IN THE SUPREME COURT
OF THE STATE OF NORTH DAKOTA
|State of North Dakota,|
|Supreme Court No. 20130099|
|Burleigh Co. No. 08-2012-CR-02178|
|Nathan Allen Lang,|
APPEAL FROM THE CRIMINAL JUDGMENT ENTERED BY THE DISTRICT COURT FOR THE SOUTH CENTRAL JUDICIAL DISTRICT THE HONORABLE CYNTHIA M. FELAND PRESIDING ON MARCH 19, 2013
BRIEF OF APPELLANT
|By: Mark T. Blumer #04669|
|Attorney for Defendant/Appellant|
|PO Box 7340|
|Fargo, ND 58106|
|TABLE OF CONTENTS|
|Table of Contents.p.2|
|Table of Authorities.p.3|
|Statement of the Issues.. ¶1|
|Statement of the Case.... ¶2|
|Facts of the Case..¶5|
|Law and Argument Jurisdiction..¶16|
|1. Nathan Allen Lang's conviction should be reversed because the evidence is|
|insufficient to sustain the verdict....¶1,17|
|TABLE OF AUTHORITIES|
|State v. Igou, 2005 ND 16, 691 N.W.2d 213..¶18|
|State v. Knowles, 2003 ND 180, 709 N.W.2d 348¶18|
|State v. Schmeets, 2007 ND 197, 663 N.W.2d 637¶18|
|STATUTORY MATERIALS AND RULES OF PROCEDURE|
|N.D.C.C. Sect. 12.1-23-02...¶19|
|N.D.C.C. Sect. 29-28-03....¶16|
|N.D.C.C. Sect. 29-28-06..¶16|
STATEMENT OF THE ISSUES
[¶1] Nathan Allen Lang's conviction should be reversed because the evidence is insufficient to sustain the guilty verdict.
STATEMENT OF THE CASE
[¶2] This is an appeal from the Burleigh County Criminal Judgment and Commitment
entered by the Honorable Cynthia M. Feland on March 19, 2013. (Appendix ("A") 2,
Docket ("D") 34, A. 6-7).
[¶3] On September 12, 2012, a Complaint was filed charging Nathan Lang ("Lang") with the crime of Count I: Theft of Property, a Class C Felony (A. 1, D. 1, A. 4). On October 15, 2012, an Information was filed. (A. 2, D. 12, A. 5). A jury trial was held on March 15, 2013. (Trial Transcript, ("T")). At the close of the State's case, Lang made a Rule 29 Motion for directed verdict of acquittal arguing that the state had failed to establish the element of intent to deprive the owner of the property. The Trial Judge denied the Motion. (Id. p. 119, l. 15-23). At the close of the Defendant's case, Lang renewed his Rule 29 Motion for directed verdict of acquittal and added that the State did not show a prima facie case as to element 7 of the essential elements failing to prove Lang did not honestly believe he had a valid claim to the property and Lang honestly believed the items had been paid for. (Id. p. 121, l. 1-13). The Trial Judge held that there was conflicting evidence regarding whether the items were, or were not, purchased by the defendant which was a question for the jury to decide and the judge denied the Rule 29 Motion. (Id. p. 121, l. 5-14).
[¶4] The jury returned a guilty verdict. (Id., p. 80, l. 1-4; A. 2, D. 32, A. 6). Lang was sentenced, in part, to serve eighteen (18) month with the Department of Corrections and Rehabilitation with ten (10) days credit for time previously served. (Id. p. 147, l. 11-18,). A Criminal Judgment was entered on March 19, 2013. (A. 2, D. 33, A. 7-8) and a Notice of Appeal was timely filed on April 3, 2013. (A. 2, D. 35, A. 9). An attorney was assigned to Lang for purpose of this appeal.
FACTS OF CASE
[¶5] On September 5, 2012, Lang, Yorishia Hoon and their daughter went to meet his step-father, Bob Schneider ("Schneider") at the WalMart in Bismarck, North Dakota. (T. p. 103, l. 19-23). Schneider was going to WalMart for an oil change and told Lang to let him know if they needed anything, that [Schneider] would pay for it and it wouldn't be a problem because he had just received a social security settlement. (T. p. 104, l. 5-9), Lang and Hoon had recently purchased a trailer home and were in need of a vacuum and shampooer, as well as some diapers. (T. 94, l. 15-17). Lang went to the vacuum aisle to look at vacuums and shampooers and was on the telephone with Schneider to see how much he could spend and Schneider told Lang whatever Lang felt comfortable with, money pretty much wasn't a problem. (T. 104, l. 25 p. 105, l. 4).
