CHAPTER 12.1-01 Application — Purposes — Proof — Definitions

12.1-01-01. Title — Retroactivity — Application — Contempt power.

  1. Title 12.1 of the Century Code may be cited as the North Dakota Criminal Code.
  2. This title, except as provided in subsection 3, shall not apply to offenses committed prior to its effective date. Prosecutions for such offenses shall be governed by prior law, which is continued in effect for that purpose. For the purposes of this section, an offense was committed prior to the effective date of this title if any of the elements of the offense occurred prior thereto.
  3. In cases pending on or after the effective date of this title, and involving offenses committed prior thereto:
    1. The provisions of this title according a defense or mitigation shall apply, with the consent of the defendant.
    2. The court, with the consent of the defendant, may impose sentence under the provisions of this title which are applicable to the offense and the offender.
  4. This section does not affect the power of a court or legislative assembly to punish for contempt, or to employ any enforcement sanction authorized by law, nor does this section affect any power conferred by law upon military authority to impose punishment upon offenders.

Source: S.L. 1973, ch. 116, § 1.

Cross-References.

Discipline of national guard, see N.D.C.C. § 37-01-29.

Limitation of time for commencing prosecution for felony other than murder, see N.D.C.C. § 29-04-02.

Limitation of time for commencing prosecution for misdemeanor or infraction, see N.D.C.C. § 29-04-03.

Uniform Code of Military Justice as applicable in state, punishment for offenses, see N.D.C.C. § 37-01-03.

Notes to Decisions

Dangerous Special Offender Statute.

As the defendant’s prosecution came within the exception of subdivision (3)(b) and he had asked to be sentenced under the new criminal code, he had waived his argument that the dangerous special offender statute as applied to him operated as an unconstitutional ex post facto law. State v. Jensen, 429 N.W.2d 445, 1988 N.D. LEXIS 257 (N.D. 1988).

Former Penal Statutes.
—Consent to Code Defense and Mitigation Provisions.

The provisions of subsection 3 of this section giving a defendant in a case arising before, but tried after, the effective date of this title the election of proceeding under it with respect to defenses and circumstances in mitigation did not require the trial judge to notify defendant of his right to make the election, and in a case where defense counsel was clearly aware of, and willing to assert, this right, trial judge’s failure to formally advise defendant of its existence was not reversible error. State v. Jensen, 251 N.W.2d 182, 1977 N.D. LEXIS 233 (N.D. 1977).

Where, in trial after effective date of this title of case arising before that date, defense counsel objected to instruction on voluntary intoxication on the ground that it stated law no longer in effect after adoption of the new Criminal Code, defendant had made the election, or given the “consent” provided for in subsection 3, to rely on the provisions of the new Code as to defenses and circumstances in mitigation, and its provisions on those issues were controlling. State v. Jensen, 251 N.W.2d 182, 1977 N.D. LEXIS 233 (N.D. 1977).

—Crimes Charged.

As to crimes committed prior to July 1, 1975, the section under which accused is charged is not considered repealed and remains in full force and effect until all of the matter thereunder has been completed except that, with accused’s consent, Title 12.1 may be applied; legislature intended that persons who violated a penal law prior to effective date of Title 12.1 would be tried and sentenced under the law in effect at the time and that the law violated would not be considered repealed until legal process against the accused had been completed. Kittelson v. Havener, 239 N.W.2d 803, 1976 N.D. LEXIS 198 (N.D. 1976).

Possessing and Transporting Big Game.

Because the offense of illegally possessing and transporting big game is not within Title 12.1, and no level of culpability is specified, the offense is a strict liability offense; accordingly, the elements of the crime were complete when the defendants possessed and transported a dead deer without a proper tag, irrespective of their intentions. State v. Falconer, 426 N.W.2d 10, 1988 N.D. LEXIS 174 (N.D. 1988).

Collateral References.

Failure to rise in state courtroom as constituting criminal contempt, 38 A.L.R.4th 563.

Law Reviews.

A Prosecutor Looks at the New Code, 50 N.D. L. Rev. 631 (1974).

A Hornbook to the North Dakota Criminal Code, 50 N.D. L. Rev. 639 (1974).

Summary of significant decisions rendered by North Dakota Supreme Court in 1988 relating to criminal law and criminal procedure, 64 N.D. L. Rev. 173 (1988).

12.1-01-02. General purposes.

The general purposes of this title are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which governmental protection is appropriate. To this end, the provisions of this title are intended, and shall be construed, to achieve the following objectives:

  1. To ensure the public safety through: a. vindication of public norms by the imposition of merited punishment; b. the deterrent influence of the penalties hereinafter provided; c. the rehabilitation of those convicted of violations of this title; and d. such confinement as may be necessary to prevent likely recurrence of serious criminal behavior.
  2. By definition and grading of offenses, to define the limits and systematize the exercise of discretion in punishment and to give fair warning of what is prohibited and of the consequences of violation.
  3. To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.
  4. To safeguard conduct that is without guilt from condemnation as criminal and to condemn conduct that is with guilt as criminal.
  5. To prevent arbitrary or oppressive treatment of persons accused or convicted of offenses.
  6. To define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.

Source: S.L. 1973, ch. 116, § 1.

DECISIONS UNDER PRIOR LAW

Analysis

Common Meaning.

In construing statutes the language used was never to be lost sight of and the presumption was that the language was used in no extraordinary sense, but in its common, everyday meaning. Territory v. Stone, 4 N.W. 697, 2 Dakota 155, 1879 Dakota LEXIS 4 (Dakota 1879).

Extension of Terms.

The terms of a statute could not be extended unreasonably even under a liberal construction. City of Mayville v. Rosing, 19 N.D. 98, 123 N.W. 393, 1909 N.D. LEXIS 91 (N.D. 1909).

Penal Statutes.

Penal statutes were to be fairly construed according to the legislative intent as expressed in the enactment, the court refusing on the one hand to extend the punishment to cases which were not clearly embraced in them, and on the other equally refusing by any mere verbal nicety, or forced consideration or equitable interpretation, to exonerate parties plainly within their scope. State v. Fargo Bottling Works Co., 19 N.D. 396, 124 N.W. 387, 1910 N.D. LEXIS 2 (N.D. 1910); State v. Malusky, 59 N.D. 501, 230 N.W. 735, 1930 N.D. LEXIS 169 (N.D. 1930).

12.1-01-03. Proof and presumptions.

  1. No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. An accused is presumed innocent until proven guilty. The fact that the accused has been arrested, confined, or charged with the offense gives rise to no inference of guilt at the accused’s trial. “Element of an offense” means:
    1. The forbidden conduct;
    2. The attendant circumstances specified in the definition and grading of the offense;
    3. The required culpability;
    4. Any required result; and
    5. The nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.
  2. Subsection 1 does not require negating a defense:
    1. By allegation in the charging document; or
    2. By proof, unless the issue is in the case as a result of evidence sufficient to raise a reasonable doubt on the issue.
  3. Subsection 1 does not apply to any defense which is explicitly designated an “affirmative defense”. An affirmative defense must be proved by the defendant by a preponderance of evidence.
  4. When a statute establishes a presumption, it has the following consequences:
    1. If there is sufficient evidence of the facts which gave rise to the presumption, the presumed fact is deemed sufficiently proved to warrant submission of the issue to a jury unless the court is satisfied that the evidence as a whole clearly negates the presumed fact.
    2. In submitting the issue of the existence of the presumed fact to a jury, the court shall charge that, although the evidence as a whole must establish the presumed fact beyond a reasonable doubt, the jury may arrive at that judgment on the basis of the presumption alone, since the law regards the facts giving rise to the presumption as strong evidence of the fact presumed.
  5. When a statute declares that given facts constitute a prima facie case, proof of such facts warrants submission of a case to the jury with the usual instructions on burden of proof and without additional instructions attributing any special probative force to the facts proved.

Unless it is otherwise provided or the context plainly requires otherwise, if a statute outside this title defining an offense, or a related statute, or a rule or regulation thereunder, contains a provision constituting an exception from criminal liability for conduct which would otherwise be included within the prohibition of the offense, that the defendant came within such exception is a defense.

Source: S.L. 1973, ch. 116, § 1.

Notes to Decisions

Affirmative Defenses.

Because mistake of law is an affirmative defense, the state had no burden to “negate” the defense beyond a reasonable doubt; rather, defendants had the burden of proving the affirmative defense by a preponderance of the evidence. State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Entrapment is an affirmative defense under N.D.C.C. § 12.1-05-11(1) and must be proven by the defendant by a preponderance of the evidence. State v. Tester, 1999 ND 60, 592 N.W.2d 515, 1999 N.D. LEXIS 63 (N.D. 1999).

Where defendant’s offer of proof failed to support his claimed affirmative defense of innocent mistake of facts, the trial court did not err in denying his motion in limine requesting an affirmative defense jury instruction. State v. Schmidt, 2002 ND 43, 640 N.W.2d 702, 2002 N.D. LEXIS 42 (N.D. 2002).

Allegations in Criminal Complaint.

It is unnecessary for the state to prove each and every allegation set forth in the criminal complaint; state is only required to prove the elements of the offense charged. State v. Bohl, 317 N.W.2d 790, 1982 N.D. LEXIS 264 (N.D. 1982).

Burden of Proof.

A definition of a crime that does not shift the burden of proof to the accused is constitutional. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

The legislature has defined one variation of the crime of actual physical control while under the influence of intoxicating liquor as the accused having a “alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test.” Nothing in that definition shifts the burden of proof to the accused. The prosecution must prove each element beyond a reasonable doubt. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

In a trial under N.D.C.C. § 39-08-01, the language of N.D.C.C. § 39-20-07(5) was improperly included in instructions to the jury because it has only to do with the judge’s preliminary function of admitting evidence; it has nothing to do with the jury’s function of weighing the evidence. By telling the jury that the test results were received in evidence when the test was fairly administered, this instruction shifted the burden of disputing the test results to the defendant and violated his right to due process. State v. Vogel, 467 N.W.2d 86, 1991 N.D. LEXIS 40 (N.D. 1991).

Improper jury instruction on the defense of lack of criminal responsibility, erroneously placed the burden of proof for an element of the crime upon defendant, rather than upon State, and constituted obvious error warranting a new trial. State v. Johnson, 2001 ND 184, 636 N.W.2d 391, 2001 N.D. LEXIS 224 (N.D. 2001).

Despite testimony that defendant was profoundly psychotic and suffering from delirium tremens at the time of the murder, the jury could have chosen not to believe the testimony, and the state’s evidence that the defendant changed clothes and washed off the victim’s blood supported the finding of guilt beyond a reasonable doubt. State v. Klose, 2003 ND 39, 657 N.W.2d 276, 2003 N.D. LEXIS 31 (N.D. 2003).

Evidence that defendant presented was not sufficient to establish N.D.C.C. § 12.1-05-11 entrapment as an affirmative defense to the charge against defendant of criminal attempt to possess methamphetamine, and, thus, that conviction had to stand. Defendant had the burden of proof of establishing that defense, by a preponderance of the evidence as required by N.D.C.C. § 12.1-01-03, and did not do so because the evidence that police offered defendant a good price in order to induce defendant to buy the methamphetamine and arranged for defendant to purchase methamphetamine despite knowing that defendant was a drug addict was not enough to show that police engaged in the necessary “outrageous conduct” that would cause a person who was not ready to commit the crime to commit it. State v. Schmidt, 2011 ND 238, 807 N.W.2d 593, 2011 N.D. LEXIS 233 (N.D. 2011).

District court erred by taking judicial notice of defendant's prior offenses because the court's ability to do so was limited to matters of pleading, defendant's prior convictions constituted an essential element of her charge that the State still had to prove, the court was required to explain the legal effect of its judicial notice to the jury and clarify that satisfaction of the State burden of persuasion remained solely with the jury. State v. Mann, 2016 ND 53, 876 N.W.2d 710, 2016 N.D. LEXIS 53 (N.D.), vacated, — U.S. —, 137 S. Ct. 114, 196 L. Ed. 2d 5, 2016 U.S. LEXIS 5206 (U.S. 2016).

Element of Offense.

“Grading” spoken of in subdivision (1)(b) refers to relative levels of same offense and does not make attendant circumstances specified in definition and grading of one offense an element of another offense. State v. Dilger, 338 N.W.2d 87, 1983 N.D. LEXIS 373 (N.D. 1983).

Compliance with a statute of limitation is not an element of an offense, but rather a jurisdictional fact. The state must prove compliance with a statute of limitation by a preponderance of the evidence, and must also bear the same burden to prove the existence of any exceptions to a statute of limitation which excuse its application. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985).

In a prosecution for gross sexual imposition, defendant’s knowledge of the victim’s unawareness was an essential element of the offense charged and could not be inferred; because it was missing from the information, the criminal information was defective and the charge was properly dismissed. State v. Frankfurth, 2005 ND 167, 704 N.W.2d 564, 2005 N.D. LEXIS 200 (N.D. 2005), limited, State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Intent Instructions.

The presumption contained in North Dakota Pattern Jury Instruction 1313, which states that “It is presumed, however, that an unlawful act is done with an unlawful intent”, is an unconstitutional violation of the due process requirement that the state prove every element of the offense beyond a reasonable doubt. State v. Sheldon, 301 N.W.2d 604, 1980 N.D. LEXIS 342 (N.D. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204, 1981 U.S. LEXIS 1398 (U.S. 1981).

Jury Instructions.

This section does not require trial court to instruct jury that the presumed fact of innocence is strong evidence of the fact presumed; trial court did not err in failing to give such an instruction where defendant did not request it. State v. Skjonsby, 319 N.W.2d 764, 1982 N.D. LEXIS 265 (N.D. 1982).

In a prosecution for violation of a city shoplifting ordinance, the jury instructions, taken as a whole, could not have been understood by reasonable jurors to require them to conclude from the presumed fact, irrespective of other facts causing them to have a reasonable doubt, that the requisite intention of permanently depriving another of the merchandise was present. The qualifying instruction on presumption made it clear to the jury that the presumption was permissive only and that they were allowed to find the element of intent only if the city provided the predicate facts beyond a reasonable doubt. City of Dickinson v. Gresz, 450 N.W.2d 216, 1989 N.D. LEXIS 252 (N.D. 1989).

Threshold evidentiary standard for a requested instruction in a jury case differs from standard for reviewing evidence after a conviction. State v. Fasching, 461 N.W.2d 102, 1990 N.D. LEXIS 197 (N.D. 1990).

The trial court’s failure to instruct the jury that the State had the burden of proving beyond a reasonable doubt that the defendant did not act in self defense was obvious error. State v. Olander, 1998 ND 50, 575 N.W.2d 658, 1998 N.D. LEXIS 51 (N.D. 1998).

Court’s instruction on defendant’s violation of a disorderly conduct restraining order was not erroneous where it instructed the jury on the essential elements of the offense in language tracking N.D.C.C. § 12.1-31.2-01(8), which required the State to prove beyond a reasonable doubt that defendant had knowledge of the order and that he violated one or more provisions of the order, specifically that he entered the victim’s home and spoke with her. State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Proof Under City Ordinance.

City shoplifting ordinance, which established a prima facie presumption regarding the concealment of merchandise, was authorized under section 40-05-01, did not attempt to supersede state law, and was not constitutionally repugnant; it did not define an offense differently from that in the state statute and merely provided a non-mandatory presumption as an evidentiary device for proving the element of intent. City of Dickinson v. Gresz, 450 N.W.2d 216, 1989 N.D. LEXIS 252 (N.D. 1989).

Raising a Defense.

A defendant is entitled to a jury instruction on a legal defense if there is evidence to support it. A defense is raised when there is evidence in the case “sufficient to raise a reasonable doubt on the issue,” and it is error if the trial court refuses to instruct on an issue that has been adequately raised. State v. McIntyre, 488 N.W.2d 612, 1992 N.D. LEXIS 155 (N.D. 1992).

It was not an abuse of discretion to deny defendant’s request for an alibi instruction because, even though the State presented defendant’s assertions that defendant was elsewhere at the time of the crime, defendant did not adequately present such a defense pursuant to N.D.R.Crim.P. 12.1. State v. Kalmio, 2014 ND 101, 846 N.W.2d 752, 2014 N.D. LEXIS 103 (N.D. 2014).

Raising An Issue.

The court, not the jury, has the responsibility to initially determine whether an issue has been adequately raised. State v. McIntyre, 488 N.W.2d 612, 1992 N.D. LEXIS 155 (N.D. 1992).

Review of Evidence on Appeal.

To successfully challenge the sufficiency of evidence on appeal, defendant must show that the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. State v. Fasching, 461 N.W.2d 102, 1990 N.D. LEXIS 197 (N.D. 1990).

Sanity.

Introduction of state’s exhibit containing psychiatrist’s diagnosis that defendant was presently suffering from depressive neurosis was insufficient to raise a reasonable doubt on issue of defendant’s sanity, and therefore state was not required in its case in chief to prove beyond a reasonable doubt that defendant was sane at time of her alleged criminal conduct. State v. Leidholm, 334 N.W.2d 811, 1983 N.D. LEXIS 296 (N.D. 1983).

Self Defense.

By instructing the jury that it had a responsibility to determine if the defendant had presented sufficient evidence to give rise to a reasonable doubt, the court may have confused and misled the jury into believing that defendant carried the burden of proving self defense and excuse by proof beyond a reasonable doubt. The instructions should have merely stated that there was evidence of self defense and excuse and that the state had a duty to negate those defenses by proof beyond a reasonable doubt. State v. McIntyre, 488 N.W.2d 612, 1992 N.D. LEXIS 155 (N.D. 1992).

Self defense is a “defense” and not an “affirmative defense.” State v. Olander, 1998 ND 50, 575 N.W.2d 658, 1998 N.D. LEXIS 51 (N.D. 1998).

Jury reasonably found defendant had not acted in self defense under evidence presented at trial. State v. Greybull, 1998 ND 102, 579 N.W.2d 161, 1998 N.D. LEXIS 109 (N.D. 1998).

State’s Negation of Defense.

State met its burden of negating defense based on section 6-08-16 by showing that payee of check testified that check was not knowingly received as postdated and check was properly dated in usual place. No evidence explained, cryptic notation, “10-20-89,” in different ink on memo line of check. State v. Fasching, 461 N.W.2d 102, 1990 N.D. LEXIS 197 (N.D. 1990).

Trial court’s defense of property instruction was not reversible error because (1) the instruction including language from the defense of property statute did not tell a jury to presume victims reasonably defended their property, (2) defendant’s self-defense claim was fairly presented, and (3) the instruction did not shift the State’s burden to disprove defendant’s self-defense claim or negate a self-defense instruction. State v. Landrus, 2019 ND 162, 930 N.W.2d 176, 2019 N.D. LEXIS 168 (N.D. 2019).

Law Reviews.

Criminal Law — Presumptions and Burden of Proof — Permissive Presumption of Possession Meeting Subjective More-Likely-Than-Not Standard Deemed Constitutional, 56 N.D. L. Rev. 421 (1980).

12.1-01-03.1. Presumption of age.

  1. In determining an individual’s age for purposes of this title, the individual’s date of birth as provided by any of the following is presumed to be the individual’s legal date of birth:
    1. A state government in the form of a birth certificate, other state-issued identification, or a certified copy of a birth certificate that includes the individual’s date of birth;
    2. The United States government in the form of a tribal identification document, military identification, passport, passport card, permanent resident card, certificate of United States citizenship, certificate of naturalization, border crossing card, visa, or other entry document that includes the individual’s date of birth; or
    3. A foreign government in the form of a passport, driver’s license, or other foreign government-issued identity document that includes the individual’s date of birth. If there is a conflict between government issued forms, a government issued birth certificate or a certified copy of a birth certificate takes precedence.
  2. The presumption in subsection 1 may be rebutted by clear and convincing evidence to the contrary.

History. S.L. 2015, ch. 101, § 1, effective August 1, 2015.

12.1-01-04. General definitions. [Effective through August 31, 2022]

As used in this title, unless a different meaning plainly is required:

  1. “Act” or “action” means a bodily movement, whether voluntary or involuntary.
  2. “Acted”, “acts”, and “actions” include, where relevant, “omitted to act” and “omissions to act”.
  3. “Actor” includes, where relevant, a person guilty of an omission.
  4. “Bodily injury” means any impairment of physical condition, including physical pain.
  5. “Court” means any of the following courts: the supreme court, a district court, and where relevant, a municipal court.
  6. “Dangerous weapon” includes any switchblade or gravity knife, machete, scimitar, stiletto, sword, or dagger; any billy, blackjack, sap, bludgeon, cudgel, metal knuckles, or sand club; any slingshot; any bow and arrow, crossbow, or spear; any weapon that will expel, or is readily capable of expelling, a projectile by the action of a spring, compressed air, or compressed gas including any such weapon, loaded or unloaded, commonly referred to as a BB gun, air rifle, or CO2 gun; and any projector of a bomb or any object containing or capable of producing and emitting any noxious liquid, gas, or substance.
  7. “Destructive device” means any explosive, incendiary or poison gas bomb, grenade, mine, rocket, missile, or similar device.
  8. “Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electric circuit breakers), detonators and other detonating agents, smokeless powders, and any chemical compounds, mechanical mixture, or other ingredients in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, or material, or any part thereof may cause an explosion.
  9. “Firearm” means any weapon that will expel, or is readily capable of expelling, a projectile by the action of an explosive and includes any such weapon, loaded or unloaded, commonly referred to as a pistol, revolver, rifle, gun, machine gun, shotgun, bazooka, or cannon.
  10. “Force” means physical action.
  11. “Government” means:
    1. The government of this state or any political subdivision of this state;
    2. Any agency, subdivision, or department of the state or any political subdivision of the state, including the executive, legislative, and judicial branches;
    3. Any corporation or other entity established by law to carry on any governmental function; and
    4. Any commission, corporation, or agency established by statute, compact, or contract between or among governments for the execution of intergovernmental programs.
  12. “Governmental function” includes any activity that one or more public servants are legally authorized to undertake on behalf of government.
  13. “Harm” means loss, disadvantage, or injury to the person affected, and includes loss, disadvantage, or injury to any other person in whose welfare the person affected is interested.
  14. “Included offense” means an offense:
    1. That is established by proof of the same or less than all the facts required to establish commission of the offense charged;
    2. That consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or
    3. That differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission.
  15. “Includes” should be read as if the phrase “but is not limited to” were also set forth.
  16. “Law enforcement officer” or “peace officer” means a public servant authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of law.
  17. “Local” means of or pertaining to any political subdivision of the state.
  18. “Manifest injustice” means a specific finding by the court that the imposition of sentence is unreasonably harsh or shocking to the conscience of a reasonable individual, with due consideration of the totality of circumstances.
  19. “Offense” means conduct for which a term of imprisonment or a fine is authorized by statute after conviction.
  20. “Official action” includes a decision, opinion, recommendation, vote, or other exercise of discretion by any government agency.
  21. “Official proceeding” means a proceeding heard or which may be heard before any government agency or branch or public servant authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with any such proceeding.
  22. “Omission” means a failure to act.
  23. As used in this title and in sections outside this title which define offenses, “person” includes, where relevant, a corporation, limited liability company, partnership, unincorporated association, or other legal entity. When used to designate a party whose property may be the subject of action constituting an offense, the word “person” includes a government that may lawfully own property in this state.
  24. “Political subdivision” as used in this title and in any statute outside this title which defines an offense means a county, city, school district, township, and any other local governmental entity created by law.
  25. “Public servant” as used in this title and in any statute outside this title which defines an offense means any officer or employee of government, including law enforcement officers, whether elected or appointed, and any person participating in the performance of a governmental function. The term does not include witnesses.
  26. “Risk assessment” means an initial phase with a secondary process approved by the department of human services for the evaluation of the likelihood a person that committed an offense will commit another similar offense. The initial phase is an assessment tool that is administered by a trained probation and parole officer. A predetermined score on the initial phase initiates the secondary process that includes a clinical interview, psychological testing, and verification through collateral information or psychophysiological testing, or both. The department of human services shall perform the secondary process of the risk assessment.
  27. “Serious bodily injury” means bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ, a bone fracture, or impediment of air flow or blood flow to the brain or lungs.
  28. “Signature” includes any name, mark, or sign written or affixed with intent to authenticate any instrument or writing.
  29. “Substantial bodily injury” means a substantial temporary disfigurement, loss, or impairment of the function of any bodily member or organ.
  30. “Thing of value” or “thing of pecuniary value” means a thing of value in the form of money, tangible or intangible property, commercial interests, or anything else the primary significance of which is economic gain to the recipient.
  31. “Tier 1 mental health professional” has the same meaning as provided under section 25-01-01.

Source: S.L. 1973, ch. 116, § 1; 1975, ch. 116, §§ 1, 2; 1981, ch. 320, § 31; 1985, ch. 175, § 1; 1987, ch. 374, § 10; 1991, ch. 326, § 41; 1993, ch. 54, § 106; 1997, ch. 118, § 1; 1999, ch. 120, § 1; 1999, ch. 277, § 1; 2007, ch. 118, § 1; 2015, ch. 116, § 1, effective August 1, 2015; 2017, ch. 97, § 2, effective August 1, 2017.

Notes to Decisions

Bodily Injury.

Evidence was sufficient to convict defendant of simple assault-domestic violence because he caused bodily injury to a victim; although the victim testified that she did not feel any pain, it was a matter of common experience and understanding that was left to the jury. A reporting witness testified to seeing defendant strike the alleged victim repeatedly in the upper body, and defendant had a fresh laceration on his arm after the alleged assault; moreover, officers testified that it was not uncommon to investigate assaults where there was no indication of physical injury. State v. Hannah, 2016 ND 11, 873 N.W.2d 668, 2016 N.D. LEXIS 7 (N.D. 2016).

Child abuse statute was not unconstitutionally vague because the statute’s reference to bodily injury as defined in another statute gave sufficient notice to those charged with enforcing the law and put a reasonable person on adequate notice as to what conduct was proscribed as constituting child abuse. State v. Vetter, 2019 ND 262, 934 N.W.2d 543, 2019 N.D. LEXIS 257 (N.D. 2019).

