State v. Hafner

Decision Date22 December 1998
Docket NumberNo. 980120,980120
Citation587 N.W.2d 177
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. David HAFNER, Defendant and Appellant. Criminal
CourtNorth Dakota Supreme Court

Loren McCray, of Alexander and Solem Law Office, Beulah, ND, for defendant and appellant.

Larry W. Quast (on brief), State's Attorney, Stanton, ND, for plaintiff and appellee.

MARING, Justice.

¶1 David James Hafner appealed from a judgment convicting him of maintaining a public nuisance in violation of N.D.C.C. § 42-01-15. We conclude the jury instructions were consistent with the applicable law and the trial court did not err in denying Hafner's motion for acquittal. We therefore affirm.

I.

¶2 Hafner was a self-employed farmer. He began farming in 1970, about fifteen miles north of Beulah, directly off Highway 1806. His farming operation consisted of small grains, hay, hogs, and cows. Hafner owned approximately two hundred hogs between April 9, 1997, and September 25, 1997. During this time period, he had problems with hogs getting out of their pen.

¶3 The Mercer County Dispatch received reports of cows and hogs outside of Hafner's fenced property on twenty different occasions from April 9, 1997, through September 25, 1997. On September 23, 1997, Officer Leonard Tesky investigated an accident on Highway 1806, involving one of Hafner's hogs and a 1981 Dodge truck belonging to Todd Stevens. Stevens was traveling at approximately fifty-five miles per hour, when he saw hogs on the highway. He attempted to brake, but was unable to avoid hitting one of the hogs. The hog was killed and Stevens' truck had estimated damages of $900.00, although actual damage estimates presented to the trial court were approximately $1,500.00.

¶4 As a result of these reports, on September 25, 1997, a criminal complaint was filed in Mercer County charging Hafner with violating N.D.C.C. § 42-01-01(3), a class A misdemeanor. The complaint alleged Hafner "did then and there unlawfully interfere with, obstruct or tend to obstruct or render dangerous for passage any highway, in that [he] allowed livestock to run outside his fence and on the highway, nearly being struck by motor vehicles." On April 8, 1998, Hafner was tried by a six-person jury for maintaining a public nuisance. He was found guilty and judgment was entered on that date.

¶5 Hafner was sentenced to: (1) serve thirty days in the Mercer County Jail with thirty days suspended; (2) pay restitution fees in the amount of $1,526.00; (3) pay a victim-witness fee in the amount of $25.00; (4) pay a fine in the amount of $1,000.00; and (5) pay a court administration fee in the amount of $50.00.

¶6 On April 17, 1998, Hafner appealed the judgment and moved to stay his sentence pending review under N.D.R.Crim.P. 38. The trial court granted the motion.

¶7 On appeal Hafner argues: (1) N.D.C.C. § 42-01-15 requires "the alleged conduct cannot be punishable under another statute," and his conduct was punishable under N.D.C.C. § 36-11-01; (2) the trial court erred by failing to instruct the jury that an element of the offense of maintaining a public nuisance was the alleged conduct cannot be punishable under another statute; (3) the trial court erred by denying Hafner's motion for acquittal; and (4) the trial court erred by failing to give the requested jury instruction regarding the "agricultural operation defense."

II.

¶8 The trial court in this case instructed the jury "[e]very person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of an offense." 1 The court also instructed:

The prosecution satisfies its burden of proof only if the evidence shows beyond a reasonable doubt the following essential elements of the offense charged:

1. Between the 9th day of April, 1997 and the 25th day of September, 1997, in Mercer County, North Dakota;

2. The Defendant, David Hafner;

3. Willfully;

4. Maintained or committed a public nuisance.

North Dakota Century Code § 42-01-01 defines a nuisance as follows:

A nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission:

. . . . .

3. [u]nlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake, navigable river, bay, stream, canal, basin, public park, square, street, or highway[.]

Based on the language of the jury instructions and the facts of the case, the jury found Hafner guilty of violating N.D.C.C. § 42-01-15 and maintaining or committing a public nuisance.

¶9 Hafner contends, nevertheless, the statutory phrase, "the punishment for which is not otherwise prescribed," dictates that his conduct could not have been punishable under any other statute. We disagree. This statutory phrase has not been defined by the North Dakota Legislature, or this Court. See N.D.C.C. § 42-01-15.

