In the Supreme Court of the State of North Dakota
|State of North Dakota||Supreme Court 20130209|
|Plaintiff and Appellee||District Court 47-2011-CR-243|
|Byron Clarence Ruddell|
|Defendant and Appellant|
Ruddell appeals the Judgment of Conviction
entered by the District Court in Stutsman County, Southeast Judicial District
on the 11th of June 2013.
|State's Attorney, Stutsman County|
|511 Second Ave SE, Suite 2|
|Jamestown, ND 58401|
|(701) 252-6688 ID # 04875|
|ffremgen e-serve 47sa|
|TABLE OF CONTENTS|
|TABLE OF AUTHORITIES||ii|
|ISSUE PRESENTED FOR REVIEW.||¶1|
|STATEMENT OF THE CASE||¶2|
|Nature of the case||¶2|
|Course of proceedings and disposition below.||¶4|
|Statement of facts||¶7|
|The evidence supporting the convictions is sufficient.||¶31|
|Standard of review for sufficiency of the evidence||¶32|
|TABLE OF AUTHORITIES|
|Koch v. Williams, 456 N.W.2d 299||¶38|
|State v. Hatlewick, 2005 ND 125, 700 N.W.2d 717||¶32|
|State v. Romero, 2013 ND 77, 830 N.W.2d 586||¶32|
|North Dakota Century Code § 14-07-05||¶¶3, 4|
|North Dakota Century Code § 14-09-22||¶4|
|North Dakota Rule of Appellate Procedure 35.1(a)(3)||¶40|
ISSUE PRESENTED FOR REVIEW
¶1 Whether there was sufficient evidence to support a finding of guilt.
¶2 STATEMENT OF THE CASE
NATURE OF THE CASE
¶3Mr. Ruddell was convicted of abandonment or nonsupport of child, NDCC § 14-07-05 and appeals the conviction.
COURSE OF PROCEEDINGS BELOW
¶4The Criminal Information had two counts: Count 1, abuse or neglect of child, NDCC § 14-09-22(1)(b), and Count 2, abandonment or nonsupport of child, NDCC § 14-07-05. The Defendant was tried by judge alone.
¶5 The trial court dismissed Count 1 after the close of the State's case in chief. Transcript of Bench Trial, [hereinafter T] at 45. The Defendant took the stand in is case in chief. T46.
¶6At the close of all the evidence, the trial court found (1) the Defendant, Byron Ruddell, is the parent of a minor child, (2) Ruddell has a duty of care and support for a child, and (3) Ruddell had willfully failed to furnish food, shelter, clothing, and medical attention. T61-62.
STATEMENT OF FACTS
¶7The Defendant had served a series of periods of incarcerations due to his criminal convictions for three counts of conspiracy and a count of theft. State's Exhibit 3; Doc ID#25; T22-23.
¶8On the 19th of May 2011, the Defendant's probation was revoked and he was sentenced to 120 days at the Stutsman County Correctional Center with work release. State's Exhibit 4 at 1; Doc ID#26. Ruddell took advantage of the work release while he was serving the 120 day period of incarceration at the Stutsman County Correctional Center (SCCC) by working at Barton's Bus in Jamestown. T6, line 10.
¶9While in the SCCC, Ruddell managed to obtain an apartment in Jamestown. T7, line 9. Ruddell was given early release from SCCC. T8. On the 11th of July 2013, Ruddell called his probation officer Tyler Falk, and let Falk know due to the new capacity for local and regional correctional centers to give good time early released, Ruddell had obtained early release from the 120 period of incarceration. T8, line 16; T12. Falk told Ruddell that Falk would check on Ruddell at Barton's Bus. T9, line 7. Probation Officer Falk reported that the call on the 11th of July 2011 was the last he heard from Ruddell. T10.
¶10On the 3rd of August 2013, the manager of Ruddell's apartment told Falk that Ruddell had never moved into the Jamestown apartment. T9, lines 16-21. On the 5th of August 2011, the manager for Ruddell's apartment called Falk and told Falk that Ruddell had called the apartment manager and told the manager Ruddell had moved to Bismarck because Ruddell had gotten a new job in Bismarck. T9, line 23 et seq.
¶11Probation Officer Falk tried to reach Ruddell on Ruddell's cell phone, but was unable to make any contact with Ruddell in the summer or fall of 2011. T10, lines 4-12.
¶12Ruddell was picked up in Bismarck on or about the 15th of October 2011. T12. Ruddell did not make bond on the Burleigh County arrest. T13, 53, line 6. Ruddell was held in pretrial detention in Burleigh for the fall of 2011. T13, 53, line 6. Falk testified that Ruddell was incarcerated for all but 3 and a half months of the one year date spread in the Stutsman County charge. T13, line 13.
