State v. Deutscher

• Decision Date: 17 June 2009
• Docket Number: No. 20080207.,20080207.
• Citation: 2009 ND 98,766 N.W.2d 442
• Parties: STATE of North Dakota, Plaintiff and Appellant v. Jennifer DEUTSCHER, Defendant and Appellee
• Court: North Dakota Supreme Court

766 N.W.2d 442

2009 ND 98

STATE of North Dakota, Plaintiff and Appellant v.Jennifer DEUTSCHER, Defendant and Appellee

No. 20080207.

Supreme Court of North Dakota.

June 17, 2009.

Julie A. Lawyer(argued), Assistant State's Attorney, Bismarck, ND, for plaintiff and appellant.

Kent M. Morrow(argued), Bismarck, ND, for defendant and appellee.

KAPSNER, Justice.

[¶ 1] The State of North Dakota appeals a trial court order of dismissal, setting aside a jury verdict of guilty and entering a judgment of acquittal.We conclude the State was not authorized to appeal the order of dismissal; however, we consider the State's attempt at an appeal a petition for supervisory writ.We further hold the trial court did not have the authority, on its own motion, to set aside the guilty verdict.Therefore, we reverse and remand the case to the trial court to enter judgment based upon the jury's guilty verdict.

I

[¶ 2] On April 24, 2007, Deutscher went to a check cashing business, Money Lenders, in Bismarck, North Dakota.Money Lenders cashed the check, and on May 1, 2007, the check was returned to Money Lenders as a counterfeit check.After several unsuccessful attempts to collect restitution, Money Lenders filed a report with law enforcement.

[¶ 3] A criminal complaint and information were filed, and Deutscher was charged with theft of property, a class C felony.A jury trial was held on May 6, 2008.At the close of the State's evidence, Deutscher moved for an acquittal under N.D.R.Crim.P. 29, asserting the State did not present sufficient evidence to sustain a conviction.The trial court held it was satisfied there was sufficient evidence for the jury to consider the alleged offense; it denied Deutscher's motion.

[¶ 4] Deutscher presented evidence.At the close of all of the evidence, she did not move for a judgment of acquittal.The jury returned a verdict of guilty.After the jury returned its verdict, Deutscher did not move for a judgment of acquittal.Sentencing was scheduled for June 16, 2008, and the trial court ordered the preparation of a presentence investigation.The hearing was continued.At the August 8, 2008 sentencing hearing, the trial court stated:

Counsel, I have previously ordered a presentence investigation, and unbeknownst to you, counsel, I've also requested, and my court reporter has been gracious enough to prepare for me, a complete transcript of the testimony of each of the complaining witness and the defendant in this matter.My reason for requesting my court reporter to do so is my concern as to the sufficiency of the evidence in this matter.

Ms. Deutscher was charged by Criminal Information with the alleged offense of "knowingly obtaining the money or property of another by deception or by threat with intent to deprive the owner thereof; specifically, the defendant cashed a counterfeit cashier's check in the amount of $3,000 at Money Lenders."

I have reviewed the evidence, I listened to the evidence and now I have reviewed the written transcript, and I'm satisfied that there is insufficient evidence to sustain this verdict.Accordingly, on my own motion, under the provisions of Rule 29(c)(2) I'm herewith reversing the jury verdict and dismissing the charge against you, Ms. Deutscher.

In addition thereto, I've also reviewed the transcript for any basis for a motion for new trial under 33 of the North Dakota Rules of Criminal Procedure, and I find no basis for a new trial.

However, I'm not going to rule upon the same summarily, and I will grant both the State or — to the State, I should say, a 10-day window of opportunity for a motion for new trial, if they so desire.The State, of course, will have its right to appeal my order of dismissal.The same will be dismissed without prejudice.

[¶ 5] On August 18, 2008, the trial court entered an order of dismissal:

This Court having orally received all testimony and evidence at the time of trial and thereafter having the benefit of a transcript of the testimony of Wendy Grafsgaard and DefendantJennifer Deutscher, does herewith find and determine that under Rule 29(c)(2), that the evidence presented at the time of trial is insufficient to sustain a guilty verdict.

IT IS THEREFORE THE ORDER OF THE COURT that the pending charge of one count of Theft of Property with respect to the DefendantJennifer Deutscher is herewith set aside and a Judgment of Acquittal shall be entered.

. . . .

The evidence presented at the time of trial is undisputed that the Defendant received by mail a cashier's check payable to the Defendant, with the Defendant concerned whether or not said check was valid.The Defendant presented said check to the Money Lenders station to determine the validity of said instrument, and was thereafter informed that the cashier's check was valid.Said Money Lenders station expressly authorized and invited the Defendant to endorse said check for negotiation.The Defendant did so, receiving the cash equivalent thereof, and was later informed by Money Lenders station that the check had been returned as counterfeit.Further, that the cashier's check appeared valid from a physical inspection of the same absent any alteration of the same by the Defendant.

