State v. Sabo

• Decision Date: 13 December 2007
• Docket Number: No. 20070090.,20070090.
• Citation: 742 N.W.2d 812,2007 ND 193
• Parties: STATE of North Dakota, Plaintiff and Appellee v. James Peter SABO, Defendant and Appellant.
• Court: North Dakota Supreme Court

742 N.W.2d 812

2007 ND 193

STATE of North Dakota, Plaintiff and Appellee v. James Peter SABO, Defendant and Appellant.

No. 20070090.

Supreme Court of North Dakota.

December 13, 2007.

Reid Alan Brady, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Craig E. Johnson, Johnson, Ramstad & Mottinger, P.L.L.P., Fargo, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] James Peter Sabo appeals from a criminal judgment entered after a jury found him guilty of altering an odometer in violation of N.D.C.C. § 39-21-51. Sabo argues the district court erred in denying his motion for judgment of acquittal, the evidence is insufficient to support a conviction, and his right to a fair trial was unduly prejudiced by the State's closing rebuttal argument. We conclude there is sufficient evidence to support Sabo's conviction, and the State's closing rebuttal argument was not improper. We affirm.

I

[¶ 2] Through his company, Superior Enterprises, Sabo buys salvage vehicles, then repairs and sells them. In the summer of 2005, Sabo purchased a salvaged, four-door, 2004 Honda Civic from Copart, an Internet salvage auction company, for $2,020. Sabo testified the vehicle was not operational when it was delivered. Sabo employs Bill Smith, an auto technician, to repair the salvage vehicles, and Smith completed some of the repairs on the Honda.

[¶ 3] During the trial, Sabo's long-time friend and former employee, Michael Morton, testified he saw the Honda sitting outside Sabo's shop and asked Smith if it was for sale. Morton talked to Smith about the vehicle, and Smith testified he told Morton the vehicle was in good shape but it was not running because it still needed some repairs, including a battery. Morton testified he contacted Sabo about purchasing the vehicle and they agreed Morton would buy the Honda for $14,500. Morton and Sabo testified the vehicle was not operational and they did not know the mileage on the vehicle when they agreed to the sale, but Morton testified he did not think the car could have many miles on it because the engine was clean and looked brand new.

[¶ 4] Morton testified he has keys to Sabo's shop, and after he purchased the Honda, he made repairs to it in Sabo's shop without Sabo's permission. Morton testified the Honda's instrument cluster, which contains the speedometer, tachometer, warning and indicator lights, a digital odometer, and other gauges, had a crack in the lens. Morton testified he contacted Corwin Honda, a local Honda dealership, for advice on how to fix the cracked lens. Morton testified the Corwin Honda mechanics told him the instrument cluster was just a display and it could be replaced with another instrument cluster without changing the mileage shown. Morton testified he replaced the instrument cluster with one from another Honda Civic that Sabo owned. Morton testified he did not know how many miles were on either Honda Civic when he switched the instrument clusters. Sabo testified that he did not know Morton had replaced the instrument cluster, and he did not give him permission to replace it.

[¶ 5] At trial, Scott Miller, a Corwin Honda mechanic, testified that, in a 2004 Honda Civic, a central processing unit within the instrument cluster retains the mileage for the vehicle, and changing the instrument cluster would change the mileage shown on the odometer. Miller testified it would be easier to replace a cracked lens on an instrument cluster than to replace the whole instrument cluster, because, if the whole instrument cluster is replaced, the central processing unit would have to be replaced and the mileage discrepancy has to be fixed by either placing a sticker on the door noting the mileage at the time of the repair or programming the correct mileage into the new central processing unit. He also testified that in his experience working for a dealership, a mechanic would not replace the whole instrument cluster if the only problem was a cracked lens.

[¶ 6] Morton testified he also completed several other repairs on the vehicle, including replacing a seatbelt and several light bulbs. Once the other repairs were completed, Morton testified he installed a battery and took the repaired vehicle to Sabo's residence so it could be inspected by the North Dakota Highway Patrol and the sale could be completed.

