State v. Dahl

• Decision Date: 15 December 2009
• Docket Number: No. 20090019.,No. 20090018.,20090018.,20090019.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Darin Wayne DAHL, Defendant and Appellant.
• Court: North Dakota Supreme Court

776 N.W.2d 37

2009 ND 204

STATE of North Dakota, Plaintiff and Appellee v. Darin Wayne DAHL, Defendant and Appellant.

No. 20090018.

No. 20090019.

Supreme Court of North Dakota.

December 15, 2009.

Charles A. Stock, Assistant State's Attorney, Crookston, MN, for plaintiff and appellee.

Joel L. Larson, Grand Forks, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Darin Dahl appealed from criminal judgments filed in December 2008, sentencing him for two counts of harassment and one count of reckless endangerment. Dahl argues the evidence presented was insufficient to support the guilty verdicts and he did not voluntarily, knowingly, and intelligently waive his right to counsel for his second trial. Competent evidence was presented allowing the juries to draw inferences reasonably tending to prove Dahl's guilt and fairly warranting conviction; Dahl was competent to waive his right to counsel and represent himself; and Dahl voluntarily, knowingly, and intelligently waived his right to counsel. We affirm Dahl's convictions, but we remand for correction of the criminal judgments.

[¶ 2] This appeal encompasses two trials, Dahl's first trial for two counts of harassment, and his second trial for reckless endangerment. The facts and issues regarding each trial will be discussed separately.

I.

Harassment Trial

A.

[¶ 3] In November 2007, Roger Kerber arrived at his home in rural Hannaford to find two messages laced with vulgarities on his answering machine from Dahl. In the first message, Dahl asked Kerber to repay him for a transmission that Kerber had damaged. Dahl stated, "I'll probably be over there to . . . put your horse down or something because I'm out of transportation on account of you." In the second message, Dahl told Kerber where Kerber could find him to make payment. Dahl also referred to a previous incident in which Kerber's son had fired a gun at Dahl. Dahl stated he was going to "return fire."

[¶ 4] The State charged Dahl with two counts of harassment. At trial on the harassment charges, Dahl, represented by counsel, admitted he had left the messages. He testified he did not intend to harass or threaten Kerber. His intention was to get restitution for his transmission. Dahl testified he left the second message to notify Kerber of where to make payment.

[¶ 5] Dahl made a motion to dismiss under N.D.R.Crim.P. 29 after the close of the State's case, which the district court denied. The jury convicted Dahl on both counts of harassment. In December 2008, the district court entered criminal judgments sentencing Dahl to concurrent sentences of 180 days, with credit for 180 days already served. The criminal judgments incorrectly state Dahl pled guilty.

B.

[¶ 6] Dahl argues the evidence supporting his conviction was insufficient because the State did not prove he acted with the intent to frighten or harass another. This Court's standard of review when a defendant challenges the sufficiency of the evidence for his conviction is well established:

Appellate review of the sufficiency of the evidence for a jury verdict is very limited. 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. Demarais, 2009 ND 143, ¶ 7, 770 N.W.2d 246 (internal citations and quotes omitted).

[¶ 7] Section 12.1-17-07(1)(a), N.D.C.C., defines harassment: "A person is guilty of an offense if, with intent to frighten or harass another, the person [c]ommunicates in writing or by telephone a threat to inflict injury on any person, to any person's reputation, or to any property." This Court has suggested that, when considering the sufficiency of the evidence in a harassment case, we consider the "reasonable recipient," rather than the "reasonable speaker." State v. Curtis, 2008 ND 93, ¶ 5, 748 N.W.2d 709 (citing DeMers v. DeMers, 2006 ND 142, ¶ 13, 717 N.W.2d 545). We consider whether a communication is a threat from the viewpoint of a "reasonable person standing in the recipient's shoes." Id. (citing Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 622 (8th Cir.2002)).

[¶ 8] It is clear that the messages Dahl left included threats. In his first message, Dahl asserted he would "put [Kerber's] horse down," unless Kerber paid him. In his second message, Dahl said he may "return fire" on Kerber's son, in retaliation for some prior incident. A reasonable person standing in Kerber's shoes would take these messages to be threats to damage his property and shoot his son. Viewing the evidence in the light most favorable to the verdicts, the State produced sufficient evidence to raise a reasonable inference that Dahl had communicated threats by telephone to inflict injury on Kerber's property and his son.