Defendant’s acquittal of aggravated assault did not bar restitution because (1) defendant was only acquitted of causing a victim’s unconsciousness, and (2) defendant assault conviction was sufficient to support a restitution award. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

Dangerous Weapon.

Defendant was properly found guilty of aggravated assault with a dangerous weapon because a rational fact finder could conclude beyond a reasonable doubt the flashlight used by defendant constituted a dangerous weapon as the victim testified that defendant struck him with a long cylinder black object that was very similar to a Maglite, that he saw defendant swing a cylinder object, and that defendant used a powerful overhand blow to strike the victim in the head. State v. McCreary, 2021 ND 212, 967 N.W.2d 447, 2021 N.D. LEXIS 214 (N.D. 2021).

Criminal Facilitation.

Criminal facilitation is a lesser included offense to accomplice liability. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Dangerous Weapon.
—Question of Fact.

Whether the defendant was in possession of a dangerous weapon while committing the offense charged is a question for the trier of fact. State v. Schweitzer, 510 N.W.2d 612, 1994 N.D. LEXIS 17 (N.D. 1994).

Whether or not an unloaded BB gun was a dangerous weapon was a question of fact for the jury’s determination; once the jury made that factual finding, and the others required to reach a verdict, the question of sentencing, a legal question, was for the court to decide. State v. Clinkscales, 536 N.W.2d 661, 1995 N.D. LEXIS 152 (N.D. 1995).

—Tear Gas Gun.

There was substantial evidence to support the trial court’s findings that a tear gas gun was a dangerous weapon. State v. Schweitzer, 510 N.W.2d 612, 1994 N.D. LEXIS 17 (N.D. 1994).

—Vehicle.

Defendant’s conviction for aggravated assault with a dangerous weapon was proper because the jury could have reasonably found that defendant used a vehicle as a dangerous weapon under N.D.C.C. § 12.1-01-04(6); defendant intentionally drove a vehicle forward while the victim backpedaled. Defendant continued forward after the victim fell and both the front and rear tire of defendant’s vehicle went over the victim. State v. Vetter, 2013 ND 4, 826 N.W.2d 334, 2013 N.D. LEXIS 2 (N.D. 2013).

Vehicle may be considered a dangerous weapon under N.D.C.C. § 12.1-01-04(6). State v. Vetter, 2013 ND 4, 826 N.W.2d 334, 2013 N.D. LEXIS 2 (N.D. 2013).

In a case in which defendant pled guilty to leaving the scene of an accident involving injury and aggravated reckless driving, defendant’s sentence was vacated and the case was remanded for resentencing as the district court substantially relied upon an impermissible factor in sentencing defendant to jail because the case did not implicate an offense involving domestic violence, sexual offender registration, or mandatory terms of incarceration; defendant was not charged with, nor did he plead guilty to, any offense involving a dangerous weapon; and the dangerous weapon exception to the presumptive probation statute did not apply in defendant’s case. State v. Christensen, 2019 ND 11, 921 N.W.2d 436, 2019 N.D. LEXIS 18 (N.D. 2019).

Explosives.

The general definition of the term “explosives” as contained in subsection (8) should be applied to ascertain the meaning of the term “explosives” in section 62.1-02-11, since there is no definition provided in Title 62.1. State v. Johnson, 417 N.W.2d 365, 1987 N.D. LEXIS 448 (N.D. 1987).

Force.

Where, in a prosecution for gross sexual imposition, the court refused a jury request for a definition of the term “force” which is defined by subsection 11, error was committed, but the error was harmless where counsel did not bring the definition to the court’s attention nor object to the answer which was given, and there was substantial evidence to support the conviction. State v. Smuda, 419 N.W.2d 166, 1988 N.D. LEXIS 33 (N.D. 1988).

Trial court did not commit obvious error by not including a jury instruction on self-defense during defendant’s trial for disorderly conduct because without a showing of physical action upon another person, as defined in N.D.C.C. § 12.1-01-04(11), the failure to instruct the jury on self-defense was not error, let alone obvious error. State v. Gresz, 2006 ND 135, 717 N.W.2d 583, 2006 N.D. LEXIS 138 (N.D. 2006).

The serious nature of sexual assault is underscored by the North Dakota legislature classifying them as class AA felonies, carrying a potential sentence of life imprisonment without parole under N.D.C.C. §§ 12.1-20-03(3)(a) and 12.1-32-01(1). The North Dakota legislature has defined force to mean physical action in N.D.C.C. § 12.1-01-04(11), and it is the force or physical action by defendant which must compel the victim to submit to a sex act for a crime to be committed under N.D.C.C. § 12.1-20-03(1)(a); in the absence of force or threats of death or serious bodily injury, there is no crime under § 12.1-20-03(1)(a). State v. Vantreece, 2007 ND 126, 736 N.W.2d 428, 2007 N.D. LEXIS 127 (N.D. 2007).

Included Offense.

Where the same evidence from which a juror could infer that the defendant aided another with intent that the other commit an offense (accomplice liability) could also allow a juror to infer that she only aided another with knowledge that the other intended to commit an offense (facilitation), there was evidence which could create a reasonable doubt as to accomplice liability and support a conviction of criminal facilitation, and the trial court’s refusal to give a lesser included offense instruction constituted prejudicial error. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

A defendant seeking a lesser included offense instruction must show (1) that the offense is a lesser included offense of the crime charged; and (2) that there is evidence which creates a reasonable doubt as to the greater offense, but supports a conviction of the lesser offense beyond a reasonable doubt. State v. McKing, 1999 ND 81, 593 N.W.2d 342, 1999 N.D. LEXIS 72 (N.D. 1999).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court properly denied his requested instruction on reckless endangerment as an included offense. A person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was a substantial risk of serious bodily injury or death to another as required for reckless endangerment; in this case, defendant was properly convicted of both offenses for firing shots at police officers. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

“Included offense” as used in N.D.C.C. § 12.1-01-04(15) and “lesser included offense” are not equivalent terms. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Offense.

Delivery of a controlled substance constitutes an “offense” as defined in subsection 20. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

Definition of “offense” in N.D.C.C. § 12.1-01-04(20) applies to N.D.C.C. §§ 39-08-01 and 39-06-42. Title 39 does not provide its own definition of “offense” and there is no expressed intent to use a different definition for N.D.C.C. §§ 39-08-01 or 39-06-42. State v. Skarsgard, 2007 ND 159, 740 N.W.2d 64, 2007 N.D. LEXIS 167 (N.D. 2007).

N.D.C.C. § 12.1-01-05 precluded the City of Fargo, North Dakota, a home rule city, from imposing fees for noncriminal traffic offenses that exceeded the limits set forth for equivalent violations in N.D.C.C. § 39-06.1-06, because N.D.C.C. § 12.1-01-05 clearly and unambiguously precludes a home rule city from superseding criminal or noncriminal offenses defined by State law, when a penalty that exceeds the limits delineated by equivalent State law supersedes State law; the word “offense” rather than the word “crimes” is used in the text of N.D.C.C. § 12.1-01-05, and an “offense” under N.D.C.C. § 12.1-01-05 includes noncriminal, as well as criminal offenses. Sauby v. City of Fargo, 2008 ND 60, 747 N.W.2d 65, 2008 N.D. LEXIS 60 (N.D. 2008).

District court abused its discretion by misapplying or misinterpreting the law when it sentenced defendant for conspiracy to commit kidnapping as a dangerous special offender because his previous child abuse offense was not a similar offense in terms of its elements or its underlying conduct; in the child abuse offense, defendant injured his infant son, but his conduct in the conspiracy to commit kidnapping offense did not cause physical injury to the victim’s baby. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

Peace Officer.

The meaning of “peace officer,” as explained in subdivision 17 of this section, applied to former N.D.C.C. ch. 12-62. Under former N.D.C.C. § 12-62-08 (see now N.D.C.C. ch. 12-63) training was mandatory for any “public servant authorized…to enforce the law and to conduct or engage in investigations or prosecutions for violations of law.” This definition certainly included law enforcement officers, other than detectives, without excluding those engaged in jail or detention work. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

Presentence Investigation.

Defendant’s right to counsel was satisfied when defense counsel was given notice and an opportunity to consult with the defendant prior to the state-sponsored psychiatric examination; the court was not required to order the Department of Corrections to allow defense counsel to be present during the psycho-sexual evaluation. State v. Schmidt, 2021 ND 137, 962 N.W.2d 612, 2021 N.D. LEXIS 130 (N.D. 2021).

Serious Bodily Injury.

Permanent reduction in the vision on one eye, with a resulting need to wear corrective lenses, is a “serious bodily injury” under this section which supports conviction of aggravated assault under N.D.C.C. § 12.1-17-02. Dellwo v. R.D.B. (In the Interest of R.D.B.), 1998 ND 15, 575 N.W.2d 420, 1998 N.D. LEXIS 4 (N.D. 1998).

During a traffic stop, a police officer made a passenger stand outside after midnight in freezing cold weather and refused to allow him to sit in the officer’s car; the passenger was later treated for frostbite. The evidence was sufficient to support the police officer’s conviction for reckless endangerment in violation of N.D.C.C. § 12.1-17-03; by refusing to allow the passenger to sit in his squad car, he created a substantial risk of bodily injury under N.D.C.C. § 12.1-01-04(29). State v. O'Toole, 2009 ND 174, 773 N.W.2d 201, 2009 N.D. LEXIS 184 (N.D. 2009).

Reasoning mind reasonably could determine the Department of Human Services finding that the father willfully inflicted an impairment of physical condition, including physical pain, upon the child was proven by the weight of the evidence from the entire record as there was evidence that the father struck the child approximately 24 times over a two-hour period with a wooden backscratcher, and although administered through a pair of pants and a diaper, the force of the spankings caused two large purple bruises the size of fifty-cent pieces on the child’s buttocks; there was evidence, including admissions from the father, that the child cried each time he was spanked and that the spankings were causing pain to the child. Simons v. State, 2011 ND 190, 803 N.W.2d 587, 2011 N.D. LEXIS 186 (N.D. 2011).

Father failed to clearly demonstrate that the child abuse statutes were unconstitutionally vague and contravened the federal or state constitution; the statute need not set out in explicit detail all possible factual scenarios that would fall within its reach; it need only give adequate and fair warning, when measured by the common understanding and practice of a “reasonable person,” of the proscribed conduct. Simons v. State, 2011 ND 190, 803 N.W.2d 587, 2011 N.D. LEXIS 186 (N.D. 2011).

Defendant’s conviction for menacing was supported by the evidence because the record revealed that during an encounter with police officers, defendant threatened to “kick their ass” and “put them in the hospital,” and he took at least one step toward the officers before one officer subdued him; defendant’s statements to the officers denoted sufficient imminency of serious bodily injury under N.D.C.C. § 12.1-01-04(29). State v. Bruce, 2012 ND 140, 818 N.W.2d 747, 2012 N.D. LEXIS 134 (N.D. 2012).

Although the N.D.C.C. § 12.1-01-04 definition of “serious bodily injury” was removed from N.D.C.C. § 39-08-01.2(2), the legislative history does not plainly indicate the intent was to prohibit the use of that definition; removing the § 12.1-01-04 definition of “serious bodily injury” from § 39-08-01.2(2) allows a court or jury to look to other accepted definitions of “serious bodily injury” in addition to the § 12.1-01-04 definition. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Legislative history's silence on the removal of the N.D.C.C. § 12.1-01-04 definition of “serious bodily injury” from N.D.C.C. § 39-08-01.2(2) is indicative of an intent that the criminal vehicular statute not be exclusively limited to the definition of “serious bodily injury” under § 12.1-01-04; in other words, the modification broadened what the district court could consider in defining the phrase, rather than prohibit the use of the statutory definition under § 12.1-01-04. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

District court did not err in using the definitions of “serious bodily injury” and “substantial bodily injury” from N.D.C.C. § 12.1-01-04 in addressing defendant's constitutional arguments in his motions to dismiss; given the established definitions of “serious bodily injury” and “substantial bodily injury,” along with other courts' holdings regarding the phrases, § 39-08-01.2(2) is not unconstitutionally vague. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

It was reasonable for the jury to find defendant guilty of aggravated assault because the testimony that his wife felt as though she was going to pass out, along with a doctor’s testimony that her injuries were consistent with strangulation, constituted “serious bodily injury”; the testimony stating defendant intentionally put his wife in a choke hold satisfied the requirement that the conduct be “willful.” State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

Defendant’s motion for a judgment of acquittal was properly denied because the evidence was sufficient to sustain defendant’s conviction for aggravated assault as he willfully caused serious bodily injury to the victim because the victim testified that defendant strangled her; her testimony alone was sufficient to sustain defendant’s conviction; and the State introduced pictures of the victim showing bruising around her neck, and the emergency room doctor testified the bruising could have been caused by strangulation. State v. Polk, 2020 ND 248, 950 N.W.2d 764, 2020 N.D. LEXIS 252 (N.D. 2020).

Law Reviews.

Indictment and Information Included Offenses: The North Dakota Supreme Court Holds that Actual Physical Control of a Motor Vehicle Under the Influence of Alcohol is a Lesser Included Offense of Driving a Motor Vehicle While Under the Influence of Alcohol, 74 N.D. L. Rev. 787 (1998).

North Dakota Supreme Court Review (State v. Vantreece, 2007 ND 126, 736 N.W.2d 428 (2007)), see 84 N.D. L. Rev. 567 (2008).

12.1-01-04. General definitions. [Effective September 1, 2022]

As used in this title, unless a different meaning plainly is required:

  1. “Act” or “action” means a bodily movement, whether voluntary or involuntary.
  2. “Acted”, “acts”, and “actions” include, where relevant, “omitted to act” and “omissions to act”.
  3. “Actor” includes, where relevant, a person guilty of an omission.
  4. “Bodily injury” means any impairment of physical condition, including physical pain.
  5. “Court” means any of the following courts: the supreme court, a district court, and where relevant, a municipal court.
  6. “Dangerous weapon” includes any switchblade or gravity knife, machete, scimitar, stiletto, sword, or dagger; any billy, blackjack, sap, bludgeon, cudgel, metal knuckles, or sand club; any slingshot; any bow and arrow, crossbow, or spear; any weapon that will expel, or is readily capable of expelling, a projectile by the action of a spring, compressed air, or compressed gas including any such weapon, loaded or unloaded, commonly referred to as a BB gun, air rifle, or CO2 gun; and any projector of a bomb or any object containing or capable of producing and emitting any noxious liquid, gas, or substance.
  7. “Destructive device” means any explosive, incendiary or poison gas bomb, grenade, mine, rocket, missile, or similar device.
  8. “Explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electric circuit breakers), detonators and other detonating agents, smokeless powders, and any chemical compounds, mechanical mixture, or other ingredients in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, or material, or any part thereof may cause an explosion.
  9. “Firearm” means any weapon that will expel, or is readily capable of expelling, a projectile by the action of an explosive and includes any such weapon, loaded or unloaded, commonly referred to as a pistol, revolver, rifle, gun, machine gun, shotgun, bazooka, or cannon.
  10. “Force” means physical action.
  11. “Government” means:
    1. The government of this state or any political subdivision of this state;
    2. Any agency, subdivision, or department of the state or any political subdivision of the state, including the executive, legislative, and judicial branches;
    3. Any corporation or other entity established by law to carry on any governmental function; and
    4. Any commission, corporation, or agency established by statute, compact, or contract between or among governments for the execution of intergovernmental programs.
  12. “Governmental function” includes any activity that one or more public servants are legally authorized to undertake on behalf of government.
  13. “Harm” means loss, disadvantage, or injury to the person affected, and includes loss, disadvantage, or injury to any other person in whose welfare the person affected is interested.
  14. “Included offense” means an offense:
    1. That is established by proof of the same or less than all the facts required to establish commission of the offense charged;
    2. That consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or
    3. That differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission.
  15. “Includes” should be read as if the phrase “but is not limited to” were also set forth.
  16. “Law enforcement officer” or “peace officer” means a public servant authorized by law or by a government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions for violations of law.
  17. “Local” means of or pertaining to any political subdivision of the state.
  18. “Manifest injustice” means a specific finding by the court that the imposition of sentence is unreasonably harsh or shocking to the conscience of a reasonable individual, with due consideration of the totality of circumstances.
  19. “Offense” means conduct for which a term of imprisonment or a fine is authorized by statute after conviction.
  20. “Official action” includes a decision, opinion, recommendation, vote, or other exercise of discretion by any government agency.
  21. “Official proceeding” means a proceeding heard or which may be heard before any government agency or branch or public servant authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with any such proceeding.
  22. “Omission” means a failure to act.
  23. As used in this title and in sections outside this title which define offenses, “person” includes, where relevant, a corporation, limited liability company, partnership, unincorporated association, or other legal entity. When used to designate a party whose property may be the subject of action constituting an offense, the word “person” includes a government that may lawfully own property in this state.
  24. “Political subdivision” as used in this title and in any statute outside this title which defines an offense means a county, city, school district, township, and any other local governmental entity created by law.
  25. “Public servant” as used in this title and in any statute outside this title which defines an offense means any officer or employee of government, including law enforcement officers, whether elected or appointed, and any person participating in the performance of a governmental function. The term does not include witnesses.
  26. “Risk assessment” means an initial phase with a secondary process approved by the department of health and human services for the evaluation of the likelihood a person that committed an offense will commit another similar offense. The initial phase is an assessment tool that is administered by a trained probation and parole officer. A predetermined score on the initial phase initiates the secondary process that includes a clinical interview, psychological testing, and verification through collateral information or psychophysiological testing, or both. The department of health and human services shall perform the secondary process of the risk assessment.
  27. “Serious bodily injury” means bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ, a bone fracture, or impediment of air flow or blood flow to the brain or lungs.
  28. “Signature” includes any name, mark, or sign written or affixed with intent to authenticate any instrument or writing.
  29. “Substantial bodily injury” means a substantial temporary disfigurement, loss, or impairment of the function of any bodily member or organ.
  30. “Thing of value” or “thing of pecuniary value” means a thing of value in the form of money, tangible or intangible property, commercial interests, or anything else the primary significance of which is economic gain to the recipient.
  31. “Tier 1 mental health professional” has the same meaning as provided under section 25-01-01.

Source: S.L. 1973, ch. 116, § 1; 1975, ch. 116, §§ 1, 2; 1981, ch. 320, § 31; 1985, ch. 175, § 1; 1987, ch. 374, § 10; 1991, ch. 326, § 41; 1993, ch. 54, § 106; 1997, ch. 118, § 1; 1999, ch. 120, § 1; 1999, ch. 277, § 1; 2007, ch. 118, § 1; 2015, ch. 116, § 1, effective August 1, 2015; 2017, ch. 97, § 2, effective August 1, 2017; 2021, ch. 352, § 20, effective September 1, 2022.

12.1-01-05. Crimes defined by state law shall not be superseded by city or county ordinance or by home rule city’s or county’s charter or ordinance.

Except as provided in section 40-05-06, an offense defined in this title or elsewhere by law may not be superseded by any city or county ordinance, or city or county home rule charter, or by an ordinance adopted pursuant to such a charter, and all such offense definitions shall have full force and effect within the territorial limits and other jurisdiction of home rule cities or counties. This section does not preclude any city or county from enacting any ordinance containing penal language when otherwise authorized to do so by law.

Source: S.L. 1973, ch. 104, § 1; 1975, ch. 116, § 3; 1985, ch. 152, § 13; 2019, ch. 334, § 1, effective August 1, 2019.

Notes to Decisions

Action Precluded.

N.D.C.C. § 12.1-01-05 precluded the City of Fargo, North Dakota, a home rule city, from imposing fees for noncriminal traffic offenses that exceeded the limits set forth for equivalent violations in N.D.C.C. § 39-06.1-06, because N.D.C.C. § 12.1-01-05 clearly and unambiguously precludes a home rule city from superseding criminal or noncriminal offenses defined by State law, when a penalty that exceeds the limits delineated by equivalent State law supersedes State law; the word “offense” rather than the word “crimes” is used in the text of N.D.C.C. § 12.1-01-05, and an “offense” under N.D.C.C. § 12.1-01-05 includes noncriminal, as well as criminal offenses. Sauby v. City of Fargo, 2008 ND 60, 747 N.W.2d 65, 2008 N.D. LEXIS 60 (N.D. 2008).

Appeal.

A city has a right to appeal pursuant to N.D.C.C. § 29-28-07 when the complaint alleges conduct violative of a city ordinance which is also expressly prohibited by state statute. City of Bismarck v. Hoopman, 421 N.W.2d 466, 1988 N.D. LEXIS 85 (N.D. 1988).

Authority of Municipal Ordinance.

The authority of a city to impose a penalty by municipal ordinance which differs from the penalty imposed by the state law is limited to those situations in which the maximum allowable municipal penalty is lesser than the state law penalty for an equivalent statute. City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

Conflict with Constitution.

City disorderly conduct ordinance did not attempt to prohibit or penalize any speech other than that which was constitutionally prohibited by N.D.C.C. § 12.1-31-01; contained additional language which only clarified the particular language which it prohibited, literally expressing what the state statute must be construed to include to be constitutional; did not supersede the state statute; and as the ordinance stood in its entirety, was not facially susceptible of application to constitutionally protected speech and therefore not unconstitutional. City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

Enactment of City Ordinance.

A city may enact an ordinance which defines an offense in language similar to state law, but provides for a lesser penalty than the state law. City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

Legislative Intent.

The legislature’s intent to uniformly apply criminal law throughout the state, as expressed in this section, would not be carried out if complaints dismissed by county court were appealable but complaints dismissed by municipal courts were not appealable. City of Bismarck v. Hoopman, 421 N.W.2d 466, 1988 N.D. LEXIS 85 (N.D. 1988).

Ordinance Authorized by Law.

City shoplifting ordinance, which established a prima facie presumption regarding the concealment of merchandise, was authorized under N.D.C.C. § 40-05-01, did not attempt to supersede state law, and was not constitutionally repugnant; it did not define an offense differently from that in the state statute and merely provided a non-mandatory presumption as an evidentiary device for proving the element of intent. City of Dickinson v. Gresz, 450 N.W.2d 216, 1989 N.D. LEXIS 252 (N.D. 1989).

County had authority to enact ordinances for the health, safety, and welfare of its residents and its enactment of animal control ordinance did not exceed the county’s statutory authority in that regard under N.D.C.C. § 11-09.1-05(5). The ordinance was not in conflict with state law as state law only prohibited dogs from habitually molesting peaceful persons as recognized in N.D.C.C. § 42-03-01, a county ordinance ordinarily superseded a state law pursuant to N.D.C.C. § 11-09.1-04 where the law and ordinance addressed the same subject and they conflicted, and under N.D.C.C. § 12.1-01-05 the ordinance was not in conflict with state law. State v. Brown, 2009 ND 150, 771 N.W.2d 267, 2009 N.D. LEXIS 159 (N.D. 2009).

Ordinance Clarifying Prohibited Conduct.

City disorderly conduct ordinance did not attempt to prohibit or penalize any speech other than that which is constitutionally prohibited by the state statute, N.D.C.C. § 12.1-31-01. The additional language of the ordinance only clarifies the particular language which it prohibits. It literally expresses what the state statute must be construed to include to be constitutional. Accordingly, the ordinance has not superseded the state statute. City of Bismarck v. Schoppert, 450 N.W.2d 757, 1990 N.D. LEXIS 2 (N.D. 1990).

Regulation of Use and Sale of Alcohol.

In order to harmonize the statutes granting and limiting the power of a municipality with this section, and to avoid an implicit repeal of that power to regulate the use and sale of alcoholic beverages, the prohibition in this section against a municipal ordinance superseding state law does not prevent a municipality from enacting an ordinance with a penalty which differs from the penalty which could be imposed under similar state law when the city has enacted an ordinance authorizing imposition of up to the maximum penalty the city may impose under state law, and the enactment is in an area of law in which the city is authorized to engage in regulation through the enactment of an ordinance. City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

The regulation of the use and sale of alcohol by a municipality is limited to imposing a penalty equal to a class B misdemeanor. City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

For a case noting possible equal protection violations where a city enacts an ordinance with penalties which differ from the penalties imposed by a parallel state statute, see City of Fargo v. Little Brown Jug, 468 N.W.2d 392, 1991 N.D. LEXIS 72 (N.D. 1991).

CHAPTER 12.1-02 Liability and Culpability

12.1-02-01. Basis of liability for offenses.

  1. A person commits an offense only if the person engages in conduct, including an act, an omission, or possession, in violation of a statute which provides that the conduct is an offense.
  2. A person who omits to perform an act does not commit an offense unless the person has a legal duty to perform the act, nor shall such an omission be an offense if the act is performed on the person’s behalf by a person legally authorized to perform it.

Source: S.L. 1973, ch. 116, § 2.

Notes to Decisions

Level of Culpability.

Under this section and N.D.C.C. § 12.1-02-02(1), the level of culpability for an offense is analyzed at the time a person engages in the conduct that constitutes an offense. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

DECISIONS UNDER PRIOR LAW

Failure to Act.

Statute making it a crime to perform a prohibited act even if no statute set forth a penalty for that act did not make it a criminal offense to fail to do an act which was required by statute. Langer v. Goode, 21 N.D. 462, 131 N.W. 258, 1911 N.D. LEXIS 112 (N.D. 1911).

Forbidden Act.

Where a certain act was forbidden and the forbidden act was done, and a punishment was prescribed for the doing of the forbidden act, such act was a crime. In re Hogan, 8 N.D. 301, 78 N.W. 1051, 1899 N.D. LEXIS 7 (N.D. 1899).

Practice of Accounting.

Since the statute relating to accountancy neither declared it to be a crime for one to practice, nor prescribed any punishment or penalty upon one who practiced, without a certificate from the board of accountancy, the statute did not create a crime. Brissman v. Thistlethwaite, 49 N.D. 417, 192 N.W. 85, 1922 N.D. LEXIS 72 (N.D. 1922).

Law Reviews.

How to Identify Criminals and Other Citizens of North Dakota After July 1, 1975, 50 N.D. L. Rev. 617 (1974).

12.1-02-02. Requirements of culpability.

