Stаte of North Dakota, Plaintiff and Appellee v. Orion Tyler Berkley, Defendant and Appellant
No. 20240351
IN THE SUPREME COURT STATE OF NORTH DAKOTA
2025 ND 134
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and Justice McEvers joined. Justice Bahr filed a concurring opinion, in which Justice Crothers joined.
Nathan K. Madden, Assistant State‘s Attorney, Williston, N.D., for plaintiff and appellee.
Eric P. Baumann, Minot, N.D., for defendant and appellant.
Tufte, Justice.
[¶1] Orion Tyler Berkley appeals from a criminal judgment entered after a jury trial. On appeal, Berkley argues the district court erred in determining registration as an offender against children under
I
[¶2] On June 5, 2024, Berkley was convicted of child abuse, a class B felony, in violation of
[¶3] At the sentencing hearing, Berkley argued registration as an offender against children was not mandatory and the district court should not order Berkley to register. The district court explained:
In regards to the registration. You know 14-09-22(5) required the registration and I‘ll be the first to say that trying to read through the registration requirements in 12.1-32 is difficult. Whoever wrote it used way too many commas, way too many references to other sections. I‘m kind of a big fan of just saying what you want to say in simple, complete sentences which this section doesn‘t really do.
But in reading it I don‘t believe that I can make a finding that registration isn‘t necessary because the section, as I read it, specifically requires parents who commit offenses against children to register. That‘s how I read it. Is that right? I don‘t know. What I would say on the record here is that if — I wouldn‘t sentence him to register, if I didn‘t believe I had to.
So to the extent that helps the Defendant out with anything. I don‘t think Mr. Berkley needs to register for this. I don‘t think he‘s a threat to other children on this point. If he completed probation successfully I don‘t think that would be necessary. But I don‘t think I have the authority to not order you to do it. I think it‘s required and it‘s kind of where we are on that.
The court ordered Berkley “be required to register as an offender against children for a minimum of 15 years.” The criminal judgment states: “Must Register as an Offender Against Children.” Berkley appeals.
II
[¶4] Berkley argues the district court erred by determining
[¶6] Registration as an offender against children is governed by
The court shall impose, in addition to any penalty provided by law, a requirement that the individual rеgister . . . . The court shall require an individual to register by stating this requirement on the court records, if that individual:
. . . .
d. Has pled guilty or nolo contendere to, or been found guilty of, a crime against a child or an attempted crime against a child, including juvenile delinquent adjudications of equivalent offenses. Except if the offense is described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim, the court may deviate from requiring an individual to register if the court first finds the individual has not previously been convicted as a sexual offender or for а crime against a child, and the individual did not exhibit mental abnormality or predatory conduct in the commission of the offense.
[¶7] “A crime against a child” is defined in
“A crime against a child” means a violation of chapter 12.1-16, section 12.1-17-01.1 if the victim is under the age of twelve, 12.1-17-02, 12.1-17-04, subdivision a of subsection 6 of section 12.1-17-07.1, section 12.1-18-01, 12.1-18-02, 12.1-18-05, chapter 12.1-29, or section 14-09-22, subsection 3 of section 12.1-41-02, subsection 3 of section 12.1-41-03, or an equivalent offense from another court in the United States, a tribal court, or court of another country, in which the victim is a minor or is otherwise of the age required for the act to be a crime or an attempt or conspiracy to commit these offenses.
[¶8] Berkley concedes his conviction under
[¶9] “Subsection 2 of section 12.1-32-15, N.D.C.C., requires the district court to order registration in some cases and in other cases gives the district court the discretion to deviate from requiring registration after making specified findings.” State v. Humann, 2011 ND 237, ¶ 5, 807 N.W.2d 609. Under subsection (2)(d), the court “shall rеquire an individual to register by stating this requirement on the court records, if that individual . . . [h]as pled guilty or nolo contendere to, or been found guilty of, a crime against a child or an attempted crime against a child.”
[¶10] The State argues the statute allows deviation from the registration requirement only if the offense is described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim. The placement of the exception at the beginning of the second sentence, immediately following the general rule stated in the first sentence, naturally implies the exception applies to the general rule—or that the exception stated at the beginning of the second sentence applies to the first sentence. The State argues the statute should be read that the court may deviate only if the “exception language” qualifies the offense, meaning the conviction is for one of the listed offenses. The State‘s interpretation is a rational and plausible application of grammatical rules and our interpretive canons.
[¶11] Berkley argues the court may deviate from the registration requirement unless “the offense is described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim.” If we consider the exception clause primarily in the context of its own sentence, then the exception can be read to apply to the latter portion of the sentence providing for deviation from the general rule stated in the first sentence—or that the exception stated in the first clause of the second sentence applies to the latter portion of that sentence. This view reads the “exception language” as an exception to the exception from the general rule that allows deviation. Stated differently, Berkley argues the second sentence should be read on its own, and should be read: “[T]he court may deviate from requiring an individual to register if the court [makes specified findings,]” “[e]xcept if [or unless] the offense is described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim.” Berkley‘s interpretation is also a rational and plausible application of grammatical rules and our interpretive canons.
