State v. Mann

2016 ND 53, 876 N.W.2d 710, 2016 N.D. LEXIS 53, 2016 WL 1029768

• Court: North Dakota Supreme Court
• Decided: March 15, 2016
• Docket: 20150069
• Status: Published

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Ruthie Mann appealed from a district court order denying her motion to dismiss a criminal charge for refusing to submit to- chemical testing and from a criminal judgment sentencing her to five years in prison with all but eighteen months suspended. We affirm the district court’s order denying Mann’s motion to dismiss. We reverse the criminal judgment and remand for the district court to enter judgment against Mann for a class B misdemeanor.

I

[¶ 2] During the night of June 16, 2014, a Bismarck police officer approached a vehicle driven by Ruthie Mann. While talking with Mann, the officer detected alcohol, and Mann admitted to consuming alcohol. When Mann was unable to complete field sobriety testing, the- officer arrested her for driving under the 'influence. The officer informed Mann of her Miranda rights and read North Dakota’s implied consent advisory to her. When the officer asked Mann to submit to chemical testing, she became argumentative, which the officer understood as a refusal.

[¶ 3] The State charged Mann with refusal to submit to chemical testing. The State asserted Mann had three previous convictions for qualifying offenses under N.D.C.C. § 39-08-01(3), and the State charged Mann with a class G'felony, Before .trial, Mann asked the district court to dismiss the charge because she alleged North Dakota’s statute making it a crime to refuse to submit to chemical testing was unconstitutional under the Fourth Amendment of the United States Constitution and North .Dakota Const, art. 1, § 8. The district court' denied the motion to dismiss the charge.

[¶ 4] Additionally, Mann asked the district court to bifurcate her trial, with the first part of the trial concerning whether Mann committed the criminal act of refusal to consent to chemical testing and the second part of the trial concerning whether Mann had been convicted of the three prior offenses. Mann argued this bifurcated trial was necessary to avoid evidence of her prior convictions tainting the jury’s determination of whether she was- guilty of refusal to submit to chemical testing on this particular occasion. The court also denied this request.

. [¶ 5] After the parties presented evidence, the court instructed the jury on the essential elements of the charged offense. The instructions failed to list three prior offenses as an essential element of the class C felony charge and only included the elements necessary to find Mann guilty of criminal refusal on this particular occasion. The jury found Mann guilty.

[¶ 6] Before sentencing, Mann made a motion to conform the criminal judgment with the jury verdict, arguing the jury never found her guilty of all the elements necessary for the class C felony charge. The State agreed, conceding the jury never made a determination on the predicate offenses and only found Mann guilty of criminal refusal on this particular occasion. The parties agreed Mann should be sentenced to a class B misdemeanor ah a first-time offender under N.D.C.C. § 39-08-01(3). The district court disagreed, finding N.D.C.C. § 39-08-01(3) gave it the ability to judicially notice the prior offenses necessary to prove the class C felony-charge. Based upon the available records, the court found sufficient evidence of Mann’s three prior qualifying offenses. Because of this finding, the court entered a criminal judgment against, Mann for a class C felony. In accordance with sentencing provisions, the court sentenced Mann to five years in prison with all but eighteen months suspended.

II

[¶ 7] Mann argues the district court erred in denying her motion to dismiss because her prosecution under N.D.C.C. § 39-08-01(l)(e), North Dakota’s criminal refusal statute, is unconstitutional-under the Fourth Amendment of the United States Constitution and North Dakota Const, art. I, § 8. This Court has rejected these same-arguments.. See, e,g,, State v. Morel, 2015 ND 198, 870 N.W.2d 26; State v. Kordonowy, 2015 ND 197, ¶ 12, 867 N.W.2d 690; State v. Birchfield, 2015 ND 6, ¶ 19, 858 N.W.2d 302. Mann provides no compelling arguments warranting departure from these holdings. We continue to hoid N.D.C.C. § 39-08-01(l)(e) is constitutional under the Fourth Amendment and North Dakota Const, art. I, § 8.

