State v. Franck

499 N.W.2d 108, 1993 N.D. LEXIS 73, 1993 WL 129234
North Dakota Supreme Court·Decided April 27, 1993·No. Cr. 920159·Published·Cited by 7 cases

Opinions

MESCHKE, Justice.

We review the sufficiency of the evidence for a criminal conviction of disobeying a preliminary injunction that restrained obstruction of an abortion clinic. We affirm.

Stella Franck was one of 41 people arrested on November 21, 1991, in Fargo at the abortion clinic. Like the others, she was charged with violating NDCC 12.1-10-05 by disobeying a judicial order that restrained obstruction of the clinic. The injunction forbade going within 100 feet of the clinic, “except that two people may quietly and peacefully picket such facility, so long as said people do not interfere with operations ... or individuals seeking to enter or leave” it. Franck was convicted by a jury.

Franck timely moved for a new trial, arguing that the evidence was insufficient and that the verdict was against the weight of the evidence. The trial court denied a new trial, and Franck appealed. Because the notice of appeal was not timely filed, we remanded to the trial court to determine whether there was excusable neglect for the late filing. State v. Franck, 495 N.W.2d 60 (N.D.1993). The trial court ruled that there was excusable neglect and returned the record to this court to consider the merits of Franck’s appeal.

This conviction stems from the decree that we affirmed in part, reversed in part, and remanded for further proceedings in Fargo Women’s Health Organization v. Lambs of Christ, 488 N.W.2d 401 (N.D.1992). That preliminary injunction was entered to prevent further repetition of conduct “where the protestors invaded the clinic, approached patients [and] clinic employees in a physically threatening manner, actually struck or restrained patients [and] employees, blockaded the clinic, and conducted demonstrations so noisy that clinic business was disrupted ... activities [that] continued despite the arrests on several occasions of many protestors.” 488 N.W.2d at 406.

Franck argues that our holding in Lambs of Christ, striking those portions of the injunction that completely prohibited “speaking” and distributing literature as contrary to the First Amendment, necessitates a reversal of her conviction. The validity of the decree was not challenged at Franck’s trial. Ordinarily, we do not review questions not raised below. Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 432 (N.D.1988). We see no reason to do so in this case.

An injunction issued by a court with jurisdiction must be obeyed while it remains in force, however irregular or erroneous it is. Gunsch v. Gunsch, 69 N.W.2d 739 (N.D.1954) and cases cited there. Our [110]*110modification of the decree in Lambs of Christ does not require a reversal of Franck’s conviction.

Franck went to the abortion clinic at 7:00 a.m. on November 21, 1991 to demonstrate. At first, she was one of three persons taking turns protesting within the zone around the clinic where the decree allowed “two people [to] quietly and peacefully picket” at a time. When several Fargo police officers arrived at the clinic at 8:00 a.m. to maintain order, Franck was one of two demonstrators in the authorized zone.

Around 8:30 a.m., three groups of demonstrators converged on the clinic. As the situation escalated, more police officers were called to the scene. Fourteen police officers and seven squad cars came. Media representatives also arrived.

The officers encountered three waves of protesters. First, three persons pulled up in a car that blocked the driveway of the clinic. They locked the car’s doors, obscured the interior of the car with protest signs in the windows, then locked themselves to the headrests with bicycle locks. Second, 13 persons surrounded the car; some dove under it to hamper its removal. Third, a group of 27 persons formed a circle around the car. They marched, prayed, and chanted in the driveway of the clinic. Franck joined this third group, circling in the driveway.

At first, the police used a bullhorn to ask the group to disperse, to advise them of the injunction, and to inform them that they would be arrested if they did not leave. Franck was individually advised by an officer that she was violating the injunction, and she was asked to leave. Franck remained in the driveway, continuing to him der anyone who might enter or leave the clinic.

The police arrested, physically removed, and charged 41 persons, including Franck, with violating NDCC 12.1-10-05, a class A misdemeanor, by disobeying a judicial order. Franck was convicted by a jury of six.

The pertinent part of the criminal statute that Franck was charged with violating says:

A person is guilty of a class A misdemeanor if he disobeys or resists a lawful temporary restraining order or preliminary or final injunction or other final order, other than for the payment of money, of a court of this state.

NDCC 12.1-10-05(1). Franck argues that the prosecution failed to prove that she had been given actual notice of the terms of the injunction, that she obstructed the clinic, and that she willfully violated the injunction.

In reviewing the sufficiency of the evidence for conviction of a crime, we view the evidence in the light most favorable to the verdict. State v. Manhattan, 453 N.W.2d 758 (N.D.1990). We give the prosecution the benefit of all inferences that can reasonably be made from the evidence. Id. We determine only whether there is substantial evidence that reasonably tends to prove guilt and fairly warrants the conviction. State v. Vallely, 479 N.W.2d 480 (N.D.1992). We conclude that the evidence here was sufficient to reasonably infer Franck’s guilt and to warrant her conviction.

Franck argues that she was not given “actual notice in accordance with the terms of the injunction.” She focuses on the clause in the preliminary injunction about notice of its existence:

The Order entered here shall apply to any and all individuals who receive notice of the Order. Service of this notice can be made by personally handing or reading a copy to a person who is in violation or who is intending to violate the terms of the Order.

Franck argues that the notice was insufficient because she “was not a named defendant,” and “was neither given a copy of the injunction, nor was any portion ... read to her.” She concedes that “[a]n announcement pertaining to the injunction was made over a bullhorn,” but argues that it did not strictly comply with the terms of the order because “the particulars of what was said were not offered into evidence by the State and remain unknown.”

Still, several officers testified that they heard the bullhorn announcement of the [111]*111particulars of the injunction. An officer personally asked Franck to leave and warned her that, if she did not, she would be arrested for violating the injunction.

Franck also evidenced knowledge of the injunction by her initial lawful demonstration, by her response to the officer who warned her personally, and by her testimony at the trial.

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State v. Franck, 499 N.W.2d 108, 1993 N.D. LEXIS 73, 1993 WL 129234 (N.D. 1993).

499 N.W.2d 108 (State v. Franck) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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