State v. Zottnick

• Decision Date: 11 May 2011
• Docket Number: No. 20100310.,20100310.
• Citation: 2011 ND 84,796 N.W.2d 666
• Parties: STATE of North Dakota, Plaintiff and Appelleev.Ryan ZOTTNICK, Defendant and Appellant.
• Court: North Dakota Supreme Court

796 N.W.2d 666

2011 ND 84

STATE of North Dakota, Plaintiff and Appellee

v.Ryan ZOTTNICK, Defendant and Appellant.

No. 20100310.

Supreme Court of North Dakota.

May 11, 2011.

Pamela Ann Nesvig, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee; on brief.

Susan Schmidt, Bismarck, N.D., for defendant and appellant.VANDE WALLE, Chief Justice.

[¶ 1] Ryan Zottnick appealed from a criminal judgment entered after a jury found him guilty of violating an order prohibiting contact with Katie Abt. Zottnick argues the district court erred in refusing to instruct the jury on excuse and there is insufficient evidence to support the conviction. We affirm.

I

[¶ 2] The State charged Zottnick with violating an order prohibiting contact under N.D.C.C. § 12.1–31.2–02, alleging he had direct contact with Abt from November 1 through 3, 2009, in violation of an October 19, 2009 order prohibiting that contact. The October 19, 2009 order prohibited Zottnick from any direct or indirect contact with Abt, including threatening, molesting, injuring, or harassing her, calling, writing, or visiting her anywhere, having messages delivered to her, or entering or coming within 100 yards of her or her residence. The order prohibiting contact explicitly specified in bold print that “[c]onsent of [Abt] does not invalidate this order,” and on October 19, 2009, Zottnick signed an admission of service of the order.

[¶ 3] At trial, Abt testified that between November 1 and 3, 2009, Zottnick repeatedly telephoned her, emailed her, sent her text messages, and on November 2, 2009, he came to her parents' house while she was there and pounded on the door. The State introduced copies of text messages and e-mails sent to Abt from November 1 through 3, 2009, from telephone numbers for phones belonging to Zottnick and an audio recording of a phone message left on her phone. The State also introduced Zottnick's cellular telephone records for incoming and outgoing calls from October 19, 2009 through November 3, 2009, for two telephone numbers for phones belonging to him. Those records indicate Abt initiated six phone calls to Zottnick's phones from October 19 through October 31, 2009, and numerous calls were made from his phones to her phone during that time. Those records further reflect that two phone calls were made from Abt's phone to Zottnick's phones from November 1 through November 3, 2009, and numerous calls were made from his phones to her phone.

[¶ 4] At trial, Zottnick claimed Abt initiated contact with him and his conduct in replying to her was excused. Zottnick requested a jury instruction on excuse patterned after N.D.C.C. § 12.1–05–08 and N.D.J.I. Criminal K–3.80. The district court refused to give that instruction, ruling there was no “clear indication [in the record] of what the content of [Abt's] contact was, other than [defense counsel] asked her some questions about e-mails and she said she wasn't sure without looking at the e-mails. So I don't know that we have any of that as evidence. [Defense counsel's] questions aren't evidence. It's a matter of whatever Ms. Abt says. So I am not going to instruct on excuse.” A jury thereafter found Zottnick guilty of violating the order prohibiting contact with Abt.

II

[¶ 5] Zottnick argues the district court erred in refusing to give his requested jury instruction on excuse based on N.D.C.C. § 12.1–05–08 and patterned after N.D.J.I. CRIMINAL K–3.80. The pattern jury instruction provides:

A person's conduct is excused if the person believes that the facts are such that the conduct is necessary and appropriate, even though that belief is mistaken.

[However, if that belief is negligently

or recklessly held, it is not an excuse in a prosecution for any offense for which negligent or reckless conduct suffices to establish culpability.]

Zottnick claims phone records established he was entitled to that instruction because Abt initiated contact with him to reestablish a prior relationship with him and he was excused in replying to her contacts with him.

[¶ 6] “We review jury instructions as a whole to determine whether they fairly and adequately advise the jury of the applicable law.” State v. Ness, 2009 ND 182, ¶ 13, 774 N.W.2d 254. “ ‘A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense.’ ” Id. (quoting State v. Zajac, 2009 ND 119, ¶ 12, 767 N.W.2d 825). We view the evidence in the light most favorable to a defendant to decide if there is sufficient evidence to support a jury instruction. Ness, at ¶ 13. A court errs if it refuses to instruct the jury on an issue that has been adequately raised, but the court may refuse to give an instruction that is irrelevant or inapplicable. Id.

