State v. Jacob, 20060103.

• Decision Date: 28 November 2006
• Docket Number: No. 20060103.,20060103.
• Citation: 2006 ND 246,724 N.W.2d 118
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Kenneth Albin JACOB, Jr., Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 118

724 N.W.2d 118

2006 ND 246

STATE of North Dakota, Plaintiff and Appellee v. Kenneth Albin JACOB, Jr., Defendant and Appellant.

No. 20060103.

Supreme Court of North Dakota.

November 28, 2006.

Mark R. Boening (argued), Assistant State's Attorney, Fargo, N.D., and Christene Beaupre, third-year law student, appearing under the Rule on the Limited Practice of Law by Law Students, for plaintiff and appellee.

Steven D. Mottinger, Fargo, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Kenneth Jacob, Jr., appeals after a jury found him guilty of leaving the scene of an accident involving death, a class B felony. Concluding it is legally and factually possible for a jury to find Jacob not guilty beyond a reasonable doubt of negligent homicide and guilty beyond a reasonable doubt of leaving the scene of an accident involving death, we affirm.

I

[¶ 2] Jacob, who has nearly 20 years of trucking experience, testified that he was driving a semi-tractor trailer from western North Dakota to his home in Minnesota when he stopped to see his brother at a Fargo tavern at about 11 p.m. on a Friday night in June. Jacob testified that he parked his truck in a lot across the street from the bar, locked both the driver and passenger doors, urinated "out behind the rear tires," and then walked across the street into the bar. Two witnesses sitting in a van in the bar's parking lot testified they noticed Jacob get out of his truck, go around the front of the truck to the passenger side, bend down, and then go into the bar. The witnesses testified they noticed this activity because they had been watching another man, obviously drunk, stagger about and eventually disappear behind Jacob's truck. The two witnesses testified that when Jacob emerged from the bar, having stayed inside only five minutes, he looked toward the back of his truck and yelled something. One witness characterized it as an "angry yell." Jacob testified that he then got into his truck, shifted and "got locked in reverse by accident," backed up several feet—the trailer rocked—and then drove immediately from the scene. Jacob testified the truck was old and the transmission was "sloppy." Jacob testified that when he got the truck moving forward he also "felt the trailer rock again a little bit back there . . . [and] assume[d][he] went through a hole or over a small bump in the lot." The witnesses testified that after Jacob pulled away, they saw a man, later identified as Stephen Nelson, lying in the parking lot where Jacob's truck had been parked. An autopsy revealed that Nelson died from multiple blunt force injuries due to a pedestrian-motor vehicle collision and that the man had a blood-alcohol content of 0.42 percent. Another witness testified that he saw Jacob's truck, which had "no lights on at all," speeding away on a road heading east away from Fargo. That witness later notified police about seeing a truck matching the description given by a news bulletin of a truck possibly involved in the killing of a man at a Fargo bar's parking lot. Jacob testified that he had been having electrical problems with his truck and that when his headlights completely failed, he stopped at an abandoned truck stop to spend the night. Jacob testified that he arrived at his place of employment later that Saturday and pressure-washed his truck as company policy required. Four days later, Fargo police arrested Jacob at a construction site in Cass County.

[¶ 3] Jacob was charged with murder, a class AA felony, and leaving the scene of an accident involving death, a class B felony. At the close of the State's case, Jacob moved for a judgment of acquittal under N.D.R.Crim.P. 29, which the district court denied. A jury found Jacob not guilty of both murder and the lesser included offense of negligent homicide, but guilty of leaving the scene of an accident involving death. Jacob moved for a new trial under N.D.R.Crim.P. 33(c), contending the evidence at trial was inconsistent with the verdicts; the district court denied the motion. Jacob appealed from the criminal judgment.

[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 29-28-06.

II

[¶ 5] Jacob argues that the district court erred in denying his Rule 29 motion for a judgment of acquittal because, as a matter of law, there was no evidence to show that he knew he had struck a person with his semi-tractor trailer.

