State v. Hoehn

• Decision Date: 22 August 2019
• Docket Number: No. 20180400,20180400
• Parties: STATE of North Dakota, Plaintiff and Appellee v. William Henry HOEHN, Defendant and Appellant
• Court: North Dakota Supreme Court

932 N.W.2d 553

STATE of North Dakota, Plaintiff and Appellee

v.William Henry HOEHN, Defendant and Appellant

No. 20180400

Supreme Court of North Dakota.

Filed August 22, 2019

Leah J. Viste, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant.

Tufte, Justice.

[¶1] William Hoehn appealed from a criminal judgment of conviction for conspiracy to commit kidnapping and giving false information to law enforcement. The district court found Hoehn had previously been convicted of a similar offense and sentenced him as a dangerous special offender to life in prison. On appeal, Hoehn argues the district court erred in its dangerous special offender finding, in applying a life expectancy table not authorized by statute, in failing to advise him of the maximum sentence prior to accepting his guilty plea, and in listing kidnapping rather than conspiracy to commit kidnapping on the amended judgment. We affirm the conviction, vacate the sentence, and remand for resentencing without application of the dangerous special offender statute.

I

[¶2] Hoehn was in a relationship with Brooke Crews. Crews killed Savanna LaFontaine-Greywind by cutting open her abdomen and removing her pre-term baby. Hoehn arrived at the home he shared with Crews after Crews had killed Greywind and taken the baby. He then helped to clean up evidence of the crime, including hiding Greywind’s body in a closet, wrapped in garbage bags. Hoehn also helped Crews hide the baby from Greywind’s family and law enforcement. Hoehn carried the baby around in a book bag when in public.

[¶3] Hoehn was charged with three offenses: conspiracy to commit murder, conspiracy to commit kidnapping, and false information to law enforcement. Approximately three months after Hoehn’s initial appearance on these charges, the State filed a notice of intent to sentence Hoehn as a dangerous special offender. Hoehn pled guilty to conspiracy to commit kidnapping and false information to law enforcement and proceeded to trial on conspiracy to commit murder. The jury acquitted Hoehn of conspiracy to commit murder. Hoehn now appeals both his sentence and conviction on the kidnapping charge.

II

[¶4] An offender who qualifies as a "dangerous special offender" may be given an extended sentence. N.D.C.C. § 12.1-32-09(1). "This court reviews [dangerous special] offender proceedings and the district court’s application of a sentencing enhancement under N.D.C.C. § 12.1-32-09 for an abuse of discretion." State v. Lyon , 2019 ND 21, ¶ 5, 921 N.W.2d 441 ; State v. Clark , 2012 ND 135, ¶ 18, 818 N.W.2d 739. "A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law." State v. Cain , 2011 ND 213, ¶ 16, 806 N.W.2d 597.

[¶5] To find Hoehn to be a dangerous special offender and extend his sentence, N.D.C.C. § 12.1-32-09(1)(d) requires a finding that (1) he "was convicted of an offense that seriously endangered the life of another person" and (2) he "had previously been convicted of a similar offense." The jury, or the court if a jury is waived, must conduct a hearing to determine beyond a reasonable doubt whether an offender is a dangerous special offender. N.D.C.C. § 12.1-32-09(4). Hoehn waived his right to a jury trial on the dangerous special offender elements. Applying N.D.C.C. § 12.1-32-09(1)(d), the district court found beyond a reasonable doubt that Hoehn is a dangerous special offender because, by his guilty plea to conspiracy to commit kidnapping, he had been "convicted of an offense that seriously endangered the life of another person" and he had "been convicted of a similar offense," a 2012 conviction for child abuse.

[¶6] To prove Hoehn "had previously been convicted of a similar offense" under N.D.C.C. § 12.1-32-09(1)(d), the State offered a 2012 conviction for abuse or neglect of a child. Hoehn pled guilty to the charge, which was a class B felony under N.D.C.C. § 14-09-22(1)(a) (2009). Although the term "similar offense" has been in the statutory language of N.D.C.C. § 12.1-32-09(1)(d) since it was originally enacted in 1973, see N.D.C.C. § 12.1-32-09(1)(d) (1973) and State v. Wells , 276 N.W.2d 679 (N.D. 1979), neither the Century Code nor our cases have defined or explained the term. Here, the district court did not explain why it found Hoehn’s kidnapping offense to be similar to his 2012 conviction for child abuse.

