State v. Brown

• Decision Date: 24 January 2018
• Docket Number: Nos. 20170047-20170050,s. 20170047-20170050
• Citation: 906 N.W.2d 120
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Mark Terrence BROWN, Defendant and Appellant
• Court: North Dakota Supreme Court

906 N.W.2d 120

STATE of North Dakota, Plaintiff and Appellee

v.Mark Terrence BROWN, Defendant and Appellant

Nos. 20170047-20170050

Supreme Court of North Dakota.

Filed January 24, 2018

Nathan K. Madden, Assistant State's Attorney, Williston, N.D., for plaintiff and appellee.

Laura C. Ringsak, Bismarck, N.D., for defendant and appellant; submitted on brief.

Tufte, Justice.

[¶ 1] Mark Terrence Brown appeals from four criminal judgments entered after the district court found him guilty of driving while under suspension on four separate occasions. Brown argues there was insufficient evidence to support the convictions and the district court erred in enhancing the classification for the final conviction to a class A misdemeanor. We affirm.

I

[¶ 2] The State charged Brown with four separate acts of driving while his license was suspended after law enforcement officers observed him driving a motor vehicle without a license on October 26, 2015, December 17, 2015, January 15, 2016, and February 18, 2016. The four charges were tried in a series of separate bench trials on October 12, 2016.

[¶ 3] At the first trial, Williams County Deputy Sheriff Daniel Barstad testified he stopped Brown on October 26, 2015, for speeding. Deputy Barstad testified Brown did not have a driver's license, he identified himself with his North Dakota identification card as Mark Terrence Brown, and he told Deputy Barstad "his license was suspended out of Washington." At that trial, the State also introduced into evidence a June 6, 2016, certified copy of a driver's record from the District of Columbia Department of Motor Vehicles indicating a Mark Terrence Brown with the same date of birth as the defendant had a suspended driver's license. Brown testified that he had been issued a driver's license from the District of Columbia and that he had never received notice from the District of the right to a hearing to contest any suspension, or notice that his license had been suspended. According to Brown, it was "not entirely true" that he told Deputy Barstad his license was suspended; rather, he claimed he told Deputy Barstad there were "some issues that were in error with the District of Columbia." Brown also testified he had been denied a North Dakota driver's license because of a clerical error in the District of Columbia and he had been told by North Dakota law enforcement officers that his license was suspended. After both parties rested, the district court found Brown guilty of driving while under suspension on October 26, 2015.

[¶ 4] At the second trial, North Dakota Highway Patrolman Daniel Hanson testified he stopped Brown on December 17, 2015, for swerving and crossing the center line. Trooper Hanson testified Brown did not have a driver's license but he provided a North Dakota identification card and a Washington, D.C., identification card. According to Hanson, a check of Brown's driving status indicated his license was suspended in Washington, D.C., and the State introduced into evidence the certified copy of the driver record for a Mark Terrence Brown from the District of Columbia. The State then called Deputy Barstad to testify in the second trial, and the court sustained Brown's relevancy objection to a question about statements made by Brown during the October 26, 2015, traffic stop. The State thereafter rested its case, and the parties stipulated to consideration of Brown's testimony from the first trial at the second trial. Brown did not offer any further evidence and moved for a judgment of acquittal. After argument by both parties about the relevance of Brown's knowledge of his license suspension, the court reserved the right to revisit its decision in the first trial and requested post-trial briefs on the effect of a driver's knowledge of a license suspension. The court thereafter allowed the State to recall Deputy Barstad in the second trial to testify that during the October 26, 2015, traffic stop, Brown stated his license was suspended in Washington, D.C. Brown then testified he did not tell Deputy Barstad his license was suspended in Washington, D.C. He also testified he never received notice that his license was suspended in Washington, D.C. He further testified that he had entered an uncounseled guilty plea to driving under suspension in Williston Municipal Court in October 2014 and that before his arrest on October 26, 2015, he had been told by North Dakota law enforcement officers that his license was suspended.

