State v. Simon
| Citation | 916 N.W.2d 626 |
| Decision Date | 28 August 2018 |
| Docket Number | No. 20170374, No. 20170404,20170374 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Alexander SIMON, Defendant and Appellant State of North Dakota, Plaintiff and Appellee v. Mary Redway, Defendant and Appellant |
| Court | United States State Supreme Court of North Dakota |
Brian D. Grosinger (argued) and Chase R. Lingle (appeared), Assistant State’s Attorneys, Mandan, North Dakota, for plaintiff and appellee.
Samuel Saylor (argued), Mandan, North Dakota, and Bruce D. Nestor (on brief), Minneapolis, Minnesota, for defendants and appellants.
[¶ 1] Mary Redway and Alexander Simon appeal from criminal judgments entered after the district court found Redway guilty of disorderly conduct and Simon guilty of disorderly conduct and physical obstruction of a government function. They argue their participation in protests against the Dakota Access Pipeline was constitutionally protected activity that should have been excluded from evidence and there was insufficient evidence to support their convictions. We affirm.
[¶ 2] Redway and Simon participated with a group of about 150 other individuals in a protest against the Dakota Access Pipeline on October 22, 2016. The protest initially started near access point 128 by State Highway 1806 in southern Morton County. According to Bryan Niewind, a captain with the North Dakota Highway Patrol, he was one of four forward field commanders running day-to-day operations from August 11, 2016, through February 2017 as part of law enforcement’s response to protests against the pipeline. Niewind testified that he initially responded to a "Code Red" on October 22, 2016, identifying protest activity at access point 126 along the pipeline route. Niewind testified that while responding to that incident, he received a report of a large gathering of individuals near access point 128 along the pipeline route and he responded to that report.
[¶ 3] According to Niewind, access point 128 was the location where the pipeline would cross under State Highway 1806. He testified that he was aware of prior damage to construction equipment by some protesters and that he had concerns for the safety of the construction site and equipment and for the safety of the people in the area, including construction workers, private security officers, law enforcement officers, and protesters. According to Niewind, a group of about 150 protesters entered private land near access point 128 along a path cleared for the pipeline easement and walked in a northwesterly direction toward construction equipment. He testified there were about 40 to 60 law enforcement officers at the scene and the officers initially established a skirmish line about a mile and a half from State Highway 1806. Niewind described a skirmish line as a straight line formation with officers standing shoulder-to-shoulder about five feet apart to stop people from advancing past the officers. Niewind testified the protesters tried to flank the officers to the south and the officers regrouped and established a second skirmish line to stop the protesters. According to Niewind, officers made multiple announcements over megaphones and loudspeakers, informing the protesters that they were trespassing and were subject to arrest unless they returned to State Highway 1806. Niewind testified that some protesters did not comply with the announcements and continued advancing in an attempt to flank the officers in a northwesterly direction. Niewind testified the officers established a third skirmish line and more than one hundred protesters were arrested:
[¶ 4] According to another field commander, Bismarck Police Lieutenant Jason Stugelmeyer, one protester grabbed Stugelmeyer’s pepper spray at the third skirmish line, which resulted in Stugelmeyer being sprayed in the face. Stugelmeyer also testified the skirmish lines were established because of concerns about the nature of the protesters’ prior behavior, including assaults and damages to construction equipment. Both Redway and Simon were identified in pictures of the group of protesters at the third skirmish line, and a picture showed Simon with his arms linked with other protesters as arrests were being made at the third skirmish line.
[¶ 5] The State initially charged several protesters, including Redway and Simon, with criminal trespass and engaging in a riot. The State subsequently dismissed those charges under N.D.R.Crim.P. 48 and filed new complaints against several protesters, including Redway and Simon, charging them with physical obstruction of a government function under N.D.C.C. § 12.1-08-01, disobedience of a safety order during a riot under N.D.C.C. § 12.1-25-04, and disorderly conduct under N.D.C.C. § 12.1-31-01.
