State v. Rieger, Cr. N

• Decision Date: 18 June 1979
• Docket Number: Cr. N
• Citation: 281 N.W.2d 252
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kenneth RIEGER, Defendant and Appellant. o. 663.
• Court: North Dakota Supreme Court

Page 252

281 N.W.2d 252

STATE of North Dakota, Plaintiff and Appellee, v. Kenneth RIEGER, Defendant and Appellant.

Cr. No. 663.

Supreme Court of North Dakota.

June 18, 1979.

Joseph Dietchman, State's Atty., Minnewaukan, for plaintiff and appellee State of North Dakota.

David Garcia, Devils Lake, for defendant and appellant.

VANDE WALLE, Justice.

After a trial to the court, the defendant, Kenneth Rieger, was convicted of reckless driving in violation of Section 39-08-03, N.D.C.C. ¹ He appeals his conviction to this court. We affirm.

In October 1977, the State's Attorney of Benson County, North Dakota, filed an information in the county court of increased jurisdiction alleging that Rieger "willfully, wrongfully and unlawfully (drove) a motor vehicle from the City of Esmond to 11/2 miles west of Esmond, in Benson County, North Dakota, in a reckless manner, all in violation of Section 39-08-03 of the NDCC." Rieger entered a plea of not guilty, and first demanded a jury trial, but later requested a trial to the court.

The county court of increased jurisdiction conducted a trial of the matter. The State called as its only witness a man who had been a deputy sheriff of Benson County at the time of the alleged reckless driving. The deputy testified that, while parked at a service station in Esmond, he heard a loud engine noise and observed a vehicle, containing two persons, that accelerated quickly as it left a stop sign about one block from the service station. The deputy stated that he followed the vehicle, which proceeded westerly from the stop sign on a highway having a maximum speed limit of 55 miles per hour, and described the road on which he traveled pursuing the vehicle. He testified that as he chased the vehicle it was "pulling away" from him, even though he drove his own automobile at speeds as high as 90 to 100 miles per hour. The deputy stated that he continued to follow the vehicle and saw it turn off the road into the yard of a farmstead owned by LeRoy Rieger, the defendant's father, approximately two miles from Esmond. He testified that when he turned into the yard, he saw no one around the vehicle, and, as he approached the vehicle, he noticed that it was emitting smoke from beneath its hood. According to his testimony, he knocked on the door of the farmhouse; when no one answered, he waited in the farmyard for about 15 minutes. At that point, a woman, later identified as Mrs. LeRoy Rieger, the defendant's mother, approached the police vehicle and, after being asked whether the defendant was home, told the deputy that he had been home all day. The deputy testified that Mrs. Rieger went into the house and returned 15 minutes later to tell him that the defendant "was not around." The deputy stated that he told her to tell the defendant to come to town to talk to him; otherwise, he would go to the State's Attorney to sign two complaints against the defendant. Finally, the deputy said that he returned to Esmond and that, when the defendant found him there 15 minutes later, he gave the defendant a ticket for reckless driving.

On cross-examination, the deputy said that on the date of this event, he had seen Rieger driving the vehicle twice earlier, but admitted that he had not actually seen him in the vehicle at the time of the alleged reckless driving. He also stated that the weather on the date at issue was clear, road conditions were satisfactory, and, as he pursued the vehicle, its driver appeared to have it under control.

At the conclusion of the State's presentation of the case, the defendant's attorney moved for dismissal, arguing that the State had not proved a prima facie case of reckless driving. The court denied the motion.

Presenting his case, the defendant first called LeRoy Rieger, the defendant's father. Mr. Rieger described the road leading to his farm. He testified that, in view of his knowledge of the road, the deputy's description of the pursuit of the speeding vehicle must have been incorrect in certain ways. He said that he did not see his son drive into the yard but did see the deputy do so, and that he did not see the deputy approach the house.

The defendant's next witness was Mrs. Rieger, the defendant's mother. She testified that at the time the deputy arrived in the yard, she was in a nearby Quonset. She stated that she talked with him for a short time. She also said that her son's vehicle had malfunctioned on the previous evening and had to be taken back to their farm on a "lowboy." She noted that when she went to the Quonset earlier in the day, the vehicle was resting on the lowboy, but when she returned from the Quonset in the afternoon, it had been moved and was on the ground. Most important, she stated that she did not know whether the defendant had driven the vehicle that afternoon.

After Mrs. Rieger concluded her testimony and both sides had rested, the trial court announced its decision: It found, beyond a reasonable doubt, that Rieger drove his vehicle recklessly in violation of Section 39-08-03(2), N.D.C.C. For this violation, the trial court imposed on Rieger a $500 fine plus $5 in court costs, but suspended $250 of the fine on the condition that Rieger have no moving violations for the next year.

On appeal to this court, Rieger asserts that the evidence against him was insufficient to convict him for a violation of Section 39-08-03, N.D.C.C.

This court considered a similar issue in State v. Olmstead, 246 N.W.2d 888 (N.D.1976). There, a convicted defendant appealed on the ground that the evidence was insufficient as a matter of law to sustain his conviction. Rejecting that argument, this court wrote:

"If we were to judge from the cold print, we might decide many cases differently than trial judges do, and this case might be one of them. But, if we decided differently, we would have no assurance that ours was the better decision. We are reluctant to reverse factual findings of juries or trial judges. Appellate courts have stated in many ways, in both civil and criminal cases, their determination to give respect to the findings of trial judges and juries. Sometimes they say they will not reverse if there is substantial evidence to support the verdict (Kresel v. Giese, 231 N.W.2d 780, 791 (N.D.1975)); sometimes they say they will not substitute their judgment for that of the trial court or jury (State v. Champagne, 198 N.W.2d 218, 226 (N.D.1972)); sometimes they speak of viewing the evidence in the light most favorable to the judgment (State v. Neset, 216 N.W.2d 285, 290 (N.D.1974)); and sometimes they speak of their great reliance on the findings of the lower court (In re Estate of Elmer, 210 N.W.2d 815, 819 (N.D.1973)).

"In criminal cases we have repeatedly held that 'at the appellate level we do not substitute our judgment for that of the jury or trial court where the evidence is conflicting, if one of the conflicting inferences reasonably...