*1
STATE of North Plaintiff Appellant, BAUMGARTNER,
Richard C. Appellee.
Defendant and
No. 20010169.
Supreme Court of North Dakota.
Dec. *2 days.
following two On November Baumgartner led the two undercover war- promised. dens on a hunt as The wardens (the legal had each taken hunt- three birds limit) by p.m. ing 1:30 For the next three hours, however, Baumgartner further guided hunting party; together the" the birds, thereby took three more wardens legal the limit. At end of exceeding the day, one of the recorded the wardens day’s bounty photograph showing with a Baumgartner pheasants and with nine grouse. three following day, Baumgartner [¶ 3] The again guided the two undercover wardens before, they day on a hunt. As did the daily wardens took their limit of three before, Also, pheasants each. as Baum- gаrtner guide hunting continued to Becker, Attorney, R. Lin- Donald State’s party. of the wardens killed an addi- One ton, ND, plaintiff appellant. and for pheasant again tional and exceeded the Grenz, Linton, ND, for Dоnavin L. de- legal limit. appellee. fendant and charged Baumgartner was with
[¶4] WALLE, Justice. VANDE Chief conspiracy pheasants two counts of to take legal daily of the limit. He was excess appeаled The from an order 1] illegally taking game. not charged with conspira- counts of criminal dismissing two trial. But at a The matter was slated for limit cy game legal in excess of the conference, pretriаl telephonic the trial charged against Baumgartner. Richard C. charges. court dismissed the contends the district court erred The State in its decision that two undercover war- trial court found the wardens The co-conspirators accomplices dens were and accomplices. As co-conspirators were charged. to the crime The State further result, Baumgartner could be con- district court erred in its contends the if, testimony of the victed in addition to the Baumgartner entrapped was as a decision wardens, corrobo- presented two the State matter of law. We conclude wardens rating The trial court deter- evidence. accomplices Baumgartner not was are to produce mined the State was unable There- entrapped not as a matter of law. Further, the trial court such evidence. fore, we reverse and remand. found as a matter of law the State had entrapped Baumgartner. The trial court On October 2000 two under- wardens, pre- “I coopera- then asked the defense counsel: game working cover going are to make a motion you the North Dakota Game and Fish sume tion with To the de- Richard Baum- dismiss on that basis?” which Department, met with C. simply: “Yes.” In responded fense counsel gartner. The wardens discussed State turn, the case the trial court dismissed Baumgartner with and hired laws hunting guide prejudice. for the with him to act as a
I conspirator. Rаmbousek, See State v. (N.D.1992). N.W.2d 832 This is because North Dakota Centu requires statute ry appeal Code authorizes the State to agreement “an engage in conduct which order quashing *3 “[a]n an information оr offense,” constitutes an as well as the any indictment or count thereof.” “commission of an overt act to effect an 29-28-07(1). § N.D.C.C. have "We consis objective conspiracy.” of the State v. Bur tently held that an order dismissing a 274, (N.D.1990). gard, 458 N.W.2d 279 information, complaint, criminal or indict But the term accomplice synony is not equivalent ment is the an quash of order co-conspirator, mous with is there no ing an information or indictment and is rule requiring corroboration of a co-con appealable therefore under the statute.” spirator’s Lind, testimony. State v. 322 ¶ Gwyther, 15, 11, State v. 1999 ND 589 826, (N.D.1982). N.W.2d 842 n. 6 Accord Howe, N.W.2d 575. See also State v. 247 ingly, whеther or not the wardens were 647, (N.D.1976). N.W.2d 652 A trial accomplices dispositive is of appeal, court’s decision to dismiss a conspiracy and we need not determine whether or not however, chаrge, usually will not be dis co-conspirators.1 officers were turbed unless the trial court abused its ¶ Gwyther discretion. at 12. But ques fully tions of law are appeal. reviewable on B ¶ Kenner, 1, 7,
State v. 1997 ND 559 argues [¶ 9] The Statе the war N.W.2d 538. accomplices dens were not Baumgart to crime; therefore, ner’s alleged the war A testimony dens’ need not be corroborated. The State first asserts the trial question fully This is appeal, reviewable on court in finding erred the wardens were for when “the facts as to the witness’ co-conspirators in the effort to game take culpability disputed are neither nor sus in daily excess оf the limit! Section 12.1- ceptible inferences, of different then 06-04(1), N.D.C.C., provides: [whether or not accomplice] one is an is a person A conspiracy commits if he question of law for the court.” State v. agrees with one or persons more to en- Thorson, (N.D.1978). 