[¶6] Sarah Herman ("Herman"), WalMart asset protection associate (T. p. 59, l. 22-24), observed Lang on the store security monitor while he was in the vacuum aisle. (T. p. 65, l. 17-18). Lang was in the vacuum aisle for approximately 13 minutes. (T. p. 63, l. 13-15). Herman testified that the Dyson vacuum cleaners have spiderwire on them and that "spiderwire is a security device that can only be taken off with a certain key. When it goes to a register, a cashier only has it. If you were to cut it, an alarm would go off. If you go past the EAS alarm where you go out the door, the alarm would go off." (T. p. 62, l. 20 p. 63, l. 3). Herman also testified that "[T]he spiderwire can be wrapped so tight that the only way to get it off would be the key, and if you took it off the box, you would have to bend the corners of the box to make it smaller so that way the spiderwire could come off. So when looking at the box, you could see that it had rubbed off and was taken off". (T. p. 64, l. 6-11).
[¶7] After Lang left the vacuum aisle, Herman testified that she personally observed him, and the shopping cart with a Dyson vacuum cleaner in it, in the pets area of WalMart. (T. p. 65, l. 5-16). Lang then left the shopping cart and walked off with a WalMart associate. (T. p. 65, l. 10-18). Herman went over to the cart and saw marks all over the Dyson vacuum box. (T. p. 66, l. 1-3). Herman's testimony was that after she saw the spiderwire was taken off the Dyson vacuum, before Lang left the store, she "ran back and [I] found the spiderwire that was on that Dyson vacuum on the shelf". (T. p. 64, l. 1-3). The marks on the Dyson box indicated to Herman that the spiderwire had been rubbed off and was taken off. (T. p. 64, l. 4-11).
[¶8] Lang testified that after leaving the vacuum aisle, "when I got the shampooer and the vacuum cleaner, we went back to the tire lube. This kid rang it up back there. He swiped his card. The guy did this little thing with the plastic dealtook that off, and when we when I left there, I was under the impression everything's taken care of". (T. 105, l. 14-20). Lang was lead to believe by somebody at WalMart that it was okay to leave the store. (T. p. 105, l. 24 p. 106, l. 1). Hoon's testimony was that she saw him purchase the items. "The guy back in the tire and lube did ring them up. And [Lang] asked if it was okay if we go, and [Schneider] was going to finish out doing the purchase". (T. p. 99, l. 18 p. 100, l. 13). Lang didn't stay around for [Schneider] to complete his transaction because [Schneider] said it was going to be about a half an hour. (T. p. 106, l. 5-8). Lang testified that he saw the items get scanned (T. p. 110, l. 19-20) "and there's a little bag that the guy bagged the shampoo soap". (T. p. 111, 1-3). Regarding the spiderwire, Lang testified that "[I]t had some black thing around it "but oncewhen we paid for it, the guy took it off". (T. p. 105, l. 10-12). Lang denied detaching a spiderwire from the box. (I. l. 5-7).
[¶9] Lang testified that he had also gone to WalMart to pick up some black mulch and he went with an employee outside to the garden center to look for some but they were out. Prior to going to the garden center the employee had told Lang he could leave the cart with the items he had purchased where it was and that it would be fine there. (T. 106, l. 11-22). After looking for mulch, Lang went to leave the store, saw Hoon checking out at the register, went to her and got the van keys and proceeded to walk out. (T. p. 107, l. 9-18). No alarms went off when he went through the doors. (T. p. 107, l. 19-21). Hoon testified that she was at the register with their daughter buying a pop and chips (T. p. 95, l. 16-25) and Lang stopped by them and Hoon gave him the van keys and told Lang to go ahead and load up the stuff and then Hoon went to purchase a moneygram before leaving. (T. p. 96, l. 1-7).
