IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, | ) | Supreme Court | |||||||
| ) | No: 2006 0242 | ||||||||
| Plaintiff - Appellee, | ) | ||||||||
| ) | |||||||||
| vs. | ) | ||||||||
| ) | District Court | ||||||||
| Rodney Brossart, | ) | No: 32-06-K-0026 | |||||||
| ) | |||||||||
| Defendant - Appellant. | ) | ||||||||
APPEAL FROM THE DISTRICT COURT
NELSON COUNTY, NORTH DAKOTA
NORTHEAST CENTRAL JUDICIAL DISTRICT
HONORABLE KAREN BRAATEN
JUDGMENT OF CRIMINAL CONVICTION
DATED AUGUST 14, 2006
BRIEF OF THE APPELLEE
| Steven J. Simonson | ND 04965 | |
| Assistant States Attorney, Nelson County | ||
| PO Box 428 | ||
| Lakota, ND 58344 | ||
| (701) 247-2493 | ||
| Attorney for Plaintiff - Appellee | ||
TABLE OF CONTENTS
| TABLE OF AUTHORITIES | . | . | . | . | . | . | . | ii | ||
| STATEMENT OF ISSUES | . | . | . | . | . | . | . | iii | ||
| STATEMENT OF THE CASE | . | . | . | . | . | . | 1 | |||
| STATEMENT OF THE FACTS. | . | . | . | . | . | . | 1 | |||
| LAW AND ARGUMENT | . | . | . | . | . | . | . | 2 | ||
| I. | Whether Brossart's actions rose to the level necessary to become preventing arrest or discharge of other duties. | . | . | 3 | ||||||
| II. | If the court finds that the police did use substantial force upon Brossart, did Brossart have the right to resist an unlawful arrest where the police used unreasonable force to subdue him? | 4. | ||||||||
| CONCLUSION | . | . | . | . | . | . | . | . | 6 | |
i
TABLE OF AUTHORITIES
| CASES: | |||||
| State v. Erickstad, 2000 ND 202, 620 N.W.2d 136 | . | . | . | . | 3 |
| State v. Farrell, 2000 ND 26, 606 N.W.2d 524. | . | . | . | . | 3 |
| State v. Jensen, 2000 ND 28, 606 N.W.2d 507. | . | . | . | . | 3 |
| STATUTES | ||||||
| N.D.Cent.Code section 12.1-05-03(1) | . | . | . | . | . | 4 |
| N.D.Cent.Code section 12.1-08-02(1) | . | . | . | . | . | 2 |
ii
STATEMENT OF ISSUES
I. Whether Brossart's actions rose to the level necessary to become preventing arrest or discharge of duties.
II. If the court finds that the police did use substantial force upon Brossart, did Brossart have the right to resist an unlawful arrest where the police used unreasonable force to subdue him?.
iii
STATEMENT OF THE CASE
[¶1] Rodney Brossart (hereafter referred to as Brossart), the Defendant and Appellant, appeals from a criminal judgment convicting him of Preventing Arrest or Discharge of Other Duties. Brossart appeared before the Nelson County District Court for a bench trial on held on August 14, 2006. Brossart was convicted of the charge and sentenced on the same day. The criminal judgment was entered on August 14, 2006. The Defendant filed his Notice of Appeal on September 5, 2006.
STATEMENT OF THE FACTS
[¶2] Brossart had been instructed by the Williams Township Board not to conduct maintenance on the Williams Township roads. (Tr. Pp. 65, 115). Brossart was subsequently instructed by the Nelson County Sheriff to refrain from maintenance of local roads. (Tr. P. 115). On April 6, 2006 Deputy Stenvold (Nelson County Sheriff's Department) received a call of a tractor obstructing a road. (Tr. P. 25). Deputy Stenvold arrived to the scene and observed a John Deere tractor pulling an implement with three rollers extending from ditch to ditch. (Tr. P. 27). Brossart was the operator of the tractor. The officer could not drive around the implement. (Tr. P. 27). Brossart did not pull the implement over to allow the officer to pass. (Tr. P. 29).
[¶3] Officer Braathen (Nelson County Sheriff's Department) overheard the dispatch and went to the scene to assist Officer Stenvold; Officer Braathen had seen Brossart angry in the past and believed that Officer Stenvold could use assistance if the situation got out of hand. (Tr. Pp. 52-52). Brossart was vocal, angry and aggressive with the Officers. (Tr. Pp. 30, 31, 54). In concern for their safety, the Officers detained Brossart. (Tr. Pp. 31, 32, 54). When the officers sought to put handcuffs on Brossart, he pulled away and pulled the keys out of the tractor so that the tractor would not move from its location over the road. (Tr. P. 32). Brossart then resisted the officers' attempts at handcuffing, requiring the officers to take Brossart to the ground. (Tr. Pp. 32, 55). Brossart tensed up (Tr. P. 32) and wrestled with the officers (Tr. P. 55). Brossart fought putting his arms behind his back, requiring Officer Braathen to apply the mandibular angle pressure point maneuver. (Tr. P. 55). It required two sets of handcuffs, as the officers could not get Brossart's hands together close enough to allow him to be restrained by one pair of handcuffs. (Tr. P. 55). Officer Stenvold was injured in the event. (Tr. P. 35).
