State v. Olson

• Decision Date: 23 October 1984
• Docket Number: Cr. N
• Citation: 356 N.W.2d 110
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Michelle C. OLSON, Defendant and Appellant. o. 986.
• Court: North Dakota Supreme Court

Page 110

356 N.W.2d 110

STATE of North Dakota, Plaintiff and Appellee, v. Michelle C. OLSON, Defendant and Appellant.

Cr. No. 986.

Supreme Court of North Dakota.

Oct. 23, 1984.

Keith Reisenauer, Asst. State's Atty., Fargo, for plaintiff and appellee State of N.D.

William Kirschner, Fargo, for defendant and appellant.

VANDE WALLE, Justice.

Michelle C. Olson appealed from the criminal judgment entered by the county court, Cass County, on January 9, 1984, convicting Olson of failing to immediately stop after colliding with an unattended vehicle and notify the operator or owner of the accident. We affirm.

During the evening of September 30, 1983, Olson was driving through Casselton when her automobile struck a parked vehicle. At trial there was conflicting evidence presented as to whether or not Olson was fully conscious after the accident. Evidence showed that Olson's vehicle momentarily stopped at the scene of the accident before continuing on a normal course for approximately five to seven blocks to its resting place. Olson testified that she was knocked out by the impact and that she did not remember anything after the accident until she was in the ambulance. A passenger in Olson's vehicle testified that upon telling Olson that he was going to call the police and report the accident she replied, "No, no, no." She then drove away. When Olson finally stopped, witnesses observed her to be awake but speaking incoherently. Testimony by an ambulance attendant indicated that after Olson's vehicle finally stopped Olson appeared to be in shock and that she lapsed in and out of consciousness. On the way to the hospital Olson continued to lapse in and out of consciousness.

On January 9, 1984, Olson was tried before a jury for failing to immediately stop and notify the operator of an unattended vehicle of the name of the driver and owner, in violation of Section 39-08-07, N.D.C.C. The jury returned a verdict of guilty.

On appeal, Olson argues that the trial judge committed reversible error by not giving a jury instruction that required the State to prove that she acted consciously in moving her car and failing to stop and notify the owner of the other vehicle. Olson agrees that Section 39-08-07 is a strict-liability statute. Olson, however, contends that strict liability should apply only to unlawful acts which are voluntarily, intentionally, or negligently done and not to involuntary or unconscious acts.

I

The State contends that Section 39-08-07, N.D.C.C., is a strict-liability statute requiring no proof of intent, knowledge, willfulness, or negligence for conviction. Section 39-08-07 provides, in pertinent part:

"The driver of any vehicle which collides with any vehicle which is unattended shall immediately stop and shall then and there either locate and notify the operator or owner of the vehicle of the name and address, as well as the name of the motor vehicle insurance policy carrier, of the driver and owner of the vehicle striking the unattended vehicle or shall leave in a conspicuous place in the vehicle struck a written notice giving the [same information as above, plus] a statement of the circumstances of the collision. Any person violating this section is guilty of a class A misdemeanor."

Whether an offense is punishable without proof of intent, knowledge, willfulness, or negligence is a question of legislative intent to be determined by the language of the statute in connection with its manifest purpose and design. State v. Rippley, 319 N.W.2d 129 (N.D.1982). Section 39-08-07 does not contain language requiring culpability. Our review of the legislative history behind Section 39-08-07 indicates that the Legislature enacted it without a culpability requirement. See 1955 N.D.Sess.Laws, Ch. 253, Sec. 4. The legislative committee reports from 1953 to 1979 fail to make any mention of a culpability requirement. Section 39-08-07 has been substantially changed only twice since its enactment in 1955. In 1975 a penalty provision was added and in 1979 additional information was required to be given to the owner of the unattended vehicle. See 1975 N.D.Sess.Laws, Ch. 339, Sec. 19; 1979 N.D.Sess.Laws, Ch. 421, Sec. 2.

