State v. Helland: Dismissed Deferred Impositions Are Not Predicate “Convictions” for the Five-Year Firearms Prohibition; Courts May Take Judicial Notice at Preliminary Hearings

State v. Helland: Dismissed Deferred Impositions Are Not Predicate “Convictions” for the Five-Year Firearms Prohibition; Courts May Take Judicial Notice at Preliminary Hearings

Introduction

In State v. Helland, 2025 ND 63 (N.D. Mar. 28, 2025), the North Dakota Supreme Court affirmed the dismissal of four counts of unlawful possession of a firearm brought against Leon Glenn Helland under N.D.C.C. § 62.1-02-01(1)(b). The case presents two significant holdings:

  • First, a district court in a criminal preliminary hearing has inherent authority to take judicial notice of adjudicative facts drawn from court records—even though the Rules of Evidence (including Rule 201) do not apply at that stage—so long as certain standards are met and the parties have the opportunity to be heard.
  • Second, while the State may prove in the current prosecution that a prior Class A misdemeanor involving violence or intimidation was “committed while using or possessing a firearm” (even if firearm use was not an element and was not admitted in the prior case), a dismissed deferred imposition of sentence cannot serve as a “conviction” predicate under § 62.1-02-01(1)(b). Once the prior case is dismissed, it no longer qualifies as a “conviction” for purposes of the five-year firearms prohibition.

The State appealed, arguing the district court improperly considered documents outside the preliminary hearing record and erred in finding no probable cause. The Supreme Court ultimately agreed that the State’s preliminary hearing showing satisfied the minimal probable cause burden and that the firearm-use fact need not have been proven in the earlier case. Nevertheless, it affirmed dismissal because Helland’s prior menacing case—originally disposed via deferred imposition—had been set aside and dismissed more than a year before the alleged firearm possession. Consequently, no qualifying predicate “conviction” existed.

Summary of the Opinion

The Supreme Court addressed three main questions:

  1. Judicial Notice at Preliminary Hearings: The Court held that trial courts possess inherent authority to take judicial notice of public court records during preliminary hearings even though N.D.R.Ev. 1101(d)(3)(C) makes the Rules of Evidence inapplicable. This authority is guided by Rule 201 principles and reviewed for abuse of discretion. The district court did not abuse its discretion in considering the plea agreement and amended information from Helland’s prior menacing case, especially where the State identified that case in the charging instrument and did not timely object.
  2. Substantive Element—Firearm Use in the Predicate Offense: Interpreting § 62.1-02-01(1)(b), the Court held that the statute requires proof that the prior Class A misdemeanor “was committed while using or possessing a firearm,” but does not require firearm use or possession to be an element of the predicate offense, nor that it have been admitted or proven in that prior proceeding. The State may prove this fact in the current prosecution—a circumstance-specific approach consistent with United States v. Hayes, 555 U.S. 415 (2009).
  3. Effect of a Dismissed Deferred Imposition: Despite concluding the State’s preliminary hearing evidence sufficed for probable cause and that the district court misinterpreted § 62.1-02-01(1)(b), the Supreme Court affirmed the dismissal on an alternative ground raised by Helland. Because Helland’s prior menacing case had been dismissed (after successful completion of a deferred imposition of sentence) more than a year before the alleged firearm possession, there was no qualifying predicate “conviction” under § 62.1-02-01(1)(b). Reading § 62.1-02-01(2)(b) together with §§ 12.1-32-02(4) and 12.1-32-07.1, and following State v. Nelson and State v. Johns, the Court held that a deferred imposition counts as a “conviction” only so long as it has not been dismissed. Any apparent tension with § 12.1-32-07.1(2) is resolved in favor of the defendant under the rule of lenity.

Disposition: Affirmed.

