State v. Cox, Cr. N
| Decision Date | 20 October 1982 |
| Docket Number | Cr. N |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Harry Merle COX, Jr., Defendant and Appellant. o. 837. |
| Court | North Dakota Supreme Court |
Rolf P. Sletten, Asst. State's Atty., Bismarck, for plaintiff and appellee State of N.D Ralph A. Vinje and Ken R. Sorenson, of Vinje Law Firm, Bismarck, for defendant and appellant; argued by Ken R. Sorenson.
In a trial to the court, Harry Merle Cox, Jr., was convicted of theft of property in violation of Section 12.1-23-02, N.D.C.C. Cox appeals from the conviction and alleges two points of error. We affirm the judgment of the district court.
Sometime in October 1981, a transaction took place between Cox and Joe Wetch in which a 1974 Ranchero and the title thereto was delivered by Cox to Wetch, and a 1970 Duster and title thereto was transferred from Wetch to Cox. A short time later, Wetch sold the Ranchero to Jim Mitchussen. On December 1, 1981, Mitchussen reported to the Bismarck police that his car--the Ranchero--had been stolen from his residence sometime during the previous night. In time, the car was recovered from Cox, who admitted taking it from Mitchussen's residence. Cox was then charged with theft of property.
At the trial, a dispute arose as to the nature of the October transaction between Cox and Wetch. Wetch claimed that he traded the Duster for the Ranchero, whereas Cox claimed that Wetch only lent him the Duster while the Ranchero was being repaired. 1
Cox sets forth two main issues on appeal:
(1) Did the trial court err in limiting defense counsel's cross-examination of Wetch; and
(2) Was there sufficient evidence for the trial court to find that Cox committed the crime of theft of property?
In the course of cross-examination, Wetch testified that he was not a licensed automobile dealer, but rather a used-auto-parts dealer. This led to further questioning by defense counsel on the subject of Wetch's compliance with the statutory requirements for transferring title to a motor vehicle. The State objected to the line of questioning, at which point the trial judge asked defense counsel if Wetch had violated any law, but at the same time he informed defense counsel that he was not interested in going into the details of the matter. Defense counsel answered, in essence, that possibly Wetch was guilty of violating the law. The trial judge then sustained the State's objection on the ground of irrelevancy.
The scope of cross-examination in a criminal case is within the sound discretion of the trial court, and a ruling by the trial court limiting the scope of cross-examination will not be disturbed on appeal absent an abuse of discretion. State v. Rindy, 299 N.W.2d 783 (N.D.1980); N.D.R.Ev. 611(b). A trial court's limiting of cross-examination to matters which are relevant to the issues being tried is a clearly valid exercise of its discretionary power. N.D.R.Ev. 402, 401 Explanatory Note.
Whether or not Wetch violated the law certainly is not relevant to the issue of whether or not Cox committed the crime of theft of property; however, it may be relevant in determining Wetch's truthfulness and credibility.
Keeping in mind that the trial judge was the fact-finder in the present case, and that he therefore was the one who would determine the credibility of witnesses, we note from the record of the trial that defense counsel was not completely foreclosed from questioning Wetch regarding his legal authority to sell cars and regarding his compliance with the statutory requirements for transferring titles. The record shows that the court permitted defense counsel (1) to show that Wetch was not a licensed automobile dealer and (2) to ask Wetch whether or not he intended to transfer title for the Ranchero to Mitchussen within 15 days of the sale as is required by Section 39-05-17.1, N.D.C.C.
The trial court, as the fact-finder in this case and as the ultimate judge of the credibility of witnesses, clearly indicated to defense counsel that he did not need to know if Wetch had complied with the requirements of the law for the sale of a car or for the transfer of title in order to determine whether or not Cox had committed the crime of theft of property. In deciding the issue of guilt, the trial court specially found that the October transaction between Wetch and Cox was a trade of automobiles rather than a loan of a vehicle. This finding was not based on a simple belief that Wetch was telling the truth about the transaction and Cox was not; it was based, as the trial judge plainly stated,...
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