STATE of North Dakota, Plaintiff and Appellee v. Charles BLUNT, Defendant and Appellant.
No. 20090110.
Supreme Court of North Dakota.
July 16, 2010.
2010 ND 144 | 785 N.W.2d 909
IV
[¶ 15] Maureen Ann Woodward argues the district court clearly erred in establishing a visitation schedule, now designated as a parenting schedule under 2009 N.D. Sess. Laws ch. 149, § 4.
[¶ 16] A district court‘s decision on a parenting schedule for parenting time is a finding of fact reviewed under the clearly erroneous standard of review. See Wolt v. Wolt, 2010 ND 26, ¶ 38, 778 N.W.2d 786. In establishing parenting time for the noncustodial parent, the best interest of the child, rather than the wishes or desires of the parents are paramount. Id.
[¶ 17] The district court essentially awarded Maureen Ann Woodward parenting time that George Woodward had been awarded before the change in primary residential responsibility for the youngest child. Maureen Ann Woodward does not argue the parenting time that had been awarded to George Woodward was inadequate to foster a parent-child relationship that would be beneficial to the child.
V
[¶ 18] We affirm the third amended judgment.
[¶ 19] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, JJ., ALLAN L. SCHMALENBERGER, S.J., concur.
[¶ 20] The Honorable ALLAN L. SCHMALENBERGER, S.J., sitting in place of KAPSNER, J., disqualified.
Michael Ray Hoffman, Bismarck, N.D., for defendant and appellant.
SANDSTROM, Justice.
[¶ 1] Charles Blunt appeals from an order deferring imposition of sentence entered upon a jury verdict finding him guilty of misapplication of entrusted property. We affirm.
I
[¶ 2] Blunt was the Executive Director of Workforce Safety and Insurance (“WSI“) from 2004 to 2007. The State Auditor‘s Office conducted a performance review of WSI in 2006. The Auditor‘s report questioned the use of public funds at WSI, noting more than $18,000 in expenditures which allegedly failed to comply with constitutional provisions, state law, and policies of the Office of Management and Budget. See State v. Blunt, 2008 ND 135, ¶ 2, 751 N.W.2d 692.
[¶ 3] As a result of the Auditor‘s report, Blunt was charged with two counts of misapplication of entrusted property in violation of
[¶ 5] On remand to the district court, the State filed an information and Blunt was arraigned. After the arraignment Blunt filed numerous motions, including a motion for a bill of particulars. In its response to this motion, the State noted, in addition to evidence of the gift certificates, meeting expenses, expenditures on legislators, and employee bonuses, it intended to present evidence at trial that Blunt: (1) had illegally authorized payment of sick leave to a WSI executive who was resigning but was not sick; (2) had failed to recoup relocation expenses owed to WSI by this same executive; and (3) had illegally committed $150,000 in grant money to the North Dakota Firefighter‘s Association under a grant program that did not exist.
[¶ 6] Prior to trial, Blunt moved to bar the State from aggregating the value of multiple items misapplied so as to reach the $10,000 threshold for a class B felony, arguing that each item allegedly misapplied was a separate offense. He requested the district court rule that only an individual item allegedly exceeding $10,000 is relevant to prove a class B felony. The district court ruled that the State was allowed to include the value of all items misapplied to reach the grading thresholds under
[¶ 7] The case was tried to a jury. At the close of the State‘s case-in-chief, Blunt moved for a judgment of acquittal under N.D.R.Crim.P. 29. The district court concluded the State had presented insufficient evidence to go to the jury on the allegations regarding the grant money, but “everything else” should go to the jury:
The grant program. . . . I‘m going to grant the motion in regards to the grant program. We‘ll have to figure out how to address that. But that amount will not be considered by the Jury, as I‘m going to dismiss that portion of the allegation, is one way to put it, I guess. . . .
So, I guess, I don‘t—I‘m finding there is insufficient evidence for that portion of it to go to the Jury. But everything else is going to stay. So simply, that portion will be out. But we‘ll go forward on the others with that, then.
