State v. Cain

• Decision Date: 15 November 2011
• Docket Number: No. 20110010.,20110010.
• Citation: 2011 ND 213,806 N.W.2d 597
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Dickey Joseph CAIN, Defendant and Appellant.
• Court: North Dakota Supreme Court

2011 ND 213

806 N.W.2d 597

STATE of North Dakota, Plaintiff and Appellee

v.Dickey Joseph CAIN, Defendant and Appellant.

No. 20110010.

Supreme Court of North Dakota.

Nov. 15, 2011.

Pamela Ann Nesvig (argued), Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Kent M. Morrow (argued), Bismarck, ND, for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Dickey Joseph Cain appeals the district court's criminal judgment and finding of habitual offender status entered after a jury convicted him of conspiracy to commit aggravated assault. Cain argues the district court erred by (1) denying his motion for judgment of acquittal because the State failed to introduce sufficient evidence of the agreement required to establish a conspiracy, (2) finding he was a habitual offender based on certified copies of prior convictions at the same proceeding as the sentencing hearing, (3) denying his pretrial motion to dismiss due to violation of his right to a speedy trial and (4) denying his motion in limine to exclude photographs of the victim's injuries. We affirm.

I

[¶ 2] During the early morning hours of June 16, 2010, Burleigh County 911 received three calls reporting a fight in Bismarck. Officers dispatched to the scene found the victim lying on the sidewalk covered in blood with severe injuries to his head and face. The officers determined the victim and his brother had been in a fight with Cain and Darin Falcon.

[¶ 3] Cain, Falcon and the victim's brother had traveled to Bismarck in Cain's car on June 15, 2010. Sometime between the late evening of June 15 and the early morning of June 16, the three men went to the victim's apartment where the victim's wife and her sister were also present. Around 3:30 a.m., the victim, his brother, his sister-in-law, Falcon and Cain left the apartment in Cain's car. The men in the car began to argue, and the driver pulled over. Everyone got out of the car. The fight during which the victim was injured ensued. Cain and Falcon left the scene in Cain's car before officers arrived.

[¶ 4] On June 16, 2010, Cain and Falcon were arrested and charged with conspiracy to commit aggravated assault. Cain did not post bail and remained in custody until trial. Before trial, Cain filed a speedy trial demand. Cain later moved to dismiss under the Uniform Mandatory Disposition of Detainers Act (“UMDDA”), section 29–33–03, N.D.C.C., because more than 90 days had passed since he demanded a speedy trial. The district court denied the motion after concluding the UMDDA did not apply. Cain also filed a pretrial motion to exclude photographs of the victim's injuries. The district court denied the motion during a pretrial conference. At trial, the State introduced several photographs of the victim's injuries without objection.

[¶ 5] During the State's case, the victim and his brother testified about what happened after they left the apartment and how the fight occurred. The victim testified he and his brother began arguing with Cain and Falcon before the car stopped. He testified that shortly after they stopped, he fought with Falcon while his brother fought with Cain. According to the victim, Falcon knocked him down and he got back on his feet and continued to fight with Falcon. The victim testified that Cain then approached Falcon and the victim and hit the victim with a tire iron and that Cain and Falcon continued to beat him until he was unconscious.

[¶ 6] The victim's brother also testified about the argument with Cain and Falcon before the fight started. He testified that after everyone got out of the car, he and the victim tried to leave but that Falcon continued to confront them while Cain retrieved a chain and a tire iron from the trunk of the car. According to the victim's brother, Cain dropped the chain and the tire iron in the grass and began to fight with him while the victim fought with Falcon. The victim's brother testified that Cain then stopped fighting with him and ran towards the victim, retrieving the chain and tire iron on the way. The victim's brother further testified that he saw Cain throw the tire iron to Falcon, Falcon hit the victim with the tire iron, Cain hit the victim with the chain and Cain and Falcon beat the victim to unconsciousness.

[¶ 7] Cain moved for a judgment of acquittal after the State rested and renewed the motion after he presented his case. The district court denied both motions. The jury found Cain guilty of conspiracy to commit aggravated assault. Cain was sentenced at a separate hearing. At the hearing, the district court first determined whether Cain was a habitual offender. Before trial, the State had filed a request for habitual offender status and four certified copies of prior judgments against Cain. The district court found the certified judgments were sufficient to prove two previous felony convictions and sentenced Cain as a habitual offender.

