State v. Yineman

• Decision Date: 29 August 2002
• Docket Number: No. 20010279.,20010279.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kenneth YINEMAN, Defendant and Appellant.
• Court: North Dakota Supreme Court

651 N.W.2d 648

2002 ND 145

STATE of North Dakota, Plaintiff and Appellee, v. Kenneth YINEMAN, Defendant and Appellant.

No. 20010279.

Supreme Court of North Dakota.

August 29, 2002.

Allen M. Koppy, State's Attorney, Mandan, for plaintiff and appellee.

Robert W. Martin, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Kenneth Yineman appealed from a Morton County District Court criminal judgment entered after a jury convicted Yineman of leaving the scene of a traffic accident. Yineman contends the State did not produce evidence sufficient to support his conviction. The State, however, argues there was sufficient evidence to support the conviction, or, in the alternative, the State asserts Yineman failed to preserve the issue for appeal by not making a motion for a judgment of acquittal under N.D.R.Crim.P. 29(a). We affirm.

[¶ 2] A Morton County deputy sheriff was notified of an alleged hit and run accident south of Mandan, North Dakota, on Highway 1806. A description of the suspect vehicle including a license plate number was relayed to the deputy. The deputy then drove south along Highway 1806 until a vehicle matching the description of the suspect vehicle was located at the intersection of Highway 1806 and County Road 80.

[¶ 3] The vehicle was occupied by Yineman, who was the driver, and another individual. The deputy stopped the vehicle and spoke briefly with Yineman. The deputy also observed damage to the front driver's side of the vehicle. During this questioning, Yineman admitted to being involved in the accident and to leaving the scene of the accident. Based on the deputy's observations and Yineman's statements, Yineman was arrested and charged with leaving the scene of an accident.

[¶ 4] The driver of the vehicle which was allegedly struck by Yineman, was contacted and arrangements were made for him to bring his vehicle to the sheriff's office for inspection. When the driver of this vehicle came to the sheriff's office, the deputy first learned the details of the incident and saw the damage to the second vehicle.

[¶ 5] The deputy did not observe the second vehicle at the scene of the accident at any time, nor did he photograph the intersection generally or specifically any skid-marks that may have been at the scene. No photographs were taken of Yineman's car, and the deputy did not further investigate the scene of the accident.

[¶ 6] The case was tried to a jury. At the end of the State's case-in-chief, Yineman did not move for an acquittal under the rules of criminal procedure based on insufficiency of the evidence. Instead Yineman presented his own evidence. At the end of his own presentation, Yineman did not move for an acquittal. The jury returned a verdict of guilty.

I

[¶ 7] In State v. Himmerick, 499 N.W.2d 568, 572 (N.D.1993), we announced a departure from a well-established rule of law, which required any defendant to make a motion of acquittal under N.D.R.Crim.P. 29 to preserve an issue of sufficiency of the evidence for appellate review. We held the procedural requirement of making a motion for acquittal under N.D.R.Crim.P. 29 was unnecessary in bench trials, where a judge rather than a jury acts as factfinder. Id. Nonetheless, we expressly declared in Himmerick this new rule did not apply in civil cases, criminal jury cases, or "challenges based on the weight of the evidence" as opposed to challenges based on the sufficiency of the evidence. Id.

[¶ 8] Evidentiary sufficiency and evidentiary weight are distinct concepts. In State v. Kringstad, we explained:

A conviction rests upon insufficient evidence 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.

When a court, be it an appellate court or a trial court on motion for entry of a judgment of acquittal, concludes that evidence is legally insufficient to support a guilty verdict, it concludes that the prosecution has failed to produce sufficient evidence to prove its case. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars retrial in such a case.

353 N.W.2d 302, 306 (N.D.1984) (citations omitted).

[¶ 9] On the other hand, when a court is asked to consider whether or not a conviction is against the weight of the evidence, the court must evaluate for itself the credibility of the evidence. Id. "If the [trial] court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury." Id. (quoting U.S. v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980)).

[¶ 10] Therefore, while in challenges based on the weight of the evidence a trial court acts as a "thirteenth juror" and independently assigns value to and weighs evidence, in challenges based on the sufficiency of the evidence the court asks only if the prosecution's case could have been believed by a rational factfinder. Id. (quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)).

