State v. Schmidt

2003 ND 106

• Court: North Dakota Supreme Court
• Decided: July 16, 2003
• Docket: 20020277
• Status: Published

Opinion

Filed 7/16/03 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2003 ND 107

State of North Dakota, Plaintiff and Appellee

v.

Delane Jane Heupel, Defendant and Appellant

No. 20020328

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

AFFIRMED.

Per Curiam.

Rick Maixner, Assistant State’s Attorney, 210 2nd Avenue NW, Mandan, ND 58554, for plaintiff and appellee.

Thomas M. Tuntland, P.O. Box 1315, Mandan, ND 58554-7315, for defendant and appellant.

State v. Heupel

Per Curiam .

[¶1] Delane Heupel appealed from the judgments of conviction entered upon jury verdicts finding her guilty of Theft by Deception under N.D.C.C. § 12.1-23-02(2) and Tampering with Physical Evidence under N.D.C.C. § 12.1-09-03.   Prior to submission of the case to the jury, Heupel moved for a judgment of acquittal under N.D.R.Crim.P. 29.  The trial court denied the motion and submitted the case to the jury.

[¶2] On appeal, Heupel argues there is insufficient evidence to sustain her convictions.  “In reviewing the sufficiency of the evidence to convict, 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. Kunkel , 548 N.W.2d 773, 773 (N.D. 1996).  Heupel also contends the district court’s failure to give the jury instructions on the definitions of “deprive” and “deception” was obvious error, although she failed to object to the instructions at trial.   See State v.  Hersch , 445 N.W.2d 626, 631-33 (N.D. 1989) (discussing the terms “deprive” and  “deception”) (citing Comment of Theft Offenses: §§ 1731-1741, Working Papers of the National Commission on Reform of Federal Criminal Laws, Volume 2, pp. 922-

23 (1970)).  Heupel has failed to establish the alleged obvious error affected her substantial rights, was prejudicial, or affected the outcome of the proceeding.   See, e.g. , State v. Glass , 2000 ND 212, ¶ 14, 620 N.W.2d 146.

[¶3] After reviewing the record, we conclude this case contains no reversible errors

of law and the verdicts are supported by substantial evidence.  We summarily affirm under N.D.R.App.P. 35.1(a)(3) and (7).

[¶4] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

William A. Neumann

Mary Muehlen Maring

Carol Ronning Kapsner