State v. Johnson

• Decision Date: 30 April 2009
• Docket Number: No. 20070248.,20070248.
• Citation: 764 N.W.2d 696,2009 ND 76
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Steven Lennard JOHNSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

764 N.W.2d 696

2009 ND 76

STATE of North Dakota, Plaintiff and Appellee v. Steven Lennard JOHNSON, Defendant and Appellant.

No. 20070248.

Supreme Court of North Dakota.

April 30, 2009.

Peter D. Welte, Assistant State's Attorney, Grand Forks, ND, for plaintiff and appellee. Submitted on brief.

Benjamin C. Pulkrabek (argued), Mandan, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Steven Lennard Johnson appealed from a criminal judgment finding him guilty of failing to register as a sex offender. We affirm, holding the district court did not err by failing to instruct the jury on the affirmative defense of mistake of law, the prosecutor did not refer to Johnson's right to remain silent during trial, the district court did not err when it denied Johnson's motion for a new trial, and there was sufficient evidence to convict Johnson of failing to register as a sex offender.

I.

[¶ 2] In July of 2005, Steven Lennard Johnson was released from prison after completing a sentence for a sex offense. Upon his discharge, Johnson signed two North Dakota Offender Registration forms, attesting that he understood he "must register within ten days of entering the city or county in which I will reside, attend school, or work and that, if I should change my residence, school, or work address, I must notify, in writing, the law enforcement agencies where I am registered of my intended new address at least ten days prior to assuming that new address." (emphasis in original).

[¶ 3] In August of 2005, Johnson began employment with LM Glasfiber in Grand Forks and filled out a Change of Registration Form with the state. However, Johnson's last day of work with the company was on September 2, 2005, and he was inactivated from LM Glasfiber's system on October 18, 2005. Johnson did not submit a change of registration form with the state within ten days following either his last day of work or inactivation from the system. He was subsequently charged with violating N.D.C.C. § 12.1-32-15 which requires that when an offender has a change in address, the offender must inform law enforcement within ten days of such a change. See State v. Jackson, 2005 ND 137, ¶ 11, 701 N.W.2d 887 (holding that a change in employment address triggers the statutory requirement the offender must notify law enforcement of the change).

[¶ 4] Before trial, Johnson, representing himself, submitted his requested jury instructions to the district court, that included an instruction for the affirmative defense of mistake of law. Before the trial began the court indicated it had not received the proposed jury instructions from Johnson, but the court reviewed the proposed jury instructions with both parties on multiple occasions during the trial proceedings. At no time was the specific instruction on mistake of fact mentioned by anyone during these conferences, nor were any objections made as to its absence in the proposed instructions.

[¶ 5] At trial, Johnson did not introduce evidence which would indicate he attempted to discover whether he was required to change his registration at the time his employment with LM Glasfiber ended. Rather, Johnson attempted to prove no one had proactively informed him that he was required to change his registration after leaving employment. Detective Duane Simon and Officer Derrik Zimmel of the Grand Forks Police Department both testified at trial that the statute does not expressly state that a sex offender has to change their registration when the offender simply becomes unemployed, as opposed to changing one place of employment for another. Milton Webb, another sex offender, testified for the defense, stating he had never registered within ten days of leaving employment, nor had he heard of such a requirement.

[¶ 6] After the State rested, Johnson moved for acquittal, arguing there was insufficient evidence to convict him. The court denied Johnson's motion. During the State's closing argument, the prosecutor read aloud the instruction regarding proof of intent. The actual jury instruction given to the jury on this issue stated the jury "may consider any statement made or act done or omitted by the Defendant." The transcript of the prosecutor's closing statements indicates that, as he read the instruction aloud to the jury, he stated they "may consider ... any statement made or acted on or omitted by the Defendant." After deliberations the jury found Johnson guilty of failure to register as a sex offender.

