State v. Thorson

• Decision Date: 02 March 1978
• Docket Number: Cr. N
• Citation: 264 N.W.2d 441
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Darryl THORSON, Defendant and Appellant. o. 619.
• Court: North Dakota Supreme Court

Page 441

264 N.W.2d 441

STATE of North Dakota, Plaintiff and Appellee, v. Darryl THORSON, Defendant and Appellant.

Cr. No. 619.

Supreme Court of North Dakota.

March 2, 1978.

Leo Broden, Devils Lake, for defendant and appellant.

Keith C. Magnusson, Asst. State's Atty., Lakota, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

Darryl Thorson appeals from a Nelson County District Court judgment of conviction based on a verdict of a jury which found him guilty of criminal mischief, a class C felony.

The facts relative to this appeal are not in dispute. On the morning of July 29, 1976, a tractor belonging to Connley Anderson was found in the Sheyenne River about three miles north of his farm. A cultivator, a harrow, and a pony drill were attached to the tractor. The tractor had been parked in the Anderson farmyard the night before and was moved sometime during the night. The route the tractor had been driven was apparent from the damaged crops, fences, and trees.

A criminal information was issued on December 7, 1976, charging Thorson with the crime of criminal mischief in violation of Section 12.1-21-05, N.D.C.C. A jury trial was held on June 21, 22, and 23, 1977. At the trial there was considerable evidence concerning the damage to the tractor, the attached implements, fences, and crops. There was, however, only one witness, Bob Brotten, whose testimony linked Thorson to the incident. Brotten testified as to what occurred that night and, if believed, his testimony clearly implicated Thorson with the commission of the crime. At the conclusion of the trial, the jury found Thorson guilty of criminal mischief, and found that the damages exceeded $5,000 thus making the offense a class C felony.

In this appeal, Thorson contends that under the laws of North Dakota there was insufficient competent evidence upon which to base his conviction. This contention is based on two premises. The first premise is that the trial court erred in not instructing the jury that Brotten, as a matter of law, was an accomplice. The second premise is that Brotten's testimony, as an accomplice, was not sufficiently corroborated as required by Section 29-21-14, N.D.C.C.

The first issue we must decide is whether the determination that a witness is an accomplice is a question of fact or law. We think the proper rule is that if the facts as to the witness' culpability are disputed or susceptible of different inferences, then it is a question of fact for the jury. If, on the other hand, the facts as to the witness' culpability are neither disputed nor susceptible of different inferences, then it is a question of law for the court. Tucker v. State, 245 N.W.2d 199 (Minn.1976); State v. Sallis, 238 N.W.2d 799 (Iowa 1976); State v. Johnson, 81 S.D. 600, 139 N.W.2d 232 (1965).

This court, in the past, has stated that whether or not a person is an accomplice is a question of fact. State v. Powell, 73 N.W.2d 777 (N.D.1955); State v. Kellar, 8 N.D. 563, 80 N.W. 476 (1899). In both those cases, however, the facts were disputed and susceptible of different inferences. In State v. McCarty, 47 N.D. 523, 182 N.W. 754 (1921), this court stated that an instruction that a witness was an accomplice could only be given where there is no dispute in the evidence. Thus, our past statements on this question are consistent with the rule stated above which we now expressly adopt.

To apply this test to this case, it is necessary to look at the evidence concerning Brotten's involvement in the incident. Brotten testified that Thorson, Mark Ensrud, and he were driving around the night of the 28th and the morning of the 29th of July, 1976, in Thorson's automobile. He stated that they had had a lot to drink and that they were "planning to get some farm machinery". He said he could not remember whose idea it was to get the farm machinery, but that it was just "an agreement between us".

According to Brotten, the three of them stopped at the Anderson farm where Thorson drove the tractor out of the yard and into a field. Thorson then jumped off the tractor and the tractor kept going in circles. Mark Ensrud then got on the tractor and drove it north for a mile or more. Ensrud stopped the tractor and Thorson got back on the tractor and drove it north again. Thorson drove the tractor toward the river and down a hill leading to the river. Shortly thereafter, Thorson came running back to the car, and, from a nearby bridge, Brotten saw the tractor in the river.

