State v. Hatch, Cr. N

• Decision Date: 23 February 1984
• Docket Number: Cr. N
• Citation: 346 N.W.2d 268
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dennis HATCH, Defendant and Appellant. o. 929.
• Court: North Dakota Supreme Court

Page 268

346 N.W.2d 268

STATE of North Dakota, Plaintiff and Appellee, v. Dennis HATCH, Defendant and Appellant.

Cr. No. 929.

Supreme Court of North Dakota.

Feb. 23, 1984.

Charles J. Gilje, argued, States Atty., Jamestown, for plaintiff and appellee.

Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for defendant and appellant; argued by James A. Reisnour, Jamestown.

ERICKSTAD, Chief Justice.

This is an appeal by the defendant, Dennis Hatch, from a judgment of conviction entered by the District Court of Stutsman County on March 30, 1983, upon a jury verdict finding him guilty of the crime of theft of property, a class C felony, in violation of Section 12.1-23-02(2) of the North Dakota Century Code. Hatch was charged with committing the offense of theft of property by obtaining benefits under the North Dakota Unemployment Compensation Law in an amount exceeding $500 between November 1, 1980, and December 31, 1980, by falsely informing Job Service North Dakota that he was not employed during the week ending September 6, 1980. We affirm the conviction.

Dennis Hatch had been employed by Marvel Steel in Jamestown, North Dakota, until this employment was terminated in March, 1980. Thereafter, Hatch became eligible for benefits under the North Dakota Unemployment Compensation Law, ¹ which required him to file, on a weekly basis, a continued claim form with Job Service North Dakota which renews a worker's registration for work and continues a worker's claim for benefits. ²

Hatch filed a continued claim form in which he claimed benefits for the week ending September 6, 1980. The claim form included questions pertinent to an individual's eligibility and disqualification for unemployment benefits. Hatch answered "No" to the question, "Did you work for any employer(s) or in self employment during the week claimed?" He also left space blank on the claim form for the "name and address of employer(s) and why you are no longer working, total hours, dates worked, and gross earnings." In answering these questions, Hatch failed to mention his employment with a Jamestown contracting firm, Everetts & Associates, Inc. [Everetts], during the week ending September 6, 1980.

Hatch testified he was employed by Everetts during the week ending September 6, 1980, and, although work was available, quit. He was employed 26 1/2 hours at Everetts and earned $123. Hatch assigned the following reason at trial for his omission of information concerning his employment with Everetts:

"I was collecting off Marvel Steel and working at Everetts. I didn't think I ... was collecting off ... Everett. And that I didn't put in that many hours to make a difference ... on my card to write it down."

The continued claim form contained the statement, "I certify that the statements made on this claim are true to the best of my knowledge and belief. I know the law provides penalties for false statements made to obtain or increase benefits." Hatch signed this form on September 8, 1980, and thereafter was paid, through a check drawn on the Unemployment Compensation Benefit Fund, his weekly benefit amount of $70. Hatch endorsed the check in space provided thereon above which was set forth, "By signing below, I now CERTIFY, under penalty of law, that any and ALL WAGES earned in the week covered by this check were FULLY reported on my claim."

Hatch thereafter initiated a claim for extended benefits pursuant to Chapter 52-07.1, N.D.C.C. The extended benefit program was established to provide for the payment of extended unemployment compensation benefits to qualified workers who during periods of high unemployment have exhausted their rights to regular benefits under the unemployment compensation law. Section 52-07.1-01, N.D.C.C. Hatch received extended benefits in the amount of $70 per week from the week ending November 1, 1980, to and including the week ending December 27, 1980, totaling $630.

Chris Huber, head of the investigation and collection unit for the Job Insurance Division of Job Service, testified that Hatch's omission was discovered through a computer "cross match" utilizing wage information that had been received from Everetts in April, 1981. On November 23, 1981, the following determination was made by the Job Insurance Division concerning Hatch's claims:

"On your claim for week ending September 6, 1980 you certified you were unemployed with no earnings. There was no mention of your employment with Everetts & Associates, your earnings with Everetts & Associates, or the fact that you quit your employment with that employer during that week.