II

[¶ 8] Cain argues the district court erred by denying his motion for a judgment of acquittal because the State did not establish a conspiratorial agreement existed between Cain and Falcon. Cain argues the State had to prove “that an agreement existed between Cain and Falcon to commit an aggravated assault upon [the victim] before Falcon commenced the assault upon [the victim].” The State responds the evidence of collaboration between Cain and Falcon was sufficient to establish an implicit agreement.

[¶ 9] Under N.D.R.Crim.P. 29(a), “[a]fter the prosecution closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” We review the denial of a motion for acquittal under the same standard as a challenge to the sufficiency of the evidence. “When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.” State v. Kinsella, 2011 ND 88, ¶ 7, 796 N.W.2d 678 (quoting State v. Wanner, 2010 ND 121, ¶ 9, 784 N.W.2d 143).

[¶ 10] The two elements of a criminal conspiracy are an agreement to commit an offense and an overt act to effect the offense. N.D.C.C. § 12.1–06–04(1). “The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.” Id. An agreement may be implied based on the parties' conduct. Interest of J.A.G., 552 N.W.2d 317, 320 (N.D.1996). However, “an agreement ‘is not supplied by mere knowledge of an illegal activity ... let alone by mere association with other conspirators or mere presence at the scene of the conspiratorial deeds.’ ” State v. Serr, 1998 ND 66, ¶ 14, 575 N.W.2d 896 (quoting United States v. Zafiro, 945 F.2d 881, 888 (7th Cir.1991), aff'd, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)). “[S]omething more” is required. Serr, at ¶ 15.

[¶ 11] Here, the jury heard testimony that prior to Cain and Falcon beating the victim to unconsciousness, Falcon prevented the victim from leaving while Cain retrieved weapons from the car. The jury also heard testimony that Cain provided Falcon with the weapon Falcon used to beat the victim and then joined in the beating. Based on either act, the jury could have reasonably inferred Cain and Falcon agreed to assault the victim.

[¶ 12] Cain argues he and Falcon could not have formed a conspiratorial agreement because Falcon started the assault before Cain joined the fight. We reject his argument for two reasons. First, trial testimony conflicted regarding whether Falcon and the victim were fighting before Cain and Falcon implicitly agreed to assault the victim. The victim, who admitted having difficulty remembering the incident due to his injuries, did testify to fighting with Falcon before Cain retrieved the weapons. However, the victim's brother testified that immediately after everyone got out of the car, Falcon confronted the brothers while Cain retrieved weapons. That testimony was sufficient to prove an implied agreement before the physical confrontation ensued. Second, Cain cites and this Court finds no authority supporting his assertion that an agreement to engage in conduct that constitutes an offense cannot be formed while the offense is ongoing. Therefore, we conclude the district court did not err by refusing to grant Cain's motion for judgment of acquittal.

III

[¶ 13] Cain argues the district court failed to follow the procedure required by section 12.1–32–09, N.D.C.C., when determining he was a habitual offender. The State argues the district court complied with the habitual offender statute when it sentenced Cain.

[¶ 14] Under N.D.C.C. § 12.1–32–09(1)(c),

“1. A court may sentence a convicted offender to an extended sentence as a dangerous special offender or a habitual offender in accordance with this section upon a finding of any one or more of the following:

....

c. The convicted offender is a habitual offender. The court may not make such a finding unless the offender is an adult and has previously been convicted in any state or states or by the United States of two felonies of class C or above committed at different times when the offender was an adult. For the purposes of this subdivision, a felony conviction in another state or under the laws of the United States is considered a felony of class C or above if it is punishable by a maximum term of imprisonment of five years or more.”

[¶ 15] The statute requires that a defendant receive notice and have a hearing before being sentenced as a habitual offender.

“3. Whenever an attorney charged with the prosecution of a defendant in a court of this state for an alleged felony committed when the defendant was over the age of eighteen years has reason to believe that the defendant is a dangerous special offender or a habitual offender, the attorney, at a...