¶13Mike Bolme, a narcotics investigator with the Bismarck Police Department, testified at Ruddell's Stutsman County bench trial on the abandonment and nonsupport charges. T14. Bolme explained that about the 15th of October 2011, he'd received intelligence that Ruddell was dealing methamphetamine in Bismarck and that Ruddell was going to be in a hotel room at the Bismarck Radisson. T15. Bolme later learned that the room was not in Ruddell's name but in the name of a person on probation named Scott Haugen. T16. Bolme went to the Radisson to do a probation search on Haugen's room. When Bolme arrived Ruddell was not in Haugen's hotel room. Ruddell was found later in Lucky's Bar, which is not on Radisson's premises. T16. When Ruddell was found, "he had three syringes, a marijuana pipe, and six small baggies, which each contained between a quarter gram to a third of a gram of methamphetamine." T16, line 20. Ruddell was charged with possession with intent to deliver methamphetamine, T16, and was convicted of the charge. T17.
¶14A copy of the Amended Information, 08-2011-CR-2303, in which Byron Ruddell was charged with AA felony possession with intent to deliver methamphetamine within 1,000 feet of a school on the 15th of October 2011 was received in evidence as State's Exhibit 1. T17; Doc ID#23. A copy of the Criminal Judgment in 08-2011-CR-2303 in which Ruddell was, on or about the 14th of September 2012, sentenced to a period of incarceration of 8 years on the possession with intent to deliver charge was received in evidence as State's Exhibit 2. T17; Doc ID#24; T24, line 4.
¶15Bolme testified that during the course of the Bismarck narcotics investigation he did not come into information that Ruddell was working in Bismarck. Bolme said he had heard Ruddell's claim he had worked in Bismarck only when Ruddell advanced it in court. T18, line 6.
¶16Michelynn Ruddell testified at the Stutsman County bench trial that she married Byron Ruddell on 31 July 2002 and that they are still married. T21 Michelynn testified they have two children together: A who is 11 and T who is 12. T21.
¶17Michelynn testified that at the time of the bench trial Byron was serving 8 years on the Burleigh County incident. T24, line 3.
¶18 Michelynn testified that several years earlier Byron had been convicted of some check writing situation involving Diedre Lange and Ratliff, that Byron went off to Texas, and ended up sentenced to 30 months for that. T22-23. Michelynn could not recall if Byron contacted the children during that period of incarceration. T23, line 12.
¶19Michelynn testified that in the summer of 2011, prior to heading for Bismarck, Byron had an apartment in Jamestown, T24, line 18, and a job at Barton's Bus in Jamestown. T25, line 20. Michelynn testified that Byron had the kids over to his Jamestown apartment. T25, line 10. However, she also testified that Byron never did give her any support. T25, line 22.
¶20Michelynn testified when Byron left for Bismarck, he didn't tell her and she could not say when his move occurred. T26. She said that type of movement without notice was a fairly regular occurrence and pattern with Byron. T26. Michelynn testified that once Byron moved to Bismarck about all she knew about where he lived was that it was in Bismarck. T28, line 9. Michelynn did not know where he was working. T28, line 6. There was no discussion about Byron moving back to Jamestown to help raise the kids. T28, line17. Michelynn testified that they'd talked about the car problems she was having and that Byron's response was that he was strapped. T28. She said she let him know she had the same problem he had but she also had 3 kids and he replied he "was trying". T29. Asked what if any support she saw from his "trying", she acknowledged: none. T29.
¶21Michelynn testified that the 11 year old child was having some behavior problems in school. T27. Asked whether Michelynn thought it would have helped to have Byron around, being a father figure, she said it would have been different. T27. She explained she could not be sure it would help because the child has no control over his behavior but that Byron is stricter and firmer than she is. T27. She acknowledge Byron's presence would have been a tool she would have liked to have had available to use with their son's behavior problems. T27-28.
¶22On cross examination, Michelynn recalled that during November 2011 Byron was not providing any support, is not involved in the children's medical or educational needs. T32. Michelynn pointed out that it would have been hard for Byron to do any of those things at that time because Byron was in the Burleigh County Jail. T32.
¶23On re-direct, Michelynn confirmed that Byron hadn't had any contact with the children from August to November 2011. T34. Michelynn clarified that any monetary support she'd gotten from Byron came only when his wages were garnished and that she hadn't seen any of that since A, the 11 year old, was an infant. T35, line 16. She answered affirmatively to the question, "so there hasn't been any financial support coming in for years." T35, line 23.
¶24Michelynn confirmed what she'd told Officer Gletne in a November 2011 interview, Byron does not provide any logistical support such as driving the kids to appointments or being involved in their activities. T36. She explained Byron doesn't have a license. T36. She said she could have used a hand taking care of the kids over the years, acknowledged it is not easy being a single parent, but humbly brushed it off saying "a lot of people do it." T36.
¶25Asked how she felt when Byron had been out of jail in Bismarck for a couple months and then arrested again, Michelynn said disappointed. T36. Finally, asked, and when some time goes by and he's sentenced again for a number of years, how do you feel? Michelynn replied, "Sad." T36.
¶26Officer John Gletne of the Jamestown Police Department testified that he interviewed Byron Ruddell and taped the conversation. T38-39. Gletne said Byron acknowledged he and Michelynn were married, perhaps in 2000, and never have gotten divorced. T39-40. Byron acknowledge he had a monthly support obligation for their children and told Gletne that it was about $400. T40. Byron told Gletne that he'd made some payments but had been incarcerated for some 40 months and was unable to make payments as a result. T40.