[¶7] When used as an adjective, "similar" is defined as "1: having characteristics in common: [being] very much alike ... [or] 2: alike in substance or essentials." Webster’s Third New International Dictionary 2120 (16th ed. 1971). When defined as a noun subject, "similar" is defined as "one that resembles another." Id. As an adjective, "equivalent" is defined as "like in signification or import ... corresponding or virtually identical esp[ecially] in effect or function." Webster’s Third New International Dictionary 769 (16th ed. 1971). As a noun subject, "equivalent" is defined as "one that is equivalent (as in value, meaning, or effect)." Id. These definitions indicate that two things that are "equivalent" have more characteristics in common than two things that are "similar." The difference is one of degree. The resemblance need not be as strong for two offenses to be similar as for two offenses to be equivalent. We have examined what constitutes an offense "equivalent" to a North Dakota offense of driving under the influence, Walter v. North Dakota State Highway Comm'r , 391 N.W.2d 155 (N.D. 1986), and to North Dakota offenses requiring registration as a sex offender, Denault v. State , 2017 ND 167, 898 N.W.2d 452. We consider cases discussing "equivalent" offenses by analogy to help inform our analysis here of what are "similar offenses."

[¶8] To be equivalent offenses, the statutes do not need to be identical. Id. at ¶ 19 (quoting Walter , 391 N.W.2d at 160 ). As we do when considering whether offenses are equivalent, to determine whether two offenses are similar, we examine both the elements of the two statutes and, if necessary, also the facts underlying each conviction. Because similar assaultive conduct may for a variety of reasons result in charges for disorderly conduct, simple assault, aggravated assault, or attempted murder, a simple comparison of statutes may be insufficient to determine whether two offenses are similar.

A

[¶9] In 2011, Hoehn was charged with the crime of abuse or neglect of a child in violation of N.D.C.C. § 14-09-22(1)(a) (2009) ("child abuse statute"):

[A] parent adult family or household member, guardian, or other custodian of any child, who willfully commits any of the following offenses [and] the victim of an offense under subdivision a is under the age of six years [is guilty of] a class B felony:

a. Inflicts, or allows to be inflicted, upon the child, bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1-01-04 or mental injury.

The statute defining the kidnapping offense at issue here states:

A person is guilty of kidnapping if he abducts another or, having abducted another, continues to restrain him with intent to do the following:

....

f. Interfere with the performance of any governmental or political function.

N.D.C.C. § 12.1-18-01(1). Kidnapping is a class A felony. N.D.C.C. § 12.1-18-01(2).

[¶10] We begin by comparing the elements of the two statutes. The child abuse statute requires a culpability of "willfully." Conspiracy to commit kidnapping requires a culpability of "intentional." Culpability of "willfully" is a lower standard than "intentionally." Where the prior offense has an equal or higher culpability requirement, it may be similar. Where the prior offense has a lower culpability requirement, it is less similar. See Walter , 391 N.W.2d at 159.

[¶11] In Walter , this court distinguished Shinault v. Commonwealth , 228 Va. 269, 321 S.E.2d 652 (1984), which examined a North Carolina DUI statute to determine whether it was "substantially similar" to a Virginia offense and thus counted as a prior enhancing offense. Walter , 391 N.W.2d at 159. The Virginia Supreme Court rejected the argument that a North Carolina statute was substantially similar because it was easier to establish guilt under the per se North Carolina statute compared with the Virginia statute providing only a rebuttable presumption of guilt upon evidence of a given alcohol concentration. Shinault , 321 S.E.2d at 654. In Walter , this Court reasoned that it was faced with a prior offense under a statute making it more difficult to convict—the reverse of the situation presented in Shinault . Walter , 391 N.W.2d at 159. In Walter , we concluded the Montana DUI statute was "equivalent" because the Montana "statute makes it more difficult to establish the guilt of the accused" and despite differences in the penalties. Id.

[¶12] The child abuse statute requires that the defendant must have inflicted harm on the victim and must have caused some form of injury. The child abuse statute also requires that the victim be a child. The kidnapping statute requires none of these elements. The kidnapping statute requires an abduction and an interference with a governmental or political function. The child abuse statute requires neither of these. Both the child abuse and kidnapping offenses were charged as a felony. "The penalties of an offense, however, do not affect the elements which must be established to convict a person of that offense." Walter , 391 N.W.2d at 159 ; but see Denault , 2017 ND 167, ¶ 19, 898 N.W.2d 452 (quoting Walter , at 160 ) (suggesting that a substantial difference in the authorized penalties may lead to a conclusion that the offenses are not similar).

[¶13] We conclude that a comparison of the statutory elements does not support a finding that a child abuse offense is similar to a kidnapping offense.

B

[¶14] An offense has statutory elements, but it is defined as...