State v. A.V. (In re K.V.)

• Decision Date: 29 October 2019
• Docket Number: No. 20190074,20190074
• Parties: In the INTEREST OF K.V., a Child State of North Dakota, Petitioner and Appellee v. A.V., mother of said child; and E.D., father of said child, Respondents and K.V., said child, Respondent and Appellant
• Court: North Dakota Supreme Court

934 N.W.2d 879

In the INTEREST OF K.V., a Child

State of North Dakota, Petitioner and Appellee

v.A.V., mother of said child; and E.D., father of said child, RespondentsandK.V., said child, Respondent and Appellant

No. 20190074

Supreme Court of North Dakota.

Filed October 29, 2019

Maren H. Halbach, State’s Attorney, Devils Lake, ND, for petitioner and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for respondents and appellants.

Crothers, Justice.

[¶1] A.V., and E.D. are mother and father of K.V. They and K.V. appeal from the juvenile court order finding K.V. committed the delinquent acts of criminal trespass, fleeing or attempting to elude a peace officer, and reckless driving. They argue N.D.C.C. § 12.1-22-03(3)(b) is void for vagueness and insufficient evidence supports finding K.V. committed criminal trespass, fled or attempted to elude a police officer, and drove recklessly. We affirm in part and reverse in part.

I

[¶2] On November 15, 2018, a juvenile petition was filed alleging K.V. committed the delinquent acts of criminal trespass, fleeing or attempting to elude a peace officer, and reckless driving. An adjudication hearing was held on February 14, 2019, and the juvenile court found beyond a reasonable doubt that K.V. committed all three allegations. K.V. and his parents appeal.

[¶3] On June 16, 2018, Devils Lake Police Officer Myrum received a call from the owner of Butler Machinery regarding a trespass that occurred on June 13, 2018. At trial, Myrum testified he viewed photographs showing a blue or gray Toyota pickup and a red Chevrolet pickup on Butler’s machine lot. He identified the driver of the Toyota and interviewed him over the telephone. The owner of the Toyota said he was driving on the lot but did not notice the "no trespassing" signs near the entrance. He also told Myrum that K.V. was driving the Chevrolet. Myrum testified two large "no trespassing" signs were posted by the lot entrance.

[¶4] Devils Lake Officer Khalifa testified at trial she saw a juvenile enter the driver’s side of an older red Chevrolet pickup. She identified the driver as K.V. based on other officers who told her what he looked like, and from a picture of K.V. She noticed the red pickup had a burned out tail light on the driver’s side and K.V. did not make a complete stop at a stop sign. Khalifa contacted Officer Johnson to stop the pickup because she was in an unmarked vehicle. Johnson testified he received a call from Khalifa stating a vehicle was northbound on Fifth Avenue Southeast headed toward the downtown area. Johnson arrived at Sixth Avenue, followed the vehicle and witnessed K.V. drive through three stop signs. When he was about a block behind the vehicle, Johnson testified he turned on his overhead lights to stop the pickup. He heard the vehicle’s engine rev and saw it pick up speed. Johnson testified he estimated the vehicle’s speed at 60 to 65 miles an hour. He was unable to complete the stop due to safety issues. In the juvenile court’s ruling the judge stated this series of events happened in a residential area.

[¶5] The juvenile court found beyond a reasonable doubt K.V. committed the delinquent acts of criminal trespass, fleeing or attempting to elude a peace officer, and reckless driving.

II

[¶6] The appellants argue the trespass statute, N.D.C.C. § 12.1-22-03(3)(b), is void for vagueness.

[¶7] "It is a well-established principle in this state that issues not raised below cannot be raised on appeal. ‘Generally, issues not raised in the trial court, even constitutional issues , will not be addressed on appeal.’ " State v. Tweed , 491 N.W.2d 412, 417 (N.D. 1992) (quoting State v. Miller, 388 N.W.2d 522 (N.D. 1986) ). The narrow exception to this principle is that "obvious error or defect that affects substantial rights may be considered even though it was not brought to the court’s attention." N.D.R.Crim.P. Rule 52(b). "To establish obvious error, a defendant must show (1) error, (2) that is plain, and (3) that affects substantial rights." State v. Blurton , 2009 ND 144, ¶ 8, 770 N.W.2d 231.

[¶8] The appellants did not argue the obvious error exception and therefore did not show a plain error exists that affects substantial rights. Because the constitutional argument was not raised in the juvenile court and K.V. has not argued obvious error, the argument has been forfeited. State v. Tweed , 491 N.W.2d 412 (N.D. 1992).

