State v. Wolff

512 N.W.2d 670, 1994 N.D. LEXIS 54, 1994 WL 51941
CourtNorth Dakota Supreme Court
DecidedFebruary 23, 1994
DocketCr. 930243
StatusPublished
Cited by10 cases

This text of 512 N.W.2d 670 (State v. Wolff) 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. Wolff, 512 N.W.2d 670, 1994 N.D. LEXIS 54, 1994 WL 51941 (N.D. 1994).

Opinions

NEUMANN, Justice.

This is an appeal from a judgment of conviction. A jury found appellant guilty of violating a permanent adult abuse protection order. Appellant argues that the “service” element of NDCC § 14-07.1-06 (1991) was not met. The trial court denied the appellant’s motion for a judgment of acquittal. We affirm.

The material facts are not in' dispute. Leon L. Wolff (Wolff) was arrested for violating a permanent adult abuse protection order issued under NDCC § 14-07.1-02 (1989 Cum.Supp.). The original order was issued on April 22, 1991, and was personally served on Wolff. It included a geographical restriction prohibiting Wolff from entering the applicant’s residence at Community Homes. This order was amended October 14,1992, to reflect a change in the applicant’s address, and to prohibit Wolff from going within one block of the new address. The amended order was served on Wolff by regular United States mail.

Evidence admitted at trial to establish the element of “service” included: testimony by Marie Voegele of the Abused Adult Resource Center; an affidavit of mailing swearing to the mailing of the amended order; testimony of Donna Bard, then of the Abused Adult Resource Center; and proof of personal service of the original order. The trial court denied Wolffs motion for a judgment of ac[672]*672quittal, and the jury found Wolff guilty of violating the protection order.

On appeal, Wolff argues that the trial court erred in denying his motions for a judgment of acquittal because the State failed to prove “service” of the amended adult abuse protection order.1 This is a legal, rather than a factual, consideration. State v. Himmerick, 499 N.W.2d 568, 572 (N.D.1993). The scope of this appeal is narrow. The only issue is proof of the element of “service.” Wolff has not raised issues regarding the adequacy of jury instructions, due process, or other constitutional issues.

Wolffs motion for a judgment of acquittal challenges the sufficiency of the evidence. Id.

“When reviewing sufficiency of the evidence on appeal, the only time we determine that a conviction rests on insufficient evidence is ‘when, even after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ If we conclude ‘that the prosecution has failed to produce sufficient evidence to prove its case,’ we must allow for the entry of a judgment of acquittal.”

Id. at 573 (citations omitted). We do not reach such a conclusion here.

Wolffs argument relies on two theories. First, he argues that the method of service' was inadequate; second, he argues that the proof of service was inadequate. We disagree with both of these theories.

I.

First, Wolff argues that service of an amended order by a nonattorney using regular United States mail cannot meet the service element of § 14-07.1-06. We are faced with the preliminary task of defining the word “serve” as used in § 14-07.1-06.

At trial, neither party attempted to instruct the jury as to the definition of “serve.” Additionally, “serve” is neither defined in a general provision of the North Dakota Century Code, nor is it defined in Chapter 14-07.1. When words are not explained in the Century Code, absent the plain appearance of a contrary contention, they are to be understood in their ordinary sense. NDCC § 1-02-02. Looking at the ordinary meaning, the relevant portion of the entry under “serve” in Webster’s Third New International Dictionary (1971) includes: “to bring to notice, deliver, or execute.”

Using an ordinary meaning of “serve,” there is sufficient evidence to support a finding that the amended order was delivered, or executed, or that Wolff was given notice. The evidence includéd testimony by Marie Voegele, secretary at the Abused Adult Resource Center, that she placed a copy of the amended order in an envelope addressed to Wolff. She further testified that she placed the envelope with the outgoing mail, and that it was the business practice that either she or her supervisor would actually mail the letters each day by regular United States mail. Voegele also testified that the letter had not been returned to sender. Additionally, Dennis Bul-linger, a police officer with the Mandan Police Department, using maps of Mandan which included the restricted geographical area, testified as to the implausibility of Wolffs arriving at the restricted geographical area by accident.

Wolff was given the opportunity to rebut the State’s evidence, and to impeach the State’s witnesses. Although he failed to raise any evidence to rebut his actual receipt of the amended order, he did cross-examine Voegele. On cross-examination, Wolff unearthed the possible inaccuracy of Voegele’s affidavit of mailing. Although Voegele’s affidavit swore that it was she who put the letter in the United States mail, she testified at trial that it was the business practice simply [673]*673to put the letter in a box for outgoing mail. The person who actually deposited the outgoing mail in the United States mail would either be Voegele or her supervisor.

Given this testimony, there is sufficient evidence to find that the amended order was, in fact, mailed, and therefore was delivered, or executed, or that Wolff had notice of the geographical restriction included in the amended order. There is a rebuttable presumption that letters duly directed and mailed are received in the regular course of the mail. NDCC § 31-11-03(24); see also Auto-Owners Ins. Co. v. State Farm Mut. Auto. Ins. Co., 434 N.W.2d 348, 350 (N.D.1989); State v. Tininenko, 371 N.W.2d 762 (N.D.1985). NDCC § 12.1-01-03. Although the State’s evidence of mailing was not conclusive, and Wolffs impeachment of Voegele was relevant evidence, there was sufficient evidence for the jury to have found the amended order was mailed or received. Conspicuous in its absence is at least some evidence that Wolff did not receive the amended order. “[Ejvidence that a letter was not received is probative of whether it was mailed.” Auto-Owners Ins. Co., 434 N.W.2d at 350 (citing to Tininenko, 371 N.W.2d at 762). In that respect, we distinguish the facts of this case from those in which there is testimony as to lack of receipt. See e.g., Auto-Owners Ins. Co., 434 N.W.2d at 348; State v. Knittel, 308 N.W.2d 379 (N.D.1981).

Looking for contrary intentions for the meaning of “serve” in § 14-07.1-06, see NDCC § 1-02-02, Wolff argues that “serve,” as used in § 14-07.1-06, refers to Rules 4 and 5 of the North Dakota Rules of Civil Procedure. It is true, in civil cases, that when faced with the task of determining the meaning of “serve” in our statutes, absent a specified method, our recourse has been to rely on the North Dakota Rules of Civil Procedure. E.g., Sande v. State, 440 N.W.2d 264 (N.D.1989). However, regardless of the meaning adopted'in this case, Wolffs argument fails.

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Cite This Page — Counsel Stack

Bluebook (online)
512 N.W.2d 670, 1994 N.D. LEXIS 54, 1994 WL 51941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wolff-nd-1994.