State v. Frankfurth

• Decision Date: 27 September 2005
• Docket Number: No. 20050112.,20050112.
• Citation: State v. Frankfurth, 704 N.W.2d 564, 2005 ND 167 (N.D. 2005)
• Court: North Dakota Supreme Court
• Parties: STATE of North Dakota, Plaintiff and Appellant v. Paul R. FRANKFURTH, Defendant and Appellee.

704 N.W.2d 564

2005 ND 167

STATE of North Dakota, Plaintiff and Appellant v. Paul R. FRANKFURTH, Defendant and Appellee.

No. 20050112.

Supreme Court of North Dakota.

September 27, 2005.

Cynthia M. Feland, Assistant State's Attorney, Burleigh County Courthouse, Bismarck, N.D., for plaintiff and appellant.

Thomas M. Tuntland, Mandan, N.D., for defendant and appellee.

CROTHERS, Justice.

[¶ 1] The State appeals from the district court's order arresting judgment and subsequent orders granting reconsideration and clarification pertaining to Paul R. Frankfurth's conviction for gross sexual imposition. We affirm.

I

[¶ 2] Frankfurth was arraigned on March 24, 2004, under an information purporting to charge him with gross sexual imposition under N.D.C.C. § 12.1-20-03. The information alleged, "The defendant engaged in a sexual act at a time when the victim was unaware that a sexual act was being committed on her." On December 3, 2004, a jury trial was held, returning a guilty verdict.

[¶ 3] Frankfurth timely moved for arrest of judgment prior to sentencing, asserting the information lacked an essential element of the offense and, thus, failed to charge a crime. Frankfurth argued the information lacked a specific allegation that he had knowledge of his victim's unawareness that a sexual act was being perpetrated on her. See N.D.C.C. § 12.1-20-03(1)(c) (gross sexual imposition is committed if "a person . . . engages in a sexual act with another . . . [and] he knows that the victim is unaware that a sexual act is being committed upon him or her." (Emphasis added.)).

[¶ 4] The district court granted the motion, dismissing the charges with prejudice. Dismissal was amended to be without prejudice following motions made by the State for reconsideration and clarification; however, the district court would not reinstate the jury verdict.

II

[¶ 5] The State argues the information was not defective because it properly notified Frankfurth of the charges against him and any missing elements could be implied from the face of the information.

[¶ 6] This Court has stated technical defects in an information are not fatal to its validity. City of Grand Forks v. Mata, 517 N.W.2d 626, 628 (N.D.1994); City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 333 (N.D.1990). Furthermore, Sixth Amendment notice requirements are satisfied, provided a criminal information is sufficiently specific to provide the defendant with notice of the pending charges and to enable the defendant to prepare a defense. Mata, 517 N.W.2d at 628. The State reasons the language used, plus the inclusion of the citation for the statute violated, constituted sufficient and appropriate notice to the defendant. We disagree.

[¶ 7] An information must contain a "written statement of the essential elements of the offense." State v. Gwyther, 1999 ND 15, ¶ 15, 589 N.W.2d 575 (quoting Mata, 517 N.W.2d at 628 and Desjarlais, 458 N.W.2d at 333); N.D.R.Crim.P. 7(c) (an information must be a "plain, concise, and definite written statement of the essential facts constituting the offense charged"). North Dakota has legislatively established the term "element of an offense" to mean:

a. The forbidden conduct;

b. The attendant circumstances specified in the definition and grading of the offense;

c. The required culpability;

d. Any required result; and

e. The nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.

N.D.C.C. § 12.1-01-03(1).

[¶ 8] This Court has held that the culpability element may be implied in some circumstances. State v. Hendrick, 164 N.W.2d 57, 63 (N.D.1969). In Hendrick, we inferred the element of "intent to escape therefrom" from the word "escape" on a criminal information. Id. However, in State v. Mutschler, 55 N.D. 120, 212 N.W. 832, 833 (N.D.1927), the phrase "willfully, unlawfully, and feloniously set fire to and burn" was not interpreted to charge the essential element of "malice."

[¶ 9] Here, the State argues the words "engaged" and "committed" as used in the information imply intentional, rather than accidental, conduct. The State's conclusion may very well be correct and, if only pertained to culpability, might be consistent with our holding in Hendrick, 164 N.W.2d at 63. However, the State fails to explain how this inference supplies the necessary element of the defendant's knowledge that the victim was unaware a sexual act was being committed upon her. Even the most liberal interpretation of the information fails to lead this Court to the conclusion that the defendant's knowledge of the victim's unawareness can be inferred from the face of the information.

