State v. Ismail, 981 N.W.2d 896

On March 9, 2021, a woman who had snorted an M30 fentanyl pill identified an Arabic male seller; she later identified Zhiwar Ismail in a March 24 photo lineup.
Police executed a search warrant of Ismail’s apartment on April 6, 2021, seizing two gabapentin pills and one clonazepam pill.
Ismail was charged with possession and delivery of a controlled substance.
A consolidated bench trial was held February 22, 2022; the district court found Ismail guilty of both counts.
Ismail appealed raising: ineffective assistance of counsel, improper judicial questioning of witnesses, and challenges to the sufficiency and weight of the evidence.
The Supreme Court affirmed the convictions and declined to consider ineffective-assistance claims on direct appeal, addressing the other issues under applicable standards.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance of counsel	State: counsel provided adequate representation; claims premature on direct appeal	Ismail: counsel erred by not moving for acquittal (Rule 29), waiving opening, and failing to object	Court: declined to address on direct appeal; counsel claims belong in postconviction proceedings (DeCoteau)
Judicial questioning of witnesses	State: court may question witnesses under N.D.R.Ev. 614 and did not exceed authority	Ismail: judge’s questioning was improper and prejudicial	Court: no obvious error; judge’s questions largely for clarification and did not substitute advocacy (N.D.R.Ev. 614; Foard/Yodsnukis)
Sufficiency of the evidence	State: testimony and physical evidence support convictions	Ismail: evidence insufficient to prove possession/delivery beyond a reasonable doubt	Court: sufficient evidence when viewed in light most favorable to verdict; rational factfinder could convict (Yineman; Wilkie)
Weight of the evidence / credibility	State: witness testimony and search evidence were credible	Ismail: testimony and proof lacked credibility and weight	Court: Ismail failed to preserve weight claim by Rule 29 motion; no obvious error in court’s credibility findings—district court as factfinder not second-guessed (Pemberton; Kruger)

DeCoteau v. State, 1998 ND 199, 586 N.W.2d 156 (ineffective-assistance claims typically raised in postconviction proceedings)
State v. Pemberton, 2019 ND 157, 930 N.W.2d 125 (obvious error standard for unpreserved trial objections)
State v. Foard, 355 N.W.2d 822 (N.D. 1984) (trial judge may question witnesses but must remain impartial)
State v. Yodsnukis, 281 N.W.2d 255 (N.D. 1979) (factors to evaluate propriety of judge’s questioning)
State v. Yineman, 2002 ND 145, 651 N.W.2d 648 (bench-trial sufficiency review; distinction between sufficiency and weight)
City of Wahpeton v. Wilkie, 477 N.W.2d 215 (N.D. 1991) (same standard of review for bench trials as jury trials on sufficiency)
State v. Himmerick, 499 N.W.2d 568 (N.D. 1993) (preserving sufficiency issues in bench trials rule change discussed)
Kruger v. Goossen, 2021 ND 88, 959 N.W.2d 847 (district court is the sole determiner of credibility in a bench trial)