[¶ 7] On September 6, 2006, North Dakota Highway Patrol Officer Robert Arman

inspected the Honda at Sabo's residence to determine whether the salvaged vehicle was roadworthy. Arman testified that a salvaged vehicle must be inspected before it can be sold, and he has performed over 600 vehicle inspections. Arman testified that it is not part of the Highway Patrol's routine procedure to check a vehicle's mileage, but he has always checked mileage because of his prior training and experience. Sabo testified he has never had an inspector check the mileage on a salvage vehicle prior to this inspection. During the inspection, Arman asked Sabo how many miles were on the vehicle, and Sabo said there were 4,983 miles. Arman verified that the odometer showed the vehicle had 4,983 miles on it. Arman then inspected the vehicle's title and noted the title indicated the vehicle had 26,124 miles on it when Sabo purchased it from Copart. Arman testified Sabo had not filled out the section on the title to indicate a mileage discrepancy. Sabo testified that, with other vehicles, he has not indicated whether there is a mileage discrepancy on the title until after the inspection. Arman informed Sabo there was a discrepancy with the mileage and he would not issue a certificate of inspection for the Honda. Sabo testified he contacted Smith during the inspection, and Smith said he did not replace the odometer when he was working on the vehicle.

[¶ 8] After the inspection, Arman contacted North Dakota Highway Patrol Officer Tonya Sprecher, the Highway Patrol's odometer fraud expert, and asked her to investigate the vehicle. He testified he notified Sabo that he would come back the next day with Sprecher to continue the investigation. During this conversation, Sabo told Arman that he was trying to sell the vehicle and the buyer was worried about the issues with the inspection, but he did not disclose the name of the buyer to Arman.

[¶ 9] On September 7, 2006, Sprecher and Arman went to Sabo's residence to further investigate the vehicle. Arman informed Sabo there was a possibility of odometer fraud. Sabo informed the officers that Copart had a picture of the odometer. Arman testified Sabo asserted there were only 4,983 miles on the vehicle, and Sabo claimed Copart probably made a mistake by writing the wrong mileage on the certificate of title because Copart hires people for eight dollars an hour. Sprecher testified Sabo claimed there was probably a clerical error on the mileage portion of the title, and the mileage recorded was probably from a reading of the trip odometer with the decimal point in the wrong place. Sprecher inspected the odometer to check the feasibility of Sabo's claim and found the odometer read "trip A" and "trip B" when the trip mode of the odometer was displayed. Arman testified he asked Sabo the name of the buyer, but Sabo did not answer. Sprecher contacted Copart and they sent her a picture of the Honda's odometer showing the vehicle had 26,124 miles when it was sold to Sabo.

[¶ 10] On September 11, 2006, Sprecher seized the Honda to complete a more thorough investigation. Sabo told Sprecher the buyer knew about the mileage discrepancy and did not care because the odometer would eventually read 26,000 miles. Sabo did not disclose the identity of the buyer.

[¶ 11] Smith testified that about a week after the inspection, he found a cracked instrument cluster in Sabo's shop. Sabo testified he tested the cracked instrument cluster and found it had 26,124 miles on it, and he concluded Morton must have switched the two odometers.

[¶ 12] Todd Vetsch, general manager for Lunde Auto Center, testified at trial that mileage is a factor in deciding the value of a vehicle, and in general, for every 10,000 miles on a vehicle the value decreases by $1,000.

[¶ 13] At the close of the State's case, the district court denied Sabo's motion for judgment of acquittal. Sabo renewed his motion for judgment of acquittal at the close of the evidence portion of the trial, and the court also denied that motion. The jury found Sabo guilty.

II

[¶ 14] Sabo argues there is insufficient evidence to support his conviction and the district court erred in denying his motion for judgment of acquittal.

[¶ 15] Under N.D.R.Crim.P. 29, a court must order entry of judgment of acquittal after the prosecution closes its evidence or after the close of all evidence if the evidence is insufficient to sustain a conviction. Our standard of review for challenges to sufficiency of the evidence is well established:

In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Moreover, a jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty...