State v. Wolff, Cr. N

• Citation: 512 N.W.2d 670
• Decision Date: 23 February 1994
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Leon L. WOLFF, Defendant and Appellant. o. 930243.
• Court: United States State Supreme Court of North Dakota

Page 670

512 N.W.2d 670

STATE of North Dakota, Plaintiff and Appellee, v. Leon L. WOLFF, Defendant and Appellant.

Cr. No. 930243.

Supreme Court of North Dakota.

Feb. 23, 1994.

Rodney K. Feldner (argued), Mandan, for defendant and appellant.

Brian D. Grosinger (argued), Asst. State's Atty., Mandan, for plaintiff and appellee.

NEUMANN, Justice.

This is an appeal from a judgment of conviction. A jury found appellant guilty of violating a permanent adult abuse protection order. Appellant argues that the "service" element of NDCC Sec. 14-07.1-06 (1991) was not met. The trial court denied the appellant's motion for a judgment of acquittal. We affirm.

The material facts are not in dispute. Leon L. Wolff (Wolff) was arrested for violating a permanent adult abuse protection order issued under NDCC Sec. 14-07.1-02 (1989 Cum.Supp.). The original order was issued on April 22, 1991, and was personally served on Wolff. It included a geographical restriction prohibiting Wolff from entering the applicant's residence at Community Homes. This order was amended October 14, 1992, to reflect a change in the applicant's address, and to prohibit Wolff from going within one block of the new address. The amended order was served on Wolff by regular United States mail.

Evidence admitted at trial to establish the element of "service" included: testimony by Marie Voegele of the Abused Adult Resource Center; an affidavit of mailing swearing to the mailing of the amended order; testimony of Donna Bard, then of the Abused Adult Resource Center; and proof of personal service of the original order. The trial court denied Wolff's motion for a judgment of acquittal and the jury found Wolff guilty of violating the protection order.

On appeal, Wolff argues that the trial court erred in denying his motions for a judgment of acquittal because the State failed to prove "service" of the amended adult abuse protection order. ¹ This is a legal, rather than a factual, consideration. State v. Himmerick, 499 N.W.2d 568, 572 (N.D.1993). The scope of this appeal is narrow. The only issue is proof of the element of "service." Wolff has not raised issues regarding the adequacy of jury instructions, due process, or other constitutional issues.

Wolff's motion for a judgment of acquittal challenges the sufficiency of the evidence. Id.

"When reviewing sufficiency of the evidence on appeal, the only time we determine that a conviction rests on insufficient evidence is 'when, even after viewing 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 factfinder could have found the defendant guilty beyond a reasonable doubt.' If we conclude 'that the prosecution has failed to produce sufficient evidence to prove its case,' we must allow for the entry of a judgment of acquittal."

Id. at 573 (citations omitted). We do not reach such a conclusion here.

Wolff's argument relies on two theories. First, he argues that the method of service was inadequate; second, he argues that the proof of service was inadequate. We disagree with both of these theories.

I.

First, Wolff argues that service of an amended order by a nonattorney using regular United States mail cannot meet the service element of Sec. 14-07.1-06. We are faced with the preliminary task of defining the word "serve" as used in Sec. 14-07.1-06.

At trial, neither party attempted to instruct the jury as to the definition of "serve." Additionally, "serve" is neither defined in a general provision of the North Dakota Century Code, nor is it defined in Chapter 14-07.1. When words are not explained in the Century Code, absent the plain appearance of a contrary contention, they are to be understood in their ordinary sense. NDCC Sec. 1-02-02. Looking at the ordinary meaning, the relevant portion of the entry under "serve" in Webster's Third New International Dictionary (1971) includes: "to bring to notice, deliver, or execute."

Using an ordinary meaning of "serve," there is sufficient evidence to support a finding that the amended order was delivered, or executed, or that Wolff was given notice. The evidence included testimony by Marie Voegele, secretary at the Abused Adult Resource Center, that she placed a copy of the amended order in an envelope addressed to Wolff. She further testified that she placed the envelope with the outgoing mail, and that it was the business practice that either she or her supervisor would actually mail the letters each day by regular United States mail. Voegele also testified that the letter had not been returned to sender. Additionally, Dennis Bullinger, a police officer with the Mandan Police Department, using maps of Mandan which included the restricted geographical area, testified as to the implausibility of Wolff's arriving at the restricted geographical area by accident.

