In the Interest of K.V., a Child
No. 20190074
Supreme Court of North Dakota
Corrected Opinion Filed 11/01/19
2019 ND 255
Opinion of the Court by Crothers, Justice.
State of North Dakota, Petitioner and Appellee
v.
A.V., mother of said child; and
E.D., father of said child, Respondents
and
K.V., said child, Respondent and Appellant
Appeal from the Juvenile Court of Ramsey County, Northeast Judicial District, the Honorable Lonnie Olson, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Crothers, Justice.
Maren H. Halbach, State’s Attorney, Devils Lake, ND, for petitioner and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for respondents and appellants.
Interest of K.V.
No. 20190074
[¶1] A.V., and E.D. are mother and father of K.V. They and K.V. apрeal from the juvenile court order finding K.V. committed the delinquent acts of criminal trespass, fleeing or attempting to elude a peace officer, and reckless driving. They argue
I
[¶2] On November 15, 2018, a juvenile petition was filed alleging K.V. committed the delinquent acts of criminal trespass, fleeing or attempting to elude a peace officer, and reckless driving. An adjudication hearing was held on February 14, 2019, and the juvenile court found beyond a reasonable doubt that K.V. committed all three allegations. K.V. and his parents appeal.
[¶3] On June 16, 2018, Devils Lake Police Officer Myrum received a call from the owner of Butler Machinery regarding a trespass that occurred on June 13, 2018. At trial, Myrum testified he viewed photographs showing a blue or gray Toyota pickup and a red Chevrolet pickup on Butler’s machine lot. He identified the driver of the Toyota and interviewed him over the telephone. The owner of the Toyota said he was driving on the lot but did not notice the “no trespassing” signs near the entrance. He also told Myrum that K.V. was driving the Chevrolet. Myrum testified two large “no trespassing” signs were posted by the lot entrance.
[¶4] Devils Lake Officer Khalifa testified at trial she saw a juvenile enter the driver’s side of an older red Chevrolet pickup. She identified the driver as K.V. based on other officers who told her what he looked like, and from a picture of K.V. She noticed the red pickup had a burned out tail light on the driver’s side and K.V. did not make a complete stop at a stop sign. Khalifa contacted Officer Johnson to stop the pickup because she was in an unmarked vehicle. Johnson testified he received a call from Khalifa stating a vehicle was northbound on Fifth Avenue Southeast headed toward the downtown area. Johnson arrived at Sixth Avenue, followed the vehicle and witnessed K.V. drive through three stop signs. When he was about a block behind the vehicle, Johnson testified he turned on his overhead lights to stoр the pickup. He heard the vehicle’s engine rev and saw it pick up speed. Johnson testified he estimated the vehicle’s speed at 60 to 65 miles an hour. He was unable to complete the stop due to safety issues. In the juvenile court’s ruling the judge stated this series of events happened in a residential area.
II
[¶6] The appellants argue the trespass statute,
[¶7] “It is a well-established principle in this state that issues not raised below cannot be raised on appeal. ‘Generally, issues not raised in the trial court, even constitutional issues, will not be addressed on appeal.’” State v. Tweed, 491 N.W.2d 412, 417 (N.D. 1992) (quoting State v. Miller, 388 N.W.2d 522 (N.D. 1986)). The narrow exception to this principle is that “obvious error or defect that affects substantial rights may be considered even though it was not brought to the court’s attention.”
[¶8] The appellants did not argue the obvious error exception and therefore did not show a plain error exists that affects substantial rights. Because the constitutional argument was not raised in the juvenile court and K.V. has not argued obvious error, the argument has been forfeited. State v. Tweed, 491 N.W.2d 412 (N.D. 1992).
III
[¶9] The juvenile court found K.V. committed the delinquent act of criminal trespass, a class A misdemeanor, in violation of
[¶10] This Court’s standard of review of a juvenile court’s order is well established:
“Under
N.D.R.Civ.P. 52(a) , this Court reviews a juvenile court’s factual findings under a clearly erroneous standard of review, with due regard given to the opportunity of the juvenile court to judge the credibility of the witnesses. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. This Court reviews questions of law de novo.”
In re D.O., 2013 ND 247, ¶ 6, 840 N.W.2d 641 (citing Interest of R.A., 2011 ND 119, ¶ 4, 799 N.W.2d 332 (quoting Interest of A.R., 2010 ND 84, ¶ 5, 781 N.W.2d 644)).
[¶11] Trespassing on private property is unlawful under North Dakota law. The severity of punishment for trespassing differs basеd on circumstances of the trespass.1 Sections
“3. a. An individual is guilty of a class B misdemeanor if, knowing that that individual
is not licensed or privileged to do so, the individual enters or remains in any place as to which notice against trespass is given by actual сommunication to the actor by the individual in charge of the premises or other authorized individual or by posting in a manner reasonably likely to come to the attention of intruders. The name of the person posting the premises must appear on each sign in legible characters. b. Even if the cоnduct of the owner, tenant, or individual authorized by the owner varies from the provisions of subdivision a, an individual may be found guilty of violating subdivision a if the owner, tenant, or individual authorized by the owner substantially complied with subdivision a and notice against trespass is clear from the circumstances.
. . . .
4. a. An individual, knowing the individual is not liсensed or privileged to do so, may not enter or remain in a place as to which notice against trespass is given by posting in a manner reasonably likely to come to the attention of intruders. A violation of this subdivision is a noncriminal offense.”
