State v. Demery, Cr. N

• Decision Date: 03 March 1983
• Docket Number: Cr. N
• Citation: 331 N.W.2d 7
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Lillian M. DEMERY, Defendant and Appellant. o. 866.
• Court: North Dakota Supreme Court

Page 7

331 N.W.2d 7

STATE of North Dakota, Plaintiff and Appellee, v. Lillian M. DEMERY, Defendant and Appellant.

Cr. No. 866.

Supreme Court of North Dakota.

March 3, 1983.

Arne F. Boyum, Jr., State's Atty., Rolla, for plaintiff and appellee State of North Dakota.

Charles L. Chapman, of Chapman & Chapman, Bismarck, for defendant and appellant.

VANDE WALLE, Justice.

Lillian M. Demery was found guilty by a Rolette County district court jury of committing the crime of robbery in violation of Section 12.1-22-01 of the North Dakota Century Code. She appealed to this court from the judgment of conviction entered by the district court, Rolette County, and presents the following issues for our consideration:

1. Was there sufficient evidence to support the jury's verdict?

2. Did the trial court err by not instructing the jury that Class C felony robbery is a lesser included offense of the major offense charged in the criminal information?

3. Did the trial court commit reversible error by instructing the jury that it could consider prior inconsistent statements of a witness as evidence of the truth of the facts of the case?

4. Did the trial court err in permitting the prosecution to use prior inconsistent statements of a witness in its questioning of the witness on cross-examination?

5. Did the trial court err in allowing the Rolette County sheriff to testify concerning statements made by Demery to him in an interview shortly after her arrest?

As will appear, we have decided these issues in the State's favor, and therefore Demery's conviction is affirmed.

I

Section 12.1-22-01(1), N.D.C.C., makes a person guilty of robbery if:

"... in the course of committing a theft, he inflicts or attempts to inflict bodily injury upon another, or threatens or menaces another with imminent bodily injury."

Except under various narrowly defined circumstances, robbery is a Class C felony. One of those circumstances which moves robbery out of the Class C felony category and into the Class B felony category is that the accused was aided in the robbery by an accomplice actually present. Sec. 12.1-22-01(2), N.D.C.C. This is the crime of which Demery was convicted.

A challenge to the sufficiency of the evidence to sustain a conviction requires us to make a comparatively limitative review of the evidence presented at trial. Although the jury is entitled to judge the credibility of witnesses and determine the relative weight to be given their testimony, we are not. Rather, we must look only to the evidence which favors the verdict and accept all the reasonable inferences therefrom to see if the trier of fact could reasonably conclude that the essential elements of the crime were established beyond a reasonable doubt. State v. Morris, 331 N.W.2d 48 (N.D.1983); State v. Manke, 328 N.W.2d 799 (N.D.1982); State v. Cox, 325 N.W.2d 181 (N.D.1982); State v. Olson, 290 N.W.2d 664 (N.D.1980).

The evidence which favors the jury's verdict shows that on November 10, 1981, at around noon, Demery and her daughter Lisa, who was then 15 years old, went to Henry Nelson's apartment and asked to borrow some money. Henry Nelson is a 77-year-old man who lives alone and has a heart condition. As a consequence of his poor health, Nelson had a tubular frame walker in his apartment which he used to support himself as he walked; he also had a wooden cane for the same purpose.

When asked to lend them money, Nelson, who knew Demery but did not know Lisa, responded that he needed what money he had to pay for his living expenses and could not afford to lend them anything. Demery then said she had something she would sell to him for $10. He said he would not give her $10, to which she replied, "Give me 5 then," and he answered, "No." ¹

At that point, Nelson felt Lisa's hand going in his pants pocket. He told her to keep out of his pockets and, becoming suspicious of their intentions, he picked up his cane and ordered them out of his apartment. Suddenly Lisa grabbed the walker, which was standing on the floor in front of Nelson, and tried to hit him with it. Before she could, however, Nelson kicked it out of her hands. Demery quickly moved next to Nelson on the couch and, as he tried to call out for help, she covered his mouth with her hand. A struggle ensued in which Nelson felt Demery and Lisa searching his clothes in an obvious effort to find his wallet. After the struggle had ended and both assailants had left, Nelson noticed that the pocket in which he carried his wallet was ripped and the wallet was lying empty on the floor. Nelson guessed that it had contained about $50. ²

A police officer arrived at Nelson's apartment a short time later in response to a phone call reporting the incident and found Nelson badly shaken. He had scratches and bruises on his chin, forehead, and right leg. When asked what had happened, Nelson answered that he had been attacked and robbed by two women whom he later identified as Demery and her daughter Lisa.

