STATE of North Dakota, Plaintiff and Appellant v. Paul R. FRANKFURTH, Defendant and Appellee.
No. 20050112.
Supreme Court of North Dakota.
Sept. 27, 2005.
2005 ND 167
A. $5 a pill.
[¶21] Sayler‘s lack of need for the prescription is further corroborated by Froehlich pleading guilty to a possession charge and finding Sayler‘s prescription at Froehlich‘s house in a plastic container hidden on Froehlich‘s shelf.
[¶22] Even if the jury heard testimony of nurse practitioner Rud that the prescription was customary following this type of surgery, the jury could still convict Sayler on the deception charge based on the evidence presented at trial. There was no offer by Sayler that any additional witness would present helpful testimony on his intent. We cannot say the outcome would be different with the additional testimony of a medical expert describing the typical prescription of pain medication.
III.
[¶23] The district court, concluding Sayler did not receive ineffective assistance of counsel, properly analyzed the Strickland prongs. We affirm.
[¶24] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.
Thomas M. Tuntland, Mandan, N.D., for defendant and appellee.
CROTHERS, Justice.
[¶1] The State appeals from the district court‘s order arresting judgment and subsequent orders granting reconsideration and clarification pertaining to Paul R. Frankfurth‘s conviction for gross sexual imposition. We affirm.
I
[¶2] Frankfurth was arraigned on March 24, 2004, under an information purporting to charge him with gross sexual imposition under
[¶3] Frankfurth timely moved for arrest of judgment prior to sentencing, asserting the information lacked an essential element of the offense and, thus, failed to charge a crime. Frankfurth argued the information lacked a specific allegation that he had knowledge of his victim‘s unawareness that a sexual act was being perpetrated on her. See
[¶4] The district court granted the motion, dismissing the charges with prejudice. Dismissal was amended to be without prejudice following motions made by the State for reconsideration and clarification; however, the district court would not reinstate the jury verdict.
II
[¶5] The State argues the information was not defective because it properly notified Frankfurth of the charges against him and any missing elements could be implied from the face of the information.
[¶6] This Court has stated technical defects in an information are not fatal to its validity. City of Grand Forks v. Mata, 517 N.W.2d 626, 628 (N.D.1994); City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 333 (N.D.1990). Furthermore, Sixth Amendment notice requirements are satisfied, provided a criminal information is sufficiently specific to provide the defendant with notice of the pending charges and to enable the defendant to prepare a defense. Mata, 517 N.W.2d at 628. The State reasons the language used, plus the inclusion of the citation for the statute violated, constituted sufficient and appropriate notice to the defendant. We disagree.
[¶7] An information must contain a “written statement of the essential elements of the offense.” State v. Gwyther, 1999 ND 15, ¶ 15, 589 N.W.2d 575 (quoting Mata, 517 N.W.2d at 628 and Desjarlais, 458 N.W.2d at 333);
- The forbidden conduct;
- The attendant circumstances specified in the definition and grading of the offense;
- The required culpability;
- Any required result; and
- The nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.
[¶8] This Court has held that the culpability element may be implied in some circumstances. State v. Hendrick, 164 N.W.2d 57, 63 (N.D.1969). In Hendrick, we inferred the element of “intent to escape therefrom” from the word “escape” on a criminal information. Id. However, in State v. Mutschler, 55 N.D. 120, 212 N.W. 832, 833 (N.D.1927), the phrase “willfully, unlawfully, and feloniously set fire to and burn” was not interpreted to charge the essential element of “malice.”
[¶9] Here, the State argues the words “engaged” and “committed” as used in the information imply intentional, rather than accidental, conduct. The State‘s conclusion may very well be correct and, if only pertained to culpability, might be consistent with our holding in Hendrick, 164 N.W.2d at 63. However, the State fails to explain how this inference supplies the necessary element of the defendant‘s knowledge that the victim was unaware a sexual act was being committed upon her. Even the most liberal interpretation of the information fails to lead this Court to the conclusion that the defendant‘s knowledge of the victim‘s unawareness can be inferred from the face of the information.
[¶10] We conclude Frankfurth‘s knowledge of the victim‘s unawareness was an essential element of the offense charged and could not be inferred. Because it was missing from the information, the criminal information was defective.
III
[¶11] The State argues Frankfurth improperly moved for arrest of judgment; therefore, such an Order was improper because Frankfurth‘s motion was neither timely nor based on adequate grounds.
[¶12] The State first claims Frankfurth waived his objection to the information when he failed to seek pretrial relief.
[¶13] Either of the grounds excepted from the
[¶14] Frankfurth argues adequate grounds existed for arrest of judgment because
[¶15] Frankfurth claims the defective information prevented the district court from acquiring jurisdiction over him. Frankfurth‘s argument that jurisdiction did not exist over his person or the crime charged is largely based on the holding in People v. Mack, 24 Ill.App.3d 455, 321 N.E.2d 446, 449 (1974). In Mack, a missing intent element in an information purporting to charge the defendant with attempted rape was deemed a flaw depriving the trial court of jurisdiction. Id. That holding, however, appears to be a throwback to the “somewhat expansive notion of ‘jurisdiction’ which was ‘more a fiction than anything else.‘” United States v. Cotton, 535 U.S. 625, 630 (2002) (internal citations omitted).
[¶16] In Cotton, the United States Supreme Court reinstated a conviction following dismissal by the Fourth Circuit Court of Appeals based on the thought that a defect in an indictment deprived the court of jurisdiction. 535 U.S. at 628-29. Explaining the flaws of the precedent relied on, the Court explained:
[Earlier precedent‘s] elastic concept of jurisdiction is not what the term “jurisdiction” means today, i.e., “the courts’ statutory or constitutional power to adjudicate a case.” This latter concept of subject-matter jurisdiction, because it involves a court‘s power to hear a case, can never be forfeited or waived. . . . [D]efects in [a charging instrument] do not deprive a court of its power to adjudicate a case.
