court properly denied Hansford’s Motion to Suppress because there was sufficient evidence to support its finding that Hansford’s rights under Miranda and the Fifth Amendment were not violated based on the testimony presented...... ¶35 A. The district court did not err in admitting Hansford’s statements at trial because his Miranda and Fifth Amendment rights were not violated when Hansford was not in custody at the time of questioning...... ¶37 1. Hansford was not in custody because a reasonable person would believe that he was free to leave where the door was closed but unlocked, Hansford was seated closest to the door, and Helmer explained that Hansford was free to leave at any time...... ¶38

2. Because Hansford was not in custody, Helmer was not required to cease questioning upon Hansford invoking his right to an attorney because Hansford’s statements were voluntary...... ¶42

B. Alternatively, the district court did not err in admitting Hansford’s statements because, even if Hansford was in custody or Helmer was otherwise required to cease questioning, Hansford properly waved his Miranda rights...... ¶45 1. Hansford voluntarily waived his Miranda rights for all statements made prior to his request for an attorney when he acknowledged he understood his rights after Helmer reviewed the Miranda rights line by line at the beginning of the interview...... ¶47

2. Hansford voluntarily waived his Miranda rights for all statements made after his request for an attorney because Helmer made statements while Hansford decided if he wanted an attorney and Hansford initiated conversations with Helmer until he decided to sign a voluntary statement form...... ¶49

III. The district court properly denied Hansford’s Motion to Suppress because Hansford’s Sixth Amendment rights were not violated because Hansford was not under arrest, no formal charges had been filed, and there were no restrictions on his liberty at the time his statements were made...... ¶55 CONCLUSION ...... ¶56

CERTIFICATE OF COMPLIANCE ...... ¶57

CERTIFICATE OF SERVICE ...... ¶58

TABLE OF AUTHORITIES

CASES

Ashcraft v. Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88 L. Ed. 1192 (1944) ...... ¶16

Brewer v. Williams, 430 U.S. 387 (1977) ...... ¶46

Chambers v. Florida, 309 U.S. 227, 60 S. Ct. 472, 84 L.Ed. 716 (1940) ...... ¶16

City of Fargo v. Thompson, 520 N.W.2d 578 (N.D. 1994) ...... ¶12

Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 1037 (1961) ...... ¶15, 24

Davis v. North Carolina, 384 U.S. 737, 77 S. Ct. 281, 1 L. Ed. 2d 246 (1957) ...... ¶16

Dickerson v. United States, 530 U.S. 428, L. Ed. 2d 405, 121 S. Ct. 2326 (2000) ...... ¶36

Fare v. Michael C., 442 U.S. 707 (1979) ...... ¶46

Fikes v. Alabama, 352 U.S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246 (1957) ...... ¶16

Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 1424 (1969) ...... ¶22

Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948) ...... ¶16

Jenner v. Smith, 928 F.2d 329 (8th Cir. 1993) ...... ¶24

Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964)...... ¶35

Minnick v. Mississippi, 498 U.S. 146, 150, 11 S. Ct. 486 (1990) ...... ¶49, 54

Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct 1602 (1966) ...... ¶36, 38, 42

Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 1140-41 (1986) ...... ¶46, 47

North Carolina v. Butler, 441 U.S. 369, 374-375 (1979) ...... ¶46

Oregon v. Bradshaw, 469 U.S. 1039 (1983) ...... ¶50

Oregon v. Bradshaw¸ 54 Ore. App. 949, 636 P.2d 1011 ...... ¶50

Oregon v. Mathiason, 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977) ...... ¶37, 41

Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958) ...... ¶16

Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961) ...... ¶16

iii

Rothgery v. Gillespie Cty., 554 U.S. 191, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008) .. ¶55

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 (1973) ...... ¶14, 15, 16, 32

Smith v. Bowersox, 311 F.3d 915 (8th Cir. 2002) ...... ¶24

State v. Brickle-Hicks, 2018 ND 194 ...... ¶17, 19, 29, 36, 46

State v. Goebel, 2007 ND 4, 725 N.W.2d 578...... ¶17, 18, 19, 28, 29

State v. Golden, 2009 ND 108, ¶2, 766 N.W.2d 473 ...... ¶39, 41

State v. Heitzmann, 2001 ND 136, 632 N.W.2d 1...... ¶22

State v. Helmenstein, 2000 ND 233, 620 N.W.2d 581...... ¶18

State v. Huether, 2010 ND 233, 790 N.W.2d 901 ...... ¶38

State v. Kirkpatrick, 2012 ND 29, 882 N.W.2d 851 ...... ¶19, 29

State v. Pitman, 427 N.W.2d 337 (N.D. 1988) ...... ¶37

State v. Sailer, 500 N.W.2d 866 (N.D. 1993) ...... ¶18

State v. Tallion, 470 N.W.2d 226 (N.D. 1991) ...... ¶42, 44

State v. Tollefson, 2003 ND 73, 660 N.W.2d 575 (N.D. 1988) ...... ¶12

State v. Walden, 336 N.W.2d 629 (N.D. 1983) ...... ¶23

United States v. Harris, 221 F.3d 1048 (8th Cir. 2000)...... ¶42

United States v. Kilgore, 58 F.3d 350 (8th Cir. 1995) ...... ¶24

United States v. LeBrun, 363 F.3d 715 (8th Cir. 2004) ...... ¶36, 37

CONSTITUTIONS USCS Const. Amend. 5...... ¶10

STATEMENT OF THE ISSUES

[¶1] There are three issues presented to this Court to determine if the defendants’ rights were violated under due process and Miranda: (1) Should the factual determination by the

District Court be upheld where a confession by a defendant was determined to be voluntary where the defendant’s personal characteristics and setting in which the questioning took place did not overpower the defendant’s free will? (2) Should the determination by the

District Court that a defendant was not in custody be upheld where the defendant was advised that the door was open and he could leave at any time? (3) Alternatively, did a defendant validly waive his Miranda rights when, after the defendant asked for an attorney, law enforcement only made statements and responded to conversation initiated by the defendant until the defendant ultimately signed a voluntary waiver of his right to an attorney before he confessed?