After the district court ruled on Blunt‘s N.D.R.Crim.P. 29 motion, the State questioned whether the court could dismiss only that part of the charge in Count I involving the grant money and argued that the entire count should be submitted to the jury. The following colloquy then occurred between the court and the attorney for the State:
THE COURT: But, guess what, that‘s the way it is. I mean, I don‘t think you proved that portion of it. You charge it out that way. If I say, oh, that can go forward, too, where am I at when they come back guilty? . . . .
THE COURT: So I think it‘s appropriate and it‘s carved out of there. I‘m going to say they can‘t consider that amount . . . in coming to a conclusion on Count I.
MS. FELAND: So then am I under the understanding it is part of the Court‘s ruling, since the Court has said that there will be no comment about
THE COURT: It is going to be in the closing instructions that they can‘t consider those amounts.
[¶ 8] At the close of all the evidence, Blunt moved the court “to enter the judgment of acquittal granted as to Count I” under N.D.R.Crim.P. 29, and the State again argued that the grant money allegations should be submitted to the jury. The district court again denied Blunt‘s motion on all allegations other than the grant money and reiterated its conclusion:
I‘m indicating there is insufficient evidence to go before the Jury to find a conviction on the Firemens Fund grant program as an offense. And that‘s how I‘m going to rule. And I‘m going to issue an instruction along those lines that they are not to consider that in considering Count I.
In its closing instructions, the court instructed the jury:
Evidence not Considered
As a matter of law, the Court has determined, you are not to consider any evidence of the Fireman‘s grant funds in reaching your verdict.
[¶ 9] The jury found Blunt guilty on Count I and not guilty on Count II. Blunt filed a post-trial motion, arguing that the district court‘s granting of a part of his N.D.R.Crim.P. 29 motion for judgment of acquittal required acquittal on all of Count I. The court denied the motion. The court entered an order deferring imposition of sentence, and Blunt appeals.
[¶ 10] The district court had jurisdiction under N.D. Const. art. VI, § 8, and
II
[¶ 11] Blunt contends the district court erred when it did not grant a judgment of acquittal on all of Count I after concluding there was insufficient evidence to allow allegations regarding the grant money to go to the jury. Blunt contends the district court‘s action constituted an acquittal on Count I and any further prosecution on that Count was barred.
[¶ 12] Under N.D.R.Crim.P. 29(a), the district court is authorized, upon the defendant‘s motion, to “enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Thus to grant a motion for judgment of acquittal under Rule 29, “a trial court must find the evidence is insufficient to sustain a conviction of the offenses charged.” State v. Maki, 2009 ND 123, ¶ 7, 767 N.W.2d 852 (quoting State v. Kautzman, 2007 ND 133, ¶ 10, 738 N.W.2d 1); see also State v. Ness, 2009 ND 182, ¶ 11, 774 N.W.2d 254; State v. Hammeren, 2003 ND 6, ¶ 6, 655 N.W.2d 707. When considering a motion for judgment of acquittal, “the trial court, upon reviewing the evidence most favorable to the prosecution, must deny the motion if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.” Hammeren, at ¶ 6 (quoting State v. Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d 193).
[¶ 13] Blunt contends that because the district court stated it was grant-
[T]he question of what constitutes a “judgment of acquittal” is not governed either by the form of the trial judge‘s ruling or by his characterization of it. See United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); [United States v.] Martin Linen [Supply Co.], 430 U.S. [564,] 571, 97 S.Ct. 1349 [51 L.Ed.2d 642] [ (1977)]. Rather, a reviewing court “must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Martin Linen, 430 U.S. at 571, 97 S.Ct. 1349; see Gonzalez [v. Justices of the Mun. Ct.], 420 F.3d [5,] 8-9 [(1st Cir. 2005)]. A resolution in the defendant‘s favor of a necessary factual element of the offense is a definitive determination that the defendant cannot be convicted.
[¶ 14] In Blunt, 2008 ND 135, ¶ 17, 751 N.W.2d 692, we identified the elements of the offense of misapplication of entrusted property under
- the disposal, use, or transfer;
- of any interest in property;
- which has been entrusted to the defendant;
- as a fiduciary or in his capacity as a public servant;
- in a manner he knows is not authorized;
- and that he knows to involve a risk of loss or detriment to;
- the owner of the property or the government.
