State v. Rambousek

• Decision Date: 09 January 1992
• Docket Number: Cr. N
• Citation: 479 N.W.2d 832
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Raymond RAMBOUSEK, Defendant and Appellant. o. 910071.
• Court: North Dakota Supreme Court

Page 832

479 N.W.2d 832

STATE of North Dakota, Plaintiff and Appellee, v. Raymond RAMBOUSEK, Defendant and Appellant.

Cr. No. 910071.

Supreme Court of North Dakota.

Jan. 9, 1992.

Dwight C.H. Kautzmann of Bair, Brown & Kautzmann, Mandan, for defendant and appellant.

Tom M. Henning, Asst. State's Atty., Dickinson, for plaintiff and appellee.

LEVINE, Justice.

Raymond Rambousek appeals from a judgment of conviction entered upon a jury verdict finding him guilty of conspiracy to commit murder. We affirm.

Rambousek met with three individuals in a Dickinson motel room. Two of the three were undercover State Crime Bureau agents posing as "hit men"; the third was a Dickinson Police Department informant. No others were present. Rambousek and the three individuals discussed murdering a witness who apparently had damaging information about criminal charges pending against Rambousek. Rambousek gave a signed certificate of title to a 1977 Cadillac to one of the undercover agents as partial payment for the contemplated murder.

Rambousek was charged with criminal conspiracy to commit murder, a Class AA felony. See NDCC Secs. 12.1-06-04(1) and 12.1-16-01(1)(a). During their depositions, the three individuals testified that they never intended to enter into an agreement with Rambousek to kill anyone and that they, in fact, were actually attempting to prevent the murder. Based upon that testimony, Rambousek unsuccessfully moved to dismiss the charge of conspiracy. He claimed that any agreement was unilateral, not bilateral, and thus it was a "legal impossibility" for him to commit the crime of conspiracy. Rambousek was tried and convicted of criminal conspiracy. This appeal followed.

Rambousek's basic proposition is that NDCC Sec. 12.1-06-04(1) requires a bilateral agreement among conspirators. He argues that because the co-conspirators in this case had no intention of carrying out the murder, there was no bilateral agreement and therefore there was no conspiracy. We disagree.

NDCC Sec. 12.1-06-04(1) says:

"A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy. The agreement need not be explicit, but may be implicit in the fact of collaboration or existence of other circumstances."

Rambousek contends the words "agrees" and "agreement" within NDCC Sec. 12.1-06-04(1) denote mutual assent, a contract or a meeting of the minds of the conspirators. He urges that our statute requires a bilateral agreement. The State asserts that NDCC Sec. 12.1-06-04(1) only requires a unilateral agreement, contending that the language "[a] person commits conspiracy if he agrees ..." refers only to the subjective behavior of one person and is not dependent upon the beliefs or intentions of co-conspirators. The statute does not define either "agrees" or "agreement."

In State v. Kihnel, 488 So.2d 1238, 1240 (La.App. 4 Cir.1986), the Louisiana appellate court, while interpreting a conspiracy statute admittedly different from our own, deftly explained the concepts of unilateral and bilateral conspiracy:

"Under a unilateral formulation, the crime of conspiracy is committed when a person agrees to proceed in a prohibited manner; under a bilateral formulation, the crime of conspiracy is committed when two or more persons agree to proceed in such manner. See Note [Conspiracy; Statutory Reform Since the Model Penal Code, 75 Colum.L.Rev. 1122, 1136 (1975) ]. Under either approach, the agreement is all-important to conspiracy. Under the unilateral approach, as distinguished from the bilateral approach, the trier-of-fact assesses the subjective individual behavior of a defendant, rendering irrelevant in determining criminal liability the conviction, acquittal, irresponsibility, or immunity of other co-conspirators. See Burgman, [Unilateral Conspiracy: Three Critical Perspectives, 20 DePaul L.Rev. 75, 76-77 (1979) ]. Under the traditional bilateral approach, there must be at least two 'guilty' persons, two persons who have agreed." (Emphasis in original.)

Construction of a statute is a question of law, fully reviewable by this court. State v. Bower, 442 N.W.2d 438 (N.D.1989). The primary objective of statutory construction is to ascertain the intent of the legislature. Id. at 440. A statute is ambiguous if it is susceptible to differing but rational meanings. Souris River Tel. v. Workers Comp. Bureau, 471 N.W.2d 465 (N.D.1991); State v. Silkwood, 317 N.W.2d 124 (N.D.1982). When a statute's language is ambiguous or of doubtful meaning, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain the legislature's intent. NDCC Sec. 1-02-39(3); Bower, 442 N.W.2d at 440. Criminal statutes are strictly construed against the government and in favor of the accused. E.g., State v. Hogie, 424 N.W.2d 630 (N.D.1988).