Id. at 630 (emphasis in original) (internal citations omitted).
[¶17] Cotton is consistent with our holding in Reichert v. Turner, 62 N.D. 152, 242 N.W. 308 (N.D.1932), where we held jurisdiction is not lost because of errors in an information if jurisdiction exists over the crime intended to be charged. Therefore, we conclude the district court had jurisdiction over Frankfurth and this matter, notwithstanding the defective information.
[¶18] Frankfurth argues in the alternative that even if jurisdiction existed, the criminal information failed to charge an offense. We concluded above the information was lacking essential elements and was therefore defective. These defects failed to charge Frankfurth with the offense of gross sexual imposition or, in fact, any crime cognizable under the laws of North Dakota.
[¶19] Because failure to charge an offense is a valid ground for arrest of judgment under
IV
[¶20] The State further argues dismissal of the information was an inappropriate remedy, despite its defects. The State rests its contention on the inapplicability of the Fifth Amendment‘s indictment clause to the states and the district court‘s failure to conduct a harmless/obvious error analysis under
[¶21] At the outset, judicial decisions uniformly hold that the right to indictment by a grand jury under the Fifth Amendment to the United States Constitution is not applicable to state court proceedings. 38 Am.Jur.2d Grand Jury § 2 (2004); see, e.g., Hurtado v. California, 110 U.S. 516 (1884). We have not been provided with a contrary argu
[¶22]
[¶23] The Court in Cotton analyzed the federal counterpart to
[¶24] The State claims dismissal was improper because Frankfurth‘s substantial rights were not affected by the defective information. The State cites as support the fact that the jury convicted Frankfurth after being properly instructed on all essential elements of the offense. Thus, even though the information did not contain the words “he knows,” any error was harmless. The State argues Frankfurth knew the crime he was charged with committing, he was tried on that charge, and the jury received the proper law on the charge, including all essential elements.
[¶25] A defective information cannot be “cured” through proper jury instruction or other means short of amendment. See United States v. Denmon, 483 F.2d 1093, 1095 (8th Cir.1973); State v. Howell, 226 Kan. 511, 601 P.2d 1141, 1143-44 (1979). Moreover, the State does not direct us to any cases involving a state‘s appeal from an order arresting judgment in which this or any Court conducted a Rule 52 analysis, and we have found none.
[¶26]
V
[¶27] Frankfurth‘s various arguments on appeal implicitly raise a question about the status of the charge against him if the district court‘s decision is affirmed. Although not central to this appeal, we address issues that may reasonably arise upon retrial and subsequent proceedings in the district court. Olmstead v. Miller, 383 N.W.2d 817, 823 (N.D. 1986).
[¶28] Upon arrest of judgment, Frankfurth was placed in the same position he would have been had no crime been charged because, in fact, no crime had been charged. The effect of an order arresting judgment is “to place the defendant in the same situation in which he was before the information was filed.”
[¶30] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.
KAPSNER, Justice, concurring.
[¶31] I agree with the conclusion that the district court did not err when it arrested judgment. For the crime of gross sexual imposition under
[¶32] Under a harmless error analysis, the failure to include the phrase “he knows” in an information may, when the entire record is examined, be harmless.
[¶33] The information could have been amended up until the time the verdict was rendered.
[¶34] This is precisely the type of issue
[¶35] Our case law recognizes that even “constitutional errors do not automatically require reversal if it is shown they were harmless.” City of Bismarck v. Judkins, 2005 ND 143, ¶ 7, 701 N.W.2d 911. Harmless error analysis is already used for a broad range of issues. See, e.g., Clark v. State, 2001 ND 9, ¶ 16, 621 N.W.2d 576 (imposing an enhanced sentence without having a jury find the predicate facts supporting the enhanced sentence was harmless error); State v. Syvertson, 1999 ND 134, ¶¶ 37-38, 597 N.W.2d 652 (violating the right against
[¶36] There are, of course, certain errors that cannot be considered harmless. But such errors “infect the entire trial process” and “necessarily render [the whole] trial fundamentally unfair.” Neder, 527 U.S. at 8. In State v. Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635, for example, we said the violation of Sixth Amendment right to effective assistance of counsel “can never be treated as harmless error.” Drafting an insufficient charging document would not be harmless error under
[¶37] Paragraph 25 of the majority opinion cites to two cases that apparently stand for the proposition that a defective information cannot be “cured” through proper jury instructions. See supra at ¶ 25 (citing United States v. Denmon, 483 F.2d 1093, 1095 (8th Cir.1973); State v. Howell, 226 Kan. 511, 601 P.2d 1141, 1143-44 (1979)). But neither case, nor any case cited by the majority, precludes the use of harmless error analysis. Comparable errors in the indictment in the federal system are subjected to a
[¶38] As we have stated, the primary purpose of the complaint or information is to inform the accused of the charges against him to enable him to prepare for trial. City of West Fargo v. Hawkins, 2000 ND 168, ¶ 8, 616 N.W.2d 856. There is nothing in this record to suggest that Frankfurth was not adequately informed of the crime charged or that he was not prepared for trial. Because of this, a retrial is an inefficient and ineffective use of judicial resources and provides incentives for defendants to withhold raising a defective information until after a verdict is entered. “Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” Neder, 527 U.S. at 18 (citing Roger J. Traynor, The Riddle of Harmless Error 50 (1970)).
[¶39] If the district court had subjected the error in the charging document to a
[¶40] Carol Ronning Kapsner
CAROL RONNING KAPSNER