State v. Dahl

• Decision Date: 08 December 2022
• Docket Number: 20210276
• Citation: 982 N.W.2d 580
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Steven Ronald DAHL, Defendant and Appellant
• Court: North Dakota Supreme Court

982 N.W.2d 580

STATE of North Dakota, Plaintiff and Appellee

v.Steven Ronald DAHL, Defendant and Appellant

No. 20210276

Supreme Court of North Dakota.

Filed December 8, 2022

Tonya Duffy, State's Attorney, Valley City, N.D., for plaintiff and appellee.

Scott O. Diamond, Fargo, N.D., for defendant and appellant.

Tufte, Justice.

[¶1] Steven Dahl appeals from a criminal judgment entered after a jury found him guilty of two counts of unlawful possession of drug paraphernalia, one of which was for felony possession of paraphernalia. We affirm the misdemeanor conviction, concluding sufficient evidence supported the conviction. We reverse the felony conviction, concluding there was insufficient evidence that the baggies were used, or possessed with intent to be used, for a felony purpose, and remand for entry of a judgment of acquittal on the felony count.

I

[¶2] Following the execution of a search warrant on a house in Valley City, Dahl was charged with four counts of unlawful possession of drug paraphernalia and one count of theft of property.

[¶3] At trial, Deputy Josh Magnuson testified he pulled over an individual with a suspended license in the driveway of the Valley City house. The individual told Deputy Magnuson that he was stopping at the house to trade Dahl his unicycle for a bicycle. Dahl was staying at the house and slept on a couch in the living room. After observing a bicycle on the property that matched the description of a bicycle reported stolen, law enforcement obtained a search warrant for the house. Upon searching the house, the officers found numerous bicycles and parts. On a coffee table next to the couch, the officers found a glass pipe and baggies, both containing methamphetamine residue. Officers also found a scale with marijuana residue and a bong on an end table.

[¶4] After the State rested its case in chief, Dahl moved for an acquittal on all five charges. The district court granted Dahl's motion for acquittal on the bicycle theft charge and denied his motion on the remaining charges. The jury found Dahl not guilty of unlawful possession of the two marijuana-related items (scale and bong) and guilty of unlawful possession of the two methamphetamine-related items (baggies and glass pipe). The judgment includes a felony conviction for possession of the baggies and a misdemeanor for possession of the glass pipe.

II

[¶5] Dahl argues there was insufficient evidence to sustain the jury's verdict. The standard for reviewing a defendant's challenge to the sufficiency of the evidence is well-established:

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. 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 credibility of witnesses.... A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.

State v. Nakvinda , 2011 ND 217, ¶ 12, 807 N.W.2d 204.

[¶6] Dahl asserts that the evidence does not show he possessed either the baggies or glass pipe. Possession "may be actual or constructive, exclusive or joint and may be shown entirely by circumstantial evidence." State v. Demarais , 2009 ND 143, ¶ 8, 770 N.W.2d 246. Constructive possession is proven when the evidence "establishes that the accused had the power and capability to exercise dominion and control" over the controlled substance or paraphernalia. Id. (quoting State v. Morris , 331 N.W.2d 48, 53 (N.D. 1983) ). "Some of the additional circumstances which may support an inference of constructive possession are an accused's presence in the place where a controlled substance is found, his proximity to the place where it is found, and the fact that the controlled substance is found in plain view." Demarais , at ¶ 8.

[¶7] Trial testimony showed that Dahl slept on the couch downstairs, next to the coffee table, while Dahl's roommate lived upstairs. The coffee table had bicycle parts on it, and Dahl's roommate testified the bicycles in the house belonged to Dahl. The officers found an Eagle 20's Red cigarette pack on the coffee table. Inside of this pack was the glass pipe, which contained methamphetamine residue. Dahl and his roommate both testified that Dahl smoked Eagle 20's Red cigarettes. Dahl's roommate testified he smoked the Eagle 20's Blue cigarettes. Two baggies containing methamphetamine residue were found on the coffee table, one on top of and one next to the Eagle 20's Red cigarette pack. Dahl testified he has smoked methamphetamine. Viewing the evidence in the light most favorable to the verdict, we conclude substantial evidence exists that could allow a jury to draw a reasonable inference that Dahl constructively possessed the glass pipe and baggies.

III

A

[¶8] Dahl contends there was insufficient evidence that he used or intended to use the baggies for a felony purpose. He asserts the evidence only shows the baggies had an actual or intended use of storing drugs, which is not an enumerated felony use under the statute. Dahl did not make this same insufficiency of the evidence argument when he moved for judgment of acquittal at trial. Rather, he moved for a judgment of acquittal specifically arguing there was insufficient evidence to establish he possessed the paraphernalia.

