State v. Haugen, Cr. 1157

CourtUnited States State Supreme Court of North Dakota
Citation392 N.W.2d 799
Docket NumberCr. 1159,Cr. 1157
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Melford H. HAUGEN, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Jarl HEGVICK, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Bernice HEGVICK, Defendant and Appellant. to
Decision Date20 August 1986

James W. Wold, State's Atty., Cooperstown, for plaintiff and appellee.

Glenn Pomeroy & Ralph B. Maxwell, Fargo, for defendants and appellants; argued by Ralph B. Maxwell.

LEVINE, Justice.

Melford Haugen, Jarl Hegvick, and Bernice Hegvick appeal from criminal judgments entered upon jury verdicts finding them guilty of the offense of threatening public servants. We reverse.

The defendants were Griggs County farmers who lost their farmland. In an effort to recover the land, the defendants, acting pro se, commenced lawsuits against everyone they thought might be connected with the subject matter of their grievances.

Haugen brought suit against the present owners of the farmland. Griggs County State's Attorney James Wold represented the present landowners in the action. In February 1985, Haugen requested Griggs County Sheriff Vernon Fuglestad to serve eviction notices upon the present owners. Against the advice of Wold, Fuglestad served the eviction notices.

On February 20, 1985, the Board of Commissioners of Griggs County adopted a resolution recommending that Wold file a complaint with the Governor seeking the removal of Fuglestad from office. During early March 1985, the county commissioners received by certified mail letters allegedly signed by the defendants. The letters were identical in content and stated as follows:


"You are given Notice to the effect that you are interfering in a Law case on crime in your county. This is an out and out effert (sic) to try to get rid of an honest Sheriff who is trying to follow the Laws of our country and allow the people and our children, and Grandchildren to live in a free country as we have. There has been a complete effort in North Dakota to get rid of our Constitution, and the Laws that it stands for. This Constitution has given us the right of speach (sic) and press.

"States Attorney James Wold has either convenced (sic) you that he has the authority to decide what is Law and what is not or you have joined in the conspiracy to cover up organized crime in your county. This notice is to let you know that you have ten (10) days from this Notice to let us know that you will not or are not in anyway (sic) going to stand back and help James Wold commit this crime against our Sheriff. You are county Commissioners, your duty is to keep up on whats (sic) going on in your county, to find the truth about whats (sic) going on. The Sheriff has done his own investigation, which is his job. He has not taken our word for it. He has known about some of the crimes for about two years, he has not jumped into this on our word. He is doing his duty. Now you do yours.

"If you fail to implement good faith restitution within ten (10) days from this Notice it will result in Civil and Criminal process to commence against you for DAMAGES. Re: Title 42 U.S.C. 1983, 1985, 1986. Title 28 U.S.C. 1331, 1343. Title 18 U.S.C. 241, 242, 2381, 2382, 2384, 892, 893 and 894 and other sections that will obviously appy (sic) as the Action is started against you.

* * *

* * *

"P.S. Be advised that this Notice will constitute 'prima facie' evidence in a court of competent jurisdiction and will be used against you." [Emphasis in original.] 1

The letters allegedly signed by the Hegvicks were accompanied by a copy of the commissioners' resolution, a document entitled "Answer to your resolution," and photocopies of various state statutory provisions relating to restrictions on the powers of state's attorneys and the duties and obligations of sheriffs.

During mid-March 1985, the county commissioners received similar materials. These materials included summonses and were purported to constitute actions against the commissioners. These actions were removed from county court to the Federal District Court, which ultimately dismissed the actions, noting that "[t]he case appears to be another of Plaintiffs' frivolous abuse of process actions which have come before this court."

Based upon the "Constructive Notice and Demand" letters received by the commissioners, the defendants were charged with threatening public servants under Sec. 12.1-12-06(2)(b), N.D.C.C. The criminal informations alleged that the letters contained "a threat to commence criminal process against said officials unless 'good faith restitution' is 'implemented ... within 10 days,' said threat being related to an official action taken by the Board of Commissioners of Griggs County." The cases were consolidated for trial, during which the defendants did not testify. The jury convicted Haugen on three counts and the Hegvicks on four counts each. The defendants were sentenced to three years imprisonment with one year suspended. Their appeals were consolidated by stipulation of counsel.

