State v. Schimetz, Cr. N

• Decision Date: 30 December 1982
• Docket Number: Cr. N
• Citation: 328 N.W.2d 808
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Mark SCHIMETZ, Defendant and Appellant. o. 856.
• Court: North Dakota Supreme Court

Page 808

328 N.W.2d 808

STATE of North Dakota, Plaintiff and Appellee, v. Mark SCHIMETZ, Defendant and Appellant.

Cr. No. 856.

Supreme Court of North Dakota.

Dec. 30, 1982.

Dennis L. Molenaar, Asst. State's Atty., Grand Forks, and Senior Law Student Phil Harmeson, for plaintiff and appellee; argued by Dennis L. Molenaar, Asst. States Atty., and Phil Harmeson, Grand Forks.

O'Grady, Morley & Morley, Grand Forks, for defendant and appellant; argued by Michael J. Morley, Grand Forks.

SAND, Justice.

The defendant, Mark Schimetz, was charged with and found guilty by a jury of aggravated assault, a violation of North Dakota Century Code Sec. 12.1-17-02(1). ¹ The defendant moved for a new trial. The motion was denied and he appealed from the order denying his motion for a new trial and from the judgment.

On 13 December 1981 the defendant, his girlfriend, Jennifer Saure (Saure) and her sister, Janine Baier (Baier), attended a private party at a house rented by Paul Breidenbach a few miles west of Grand Forks, North Dakota. Prior to attending the party, Schimetz had consumed several beers at bars in Grand Forks, North Dakota. Schimetz and Saure arrived at the party after 1:00 a.m. in the defendant's car. The record reflects that Saure drove Schimetz' car at least part of the way to the party because Schimetz was under the influence of alcohol. Baier drove her own car to the party, and they arrived at approximately the same time. Their cars were parked next to each other a short distance from the house in a poorly lit area. Schimetz testified the lights on his car were shut off when the group went in to the party. Schimetz, Saure, and Baier stayed at the party approximately one hour, and during that time Schimetz consumed more beer.

Schimetz testified as follows concerning the events leading up to and including an incident at his car: that upon leaving the party and walking to his car, he observed the left turn signal on his car blinking; that he observed the lights on inside his car; that when he got to his car, he saw a person he did not recognize inside his car holding what appeared to be a keyring; that he thought the person was stealing his car; that he told the person, Myron Scott, to get out of his car; that Scott did not respond and continued to "work a key into the ignition;" that he grabbed Scott in an attempt to remove him from his car; that the attempt was to no avail and he drew a knife to "scare the person out;" that he then grabbed Scott to try to pull him from the car; that Scott agreed to get out of the car; that he backed away and put his knife away; that after Scott got out of the car a brief struggle between himself and Scott ensued; that Scott returned to the party and he went home; and that he could not recall when or if Scott may have gotten cut.

Scott testified, in substance, that he was intoxicated and could not recall the events or circumstances of the incident with Schimetz. Scott did remember that he returned to the party and people informed him that he had been stabbed, and that he was subsequently treated for a stab wound.

Baier testified on direct examination at trial that during the incident Schimetz told Scott that "I could have cut you more or I should have cut you more." However, Baier also testified on cross-examination that it was possible that she heard Schimetz tell Scott "I should have cut you." Baier testified that after Scott got out of the car he was not trying to fight, but was trying to get away. Baier also testified as a rebuttal witness for the prosecution that Sauer told her (Baier) that Schimetz washed the knife off and that Schimetz "admitted to her [Saure] that he was sorry for it but it wasn't a killing stab."

Saure was called as a witness for Schimetz and testified on cross-examination that Schimetz was yelling at Scott and she pleaded with Schimetz to stop striking Scott; and that Scott did not swing at or hit Schimetz, but that Schimetz continued to grab and kick Scott. Saure also testified as follows as a rebuttal witness for Schimetz:

"Q Were you present then when Janine testified that you had said that Mark had washed off the knife?

"A Yes, I was.

"Q And did you, in fact, say that to Jennifer?

"A No. What I had said was when we came back into the house the next day the knife was laying on the table and we looked at it and we saw that there wasn't any blood on it. I think that's where she got that I said that he could have washed it off, you know.

"Q But you never--

"A I never said that he did wash it because I did not know that.

"Q Were you also present then when Janine testified that Mark admitted to you that he stabbed Myron Scott and that it was not a killing stab, did you hear that testimony, hear her testimony about that?