Wolff was given the opportunity to rebut the State's evidence, and to impeach the State's witnesses. Although he failed to raise any evidence to rebut his actual receipt of the amended order, he did cross-examine Voegele. On cross-examination, Wolff unearthed the possible inaccuracy of Voegele's affidavit of mailing. Although Voegele's affidavit swore that it was she who put the letter in the United States mail, she testified at trial that it was the business practice simply to put the letter in a box for outgoing mail. The person who actually deposited the outgoing mail in the United States mail would either be Voegele or her supervisor.

Given this testimony, there is sufficient evidence to find that the amended order was, in fact, mailed, and therefore was delivered, or executed, or that Wolff had notice of the geographical restriction included in the amended order. There is a rebuttable presumption that letters duly directed and mailed are received in the regular course of the mail. NDCC Sec. 31-11-03(24); see also Auto-Owners Ins. Co. v. State Farm Mut. Auto. Ins. Co., 434 N.W.2d 348, 350 (N.D.1989); State v. Tininenko, 371 N.W.2d 762 (N.D.1985). NDCC Sec. 12.1-01-03. Although the State's evidence of mailing was not conclusive, and Wolff's impeachment of Voegele was relevant evidence, there was sufficient evidence for the jury to have found the amended order was mailed or received. Conspicuous in its absence is at least some evidence that Wolff did not receive the amended order. "[E]vidence that a letter was not received is probative of whether it was mailed." Auto-Owners Ins. Co., 434 N.W.2d at 350 (citing to Tininenko, 371 N.W.2d at 762). In that respect, we distinguish the facts of this case from those in which there is testimony as to lack of receipt. See e.g., Auto-Owners Ins. Co., 434 N.W.2d at 348; State v. Knittel, 308 N.W.2d 379 (N.D.1981).

Looking for contrary intentions for the meaning of "serve" in Sec. 14-07.1-06, see NDCC Sec. 1-02-02, Wolff argues that "serve," as used in Sec. 14-07.1-06, refers to Rules 4 and 5 of the North Dakota Rules of Civil Procedure. It is true, in civil cases, that when faced with the task of determining the meaning of "serve" in our statutes, absent a specified method, our recourse has been to rely on the North Dakota Rules of Civil Procedure. E.g., Sande v. State, 440 N.W.2d 264 (N.D.1989). However, regardless of the meaning adopted in this case, Wolff's argument fails.

Service by a nonattorney using regular mail meets the requirements of the North Dakota Rules of Civil Procedure. ² The applicable Rule of Civil Procedure to be used when determining the allowable methods of service of this amended adult abuse protection order is Rule 5. Rule 5 applies to service of papers other than "process," and specifically applies to "every order required by its terms to be served." In contrast, "Rule 4 governs civil jurisdiction and service of process." N.D.R.Civ.P. Rule 4, explanatory note. " 'Process' means a writ or summons issued in the course of judicial proceedings." NDCC Sec. 1-01-49(6). An adult abuse protection order is neither a writ nor a summons. It therefore is not "process," and its service is governed by Rule 5.

We disagree with Wolff's contention that under Rule 5, service by mail by anyone other than an attorney requires a signed receipt as evidence that the mailing resulted in delivery to the individual to be served. See Rule 4(d)(2)(A)(iv). The kind of service required by Rule 4 for service of process is not required for service of this order. Although Rule 5 allows Rule 4 service, it does not require Rule 4 service for things other than process. See Rules 4 and 5.

Rule 5(b) outlines how service of other papers is made upon a person not represented by counsel. "Service upon the ... party must be made by delivering a copy to the ... party or mailing it to the ... party at the ... party's last known address.... Service by mail is complete upon mailing." Rule 5(b) (emphasis ours). Nowhere in Rule 5 does it require that mailing be done by certified or registered mail. Wolff bases his argument on a provision of Rule 5 which states "[p]roof of service under this rule may be made as provided in Rule 4 or by certificate of an attorney showing that the attorney has made service pursuant to subdivision (b)." Rule 5(f) (emphasis ours). To allow Rule 4 proof of service requirements to dictate the allowable methods of service under Rule 5 would be ludicrous. "May" is the operative word in subsection (f). Although a Rule 4 proof of service in the form of an affidavit of mailing does require that a return receipt be attached, see Rule 4(j), a Rule 5 affidavit of mailing does not. Rule 5(f); see NDCC Sec. 31-04-05 (use of affidavits). Rule 5 proof of service is not limited to what is allowed under Rule 4, and nonattorneys are not limited to registered or certified mail in order to serve papers other than process.

II.

In his second argument, Wolff argues that even if the method of service was adequate, the proof of service was not adequate. The...