[¶ 9] Dahl argues the State did not prove he acted with the intent to frighten or harass another. Dahl testified he did not intend to threaten or harass Kerber. Rather, he intended to get restitution for his transmission and let Kerber know where he could be found to make payment. Dahl argues the State did not present any testimony to contradict Dahl's testimony regarding his intent. However, the messages themselves are evidence of intent. The jury was instructed intent could be proved by circumstantial evidence and it could consider any statement made by Dahl. In addition, the jury was not required to believe Dahl's testimony. Demarais, 2009 ND 143, ¶ 7, 770 N.W.2d 246 (citing State v. Wilson, 2004 ND 51, ¶ 9, 676 N.W.2d 98). Viewing the evidence in the light most favorable to the verdicts, the evidence presented created reasonable inferences that Dahl acted with the intent to frighten or harass another. Sufficient evidence was presented to support the jury's convictions of Dahl on both counts of harassment.

II.

Reckless Endangerment Trial

A.

[¶ 10] In April 2008, Merlin Lende drove Dahl to Kerber's home. Kerber and an employee were inside the house. Kerber's employee testified that she opened the door after seeing Lende's vehicle approach. Dahl exited the passenger side of the vehicle and asked if Kerber was home and if he had a check ready for Dahl. After the employee told Dahl that Kerber was home, but she did not know about the check, Dahl took out a gun and aimed it at the door of Kerber's home. Kerber's employee shut and locked the door. When she looked out the window, she saw Dahl fire three shots at a shop near the house. After the employee told Kerber what was happening, she saw the vehicle begin to leave. Dahl leaned out of the vehicle's window and fired four shots, shattering a window on the house's sun porch. In total, Dahl fired seven shots on Kerber's property.

[¶ 11] Lende offered a different version of the incident. Lende testified that upon arriving at Kerber's home, he got out of the vehicle and went up to the door. Lende spoke with Kerber's employee and she said that Kerber was home. Lende then went back to the vehicle. After Kerber had not come out of the house for approximately five minutes, Dahl took out a gun and fired three shots at a guide wire. Lende told Dahl to get back in the vehicle, and they drove off. According to Lende, Dahl did not fire out of the vehicle's window as they were leaving.

[¶ 12] While Dahl was firing at the sun porch, Kerber was on the telephone with a sheriff's deputy. After Dahl left, Kerber went outside and inspected the area. He found shell casings on the road in front of the house and observed holes in the siding below the broken window on the sun porch. Later that day, a Griggs County Sheriff's deputy found shell casings in front of Kerber's house. The day after the shooting, the Griggs County Sheriff and two Bureau of Criminal Investigation ("BCI") agents removed two bullets from Kerber's sun porch, one from the siding and one from the window trim.

[¶ 13] Dahl was apprehended in Luverne the day after the shooting. BCI agents searched the home where Dahl was arrested and seized a 7.62x39 caliber SKS rifle. The shell casings found at Kerber's residence were 7.62x39 caliber.

[¶ 14] A BCI agent and an agent from the Bureau of Alcohol, Tobacco and Firearms interviewed Dahl after he was arrested. During the interview, Dahl admitted he "shot a couple of rounds off around the farm" using an SKS. When asked if he knew Kerber and his employee were in the house when he fired, Dahl responded, "Yeah, but I wasn't aiming. I was just swinging my barrel and shooting at the-down at the ground more or less. I probably did hit a little bit on the house, but I was probably being a little reckless or whatever." The State subsequently charged Dahl with reckless endangerment.

[¶ 15] In May 2008, prior to Dahl's first trial on the harassment charges, the district court ordered the North Dakota State Hospital to evaluate Dahl to determine whether he could be held criminally responsible for his actions and whether he was competent to stand trial. The evaluator concluded Dahl had schizophrenia and a personality disorder, not otherwise specified, but he was competent to stand trial and could be held criminally responsible for his actions, if found guilty.

[¶ 16] Before Dahl's second trial, on the reckless endangerment charge, Dahl wrote to the district court asking to dismiss his court-appointed attorney. During the October 2008 pretrial hearing, the district court informed Dahl that he had a right to either represent himself or be represented by an...