STATEMENT OF THE CASE

[¶2] Defendant Samuel Elliott Hansford (“Hansford”) was arrested for and charged with

Gross Sexual Imposition. Prior to his arrest, Hansford was interviewed by law enforcement. At the start of the interview, Hansford was read Miranda, advised of his rights, told he could leave at any time and that the door was open. Hansford acknowledged his rights. During the interview, Hansford asked for an attorney in response to a statement by law enforcement. Upon Hansford’s request, law enforcement provided Hansford with a phone and phone book. Hansford used the phone and phone book and attempted to contact an attorney. After Hansford used the phone, he informed law enforcement he wanted to continue discussing the investigation and signed a waiver of rights form. Prior to trial, Hansford filed a Motion in Limine to Suppress and a Motion to Reconsider. The district court denied Hansford’s motions.

STATEMENT OF THE FACTS

[¶3] Special Agent Timothy Helmer (“Helmer”) with the Bureau of Criminal

Investigation (“BCI”) was asked to assist the Golden Valley County Sheriff’s Office with a report of sexual assault. During the investigation, Helmer interviewed Hansford.

[¶4] Helmer arrived at Hansford’s place of work, identified himself and told Hansford he needed to speak with him. App. audio 0:00-0:10. Helmer informed Hansford that he preferred to speak with him somewhere other than his work for privacy. App. audio 0:16.

Helmer asked Hansford if he would be willing to go to the police department. App. audio

0:18. The approximate conversation between Helmer and Hansford is as follows:

[Hansford] I would truly rather stay here, but…..

[Helmer] Well, for privacy wise, it would be better for you if we went to the

PD…you are not under arrest and anything like that and you do not

have to come, but we do need to sit down and talk. Is that something

you are willing to do with me?

[Hansford] Sure

[Helmer] You want me to just follow ya over there or do you know where the

PD is?

[Hansford] Ah, would you mind giving me a lift?

[Helmer] Yeah, I can drive.

App. audio 0:29-0:55.

[¶5] At Hansford’s request, Helmer transported Hansford to the police department.

During the drive to the police department, the conversation between Helmer and Hansford was cordial. They discuss football among other things. App. audio 2:42-10:29. Upon arriving at the police department, Hansford was placed in an interview room. Before beginning any questioning, Helmer informed Hansford of his Miranda rights. App. video

1:05-1:32.

[¶6] Helmer, using a Miranda cue card, walked Hansford through his rights line by line.

App. video 11:30-12:06. App. video 1:35-2:45. After reading each line, Hansford acknowledged he understood his rights. Id. Helmer told Hansford he could exercise those rights at any time, the door was open, and he could head out at any time. App. video 2:45.

Helmer asked Hansford if he understood those rights, and Hansford acknowledged he understood. App. video 2:49.

[¶7] Helmer spoke with Hansford for approximately forty-five minutes. During the conversation, Helmer presented Hansford with a question something along the lines of whether was he a rapist or a guy who made a mistake. App. video 47:17-47-26. It was at this time Hansford requested to speak with an attorney. App. video 47:25.

[¶8] Helmer informed Hansford that was his right and that he was free to do so. App. video 47:34. Helmer made a comment about the “the truth is the one that will help you out.” App. video 47:38-47:50. Helmer discontinued questioning and left the room. App. video 47:50-48:05. Helmer re-entered the room approximately seven minutes later. App. video 55:28. Helmer told Hansford that he was not going to ask him any questions. App. video 57:20. He asked Hansford if he wanted to continue to talk about things and waive his rights or call a lawyer to come in. App. video 57:30. Helmer told Hansford, “I don’t want to do anything that you don’t want to do.” App. video 57:36. Hansford said he could not afford a lawyer. App. video 58:09. Helmer proceeded to tell Hansford he could not ask him any questions, but he would sit and listen. App. video 58:14-58:20.

[¶9] Helmer asked Hansford if he wanted Helmer to retrieve a phone book. App. video

59:10. When Helmer offered to wait for an attorney, Hansford stated that “attorneys can take forever.” App. video 59:13-59:22. Hansford said, “No, let’s talk it out.” App. video

59:53. Helmer asked Hansford to clarify his statement specifically that he was waiving his right to speak with an attorney moving forward and provided him with a voluntary statement form. App. video 1:00:00-1:01:00.

[¶10] Helmer said that he wanted make sure that Hansford understood and was aware of everything that was going on. App. video 1:01:10. Helmer left the room to retrieve a phone book for Hansford. App. video 1:02:22. Helmer returned with a phone book and gave it to

Hansford. App. video 1:05:54. Hansford proceeded to look in the phone book for several minutes. Hansford engaged Helmer in conversation about the phone book. App. video

1:06:28, 1:06:53. Helmer made a comment that Hansford could tell the attorney that he was not being charged with anything. App. video 1:07:13. Hansford continued to look through the phone book for several minutes before again engaging in conversation with

Helmer. App. video 1:10:29-1:10:42. Helmer informed him that he could not give legal advice while Hansford laughed. App. video 1:10:46. Helmer then explained his role as an officer. App. video 1:11:00-1:11-17.

