State v. Delaney, 990036.

• Decision Date: 20 October 1999
• Docket Number: No. 990036.,990036.
• Citation: 601 N.W.2d 573,1999 ND 189
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gary Franklin DELANEY, Defendant and Appellant.
• Court: North Dakota Supreme Court

601 N.W.2d 573

1999 ND 189

STATE of North Dakota, Plaintiff and Appellee, v. Gary Franklin DELANEY, Defendant and Appellant.

No. 990036.

Supreme Court of North Dakota.

October 20, 1999.

Wade Lykken Webb, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Steven D. Mottinger, Fargo, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Gary Franklin Delaney appealed from judgments of conviction upon a jury verdict finding him guilty of criminal trespass and terrorizing. We hold there was sufficient evidence to sustain the convictions and the trial court did not err in denying Delaney's motions for judgment of acquittal. We affirm.

[¶ 2] Delaney was charged with class C felony criminal trespass for entering or remaining in the residence of Russell Norton at 2 a.m. on July 2, 1998, knowing that he was not licensed or privileged to do so. Delaney was also charged with class C felony terrorizing for threatening the life and safety of Norton and his eleven year old daughter with a knife, causing them to flee their home that morning. The jury convicted Delaney on both counts, and he was sentenced to five year terms of imprisonment on each count with three years suspended on the criminal trespass sentence.

[¶ 3] On appeal Delaney contends the trial court erred in denying his motions for judgment of acquittal. At the close of the prosecution's case, Delaney moved for judgment of acquittal under N.D.R.Crim.P. 29. The court denied the motion, stating "there does appear to be substantial evidence in this case thus far on each and every element...." Delaney proceeded to present a defense, and at the close of his offering of evidence again moved for judgment of acquittal on both charges. The court denied the motion, stating "[t]he Court does find that there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt and, therefore, does deny the motion for judgment of acquittal."

[¶ 4] Delaney casts the issue on appeal as error by the trial court in denying the motion for acquittal. But, to grant a judgment of acquittal, a trial court must find the evidence is insufficient to sustain a conviction of the offenses charged. N.D.R.Crim.P. 29(a); State v. Jones, 557 N.W.2d 375, 377 (N.D.1996). In this respect the standard on review is the same as when the challenge is to the sufficiency of the evidence to sustain the verdict. Id. In State v. Gagnon, 1999 ND 13, ¶ 23, 589 N.W.2d 560, the defendant moved for a judgment of acquittal. The trial court denied the motion, and on appeal from the conviction this court summarized our standard for reviewing a challenge to the sufficiency of the evidence:

To successfully challenge the sufficiency of the evidence on appeal, a defendant must show there is no reasonable inference of guilt when viewing the evidence in the light most favorable to the verdict. By presenting evidence after the denial of the motion, the defendant permits this Court to review on appeal the entire record to determine whether sufficient evidence exists to sustain the verdict. In deciding whether there is sufficient evidence, we do not resolve conflicts in the evidence nor do we weigh the credibility of the witnesses. We determine only whether there is competent evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.

(Citations omitted.)

[¶ 5] Delaney was charged with class C criminal trespass under N.D.C.C. § 12.1-22-03(1), which provides:

A person is guilty of a class C felony if, knowing that he is not licensed or privileged to do so, he enters or remains in a dwelling or in highly secured premises.

Delaney was also charged with class C felony terrorizing under N.D.C.C. § 12.1-17-04(1), which provides in part:

A person is guilty of a class C felony if, with intent to place another human being in fear for that human being's or another's safety ... the person:

1. Threatens to commit any crime of violence or act dangerous to human life....

[¶ 6] At trial, Russell Norton and his daughter testified against Delaney. Michelle Grossnickel, the driver of a car flagged down by Norton and his daughter as they fled from Delaney, also testified, as did the law enforcement officers called to the scene that evening. Viewing the evidence in the light most favorable to the verdict, there is record evidence to support the jury finding the following facts. Delaney and Norton were friends. In the early morning of July 2, 1998, Delaney was extremely upset, because another friend had been badly beaten and Delaney suspected Norton may have been involved. After drinking alcoholic beverages, Delaney entered the closed but unlocked door of Norton's residence, without knocking or announcing his presence. Norton was in the living room and his eleven year old daughter was sleeping nearby on the floor. [¶ 7] When Delaney entered the home he pulled a knife from his pocket. Several...