State v. Hogie

Dakota, of North Plaintiff STATE Appellant, HOGIE, Jr., Defendant

Robert Appellee. No. 870246.

Crim.

Supreme Dakota. Court North

May (argued), Jamestown, P. Schulz

Wendy plaintiff appellant. Gilje, Dalsted, Jamestown, Greenwood & appellee; argued by for defendant and John E. Greenwood.

LEVINE, Justice. appeals ruling

The State from an oral granting Hogie, Robert motion for Jr.’s judgment acquittal. Because hold we acquittal judgment that the is in effect a information, deny dismissal Ho- gie’s appeal. motion dismiss the We also affirm dismissal of the information. in a informa- criminal tion with: Property, Felony a Class “Theft of 12.1-23-02(1), violation 12.1-23-05(1), Century North Dakota Code, by then and there did defendant knowingly take or exercise unauthorized another; over control property exceeding said ten thousand value; Chevy dollars to-wit: Camero ...” [sic] presented After the State its evidence case, Hogie and rested its for a moved ground charged only theft of an automobile not as a class 631 293, granted (N.D.1977). 259 orally the N.W.2d 295 court felony.1 The trial Section 29-28-07(1), N.D.C.C., jury. provides the The trial and dismissed that the motion signed may a written order subsequently appeal quash State from order court “[a]n judgment of ac- ing the motion granting an information or indictment acquittal of judgment a quittal and count thereof.” A district court dis order missing entered. an information at the the close of State’s case or other order which has the judgment order After the written quashing of an appeal- effect information is entered, appealed from the the State were 29-28-07(1), able under N.D.C.C. State contending that it ruling, constituted a oral Iverson, (N.D.1974); v. 219 N.W.2d 191 asserting information dismissal of the Allesi, v. (N.D.1973). 211 State N.W.2d 733 determining court erred the trial that controls, not is the label which “[I]t not be that Howe, State v. rather the effect.” 247 dis- moved to class B a 647, (N.D.1976). Thus, N.W.2d 652 the ground that the appeal the miss may appeal State from a of an dismissal appeal acquittal from an may not State order, regardless information or other of prosecution after a suc- because further label, its has the same effect as an appeal would violate the Double cessful quashing order an information. of the state and federal Jeopardy Clause constitutions. 29-28-07, N.D.C.C., Section does to dismiss 1. motion appeal not the State to an authorize appealed from the trial State Flohr, supra. v. acquittal. State We ruling Hogie's granting motion court's oral must determine whether the trial court’s acquittal. ruling An oral judgment represents ruling “actually a resolution of appealable is an order. on a motion not the some or all of the factual elements of Klocke, (N.D. v. 918 State 419 N.W.2d {Flohr, supra, 259 N.W. charged” offense writing. 1988). It “An order must be 295), constituting 2d at thus signed judge. And the by must be the is appealable, an order pending until such time motion label, which, regardless of has the same signed denying granting written order quashing information. as an order effect Id., 919, quoting is made.” 419 N.W.2d at Su- decisions of the United States Two New, 483, 435, 28 v. State 75 N.D. N.W.2d bearing our preme have direct on Court 522, (1947). However, 523 because a judg- appealability analysis signed con written order decisions, decided in this case. Those ment ruling sistent with the oral were subse Scott, v. United States day, the same entered, quently we will treat the State’s 2187, 65 82, 57 L.Ed.2d 437 98 S.Ct. U.S. appeal appeal judgment. as an from the States, 437 v. United and Sanabria (1978), Klocke, supra. See v. Cf., State Olson (1978). 54, 2170, 57 L.Ed.2d 43 U.S. 98 S.Ct. Dakota, Job Service North 379 N.W.2d 285 (N.D.1985) (appeal from will be an “order” government appeal of Sanabria barred properly if the deemed before this court insufficiency based on con “judgment” record contains a evidence, though determination even order); Savings & sistent with the insufficient resulted evidence was that the Albrecht, Corp. Loan Ins. 379 N.W.2d construing rulings legal from erroneous (N.D.1985) (appeal 266 from “memo” will excluding most of the the indictment appeal “judgment” be treated as an from a guilt: of defendant’s evidence memo). consistent with trial court’s assume that the “We must erro- action, indictment was interpretation “In a criminal every 13, supra. But not right appeal n. express has as is neous. See Flohr, interpretation of an indictment ly State v. by statute.” erroneous conferred charging theft as a productive purpose 1. No the matter would served 12, 7 and N.D.R. addressing procedural shortcomings See Rules B or C of both relating pretrial Crim.P. sides lack motions 632 deciding U.S., 572, purposes S.Ct., what evidence is a conviction.’ 430 regarded at 1355.” as a ‘dismis- can be

