State v. Rasmussen
Decision Date | 02 December 1994 |
Docket Number | No. 940113,940113 |
Citation | 524 N.W.2d 843 |
Parties | STATE of North Dakota, Plaintiff and Appellee, v. Lynn Byron RASMUSSEN, Defendant and Appellant. Crim. |
Court | North Dakota Supreme Court |
William A. Mackenzie of Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for defendant and appellant.
Robert A. Freed, Asst. State's Atty., Jamestown, for plaintiff and appellee.
The defendant was convicted of driving under suspension, after the trial court concluded justification or excuse was unavailable as a matter of law. Because we hold justification or excuse could apply, we reverse and remand for a new trial.
In the early morning hours of January 13, 1994, the elevator manager at Windsor reported an apparent break-in at the grain elevator. As the Stutsman County deputy sheriffs approached Windsor, they noticed a vehicle about a quarter mile off Interstate 94, near the edge of town. Fresh tracks led from the car, from house to house, and then into the elevator, but they did not exit. When the officers yelled into the elevator, Lynn Rasmussen answered and came out. Rasmussen said he had car trouble and sought shelter from the cold. The night was very cold and it had been snowing quite heavily. Because it appeared Rasmussen had only been seeking shelter, no offense was charged for the break-in.
A records check disclosed Rasmussen's driver's license was suspended. The car was registered to Rasmussen. He said another person had been driving the car back from Fargo to Bismarck when engine trouble developed. He said the driver had then started walking and had hitch-hiked. Rasmussen said he sat in the car until he decided he had to get help and find shelter from the cold. He said he managed to drive the car to the edge of Windsor, where it died. He then sought shelter.
Rasmussen was charged with driving while his license was under suspension, in violation of N.D.C.C. Sec. 39-06-42, a class B misdemeanor. The case was tried to the court.
One of the deputies testified damage to the car seemed to reflect it had been driven into a ditch. Damage to the radiator, he said, probably caused the car to over-heat. The deputy said Rasmussen had not named the alleged driver.
Rasmussen testified, naming the alleged driver. He said he had bought the car while his license was under suspension. He said he was trying to sell the car to the alleged driver so they took a test drive from Bismarck to Fargo, and had stopped to visit Rasmussen's nephews in Fargo. Rasmussen said they were driving back to Bismarck in very nasty weather when car trouble developed, and the driver had headed off on his own. The alleged driver did not testify. No other witnesses were called.
Rasmussen argued justification or excuse as a defense to driving under suspension. The trial court ruled justification or excuse was not permitted and found Rasmussen guilty. Rasmussen appeals from the judgment of conviction.
The trial court had jurisdiction under Art. VI, Sec. 8, N.D. Const., and N.D.C.C. Sec. 40-18-15.1. This Court has jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 29-28-06(2). The appeal was timely under Rule 4(b), N.D.R.App.P.
After the argument of counsel as to the availability of justification or excuse, the court ruled:
We interpret the trial court's words as ruling justification or excuse was unavailable as a matter of law under the facts claimed by Rasmussen. N.D.R.Crim.P. Rule 23(d) provides: "In a case tried without a jury, the court shall make a general finding of guilty or not guilty." N.D.R.App.P. Rule 35(c) provides:
"Upon an appeal from a verdict or judgment, the supreme court may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the appellant."
Therefore, we review the trial court's ruling on the unavailability of justification or excuse.
N.D.C.C. ch. 12.1-05 justifications and excuses may apply to offenses outside of Title 12.1. See e.g., State v. Nehring, 509 N.W.2d 42 (N.D.1993) ( ); State v. Mathisen, 356 N.W.2d 129 (N.D.1984) ( ); State v. Patten, 353 N.W.2d 30 (N.D.1984) ( ). Compare N.D.C.C. Sec. 12.1-02-02 () relating to culpability; State v. North Dakota Ed. Ass'n, 262 N.W.2d 731, 734 (N.D.1978) ().
Chapter 12.1-05 of the North Dakota Century Code "is an almost complete adoption" of Chapter 6 of the Proposed Federal Criminal Code dealing with defenses of justification and excuse. State v. Fridley, 335 N.W.2d 785, 788 (N.D.1983); State v. Leidholm, 334 N.W.2d 811, 814 (N.D.1983). As an aid to interpreting the North Dakota statutes, therefore, it is helpful to examine the Comments of the drafters of the Proposed Federal Criminal Code. See, e.g., Fridley; State v. Sadowski, 329 N.W.2d 583, 585 (N.D.1983); State v. Kaufman, 310 N.W.2d 709, 712 (N.D.1981).
Final Report of the National Commission on Reform of Federal Criminal Laws at 44 (1971) ("Final Report").
The State argues affirmative defenses are unavailable because driving under suspension is a strict liability offense. In City of Mandan v. Willman, 439 N.W.2d 92, 93 (N.D.1989), this Court said:
While recognizing strict liability does not always preclude affirmative defenses, the case left open the question of the availability of affirmative defenses to the strict liability offense of driving under suspension or revocation. Willman. In State v. Nygaard, 447 N.W.2d 267, 271 (N.D.1989), this Court differentiated Michlitsch to hold the particular "affirmative defense of excuse based on a mistaken belief" is not available for "the strict liability offense of failing to stop after an accident." In Brown, 107 Wis.2d 44, 318 N.W.2d at 376, the Wisconsin Supreme Court discussed policy considerations in determining if particular defenses should be permitted for a particular strict liability offense:
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