State v. Erdman, Cr. N

• Decision Date: 18 April 1988
• Docket Number: Cr. N
• Citation: 422 N.W.2d 808
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Ronald Raymond ERDMAN, Defendant and Appellant. o. 870126.
• Court: North Dakota Supreme Court

Page 808

422 N.W.2d 808

STATE of North Dakota, Plaintiff and Appellee, v. Ronald Raymond ERDMAN, Defendant and Appellant.

Cr. No. 870126.

Supreme Court of North Dakota.

April 18, 1988.

James F. Lester, Fargo, for defendant and appellant; submitted on briefs.

John T. Goff, Asst. State's Atty., Fargo, for plaintiff and appellee; submitted on briefs.

ERICKSTAD, Chief Justice.

Ronald Raymond Erdman appeals from a Cass County judgment of conviction for fleeing or attempting to elude a police officer and criminal mischief in violation of sections 39-10-71 and 12.1-21-05, N.D.C.C. We reverse Erdman's conviction for fleeing a police officer but affirm his conviction for criminal mischief.

During the last week of July 1986 Officer Bud Warren of the Cass County Sheriff's Office was contacted by the Clay County ¹ Sheriff's Office regarding the whereabouts of Erdman. The Sheriff of Clay County held a warrant for Erdman's arrest and suspected that Erdman was living in Cass County. On August 5, 1986, Officer Warren found the vehicle Erdman was believed to be driving, in a trailer court known as "Selkirk Settlement." Officer Warren and two other officers watched the vehicle from a distance from 6:30 a.m. until some time after 8:00 a.m. Shortly thereafter a "heavyset subject," later determined to be Erdman, came out of trailer No. 8 and drove away from the trailer court.

Officer Warren of Cass County and Officer Nordick of Clay County pursued the vehicle in a "high speed" chase which lasted for fourteen miles, including several changes of direction and a one-mile diversion through a soybean field. ² Officer Dean Fercho of the Cass County Sheriff's Office responded to Officer Warren's radio request for assistance and joined in the chase. Officers Warren, Nordick, and Fercho were driving unmarked law enforcement vehicles; however, Officer Warren used a siren, red lights located in the grill of his vehicle, and a movable flashing light which he placed on top of his vehicle during the chase. Officers Nordick and Fercho also used movable flashing lights on the top of their unmarked vehicles during the chase. Officers Warren and Nordick were not in police uniform, nor were they displaying an official badge. It is not clear from the testimony what Officer Fercho wore, but the evidence suggests he was in civilian clothes. ³

The chase ended without personal injury at a grain handling facility south of Fargo, North Dakota. The testimony of Erdman conflicts substantially with the testimony of Officer Bud Warren and Officer Dean Fercho relevant to the events during the arrest. Erdman contends Officer Warren yelled obscenities and threatened to kill him; Officer Warren admits yelling obscenities at Erdman but denies threatening his life. Officer Fercho remembers that Officer Warren yelled obscenities but does not recall any specific death threats.

Erdman contends: (1) there was insufficient evidence to convict him of fleeing or attempting to elude a police officer pursuant to section 39-10-71, N.D.C.C.; (2) there was insufficient evidence to convict him of criminal mischief pursuant to section 12.1-21-05, N.D.C.C.; and (3) prosecution should be barred because Officer Warren's conduct during the arrest "violates that fundamental fairness, shocking to the universal sense of justice, mandated by the due process clause of the Fifth Amendment." Erdman also raises three evidentiary issues, each of them premised on the assertion that the trial court abused its discretion in: (1) allowing the State to illustrate the route of the chase with an overhead projector after details of the chase were previously admitted by way of testimonial evidence; (2) allowing two photographs of the damaged soybean field into evidence; and (3) allowing the testimony of the individual who farmed the damaged soybean field.

We believe Erdman's first contention is meritorious and we therefore reverse his conviction for fleeing or attempting to elude a police officer. The 1985 version of section 39-10-71, N.D.C.C., provided:

"39-10-71. Fleeing or attempting to elude a police officer. Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class A misdemeanor. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform, prominently displaying his badge of office, and his vehicle shall be appropriately marked showing it to be an official police vehicle." [Emphasis added.]