admissible Court did not find Here the District sal.’ jeopardy, On matter of double the court charge count neces- failed said, 98-99, 437 U.S. at 98 S.Ct. at offense, cf. Lee v. element of the sary L.Ed.2d at 79: States, U.S. United S.Ct. “We think in a case such as this rather, (1977); the 80 it found 53 L.Ed.2d defendant, by deliberately choosing the description of the offense indictment’s to seek of proceedings termination the the admission of narrow to warrant too against him on a basis unrelated to factu- extent, To this we be- certain evidence. guilt or al innocence of the offense of ruling properly is to the below be lieve accused, he is no injury which suffers erroneous evidentia- as an cognizable characterized the Jeopardy under Double ruling, acquittal led to an ry which if the permitted Clause Government is to judgment That of appeal ruling insufficient evidence. a of the trial erroneous, however fur- acquittal, bars court favor of the defendant.... Clause, on prosecution any aspect Jeopardy of the Double ther which [T]he guards against appellate oppression, Government count and hence bars review of not a does relieve defendant from the trial court’s error.” the preme factual ment could not barred further decision peal. On what S.Ct. at counts dictment court granted defendant’s motion to dismiss two rulings, not Sanabria, cause the trial court found the defendant even S.Ct. the defendant’s label, actually represents a resolution [in en, supra, At the S.Ct., some offense “[A] ‘the guilty though at Court ruling defendant is element of the offense ^[1349] dismissing 2181, close of there the court United delay. because of a failure of an indictment because of charged,’ all of the factual supra, 437 U.S. at reversed induced of the 57 L.Ed.2d at 78: prosecution constitutes a 57 at 1355 appeal. all States favor], The United States Su- L.Ed.2d U.S., said, [U.S. the the acquitted the judge, by [51 evidence, government’s ap- ^[564] correct or Court of acquittal v.] erroneous and the elements at 56-57. Be- nonappealable Scott, U.S. at L.Ed.2d whatever Martin Lin- only when proof 68-69, charged, the trial Appeals govern- supra, not, pre-in- 97, legal 642]. on a 98 98 Flohr, is order charge elements of the offense resolution of at the substance of Court “determine whether examine The the court cence. He was thus neither 12.1-23-05(1), innocence to the empaneled nor which count of the indictment cessfully fully avoided such a submission factual [I]n consequences hereby granted acquittal.” the Hogie granting is hereby trial the convicted, supra, judgment of theft of not “motion for did present guilt undertook court to dismiss it on to submit the issue of “is not trial court’s oral statements. to 259 N.W.2d at some Therefore, Hogie’s or of his ordered to enter try a Class hereby acquitted depend because case, property innocence] it actually represents him.” jury or all judgment acquittal to voluntary respondent motion states charged” judge’s persuade Clerk he under N.D.C.C. by persuading order felony.” 295), guilt himself suc- of states choice.... of District ruling” judgment had been acquitted the {State acquittal to “look the success- guilt factual of the [of basis must inno- first only only trial The his court, jury motion, Where the before returns granting Hogie’s In the trial court verdict, enters a said: pursuant to ap- Fed.Rule Crim.Proc. Paulson, you “Mr. the man with peal plain will be is barred when ‘it Class B under out [sic] that the Statute, 12.1-23-05(2)(d), District Court ... evaluated the the statute Government’s evidence and says, chapter determined this is a class ‘Theft under it legally that was property insufficient to sustain if: The stolen is a C Allesi, supra; Hogie’s ammunition, explosive supra. or de- State v. firearm, appeal device, motion dismiss the is denied. automobile’ and or an structive basis be factual nation U.S. Jeopardy Clause” In By decision sion that theft class B at cence,” (United He fers charged only as a class C a of L.Ed.2d at supra, appeal. felony. what notwithstanding particular point.” Thus, B if the value mobile sal which “The Motion class his 79) charged as a class C discharging moving was, ground that automobile no at to allow factual unrelated of the you felony. There injury 98-99, elements was based it is clear that B therefore, or less successfully U.S. 79) has to be for classify felony, Hogie means the proceedings against him on a guilt cognizable 98 S.Ct. at of an automobile a purpose of this statute States v. to of (United or innocence as a Motion Dismis- upon the factual Acquittal it’s under.” jury, the offense charged as Class C value 98 S.Ct. at acquitted avoided submission felony and not as a case felony, and under Scott, no resolution of States sought charge a of guilt if it’s an stops at legal permitted trial court to the supra, 437 57 L.Ed.2d could and “suf- of basically or conclu- “termi- Double court’s not Scott, theft. auto- inno- jury. said: over only this on to this may regardless only as a which the kind of 05(1) 12.1-23-05, N.D.C.C., grades occupation 1-23-04, N.D.C.C., define theft. Section Sections “12.1-23-05. “1. Theft under this “2. the value of the len threat to commit a class felony felony or to inflict serious on the ue or tive other arm, ammunition, explosive felony if: or other appeal: be ^[*] contends “d. The The State contends that theft of an Theft exceed device, or an prosecuted property person. 