STATE of North Dakota, Plaintiff and Appellee, v. Dennis HATCH, Defendant and Appellant.
Cr. No. 929.
Supreme Court of North Dakota.
Feb. 23, 1984.
Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for defendant and appellant; argued by James A. Reisnour, Jamestown.
ERICKSTAD, Chief Justice.
This is an appeal by the defendant, Dennis Hatch, from a judgment of conviction entered by the District Court of Stutsman County on March 30, 1983, upon a jury verdict finding him guilty of the crime of theft of property, a class C felony, in violation of
Dennis Hatch had been employed by Marvel Steel in Jamestown, North Dakota, until this employment was terminated in March, 1980. Thereafter, Hatch became eligible for benefits under the North Dakota Unemployment Compensation Law,1
Hatch filed a continued claim form in which he claimed benefits for the week ending September 6, 1980. The claim form included questions pertinent to an individual‘s eligibility and disqualification for unemployment benefits. Hatch answered “No” to the question, “Did you work for any employer(s) or in self employment during the week claimed?” He also left space blank on the claim form for the “name and address of employer(s) and why you are no longer working, total hours, dates worked, and gross earnings.” In answering these questions, Hatch failed to mention his employment with a Jamestown contracting firm, Everetts & Associates, Inc. [Everetts], during the week ending September 6, 1980.
Hatch testified he was employed by Everetts during the week ending September 6, 1980, and, although work was available, quit. He was employed 26 1/2 hours at Everetts and earned $123. Hatch assigned the following reason at trial for his omission of information concerning his employment with Everetts:
“I was collecting off Marvel Steel and working at Everetts. I didn‘t think I was collecting off ... Everett. And that I didn‘t put in that many hours to make a difference ... on my card to write it down.”
The continued claim form contained the statement, “I certify that the statements made on this claim are true to the best of my knowledge and belief. I know the law provides penalties for false statements made to obtain or increase benefits.” Hatch signed this form on September 8, 1980, and thereafter was paid, through a check drawn on the Unemployment Compensation Benefit Fund, his weekly benefit amount of $70. Hatch endorsed the check in space provided thereon above which was set forth, “By signing below, I now CERTIFY, under penalty of law, that any and ALL WAGES earned in the week covered by this check were FULLY reported on my claim.”
Hatch thereafter initiated a claim for extended benefits pursuant to
Chris Huber, head of the investigation and collection unit for the Job Insurance Division of Job Service, testified that Hatch‘s omission was discovered through a computer “cross match” utilizing wage information that had been received from Everetts in April, 1981. On November 23, 1981, the following determination was made by the Job Insurance Division concerning Hatch‘s claims:
“On your claim for week ending September 6, 1980 you certified you were unemployed with no earnings. There was no mention of your employment with Everetts & Associates, your earnings with Everetts & Associates, or the fact that you quit your employment with that employer during that week.
“You were asked for an explanation and did not respond. There is nothing in the record to show that the work was unsuitable or that your leaving was at-
tributable to your employer. It is determined you left your last employment voluntarily and without good cause. Disqualification imposed from August 31, 1980 and until such time as you can show proof of earnings and insured employment of $350.00. It is further determined you misrepresented earnings, employment and separation information that week to obtain benefits to which you were not entitled. Disqualification imposed as indicated below. [11-23-81 to 11-22-82] .... In addition you were overpaid benefits.... “This $630.00 overpayment must be refunded immediately to the North Dakota Job Insurance Division in the form of a check or money order.
“The overpayment was created by improper claim filing. Since you were at fault, waiver through equity and good conscience has been considered and is denied....”
Huber testified that several attempts were made to contact Hatch after the determination was made but no response was ever received.
Disqualification for benefits is governed by
“An individual shall be disqualified for benefits:
“1. For the week in which he has filed an otherwise valid claim for benefits after he has left his last employment voluntarily without good cause attributable to the employer, and thereafter until such time as he:
a. Can demonstrate that he has earned remuneration for personal services in employment equivalent to at least eight times his weekly benefit amount ... and
b. Has not left his last work under disqualifying circumstances.