[¶ 5] The parties thereafter stipulated the district court could consider the previously introduced exhibits and the testimony by Deputy Barstad and by Brown in all four trials. At the separate trial on the January 15, 2016, charge of driving under suspension, the court heard further testimony from Trooper Hanson that he had observed Brown driving without a license on that date and had arrested him for driving under suspension. The court then conducted a separate trial on the February 18, 2016, charge of driving under suspension, and Trooper Hanson testified that he had seen Brown driving without a license on that date and had arrested him for driving under suspension. The court thereafter took all four cases under advisement.

[¶ 6] After receipt of post-trial briefs, the district court separately considered each case and found Brown guilty of each charge after determining that on each occasion he had been driving with actual notice his license was suspended. After allowing the State to amend its complaint for the charge of driving under suspension on February 18, 2016, the court relied on the convictions for the first, second, and third offenses to enhance the fourth conviction for driving under suspension on February 18, 2016, from a class B misdemeanor to a class A misdemeanor.

II

[¶ 7] Brown argues there was insufficient evidence for the district court to find he had notice of his license suspension. He claims notice of an opportunity for a hearing on a license suspension is a required factual element of proof for a conviction for driving under suspension under State v. Knittel , 308 N.W.2d 379 (N.D. 1981), and he argues the State failed to introduce evidence to show a notice of opportunity for a hearing or a notice of suspension was sent to him. He claims he did not testify that he knew his license was suspended in Washington, D.C., and he contends State v. Moore , 341 N.W.2d 373 (N.D. 1983), is distinguishable from his case.

[¶ 8] In Knittel , we addressed a defendant's claimed failure to have received notice of an opportunity for hearing on a license suspension in the context of a trial court's dismissal of a criminal prosecution for driving under suspension. 308 N.W.2d at 381-84. After the State introduced into evidence a notice of opportunity for a hearing mailed to the defendant, an order of suspension mailed to the defendant, and a computer printout showing the defendant's license suspension, he testified he did not receive the notice of opportunity for hearing, or the order of suspension. Id. at 380-81. The trial court dismissed the prosecution, finding the defendant was deprived of due process because he had not received the notice of opportunity for hearing, or the notice of suspension. Id. at 381.

[¶ 9] We dismissed the State's appeal, concluding the trial court's finding the defendant did not receive notice of an opportunity for a hearing involved a factual element of the offense of driving under suspension, which prohibited reprosecution of the defendant under the double jeopardy clause of the federal constitution. Knittel , 308 N.W.2d at 384. We said, except in emergency situations, due process requires notice and an opportunity for a hearing before the State may suspend a driver's license. Id. at 382. We construed our statutes to require more than constructive notice of an opportunity for a hearing to meet the due process requirements of the federal constitution. Knittel , at 383. Although we declined to require actual notice of a suspension as a condition precedent to the suspension, we said that "notice of an opportunity for a hearing sent by regular mail is insufficient to guarantee due process when the presumption of receipt raised by Section 31-11-03(24), N.D.C.C., is rebutted, especially when the period of suspension may be extended one day for each day a driver fails to surrender his license and a criminal prosecution may be based upon such a suspension." Knittel , at 384.

[¶ 10] In Moore , 341 N.W.2d at 374, the defendant testified he had not received notices of opportunity for a hearing and orders for suspension and claimed the trial court erred in finding him guilty of driving while his license was revoked. We distinguished Knittel and affirmed the defendant's conviction for driving while his license was revoked. 341 N.W.2d at 375. We noted the defendant, in response to requests by authorities, had mailed his license to the driver's license division on two separate occasions, he admitted he had mailed his license to the driver's license division the second time because he was told it was revoked, and he did not have a license when he was charged with driving while his license was revoked. Id. We explained the defendant's actions and testimony at trial revealed he knew his license was revoked when he was arrested for driving while under revocation. Id. We concluded the defendant had actual knowledge his license was revoked and affirmed his conviction. Id.[¶ 11] Since Knittel and Moore , we have continued to recognize a defendant's claimed failure to have received notice of an opportunity for a hearing on a license suspension involves a decision on a factual element of a prosecution for driving under suspension. See State v. Egan , 1999 ND 59, ¶ 13, 591 N.W.2d 150 (stating defendant is entitled to present evidence showing nonreceipt of notice of opportunity for hearing and State is entitled to present evidence regarding the credibility of the defendant's nonreceipt claim); State v. Tininenko , ...