  1. For the purposes of this title, a person engages in conduct:
    1. “Intentionally” if, when he engages in the conduct, it is his purpose to do so.
    2. “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.
    3. “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.
    4. “Negligently” if he engages in the conduct in unreasonable 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.
    5. “Willfully” if he engages in the conduct intentionally, knowingly, or recklessly.
  2. If a statute or regulation thereunder defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is willfully.
    1. Except as otherwise expressly provided, where culpability is required, that kind of culpability is required with respect to every element of the conduct and to those attendant circumstances specified in the definition of the offense, except that where the required culpability is “intentionally”, the culpability required as to an attendant circumstance is “knowingly”.
    2. Except as otherwise expressly provided, if conduct is an offense if it causes a particular result, the required degree of culpability is required with respect to the result.
    3. Except as otherwise expressly provided, culpability is not required with respect to any fact which is solely a basis for grading.
    4. Except as otherwise expressly provided, culpability is not required with respect to facts which establish that a defense does not exist, if the defense is defined in chapters 12.1-01 through 12.1-06; otherwise the least kind of culpability required for the offense is required with respect to such facts.
    5. A factor as to which it is expressly stated that it must “in fact” exist is a factor for which culpability is not required.
  3. Any lesser degree of required culpability is satisfied if the proven degree of culpability is higher.
  4. Culpability is not required as to the fact that conduct is an offense, except as otherwise expressly provided in a provision outside this title.

Source: S.L. 1973, ch. 116, § 2.

Notes to Decisions

Applicability.

This section applies only to offenses or crimes described in Title 12.1. City of Dickinson v. Mueller, 261 N.W.2d 787, 1977 N.D. LEXIS 172 (N.D. 1977).

This section applies only to recodified Criminal Code and not to earlier statutes not repealed by recodification. State v. North Dakota Educ. Ass'n, 262 N.W.2d 731, 1978 N.D. LEXIS 217 (N.D. 1978).

Subsection (2) is only applicable to Title 12.1, and the willful culpability level will not be read into other chapters unless the legislature specifically states as such. State v. Eldred, 1997 ND 112, 564 N.W.2d 283, 1997 N.D. LEXIS 110 (N.D. 1997).

District court did not commit error in failing to give an instruction on culpability, since culpability is a non-essential element of DUI because DUI is a strict liability offense. State v. Glass, 2000 ND 212, 620 N.W.2d 146, 2000 N.D. LEXIS 259 (N.D. 2000).

Under N.D.C.C. § 12.1-02-01 and subsection (1) of this section, the level of culpability for an offense is analyzed at the time a person engages in the conduct that constitutes an offense. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

In a statutory rape prosecution, the culpability requirement of “willfully” did not apply to the element of the victim's age, under N.D.C.C. § 12.1-02-02(3)(a), because the crime was a strict liability crime, since lack of knowledge or mistake as to the victim’s age was not a defense, under N.D.C.C. § 12.1-20-01(1). State v. Vandermeer, 2014 ND 46, 843 N.W.2d 686, 2014 N.D. LEXIS 43 (N.D. 2014).

Because N.D.C.C. § 39-08-01.2(2) does not specify a culpability requirement, it is a strict liability offense, and the willful culpability requirement of N.D.C.C. § 12.1-02-02(2) does not apply. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

Bankruptcy.

Where a Chapter 7 debtor pled guilty to being an accomplice to criminal mischief in violation of N.D.C.C. § 12.1-03-01 and § 12.1-21-05(1)(b), in connection with vandalism against property of a judgment creditor’s insured, the debtor was not collaterally estopped from seeking a discharge of the debt because the issue of willfulness as decided by the guilty plea was not identical to the issue of willfulness under 11 U.S.C.S. § 523(a)(6); the definition of “willfulness” under N.D.C.C. § 12.1-02-02(1)(e) included reckless conduct, whereas reckless conduct did not satisfy willfulness under 11 U.S.C.S. § 523(a)(6). Acuity v. Wieser (In re Wieser), 2007 Bankr. LEXIS 4493 (Bankr. D.N.D. Apr. 4, 2007).

Intentionally.

Although this section may be directly applicable only to offenses or crimes described in Title 12.1, it was an appropriate source to look to in determining the definition of “intent” in section 57-38-45(3). State v. Benson, 376 N.W.2d 36, 1985 N.D. LEXIS 460 (N.D. 1985).

Defendant’s conviction for attempted murder of a prosecutor was supported by the evidence because the jury heard evidence that defendant brought a loaded gun and three clips with 38 rounds of ammunition into a courtroom, stood in a “shooter’s stance” with two hands holding the gun pointed at the prosecutor’s chest, and intentionally, as defined in N.D.C.C. § 12.1-02-02(1)(a), pulled the trigger multiple times. State v. Chacano, 2013 ND 8, 826 N.W.2d 294, 2013 N.D. LEXIS 4 (N.D. 2013).

Jury Instructions.

District court correctly instructed the jury on the culpability required for criminal attempt and correctly advised the jury of the law because the jury instructions followed the wording of the criminal attempt statute and also defined “accomplice,” which mirrored the text of the accomplice statute. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

District court did not err when it instructed the jury on the elements of the crimes of gross sexual imposition because the jury was required to find defendant’s actions were willful, and the district court’s instructions correctly advised the jury on that element of the crimes; the charges also required a finding that defendant acted with a specific purpose and correctly instructed the jury on that element of the offense by providing the jury with the definition of sexual contact. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Knowingly.

“Knowingly” does not require absolute knowledge, but merely a firm belief, unaccompanied by substantial doubt. State v. Kaufman, 310 N.W.2d 709, 1981 N.D. LEXIS 324 (N.D. 1981).

Evidence was sufficient to sustain a criminal trespass conviction where defendant admitted that he received the divorce decree, which awarded his ex-wife the parties’ home, the ex-wife testified that she informed defendant that he could not come to the house without her approval, and defendant admitted that he had been told not to come to the house without her approval. The ex-wife testified that she did not receive a phone call from defendant, but awoke and discovered him in her residence, and defendant admitted that he entered the house through the window. State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Negligent Conduct.

It is not necessary to show that defendant realized her conduct would in all probability produce death in order to establish that death was negligently caused; negligent conduct requires only showing of an unreasonable disregard of a substantial likelihood of existence of relevant facts or risks. State v. Ohnstad, 359 N.W.2d 827, 1984 N.D. LEXIS 435 (N.D. 1984).

In a case involving leaving the scene of an accident involving death under N.D.C.C. § 39-08-04, a motion for an acquittal under N.D.R.Crim.P. 29 was properly denied because an argument that defendant was not aware he had hit someone did not apply the negligence culpability standard under N.D.C.C. § 12.1-02-02; based on the age of a truck and problems that it was having, defendant should have at least gotten out and checked after he felt a bump while backing out of a parking lot near a bar. A witnesses’ testimony regarding the amount of time defendant spent around his truck made the jury’s conclusion that defendant acted negligently by leaving the scene even more reasonable because it seemed more likely he would have known a drunk man was in the vicinity and could have been the source of the bump, even if he did not think the man was behind the truck when he backed up. State v. Jacob, 2006 ND 246, 724 N.W.2d 118, 2006 N.D. LEXIS 253 (N.D. 2006).

Recklessly.

When the police conducted a traffic stop after midnight during freezing temperatures, they directed the passenger to exit the vehicle and denied his request to sit in the squad car; he suffered frostbite. The evidence was sufficient to support the police officer’s conviction for reckless endangerment in violation of N.D.C.C. § 12.1-17-03; he did not challenge the jury’s findings that he acted recklessly within the meaning of N.D.C.C. § 12.1-02-02(1)(c). State v. O'Toole, 2009 ND 174, 773 N.W.2d 201, 2009 N.D. LEXIS 184 (N.D. 2009).

Sufficient Notice of Violation.

The language of N.D.C.C. § 12.1-16-03, when read together with the definition of “negligently,” is sufficiently explicit to enable a reasonable person to determine what type of conduct renders him liable under the statute. State v. Tranby, 437 N.W.2d 817, 1989 N.D. LEXIS 55 (N.D.), cert. denied, 493 U.S. 841, 110 S. Ct. 128, 107 L. Ed. 2d 88, 1989 U.S. LEXIS 4147 (U.S. 1989).

Willful Conduct.
—In General.

A person acts “‘Willfully’ if he engages in the conduct intentionally, knowingly, or recklessly.” Negligent conduct does not constitute willful conduct. State v. Anderson, 480 N.W.2d 727, 1992 N.D. LEXIS 29 (N.D. 1992).

It was reasonable for the jury to find defendant guilty of aggravated assault because the testimony that his wife felt as though she was going to pass out, along with a doctor’s testimony that her injuries were consistent with strangulation, constituted “serious bodily injury”; the testimony stating defendant intentionally put his wife in a choke hold satisfied the requirement that the conduct be “willful.” State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

—Violation of Injunction.

There was sufficient evidence for the jury to find that the defendant was guilty of disobeying a lawful preliminary injunction where the defendant evidenced knowledge of the injunction by her initial lawful demonstration, by her response to a warning, and by her testimony, where there was ample evidence that the defendant was part of a group that demonstrated other than quietly and peacefully, and where there were evidentiary conflicts and factual questions about the defendant’s state of mind sufficient for the jury to infer a willfulness to violate the injunction. State v. Franck, 499 N.W.2d 108, 1993 N.D. LEXIS 73 (N.D. 1993).

DECISIONS UNDER PRIOR LAW

Corruptly.

Even though an information did not charge that the bribery was done “corruptly”, it did charge that the defendant did the acts “willfully, unlawfully, and feloniously” and this was the equivalent of an allegation that the money was given with corrupt intent. State v. La Flame, 30 N.D. 489, 152 N.W. 810, 1915 N.D. LEXIS 139 (N.D. 1915).

Culpable Negligence.

As applied to the operation of a motor vehicle, culpable negligence implied a total lack of care defined as driving in a reckless and heedless manner with utter disregard for the lives and limbs of persons upon the highway. State v. Gulke, 76 N.D. 653, 38 N.W.2d 722 (1949), decided prior to the enactment of this section and N.D.C.C. section 12.1-16-02.

Negligence.

An instruction defining the terms “negligence” and “negligently” in the exact language of the statute was sufficient where no more specific instruction was asked. Zilke v. Johnson, 22 N.D. 75, 132 N.W. 640, 1911 N.D. LEXIS 15 (N.D. 1911).

Willful Resistance.

A defendant could not be convicted of the willful resistance of a search warrant of which he had no notice or knowledge at the time the resistance was made. State ex rel. Register v. McGahey, 12 N.D. 535, 97 N.W. 865, 1904 N.D. LEXIS 1 (N.D. 1904).

Collateral References.

Intoxication: modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 A.L.R.3d 1236.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

Modern status of test of criminal responsibility—state cases, 9 A.L.R.4th 526.

Necessity and sufficiency of showing, in criminal prosecution under “hit and run” statute, accused’s knowledge of accident, injury, or damage, 26 A.L.R.5th 1.

Adequacy of defense counsel’s representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

Validity, Construction, and Application of State Statutes Imposing Criminal Penalties for Failure to Register as Required Under Sex Offender or Other Criminal Registration Statutes, 33 A.L.R.6th 91.

12.1-02-03. Mistake of fact in affirmative defenses.

Unless otherwise expressly provided, a mistaken belief that the facts which constitute an affirmative defense exist is not a defense.

Source: S.L. 1973, ch. 116, § 2.

12.1-02-04. Ignorance or mistake negating culpability. [Repealed]

Repealed by S.L. 1975, ch. 116, § 33.

12.1-02-05. Causal relationship between conduct and result.

Causation may be found where the result would not have occurred but for the conduct of the accused operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the accused clearly insufficient.

Source: S.L. 1973, ch. 116, § 2.

CHAPTER 12.1-03 Accomplices — Corporations — Agents

12.1-03-01. Accomplices.

  1. A person may be convicted of an offense based upon the conduct of another person when:
    1. Acting with the kind of culpability required for the offense, he causes the other to engage in such conduct;
    2. With intent that an offense be committed, he commands, induces, procures, or aids the other to commit it, or, having a statutory duty to prevent its commission, he fails to make proper effort to do so; or
    3. He is a coconspirator and his association with the offense meets the requirements of either of the other subdivisions of this subsection.
  2. Unless otherwise provided, in a prosecution in which the liability of the defendant is based upon the conduct of another person, it is no defense that:
    1. The defendant does not belong to the class of persons who, because of their official status or other capacity or characteristic, are by definition of the offense the only persons capable of directly committing it; or
    2. The person for whose conduct the defendant is being held liable has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.

A person is not liable under this subsection for the conduct of another person when he is either expressly or by implication made not accountable for such conduct by the statute defining the offense or related provisions because he is a victim of the offense or otherwise.

Source: S.L. 1973, ch. 116, § 3; 1975, ch. 116, § 4.

Cross-References.

Criminal conspiracy, see N.D.C.C. § 12.1-06-04.

Jurisdiction against principal when not present when offense committed, see N.D.C.C. § 29-03-19.

Jurisdiction of accessory in county where offense committed, see N.D.C.C. § 29-03-12.

Notes to Decisions

Constitutionality.

This section and the facilitation statute, N.D.C.C. § 12.1-06-02, are clear and unambiguous and do not have the same, or a virtually indistinguishable, burden of proof; therefore, this section does not violate the fourteenth amendment of the United States Constitution or Art. I, §§ 12 and 21 of the state constitution as prohibiting the same acts with a different penalty than that prohibited by the facilitation statute. State v. Ballard, 328 N.W.2d 251, 1982 N.D. LEXIS 395 (N.D. 1982).

Accomplice to Extreme Indifference Murder.

Rejection of defendant’s claim that accomplice to commit extreme indifference murder was not cognizable was summarily affirmed because this claim was previously rejected. Morris v. State, 2019 ND 166, 930 N.W.2d 195, 2019 N.D. LEXIS 179 (N.D. 2019).

Bankruptcy.

Where a Chapter 7 debtor pled guilty to being an accomplice to criminal mischief in violation of N.D.C.C. § 12.1-03-01 and § 12.1-21-05(1)(b), in connection with vandalism against property of a judgment creditor’s insured, the debtor was not collaterally estopped from seeking a discharge of the debt because the issue of willfulness as decided by the guilty plea was not identical to the issue of willfulness under 11 U.S.C.S. § 523(a)(6); the definition of “willfulness” under N.D.C.C. § 12.1-02-02(1)(e) included reckless conduct, whereas reckless conduct did not satisfy willfulness under 11 U.S.C.S. § 523(a)(6). Acuity v. Wieser (In re Wieser), 2007 Bankr. LEXIS 4493 (Bankr. D.N.D. Apr. 4, 2007).

Co-conspirator.

This section does not automatically make a co-conspirator an accomplice to a crime committed in furtherance of the conspiracy. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Construction with Other Laws.

Section 29-21-14 applies only in criminal cases, and “accomplice,” when used in a criminal context, is a term of art with a limited, specific meaning, the statutory definition of which is in subsection 1 of this section, which is used to gauge the need for corroboration of accomplice testimony. Section 29-21-14 requires corroboration of testimony only where the witness could be criminally responsible as an accomplice under subsection 1 of this section. State v. Pacheco, 506 N.W.2d 408, 1993 N.D. LEXIS 179 (N.D. 1993).

Rejection of defendant’s claim that accomplice to commit extreme indifference murder was not cognizable was summarily affirmed because this claim was previously rejected. Morris v. State, 2019 ND 166, 930 N.W.2d 195, 2019 N.D. LEXIS 179 (N.D. 2019).

Corroboration Requirement.

Where witness and defendant were the only eyewitnesses to murder and each claimed that the other, acting alone, killed the victim, it would have been very misleading to the jury had the court given the jury an instruction to the effect that testimony of an accomplice must be corroborated; even if it were assumed that the trial court erred in not giving such an instruction, the failure to give it under the facts of the case would have been harmless error. State v. Kelley, 450 N.W.2d 729, 1990 N.D. LEXIS 20 (N.D. 1990).

Evidence Sufficient.

Where all the material elements of the crime of accomplice to burglary were established by testimony of defendant’s accomplice, and his testimony was adequately corroborated by direct testimony of others and by the introduction of various physical evidence seized from vehicle pursuant to a search warrant, there was substantial evidence to support the jury’s verdict that defendant acted as an accomplice to burglary. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

Evidence, including that a second defendant induced a first defendant before the murders with accusation that the victims were abusing a child and with motives of visitation and a trust fund, was sufficient to convict the second defendant of two counts of accomplice to the murders under N.D.C.C. § 12.1-03-01(1)(b). State v. Sorenson, 2009 ND 147, 770 N.W.2d 701, 2009 N.D. LEXIS 150 (N.D. 2009).

Substantial evidence warranted defendant’s conviction for attempted gross sexual imposition because the State presented sufficient evidence of who the victim would be were the crime committed by her accomplice, who defendant communicated with on a social networking website; a detective testified that part of the conversation between defendant and the accomplice was role-playing, but the part in which defendant instructed the accomplice to sexually assault his daughter was not. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Facilitation Statute Distinguished.

This section and the facilitation statute, N.D.C.C. § 12.1-06-02, provide for separate offenses; under this section, the giving of aid with intent that the offense be committed is the key element, whereas under the facilitation statute, N.D.C.C. § 12.1-06-02, knowingly providing assistance without intent to commit an offense to a person who intends to commit a felony and actually commits the crime contemplated is the key element. State v. Ballard, 328 N.W.2d 251, 1982 N.D. LEXIS 395 (N.D. 1982).

Failure to Provide Direct Evidence.

Where there was no direct evidence about when acquaintance learned that defendant’s license was suspended, or that acquaintance knew that defendant’s license was suspended when defendant drove the pickup borrowed from acquaintance, and there was also no direct evidence that acquaintance provided defendant with the keys to the pickup under circumstances indicating a common plan or demonstrating control over defendant, the court could not say, as a matter of law, that the acquaintance was an accomplice under subdivision (1)(b) of this section; therefore, acquaintance’s testimony did not need to be corroborated under N.D.C.C. § 29-21-14. State v. Deery, 489 N.W.2d 887, 1992 N.D. App. LEXIS 2 (N.D. Ct. App. 1992).

Lesser Included Offense of Facilitation.

Where the same evidence from which a juror could infer that the defendant aided another with intent that the other commit an offense (accomplice liability) could also allow a juror to infer that she only aided another with knowledge that the other intended to commit an offense (facilitation), there was evidence which could create a reasonable doubt as to accomplice liability and support a conviction of criminal facilitation, and the trial court’s refusal to give a lesser included offense instruction constituted prejudicial error. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Criminal facilitation is a lesser included offense to accomplice liability. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Mere Presence at Scene.

Evidence that defendant was present at the scene of the crime and did not attempt to prevent the crime was insufficient to establish the defendant as an accomplice where there was no evidence that defendant commanded, induced, procured, aided and abetted, or encouraged the commission of the crime. Zander v. K., 256 N.W.2d 713, 1977 N.D. LEXIS 163 (N.D. 1977).

Post-Conviction Relief.

In a case in which the district court denied appellant's application for postconviction relief, the district court's finding that appellant gave aid with intent a forgery be committed was not clearly erroneous. Saari v. State, 2017 ND 94, 893 N.W.2d 764, 2017 N.D. LEXIS 104 (N.D. 2017).

DECISIONS UNDER PRIOR LAW

Aiding and Abetting.

A verdict finding the defendant guilty of assault with a dangerous weapon was proper if it appeared that he aided and abetted accomplices who used dangerous weapons. State v. Rosencranz, 40 N.D. 93, 168 N.W. 650, 1918 N.D. LEXIS 77 (N.D. 1918).

Evidence that the defendant suggested a plan contemplating the larceny of an automobile was sufficient under the statute, and he was not exonerated because he did not advise the stealing of a particular car or in detail direct the execution of the scheme. State v. Smith, 51 N.D. 130, 199 N.W. 187, 1924 N.D. LEXIS 150 (N.D. 1924).

Where four defendants, charged with assault and battery, admitted they traveled together, arrived at scene of assault together, were present while fighting between them and occupants of house was going on, and acted in support of each other, none of them doing anything to stop fighting, there was ample evidence that all of defendants aided and abetted in commission of the battery, and conviction was affirmed. State v. Berger, 235 N.W.2d 254, 1975 N.D. LEXIS 142 (N.D. 1975), cert. denied, 425 U.S. 913, 96 S. Ct. 1511, 47 L. Ed. 2d 764, 1976 U.S. LEXIS 880 (U.S. 1976).

Possession.

In a prosecution for a larceny, where the defendant was held as the principal on the theory that he advised and encouraged the commission of the crime, an instruction that possession of property recently stolen, unless explained, was a circumstance tending to show guilt was proper. State v. Smith, 51 N.D. 130, 199 N.W. 187, 1924 N.D. LEXIS 150 (N.D. 1924).

Principal.

It was proper to charge as principal in a homicide one who counseled and directed the murder and the information could aver that defendant himself fired the fatal shot, which was in fact fired by the one he instigated to commit the crime. State v. Kent, 4 N.D. 577, 62 N.W. 631, 1895 N.D. LEXIS 51 (N.D. 1895).

Where there was no evidence proving that defendant was a principal in the crime of maintaining a common nuisance, it was prejudicial error to instruct the jury that they might convict the defendant upon the theory that he aided and abetted another in keeping and maintaining the nuisance. State v. Dahms, 29 N.D. 51, 149 N.W. 965, 1914 N.D. LEXIS 7 (N.D. 1914).

Collateral References.

Receiving stolen property: thief as accomplice of one charged with receiving stolen property, or vice versa, within rule requiring cautionary instruction, 53 A.L.R.2d 817.

“Hit-and-run” statute, criminal responsibility, as principal or accessory, of one, other than driver at time of accident, under, 62 A.L.R.2d 1130, 1131.

Incest: prosecutrix in incest case as accomplice or victim, 74 A.L.R.2d 705.

Children: criminal liability of person as aider and abettor, or other participant, for assault and similar offenses by excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.

Manslaughter, who other than actor is liable for, 95 A.L.R.2d 175.

Right or duty to refuse telephone, telegraph, or other wire service in aid of illegal gambling operations, 30 A.L.R.3d 1143.

Abortion: woman upon whom abortion is committed or attempted as accomplice for purposes of rule requiring corroboration of accomplice testimony, 34 A.L.R.3d 858.

Drugs or narcotics, offense of aiding and abetting illegal possession of, 47 A.L.R.3d 1239.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statutes, 93 A.L.R.3d 7.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 A.L.R.4th 972.

Prosecution or conviction of one conspirator as affected by disposition of case against co-conspirators, 19 A.L.R.4th 192.

Criminality of act of directing to, or recommending, source from which illicit drugs may be purchased, 34 A.L.R.5th 125.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-03-02. Corporate and limited liability company criminal responsibility.

  1. A corporation or a limited liability company may be convicted of:
    1. Any offense committed by an agent of the corporation or limited liability company within the scope of the agent’s employment on the basis of conduct authorized, requested, or commanded, by any of the following or a combination of them:
      1. The board of directors or the board of governors.
      2. An executive officer, executive manager, or any other agent in a position of comparable authority with respect to the formulation of policy or the supervision in a managerial capacity of subordinate employees.
      3. Any person, whether or not an officer of the corporation, who controls the corporation or is responsibly involved in forming its policy.
      4. Any person, whether or not a manager of the limited liability company, who controls the limited liability company or is responsibly involved in forming its policy.
      5. Any other person for whose act or omission the statute defining the offense provides corporate or limited liability company responsibility for offenses.
    2. Any offense consisting of an omission to discharge a specific duty of affirmative conduct imposed on a corporation or a limited liability company by law.
    3. Any misdemeanor committed by an agent of the corporation or the limited liability company within the scope of the agent’s employment.
    4. Any offense for which an individual may be convicted without proof of culpability, committed by an agent of the corporation or the limited liability company within the scope of the agent’s employment.
  2. It is no defense that an individual upon whose conduct liability of the corporation or the limited liability company for an offense is based has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.

Source: S.L. 1973, ch. 116, § 3; 1993, ch. 54, § 71.

Cross-References.

Fines and special sanctions for organizations, see N.D.C.C. §§ 12.1-32-01.1, 12.1-32-03.

Notes to Decisions

Employee and Criminal Acts.

An employee is acting within the scope of her authority, for criminal law purposes, if: (1) the employee has authority to do the particular corporate business which was conducted criminally; (2) the employee was acting, at least in part, in furtherance of the corporation’s business interests; and (3) the corporate management has authorized, tolerated, or ratified the criminal acts. State v. Smokey's Steakhouse, 478 N.W.2d 361, 1991 N.D. LEXIS 228 (N.D. 1991).

DECISIONS UNDER PRIOR LAW

Action for Deceit.

A corporation was liable in an action at law for deceit to the same extent as was a natural person. Gunderson v. Havanna-Clyde Mining Co., 22 N.D. 329, 133 N.W. 554, 1911 N.D. LEXIS 49 (N.D. 1911).

Collateral References.

Dissolved corporation, maintainability of criminal proceedings against, 40 A.L.R.2d 1396.

Corporation’s criminal liability for homicide, 45 A.L.R.4th 1021.

12.1-03-03. Individual accountability for conduct on behalf of organizations.

  1. A person is legally accountable for any conduct he performs or causes to be performed in the name of an organization or in its behalf to the same extent as if the conduct were performed in his own name or his behalf.
  2. Except as otherwise expressly provided, whenever a duty to act is imposed upon an organization by a statute or regulation thereunder, any agent of the organization having primary responsibility for the subject matter of the duty is legally accountable for an omission to perform the required act to the same extent as if the duty were imposed directly upon himself.
  3. When an individual is convicted of an offense as an accomplice of an organization, he is subject to the sentence authorized when a natural person is convicted of that offense.

Source: S.L. 1973, ch. 116, § 3.

DECISIONS UNDER PRIOR LAW

Counterclaim.

Counterclaim alleging that third party, for himself and as agent, vandalized hay baler, stated claim against alleged principal. Remmick v. Mills, 165 N.W.2d 61, 1968 N.D. LEXIS 91 (N.D. 1968).

12.1-03-04. Definitions and general provisions.