See also State v. Barendt, 2007 ND 164, ¶ 10, 740 N.W.2d 87 (recognizing and listing the “seven elements” of misapplication of entrusted property under
[¶ 15] On Count I, the State provided multiple evidentiary bases and legal theories to support its allegation that Blunt had misapplied entrusted property in violation of
[¶ 17] Blunt essentially argues the State is required to prove each and every factual allegation and legal theory precisely as pleaded in the complaint or information, or the defendant is entitled to a judgment of acquittal. This Court, however, “has consistently held the State need not prove every allegation in the complaint or information, but is required to prove only the elements of the offense charged.” State v. Trosen, 547 N.W.2d 735, 740 (N.D. 1996); see also State v. Tranby, 437 N.W.2d 817, 823 (N.D.1989) (“[T]he State is not required to prove beyond a reasonable doubt each and every factual allegation set forth in the criminal complaint.“). Courts in other jurisdictions have further concluded a trial court has the authority to withdraw from the jury‘s consideration particular factual issues or legal theories that are not supported by the evidence and submit the remaining factual issues and legal theories to the jury. See, e.g., Pacheco, 434 F.3d at 112-14; United States v. O‘Shea, 426 F.3d 475, 479 n. 3 (1st Cir. 2005); United States v. Burns, 624 F.2d 95, 104 (10th Cir.1980); State v. Mogan, 627 A.2d 527, 528 (Me.1993); State v. Hogan, 194 Neb. 207, 231 N.W.2d 135, 140 (1975). Such a ruling merely “narrow[s] the scope of the facts that the jury could find in deciding whether to convict on the offense charged.” Pacheco, at 114. As explained by the Tenth Circuit Court of Appeals in Burns:
It is clear that a court may withdraw from jury consideration indictment counts unsupported by evidence. The fact that here the court withdrew one of two charges contained in a single count is inconsequential. The controlling principle is that “. . . a portion of an indictment that the evidence does not support may be withdrawn from the jury, and this is not an impermissible amendment, provided nothing is thereby added to the indictment, and that the remaining allegations charge an offense.” (C. Wright, 1 Federal Practice and Procedure 274-75 (1969).)” United States v. Dawson, 516 F.2d 796 (9th Cir.1975).
Burns, 624 F.2d at 104-05 (citation omitted).
[¶ 18] Similarly, in Hogan, the Nebraska Supreme Court concluded:
In this case the court amended count II from a charge of possession of marijuana with intent to deliver, to a charge of simple possession of marijuana. The action, for all practical purposes, withdrew from the jury the issue of whether or not the possession was with intent to deliver. While a court has no power to dismiss a part of an offense or direct a verdict of acquittal on one or more degrees of a crime, an attempt to do so will be treated as withdrawing the issue from consideration by the jury. A trial court is bound to submit to the jury only such degrees of the crime as find support in the evidence. Here the evidence did not support the charge of possession of marijuana with intent to deliver and the court was fully justified in withdraw-
ing the issue of intent to deliver from the jury. The offenses involved were based upon the possession of marijuana at a given time and place and the change in the charge could not have created any confusion as to the nature and cause of the accusation nor created any difficulty in defending against it. The action was clearly to the defendant‘s benefit and his contention of error is unsupportable.
Hogan, 231 N.W.2d at 140 (citation omitted).
[¶ 19] Under analogous circumstances, this Court considered a similar argument in State v. Morris, 331 N.W.2d 48 (N.D. 1983). Morris had been charged with possession of marijuana with intent to deliver, and the district court denied his motion for judgment of acquittal under N.D.R.Crim.P. 29. The jury convicted Morris of the lesser-included offense of possession of marijuana. On appeal, Morris argued the district court erred in denying his motion for judgment of acquittal and the case should not have been submitted to the jury. This Court concluded:
One might wonder what difference it makes whether the trial judge granted or denied Morris‘s motion for judgment of acquittal with regard to the major offense charged, i.e., possession with intent to deliver, because Morris was not convicted of the major offense charged; he was convicted of the lesser included offense of simple possession. Had we decided that Morris‘s motion for acquittal of the crime of possession with intent to deliver should have been granted, Morris would have had us use this decision as a premise in a more elaborate argument: namely, once the trial judge decides a jury could not reasonably conclude from the evidence at trial that the accused is guilty of the major offense charged, and therefore the motion for judgment of acquittal should be granted, the trial judge should not let the case go to the jury even if there is sufficient evidence for the jury to find the accused guilty of a lesser included offense.