[¶4] Brossart was charged with Disorderly Conduct. (Tr. P. 5). Judge Braaten ruled that the State failed to prove all elements of the Disorderly Conduct charge (Tr. P. 134). Judge Braaten made specific findings regarding the charge of resisting. (Tr. Pp. 137 - 139.).
LAW AND ARGUMENT
[¶5] Pursuant to N.D.Cent.Code section 12.1-08-02(1) provides in relevant part:
A person is guilty of a class A misdemeanor if, with intent to prevent a public servant from effecting an arrest of himself or another for a misdemeanor or infraction, or from discharging any other official duty, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting the arrest of the discharge of the duty. . . .
I. Whether Brossart's actions rose to the level necessary to become preventing arrest or discharge of duties.
[¶6] The trial court has broad discretion over evidentiary matters, and the Court will not overturn a trial court's decision on evidence unless the court abuses that discretion. State v. Erickstad, 2000 ND 202, ¶ 34, 620 N.W.2d 136; State v. Jensen, 2000 ND 28, ¶ 10, 606 N.W.2d 507. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Erickstad, at ¶ 34; State v. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524.
[¶7] In the instant case, it was not an abuse of the trial court's discretion to determine that Brossart's conducted resulted in the preventing of arrest or discharge of the officer's duties. This matter was concluded by a bench trial; the trial judge being the finder of fact. Judge Braaten made specific findings of facts upon the record:
at Tr. P. 138: "In this case I do find that the defendant with the intent to prevent the officers from handcuffing him and discharging that duty as far as maintaining the safety and getting a citation issue and all that did create a substantial risk of bodily injury to the deputies and or it could be either one I think applies, also to the point where it required force, substantial force, to overcome the defendant's resistance to their discharge of duty. The elements of the preventing arrest have been proved by proof beyond reasonable doubt and I do find the defendant guilty of the charge of preventing arrest or discharge of other duties."
[¶8] The above stated facts were obvious in the record and were among the facts upon which the trial court considered in drawing the conclusion of guilt. The trial court's determination of guilt was not arbitrary, unreasonable, capricious or the result of a misinterpretation of the law; the trial court's determination of guilt should be upheld on appeal.
II. If the court finds that the police did use substantial force upon Brossart, did Brossart have the right to resist an unlawful arrest where the police used unreasonable force to subdue him?
[¶8] The Appellant cites N.D.Cent.Code section 12.1-05-03(1) as a defense in this action. The record, however, makes no reference to this defense prior to the appeal. The defense of "self defense" was not raised at trial; it is improper to allege self-defense on appeal. Even though, the record does not support a finding of self-defense; thus, such a defense would be inapplicable to the determination of Brossart's guilt.
[¶9] The Appellant argues that the Nelson County deputies used "unreasonable force" to arrest Brossart. The evidence on record does indicate that, for the purpose of officer's safety, they initially sought to detain Brossart while they were seeking to resolve the situation. The evidence further indicates that Brossart forcibly resisted being handcuffed and that his actions resulted in the officers election to arrest him. The evidence further indicates that, in order to handcuff Brossart, the officers had to wrestle with Brossart, take him to the ground, apply pressure to his arm joint, and apply two sets of handcuffs (as Brossart would not allow his arms to get close enough for a single pair). The officers used no further force than what was described.
[¶10] N.D.Cent.Code section 29-06-13 describes the amount of force permitted in making an arrest. Specifically: "If, after notice of intention to arrest the defendant, he either flees for forcibly resists, the officer may use all necessary means to effect the arrest." The officers did not exceed the level of force required to control the scene.
[¶11] The Appellant further alleges that Brossart was the subject of an unlawful arrest. As stated above, the trial court has broad discretion over evidentiary matters, and the Court will not overturn a trial court's decision on evidence unless the court abuses that discretion; a trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Erickstad.
[¶12] The trial court determined that the Nelson County deputies came in contact with Brossart while investigating a scene in a legal and proper manner. (Tr. P. 137). The trial court further determined that Brossart's anger was escalating, and that such anger created a safety issue for the deputies and Brossart. (Tr. P. 137). The trail court further determined that Brossart did resist, and that such resistance was "more than a mere tensing of his arm." (Tr. P. 138). The trial court judge did determine that Brossart did resist the officer's while they were performing their duty. The trial court's determination of guilt was not arbitrary, unreasonable, capricious or the result of a misinterpretation of the law; the trial court's determination of guilt should be upheld on appeal.
CONCLUSION:
[¶12] Therefore, the State respecfully requests the Court affirm the decision of the District Court in convicting the Defendant of the charge of Preventing Arrest or Discharge of Other Duties.
Dated this 26 day of December, 2006.
| Steven J. Simonson | ND 04965 | ||||||
| Assistant States Attorney, Nelson County | |||||||
| PO Box 428 | |||||||
| Lakota, ND 58344 | |||||||
| (701) 247-2493 | |||||||
| Attorney for Appellee | |||||||