The first part of NDCC Sec. 12.1-06-04(1) is written in the singular and emphasizes the subject. Thus, the subject, "[a] person", engages in conspiracy, if that person agrees "with others." It is this language that is the basis for the State's construction of the statute as unilateral. However, the statute also refers to "[t]he agreement". "Agreement" is commonly defined as mutual assent, a "meeting of the minds" of two or more people. And so Rambousek argues that there must be a bilateral agreement. We conclude that the statute is susceptible of either meaning and that either is rational and thus the statute is ambiguous. Consequently, we resort to extrinsic aids, in this case, the statute's legislative history, to resolve the ambiguity.

Title 12.1, NDCC, was the result of a 1971-73 interim study of the revision of criminal law by the Committee on Judiciary "B" of the North Dakota Legislative Council. State v. Bourbeau, 250 N.W.2d 259 (N.D.1977). The Judiciary "B" Committee members wanted to provide the legislative history underlying their revision of the North Dakota criminal law in order to facilitate future statutory interpretation. Minutes of the Committee on Judiciary "B", N.D. Legislative Council, Sept. 20-21, 1971 at 11. So, Committee members were provided copies of the proposed Federal Criminal Code, which was completed in 1971 by the National Commission on Reform of Federal Criminal Laws, ¹ and the National Commission's "Working Papers." These materials provided the basis for the revision of the North Dakota Criminal Code by the Committee on Judiciary "B". See Bourbeau, 250 N.W.2d at 264.

NDCC Sec. 12.1-06-04(1) is drawn from Sec. 1004(1) ² of the proposed Federal Criminal Code and is all but identical with it. Accordingly, we may look to the drafters' official commentaries concerning Sec. 1004(1) for insight into the meaning and application of our statute. See, e.g., Bower, 442 N.W.2d at 440; State v. Leidholm, 334 N.W.2d 811 (N.D.1983). The drafters' commentaries on the subject are instructive:

"Plainly the new Federal conspiracy law should reject holdings and dicta to the effect that where A and B plan to commit an offense, it is a defense to A that B was insane, or had no intention to carry out the plan (that is, did not subjectively 'agree'), or has been let off by the jury. It is sufficient that 'he [the accused] agrees.' " 1 Working Papers of the National Commission on Reform of Federal Criminal Laws, Introductory Memorandum and Excerpts from Consultant's Report on Conspiracy and Organized Crime: Sections 1004 and 1005 (1970).

The commentators emphasize that the bilateral conspiracy theory should be abandoned. To accomplish this, the drafters of Sec. 1004(1) of the proposed Federal Criminal Code used language that was distinguishable from the traditional bilateral language of the existing conspiracy statute. See 18 U.S.C. Sec. 371 (1991). ³

NDCC Sec. 12-03-01, ⁴ the predecessor to NDCC 12.1-06-04(1), was also phrased in traditional bilateral language. Our legislature abandoned that bilateral language and adopted instead the language of Sec. 1004(1). Guided by the clear statement of the drafters of the proposed Federal Criminal Code and the use of the identical language in our statute, we believe the legislature intended a unilateral, not bilateral, approach to conspiracy. The unilateral approach requires only that Rambousek believe that he was participating in an agreement with another to engage in criminal conduct, manifested by some overt act, for Rambousek to be guilty of conspiracy.

Rambousek urges us to construe the ambiguity within this criminal statute strictly in his favor and against the government. We have frequently acceded to similar pleas. E.g., State v. Plentychief, 464 N.W.2d 373 (N.D.1991); Hogie, 424 N.W.2d at 635; City of Bismarck v. Sholy, 430 N.W.2d 337 (N.D.1988). However, when an ambiguity can be resolved by resort to explicit, unambiguous legislative history, we need not resort to a canon of construction that would contradict the legislative intent articulated by the drafters themselves. If the drafters' comments to the proposed Federal Criminal Code were less concise, Rambousek's argument would have more appeal. Cf. Hogie, 424 N.W.2d at 635.

Our conclusion that only a unilateral agreement is required is in accord with the majority of jurisdictions that has interpreted statutes similar to our own. E.g., State v. St. Christopher, 305 Minn. 2264, 232 N.W.2d 798, 803 (1975) [because of the wording, "[w]hoever conspires with another" a bilateral interpretation would be unsound]; Garcia v. State, 271 Ind. 510, 394 N.E.2d 106, 109 (1979) ["A person conspires ... when ... he agrees with another"]; State v. Marian, 62 Ohio St.2d 250, 405 N.E.2d 267, 269 (Ohio 1980) ["No person ... shall ... [w]ith another person or persons, plan or aid in the planning the commission of any ... offense"]; State v. Welty, 729 S.W.2d 594, 596 (Mo.App.1987) ["A person is guilty of...