Morris‘s conception of the procedure a trial judge should follow if a motion for acquittal is granted is not correct.
A trial court‘s granting of a motion for judgment of acquittal with respect to the major offense charged does not preclude submission of the case to the jury on the basis of the lesser included offense instruction unless, of course, the granting of the motion for acquittal extends to the lesser included offense.
Therefore, even if Morris‘s motion for judgment of acquittal of the crime of possession with intent to deliver should have been granted, we still would find no reversible error on the trial court‘s part in submitting Morris‘s case to the jury because Morris was convicted of the lesser included offense of simple possession and there was sufficient evidence to support a verdict of guilty to the crime of simple possession.
Morris, at 55-56 (citations omitted).
[¶ 20] The same rationale applies in this case. The district court determined there was insufficient evidence to support one of the underlying factual bases or legal theories in Count I, but there was sufficient evidence to support a verdict of guilty based upon the remaining factual allegations and legal theories underlying Count I. Rather than submit the unsupported theory to the jury and risk having a verdict that may be based upon an unsupported factual finding, the court merely instructed the jury not to consider evidence of the grant money and removed the
III
[¶ 21] Blunt contends the district court incorrectly instructed the jury on “reasonable doubt” and allowed the jury to convict him on a burden of proof below that which is constitutionally required.
[¶ 22] The district court gave the pattern jury instruction on reasonable doubt, NDJI Criminal K-1.10 (2004):
Proof Beyond a Reasonable Doubt
The State must prove all of the essential elements of the crime charged by proof beyond a reasonable doubt. In other words, if you have a reasonable doubt that the Defendant committed the crime, then you must find the Defendant not guilty.
The State is not required to prove guilt beyond all doubt, but beyond a reasonable doubt.
You should find the Defendant guilty only if you have a firm and abiding conviction of the Defendant‘s guilt based on a full and fair consideration of the evidence presented in the case and not from any other source.
[¶ 23] Blunt contends the instruction as given did not specifically inform the jury that the proof required was greater than the preponderance of the evidence standard or the clear and convincing evidence standard, did not define proof beyond a reasonable doubt in terms of possibilities and probabilities, and did not advise the jury it needed to “reach a subjective state of near certitude of the guilt of the accused.” He contends the court should have given his requested instruction, which stated:
Proof Beyond a Reasonable Doubt
“Proof beyond a reasonable doubt” is a higher standard of proof than proof by the “greater weight of the evidence” used in most civil cases, and proof by “clear and convincing evidence” used in civil cases of higher importance such as termination of parental rights or civil commitment. In terms of possibilities and probabilities, you can believe that the accused is possibly or even probably guilty without reaching the very high level of probability of guilt required for proof beyond a reasonable doubt. To reach that level, you need to reach a subjective state of near certitude of the guilt of the accused. To convict, your belief has to be beyond all reasonable doubt.
On the other hand, the State is not required to prove guilt beyond all doubt. Everything is open to possible or imaginary doubt, or fanciful conjecture. You should not imagine doubt to justify acquittal. A reasonable doubt is one based on reason after you have given full and fair consideration to all the evidence. A reasonable doubt can arise from the evidence itself, from a lack or insufficiency of evidence, or from no evidence proving an essential element of the crime charged.
[¶ 24] We review jury instructions to determine whether, as a whole, they fairly and adequately advised the jury of the applicable law. State v. Zajac, 2009 ND 119, ¶ 12, 767 N.W.2d 825; State v. Haugen, 2007 ND 195, ¶ 6, 742 N.W.2d 796; Hawes v. North Dakota Dep‘t of Transp., 2007 ND 177, ¶ 4, 741 N.W.2d 202. The district court is not required to
[¶ 25] In State v. Schneider, 550 N.W.2d 405, 408 (N.D.1996), we noted we have “long recognized the difficulty in defining reasonable doubt and [have] neither required nor prohibited such a definition.” See also State v. Jahner, 2003 ND 36, ¶ 14, 657 N.W.2d 266. We have also noted the United States Supreme Court has taken a similar approach:
The United States Supreme Court has stated “[t]he beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). “[S]o long as the court instructs the jury on the necessity that the defendant‘s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government‘s burden of proof.” Id. (citations omitted).