Section 12.1-02-02(2), N.D.C.C., provides "that if a statute defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is that one commit the offense willfully." State v. Bohl, 317 N.W.2d 790, 793 (N.D.1982). That culpability requirement, however, applies only to the offenses or crimes described in Title 12.1, N.D.C.C., and therefore does not apply to Section 39-08-07, N.D.C.C. City of Dickinson v. Mueller, 261 N.W.2d 787 (N.D.1977). Because Section 39-08-07 includes no culpability requirement the violation is a strict-liability offense, punishable without regard to intent, knowledge, willfulness, or negligence. State v. Bohl, supra; State v. Carpenter, 301 N.W.2d 106 (N.D.1980); State v. North Dakota Ed. Ass'n, 262 N.W.2d 731 (N.D.1978). Strict-liability statutes in criminal law do not invariably violate constitutional requirements. "Thus, public welfare [statutes], i.e., regulatory measures enacted by the legislature under the exercise of the police power, which dispense with mental culpability requirements, have generally been upheld if the accused is in a position to prevent the offense with no more care than society might reasonably expect and the penalty provided is small." State v. Carpenter, supra, 301 N.W.2d at 111, citing Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Although we agree that Section 39-08-07 is a strict-liability statute, one cannot be guilty of failing to conform to the statutory requirement where he or she is unconscious or lacks the mental or physical ability to perform the required act.

It is a general rule of criminal law that a person cannot be held criminally responsible for acts committed, or for failure to perform acts while he is unconscious. 22 C.J.S. Criminal Law Sec. 55, p. 194. See, e.g., People v. Hager, 124 Misc.2d 123, 476 N.Y.S.2d 442 (1984). Under strict-liability statutes one will not be excused because he intended no wrong, but that rule applies only to unlawful acts which are voluntarily done, and involuntary acts are not criminal. 22 C.J.S. Criminal Law Sec. 30, p. 106. See Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 851 (1976); State v. Kremer, 262 Minn. 190, 114 N.W.2d 88 (1962); People v. Shaughnessy, 66 Misc.2d 19, 319 N.Y.S.2d 626 (1971).

In the present case, although testimony indicated that Olson was in shock and semiconscious after the accident, evidence also clearly demonstrated that Olson drove her car from five to seven blocks away from the scene of the accident before stopping. If Olson voluntarily left the scene of the accident, or was negligent in failing to stop and give the required notice, she would be guilty under Section 39-08-07. Conversely, if Olson was unconscious or in such a mental or physical condition that she involuntarily drove away from the accident, she could not be held guilty of violation of Section 39-08-07. Clearly, in the latter situation, the policy reasons for imposing strict liability would not be furthered by holding Olson guilty.

But we cannot say that consciousness is an element that the State must prove in a strict-liability case. Therefore, a trial judge does not have to include a conscious-action type instruction in every strict-liability case. However, where a trial judge is presented with evidence of unconsciousness and a proper request is made by counsel for an instruction, the judge may instruct the jury on the conscious-action issue.

II

For purposes of this appeal we assume, without deciding, that an instruction similar to that which Olson now urges should have been given. We note that at trial the judge deleted from her proposed instructions an instruction on intent, ¹ because after urging by the State she determined that Section 39-08-07 is a strict-liability statute requiring no mens rea. Defense counsel requested that the court give a jury instruction as to conscious action. ² However counsel did not proffer a specific instruction on conscious action but instead requested the court to compose such an instruction. The court denied counsel's request. As a result, the court gave no intent or conscious-action instruction. The question presented, then, is whether or not counsel for Olson was obliged to submit a written jury instruction in order to have preserved Olson's objection for appeal.

Rule 30(b), N.D.R.Crim.P., provides that "any party may file written requests that the court instruct the jury on the law as set forth in the requests." Generally, each litigant in a case has the right to request instructions upon the issues of the case. Although the trial court may be required to present general jury instructions concerning the issues without request from counsel, "attorneys have the professional responsibility to request or object to specific instructions of points of law resulting from testimony or on developments during trial, Rule 30, N.D.R.Crim.P." State v. Allery, 322 N.W.2d 228, 232, n. 3 (N.D.1982).

If a defendant desires more comprehensive instructions on any phase of the case, he must submit written instructions with the request that they be given. State v. Bowe, 57 N.D. 89, 220 N.W. 843 (1928). If a party fails to make such a request he cannot predicate error upon omissions in the charge given. Bowe, supra; see also Casper v. Spaulding, 78 Idaho 282, 301 P.2d 1097 ...