264 in gage which, fact, or cause conduct offenses, constitutes an offense or 29-21-14, Section any one or persons N.D.C.C., more of such does an prohibits the conviction of an objective overt act to effect an person of the accused on testimony of an conspiracy. agreement accomplice need not be testimony unless the is corrob- explicit may but implicit be by the fact of orated other evidence. Section 12.1- collaboration or 03-01, existence of N.D.C.C., other cir- provides person a is an cumstances. accomplice when: an 8] When undercover law a. Acting with the kind of culpability agent enforcement feigns agreement to a required offense, for the he causes the conduct, course of he or she is not a co- other to engage conduct; in such Further, convicted, even if the prosecuted wardens were co-con- or has been convicted spirators is no prosecution "[i]t defense to a offense, of a different is prose- immune from conspiracy under person [the statute] that the cution, subject justice." or is otherwise not person with whom such alleged is to have 12.1-06-04(4). § N.D.C.C. conspired acquitted, has been has not been (1989); com- 770 177-78 see intent that an offense be S.W.2d also C. b. With commands, induces, Torcia, mitted, procures, § he Wharton’s Criminal Law 38 at it, or, (15th ed.1993). having to commit or aids the other statutory duty prevent its commis- case, present Baumgart- In the sion, proper to do he fails to make effort charged ner was with so; or game in of legal dаily excess and his associ- coconspirator c. He is a limit. The trial court held the war- require- meets the ation with the offense result, accomplices; dens were as a of of the other subdivisions ments either testimony wardens’ must be corroborated of this subsection. *4 if During it were to be used at trial. the Therefore, accomplice one cannot be an in excess of the having requisite criminal in without limit, legal engaged the wardens were in offense, underlying even if he tent for the operation an undercover to discover crime. co-conspirator. or she is a See N.D.C.C. The wardens were criminal without intent 12.1-03-01; Torcia, § see also C. Whar accomplices. and thus were not Corrobo- (15th § Law 38 at 255 ton’s Criminal rating unnecessary. evidence is therefore ed.1993). Accordingly, this Court conclud Currie, 655, 661, in v. 13 N.D. 102 ed State II 875, (1905),that 877 law enforcement N.W. argues The State also [¶ 14] in a in feign complicity officers who crime finding entrapment district court erred in pursuit of evidence are not accom Questions as a matter of of are law. law Torcía, plices. See also C. Wharton’s fully appeal. on v. Ken reviewable (15th ed.1993). § Law 38 at 255 Criminal ¶ ner, 1, 7, 1997 ND 559 N.W.2d Currie, In an undercover detec- [¶ 11] 12.1-05-11(2), N.D.C.C., 15] Section business, burglarizing in a but tive assisted entrap- defense of creates the affirmative ferreting with the hidden motive of out a ment: 661, larger enterprise. 13 N.D. at agent perpetrates A an law enforcement at not 102 N.W. 878. The detective did if, еntrapment purpose for the of obtain- activity, induce the criminal but did assist ing of the commission of a evidence Nonetheless, its commission. Id. crime, agent enforcement in- the law an Court conсluded the detective was not and, a direct encourages duces or as “accomplice in fact” to the crime. Id. The result, person engage to causes another commending explained: Court “[w]ithout constituting by a crime in conduct such practice, commenting upon this or it as persuasion or in- employing methods of dangerous generally pro- of doubtful a substantial risk ducement which create that, say if is priety, we will the defendant by a that such crime will be committed committed the crime in its shown have ready is person other than one who a completeness, feigned complicity of merely affording it. a commit Conduct not a detective the crime should be person opportunity an to commit an of- Id. shield to the defendant.” entrapment. not constitute fense does many Thе courts of of our sister [¶ 12] or not one E.g., reached the same result. Whether States have Texas, 448, invariably a entrapped has “is almost Cohea v. 845 S.W.2d 451-52 been Hancock, fact, a court can ‘find (Tеx.Ct.App.1993); Oregon question v. of 648, (1992); 92, entrapment as a matter of law where the Or.App. 111 825 P.2d 652 Arkansas, 287, supporting their Ark.App. 27 facts and inferences Marshall 18 ”
finding entrapment trial, of undisputed.’ are there was no рend motion to dismiss Murchison, 435, State v. 541 N.W.2d 441 ing finding when the by was made the trial (N.D.1995) (quoting Nehring, State v. 509 court, thereby, “depriving the fact-finder (N.D.1993)). 42, Accordingly, N.W.2d of its exclusive function of determining undisputed when facts police show that the Tester, questions.” factual State v. crime, used unlawful means to induce the ¶ 29. 515, 1999 ND ques entrapment there is as a matter of law. entrapment tion of question was a of fact Kummer, State v. 481 N.W.2d jury for the to decide. (N.D.1992). Thе district court found such [¶ 18] We reverse and fur- remand for present But, facts to exist in the case. it ther proceedings. upon is not clear the facts before this police Court that the used unlawful means
to induce the crime so as to enable us to SANDSTROM, DALE V. entrapment conclude there is as a matter NEUMANN, WILLIAM A. and MARY of law. MARING, JJ., MUEHLEN concur. In State v. Tester we reiterated *5 “ KAPSNER, CAROL RONNING J. purpose ‘the of a motion to dismiss is to test the sufficiency of the information or I concur in the result. indictment. It summary is not a device for evidence, trial of the appear facts not
ing on the face of the information cannot 60, ¶ 29,
be considered.’” 1999 ND Howe,
N.W.2d 515 (quoting (N.D.1976)). In the in
stant case not was there a summary