[¶ 1] Tyler James Jennewein appeals from criminal judgments entered on jury verdicts finding him guilty of class A misdemeanor driving under the influence of liquor or drugs and class B misdemeanor driving under suspension. Because we conclude the district court did not abuse its discretion in its challenged rulings and did not misapply the law, we affirm.
I
[¶ 2] During the early morning hours of October 5, 2013, a Grand Forks police officer stopped a vehicle after observing it screech to a halt at an intersection, causing a group of people to jump out of the crosswalk. The officer approached the vehicle and found Jennewein sitting in the front passenger seat. While the officer spoke with Jennewein, Jennewein’s girlfriend ran up to the vehicle and sat in the driver’s seat. The officer went to the driver’s side of the vehicle to speak with Jen-newein’s girlfriend and noticed a glass marijuana pipe lying on the ground below the driver’s side window. Jennewein denied driving the vehicle, Jennewein’s girlfriend said she had been driving and neither Jennewein nor his girlfriend claimed possession of the pipe. The officer returned to the passenger side of the vehicle and observed that Jennewein exhibited signs of intoxication. After Jennewein performed field sobriety tests, the officer placed him under arrest for driving under the influence, driving under suspension and possession of drug paraphernalia.
[¶ 3] Jennewein’s first trial in July 2014 resulted in a mistrial. A second trial was held on September 30 and October 1, 2014. Jennewein’s defense was that he was not the driver of the vehicle, his girl
II
[¶4] Jennewein argues the district court erred in allowing the prosecution to introduce into evidence two certified copies of criminal driving under the influence judgments because the prosecution failed to disclose the documents prior to trial in violation of N.D.R.Crim.P. 16.
[¶ 5] The criminal information charged that the October 5, 2013, incident was Jen-newein’s “third offense in seven years,” making the crime a class A misdemeanor. See N.D.C.C. § 39-08-01(3). On December 10, 2013, Jennewein made a “continuing” request for discovery from the State, including his “criminal record.” Jennew-ein received a driver abstract issued by the Department of Transportation. At the first trial, Jennewein stipulated this charge would be a third offense and the jury instructions did not include as an element of the crime proof of the prior convictions. Before the second trial, the prosecution submitted identical proposed jury instructions and Jennewein requested pattern jury instructions which did not require proof of the two prior convictions to establish the class A misdemeanor level.of the offense. At a final dispositional conference on September 26, 2014, Jennewein’s attorney informed the court and the prosecution she was not stipulating to “everything,” but did not mention she was no longer stipulating to the prior offenses.
[¶ 6] On the first day of trial the prosecution learned Jennewein would not stipulate to the two prior offenses. That same day the prosecution acquired certified copies of criminal judgments from Grand Forks Municipal Court and Clay County, Minnesota. The prosecution informed the district court it would be amending the jury instructions to require proof of the prior convictions as an element of the offense. On the second day of trial, Jennew-ein objected to admission of the certified copies of the convictions on the ground the prosecution violated its discovery obligations because “they’ve had a year to get me this information [and] they’ve chosen the second day of trial.” The court denied Jennewein’s objection and the certified copies of the convictions were admitted into evidence.
[¶ 7] Rule 16, N.D.R.Crim.P., governs discovery in criminal cases and provides in subsection (a)(1)(C):
“(C) Defendant’s Previous Record. Upon a defendant’s written request, the prosecution must furnish the defendant with a copy of the defendant’s prior criminal record, if any, that is within the prosecution’s possession, custody, or control if the prosecuting attorney knows- — -or through due diligence could know — that the record exists.”
“Rule 16 is a discovery rule, not a constitutional mandate, and is designed to further the interests of fairness.”
City of Grand Forks v. Ramstad,
[¶ 8] Under N.D.R.Crim.P. 16(a)(1)(C), the prosecution must furnish the defendant a copy of his criminal record “that is within the prosecution’s possession, custody, or control.” Here, Jennewein was provided his driver abstract and decided to stipulate to the two prior convictions during the first trial. The prosecution, therefore, had no need to obtain evidence of the convictions at that time.
See State v. Saul,
[¶ 9] Jennewein nevertheless contends he suffered substantial prejudice because the jury was not instructed that he. must have had counsel or properly waived counsel for the prior convictions to be valid for purposes of finding him guilty of the class A misdemeanor charge.
Cf. State v. Orr,
[¶ 10] We conclude Jennewein has failed to establish the prosecution violated the discovery rules. The district court did not abuse its discretion in admitting the certified copies of the convictions into evidence.
Ill
[¶ 11] Jennewein argues the district court erred in refusing to grant his motion to sever for separate trials the offenses of driving under the influence and
[¶ 12] Under N.D.R.Crim.P. 8(a), two or more offenses may be joined for trial if the offenses charged “are of the same or similar character or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Under N.D.R.Crim.P. 14(a), a district court may order separate trials of counts if joinder of offenses “appears to prejudice a defendant.” In
State v. Freed,
“The purpose of N.D.R.Crim.P. 8 is to provide judicial convenience and economy. State v. Neufeld,1998 ND 103 , ¶ 12,578 N.W.2d 536 . ‘The purpose of Rule 14- is to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fail* trial.’ State v. Purdy,491 N.W.2d 402 , 405 (N.D.1992). A decision to consolidate offenses at trial is left to the discretion of the trial court, and we will reverse a trial court’s decision only if there is a clear abuse of discretion. State v. Warmsbecker,466 N.W.2d 105 , 108 (N.D.1991). ‘Under > Rule 14, an aggrieved defendant may seek relief from prejudicial joinder,’ but ‘has the burden of demonstrating substantial prejudice from a consolidated trial.’ Warmsbecker,466 N.W.2d at 109 . ‘[T]he defendant’s burden is arduous.’ Neufeld, at ¶ 15. ‘A mere showing that a separate trial would have provided a better chance of an acquittal will not suffice.’ Warmsbecker,466 N.W.2d at 109 .”