[¶ 26] In Schneider, we thoroughly reviewed various constitutional challenges to the pattern jury instruction on reasonable doubt and concluded that, taken as a whole, the instruction “correctly conveyed the concept of reasonable doubt to the jury” and “informed the jury of the law, without misleading or confusing the jury.” Schneider, 550 N.W.2d at 410 (quoting Victor, 511 U.S. at 22, 114 S.Ct. 1239). Blunt has recognized the holding in Schneider but asks us to revisit the decision in that case, raising similar challenges to the pattern jury instruction and relying primarily on statements, but not the holding, in Victor. We reject the invitation to deviate from the holding and rationale expressed in Schneider, and we adhere to the Court‘s conclusion in that case. We conclude the jury instructions given in this case fairly and adequately advised the jury of the applicable law on the essential issues of the case, including reasonable doubt, and were not misleading or confusing.
IV
[¶ 27] Blunt contends the district court erred in allowing the State to aggregate the amounts of the individual instances of misapplication of property alleged in Count I to satisfy the $10,000 threshold for a class B felony under
[¶ 28] Section
Misapplication of entrusted property is:
a. A class B felony if the value of the property misapplied exceeds ten thousand dollars.
b. A class C felony if the value of the property misapplied exceeds five hundred dollars but does not exceed ten thousand dollars.
c. A class A misdemeanor if the value of the property misapplied exceeds two hundred fifty dollars but does not exceed five hundred dollars.
d. A class B misdemeanor in all other cases.
[¶ 29] Prior to trial, Blunt moved to bar the State from aggregating the value
[¶ 30] The longstanding holding of this Court in Jelliff is dispositive of the issue on appeal. Additionally, the plain language of
A
[¶ 31] This Court‘s opinion in Jelliff is dispositive of this case. Jelliff was decided in the immediate aftermath of the 1975 effective date of North Dakota‘s new Criminal Code and interpreted the specific provision Blunt was convicted of violating,
Although the lower court did not specifically state the basis of its decision to dismiss, we could speculate that the court must have concluded that, because statutory violations can occur either by single acts or a continuous series of acts, the prosecution had elected to prosecute as one offense a continuous series of acts and that, therefore, the prosecution is barred because some of the acts in the series occurred prior to the effective date of the statute. We reject this analysis because no such election has been shown and, in fact, the complaint alleges only a single statutory violation on or about July 28, 1975.
Id. (emphasis added).
[¶ 32] Thus this Court held that misapplication of entrusted property could be charged as single acts or as a continuous series of acts. In Blunt‘s case, the prosecution elected to charge a continuous series of acts. In the Syllabus by the Court, the official holding of the Court under the constitutional provision then in effect, N.D. Const. § 102 (1889), this Court in Jelliff held:
3. Under the provisions of
§ 12.1-23-07, NDCC , each misapplication of entrusted property can be considered a separate offense.
Id. at 2 (emphasis added). This Court did not say that each misapplication must be considered a separate offense. For a third time, this Court in Jelliff emphasized the elective nature of the prosecution‘s decision to prosecute as single acts or as a continuous series of acts:
A determination that the statute contemplates a series of transactions exclusively, rather than single instances of forbidden conduct, would lead to the unreasonable conclusion that anyone who had misapplied entrusted property before the effective date of the statute could, as part of the same series of transactions, continue to violate the statute with impunity after the statute has become effective.
Id. at 7 (emphasis added). Again this Court‘s opinion emphasizes the elective choice of the prosecution.
[¶ 33] On the basis of this Court‘s holding in Jelliff, the district court must be affirmed.
