State v. Clark

• Decision Date: 16 August 2012
• Docket Number: No. 20110359.,20110359.
• Citation: 818 N.W.2d 739,2012 ND 135
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Branden Thurman CLARK, Defendant and Appellant.
• Court: North Dakota Supreme Court

818 N.W.2d 739

2012 ND 135

STATE of North Dakota, Plaintiff and Appellee,

v.Branden Thurman CLARK, Defendant and Appellant.

No. 20110359.

Supreme Court of North Dakota.

July 12, 2012.

Rehearing denied August 16, 2012.

Faye A. Jasmer, Assistant State's Attorney, Grand Forks, N.D., for plaintiff and appellee.

Blake D. Hankey, Grand Forks, N.D., for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Branden Clark appeals from a criminal judgment entered after a jury found him guilty of theft of property. Clark argues the district court erred in refusing to give his requested jury instruction, insufficient evidence existed to support his conviction, his sentence is erroneous and excessive, and the court erred in admitting evidence the State failed to disclose before trial. We affirm.

I

[¶ 2] On July 10, 2007, Clark purchased various tools from Acme Electric Tool Crib of the North in Grand Forks. When a customer purchases an item from Acme, the sales associate asks the customer his or her name, the associate looks the customer's name up in the store's point-of-sale computer system, and, if the customer's name is in the system, an invoice is generated using the information in the system. Each invoice includes a signature box directly above the customer name and address. Evidence established Clark gave the sales associate, Ben Litzinger, the name of “Clark Construction” when he purchased the tools, and Litzinger entered the name in the computer system, finding an account for Clark Construction with an address in Oriska, North Dakota. Clark paid for the item with a check. The check had Clark's name on it and an address in Gilby, North Dakota. Litzinger printed out an invoice using the information in the system for Clark Construction in Oriska and Clark signed the invoice as “Clark Const.”

[¶ 3] After the first sale was complete, Clark told Litzinger he was interested in purchasing a generator. Litzinger entered the second purchase in the computer system using the name “Clark Construction.” Clark did not pay for the generator, and the sale was charged to the Clark Construction account. Clark did not take the generator with him, but returned to Acme and picked up the item on July 18, 2007.

[¶ 4] In August 2007, Acme sent a bill for the generator to the address for Clark Construction in Oriska. A representative from Clark Construction contacted Acme about the bill. The representative informed Acme the purchase was not authorized by anyone who worked for the company and no one named “Branden Clark” worked for the company. Acme investigated the sale and contacted the Grand Forks Police Department to report the incident. The police attempted to contact Clark at the residence listed on the check Clark used to pay for the first items purchased from Acme, but their attempts were unsuccessful.

[¶ 5] Clark was subsequently charged with theft. In 2009, Clark was convicted of theft of property after entering a guilty plea and he was sentenced to four years incarceration. This Court affirmed his conviction in State v. Clark, 2010 ND 106, 783 N.W.2d 274. Clark filed a federal habeas corpus petition. The federal court granted Clark's petition and vacated his conviction. Clark v. Bertsch, No. 3:10–cv–110, 2011 U.S. Dist. LEXIS 102718 (D.N.D. Sept. 12, 2011).

[¶ 6] The State retried Clark and a jury trial was held. Clark requested a jury instruction stating a defendant's honest belief that he had a claim to the property is a defense to theft offenses. The court denied the proposed instruction, ruling no evidence supported the instruction. The jury found Clark guilty. The State requested a habitual offender sentence enhancement, and Clark was sentenced to eight years incarceration.

II

[¶ 7] Clark argues the court erred in refusing to give his proposed honest-belief-defense jury instruction because sufficient evidence existed to support the instruction.

[¶ 8] Jury instructions must fairly and adequately advise the jury of the law, and the court may refuse to give a requested instruction if it is irrelevant or does not apply. State v. Starke, 2011 ND 147, ¶ 12, 800 N.W.2d 705. On appeal, jury instructions are reviewed as a whole to determine whether they fairly and adequately advised the jury of the applicable law. State v. Lehman, 2010 ND 134, ¶ 12, 785 N.W.2d 204.

