942 N.W.2d 472
N.D.2020Background
- Jamestown police investigated thefts of tires from two businesses; suspects Heckelsmiller and Melland sold tires to Kevin Michel.
- Michel admitted buying tires, said he “took the loss,” stopped buying after a Facebook reward post, and turned over seven new tires to police; some tires matched those stolen from Northwest Tire and J&L Service.
- State charged Michel with knowingly receiving stolen property valued over $1,000 (Class C felony); one-day jury trial resulted in conviction.
- During deliberations the jury asked for clarification on the meaning of “owner” and intent; the district court declined further elaboration and referred jurors to existing instructions.
- At sentencing the court returned the recovered tires to victims and ordered Michel to pay $702 in restitution (retail price of three tires); Michel appealed, challenging the jury-response, sufficiency of evidence (knowledge and value), and restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused discretion by not directly answering jury's question about “owner”/intent | State: existing instructions adequately and correctly informed the jury; referring jurors to instructions was proper | Michel: judge should have given a concrete, clarifying supplemental instruction | Court: No abuse of discretion; referring jury to correct instructions was acceptable |
| Whether evidence was sufficient that Michel knew tires were stolen | State: admissions, stopped buying after reward post, evasive answers, storing tires offsite support knowledge | Michel: argued insufficient proof of knowledge | Court: Evidence was sufficient to permit a reasonable inference Michel knew tires were stolen |
| Whether evidence supported felony grading (value > $1,000) and whether tires from two owners could be aggregated | State: values of the seven recovered tires aggregated exceeded $1,000; victim identity not an element so reference to one owner in charging paper is surplusage | Michel: information named only Northwest Tire; value from Northwest alone was under $1,000 so felony not proven | Court: Identity of owner is not an element; surplusage may be disregarded; aggregate value ($1,333.97) supported felony grade |
| Whether restitution awarding full retail price plus return of recovered property was excessive | State: monetary restitution justified for diminished marketability/discontinued models | Michel: speculative and excessive because property was returned | Court: Awarding full retail value in addition to returning the tires overcompensated victim; restitution reversed and remanded for recalculation |
Key Cases Cited
- Bollenbach v. United States, 326 U.S. 607 (U.S. 1946) (trial judge should clear explicit jury difficulties with accurate, concrete guidance; misleading supplemental instruction reversible)
- United States v. Skarda, 845 F.3d 1508 (8th Cir. 2017) (response to jury request for supplemental instructions is within trial court's discretion)
- State v. Jacobson, 419 N.W.2d 899 (N.D. 1988) (standard for reviewing sufficiency of the evidence)
- State v. Matuska, 379 N.W.2d 273 (N.D. 1985) (evidence must reasonably tend to prove guilt to sustain conviction)
- State v. Woehlhoff, 515 N.W.2d 192 (N.D. Ct. App. 1994) (words in an information that are not elements may be treated as surplusage)
- State v. Kostelecky, 906 N.W.2d 77 (N.D. 2018) (victim entitled to reasonable restitution that makes the victim whole; cannot overcompensate)