12.1-23-05(2)(d) 12.1-23-02, 12.1-23-03, itsof are of the if the property valued at person ^[*] under this motor-propelled ten thousand dollars acquired 2. merits property Grading property thief. n stolen, threatened or on was automobile, aircraft, chapter chapter or retained ^[*] Sections of stolen is a stolen, class are relevant the manner or services theft offenses. vehicle; A class B bodily injury is a # is a prosecuted stolen, or or offenses 12.1-23- destruc- class B class C in val- by a ^[*] fire- ...” any sto- 12.- to in 12.1-32-01, N.D.C.C., maxi- Under § that, although a We conclude labeled felony is ten penalty mum for a class B acquittal,” trial “judgment of court’s $10,000, or years’ imprisonment, fine did not constitute an order both; felony years’ is five a class C instead, was, “has an order which the ef- $5,000, imprisonment, fine of or both. quashing fect information.” State v. from a Iverson, 194. 12.1-23-05 was drawn supra, 219 N.W.2d at Section is, therefore, provision.2 appealable proposed Federal Criminal Code order under N.D.C.C., Iverson, 12.1-23-05, our 29-28-07(1), enacting In N.D.C.C. State § bodily felony or to 2. Class B inflict See The National Commission Reform Laws, Study injury person Federal Criminal a New or on threatened Draft (1970), providing Criminal Federal Code 1735 person. other part: in “(2) Felony. under sections Class C Theft Grading of Theft Offenses Under felony "§ C if: is a Class to 1734 ****** Sections 1732 to 1734. "(1) Felony. B Theft under sections firearm, “(d) property am- stolen is a felony property is a if the 1732to 1734 Class B munition, explosive or device destructive $100,000 or services stolen in value or exceed automobile, motor-pro- aircraft or other an pelled acquired retained a threat to com- vehicle; ...” is, fact, crime mit a in Class A or years, pro- or both. The the threshold of a combination of lowered Legislature 1735(a)(d), making posed from theft val- section felony prop- object firearm, to theft of felony Class C if its is a in excess ued $10,000. From the airplane pro- in excess or other motor erty valued proposed in the vehicle, pelled C felonies of class will ... retain sub- list Legislature deleted a our provision, Dyer provision.... Federal stance the Act relating theft mail and add- ****** provision relating to theft of livestock. provision ed a finally “It should be noted Judiciary “B” Commit- The minutes stealing difficult, a car a avoids leading the review tee, undertook irrelevant, essentially issue of valu- our substantive criminal the revision ation such cases. Whether a car is 12.1, N.D.C.C., provide no in Title laws stolen for resale value and is hence of determining whether theft of assistance expensive type, or whether it is stolen valued at more than an automobile transportation and abandoned and is as a class may be necessarily expensive hence not mod- as a class el, there is a substantial invasion of the 12.1-23-05, N.D.C.C., was Because § ownership rights of the victim that is felt proposed 1735of the drawn from § existing justify Federal law mak- Code, may look to comments Criminal ing (Emphasis such acts felonious.” add- insight. The Com- provision about ed.) in II Theft Offenses contained ment on Study The comment to 1735 of the § Working Papers the National Commis- a New Federal Criminal Code Federal Criminal Draft of sion on Reform of prepared the National Commission on 1970), 913, (July states: 947-949 Laws (Novem- Reform of Federal Criminal Laws “(b) grading B on value. Possible Class 1970), notes, page “Firearms, at 201: ber might given —Consideration be to wheth- devices, cars, explosives, destructive coun- $100,- er thefts involve more than terfeiting equipment keys are often (or amount) grad- higher might 000 be * crime; *3 in stolen to be used further their pur- ed as B felonies. significant value is not the feature of the ..., pose provision, would be of such theft.” also A Hornbook to the North See simply theft that a Code, 50 N.D.L.Rev. Dakota Criminal extremely involves such an amount is an 639, (1974). 719 offense, serious much so than the more ordinary thought theft that Relying comments to 1735 § enough felony. to merit treatment as a proposed Federal Criminal Code and frauds, expected widespread statute, It is that unambiguous language of our large money, thefts of sums of and other Hogie argued any has the theft of that large similar scale be in- schemes would regardless of its is a cluded, and that the be both value should felony. relying Also on the com- class C enough grand low to include 1735, argued has ments to the State that § high enough schemes and to exclude the statute makes theft of automobiles might what be characterized as more or- regardless “felonies of how low value” dinary be, thefts.... might they and that the statute does or other vehicle.