B
[¶ 34] In addition to this Court‘s holding in Jelliff, the plain language of the statutes supports affirming the district court‘s judgment. The district court did not need to look to
1. A person is guilty of misapplication of entrusted property if the person disposes of, uses, or transfers any interest in property that has been entrusted to the person as a fiduciary, or in the person‘s capacity as a public servant or an officer, director, agent, employee of, or a person controlling a financial institution, in a manner that the person knows is not authorized and that the person knows to involve a risk of loss or detriment to the owner of the property or to the government or other person for whose benefit the property was entrusted.
2. Misapplication of entrusted property is:
a. A class B felony if the value of the property misapplied exceeds ten thousand dollars.
b. A class C felony if the value of the property misapplied exceeds five hundred dollars but does not exceed ten thousand dollars.
c. A class A misdemeanor if the val-
ue of the property misapplied exceeds two hundred fifty dollars but does not exceed five hundred dollars.
d. A class B misdemeanor in all other cases.
[¶ 35] By definition, the offense is based on a relationship of trust. The plain language of the grading provisions encompasses the property misapplied. “Property” encompasses both the singular and the plural. The North Dakota Century Code itself instructs in the rules for interpreting the code that “[w]ords used in the singular number include the plural and words used in the plural number include the singular, except when a contrary intention plainly appears.”
C
[¶ 36] In addition to this Court‘s dispositive decision in Jelliff and the further support of the plain statutory language, the legislative history is also supportive. Nowhere does the legislative history state that each item of property misapplied must be individually charged.
[¶ 37] Although the legislative history offers support for the premise that the aggregation provision of
D
[¶ 38] As this Court said in Jelliff:
We have held repeatedly that statutes must be construed to avoid ludicrous and absurd results, and that courts endeavor to construe statutes so as to effectuate the legislative purposes which prompted their enactment. Certainly a construction of a criminal statute which nullifies its punitive provisions contravenes the purpose of the enactment and leads to illogical and absurd results.
251 N.W.2d at 7 (citations omitted) (emphasis added).
[¶ 39] Section
V
[¶ 40] We have considered the remaining issues and arguments raised by the parties and find them to be either unnecessary to our decision or without merit. We affirm the order deferring imposition of sentence.
[¶ 41] DANIEL J. CROTHERS and MARY MUEHLEN MARING, JJ., and KIRK SMITH, S.J., concur.
[¶ 42] The Honorable KIRK SMITH, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.
VANDE WALLE, Chief Justice, concurring and dissenting.
[¶ 43] I concur in Parts I, II and III of the majority opinion. Because I do not agree that State v. Jelliff, 251 N.W.2d 1 (N.D.1977), controls our decision and because I read the legislative history of
[¶ 44] The State contends, and the district court concluded, that the aggregation provision contained in the theft grading statute,
For purposes of grading, the amount involved in a theft under this chapter shall be the highest value by any reasonable standard, regardless of the actor‘s knowledge of such value, of the property or services which were stolen by the actor, or which the actor believed that the actor was stealing, or which the actor could reasonably have anticipated to have been the property or services involved. Thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be charged as one offense and the amounts proved to have been stolen may be aggregated in determining the grade of the offense.
[¶ 45] The rationale employed by the district court is incomplete and ignores other language in the statute. Section
“Stolen” means property which has been the subject of theft or robbery or a vehicle which is received from a person who is then in violation of section 12.1-23-06.
[¶ 46] Chapter 12.1-23, N.D.C.C., was part of the criminal code originally adopted in 1973. See 1973 N.D. Sess. Laws ch. 116, § 22; State v. Ensz, 503 N.W.2d 236, 238 (N.D.1993). The consolidation of numerous theft offenses was described as “one of the most radical changes in current North Dakota law” in the proposed new criminal code. Minutes of Interim Comm. on Judiciary “B” 36 (June 20-21, 1972); see Ensz, at 238. The legislature took the unusual step of enacting an expression of legislative intent explaining its consolidation of previously recognized theft offenses into three specific code sections,
Conduct denominated theft in sections 12.1-23-02 to 12.1-23-04 constitutes a single offense designed to include the separate offenses heretofore known as larceny, stealing, purloining, embezzlement, obtaining money or property by false pretenses, extortion, blackmail, fraudulent conversion, receiving stolen property, misappropriation of public funds, swindling, and the like.