[¶ 6] The prosecutions against Redway and Simon were joined for trial with prosecutions against three other defendants, Tyrale Spotted Bear, Sara Lefleur-Vetter, and Edward Bad Hand. All five defendants waived their right to a jury trial. At a joint bench trial, the State relied on law enforcement officers’ testimony about the conduct by the group of protesters and on photographs establishing the presence of Redway and Simon at the third skirmish line and a photograph of Simon with arms linked with other protesters while arrests were being effectuated. The State also introduced into evidence a video recording of some of the protest. The district court found Redway guilty of disorderly conduct and Simon guilty of disorderly conduct and physical obstruction of a government function and found the other three defendants not guilty of any of the charges against them.
[¶ 7] Redway and Simon argue there was insufficient evidence to support their disorderly conduct convictions under N.D.C.C. § 12.1-31-01, which, as relevant to the charges in this case, describes the elements of that crime:
Redway and Simon assert their individualized guilt cannot be established by their association with the group of protesters and by the photographic evidence of their presence during certain stages of the protests. They claim they did not engage in activity that created a hazardous, physically offensive, or seriously alarming condition and their political protest served a legitimate purpose under N.D.C.C. § 12.1-31-01(1)(g). They also contend there was insufficient evidence that they intended to harass, annoy, or alarm anyone and their convictions are inconsistent with their co-defendants’ acquittals.
[¶ 8] Our review of challenges to the sufficiency of the evidence is limited, and we view the evidence and reasonable inferences from the evidence in the light most favorable to the verdict to ascertain whether there is substantial evidence to warrant the conviction. State v. Wanner , 2010 ND 121, ¶ 9, 784 N.W.2d 143. Under that standard, the defendant bears the burden to show the evidence supports no reasonable inference of guilt when viewed in a light most favorable to the verdict. Id.
We do not reweigh conflicting evidence or judge the credibility of witnesses. Id. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. State v. Klindtworth , 2005 ND 18, ¶ 8, 691 N.W.2d 284.
[¶ 9] The disorderly conduct charge against Redway and Simon alleged that, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed or alarmed by their behavior: (1) they engaged in fighting or violent, tumultuous, or threatening behavior; (2) they obstructed vehicular or pedestrian traffic or the use of a public facility; (3) they created a hazardous, physically offensive, or seriously alarming condition by any act that served no legitimate purpose; or (4) they engaged in harassing conduct by means of intrusive or unwanted acts, words or gestures that were intended to adversely affect the safety, security, or privacy of another person. See N.D.C.C. § 12.1-31-01(1)(a), (d), (g) and (h).
[¶ 10] In a criminal case tried without a jury, a district court need only make a general finding of guilty or not guilty under N.D.R.Crim.P. 23(d). State v. Steiger , 2002 ND 79, ¶ 8, 644 N.W.2d 187 ; City of Fargo v. Brennan , 543 N.W.2d 240, 242-43 n.1 (N.D. 1996). Accordingly, we are not limited to the reasons a district court gives for a guilty finding; instead, we may consider the entire record to decide whether substantial evidence exists to support the conviction. Steiger, at ¶ 8.
[¶ 11] In denying motions for acquittal under N.D.R.Crim.P....
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City of Fargo v. Roehrich
...the content of the speech, but the conduct used in delivering the speech may not be protected. See State v. Simon , 2018 ND 197, ¶ 18, 916 N.W.2d 626 (stating our cases have recognized the content of a defendant's speech may be protected but the conduct may not); In re A.R. , 2010 ND 84, ¶ ......
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City of Fargo v. Roehrich
...the content of the speech, but the conduct used in delivering the speech may not be protected. See State v. Simon, 2018 ND 197, ¶ 18, 916 N.W.2d 626 (stating our cases have recognized the content of a defendant's speech may be protected but the conduct may not); In re A.R., 2010 ND 84, ¶ 12......
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