[¶ 10] We conclude Frankfurth's knowledge of the victim's unawareness was an essential element of the offense charged and could not be inferred. Because it was missing from the information, the criminal information was defective.

III

[¶ 11] The State argues Frankfurth improperly moved for arrest of judgment; therefore, such an Order was improper because Frankfurth's motion was neither timely nor based on adequate grounds.

[¶ 12] The State first claims Frankfurth waived his objection to the information when he failed to seek pretrial relief. Rule 12(b), N.D.R.Crim.P., requires certain motions be made before trial, or they are waived. See State v. Neset, 462 N.W.2d 175, 176-77 (N.D.1990). Specifically, the following must be raised pretrial: "Defenses and objections based on defects in the indictment, information, or complaint other than that it fails to show jurisdiction in the court or to charge an offense, which objections must be noticed by the court at any time during the pendency of the proceeding." N.D.R.Crim.P. 12(b)(2).

[¶ 13] Either of the grounds excepted from the Rule 12(b) pretrial filing requirement — the failure to show jurisdiction or failure to charge an offense — form a basis under Rule 34, N.D.R.Crim.P., for a post-trial motion to arrest judgment. Therefore, Rule 34 is consistent with Rule 12, allowing motions for arrest of judgment to be filed within seven days of a verdict or finding of guilty.

[¶ 14] Frankfurth argues adequate grounds existed for arrest of judgment because Rule 34, N.D.R.Crim.P., requires a court to arrest judgment if the information does not charge an offense or if the court did not have jurisdiction over the offense. Frankfurth argues both conditions were present in this case.

[¶ 15] Frankfurth claims the defective information prevented the district court from acquiring jurisdiction over him. Frankfurth's argument that jurisdiction did not exist over his person or the crime charged is largely based on the holding in People v. Mack, 24 Ill.App.3d 455, 321 N.E.2d 446, 449 (1974). In Mack, a missing intent element in an information purporting to charge the defendant with attempted rape was deemed a flaw depriving the trial court of jurisdiction. Id. That holding, however, appears to be a throwback to the "somewhat expansive notion of `jurisdiction' which was `more a fiction than anything else.'" United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal citations omitted).

[¶ 16] In Cotton, the United States Supreme Court reinstated a conviction following dismissal by the Fourth Circuit Court of Appeals based on the thought that a defect in an indictment deprived the court of jurisdiction. 535 U.S. at 628-29, 122 S.Ct. 1781. Explaining the flaws of the precedent relied on, the Court explained:

[Earlier precedent's] elastic concept of jurisdiction is not what the term "jurisdiction" means today, i.e., "the courts' statutory or constitutional power to adjudicate a case." This latter concept of subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived. . . . [D]efects in [a charging instrument] do not deprive a court of its power to adjudicate a case.

Id. at 630, 122 S.Ct. 1781 (emphasis in original) (internal citations omitted).

[¶ 17] Cotton is consistent with our holding in Reichert v. Turner, 62 N.D. 152, 242 N.W. 308 (N.D.1932), where we held jurisdiction is not lost because of errors in an information if jurisdiction exists over the crime intended to be charged. Therefore, we conclude the district court had jurisdiction over Frankfurth and this matter, notwithstanding the defective information.

[¶ 18] Frankfurth argues in the alternative that even if jurisdiction existed, the criminal information failed to charge an offense. We concluded above the information was lacking essential elements and was therefore defective. These defects failed to charge Frankfurth with the offense of gross sexual imposition or, in fact, any crime cognizable under the laws of North Dakota.

[¶ 19] Because failure to charge an offense is a valid ground for arrest of judgment under Rule 34, N.D.R.Crim.P., and Frankfurth's Rule 34 motion was timely made, the State's Rule 12 argument is rejected.

IV

[¶ 20] The State further argues dismissal of the information was an inappropriate remedy, despite its defects. The State rests its contention on the inapplicability of the Fifth Amendment's indictment clause to the states and the district court's failure to conduct a harmless/obvious error analysis under N.D.R.Crim.P. 52.

[¶ 21] At the outset, judicial decisions uniformly hold that the right to indictment by a grand jury under the Fifth Amendment to the United States Constitution is not applicable to state court proceedings. 38 Am.Jur.2d Grand Jury § 2 (2004); see, e.g., Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). We have not been provided with a contrary argument and, therefore, decline to hold otherwise.

[¶ 22] Rule 52, N.D.R.Crim.P., allows appellate court review of obvious errors or defects affecting substantial rights, regardless of whether they were brought to the trial court's attention. Harmless errors, however, are to be disregarded. Id.

[¶ 23] The Court in Cotton...