State v. Himmerick

• Decision Date: 27 April 1993
• Docket Number: Cr. N
• Citation: 499 N.W.2d 568
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. LaNora R. HIMMERICK, Defendant and Appellant. o. 920173.
• Court: North Dakota Supreme Court

Page 568

499 N.W.2d 568

STATE of North Dakota, Plaintiff and Appellee, v. LaNora R. HIMMERICK, Defendant and Appellant.

Cr. No. 920173.

Supreme Court of North Dakota.

April 27, 1993.

Robert Allan Freed, Asst. State's Atty., for plaintiff and appellee; submitted on brief.

William A. Mackenzie, Jamestown, for defendant and appellant; submitted on brief.

NEUMANN, Justice.

LaNora R. Himmerick appeals from an order deferring imposition of sentence for the crime of false statement in violation of Section 12.1-11-02(2)(b) and (e), N.D.C.C., entered by the Stutsman County Court. We affirm.

LaNora Himmerick and Brian Himmerick were married in 1984 and had two daughters during their marriage. They divorced in 1989. LaNora applied for and received various welfare benefits offered through Stutsman County Social Services (Social Services). In the late months of 1990, LaNora and Brian attempted reconciliation. LaNora notified Social Services that Brian was returning to the household, and her welfare benefits were discontinued. The attempted reconciliation failed, Brian left the household, and LaNora reapplied for and received welfare benefits in the summer of 1991.

On November 18, 1991, Social Services received a letter from Michael Barnett, LaNora's brother-in-law, alleging that LaNora was defrauding the welfare system. The letter charged that Brian had returned to the household, LaNora had failed to report his return to Social Services, and yet she continued to receive full benefits. Upon investigation, Social Services determined that LaNora had received an overpayment for the months of November and December, 1991, due to Brian's return to the household. The investigators also decided that LaNora owed Social Services a total refund for those two months. Social Services signed a criminal complaint in Stutsman County Court against LaNora for the crime of false statement in violation of Section 12.1-11-02(2)(b) and (e), N.D.C.C. The complaint was based on documents LaNora was required to file with Social Services each month to receive benefits. Social Services accused LaNora of providing false information in those documents. Following a bench trial, LaNora was found guilty, received a deferred imposition of sentence for one year, and had a civil judgment in the amount of $3,473.07 entered against her. This appeal, based on the sufficiency of the evidence, followed.

Before reaching the merits of LaNora's appeal, we must first resolve some troubling procedural matters. The first concern is whether this Court has jurisdiction over LaNora's appeal from the order deferring imposition of sentence. Although neither party has raised this issue, "[t]he right of appeal in this state is governed by statute, and is a jurisdictional matter which we will consider sua sponte. This court has the duty to dismiss an appeal on its own motion if the attempted appeal fails for lack of jurisdiction." State v. Klocke, 419 N.W.2d 918, 919 (N.D.1988) (citation omitted).

There is a statutory provision specifically governing LaNora's appeal. In relevant part, it provides:

"Sentencing alternatives--Credit for time in custody--Diagnostic testing.

* * * * * *

4. A court, upon application or its own motion, may defer imposition of sentence. The court must place the defendant on probation during the period of deferment. An order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment."

Section 12.1-32-02(4), N.D.C.C. (emphasis added).

The problem with this appeal arises because, in LaNora's notice of appeal, she states that she is appealing from "the order deferring imposition of sentence dated May 29, 1992." The statute does not allow for an appeal directly from the order itself and neither does precedent from this Court. In State v. Kottenbroch, 319 N.W.2d 465 (N.D.1982), we held that an order deferring imposition of sentence is not an appealable order, however "it is reviewable upon appeal from a verdict or judgment." Id. at 471. See also State v. Coutts, 364 N.W.2d 88, 89 n. 1 (N.D.1985) (if a defendant appeals from the court's verdict or judgment, an order deferring imposition of sentence is reviewable).

In the record on appeal, there is no separate judgment entered, nor is there a separate verdict of guilt submitted by the trial court. Thus, at first blush, it appears that we should dismiss LaNora's appeal as not being from a judgment or verdict. However, Rule 37(b), N.D.R.Crim.P., and Rule 4(b), N.D.R.App.P., allow a notice of appeal, filed after the announcement of the verdict, decision, sentence, or order, but before the entry of the judgment, to be treated as filed after the entry of the judgment. While enlightening, those rules are of little avail to LaNora, as no judgment has ever been entered. More helpful to her is established precedent of this Court, which states:

"We have previously held that we will treat the notice of appeal as filed on the date judgment is entered, even though it may be a future or fictitious date, because it would serve no useful purpose to remand solely for purposes of entry of judgment before the merits of the case can be decided. State v. Garvey, 283 N.W.2d 153 (N.D.1979)."

