State v. Bernstein

• Decision Date: 26 May 2005
• Docket Number: No. 20040298CA.,20040298CA.
• Citation: 697 N.W.2d 371,2005 ND APP 6
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Loren Nelson BERNSTEIN, Defendant and Appellant.
• Court: North Dakota Court of Appeals

697 N.W.2d 371

2005 ND APP 6

STATE of North Dakota, Plaintiff and Appellee, v. Loren Nelson BERNSTEIN, Defendant and Appellant.

No. 20040298CA.

Court of Appeals of North Dakota.

May 26, 2005.

Anthony Swain Benson (on brief), Assistant State's Attorney, for plaintiff and appellee.

James G. Wolff (argued), The Law Offices of James G. Wolff, Mohall, N.D., for defendant and appellant.

PER CURIAM.

[¶ 1] Loren Bernstein has appealed from an order deferring imposition of sentence upon a conviction for criminal trespass. We reverse and remand for a new trial, concluding that the district court erred in refusing to admit evidence that Loren's father had told him to go to the property to retrieve some personal items.

I

[¶ 2] In 1972, LeRoy Bernstein deeded certain land to his daughter, Caroljoy Richard, and her husband. Caroljoy and her husband lived in a house on the property. In 1987, Caroljoy allowed LeRoy to move his house onto the property, and he lived there from 1987 to 2004. Each house had its own driveway. LeRoy's son, Loren, visited him in his house on a daily basis, regularly bringing the mail and newspaper to his father.

[¶ 3] In late October 2003, LeRoy was hospitalized. He asked Loren to go to the house and bring certain personal items to him in the hospital. Loren went to the property, but found that LeRoy's house was locked. A key which LeRoy kept in his garage so his children could get into the house had been removed. When Caroljoy noticed Loren was at LeRoy's house, she went over and told him it was her property and he was not allowed to go into LeRoy's house. Caroljoy also posted a no trespassing sign on the driveway leading to LeRoy's house.

[¶ 4] Loren claims that LeRoy, after learning of Caroljoy's refusal to allow Loren into the house, again told Loren to go to the house and bring back certain items, and to use whatever means necessary to get in. Loren returned to the property but again found the house locked. During this visit, he removed the no trespassing sign and placed it in LeRoy's garage.

[¶ 5] When Caroljoy learned that Loren had been in LeRoy's garage, she signed a criminal complaint against him for trespassing. Loren was charged with criminal trespass in violation of N.D.C.C. § 12.1-22-03(3).

[¶ 6] The case was tried to the court without a jury. At trial, Loren argued that he believed he had a license or privilege to be on the property. When Loren was asked on direct examination about the statements made to him by his father at the hospital directing Loren to go to his house, the State objected on hearsay grounds. The trial court reserved ruling on the State's objection, but allowed Loren to testify about the conversations with his father subject to the court's subsequent ruling on admissibility. LeRoy had died prior to the trial, so Loren offered into evidence an affidavit from LeRoy stating that: (1) he had requested Loren to go to his house and bring certain personal items to him in the hospital, and (2) when Loren returned and told him the house was locked and he could not get in, LeRoy told Loren to "go and get the door opened however would be required to bring me what I was in need of." The State objected to admission of the affidavit on hearsay grounds, and the trial court again reserved ruling on the objection.

[¶ 7] At the conclusion of the trial, the court ruled that LeRoy's affidavit and Loren's testimony about what his father told him at the hospital were irrelevant, and excluded the evidence. Loren's counsel asked whether the court was excluding the evidence on relevance grounds and not hearsay grounds, and the court answered, "Correct." The court found Loren guilty of criminal trespass and ordered a deferred imposition of sentence.

II.

[¶ 8] The order deferring imposition of sentence was filed on October 13, 2004. On October 21, 2004, Bernstein filed a notice of appeal "from the Final Judgment entered in this action on October 13, 2004." However, no separate judgment of conviction was ever entered. [¶ 9] An order deferring imposition of sentence is not an appealable order under N.D.C.C. § 29-28-06. State v. Nelson, 2005 ND 11, ¶ 5, 691 N.W.2d 218. However, when the order deferring imposition of sentence meets the requirements of N.D.R.Crim.P. 32(b) for criminal judgments and no separate judgment of conviction has been entered, the order serves as the judgment of conviction and is appealable. Nelson, at ¶ 5, 691 N.W.2d 218; State v. Berger, 2004 ND 151, ¶ 8, 683 N.W.2d 897. The order in this case includes the plea, the verdict, and the sentence imposed, and therefore satisfies the requirements of N.D.R.Crim.P. 32(b). Accordingly, the order deferring imposition of sentence serves as the judgment of conviction and the appeal is properly before us. See Nelson, at ¶ 5, 691 N.W.2d 218; Berger, at ¶ 8, 683 N.W.2d 897.

