State v. Bourbeau

• Decision Date: 27 January 1977
• Docket Number: Cr. N
• Citation: 250 N.W.2d 259
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Raymond BOURBEAU and Larry James Perry, Defendants and Appellants. o. 565.
• Court: North Dakota Supreme Court

Page 259

250 N.W.2d 259

STATE of North Dakota, Plaintiff and Appellee, v. Raymond BOURBEAU and Larry James Perry, Defendants and Appellants.

Cr. No. 565.

Supreme Court of North Dakota.

Jan. 27, 1977.

Syllabus by the Court,

1. Under statutory consolidation of theft offenses, inquiry is not into How an acquisition occurred, but into whether defendant had control over certain property and whether that control was authorized. Sections 12.1--23--01, 02, N.D.C.C.

2. The prosecution has a task in a theft case to prove a thieving state of mind, and it makes little difference whether the jury infers that the defendant took directly from the owner or acquired from a thief. Sections 12.1--23--01, 02, N.D.C.C.

3. The three paragraphs of Section 12.1--23--02, N.D.C.C., are intended to overlap in coverage; the culpability requirement in all three being 'knowingly . . . with intent to deprive.'

4. Where defendants were charged with having 'knowingly receive(d) or retain(ed) the property of another, which had been stolen . . .', an amendment of the information at the close of the State's evidence changing the charge to 'knowingly exercising unauthorized control over the property of another . . .' did not charge a different offense or prejudice substantial rights of the defendants. Rule 7(e), N.D.R.Crim.P.

5. Where the State twice asked for an amendment to an information prior to trial, at which times the court advised the parties that the amendment would not be considered until the State's evidence was heard, it could not be found that the defendants were unfairly surprised by allowance of an amendment, at the close of the State's evidence, which did not charge an offense different from the original information. Section 12.1--23--01(2), N.D.C.C.

6. Amendment of information at close of State's evidence, which amendment did not vary the nature of the charge, did not violate defendants' Due Process right to be informed of the nature and cause of the accusation against them. U.S.Const. amend. VI, XIV.

7. Amendment to information to charge crime under same set of facts, with same culpability requirements, and requiring proof of same elements as that which was subject of preliminary examination, does not require new preliminary examination.

8. Where there is no showing that trial court abused its discretion in sentencing, the sentence will not be disturbed.

Mervin D. Nordeng, State's Atty., and Joseph A. Turman, Asst. State's Atty., Fargo, for plaintiff and appellee; argued by Joseph A. Turman, Asst. State's Atty., Fargo.

Wayne G. Aarestad and Craig D. Fink, Fargo, for defendants and appellants; argued by Wayne G. Aarestad, Fargo.

ERICKSTAD, Chief Justice.

In this case we are asked to determine whether an amendment of a criminal information following the closing of the State's case was a violation of the defendants' rights under the North Dakota Rules of Criminal Procedure or the Sixth Amendment to the United States Constitution. A separate issue is whether defendants were denied their right to credit for time served when they were sentenced.

Mrs. Lillian Wold, who resides in Fargo, North Dakota, called the Fargo police about 8:00 a.m. on March 18, 1976, and reported her automobile missing. She owned a white 1963 Ford Galaxie four-door, North Dakota license number 177203. Her testimony was that she had used the car until 8:30 p.m. on March 17, and that at 11:00 that evening, she observed it in her parking space, visible from her apartment window.

According to Mr. Jerry Gentz, the assistant manager of the Red Owl store in Oakes, North Dakota, two men whom he later identified as Raymond Bourbeau and Larry James Perry, the defendants in this case, were seated in a "63 white Ford Fairlane 500 four-door' in the parking lot of the Oakes Red Owl store when he arrived at work at 8:00 a.m. on Thursday, March 18, 1976. Gentz testified that he saw Bourbeau and Perry in Oakes, in the same automobile, about three times between March 18 and March 20, at which time he copied down the license number of the car they were driving, North Dakota 177203, and gave it to his boss to convey to the county sheriff. At trial, he identified photographs of Mrs. Wold's car as the same car in which he had seen the defendants.