Analysis

1) Precedents and Authorities Cited

  • N.D.R.Ev. 1101(d)(3)(C): Provides that the Rules of Evidence (other than privilege) do not apply to preliminary examinations in criminal cases. This sets the procedural posture—no strict Rule 201 overlay at preliminary hearings.
  • N.D.R.Ev. 201: Although inapplicable by rule, the Court uses Rule 201 standards to guide inherent judicial notice practice. Rule 201(b) permits noticing facts accurately and readily determinable from reliable sources; Rule 201(c) and (d) allow sua sponte notice at any stage; Rule 201(e) provides a right to be heard on the propriety of notice.
  • Inherent Authority to Take Judicial Notice: The Court relied on out-of-state and scholarly authorities recognizing courts’ inherent power:
    • Eagan Econ. Dev. Auth. v. U-Haul Co. of Minn., 787 N.W.2d 523 (Minn. 2010) (public records; orderly administration of justice);
    • Gnecchi v. State, 364 P.2d 225 (Wash. 1961) (trial and appellate courts may notice facts outside the record meeting certain standards);
    • Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994) (quoting Currie, 1960 Wis. L. Rev. 39) (judicial notice outside the record is an inherent judicial function).
  • North Dakota authorities on judicial notice of court records:
    • Interest of D.K.A., 2024 ND 194, 13 N.W.3d 133 (courts may notice adjudicative facts accessible from the court’s case management system, including firearms prohibitions in prior orders);
    • In re J.C., 2007 ND 111, 736 N.W.2d 451 (courts may notice orders in prior proceedings);
    • In re Estates of Kjorvestad, 304 N.W.2d 83 (N.D. 1981) (judicial notice of prior litigation);
    • Hadland v. Schroeder, 326 N.W.2d 709 (N.D. 1982) (no error where court took sua sponte judicial notice and parties had opportunity to object post-decision).
  • Standard of Review and abuse of discretion:
    • Koon v. State, 2023 ND 247, 1 N.W.3d 593 (judicial notice decisions reviewed for abuse of discretion);
    • Orwig v. Orwig, 2021 ND 33, 955 N.W.2d 34 (definition of abuse of discretion: arbitrary/unreasonable/misapplication of law).
  • Preliminary hearing/probable cause standards:
    • State v. Brown, 2021 ND 226, 967 N.W.2d 797; State v. Carrillo, 2021 ND 239, 968 N.W.2d 134; State v. Blunt, 2008 ND 135, 751 N.W.2d 692; State v. Gratton, 2020 ND 41, 938 N.W.2d 902 (probable cause is a minimal burden; hearsay permissible; screening function only);
    • N.D.R.Crim.P. 5.1(a) (probable cause may be based on hearsay).
  • Statutory interpretation principles:
    • Henry Hill Oil Servs. LLC v. Tufto, 2023 ND 41, 987 N.W.2d 314; State v. Riggin, 2021 ND 87, 959 N.W.2d 855; State v. Craig, 2019 ND 123, 927 N.W.2d 99; State v. McCleary, 2025 ND 24, 16 N.W.3d 445; State v. Nupdal, 2021 ND 200, 966 N.W.2d 547 (plain meaning; context; purpose; harmonization);
    • Rule of lenity/strict construction of penal statutes: State v. Beciraj, 2003 ND 173, 671 N.W.2d 250; State v. Rohrich, 450 N.W.2d 774 (N.D. 1990) (ambiguities resolved in favor of defendant).
  • Elements- vs. facts-based predicate determinations:
    • United States v. Hayes, 555 U.S. 415 (2009) (for 18 U.S.C. § 922(g)(9), the predicate need not have a domestic relationship as a statutory element; it suffices to prove the prior offense was, in fact, committed against a domestic victim). The Court adopts a similar “circumstance-specific” approach for the firearm-use/possession condition in § 62.1-02-01(1)(b).
  • Deferred imposition and dismissal:
    • State v. Nelson, 2019 ND 204, 932 N.W.2d 101 (a dismissed deferred imposition cannot be used to trigger mandatory minimums; only undismissed deferred sentences count as “prior convictions” for enhancement);
    • State v. Johns, 2019 ND 227, 932 N.W.2d 893 (same rule applied to drug paraphernalia enhancements under § 19-03.4-03(2));
    • State v. Ebertz, 2010 ND 79, 782 N.W.2d 350; N.D.C.C. § 12.1-32-02(4) (court may defer imposition and place on probation); N.D.C.C. § 12.1-32-07.1 (dismissal upon successful completion; release from penalties “except as provided by sections 12.1-32-15 and 62.1-02-01”); N.D.R.Crim.P. 32.1 (automatic dismissal timeline absent contrary order).
  • Appellate practice and alternative grounds for affirmance:
    • Powell v. Statoil Oil & Gas LP, 2023 ND 235, 999 N.W.2d 203; Kalvoda v. Bismarck Pub. Sch. Dist. #1, 2011 ND 32, 794 N.W.2d 454; Tkach v. American Sportsman, Inc., 316 N.W.2d 785 (N.D. 1982) (an appellee may defend the judgment on any ground raised below without cross-appeal where no more favorable result is sought);
    • Great Plains Royalty Corp. v. Earl Schwartz Co., 2021 ND 62, 958 N.W.2d 128 (purely legal issues can be decided as alternative grounds).
  • Use of materials embraced by the pleadings/public record:
    • Krile v. Lawyer, 2022 ND 28, 970 N.W.2d 150 (civil Rule 12(b)(6) analogy: pleadings and embraced public record materials may be considered);
    • Bala v. Stenehjem, 671 F. Supp. 2d 1067 (D.N.D. 2009); Mattes v. ABC Plastics, Inc., 323 F.3d 695 (8th Cir. 2003).
  • Other judicial notice examples:
    • Eubanks v. Fisketjon, 2021 ND 124, 962 N.W.2d 427 (notice of plea in prior case);
    • Wisnewski v. Wisnewski, 2020 ND 148, 945 N.W.2d 331 (notice of DVPO extension);
    • Patten v. Green, 397 N.W.2d 458 (N.D. 1986) (notice of records in related litigation).