Ill

[¶ 8] Mann argues the • district court erred by not conforming its criminal judgment with the jury verdict. In doing so, Mann raises the issue of whether N.D.C.C. § 39-08-01(3) authorizes a court to take judicial -notice of a defendant’s prior offenses when.such offenses are an essential element of the charged offense. Mann argues the court’s ability to take judicial notice of prior convictions under N.D.C.C. § 39-08-01(3) is limited, to matters of pleading and does not allow judicial notice of an essential element of a charged offense. The State agrees.

[¶9] As a preliminary matter, we consider whether Mann’s three prior convictions constitute an essential element of her class .C felony charge. Whether a prior offense constitutes an essential element of a crime depends upon the offense charged, A prior offense constitutes an essential element if it elevates1 the offense of a given crime. State v. Tutt, 2007 ND 77, ¶ 8, 732- N.W,2d 382. A prior offense does not constitute an essential element if it only enhances the sentence of a given crime. Id. Under N.D.C.G. § 39-08-01(3), three'prior convictions of. qualifying offenses enhance a class A misdemeanor to a class C felony. Because this elevated the offense, Mann’s three prior convictions constituted an essential element of the class C felony charge, which required proof of the offenses. See State v, Edinger, 331 N.W.2d 553, 554 (N.D.1983) (“It would appear that because the enhancement from class B to class A does not apply unless there has been a prior conviction, proof of the prior conviction is an element of the class A misdemeanor.”).

[¶ 10] Because Mann’s prior convictions constitute an essential element of her charge, we must consider the scope of judicial notice allowed under N.D.C.C. § 39-08-01(3). Section 39-08-01(3), N.D.C.C., prescribes the appropriate charges for driving or being in actual physical control of a vehicle while impaired. This section additionally provides: a “court shall take judicial notice of the fact that an offense would be a subsequent offense if indicated by the records of the director or may make a subsequent offense finding based on other evidence.” N.D.C.C. § 39-08-01(3).

[¶ 11] We have not previously considered whether N.D.C.C. § 39-08-01(3) allows a court to take judicial notice of prior offenses in the context presented by this case. “Statutory interpretation, is a question of law, fully reviewable on appeal.” Teigen. v, State, 2008 ND 88, ¶ 19, 749 N.W.2d 505. In interpreting a statute:

Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined in the code or unless the drafters clearly intended otherwise, N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-09.1. If the language of a statute is clear and unambiguous, “the letter of the statute cannot be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. A statute is ambiguous if it is susceptible to different, rational meanings. If the language is ambiguous or doubtful in meaning, the court may consider extrinsic aids, such as legislative history, to determine legislative intent. N.D.C.C. § 1-02-39.

State ex rel. North Dakota Dep’t of Labor v. Matrix Props. Corp., 2009 ND 137, ¶ 8, 770 N.W.2d 290 (quoting Sauby v. City of Fargo, 2008 ND 60, ¶8, 747 N.W.2d 65 (internal citations omitted)).

[¶ 12] The district court interpreted N.D.C.C. § 39-08-01(3) as allowing the court to take judicial notice of prior offenses constituting an essential element of the charged offense where existing records sufficiently evidence the prior offenses. We disagree. Because the prior convictions are an element of the offense requiring proof under Tutt, we must read N.D.C.C. § 39-08-01(3) in conjunction with other statutes governing proof and the issues of fact that must be tried by the jury. When N.D.C.C. § 39-08-01(3) is harmonized with other applicable statutes, we conclude it allows judicial notice only within the context of assuring the State proceeds with the appropriate charge under N.D.C.C. § 39-08-01(3). If the State fails to allege prior convictions, or alleges an incorrect number of prior convictions, the court is to judicially notice the prior convictions so the case may proceed as if the State alleged the correct number of prior convictions. The court may exercise this judicial notice only where the available records sufficiently evidence the prior convictions or where there is other evidence of the prior convictions. This judicial notice, however, does not eliminate the State’s burden of proof because the State still must prove the defendant has been convicted of the prior offenses. N.D.C.C. § 12.1-01-03. Absent a waiver by the defendant, the defendant has the right to have this factual determination made by a jury. N.D.C.C. § 29-16-02. Therefore, we interpret N.D.C.C. § 39-08-01(3) as leaving the State with the burden of persuading the trier of fact that the defendant has been convicted of the qualifying predicate offenses notwithstanding judicial notice of the predicate offenses. Cf.. State v. Trieb, 315 N.W.2d 649, 654 n. 6 (N.D.1982) (noting a permissive presumption in a criminal case is allowable if it does not shift the burden of persuasion to the defendant). In situations involving a, jury and the taking of judicial notice,, the court is required to explain the legal effect of its judicial notice to the jury, including clarifying that the question of whether the State satisfied its burden of persuasion remains solely within the jury’s province despite the court’s taking of judicial notice. Id.

