State v. Plentychief

464 N.W.2d 373, 1990 N.D. LEXIS 252, 1990 WL 204601

• Court: North Dakota Supreme Court
• Decided: December 17, 1990
• Docket: Cr. 890391
• Status: Published

Opinions

MESCHKE, Justice.

LeAnn Plentyehief appealed from a jury conviction of attempted felonious restraint under terrorizing circumstances. We reverse for lack of competent evidence for the conviction, but we remand for a new trial on lesser offenses of unlawful imprisonment or attempted unlawful imprisonment.

One evening in March 1989, Plentyehief and a friend, Odile Pierce, visited several taverns in Fargo. Near 1:00 a.m. the next morning, Plentyehief, Pierce, and two companions left the Roundup Bar and crossed the street to the Greyhound Bus depot to call a cab to go to a local restaurant.

About the same time, an east-bound Greyhound Bus stopped at the depot. During the stopover, passengers Carol Jones, her four-year-old granddaughter Tara Rei-chow, and college student Jeanne Walsh left the bus and entered the depot to use the restroom. No one else was in the restroom. Jones entered the first stall in the restroom while Tara waited for her outside that stall. Walsh began washing her face and brushing her teeth in a nearby sink.

Moments later, Plentyehief entered the restroom, approached Tara, and asked, “Where’s your mommy?” Tara did not respond. According to Walsh’s testimony, Plentyehief then said something to Tara, like “Well, I’m your mommy now.” Plen-tychief grasped Tara by the left hand and said, “Come on, let’s go.” Aware that Tara was Jones’s granddaughter, Walsh intervened. Walsh went towards Plenty-chief, banged on the door of Jones’s stall, and called, “Was somebody supposed to take your granddaughter out of here?” Jones replied, “What? No.” Walsh grasped Tara’s other hand and said to Plen-tychief in a sharp tone, “Excuse me.” Plentychief let go of Tara and left the restroom without saying another word.

When Jones came out of the stall, Walsh reported, “A lady came in and tried to take your granddaughter.” Walsh pointed Plen-tychief out to Jones outside the restroom, and Jones complained to depot personnel. Plentychief was detained by a security guard for Greyhound. Walsh overheard Plentychief respond to questioning “almost apologetically,” by answering, “Fm sorry, it’s not my child. It’s not my child.”

Plentychief was arrested and charged, alternatively, with attempted abduction or attempted felonious restraint under terrorizing circumstances in violation of NDCC 12.1-18-02. That section says:

A person is guilty of a class C felony, if he:

1. Knowingly abducts another;

2. Knowingly restrains another under terrorizing circumstances or under circumstances exposing him to risk of serious bodily injury; ....

At the trial, both Jones and Walsh testified about the incident. The security guard testified that, when he asked Plenty-chief about Jones’s complaint, Plentychief denied having done anything. Police officers testified that, when she was questioned at both the depot and later at the jail, Plentychief responded profanely and insisted that she hadn’t done anything wrong. At the conclusion of the prosecution’s case, Plentychief unsuccessfully moved for a judgment of acquittal for lack of evidence, including that the State failed “to prove that there were terrorizing circumstances.”

The jury was instructed to return only a single verdict from among the forms submitted for the alternative felony charges, lesser misdemeanor offenses, and a finding of not guilty. The jury found Plentychief guilty of attempted felonious restraint under terrorizing circumstances, but did not return a verdict on the alternative charge of attempted abduction, thereby acquitting Plentychief of that charge. 76 Am.Jur.2d Trial § 1151 (1975); 23A C.J.S. Criminal Law § 1408 (1989). The jury did not get to the submitted lesser offenses of unlawful imprisonment or attempted unlawful imprisonment. See NDCC 12.1-18-03.¹ Plen-tychief appealed.

On appeal, Plentychief contends that the trial court’s instruction to the jury on the definition of “terrorizing circumstances” was misleading and that the evidence was insufficient to convict Plenty-chief of attempted felonious restraint under terrorizing circumstances. We agree.

“Terrorizing circumstances” are not spelled out in NDCC 12.1-18-02(2) which defines that category of felonious restraint. Drawing on nearby NDCC 12.1-17-04,² describing the offense of terrorizing, Plenty-chief requested the following instruction:

“Terrorizing circumstances” means circumstances that result when threats of violence or acts dangerous to human life are made with intent to place another human being in fear of that human being’s safety.

Without attributing any source, the State requested a different kind of instruction about “terrorizing circumstances”:

In determining whether terrorizing circumstances existed you should consider all of the facts surrounding the commission of the criminal offense. In doing so, you should consider the acts that you find the defendant to have committed as well as her intent in committing those acts. In considering the defendant’s intent you should look to whether she intended to place another person in fear for that person’s or another person’s safety. Likewise, you may consider the age, experience, or any other relevant circumstances of the person or persons to whom the acts were directed, as well as any other individual the defendant knew or should have known would have observed or experienced the circumstances created by the defendant.

The trial court blended the two requests: “Terrorizing circumstances” means circumstances that result when threats of violence or acts dangerous to human life are made with intent to place another human being in fear of that human being’s safety. In determining whether terrorizing circumstances existed you should consider the acts that you find the Defendant to have committed as well as her intent in committing those acts. In considering the Defendant’s intent you should look to whether she intended to place another person in fear for that person’s or another person’s safety. Likewise, you may consider the age, experience, or any other relevant circumstances of the person or persons to whom the acts were directed.³

This definition was given in that part of the instructions on “DEFINITIONS.”

