State v. Mertz

2012 ND 145, 818 N.W.2d 782, 2012 N.D. LEXIS 129, 2012 WL 2849769
CourtNorth Dakota Supreme Court
DecidedJuly 12, 2012
DocketNo. 20120087
StatusPublished
Cited by3 cases

This text of 2012 ND 145 (State v. Mertz) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Mertz, 2012 ND 145, 818 N.W.2d 782, 2012 N.D. LEXIS 129, 2012 WL 2849769 (N.D. 2012).

Opinions

CROTHERS, Justice.

[¶ 1] Trevor Mertz appeals a district court criminal judgment entered after a jury convicted him of burglary. Mertz argues that (1) after the jury retired for deliberation, the district court erred by providing an incorrect and misleading answer to the jury’s request for instruction on the law and that (2) the evidence presented at trial was insufficient to support the conviction. We affirm.

I

[¶ 2] Mertz was charged with burglary for entering his ex-girlfriend’s home and taking a television. Mertz was tried by a jury and testified at trial. Mertz admitted [784]*784to entering the residence and taking the television but claimed the television did not belong to his ex-girlfriend. Mertz testified the television was his and he loaned it to his ex-girlfriend for their child’s use. Two witnesses called by the State testified the television belonged to Mertz’s ex-girlfriend.

[¶ 8] After both sides rested, the jury received the following instructions on burglary:

“BURGLARY
“A person is guilty of Burglary if with intent to commit a crime, that person willfully enters or secretly remains in a building or occupied structure, or a separately secured or occupied portion thereof, at a time the premises are not open to the public and the actor is not licensed, invited, or otherwise privileged to enter or remain, as the case may be.
“ESSENTIAL ELEMENTS
“The State’s burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about June 12, 2011, in Bur-leigh [County], North Dakota, the Defendant, Trevor Mertz, willfully entered or secretly remained in a building or occupied structure or a separately secured or occupied portion of a building or occupied structure, namely, the home of [his ex-girlfriend];
2) The premises were not then open to the public;
3) The Defendant was not then licensed, invited, or otherwise privileged to enter or remain in the premises; and
4)The Defendant then and there intended to commit a crime in the premises.”

The jury did not receive instructions on theft or any other crime.

[¶ 4] Before returning a verdict, the jury asked the district court:

“Can someone be convicted of Burglary if they break into someone else’s home for the sole purpose of retrieving their own personal property? Yes or No?”

[¶ 5] After consulting with the State’s attorney and Mertz’s attorney in Mertz’s presence, the district court responded:

‘You received the jury instructions regarding the elements for burglary. If you find the State has proved those elements, then the verdict would be guilty; if you find they did not prove any of the elements, the verdict would be not guilty.”

[¶ 6] The jury found Mertz guilty.

II

[¶ 7] Mertz asserts the proper response to the jury’s question was “No” and argues the district court erred by providing an erroneous and misleading response. The State responds the district court’s response accurately informed the jury-of the law.

[¶ 8] The only authority Mertz cites to support his argument is N.D.C.C. § 29-22-05, which provides:

“After the jurors have retired for deliberation, if they desire to be informed on a point of law arising in the cause, or to have any testimony about which they are in doubt or disagreement read to them, they, upon their request, must be conducted into the courtroom by the officer who has them in custody. Upon their being brought into court, the information required must be given in the [785]*785presence of, or after notice to, the state’s attorney and the defendant or the defendant’s counsel, or after they have been called.”

Section 29-22-05, N.D.C.C., requires the district court to respond to specified jury requests and governs how the district court must communicate with jurors during deliberations. The district court followed all procedures required by the statute. Mertz’s real claim is that the district court answered the jurors’ question incorrectly because the court made a mistake of law on the elements of burglary. That claim in turn attacks the sufficiency of jury instructions to which Mertz did not object.

[¶ 9] “Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.” State v. Olander, 1998 ND 50, ¶ 18, 575 N.W.2d 658. “We review jury instructions as a whole and, if the instructions, as a whole, correctly advise the jury on the law, they are sufficient although part of the instructions, standing alone, may be insufficient or erroneous.” Id. To preserve an issue concerning jury instructions for review, a defendant must request an instruction as required by N.D.R.Crim.P. 30(a) or object to an instruction as required by N.D.R.Crim.P. 30(c). N.D.R.Crim.P. 30(d)(1). When a defendant fails to properly request or object to an instruction, we may review the instructions for plain error affecting substantial rights. N.D.R.Crim.P. 30(d)(2). Because Mertz did not object to the jury instructions or request a supplemental instruction on the elements of burglary, we review for plain error.

[¶ 10] Mertz was charged with burglary under N.D.C.C. § 12.1-22-02(1), which provides:

“A person is guilty of burglary if he willfully enters or surreptitiously remains in a building or occupied structure, or a separately secured or occupied portion thereof, when at the time the premises are not open to the public and the actor is not licensed, invited, or otherwise privileged to enter or remain as the case may be, with intent to commit a crime therein.”

Mertz argues that to prove “intent to commit a crime therein,” the State was required to show Mertz entered the residence with intent to commit the specific crime of theft. Mertz argues he could not be convicted of burglary if he entered the residence to retrieve his own television because the definition of theft requires a person “[k]nowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereofi.]” N.D.C.C. § 12.1-23-02(1) (emphasis added).

[¶ 11] Whether the specific crime intended to be committed is an element of burglary that must be included in the jury instructions is an issue of first impression in North Dakota. Statutory interpretation is a question of law and is fully reviewable on appeal. State v. Beciraj, 2003 ND 173, ¶ 14, 671 N.W.2d 250. “When a statute’s language is ambiguous or of doubtful meaning, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain the legislature’s intent.” Id. (quotation omitted).

[¶ 12] Section 12.1-22-02(1), N.D.C.C., is unclear on its face whether the “intent to commit a crime”’ language requires identification and proof of the intended crime as an element in a burglary prosecution. The North Dakota Criminal Code, N.D.C.C. tit. 12.1, is modeled after the proposed Federal Criminal Code, and we may look to the drafter’s official comments and the relevant legislative history

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Cite This Page — Counsel Stack

Bluebook (online)
2012 ND 145, 818 N.W.2d 782, 2012 N.D. LEXIS 129, 2012 WL 2849769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mertz-nd-2012.