State v. StensakerState v. Stensaker
- Reporters:
- , ,
Kapsner, Justice.
[¶1] Wayne Zahn appeals from judgments of conviction entered upon jury verdicts for reckless endangerment and seven counts of a violation of a protection order. We conclude a party may not collaterally challenge the validity of a protection order without first raising the issue with the trial court, service of the application for a protection order is not a prerequisite to a criminal conviction for a violation of the order under
I
[¶2] Zahn and his brother have had a tenuous relationship for years. In September of 2005, Zahn‘s brother petitioned the district court for an ex parte temporary protection order. On September 14, 2005, the court issued the temporary order, preventing Zahn from having contact with his brother, excluding Zahn from his brother‘s residence, and requiring Zahn to surrender his firearms or other weapons. On September 18, 2005, the order was served on Zahn, but a copy of the application for the protection order was not
[¶3] Zahn‘s brother also complained that Zahn had fired a rifle in the brother‘s direction while the brother was working in a ditch. Zahn‘s brother testified he saw Zahn and a passenger drive by him and park approximately 200 yards away. Although Zahn‘s brother did not see Zahn fire a rifle, the brother testified he heard a whistling noise from what he thought was a bullet traveling overhead, and a rifle report. Shortly after hearing the noises, the brother saw Zahn and the passenger drive off. At trial, Zahn and the passenger disputed his brother‘s allegation, testifying Zahn did not fire a rifle in his brother‘s direction. After weighing the conflicting testimony, a jury convicted Zahn of reckless endangerment and seven counts of violating a protection order.
II
[¶4] On appeal, Zahn argues the protection order was invalid because the State failed to serve the application for the order with the temporary protection order, as specified in
III
[¶5] Zahn argues he cannot be held criminally responsible for violating the protection order because he claims it is invalid. Zahn did not challenge the validity of the protection order in the court that issued the order.1 In essence, Zahn is collaterally attacking the validity of the protection order after failing to present his argument to the trial court.
[¶6] Generally, a defendant cannot raise an argument for the first time on appeal when it was not made at the trial court for its consideration. State v. Myers, 2006 ND 242, ¶ 16; State v. Keller, 550 N.W.2d 411, 412 (N.D. 1996); State v. Woehlhoff, 540 N.W.2d 162, 164 (N.D. 1995); City of Fargo v. Hector, 534 N.W.2d 821, 822 (N.D. 1995); State v. Brown, 420 N.W.2d 5, 7 (N.D. 1988). By statute, a temporary protection order issued under
[¶7] Here, Zahn had the opportunity to present his argument to the court that issued the protection orders. Both protection orders set hearing dates within fourteen days of their respective issuance dates. Zahn failed to appear at these hearings to challenge the issuance of the orders. Zahn makes no showing the court was without jurisdiction to issue the order. As such, the order was valid and in effect at the time he concededly violated it. Zahn cannot merely claim he was not subject to criminal liability because the order he violated was invalid.
IV
[¶8] Zahn argues, as a matter of law, he cannot be convicted of violating a protection order under
Whenever a protection order is granted under section . . . 14-07.1-03 and the respondent . . . has been served a copy of the order, the first violation of any order is a class A misdemeanor and also constitutes contempt of court. A second or subsequent violation of any protection order is a class C felony.
Zahn argues section 14-07.1-06 is ambiguous because it requires the State to only serve a copy of the order, whereas
A full hearing as provided by section 14-07.1-02 must be set for not later than fourteen days from the issuance of the temporary order. The respondent must be served forthwith with a copy of the ex parte order along with a copy of the application and notice of the date set for the hearing.
Zahn argues the State must prove he was served with both the “order” and the “application.” Otherwise, he argues, the language referring to the application in
[¶9] The primary goal in interpreting statutes is to ascertain the Legislature‘s intent. State v. Buchholz, 2005 ND 30, ¶ 6, 692 N.W.2d 105 (Buchholz I) (quoting State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878). “Legislative intent must first be sought from the language of the statute.” Adams County Record v. Greater N.D. Ass‘n, 529 N.W.2d 830, 833 (N.D. 1995); Burlington N. R.R. v. State, 500 N.W.2d 615, 617 (N.D. 1993). We give the words their plain, ordinary, and commonly understood meaning. Buchholz I, at ¶ 6;
[¶10] Zahn‘s argument is analogous to the issue presented in State v. Sundquist, 542 N.W.2d 90 (N.D. 1996). In Sundquist,
[¶11] Contrary to Zahn‘s position, the requirements of
V
[¶12] Zahn argues the evidence does not support the guilty verdict on the reckless endangerment charge. Zahn contends that had he fired a rifle at his brother on the date alleged, it would have been disclosed in the amended protection order application, which was filed after the shooting incident. Zahn and his passenger testified he did not fire a rifle in his brother‘s direction. Zahn‘s brother, however, testified he heard the shot after he watched Zahn park approximately 200 yards away. The brother also testified he has been a hunter for more than 40 years and knows what a rifle report sounds like.
[¶13] Under our standard of review for “insufficiency of the evidence” claims, Zahn‘s claim is without merit. As we recently explained in State v. Buchholz, 2006 ND 227 (Buchholz II):
When we review a challenge to the sufficiency of the evidence, we only consider the evidence and reasonable inferences most favorable to the verdict to determine if there is sufficient evidence to warrant a conviction. State v. Bertram, 2006 ND 10, ¶ 5, 708 N.W.2d 913. “‘A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.‘” Id. (quoting State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819). We do not weigh conflicting evidence or judge witness credibility. Bertram, at ¶ 5.
Buchholz II, at ¶ 20. Here, the jury was presented with diametrically opposed testimony concerning the rifle shot. That is, the jury was asked to weigh conflicting evidence and judge the credibility of the witnesses. The jury, believing his brother‘s testimony, found Zahn guilty of reckless endangerment. We do not weigh conflicting evidence. Id. In evaluating the evidence in the light most favorable to the prosecution, the evidence was sufficient to support the jury verdict.
[¶14] We hold a party may not collaterally challenge the validity of a protection order without first raising the issue in the court that issued the order, service of the application for a protection order is not a prerequisite to a criminal conviction for a violation of the order under
[¶15] Carol Ronning Kapsner
Mary Muehlen Maring
Daniel J. Crothers
Gerald W. VandeWalle, C.J.
I concur in the result.
Dale V. Sandstrom