[¶12] Given the placement of the exception language, at the beginning of the second
[¶13] Section
[¶14] Viewing the language of
[¶15] The statute is ambiguous in another respect affecting the district court‘s decision. Specifically, whether “and the person is not the parent of the victim” applies to any offense defined as a “crime against a child,” any of the three offenses listed in
[¶16] It appears the district court read the exception as requiring registration by all parents convicted of any crime against children. Read this way, Berkley cannot satisfy the exception because he is a parent of the victim. The court explained the statute contained “too many commas” and “too many references to other sections.” However, placement of the commas, “ors” and “ands” are significant to an accurate reading of the sentence. “The language of
[¶17] For example, the comma, which would otherwise appeаr out of place, after “section 12.1-29-02” followed by “or” distinguishes two separate qualifiers: “[1] section 12.1-29-02, or [2] section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim, the court may deviate . . . .” This comma separates section 12.1-29-02 from sections 12.1-18-01 or 12.1-18-02, and is further separated by “or.” “The word ‘or’ is disjunctive and ordinarily means an alternative between different things or actions with separate and independent significance.” Mickelson v. N. Dakota Workforce Safety & Ins., 2012 ND 164, ¶ 19, 820 N.W.2d 333 (citing State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶ 14, 712 N.W.2d 828). “Coupled with the comma preceding ‘or,’ which indicates a separate clause, the statutory language clearly creates two distinct and independent phrases.” FreeEats.com, Inc., 2006 ND 84, ¶ 14. Therefore, the sentence is broken into two separate and independent phrases: the offense is described in [1] or [2].
[¶18] Qualifier [2] contains an “or” and an “and” without a distinguishing comma—each of which is significant to the structure of the sentence. Qualifier [2] contains a conjunctive qualifier: “section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim.” (Emphasis added.) “The word ‘and’ is conjunctive in nature and ordinarily means in addition to.” Tergesen v. Nelson Homes, Inc., 2022 ND 1, ¶ 11, 969 N.W.2d 150 (cleaned up). The conjunctive “and” is not separated by a сomma, nor is “section 12.1-18-01 or 12.1-18-02” separated by a comma, which means the conjunctive “and” applies to both section 12.1-18-01 and section 12.1-18-02.
[¶19] The phrase “and the person is not the parent of the victim” applies to section 12.1-18-01 and 12.1-18-02, but not section 12.1-29-02. Read according to the rules of grammar, giving meaning and effect to every word, phrase, and sentence, including every “and,” “or,” and comma, the sentence separates “[1] section 12.1-29-02 [prostitution],” which does not allow deviation regardless of whether the offender is the parent of thе victim, from “[2][a][i] section 12.1-18-01 [kidnapping] or [ii] 12.1-18-02 [felonious restraint],” which do not allow deviation only if “[b] the person is not the parent of the victim.” The qualifying offenses include: [1] section 12.1-29-02; and [2][a][i] section 12.1-18-01 or [ii] 12.1-18-02 and [b] the person is not the parent of the victim. This interpretation is supported by our legislative history and the Wetterling Act guidelines.
[¶20] In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act,
[¶21] The 1999 guidelines discussed the covered offenses defined as the “criminal offense against a victim who is a minor.” 1999 Guidelines, 64 Fed. Reg. 572 (Jan. 5, 1999). “The general purpose of the definition is to ensure comprehensive registration for persons convicted of offenses involving sexual molestation or sexual exploitation of minors.” 1999 Guidelines, 64 Fed. Reg. 572 (Jan. 5, 1999). The Guidelines state:
The specific clauses in the Act‘s definition of “criminal offense against a victim who is a minor” are as follows:
(1)–(2) Clauses (i) and (ii) cover kidnaping of a minor (except by a parent) and false imprisonment of a minor (except by a parent). All states have statutes that define offenses—going by such names as “kidnaping,” “criminal restraint,” or “false imprisonment“—whose gravamеn is abduction or unlawful restraint of a person. States can comply with these clauses by requiring registration for persons convicted of these statutory offenses whose victims were below the age of 18. It is a matter of state discretion under these clauses whether registration should be required for such offenses in cases where the offender is a parent of the victim.
1999 Guidelines, 64 Fed. Reg. 572 (Jan. 5, 1999). The guidelines further explain “offenses consisting of solicitation of a minor to practice prostitution” or “solicitation of a minor to engage in sexual conduct” require states to “consistently require[e] registration” without exception.
