State v. Bohl
| Decision Date | 25 March 1982 |
| Docket Number | Cr. N |
| Citation | 317 N.W.2d 790 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Jeffrey BOHL, Defendant and Appellant. o. 795. |
| Court | North Dakota Supreme Court |
John E. Greenwood, Asst. State's Atty., Jamestown, for plaintiff and appellee.
Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for defendant and appellant; argued by William A. Mackenzie, Jamestown.
Jeffrey Bohl appeals from a judgment of conviction of the crime of delivery of an alcoholic beverage to a person under the age of 21 years. The judgment was entered August 21, 1981, by the County Court with Increased Jurisdiction of Stutsman County. Bohl was sentenced to a jail term of six months with three and one-half months suspended on condition that he pay a fine of $250 and comply with additional provisions during the one-year probationary period. We affirm that conviction.
Bohl raises the following three issues on appeal:
1. Did the State of North Dakota fail to prove each and every material allegation set forth in the criminal complaint?
2. Did the State fail to prove that the beverage allegedly delivered contained more than one-half of one percent of alcohol by volume?
3. Was the provision of the sentence directing Bohl to refrain from the use of alcohol for the probationary period arbitrary, contrary to state statute and an abuse of judicial discretion?
The charges against Bohl stem from a keg party held at the Jamestown Reservoir on June 7, 1981. The party was broken up by Joyce Burkett, Stutsman County Deputy Sheriff, and Brent Burkett, her husband and a special deputy for the county, who were sent to the scene because of a complaint filed with the sheriff's department. After receiving the complaint, the Burketts called for help because it was department policy to have more than one patrol vehicle on the scene when breaking up keg parties. During the 20-minute period in which they waited for help, they observed the party through their binoculars. When help arrived, the three deputy sheriffs moved in and broke up the party. They confiscated a keg and later traced it through the county's keg registration program to Jeffrey Bohl. The keg had been purchased by Bohl the day before from "Bottles & Jugs" of Jamestown. The keg registration card signed by Bohl indicated that the keg purchased by him contained "Pabst".
The testimony indicates that Kelly Harris, 18 years old at the time of the trial, drove in her parent's car from Jamestown to Bohl's home in Cleveland on June 6, 1981. She and Bohl, for an unexplained reason, then drove the 20 miles back into Jamestown, stopped at Bottles & Jugs where Bohl bought, according to the registration card, two kegs of "Pabst" beer. After Bohl apparently placed the kegs in the car, they then made the 20-mile return trip to Cleveland. There, with one 16-gallon keg in the trunk of Harris' mother's car and the other 16-gallon keg in the back seat, Harris dropped Bohl off at his home and, according to Harris and Bohl, "forgot" to take Bohl's kegs out of the car. Harris then drove back to Jamestown again. She left the two kegs at the garage of a friend and then returned to her home in Jamestown.
Bohl testified that Harris called him the next day, June 7, 1981, and asked him if she could use one of the kegs. He testified that his answer was an unequivocal "no". The keg mysteriously showed up at the cove of the Jamestown Reservoir anyway. That evening when the party was broken up by the sheriff's department, the keg was confiscated and ultimately traced to Bohl. Bohl did not explain during the trial what he intended to do with the two 16-gallon kegs.
The criminal complaint sworn against Bohl reads in relevant part "that the defendant did on the 6th day of June, 1981, in the City of Jamestown in said County and State, Commit the crime of delivery of an alcoholic beverage to a person under the age of twenty-one years, Sec. 5-01-09, NDCC a Class A Misdemeanor, which said crime was committed as follows, to-wit: That at the said time and place the said defendant did deliver alcoholic beverages to a person under the age of twenty-one years at the Jamestown Reservoir, Jamestown, North Dakota, ...."
Bohl's first argument on appeal is that the State did not prove each and every element of that complaint. It appears that there are two parts to that argument. First, he seems to be arguing that the State failed to prove that the delivery took place on June 6, 1981. Second, it appears that he is arguing that if there was a delivery it did not take place at the Jamestown Reservoir, as alleged in the complaint.
We have concluded that it was unnecessary for the State to prove each and every allegation set forth in the criminal complaint. The State is only required to prove the elements of the offense charged. Sec. 12.1-01-03, N.D.C.C. A criminal complaint serves two purposes: (1) to enable the magistrate to determine whether or not probable cause exists to support a warrant, State v. Hager, 271 N.W.2d 476, 478 (N.D.1978), and (2) to fairly inform the defendant of the charge in order that he may prepare his defense, State v. Jelliff, 251 N.W.2d 1, 5 (N.D.1977). In this case, Bohl is not arguing that the complaint should have been dismissed because it was insufficient to charge an offense. Instead, he is arguing that the State did not prove the elements alleged in the complaint.
A person may not be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The term "element of an offense", is defined by Section 12.1-01-03(1), N.D.C.C., as follows:
"1. ... a. the forbidden conduct; b. the attendant circumstances specified in the definition and grading of the offense; c. the required culpability; d. any required result; and e. the nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue."
In reviewing the facts of this case to determine whether or not the elements of the crime were proved by the State, we apply the standard of review as stated in State v. Olmstead, 246 N.W.2d 888, 890 (N.D.1976):
"However stated, these rules indicate a recognition that the truth can better be determined in the confrontation of the testimony of witnesses appearing in person than from transcript of the testimony of those witnesses." 246 N.W.2d at 890.
The first element to be proved by the State is "forbidden conduct". The forbidden conduct in this case is defined by Section 5-01-09, N.D.C.C., as follows:
A review of the facts of this case supports the finding that there was (1) a delivery of alcoholic beverages, (2) to a person under 21 years of age. There is no doubt that Bohl purchased two kegs of "Pabst" from Bottles & Jugs. That purchase is proved by the registration card signed by Bohl and kept as a business record of Bottles & Jugs. Bohl, while not admitting that the kegs contained beer, did admit that the kegs were left in the possession of Kelly Harris who was 18 years old at the time of the trial. He, however, testified that when she asked him whether or not she could use the kegs, he told her that she could not.
The testimony of Brenda, a friend of Harris', supports a finding that Bohl delivered the kegs not only to Harris, but also through her to the other minors attending the Jamestown Reservoir party. The following testimony describes a telephone conversation between Brenda and Kelly Harris:
This explains how the keg may have reached the cove. The court may have concluded this was its intended destination from the beginning of the purchase. Adults who purchase beer in kegs and place them with minors will have difficulty absolving themselves of all responsibility for the kegs. In this case the court apparently chose not to believe Bohl's testimony and this was its privilege.
Bohl's own testimony provides evidence that he did not purchase the kegs of beer for his own use. Only one keg of beer was confiscated when the deputy sheriffs broke up the party at the Jamestown Reservoir. The other keg, as Kelly Harris testified, had been left at the garage of a friend of Kelly Harris'. Although Bohl had paid for the beer and put a deposit down on each of the two kegs, his testimony shows a lack of concern for retrieving the second keg. There are no further attendant circumstances which need be discussed.
The next element which we will discuss is "culpability". Section 5-01-09, N.D.C.C., does not specify any culpability requirement. The general rule of Section 12.1-02-02(2), N.D.C.C., provides that if a statute defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is that one commit the offense willfully. That culpability requirement, however, applies only to...
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