[¶ 47] A broader review of the legislative history and policy underpinnings of
[¶ 48] The drafters of the proposed Federal Criminal Code unequivocally indicated that misapplication of entrusted property was not theft under the Code. Addressing the federal provision on misapplication of entrusted funds, the drafters explained:
Misapplication of Property.—The offense proposed in section 1737 involves one who deals with entrusted property in an unauthorized manner that exposes the property to a risk of loss. This offense is the second step in the three-tiered approach suggested by the theft materials for the problems posed by the mishandling of funds by public employees.
The first step involves the offense of theft, and in particular the definition of “deprive,” which provides that an employee “deprives” the government of property if he disposes of it in a manner such as to make its restoration, in fact, unlikely. This was supplemented by the provision that a failure to account upon demand amounts to a prima facie case of theft.
The second step—taken by proposed section 1737—is to treat as a misdemeanor any disposition of entrusted property that is not authorized and that at the same time exposes the property to a risk of loss or detriment. The idea is thus that a theft is made out if the actor uses or disposes of entrusted property in a manner that involves a loss of his control over its use. The misde-
meanor of misapplication is made out if his use or disposition of the property does not involve a loss of control, but on the other hand does involve exposure of the property to a risk of loss.
The third step, is to rely on various regulatory offenses involving breach of duty with regard to entrusted funds. Thus, for example, depositing money in an authorized depositary could subject the employee to serious sanctions of a civil nature, but would not become truly criminal unless the offenses of misapplication or theft could be made out. It is believed that this three-tiered approach, described more fully in the commentary to the theft proposal, more accurately poses the significant issues on which the degree of criminal liability should turn, while at the same time retaining the salutary deterrent effect of the present law.
II Working Papers, at 974 (citations and footnote omitted); see also Final Report of the National Commission on Reform of Federal Criminal Laws 205, Introductory Note to Theft and Related Offenses (1971) (”Final Report“); Final Report 212-13, Comment to § 1737; II Working Papers, at 920-21, 930-31. As noted by the drafters, “there are a number of existing Federal statutes that include . . . forms of diversions or loss of property that cannot properly be denominated ‘theft’ ” including “statutes which speak of the ‘misapplication’ or ‘use’ of property.” II Working Papers, at 930. These comments clearly evince the drafters’ intent that theft and misapplication of entrusted property were entirely separate and distinct offenses, and I conclude that when our legislature enacted the theft and misapplication of entrusted property provisions of the proposed Federal Criminal Code in 1973 it acted
[¶ 49] The clear distinction between theft and misapplication of entrusted property embodied in the proposed Federal Criminal Code is particularly significant when considering application of the theft grading statute. In their Introductory Note to the Theft and Related Offenses section of the proposed Federal Criminal Code, the drafters expressly noted that the theft grading provision, § 1735, “deal[t] with theft only.” Final Report 205, Introductory Note to Theft and Related Offenses. Thus, the drafters clearly demonstrated their intent that the theft grading provision, including the aggregation provision, did not apply to misapplication of entrusted property.
[¶ 50] In the theft grading provision in the proposed Federal Criminal Code, the statute does not include the language “theft under this chapter,” but refers specifically to the theft provisions by section number:
Valuation. For purposes of grading, the amount involved in a theft under sections 1732 to 1734 shall be the highest value by any reasonable standard.... Thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be charged as one offense and the amounts proved to have been stolen may be aggregated in determining the grade of the offense.
Final Report § 1735(7). Sections 1732 to 1734 of the proposed Federal Criminal Code were adopted as
[¶ 51] Furthermore, any question about the legislature‘s intent is resolved when one considers the language of the misapplication of entrusted property statute as enacted in this state in 1973. As originally enacted, misapplication of entrusted property was always a class A misdemeanor—there was no grading of the offense based upon value of the property:
12.1-23-07. MISAPPLICATION OF ENTRUSTED PROPERTY.) A person is guilty of a class A misdemeanor if he disposes of, uses, or transfers any interest in, property which has been entrusted to him as a fiduciary, or in his capacity as a public servant or an officer, director, agent, employee of, or a person controlling a financial institution, in a manner that he knows is not authorized and that he knows to involve a risk of loss or detriment to the owner of the property or to the government or other person for whose benefit the property was entrusted.
