State v. McGowen

943 N.W.2d 817

STATE of North Dakota, Plaintiff and Appellee

v.James Lee MCGOWEN, Defendant and Appellant

No. 20190225

Supreme Court of North Dakota.

Filed June 2, 2020

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

Dennis H. Ingold, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Crothers, Justice.

[¶1] James McGowen, a/k/a James McGowan, appeals from the amended criminal judgment finding him guilty of two counts of simple assault on a corrections officer and ordering $1,855.31 in restitution. We affirm.

I

[¶2] On February 22, 2019, McGowen was brought from a holding cell at the Burleigh-Morton County Detention Center into the booking area. Detention officer Behrens asked McGowen booking questions. McGowen became agitated and angry. Correctional officers Psyck and Beine walked around the corner to assist, and Psyck attempted to restrain McGowen with handcuffs. Psyck felt something hit him in the face and believed McGowen punched him. In order to restrain McGowen, Beine tackled McGowen and Psyck. McGowen continued to attack Psyck as they fell to the ground. On the ground McGowen continued to flail and swing punches.

[¶3] McGowen was charged with two counts of simple assault on corrections officers Psyck and Beine. A jury found McGowen guilty on both counts. Restitution was left open for 60 days. McGowen appealed the criminal judgment. The State moved to amend the criminal judgment to include $1,855.31 in restitution. The case was remanded to the district court for a restitution hearing, which was held on September 9, 2019. The State called a paralegal at Workforce Safety & Insurance (WSI). She testified she did not determine whether WSI would pay for the officers’ injuries or approve the payments for the officers’ medical treatments. The State requested a continuance to secure testimony of the individual at WSI who made decisions about WSI's payments for the officers’ injuries. McGowen objected to the continuance. The district court continued the first hearing. After a second hearing on September 26, 2019, and testimony from another witness at WSI, the district court ordered restitution of $1,855.31.

[¶4] McGowen argues evidence was insufficient to convict him, and the district court abused its discretion by continuing the restitution hearing, and by ordering $1,855.31 in restitution.

II

[¶5] McGowen argues evidence was insufficient to sustain his convictions. The State argues it presented sufficient evidence at trial for the jury to convict McGowen. We affirm both counts of simple assault on a corrections officer.

[¶6] "The appellate standard of review for a claim of insufficiency of the evidence is well established. A defendant challenging the sufficiency of the evidence on appeal ‘must show that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt.’ " State v. Mohammed , 2020 ND 52, ¶ 5, 939 N.W.2d 498 (citing State v. Jacobson , 419 N.W.2d 899, 901 (N.D. 1988) ). "This Court's role is ‘to merely review the record to determine if there is competent evidence that allowed the jury to draw an inference "reasonably tending to prove guilt and fairly warranting a conviction." ’ " Id. (quoting State v. Matuska , 379 N.W.2d 273, 275 (N.D. 1985) ). "The Court does not weigh conflicting evidence or judge the credibility of witnesses." Mohammed , at ¶ 5, (citing State v. Brandner , 551 N.W.2d 284, 286 (N.D. 1996) ).

[¶7] Section 12.1-17-01, N.D.C.C., provides the requirements for simple assault. In pertinent part it states:

"1. A person is guilty of an offense if that person:

a. Willfully causes bodily injury to another human being; or

....

2. The offense is:

a. A class C felony when the victim is a peace officer or correctional institution employee acting in an official capacity, which the actor knows to be a fact; ...."

The criminal code defines "willfully" as "if he engages in the conduct intentionally, knowingly, or recklessly." N.D.C.C. § 12.1-02-02(e). N.D.C.C. § 12.1-02-02, defines intentionally, knowingly, or recklessly as:

"a. ‘Intentionally’ if, when he engages in the conduct, it is his purpose to do so.

b. ‘Knowingly’ if, when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so.

c. ‘Recklessly’ if he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct, except that, as provided in section 12.1-04-02, awareness of the risk is not required where its absence is due to self-induced intoxication."

"Bodily injury" is defined as "any impairment of physical condition, including physical pain." N.D.C.C. § 12.1-01-04(4).