[¶10] Herman testified that she watched Lang go up to the front registers and walk around a little bit and then he met up with Hoon at the registers and then exited the general merchandise doors. (T. p. 66, l. 19-23). At that point, Herman made contact with Lang "in the area between the two doors called the vestibule where the carts are. That is where Herman stopped Lang to talk to him. (T. p. 67, l. 13-20). Herman testified that this is past all the points of sale. (T. p. 67, l. 21-22).
[¶11] Herman testified that she asked Lang for a receipt and [Lang] said he left it at the garden center. Lang wanted to take the cart with him to get the receipt but [Herman] would not let him take the cart until she had a receipt. Herman told Lang that she was waiting for a member of management to come and join them before the cart left the store. Herman further testified that Lang then started walking away, (T. p. 72, l. 25 p. 73, l. 11), that he did not run but walked. (T. p. 83, l. 6-9).
[¶12] Lang testified that was incorrect and that he told Herman that the receipt was in the automotive center and it was printed on a work order from automotive. (T. 113, l. 12-21). Lang's testimony was that Vetter met him and asked him for a receipt and Lang told her his dad had it in the back and "[Vetter] goes, okay, well, let's go get it. So I was going to move the cart; and then [Herman] lady was like, no, you're not going nowhere". [Lang] told [Herman] that he was going to get my receipt and [Herman] told me 'you're not going nowhere'". (T. p. 108, l. 17 p. 109, l. 1). Hoon testified that as she was leaving she watched Lang and Herman for about two minutes and then Hoon walked out. Hoon's testimony was that she heard Lang tell the WalMart employee that he would go back and get the receipt but she wouldn't let him and that she wanted to see the receipt. (T. p. 96, l. 18 p. 97, l. 9).
[¶13] Lang testified that Herman would not let him go back into the store and he told her "fineI'll drive there So I continued to go out the store and I walked back or went back to the tire (center)." [Lang] testified that when he got back to the automotive department and Herman was there and told Lang that he was not coming back in. (T. p. 114, l. 14-16). Herman testified that when Lang drove off "there was a cart behind his van that went flying through the parking lot afterwards". (T. p. 70, l. 1-3). Lang's testimony was that when he drove off he turned left to go to the automotive center. (T. p. 114, l. 19-20).
[¶14] Herman testified that the cart Lang had contained a Dyson vacuum cleaner, a rug cleaner, a rug cleaner liquid, and two boxes of diapers with a total value of $774.51. (T. p. 75, l. 7-11). Herman further testified that she did a check where she can type in a UPC from an item and see if any were sold that day and that there was no Dyson vacuum sold on September 5 for the whole WalMart store. (T. p. 116, l, 15 p. 117, l. 5). Herman did not have any documentation of that UPC check. (T. p. 117, l. 10-16). Vetter testified that Lang told her he did not steal any items from WalMart. (T. p. 91, l. 1-2). Lang testified that he did not intend to deprive WalMart of the merchandise, it was paid for. (T. p. 109, l.
[¶15] The jury found Lang guilty of Theft of Property and Lang filed an appeal.
LAW AND ARGUMENT
[¶16] Jurisdiction. Appeals shall be allowed from decisions of lower courts to the Supreme Court as may be provided by law. Pursuant to constitutional provisions, the North Dakota legislature enacted Sections 29-28-03 and 29-28-06, N.D.C.C., which provides as follows:
"An appeal to the Supreme Court provided for in this chapter may be taken
as a matter of right. N.D.C.C. § 29-28-03. An appeal may be taken by the
1. A verdict of guilty;
2. A final judgment of conviction;
3. An order refusing a motion in arrest of judgment;
4. An order denying a motion for new trial; or
5. An order made after judgment affecting any substantial right of the
N.D.C.C. § 29-28-06.
[¶17] ISSUE: Nathan Lang's conviction should be reversed because the evidence is insufficient to sustain the guilty verdict.
[¶18] The appellate standard of review regarding a claim of insufficiency of evidence is well-established. In State v. Schmeets, 2007 ND 197, ¶8, 742 N.W.2d 513, the court stated: "When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction." State v. Igou, 2005 ND 16, ¶5, 691 N.W.2d 213. 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. Id. "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. Knowels, 2003 ND 180, ¶6, 671 N.W.2d 816.