[¶11] Helmer was clear that he could not make Hansford any promises and engage in conversation that Hansford initiated. App. video 1:11:17-1:12:30. After a long pause,

Hansford again initiated the conversation by saying, “They aren’t going to come anyways.

Guess I will just have to lie and say s*** happened.” App. video 1:12:59-1:13-11. Helmer calmly explained that he was not asking Hansford to lie, and reminded Hansford that he needed to decide whether he wanted to continue the conversation. App. video 1:13:11-

1:13:20. Hansford asked for a phone. App. video 1:15:15. Helmer retrieved one and provided Hansford instructions on how to dial out. App. video 1:15:15-1:16:11.Helmer asked Hansford if he wanted him to remain in the room while Hansford placed the calls.

App. video 1:16:12. Hansford said yes. App. video 1:15:15. Hansford used the phone and placed some calls. App. video 1:15:15-1:20:22. Hansford discontinued his attempts to contact an attorney. App. video 1:20:22. Hansford signed a waiver stating he would proceed with questioning without an attorney present. App. video 1:21:29-1:25:00.

STATEMENT OF THE STANDARD OF REVIEW

[¶12] When reviewing a trial court’s decision on a motion to suppress, the Supreme Court will not reverse a trial court’s decision if there is sufficient competent evidence capable of supporting the trial court's findings, and if its decision is not contrary to the manifest weight of the evidence. State v. Tollefson, 2003 ND 73, ¶ 9, 660 N.W.2d 575 (quoting State v.

Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1). The Supreme Court in City of Fargo v.

Thompson established the standard of review of a district court’s decision on a motion to suppress evidence related to factual issues as follows:

A trial court's findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. We do not conduct a de novo review. We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact.

520 N.W.2d 578, 581 (N.D. 1994).

LAW AND ARGUMENT

I. The district court properly denied Hansford’s Motion to Suppress because there was sufficient evidence to support its finding that Hansford’s due process rights were not violated based on the testimony presented.

[¶13] Hansford contends that the district court erroneously denied his motion to suppress because his confession was involuntary as a violation of due process. In support of this claim, Hansford argues that Helmer used Hanford’s lack of experience in dealing with law enforcement to manipulate Hansford into making involuntary statements. Appellant’s Brief at ¶10. Hansford also argues that because Helmer transported Hansford to the Public Safety

Center for the interview, Hansford was not free to leave. Appellant’s Brief at ¶11.

However, the Findings by the District Court that Hansford’s statements were voluntary are not contrary to the manifest weight of the evidence, and therefore should be upheld.

A. The District Court did not err in admitting Hansford’s statements at trial because his Due Process rights were not violated as his statements were voluntary and not a result of coercion or intimidation.

[¶14] The protections of Due Process requires that confessions be voluntary. In

Schneckloth v. Bustamonte, Justice Frankfurther wrote:

The notion of 'voluntariness’ is itself an amphibian. Culombe v. Connecticut, 367 U.S. 568, 604-605. It cannot be taken literally to mean a "knowing" choice. Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements -- even those made under brutal treatment -- are 'voluntary' in the sense of representing a choice of alternatives. On the other hand, if 'voluntariness' incorporates notions of 'but-for' cause, the question should be whether the statement would have been made even absent inquiry or other official action. Under such a test, virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind." It is thus evident that neither linguistics nor epistemology will provide a ready definition of the meaning of "voluntariness."

Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S. Ct. 2041, 2046 (1973).

[¶15] “The ultimate test remains that which has been the only clearly established test in

Anglo-American courts for two hundred years: the test of voluntariness.” Id., 412 U.S. at

225-26. The question then becomes “is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self- determination critically impaired, the use of his confession offends due process." Id. (citing

Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 1037 (1961)).

[¶16] “In determining whether a defendant's will was over-borne in a particular case, the

Court has assessed the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation.” Schneckloth, 412 U.S. at 226. Some of the factors taken into account have included the youth of the accused, e. g., Haley v. Ohio, 332 U.S. 596; his lack of education, e. g., Payne v. Arkansas, 356 U.S.

560; or his low intelligence, e. g., Fikes v. Alabama, 352 U.S. 191; the lack of any advice to the accused of his constitutional rights, e. g., Davis v. North Carolina, 384 U.S. 737; the length of detention, e. g., Chambers v. Florida, 309 U.S. 227; the repeated and prolonged nature of the questioning, e. g., Ashcraft v. Tennessee, 322 U.S. 143; and the use of physical punishment such as the deprivation of food or sleep, e. g., Reck v. Pate, 367 U.S. 433.

[¶17] The Supreme Court of North Dakota has further refined the test to determine if a confession is voluntary, articulating the standard for challenging the voluntariness of a confession under due process in State v. Goebel, which states:

When a confession is challenged on due process grounds, the ultimate inquiry is whether the confession was voluntary. A confession is voluntary if it is a product of the defendant's free choice rather than a product of coercion. To assess voluntariness, we look at the totality of the circumstances. Our inquiry focuses on two elements: (1) the characteristics and conditions of the accused at the time of the confession, including age,

sex, race, education level, physical and mental condition, and prior experience with police; and (2) the details of the setting in which the confession was obtained, including the duration and conditions of detention, police attitude toward the defendant, and the diverse pressures that sap the accused's powers of resistance or self-control. State v. Goebel, 2007 ND 4, ¶16, 725 N.W.2d 578 (citations omitted); State v. Brickle-

Hicks, 2018 ND 194, ¶15.