The State appeals the order of dismissal.

II

[¶ 6]The State's only right of appeal is that expressly granted by statute.State v. Hogie,424 N.W.2d 630, 631(N.D.1988)(citingState v. Flohr,259 N.W.2d 293, 295(N.D.1977)).In the notice of appeal, the State indicated its appeal is permitted according to N.D.C.C. § 29-28-07(1).Section 29-28-07(1), N.D.C.C., specifies the State may appeal from an order quashing an information or indictment or any count thereof.This Court has noted "quash" is defined as "to overthrow; to abate; to vacate; to annul; to make void."State v. Howe,247 N.W.2d 647, 652(N.D.1976)(citation omitted).

[¶ 7]The State has the burden of proving every element of a crime beyond a reasonable doubt.City of Dickinson v. Kraft,472 N.W.2d 441, 443(N.D.1991)(citingState v. Vogel,467 N.W.2d 86, 89(N.D.1991)).If the State fails to do so, the defendant must be acquitted of the charge.Id."There can be no appeal from a true judgment of acquittal."Id.(citingFlohr,259 N.W.2d at 296).

[¶ 8] The question before this Court is whether the trial court order from which the State appealed is a judgment of acquittal, which would not be appealable, or an order quashing the information, which would be appealable.This question is not controlled by the form of the trial court's ruling.State v. Jackson,2005 ND 137, ¶ 5, 701 N.W.2d 887(citingFlohr,259 N.W.2d at 295)."Rather, to determine what constitutes an acquittal, as distinguished from a dismissal quashing the information, we look at the substance of the judge's ruling to determine whether it actually represents a resolution of some or all of the factual elements of the offense charged."Id.(citingState v. Meyer,494 N.W.2d 364, 366(N.D.1992)).If the trial court's decision is based upon legal conclusions rather than a resolution of some or all of the factual elements of the events charged, the ruling amounts to a dismissal or a quashing of the information from which the State has a right to appeal.Id.(citingCity of Wahpeton v. Desjarlais,458 N.W.2d 330, 333(N.D.1990)).The propriety of this appeal is contingent upon whether the trial court reached only legal conclusions or resolved factual elements.Kraft,472 N.W.2d at 443.

[¶ 9] In Flohr,259 N.W.2d at 294, the State charged Flohr with furnishing or delivering intoxicating beverages to a minor.A bench trial was held, and the trial court found there was reasonable doubt as to the guilt of Flohr.Id. at 294-95.The State appealed and argued the trial court abused its discretion by finding the State failed to prove Flohr's guilt beyond a reasonable doubt.Id. at 295.Flohr requested this Court to dismiss the appeal because the trial court's judgment was an acquittal; therefore, it could not be appealed by the State.Id.This Court held the judgment constituted an acquittal because it represented a resolution of some of the factual elements of the offense charged; therefore, it held the State did not have the right to appeal.Id. at 295-96.

[¶ 10] In Kraft,472 N.W.2d at 441-42, the City of Dickinson charged Kraft with dispensing alcoholic beverages to a minor and permitting the minor to remain on a premises licensed to sell alcoholic beverages.A jury trial was held, and at the close of the City's evidence, Kraft moved for a judgment of acquittal, arguing the City failed to prove the elements of the crime.Id. at 442.The trial court entered a judgment of acquittal, and the City appealed.Id.In Kraft,this Court noted the trial court deemed the City's evidence insufficient to establish Kraft's factual guilt and held, a ruling, that as a matter of law, provides the State's evidence is insufficient to establish factual guilt is an acquittal under the Double Jeopardy Clause.Id. at 443(citation omitted).This Court reviewed the trial court's order for judgment and noted the trial court assumed the truth of all information the City brought forward, and even so, held the information did not prove the elements of the crime.Id. at 444.This Court held the City was not permitted to appeal, and it dismissed the appeal.Id.

[¶ 11] In the present case, in the order of dismissal, the trial court noted the jury returned a verdict of guilty, then it held the evidence presented at trial was insufficient to sustain a guilty verdict.According to Flohr,259 N.W.2d at 295-96andKraft,472 N.W.2d at 444, the order of dismissal resolved the factual elements of the offense charged; therefore, the order of dismissal was a judgment of acquittal rather than an order quashing the information.

[¶ 12] In addition, this Court has held if a written order does not provide the relevant information to "determine whether it actually represents a resolution of some or all...