State v. Gray, 2017 ND 108

David B. Gray was charged with disorderly conduct under N.D.C.C. § 12.1-31-01(1)(h) after neighbors reported he repeatedly watched their home with binoculars and made them afraid; a deputy’s affidavit describing these facts was filed with the complaint.
Gray was tried by jury and convicted; he proceeded pro se and filed two motions to dismiss on the morning of trial and later a Rule 35 motion to correct an illegal sentence, all of which the district court denied (the court characterized the Rule 35 motion as frivolous and meritless).
Gray claimed (among other things) the complaint was “illegal”/defective under N.D.R.Crim.P. 3, that the statute is unconstitutionally vague, that his conduct was constitutionally protected, and that there was insufficient evidence to support the conviction.
The appellate record did not include a trial transcript and did not show the district court’s ruling or rationale on Gray’s pretrial motions to dismiss.
The district court had issued a scheduling order setting a pretrial motions deadline 43 days after the order; Gray’s motions were filed well after that deadline and he did not show good cause for the delay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of complaint under Rule 3	Complaint + affidavit provided essential facts supporting the charge	Complaint was defective and failed to state facts constituting the offense	Court declined review due to limited record and noted affidavit may be read with complaint; Gray’s motion was likely untimely
Timeliness of pretrial motions	Scheduling order deadline enforced; untimely motions are waivable	Motions to dismiss filed day of trial; court erred by not ruling	Motions untimely under N.D.R.Crim.P. 12; appellant failed to show good cause and record insufficient to review district court action
Vagueness / constitutional challenge to statute	State defended statute as valid	Gray raised vagueness for first time on appeal	Court declined to consider because issue was not raised below and Gray provided inadequate authority/analysis
Sufficiency of evidence / preserved for appeal	State relied on evidence (affidavit, testimony at trial) to support verdict	Gray contended evidence was insufficient; argued conviction not supported	Court declined to review sufficiency because transcript was not provided and record did not permit meaningful review; also noted Rule 29 preservation requirement
Motion to correct illegal sentence (Rule 35)	Sentence lawful; Rule 35 not available to attack conviction	Argued conviction invalid and sentence illegal	Denied: Rule 35 is not a vehicle to collaterally attack the conviction; appellant sought to reopen final judgment

State v. Bornhoeft, 770 N.W.2d 270 (N.D. 2009) (an affidavit filed with a complaint may be read with the complaint to test sufficiency/probable cause)
State v. Zink, 791 N.W.2d 161 (N.D. 2010) (standard of review for district court rulings on motions to dismiss)
State v. Vetter, 826 N.W.2d 334 (N.D. 2013) (standard for reviewing sufficiency of evidence for jury verdicts)
State v. Stuart, 544 N.W.2d 158 (N.D. 1996) (a sworn complaint may suffice without an affidavit; magistrate may receive affidavit/testimony)
State v. Raulston, 707 N.W.2d 464 (N.D. 2005) (explanation of what constitutes an illegal sentence under Rule 35)
State v. Ertelt, 558 N.W.2d 860 (N.D. 1997) (Rule 35 may not be used to collaterally attack a conviction)
Hill v. United States, 368 U.S. 424 (U.S. 1962) (Rule 35 is not a vehicle to reopen a final judgment)