Counsel for Plentychief objected that this lengthy definition of terrorizing circumstances “will confuse the jury,” and “will put in facts and circumstances that are outside the definition.” Specifically, Plentychief urged the trial judge that “the age and experience of the person to whom the acts are directed is not a correct interpretation” because “[tjerrorizing deals only with a threat made by the actor and has nothing to do with the recipient of the threat.” Plentychief objected further that “even if the person is not affected by the threat, it still [must be] an act of terrorizing.” The objections were overruled.

Jury instructions must fairly and adequately inform the jury of the law that applies in a criminal case and should not be misleading or confusing. State v. Saul, 434 N.W.2d 572 (N.D.1989). We believe that the jury was misled by the trial court’s meandering definition of “terrorizing circumstances.” If so, the misdirection is attributable to the prosecution’s dilution of the meaning of “terrorizing circumstances” by requesting pallid additions having little to do with its important ingredients. Words or phrases explained or defined by statute are to be understood as thus explained or defined. NDCC 1-02-02; State v. Johnson, 417 N.W.2d 365, 369 (N.D.1987). It is a well-settled rule of statutory construction that criminal statutes are strictly construed in favor of the defendant and against the government. City of Bismarck v. Sholy, 430 N.W.2d 337, 338 (N.D.1988). The instruction given departed from the statutory definition, and clouded the essential elements of threats of violence or dangerous acts made with an intent to induce fear.

The State must prove each of the elements of the offense charged beyond a reasonable doubt. State v. Kurle, 390 N.W.2d 48, 49 (N.D.1986). On review, we look for competent and substantial evidence from which the jury could reasonably conclude that Plentychief was guilty of each of the essential elements of the offense. Id. “[W]e do not weigh conflicting evidence, nor do we judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction.” State v. Johnson, 425 N.W.2d 903, 906 (N.D.1988). See also State v. Miller, 357 N.W.2d 225, 226 (N.D.1984); State v. McMorrow, 286 N.W.2d 284, 287 (N.D.1979). Viewing this evidence in any light, we are unable to comprehend Plentychief s conduct as including the essential elements of “threats of violence or acts dangerous to human life” made with an intent to induce fear.

The dissent suggests that the jury might have inferred a baleful meaning from what Plentychief did. It is true that innocuous words or acts may sometimes take on noxious meanings by innuendo from their context. See State v. Hass, 268 N.W.2d 456, 463 (N.D.1978). Still, in a rule of law, an untoward meaning must be intelligible, not imaginable, and based on evidence, not guesswork. In this case, there was no testimony that characterized or described Plentychief s conduct as tacitly threatening or violent.

We see no competent evidence of words or acts from which the jury could reasonably infer that Plentychief was guilty of threats of violence or acts dangerous to human life intended to induce fear. Compare State v. Brown, 235 Neb. 374, 455 N.W.2d 547, 552 (1990); State v. Wyatt, 234 Neb. 349, 451 N.W.2d 84, 89 (1990); State v. Moreno, 228 Neb. 210, 422 N.W.2d 56, 61 (1988). Since there is no competent evidence that would fairly warrant the conviction for felonious restraint under terrorizing circumstances, we reverse and remand for a new trial on the undecided misdemeanor charges of unlawful imprisonment or attempted unlawful imprisonment, which we believe this evidence would support.⁴

GIERKE and LEVINE, JJ., concur.

1 . NDCC 12.1-18-03 says:

Unlawful imprisonment.

1. A person is guilty of a class A misdemean- or if he knowingly subjects another to unlawful restraint.

2. It is a defense to a prosecution under this section that the actor is a parent or person in equivalent relation to the person restrained and that the person restrained is a minor.

2 . NDCC 12.1-17-04 says:

Terrorising. A person is guilty of a class C felony if, with intent to place another human being in fear for that human being’s or another’s safety or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious disruption or public inconvenience, or in reckless disregard of the risk of causing such terror, disruption, or inconvenience, the person:

1. Threatens to commit any crime of violence or act dangerous to human life; or

2. Falsely informs another that a situation dangerous to human life or commission of a crime of violence is imminent knowing that the information is false.

3 . The trial court separately instructed on intent and motive as follows:

INTENT

The intent or purpose with which an act is committed is a mental process and generally remains hidden in the mind where it is conceived, and is rarely, if ever, susceptible of proof by direct evidence. Intent may be inferred from the outward manifestations, by the words or acts of the party entertaining it, and the facts and circumstances surrounding or attending upon the acts sought to be proved, with which it is claimed to be connected.

MOTIVE

Proof of a motive for commission of a crime is permissible and often valuable, but never essential. If, after a consideration and comparison of all the evidence, you feel an abiding conviction to a moral certainty that the Defendant committed the crime of which she is accused, the motive for its commission becomes unimportant. Evidence of motive is sometimes of assistance in removing doubt and completing proof that otherwise might be unsatisfactory. Motive may be shown by direct evidence or by facts supporting a reasonable inference. If thus proved, motive becomes nothing more than a circumstance to be considered by you. The absence of motive is a circumstance tending to support the presumption of innocence, and should be given such weight and credibility as you think it deserves.

4 . Because Plentychief has been acquitted of the alternative felonies charged, retrial of those charges would be barred by the double jeopardy clause. See State v. McMorrow, 286 N.W.2d 284 (N.D.1979); State v. Ellvanger, 453 N.W.2d 810, 816 n. 3 (N.D.1990).