  1. In this chapter:
    1. “Agent” means any partner, director, officer, governor, manager, servant, employee, or other person authorized to act in behalf of an organization.
    2. “Organization” means any legal entity, whether or not organized as a corporation, limited liability company, or unincorporated association, but does not include an entity organized as or by a governmental agency for the execution of a governmental program.
  2. Nothing in this chapter shall limit or extend the criminal liability of an unincorporated association.

Source: S.L. 1973, ch. 116, § 3; 1993, ch. 54, § 106.

CHAPTER 12.1-04 Juveniles — Intoxication — Defenses

12.1-04-01. Juveniles.

  1. An individual under the age of ten years is deemed incapable of commission of an offense defined by the constitution or statutes of this state. The prosecution of an individual as an adult is barred if the offense was committed while the individual was less than fourteen years of age.
  2. An individual ten years of age or older may be assessed for mental fitness or capacity under this chapter.

Source: S.L. 1973, ch. 116, § 4; 1981, ch. 328, § 2; 2019, ch. 105, § 1, effective August 1, 2019; 2019, ch. 256, § 1, effective August 1, 2019.

Cross-References.

Sentencing of minor convicted of felony, see N.D.C.C. § 12.1-32-13.

Uniform Juvenile Court Act, see N.D.C.C. ch. 27-20.

Notes to Decisions

Applicability.

Although there was evidence defendant was less than fourteen years old when the first alleged sexual acts or contacts occurred, evidence also existed that all essential elements of the offense were not present and complete and the offense was not committed until after defendant’s fourteenth birthday; defendant was only charged with one offense, continuous sexual abuse of a child, and he was not charged with separate offenses for each of the alleged sexual acts or contacts, and the offense of continuous sexual abuse of a child was not committed until defendant was more than fourteen years old, such that N.D.C.C. § 12.1-04-01 did not apply. State v. Vondal, 2011 ND 186, 803 N.W.2d 578, 2011 N.D. LEXIS 185 (N.D. 2011).

DECISIONS UNDER PRIOR LAW

Burden on State.

The state could overcome the presumption that a child between seven and fourteen was incapable of committing a crime, but it had to show by clear proof that the accused knew the wrongfulness of the act and the burden was upon the state to prove knowledge of the wrongfulness of the act as an independent fact. State v. Fisk, 15 N.D. 589, 108 N.W. 485, 1906 N.D. LEXIS 63 (N.D. 1906).

Rape.

Child under fourteen was presumed physically incapable of crime of rape, and physical ability to commit rape had to be proved as an independent fact. State v. Fisk, 15 N.D. 589, 108 N.W. 485, 1906 N.D. LEXIS 63 (N.D. 1906).

Waiver of Jurisdiction.

The legislature had the power to fix the age of criminal capacity or responsibility absolutely and the power to fix it conditionally and it also had the power to provide that when a child committed an offense against the laws of a state or the ordinances of a city, and thus became a ward of the juvenile court, the judge of the juvenile court could waive the jurisdiction of the juvenile court and permit the child to be proceeded against in accordance with the laws or ordinances governing such offense. State ex rel. Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514, 1953 N.D. LEXIS 72 (N.D. 1953).

Collateral References.

Inclusion or exclusion of day of birth in computing age, 5 A.L.R.2d 1143.

Burden of proof of defendant’s age in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526.

12.1-04-02. Intoxication.

  1. Intoxication is not a defense to a criminal charge. Intoxication does not, in itself, constitute mental disease or defect within the meaning of section 12.1-04-04. Evidence of intoxication is admissible whenever it is relevant to negate or to establish an element of the offense charged.
  2. A person is reckless with respect to an element of an offense even though his disregard thereof is not conscious, if his not being conscious thereof is due to self-induced intoxication.

Source: S.L. 1973, ch. 116, § 4; 1977, ch. 120, § 1; 1985, ch. 173, § 27.

Notes to Decisions

Crime of General Intent.

Voluntary intoxication is not a defense to a crime of general intent. State v. Cummins, 347 N.W.2d 571, 1984 N.D. LEXIS 293 (N.D. 1984).

Instructions.

Trial court did not commit reversible error by combining language from former and present intoxication statutes in its instruction on the effect of intoxication on defendant’s capacity to form the requisite specific intent required by the charged offense where the changes in the statutes did not alter the substance of the law and the instruction as given fairly informed the jury of the current law. State v. Tipler, 316 N.W.2d 97, 1982 N.D. LEXIS 220 (N.D. 1982).

DECISIONS UNDER PRIOR LAW

Assault.

The crime of assault and battery with intent to kill was divisible into degrees and in a trial on the charge evidence of intoxication was admissible. People v. Odell, 46 N.W. 601, 1 Dakota 197, 1875 Dakota LEXIS 11 (Dakota 1875).

Degree of Intoxication.

It was not every degree of intoxication that could properly be considered by the jury, and great care had to be exercised in the introduction of this class of evidence so that it would not be considered as a defense, excuse, or justification, unless in case of a person who performed an act under such a state of intoxication as to be without volition, when he had lost control of his will, and was incapable of forming a purpose. People v. Odell, 46 N.W. 601, 1 Dakota 197, 1875 Dakota LEXIS 11 (Dakota 1875).

Larceny.

Larceny required the existence of the specific intent to deprive another of property to constitute the crime and intoxication of the defendant could be considered by the jury for the purpose of determining whether this intent actually existed. State v. Koerner, 8 N.D. 292, 78 N.W. 981, 1899 N.D. LEXIS 2 (N.D. 1899).

Purpose.

The purpose of the admission of evidence of intoxication was not to justify or excuse the crime, but to aid the jury in determining whether, in fact, the crime had been committed. State v. Koerner, 8 N.D. 292, 78 N.W. 981, 1899 N.D. LEXIS 2 (N.D. 1899).

Collateral References.

Modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 A.L.R.3d 1236.

Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.3d 98.

Adequacy of defense counsel’s representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

12.1-04-03. Lack of criminal responsibility a defense. [Repealed]

Repealed by S.L. 1985, ch. 173, § 29.

12.1-04-04. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Fitness to proceed” means sufficient present ability to consult with the individual’s counsel with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against the individual.
  2. “Least restrictive appropriate setting” means available treatment or service that best meets the identified need and is no more restrictive of physical or social liberties than what is necessary to meet the need.
  3. “Therapeutically appropriate treatment” means treatment that provides the individual the greatest probability of improvement or cure.

Source: S.L. 1973, ch. 116, § 4; 2021, ch. 104, § 1, effective August 1, 2021.

Notes to Decisions

Assisting in Own Defense.

The essence of the ability to consult with an attorney with a reasonable degree of rational understanding is that the defendant must be able to confer coherently with counsel and provide necessary and relevant information to formulate a defense. Where there was evidence that defendant had a “normal” or “mid average” I.Q. and a basic understanding of the legal process and the role of each of the participants in the proceedings, and there was conflicting evidence about whether he was able to communicate with counsel with a reasonable degree of rational understanding so as to assist his counsel in formulating a defense, since the trial court was in the best position to weigh that conflicting evidence, although defendant undoubtedly had some mental deficiencies, the trial court did not err in finding that defendant could effectively communicate with counsel to assist in his defense. State v. VanNatta, 506 N.W.2d 63, 1993 N.D. LEXIS 165 (N.D. 1993).

Burden of Proof.

The prosecution must show by a preponderance of evidence that a defendant is competent to stand trial, and the trial court’s determination on the issue of competency to stand trial is reviewed under the “clearly erroneous” standard. State v. VanNatta, 506 N.W.2d 63, 1993 N.D. LEXIS 165 (N.D. 1993).

Defendant did not carry defendant’s burden of proof to show that defendant was entitled to relief on defendant’s application for postconviction relief. Defendant did not do so because defendant did not introduce sufficient evidence to support defendant’s claims that defendant was not competent, as contemplated by N.D.C.C. § 12.1-04-04, to enter a guilty plea to two criminal charges or that defendant received ineffective assistance of counsel in entering that plea, and the trial court’s finding that defendant did not adequately support either postconviction claim was not clearly erroneous under N.D.R.Civ.P. 52(a). Alman Andrew Wong v. State, 2011 ND 201, 804 N.W.2d 382, 2011 N.D. LEXIS 199 (N.D. 2011).

Competent to Stand Trial.

Defendant, who was convicted of two counts of terrorizing, was not denied due process of law during his trial, even though the trial court did not order a second evaluation and order a competency hearing on its own motion, where two experts agreed that defendant was competent to stand trial, although they also warned that defendant would be difficult to work with, which the record reflected he was. State v. Roberson, 2002 ND 24, 639 N.W.2d 690, 2002 N.D. LEXIS 17 (N.D. 2002).

In a case in which defendant pled guilty to gross sexual imposition, burglary, aggravated assault, and terrorizing, the district court did not commit obvious error by failing to determine whether defendant was competent to proceed because the examiner filed a report containing findings that defendant was competent to proceed and that there was no reason to believe defendant lacked the capacity to understand the proceedings against him or to assist in his defense; defendant did not object to the report or otherwise contest the examiner’s findings; and no clear statutory provisions or case law required the district court to make a determination about defendant’s competency under those circumstances. State v. Grant, 2018 ND 175, 915 N.W.2d 639, 2018 N.D. LEXIS 192 (N.D. 2018).

Incompetent to Stand Trial.

A defendant is incompetent to stand trial when he neither has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, nor a rational as well as factual understanding of the proceedings against him. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982); State v. VanNatta, 506 N.W.2d 63, 1993 N.D. LEXIS 165 (N.D. 1993).

Even though defendant presented surprise testimony at trial, failed to understand his defense, testified in the form of a long narrative and alternatively complained of and praised his attorney, these facts and circumstances were not enough to create sufficient doubt in the court’s mind regarding the defendant’s competency to stand trial. Thus, defendant was not denied due process when trial court failed to hold an evidentiary hearing on his competency to stand trial. State v. Gleeson, 2000 ND 205, 619 N.W.2d 858, 2000 N.D. LEXIS 250 (N.D. 2000).

Question of Fact.

Whether a defendant is mentally competent to stand trial is a question of fact for the trial judge. State v. Skjonsby, 417 N.W.2d 818, 1987 N.D. LEXIS 449 (N.D. 1987).

12.1-04-04.1. Disposition of defendants — Lack of fitness to proceed — Records.

  1. A defendant is presumed to be fit to stand trial, to plead, or to be sentenced.
  2. An individual who lacks fitness to proceed may not be tried, convicted, or sentenced for the commission of an offense.
  3. Any report filed pursuant to this chapter regarding “diagnosis, treatment, or treatment plans” must be kept confidential and may be reviewed only by the court or an appellate court, the state, the defense, the facility providing treatment as required by order of the court, and any other person as directed by the court.

Source: S.L. 2021, ch. 104, § 2, effective August 1, 2021.

12.1-04-05. Notice of defense, filing.

Superseded by N.D.R.Crim.P., Rule 12.2.

12.1-04-06. Temporary detention for purposes of examination.

Whenever there is reason to doubt the defendant’s fitness to proceed, the court may order temporary detention of the defendant for the purpose of an examination. The temporary detention must be in the least restrictive appropriate setting, including the state hospital, the life skills and transition center, or other suitable facility for a reasonable period, not to exceed thirty days, for such examination. In lieu of detention, the court may allow the defendant to remain in the defendant’s present residential setting or other suitable residential setting for the purpose of examination, subject to any reasonable limitation the court may impose. A human service center may be considered if the court is aware an inquiry was made before the court ordered the evaluation to ensure appropriate resources exist at the human service center being ordered to conduct the examination. While the defendant is detained, the defendant’s legal counsel, family, and others necessary to assist in the defendant’s case must have reasonable opportunity to examine and confer with the defendant.

Source: S.L. 1973, ch. 116, § 4; 1985, ch. 173, § 28; 1991, ch. 121, § 1; 1995, ch. 34, § 10; 2013, ch. 102, § 1; 2013, ch. 226, § 1; 2017, ch. 97, § 3, effective August 1, 2017; 2021, ch. 104, § 3, effective August 1, 2021.

Notes to Decisions

Competency to Plead.

Where the only allegation of defendant’s mental incapacity was a reference by his attorney at the sentencing hearing 25 days after entry of his plea to a childhood injury which may have caused some brain damage, and the trial judge had ample opportunity to observe the defendant’s courtroom demeanor, test his understanding of the charge against him, and refer to a presentence report of his educational, marital and criminal history, there was no “reason to doubt” defendant’s competency to plead guilty, and no hearing on that issue was required. State v. Storbakken, 246 N.W.2d 78, 1976 N.D. LEXIS 145 (N.D. 1976).

Collateral References.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434, 444.

Right of accused in criminal prosecution to presence of counsel at court-appointed or approved psychiatric examination, 3 A.L.R.4th 910.

12.1-04-07. Examination — Report — Hearing when contested.

  1. Whenever there is reason to doubt the defendant’s fitness to proceed, the court shall order the defendant be examined by a tier 1a mental health professional.
  2. An examination must occur within fifteen days from notice of entry of the order served upon the tier 1a mental health professional. Attorneys shall disclose any materials necessary to examine the fitness of the individual to the tier 1a examiner contemporaneously with the order. For good cause shown, the court may grant an extension allowing an additional seven days to complete the examination.
  3. The report of the examining mental health professional, whether for a retrospective evaluation of fitness or an evaluation of the defendant’s current fitness, must be provided to the court in writing within thirty days of the date of the examination.
  4. The report must include:
    1. The identity of the individuals interviewed and records and other information considered.
    2. Procedures, tests, and techniques utilized in the assessment.
    3. The date and time of the examination of the defendant, and the identity of each individual present during the examination.
    4. The relevant information obtained, other information not obtained, and the defendant’s responses to questions related to the defendant’s fitness to proceed, except for any restricted, proprietary, copyrighted, or other information subject to trade secret protection which the examiner believes may be relevant, and the findings made.
    5. An opinion as to whether the defendant is fit to proceed, is able to understand the nature or purpose of the proceedings against the defendant, is able to effectively communicate with counsel, and whether the defendant will attain fitness to proceed within the time frames set forth in section 12.1-04-08. If the examiner is unable to determine whether the defendant will attain fitness within a specified period of time, the report must include the reasoning. The report may include a general description of the type of treatment needed and of the therapeutically appropriate treatment or other appropriate treatment.
  5. If the findings of the report are contested, the court shall hold a hearing before deciding whether the defendant currently lacks fitness to proceed and whether the defendant will attain fitness to proceed. Upon hearing, the prosecution and defense have the right to summon and cross-examine the persons responsible for the report and to offer evidence upon the issues.

Source: S.L. 1973, ch. 116, § 4; 1991, ch. 121, § 2; 2013, ch. 225, § 1; 2021, ch. 104, § 4, effective August 1, 2021.

Notes to Decisions

Competency to Stand Trial.

Defendant is initially presumed competent to stand trial until the trial court has reason to doubt defendant’s competency; once a defendant has caused the trial court to doubt his competency to proceed, the state has the burden to prove by a preponderance of the evidence that defendant is competent to stand trial. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

In a case in which defendant pled guilty to gross sexual imposition, burglary, aggravated assault, and terrorizing, the district court did not commit obvious error by failing to determine whether defendant was competent to proceed because the examiner filed a report containing findings that defendant was competent to proceed and that there was no reason to believe defendant lacked the capacity to understand the proceedings against him or to assist in his defense; defendant did not object to the report or otherwise contest the examiner’s findings; and no clear statutory provisions or case law required the district court to make a determination about defendant’s competency under those circumstances. State v. Grant, 2018 ND 175, 915 N.W.2d 639, 2018 N.D. LEXIS 192 (N.D. 2018).

Defendant’s constitutional public trial guarantee by the trial court’s closure of the courtroom during defendant’s competency hearing was violated because the right attached to a pretrial competency hearing and the trial court did not apply the Waller factors. Even though defendant requested the closure he articulated no overriding interest and the trial court did not tailor the closure to any overriding interest likely to be prejudiced, nor did it consider alternatives to closure. State v. Rogers, 2018 ND 244, 919 N.W.2d 193, 2018 N.D. LEXIS 252 (N.D. 2018).

Evidence.

Evidence regarding a defendant’s competency to stand trial may be presented in the form of lay observations and expert medical testimony. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

In determining defendant’s competency to stand trial, it is appropriate for the trial judge to personally conduct an informal examination of the defendant and then to rely, in part, on his own impressions, observations and conclusions in making his decision. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

Trial court’s determination that mentally retarded defendant was competent to stand trial was not clearly erroneous where, despite defendant’s mental condition, there was evidence that he could understand the legal concepts and proceedings against him if they were explained, to him in very basic, simple language at the vocabulary level of a six-year-old child, and that his understanding would be sufficient to enable him to assist counsel in his defense. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

Review on Appeal.

Supreme court adopted the “clearly erroneous” standard of review to be used in reviewing on appeal a trial court’s determination concerning defendant’s competency to stand trial. State v. Heger, 326 N.W.2d 855, 1982 N.D. LEXIS 374 (N.D. 1982).

Collateral References.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological, or hospital reports, 55 A.L.R.3d 551.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.

12.1-04-08. Suspension or dismissal of proceedings — Referral for services.

  1. If the court determines based upon a preponderance of the evidence that the defendant currently lacks fitness to proceed and the report as required under section 12.1-04-07 indicates a likelihood the defendant will attain fitness within a specified period of time from the date of the finding upon completion of a course of therapeutically appropriate treatment, the proceedings against the defendant must be suspended. For a defendant charged with a felony, the proceedings must be suspended for a period of up to one hundred eighty days. The court may extend the suspension for an additional three hundred sixty-five days if there is medical evidence to believe the defendant’s fitness to proceed will be restored during the extended period. For a defendant charged with a misdemeanor, the proceedings must be suspended for a period no longer than the maximum term of imprisonment for the most serious offense charged. When the court determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the proceeding must be resumed. If prosecution of the defendant has not resumed or it is determined by the court, after a hearing if a hearing is requested, that the defendant will not regain fitness to proceed within the allotted time, the charges against the defendant must be dismissed.
  2. If the court determines based upon a preponderance of the evidence that the defendant currently lacks fitness to proceed and that the defendant will not attain fitness to proceed, the proceedings must be dismissed. The court may at any time make a referral for other appropriate services. Other appropriate services include:
    1. Determination of incapacity, by a district court with appropriate jurisdiction following petition by the state’s attorney, for the appointment of a guardian or conservator pursuant to chapter 30.1-28 or 30.1-29; or
    2. Civil commitment of the person pursuant to chapter 25-03.1.
  3. If the court determines the defendant currently lacks fitness to proceed and the defendant may attain fitness to proceed under subsection 1, the court may enter an order for a course of treatment considering the least restrictive form of treatment therapeutically appropriate.
    1. Unless excused by the court, in a proceeding to determine therapy in an attempt to attain fitness, the defendant shall be represented by trial counsel.
    2. If the court finds the individual is not able to retain the services of a tier 1a mental health professional and that those services are not otherwise available, the court shall authorize reasonable expenditures from public funds to examine the individual.
    3. In a motion hearing to resume prosecution, the state or prosecuting authority must show by a preponderance of the evidence the defendant has attained fitness to proceed.
  4. If the court orders the defendant committed to a treatment facility in an attempt to attain fitness to proceed under subsection 1, the court shall provide the special custody and commitment terms in the order. The special terms of commitment must include an order for the defendant to accept all nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility, including the use of involuntary treatment with prescribed medication without the need for a separate commitment under chapter 25-03.1.
    1. If the order does not indicate the terms of commitment, the director or superintendent of the treatment facility may determine the nature of the constraints necessary within the treatment facility to carry out the order of the court.
    2. If the court orders an individual committed for therapeutic treatment to attain fitness to proceed, the court shall set a date consistent with the timeline established in this section for a review of the defendant’s fitness to proceed. At least sixty days before the date specified for review, the director or director’s designee or the superintendent of the treatment facility shall inquire as to whether the individual is represented by counsel and file a written report of the facts ascertained with the court.
  5. If the parties to the action have reason to modify the special terms of the commitment order under this section, the parties shall make a motion to the court and the court shall determine by a preponderance of the evidence if the modification of the special terms is necessary and the least restrictive therapeutic alternative therapy in an attempt to attain fitness to proceed.
  6. The custodian, guardian, or other person charged with the control of the defendant may take an appeal from the court’s order in the manner provided by law.

Source: S.L. 1973, ch. 116, § 4; 1991, ch. 121, § 3; 1995, ch. 34, § 10; 2013, ch. 226, § 1; 2021, ch. 104, § 5, effective August 1, 2021.

Note.

S.L. 2013, chapter 226, § 1, codified as N.D.C.C. § 25-04-01.1, provides for the substitution of “life skills and transition center” for “developmental center at westwood park, Grafton” or “developmental center” or any derivatives of those terms wherever they appear in the North Dakota Century Code.

Notes to Decisions

Due Process.

Where district court retained jurisdiction over petitioner’s placement in state hospital as provided for by subsection (2), supreme court would not consider collateral attack on court order alleging violation of petitioner’s due process rights, based on opinion of assistant attorney general that involuntary commitment proceeding should be conducted. Rutten v. R. A. (In the Interest of R. A.), 551 N.W.2d 800, 1996 N.D. LEXIS 192 (N.D. 1996).

District court did not clearly err in finding that defendant was not competent to assist in his defense and suspending the prosecution against him as the report filed by an independent examiner, in conjunction with the testimony and evidence presented at two hearings and the district court’s own observations, provided evidence to support its findings that defendant was not competent to stand trial because of his schizophrenia, paranoid type, and delusions as well as his emotional outbursts and instability during hearings. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Because defendant had a right to a speedy trial and was presumed innocent, his continued pretrial detention at the State Hospital had to be determined under the statutory procedures and safeguards of N.D.C.C. ch. 25-03.1. State v. Holbach, 2014 ND 14, 842 N.W.2d 328, 2014 N.D. LEXIS 16 (N.D.), cert. denied, 574 U.S. 984, 135 S. Ct. 462, 190 L. Ed. 2d 347, 2014 U.S. LEXIS 7253 (U.S. 2014).

Collateral References.

Release of one committed to institution as consequence of acquittal of crime on ground of insanity, 95 A.L.R.2d 54.

Appealability of orders or rulings, prior to final judgment in criminal case, as to accused’s mental competency, 16 A.L.R.3d 714.

12.1-04-09. Legal objections to prosecution allowed.

The fact that the defendant is unfit to proceed does not preclude any legal objection to the prosecution which is susceptible of fair determination prior to trial and without the personal participation of the defendant.

Source: S.L. 1973, ch. 116, § 4.

12.1-04-10. Acquittal due to mental disease or defect — Petition to clerk of court. [Repealed]

Repealed by S.L. 1985, ch. 173, § 29.

CHAPTER 12.1-04.1 Criminal Responsibility and Post-trial Responsibility Act

12.1-04.1-01. Standard for lack of criminal responsibility.

  1. An individual is not criminally responsible for criminal conduct if, as a result of mental disease or defect existing at the time the conduct occurs:
    1. The individual lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the conduct is the result of a loss or serious distortion of the individual’s capacity to recognize reality; and
    2. It is an essential element of the crime charged that the individual act willfully.
  2. For purposes of this chapter, repeated criminal or similar antisocial conduct, or impairment of mental condition caused primarily by voluntary use of alcoholic beverages or controlled substances immediately before or contemporaneously with the alleged offense, does not constitute in itself mental illness or defect at the time of the alleged offense. Evidence of the conduct or impairment may be probative in conjunction with other evidence to establish mental illness or defect.

Source: S.L. 1985, ch. 173, § 1.

Cross-References.

Defense based on mental condition, see N.D.R.Crim.P. 12.2.

Notes to Decisions

Civil and Criminal Candidates Compared.

For discussion on the differences between the class of potential civil commitment candidates and the class of insanity detainees after a criminal trial, including their different standards of proof, see State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Constitutional Considerations.

Defendant’s equal protection rights under the federal and state constitutions were not infringed when he was detained and committed for treatment after the jury found that he engaged in criminal conduct but was not guilty “by reason of lack of criminal responsibility.” State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Forced Medication.

The very specific protections afforded by N.D.C.C. § 25-03.1-18.1 are applicable to all persons committed for treatment. There is no language under this chapter that manifests a legislative intent to avoid application of N.D.C.C. § 25-03.1-18.1 to persons who have been committed for treatment under this chapter. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Section 25-03.1-18.1 applies to insanity detainees who are committed to treatment facilities under this chapter. The court has authority to commit and order treatment under this chapter, but, when the treatment is to include forced medication, the procedural requirements of N.D.C.C. § 25-03.1-18.1 must be met. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Inquiry Requirement.

In order to determine whether or not a defendant has competently, intelligently, and voluntarily waived the defense of lack of criminal responsibility, the trial court must make some type of inquiry of the defendant. City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

As to the type of inquiry which should be made by the trial court to determine whether a defendant has competently, intelligently, and voluntarily waived the defense of lack of criminal responsibility, see City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

Jury Instructions.

A jury instruction on consequences of a verdict of not guilty by reason of a lack of criminal responsibility ordinarily should not be given, except where an erroneous view of law on subject has been planted in minds of jurors and a curative instruction is necessary. State v. Huber, 361 N.W.2d 236, 1985 N.D. LEXIS 244 (N.D.), cert. denied, 471 U.S. 1106, 105 S. Ct. 2339, 85 L. Ed. 2d 855, 1985 U.S. LEXIS 1867 (U.S. 1985).

Pretrial Dismissal.

Defense based on lack of criminal responsibility is not proper subject of a pretrial motion to dismiss because defense has a bearing on very issue of a defendant’s legal guilt or innocence and, as such, raises a factual question to be submitted to and determined by trier of fact. State v. Kolobakken, 347 N.W.2d 569, 1984 N.D. LEXIS 294 (N.D. 1984).

Probation Violation.

Insanity under this section is not a defense in a proceeding to revoke probation under N.D.R.Crim.P. 32(f). State v. Olson, 2003 ND 23, 656 N.W.2d 650, 2003 N.D. LEXIS 26 (N.D. 2003).

Purpose.

This chapter seeks to protect society from persons who commit violent crimes and who suffer from mental illness or defect. This chapter also seeks to secure appropriate treatment for those individuals and to release them from involuntary commitment when neither society’s protection nor their welfare requires continued confinement. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Sufficiency of Evidence.