"You were asked for an explanation and did not respond. There is nothing in the record to show that the work was unsuitable or that your leaving was attributable to your employer. It is determined you left your last employment voluntarily and without good cause. Disqualification imposed from August 31, 1980 and until such time as you can show proof of earnings and insured employment of $350.00. It is further determined you misrepresented earnings, employment and separation information that week to obtain benefits to which you were not entitled. Disqualification imposed as indicated below. [11-23-81 to 11-22-82] .... In addition you were overpaid benefits....

"This $630.00 overpayment must be refunded immediately to the North Dakota Job Insurance Division in the form of a check or money order.

"The overpayment was created by improper claim filing. Since you were at fault, waiver through equity and good conscience has been considered and is denied...."

Huber testified that several attempts were made to contact Hatch after the determination was made but no response was ever received.

Disqualification for benefits is governed by Section 52-06-02, N.D.C.C., pertinent provisions of which, in effect on the date of the Job Service determination, provided as follows:

"An individual shall be disqualified for benefits:

"1. For the week in which he has filed an otherwise valid claim for benefits after he has left his last employment voluntarily without good cause attributable to the employer, and thereafter until such time as he:

a. Can demonstrate that he has earned remuneration for personal services in employment equivalent to at least eight times his weekly benefit amount ... and

b. Has not left his last work under disqualifying circumstances.

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"8. For the week in which he has filed an otherwise valid claim for benefits and:

a. For one year from the date on which a determination is made that such individual has made a false statement for the purposes of obtaining benefits to which he was not lawfully entitled. Provided, however, that this disqualification shall not apply to cases in which it shall appear to the satisfaction of the bureau that the said false statement was made by reason of a mistake or misunderstanding of law or of facts without fraudulent intent; ..."

Section 52-07.1-05, N.D.C.C., provides in part that to be eligible for extended benefits the bureau must find, with respect to each week, that an individual "has satisfied the requirement of this chapter for the receipt of regular benefits that are applicable to individuals claiming extended benefits, including not being subject to a disqualification for the receipt of benefits." [Emphasis added.]

Hatch was found guilty on December 28, 1982, of the crime of theft of property with a value that exceeds $500, a class C felony.

I.

Hatch contends that the combined application in this case of the unemployment compensation law and Section 12.1-23-02(2), N.D.C.C., deprives him of due process of law because "the conduct prohibited or permitted is expressed in terms so vague that men may differ as to its application."

The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited or permitted and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, --- U.S. ----, ----, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). See also Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498-99, 102 S.Ct. 1186, 1193-94, 71 L.Ed.2d 362, 371-72 (1982); Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605, 611-12 (1974); Grayned v. City of Rockford 08 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972); State v. Carpenter, 301 N.W.2d 106, 110 (N.D.1980). The United States Supreme Court has recently recognized "that the more important aspect of vagueness doctrine 'is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Kolender v. Lawson, supra [quoting Smith v. Goguen, supra, 415 U.S. at 574, 94 S.Ct. at 1247-48, 39 L.Ed.2d at 613.].

Hatch was convicted of theft of property in violation of Section 12.1-23-02(2) which reads:

"A person is guilty of theft if he:

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"2. Knowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat; ..."

Section 52-06-38, N.D.C.C., which was repealed in 1975, specifically provided a penalty for the making of a false statement or for failing to disclose a material fact to obtain or increase unemployment benefits. A review of the legislative history surrounding the repeal of Section 52-06-38 discloses the Legislature's intent to repeal or amend existing sections of the Century Code in favor of the general criminal sections contained in the new criminal code. The broad definition of theft in the criminal code encompasses all of the former offenses wherein the property of one person is unlawfully taken. The criminal code also contains Section 12.1-11-02 which...