State v. Engel, Cr. N

• Decision Date: 26 September 1979
• Docket Number: Cr. N
• Citation: 284 N.W.2d 303
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Eugene ENGEL, Defendant and Appellant. o. 695.
• Court: North Dakota Supreme Court

Page 303

284 N.W.2d 303

STATE of North Dakota, Plaintiff and Appellee, v. Eugene ENGEL, Defendant and Appellant.

Cr. No. 695.

Supreme Court of North Dakota.

Sept. 26, 1979.

Ralph A. Vinje, Bismarck, for defendant and appellant.

John E. Jacobson, Mercer County State's Atty., Stanton, for plaintiff and appellee.

SAND, Justice.

Eugene W. Engel was convicted on 6 August 1979 of Failure to Stop at the Scene of an Accident Involving Personal Injury and Aggravated Reckless Driving. He was sentenced to serve eight months at the North Dakota State Farm, of which two months were credited for time served before trial. Engel appealed the conviction and made application to the trial court for release pending appeal. The trial court denied the application, and Engel applied to this Court for release pending appeal and release pending disposition of this motion. Rule 9, North Dakota Rules of Appellate Procedure. For the reasons stated in the ensuing opinion, we remand this matter to the trial court with instructions that Engel's motion for release pending appeal be granted, and that sufficient conditions, including limitations on the use of alcohol, be imposed to assure his presence within the jurisdiction should his conviction be affirmed on appeal.

Before discussing the merits of the motion before us, it is necessary to comment on the content of the record as it was submitted for our consideration.

It is not enough to merely mention the basic essential facts in oral argument or in the brief. Such facts must also be presented by either an affidavit or by the official record. Initially in this case we were not furnished with any of the facts needed for proper consideration of the motion, nor of the indicia the trial court used in reaching its decision. Under Rule 9(b), NDRAppP, it is the responsibility of the party seeking the benefit of the facts to furnish them in the proper form and manner so that the appellate court may use them, if appropriate, for making its decision.

At the oral argument many post-trial circumstances, of which no mention was made in the record, were offered by counsel for Engel as facts relevant to the motion now before this Court. It was asserted for the first time in oral argument that Engel was a diabetic, and that because the medication he needed to control the disease could not be kept at the institution of his sentence, the North Dakota State Farm, he was being held instead at the North Dakota State Penitentiary. The record was empty of this evidence until an affidavit ¹ from the Warden of the North Dakota State Penitentiary was subsequently filed with this Court.

We wish to impress upon the North Dakota legal profession the dire necessity of presenting a full and complete record of the material relevant facts to this Court in support of the issues presented. Even if the facts of the case are not disputed they nevertheless need to be properly presented in order for this Court to reach a fair and just determination of the matters before it. In brief, it is the responsibility of the parties to make available the material and relevant facts pertaining to the issues. This Court is required to base its decision upon "such papers, affidavits, and portions of the record as the parties present." Rule 9, NDRAppP, and Rule 46, NDRCrimP.

We now turn to the merits of the motion for release pending appeal.

When ruling on a motion for release pending appeal, the trial court in the first instance, and the reviewing court on appeal, must be ever-mindful that following the defendant's conviction, the presumption of his innocence is lost, and in its place rises a strong presumption of his guilt. Notwithstanding, there are occasions when post-conviction release pending appeal is warranted. State v. Stevens, 234 N.W.2d 623 (N.D.1975); Rule 46(a), North Dakota Rules of Criminal Procedure; Rule 46(b), NDRCrimP; Rule 9, NDRAppP. Accordingly, a strong presumption of Engel's guilt arose at the time of his conviction and his application for release pending appeal was closely scrutinized in that light.

The usual standard in this jurisdiction is that a convicted defendant is entitled to release while his appeal is pending when it appears

". . . (1) that the appeal is not frivolous, (2) the appeal is not taken for the purpose of delay, (3) there is sufficient reason to believe that the conditions of release will reasonably assure that the defendant will not flee, and (4) there is sufficient reason to believe that the defendant does not pose a danger to any other person or to the community." State v. Stevens, supra at 626.

See also, State v. Davies, 244 N.W.2d 540 (N.D.1976); State v. Olmstead, 242 N.W.2d 644 (N.D.1976); and State v. Schuler, 236 N.W.2d 631 (N.D.1975).

The responsibility of showing the existence of conditions which justify the release of the defendant pending his appeal lies with the defendant, and not with the State to show their absence. State v. Davies, supra; State v. Azure, 241 N.W.2d 699 (N.D.1976). Engel had the responsibility of showing that he met the conditions of release pending appeal prescribed in Stevens And its progeny.

The trial court, having access to the trial record and having seen and heard the defendant, denied Engel's motion for release pending appeal. Its certified reasons therefor were as follows:

"1. The imposed jail sentence creates a substantial likelihood that defendant would leave this jurisdiction.

"2. Defendant has severed all ties with this community and has purchased, or is in the process, of purchasing a home in Minnesota.

"3. Defendant failed to appear on time for the jury trial.

"4. There is a minimal likelihood that the defendant will prevail on appeal.

"5. After having committed the crimes which the defendant was charged with, defendant failed to contact the police, left the area, and was finally apprehended six (6) days after the commission of the crime, in the vicinity of the Mandan airport."

The decision of the trial court to deny Engel's motion was one of discretion, and a similar motion made to this Court will normally be granted only if there was an abuse of discretion. State v. Olmstead, supra; State v. Stevens, supra; State v. Schuler, supra. It is an abuse of discretion for a trial court to deny release if compelling reasons justifying it were presented to the court. State v. Larson, 271 N.W.2d 1 (N.D.1978). Therefore, we must determine, in accordance with the Stevens conditions, if there were compelling reasons presented to the trial court which sanctioned Engel's release pending appeal.

We first consider whether or not the appeal of Engel's conviction was frivolous. Engel asserted as the grounds for his appeal that the trial court erred in its denial of a motion by Engel for a change of venue. The basis of this motion was that because of his direct involvement in two severe traffic accidents in the community in which the trial took place, his entangelement in a touchy domestic relations situation, and his well-known problems with alcohol abuse, there existed a prejudice against...