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“8. For the week in which he has filed an otherwise valid claim for benefits and:
a. For one year from the date on which a determination is made that such individual has made a false statement for the purposes of obtaining benefits to which he was not lawfully entitled. Provided, however, that this disqualification shall not apply to cases in which it shall appear to the satisfaction of the bureau that the said false statement was made by reason of a mistake or misunderstanding of law or of facts without fraudulent intent; ...”
Hatch was found guilty on December 28, 1982, of the crime of theft of property with a value that exceeds $500, a class C felony.
I.
Hatch contends that the combined application in this case of the unemployment compensation law and
The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited or permitted and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). See also Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498-99, 102 S.Ct. 1186, 1193-94, 71 L.Ed.2d 362, 371-72 (1982); Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605, 611-12 (1974); ford” cite=“408 U.S. 104” pinpoint=“108-109” court=“U.S.” date=“1972“>Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972); State v. Carpenter, 301 N.W.2d 106, 110 (N.D.1980). The United States Supreme Court has recently recognized “that the more important aspect of vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.‘” Kolender v. Lawson, supra [quoting Smith v. Goguen, supra, 415 U.S. at 574, 94 S.Ct. at 1247-48, 39 L.Ed.2d at 613.].
Hatch was convicted of theft of property in violation of
“A person is guilty of theft if he:
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“2. Knowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat; ...”
At the Judiciary “A” Committee meeting on December 10, 1973, the committee discussed
It is evident the conduct of Hatch was within the intended proscriptions of both
Hatch asserts that the applicable statutory law, as applied to his conviction, is vague and as such permits selective law enforcement. He does not specifically contend, however, that the State exercised intentional or purposeful discrimination in the prosecution of this matter. See State v. Knoefler, 325 N.W.2d 192, 197-98 (N.D.1982); State v. Gamble Skogmo, Inc., 144 N.W.2d 749, 763-65 (N.D.1966).
We have said that in determining whether or not adequate warning of the
In Moore, supra, we addressed the issue of whether or not a prosecution for the wrongful receipt of Aid to Families with Dependent Children [AFDC] benefits under
“The mere fact that the law. [§ 12.1-23-02] or regulations [of the North Dakota social services board] did not specifically point out or prohibit the various different means by which theft is prohibited does not make § 12.1-23-02 vague. It is no more vague than the statute which provides and makes it a crime to intentionally or knowingly cause the death of another human being without going into detail as to how death is accomplished, ...” 286 N.W.2d at 281.
As was the case in Moore, Hatch was informed at the time he submitted his continued claim that it was unlawful to give false information and that the law provided penalties for false statements. We find no merit in his contention that a reasonable man could not have thought that his voluntary termination of employment at Everetts would have any bearing on his unemployment claim. Contrary to the facts in Moore, the unemployment compensation law quite clearly sets forth the requirements for eligibility for regular and extended benefits and circumstances requiring disqualification for these benefits. Hatch made a false statement that subjected him to disqualification for the receipt of regular benefits under
Hatch also contends that the application of
In Carpenter, supra, 301 N.W.2d at 110, we held that a classification in a criminal statute,
“However, if the drawer pays the holder of the instrument within thirty days after receiving written notice of nonpayment by certified mail or by personal
service ..., that fact shall constitute an affirmative defense to a criminal prosecution under this section.”
We determined this language constituted class legislation because it imposed burdens upon indigent persons which were not imposed upon others. Applying an intermediate standard of review, we concluded that the classification based upon the ability of a defendant to pay for an affirmative defense to criminal prosecution was not substantially related to the important state interest in preventing the issuance of nonsufficient fund checks.