Brotten testified that he did not drive the tractor himself, but followed along in Thorson's car. He also stated that he did not drive the car. He did testify, however, that he got out of the car at the Anderson farm with a .22 rifle when they first took the tractor. He said there was a dog by the tractor at that time and it was possible that he intended to shoot the dog. He did not fire a shot, and otherwise testified that he did not know if he intended to shoot the rifle.

Brotten further testified that he knew Thorson was going to take the tractor at the Anderson farm and that he did not object. He said that at the time they initially decided to get some farm equipment, he fully intended to participate in the driving. He later testified, though, that he could not remember if he still planned to drive the tractor after they had taken it.

This testimony of Brotten concerning his involvement in the incident is not disputed. Thorson contends that as a result of this undisputed evidence, the trial court was required as a matter of law to find that Brotten was an accomplice, and to so instruct the jury. In support of this contention, Thorson relies on State v. Anderson, 172 N.W.2d 597 (N.D.1969), and State v. Helmenstein, 163 N.W.2d 85 (N.D.1968), where we stated:

" 'Where circumstances show a common plan of several persons to do an unlawful act, to which all assent, whatever is done in furtherance of the original design is the act of all. Each one need not take an active part in the commission of the crime to make him guilty of it.' State v. Helmenstein, 163 N.W.2d 85 (N.D.1968)." State v. Anderson, supra, 172 N.W.2d at 600.

In Helmenstein, a group of young people planned a burglary of a grocery store. The group drove to Hannover, and parked the car some distance from the store. Three of the party broke into the store and stole some merchandise. Afterward, they returned to the car, and the whole group agreed on what story to tell if they were questioned later. They also divided the loot. At the trial of one of the alleged participants, the other five members of the group testified for the State. There was no other evidence offered connecting the defendant with the crime. The trial court found that one of the State's witnesses was not an accomplice because he did not take an active part in the burglary and in fact was actually asleep during the time of the burglary. On the basis of that witness' testimony, the court found the defendant guilty.

On appeal we reversed the district court after holding that all five of the other members of the group were accomplices. In that case, we concluded that all three people who remained in the car were accomplices, even though they did not take an active part in the burglary, and even though they had objections to the burglary which they did not express.

State v. Anderson, supra, also involved a burglary. Four persons who agreed to burglarize a building, parked the car in which they were riding about one and one-half blocks away from the building. One of the group stayed in the car while the others went to the building. A police car arrived at the scene of the attempted burglary and two of the persons ran away. The other person was apprehended. At the trial of one of the members of the group, the person who stayed in the car was the State's witness. When the conviction was appealed to this court, we stated that the person who remained in the car was clearly an accomplice and that his testimony, therefore, had to be corroborated.

We disagree with Thorson's contention that under the facts of this case the holdings of Anderson and Helmenstein required the trial court to find that Brotten, as a matter of law, was an accomplice. In both Anderson and Helmenstein, it was clear that there were common plans to commit burglary. The facts were undisputed and not susceptible of different inferences. In this case, however, while the facts concerning the agreement are undisputed, they are susceptible of different inferences.

The only evidence concerning what was agreed to in this case was Brotten's statement that they were "planning to get some farm machinery". This ambiguous statement is susceptible of different inferences. It cannot be concluded that the only inference that could arise from that statement was that there was a common plan to commit "criminal mischief" ¹ or some other crime.

Having determined that the evidence of whether or not there was a common plan to commit "criminal mischief" in this case is susceptible of different inferences, it cannot be said that the trial court erred in not finding, as a matter of law, that Brotten was an accomplice. It is undisputed that Brotten was at the scene of the crime, but as recently as 1977, we have stated that "mere presence at the scene of the crime is not enough to make one an accomplice." Zander v. S. J. K., 256 N.W.2d 713 (N.D.1977). Whether or not there was a common plan to commit "criminal mischief", or whether or not Brotten took an active enough part in the commission of the offense so as to be found to be an accomplice, were questions of fact properly left for the jury in this case.

Thorson also claims that the trial court improperly instructed the jury by giving an instruction defining accomplice which did not contain part (c) of Section 12.1-03-01(1), N.D.C.C. Part (c) of Section 12.1-03-01(1), N.D.C.C., was added after North Dakota Jury Instruction No. 1300 (which the trial court gave in this case) was drafted....