State v. Meier

• Decision Date: 31 March 1988
• Docket Number: Cr. N
• Citation: 422 N.W.2d 381
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Clarence MEIER, Defendant and Appellant. o. 870033.
• Court: North Dakota Supreme Court

Page 381

422 N.W.2d 381

STATE of North Dakota, Plaintiff and Appellee, v. Clarence MEIER, Defendant and Appellant.

Cr. No. 870033.

Supreme Court of North Dakota.

March 31, 1988.

James W. Wold, State's Atty., Cooperstown, for plaintiff and appellee.

James A. Wright, of Weiss, Wright & Paulson, Jamestown, for defendant and appellant.

VANDE WALLE, Justice.

Clarence Meier appealed from a judgment of conviction finding him guilty of the crime of reckless endangerment in violation of Section 12.1-17-03, N.D.C.C., a Class C felony. We affirm in part and reverse in part.

In the early morning hours of May 11, 1986, Griggs County Sheriff Paul Hendrickson and Deputy Doug Kiefert were investigating the presence of a blue-colored automobile at the Claude Dreher farm near Binford, North Dakota. The officers had followed this vehicle from Binford to the Dreher farm. The officers had originally been pursuing the vehicle, but they were forced to abandon the pursuit when car speeds reached a dangerous level. However, with some effort, they were able to track the car to the Dreher farm.

The officers checked the vehicle and the area behind the Dreher home, but they found no one. As they returned to their vehicle, which was parked at the front of the Dreher home, the officers heard a gunshot and sought protection behind their vehicle. After hearing someone (later identified as Meier) yelling at them, they identified themselves. In response, Meier yelled, "I know who the fuck you are. Get out of here right now." Meier then fired a second shot.

After some more yelling, Sheriff Hendrickson recognized that it was Meier yelling, and he called out, "Clarence." Meier emerged from around the corner of the garage, carrying a rifle, which he held leveled at his waist and pointed at the officers. Meier approached the driver's side of the car, opposite the side where the officers were. As he walked toward the officers, Meier opened and shut the bolt action of the rifle. He then began walking around the front of the vehicle toward the officers.

As Meier approached the passenger door, Sheriff Hendrickson jumped out, grabbed the rifle, and twisted it out of Meier's hands. The sheriff then grabbed Meier, who pulled away and ran. Sheriff Hendrickson opened the bolt action of the rifle and shoved the barrel into the mud. The officers then pursued Meier, who was caught and arrested. Before leaving the Dreher farm, Deputy Kiefert retrieved the rifle and determined that it was empty. The testimony indicates that the rifle was capable of holding one shell in the firing chamber and four or five shells in its clip.

Meier testified at trial. He admitted that he had been a passenger in the vehicle that the officers had been pursuing, but denied knowing that the vehicle had been pursued. He testified that he had been preparing for bed in the Dreher's home (where he was staying) when he heard vehicle noises outside. He stated that he then grabbed a rifle and, although he knew it had only two shells in it because of his previous use of it, he checked the rifle by pulling the bolt all the way back and looking into the clip, and then used his finger to determine that it had only two shells in it. The officers testified that they saw no light in the Dreher home at any time.

Meier further testified that he fired the two shots, but that he had fired the shots toward the east, in the opposite direction from where the officers were located. Meier also denied that he pointed the rifle at the officers when he approached them.

After Meier's arrest he was charged with reckless endangerment. The information noted that it was charged as a Class C felony. The trial in this case was held to the court without a jury. The trial court found Meier guilty and sentenced him to one year's imprisonment but suspended six months of that sentence.

The sentencing occurred on January 23, 1987, but the judgment of conviction was not filed until January 30, 1987. Meier filed a notice of appeal on January 28, 1987. On January 29, 1987, the State filed a motion to correct an illegal sentence, pursuant to Rule 35, N.D.R.Crim.P., contending that under Section 12.1-32-02.1, N.D.C.C., the minimum sentence Meier could receive was two years' imprisonment. On March 16, 1987, the trial court issued an order changing Meier's sentence to two years' imprisonment.

