State v. Hebert

920 N.W.2d 306

STATE of North Dakota, Plaintiff and Appellee

v.Mark HEBERT, Defendant and Appellant

No. 20180171

Supreme Court of North Dakota.

Filed December 6, 2018

Brian D. Grosinger, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.

April E. Olson (argued), Tempe, AZ, Peter Schoenburg (on brief), Albuquerque, NM, and Bruce D. Nestor (on brief), Minneapolis, MN, for defendant and appellant.

Per Curiam.

[¶ 1] Mark Hebert appeals from a criminal judgment convicting him of tampering or damaging a public service. The district court found Hebert’s conduct, by standing on or near railroad tracks, amounted to tampering with a public service. Hebert argues the district court misinterpreted the law and the conduct alleged could not have supported a conviction for tampering or damaging a public service. We agree, concluding State v. Jessee , 2018 ND 241, 919 N.W.2d 335, is dispositive of this appeal. We summarily reverse the district court’s judgment under N.D.R.App.P. 35.1(b), concluding the evidence did not establish Hebert’s presence on or near the tracks constituted tampering with tangible property. See Jessee , at ¶ 13 (tampering under N.D.C.C. § 12.1-21-06(1)(a) requires a change, alteration, or harmful conduct towards the tangible property of another).

[¶ 2] Gerald W. VandeWalle, C.J.

Lisa Fair McEvers

Daniel J. Crothers

Jerod E. Tufte

Jon J. Jensen