III

[¶ 10] Loren argues the trial court erred in concluding that evidence of what LeRoy told him at the hospital was irrelevant.

[¶ 11] A trial court has broad discretion in evidentiary matters, and its decision to admit or exclude evidence will not be overturned on appeal unless the court abused its discretion. State v. Jaster, 2004 ND 223, ¶ 12, 690 N.W.2d 213; City of Fargo v. Habiger, 2004 ND 127, ¶ 31, 682 N.W.2d 300. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. State v. Tupa, 2005 ND 25, ¶ 3, 691 N.W.2d 579.

[¶ 12] Loren was charged with criminal trespass in violation of N.D.C.C. § 12.1-22-03(3), which provides in pertinent part:

A person is guilty of a class B misdemeanor if, knowing that that person is not licensed or privileged to do so, that person enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the person in charge of the premises or other authorized person or by posting in a manner reasonably likely to come to the attention of intruders.

Under the criminal trespass statute, "privilege" is the freedom or authority to act and to use the property. State v. Morales, 2004 ND 10, ¶ 10, 673 N.W.2d 250; State v. Purdy, 491 N.W.2d 402, 410 (N.D.1992). A person is privileged if "he may naturally be expected to be on the premises often and in the natural course of his duties or habits." Morales, at ¶ 10 (quoting State v. Ronne, 458 N.W.2d 294, 297-98 (N.D.1990)). A person is "licensed" to be on property if the entry was consensual. See Purdy, at 410; Ronne, at 297-98.

[¶ 13] Under N.D.C.C. § 12.1-22-03(3), the State was required to prove beyond a reasonable doubt that Loren knew that he was not licensed or privileged to enter his father's house or garage. See Heckelsmiller v. State, 2004 ND 191, ¶¶ 10, 12, 687 N.W.2d 454

; Morales, 2004 ND 10, ¶¶ 15, 21,

673 N.W.2d 250. The defendant's state of mind is therefore an element of the offense, and evidence tending to show his state of mind would be relevant and admissible. See N.D.R.Ev. 401 and 402.

[¶ 14] For purposes of N.D.C.C. tit. 12.1, a person engages in conduct "knowingly" if, "when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so." N.D.C.C. § 12.1-02-02(1)(b); see Morales, 2004 ND 10, ¶26,

673 N.W.2d 250; In re J.D., 494 N.W.2d 160, 162 (N.D.1992); State v. Kaufman, 310 N.W.2d 709, 713 (N.D.1981). Knowledge need not be absolute, but merely a firm belief unaccompanied by substantial doubt. J.D., at 162; Kaufman, at 713. Knowledge is a question of fact. State v. Hammond, 498 N.W.2d 126, 129 (N.D.1993); J.D., at 162; Kaufman, at 713.

[¶ 15] The knowledge requirement is a subjective test, and "[t]he factfinder must make its determination based upon whether the facts and circumstances would have caused this particular defendant to `know' the requisite facts." Kaufman, at 714. The finder of fact therefore must consider all of the surrounding facts and circumstances in determining the defendant's knowledge. Hammond, 498 N.W.2d at 129; Kaufman, at 714. Thus, to satisfy the knowledge element of the offense of criminal trespass under N.D.C.C. § 12.1-22-03(3), the State was required to prove that Loren knew or had a firm belief, unaccompanied by substantial doubt, that he was not licensed or privileged to be on the property.

[¶ 16] The trial court appears to have based its conclusion that evidence about LeRoy's statements to Loren in the hospital was irrelevant upon a misinterpretation of the elements of criminal trespass under N.D.C.C. § 12.1-22-03(3). At the conclusion of the trial, the court announced from the bench its decision finding Loren guilty of criminal trespass. The court began its oral decision by stating: "And the way the Court sees this matter is that the basic issue is did Loren Bernstein have license or privilege to be on the property on that particular day, Friday, November 1st, 2003?" The court then concluded that, because Caroljoy was the owner of the property and had told Loren to stay off the property, it was not reasonable for Loren to think that he could be on the property. The court concluded it did not matter what LeRoy told Loren because LeRoy did not have authority over the property, and therefore the evidence was irrelevant.

[¶ 17] The court's analysis essentially eliminates the knowledge element of the offense. The crucial inquiry is not, as the trial court stated, whether Loren was actually licensed or privileged to be on the property, but whether Loren subjectively knew he was not licensed or privileged to be there. The fact that a person who is ultimately determined to be in charge of the premises tells the defendant to stay off of the property is only the beginning of the inquiry. The State must also prove that the defendant knew he was not licensed or privileged to be on the...