[¶12] The court found the lot was properly posted because there were two “no trespassing” signs by the lot entrance. The court stated, “I don’t know where else a person could put [the signs] to try to make them so manifest to come to the intention [sic] of intruders.”
[¶13] Interpretation of a statute is a question of law. In re R.A., 2011 ND 119, ¶ 24, 799 N.W.2d 332 (citing In re M.W., 2009 ND 55, ¶ 6, 764 N.W.2d 185). We look at the plain language of the statute and give each word its ordinary meaning. Id.;
legislative history, to interpret the statute.” Id. (citing M.W., at ¶ 6;
[¶14] Here, the Butler Machinery lot was not presumed to be open land. However, for an individual to be charged with criminal trespass the landowner must comply with
[¶15] All three elements are required for a criminal trespass violation. Hеre, testimony established two “no trespassing” signs were posted near the lot entrance. The owner met the first requirement because a sign stating “no trespassing” provides notice to individuals they are not licensed or privileged to be on the land. The owner also met the second requirement becаuse the “no trespassing” signs were placed near the entrance where they easily could be seen. For the third requirement, no evidence established the name of the person posting the property was on the sign. Therefore, the issue is whether substantial compliance under
mandatory duty.”) (internal quotation marks omitted)). Plain language of the statute requires a name on the sign.
[¶17] Here, no evidence established a name was on the sign; nor that this requirement was substantially complied with. Therefore, an element of the offense has not been proven and the juvenile court’s finding K.V. committed criminal trespass is not supported by the evidence. That finding of delinquency is reversed.
IV
[¶18] The appellants argue evidence was insufficient to prove K.V. was the driver or knew the officer was attempting to stop the car he was driving. K.V. was charged with committing the delinquent act of fleeing or attempting to elude a peace officer in violation of
[¶19] This Court will reverse a conviction on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferеnces in the light most favorable to the judgment, no rational factfinder could find the defendant guilty beyond a reasonable doubt. See Interest of L.B.B., 2005 ND 220, ¶ 10, 707 N.W.2d 469; State v. Poulor, 2019 ND 215, ¶ 23, 932 N.W.2d 534. The court received evidence K.V. was
driving the vehicle and committed the offense of fleeing or attempting to elude a peace officer. Officer Khalifa testified she saw K.V. enter the driver’s side of the red pickup, and she directed Officer Johnson to make a stop because she was not in a marked vehicle. Johnson testified he saw the vehicle go through three stop signs, heard its engine rev, and go 60-65 miles per hour on a residential street. He also testified he saw a larger statured person in the passenger seat and a smaller person driving the vehicle. Circumstantial evidence also indicated K.V. was the driver. Another witness later saw K.V. driving and the witness’s cousin in the passenger seat. The cousin appeared in court and the juvenile court commented on his appearance stating, “[t]he Cоurt knows [he] is a very large guy.” The juvenile court’s finding K.V. committed the delinquent act of fleeing or attempting to elude a peace officer is supported by the evidence and, therefore, is not clearly erroneous.
[¶20] The appellants argue K.V. was improperly charged under subsection (2) of
[¶21] The appellant’s argument distorts the standard of review, which is whether the court’s findings are clearly erroneous. In re D.O., 2013 ND 247, ¶ 6, 840 N.W.2d 641 (citing Interest of R.A., 2011 ND 119, ¶ 4, 799 N.W.2d 332 (quoting Interest of A.R., 2010 ND 84, ¶ 5, 781 N.W.2d 644)). Instead of addressing this standard, the appellants attempt to have this Court decide whether Officer Johnson’s testimony about the vehicle speed provided reasonable suspicion to stop a vehicle. See United States v. Gaffney, 789 F.3d 866, 868-69 (8th Cir. 2015) (The issue was whether an officer’s visual estimate of speed was objectively reasonable to furnish either probable cause or reasonable suspicion to stop a vehicle and not whether the evidence supports the officer’s belief Gaffney was travelling at 50-55 mph.); See also United States v. Sowards, 690 F.3d 583, 591 (4th Cir. 2012) (“there must be sufficient indicia of reliability for a court to credit as reasonable an officer’s visual estimate of speed.”).
[¶22] K.V. was charged with committing the delinquent act of reckless driving in violation of
[¶23] The question here is whether the juvenile court was clearly erroneous in finding K.V. was driving recklessly, and not whether K.V. was driving a certain speed. Section
“Any person is guilty of reckless driving if the person drives a vehicle:
. . . .
2. Without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another.”
[¶24] Under the statute, speed is not the only factor when considering whether a person is driving recklessly. The statute prohibits driving “at a speed or in a manner so as to endanger . . . any person. . . .” (Emphasis added.) The juvenile court did not merely rely on the speed estimate when it found K.V. drove recklessly. The juvenile court also found K.V. drove through three stop signs, he refused to stop after the officer activated his overhead lights, and the officer was unable to continue pursuing the vehicle due to safety concerns. Based on this record, the juvenile court’s finding K.V. committed reckless driving is supported by sufficient evidence and, therefore, is not clearly erroneous.
VI
[¶25] The juvenile court was not clearly erroneous in finding that K.V. committed the delinquent acts of fleeing or attempting to elude a peace officer and that K.V. committed the delinquent act of reckless
[¶26] Insufficient evidence supports finding K.V. committed criminal trespass in violation of
[¶27] Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Jerod E. Tufte
Gerald W. VandeWalle, C.J.