The jury could have chosen not to believe expert testimony that defendant was profoundly psychotic and suffering from delirium tremens at the time of the murder, and the evidence that defendant moved the body, washed the blood from him and changed clothes and concealed those details from the expert was sufficient to support the finding of guilt. State v. Klose, 2003 ND 39, 657 N.W.2d 276, 2003 N.D. LEXIS 31 (N.D. 2003).

DECISIONS UNDER PRIOR LAW

Jury Instructions.

The defense of insanity was a legal defense, and hence it would not be disparaged, or placed under the ban of disapproval by the court in an instruction to the jury. State v. Barry, 11 N.D. 428, 92 N.W. 809, 1902 N.D. LEXIS 153 (N.D. 1902).

Collateral References.

Presumption of continuing insanity as applied to accused in criminal case, 27 A.L.R.2d 121.

Bail: insanity of accused as affecting right to bail in criminal case, 11 A.L.R.3d 1385.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.

Diminishing responsibility for crime, mental or emotional condition as, 22 A.L.R.3d 1228.

Comment note on prosecution of chronic alcoholic for drunkenness offenses, 40 A.L.R.3d 321.

XYY syndrome as affecting criminal responsibility, 42 A.L.R.3d 1414.

Amnesia as affecting capacity to commit crime or stand trial, 46 A.L.R.3d 544.

Drug addiction or related mental state as defense to criminal charge, 73 A.L.R.3d 16.

Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 A.L.R.4th 884.

Modern status of test of criminal responsibility—state cases, 9 A.L.R.4th 526.

Competency to stand trial of criminal defendant diagnosed as “mentally retarded” — modern cases, 23 A.L.R.4th 493.

Automatism or unconsciousness as defense to criminal charge, 27 A.L.R.4th 1067.

“Guilty but mentally ill” statutes: validity and construction, 71 A.L.R.4th 702.

Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal, 81 A.L.R.4th 659.

Adequacy of defense counsel’s representation of criminal client — issues of incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

Law Reviews.

Criminal Law — Capacity to Commit and Responsibility for Crime — Validity of the XYY Syndrome as Part of the Defense of Insanity, 52 N.D. L. Rev. 685 (1976).

12.1-04.1-02. Court authorization of state-funded mental health services for certain defendants.

A defendant who is unable to pay for the services of a tier 1a mental health professional, and to whom those services are not otherwise available, may apply to the court for assistance. Upon a showing of a likely need for examination on the question of lack of criminal responsibility or lack of requisite state of mind as a result of the defendant’s mental condition, the court shall authorize reasonable expenditures from public funds for the defendant’s retention of the services of one or more tier 1a mental health professionals. Upon request by the defendant, the application and the proceedings on the application must be ex parte and in camera, but any order under this section authorizing expenditures must be made part of the public record.

Source: S.L. 1985, ch. 173, § 2; 2017, ch. 97, § 4, effective August 1, 2017.

Notes to Decisions

Public Trial.

Defendant’s constitutional public trial guarantee by the trial court’s closure of the courtroom during defendant’s competency hearing was violated because the right attached to a pretrial competency hearing and the trial court did not apply the Waller factors. Even though defendant requested the closure he articulated no overriding interest and the trial court did not tailor the closure to any overriding interest likely to be prejudiced, nor did it consider alternatives to closure. State v. Rogers, 2018 ND 244, 919 N.W.2d 193, 2018 N.D. LEXIS 252 (N.D. 2018).

Scope of Examination.

Court-appointed psychiatric evaluation which went beyond the scope of determining the defendant’s competency to stand trial and concluded the defendant was a pedophile with “sexual pre-occupation” did not violate the defendant’s Fifth and Six Amendment rights since the State did not use the evaluation at any point during the criminal proceeding. State v. Syvertson, 1999 ND 137, 597 N.W.2d 644, 1999 N.D. LEXIS 157 (N.D.), cert. denied, 528 U.S. 956, 120 S. Ct. 383, 145 L. Ed. 2d 299, 1999 U.S. LEXIS 7008 (U.S. 1999).

Second Evaluation.

The trial court’s denial of defendant’s request for a second psychiatric evaluation deprived him of neither his constitutional nor statutory right to publicly funded mental health services. State v. Norman, 507 N.W.2d 522, 1993 N.D. LEXIS 191 (N.D. 1993).

Where the court-appointed psychiatric evaluation went beyond the scope of determining the defendant’s competency to stand trial and concluded the defendant was a pedophile with “sexual pre-occupation” but the State did not use the evaluation at any point during the criminal proceeding, the defendant was not entitled to a second evaluation. State v. Syvertson, 1999 ND 137, 597 N.W.2d 644, 1999 N.D. LEXIS 157 (N.D.), cert. denied, 528 U.S. 956, 120 S. Ct. 383, 145 L. Ed. 2d 299, 1999 U.S. LEXIS 7008 (U.S. 1999).

12.1-04.1-03. Notice of defense of lack of criminal responsibility.

  1. If the defendant intends to assert the defense of lack of criminal responsibility, the defendant shall notify the prosecuting attorney in writing and file a copy of the notice with the court. The notice must indicate whether the defendant intends to introduce at trial evidence obtained from examination of the defendant by a tier 1a mental health professional after the time of the alleged offense.
  2. The defendant shall file the notice within the time prescribed for pretrial motions or at such earlier or later time as the court directs. For cause shown, the court may allow late filing of the notice and grant additional time to the parties to prepare for trial or may make other appropriate orders.
  3. If the defendant fails to give notice in accordance with this section, lack of criminal responsibility may not be asserted as a defense.

Source: S.L. 1985, ch. 173, § 3; 2017, ch. 97, § 5, effective August 1, 2017.

12.1-04.1-04. Notice regarding expert testimony on lack of state of mind as element of alleged offense.

  1. If the defendant intends to introduce at trial evidence obtained from examination of the defendant by a tier 1a mental health professional after the time of the alleged offense to show the defendant lacked the state of mind required for the alleged offense, the defendant shall notify the prosecuting attorney in writing and file a copy of the notice with the court.
  2. The defendant shall file the notice within the time prescribed for pretrial motions or at such earlier or later time as the court directs. For cause shown, the court may allow late filing of the notice and grant additional time to the parties to prepare for trial or may make other appropriate orders.

Source: S.L. 1985, ch. 173, § 4; 2017, ch. 97, § 6, effective August 1, 2017.

Cross-References.

Expert witnesses and interpreters, see N.D.R.Crim.P. 28.

Notice of defense based on mental condition, see N.D.R.Crim.P. 12.2.

12.1-04.1-05. Examination at request of prosecuting attorney.

  1. If the defendant has given notice under section 12.1-04.1-03 or 12.1-04.1-04 of intent to introduce evidence obtained from examination of the defendant by a tier 1a mental health professional after the time of the alleged offense, the court, upon application by the prosecuting attorney and after opportunity for response by the defendant, shall order the defendant be examined by one or more tier 1a mental health professionals retained by the prosecuting attorney. The court shall include in the order provisions as to the time, place, and conditions of the examination.
  2. If the parties agree to examination of the defendant by a tier 1a mental health professional retained by the prosecuting attorney without order of the court, sections 12.1-04.1-06, 12.1-04.1-07, 12.1-04.1-08, 12.1-04.1-10, 12.1-04.1-11, 12.1-04.1-12, 12.1-04.1-13, 12.1-04.1-14, and 12.1-04.1-15 apply to that examination.

Source: S.L. 1985, ch. 173, § 5; 2017, ch. 97, § 7, effective August 1, 2017.

12.1-04.1-06. Explanation to defendant.

At the beginning of each examination conducted under section 12.1-04.1-05, the tier 1a mental health professional shall inform the defendant the examination is being made at the request of the prosecuting attorney; the purpose of the examination is to obtain information about the defendant’s mental condition at the time of the alleged offense; and information obtained from the examination may be used at trial and, if the defendant is found not guilty by reason of lack of criminal responsibility, in subsequent proceedings concerning commitment or other disposition.

Source: S.L. 1985, ch. 173, § 6; 2017, ch. 97, § 8, effective August 1, 2017.

12.1-04.1-07. Scope of examination.

An examination of the defendant conducted under section 12.1-04.1-05 may consist of such interviewing, clinical evaluation, and psychological testing the tier 1a mental health professional considers appropriate, within the limits of nonexperimental, generally accepted medical, psychiatric, or psychological practices.

Source: S.L. 1985, ch. 173, § 7; 2017, ch. 97, § 9, effective August 1, 2017.

12.1-04.1-08. Recording of examination.

  1. An examination of the defendant conducted under section 12.1-04.1-05 must be audio-recorded and, if ordered by the court, video-recorded. The manner of recording may be specified by rule or by court order in individual cases.
  2. Within seven days after completion of an examination conducted under section 12.1-04.1-05, the tier 1a mental health professional conducting the examination shall deliver a copy of the recording of the examination, under seal, to the court and a copy of the recording to the defendant. The recording may not be disclosed except in accordance with this chapter.

Source: S.L. 1985, ch. 173, § 8; 2017, ch. 97, § 10, effective August 1, 2017.

Notes to Decisions

Video-Recording.

Although the court-ordered interviews with defendant should have been videotaped as required by N.D.C.C. § 12.1-04.1-08(1), the State gave ample notice upon learning video-recording capacity was not available and defendant waived his right to object by failing to object. State v. Schmidkunz, 2006 ND 192, 721 N.W.2d 387, 2006 N.D. LEXIS 195 (N.D. 2006).

12.1-04.1-09. Consequence of deliberate failure of defendant to cooperate.

If the defendant without just cause deliberately fails to participate or to respond to questions in an examination conducted under section 12.1-04.1-05, the prosecuting attorney may apply before trial to the court for appropriate relief. The court may consider the recording of the examination as evidence on the application, but proceedings under this section involving consideration of the recording must be in camera and out of the presence of counsel.

Source: S.L. 1985, ch. 173, § 9.

12.1-04.1-10. Reports by tier 1a mental health professionals and expert witnesses.

A tier 1a mental health professional retained by the prosecuting attorney and a tier 1a mental health professional whom the defendant intends to call to testify at trial shall prepare a written report concerning any examination of the defendant and other pretrial inquiry by or under the supervision of the tier 1a mental health professional. Any other individual whom either party intends to call at trial as an expert witness on any aspect of the defendant’s mental condition shall prepare a written report. A report under this section must contain:

  1. The specific issues addressed.
  2. The identity of individuals interviewed and records or other information used.
  3. The procedures, tests, and techniques used.
  4. The date and time of examination of the defendant, the explanation concerning the examination given to the defendant, and the identity of each individual present during an examination.
  5. The relevant information obtained and findings made.
  6. Matters concerning which the mental health professional was unable to obtain relevant information and the reasons therefor.
  7. The conclusions reached and the reasoning on which the conclusions were based.

Source: S.L. 1985, ch. 173, § 10; 2017, ch. 97, § 11, effective August 1, 2017.

Collateral References.

Qualification of nonmedical psychologist to testify as to mental condition or competency, 72 A.L.R.5th 529.

12.1-04.1-11. Exchange of reports and production of documents.

Not less than fifteen days before trial, the prosecuting attorney shall furnish to the defendant reports prepared pursuant to section 12.1-04.1-10, and the defendant shall furnish to the prosecuting attorney reports by each tier 1a mental health professional or other expert on any aspect of the defendant’s mental condition whom the defendant intends to call at trial. Upon application by either party and after hearing, the court may require production of documents prepared, completed, or used in the examination or inquiry by the tier 1a mental health professional or other expert.

Source: S.L. 1985, ch. 173, § 11; 2017, ch. 97, § 12, effective August 1, 2017.

12.1-04.1-12. Use of reports at trial.

Use at trial of a report prepared by a tier 1a mental health professional or other expert is governed by the North Dakota Rules of Evidence. A report of a tier 1a mental health professional or other expert furnished by the defendant pursuant to section 12.1-04.1-10 may not be used at trial unless the tier 1a mental health professional or other expert who prepared the report has been called to testify by the defendant.

Source: S.L. 1985, ch. 173, § 12; 2017, ch. 97, § 13, effective August 1, 2017.

Collateral References.

Admissibility of results of computer analysis of defendant’s mental state, 37 A.L.R.4th 510.

12.1-04.1-13. Notice of expert witnesses.

Not less than twenty days before trial, each party shall give written notice to the other of the name and qualifications of each tier 1a mental health professional or other individual the respective party intends to call as an expert witness at trial on the issue of lack of criminal responsibility or requisite state of mind as an element of the crime charged. For good cause shown, the court may permit later addition to or deletion from the list of individuals designated as expert witnesses.

Source: S.L. 1985, ch. 173, § 13; 2017, ch. 97, § 14, effective August 1, 2017.

12.1-04.1-14. Use of evidence obtained from examination.

  1. Except as provided in subsection 2 and in sections 12.1-04.1-09 and 12.1-04.1-26, information obtained as a result of examination of a defendant by a tier 1a mental health professional conducted under section 12.1-04.1-05 is not admissible over objection of the defendant in any proceeding against the defendant.
  2. Subject to the limitation in section 12.1-04.1-15, information obtained from an examination of the defendant by a tier 1a mental health professional conducted under section 12.1-04.1-05 is admissible at trial to rebut evidence introduced by the defendant obtained from an examination of the defendant by a tier 1a mental health professional or to impeach the defendant on the defendant’s testimony as to mental condition at the time of the alleged offense.

Source: S.L. 1985, ch. 173, § 14; 2017, ch. 97, § 15, effective August 1, 2017.

Collateral References.

Admissibility of results of computer analysis of defendant’s mental state, 37 A.L.R.4th 510.

12.1-04.1-15. Use of recording of examination.

Except as provided in section 12.1-04.1-09, recording of an examination of the defendant concerning the defendant’s mental condition at the time of the alleged offense may be referred to or otherwise used only on cross-examination for the purpose of impeachment of the tier 1a mental health professional who conducted the examination and then on redirect examination of that witness to the extent permitted by the North Dakota Rules of Evidence. The defendant must make the recording available to the prosecuting attorney before any use of it pursuant to this section. If the recording is so used, this section does not preclude its use for the purpose of impeachment of the defendant in any other criminal, civil, or administrative proceeding.

Source: S.L. 1985, ch. 173, § 15; 2017, ch. 97, § 16, effective August 1, 2017.

12.1-04.1-16. Bifurcation of issue of lack of criminal responsibility.

Upon application of the defendant, the court may order that issues as to the commission of the alleged offense be tried separately from the issue of lack of criminal responsibility.

Source: S.L. 1985, ch. 173, § 16.

Notes to Decisions

Failure to Request Bifurcation.

District court did not err in denying appellant’s application for post-conviction relief, because he failed to prove that trial counsel rendered ineffective assistance by failing to request a bifurcated trial under N.D.C.C. § 12.1-04.1-16 on the issue of commission of the alleged offenses of reckless endangerment and attempted murder, and a separate trial for the lack of criminal responsibility by reason of mental disease or defect. Appellant did not have the right to have a separate trial on the issue of lack of criminal responsibility; rather, bifurcation is allowed in the trial court’s discretion. Dahl v. State, 2013 ND 25, 826 N.W.2d 922, 2013 N.D. LEXIS 26 (N.D.), cert. denied, 571 U.S. 848, 134 S. Ct. 112, 187 L. Ed. 2d 81, 2013 U.S. LEXIS 6321 (U.S. 2013).

12.1-04.1-17. Jury instruction on disposition following verdict of lack of criminal responsibility.

On request of the defendant in a trial by jury of the issue of lack of criminal responsibility for the alleged offense, the court shall instruct the jury as to the dispositional provisions applicable to the defendant if the jury returns a verdict of not guilty by reason of lack of criminal responsibility.

Source: S.L. 1985, ch. 173, § 17.

12.1-04.1-18. Form of verdict or finding.

If the issue of lack of criminal responsibility is submitted to the trier of fact:

  1. In a unitary trial, the trier of fact must first determine whether the prosecuting attorney has proven that the defendant committed the crime charged. In a bifurcated trial, the trier of fact must first determine whether the prosecuting attorney has proven that the defendant committed the crime charged and, if so, whether the defendant is criminally responsible. Each determination must be made at the conclusion of the phase of the trial at which the respective issue is tried. If the trier of fact concludes that the prosecuting attorney failed to prove that the defendant committed the crime charged, the appropriate verdict or finding is “not guilty”.
  2. If the trier of fact determines that the defendant committed the crime charged and the defendant was criminally responsible for that crime, the appropriate verdict or finding is “guilty”.
  3. If the trier of fact determines that the defendant committed the crime charged, but was not criminally responsible for that crime, the appropriate verdict or finding is a statement that the defendant committed the crime charged but that the defendant is “not guilty by reason of lack of criminal responsibility”.

Source: S.L. 1985, ch. 173, § 18.

Collateral References.

Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement, 43 A.L.R.5th 777.

12.1-04.1-19. Post-trial motions and appeal from verdict or finding of not guilty by reason of lack of criminal responsibility.

  1. A defendant found not guilty by reason of lack of criminal responsibility may seek post-trial relief in the trial court and may appeal to the supreme court on issues pertaining to the verdict or finding that the defendant committed the crime charged.
  2. If the verdict or finding is not guilty by reason of lack of criminal responsibility, and a new trial is ordered on the issue of whether the defendant committed the crime charged, unless defendant elects to waive the defense, the verdict or finding of lack of criminal responsibility is conclusive on that issue in the retrial.

Source: S.L. 1985, ch. 173, § 19.

12.1-04.1-20. Jurisdiction of court.

  1. Unless earlier discharged by order of the court pursuant to section 12.1-04.1-22, 12.1-04.1-24, or 12.1-04.1-25, an individual found not guilty by reason of lack of criminal responsibility is subject to the jurisdiction of the court for a period equal to the maximum term of imprisonment that could have been imposed for the most serious crime of which the individual was charged but found not guilty by reason of lack of criminal responsibility.
  2. Upon expiration of its jurisdiction under this chapter or earlier discharge by its order, the court may order that a proceeding for involuntary commitment be initiated pursuant to chapter 25-03.1.

Source: S.L. 1985, ch. 173, § 20.

Collateral References.

Validity of statutory provision for commitment to mental institution of one acquitted of crime on ground of insanity without formal determination of mental condition at time of acquittal, 50 A.L.R.3d 144.

Validity of conditions imposed when releasing person committed to institution as consequence of acquittal of crime on ground of insanity, 2 A.L.R.4th 934.

12.1-04.1-21. Proceeding following verdict or finding.

After entry of a verdict, finding, or an unresisted plea, that an individual committed the crime charged, but is not guilty by reason of lack of criminal responsibility, the court shall:

  1. Make a finding, based upon the verdict or finding provided in section 12.1-04.1-18, of the expiration date of the court’s jurisdiction; and
  2. Order the individual committed to a treatment facility, as defined under chapter 25-03.1, for examination. The order of the court may set terms of custody during the period of examination.

Source: S.L. 1985, ch. 173, § 21.

12.1-04.1-22. Initial order of disposition — Commitment to treatment facility — Conditional release — Discharge.

  1. The court shall conduct a dispositional hearing within ninety days after an order of commitment pursuant to section 12.1-04.1-21 is entered, unless the court, upon application of the prosecuting attorney or the individual committed, for cause shown, extends the time for the hearing. The court shall enter an initial order of disposition within ten days after the hearing is concluded.
  2. In a proceeding under this section, unless excused by order of the court, defense counsel at the trial shall represent the individual committed.
  3. If the court finds the individual lacks sufficient financial resources to retain the services of a tier 1a mental health professional and that those services are not otherwise available, the court shall authorize reasonable expenditures from public funds for the individual’s retention of the services of one or more tier 1a mental health professionals to examine the individual and make other inquiry concerning the individual’s mental condition.
  4. In a proceeding under this section, the individual committed has the burden of proof by a preponderance of the evidence. The court shall enter an order in accordance with the following requirements:
    1. If the court finds the individual is not mentally ill or defective or that there is not a substantial risk, as a result of mental illness or defect, that the individual will commit a criminal act, the court shall order the individual discharged from further constraint under this chapter.
    2. If the court finds the individual is mentally ill or defective and there is a substantial risk, as a result of mental illness or defect, that the individual will commit a criminal act of violence threatening another individual with bodily injury or inflicting property damage and that the individual is not a proper subject for conditional release, the court shall order the individual committed to a treatment facility for custody and treatment. If the court finds the risk the individual will commit an act of violence threatening another individual with bodily injury or inflicting property damage will be controlled adequately with supervision and treatment if the individual is conditionally released and that necessary supervision and treatment are available, the court shall order the individual released subject to conditions it considers appropriate for the protection of society.
    3. If the court finds the individual is mentally ill or defective and there is a substantial risk, as a result of mental illness or defect, that the individual will commit a criminal act not included in subdivision b, the court shall order the individual to report to a treatment facility for noncustodial evaluation and treatment and to accept nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility.

Source: S.L. 1985, ch. 173, § 22; 2017, ch. 97, § 17, effective August 1, 2017.

Notes to Decisions

Involuntary Commitment.

Following a dispositional hearing, the court can involuntarily commit the detainee for custody and treatment only if the court finds that the detainee is mentally ill or defective, that there is a substantial risk that the detainee will commit a criminal act of violence, and that the detainee is not a proper subject for conditional release. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

12.1-04.1-23. Terms of commitment — Periodic review of commitment.

  1. Unless an order of commitment of an individual to a treatment facility provides for special terms as to custody during commitment, the director or superintendent of the treatment facility may determine from time to time the nature of the constraints necessary within the treatment facility to carry out the court’s order. In an order of commitment, the court may authorize the director or superintendent to allow the individual a limited leave of absence from the treatment facility on terms the court may direct.
  2. In an order of commitment of an individual to a treatment facility under this chapter, the court shall set a date for review of the status of the individual. The date set must be within one year after the date of the order.
  3. At least sixty days before a date for review fixed in a court order, the director or superintendent of the treatment facility shall inquire as to whether the individual is presently represented by counsel and file with the court a written report of the facts ascertained. If the individual is not represented by counsel, counsel must be provided at public expense to consult with the individual and, if the individual is indigent, to seek arrangement of counsel at public expense to represent the individual in a proceeding for conditional release or discharge.
  4. If the court finds in a review the individual lacks sufficient financial resources to retain the services of a tier 1a mental health professional and those services are otherwise not available, the court shall authorize reasonable expenditures from public funds for the individual’s retention of the services of one or more tier 1a mental health professionals to examine the individual and make other inquiry concerning the individual’s mental condition. In proceedings brought before the next date for review, the court may authorize expenditures from public funds for that purpose.
  5. If an application for review of the status of the individual has not been filed by the date for review, the director or superintendent shall file a motion for a new date for review to be set by the court. The date set must be within one year after the previous date for review.

Source: S.L. 1985, ch. 173, § 23; 2007, ch. 119, § 1; 2017, ch. 97, § 18, effective August 1, 2017.

Notes to Decisions

Review of Status.

The detainee is entitled to another review of status within one year after the date of the court’s order. State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Collateral References.

Extended Commitment of One Committed to Institution as Consequence of Acquittal of Crime on Ground of Insanity. 52 A.L.R.6th 567.

12.1-04.1-24. Modification of order of commitment — Conditional release or discharge — Release plan.

  1. After commitment of an individual to a treatment facility under this chapter, the director or superintendent may apply to the court for modification of the terms of an order of commitment or for an order of conditional release or discharge. The application must be accompanied by a report setting forth the facts supporting the application and, if the application is for conditional release, a plan for supervision and treatment of the individual.
  2. An individual who has been committed to a treatment facility under this chapter, or another person acting on the individual’s behalf, may apply to the court for modification of the terms of a commitment order or for an order of conditional release or discharge. If the application is being considered by the court at the time of the review of the order of commitment, the court shall require a report from the director or superintendent of the treatment facility.
  3. The court shall consider and dispose of an application under this section promptly. In a proceeding under this section, the applicant has the burden of proof by a preponderance of the evidence. The court shall enter an order in accordance with the following requirements:
    1. If the court finds that the individual committed is not mentally ill or defective or that there is not a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act, it shall order the individual discharged from further constraint under this chapter.
    2. If the court finds that the individual is mentally ill or defective, but that there is not a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage, it shall vacate the order committing the individual to a treatment facility. If the court finds that there is a substantial risk that the individual will commit, as a result of mental illness or defect, a nonviolent criminal act, it may order the individual to report to any treatment facility for noncustodial evaluation and treatment and to accept nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility.
    3. If the court finds that the individual is mentally ill or defective, but that the risk that the individual will commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage will be controlled adequately with supervision and treatment and that necessary supervision and treatment are available, it shall order the individual released subject to conditions it considers appropriate for the protection of society.
  4. In any proceeding for modification of an order of commitment to a treatment facility, if the individual has been represented by counsel and the application for modification of the order of commitment is denied after a plenary hearing, the court shall set a new date for periodic review of the status of the individual. The date set must be within one year after the date of the order.

Source: S.L. 1985, ch. 173, § 24.

Notes to Decisions

Modification of Terms.

The detainee may apply to the court for modification of the terms of the commitment order or for an order of conditional release or discharge, and the court must consider and dispose of that application “promptly.” State v. Nording, 485 N.W.2d 781, 1992 N.D. LEXIS 103 (N.D. 1992).

Collateral References.

Extended Commitment of One Committed to Institution as Consequence of Acquittal of Crime on Ground of Insanity. 52 A.L.R.6th 567.

12.1-04.1-25. Conditional release — Modification — Revocation — Discharge.