¶27Byron Ruddell took the stand and testified he has support obligations for 6 children. T47. Byron testified he ran into Terry Ratliff, trouble ensued, and Byron ended up with a 30 month sentence and a $20,000 restitution obligation. T48. Byron testified when he got out of prison and was in the Bismarck Transition Center, it was a surreal slap in the face because he was working and couldn't afford to live because he was paying the things that I needed to pay. T48.
¶28Byron acknowledged once back in jail in Stutsman County he got work release in the midst of the jail term. T49. Byron said he got an apartment. Byron said he was released from SCCC on July 11, 2011. T49. Byron testified he couldn't make his bills so he moved to Bismarck. T51. Byron did not testify about getting any work once he got to Bismarck. He testified he left Jamestown and was arrested in Bismarck on October 15, 2011 and incarcerated there continuously thereafter. T53, line 4.
¶29On cross examination, Ruddell claimed that it seemed no matter how hard he worked he couldn't earn enough to meet his child support obligations and ordinary living expenses. T54-56. When asked why he didn't stop working, come home, play "Mr. Mom" and thereby get rid of some of his child support obligation he responded, "Because it doesn't do any good for the kids. This is a front for the children and it did more harm than it did good." T56-57.
¶30Byron contradicted Michelynn's claim of no support saying that every time he's had a job there's been a garnishment. T58, line 22. Byron acknowledged at Barton Bus there was no garnishment and indicated he'd asked about it and was told by Dennis that Barton hadn't received any papers. T59.
The evidence supporting the convictions is sufficient.
¶32The standard of review for a defendant's challenge to the sufficiency of the evidence is the same in a bench trial and a jury trial. State v. Hatlewick, 2005 ND 125, ¶4, 700 N.W.2d 717, 719. The standard of review for sufficiency of the evidence claims follows.
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 [trier of fact] to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. 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. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses.... A [trier of fact] may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.
State v. Romero, 2013 ND 77, ¶24, 830 N.W.2d 586, 593.
¶33The trial court found that (1) the Defendant, Byron Ruddell, is the parent of a minor child, (2) he has a duty of care and support for the child, and (3) Ruddell had willfully failed to furnish food, shelter, clothing, and medical attention. T61-62. There is sufficient credible evidence supporting the findings.
¶34Michelynn said she and the Defendant are married and have two children together: A who was 11 and T who was 12. T21. Byron acknowledged he is still married to Michelynn, T39 and that he has a support obligation for six children including A and T. T40, 47, line 13.
¶35Byron left a full time job and an apartment in Jamestown in July of 2011. T9, 51-52. Ruddell felt he did not earn enough so he left the job in Jamestown for the hope of finding another job in Bismarck. T50-52. When he got to Bismarck, there is little indication he ever became employed. His wife never heard he'd gained employment. T28, line 6. Bismarck Police Department investigator Bolme never heard in the course of his drug investigation that Byron had gained employment and only heard Byron indicate he had when Byron made the claim once Byron was back in court. T18. Byron's probation officer, Tyler Falk, never heard Byron had gained employment. T10. Byron never testified he had obtained employment. He testified the place in Bismarck at which he'd hoped to find work "didn't have anything open at the time." T52, line9. Instead of work, Byron found methamphetamine, was arrested, put in pretrial detention, was convicted for the 15 October 2011 instance of possession with intent to deliver methamphetamine, and once again sentenced to a long term of incarceration.
¶36Byron had no contact with his children from some time in August 2011 through the time of his arrest, October 15, 2011. T34. Michelynn testified Byron had not paid any child support in years, T25, line 22; 35, line 16, or given any other sort of logistical support. T29, 36. Byron admitted he consciously chose the path of looking for earnings that wouldn't satisfy his obligations rather than rejoining his wife and children in Jamestown and fulfilling the parental role by staying at home while his wife earned. T56, line 19 et seq. Michelynn verified no support was coming in from Byron in November 2011 and that it would have been hard for him to generate any because he was incarcerated. T32.
¶37Michelynn Ruddell testified she could have used a hand and that had Byron been around to work with the 11 year old's behavior problems perhaps things would have been different. T27-28.
¶38The trial court, referring to Koch v. Williams as authority, found that the Defendant's own criminal act lead to his incarceration and that his resulting impecunious position was self induced and voluntary. T62; Koch v. Williams, 456 N.W.2d 299, 301.
¶39Adequate credible evidence before the court provided a basis for the finding that Byron had willfully failed to furnish food, shelter, clothing, and medical attention. This is a tragic case of a parent choosing methamphetamine over his children.
¶40Conclusion The State asks the Court to summarily affirm the judgment of conviction under North Dakota Rule of Appellate Procedure 35.1(a)(3).
|Dated 06 November 2013.|
|State's Attorney, Stutsman County|
|511 Second Ave SE, Suite 2|
|Jamestown, ND 58401|
|(701) 252-6688 (ID#04875)|
|ffremgen e-serve 47sa|