1973 N.D. Sess. Laws ch. 116, § 22. Under this provision, any misapplication of
[¶ 52] The legislature‘s 1989 amendment of
[¶ 53] The legislative history indicates the legislature was well aware of the historical distinctions between theft and misapplication of entrusted property under the state and proposed federal codes. The history expressly notes the three-tiered approach embodied in the proposed Federal Criminal Code, including the clear distinction between theft and misapplication of entrusted property:
According to the final report of the National Commission on Reform of Federal Criminal Laws, from which the North Dakota Criminal Code was derived, the offense of misapplication of entrusted property is part of a three-step approach to the problems posed by the mishandling of property by persons in a fiduciary relationship. The first step in the approach taken in the proposed federal code and the North Dakota Criminal Code is to define “deprived,” a key element in the offense of theft but not an element of the offense of misapplication of entrusted property, to include only those misapplications of property in which restoration of the property is unlikely. The offense of misapplication of entrusted property constitutes the second step in this approach to mishandling of property by persons in a fiduciary relationship in that any disposition of entrusted property which is not authorized and which exposes the property to a risk of loss or detriment is treated as a misdemeanor. The third step in the approach provides that any other breach of duty with regard to entrusted property, regardless of risk of loss, be treated as a regulatory offense outside the Criminal Code.
Legislative Council Report, at 161.
[¶ 54] Perhaps the clearest indication of the legislature‘s intent arises from the
[¶ 55] Nor do I believe this Court‘s decision in State v. Jelliff is controlling. In Jelliff the issue before the Court was whether the alleged acts of misapplication of entrusted property which occurred before July 1, 1975, the effective date of
[¶ 56] I recognize that my construction of the statute may appear somewhat unwieldy in a case such as this, where there are literally dozens of alleged instances of misapplication of entrusted property. Our prior caselaw makes it clear, however, that the State need not prove a series of transactions to establish the offense, and each individual misapplication of entrusted property constitutes a completed statutory offense. Jelliff, 251 N.W.2d at 7. While valid public policy reasons may exist for allowing aggregation of the value of multiple misapplications of entrusted property, such determinations of policy are for the legislature, not the courts. E.g., Doyle v. Sprynczynatyk, 2001 ND 8, ¶ 14, 17, 621 N.W.2d 353. The primary goal when construing a statute is to ascertain the intent of the legislature. E.g., Nelson v. Johnson, 2010 ND 23, ¶ 12, 778 N.W.2d 773; State v. Brown, 2009 ND 150, ¶ 15, 771 N.W.2d 267. It is for the legislature to
[¶ 57] One final consideration factors into our interpretation of the statutes at issue in this case. This Court has repeatedly cautioned that criminal statutes are to be strictly construed in favor of the defendant and against the government. See, e.g., State v. Corman, 2009 ND 85, ¶ 15, 765 N.W.2d 530; State v. Geiser, 2009 ND 36, ¶ 16, 763 N.W.2d 469; Dennis, 2007 ND 87, ¶ 12, 733 N.W.2d 241. Interpreting the various provisions in
[¶ 58] Because I believe the district court erred in holding that
[¶ 59] The only allegation of misapplication of entrusted property in Count I that individually totaled more than $10,000 was the grant money allegation. As the majority notes, the district court instructed the jury it was not to consider evidence of the grant money in reaching its verdict. A jury is presumed to follow the instructions given by the court. E.g., State v. Stridiron, 2010 ND 19, ¶ 18, 777 N.W.2d 892; State v. Paul, 2009 ND 120, ¶ 27, 769 N.W.2d 416; State v. Kruckenberg, 2008 ND 212, ¶ 24, 758 N.W.2d 427.
[¶ 60] I therefore presume that the jury found Blunt had committed multiple instances of misapplication of entrusted property and aggregated the amounts to find him guilty of a class B felony under
[¶ 61] The grading provision in
[¶ 62] Gerald W. VandeWalle, C.J.
PER CURIAM.