  1. In an order for conditional release of an individual, the court shall designate a treatment facility or a person to be responsible for supervision of the individual.
  2. As a condition of release, the court may require the individual released to report to any treatment facility for evaluation and treatment, require the individual to accept nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility, and impose other conditions reasonably necessary for protection of society.
  3. The person or the director or superintendent of a treatment facility responsible for supervision of an individual released shall furnish reports to the court, at intervals prescribed by the court, concerning the mental condition of the individual. Copies of reports submitted to the court must be furnished to the individual and to the prosecuting attorney.
  4. If there is reasonable cause to believe that the individual released presents an imminent threat to cause bodily injury to another, the person or the director or superintendent of the treatment facility responsible for supervision of the individual pursuant to an order of conditional release may take the individual into custody or request that the individual be taken into custody. An individual taken into custody under this subsection must be accorded an emergency hearing before the court not later than the next court day to determine whether the individual should be retained in custody pending a further order pursuant to subsection 5.
  5. Upon application by an individual conditionally released, by the director or superintendent of the treatment facility or person responsible for supervision of an individual pursuant to an order of conditional release, or by the prosecuting attorney, the court shall determine whether to continue, modify, or terminate the order. The court shall consider and dispose of an application promptly. In a proceeding under this section, the applicant has the burden of proof by a preponderance of the evidence. The court shall enter an order in accordance with the following requirements:
    1. If the court finds that the individual is not mentally ill or defective or that there is not a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act, it shall order that the individual be discharged from further constraint under this chapter.
    2. If the court finds that the individual is mentally ill or defective, but that there is not a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage, it may modify the conditions of release as appropriate for the protection of society.
    3. If the court finds that the individual is mentally ill or defective and that there is a substantial risk that the individual will commit, as a result of mental illness or defect, a criminal act of violence threatening another individual with bodily injury or inflicting property damage and that the individual is no longer a proper subject for conditional release, it shall order the individual committed to a treatment facility for custody and treatment. If the court finds that the individual is mentally ill or defective and that there is a substantial risk that the individual, as a result of mental illness or defect, will commit a nonviolent criminal act, it may order the individual to report to any treatment facility for noncustodial evaluation and treatment and to accept nonexperimental, generally accepted medical, psychiatric, or psychological treatment recommended by the treatment facility.

Source: S.L. 1985, ch. 173, § 25.

Collateral References.

Extended Commitment of One Committed to Institution as Consequence of Acquittal of Crime on Ground of Insanity. 52 A.L.R.6th 567.

Notes to Decisions

Construction.

Under N.D.C.C. § 12.1-04.1-25(5)(a), if the district court found there was not a substantial risk the individual would commit a crime as the result of mental illness, the individual had to be discharged. State v. Davis, 2016 ND 145, 882 N.W.2d 281, 2016 N.D. LEXIS 152 (N.D. 2016).

Plain language in N.D.C.C. § 12.1-04.1-25(5)(b) that it may modify the conditions of release as appropriate for the protection of society afforded the district court discretion to consider the circumstances and all relevant factors in determining whether to modify its order for conditional release. State v. Davis, 2016 ND 145, 882 N.W.2d 281, 2016 N.D. LEXIS 152 (N.D. 2016).

N.D.C.C. §§ 12.1-04.1-22, 12.1-04.1-24, and 12.1-04.1-25 require the discharge of an individual if the court finds the individual is not mentally ill or defective or that there is not a substantial risk, as a result of a mental illness or defect, that the individual will commit a criminal act. N.D.C.C. §§ 12.1-04.1-22(4)(a), 12.1-04.1-24(3)(a), 12.1-04.1-25(5)(a). All three sections also contemplate an individual committed may pose various levels of risk to society and grants the district court discretion to order the individual to varying levels of care, from commitment at a treatment facility, to supervision and treatment, or to treatment without supervision, depending on the risks found. N.D.C.C. §§ 12.1-04.1-22(4)(b)-(c), 12.1-04.1-24(3)(b)-(c), 12.1-04.1-25(5)(b)-(c). State v. Davis, 2016 ND 145, 882 N.W.2d 281, 2016 N.D. LEXIS 152 (N.D. 2016).

Discharge Denied.

District court did not err in finding that petitioner failed to prove by a preponderance of the evidence that he was entitled to discharge under N.D.C.C. § 12.1-04.1-25(5)(a) where it identified multiple examples of uncertainty pertaining to the risks associated with his mental illness. State v. Davis, 2016 ND 145, 882 N.W.2d 281, 2016 N.D. LEXIS 152 (N.D. 2016).

12.1-04.1-26. Procedures.

  1. An applicant for a court order under sections 12.1-04.1-20 through 12.1-04.1-25 shall deliver a copy of the application and any accompanying documents to the individual committed, the prosecuting attorney, the director or superintendent of the treatment facility to which the individual has been committed, or the person or the director or superintendent of a treatment facility responsible for supervision of an individual conditionally released. The North Dakota Rules of Civil Procedure, adapted by the court to the circumstances of a postverdict proceeding, apply to a proceeding under sections 12.1-04.1-20 through 12.1-04.1-25.
  2. In a proceeding under sections 12.1-04.1-20 through 12.1-04.1-25 for an initial order of disposition, in a proceeding for modification or termination of an order of commitment to a treatment facility initiated by the individual at the time of a review, or in a proceeding in which the status of the individual might be adversely affected, the individual has a right to counsel. If the court finds that the individual is indigent and that counsel is not otherwise available, counsel must be provided at public expense to represent the individual.
  3. In a proceeding under sections 12.1-04.1-20 through 12.1-04.1-25, the North Dakota Rules of Evidence do not apply. If relevant, evidence adduced in the criminal trial of the individual and information obtained by court-ordered examinations of the individual pursuant to section 12.1-04.1-04 or 12.1-04.1-22 are admissible.
  4. A final order of the court is appealable to the supreme court.

Source: S.L. 1985, ch. 173, § 26; 2007, ch. 119, § 2.

CHAPTER 12.1-05 Justification — Excuse — Affirmative Defenses

12.1-05-01. Justification.

  1. Except as otherwise expressly provided, justification or excuse under this chapter is a defense.
  2. If a person is justified or excused in using force against another, but he recklessly or negligently injures or creates a risk of injury to other persons, the justifications afforded by this chapter are unavailable in a prosecution for such recklessness or negligence.
  3. That conduct may be justified or excused within the meaning of this chapter does not abolish or impair any remedy for such conduct which is available in any civil action.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

In General.

This section provides that any justification or excuse in this chapter, 12.1-05, is a defense, and that a person who is otherwise justified or excused in using force against another is not justified in doing so if he is prosecuted for recklessness or negligence and he recklessly or negligently injures or creates a risk of injury to other persons. State v. Hass, 268 N.W.2d 456, 1978 N.D. LEXIS 253 (N.D. 1978).

Justification can be a defense in a criminal prosecution. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Abortion and Trespass.

The defense of necessity cannot be utilized when the harm sought to be avoided, abortion, remains a constitutionally protected activity and the harm incurred, trespass, is in violation of the law. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Adoption of New Federal Criminal Code.

This chapter is an almost complete adoption of Ch. 6 of the Proposed [New Federal Criminal] Code dealing with defenses involving justification and excuse. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Inapplicability of Claim of Necessity.

A claim of necessity cannot be used to justify a crime that simply interferes with another person’s right to lawful activity. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

No Individualized Conception of Necessity.

While the history of the legislative development of justification defenses in our state shows that this chapter “is not intended to preclude the judicial development of other justifications,” it is clear that our criminal code does not license the judicial extension of justification to any individualized conception of “necessity.” State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Prosecution for Recklessness.

Prosecution for “terrorizing” as defined by N.D.C.C. § 12.1-17-04 was a prosecution for recklessness, because N.D.C.C. § 12.1-17-04 does not specify the degree of culpability required and, therefore, the degree required is “willfully” under N.D.C.C. § 12.1-02-02, subsection (2), and because “willfully” includes “recklessly” under N.D.C.C. § 12.1-02-02, subsection (1)(e). State v. Hass, 268 N.W.2d 456, 1978 N.D. LEXIS 253 (N.D. 1978).

Collateral References.

Consent as defense to charge of criminal assault and battery, 58 A.L.R.3d 662.

Burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Criminal Law — Driving Under Suspension, 71 N.D. L. Rev. 841 (1995).

12.1-05-02. Execution of public duty.

  1. Conduct engaged in by a public servant in the course of the person’s official duties is justified when it is required or authorized by law.
  2. A person who has been directed by a public servant to assist that public servant is justified in using force to carry out the public servant’s direction, unless the action directed by the public servant is plainly unlawful.
  3. A person is justified in using force upon another to effect that person’s arrest or prevent that person’s escape when a public servant authorized to make the arrest or prevent the escape is not available if the other person has committed, in the presence of the actor, any crime which the actor is justified in using force to prevent, or if the other person has committed a felony involving force or violence.
  4. Conduct engaged in by an individual at the direction of a public servant, known by that individual to be a law enforcement officer, to assist in the investigation of a criminal offense is justified unless the individual knows or has a firm belief, unaccompanied by substantial doubt, that the conduct is not within the law enforcement officer’s official duties or authority. For purposes of this subsection, conduct “not within the law enforcement officer’s official duties or authority” is conduct in which the law enforcement officer alone could not lawfully engage in that officer’s official capacity. When practicable, permission must be obtained from a parent or guardian of a minor who is under the age of eighteen years and is neither married nor in the military service of the United States before the minor may engage in conduct, other than the providing of information, to assist in a criminal investigation under the direct supervision of a public servant.
  5. A member of the armed forces is justified in using deadly force when it reasonably appears to be necessary to prevent the loss, theft, destruction, sabotage, or unauthorized control of a nuclear weapon, critical nuclear component, or nuclear explosive device.

Source: S.L. 1973, ch. 116, § 5; 2001, ch. 130, § 1; 2021, ch. 105, § 1, effective March 24, 2021.

Notes to Decisions

Alcoholic Beverage Law Compliance Checks.

Although N.D.C.C. § 5-01-08 prohibits persons under 21 years of age from purchasing alcohol, attempting to purchase alcohol, and entering premises where alcoholic beverages are sold, law enforcement officials do not violate the law when conducting compliance checks because N.D.C.C. § 12.1-05-02(4) gives law enforcement officials the authority to use persons under 21 years of age for this purpose. City of Bismarck v. DePriest, 2006 ND 158, 717 N.W.2d 924, 2006 N.D. LEXIS 166 (N.D. 2006).

Collateral References.

Felony arrest: private person’s authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

12.1-05-03. Self-defense.

A person is justified in using force upon another person to defend himself against danger of imminent unlawful bodily injury, sexual assault, or detention by such other person, except that:

  1. A person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public servant under color of law, but excessive force may be resisted.
  2. A person is not justified in using force if:
    1. He intentionally provokes unlawful action by another person to cause bodily injury or death to such other person; or
    2. He has entered into a mutual combat with another person or is the initial aggressor unless he is resisting force which is clearly excessive in the circumstances. A person’s use of defensive force after he withdraws from an encounter and indicates to the other person that he has done so is justified if the latter nevertheless continues or menaces unlawful action.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Applicability.

This section applies to conduct, and is not limited to specified offenses; thus if a person is justified in engaging in specific conduct that would otherwise constitute disorderly conduct, self-defense is a defense. State v. Schumaier, 1999 ND 239, 603 N.W.2d 882, 1999 N.D. LEXIS 256 (N.D. 1999).

Where Defendant was convicted of injuring a highway, a trial court did not err in denying defendant’s instruction on the defense of excuse because the justifications found in N.D.C.C. §§ 12.1-05-03 and 12.1-05-06 and the definition of “force” in N.D.C.C. ch. 12.1-05 contemplated taking action against another person, rather than against property. State v. Zajac, 2009 ND 119, 767 N.W.2d 825, 2009 N.D. LEXIS 133 (N.D. 2009).

Evidence.

The trial court erred in ruling that defendant’s proffered testimony of deceased’s statement, that the victim contemplated arming himself and coming after the defendant, was hearsay; such evidence was not offered to prove the truth of the matter but to show the defendant’s state of mind. State v. Hart, 1997 ND 188, 569 N.W.2d 451, 1997 N.D. LEXIS 229 (N.D. 1997).

District court erred in excluding evidence about threatening statements the victim allegedly made to defendant, and the error was not harmless because the exclusion of the evidence harmed defendant’s ability to present his defense and affected his substantial rights; defendant alleged he was acting in self-defense, and evidence about his state of mind was relevant and material to his defense State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

“Excessive Force” as a Defense.

Resistance to “excessive force” by an officer acting under color of law is a factual defense to any criminal charge arising from the resistance. State v. Ritter, 472 N.W.2d 444, 1991 N.D. LEXIS 121 (N.D. 1991).

Court implicitly rejected defendant’s assertion that his resistance to arrest was justified by excessive force under N.D.C.C. § 12.1-05-03(1) where the court properly considered whether excessive force was used as a question of fact and by finding defendant guilty of preventing arrest or discharge of other duties, in violation of N.D.C.C. § 12.1-08-02(1); the court was not required to make a specific finding of fact on the issue of excessive force. State v. Brossart, 2007 ND 39, 729 N.W.2d 137, 2007 N.D. LEXIS 40 (N.D. 2007).

Jury Instruction.

Where self-defense and defense of others were the defendant’s primary defenses to the simple assault charge, the trial court’s refusal to give the instructions constituted reversible error under N.D.R.Crim.P. 52(a). State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

The defendant was entitled to the instructions on self-defense and defense of another, although he refused to unequivocably admit striking the victim. State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

Trial court did not commit obvious error by not including a jury instruction on self-defense during defendant’s trial for disorderly conduct because, without a showing of physical action upon another person, the failure to instruct the jury on self-defense was not error, let alone obvious error. State v. Gresz, 2006 ND 135, 717 N.W.2d 583, 2006 N.D. LEXIS 138 (N.D. 2006).

Where a victim testified that she was injured only after attacking defendant, a self-defense instruction under N.D.C.C. § 12.1-05-03 should have been given, even if defendant was the initial aggressor when he pushed in a bathroom door; the force used by the victim had to be clearly excessive. The victim testified at trial that she followed defendant out of the bathroom and struck him in the head with a large metal rod. State v. Falconer, 2007 ND 89, 732 N.W.2d 703, 2007 N.D. LEXIS 84 (N.D. 2007).

District court erred in failing to provide defendant’s requested jury instructions on consent and self-defense because whether the victim consented to the fight and whether the injury inflicted by defendant was such as to jeopardize life or seriously impair health were questions for the jury, and the district court impermissibly evaluated video evidence of the incident when it stated the video spoke for itself and defendant could have just walked away. City of Jamestown v. Kastet, 2022 ND 40, 970 N.W.2d 187, 2022 N.D. LEXIS 41 (N.D. 2022).

Justification.
—Not Shown.

Victim’s prior assault of defendant and the victim’s previous “implied threat” with a handgun did not support defendant’s theory of self-defense where, at the time of the incident in which defendant shot the victim, defendant was not in danger of imminent unlawful bodily injury and he could have safely retreated without using the rifle. Sampson v. State, 506 N.W.2d 722, 1993 N.D. LEXIS 173 (N.D. 1993), overruled in part, Whiteman v. State, 2002 ND 77, 643 N.W.2d 704, 2002 N.D. LEXIS 91 (N.D. 2002).

Reasonableness of Belief That Use of Force Necessary.

Finder of fact is required to use a subjective standard and view circumstances attending an accused’s use of force from standpoint of accused, and not from standpoint of what a reasonably cautious person might or might not do or consider necessary to do under like circumstances, to determine if the circumstances are sufficient to create in accused’s mind an honest and reasonable belief that use of force was necessary to protect himself from imminent harm. State v. Leidholm, 334 N.W.2d 811, 1983 N.D. LEXIS 296 (N.D. 1983).

Evidence was sufficient to convict defendant of aggravated assault because, although he asserted that there was no attempt, intent, or readiness to inflict serious bodily injury, the jury was permitted to draw its own inferences regarding defendant’s intent in using the beer bottle as a weapon and whether striking the other individual’s face with it causing a serious cut was reasonable self-defense based on defendant’s injuries sustained in the fight. State v. Hirschkorn, 2020 ND 268, 952 N.W.2d 225, 2020 N.D. LEXIS 268 (N.D. 2020).

Requirement of “Excessive Force”.

Forceful resistance to an arrest “under color of law” is no longer legally justified unless “excessive force” is used by the officer. State v. Ritter, 472 N.W.2d 444, 1991 N.D. LEXIS 121 (N.D. 1991).

Resisting Unlawful Arrest.

Unlawful official conduct is not an absolute defense to a preventing-arrest charge, and the law permits a defendant to resist only “excessive force” used to effect an arrest. The question of the reasonableness of the defendant’s conduct in resisting an unlawful arrest is properly determined by the jury upon all of the facts. State v. Cox, 532 N.W.2d 384, 1995 N.D. LEXIS 103 (N.D. 1995).

Where defendant was convicted of preventing arrest and related offenses after the jury received instructions on self-defense, the verdict had to be interpreted as finding that the officers did not use excessive force and that defendant was not justified under N.D.C.C. {/n 12.1-05-03(1) in using force to resist the arrest. State v. Mathre, 2004 ND 149, 683 N.W.2d 918, 2004 N.D. LEXIS 277 (N.D. 2004).

DECISIONS UNDER PRIOR LAW

Good Faith Belief.

On a plea of self-defense the question whether a defendant was, or in good faith believed himself to be, in such imminent danger that he was justified in using force to protect himself and the further question of whether the force he used was greater than the circumstances of the case warranted were questions for the jury. State v. Graber, 77 N.D. 645, 44 N.W.2d 798, 1950 N.D. LEXIS 160 (N.D. 1950).

One charged with aggravated assault and battery was entitled to acquittal if the jury found that he was repelling an attacker and reasonably believed, at the time, that he was acting with no more force than necessary to prevent the attack. State v. Jacob, 222 N.W.2d 586, 1974 N.D. LEXIS 157 (N.D. 1974).

When Force Employed.

Acts could not be regarded as having been done in self-defense where the force was employed after the necessity therefor had ceased to exist. State v. Graber, 77 N.D. 645, 44 N.W.2d 798, 1950 N.D. LEXIS 160 (N.D. 1950).

Collateral References.

Instructions: duty of trial court to instruct on self-defense, in absence of request by accused, 56 A.L.R.2d 1170.

Admissibility of evidence of uncommunicated threats on issue of self-defense in prosecution for homicide, 98 A.L.R.2d 6.

Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 1 A.L.R.3d 571.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.

Felony arrest: private person’s authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

Business premises: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.

Burden of proof: modern status of rules as to burden and quantum of proof to show self-defense in homicide, 43 A.L.R.3d 221.

Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 A.L.R.3d 1000.

Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.

Standard for determination of reasonableness of criminal defendant’s belief, for purposes of self-defense claim, that physical force is necessary — modern cases, 73 A.L.R.4th 993.

Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 A.L.R.5th 497.

Admissibility of evidence in homicide case that victim was threatened by one other than defendant, 11 A.L.R.5th 831.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

Admissibility of evidence of battered child syndrome on issue of self-defense, 22 A.L.R.5th 787.

Admissibility of threats to defendant made by third parties to support claim of self-defense in criminal prosecution for assault or homicide, 55 A.L.R.5th 449.

What constitutes obstructing or resisting officer, in absence of actual force, 66 A.L.R.5th 397.

Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 A.L.R.5th 637.

Law Reviews.

Criminal Law — Self-Defense — Jury Instructions Given on Subjective Standard of Reasonableness in Self-Defense Do Not Require a Specific Instruction on Battered Woman Syndrome, 60 N.D. L. Rev. 45 (1984).

Defending battered women: Everything she says may be used against them, 68 N.D. L. Rev. 131 (1992).

12.1-05-04. Defense of others.

A person is justified in using force upon another person in order to defend anyone else if:

  1. The person defended would be justified in defending himself; and
  2. The person coming to the defense has not, by provocation or otherwise, forfeited the right of self-defense.

Source: S.L. 1973, ch. 116, § 5.

Cross-References.

Right to use necessary force for protection of relatives or members of household, see N.D.C.C. § 14-02-07.

Notes to Decisions

Jury Instruction.

Where self-defense and defense of others were the defendant’s primary defenses to the simple assault charge, the trial court’s refusal to give the instructions constituted reversible error under N.D.R.Crim.P. 52(a). State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

The defendant was entitled to the instructions on self-defense and defense of another, although he refused to unequivocably admit striking the victim. State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

Collateral References.

Private person’s duty and liability for failure to protect another against criminal attack by third person, 10 A.L.R.3d 619.

Construction and application of statutes justifying the use of force to prevent the use of force against another, 71 A.L.R.4th 940.

Standard for determination of reasonableness of criminal defendant’s belief, for purposes of self-defense claim, that physical force is necessary — modern cases, 73 A.L.R.4th 993.

12.1-05-05. Use of force by persons with parental, custodial, or similar responsibilities.

The use of force upon an individual is justified under any of the following circumstances:

  1. Except as provided in section 15.1-19-02, a parent, guardian, or other person responsible for the care and supervision of a minor, or other person responsible for the care and supervision of a minor for a special purpose, or person acting at the direction of any of the foregoing persons, may use reasonable force upon the minor for the purpose of safeguarding or promoting the minor’s welfare, including prevention and punishment of the minor’s misconduct, and the maintenance of proper discipline.
    1. If the person using reasonable force for the prevention and punishment of the minor’s misconduct or the maintenance of proper discipline is a paid caregiver, that person must be acting under written direction of the parent or guardian of the minor.
    2. The reasonable force may be used for this purpose, regardless of whether the reasonable force is “necessary” as required by subsection 1 of section 12.1-05-07.
    3. The reasonable force used may not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.
  2. A guardian or other person responsible for the care and supervision of an individual who is incompetent, or a person acting at the direction of the guardian or responsible person, may use reasonable force upon the individual for the purpose of safeguarding or promoting the welfare of the individual, including the prevention of the individual’s misconduct or, if the individual is in a hospital or other institution for care and custody, for the purpose of maintaining reasonable discipline in the institution.
    1. The force may be used for these purposes, regardless of whether the force is “necessary” as required by subsection 1 of section 12.1-05-07.
    2. The force used may not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.
  3. A person responsible for the maintenance of order in a vehicle, train, vessel, aircraft, or other carrier, or in a place in which others are assembled, or a person acting at the responsible person’s direction, may use force to maintain order.
  4. A duly licensed physician, or a person acting at a duly licensed physician’s direction, may use force in order to administer a recognized form of treatment to promote the physical or mental health of a patient if the treatment is administered:
    1. In an emergency;
    2. With the consent of the patient, or, if the patient is a minor or an individual who is incompetent, with the consent of the patient’s parent, guardian, or other person entrusted with the patient’s care and supervision; or
    3. By order of a court of competent jurisdiction.
  5. A person may use force upon an individual about to commit suicide or suffer serious bodily injury, to prevent the death or serious bodily injury of that individual.

Source: S.L. 1973, ch. 116, § 5; 1989, ch. 162, § 1; 1999, ch. 164, § 2; 2019, ch. 106, § 1, effective August 1, 2019.

Notes to Decisions

Constitutionality.

Under N.D.C.C. § 12.1-05-05(1), reasonable force used to safeguard or promote the child’s welfare, including punishment and discipline, may not provide the basis for a finding that a child was an abused child under N.D.C.C. § 50-25.1-02(3); the father failed to clearly demonstrate that the child abuse statutes were unconstitutionally overbroad. Simons v. State, 2011 ND 190, 803 N.W.2d 587, 2011 N.D. LEXIS 186 (N.D. 2011).

Abused Child.

Reasoning mind reasonably could determine the Department of Human Services’ finding that the force the father used was not reasonable force was proven by the weight of the evidence from the entire record; his use of force was therefore not justified under N.D.C.C. § 12.1-05-05(1) and did not preclude a finding that the child was an abused child under N.D.C.C. § 50-25.1-02(3). Simons v. State, 2011 ND 190, 803 N.W.2d 587, 2011 N.D. LEXIS 186 (N.D. 2011).

Child Custody.

The legislature did not intend the reasonable force used by parents for the purposes listed in subsection (1) to constitute domestic violence for purposes of N.D.C.C. § 14-09-06.2(1)(j), if the amount of force used was not within the degree of domestic violence required to invoke the presumption against child custody in that section. Dinius v. Dinius, 1997 ND 115, 564 N.W.2d 300, 1997 N.D. LEXIS 105 (N.D. 1997).

Domestic Violence Not Found.

Trial court did not err in finding that a mother had not committed domestic violence by spanking and slapping her child across the face; the child protection service assessment report indicated neither parent abused or engaged in any inappropriate behavior with the child and no services were recommended and the mother stated that sometimes the child was spanked or tapped lightly on the face for discipline. Thompson v. Olson, 2006 ND 54, 711 N.W.2d 226, 2006 N.D. LEXIS 71 (N.D. 2006).

District court did not err in denying a father’s motion to modify custody because a single altercation in which the mother took the son’s cell phone away from him in disciplining him was an isolated incident that did not amount to domestic violence sufficient to constitute a material change of circumstances under N.D.C.C. § 14-09-06.6(6). Under N.D.C.C. § 12.1-05-05(1), a parent could use reasonable force upon a minor for the purpose of safeguarding or promoting the minor’s welfare, including prevention and punishment of the minor’s misconduct and the maintenance of proper discipline. Lechler v. Lechler, 2010 ND 158, 786 N.W.2d 733, 2010 N.D. LEXIS 156 (N.D. 2010).

Jury Instructions.

In a child abuse or neglect case under N.D.C.C. § 14-09-22(1)(a), defendant’s requested jury instruction incorrectly stated that the use of force by a parent or person responsible for caring for a minor was prima facie reasonable as long as it did not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation because the last sentence of N.D.C.C. § 12.1-05-05(1) was not an exclusive listing and other degrees of force could be found to constitute unreasonable force. State v. Pavlicek, 2012 ND 154, 819 N.W.2d 521, 2012 N.D. LEXIS 159 (N.D. 2012).

Teachers.

This section establishes a defense available to a teacher in a criminal action brought against teacher for use of physical force against a student; it does not grant teacher authority to use physical force in disciplining a student in disregard of a school board policy rule on use or nonuse of physical force in disciplining students. Lithun v. Grand Forks Pub. Sch. Dist., 307 N.W.2d 545, 1981 N.D. LEXIS 321 (N.D. 1981).

DECISIONS UNDER PRIOR LAW

Legislative Intent.

Former section demonstrated that legislature intended to make parents immune from liability resulting from their tortious acts only under circumstances set forth therein. Nuelle v. Wells, 154 N.W.2d 364, 1967 N.D. LEXIS 109 (N.D. 1967).