¶10 The primary goal when interpreting a statute is to ascertain the legislative intent. Hassan v. Brooks, 1997 ND 150, p 5, 566 N.W.2d 822 (citation omitted). When interpreting a statute, we first look to the language itself and determine whether it is unambiguous on its face. State v. Eldred, 1997 ND 112, p 19, 564 N.W.2d 283 (citing Bouchard v. Johnson, 555 N.W.2d 81, 83 (N.D.1996)). If the statute is unambiguous, we apply the plain language. Id. (citing County of Stutsman v. State Historical Soc'y, 371 N.W.2d 321, 325 (N.D.1985)). When a statute is not clear on its face, "we look to extrinsic aids, such as legislative history, to determine the legislature's intent." Id. (citing State Historical Soc'y, at 325). We interpret statutes in context to avoid absurd results. Ohnstad Twichell, P.C. v. Treitline, 1998 ND 10, p 20, 574 N.W.2d 194 (citation omitted).

¶11 "Words and phrases must be construed according to the context and the rules of grammar and the approved usage of the language." N.D.C.C. § 1-02-03. Under N.D.C.C. § 42-01-15 (emphasis added), "[e]very person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a class A misdemeanor." The plain language of North Dakota's public nuisance statute indicates "the punishment for which is not otherwise prescribed" refers to punishments for maintaining or committing "a public nuisance," and not the acts that may constitute additional potential statutory violations.

¶12 The phrase, "the punishment for which is not otherwise prescribed," originated in the Dakota Territory Penal Code during the 1864-65 legislative session. See 1864-65 N.D. Laws ch. 17, tit. 12 § 432. Under the 1864-65 Penal Code, the statutory language was similar to our current provision:

Every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor.

Id. (emphasis added). The 1864-65 Penal Code, however, explained the punishment for a misdemeanor:

Except in cases where a different punishment is prescribed by this code, or by some existing provisions of law, every offense declared to be a misdemeanor, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.

See 1864-65 N.D. Laws ch. 17 § 14 (emphasis added).

¶13 Based on the plain language of the Penal Code in 1864-65, a person charged with the misdemeanor of maintaining or committing a public nuisance would have been sentenced within the parameters of the general misdemeanor statute, unless a different punishment was prescribed elsewhere in the Penal Code for the offense. See, e.g., 1864-65 N.D. Laws ch. 8, §§ 371-72 (declaring "[e]very lottery is unlawful and a common and public nuisance" and providing specific punishments for the offense).

¶14 Hafner's contention that his alleged conduct was chargeable and punishable under N.D.C.C. § 36-11-01, and that therefore, he could not be charged with violating N.D.C.C. § 42-01-15, is without merit.

¶15 Under N.D.C.C. § 36-11-01:

No cattle, horses, mules, swine, goats, or sheep may be permitted to run at large. Any owner or possessor of any such animal who willfully permits it to run at large through failure to maintain a lawful fence as provided in section 47-26-01, except in grazing area as provided in section 36-11-07, is guilty of a class B misdemeanor.

Clearly, section 36-11-01 only applies where livestock is willfully "permitted to run at large ... through failure to maintain a lawful fence...." It does not prescribe another punishment for a violation of N.D.C.C. § 42-01-15, maintaining or committing a public nuisance which "tend[s] to obstruct, or render[s] dangerous for passage any, ... highway." N.D.C.C. § 42-01-01(3). The fact Hafner could be charged with a different offense, does not negate the right of the state to charge him with a violation of N.D.C.C. § 42-01-15 and to seek the punishment prescribed under this statute.

¶16 Similar statutory language, however, has been interpreted by other jurisdictions. Hafner's argument relies on his analysis of older decisions from Oregon and Arizona. See State v. Franzone, 243 Or. 597, 415 P.2d 16, 19 (Or.1966) (citation omitted) (reversing Franzone's conviction and discussing the Oregon public nuisance statute's intent "to cover offenses ... not elsewhere made punishable by the criminal statutes ..."); Engle v. State, 53 Ariz. 458, 90 P.2d 988, 993 (Ariz.1939) (concluding gambling fell within the statutory definition of a public nuisance "after an exhaustive and critical examination of all" state legislation since 1864). We have reviewed those decisions and conclude the Oregon court's analysis was based on an extensive examination of long-standing...

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