State v. Heart

• Citation: 334 N.W.2d 479
• Decision Date: 26 May 1983
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Maximillion A. HEART, a/k/a Dayo H. Nagel, Defendant and Appellant. o. 879.
• Court: United States State Supreme Court of North Dakota

Page 479

334 N.W.2d 479

STATE of North Dakota, Plaintiff and Appellee, v. Maximillion A. HEART, a/k/a Dayo H. Nagel, Defendant and Appellant.

Cr. No. 879.

Supreme Court of North Dakota.

May 26, 1983.

Arne F. Boyum, State's Atty., Rolla, for plaintiff and appellee.

Kent L. Johnson, Teevens, Johnson, Montgomery, Minot, and Thomas Schoppert, New Town, for defendant and appellant; argued by Thomas Schoppert, New Town; Kent L. Johnson, Minot, on brief.

PEDERSON, Justice.

Heart was tried and convicted of committing the class B felony--possession of marijuana with intent to deliver (Sec. 19-03.1-23(1), NDCC). He was tried before a jury jointly with Scott R. Rougemont and was sentenced to serve four years in the North Dakota penitentiary (Sec. 12.1-32-01(3), NDCC). The last two and one-half years of the sentence were suspended. Heart appealed and we affirm the judgment of conviction and the sentence.

At 7:30 in the evening of August 12, 1980, Constable Edward Gordon Knight of the Royal Canadian Mounted Police telephoned Rolette County Sheriff Bryant Mueller to inform him that later that evening an illicit drug transaction would occur at Kelvin's Klinic, a rural Rolette County bar located a few miles south of the United States-Canadian border on U.S. Highway 281--N.D. Highway 3. Knight reported that the participants would be Scott R. Rougemont, an American, and Lawrence Dick, a Canadian. Knight, whose source of information has not been questioned, furnished a description of Rougemont and of Dick and of the vehicles each would be driving.

"Stakeouts" were accordingly placed inside and outside Kelvin's Klinic, along the route where N.D. Highway 43 intersects U.S. Highway 281 (N.D. Highway 3), and at the Canadian Port of Entry. Because one of the issues raised on this appeal is insufficiency of the evidence, we will describe the events that occurred that night from the evidence viewed in the light most favorable to the verdict. See State v. Sheldon, 301 N.W.2d 604 (N.D.1980), cert. denied, 450 U.S. 1002, 101 S.Ct. 1711, 68 L.Ed.2d 204 (1981). The conviction is dependent upon circumstantial evidence.

A deputy sheriff, Rod Trottier, accompanied by a police officer from the City of Rolette, was stationed in Kelvin's Klinic and, at about 10:30 p.m., two men arrived, one of whom they readily identified as Scott Rougemont. The other person was later determined to be Maximillion Alexander Heart, also known as Dayo Harry Nagel, Jr. Outside the bar was parked a 1977 model Oldsmobile Toronado that matched the description previously furnished by Constable Knight. Deputy Trottier looked through the windows of the Toronado and saw a large cardboard box in the back seat. The sighting of the box was reported by radio to Sheriff Mueller, who was observing the Toronado with binoculars from across the highway, to another deputy sheriff, Lyle Prouty, and to two members of the United States Border Patrol, stationed at the intersection of U.S. Highway 281 (N.D. Highway 3) and N.D. Highway 43.

Lawrence Dick, the Canadian whom Constable Knight reported as a participant in the drug transaction and who lives in Boissevain Manitoba, a few miles north of the United States-Canadian border, did not show up at Kelvin's Klinic that night. When the bar closed at about midnight, Rougemont and Heart got into the Toronado and drove north toward the United States-Canadian border, followed at a distance by both Sheriff Mueller and Deputy Trottier. When the Toronado passed N.D. Highway 43, it was thereafter followed very closely by United States Border Patrolman Carl Greene and Tony Davis in an unmarked car.

When the Toronado reached the south edge of the International Peace Gardens (about one-half mile south of the United States-Canadian border), it turned off the highway onto an unpaved road, headed west for a short distance, and stopped at a low spot where, for a short time, it was out of sight of all pursuers. The two United States border patrolmen followed, moving very slowly past the Toronado parked on the narrow roadway. In their headlights they saw Heart returning to the Toronado from the ditch on the north side of the road.

The Toronado turned around and returned to U.S. Highway 281 (N.D. Highway 3) and headed for the United States-Canadian border. The two United States border patrolmen also turned around and, within minutes, all pursuers arrived at the Canadian Customs Port of Entry where the Toronado was being meticulously searched. When Sheriff Mueller arrived, he inquired about the box in the back seat and upon learning that there was no box but only a big German Shepherd dog, he asked the two United States border patrolmen to show him the spot where the Toronado had stopped on the road along the edge of the Peace Gardens.

The sheriff and the border patrolmen returned to the location, which was a low spot along the south edge of the Peace Gardens, and found a large cardboard box containing 20 clear plastic bags, each containing about one-half pound of marijuana. The box was located in the north ditch of the road about 10 paces from the roadway. Sheriff Mueller took custody of the box and the contents, and returned to the Port of Entry where the search was still underway. Rougemont and Heart were arrested, charged, and ultimately both were convicted of possession of marijuana with intent to deliver.

Although there are some minor inconsistencies in the testimony of the State's witnesses, who were sequestered, and although Heart testified that there was no box in the Toronado and that the stop in the low spot on the unimproved road off the highway was to permit his dog to relieve himself, the allegation that the evidence is insufficient is without merit.

"At the trial court level, circumstantial evidence must be conclusive and must exclude every reasonable hypothesis of innocence, but on the appellate court level the role of ...