2) The Court’s Legal Reasoning

a) Judicial Notice in Preliminary Hearings (Inherent Authority)

Although Rule 1101(d)(3)(C) renders the Rules of Evidence inapplicable at preliminary hearings, the Court recognized that trial courts retain an inherent power to take judicial notice of adjudicative facts, particularly court records. That power is guided by the standards in Rule 201: the noticed facts must be accurately and readily determinable from sources of unquestionable reliability (e.g., the court’s own case management system and filings). Review is for abuse of discretion, and parties should receive an opportunity to be heard upon request.

Here, the charging document itself specified the prior menacing case by case number as the predicate. During the preliminary hearing, the district court referenced the amended information and plea agreement and later requested briefing based on those filings. The State did not object in real time and, after the court’s order, did not request to be heard on judicial notice propriety. Given the public, verifiable nature of the records and the State’s lack of timely objection, the Court found no abuse of discretion.

b) Statutory Interpretation of § 62.1-02-01(1)(b): What Must Be Proven

Section 62.1-02-01(1)(b) imposes a five-year firearms disability on a person who has been convicted of a qualifying Class A misdemeanor “involving violence or intimidation” codified in chapters 12.1-16 through 12.1-25 and where “the offense was committed while using or possessing a firearm.” The Court parsed the text and emphasized what the statute does not say: it does not require that firearm use/possession be an element of the predicate crime, nor that it have been proven or admitted in the earlier proceeding.

Instead, consistent with Hayes, the statute adopts a circumstance-specific approach: the State may, in the current prosecution, prove as a historical fact that the predicate offense was committed while using or possessing a firearm. The district court erred in holding the State was required to show that firearm use/possession was admitted or proven in the predicate case itself. At the preliminary hearing, an officer’s testimony that the prior affidavit of probable cause indicated firearm involvement—though hearsay—was adequate to meet the minimal probable cause standard.

c) The Dispositive Issue: Dismissed Deferred Imposition Is Not a Predicate “Conviction”

The decisive question was whether Helland “has been convicted” for purposes of § 62.1-02-01(1)(b) after his deferred imposition was set aside and the case dismissed. Section 62.1-02-01(2)(b) expansively defines “conviction” to include instances in which a court has “deferred imposition of sentence” under § 12.1-32-02(4). But applying Nelson and Johns, the Court reiterated a crucial limitation: a deferred imposition counts as a conviction only so long as it has not been dismissed. Once dismissed, the matter cannot serve as a prior conviction for enhancement or predicate purposes.

The Court harmonized § 62.1-02-01(2)(b) with the deferment and dismissal framework (§§ 12.1-32-02(4), 12.1-32-07.1, and N.D.R.Crim.P. 32.1). To the extent § 12.1-32-07.1(2) (“released from all penalties and disabilities … except as provided by … § 62.1-02-01”) might be read to preserve a firearms disability even after dismissal, the Court held that § 62.1-02-01 itself does not create such an exception. Any ambiguity is resolved in the defendant’s favor under the rule of lenity. Because the Morton County dismissal occurred more than a year before the alleged possession, there was no qualifying predicate “conviction,” and the charges were properly dismissed.