“A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense. We view the evidence in the light most favorable to the defendant to determine whether there is sufficient evidence to support a jury instruction. A trial court errs if it refuses to instruct the jury on an issue that has been adequately raised. A court, however, may refuse to give an instruction that is irrelevant or inapplicable.”

Id. (quoting State v. Ness, 2009 ND 182, ¶ 13, 774 N.W.2d 254).

[¶ 9] Clark's proposed jury instruction stated, “There can be no conviction of Theft of Property, if the Defendant honestly believed he had a claim to the property involved, no matter how groundless you may find that belief.” Section 12.1–23–09(1)(a), N.D.C.C., provides defenses to prosecutions for theft and states it is a defense if “[t]he actor honestly believed that he had a claim to the property or services involved which he was entitled to assert in the manner which forms the basis for the charge against him....” The court refused to give Clark's proposed instruction, stating, “Without Mr. Clark taking the stand and elaborating on what he felt was transpiring, I can't give that instruction. There is no evidence of that.”

[¶ 10] After reviewing the entire record and the evidence in a light most favorable to Clark, we conclude no evidence existed to support the requested instruction. Clark was not required to testify about whether he honestly believed he was entitled to the property, but some evidence must be presented to support the instruction. See Ness, 2009 ND 182, ¶ 18, 774 N.W.2d 254. A defendant's state of mind can be inferred from circumstantial evidence. See State v. Fraser, 2000 ND 53, ¶ 5, 608 N.W.2d 244. Clark contends testimony from his half-brother, Bruce Wills, and Grand Forks County Sheriff's Deputy Don Purpur supported the instruction. Clark contends Wills' testimony shows Clark attempted to make arrangements with Acme to pay for the generator. However, Wills testified Clark called Acme about the generator in 2007, but he did not hear the conversation. Wills also testified Clark contacted him from the Jamestown Correctional Center in 2008 or 2009 after Clark had been charged with the offense and asked Wills to talk to someone at Acme about paying for the generator. Wills' testimony does not support Clark's requested instruction. Clark also claims Purpur's testimony about statements Clark made about purchasing the generator from Acme supported the instruction, but Purpur's testimony was not presented to the jury. We conclude no evidence supports the proposed jury instruction and the court did not err in refusing to give Clark's requested instruction.

[¶ 11] Clark also claims the court erred in instructing the jury on the elements of theft of property by mistake. “[A] party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection.” N.D.R.Crim.P. 30(c)(1); see also State v. Jacob, 2006 ND 246, ¶ 14, 724 N.W.2d 118.

“When the defendant fails to properly object to a proposed instruction, or fails to specifically request an instruction or object to omission of an instruction, the issue is not adequately preserved for appellate review and our inquiry is limited under N.D.R.Crim.P. 52(b) to whether the jury instructions constitute obvious error affecting substantial rights.

“... In determining whether there has been obvious error, we examine the entirerecord and the probable effect of the alleged error in light of all the evidence, and the burden is upon the defendant to show the alleged error was prejudicial. An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.”

Jacob, at ¶ 14 (quoting State v. Weaver, 2002 ND 4, ¶¶ 16, 17, 638 N.W.2d 30).

[¶ 12] Clark did not object to the court's decision to give the State's requested instruction, and it does not constitute obvious error. Section 12.1–23–04(2), N.D.C.C., provides that a person is guilty of theft of property delivered by mistake if he:

“Retains or disposes of property of another when he knows it has been delivered under a mistake as to the identity of the recipient or as to the nature or amount of the property, and with intent to deprive the owner of it, he fails to take readily available and reasonable measures to restore the property to a person entitled to have it.”

The court gave the requested instruction because Clark alluded to a “mistake” Acme made in billing for the generator throughout the trial. Clark failed to establish the court's decision to give the instruction constitutes obvious error. We conclude the jury instructions fairly and adequately advised the jury of the law.

III

[¶ 13] Clark argues insufficient evidence existed to support his conviction. Clark claims no evidence establishes he knowingly took unauthorized control of the generator or that he intended to deprive Acme of the generator by not paying for it.

[¶ 14] Our standard of review for challenges to the sufficiency of the evidence is well-established:

“[T]his 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. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the...