[¶18] Voluntariness of a confession depends upon questions of fact to be resolved by the district court. Goebel, 2007 ND at ¶16; State v. Helmenstein, 2000 ND 233, ¶18, 620

N.W.2d 581. Because the district court is in a superior position to judge credibility and weight, upon appeal the Court shows great deference to the district court’s determination of voluntariness. Id. The Court will reverse only if the district court’s decision is contrary to the manifest weight of the evidence. Goebel, 2007 ND at ¶17; State v. Sailer, 500

N.W.2d 866, 88 (N.D. 1993).

1. Hanford’s free will was not overpowered by law enforcement as there was no evidence that he was susceptible to manipulation, rather he articulated coherent responses and understood the consequences of his statements.

[¶19] Under the first prong of the Goebel test, the Court must uphold the District Court’s factual determination that Hansford’s confession was voluntary unless the District Court’s decision is contrary to the manifest weight of the evidence regarding Hansford’s personal characteristics. Goebel, 2007 ND at ¶ 17, 18. Compare Goebel, 2007 ND at ¶ 18 (holding that a forty-two year old high school graduate and homeowner with a steady job voluntarily confessed), with Brickle-Hicks, 2018 ND at ¶16 (holding that a confession was voluntary where a defendant was not susceptible to manipulation and interrogation tactics the interview questions, articulated coherent responses, and was capable of understanding the consequences of his statements during the interview), and State v. Kirkpatrick, 2012 ND

29, ¶10, 882 N.W.2d 851, 855 (holding that a defendant voluntarily confessed where the defendant was educated, in good health, did not indicated he was too tired or too hungry to continue the interview, and did not indicate he was “any great or very emotional distress” due to the death of his daughter).

[¶20] There is no evidence that Hansford was coerced into giving a confession based on his personal characteristics under the first prong of the Goebel test, and the record supports the District Court’s determination that Hansford’s confession was voluntary. Hansford was twenty-four years old at the time of the interview. App. video 12:01. It is apparent from the video recording of Hansford’s confession that he is a white male. App. video 0:00.

Helmer contacted Hansford at his place of employment at Steffes Corporation, which indicates he was employed at the time. Tr p.6:13-14. The record does not indicate specific information as to Hansford’s mental capabilities, but Hansford’s Brief concedes that

Hansford has no medically diagnosed physical or mental conditions. Appellant’s Brief at

¶10. The record does not indicate Hansford’s level of education. The record does not support the assertion that Hansford “has virtually no prior experience with law enforcement.” Appellant’s Brief at ¶10. Hansford’s prior criminal record and level of education was not discussed at the evidentiary hearing for the motion to suppress, despite the fact that Hansford testified at the hearing.

[¶21] In his brief, Hansford argues, “Special Agent Helmer used Hansford[‘s] lack of experience with law enforcement in order to coerce Hansford into making incriminating statements.” Appellant’s Brief at ¶10. Specifically, there are references to Helmer’s discussion with Hansford, generally that if the Hansford did not present his side of the story, Helmer would be forced to present the evidence of sexual contact, and there would

10 only be one side to that evidence. App. video 43:17-44:08. There is also discussion of statements Helmer made regarding a prior experience Hansford’s sister had involving law enforcement. App. video 47:38-47:50.

[¶22] However, in Frazier v. Cupp, the Supreme Court of the United States addressed the issue of whether a defendant’s confession was involuntary because the police told him a false statement prior to his confession. 394 U.S. 731, 737-38, 89 S. Ct. 1420, 1424 (1969).

More specifically, the officer questioning the defendant told him, falsely, that the defendant’s cousin had been brought in and that he had confessed to the crime. Id. On appeal, the defendant argued that his confession was involuntary. The Supreme Court reasoned that prior to the defendant making his incriminating statements he had received warnings of his constitutional rights, which of course was a circumstance quite relevant to the finding of voluntariness. Id. at 739. The Court found that the questioning was of short duration, and the defendant was a mature individual of normal intelligence. Id.

Furthermore, the fact that the police misrepresented the statements of the defendant’s cousin was insufficient to make the otherwise voluntary confession inadmissible. Id.

[¶23] Additionally in State v. Walden, a defendant argued that his confession to police was involuntary due to an alleged improper and coercive statement made by a police officer during questioning. 336 N.W.2d 629 (N.D. 1983). In Walden, after a police dog alerted to the defendant, the officer handling the dog stated “… [this] dog [has] a good court record

. . . [you] could just as well go down and make the statement and do it the easy way.” Id. at 633. The district court determined that the subsequent confession was voluntary. This determination was upheld by the North Dakota Supreme Court based on the reasoning that

11 statements made by the dog handler were not of such a coercive nature as to override the defendant’s free will. Id.

[¶24] Use of deceit is a permissible tactic for law enforcement to obtain confessions. “It has been consistently recognized that the use of trickery and deceit by police are grounds for suppression only when it affects the voluntariness of the statements made by the subject.” Culombe v. Connecticut, 367 U.S. at 602, Smith v. Bowersox, 311 F.3d 915,

922 (8th Cir. 2002); United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995). A raised voice, deception, or sympathetic attitude on the part of the interrogator will not render a confession involuntary unless the overall impact of the interrogation caused the defendant’s will to be overborn. Jenner v. Smith, 928 F.2d 329, 337 (8th Cir. 1993).

[¶25] The District Court, after hearing testimony from Hansford and viewing the video of the interview with Hansford, did not make any findings to indicate that Hansford was not capable of understanding questions or that he was more susceptible to manipulation than the average person. The record includes evidence that Hansford was an adult, who was employed at the time of the interview. App. video 12:01. Hansford was provided

Miranda warnings at the beginning of the interview where Helmer went through the

Miranda rights line by line. App. video 1:35-2:45. There was no evidence that Hansford’s will was overborne and his capacity for self-determination was critically impaired, which would require suppression of his statements.

