State v. Kopp, 1200

• Decision Date: 01 February 1988
• Docket Number: No. 1200,1200
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Terry KOPP, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 169

419 N.W.2d 169

STATE of North Dakota, Plaintiff and Appellee, v. Terry KOPP, Defendant and Appellant.

Crim. No. 1200.

Supreme Court of North Dakota.

Feb. 1, 1988.

James F. Twomey, Asst. States Atty., Fargo, for plaintiff and appellee.

Lundberg, Nodland, Lucas, Schulz & Lervick, PC, Bismarck, for defendant and appellant; argued by Thomas A. Dickson, Bismarck.

ERICKSTAD, Chief Justice.

Defendant, Terry Kopp, appeals from a criminal judgment rendered against her on July 9, 1986, for attempted theft of property. Terry's conviction resulted from a jury trial in which she was charged with conspiracy to commit arson, accomplice to arson, and attempted theft of property. She did not appeal from the order denying a new trial or from the order denying an arrest of the judgment against her. We affirm.

The origin of the offense for which Terry was convicted dates back to the early morning hours of April 17, 1983, when the house of Terry and Clinton Kopp incurred serious fire damage. Kopps' home is located approximately ten miles south of Fargo, North Dakota, in a rural development known as the "Enchanted Forest Subdivision." Evidence indicated the roof was destroyed beyond repair, but that the exterior and interior walls remained in place.

After the fire, Clinton and Terry Kopp signed a "SWORN STATEMENT IN PROOF OF LOSS." They claimed $200,850.00 in damages under the policy, including $68,805.00 for personal property. The Kopps itemized their personal belongings in the loss statement they submitted to their insurer, St. Paul Mercury Insurance Company. Terry's conviction stems from her alleged falsification of the loss statement.

Although Terry was acquitted of conspiracy to commit arson and accomplice to arson, knowledge of the facts surrounding the alleged arson is necessary for a complete understanding of this appeal. Clayton Runck, Jr., was charged with Clinton and Terry Kopp with conspiracy to commit arson and as an accomplice to arson. Pursuant to a pre-trial motion Terry's trial was severed from Runck's and Clinton Kopp's trial. The trial court also granted change of venue motions, and both trials were moved to Morton County, North Dakota.

Prior to their trial, both Runck and Clinton Kopp entered into plea agreements pursuant to Rule 11 of the North Dakota Rules of Criminal Procedure. Their plea agreements contained a provision which required truthful testimony regarding anyone's involvement in the arson and attempted property theft. Clinton and Terry Kopp were divorced before Terry's trial, and Clinton served as the State's principal witness against Terry.

During the trial, the State alleged Terry Kopp contacted Runck for the purpose of having the house destroyed by fire and that the Kopps filed an inflated insurance claim for damages to the house and for loss of personal property. To support its allegations, the State relied on the testimony of Clinton Kopp and more than twenty additional witnesses. We undertake here a brief summary of some of the relevant testimony.

Clinton testified that Terry contacted Clayton Runck, Jr., to arrange for the burning of their house. Federal agents, investigating ¹ Runck in connection with an alleged arson of an apartment building in Lidgerwood, North Dakota, during May of 1983, searched Runck's possessions and found a hand drawn map which directed the reader to the Kopps' house south of Fargo. Runck testified at a hearing that Terry Kopp gave him the map so that he could find the house to burn it. Terry admits drawing the map for Runck, but contends she drew the map because Runck asked where he could find Clinton.

On cross-examination during Terry's trial, Clinton was questioned about his plea agreement. He acknowledged that he would receive a one-year suspended sentence pursuant to the plea agreement and that by operation of state law the charge could be converted to a misdemeanor. Further on cross examination Clinton responded "[t]hat's correct" to the question: "And on top of that, arrangements were made and an agreement was reached with the attorney general's office of North Dakota that said that your liquor license wouldn't be in jeopardy?"

Terry testified that she filled out the proof of loss statement and that both she and Clinton provided the list of items damaged and their respective values. She also testified that she did not request a separate claim statement from the insurer. She admitted that the house had been for sale for several years; that she was making payments on the house; that she was behind in her payments on the second mortgage; and that her business, a western clothing store, was experiencing financial difficulty.

The State called several of the insurer's agents who testified, inter alia, that the value of the personal property in the Kopp home after the fire was between $6,000 and $10,000; that there were very few personal items in the home; and that the Kopp claim for $68,805 in damaged personal property did not comport with the agents' inspection of the Kopp residence after the fire.