3) Impact and Practical Implications

a) Prosecutorial Proof in § 62.1-02-01(1)(b) Prosecutions

  • Firearm-use/possession in predicate offense: The State need not show the predicate statute included firearm use as an element or that the defendant admitted or was convicted of firearm use in the prior case. It may prove, in the current case, that the prior offense was “committed while using or possessing a firearm,” using admissible evidence at trial (and hearsay at preliminary hearings).
  • Verify the predicate’s current status: Before charging, prosecutors must confirm whether the prior case remains an undismissed conviction. A deferred imposition that has been set aside and dismissed does not qualify, even if five years have not elapsed since the original judgment or probation release.
  • Documentary proof: Certified judgments, docket entries, and orders will be critical, both to establish the existence (and non-dismissal) of the predicate conviction and to establish timing within the five-year window.

b) Defense Practice

  • Challenge the predicate: If the prior Class A misdemeanor was resolved via deferred imposition and later dismissed, move to dismiss firearm-possession charges under § 62.1-02-01(1)(b) for lack of a qualifying conviction. Obtain and present the dismissal order.
  • Judicial notice strategy: Courts can take judicial notice of prior orders and case records even at preliminary hearings. Be prepared to supply accurate docket numbers and filings to assist the court’s notice, and timely object if the court notices facts you dispute.

c) Courtroom Procedure and Judicial Notice

  • Inherent authority recognized: Trial courts may notice adjudicative facts from reliable public records during preliminary hearings. Best practice is to make the notice explicit and offer parties an opportunity to be heard.
  • Preservation matters: Parties must timely object or request to be heard on judicial notice to preserve challenges; post-hoc protests without a request to be heard may be insufficient.

d) Policy and Legislative Considerations

  • Effect on the five-year disability: Helland effectively holds that once a deferred imposition is dismissed, the person no longer “has been convicted” for § 62.1-02-01(1)(b) purposes, terminating the disability even if fewer than five years have elapsed. This is a substantial defendant-friendly clarification.
  • Statutory harmony: The Court noted tension between § 12.1-32-07.1(2)’s “except as provided by … § 62.1-02-01” language and § 62.1-02-01(2)(b). The Legislature may wish to clarify whether any narrow, post-dismissal firearms disability is intended and, if so, how it should be framed to survive rule-of-lenity scrutiny.
  • Unresolved edge cases: Helland involved a dismissal more than a year before the alleged possession. The Court did not address whether a post-offense dismissal of a deferred imposition retroactively negates predicate status that existed at the time of possession. Charging decisions should account for timing.

Complex Concepts Simplified

  • Deferred imposition of sentence: The court postpones sentencing and places the defendant on probation. If the defendant successfully completes probation, the court sets aside the conviction and dismisses the case. Before dismissal, the deferred imposition counts as a “conviction” for many purposes; after dismissal, it typically does not.
  • Judicial notice: A court’s acceptance of certain facts as true without formal proof because they come from sources whose accuracy cannot reasonably be questioned (e.g., court dockets, filed orders).
  • Preliminary hearing: A screening proceeding to determine whether probable cause exists to believe the defendant committed a crime. The evidentiary bar is low, and hearsay may be considered.
  • Rule of lenity: Ambiguities in criminal statutes are resolved in favor of the defendant.
  • Elements- vs. circumstance-specific approach: Some legal questions ask whether a fact was an element of a prior offense; others, like § 62.1-02-01(1)(b) as construed here, ask whether a fact (firearm use/possession) actually occurred during the commission of the prior offense, regardless of whether it was an element of the statute of conviction.
  • Abuse of discretion: A standard of appellate review: a court abuses its discretion if it acts arbitrarily, misapplies the law, or fails to engage in a rational decision-making process.

Conclusion

State v. Helland sets two important precedents in North Dakota criminal practice. Procedurally, it confirms that trial courts may employ their inherent authority to take judicial notice of reliable public records at preliminary hearings, even though the Rules of Evidence do not apply—subject to Rule 201-like safeguards and abuse-of-discretion review. Substantively, it clarifies two points under N.D.C.C. § 62.1-02-01(1)(b): the State may prove in the current prosecution that the predicate Class A misdemeanor was “committed while using or possessing a firearm” without showing that fact was an element or admitted in the predicate case; however, a deferred imposition that has been set aside and dismissed cannot serve as a predicate “conviction” for the five-year firearms prohibition. Applying the latter, the Court affirmed dismissal because Helland’s menacing case had been dismissed more than a year before the alleged possession, eliminating the statutory predicate.

The decision meaningfully reshapes charging and defense strategies under § 62.1-02-01. Prosecutors must verify not just the historical occurrence of a qualifying misdemeanor and its firearm-related circumstances, but also the continuing legal existence of the predicate conviction; defense counsel should scrutinize whether any deferred imposition was dismissed prior to the alleged possession. Finally, the opinion invites legislative clarification of the interplay between dismissal relief and firearms disabilities, especially in light of § 12.1-32-07.1(2)’s “except as provided” clause and the rule of lenity the Court applied.

Case Details

Year: 2025
Court: Supreme Court of North Dakota

Judge(s)

Bahr, Douglas Alan

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