I

Meier argues that there was insufficient evidence to convict him of reckless endangerment. In making this argument Meier has referred us to comments made by the trial court prior to the announcement of its verdict. Those comments indicate that the trial court based its decision only upon Meier's pointing of the rifle at the officers, and not upon the shots Meier fired. At oral argument the State agreed that the trial court's determination was based upon Meier's pointing the rifle at the officers. Therefore, it appears that Meier was convicted of reckless endangerment based upon his actions in pointing a rifle at the two police officers.

The essence of Meier's argument is that, accepting the facts most favorable to the conviction, he could not, by pointing a rifle at the officers, have created the substantial risk of serious bodily injury or death necessary for conviction of the crime of reckless endangerment because that rifle was later determined to be not loaded. We disagree.

Our reckless-endangerment statute is codified at Section 12.1-17-03, N.D.C.C. That section provides:

"A person is guilty of an offense if he creates a substantial risk of serious bodily injury or death to another. The offense is a class C felony if the circumstances manifest his extreme indifference to the value of human life. Otherwise it is a class A misdemeanor. There is risk within the meaning of this section if the potential for harm exists, whether or not a particular person's safety is actually jeopardized."

In State v. Hanson, 256 N.W.2d 364 (N.D.1977), this court held that the culpability required for Section 12.1-17-03 is recklessly. That term is defined by Section 12.1-02-02(1)(c), N.D.C.C., to mean that a person engages in conduct

"c. 'Recklessly' if he engages in the conduct in a conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct, except that, as provided in section 12.1-04-02, awareness of the risk is not required where its absence is due to self-induced intoxication."

Meier argues that there was no risk of injury or death in this case because the rifle was later discovered to be unloaded. However, the last sentence of Section 12.1-17-03 makes it clear that the prohibited risk may exist even where a person's safety is not actually jeopardized so long as the potential for harm exists. Thus a person is guilty of reckless endangerment where his actions indicate that he has disregarded a risk to human life by creating the potential for harm, even if no person was actually placed in danger by the conduct. Such a result is clearly indicated by our statute's legislative history.

Section 12.1-17-03 was adopted in the criminal code revision of 1973. As we have previously stated:

"Our Criminal Code is modeled on the proposed Federal Criminal Code. Report of the North Dakota Legislative Council (1973) at 81. The Federal Code, in turn relies heavily on the Model Penal Code. References to both codes are made when Our reckless-endangerment statute is identical to Sec. 1613 of the proposed Federal Criminal Code. The comments to Sec. 1613 state that "It would not be necessary that the defendant actually place another in danger in order to be guilty of reckless endangerment. The proposed statute deals with prospective risks, ..." [Emphasis added.] Working Papers of the National Commission on Reform of Federal Criminal Laws, Vol. II, pp. 836-837 (1970). This statement indicates that a violation of the statute may occur although no person was actually endangered. Thus reckless endangerment could occur even though Meier's rifle may not have been loaded.

                appropriate."   State v. Trieb, 315 N.W.2d 649, 657 fn. 9 (N.D.1982)
                

The statement in the proposed Federal Criminal Code that reckless endangerment may occur even though no person is actually endangered is probably better explained by comments to the Model Penal Code's reckless-endangerment statute. That statute was noted by the drafters of the proposed Federal Criminal Code. Section 211.2 of the Model Penal Code defines the crime of recklessly endangering another person. It provides:

"A person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded."

Comments to this section, discussing the definition of the offense, state:

"Section 211.2 requires that the actor engage in conduct 'which places or may place another person in danger of death or serious bodily injury.' This formulation applies to risk creation regardless of injury and regardless of whether anyone is actually endangered by the actor's conduct. Thus, for example, firing a gun at an occupied building may suffice for liability, even if none of the inhabitants is at home at the time. Of course, if the actor knows that no one is present in the building, he will lack the required culpability of recklessness with respect to the prospect of death or serious bodily injury." [Emphasis added.] Model Penal Code and Commentaries, Vol. I, pt. II, Commentary to Sec. 211.2 (1980).

These comments clearly indicate that reckless endangerment may occur even though no person is actually endangered.

The example utilized by the drafters of the Model Penal Code serves as a useful analogy to this case. It would be impossible for harm to...