Collateral References.

Excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, criminal liability for, 89 A.L.R.2d 396.

Public school teacher’s self-defense, or defense of another, as justification, in dismissal proceedings, for use or threat of use of force against student, 37 A.L.R.4th 842.

12.1-05-06. Use of force in defense of premises and property.

Force is justified if it is used to prevent or terminate an unlawful entry or other trespass in or upon premises, or to prevent an unlawful carrying away or damaging of property.

Source: S.L. 1973, ch. 116, § 5; 2021, ch. 106, § 1, effective August 1, 2021.

Notes to Decisions

Jury Instructions.

In a prosecution for terrorizing, the district court erred by failing to instruct the jury on defense of premises under N.D.C.C. § 12.1-05-06; defendant’s use of force to terminate a trespass could arguably have been justified if, before his threatening actions, he told the operators to leave his home, but instead they refused and remained, demanding further identification. This action arguably created a trespass in defendant’s home, and following the victims’ failure to leave as requested, defendant could possibly have been justified in his use of force to terminate this alleged trespass. State v. Starke, 2011 ND 147, 800 N.W.2d 705, 2011 N.D. LEXIS 147 (N.D. 2011).

District court did not err in failing to give defendant’s requested jury instruction on defense of premises and property because the victim was a cotenant, and there was no evidence he unlawfully entered the apartment or was trespassing; simply because an individual may have an expectation of privacy in a place for purposes of the Fourth Amendment, does not mean the individual has the ability to exclude all others from that place or that another’s entry into that place constitutes trespassing. State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

Collateral References.

Extent of premises which may be defended without retreat under right of self-defense, 52 A.L.R.2d 1458.

Civil liability for use of firearm in defense of habitation or property, 100 A.L.R.2d 1021.

Business premises: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.

Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.

12.1-05-07. Limits on the use of force — Excessive force — Deadly force.

  1. An individual is not justified in using more force than is necessary and appropriate under the circumstances.
  2. Deadly force is justified in the following instances:
    1. When it is expressly authorized by law or occurs in the lawful conduct of war.
    2. When used in lawful self-defense, or in lawful defense of others, if such force is necessary to protect the actor or anyone else against death, serious bodily injury, or the commission of a felony involving violence. The use of deadly force is not justified if it can be avoided, with safety to the actor and others, by retreat or other conduct involving minimal interference with the freedom of the individual menaced. An individual seeking to protect another individual must, before using deadly force, try to cause the other individual to retreat, or otherwise comply with the requirements of this provision, if safety can be obtained thereby. However, the duty to retreat or avoid force does not apply under the following circumstances:
      1. A public servant justified in using force in the performance of the public servant’s duties or an individual justified in using force in assisting the public servant need not desist from the public servant’s or individual’s efforts because of resistance or threatened resistance by or on behalf of the other individual against whom the public servant’s or individual’s action is directed; and
      2. An individual who is not engaged in an unlawful activity that gives rise to the need for the use of deadly force and has not provoked the individual against whom the deadly force is used, unless the circumstances in subdivision b of subsection 2 of section 12.1-05-03 apply, is not required to retreat within or from any place the individual otherwise is legally allowed to be.
    3. When used by an individual in possession or control of a dwelling, place of work, motor vehicle, or an occupied motor home or travel trailer as defined in section 39-01-01, or by an individual who is licensed or privileged to be there, if the force is necessary to prevent commission of arson, burglary, robbery, or a felony involving violence upon or in the dwelling, place of work, motor vehicle, or occupied motor home or travel trailer, and the use of force other than deadly force for these purposes would expose any individual to substantial danger of serious bodily injury.
    4. When used by a public servant authorized to effect arrests or prevent escapes, if the force is necessary to effect an arrest or to prevent the escape from custody of an individual who has committed or attempted to commit a felony involving violence, or is attempting to escape by the use of a deadly weapon, or has otherwise indicated that the individual is likely to endanger human life or to inflict serious bodily injury unless apprehended without delay.
    5. When used by a guard or other public servant, if the force is necessary to prevent the escape of a prisoner from a detention facility, unless the guard or public servant knows that the prisoner is not an individual as described in subdivision d. A detention facility is any place used for the confinement, pursuant to a court order, of an individual charged with or convicted of an offense, charged with being or adjudicated a juvenile delinquent, held for extradition, or otherwise confined under court order.
    6. When used by a duly licensed physician, or an individual acting at the physician’s direction, if the force is necessary to administer a recognized form of treatment to promote the physical or mental health of a patient and if the treatment is administered in an emergency; with the consent of the patient, or, if the patient is a minor or an incompetent person, with the consent of the patient’s parent, guardian, or other person entrusted with the patient’s care and supervision; or by order of a court of competent jurisdiction.
    7. When used by an individual who is directed or authorized by a public servant, and who does not know that the public servant is not authorized to use deadly force under the circumstances.

Source: S.L. 1973, ch. 116, § 5; 2007, ch. 120, § 1; 2021, ch. 106, § 2, effective August 1, 2021.

Cross-References.

Right to use necessary force for protection of relatives or members of household, see N.D.C.C. § 14-02-07.

Notes to Decisions

Duty to Retreat.

Subject to exception involving a person’s dwelling or place of work, use of deadly force by an actor in self-defense is not justified if a retreat from assailant can be accomplished with safety to actor and others; whether or not actor could not retreat safely is determined by considering whether or not actor honestly and reasonably believed that he could not retreat from his attacker with safety. State v. Leidholm, 334 N.W.2d 811, 1983 N.D. LEXIS 296 (N.D. 1983).

Justification.
—Not Shown.

Victim’s prior assault of defendant and the victim’s previous “implied threat” with a handgun did not support defendant’s theory of self-defense where, at the time of the incident in which defendant shot the victim, defendant was not in danger of imminent unlawful bodily injury and he could have safely retreated without using the rifle. Sampson v. State, 506 N.W.2d 722, 1993 N.D. LEXIS 173 (N.D. 1993), overruled in part, Whiteman v. State, 2002 ND 77, 643 N.W.2d 704, 2002 N.D. LEXIS 91 (N.D. 2002).

DECISIONS UNDER PRIOR LAW

Burden on Defendant.

Circumstances had to be disclosed by the evidence tending to show justification or excuse, and where the state’s case did not disclose such circumstances, the burden devolved upon the defendant to disclose the same. State v. Hazlett, 16 N.D. 426, 113 N.W. 374, 1907 N.D. LEXIS 58 (N.D. 1907).

If the proof on the part of the prosecution tended to show that the defendant’s act was excusable or justifiable, there was no burden cast upon the defendant of proving anything. State v. Hazlett, 16 N.D. 426, 113 N.W. 374, 1907 N.D. LEXIS 58 (N.D. 1907).

The burden never shifted to the defendant to establish by a preponderance of the evidence either facts and circumstances in mitigation or excuse, or facts establishing an affirmative defense. State v. Hazlett, 16 N.D. 426, 113 N.W. 374, 1907 N.D. LEXIS 58 (N.D. 1907).

Duty of State.

Where defendant was charged with assault and battery with a deadly weapon with intent to kill, it was the duty of the state to prove that there was no justification or excuse in law. State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Instruction on Excuse or Mitigation.

If the evidence was not before the court on appeal, it would assume that the omission to instruct as to excuses or mitigation of the offense was error. State v. Woods, 24 N.D. 156, 139 N.W. 321, 1912 N.D. LEXIS 21 (N.D. 1912).

Justification.

Homicide was not justified unless there existed actual or apparent danger of loss of life or great bodily harm. State v. Swift, 53 N.D. 916, 208 N.W. 388, 1926 N.D. LEXIS 36 (N.D. 1926).

Liability for Damages.

United States was liable for damages arising out of loss of eye by boy, fifteen years of age, while hunting, by negligence in discharge of a “coyote getter”, carrying a cyanide pellet, which had been installed without caution signs on private land by mammal control agent of federal government at request of landowner. Fritz v. United States, 216 F. Supp. 156, 1963 U.S. Dist. LEXIS 6284 (D.N.D. 1963).

Overt Act.

Defendant claiming self-defense had to show that deceased, at or before the start of the trouble, on the day the homicide was committed, did some overt act which indicated a present purpose on the part of the deceased to do immediate and great bodily harm to the defendant. State v. Lehman, 44 N.D. 572, 175 N.W. 736, 1919 N.D. LEXIS 223 (N.D. 1919).

Recapture.

The arrest and return of an escapee was not an arrest for the crime of escape, but a recapture under the direction of the warden for purposes of former statute allowing pursuer to break into a dwelling to retake an escaped prisoner. State v. Brodell, 220 N.W.2d 848, 1974 N.D. LEXIS 209 (N.D. 1974).

Retreat.

Where defendant charged with murder had means of retreat and could have left the scene of the conflict, thus avoiding further difficulty at the time, the right of self-defense terminated at that point. State v. Lehman, 44 N.D. 572, 175 N.W. 736, 1919 N.D. LEXIS 223 (N.D. 1919).

Collateral References.

Extent of premises which may be defended without retreat under right of self-defense, 52 A.L.R.2d 1458.

Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 1 A.L.R.3d 571.

Felony arrest: private person’s authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

Business premises: duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.

Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 A.L.R.3d 1000.

Construction and application of statutes justifying the use of force to prevent the use of force against another, 71 A.L.R.4th 940.

Standard for determination of reasonableness of criminal defendant’s belief, for purposes of self-defense claim, that physical force is necessary — modern cases, 73 A.L.R.4th 993.

Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 A.L.R.5th 637.

12.1-05-07.1. Use of deadly force — Presumption of fear of death or serious bodily injury.

  1. An individual is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to that individual or another when using deadly force if:
    1. The individual against whom the deadly force was used was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered and remains within a dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01, or if the individual had removed or was attempting to remove another against that individual’s will from the dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01; and
    2. The individual who uses deadly force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
  2. The presumption in subsection 1 may be rebutted by proof beyond a reasonable doubt that the individual who used the deadly force did not have a reasonable fear of imminent peril of death or serious bodily injury to that individual or another.
  3. The presumption in subsection 1 does not apply if the court finds that any of the following have occurred:
    1. The individual against whom the deadly force is used has the right to be in or is a lawful resident of the dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01, including an owner, lessee, or titleholder, and there is not a temporary or permanent domestic violence protection order or any other order of no contact against that individual;
    2. The individual removed or sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the individual against whom the deadly force is used;
    3. The individual who uses deadly force is engaged in the commission of a crime or is using the dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01 to further the commission of a crime; or
    4. The individual against whom the deadly force is used is a law enforcement officer who enters or attempts to enter a dwelling, place of work, or occupied motor home or travel trailer as defined in section 39-01-01 in the performance of official duties and the officer provided identification, if required, in accordance with any applicable law or warrant from a court, or if the individual using force knew or reasonably should have known that the individual entering or attempting to enter was a law enforcement officer.

Source: S.L. 2007, ch. 120, § 2.

12.1-05-07.2. Immunity from civil liability for justifiable use of force.

  1. An individual who uses force as permitted under this chapter is immune from civil liability for the use of the force to the individual against whom force was used or to that individual’s estate unless that individual is a law enforcement officer who was acting in the performance of official duties and the officer provided identification, if required, in accordance with any applicable law or warrant from a court, or if the individual using force knew or reasonably should have known that the individual was a law enforcement officer.
  2. The court shall award loss of income, reasonable attorney’s fees, court costs, and disbursements incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from civil liability as provided in subsection 1.

Source: S.L. 2007, ch. 120, § 3; 2021, ch. 106, § 3, effective August 1, 2021.

12.1-05-08. Excuse.

A person’s conduct is excused if he believes that the facts are such that his conduct is necessary and appropriate for any of the purposes which would establish a justification or excuse under this chapter, even though his belief is mistaken. However, if his belief is negligently or recklessly held, it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability. Excuse under this section is a defense or affirmative defense according to which type of defense would be established had the facts been as the person believed them to be.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Applicability.

Where defendant was convicted of injuring a highway, a trial court did not err in denying defendant’s instruction on the defense of excuse because the justifications found in N.D.C.C. §§ 12.1-05-03 and 12.1-05-06 and the definition of “force” in N.D.C.C. ch. 12.1-05 contemplated taking action against another person, rather than against property. State v. Zajac, 2009 ND 119, 767 N.W.2d 825, 2009 N.D. LEXIS 133 (N.D. 2009).

Burden of Proof.

Because mistake of law is an affirmative defense, the state had no burden to “negate” the defense beyond a reasonable doubt; rather, defendants had the burden of proving the affirmative defense by a preponderance of the evidence. State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Inapplicability of Excuse Defense.

Because the offense of driving under revocation was committed prior to any police involvement, the excuse defense was inapplicable and the trial court did not err in refusing to instruct the jury on excuse. City of Mandan v. Willman, 439 N.W.2d 92, 1989 N.D. LEXIS 75 (N.D. 1989).

Where defendant felt compelled to drive due to instructions from the police, and defendant then drove while under suspension, the affirmative defense of compulsion did not apply because defendant had a reasonable opportunity to pursue other alternatives. City of Bismarck v. Lembke, 540 N.W.2d 155, 1995 N.D. LEXIS 218 (N.D. 1995).

Jury Instruction.

A defendant may be entitled to an excuse instruction if there is evidence presented at trial that the defendant has a reasonable but mistaken belief that any of the statutory grounds for justification in this chapter are present. State v. Ronne, 458 N.W.2d 294, 1990 N.D. LEXIS 144 (N.D. 1990).

Defendant did not claim his conduct was necessary and appropriate for any purpose which would establish a justification or excuse recognized under N.D.C.C. § 12.1-05-08, and moreover, defendant did not have to hunt until he had replacement tags or he could have tagged the deer immediately using the gratis tag he had in his possession; there was no evidence that defendant’s failure to immediately tag the deer was necessary or appropriate, and the evidence did not support an excuse instruction, and the district court did not err in refusing to give the requested jury instruction. State v. Ness, 2009 ND 182, 774 N.W.2d 254, 2009 N.D. LEXIS 192 (N.D. 2009).

Trial court did not err in refusing to give defendant’s requested jury instruction on excuse patterned after N.D.C.C. § 12.1-05-08 and a criminal jury instruction in a case where defendant was charged with and eventually convicted of violating an order prohibiting contact with a certain woman, even if that contact was consensual. The evidence presented at defendant’s trial did not show that defendant’s contact with the woman in violation of the order could be excused, as it was neither necessary nor justified. State v. Zottnick, 2011 ND 84, 796 N.W.2d 666, 2011 N.D. LEXIS 90 (N.D. 2011).

Necessary and Appropriate Conduct.

Under this section, if the circumstances are such that a person’s conduct is necessary and appropriate for any purpose which would establish a justification or excuse recognized in N.D.C.C. ch. 12.1-05, then that person’s conduct may be excused. State v. Nygaard, 447 N.W.2d 267, 1989 N.D. LEXIS 197 (N.D. 1989).

Reasonableness of Belief.
—In General.

This section limits the excuse defense to a mistaken belief that the facts are such that an actor’s conduct is necessary for any of the purposes which would establish a justification or excuse under this chapter, and in determining whether or not the actor’s mistaken belief was reasonable, a subjective standard of reasonableness applies. State v. Ronne, 458 N.W.2d 294, 1990 N.D. LEXIS 144 (N.D. 1990).

An unreasonably held belief precludes the affirmative defense of excuse for a strict liability offense. City of Bismarck v. Lembke, 540 N.W.2d 155, 1995 N.D. LEXIS 218 (N.D. 1995).

—Negligent or Reckless Belief.

Under this section, if the belief is negligently or recklessly held, it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability. As N.D.C.C. § 39-08-07 is a strict liability offense, negligence or recklessness is more than sufficient to establish culpability. Thus, driver who was at least negligent in not stopping to determine whether she had in fact struck another vehicle was not entitled to the defense of excuse based on lack of knowledge. State v. Nygaard, 447 N.W.2d 267, 1989 N.D. LEXIS 197 (N.D. 1989).

—That Use of Force Necessary.

Finder of fact is required to use a subjective standard and view circumstances attending an accused’s use of force from standpoint of accused, and not from standpoint of what a reasonably cautious person might or might not do or consider necessary to do under like circumstances, to determine if circumstances are sufficient to create in accused’s mind an honest and reasonable belief that use of force was necessary to protect himself from imminent harm. State v. Leidholm, 334 N.W.2d 811, 1983 N.D. LEXIS 296 (N.D. 1983).

Collateral References.

Druggist, criminal responsibility for death or injury in consequence of mistake, 55 A.L.R.2d 714.

Law Reviews.

Criminal Law — Self-Defense — Jury Instructions Given on Subjective Standard of Reasonableness in Self-Defense Do Not Require a Specific Instruction on Battered Woman Syndrome, 60 N.D. L. Rev. 45 (1984).

12.1-05-09. Mistake of law.

Except as otherwise expressly provided, a person’s good faith belief that conduct does not constitute a crime is an affirmative defense if he acted in reasonable reliance upon a statement of the law contained in:

  1. A statute or other enactment.
  2. A judicial decision, opinion, order, or judgment.
  3. An administrative order or grant of permission.
  4. An official interpretation of the public servant or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the crime.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Applicability.

The “mistake of law” defense is ordinarily not applicable when the governing statute does not contain a culpability requirement. State v. Eldred, 1997 ND 112, 564 N.W.2d 283, 1997 N.D. LEXIS 110 (N.D. 1997).

Defendant was properly prohibited from arguing a mistake of law defense under N.D.C.C. § 12.1-05-09 because his offense of possession of a firearm by a felon under N.D.C.C. § 62.1-02-01(2) was a strict liability offense. Defendant’s prior sentence for issuing a check without sufficient funds was not illegal because the district court only addressed the conditions of probation under N.D.C.C. § 12.1-32-07 and did not address whether defendant could possess or own a firearm after probation. N.D.C.C. § 62.1-02-01 explicitly prohibited defendant from possessing firearms after he had been convicted of a felony reduced to a misdemeanor under N.D.C.C.§ 12.1-32-02(9) and defendant was presumed to know the law and could not claim that the prohibition did not apply to him. State v. Buchholz, 2006 ND 227, 723 N.W.2d 534, 2006 N.D. LEXIS 232 (N.D. 2006).

Driving While License Suspended.

As a matter of law, defense of excuse based upon mistake of law is not applicable to prosecutions for driving while license suspended under N.D.C.C. § 39-06-42, a strict liability offense for which proof of culpability is not required. State v. Fridley, 335 N.W.2d 785, 1983 N.D. LEXIS 305 (N.D. 1983).

Mistake of law defense was not applicable to the strict liability offense of driving under suspension, where driver inquired about the status of his license, was correctly advised his license was not presently suspended, but was not informed that a notice of opportunity of hearing of proposed license suspension had been mailed to his last known address. State v. Egan, 1999 ND 59, 591 N.W.2d 150, 1999 N.D. LEXIS 64 (N.D. 1999).

Federal Criminal Code.

Title 12.1 is modeled after the proposed Federal Criminal Code, and in particular this section is identical to § 609 of the Final Report of the National Commission on Reform of Federal Criminal Laws. Because North Dakota’s statute is derived from the proposed Federal Criminal Code, the court may look to the draftsmen’s official commentaries for insight into the meaning and application of the statute. State v. Lang, 378 N.W.2d 205, 1985 N.D. LEXIS 429 (N.D. 1985).

Legal Brief.

A legal brief is not a document listed in this section upon which defendant could have relied to justify or excuse his conduct. State v. Lang, 378 N.W.2d 205, 1985 N.D. LEXIS 429 (N.D. 1985).

Self-Selected Beliefs.

Self-selected beliefs do not satisfy the requirements necessary to assert a mistake of law as a justification or excuse for conduct. State v. Lang, 378 N.W.2d 205, 1985 N.D. LEXIS 429 (N.D. 1985).

In a case involving a failure to register as a sex offender, a trial court did not commit an obvious error by failing to instruct a jury on the affirmative defense of mistake of law under N.D.C.C. § 12.1-05-09 because defendant did not offer any credible evidence to show that he took steps toward discovering if he had to register a change in employment. Instead, defendant relied on his self-selected belief that he did not need to register such change and that no one told him any differently. State v. Johnson, 2009 ND 76, 764 N.W.2d 696, 2009 N.D. LEXIS 77 (N.D. 2009).

Statement by Official.

Defendant who asserts affirmative defense of mistake of law based on a statement by an official must show reliance on a statement given by an official and that this reliance was reasonable. State v. Patten, 353 N.W.2d 30, 1984 N.D. LEXIS 331 (N.D. 1984).

Collateral References.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

12.1-05-10. Duress.

  1. In a prosecution for any offense, it is an affirmative defense that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or to another. In a prosecution for an offense which does not constitute a felony, it is an affirmative defense that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force. Compulsion within the meaning of this section exists only if the force, threat, or circumstances are such as would render a person of reasonable firmness incapable of resisting the pressure.
  2. The defense defined in this section is not available to a person who, by voluntarily entering into a criminal enterprise, or otherwise, willfully placed himself in a situation in which it was foreseeable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Driving Under Suspension.

An affirmative defense under this section is available for driving under suspension when the compulsion is from life-threatening forces of nature. State v. Rasmussen, 524 N.W.2d 843, 1994 N.D. LEXIS 256 (N.D. 1994).

Where defendant felt compelled to drive due to instructions from the police, and defendant then drove while under suspension, the affirmative defense of compulsion did not apply because defendant had a reasonable opportunity to pursue other alternatives. City of Bismarck v. Lembke, 540 N.W.2d 155, 1995 N.D. LEXIS 218 (N.D. 1995).

Evidence.

In a criminal contempt case arising from a visitation dispute, defendant was not entitled to jury instructions on the affirmative defenses of duress and entrapment because there was insufficient evidence to support the instructions; defendant conceded a lack of evidence to support an entrapment defense, and he did not present evidence of threats or assaults to support a duress defense under N.D.C.C. § 12.1-05-10(1). State v. Stockert, 2004 ND 146, 684 N.W.2d 605, 2004 N.D. LEXIS 276 (N.D. 2004).

DECISIONS UNDER PRIOR LAW

Financial Circumstances.

The duress which, under former N.D.C.C. § 12-05-04, excused acts otherwise criminal, was that such as would induce a well-founded fear of immediate great bodily harm or death; defendant in a robbery prosecution was not excused by the “duress” of his financial circumstances, which made him need money to provide his family with food and shelter. State v. Gann, 244 N.W.2d 746, 1976 N.D. LEXIS 124 (N.D. 1976).

Collateral References.

Defense to criminal prosecution, coercion, compulsion, or duress as, 40 A.L.R.2d 908.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 A.L.R.4th 481.

Coercion, compulsion, or duress as defense to charge of kidnapping, 69 A.L.R.4th 1005.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

12.1-05-11. Entrapment.

  1. It is an affirmative defense that the defendant was entrapped into committing the offense.
  2. A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
  3. In this section “law enforcement agent” includes personnel of federal and local law enforcement agencies as well as state agencies, and any person cooperating with such an agency.

Source: S.L. 1973, ch. 116, § 5; 1993, ch. 117, § 1.

Cross-References.

Criminal solicitation, see N.D.C.C. § 12.1-06-03.

Notes to Decisions

Burden of Proof.

Defendant has the burden to prove the defense of entrapment by a preponderance of the evidence, and this requirement does not violate defendant’s right to due process. State v. Pfister, 264 N.W.2d 694, 1978 N.D. LEXIS 246 (N.D. 1978); State v. Hoffman, 291 N.W.2d 430, 1980 N.D. LEXIS 217 (N.D. 1980).

The affirmative defense of entrapment requires the defendant to prove, by a preponderance of evidence, that the law enforcement agent induced the commission of a crime and the method of inducement was likely to cause normally law-abiding persons to commit the offense. City of Mandan v. Willman, 439 N.W.2d 92, 1989 N.D. LEXIS 75 (N.D. 1989).

The defendant has the burden of proving, by a preponderance of evidence, the affirmative defense of entrapment. City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

Delivery of Drugs.

Mere fact than an acquaintance of defendant was used to persuade defendant to sell marijuana to undercover police officer did not establish entrapment. State v. Weisz, 356 N.W.2d 462, 1984 N.D. LEXIS 399 (N.D. 1984).

Where a drug dealer delivered marijuana to the defendants’ home at the request of an undercover agent, but the drug dealer was not a law enforcement agent, the facts did not establish entrapment as a matter of law. State v. Nehring, 509 N.W.2d 42, 1993 N.D. LEXIS 218 (N.D. 1993).

Elements of Entrapment Defense.

In order to fashion an entrapment defense, defendant has burden to establish by a preponderance of evidence that law enforcement agent induced commisson of crime and that method of inducement was likely to cause normal law-abiding persons to commit offense. State v. Weisz, 356 N.W.2d 462, 1984 N.D. LEXIS 399 (N.D. 1984).

Entrapment Defense Unavailable.

Defendant who was charged with disorderly conduct after using “fighting words” to officers who came to his house after he reported that his car had been vandalized was not entitled to an instruction on entrapment on the grounds that the police knew that he was in an emotional state, but were not responsive to his inquiries, and thus provoked him into a higher state of agitation. City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

Evidence Insufficient.

Where there was no dispute that defendant drove the pickup in the parking lot, or that the police officer observed defendant driving in the parking lot, this occurring prior to any police involvement, the trial court did not err in determining, as a matter of law, there was no entrapment. City of Mandan v. Willman, 439 N.W.2d 92, 1989 N.D. LEXIS 75 (N.D. 1989).

Evidence that defendant presented was not sufficient to establish N.D.C.C. § 12.1-05-11 entrapment as an affirmative defense to the charge against defendant of criminal attempt to possess methamphetamine, and, thus, that conviction had to stand. Defendant had the burden of proof of establishing that defense, by a preponderance of the evidence as required by N.D.C.C. § 12.1-01-03, and did not do so because the evidence that police offered defendant a good price in order to induce defendant to buy the methamphetamine and arranged for defendant to purchase methamphetamine despite knowing that defendant was a drug addict was not enough to show that police engaged in the necessary “outrageous conduct” that would cause a person who was not ready to commit the crime to commit it. State v. Schmidt, 2011 ND 238, 807 N.W.2d 593, 2011 N.D. LEXIS 233 (N.D. 2011).