[¶19] Section 12.1-23-02, N.D.C.C. reads:
"A person is guilty of theft if he:
1. Knowingly takes or exercises unauthorized control over, or makes an unauthorized
Transfer of an interest in, the property of another with intent to deprive the owner thereof;
2. Knowingly obtains the property of another by deception or by threat to deprive the
Owner thereof, or intentionally deprives another of his property by deception or by threat; or
3. Knowingly receives, retains, or disposes of property of another which has
Been stolen, with intent to deprive the owner thereof."
N.D.C.C. § 12.1-23-02.
[¶20] In the case at hand, in order to convict Lang for the crime of Theft of Property it is necessary that the State prove beyond a reasonable doubt all essential elements of the offense. The only elements of the offense which are in dispute were elements 4, 6 and 7. Element 4 of the essential elements requires proof beyond a reasonable doubt that Lang "did knowingly take or exercise unauthorized control and/or an unauthorized transfer of certain property". (T. p. 133, l. 14-16). Element 6 required proof beyond a reasonable doubt that Lang "acted with the intent to deprive the owner of the property". (T. p. 134, l. 3-4). Element 7 required proof beyond a reasonable doubt that Lang "did not honestly believe [Lang] had a valid claim to the property". (T. p. 134, l. 14-15).
[¶21] Lang, and Hoon, provided sufficient testimony that he did not knowingly take or exercise unauthorized control and/or an unauthorized transfer of the WalMart property and that it was purchased by Schneider in the Lube and Tire center. As was pointed out during the trial, Lang and Hoon observed the items being scanned by the WalMart employee, the shampoo was bagged, Lang and Hoon observed Schneider pay with his credit card and Lang was informed it was taken care of and he could go. Lang's behavior in the store was not suspect as he was not looking around to see if he was being watched at the vacuum aisle, he did not look around to see if he was being followed, Lang stopped at the front register to talk to Hoon and get the van keys from her, and there were no alarms set off as he exited the general merchandise area of the WalMart into the vestibule. Lang made reasonable attempts to go back to the automotive center to retrieve the receipt for the items in an effort to show the purchase had been made. Lang's defense provided reasonable doubt as to each of the disputed elements of the offense charged.
[¶22] At trial, the State failed to meet its burden of proof beyond a reasonable doubt as to the disputed elements of the offense. The state's witnesses did not allow Lang to go to the automotive center to retrieve the receipt. The testimony provided by the State was not sufficient to show that Lang knowingly took unauthorized control over the items in his shopping cart, that acted with the intent to deprive the owner of the property. The State witnesses simply claim that was his "intent" however, the testimony provided by the State shows that they were unwilling to allow him to return to the automotive center to retrieve the receipt that they requested, or to at least discuss with the person who check the items out at the register what took place with respect to the items allegedly stolen. The State also failed to prove beyond a reasonable doubt that Lang did not honestly believe he had a valid claim to the property. All of the State's testimony or evidence was centered on the fact that he did not produce a receipt while in the vestibule of the WalMart store. A review of all the testimony received at trial indicates that he did have an honest, and reasonable, belief that he had a valid claim to the property. Although Lang was not required to prove his innocence, his and Hoon's testimony as to the events show they had an honest belief of a valid claim to the property. The State's witness testimony was that he did not produce a receipt. That is not sufficient as proof beyond a reasonable doubt that he did not have an honest belief of a valid claim to the property.
[¶23] Although Herman testified that she ran a UPC check on the Dyson vacuum, she did not have a document which showed that search was made. Additionally, she did not testify that she had run a UPC check on any of the other items in the cart. Without running a UPC check on those items the State cannot claim the items were stolen which in turn raises a reasonable doubt that the dollar amount of the items allegedly stolen is at the felony level rather than a misdemeanor.
[¶24] The State failed to prove beyond a reasonable doubt that Lang committed the act of Theft of Property and the verdict should be reversed.
|Respectfully submitted this 30th day of July, 2013.|
|Mark T. Blumer, ND Bar ID #: 04669|
|Attorney at Law|
|PO Box 7340|
|Fargo, ND 58106|
|Telephone: (701) 893-5529|
|Attorney for Defendant/Appellant|