State v. Warmsbecker, Cr. N
| Decision Date | 21 February 1991 |
| Docket Number | Cr. N |
| Citation | 466 N.W.2d 105 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Leonard WARMSBECKER, Jr., Defendant and Appellant. os. 900246, 900247. |
| Court | North Dakota Supreme Court |
Janet Holter Zander of Anseth & Zander, Williston, for defendant and appellant.
Charles C. Wilder, Asst. State's Atty., Williston, for plaintiff and appellee.
Leonard Warmsbecker appealed from a jury verdict convicting him of disorderly conduct in violation of section 12.1-31-01, NDCC, and from the sentence imposed resulting from that conviction. 1 We affirm the conviction.
In the early morning hours of July 7, 1989, Christina Belisle and Cheryl Lindblom were walking from a convenience store to Christina's home when three men began to verbally harass and pursue the two teenage girls. The girls ran to Christina's home and informed her father, Williston police officer David Belisle, of this incident. The girls were unable to describe the faces of the three men but did report that the men appeared intoxicated and that one of them was wearing a red shirt.
Belisle and the two girls left the house in Belisle's car to find the men. Approximately three blocks from his house, Belisle saw three men, one of whom was wearing a red shirt, walking on the sidewalk along Eighteenth Street. The three men seen by Belisle were later identified as the defendant Warmsbecker, his brother Terry Warmsbecker, and friend Scott Lantz. Belisle drove his vehicle to the curb with the left side of the vehicle adjacent to the sidewalk and, while sitting in his vehicle, accused the men of chasing his daughter. Belisle told the men that he was a police officer but produced no identification. Belisle, still in his car, restrained Warmsbecker by grabbing his shirt. It is unclear whether Belisle struck Warmsbecker with his fist, but the testimony did establish that Warmsbecker responded to Belisle's actions by delivering at least one blow to his face.
Belisle returned home and telephoned the Williston Police Department. Four patrol cars responded and after a considerable search Warmsbecker was apprehended. Warmsbecker was arrested by Officer Mark McNamee and was transported to the Williams County jail. Warmsbecker became verbally abusive while in the patrol car en route to the jail. While in an elevator at the jail, Warmsbecker continued his verbal abuse and attempted to kick McNamee. Warmsbecker was videotaped during the booking process and remained verbally abusive and threatening throughout.
Warmsbecker was charged with simple assault for striking Belisle and with disorderly conduct for engaging in violent and threatening behavior following his arrest for simple assault. Warmsbecker entered a plea of not guilty to each charge and was scheduled for a single trial on both charges. Warmsbecker moved the court for relief from prejudicial joinder of offenses pursuant to Rule 14, NDRCrimP. 2 The trial court denied Warmsbecker's motion and he was tried by a single jury on the two charges. The jury returned a verdict of not guilty on the assault charge but guilty on the disorderly conduct charge. The court sentenced Warmsbecker to thirty days in jail, twenty-seven of which were suspended for one year, and assessed costs in the amount of $400.00.
Warmsbecker raises three issues on appeal:
I. Whether the trial court erred in denying Warmsbecker's motion for separate trials.
II. Whether the trial court erred in allowing the State to introduce the videotape depicting Warmsbecker's behavior during the booking process.
III. Whether the sentence imposed violates Warmsbecker's right of due process.
Although the offenses of assault and disorderly conduct were charged in separate criminal complaints, the charges were joined at a single trial. Rule 13, NDRCrimP, governs such joinder and provides:
Consolidation of offenses under Rule 13 is proper if the offenses charged in the separate criminal complaints could have been joined in a single charge under Rule 8(a), NDRCrimP. State v. Gann, 244 N.W.2d 746 (N.D.1976). Under Rule 8(a) two offenses may be charged in the same complaint in a separate count for each offense if they "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of the common scheme or plan." The decision to consolidate offenses at trial is left to the discretion of the trial court. State v. Gann, supra. We will reverse a trial court's decision only where there is a clear abuse of that discretion. Id.
In the present case, the trial judge determined that the actions resulting in the assault charge were closely connected to the actions resulting in the disorderly conduct charge. The trial judge in his order denying the motion for separate trials summarized the connection as follows:
As the trial judge indicated, Warmsbecker's post-arrest behavior which resulted in the disorderly conduct charge was inextricably intertwined with his behavior which resulted in the arrest for assault. Indeed, Warmsbecker defended his conduct while at the jail by asserting that he was feeling "extremely belittled" because he was "being arrested for something for which [he] didn't do." A jury could not intelligently consider this defense without an explanation of events preceding his initial arrest. When an action in response to an arrest amounts to criminal conduct and is closely connected to the behavior which resulted in the initial arrest, joinder of the consequential criminal charge may be appropriate. Cf. People v. Solak, 382 N.W.2d 495 (Mich.App.1985). [The charge of assaulting a police officer was properly joined with the charge of driving under the influence of intoxicants when the former offense occurred during the investigation of the latter.]
Although joinder of charges may be proper under Rule 8(a), the trial judge may consolidate charges under Rule 13 "only if the doctrine of trial expediency may be effected without interference with substantial justice." State v. Gann, supra at 750. Under Rule 14, an aggrieved defendant may seek relief from prejudicial joinder. See footnote 1, supra, for the text of Rule 14. The defendant, however, has the burden of demonstrating substantial prejudice from a consolidated trial. State v. Boushee, 284 N.W.2d 423 (N.D.1979). A mere showing that a separate trial would have provided a better chance of acquittal will not suffice. State v. Boushee, supra.
Warmsbecker asserts two prejudicial effects of the consolidation of the charges. First, Warmsbecker asserts that consolidation encourages the jury to transfer guilt from one charge to the other. This general assertion is weakened in the instant case by reason of the jury's ability to keep separate the charges as evidenced by the guilty verdict on the disorderly conduct charge and the not guilty verdict on the assault charge. Second, Warmsbecker asserts that in cases where two charges are pending against a defendant it is too easy for a jury to "split[ ] the difference" by finding him guilty of one charge, but not guilty on the other charge. Warmsbecker's assertions are mere speculation. The jury in the instant case was specifically admonished by the trial court to consider each charge separate and apart from the other. We must assume, without proof to the contrary, that the jury heeded that admonition. See Powers v. Martinson, 313 N.W.2d 720 (N.D.1981). Warmsbecker has not demonstrated his claim that he was prejudiced by joinder of the charges.
The second issue raised by Warmsbecker is whether the trial court erred in allowing the State to introduce the videotape taken during Warmsbecker's booking. Warmsbecker initially contends that the videotape should not have been allowed in as rebuttal evidence.
After the defense had rested, the prosecution called two rebuttal witnesses to the stand. The second witness, jailer Steve Thompson, described the process for videotaping bookings and helped lay the foundation for the introduction of the videotape of Warmsbecker being booked. The avowed purpose for introducing the videotape was to rebut Warmsbecker's testimony which minimized his behavior at the jail and which contradicted testimony of the State's witnesses. Warmsbecker argues that the trial court abused its discretion in allowing the State to introduce the videotape on rebuttal because it should have been introduced, if at all, in the State's case in chief. The effect of introducing the videotape during rebuttal, Warmsbecker alleges, was to sensationalize his use of profanity during...
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