Hatch argues that he was given the opportunity to make payment of the benefits he received to Job Service; that under
Hatch‘s “opportunity” to refund to the unemployment compensation bureau benefits to which he was not entitled is more properly characterized as a statutory liability in that
Hatch also contends that his conviction constitutes imprisonment for debt in violation of
We also find no merit in Hatch‘s argument that the imposition of criminal penalties and civil sanctions in this case amounts to cruel and unusual punishment in violation of the
II.
Hatch contends the trial court erred in denying his motion for judgment of acquittal as the State did not prove beyond a reasonable doubt certain elements of the crime of theft of property as outlined by the trial court in its instructions to the jury.
The trial court instructed the jury that the State was required to prove, beyond a reasonable doubt, “[t]hat said act occurred between November 1, 1980 and December 31, 1980, in the County of Stutsman, State of North Dakota,” as alleged in the criminal complaint and information. Hatch argues the only evidence of any criminal act was his signing of the continued claim card on September 8, 1980, and asserts there was no evidence presented of any act com-
The State is required to prove beyond a reasonable doubt the elements of the offense charged. State v. Bohl, 317 N.W.2d 790, 792 (N.D.1982);
“a. the forbidden conduct; b. the attendant circumstances specified in the definition and grading of the offense; c. the required culpability; d. any required result; and e. 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.”
A perusal of
The criminal complaint, Rule 3, N.D.R.Crim.P., serves two distinct purposes: (1) to enable the magistrate to determine if probable cause exists to support a warrant, and (2) to fairly inform the defendant of the charge in order that he may prepare his defense. State v. Bohl, supra. We have said that the information, Rule 7, N.D.R.Crim.P., must be specific enough to advise the defendant of the charge against him and to enable him to prepare for trial and to plead the result in bar of a subsequent prosecution for the same offense. See State v. Lind, 322 N.W.2d 826, 844 (N.D.1982). Hatch does not contend, however, that there was a failure on the part of the State to apprise him as to the nature and character of the offense charged.
We do not believe the State was required to prove that all elements of the offense of theft of property were committed between November 1, 1980, and December 31, 1980. We hold that unless time is an essential element of an offense, it is not required in a criminal prosecution that the crime be proved to have been committed on the precise date or time period alleged in the complaint or information. It is sufficient that the State prove the commission of the crime charged at any time prior to the filing of the complaint and within the period fixed by the applicable limitations statute.4 The trial court‘s instruction worked to Hatch‘s advantage. The record discloses sufficient evidence to prove that Hatch‘s offense was charged within the applicable statute of limitations.5 We conclude, therefore, that even in light of the court‘s instruction, there was an appropriate conviction.
Hatch argues that the State failed to prove beyond a reasonable doubt that the property stolen exceeded $500 in value so as to constitute a class C felony pursuant to
Hatch also argues that the State failed to prove that he acted with the requisite culpability and specific intent.
In cases challenging the sufficiency of evidence to sustain a conviction we will not weigh conflicting evidence, nor judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to determine if there is substantial evidence to warrant a conviction. State v. Hartleib, 335 N.W.2d 795, 797 (N.D.1983); State v. Manke, 328 N.W.2d 799, 805 (N.D.1982).
John Gletne of the Jamestown Police Department testified that he interviewed Hatch in May, 1982, after informing Hatch of his Miranda rights:
“[Hatch] stated to me that he ... did not enjoy the employment [at Everetts] and quit the job and failed to notify Job Service of that .... I asked him if he knew that that was against the law and he said yes. And then I asked him why he did that. And he said, well, you know, to make a little extra money.”
Hatch denied making these statements to Gletne. We must assume, however, that the jury believed the evidence which supports the verdict and disbelieved any contrary or conflicting evidence. State v. Manke, supra, 328 N.W.2d at 806.
Hatch argues that his testimony reveals he is a man of limited education who did not understand the unemployment compensation law and that it was his belief at the time he made the false statement that his employment with Everetts would have no effect on his unemployment claim. A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty. Manke, supra. We conclude that Hatch‘s conviction for theft of property is supported by substantial evidence.
III.
