State v. Roller

1

2024 ND 180

State of North Dakota, Plaintiff and Appellee v. Thomas Joseph Roller, Defendant and Appellant

No. 20240051

Supreme Court of North Dakota

September 26, 2024

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

Isaac O. Lees, Assistant Burleigh County State's Attorney Bismarck, ND, for plaintiff and appellee; on brief.

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

OPINION

Bahr Justice.

[¶1] Thomas Roller appeals from a criminal judgment entered after a jury convicted him of terrorizing an adult victim, reckless endangerment, criminal mischief, and domestic violence. He argues the jury instruction identifying the essential elements of criminal mischief allowed the jury to find him guilty of a non-cognizable offense. He further argues the district court imposed an illegal sentence by considering his prior convictions when determining he was a habitual offender. We affirm the judgment.

I

[¶2] In July 2023, the State charged Roller with terrorizing an adult victim, a class C felony, reckless endangerment, a class C felony, criminal mischief, a class A misdemeanor unauthorized use of a vehicle, a class A misdemeanor, and domestic violence, a class B misdemeanor. At the same time, the State gave written notice of its intent to request Roller be sentenced as a habitual offender under N.D.C.C. § 12.1-32-09(1)(c). The notice identified five separate cases in which Roller was allegedly convicted of eight class C felonies. Before trial, the district court granted the State's motion to dismiss the unauthorized use of a vehicle charge. The court held a jury trial in November 2023.

[¶3] The district court's jury instructions stated the essential elements of criminal mischief as:

1) On or about July 19 through July 20, 2023, in Burleigh County, ND;

2) The Defendant, Thomas Roller;

3) Willfully damaged a vehicle, belonging to Wendy Moore; and

4) Intentionally caused pecuniary loss greater than $100.

(Emphasis added.) Roller did not object to the instructions.

[¶4] The jury returned a guilty verdict on all four charges.

[¶5] The district court held a presentencing hearing to determine whether Roller met the statutory requirements to be sentenced as a habitual offender. The State requested the court take judicial notice "of its own files and docket" reflecting the judgments in five cases. Roller objected, arguing there was no direct authentication verifying that he was the defendant in the prior cases. He later withdrew the objection, stating he was not taking the position he was not the defendant in the five cases. After taking judicial notice of the five judgments, the court found Roller met the criteria to be sentenced as a habitual offender.

[¶6] At a later sentencing hearing, the district court sentenced Roller to concurrent sentences of ten years for terrorizing an adult victim and reckless endangerment, suspending all but seven years of the sentences. The court sentenced Roller to 202 days for criminal mischief and 30 days for domestic violence.

II

[¶7] Roller argues the jury instruction on the essential elements of criminal mischief included "a legally impossible culpability" because the instruction included both "willfully" and "intentionally."

[¶8] "The district court must instruct the jury on the law; however, the parties must request and object to specific jury instructions." State v. Hartson, 2024 ND 78, ¶ 19, 6 N.W.3d 639 (quoting State v. Jacob, 2006 ND 246, ¶ 14, 724 N.W.2d 118). "[A] party who objects to an instruction . . . must do so on the record, stating distinctly the matter objected to and the grounds[.]" N.D.R.Crim.P. 30(c)(1). "When a defendant fails to object to a proposed instruction properly, or fails to specifically request an instruction or object to the omission of an instruction, the issue is not adequately preserved for appellate review and our inquiry is limited under N.D.R.Crim.P. 52(b) to whether the jury instructions constitute obvious error affecting substantial rights." Hartson, at ¶ 20.

[¶9] Roller did not propose an instruction identifying the essential elements of criminal mischief. He also did not object to the district court's proposed instruction regarding the essential elements of criminal mischief. Roller acknowledges he did not preserve this issue for appeal. He requests we review the instruction for obvious error. See State v. Studhorse, 2024 ND 110, ¶ 23, 7 N.W.3d 253 (stating when defendant does not make an objection to the proposed jury instructions, the alleged error is not preserved for appeal and the court reviews only for obvious error).

