State v. Kraft

• Citation: 413 N.W.2d 303
• Decision Date: 29 September 1987
• Docket Number: No. 1213,1213
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Garold B. KRAFT, Defendant and Appellant. Crim.
• Court: United States State Supreme Court of North Dakota

Page 303

413 N.W.2d 303

STATE of North Dakota, Plaintiff and Appellee, v. Garold B. KRAFT, Defendant and Appellant.

Crim. No. 1213.

Supreme Court of North Dakota.

Sept. 29, 1987.

Patricia L. Burke, State's Atty., Bismarck, for plaintiff and appellee.

Lundberg, Nodland, Lucas & Schulz, Bismarck, for defendant and appellant; argued by Irvin B. Nodland, Bismarck.

GIERKE, Justice.

Garold B. Kraft (Kraft) appeals from a jury verdict convicting him of theft of property, a class C felony, pursuant to Secs. 12.1-23-02(1) and 12.1-23-05(2), N.D.C.C. We vacate the jury verdict and remand for a new trial.

In 1984, Garold Kraft was in the construction business and operated a company doing business as Kraft Construction in Bismarck, North Dakota. As a part of his business, Kraft would contract with customers for the sale and construction of metal buildings. These buildings were sold at specified dimensions with a specific amount of component parts which corresponded with the size of the building required. The component parts consisted of prefabricated metal sheets, bolts, doors, etc., and the number of parts sold by Kraft depended upon the size of building requested by his customers. These parts were not unique or special in any way. In other words, the metal buildings were similar and their component parts interchangeable, a larger size building differing from a smaller one only in the number of metal sheets, bolts, etc. necessary for it to meet the size structure specified by Kraft's customers. In July 1984, Kraft sold two of these metal buildings to one Alvin Anderson (Anderson).

One of the buildings Kraft sold to Anderson consisted of a thirty by forty foot (30' x 40') block building and the metal roofing sheets necessary to cover the complex. The remaining structure was a forty by eighty foot (40' x 80') straight wall steel building which Anderson bought and for which Kraft was paid in full. It is this building, or more specifically some parts thereof, which led to Kraft's prosecution and ultimately his conviction of class C felony theft.

In July 1984, Anderson purchased a metal building from Kraft for "around" $13,200.00. The building's dimensions were forty by eighty feet (40' x 80') with sixteen foot walls. The building was neither constructed nor delivered by Kraft because Anderson could not accept delivery and did not have a foundation or acceptable site prepared for the structure. Instead, the metal building was stored in various places on and about the Kraft Construction property. Much of the metal sheeting and other components were simply left out on Kraft's lot while the overhead doors, walk door, and all of the fasteners, closures and other odds and ends were placed inside Kraft's shop. The metal building remained in these various places until Kraft's trial in 1986.

In June 1985, Duane Vetter (Vetter), manager of a local body shop in Bismarck, contacted Kraft because Vetter was looking for some replacement metal sheeting for a building that had been purchased from a salvage dealer. The metal building that had been purchased by Vetter was short of roof sheeting and he contacted Kraft about possibly purchasing some metal roofing sheets from Kraft Construction. Kraft then sold to Vetter thirty-six (36) roofing sheets from the component parts of the building Kraft had previously sold to Anderson.

Importantly, up to the time of trial, Anderson had never asked Kraft for delivery of the building and the record reveals that even after Kraft sold the sheeting to Vetter, had Anderson requested delivery of the building, the metal roofing sheets remained on hand as part of Kraft's inventory or Kraft could have obtained them by the time Anderson's building was to be completed. During the fall of 1985, after Kraft's transaction with Vetter, Anderson testified that he asked Kraft if the metal building was still there because the pile of metal representative of the building Anderson purchased from Kraft looked "awfully small for a whole building." Kraft assured Anderson that the building was complete. Anderson did not ask that his building be delivered or assembled at that time. The metal building remained on the Kraft Construction property, strewn about both Kraft's shop and grounds, until the district court ordered Kraft to deliver the building to Anderson after the trial.

During the spring of 1986, while investigating a separate crime involving a metal building, officers of the Bismarck Police Department became aware of the transaction between Vetter and Kraft involving the sale of the thirty-six (36) metal roofing sheets from the building Anderson purchased in 1984. The police confronted Kraft about this transaction and Kraft freely admitted that he sold the sheeting to Vetter. Kraft added, however, that he could complete Anderson's building any time that Anderson requested it to be erected. The police then informed Anderson about the transaction between Kraft and Vetter. On March 20, 1986, Kraft was arrested for theft of property.