III

[¶9] The juvenile court found K.V. committed the delinquent act of criminal trespass, a class A misdemeanor, in violation of N.D.C.C. § 12.1-22-03(3)(b). The appellants argue the only difference between the criminal and noncriminal trespass statute is that the criminal statute requires "[t]he name of the person posting the premises must appear on each sign in legible characters," and substantial compliance with subsection (a) must include the name of the person on the sign. N.D.C.C. § 12.1-22-03(3)(a). They further argue no testimony indicated the sign had the name of the person posting the sign.

[¶10] This Court’s standard of review of a juvenile court’s order is well established:

"Under N.D.R.Civ.P. 52(a), this Court reviews a juvenile court’s factual findings under a clearly erroneous standard of review, with due regard given to the opportunity of the juvenile court to judge the credibility of the witnesses. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. This Court reviews questions of law de novo."

In re D.O. , 2013 ND 247, ¶ 6, 840 N.W.2d 641 (citing Interest of R.A. , 2011 ND 119, ¶ 4, 799 N.W.2d 332 (quoting Interest of A.R. , 2010 ND 84, ¶ 5, 781 N.W.2d 644 )).

[¶11] Trespassing on private property is unlawful under North Dakota law. The severity of punishment for trespassing differs based on circumstances of the trespass.¹ Sections 12.1-22-03(3) and 12.1-22-03(4), N.D.C.C., both address punishment for trespassing and provide in pertinent part:

"3. a. An individual is guilty of a class B misdemeanor if, knowing that that individual is not licensed or privileged to do so, the individual enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the individual in charge of the premises or other authorized individual or by posting in a manner reasonably likely to come to the attention of intruders. The name of the person posting the premises must appear on each sign in legible characters.

b. Even if the conduct of the owner, tenant, or individual authorized by the owner varies from the provisions of subdivision a, an individual may be found guilty of violating subdivision a if the owner, tenant, or individual authorized by the owner substantially complied with subdivision a and notice against trespass is clear from the circumstances.

....

4. a. An individual, knowing the individual is not licensed or privileged to do so, may not enter or remain in a place as to which notice against trespass is given by posting in a manner reasonably likely to come to the attention of intruders. A violation of this subdivision is a noncriminal offense."

[¶12] The court found the lot was properly posted because there were two "no trespassing" signs by the lot entrance. The court stated, "I don't know where else a person could put [the signs] to try to make them so manifest to come to the intention [sic] of intruders."

[¶13] Interpretation of a statute is a question of law. In re R.A. , 2011 ND 119, ¶ 24, 799 N.W.2d 332 (citing In re M.W. , 2009 ND 55, ¶ 6, 764 N.W.2d 185 ). We look at the plain language of the statute and give each word its ordinary meaning. Id. ; N.D.C.C. § 1-02-02. "A statute is ambiguous if it is susceptible to different, rational meanings." In re R.A. , at ¶ 24. "If a statute is ambiguous or if adherence to the strict letter would lead to an absurd or ludicrous result, a court may look at extrinsic aids, including legislative history, to interpret the statute." Id. (citing M.W. , at ¶ 6 ; N.D.C.C. § 1-02-39 ). " ‘We presume the legislature did not intend an absurd or ludicrous result or unjust consequences, and we construe statutes in a practical manner, giving consideration to the context of the statutes and the purpose for which they were enacted.’ " Id. (quoting State v. Fasteen , 2007 ND 162, ¶ 8, 740 N.W.2d 60 ).

[¶14] Here, the Butler Machinery lot was not presumed to be open land. However, for an individual to be charged with criminal trespass the landowner must comply with N.D.C.C. § 12.1-22-03(3). This statute requires that the owner or other authorized person, 1) provide notice against trespass; 2) post a sign in a manner reasonably likely to come to the attention of intruders; and 3) the sign identify the name of the person posting the premises.

[¶15] All three elements are required for a criminal trespass violation. Here, testimony established two "no trespassing" signs were posted near the lot entrance. The owner met the first requirement because a sign stating "no trespassing" provides notice to individuals they are not licensed or privileged to be on the land. The owner also met the second requirement because the "no trespassing" signs were placed near the entrance where they easily could be seen. For the third requirement, no evidence established the name of the person posting the property was on the sign. Therefore, the issue is whether substantial compliance under N.D.C.C. § 12.1-22-03(3)(b) applies to N.D.C.C. § 12.1-22-03(3)(a) as a whole, or whether substantial compliance applies to each requirement individually.

[¶16] Section 12.1-22-03(3)(a), N.D.C.C., states, "[t]he name of the person posting the premises must appear on each sign in legible characters." (Emphasis added.) The words "must" and "shall" in a statute normally indicate a mandatory duty. James Valley Grain, LLC v. David , 2011 ND 160, ¶ 12, 802 N.W.2d 158 (citing ...