[¶26] Hansford’s confession should not be suppressed because Helmer made a passing statement about Hansford’s sister’s involvement in another pending case. Helmer’s comments about not charging Hansford’s sister with a crime are permissible and in line with acceptable interrogation techniques by law enforcement. A statement that “the truth

12 will be the one to help you out” is not sufficient to override the free will of an adult who is capable of holding a job and admits there are no cognitive or mental disorders affecting his decision making. In fact, in response to Helmer’s comments about Hansford’s sister’s case,

Hansford replied, “her case was different.” App. video 1:01:29-1:02:00. This is evidence that Hansford understood the circumstances surrounding the conversation and was differentiating between his situation and that of his sister. This level of differentiation is more evidence that Hansford’s statements were voluntary.

[¶27] Therefore, the record supports the District Court’s conclusion that Hansford’s confession was voluntary under the first prong of the Goebel test. Because District Court’s decision is not contrary to the manifest weight of the evidence, the State respectfully requests that the Court uphold the determination of the District Court.

2. Hanford’s free will was not overpowered by law enforcement as there was no evidence that the details of the setting in which he confessed overpowered Hansford’s will.

[¶28] In applying the second prong of Goebel, the court analyzes details of the setting in which the confession was obtained, including the duration and conditions of detention, police attitude toward the defendant, and the diverse pressures that sap the accused's powers of resistance or self-control. Goebel, at ¶16. Hansford argues that “[f]rom the beginning of his interaction with Agent Helmer it was clear that Hansford was never free to leave.” Appellant’s Brief at ¶11. Hansford goes on to argue that because Helmer transported Hansford to the Public Safety Center to answer questions, Hansford was not free to leave because he lacked transportation. These arguments are not supported factually or by precedent set forth under the Goebel test.

[¶29] Under the second prong of the Goebel test, the court must uphold the District

Court’s factual determination that Hansford’s confession was voluntary unless the District

Court’s decision is contrary to the manifest weight of the evidence regarding setting in which the questioning took place. Goebel, at ¶ 16. Compare Goebel 2007 ND at ¶ 17, 19

(holding that where defendant drove himself to the interview, was interviewed in a room with the door closed but not locked, the defendant was seated closest to the door, the interview lasted an hour and fifteen minutes in the middle of the day, the defendant confession was voluntary), with Brickle-Hicks, 2018 ND at ¶16 (holding that a confession was voluntary where a defendant appeared voluntarily for the interview, and officers maintained a non-aggressive and friendly attitude during the interview), and State v.

Kirkpatrick, 2012 ND at ¶10, (holding that a defendant voluntarily confessed during a two hour and forty-seven minute interview where officers did not rise their voices and the defendant said “[y]ou all have totally done your job … [in] a very kind and gracious way,” despite the fact that officers lied and used other interrogation techniques such as displaying empathy and appealing to the defendant’s conscience).

[¶30] In this case, the District Court made the following findings of fact in regard to the setting in which the confession was obtained:

The interview occurred on January 9, 2017. Helmer went to Steffes, where Hansford worked, and received permission to talk to Hansford. Helmer requested Hansford go to the Public Safety Center for the interview, citing privacy issues. Hansford initially balked at going to the Public Safety Center, but agreed to do so when Helmer offered him a ride. Hansford rode in the front seat of Helmer’s car, without restraints. Hansford and Helmer made casual conversation during the short trip to the Public Safety Center. Upon arrival at the Public Safety Center, the two went into an interview room, and Helmer gave Hansford his Miranda advisement. Helmer asked Hansford if there were any questions, and Hansford expressed some confusion. Helmer then went through the Miranda warning line by line. Hansford asked some questions about his right to an attorney, and after

Helmer’s response about an attorney being appointed if Hansford could not afford one, Hansford said he understood his rights and agreed to talk to Helmer.

App. p.33-34, ¶3; App. audio.

[¶31] The District Court determined that statements made by Hansford were voluntary despite the fact that Helmer transported Hansford to the Public Safety Center.

Arguments were made about whether Hansford was in custody or free to leave. Hansford claims Helmer manipulated Hansford into accepting a ride to the Public Safety Center, and so Hansford was unable to leave as he had no transportation and the weather was inclement. However, Hansford told Helmer he understood he was free to leave at any time. Hansford did not attempt to leave, nor did he request to leave. Hansford sat closest to the door during the interview and Helmer was the only law enforcement officer in the room. Hansford related that he understood Helmer was doing his job, and did not show any apprehension about being in Helmer’s company.

App. p.36, ¶8.

[¶32] In this case, there is no evidence of any inherently coercive tactics -- either from the nature of the police questioning or the environment in which it took place.”

Schneckloth, 412 U.S. at 247. Hansford asked Helmer to provide a ride to the Public Safety

Center. App. audio 0:29-0:55. Hansford acknowledge that he understood that the door was open and he could leave at any time. App. video 2:45. The District Court, after weighing the credibility of the witnesses and reviewing the video and audio recordings, determined that Hansford did not show any apprehension about being in Helmer’s company. App. p.36,

¶8. The environment was not so coercive as to overpower Hansford’s will. Hansford voluntarily chose to stay and try to talk his way out of the situation he was in, despite the fact that it was abundantly clear that he was free to leave.

[¶33] The record supports the District Court’s conclusion that Hansford’s confession was voluntary under the second prong of the Goebel test. Because District Court’s decision is

15 not contrary to the manifest weight of the evidence, the State respectfully requests that the

Court uphold the determination of the district court.