Before reaching the dispositive issue in this case, we address the defendants' contention that their convictions should be reversed because the state failed to authenticate the handwriting on the alleged threatening letters.

Authentication is the process of establishing the relevancy of a document by connecting it with a person, place, or thing. Farmers Union Oil Co. of Dickinson v. Wood, 301 N.W.2d 129, 136 (N.D.1980). In R & D Amusement Corporation v. Christianson, 392 N.W.2d 385, 386 (N.D.1986), we stated:

"NDREv 901(a) treats questions of authentication as matters of conditional relevance to be determined according to NDREv 104(b). Explanatory Note to NDREv 901, N.D. Court Rules 1986 Desk Copy. The relevancy of a document is conditioned upon its authenticity. Thus, when a document is offered, a judge must make a preliminary determination whether sufficient proof has been introduced to allow a reasonable fact finder to conclude the document is authentic; i.e., it is what its proponent claims it to be. If so, the judge must admit the evidence and the question of its weight and prosecutive force is one for the jury. NDREv 104(b); State v. Vetsch, 368 N.W.2d 547 (N.D.1985); see generally 11 Moore's Fed.Prac. Sec. 901.03; 5 Weinstein's Evidence p 901(a) .

"The question whether evidence should be excluded for lack of authentication is primarily within the sound discretion of the trial court. See State v. Schneider, 389 N.W.2d 604 (N.D.1986)."

It is uniformly recognized that a document may be authenticated by circumstantial evidence, such as the events preceding, surrounding, and following the transmission of a writing. E.g., Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 505 F.Supp. 1190, 1222-1226 (E.D.Pa.1980); Commonwealth v. Brooks, 352 Pa.Super. 394, 508 A.2d 316, 318-321 (1986); 5 Weinstein's Evidence p 901(b)(4) (1983). Depending upon the facts, such evidence may include information in the contents of the writing that is known by the purported sender and the recipient. See United States v. Sutton, 426 F.2d 1202, 1207 (D.C.Cir.1969); Brooks, supra. Once authenticity has been established for one document, it may serve as the basis for authentication of a disputed document through comparison by the trier of fact. See Rule 901(b)(3), N.D.R.Ev.; Zenith Radio Corp., supra, 505 F.Supp. at 1223; 5 Weinstein's Evidence p 901(b)(3) (1983); Annot., 41 A.L.R.2d 575 (1955).

In the present case, Lillie Simenson, the Griggs County Register of Deeds, testified that the defendants visited the clerk of court's office during June 1984 seeking to file a number of common law liens. After conferring with the state's attorney by telephone, Simenson refused to file the documents. During April 1985, Simenson received letters purportedly signed by Melford Haugen and Jarl Hegvick requesting that she file default judgments against the county commissioners. The letters were accompanied by several documents entitled "Entry of Default Judgment" which carried the purported signatures of all three defendants. The letters were addressed "Dear Lillie," and stated in part that "I suggest that you file [the default judgments] as you are suppose (sic) to. The dutys (sic) of the Clerk are to file not Judge (sic) who hears the case ... I would like to suggest so as you don't get yourself into trouble, that you file these default judgements (sic) as a clerk is suppose (sic) too (sic)."

Simenson's previous refusal to file the defendants' common law liens coupled with the letters' implicit recognition that Simenson might once again refuse to file the defendants' "legal" documents constituted sufficient circumstantial evidence to authenticate the Simenson letters and their accompanying default judgment documents, which contained the signatures of all three defendants. Thus, under Rule 901(b)(3), N.D.R.Ev., the signatures on the Simenson letters and the default judgment documents could be compared by the jury with the signatures on the alleged threatening letters to establish the latter's authenticity. See 5 Weinstein's Evidence, supra. Consequently, we conclude that the trial court did not abuse its discretion in refusing to exclude from the evidence the alleged threatening letters for lack of authentication.

The defendants assert that, given the nature of the "Constructive Notice and Demand" letters, they cannot be interpreted as being in violation of Sec. 12.1-12-06(2)(b) N.D.C.C., which provides that "[a] person is guilty of a class C felony if, with intent to influence another's official action as a public servant, he threatens: ... [t]o accuse anyone of a crime; ..." 2 We agree.

The First Amendment forbids the enactment of laws "abridging the freedom of speech ... or the right of the people peaceably to assemble and to petition the government for a redress of grievances."...

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