[¶ 7] The district court granted Johnson's subsequent motion to reduce his conviction from a class C felony to a class A misdemeanor, as he had not been "previously convicted" of the same offense as considered by N.D.C.C. § 12.1-32-15(9). Johnson also moved for a new trial, arguing that two additional witnesses he had intended to call at trial would have lead to his acquittal had they not been unavailable on the day of the trial. Both witnesses were sex offenders who would have provided testimony that they had not known of nor followed any statute requiring registration when leaving a place of employment. The district court denied Johnson's motion, finding that Johnson had not shown he was prejudiced by the unavailability of those witnesses because the law requires sex offenders to change their registration when leaving a place of employment regardless of whether other sex offenders followed the statute.

[¶ 8] On appeal, Johnson argues the district court erred by failing to instruct the jury on the affirmative defense of mistake of law. Johnson further argues his conviction should be reversed because the prosecutor referred to his right to remain silent, the district court erred when it denied his motion for a new trial, and there was insufficient evidence to convict him of failing to register as a sex offender.

II.

[¶ 9] Johnson alleges the district court erred by failing to instruct the jury on the affirmative defense of mistake of law. Johnson admits he did not object to the district court's omission of the mistake-of-law instruction; however, Johnson contends this Court may still notice the district court's omission as obvious error.

[¶ 10] When the district court informs the parties to a criminal action of its proposed jury instructions, it must give the parties an opportunity to object on the record to the instructions. N.D.R.Crim.P. 30(b). A party must object to an instruction, or the failure to give an instruction, on the record. N.D.R.Crim.P. 30(c); see also State v. Olander, 1998 ND 50, ¶ 9, 575 N.W.2d 658 ("[I]f the court gives counsel an opportunity to object to proposed instructions, counsel must designate the omissions of instructions that are objectionable and thereafter only the omissions so designated are deemed excepted to by counsel."). However, where the issue of an omitted instruction has not been properly preserved for appellate review by objection, this Court may nevertheless inquire as to whether the alleged error constitutes an obvious error which affects the substantial rights of the defendant. State v. Demery, 331 N.W.2d 7, 11 (N.D.1983); see also N.D.R.Crim.P. 52(b) ("An obvious error or defect that affects substantial rights may be considered even though it was not brought to the court's attention.").

[¶ 11] This Court has previously stated the standard of review in considering whether obvious error has occurred:

The power to notice obvious error is one we exercise cautiously and only in exceptional circumstances. It should be exercised only where a serious injustice has been done to the defendant. In assessing the possibility of error concerning substantial rights under Rule 52(b), we examine the entire record and the probable effect of the actions alleged to be error in light of all the evidence.

State v. Johnson, 379 N.W.2d 291, 292-93 (N.D.1986) (internal citations omitted). In cases of nonconstitutional error where a court has failed to provide a jury instruction and there was no objection by the aggrieved party, our task is to determine whether the error had a significant impact upon the verdict. State v. Kraft, 413 N.W.2d 303, 308 (N.D.1987).

[¶ 12] The affirmative defense of mistake of law is circumscribed:

Except as otherwise expressly provided, a person's good faith belief that conduct does not constitute a crime is an affirmative defense if he acted in reasonable reliance upon a statement of the law contained in:

1. A statute or other enactment.

2. A judicial decision, opinion, order, or judgment.

3. An administrative order or grant of permission.

4. An official interpretation of the public servant or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the crime.

N.D.C.C. § 12.1-05-09. We have previously explained the origins of the mistake-of-law defense by quoting from the official commentaries from the draftsmen of the proposed Federal Criminal Code, who noted that the defense was available for one "who has taken affirmative steps to assure himself that conduct in which he proposes to engage will not violate the law and ... who, as a result of having taken such steps and in reliance on whatever information he may already have had, believes reasonably and firmly that the conduct will not violate the law." State v. Lang, 378 N.W.2d 205, 208 (N.D.1985) (quoting Comment on Mistake: §§ 304 and 610, Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. 1, P. 139 (1970)). The commentary continues by observing that the requirement that such a person make reasonable effort to determine whether his conduct constitutes an offense ensures the mistake of law defense is allowed "only if the mistake is reasonable not only with respect to the information which a person has and its source, but also with respect to other information which he could reasonably have obtained from other sources." Id.

[¶ 13] In Lang, the appellant had not presented evidence to establish he...