[¶34] In this case, the totality of the circumstances leads to one conclusion: Hansford willingly confessed and his due process rights were not violated. In a situation where a defendant willingly confesses, voluntary statements may be used against the defendant.

Because the findings by the District Court are not contrary to the manifest weight of the evidence, under both prongs of the Goebel test, this Court should uphold the District

Court’s factual determination that the statements made by Hansford were voluntary.

II. The District Court properly denied Hansford’s Motion to Suppress because there was sufficient evidence to support its finding that Hansford’s rights under Miranda and the Fifth Amendment were not violated based on the testimony presented.

[¶35] The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

USCS Const. Amend. 5. The Fourteenth Amendment makes the Fifth Amendment privilege against self-incrimination applicable to the states. Malloy v. Hogan, 378 U.S. 1,

2, 84 S. Ct. 1489, 1490 (1964).

[¶36] To safeguard the privilege against self-incrimination, Miranda created concrete constitutional guidelines which "established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with" certain warnings. Dickerson v. United States, 530 U.S.

428, 435, 147 L. Ed. 2d 405, 121 S. Ct. 2326 (2000); see also United States v. LeBrun, 363

F.3d 715, 720 (8th Cir. 2004). Under the guidelines set forth in Miranda a person subjected to custodial interrogation “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda v. Arizona, 384 U.S. 436,

16 L. Ed. 2d 694, 86 S. Ct 1602 (1966). See Brickle-Hicks, 2018 ND at ¶8.

A. The District Court did not err in admitting Hansford’s statements at trial because his Miranda and Fifth Amendment rights were not violated when Hansford was not in custody at the time of questioning. [¶37] Not every confession obtained absent the Miranda warnings is inadmissible; however, because "police officers are not required to administer Miranda warnings to everyone whom they question." Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714,

97 S. Ct. 711 (1977). See LeBrun, 363 F.3d at 720. “Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Mathiason, 429 U.S. at 492, 495.

"Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.'" Mathiason 429 U.S. at 495. See State v. Pitman,

427 N.W.2d 337, 340 (N.D. 1988).

1. Hansford was not in custody because a reasonable person would believe that he was free to leave where the door was closed but unlocked, Hansford was seated closest to the door, and Helmer explained that Hansford was free to leave at any time.

[¶38] “Custodial interrogation” is “questioning initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” State v. Huether, 2010 ND 233, ¶14, 790 N.W.2d 901 (quoting Miranda,

17 at 444). Whether a person is in custody if a mixed question of law and fact and is fully reviewable on appeal. Huether, at ¶14.

[¶39] In State v. Golden, an officer asked the defendant to come to the station for questioning. 2009 ND 108, ¶2, 766 N.W.2d 473. Upon arrival, the defendant was escorted to the interview room and was advised that he was free to leave at any time and did not have to answer any questions. Id. The defendant sat across from the officer, with the defendant seated closed to the door, which was closed but not locked. Id. The defendant confessed and later sought to suppress his statements on the basis that he was not provided with Miranda warnings. The district court granted the motion to suppress finding that the station has was a highly secured area with doors locked and restricted access. Id. at ¶4. The district court also noted that the defendant would not have been able to leave without police assistance and that armed officers were present. Id. However, this Court reasoned that those facts were insufficient to cause a reasonable person to believe he was not free to terminate the interrogation and leave at any time despite the coercive aspects of interrogation as found by the district court. Id. at ¶16. This Court held that the defendant was not in custody. Id.

[¶40] Similar to the facts set forth in Golden, the District Court determined that Hansford was not in custody at the time that incriminating statements were made, stating, “Special

Agent Helmer made it abundantly clear to the Defendant that he was not under arrest, and he was not charged with a crime.” App. p. 49, ¶2. “Despite the fact that that Hansford was not in custody, Special Agent Helmer went through the Miranda rights line by line.” App. p. 49, ¶2.

[¶41] The Districts Court’s determination that the Hansford was not in custody is supported by the fact that the Hansford voluntarily drove with Helmer to the police department after Hansford asked Helmer to give him a ride. App. audio 0:49. After arriving at the Public Safety Center, Hansford was informed that he was free to leave, and the door to the interview room was open. App. video 2:45. Hansford acknowledged that he understood that he was not under arrest and had the ability to leave. App. video 2:49. The fact that Hansford’s interview occurred in an interview room at the Public Safety Center does not make it custodial. Mathiason, 429 U.S. at 492, 495. The fact that Hansford may have needed officer assistance to leave is not alone sufficient to determine that a defendant is in custody. Golden, 2009 ND at ¶16. A reasonable person in Hansford’s situation would believe they were free to leave, meaning that Hansford was not in custody for the purposes of Miranda. Therefore, the facts and law support the District Court’s determination that

Hansford was not in custody at the time of the questioning.

2. Because Hansford was not in custody, Helmer was not required to cease questioning upon Hansford invoking his right to an attorney because Hansford’s statements were voluntary.

[¶42] In State v. Tallion addressed the question of the effect of giving Miranda warnings in a noncustodial interrogation. 470 N.W.2d 226 (N.D. 1991). This Court rejected both the interpretation that giving Miranda warnings in a noncustodial setting automatically disables further question by a suspect who asserts his Miranda rights, and the interpretation that gratuitous Miranda warnings are wholly irrelevant. Id. at 229. Instead, this Court adopted a middle ground, permitting the trial court to consider the reading of the Miranda rights as one factor among the many used to determine whether a suspect’s statements are voluntary. United States v. Harris, 221 F.3d 1048, 1051 (8th Cir. 2000).