—The “(d) Firearm, ^[******] automobile, airplane Dyer Act, 18 U.S. bile valued at more than felony, preclude charging rather than a class C theft of an automo- as a class 2312, transportation apparent C. makes sto- It that the comments to of a § len motor vehicle or aircraft 1735 address the matter of all felonies, possible distinguished with up sentence thefts or 5 automobile $5000 Here, 1735(1)." the Comment notes that See fn. supra. "[s]uch value grading Study was made in Draft section not, higher how- automobile theft is reflected They do misdemeanors. question offense, grade ever, directly apply to a feature that would be charged may be thefts argument pre- automobile whether lost the State’s were to felonies, depending grades of vail, as different of an since theft automobile valued at stolen. automobiles upon the value $10,000would be a class felo- might plau- be argument While the State’s ny with or without a threat to inflict seri- N.D.C.C., provides 1-02-01, that sible, § bodily injury. ous Our construction also Century Dakota North provisions of the penalty Act, Dyer retains the same as the liberally, with a “are to construed Code be proposed which the drafters of Here, objects.” how- effecting its view to Code intended to retain for auto- Criminal 12.1-23-05, N.D.C.C., ever, objects of mobile theft. grading respect to with that, regardless It is no true doubt of its The State and theft are uncertain. value, the theft of an automobile “is a reasonable constructions posited have both ownership substantial invasion of “It is a well-settled rule of of the statute. (II rights Working Papers, of the victim” penal statutes statutory construction 949). doubt, however, supra, p. We strictly against construed should be person’s expensive theft of one seeking impose parties government poses a more substantial invasion of that persons they in favor of whom them and person’s ownership rights than the theft of imposed.” v. sought to be State Shel- person’s another more modest automobile. (N.D.1981). don, See 312 N.W.2d Farrell, 214 N.W.2d 503 also State “judgment We have concluded that the Riedman, (N.D.1973); Davis v. N.W.2d acquittal” entered in this action had the (N.D.1962); Fargo Bottling It quashing effect of the information. was Co., 19 N.D. 124 N.W. 387 Works then, a dismissal. not an We 12.1-23-05, N.D.C.C., (1910). Construing § have also concluded that automobile State, strictly against resolve we may only charged as a class C be Hogie. Accordingly, doubt in favor of Thus, charging the trial court determined. conclude an automobile theft as a class B was a defect as a class C affirm the trial the information and we of the information.4 court’s dismissal Legislature punish the Had intended theft of an automobile valued at more than ap- Hogie’s motion to dismiss the State’s $10,000 felony, as a class B that intention of the peal is denied and the dismissal easily by apparent could have been made information is affirmed. inserting language exceeding such as “not ten thousand dollars in in value” GIERKE, J., ERICKSTAD, C.J., 12.1-23-05(2)(d), N.D.C.C. Iowa See § concur. (1983); Parker, Code Ann. 714.2 State v. § (Iowa 1983). 342 N.W.2d 459 MESCHKE, J., in result. concurs proposed Both 1735 of the WALLE, Justice, concurring in VANDE 12.1-23t05, N.D.C.C., Criminal Code and § result. accompanied treat theft and theft with a separately in the I write I concur result. bodily injury threat of differently. purpose emphasizing problem the for preserves Our construction of the statute adoption in resulted from the Section that punishment difference in simple between 12.1-23-05, N.D.C.C., provision of a of the automobile, regardless theft of an of its Federal Criminal Code with proposed felony, as a class C and theft of an thereof changes in some of the subsections automobile with a threat to inflict serious put “out of bodily appear B to me to them injury as a class which notes, opinion type majority enhanced seriousness of the second As the sync.” (1982) ], any prosecution prosecution may 4. While further not be barred further nal 2d Allesi, (N.D.1974); [State N.W.2d 805 1 C. C limited to a class Wright, Federal Practice and Procedure: Crimi- provision felony.” this I by logic, North Dakota enacted am unconvinced that when B felony necessarily rely of a Class it must upon the threshold it reduced subsection $100,000 $10,- Section property for theft of 12.1-23-05 which defines theft using felony dollars measure as a Class B “if 000. Statutes the or should grading offenses services stolen exceed ten thousand value dollars if they acquired to determine in periodically by value or are scrutinized retained light philosophy in original the threat to commit a class A reflect or class B felony por- the dollar. The bodily injury value of to inflict serious the current statute, [Emphasis Section 12.