State v. Johnson, Cr. N

• Decision Date: 28 June 1988
• Docket Number: Cr. N
• Citation: 425 N.W.2d 903
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Wayde Allen JOHNSON, Defendant and Appellant. o. 870392.
• Court: North Dakota Supreme Court

Page 903

425 N.W.2d 903

STATE of North Dakota, Plaintiff and Appellee, v. Wayde Allen JOHNSON, Defendant and Appellant.

Cr. No. 870392.

Supreme Court of North Dakota.

June 28, 1988.

Edward J. Murphy (argued), Fargo, for defendant and appellant.

Melody R.J. Jensen (argued), Asst. State's Atty., Fargo, for plaintiff and appellee.

LEVINE, Justice.

Defendant Wayde Allen Johnson appeals from a judgment of conviction of theft of property under NDCC Sec. 12.1-23-02(1). We reverse.

On February 12, 1987, at 1:30 a.m., Kim Barsness drove his 1983 Chevrolet pickup to a party at trailer No. 85 in the Meadowpark Trailer Court in Fargo, North Dakota. His ignition key was broken and remained at all times in the ignition. An hour or two later, Barsness left the party only to find his truck missing. He reported the theft to the police.

Defendant Johnson was also at a party, at trailer No. 51, located three-quarters of a block away from the trailer Barsness visited. Johnson testified that he left his party between 2:30 and 3:00 a.m.

At 6:45 a.m. a West Fargo police officer found the stolen pickup parked in the righthand lane of traffic, near the intersection of First Street and Thirteenth Avenue in West Fargo. The truck's engine was running, its headlights and left blinker were on, and Johnson was seated inside, asleep over the steering wheel. Johnson had vomited on himself and on the seat and floorboard of the driver's side of the pickup.

Johnson testified that he was standing outside of trailer No. 51 when Barsness' pickup stopped in front of him and the driver asked if there was a party in progress. Johnson responded that the police had broken up the party. Johnson asked for a ride home and after he got into the truck he passed out. Johnson testified that he was later awakened by the driver and told that the driver would be "right back." Johnson fell asleep again. Later Johnson awoke, moved into the driver's seat to turn on the heater, and fell asleep again.

Johnson waived jury trial and was convicted of theft of property under NDCC Sec. 12.1-23-02(1) in the Cass County district court. Johnson appealed.

Johnson takes issue with the following remarks by the trial judge at the end of the trial:

"THE COURT: I can't find the defendant guilty beyond a reasonable doubt of taking that truck, but he certainly was exercising unauthorized control over it. The only proof we have is that the owner didn't grant anybody permission to use that truck. If Mr. Johnson is found in the truck three or four hours later behind the wheel with the engine running, with the signal lights on and the headlights--I don't recall if the headlights were on--signal lights were on, that's exercising unauthorized control.

"MR. MURPHY: Not if you don't know the car is stolen, Your Honor.

"THE COURT: Oh, I can--I don't believe that's right, Mr. Murphy. He's not charged with receiving stolen property, he's charged with exercising unauthorized control.

"Court finds the defendant guilty."

Johnson first argues that the trial judge's comments that the State did not have to prove Johnson knew the pickup was stolen, indicate that the judge eliminated the culpability requirement of "knowingly," contained in NDCC Sec. 12.1-23-02(1). We disagree.

NDCC Sec. 12.1-23-02 reads:

"A person is guilty of theft if he:

1. Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereof.

2. Knowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat; or

3. Knowingly receives, retains, or disposes of property of another which has been stolen, with intent to deprive the owner thereof."

To establish theft of property under NDCC Sec. 12.1-23-02(1), the State must prove three elements: (1) knowingly (2) takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another (3) with intent to deprive the owner thereof. See State v. Bourbeau, 250 N.W.2d 259 (N.D.1977).

The word "knowingly" applies to an actor who knows, or has a firm belief unaccompanied by substantial doubt, that he is engaging in the proscribed conduct. NDCC Sec. 12.1-02-02(1)(b); State v. Kaufman, 310 N.W.2d 709 (N.D.1981).

Ordinarily, where culpability is required, that kind of culpability is required with respect to every element of the conduct and to those attendant circumstances specified in the definition of the offense. NDCC Sec. 12.1-02-02(3)(a). This means that not only does the State have to prove defendant knowingly performed the proscribed act, i.e., taking or exercising control, but also that defendant knew of the existence of the specified attendant circumstances, i.e., that his control was unauthorized. Accordingly, in order to convict Johnson of theft of property by exercising unauthorized control, the State must prove that he knew he was exercising control over the property, and that he knew his control was unauthorized. See National Commission on Reform of Federal Criminal Laws, II Working Papers at 920 (1970). ¹

Thus, the trial court was correct when it observed that under subsection one of NDCC Sec. 12.1-23-02, knowledge that the property was stolen is not an element of the offense. Knowledge that the property was stolen is an element of theft of property under NDCC Sec. 12.1-23-02(3), which covers the crime of receiving stolen property, but is not an element which the State must prove under NDCC Sec. 12.1-23-02(1), under which defendant was charged and convicted in this case. Accordingly, we conclude that the trial court did not read "knowingly" out of NDCC Sec. 12.1-23-02(1) when it stated that "knowledge that the car was stolen" was not an element of the...