The 1985 version of section 39-10-71 required the officer to be in uniform and displaying a badge, whether or not the arrest was attempted while the officer was in a vehicle or afoot. The 1987 legislature amended section 39-10-71 and created a distinction between an officer who attempts an arrest on foot and an officer who attempts an arrest from a vehicle. The amended and current version of section 39-10-71, N.D.C.C., reads:

"39-10-71. Fleeing or attempting to elude a peace officer. Any driver of a motor vehicle who willfully fails or refuses to bring the vehicle to a stop, or who otherwise flees or attempts to elude, in any manner, a pursuing police vehicle or peace officer, when given a visual or audible signal to bring the vehicle to a stop, is guilty of a class A misdemeanor. A signal complies with this section if the signal is perceptible to the driver and:

1. If given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the stopping vehicle is appropriately marked showing it to be an official police vehicle; or

2. If not given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the officer is in uniform and prominently displays the officer's badge of office." [Emphasis added.]

The 1985 version of section 39-10-71 was in effect during Erdman's arrest and judgment of conviction. The evidence is undisputed that Officers Warren and Nordick were not wearing police uniforms and that the vehicles were "unmarked" during their pursuit of Erdman. Erdman's conviction for violation of this section is therefore reversed.

The State contends section 39-10-71, N.D.C.C., must be interpreted "with a sense of reasonableness and an examination of legislative intent." The State supports its "reasonableness" standard of interpreting section 39-10-71, N.D.C.C., with the following hypothetical question: "What if the police officer in civilian clothing drove a patrol car with permanent overhead lights and markings on the front doors. Shouldn't that officer be justified in expecting a subject vehicle to respond accordingly when signaled to stop? I think so." Whether or not an officer in such a situation should reasonably expect the driver to stop is arguable. Interpretation of this section, however, is not controlled by an officer's reasonable expectations. ⁴ Furthermore, we think it improper to attempt to discern legislative intent from anything other than the language of the statute when the language specifically requires the officer to wear a uniform and display a badge when attempting to signal a stop. Discerning legislative intent in this case is precluded by section 1-02-05, N.D.C.C., which reads: "[w]hen the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."

Erdman also contends the evidence was insufficient as a matter of law as to his conviction for criminal mischief. He contends there was no evidence that he intentionally damaged the bean field. We disagree.

On appeal challenging the sufficiency of the evidence, Erdman must show that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. State v. Lawenstein, 346 N.W.2d 292, 293 (N.D.1984); State v. Sadler, 305 N.W.2d 913, 915 (N.D.1981). Moreover, we do not substitute our judgment for that of the jury. State v. Tininenko, 371 N.W.2d 762, 765 (N.D.1985); State v. Walden, 336 N.W.2d 629, 634 (N.D.1983).

Although Erdman contends he believed he was being chased by individuals who intended to harm him, we believe there was sufficient evidence to prove Erdman knew he was being pursued by police officers, but refused to stop his vehicle nevertheless. ⁵ For example, Officer Nordick testified that his vehicle met Erdman's on the highway, that both vehicles nearly stopped, and that he and Erdman looked directly at each other. Erdman admits he knows Officer Nordick but states he did not recognize him during the chase. Officers Warren and Fercho also testified that their flashing red lights were within Erdman's view several times before he drove into the soybean field.

Erdman next contends the State should have been barred from prosecuting him because Officer Warren's conduct lacks "fundamental fairness ... mandated by the due process clause of the Fifth Amendment." In support of his contention, Erdman relies on United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).

We do not see a convincing analogy between Officer Warren's alleged death threat ⁶ to Erdman and the legal principles propounded in the cases Erdman cites to us. We need not express an opinion about the propriety of Officer Warren's alleged conduct in ruling that Officer Warren's alleged conduct does not require a reversal of Erdman's conviction for criminal mischief.

In United States v. Russell, supra, the defendant was convicted of unlawfully manufacturing and selling methamphetamine ("speed"). An undercover law enforcement agent infiltrated the defendant's drug manufacturing business and sold the defendant an ingredient needed to produce methamphetamine. The court ruled that the agent's sale of an...