- tion of North Dakota’s ...” It to me seems that mine.] 1-23-05, are portion concerned has the with which that statute which refers since amended enactment to threat inflict serious bodily injury been can 1973, although of the the value dollar has turn the theft of an automobile from what significantly since that time as felony a would decreased otherwise be Class C into a (and of inflation. We thus B felony, result confronted Class grammatically per- so i.e., situation, theft of haps logically) a fact an automo- should the theft of an auto- bile, $10,000, $10,000 the value of which exceeds mobile over value. We qualify which would otherwise the theft as thus things: can one of conclude several felony provi- i.e., (1) B it not Legislature a Class were for the adopted when our the provision proposed sion theft of automobile Class from the Federal Crimi- felony. That situation $10,000 fact would have Code nal substituted the improbable been were the limits best threshold for B the Class rather contemplated proposed a Class the than in the Federal perhaps in the Federal Code changed Criminal Code relationship Criminal the unlikely, even much limit with the lower the provisions balance of various $10,000, in grading 1973 when the was intentionally statute en- statute either (2) acted. unintentionally or the rationale did not change and that if of the conditions of change This in the statute 12.1-23-05(1) Section are met the theft is a change in the value dollar has dis- B felony regardless Class it is what that torted scheme of Federal Criminal stolen. Code, apparently North influenced when Dakota the statute was Although prefer result, enacted in I reflected in example, 1973. As an the comments opinion, from the dicta majority Working Papers of the National Com- accomplished of an automobile with threat mission on Reform of Federal bodily Criminal injury to inflict serious be a would majority opinion Laws cited in the arrangement indicate and rela- in the tionship theft of a car the parts value of the various of the statute “essentially Nevertheless, irrelevant.” convinces me theft of an automo- opinion majority also observes that bile with a value of Federal Criminal Code and our statute the theft of an automobile with a threat to treat theft accompanied and theft bodily with a inflict serious injury are both bodily threat injury differently B felonies or B felony. neither is a Class Because, and that the espoused construction opinion, therein noted the majority “preserves in punishment a difference strictly penal be- we construe statutes favor simple tween theft persons re- they sought on whom to gardless of its imposed, class C I concede we should construe and theft of an automobile with a threat grading the statute as the theft of auto- injury inflict serious bodily as a class B felony.1 mobile exclusively as a Class C help proba- 1. I cannot that it observe seems "there cause is a substantial invasion of the ble Working Papers ownership rights comments of the victim felt quoted majority opinion in the justify existing relative law such acts Dyer irrelevancy Act and the [Emphasis supplied.] of valuation in the Because at felonious." written, case of theft of working papers a car indicate an intent to time the were make the theft today, of an automobile a be- even with in ex- a value appears to However, rationale that same in which the situation apply

me to to the accomplished bodily inju- inflict serious

with a threat to

ry- sug- reasons to sound

There well be theft, crime, committed

gest that a bodily injury inflict serious

with a threat to more serious offense graded as a

should be even property, that of a

than the value, accomplished

high without dollar I But am convinced our

such a threat. that end or accomplishes that we

statute except by statute

can so construe the arbi- judicial If that end

trary fiat. desirable

policy Legislature should amend the accordingly.

statute RETZLAFF,

Ruth Plaintiff Appellant,

GRAND FORKS PUBLIC SCHOOL DIS- public corporation,

TRICT NO. Appellee.

Defendant and

Civ. No. 870370.

Supreme Court of North Dakota.

May $100,000, extraordinary, cess would be theft of worth merely justification including comments seem to reflect was to be Class B adopted Legislature for regardless If the theft of an automobile a same our lowering although of its lesser rationale the threshold for a an intent to $10,000, limit the theft of an automobile to Class B a Class C $100,000; therefore, if its value exceeded theft in this would be a Class instance

Case Details

Case Name: State v. Hogie

Court Name: North Dakota Supreme Court

Date Published: May 16, 1988

Citation: 424 N.W.2d 630

Docket Number: Crim. 870246

Court Abbreviation: N.D.