See also State v. Bernstein, 2005 ND APP 6, ¶ 23, 697 N.W.2d 371 (explaining "a statement offered to show its effect upon the state of mind of the listener, rather than the truth of the matter asserted, is not hearsay" and the "nonhearsay use has been invoked with respect to the issue of . . . knowledge or belief"). "In a bench trial, it is presumed the district court only considered competent evidence because a judge, when deliberating the ultimate decision, is capable of distinguishing between admissible and inadmissible evidence."

"Where no separate judgment of conviction has been entered and the order deferring imposition of sentence complies with the requirements of N.D.R.Crim.P. 32(b) for criminal judgments, the order serves as the judgment of conviction and is appealable." Berger , 2004 ND 151, ¶ 8, 683 N.W.2d 897 ; see also State v. Kottenbroch , 319 N.W.2d 465, 471-72 n.3 (N.D. 1982) (holding an order deferring imposition of sentence is appealable); State v. Himmerick , 499 N.W.2d 568, 570-71 (N.D. 1993) (same); State v. Trosen , 547 N.W.2d 735, 737 n.1 (N.D. 1996) (same); State v. Bernstein , 2005 ND App 6, ¶¶ 8-9, 697 N.W.2d 371 (same). Therefore, entry of the DIS Order began the period during which an appeal could have been taken.

This Court has held that a defendant's testimony about statements made by the victim of the alleged offense, offered to establish the defendant's state of mind, are not hearsay because they are not offered to prove the truth of the matter asserted. State v. Hart, 1997 ND 188, ¶ 20, 569 N.W.2d 451;see also State v. Bernstein, 2005 ND APP 6, ¶¶ 23–24, 697 N.W.2d 371. We have held that a district court abuses its discretion when it excludes testimony as hearsay if the statement is not offered to prove the truth of the matter asserted and the testimony has some relevance to the defendant's defense.

Therefore, although the district court erred by admitting the report under the business records exception, the State is entitled to argue on appeal that the report was admissible under N.D.R.Ev. 803(4). State v. Bernstein, 2005 ND APP 6, ¶ 20, 697 N.W.2d 371 ("When the judgment below is entirely favorable to the appellee, he is entitled to attempt to save the judgment upon any ground asserted in the trial court."). See also State v. Sabinash, 1998 ND 32, ¶ 19, 574 N.W.2d 827; Olson v. University of North Dakota, 488 N.W.2d 386, 388 (N.D. 1992); Livingood v. Meece, 477 N.W.2d 183, 188 (N.D. 1991); Tkach v. American Sportsman, Inc., 316 N.W.2d 785, 787 (N.D. 1982).

See, also, State v. Dansinger, supra note 24; State v. Santiago, supra note 24; State v. Bertram, supra note 24; Com. v. Namack, supra note 24; State v. Fanger , 164 Vt. 48, 665 A.2d 36 (1995). See State v. Bernstein , 697 N.W.2d 371 (N.D. App. 2005).