[¶ 13] Where, as here, a motion for severance is not renewed at the close of evidence, the severance issue is not preserved and we review for obvious error under N.D.R.Crim.P. 52(b).
State v. Bingaman,
“Our Court has stated that it will only exercise its power to notice obvious error in ‘exceptional circumstances where the accused has suffered serious injustice.’ State v. Johnson,2001 ND 184 , ¶ 12,636 N.W.2d 391 . We exercise our power to find obvious error cautiously and have very rarely found obvious error under Rule 52(b). See Johnson, at ¶ 12. ‘An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.’ State v. Miller,2001 ND 132 , ¶ 25,631 N.W.2d 587 . In order to prove that obvious error occurred, [the defendant] would have the burden of showing: ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ Id.”
Bingaman, at ¶ 9.
[¶ 14] Jennewein argues he suffered substantial prejudice by consolidation of the offenses because he would have been forced to testify about all of the offenses had he chosen to testify. Jennewein claims he needed to testify he was not driving the vehicle to avoid the driving under the influence and under suspension charges, and he had a strong need to refrain from testifying on the possession of paraphernalia charge. However, no compelling prejudice is shown where a defendant asserts only a general desire to testify about some counts and not others.
See Neufeld,
[¶ 15] We have reviewed the record and conclude Jennewein has not established obvious error under N.D.R.Crim.P. 52(b).
IV
[¶ 16] Jennewein argues the prosecution committed reversible error by
[¶ 17] During closing argument, the prosecutor stated: “Corporal Lammers testified that the defendant admitted, ‘I’m drunk.’ There hasn’t been any testimony today to dispute that. Mr. Jennewein was drunk that night.” The district court overruled Jennewein’s objection to the comment. Jennewein claims the prosecutor’s statement was an indirect comment on his failure to testify. The prosecution argues the statement did not infer Jen-newein failed to testify, but “was simply a comment on the strength of the prosecution’s case based on the testimony received during trial.”
[¶ 18] In
State v. Myers,
“It is a fundamental principle of constitutional law that a prosecutor may not comment on a defendant’s failure to testify in a criminal case. State v. His Chase,531 N.W.2d 271 , 273 (N.D.1995); State v. Flohr,310 N.W.2d 735 , 736 (N.D.1981). ‘A comment on the silence of a defendant is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the [United States] Constitution.’ State v. Ebach,1999 ND 5 , ¶ 15,589 N.W.2d 566 . See also N.D. Const. art. I, § 12; N.D.C.C. § 29-21-11. This Court reviews de novo a claim of a constitutional rights violation. State v. Keyes,2000 ND 83 , ¶9,609 N.W.2d 428 .”
“Generally, ‘[a] statement that certain evidence is uncontroverted or unrefuted or uncontradicted does not constitute a comment on the accused’s failure to testify where the record indicates that persons other than the accused could have offered contradictory testimony.”
State v. Gibbs,
[¶ 19] In
Scutchings,
[¶ 20]
Scutchings
is different than this case. First, although Jennewein did not testify and rested without presenting any evidence, his defense to the charges was
[¶ 21] Assuming the prosecutor’s remarks were improper comments on Jen-neweiris failure to testify, we conclude from our review of the entire record that the error was harmless beyond a reasonable doubt.
V
[¶ 22] Jennewein argues the district court erred in sentencing him to one year of participation in the 24/7 sobriety program without allowing day for day credit for the pretrial time he had completed in the 24/7 sobriety program which was made a condition of his bond.
[¶ 23] “[A] district court is allowed the widest range of discretion in sentencing, and appellate review of the sentence itself focuses only on whether the district court ‘acted within the limits prescribed by statute, or substantially relied on an impermissible factor.’ ”
State v. Wardner,
[¶ 24] Before trial, Jennewein was ordered to participate in the 24/7 sobriety program as a condition of his bond, which was within the district court’s discretion. See N.D.C.C. § 54-12-31. At sentencing, N.D.C.C. §. 39 — 08—01(5)(c) provided that “[f]or a third offense within seven years, the sentence must include ... at least one years’ supervised probation; and participation in the twenty-four seven sobriety program under chapter 54-12 as a mandatory condition of probation.” Jennewein has pointed to no statutory provision requiring that he receive day for day credit for pretrial time spent participating in the 24/7 sobriety program.
[¶ 25] Effective April 15, 2015, the 64th Legislative Assembly amended and enacted N.D.C.C. § 39-08-01(5)©, which provides in part “[i]f the individual has participated in the twenty-four seven sobriety program as a condition of pretrial release ... the sentencing court may give credit for the time the individual has already served on the twenty-four seven sobriety program when determining the amount of time the individual must serve on the twenty-four seven sobriety program for the purposes of probation, if that individual has not violated the twenty-four seven sobriety program before sentencing.” S.B. 2052, § 6, 64th N.D. Legis. Sess. Although Jennewein contends the case should be remanded for resentencing because this provision has retroactive application, the Legislature only made retroactive certain amendments to subsection 1 of N.D.C.C. § 39-08-01, not amendments to subsection 5 of N.D.C.C. § 39-08-01. See S.B. 2052, § 14, 64th N.D. Legis. Sess.
[¶ 26] We conclude the district court acted within the limits prescribed by statute, did not substantially rely on an impermissible factor and did not misapply the law.
VI
[¶ 27] It is unnecessary to address other arguments raised because they either