State v. Dubs, Cr. N
| Decision Date | 26 June 1986 |
| Docket Number | Cr. N |
| Citation | 390 N.W.2d 41 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Michael David DUBS, Defendant and Appellant. o. 1148. |
| Court | North Dakota Supreme Court |
Robert G. Hoy, State's Atty. (argued), and Keith Reisenauer, Asst. State's Atty., Fargo, for plaintiff and appellee.
Edward J. Murphy, Fargo, for defendant and appellant.
Michael David Dubs appealed from a judgment of conviction of the Cass County district court for robbery, arguing that the evidence was insufficient to support the conviction. We affirm.
When a defendant alleges on appeal that the evidence is insufficient to sustain a conviction, " 'we do not weigh conflicting evidence, nor do we judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction.' " State v. Mertz, 362 N.W.2d 410, 414 (N.D.1985), quoting State v. Manke, 328 N.W.2d 799, 805 (N.D.1982). This standard is founded on the proper recognition of the distinctive role of the trier of fact--in this case, the trial court--in weighing the evidence. This role necessarily includes application of inferences and subtleties that may be reasonably drawn from the evidence for the purpose of judging credibility and evaluating the essential issues of fact. State v. Ohnstad, 359 N.W.2d 827 (N.D.1984).
The evidence, shown in that light and in relation to Dubs, is that in the early morning hours of July 5, 1985, Dubs and two friends, Ronald Huebner and a minor, walked from Dubs's apartment to a Fargo convenience store to buy cigarettes. On the way, Huebner stopped Howard Fischer, who had just ended his workday at a bakery. While Dubs and the minor continued walking to the store, Huebner proceeded to rob Fischer, threatening and assaulting him with a nunchaku, 1 a martial-arts weapon commonly referred to as a pair of "numb chucks," which he took with him from Dubs's apartment. Fischer was able to flee from the situation and went directly to the police station to report the crime. 2
After Huebner rejoined Dubs and the minor, they began to walk back to Dubs's apartment. On the way, Huebner noticed James Timian, one of Fischer's co-workers, walking home on the opposite side of the street. Huebner yelled across the street, asking if Timian had any beer. Timian did not respond and kept walking. Huebner asked again, and Timian replied, "No." According to Timian, Huebner then crossed the street, with Dubs and the minor "stringing along" behind Huebner. As Huebner approached Timian, Huebner withdrew the nunchaku from his vest. Timian set down the bag he was carrying and placed his back to the wall of a building. While Huebner swung the nunchaku in front of Timian's face and suggested that Timian should 'give' him the bag, Dubs stood four or five feet to Timian's left. The minor stayed some distance away from the others, his back to them and facing the street area.
The discussion between Huebner and Timian was somewhat extended, with Huebner stating several times that Timian should 'give' the bag to him. As he talked to Timian, Huebner withdrew the nunchaku from his vest and replaced it three times. According to Timian, Dubs told Huebner during the discussion that he "wanted to leave, but kept coming up just about as close as the guy with the numb chucks." 3 Timian testified that he believed that Dubs, by his position, was blocking his way and, by his presence, was a threat. He also construed Dubs's request to leave as a concern about being caught and not as a concern for Timian's welfare. Timian eventually told Huebner that he could have the bag, at which time Huebner took the bag and left. Dubs then approached Timian and asked him the time; Timian answered him. Dubs asked again, and Timian answered again. Dubs asked a third time, and Timian answered, at which point the police, summoned by Fischer, arrived. Huebner, Dubs, and the minor fled from the scene and hid, but were subsequently found by the police.
We believe that this evidence, considered pursuant to the standard we must employ, is sufficient to sustain the verdict. While it is true that our law does not allow a person to be found guilty of robbery merely because of presence at the scene of the robbery [see, e.g., Zander v. S.J.K., 256 N.W.2d 713 (N.D.1977) ], reasonable inferences from the evidence support the trial court's conclusion that Dubs's actions were sufficient indication of culpability. Dubs argues that the evidence shows that he was only present and not a participant. This argument was made to the trial court, and rejected. The trial court considered Dubs...
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State v. Morstad, Cr. N
...to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction. State v. Dubs, 390 N.W.2d 41 (N.D.1986). A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a rea......
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State Of N.D. v. Michael Jerme. Walker
...support of the group as a whole to warrant treating each member as a causal agent.’ ” Id. at 157 (citation omitted). [¶ 13] State v. Dubs, 390 N.W.2d 41 (N.D.1986), illustrates the application of the statute. Dubs's friend used a weapon to hold up a passerby and steal the bag he was carryin......
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State v. Schill, 1232
...to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction. State v. Dubs, 390 N.W.2d 41 (N.D.1986). A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a rea......