[¶10] "To establish an obvious error, the defendant must show: (1) error; (2) that is plain; and (3) the error affects the defendant's substantial rights." State v. Gardner, 2023 ND 116, ¶ 5, 992 N.W.2d 535 (quoting State v. Smith, 2023 ND 6, ¶ 5, 984 N.W.2d 367). "To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. There is no obvious error when an applicable rule of law is not clearly established." Id. (quoting State v. Lott, 2019 ND 18, ¶ 8, 921 N.W.2d 428). "We have discretion in deciding whether to correct an obvious error, and we should exercise that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (quoting Smith, at ¶ 5).

[¶11] "Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury." State v. Martinez, 2015 ND 173, ¶ 8, 865 N.W.2d 391 (quoting State v. Pavlicek, 2012 ND 154, ¶ 14, 819 N.W.2d 521). "We review the instructions as a whole to determine whether they correctly and adequately advise the jury of the applicable law even if part of the instruction standing alone may be insufficient or erroneous." State v. Gaddie, 2022 ND 44, ¶ 6, 971 N.W.2d 811.

[¶12] Under N.D.C.C. § 12.1-21-05, a person is guilty of criminal mischief, a class B misdemeanor, if the person "[w]illfully damages tangible property of another." N.D.C.C. § 12.1-21-05(1)(b), (2) (1997) (amended 2023).^[1] The offense increases to a class A misdemeanor if the person "intentionally causes pecuniary loss of from one hundred dollars through two thousand dollars." N.D.C.C. § 12.1-21-05(2)(c) (1997).

[¶13] Roller argues it is not legally possible to both "willfully cause damage" and "intentionally cause pecuniary loss." Roller does not cite any authority showing "willfully" and "intentionally" are incongruent. To the contrary, in Gaddie, 2022 ND 44, ¶ 26, this Court determined "'willfully' as defined by N.D.C.C. § 12.1-02-02(1)(e) is not necessarily inconsistent with a crime requiring specific intent[.]" Further, "willful" conduct includes "intentional" conduct. N.D.C.C. § 12.1-02-02(1)(e) (a person engages in conduct "willfully" if the person "engages in the conduct intentionally, knowingly, or recklessly."). Thus, intentional conduct is a subset of willful conduct, meaning a person's conduct can be both willful and intentional.

[¶14] Criminal mischief requires "willful" conduct, which includes intentional conduct. By using the broader term "willfully" and the narrower term "intentionally" as elements of the same crime, when read as a whole, the instructions require the jury to find "intentional" conduct. In other words, the jury's finding Roller intentionally caused pecuniary loss greater than $100 necessarily includes a finding Roller willfully damaged the vehicle-intentional conduct being a subset of willful conduct. Thus, the jury instructions increased the State's burden of proof by narrowing the culpability level from any "willful" conduct to only "intentional" conduct.

[¶15] The district court's use of "willfully" and "intentionally" in its jury instruction is not a clear deviation from the statutory language of N.D.C.C. § 12.1-21-05 or any clearly established rule of law. The court's instructions correctly advised the jury on the elements of the crime. We conclude the district court did not commit error.

III

[¶16] Roller argues the district court imposed an illegal sentence after finding he was a habitual offender. Specifically, he claims "there was no foundation or authentication for the prior convictions asserted in the State's notice," and that "[t]he State did not meet [its] burden of production that the prior conviction[s] were with counsel or that counsel was waived."

[¶17] "A district court has discretion in sentencing, and review of a sentence is generally limited to whether the court acted within the statutorily prescribed sentencing limits or substantially relied on an impermissible factor." State v. Maines, 2019 ND 274, ¶ 4, 935 N.W.2d 665 (cleaned up). "This Court reviews habitual offender proceedings under N.D.C.C. § 12.1-32-09 and the application of a sentence enhancement for an abuse of discretion." Id. "A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law." Id. (quoting State v. Cain, 2011 ND 213, ¶ 16, 806 N.W.2d 597).

[¶18] At the presentencing hearing on his habitual offender status Roller initially objected to the State's request the district court take judicial notice of the court files reflecting the judgments in five cases. However, Roller later withdrew his objection, stating he was not taking the position he was not the defendant in the five cases.

[¶19] Rule 28(b)(7)(B)(ii), N.D.R.App.P., requires the appellant's brief contain "citation to the record showing that the issue was preserved for review; or a statement of grounds for seeking review of an issue not preserved[.]" Except for the...