[¶9] This Court has concluded that if a motion for judgment of acquittal was made at trial on specified grounds and those grounds did not include the claim on appeal, the defendant does not preserve that issue for review. State v. Spillum , 2021 ND 25, ¶ 9, 954 N.W.2d 673 ; State v. Helm , 2020 ND 155, ¶ 7, 946 N.W.2d 503. In Spillum , the defendant moved for judgment of acquittal at trial, arguing there was insufficient evidence to establish he possessed certain prohibited materials. 2021 ND 25, ¶ 8, 954 N.W.2d 673. His motion was denied, and the jury found him guilty of possession of certain materials prohibited. Id. at ¶ 4. On appeal, he argued there was insufficient evidence of the location of the offense, which was an essential element of the offense. Id. at ¶ 5. Relying exclusively on Helm for legal support, we concluded that because the defendant moved for judgment of acquittal on specified grounds and those grounds did not include the claim on appeal, he "cannot now raise his argument challenging the sufficiency of the evidence with regard to the location of the offense." Id. at ¶¶ 7, 9.

[¶10] Helm in turn cites State v. Yineman for the requirement that "if the defendant has asserted specific grounds in the trial court as the basis for a motion for acquittal, he or she cannot assert other grounds on appeal." 2020 ND 155, ¶ 6, 946 N.W.2d 503. In Helm , we explained this requirement is consistent with how a majority of federal courts of appeal have interpreted Rule 29(a) of the Federal Rules of Criminal Procedure. Id.

[¶11] Although seemingly categorical, these two statements that the appellant "cannot now raise" an argument should not be read to foreclose exercise of our discretion to review forfeited errors under the obvious error standard. In Yineman , we expressly acknowledged obvious error review when the defendant fails to preserve a claim of insufficient evidence. 2002 ND 145, ¶ 21, 651 N.W.2d 648. Moreover, the majority of the federal cases we cited for support in Helm would not have foreclosed review of this issue on appeal. See United States v. Goode , 483 F.3d 676, 681 (10th Cir. 2007) ("Because of [defendant's] forfeiture we review the sufficiency of the evidence under the plain-error doctrine."); United States v. Daniels , 930 F.3d 393, 402 (5th Cir. 2019) (concluding that even when the defendant fails to preserve his sufficiency of the evidence argument, the court asks whether there has been a "manifest miscarriage of justice"); United States v. Chong Lam , 677 F.3d 190, 200 n.10 (4th Cir. 2012) (acknowledging the "manifest miscarriage of justice" exception); see also United States v. Spinner , 152 F.3d 950, 955 (D.C. Cir. 1998) ("[W]e review an appellant's sufficiency-of-the-evidence challenge for plain error when a motion for judgment of acquittal was based on specific (and different) grounds."). To the extent that Spillum , 2021 ND 25, 954 N.W.2d 673, Helm , 2020 ND 155, 946 N.W.2d 503, or any of our prior case law may be read as foreclosing any review of forfeited challenges to the sufficiency of the evidence for obvious error, we now explain them as declining to exercise our discretion to notice obvious error and reaffirm our general rule that obvious error applies to provide "a narrow exception to the rule that issues may not be raised for the first time on appeal." State v. Majetic , 2017 ND 205, ¶ 14, 901 N.W.2d 356 ; State v. Tresenriter , 2012 ND 240, ¶ 12, 823 N.W.2d 774 ; State v. Keller , 550 N.W.2d 411, 412 (N.D. 1996) ; State v. Haverluk , 432 N.W.2d 871, 874–75 (N.D. 1988) ("[T]he alleged error [elevating offense from class B to class A misdemeanor] is the type which comes within the meaning of Rule 52(b), N.D.R.Crim.P., and may be noticed on appeal even though it was not brought to the attention of the trial court.").

[¶12] While Dahl does not argue this issue is subject to obvious error review on appeal, the State has not argued Dahl failed to preserve this issue for appeal. Although we may decline review of forfeited errors when the appellant fails to argue the obvious error standard, nothing in our cases or rules forecloses our consideration of such errors. See State v. Edwards , 2020 ND 200, ¶ 6, 948 N.W.2d 832 (acknowledging "we may review an issue for obvious error even when it has not been argued"); State v. Rodriguez , 2020 ND 261, ¶ 13, 952 N.W.2d 233 ("When a...