[¶ 6] Because Jacob timely moved for an acquittal under N.D.R.Crim.P. 29, he preserved the issue of sufficiency of the evidence for appellate review. State v. Steen, 2000 ND 152, ¶ 16, 615 N.W.2d 555. The standard of review for an appeal based on the sufficiency of the evidence is deferential to the jury's verdict. State v. Laib, 2005 ND 191, ¶ 6, 705 N.W.2d 815. "This Court will reverse a conviction on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt." Steen, at ¶ 17.

[¶ 7] The jury found Jacob guilty under N.D.C.C. § 39-08-04, which provides in part:

1. The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop or return with the vehicle as close as possible to the scene of the accident and in every event shall remain at the scene of the accident until that driver has fulfilled the requirements of section 39-08-06 [Duty to give information and render aid]. Every stop required by this section must be made without obstructing traffic more than is necessary.

2. Any person failing to comply with the requirements of this section under circumstances involving personal injury is guilty of a class A misdemeanor. Any person negligently failing to comply with the requirements of this section under circumstances involving serious personal injury is guilty of a class C felony. Any person negligently failing to comply with the requirements of this section under circumstances involving death is guilty of a class B felony.

N.D.C.C. § 39-08-04(1), (2) (emphasis added). Without objection from the State, the jury was instructed that a person acts negligently "if he engages in the conduct in unreasonable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct." N.D.C.C. § 12.1-02-02(1)(d). Therefore, Jacob's argument that he did not know he hit a person does not apply the proper culpability standard provided in N.D.C.C. § 39-08-04.

[¶ 8] Here, the jury heard eyewitness testimony regarding Jacob's actions around his truck before he entered the bar. One witness even testified to having seen part of the decedent's body protruding from beneath the truck before it was run over. The jury heard testimony that Jacob walked around the front of his truck and spent up to 10 minutes outside the truck near the middle of the trailer. After Jacob left the bar, witnesses testified that he stood on the driver's side step and yelled something. Jacob testified that he felt the trailer rock when he backed up the truck and when he drove forward after eventually putting the truck in a forward gear. The autopsy revealed multiple injuries to various parts of the decedent's body rather than a single injury to only one part of the body. A jury could have rationally found from this evidence that the "bump" or "rock" Jacob experienced was more significant than running over a hole in the parking lot. Jacob testified that he made a loop and pulled into the lot across from the bar. If that lot had been rutted or full of bumps or holes, it would have been reasonable for Jacob to have noticed them upon pulling in and parking. Only upon backing up did he feel the bump and then again when he drove back over that same area after shifting the truck into a forward gear. The witnesses' testimony regarding the amount of time Jacob spent around his truck makes the jury's conclusion that Jacob acted negligently by leaving the scene even more reasonable because it seems more likely he would have known a drunk man was in the vicinity and could have been the source of the bump, even if he did not think the man was behind the truck when he backed up. He failed to stop and at least check on his truck, which seems counterintuitive given his testimony about electrical problems he had been having, the age of the truck, and the sloppiness of the transmission. Therefore, the district court properly denied the Rule 29 motion for acquittal.

III

[¶ 9] Jacob argues that the jury verdict was inconsistent in finding him guilty of leaving the scene of an accident but not guilty of negligent homicide, because both require negligence.

[¶ 10] The standard for reconciling a jury verdict is whether the verdict is legally inconsistent. State v. Jahner, 2003 ND 36, ¶ 17, 657 N.W.2d 266; accord State v. McClary, 2004 ND 98, ¶ 16, 679 N.W.2d 455 (holding that the jury's acquittal for murder and conviction for abuse or neglect of a child could be rationally reconciled and did not represent inconsistent verdicts). In Jahner we said:

Strict standards of logical consistency need not be applied to jury verdicts in criminal cases. Reconciliation of a verdict, therefore, includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.

2003 ND 36, ¶ 19, 657 N.W.2d 266 (internal quotations and citations omitted).

[¶ 11] The district court found that the...