[¶ 11] Yineman presents his sole issue on appeal as if it were a challenge to the sufficiency of the evidence supporting his conviction, yet he marshals only weight-of-the-evidence arguments and evidence to the support of his cause. Specifically, in his brief to this Court Yineman asserts:

[T]he State presented not one single piece of consistent evidence to support the conviction in the instant case, including even the one "neutral" witness, Deputy Dion Bitz.

Deputy Bitz himself had to admit that he had no excuse for his failure to process the scene of the incident and that he made no attempt to go out to the site the next day due to the fact that he was on vacation, even though it would be a normal part of the investigative procedure to do so to determine the accuracy of the sole statement he had taken.

Further, even though Arley Bloomgren painted a graphic encounter with Kenneth Yineman, including the two occupants of Mr. Yineman's vehicle stopping, exiting, and approaching while making threatening "scalping" motions, the testimony presented by the other occupant of Mr. Bloomgren's vehicle directly refuted this roadside encounter. Rose Marie Bloomgren testified that nobody exited Mr. Yineman's vehicle after it pulled over directly contradicting her husband's flamboyant story of this encounter.

This represents the sum total of the evidence presented by the State, and while trial counsel did not move for a judgment of acquittal pursuant to Rule 29(a) of the North Dakota Rules of Criminal Procedure and chose to present an affirmative defense of duress, the presentation of such defense placed the circumstances of the incident into a they said/we said mode of conflicting testimony. This is not enough to support a "reasonable inference" of guilt "warranting a conviction", especially in light of the irreconcilable conflicts in the evidence presented by the State and the indifferent police work performed by Deputy Bitz.

(Citations omitted).

[¶ 12] Yineman is not arguing a rational factfinder could not have, drawing all inference in favor of the prosecution, found him guilty beyond a reasonable doubt. Rather, Yineman is arguing the weight of the evidence militates against finding him guilty beyond a reasonable doubt.

[¶ 13] As discussed above in State v. Himmerick, at 572, we explicitly put challenges of this sort beyond the reach of the modified rule. Therefore, for Yineman to have preserved his weight-of-the-evidence challenge to his conviction he was required to make an appropriate motion. He did not do so. Thus the issue was not properly preserved for appeal.

II

[¶ 14] Assuming, for purposes of discussion only, that Yineman is challenging his conviction on the basis the prosecution failed to produce sufficient evidence to prove its case, his argument is still inappropriately before this Court. Again, as discussed in Himmerick, we held "[t]his new rule does not apply to criminal jury trials." Id. at 573. We further explained "[a] defendant in a criminal jury trial must still make a motion for a judgment of acquittal to preserve the issue of sufficiency of the evidence for appeal." Id. Thus, it is clear, "[t]o preserve an issue of sufficiency of the evidence for review in a jury trial, a defendant must move the lower court for a judgment of acquittal under N.D.R.Crim.P. 29." City of Grand Forks v. Dohman, 552 N.W.2d 66, 67 (N.D.1996).

[¶ 15] Rule 29(a) of the Federal Rules of Criminal Procedure is "significantly similar to our Rule 29(a), N.D.R.Crim.P." Himmerick, at 572. Charles A. Wright, in his treatise on federal procedure, observes that the majority of federal circuits have interpreted the federal rule just as we have interpreted our similar state rule. Wright points out:

There is seemingly well-settled doctrine that if no motion for judgment of acquittal was made in the trial court, an appellate court cannot review the sufficiency of the evidence. And if the defendant has asserted specific grounds in the trial court as the basis for a motion for acquittal, he or she cannot assert other grounds on appeal.

Closely related to this is the rule that if the defendant does move for acquittal at the close of the government's case, but fails to renew the motion at the close of all the evidence, he has waived his earlier objection to the sufficiency of the government's evidence, and again there is nothing to review.

A very different rule applies in cases tried to the court. There it is held that the sufficiency of the evidence will be considered on appeal, even though there was no motion for acquittal, on the theory that "the plea of not guilty asks the

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