From these facts, we have no difficulty in concluding that (1) a rational trier of fact could find that Demery committed the crime of robbery with the aid of an accomplice actually present, and therefore (2) there was sufficient evidence to support the jury's verdict.

II

Demery next argues that the trial court erred by its failure to instruct the jury that Class C felony robbery is a lesser included offense of Class B felony robbery. Demery's attorney did not specifically object to the instruction given, nor did he request an instruction of the sort her present attorney now argues should have been given. ³

Our interpretation of the requirements of Rule 30(c) of the North Dakota Rules of Criminal Procedure has made it clear that an attorney's failure to object at trial to instructions which he had an opportunity to examine before they were given to the jury operates as a waiver of his right on an appeal to object to the instructions. See State v. Gates, 325 N.W.2d 166 (N.D.1982); State v. Allery, 322 N.W.2d 228 (N.D.1982); State v. Granrud, 301 N.W.2d 398 (N.D.1981). The issue, therefore, has not been properly preserved for our consideration, and consequently our inquiry is limited to the question whether or not the alleged error constitutes an obvious error which affects substantial rights of the defendant. ⁴ Rule 52(b), N.D.R.Crim.P.; Allery, supra, 322 N.W.2d at 232; Granrud, supra, 301 N.W.2d at 401-402, cert. denied, 454 U.S. 825, 102 S.Ct. 113, 70 L.Ed.2d 98 (1981); State v. Reich, 298 N.W.2d 468 (N.D.1980). We conclude it does not. See State v. Motsko, 261 N.W.2d 860 (N.D.1977); United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).

III

Demery further maintains that the trial court incorrectly instructed the jury as to the limited purpose for which a witness's prior inconsistent statements could be considered. ⁵

Part of Demery's theory of the case at trial, and on appeal, is that Lisa was the principal perpetrator of any crime which may have been committed in Nelson's apartment on November 10, 1981, and that, at worst, Demery was an accomplice to the crime.

Demery testified (1) that it was Lisa's idea to borrow money from Nelson, (2) that Lisa was already walking to Nelson's apartment when she returned to the pickup in which Demery was sitting to ask Demery to go with her, (3) that she initially resisted Lisa's request but then reluctantly agreed to go with her to Nelson's apartment, and (4) that she had left the apartment while Lisa and Nelson were still fighting and before any money was taken.

Lisa's testimony basically corroborated her mother's version of the events leading up to and including the struggle with Nelson. On cross-examination of Lisa, however, it was brought out that she had made statements to a police officer who was investigating the incident to the effect that it was her mother's idea to go to Nelson's apartment and also that it was her mother who got out of the pickup first and then told Lisa to go with her to Nelson's apartment. When confronted with these statements, Lisa admitted she had made them but claimed they were not true when made.

It is the established rule in this State that a prior inconsistent statement may be used to impeach a witness, but may not be used substantively in a criminal case as direct evidence of the facts contained in the statement unless the prior statement was made under oath. See Rules 613 and 801(d)(1)(i), N.D.R.Ev.; Allery, supra, 322 N.W.2d at 232; State v. Skjonsby, 319 N.W.2d 764 (N.D.1982); State v. Hilling, 219 N.W.2d 164 (N.D.1974). But see State v. Igoe, 206 N.W.2d 291 (N.D.1973), decided prior to the adoption of the North Dakota Rules of Evidence.

The court's instruction in this case concerning the permissible limits of the jury's use of a witness's prior inconsistent statements was wrong because it allowed the jury to consider such statements not only for the purpose of judging the credibility of the witness who created the inconsistency, but also as evidence of the truth of the prior inconsistent statements.

Although it was error for the trial judge to instruct the jury as he did in this regard, we note from an examination of the trial transcript that no objection was made to the instruction as given. Our task, once again, therefore is to determine whether or not the court's error affected substantial rights of the defendant requiring a new trial or other relief. ⁶ We conclude that it did not.

In deciding whether or not error is harmful, we will examine the entire record and evaluate the error in the context of the circumstances in which it was made to see if it had a significant impact upon the jury's verdict. See Allery, supra, 322 N.W.2d at 232; United States v. Jackson, 569 F.2d 1003 (7th Cir.1978), cert. denied, 437 U.S. 907, 98 S.Ct. 3096, 57 L.Ed.2d 1137 (1978); Isaac v. United States, 431 F.2d 11 (9th Cir.1970). Of considerable consequence in our...