[¶43] Under the analysis set forth in Tallion, the conversation that occurred surrounding

Hansford seeking a right to an attorney is relevant to whether Hansford’s statements were voluntarily, in addition to the factors considered under Goebel. During the time where

Hansford was deciding if he wanted to speak to an attorney, Helmer told Hansford, “I don’t want to do anything that you don’t want to do.” App. video 57:36. Helmer offered to wait for an attorney. App. video 59:13-59:22. Helmer left the room to get a phone book for

Hansford, the action of leaving indicating that the door was unlocked. App. video 1:02:22.

When Hansford said he was going to lie to confess, Helmer calmly explained that he was not asking Hansford to lie and Hansford had the power to decide whether he wanted to continue the conversation. App. video 1:13:11-1:13:20. After Hansford discontinued his attempts to contact an attorney, Hansford signed a waiver stating he would proceed with questioning without an attorney present. App. video 1:21:29-1:25:00. Hansford made the conscious choice to continue the conversation and try to talk his way out of the situation, and therefore his continued statements were voluntary.

[¶44] Under Tallion, an officer is not automatically disabled from furthering questioning once a suspect invokes Miranda rights. 470 N.W.2d at 229. While the court can consider that a defendant tried to assert rights, as long as the statement is voluntary, questioning may continue. As discussed thoroughly above, the District Court properly found that Hansford’s will was not overborn at the time the confession was given. Therefore, Hansford’s statements were voluntary. Because Hansford was not in custody and his statements were voluntary, questioning did not have to cease when Hansford requested an attorney.

B. Alternatively, the District Court did not err in admitting Hansford’s statements because, even if Hansford was in custody or Helmer was otherwise required to cease questioning, Hansford properly waved his Miranda rights.

[¶45] Alternatively, if the questioning was custodial, Hansford was advised of his rights and acknowledged that he understood them, which properly complied with the guidelines set forth in Miranda. The initial questioning occurred after Hansford voluntarily, knowingly, and intelligently waived the Miranda rights that were explained line by line to

Hansford.

[¶46] Miranda held that "[the] defendant may waive effectuation" of the rights conveyed in the warnings "provided the waiver is made voluntarily, knowingly and intelligently."

Miranda 384 U.S. at 444, 475. The inquiry has two distinct dimensions. Brewer v.

Williams, 430 U.S. 387, 404 (1977). “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct.

1135, 1140-41 (1986). “Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. “Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Id. (citing Fare v. Michael

C., 442 U.S. 707, 725 (1979); North Carolina v. Butler, 441 U.S. 369, 374-375 (1979)).

See also Brickle-Hicks, 2018 ND at ¶11. The due process analysis for voluntariness considers the totality of the circumstances, which is the same standard applicable to determine whether a defendant voluntarily, knowingly, and intelligently waived Miranda rights under the Fifth Amendment. Id.

1. Hansford voluntarily waived his Miranda rights for all statements made prior to his request for an attorney when he acknowledged he understood his rights after Helmer reviewed the Miranda rights line by line at the beginning of the interview.

[¶47] At the Public Safety Center, Helmer walked Hansford through his Miranda rights line by line. After each line, Hansford acknowledged he understood his rights. Helmer told

Hansford that he could exercise those rights at any time, the door was open, and Hansford could head out at any time. App. video 2:45. Helmer asked Hansford if he understood those rights, and Hansford acknowledged he understood those rights. App. video 2:49. Helmer advised Hansford of his Miranda rights before any conversation took place. App. video

1:05-1:32. It is evident by the facts in this case that Hansford’s waiver was the “product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran v.

Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1140-41 (1986).

[¶48] There was no evidence presented by Hansford that he was under any sort of duress or intimidation in the process of waiving his rights. There was no evidence presented by

Hansford that he did not understand his rights as they were read to him line by line. There was no evidence presented by Hansford that his waiver was not made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Id. There is, however, sufficient competent evidence supporting the District

Court’s findings that Hansford voluntarily, knowingly, and intelligently waived his

Miranda rights. Therefore, the District Court did not err in denying Defendant’s Motion in

Limine to Suppress for all statements prior to Hansford requesting an attorney.

[¶49] The Supreme Court of the United States further discussed evoking a right to council in Minnick v. Mississippi where the Court stated:

In Miranda v. Arizona, we indicated that once an individual in custody invokes his right to counsel, interrogation "must cease until an attorney is present"; at that point, "the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning." Edwards gave force to these admonitions, finding it "inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." We held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Further, an accused who requests an attorney, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."

Minnick v. Mississippi, 498 U.S. 146, 150, 11 S. Ct. 486 (1990). Minnick went on to state,

“Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities.” Id. at 156.

[¶50] In Oregon v. Bradshaw, a suspect was questioned about an automobile accident in which a body had been found in his wrecked pickup truck. 469 U.S. 1039 (1983). The defendant was questioned at the police station where he was advised of his Miranda rights and asked for an attorney. Id. (citing Oregon v. Bradshaw¸ 54 Ore. App. 949, 636 P.2d

1011). Later while being transferred from the police station, the defendant asked the police officer, “Well, what is going to happen to me know?” Id. at 1045-1046. The officer answered that respondent did not have to talk to him, and respondent said he understood.

Id. There followed a discussion between respondent and the officer as to where respondent was being taken and the offense with which he would be charged. Id. The officer

23 suggested that respondent take a polygraph examination, which he did, after another reading of his Miranda rights. Id.

[¶51] On appeal, the Supreme Court "found that the police made no threats, promises or inducements to talk, that defendant was properly advised of his rights and understood them and that within a short time after requesting an attorney he changed his mind without any impropriety on the part of the police. Id. at 1012. The court held that the statements made to the polygraph examiner were voluntary and the result of a knowing waiver of his right to remain silent.” Id.

