City of Dickinson v. Gresz, Cr. N

• Decision Date: 20 December 1989
• Docket Number: Cr. N
• Citation: 450 N.W.2d 216
• Parties: CITY OF DICKINSON, Plaintiff and Appellee, v. Gloria GRESZ, Defendant and Appellant. o. 890109.
• Court: North Dakota Supreme Court

Page 216

450 N.W.2d 216

CITY OF DICKINSON, Plaintiff and Appellee, v.Gloria GRESZ, Defendant and Appellant.

Cr. No. 890109.

Supreme Court of North Dakota.

Dec. 20, 1989.

Diane F. Melbye(argued), Dickinson, for defendant and appellant.

Ficek Law Office, Dickinson, for plaintiff and appellee; argued by Vince H. Ficek, City Atty.

ERICKSTAD, Chief Justice.

Gloria Gresz was convicted by a jury in Stark County Court of retail theft-shoplifting in violation of Dickinson City Code Section 22-21.She appeals from the judgment of conviction.We affirm.

On July 1, 1988, Jerry Bertsch, associate manager of Woolworths, observed Gloria Gresz in the jewelry department of the store.Bertsch observed Gresz with some type of plastic bracelets in her hand.Gresz walked behind the jewelry counter, and then came back out, whereupon Bertsch noticed that the bracelets were no longer in her hand.Bertsch followed Gresz to an area of the store which contained figurines.Bertsch met Shirley Pavlicek, a sales clerk, and told her about Gresz's suspicious actions.Bertsch and Pavlicek stood behind a counter, approximately 15 feet from where Gresz was standing.With a clear view of the area, Bertsch and Pavlicek observed Gresz picking up and putting down items in the figurine area for approximately 15 to 20 minutes.They observed Gresz pick up a bird figurine, squat down in a bent position, and place the figurine in a shopping bag that she was carrying.Bertsch testified that he then followed Gresz as she went out the east door of the store.Bertsch approached Gresz outside the store and stated that he was doing a security check.

The police were called and Gresz was subsequently charged with retail theft-shoplifting, in violation of Dickinson City Code Section 22-21.The pertinent part of that section follows:

"(a) Presumption.Any person concealing upon his person or among his belongings, or causing to be concealed upon the person or among the belongings of another, unpurchased merchandise displayed, held, offered or stored for sale in a retail mercantile establishment and removing it to a point beyond the last station for receiving payments in that retail mercantile establishment shall be prima facie presumed to have so concealed such merchandise with the intention of permanently depriving the merchant of possession or of the full retail value of such merchandise.

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"(d)'Shoplifting' defined; penalty.Theft of unpurchased merchandise displayed, held, offered or stored for sale in a mercantile establishment from that establishment when open for business is 'shoplifting' for which the offender may be assessed a penalty upon conviction not exceeding one thousand dollars, imprisonment for thirty days, or both such fine and imprisonment.(Source: North Dakota Century Code, sections51-21-01, 51-21-02, 51-21-03 and 40-05-06).(Ord. No. 867, Section 1.)"

A jury trial was held on March 17, 1989, whereupon Gresz was convicted.¹

On appeal Gresz asserts two issues:

I.Did the City of Dickinson exceed the authority granted to it by the State when it passed a shoplifting ordinance which created presumption based upon civil law and defined the theft offense differently than the definition provided by the authorizing statute?

II.Whether the jury instruction regarding the presumption of intent when read in the context of the jury charge as a whole is unconstitutional.

I.

Article VII, section I, of the North Dakota Constitution directs that "the legislative assembly shall provide by general law for the organization of municipal corporations."This Court has stated that cities are agencies of the state and have only the powers expressly conferred upon them by the legislative branch of government or such as may be necessarily implied from the powers expressly granted.Roeders v. City of Washburn, 298 N.W.2d 779(N.D.1980);Dakota Land Company v. City of Fargo, 224 N.W.2d 810(N.D.1974);Parker Hotel Company v. City of Grand Forks, 177 N.W.2d 764(N.D.1970).Thus, it must be determined whether or not the state has statutorily granted the city the power to enact an ordinance defining shoplifting and providing for punishment for the commission of shoplifting.

Section 40-05-01(1), N.D.C.C., in relevant part, provides the municipality with the general power of enacting ordinances as follows:

"Powers of all municipalities.The governing body of a municipality shall have the power:

"1.Ordinances.To enact or adopt all such ordinances, resolutions, and regulations, not repugnant to the constitution and laws of this state, as may be proper and necessary to carry into effect the powers granted to such municipality or as the general welfare of the municipality may require, and to repeal, alter, or amend the same."