Sheriff Walter Raugutt ofDickey County stated that after being notified that Bourbeau and Perry had been seen in Oakes, and having been given the license number and description of the car they were driving, he determined that the car was registered in Mrs. Wold's name and had been reported as stolen. He located the defendants in the Ark Lounge in Oakes, at which time he asked them where the car was. He testified that Bourbeau pointed to the white Galaxie and said 'that's our car,' and was cut off by Perry, who said, 'We don't have a car.' (This testimony was not objected to.) Raugutt subsequently placed the defendants under arrest. This took place on March 20, 1976.

Mr. Bourbeau's testimony was that he and Mr. Perry left Fargo on the night of March 16 to hitchhike to Oakes, and that they were given a ride by Gary Meeks. He stated that the three of them stopped at a bar in Casselton that evening, at which time he purchased the 1963 Galaxie 500 from Meeks for $250 cash, and that Meeks said he would send him the title. Bourbeau then drove to Oakes, arriving at 1:00 or 1:30 the morning of March 17. He further testified that, at the time of the trial, he did not know where Mr. Meeks could be found.

It appears that the ignition switch had been changed between the time Mrs. Wold last used her car and her recovery of it. Mr. Bourbeau testified that he noticed at the time he purchased the car that the switch did not appear to be a factory one, but he thought Meeks had changed it because of ignition trouble. There was testimony that the trunk lid had been damaged but there was some confusion as to whether the lock had been damaged. There also was reference to personal property of Mrs. Wold's which had been in the car, but only the automobile was mentioned in the Information.

Bourbeau and Perry were charged by separate complaints dated March 22, 1976. The pertinent part of each complaint in essence stated the defendants committed the offense of theft of property in violation of Section 12.1--23--02 of the North Dakota Century Code, by knowingly receiving or retaining the property of another, which had been stolen, with intent to deprive the owner thereof, to-wit: 1963 Ford Galaxie, ND License #177203, which was the property of and in the possession of Lillian Wold.

After a Preliminary Examination, Bourbeau and Perry were bound over to district court of March 31, 1976. The original Information, dated April 2, 1976, used virtually the same language as the complaint.

On April 2, an arraignment was held in Cass County District Court, and at that time the State moved to amend the Information, pursuant to Rule 7(e), N.D.R.Crim.P. The motion was denied. On April 8, the State filed an amended Information with the court and again moved to amend, changing the language from having received or retained the property of another which had been stolen to having 'exercised unauthorized control over the property of another.' Counsel for the defendants resisted the motion, and it was again denied. Trial was held on April 12, 1976, and at the close of the State's evidence, the Assistant State's Attorney again moved to amend the Information. This time the motion was granted. The jury returned a guilty verdict as to both Bourbeau and Perry, based on the amended Information, and they were sentenced to three years and 30 days in the State Penitentiary. Defendants moved for a new trial pursuant to Rule 33, N.D.R.Crim.P., and for arrest of judgment, pursuant to Rule 34, N.D.R.Crim.P. Both motions were heard and denied by the trial court.

This appeal is taken from the judgment of the district court and its sentence thereon.

It is the position of the defendants that the amendment of the Information was not proper under Rule 7(e), N.D.R.Crim.P. If it is found that Rule 7(e) was properly applied, it is the defendants' contention that their right to be informed of the nature of the charge, guaranteed by the Sixth Amendment to the United States Constitution, was violated.

Both versions of the Information accused Bourbeau and Perry of 'theft of property in violation of Section 12.1--23--02 of the North Dakota Century Code,' which statute reads as follows:

'A person is guilty of theft if he:

'1. Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereof;

'2. Knowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat; or

'3. Knowingly receives, retains, or disposes of property of another which has been stolen, with intent to deprive the owner thereof.'

The only difference between the original Information and the amended Information is that the former chanrged that the defendants 'did knowingly receive or retain the property of another, which had been stolen . . .' while the latter charged them with 'knowingly exercising unauthorized control over the property of another.' The Information at all times charged Bourbeau and Perry with violating Section 12.1--23--02, but the amendment substituted the language of subsection 1 for that of subsection 3.

Title 12.1, N.D.C.C., became a part of our Code as a result of a 1971--1973 interim study on the part of the Committee on Judiciary 'B' of the North Dakota Legislative Council. The concept of consolidation of theft offenses, inherent in Section 12.1--23--02, is referred to in the section preceding it:

'1. Conduct denominated theft in sections 12.1--23--02 to 12.1--23--04 constitutes a single offense designed to include the separate offenses heretofore known as larceny,...