"A Yes, I did.

"Q Did Mark, in fact, say that to you?

"A No, he never said that he stabbed him. He said that yes, it was possible that Myron could have been cut while he was trying to pull him out of the car and he had the knife in his hand but he never exactly said that he stabbed him. He was trying to get him out and that it could have happened.

"Q Did he ever admit to you that he jabbed him or stuck him?

"A He said he didn't make a killing stabbing motion with the knife.

"Q So Mark never made the admission that Janine has just said?

"A No, he said it was possible."

The testimony at trial established that, several days after the incident at the party, a phone call was made by Schimetz to Scott. Scott testified on direct examination that during the phone call Schimetz stated, "I'm sorry I stabbed you. I thought it was a college kid. If I would have known it was you, I wouldn't have done it." On cross-examination Scott testified as follows concerning the phone conversation:

"Q It's true, isn't it, that he also told you that he called you because he had been told by John Schumer that he had stabbed you?

"A Yes.

"Q So Mark indicated to you that someone else had told him that he had stabbed you, right?

"A Yes.

"Q And he also told you in this conversation, did he not, that Mr. Schumer told Mark that he should call you and apologize, correct?

"A Yes.

"Q And he did, in fact, apologize to you?

"A That's why he said he was calling."

Schimetz testified that he made the phone call but denied the admission. Schimetz testified that he made the phone call because other people were accusing him of stabbing Scott and that another person told him he should call Scott and apologize. Schimetz denied willfully stabbing Scott and, in essence, testified that the stabbing was accidental.

A knife was seized from Schimetz when he was arrested. The State Laboratory conducted tests on the knife which established that traces of human blood were on the knife. However, the amount of blood on the knife was not sufficient to establish the type of human blood.

After the jury returned a verdict of guilty, the defendant moved for a new trial pursuant to Rule 33, North Dakota Rules of Criminal Procedure, and asserted as grounds for a new trial, among other things, that the evidence was insufficient ² to support a conviction for aggravated assault; that the court erred in refusing to give certain jury instructions requested by the defendant; and that the court improperly admitted into evidence hearsay testimony and lay opinion testimony. The court denied the defendant's motion and he appealed from the order denying his motion for a new trial and from the judgment of conviction.

Generally, the trial court is clothed with wide discretion in ruling on a motion for a new trial based on insufficiency of the evidence and the determination of the court will not be disturbed unless there is an abuse of that discretion. State v. Olmstead, 261 N.W.2d 880 (N.D.1978), cert. denied 436 U.S. 918, 98 S.Ct. 2264, 56 L.Ed.2d 759 (1978). We have defined an abuse of discretion as an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Dobervich v. Central Cass Public School District No. 17, 302 N.W.2d 745 (N.D.1981); In Interest of F.H., 283 N.W.2d 202 (N.D.1979). The motion for a new trial was based primarily upon the same issues presented on appeal from the judgment and we will discuss and treat them as being the same.

The first issue we will consider is whether or not the evidence was sufficient to support the jury verdict. The defendant pointed out that none of the State's witnesses saw the actual stabbing or knew exactly what happened. However, this does not alter the undeniable fact that Scott received a stab wound in his back. It is also uncontroverted that an incident occurred between Schimetz and Scott and a struggle ensued; that Schimetz drew a knife during the incident; and that tests conducted by the State Laboratory after the incident established that traces of human blood were on the knife.

Circumstantial evidence alone may be sufficient to find a person guilty of the crime charged. State v. McMorrow, 286 N.W.2d 284 (N.D.1979). Our role in cases involving circumstantial evidence is to review the record to determine if competent evidence was presented from which the jury could have drawn a justifiable inference reasonably tending to prove guilt and fairly warranting a conviction. State v. Allen, 237 N.W.2d 154 (N.D.1975).

Although we recognize that no evidence was introduced that anyone saw the actual stabbing, we believe there was sufficient circumstantial evidence presented to warrant a finding of guilt by the jury. We are aware that conflicting testimony existed concerning the incident and statements made during and after the incident. The jury has the duty and responsibility to weigh and determine the conflicting evidence. State v. Olmstead, supra. Without weighing the evidence, we conclude that the evidence presented at trial was sufficient to warrant and sustain a conviction as a matter of law of the crime of aggravated assault.

The next issue raised by Schimetz is that the trial court committed...