[¶22] A drafter of S.B. 2299, Ladd Erickson, Morton County Assistant State‘s Attorney, testified: “Under this Bill there is no way to deviate from registering kidnaping or feloniously restraining a child. In addition, this Bill requires anyone that kidnaps a child, other than a parent, to register for life.” Hearing on S.B. 2299 Before the Senate Judiciary Comm., 56th N.D. Legis. Sess. (Feb. 3, 1999) (testimony of Ladd Erickson, Morton County Assistant State‘s Attorney) [“Hearing on S.B. 2299“]. In support of the amendment to the statute, Ladd Erickson wrote a letter to the Senate Judiciary Committee dated February 1, 1999, explaining:
Addition of “Except if the offense is described in 12.1-18-01 or 12.1-18-02 and the person is not a parent.” (p.3, lines 17-18) The Wetterling Act requires kidnapping and felonious restraint of a minor, other than by a parent be registered without exception. It is optional under the Wetterling Act as to whether a parent has to register for these offenses. Under SB2299, there is a presumption that a parent would have to register with the court being able to deviate. I thought this was a good option so the registration program doesn‘t become a wedgе tool in visitation and custody fights.
Hearing on S.B. 2299.
[¶23] The legislative history of S.B. 2299 specifically cites compliance with the Wetterling Act and relies on the Wetterling Act guidelines.2 Under the Wetterling Act,
[¶24] Section
[¶25] The district court has discretion under
III
[¶26] We reverse the criminal judgment and remand for consideration of the registration requirement according to the interpretation described above.
[¶27] Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
Bahr, Justice, concurring.
[¶28] I concur with the majority‘s conclusion
[¶29] At the relevant period,
The court shall impose, in addition to any penalty provided by law, a requirement that the individual register . . . . The court shall require an individual to register by stating this requirement on the court records, if that individual:
. . . .
d. Has pled guilty or nolo contendere to, or been found guilty of, a crime
against a child or an attempted crime against a child, including juvenile delinquent adjudications of equivalent offenses. Except if the offense is described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim, the court may deviate from requiring an individual to register if the court first finds the individual has not previously been convicted as a sexual offender or for a crime against a child, and the individual did not exhibit mental abnormality or predatory conduct in the commission of the offense.
[¶30] As explained by the majority, the first sentence of
[¶31] As further explained by the majority, “[t]he second sentence of subsection (2)(d) allows for deviation from this general rule[.]” Majority, ¶ 9. The second sentence is separate and distinct from the first sentence; it unambiguously states the exception to the registration requirement, and includes an exception to the registration exception. The clause stating the exception to the registration еxception is introduced by the word “except.” The clause starting with “except” is a dependent clause.
[¶32] In grammar, a “clause” is “[a] group of words containing a subject and a predicate and forming part of a compound or complex sentence.” American Heritage Dictionary 343 (5th ed. 2018). A “main clause” or “independent clause” is “[a] clause in a complex sentence that contains at least a subject and a verb and can stand alone syntactically as a complex sentence.” Id. at 892, 1058. A “dependent clause” is “[a] clause that cannot stand alone as a full sentence and functions as a noun, adjective, or adverb within a sentence[,]” also called a “subordinate clause.” Id. at 486, 1737; see also Webster‘s New World Dictionary 120, 175, 325, 384, 631 (5th ed. 2016) (defining “clause,” “dependent clause,” “independent clause,” “main clause,” and “subordinate clause“); New Oxford American Dictionary 320, 1054, 1734 (3d ed. 2010) (defining “clause,” “main clause,” and “subordinate clause“); The Elements of Constitutional Style: A Comprehensive Analysis of Punctuation in the Constitution, 79 Tenn. L. Rev. 687, at 728 n. 209 (“An independent clause is one that can stand on its own as a sentence.“), 732 n. 234 (“Independent clauses are clauses that can stаnd alone, grammatically, as independent sentences.“), 732 n. 235 (“A dependent clause is a clause that cannot stand alone as a sentence.“) (Summer 2012).
[¶33] The dependent clause, set off by a comma, precedes the main or independent clause. The dependent clause—“Except if the offense is described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim“—“depends linguistically” on the independent exception clause in the second sentence of
[¶34] If the legislature intended the dependent clause in the second sentence of
[¶35] Subsection
[¶36] The term “except” generally means “unless,” excluding, not including. See American Heritage Dictionary 618 (5th ed. 2018) (defining “exceрt” to mean “With the exclusion of,” “Unless,” “To leave out; exclude“); Webster‘s New World Dictionary 223 (5th ed. 2016) (defining “except” to mean “to leave out or take out; exclude,” “unless“); New Oxford American Dictionary 603 (3d ed. 2010) (defining “except” to mean “not including; other than,” “unless“); Merriam-Webster‘s Dictionary 435 (11th ed. 2005) (defining “except” to mean “UNLESS,” “with this exception“); see also Garner, A Dictionary of Modern Legal Usage 335 (2d ed. 1995) (“In DRAFTING, unless is preferable to except as when referring to a future action“). Thus,
[¶37] It is undisputed the exception to the registration exception does not apply to Berkley; Berkley was not convicted of any of the statutes identified in
[¶38] I agree
[¶39] I would conclude
[¶40] Daniel J. Crothers
Douglas A. Bahr