State v. Bonner

• Decision Date: 01 February 1985
• Docket Number: Cr. N
• Citation: 361 N.W.2d 605
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Ed BONNER, Defendant and Appellant. o. 1015.
• Court: North Dakota Supreme Court

Page 605

361 N.W.2d 605

STATE of North Dakota, Plaintiff and Appellee, v. Ed BONNER, Defendant and Appellant.

Cr. No. 1015.

Supreme Court of North Dakota.

Feb. 1, 1985.

As Corrected Feb. 20, 1985.

Tom P. Slorby, State's Atty., Minot, for plaintiff and appellee; argued by John P. Van Grinsven, III, Asst. State's Atty., Minot.

Tam J. Black, Minot, for defendant and appellant; argued by Tam J. Black, Minot.

ERICKSTAD, Chief Justice.

Ed Bonner appeals from a judgment of conviction entered by the district court pursuant to a jury verdict finding him guilty of the crime of being an accomplice and/or co-conspirator to the delivery of a controlled substance. We affirm.

A review of the evidence presented to the jury reveals that in early November 1982 Louis Long and Robert Jenkins met for the first time in a Minot bar. Long testified that Jenkins offered at that time to sell him some marijuana at a price of $300 per pound. Long expressed interest in such a transaction, provided he could come up with the money. Jenkins told Long that he could be reached through Ed Bonner, with whom Long was acquainted. Long met with both Jenkins and Bonner later in the day at a different bar. A discussion ensued as to the possibility of Long acquiring some "stuff" from Jenkins. As to Bonner's participation in the discussion regarding the "stuff," Long testified: "I think I asked him [Bonner] if he could get it and he nodded his head, 'Yes.' " Subsequently, Long agreed to participate with the Minot Police Department in an attempt to purchase marijuana from Jenkins.

On November 7, 1982, Long went to a rooming house owned by Bonner, where Bonner, Jenkins, and others resided. Long testified that he was advised by Bonner that the price of the marijuana would be only $200 per pound. On November 8 Long met with Jenkins outside the Bonner residence where arrangements were made for Long to "pick up" some marijuana the following day.

On November 9 Long met with Officer Wolf and Detective Knoop of the Minot Police Department, and was introduced to Agent Pat Geary, who was going by the name of Patrick LaFrombois. Agent Geary was provided with $250 and thereafter accompanied Long in Long's pickup truck to the Bonner residence. Long introduced Geary to Jenkins in the pickup. Jenkins brought out from under his coat a transparent plastic bag containing marijuana, which he transferred to Geary in exchange for $200. Geary also paid Jenkins an additional $50 in partial payment for another bag of marijuana. Long observed Jenkins retrieve the second bag from a shed behind the Bonner residence. Geary testified that he and Jenkins then made arrangements for the transfer on the following day of ten additional pounds of marijuana.

On November 10 Geary was provided with $2,050 and fitted with a microphone and transmitter. Geary proceeded alone, under police surveillance, to the Bonner residence where he discussed the scheduled transaction with both Jenkins and Bonner. Jenkins told Geary that he had not been able to come up with ten pounds of marijuana, but that he had anywhere from five to seven pounds available. Geary testified as to the extent of Bonner's involvement in the discussion:

"I believe I stated to the people there, Mr. Bonner and Mr. Jenkins, there was no way I was going to pay $2,000 for 5 to 7 pounds when it was agreed upon I was going to get 10 pounds. Mister Bonner and Mr. Jenkins both stated the quality of the marijuana was exceptional. I believe Mr. Bonner also stated that they would be getting some more later on during the week and that that there, again, would be better quality marijuana.

"I asked Mr. Bonner at this time if the marijuana I was indeed purchasing was home grown, and Mr. Bonner stated, 'No, it is very good quality marijuana.' "

According to Geary, Bonner told him that the marijuana of November 10 was better than that purchased by Geary on November 9. Bonner also stated to Geary that he should be very happy with the quality of the marijuana and, if he was not, "to return it to him [Bonner] and he would take care of it."

Geary testified that he told Jenkins and Bonner to bring the marijuana to his vehicle. Jenkins momentarily left the scene while Geary talked briefly with Bonner on the front porch. Geary returned to his vehicle. Within minutes Jenkins, who was carrying a small suitcase, and Bonner approached and entered Geary's vehicle. Geary paid Jenkins $50 owed on the transaction of the previous day. Geary testified: "Mr. Bonner again mentioned the fact that this was extremely good marijuana. We haggled over the price, I believe, a little more.... The marijuana was handed to me by Mr. Jenkins." Geary then recited a code word which resulted in the arrival of police officers who placed both Bonner and Jenkins under arrest.