Prior to trial, Kraft selected eleven (11) standard jury instructions from the North Dakota Criminal Jury Instructions and requested that they be given to the jury by the court. Further, Kraft requested a special jury instruction for the meaning of "deprive" as it is defined under Section 12.1-23-10(3)(c) of the North Dakota Century Code. At the trial, the court instructed the jury in accordance with the eleven standard jury instructions and the one special instruction as requested by Kraft. Kraft was tried by jury on July 22, 1986, and was convicted of a class C felony. Kraft filed a motion for acquittal or new trial. At the hearing on the motion for new trial, counsel for Kraft argued in support of the motion on the grounds that there was a defense to the crime charged based on the delivery and acceptance sections of the Uniform Commercial Code. ¹ There was no instruction given to the jury by the court nor was there one requested by Kraft on any defense or area of defense based on the delivery and acceptance sections of the Uniform Commercial Code. The motion for new trial was denied by the district court on September 15, 1986. This appeal followed.

Kraft, represented by new counsel, raises three issues on appeal. Initially, Kraft asserts that there was insufficient evidence presented at trial to find him guilty of theft. Additionally, Kraft asserts that the State failed to prove an essential element of the crime and, therefore, he should be acquitted of his theft conviction. Finally, it is Kraft's contention that the trial court erred in denying his motion for acquittal or new trial based upon a "Uniform Commercial Code" defense which supports his assertion that no crime was committed.

Because it is dispositive of this appeal, our review focuses on whether the trial court erred in denying Kraft's motion for a new trial. We believe that the failure by the trial court to include an instruction to the jury on the defense based on the Uniform Commercial Code which went to an essential question of law constituted error that affected substantial rights of the defendant such that it was an abuse of discretion by the trial judge to deny the defendant's motion for a new trial after the omission was brought to the attention of the court.

Rule 30 of the North Dakota Rules of Criminal Procedure ² provides when and upon what the jury is to be instructed, and the methods of doing so. It is the duty of the court to instruct the jury upon questions of law applicable to the case. Rule 30(a), N.D.R.Crim.P.; see also State v. Reich, 298 N.W.2d 468, 471 (N.D.1980) (duty of court to correctly advise the jury on the law of the case); Dranow v. United States, 307 F.2d 545, 568 (8th Cir.1962) (duty of trial court to instruct the jury on general principles of law applicable to the facts of the case). Although the judge is initially responsible to present jury instructions concerning the issues, attorneys may request specific instructions on points of law in order that the jury may be fully informed as to all the law governing the case. Rule 30(b), supra; see also State v. Allery, 322 N.W.2d 228, 232 n. 3 (N.D.1982) ("While the judge is initially responsible to correctly instruct the jury ... the attorneys have the professional responsibility to request or object to specific instructions of points of law resulting from testimony or on developments during trial....").

Fundamental in any proceeding finding criminal liability is the idea that one accused of a crime must have possessed a guilty mind as well as performed the proscribed act. State v. McDowell, 312 N.W.2d 301, 303 (N.D.1981), cert. denied, 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982). While modern statutory law has, to a limited degree, modified the traditional rule requiring a specific intent for every proscribed act (see McDowell, supra ), it remains an essential element of the crime of theft as defined by Section 12.1-23-02, N.D.C.C.

We note that Kraft was charged with theft in accordance with Section 12.1-23-02(1), N.D.C.C. Section 12.1-23-02(1), N.D.C.C., provides that a person is guilty of theft if he:

"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; " [Emphasis added.]

Section 12.1-23-10(3)(a-c), N.D.C.C., defines the term "deprive":

"3. 'Deprive' means:

a. To withhold property or to cause it to be withheld either permanently or under such circumstances that a major portion of its economic value, or its use and benefit, has, in fact, been appropriated; or

b. To withhold property or to cause it to be withheld with the intent to restore it only upon the payment of a reward or other compensation; or

c. To dispose of property or use it or transfer any interest in it under circumstances that make its restoration, in fact, unlikely."

Thus, the specific intent required under Section 12.1-23-02(1)...