[¶8] "The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict." State v. Demarais , 2009 ND 143, ¶ 7, 770 N.W.2d 246. "A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor." State v. Crissler , 2017 ND 249, ¶ 10, 902 N.W.2d 925 (citing State v. Knowels , 2003 ND 180, ¶ 6, 671 N.W.2d 816 ) (internal citations and quotation marks omitted).

A

[¶9] Psyck testified that when Beine put a hand on McGowen's shoulder to handcuff him McGowen came at him and attacked him. He also testified, "At one point, I believe [he] punched me in the face. So very, very aggressive behavior. I mean, he was trying to hurt me." Psyck was asked, "Why do you say you believed he punched you in the face?" He answered, "There was a lot of movement, a lot of things going on in a very short period of time and through the course—through the course of it, other things hurt a lot worse than getting punched in the face." Ms. Lawyer also asked, "Okay. So you felt something hit your face?" Psyck responded, "Yes." Psyck also testified he pushed McGowen into the wall and attempted to restrain McGowen. Then Beine tackled McGowen and both of them landed on top of Psyck. Psyck testified, "he was attacking me as we were getting—as we were falling over." He also stated he "landed face first, little on my side, but I landed on my elbow, my elbow and my shoulder." He also testified that once on the ground he believed McGowen was still attempting to throw punches at him, and he tried to cross his arms around McGowen's head and neck so McGowen could not punch him.

[¶10] Psyck testified he had pain in his hips, right leg, left and right shoulders, left elbow, face, and head and neck, and he was wearing the same uniform he was wearing in court.

[¶11] Beine testified McGowen had his arms inside of his shirt out of his sleeves to stay warm, and as they walked towards McGowen he put his arms back into the sleeves and clenched his fists and "took a bladed stance." Beine described "bladed stance" as when "[y]ou put one foot forward and you kind of at an angle towards someone so you can—it's like a fighting stance." Beine also testified McGowen started making comments similar to, "I can see you coming up on me. Like you don't want to do that."

[¶12] Beine testified he reached for McGowen's arm to turn him so Psyck could handcuff him and bring him to the detox cell to cool off. Beine testified when the handcuffs came out McGowen put his head down and charged at Psyck. He testified McGowen ran into Psyck and "he started swinging and trying to throw punches." After the three individuals were on the floor, officer Beine testified McGowen continued to struggle and "he was still trying to swing I think .... Like I would hold his arms and his legs and he would just fight every place we tried to put it."

[¶13] Behrens testified she ran over and "saw the Defendant assaulting Officer Dave [Psyck]." Ms. Lawyer asked, "And how was he doing that?" She testified, "He was trying to throw punches and trying to kick and just he wouldn't stop moving his body and Officer Beine was also on top of both of them too. I just saw them struggling." In addition to the testimony, the jury also watched a video of the event.

[¶14] The officers’ testimony plus the video provide sufficient evidence for the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. We affirm the simple assault on Psyck, a corrections officer.

B

[¶15] In addition to the evidence outlined under Psyck's analysis, Beine testified he was the officer who assisted McGowen to the booking area, he was wearing a tan button-up shirt with his name, a badge, brown pants and black boots, and a patch on the shoulder of the shirt that stated, "Burleigh County Sheriff's Department."

[¶16] Beine testified he had a head injury from the incident which was either from "hitting both of them when I tackled them or catching a swing when we hit the ground. I can't recall. I couldn't tell you." He testified he was transported to the emergency room because when he was trying to write his report he started having headaches and felt dizzy.

[¶17] The officers’ testimony plus the video provide sufficient evidence for the jury to infer guilt that McGowen willfully caused bodily injury to Beine, and McGowen knew Beine was a correctional institution employee acting in an official capacity. We affirm.

III

[¶18] McGowen argues the district court abused its discretion in granting a continuance because it did not do a "good cause" analysis, but rather focused on prejudice to the defendant. McGowen further argues the district court abused its discretion in granting the continuance and reopening evidence because it did not remain neutral. The State argues the district court did not abuse its discretion in granting the...