[¶52] In this case, the District Court found:

“At one point the Defendant states he wants an attorney present. Helmer gave him time to think about that and left the room, giving the Defendant an opportunity to leave. The Defendant remained, and when Helmer returned, equivocated on his desire. At one point the Defendant remarked that attorneys just make things take longer. Helmer stated that he was not going to ask any further questions but would listen. Other than asking some non-interrogatory questions about whether the Defendant wanted an attorney, Helmer did not ask any questions. The Defendant was observed essentially talking himself out of having an attorney. At one point he indicated he just wanted a third person, not necessarily an attorney… Helmer did not ask any interrogatorial questions after the Defendant requested an opportunity to have an attorney present. When the Defendant could not reach an attorney, the Defendant stated he wanted to talk the matter out. He signed an unequivocal waiver.

[¶53] The District Court’s reasoning and factual determination are supported by the record in this case. Several minutes into the conversation, Hansford said he wanted to speak with an attorney. App. video 47:25. Helmer made a comment about Hansford’s sister and the truth. App. video 47:38- 47:50. Helmer then told Hansford he would give him some time to think and left the room. App. video 48:00. Several minutes passed before Helmer reentered the interview room. Helmer asked Hansford what he decided. App. video 55:30-

55:37. In response to Helmer’s inquiry, Hansford engaged in a conversation with Helmer

24 where Helmer told him that he was not going to ask him any questions rather he would sit there and listen. App. video 57:19. Helmer asked Hansford point-blank, “Do you want to stop and get a lawyer?” App. video 57:44. A few minutes later Hansford says, “The things with attorneys are…they can take forever.” App. video 59:15. In response, Hansford says,

“Let’s just talk it out.” App. video 1:00:00. After that, just to be sure, Helmer retrieved a phone book for Hansford along with a phone and proceeded to help Hansford use the phone book to attempt to contact an attorney. App. video 1:06:00-1:20:20. After several attempts to contact an attorney, Hansford waived his right, signed the voluntary statement form and spoke with Helmer. App. video 1:21:28 to end of video at 3:25:51.

[¶54] The evidence presented by Hansford that his rights were violated is not persuasive.

Hansford said he wanted an attorney, and Helmer gave him the opportunity to call one.

Hansford made the conscious choice to continue visiting with Helmer even after Helmer advised Hansford that he was not going to ask him anymore questions until he was sure what

Hansford wanted to do. Under the standard set forth in Minnick, Hansford was provided an opportunity to contact an attorney, and Hansford initiated further conversation. 498 U.S. 146.

Therefore, the District Court did not err in denying Hansford’s Motion in Limine to

Suppress.

III. The District Court properly denied Hansford’s Motion to Suppress because Hansford’s Sixth Amendment rights were not violated because Hansford was not under arrest, no formal charges had been filed, and there were no restrictions on his liberty at the time his statements were made.

[¶55] Hansford cites the Sixth Amendment of the Constitution of the United States and

Article I Section 12 of the North Dakota Constitution, in support of the argument that

Hansford’s constitutional rights were violated. Appellant’s Brief at ¶7. However, it is not the law that all persons questioned by law-enforcement officials are entitled to an attorney

25 during interrogation. State v. Lueder, 242 N.W.2d 142, 145 (N.D. 1976). The Supreme

Court of the United States has held that the right to counsel guaranteed by the Sixth

Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.

Rothgery v. Gillespie Cty., 554 U.S. 191, 194, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008).

The record indicates that Hansford was represented at his initial appearance and subsequent court proceedings. Therefore, Hansford’s rights under the Sixth Amendment and Article I

Section 12 were not violated.

CONCLUSION

[¶56] For the reasons stated above, Plaintiff-Appellee respectfully requests that this Court affirm the ruling of the District Court.

Dated this 14th day of September, 2018.

Mackoff Kellogg Law Firm Attorney for Appellee Golden Valley County State’s Attorney’s Office 38 Second Avenue East Dickinson, ND 58601 Ph: (701) 456-3210 Fax: (701) 227-4739 email: [email protected]

___/s/ Christina M. Wenko______By: Christina M. Wenko, Attorney ID# 06884

CERTIFICATE OF COMPLIANCE

[¶57] The undersigned hereby certifies, in compliance with N.D.R.App.P. 32(a)(7)(A), that the Brief of Appellee was prepared with proportional typeface, 12 pt. font, and the total number of words in the above Brief, including footnotes, but excluding words in the table of contents, the table of citations, and any addendum, totals 7,843 words.

Dated September 14, 2018. Mackoff Kellogg Law Firm Attorney for Appellee Golden Valley County State’s Attorney’s Office 38 Second Avenue East Dickinson, ND 58601 Ph: (701) 456-3210 Fax: (701) 227-4739 email: [email protected]

___/s/ Christina M. Wenko______By: Christina M. Wenko, Attorney ID# 06884

20180179 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT SEPTEMBER 14, 2018 CERTIFICATE OF SERVICE STATE OF NORTH DAKOTA

[¶58] I, Christina M. Wenko, certify that I served the following documents as indicated

below:

1. Brief of Appellee; and 2. Certificate of Service. On September 14, 2018 by sending a true and correct copy thereof by electronic means only to the following email address, which best to my knowledge, is the actual email address of the person intended to be served, to wit:

Markus Powell Reichert Armstrong Law Office 513 Elks Drive Dickinson, ND 58601 Phone: 701-483-8700 [email protected] [email protected]

__/s/ Christina M. Wenko______By: Christina M. Wenko, Attorney ID# 06884