State v. Bertram
| Decision Date | 31 January 2006 |
| Docket Number | No. 20050036.,No. 20050037.,No. 20050035.,20050035.,20050036.,20050037. |
| Citation | 708 N.W.2d 913,2006 ND 10 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Randy BERTRAM, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Nicole Ellan Foster, State's Attorney, Williston, N.D., for plaintiff and appellee.
Eric P. Baumann (on brief), Slorby Law Office, Minot, N.D., for defendant and appellant.
[¶ 1] Randy Bertram ("Randy") appeals from a district court judgment entered upon jury verdicts finding him guilty of violating a disorderly conduct restraining order, criminal trespass, and contact by bodily fluids. We affirm the convictions.
[¶ 2] On January 16, 2004, Joan Bertram ("Joan") and Randy were divorced by a default divorce decree that awarded Joan the parties' residence. On January 29, 2004, Joan obtained a temporary disorderly conduct restraining order against Randy, and the Williams County Sheriff's Department served that order on him. The order prohibited Randy from having any contact with Joan except through an attorney and from coming within 100 feet of her residence or place of employment. At about 8:00 a.m. on February 8, 2004, Randy entered Joan's residence through a window and spoke with her. According to Randy, he was attempting to get business and tax records for his construction business, which were in an office in the residence.
[¶ 3] The State charged Randy with violating the disorderly conduct restraining order under N.D.C.C. § 12.1-31.2-01 for allegedly entering Joan's home and speaking to her and with criminal trespass under N.D.C.C. § 12.1-22-03(1) for allegedly entering her home, knowing he was not licensed or privileged to be in the home. While Randy was in custody on those charges, he allegedly spit on Gaylen Anderson, a correctional officer with the Williams County Sheriff's Department, while Officer Anderson was attempting to administer medications to him. The State charged Randy with contact by bodily fluids under N.D.C.C. § 12.1-17-11(1)(b) and (3) for allegedly spitting on Officer Anderson, while Anderson was acting in the scope of his duties. In September 2004, a jury convicted Randy of criminal trespass and of violating the disorderly conduct restraining order, and in October 2004, a second jury convicted him of contact by bodily fluids.
[¶ 4] Randy argues the district court erred in denying his motion for judgment of acquittal based on insufficiency of the evidence.
[¶ 5] In State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819 (citations omitted), we outlined our standard of review for challenges to sufficiency of the evidence:
In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. 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. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Moreover, a jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.
[¶ 6] A person is guilty of criminal trespass if, knowing he is not licensed or privileged to do so, he enters or remains in a dwelling. N.D.C.C. § 12.1-22-03(1). "[P]rivilege is the freedom or authority to act and to use property.'" State v. Morales, 2004 ND 10, ¶ 10, 673 N.W.2d 250 (quoting State v. Ronne, 458 N.W.2d 294, 297 (N.D. 1990)). A person is privileged if he naturally may be expected to be on the premises often and in the natural course of his duties or habits. Morales, at ¶ 10. A person is licensed to be on property if the entry was consensual. State v. Purdy, 491 N.W.2d 402, 410 (N.D. 1992).
[¶ 7] A person acts knowingly if "when he engages in the conduct, he knows or has a firm belief, unaccompanied by a 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). A person's knowledge need not be absolute, but must be only a firm belief unaccompanied by a substantial doubt. State v. Kaufman, 310 N.W.2d 709, 713 (N.D. 1981). A person's knowledge depends on all the surrounding facts and circumstances and is a factual question that may be established by circumstantial evidence. Id. at 713-14.
[¶ 8] Randy argues he was not guilty of criminal trespass because he entered a dwelling he had resided in for the last 11 to 14 years. He argues the default divorce judgment, which gave possession of the dwelling to Joan, was an illegal judgment and was subsequently determined to be invalid. He claims he entered the house to retrieve property that even the illegal judgment recognized as his. He argues that before he entered the house, he had been told by three lawyers that he could enter it, and based on that legal advice, he claims he believed he was entitled to enter the house. He asserts the State failed to prove beyond a reasonable doubt that he was not in fact both licensed and privileged to enter the house, much less that he actually knew he was not licensed or privileged.
[¶ 9] Randy admitted he received the divorce decree, which awarded Joan the parties' home, before February 8, 2004. Joan testified she informed Randy he could not come to the house without her approval, and Randy admitted he had been told not to come to the house without her approval. Joan testified she had changed the locks on the house. According to Randy he attempted to call Joan on his cell phone from her garage before he entered her house through a window, but there was no answer. Joan testified she did not receive a phone call from Randy on the morning of February 8, 2004, but awoke and discovered Randy in her residence. She testified she called the police and she found an opened window and a crowbar in the television room in her house. Randy admitted he entered the house through the window.
[¶ 10] Williston Police Officer Darren Cody testified he arrived at Joan's house and discovered Randy inside. Officer Cody testified Randy took off running through the house, shutting doors behind him and eventually fled to the garage where he nailed the door shut. Officer Cody testified he saw a crowbar in the television room and an open window with footprints in snow outside the window.
[¶ 11] We conclude the evidence and reasonable inferences from the evidence, viewed in the light most favorable to the verdict, are such that a rational fact finder could find Randy knew he was not licensed or privileged to enter Joan's house. We reject Randy's claim that he was entitled to rely on the advice of attorneys. Legal advice generally is not a defense to a criminal prosecution, but in some circumstances may be used to negate the requisite mens rea. State v. Thorstad, 261 N.W.2d 899, 904-06 (N.D. 1978). See generally 21 Am.Jur.2d Criminal Law § 156 (1998). Here, Randy was not precluded from testifying that he relied upon the legal advice of attorneys in entering the house, and the jury nevertheless assessed all the surrounding facts and circumstances and determined he knew he was not licensed or privileged to be on the premises. We also reject Randy's claim he was entitled to be in the house because the default divorce judgment was later reopened. In other contexts, this Court has said an invalid order must be obeyed until stayed or reversed by orderly review. State v. Zahn, 1997 ND 65, ¶ 14, 562 N.W.2d 737. The divorce decree had not been reopened when Randy entered the house, and the later proceedings on that judgment do not, as a matter of law, relieve him from criminal liability for criminal trespass.
[¶ 12] In assessing claims about the sufficiency of the evidence, we do not weigh conflicting evidence or judge the credibility of the witnesses. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819. Under our standard of review of jury verdicts, we conclude sufficient evidence existed for the jury to find Randy knew he was not licensed or privileged to enter Joan's house. We therefore uphold Randy's conviction for criminal trespass.
[¶ 13] Randy argues simultaneous prosecutions for criminal trespass and violation of the disorderly conduct restraining order were for the same offense and violated the double jeopardy clauses of the state and the federal constitutions.
[¶ 14] A similar argument was made in City of Fargo v. Hector, 534 N.W.2d 821, 823-24 (N.D. 1995), where this Court applied the "same elements" or "Blockburger" test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the "same elements" test a court determines "'whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution.'" Hector, at 823 (quoting United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)). Importantly, in Hector, at 824, we rejected defendant's argument that some of the "same evidence" used to prosecute him for exhibition driving also was used to convict him for driving under the influence. We recognized the United States Supreme Court had expressly rejected a "same evidence" test, and neither a common episode nor the same evidence determines double jeopardy. Id. (citing Grady v. Corbin, 495 U.S. 508, 512...
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