State v. McMorrow, 286 N.W.2d 284, 286 n. 4 (N.D.1979) (emphasis added).

Additionally, upon further examination, we find that the opening paragraph of the trial court's order deferring imposition of sentence is equivalent to a verdict of guilt. It reads:

"WHEREAS, the defendant LANORA R. HIMMERICK, having appeared before the Court on the 29th day of May, 1992, for the crime of FALSE STATEMENT and after trial and the Court having found the defendant Guilty and defendant not having any legal cause to show why Judgment should not be pronounced against her, therefore the Court does adjudge and sentence LANORA R. HIMMERICK in the following manner; ...."

It is clear to us that the trial court intended the order to be its verdict of guilt, and its order deferring imposition of sentence. Thus, even though the trial court did not entitle the document "verdict," we conclude that the appeal is correctly within our jurisdiction. We reach this conclusion because we prefer to choose the substance of a document over its form. Such a concept is not novel to this Court, for we have previously said: "[S]tatutes conferring the right to appeal must be liberally construed, and ... in determining appealability it is not the label which controls but, rather, the effect." Kaiser v. State, 417 N.W.2d 175, 177 (N.D.1987) (quoting State v. Jelliff, 251 N.W.2d 1, 4 (N.D.1977)). The effect of the order of the trial court was to pronounce its verdict of guilt, and then proceed to defer imposition of LaNora's sentence. LaNora's appeal from that document is an appeal from the trial court's verdict.

The second procedural issue before us is whether LaNora waived her right to challenge the sufficiency of the evidence on appeal by failing to move for a judgment of acquittal during trial. We hold that, in her bench trial, merely by pleading "not guilty," LaNora challenged the sufficiency of the State's evidence, and preserved that issue for appellate review. In so holding, we are abrogating a well-established procedural requirement in criminal bench trial cases by overruling settled precedent of this Court. However, we view our departure from stare decisis justified by more recent developments in the United States Supreme Court and this Court. See infra note 1.

Prior to this opinion, we required parties to raise the issue of sufficiency of the evidence for appeal in some manner at the trial court level, be it in a bench trial or a jury trial. Generally, we have stated that if the defendant does not challenge the sufficiency of the evidence at trial, the defendant is precluded from raising the issue for the first time on appeal. See State v. Hepper, 316 N.W.2d 338, 342 (N.D.1982); State v. Garvey, 283 N.W.2d 153, 158 (N.D.1979); Braun v. Riskedahl, 150 N.W.2d 577, 581 (N.D.1967).

More specifically, this Court has held "many times that it will not review the sufficiency of the evidence unless the matter has been brought before the lower court either by a motion for a new trial or by a motion for an advised verdict [now properly a motion for a judgment of acquittal]." State v. Haakenson, 213 N.W.2d 394, 398 (N.D.1973) (emphasis added). ¹ See City of Fargo v. Gustafson, 462 N.W.2d 649 (N.D.1990); State v. Schaeffer, 450 N.W.2d 754 (N.D.1990); State v. Huwe, 413 N.W.2d 350 (N.D.1987); State v. Engebretson, 326 N.W.2d 212 (N.D.1982); State v. Smith, 238 N.W.2d 662 (N.D.1976); State v. Stevens, 238 N.W.2d 251 (N.D.1975); State v. Allen, 237 N.W.2d 154 (N.D.1975); State v. Berger, 234 N.W.2d 6 (N.D.1975); State v. Neset, 216 N.W.2d 285 (N.D.1974); State v. Gill, 154 N.W.2d 791 (N.D.1967); State v. Berger, 148 N.W.2d 331 (N.D.1966); State v. Timm, 146 N.W.2d 552 (N.D.1966); City of Dickinson v. Simonieg, 136 N.W.2d 126 (N.D.1965). These cases required a defendant to make a motion for judgment of acquittal during trial to preserve the issue of sufficiency of the evidence for appeal. In the past, absence of such a motion would not save the issue of sufficiency of the evidence for our review.

Today, we are more compelled to find that, in a bench trial, such a procedural requirement is unnecessary. Hereafter, the entry of a not guilty plea in a criminal bench trial case is adequate to preserve the issue of sufficiency of the evidence for appeal. To the extent that the above cases and others like them are in conflict with this opinion, they are overruled.

This new pronouncement does not, however, reach civil cases or criminal jury cases, nor does it apply to challenges based on the weight of the evidence. As explained in note 1 of this opinion, there is a significant difference between weight and sufficiency. It is because of this difference that we reach our decision here. When a party challenges the weight of the evidence, that party...