State v. Langan, Cr. N
Decision Date | 28 July 1987 |
Docket Number | Cr. N |
Citation | 410 N.W.2d 149 |
Parties | STATE of North Dakota, Plaintiff and Appellee, v. June LANGAN, Defendant and Appellant. o. 1216. |
Court | North Dakota Supreme Court |
James F. Twomey, Asst. States Atty., Fargo, for plaintiff and appellee.
Brian W. Nelson, Fargo, for defendant and appellant.
June Ann Langan appeals from a judgment of conviction entered upon a jury verdict finding her guilty of being an accomplice to possession of a controlled substance in violation of Secs. 12.1 03 01, 19 03.1 07, and 19 03.1 23, N.D.C.C. We reverse and remand for a new trial because of the failure to instruct the jury on the lesser included offense of criminal facilitation.
On the morning of June 30, 1985, June Langan approached the Northwest Orient ticket counter at the airport in Fargo and unsuccessfully requested delivery of a package addressed to June's cousin, Martin Langan. Later that day, she again asked for the package but was told that the addressee of the package had to pick it up. At approximately 5:45 p.m. on June 30, 1985, Martin picked up the package at the airport, walked to the airport's long-term parking area, and drove June's automobile, in which June was a passenger, to the exit gate of the parking lot, where the automobile was stopped by law enforcement officers. Martin was immediately arrested and the package, which contained cocaine, was retrieved from the back seat of the automobile. June was interviewed and released.
Martin was convicted of possession of a controlled substance in 1985. On January 20, 1986, June was charged with being an accomplice to possession of a controlled substance. She appealed from the judgment of conviction entered upon the jury verdict finding her guilty and has raised issues relating to the trial court's failure to grant her motion for judgment of acquittal, the trial court's jury instructions, and the trial court's failure to give a jury instruction on the lesser included offense of criminal facilitation.
June asserts that the trial court erred in failing to grant her Rule 29, N.D.R.Crim.P., motion for a judgment of acquittal at the close of the State's case. In ruling on a motion for judgment of acquittal, the trial court must view the evidence in a light most favorable to the prosecution and assume the truth of the prosecution's evidence. State v. Holy Bull, 238 N.W.2d 52 (N.D.1975). The court must determine if a reasonable mind might fairly conclude guilt beyond a reasonable doubt. State v. Allen, 237 N.W.2d 154 (N.D.1975). We find no error in denying the motion.
June asserts that the trial court's jury instructions "were insufficient and misleading when taken as a whole in that they did not include Defendant's requested instruction as to her presence at the scene, her knowledge and intent and to specify when she committed the alleged crime." We are not persuaded by the arguments presented that the instructions were insufficient and misleading in the respects asserted.
June next asserts that the trial court erred in refusing to instruct the jury on the lesser included offense of criminal facilitation. We agree.
Section 12.1 03 01(1), N.D.C.C., provides:
Section 12.1 06 02(1), N.D.C.C., provides:
Section 12.1 01 04(15), N.D.C.C., provides:
In State v. Ballard, 328 N.W.2d 251, 253 (N.D.1982), we noted differences between the accomplice and facilitation statutes:
In Ballard, our attention was focused on the intent of the actor and it was unnecessary to focus on the actor's knowledge of the other's criminal intent.
Sections 12.1 03 01(1), 12.1 06 02(1), and 12.1 01 04(15), N.D.C.C., are nearly identical to provisions of the proposed federal criminal code from which they were drawn. See proposed Secs. 401, 1002, and 109(q) in the Final Report, National Commission on Reform of Federal Criminal Laws (1971). 1
The difference between accomplice liability [Sec. 12.1 03 01(1), N.D.C.C., and Sec. 401 of the proposed federal criminal code] and facilitator liability [Sec. 12.1 06 02(1), N.D.C.C., and Sec. 1002 of the proposed federal criminal code] is clearly articulated in the Comments to Secs. 401 2 and 1002, 3 Final Draft, supra. 4 The fact that facilitation is an included offense to accomplice liability is also clearly articulated in the Comments to Secs. 401 and 1002, Final Draft, supra. See also I Working Papers of the National Commission on Reform of Federal Criminal Laws at 155 and 160 161; A Hornbook to the North Dakota Criminal Code, 50 N.D.L.Rev. 639, 683 684 (1974).
As the Comments to Secs. 401 and 1002 of the Final Report, supra, make clear, criminal facilitation is a lesser included offense to accomplice liability. However, a determination that an offense is a lesser included offense does not necessarily require that a lesser included offense instruction be given upon request. In State v. Piper, 261 N.W.2d 650, 654 (N.D.1978), this court said:
"The test it not merely whether or not the offense is a lesser included offense of the basic offense charged, but rather is whether or not there is evidence which will create a reasonable doubt as to the greater offense and support a conviction of the lesser included offense."
See also State v. Trieb, 315 N.W.2d 649 (N.D.1982); State v. Sheldon, 301 N.W.2d 604 (N.D.1980); State v. Houser, 261 N.W.2d 382 (N.D.1977).
In this case, the same evidence from which a juror could infer that June aided another with intent that the other commit an offense (accomplice liability) could also allow a juror to infer that June only aided another with knowledge that the other intended to commit an offense (facilitation). Aiding another with knowledge that the other intends to commit an offense may, but need not, ripen into aiding another with intent that an offense be committed. Thus, there is evidence which could create a reasonable doubt as to accomplice liability and support a conviction of criminal facilitation.
Because criminal facilitation is a lesser included offense to accomplice liability and there is evidence bearing upon June's intent or knowledge...
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