Hatch next contends that the trial court erred in answering a written question submitted by the jury during deliberations. A note was submitted to the trial judge from the jury which read: “We were wondering if we could see the applications for the extended benefits for the payments of $630 from Nov. 1 to Dec. 31, 1980?” In response to this note the judge answered: “No, you may only consider the evidence that has come to you from the witness stand or by way of exhibit.”
In State v. Klein, 200 N.W.2d 288, 291-92 (N.D.1972), the trial court sent word to the jury, through the bailiff and allegedly outside the presence and without notice to the defendant and his counsel, that the court could not answer the jury‘s inquiry concerning the meaning of a statement made by the defendant and that it was a matter for the jury‘s determination. In determining whether or not such communication between a judge and jury during deliberations constituted reversible error,
“Thus, under our law, whatever communication takes place between the jury and the court after the jury has retired for deliberation, such as a request by the jury to be informed on any point of law arising in the case or on any other matter, such communication must take place in open court with counsel for both parties and the defendant being present, or at least they must have been notified of the jury‘s request....
“After a case has been submitted to the jury, the only proper forum for communication between the jury and the judge is in open court, where a proper record may be made of any conversation had. Any such communication should be made in the presence of the entire jury panel, counsel for both sides, and, in a criminal prosecution, in the presence of the defendant.” 200 N.W.2d at 292.
It was concluded in Klein, supra, that it was error for the trial court to communicate with the jury outside the presence of counsel and the defendant, but that such error was not prejudicial to the substantial rights of the defendant.
The communication between the judge and jury in Klein, supra, is quite similar to the communication alleged to constitute error in this case. Since Klein was decided, we have adopted Rule 43, N.D.R.Crim.P., which generally guarantees to a defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict.”
The United States Supreme Court, in construing the federal version of Rule 43 and prior case law, has recently concluded: “When an ex parte communication [between judge and juror] relates to some aspect of the trial, the trial judge generally should disclose the communication to coun-
We conclude it was error for the trial court to communicate with the jury outside the presence of Hatch and his counsel. We believe, however, that where it can be determined beyond a reasonable doubt that substantial rights of the defendant are not affected, such communication is harmless error. See Rule 52(a), N.D.R.Crim.P. The trial court‘s response to the inquiry of the jury regarding Hatch‘s application for extended benefits operated as a refusal to answer. Our review of the record indicates that no application for extended benefits was ever offered as an exhibit at trial. Thus, we conclude that the trial court‘s error in communicating with the jury did not affect substantial rights of Hatch and constitute harmless error.
In accordance with the foregoing opinion, we affirm the judgment of conviction.
VANDE WALLE, PEDERSON and GIERKE, JJ., concur.
SAND, Justice, concurring specially.
I concur in most of the rationale by which the result was reached and in the result. But I have reservations regarding the unqualified statements that the exact time when the theft offense was committed is not a substantive element required to be established by the State; and that unless time is an essential element of the offense the State need not prove the precise date or time alleged in the complaint. These statements with no qualification or restriction may be misapplied and may create unwarranted problems.
The theft in this instance involved two phases. The first phase, consisting of the defendant‘s false statement that he was unemployed during the week ending 6 September 1980, and his signing of the continued claim form, was an essential element of the theft offense because it put into motion the administrative procedures resulting in the subsequent payment of unemployment funds to the defendant, who was not entitled to them. The second phase, in the absence of appropriate intervening factors, is a continuing offense consisting of unlawfully obtaining funds as a result of the false claim.
The first phase, in my opinion, must be established beyond a reasonable doubt, which includes the time when the false statement was made and filed. However, regarding the second phase, the State must only prove beyond a reasonable doubt that the defendant received the funds resulting from the false claims, but the State is not required to establish the precise or exact time the defendant received the money. The results of a false claim can be established through the applicable law, i.e., that the payments were made pursuant to and in accordance with the usual manner prescribed by law and administrative regulations and by the defendant‘s endorsements of the checks so issued.