[¶ 7] Section 12.1–05–08, N.D.C.C., provides the basis in our criminal code for claiming the defense of excuse:

A person's conduct is excused if he believes that the facts are such that his conduct is necessary and appropriate for any of the purposes which would establish a justification or excuse under this chapter, even though his belief is mistaken. However, if his belief is negligently or recklessly held, it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability. Excuse under this section is a defense or affirmative defense according to which type of defense would be established had the facts been as the person believed them to be.

That statute is part of N.D.C.C. ch. 12.1–05, which deals with defenses in the criminal code involving justification and excuse. See State v. Leidholm, 334 N.W.2d 811, 814–15 (N.D.1983) (discussing justification and excuse in context of self-defense); see also N.D.C.C. § 12.1–02–03 (“[u]nless otherwise expressly provided, a mistaken belief that the facts which constitute an affirmative defense exist is not a defense”). Criminal conduct that may be justified or excused under N.D.C.C. ch. 12.1–05, includes conduct in the execution of a public duty, self-defense, defense of others, use of force by persons with parental, custodial, or similar responsibilities, and use of force in defense of premises and property. See N.D.C.C. §§ 12.1–05–02 through 12.1–05–07.2. Chapter 12.1–05, N.D.C.C., also provides for affirmative defenses of mistake of law, duress, and entrapment. See N.D.C.C. §§ 12.1–05–09 through 12.1–05–11.

[¶ 8] Under N.D.C.C. ch. 12.1–05, conduct that constitutes a defense may be justified or excused. See Leidholm, 334 N.W.2d at 814. In Leidholm, at 814–15 (emphasis in original), we explained the distinction between justification and excuse:

A defense of justification is the product of society's determination that the actual existence of certain circumstances will operate to make proper and legal what otherwise would be criminal conduct. A defense of excuse, contrarily, does not make legal and proper conduct which ordinarily would result in criminal liability; instead, it openly recognizes the criminality of the conduct but excuses it because the actor believed that circumstances actually existed which would justify his conduct when in fact they did not. In short, had the facts been as he supposed them to be, the actor's conduct would have been justified rather than excused.

[¶ 9] “A defendant may be entitled to an excuse jury instruction and his conduct may be excused if there is evidence that ‘he believes that the facts are such that his conduct is necessary and appropriate for any of the purposes which would establish a justification or excuse under [N.D.C.C. ch. 12.1–05], even though his belief is mistaken.’ ” Ness, 2009 ND 182, ¶ 18, 774 N.W.2d 254 (quoting N.D.C.C. § 12.1–05–08). In Ness, at ¶ 18, the defendant claimed his failure to immediately tag a deer after it was killed was excused because “it was late in the deer hunting season, he had not had a chance to shoot any deer, and the deer population was large and needed to be reduced.” We said the defendant did “not claim his conduct was necessary and appropriate for any purpose which would establish a justification or excuse recognized in N.D.C.C. ch. 12.1–05,” and we concluded the evidence did not support an excuse instruction. Ness, at ¶ 18.

[¶ 10] In State v. Fridley, 335 N.W.2d 785, 787 (N.D.1983), a motor vehicle operator convicted of driving while his license was revoked claimed a defense of excuse based upon a mistake of law. We held the defense of excuse based upon a mistake of law was not applicable to prosecutions for driving under a revoked license, because that offense was a strict liability offense for which proof of culpability was not required. Id. We said because the mistake-of-law defense was not applicable to a prosecution for driving with a revoked license, the driver's “conduct could not be ‘necessary and appropriate for any of the purposes which would establish a justification or excuse under ... [Chapter 12.1, i.e., mistake of law under § 12.1–05–09, N.D.C.C.]’.... Therefore, excuse, as set forth in § 12.1–05–08, N.D.C.C., is equally inapplicable.” Fridley, at 790.

[¶ 11] A common thread in our cases about excuse is that the circumstances of a defendant's claimed excuse must be necessary and appropriate for one of the purposes that could establish a justification or excuse under N.D.C.C. ch. 12.1–05. See Ness, 2009 ND 182, ¶ 18, 774 N.W.2d 254 (stating defendant did not claim conduct was necessary and appropriate for any purposes which would establish justification or excuse recognized under N.D.C.C. ch. 12.1–05); State v. Rasmussen, 524 N.W.2d 843, 844–46 (N.D.1994) (holding affirmative defense of threat of imminent death or serious bodily injury available for driving under suspension when compulsion is from life-threatening forces of nature); State v. Purdy, 491 N.W.2d 402, 411 (N.D.1992) (stating jury was instructed on excuse based upon mistake of law under N.D.C.C. §§ 12.1–05–08 and 12...