Section 40-05-02, N.D.C.C., provides additional specific powers to the city.That section, in relevant part, reads:

"Additional powers of city council and board of city commissioners.The city council in a city operating under the council form of government and the board of city commissioners in a city operating under the commission system of government, in addition to the powers possessed by all municipalities, shall have power:

* * * * * *

"25.Theft.To prohibit by ordinance and prescribe the punishment for the commission of theft, as defined by chapter 12.1-23, within the jurisdiction of the city."

Gresz contends that the city exceeded the authority granted to it by the state under section 40-05-02, N.D.C.C., when it adopted a shoplifting ordinance which defined the offense differently from the definition provided by the authorizing statute.Gresz contends that section 40-05-02(25), N.D.C.C., requires a city to limit its theft ordinances to the elements described in section 12.1-23-02, N.D.C.C.²Specifically, she contends that the city erred in including the presumption of intent in its shoplifting ordinance.

The city contends that shoplifting is a distinguishable crime from that of other thefts, and therefore, need not be defined the same.It asserts that the general power authorization in section 40-05-01(1), N.D.C.C., along with the specific penalty authorization in section 40-05-06, N.D.C.C., ³ empowers the city to enact a separate shoplifting ordinance such as section 22-21 of the Dickinson City Code.

In passing upon the validity of such ordinances, the courts will not declare them invalid unless such ordinances are clearly arbitrary, unreasonable, and without relation to public health, safety, morals, or public welfare.Tayloe v. City of Wahpeton, 62 N.W.2d 31(N.D.1953);See also, Soderfelt v. City of Drayton, 79 N.D. 742, 59 N.W.2d 502(1953).

Other jurisdictions have held similar presumptions in shoplifting statutes to be constitutional.The Superior Court of Pennsylvania upheld such a statute in Commonwealth v. Martin, 300 Pa.Super. 497, 446 A.2d 965(1982).⁴In analyzing the constitutionality of such a statutethe court said:

"This statutory presumption is an evidentiary device which may be available to assist the Commonwealth in proving an element of the offense beyond a reasonable doubt.It arises only when the prosecution establishes the existence of facts upon which the presumption is based.The fact upon which the instant presumption is based is concealment of the unpurchased merchandise.

"Such a presumption is a presumption of fact or an inference, and not to be confused with an irrebuttable presumption....

"In evaluating the need for and propriety of a standardized inference we should weigh two distinct factors: (1) whether, in light of present day experience, the proven facts bear sufficient relationship to the fact to be inferred; and (2) whether the rational connection inherent in the inference is of such a nature that standardization is desirable.

"Applying this test to the present statutory presumption we find that the statute passes constitutional muster.If a person conceals merchandise either in a store or outside of it, without first having paid for it, it reasonably follows that he intends to deprive the merchant of the item(s)....

"As intent to deprive is an essential element of the crime of retail theft, the inference must follow beyond a reasonable doubt from its factual basis.We have no difficulty in concluding, especially in light of the previous discussion, that the inference here in question satisfies the reasonable doubt standard."[Cites and footnote omitted.]

Martin, 446 A.2d at 968-69.Thus, according to the Pennsylvania Court, a rebuttable presumption relating to an element of the crime is permissible.

The Appellate Division of the Superior Court of New Jersey also upheld such a statute in State v. Fitzmaurice, 126 N.J.Super. 361, 314 A.2d 606(1974).⁵

The court said:

"It is clear that the use of a statutory presumption in a criminal statute is proper so long as there is a rational connection between the fact proved and the ultimate fact presumed.Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241 [1244], 87 L.Ed. 1519(1943);United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210(1965).

"A rational connection exists here, where the statutory scheme permits a prima facie inference of shoplifting to flow from proof of willful concealment of merchandise and, further, which permits a prima facie inference of willful concealment to flow from a finding that merchandise has been concealed.

"Defendant further contends that a deprivation of due process exists because the statute eliminates the necessity of proof of an intent to commit the crime.The Legislature may make the doing of a prohibited act a crime, regardless of criminal purpose or even knowledge of the illegal character of the act....

"Nor does the statute violate defendant's presumption of innocence, as he argues, by shifting the burden of proof to him.The statutory inference simply creates prima facie evidence of guilt.The statute permits, but does not compel, a finding of...