[¶ 13] This construction is consistent with how this Court interpreted N.D.C.C. § 39-08-01(3) in other contexts. In State v. Gahner, 413 N.W.2d 359, 361 (N.D.1987) and Edinger, 331 N.W.2d at 556, this Court addressed whether N.D.C.C. § 39-08-01(2), since renumbered to its current subsection, allows a court to take judicial notice of a prior conviction where the State failed to include the conviction in its complaint. We concluded a court, could take judicial notice of the prior offense where the defendant was adequately informed of the charged offense notwithstanding the omission. We stated, although the statute “uses the term ‘judicial notice,’ it obviously requires proof .of the .previous conviction.” Gahner, 413 N.W.2d at 361 (quoting Ed-inger, 331 N.W.2d at 556 (VandeWalle, J., concurring specially)). This ability to correct the pleading does not reheve' the State’s burden of proof because the judicial notice authorized by N.D.C.C. § 39-08-01(3) “is concerned with matters of pleád-ing rather than matters of proof.” Gahner, 413 N.W.2d at 361 (quoting Edinger, 331 N.W.2d at 556 (VandeWalle,.J., concurring specially)). Similar to our interpretation here, although the court could correct a pleading deficiency through judicial notice, the court could not take judicial notice of a matter of proof. Id.

[¶ 14], Applying the above interpretation to the undisputed facts of this case, the district court exceeded the scope of its statutory authority. Here, the jury found Mann guilty of the essential elements necessary for criminal refusal. Absent" evidence of prior convictions, on which thd'jury made no determination, this refusal constituted a class B misdemeanor under N.D.C.C. § 39-08-01(3). After returning a verdict refleeting guilt of only a class B misdemeanor, the district court should have entered a corresponding criminal judgment containing the verdict. N.D.R.Crim.P. 32(b). Section 39-08-01(3), N.D.C.C., did not allow the court to take judicial notice of the prior convictions. If we were to construe N.D.C.C. § 39-08-01(3) to allow courts to take judicial notice of a matter of proof, we would cause serious questions concerning the Fifth and Sixth Amendments of the United States Constitution. See Alleyne v. United States, — U.S.-, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013) (stating the Sixth Amendment right to trial by jury, “in conjunction-with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt.”); United States v. Gaudin, 515 U.S. 506, 511, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (stating the “Constitution gives a criminal-defendant the right-to demand that a jury find him guilty of all the elements of the crime with which he is Charged; One of the elements in the present case is materiality;' respondent therefore had a right to have the jury decide materiality.”). We decline to interpret N.D.C.C. § 39-08-01(3) this way;' rather, we hold the district court, erred in interpreting and applying N.D.C.C. § 39-08-01(3) by taking judicial notice of an essential element of the class C felony charge against Mann.

[¶ 15] Mann’s request to bifurcate the trial also did not waive Mann’s right to have a jury find all essential elements of the .charged offense. The discretion afforded to district courts, State v. Parisien, 2005 ND 152, ¶ 11, 703 N.W.2d 306, may allow the district court, with the parties’ consent, to bifurcate a trial in the manner Mann requested. Here, although Mann requested the court bifurcate the trial, the court denied the request. Because of this denial, Mann retained her right to.have the jury make a finding on whether she had been convicted of the predicate offenses. By substituting its own judgment for that of the jury when Mann reserved her right to trial by jury on tfre issue, the district court erred.

IV

[¶ 16] We affirm the district court’s order denying Mann’s motion to dismiss. We reverse the district court’s judgment and, in light of the issues raised on appeal and the relief requested, we remand for the district court to enter judgment against Mann for a class B misdemeanor refusal to submit to chemical testing and for sentencing in accordance with N.D.C.C. § 39-08-01(5).. •

[¶ 17] CAROL RONNING KAPSNER, LISA FAIR McEVERS and DANIEL J. CROTHERS, JJ., concur.-