Detectives Knoop and Glibota testified that they conducted surveillance of the transaction in a motor home parked in the vicinity of the Bonner residence. A receiver was utilized to monitor the conversation transmitted by Geary. Although the detectives were not able to hear clearly all the conversation that was had, both testified that they heard Bonner tell Geary: "If you don't like this, come back later and we will have some more."

Bonner denied at trial having been involved in the November 10 transaction. He testified that he did speak briefly with Geary about the name that Geary was going by. Bonner explained that, because he thought he knew Geary, he kind of whispered to him "that if he got anything, I don't know if it's any good." Bonner testified that he went out to Geary's car to inquire if Geary knew a LaFrombois who had sold him a stolen pickup and, within seconds, was placed under arrest. Jenkins also testified that Bonner was not involved in the transaction.

On appeal Bonner raises essentially three issues.

I.

Bonner contends that the trial court erred in allowing "co-conspirator" language to be contained in the amended information and jury instructions. The State concedes that there was some confusion on its part over the proper application in this case of our accomplice statute, particularly subsection (c) of Section 12.1-03-01(1), N.D.C.C. Accomplice liability is defined in Section 12.1-03-01(1), as follows:

"1. A person may be convicted of an offense based upon the conduct of another person when:

a. Acting with the kind of culpability required for the offense, he causes the other to engage in such conduct;

b. With intent that an offense be committed, he commands, induces, procures, or aids the other to commit it, or, having a statutory duty to prevent its commission, he fails to make proper effort to do so; or

c. He is a co-conspirator and his association with the offense meets the requirements of either of the other subdivisions of this subsection.

...." [Emphasis added.]

Criminal conspiracy is defined in Section 12.1-06-04: "1. A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy." Subsection (5) of Section 12.1-06-04 reads: "Accomplice liability for offenses committed in furtherance of the conspiracy is to be determined as provided in section 12.1-03-01."

The original information dated June 30, 1983, charged Bonner alternatively under Sections 12.1-03-01, and 12.1-06-04, as an accomplice or co-conspirator to the delivery of a controlled substance. The State moved to amend the information during trial to charge the "one" offense of "Accomplice and/or Co-conspirator to Delivery of a Controlled Substance." An amended information dated January 25, 1984, charged that Bonner, "in the capacity as a co-conspirator, ... willfully caused, commanded, induced, procured, or aided" Robert Jenkins in delivering marijuana on or about November 10, 1982, in violation of Sections 12.1-03-01, 12.1-06-04(5), and 19-03.1-23(1)(b), N.D.C.C. The State argued it was "eliminating the conspiracy" and charging Bonner under subsections (a), (b), and (c) of Section 12.1-03-01(1). Bonner's trial attorney, Phillip J. Brown, argued against any reference in the information to a conspiracy if it was not being charged, but noted the matter was an issue to be resolved in the trial court's final instructions to the jury. There being no objection, the court permitted the amendment to the information.

Bonner's trial attorney thereafter submitted a proposed jury instruction defining accomplice liability which made no reference to a "co-conspirator" or Section 12.1-03-01(1)(c). The proposed instruction was rejected by the trial court in favor of an instruction which recited verbatim the statutory authority cited in the amended information, including Sections 12.1-03-01(1)(c), and 12.1-06-04(5). The amended information was also included in the trial court's instructions. No instruction was given regarding the essential elements of the crime of conspiracy. Bonner's trial attorney took exception to what he perceived was a problem with the language of Section 12.1-03-01(1)(c).

Bonner asserts that the jury was misled and confused by the inclusion of "co-conspirator" language in the amended information and the jury instructions. He argues he was "labeled a co-conspirator" without the State meeting its burden of proving that the crime of conspiracy was committed.

In determining whether a jury instruction is misleading, the instruction as a whole must be considered. If, when considered as a whole, the instruction correctly advises the jury as to the law, it is sufficient even if a part of the instruction standing alone may be insufficient or erroneous. State v. Halvorson, 346 N.W.2d 704, 709 (N.D.1984); State v. Skjonsby, 319 N.W.2d 764, 774 (N.D.1982). If a jury instruction, when read as a whole, is erroneous, relates to a subject central to the case, and affects the substantial rights of the accused, it is ground for...