Terry raises three issues on appeal. First, she asserts that she was denied due process under Article I, Section 12 of the North Dakota Constitution. Second, she argues that the trial court should have granted a new trial based on her discovery of new evidence, namely, a letter to the insurer in which she suggested that Clinton should file a separate loss claim. Finally, she asserts that the verdict is contrary to the greater weight of evidence.

Terry's failure to appeal from the orders denying a new trial and her failure to present the first and third issue to the trial court raise the question of whether or not her contentions are properly before us. We conclude that only the second issue is properly before us.

Judgment against Terry was entered on July 9, 1986. Prior to entry of judgment, Terry made a motion in arrest of judgment pursuant to Rule 34 of the North Dakota Rules of Criminal Procedure on March 20, 1986. She made a motion for new trial based on newly discovered evidence on April 14, 1986, and renewed the motion on June 30, 1986. Terry did not raise the weight of the evidence issue in the motion for new trial or in the renewal of the motion. On July 11, 1986, Terry appealed from the jury verdict and judgment. She did not appeal from the denial of her motion for a new trial or from the denial of her motion in an arrest of judgment.

In an effort to simplify an appeal to this Court, we said in State v. Haakenson, 213 N.W.2d 394, 399 (N.D.1973) that:

"The touchstones hereafter for an effective appeal on any proper issue should be (1) that the matter has been appropriately raised in the trial court so that the trial court can intelligently rule on it, and (2) that there be a valid appeal from the judgment. Any other traps for the unwary on the road to the appellate courthouse should be eliminated."

We have applied these criteria in both civil and criminal appeals. See Scientific Application, Inc. v. Delkamp, 303 N.W.2d 71, 77 (N.D.1981); State v. Bergeron, 326 N.W.2d 684, 686 (N.D.1982). These touchstones are not procedural technicalities nor arbitrary rules; they provide a basis for our jurisdiction and serve as a reminder that we are primarily a court of review, not a court which determines facts and considers legal issues anew.

An issue not raised in the trial court is generally not reviewable by this Court unless the issue constitutes "obvious error" under Rule 52(b), N.D.R.Crim.P. ² State v. Miller, 388 N.W.2d 522 (N.D.1986). Our authority to notice obvious error is exercised cautiously and only in exceptional situations where the defendant has suffered serious injustice. State v. Miller, supra; State v. Johnson, 379 N.W.2d 291 (N.D.1986), cert. denied, 475 U.S. 1141, 106 S.Ct. 1792, 90 L.Ed.2d 337. Terry's alleged denial of due process under the North Dakota Constitution is a novel argument which cannot be viewed as "obvious error" under Rule 52(b), N.D.R.Crim.P. Likewise, Terry's third issue, i.e., the jury verdict is against the weight of the evidence, cannot be viewed as an obvious error when there is ample evidence to support the jury verdict.

In her motion for a new trial, Terry raised only the issue of newly discovered evidence. Although Terry did not appeal from the order denying her motion for a new trial, we will consider the issue of newly discovered evidence because her motion was made and denied before the entry of judgment. Accordingly, the issue before us is whether or not the trial court abused its discretion in refusing to grant Terry a new trial on the basis of newly discovered evidence.

A motion for a new trial based on newly discovered evidence requires a showing that:

(1) the evidence was discovered after trial;

(2) failure to learn of the evidence during trial was not the result of defendant's lack of diligence;

(3) the newly discovered evidence is material to the issues at trial; and

(4) the weight and quality of the new evidence would likely produce an acquittal.

State v. Hegland, 355 N.W.2d 803, 805 (N.D.1984); State v. McLain, 312 N.W.2d 343, 346 (N.D.1981). The trial court's decision will not be set aside unless we find that denial of the motion was an abuse of discretion. State v. McLain at 346; State v. Smith, 153 N.W.2d 691 (N.D.1967); State v. Jager, 91 N.W.2d 337 (N.D.1958).

In denying Terry's motion for a new trial pursuant to Rule 33 of the North Dakota Rules of Criminal Procedure, the trial court concluded that Terry's failure to produce the letter at trial represented a lack of diligence. The trial court also concluded the letter to her insurer was not of such a nature that her acquittal would be probable in the event of a new trial. We agree. Although she allegedly discovered a carbon copy of the letter after trial, she should have been cognizant of it before trial, as she is the one who allegedly sent it. The record discloses that several of the items listed as destroyed were...