Defendant failed to prove entrapment in connection with the crime of patronizing a minor for commercial sexual activity; the online advertisement and text messages from the undercover officer posing as a young girl merely afforded defendant an opportunity to commit a crime and did not shock the court’s conscience. State v. Rai, 2019 ND 71, 924 N.W.2d 410, 2019 N.D. LEXIS 62 (N.D. 2019).

Evidence Sufficient.

On an appeal of a controlled substance conviction where there was conflicting evidence regarding the informant’s conduct, whether or not the informant initiated the sale of marijuana and whether or not the informant improperly coerced commission of the offense, in viewing the evidence in the light most favorable to the verdict, there was substantial evidence to uphold the jury verdict of guilty. State v. Rehling, 426 N.W.2d 6, 1988 N.D. LEXIS 166 (N.D. 1988).

Where the evidence showed that law enforcement officers, without authorization by law, provided the cocaine that formed the basis for defendant’s prosecution, defendant had established entrapment as a matter of law. State v. Kummer, 481 N.W.2d 437, 1992 N.D. LEXIS 38 (N.D. 1992).

Instructions.

Use of this section’s phrase “normally law-abiding persons” in a court instruction on the defense of entrapment in a narcotics case is proper and not confusing to the jury, and an instruction that would omit such phrase might be erroneous. State v. Folk, 278 N.W.2d 410, 1979 N.D. LEXIS 187 (N.D. 1979).

Although there was no dispute that an agent assisting authorities was cooperating with law enforcement officials, the jury need not have been instructed that the agent was a “law enforcement agent” as a matter of law. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Jury Issue.

The issue of entrapment is to be determined by the jury unless there is no dispute as to the facts or the inferences to be drawn from them, in which case the court determines the issue as a matter of law. State v. Pfister, 264 N.W.2d 694, 1978 N.D. LEXIS 246 (N.D. 1978); State v. Hoffman, 291 N.W.2d 430, 1980 N.D. LEXIS 217 (N.D. 1980).

Because there was conflicting evidence regarding the conduct of the informant and the defendant, it could not be established as a matter of law that entrapment occurred, rather, this was properly an issue of fact for resolution by the jury. State v. Rehling, 426 N.W.2d 6, 1988 N.D. LEXIS 166 (N.D. 1988).

Since entrapment is a question of fact for the jury, the district court properly denied the defendant’s pre-trial motion to dismiss the charges based on entrapment. State v. Tester, 1999 ND 60, 592 N.W.2d 515, 1999 N.D. LEXIS 63 (N.D. 1999).

Law Enforcement Agent.

Purchaser of marijuana from defendant was not a “law enforcement agent” within meaning of this section where evidence showed she was a high school student who met police officer while they both worked at a service station, she never thought she was working for the officer, she was not cooperating with him or with any law enforcement agency to induce defendant to commit an offense, purchase of marijuana was mere accommodation to officer, and she believed it was for officer’s private use; thus, jury instruction on entrapment was properly refused. State v. Berger, 285 N.W.2d 533, 1979 N.D. LEXIS 308 (N.D. 1979).

List of Suspects.

The fact that the sheriff’s department provided an undercover police officer with a list of suspected drug users and dealers was not, by itself, evidence of entrapment. State v. Nehring, 509 N.W.2d 42, 1993 N.D. LEXIS 218 (N.D. 1993).

Paid Informant.

That paid informant received a fee from the police for each person he induced to sell drugs, and an additional fee if charges were filed against that person, was not dispositive of the issue of entrapment, where the fees were not exorbitant nor contingent upon a conviction, so neither the amount nor the nature of the fees posed a risk of improper inducement. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

Persuasion.

The clause “likely to cause normally law-abiding persons to commit the offense” modifies “persuasion” as well as “other means”. State v. Unterseher, 289 N.W.2d 201, 1980 N.D. LEXIS 187 (N.D. 1980).

Predisposition to Commit Crime.

Defendant’s predisposition to commit the crime is irrelevant in a determination of entrapment since this section adopts the objective test for entrapment. State v. Pfister, 264 N.W.2d 694, 1978 N.D. LEXIS 246 (N.D. 1978).

Defendant’s predisposition to commit the offense is irrelevant to an entrapment defense. State v. Mees, 272 N.W.2d 284, 1978 N.D. LEXIS 189 (N.D. 1978).

Under the more subjective standard of amended subsection (2), making more relevant the accused’s criminal predisposition, there was substantial evidence that defendant was predisposed, where an audio recording of drug deal showed that defendant had decided to sell some marijuana before paid informant asked to buy. State v. Murchison, 541 N.W.2d 435, 1995 N.D. LEXIS 233 (N.D. 1995).

This section, as amended in 1993, now places some relevance on the accused’s subjective predisposition to commit crime and is not entirely focused on the conduct of law enforcement officials. State v. Barnes, 551 N.W.2d 279, 1996 N.D. LEXIS 173 (N.D. 1996).

Test for Entrapment.

This section provides for the “normal law-abiding person” test or “objective” test of entrapment. State v. Hoffman, 291 N.W.2d 430, 1980 N.D. LEXIS 217 (N.D. 1980).

Collateral References.

Gambling or lotteries, entrapment to commit offense with respect to, 31 A.L.R.2d 1212.

Denial of participation by accused in offense as affecting availability of defense, 61 A.L.R.2d 677.

Bribery: entrapment to commit bribery or offer to bribe, 69 A.L.R.2d 1397.

Fish and game laws, entrapment with respect to violation of, 75 A.L.R.2d 709.

Obscenity laws, entrapment to commit offense against, 77 A.L.R.2d 792.

Larceny: entrapment or consent, 10 A.L.R.3d 1121.

Entrapment as procluding justification of arrest or imprisonment, 15 A.L.R.3d 963.

Defense of entrapment in contempt proceedings, 41 A.L.R.3d 418.

Rebuttal: admissibility of evidence of other offenses in rebuttal of defense of entrapment, 61 A.L.R.3d 293.

Narcotics offenses: modern status of the law concerning entrapment to commit narcotics offense — state cases, 62 A.L.R.3d 110.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Burden of proof as to entrapment defense — state cases, 52 A.L.R.4th 775.

Entrapment as Defense to Charge of Selling or Supplying Narcotics Where Government Agents Supplied Narcotics to Defendant and Purchased Them from Him, 9 A.L.R.5th 464.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped, 15 A.L.R.5th 39.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Entrapment Defense — State Cases. 43 A.L.R.6th 475.

Law Reviews.

Criminal Law — Entrapment; Illegal Police Conduct Get Stung by the Entrapment Defense in State v. Kummer, 69 N.D. L. Rev. 969 (1993).

12.1-05-12. Definitions.

In this chapter:

  1. “Deadly force” means force which a person uses with the intent of causing, or which he knows creates a substantial risk of causing, death or serious bodily injury. A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor’s intent is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.
  2. “Dwelling” means any building or structure, though movable or temporary, or a portion thereof, which is for the time being a person’s home or place of lodging.
  3. “Force” means physical action, threat, or menace against another, and includes confinement.
  4. “Premises” means all or any part of a building or real property, or any structure, vehicle, or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein.

Source: S.L. 1973, ch. 116, § 5.

Notes to Decisions

Application.

District court did not err in failing to give defendant’s requested jury instruction on defense of premises and property because the victim was a cotenant, and there was no evidence he unlawfully entered the apartment or was trespassing; simply because an individual may have an expectation of privacy in a place for purposes of the Fourth Amendment, does not mean the individual has the ability to exclude all others from that place or that another’s entry into that place constitutes trespassing. State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

Force.

Where defendant was convicted of injuring a highway, a trial court did not err in denying defendant’s instruction on the defense of excuse because the justifications found in N.D.C.C. §§ 12.1-05-03 and 12.1-05-06 and the definition of “force” in N.D.C.C. ch. 12.1-05 contemplated taking action against another person, rather than against property. State v. Zajac, 2009 ND 119, 767 N.W.2d 825, 2009 N.D. LEXIS 133 (N.D. 2009).

Jury Instructions.

District court did not err in filing to give the entire jury instruction defendant requested for limits on the use of excessive or deadly force because there was evidence defendant fired a rifle in the victim’s direction, that he fired the rifle in his and the victim’s apartment, and that there were people living in neighboring apartment units; there was also evidence about defendant’s intent. State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

District court did not err in failing to give defendant’s requested jury instruction on defense of premises and property because the victim was a cotenant, and there was no evidence he unlawfully entered the apartment or was trespassing; simply because an individual may have an expectation of privacy in a place for purposes of the Fourth Amendment, does not mean the individual has the ability to exclude all others from that place or that another’s entry into that place constitutes trespassing. State v. Samshal, 2013 ND 188, 838 N.W.2d 463, 2013 N.D. LEXIS 192 (N.D. 2013).

CHAPTER 12.1-06 Criminal Attempt — Facilitation — Solicitation — Conspiracy

12.1-06-01. Criminal attempt.

  1. A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A “substantial step” is any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.
  2. A person who engages in conduct intending to aid another to commit a crime is guilty of criminal attempt if the conduct would establish his complicity under section 12.1-03-01 were the crime committed by the other person, even if the other is not guilty of committing or attempting the crime, for example, because he has a defense of justification or entrapment.
  3. Criminal attempt is an offense of the same class as the offense attempted, except that (a) an attempt to commit a class AA felony is a class A felony and an attempt to commit a class A felony is a class B felony; and (b) whenever it is established by a preponderance of the evidence at sentencing that the conduct constituting the attempt did not come dangerously close to commission of the crime, an attempt to commit a class B felony shall be a class C felony and an attempt to commit a class C felony shall be a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 6; 1983, ch. 162, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

In General.

A person can be found guilty of a criminal attempt if “acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct, which, in fact, constitutes a substantial step toward commission of the crime”. A “substantial step” is defined in this section as “any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime.” State v. Wright, 470 N.W.2d 594, 1991 N.D. LEXIS 93 (N.D. 1991).

Plain language of the statute does not require the crime actually be committed by the other person. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Attempted Gross Sexual Imposition.

Substantial evidence warranted defendant’s conviction for attempted gross sexual imposition because the State presented sufficient evidence of who the victim would be were the crime committed by her accomplice, who defendant communicated with on a social networking website; a detective testified that part of the conversation between defendant and the accomplice was role-playing, but the part in which defendant instructed the accomplice to sexually assault his daughter was not. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Attempted Manufacture of Drugs.

Where the defendant’s criminal purpose was clearly demonstrated; he had gone as far as he could in implementing that purpose; and, as a result, his dangerousness was plainly manifested, he could not escape prosecution because he clumsily used the wrong brand of inhaler in attempting to manufacture a methamphetamine isomer. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Evidence was sufficient to convict defendant of criminal attempt to manufacture methamphetamine because (1) an agent with a narcotics task force testified that defendant possessed two prepared precursors of methamphetamine — cold pills and anhydrous ammonia; (2) those two of the six required chemical components of methamphetamine were the most difficult elements of methamphetamine to obtain, because each was regulated by state law; (3) although he still needed the over-the-counter items to complete the manufacturing process, the agent testified that defendant possessed enough of each of those two ingredients to manufacture methamphetamine; and (4) methamphetamine residue was found on a coffee filter found in defendant’s vehicle. State v. Stensaker, 2007 ND 6, 725 N.W.2d 883, 2007 N.D. LEXIS 7 (N.D. 2007).

Attempted Murder.

Attempt to “knowingly” commit a murder was a non-cognizable offense and the erroneous jury instruction allowing defendant’s conviction for attempted knowing murder was not harmless beyond a reasonable doubt because the instruction permitted the jury to convict for attempted knowing murder even if it agreed with his sole theory of defense that it was not his purpose to cause death. Pemberton v. State, 2021 ND 85, 959 N.W.2d 891, 2021 N.D. LEXIS 89 (N.D. 2021).

When considered together, defendant’s acts constituted a substantial step towards the commission of murder. Defendant’s solicitation accompanied by his assistance in formulating a plan to commit murder were concrete steps towards the commission of the crime. State v. Lail, 2020 ND 13, 937 N.W.2d 558, 2020 N.D. LEXIS 21 (N.D. 2020).

—In General.

Defendant convicted of attempted murder was properly sentenced to life imprisonment where shootings in question occurred prior to 1983 amendment of this section when attempted murder was a class AA felony. State v. Huber, 361 N.W.2d 236, 1985 N.D. LEXIS 244 (N.D.), cert. denied, 471 U.S. 1106, 105 S. Ct. 2339, 85 L. Ed. 2d 855, 1985 U.S. LEXIS 1867 (U.S. 1985).

Defendant’s convictions for attempted murder in violation of N.D.C.C. §§ 12.1-06-01(1) and 12.1-16-01 and reckless endangerment were appropriate based on defendant’s statements to a detective after the accident in which defendant tried to kill himself and his girlfriend. Defendant had told the detective that defendant “snapped” and that he floor-boarded the car and said that he was angling to collide with a semi tractor-trailer. State v. Frohlich, 2007 ND 45, 729 N.W.2d 148, 2007 N.D. LEXIS 41 (N.D. 2007).

Defendant’s conviction for attempted murder of a prosecutor, in violation of N.D.C.C. § 12.1-06-01(1)(a), was supported by the evidence because the jury heard evidence that defendant brought a loaded gun and three clips with 38 rounds of ammunition into a courtroom, stood in a “shooter’s stance” with two hands holding the gun pointed at the prosecutor’s chest, and pulled the trigger multiple times. State v. Chacano, 2013 ND 8, 826 N.W.2d 294, 2013 N.D. LEXIS 4 (N.D. 2013).

Petitioner’s attempted murder conviction was not a cognizable offense because attempt required an intent to complete the commission of the underlying crime, and murder under circumstances manifesting an extreme indifference to the value of human life results in an unintentional death. Dominguez v. State, 2013 ND 249, 840 N.W.2d 596, 2013 N.D. LEXIS 238 (N.D. 2013).

Because the attempted murder instruction options required the jury to find that petitioner intentionally attempted to murder a police officer, the jury could not him guilty of the incognizable offense of attempted murder. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

Attempting to cause the death of someone significantly differs from intentionally engaging in conduct which constitutes a step towards causing the death of another human being; attempting to cause the death of someone amounts to intentional attempted murder. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

—Lesser Included Offenses.

Aggravated assault under subsections 1, 2, and 3 of N.D.C.C. § 12.1-17-02, which require a bodily injury be suffered by victim, is not a lesser included offense of attempted murder; however, aggravated assault under subsection 4 of N.D.C.C. § 12.1-17-02, which does not require a bodily injury be suffered by victim, can be a lesser included offense of attempted murder. State v. Sheldon, 301 N.W.2d 604, 1980 N.D. LEXIS 342 (N.D. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204, 1981 U.S. LEXIS 1398 (U.S. 1981).

Trial court did not err in refusing to give an instruction on aggravated assault as a lesser included offense of attempted murder where the charge against the defendant did not allege that he fired a firearm or hurled a destructive device at the victim as provided for in subsection (4) of N.D.C.C. § 12.1-17-02, and where the State was only required to prove that defendant intentionally engaged in conduct which constituted a substantial step toward the commission of a crime and not that the victim suffered a bodily injury as required by a charge of aggravated assault. State v. Ellis, 2001 ND 84, 625 N.W.2d 544, 2001 N.D. LEXIS 89 (N.D. 2001).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court properly denied his requested instruction on reckless endangerment as an included offense. A person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was, in fact, a substantial risk of serious bodily injury or death to another as required for reckless endangerment; in this case, defendant was properly convicted of both offenses for firing shots at police officers. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Because it is possible to commit criminal attempt without assisting another, criminal facilitation is not a lesser included offense of attempted murder. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Defendant was not entitled to a new trial because the verdict was not legally inconsistent where the culpability required for both murder under N.D.C.C. § 12.1-16-01(1)(b) and aggravated assault under N.D.C.C. § 12.1-17-02(1) was willfully, and for attempt under N.D.C.C. § 12.1-06-01(1), the culpability level of the substantial step conduct was intentionally; the culpability requirements for the two crimes were not identical because conviction of attempted murder in this case also required proof of circumstances manifesting extreme indifference to the value of human life and intentionality of the substantial step conduct, but in order to convict an individual of aggravated assault, there was no need to prove an absence of circumstances manifesting an extreme indifference to the value of human life, nor was there a need to prove an absence of intentionality; therefore, the jury’s verdict finding defendant guilty of both crimes was not legally inconsistent. State v. Coppage, 2008 ND 134, 751 N.W.2d 254, 2008 N.D. LEXIS 132 (N.D. 2008).

Attempted Obscenity.

Defendant’s motion to dismiss the charge of attempted promotion of obscenity to minors, N.D.C.C. §§ 12.1-27.1-03(1) and 12.1-06-01, should have been granted because the reckless culpability required for the offense of promoting obscenity to minors was inconsistent with and could not be rectified with the culpability required for criminal attempt. Even if the State could impose a higher burden than the statute required in an attempt to create a cognizable offense, the State had not done so where it did not allege in the information that defendant intentionally promoted the obscenity. State v. Richter, 2021 ND 55, 956 N.W.2d 421, 2021 N.D. LEXIS 46 (N.D. 2021).

Attempted Simple Assault.

Evidence was sufficient to convict defendant of attempted simple assault where the sheriff testified that defendant “swung, and he grazed the side of my face,” leaving a “mark on my face” and “also a mark on my knee where he had kicked me.” Defendant’s conduct evidenced he intentionally attempted to hit the sheriff and did hit and kick the sheriff, leaving visible marks on his body. State v. Barth, 2005 ND 134, 702 N.W.2d 1, 2005 N.D. LEXIS 169 (N.D. 2005).

Attempted Theft.

Evidence was sufficient to support conviction of attempted theft of property, N.D.C.C. § 12.1-23-02, where there was substantial evidence to prove that defendant, by grabbing shoulder of victim’s jacket and demanding his wallet and watch, intentionally engaged in conduct which constituted a substantial step toward committing crime of theft of property. State v. Saul, 346 N.W.2d 282, 1984 N.D. LEXIS 273 (N.D. 1984).

Extreme Emotional Disturbance.

Court did not err in refusing to grant an extreme emotional disturbance instruction, because too much time had passed between the death of defendant’s daughter and the crime for the disturbance to continue to operate as a mitigating factor; at some point in time, the emotional disturbance had to become attenuated, otherwise, as long as an individual remained distraught from an event, mitigation theoretically would perpetually exist. State v. Kirkpatrick, 2012 ND 229, 822 N.W.2d 851, 2012 N.D. LEXIS 224 (N.D. 2012).

First Amendment.

Online conversations between defendant and an accomplice were not protected by the First Amendment because they were integral to the commission of a crime; defendant’s private one-on-one messages to the accomplice provided detailed instructions on committing sex crimes against children, and her statements were integral to the crime of criminal attempt since they advocated and were likely to produce imminent lawless action. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Impossibility Not a Defense.

Subsection (1) is intended to abolish impossibility as a defense whether based upon fact, law, or a combination of both. State v. Erban, 429 N.W.2d 408, 1988 N.D. LEXIS 249 (N.D. 1988).

Jury Instructions.

District court correctly instructed the jury on the culpability required for criminal attempt and correctly advised the jury of the law because the jury instructions followed the wording of the criminal attempt statute and also defined “accomplice,” which mirrored the text of the accomplice statute. State v. Gunn, 2018 ND 95, 909 N.W.2d 701, 2018 N.D. LEXIS 101 (N.D.), cert. denied, — U.S. —, 139 S. Ct. 231, 202 L. Ed. 2d 128, 2018 U.S. LEXIS 5328 (U.S. 2018).

Jury instructions in defendant’s prosecution for attempted murder of a law enforcement officer did not obviously err because (1) an elements instruction did not ignore the required mens rea, (2) the instructions communicated the applicable statute’s meaning, and (3) the law was accurately described. State v. Wangstad, 2018 ND 217, 917 N.W.2d 515, 2018 N.D. LEXIS 250 (N.D. 2018).

Mitigation of Offense.

The statute defining attempt itself mitigates the seriousness of the offense by reducing an attempted class AA felony to a class A felony. State v. Miller, 466 N.W.2d 128, 1991 N.D. LEXIS 29 (N.D. 1991).

Defendant’s claim had to be rejected that the trial court erred under N.D.C.C. § 12.1-06-01(3) in sentencing defendant, convicted on a charge of attempt to possess methamphetamine, for a class C felony rather than for a class A misdemeanor. Although defendant wanted to challenge whether defendant should have been sentenced to a lower level of the offense, defendant did not raise that issue in the trial court at sentencing and, thus, the issue was waived. State v. Schmidt, 2011 ND 238, 807 N.W.2d 593, 2011 N.D. LEXIS 233 (N.D. 2011).

DECISIONS UNDER PRIOR LAW

Attempt to Burn Buildings.

The fact that an information set forth that the attempt charged therein was a violation of the section making it a crime to attempt to burn buildings or property and prescribing specific penalties for the attempts falling within its terms did not render attempt section inapplicable, and, even though the crime intended or attempted was perpetrated by the defendant, he might be lawfully convicted of the attempt. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202, 1950 N.D. LEXIS 131 (N.D. 1950).

Attempted Rape.

A conviction for attempt to commit rape was not vulnerable to attack because the information also charged assault with intent to commit a felony. State v. Murbach, 55 N.D. 846, 215 N.W. 552, 1927 N.D. LEXIS 177 (N.D. 1927).

Attempted Shooting.

To constitute the felony of shooting or attempting to shoot another with intent to injure that person, there had to be shown an attempt to carry out such intent. State v. Gunderson, 42 N.D. 498, 173 N.W. 791, 1919 N.D. LEXIS 172 (N.D. 1919).

“Inflicting Dangerous Wound.”

The inflicting of a dangerous wound with a deadly weapon without resulting death was punishable as a felony. State v. Mattison, 13 N.D. 391, 100 N.W. 1091, 1904 N.D. LEXIS 56 (N.D. 1904).

Intent and Overt Act.

An allegation of attempt to commit a crime implied two things, an intent and an overt act which tended directly toward but fell short of actual commission. State v. Maresch, 75 N.D. 229, 27 N.W.2d 1, 1947 N.D. LEXIS 62 (N.D. 1947).

Lesser Offenses.

Under an information charging rape in the first degree, the jury could return a verdict of rape in the second degree, or of assault with intent to commit rape. State v. Bancroft, 23 N.D. 442, 137 N.W. 37, 1912 N.D. LEXIS 106 (N.D. 1912).

Preparation.

It was impossible to formulate a rule which would constitute an unerring guide in determining whether a case involved acts falling on one side or the other of the line separating preparation from legal attempt. Cornwell v. Fraternal Accident Ass'n, 6 N.D. 201, 69 N.W. 191, 1896 N.D. LEXIS 19 (N.D. 1896); Reichert v. Turner, 62 N.D. 152, 242 N.W. 308, 1932 N.D. LEXIS 160 (N.D. 1932).

“Punishable.”

The inquiry as to how a crime was punishable related to the period or extent of punishment which could legally be imposed, and not to any lesser or discretionary period which might have been determined by the court in imposing sentence. King, 9 N.D. 149, 82 N.W. 423, 1900 N.D. LEXIS 207 (N.D. 1900).

Sentence Within Statutory Limits.

If the trial court in imposing sentence fixed the penalty within the limitations prescribed by statute the supreme court had no power to review the sentence, and this rule was not altered by the fact that the jury recommended leniency. State v. Holte, 87 N.W.2d 47, 1957 N.D. LEXIS 178 (N.D. 1957).

Collateral References.

Escape: what justifies escape or attempt to escape or assistance in that regard, 70 A.L.R.2d 1430.

Receiving stolen property: attempts to receive stolen property, 85 A.L.R.2d 259.

Escape: attempt to escape or commit prison breach as affected by means employed, 96 A.L.R.2d 520.

Larceny by trick, confidence game, false pretenses, and the like, attempts to commit offenses of, 6 A.L.R.3d 241.

Impossibility: comment note on impossibility of consummation of substantive crime as defense in criminal prosecution or for conspiracy or attempt to commit crime, 37 A.L.R.3d 375.

Murder: what constitutes attempted murder, 54 A.L.R.3d 612.

Price tags: changing of price tags by patron in self-service store as criminal offense, 60 A.L.R.3d 1293.

Duress, necessity, or conditions of confinement as justification for escape from prison, 69 A.L.R.3d 678.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statutes, 93 A.L.R.3d 7.

Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime, 41 A.L.R.4th 588.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

12.1-06-02. Criminal facilitation.

  1. A person is guilty of criminal facilitation if he knowingly provides substantial assistance to a person intending to commit a felony and that person, in fact, commits the crime contemplated, or a like or related felony, employing the assistance so provided. The ready lawful availability from others of the goods or services provided by a defendant is a factor to be considered in determining whether or not his assistance was substantial. This section does not apply to a person who is either expressly or by implication made not accountable by the statute defining the felony facilitated or related statutes.
  2. Except as otherwise provided, it is no defense to a prosecution under this section that the person whose conduct the defendant facilitated has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.
  3. Facilitation of a class A felony is a class C felony. Facilitation of a class B or class C felony is a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 6.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Constitutionality.

This section and the accomplice statute, N.D.C.C. § 12.1-03-01, are clear and unambiguous and do not have the same, or a virtually indistinguishable, burden of proof; therefore, this section and the accomplice statute do not violate the fourteenth amendment of the United States Constitution or Art. I, §§ 12 and 21 of the state constitution by prohibiting the same acts with different penalties. State v. Ballard, 328 N.W.2d 251, 1982 N.D. LEXIS 395 (N.D. 1982).

Accomplice Statute Distinguished.

This section and the accomplice statute, N.D.C.C. § 12.1-03-01, provide for separate offenses; under the accomplice statute, the giving of aid with intent that the offense be committed is the key element, whereas under this section knowingly providing assistance without intent to commit an offense to a person who intends to commit a felony and actually commits the crime contemplated is the key element. State v. Ballard, 328 N.W.2d 251, 1982 N.D. LEXIS 395 (N.D. 1982).

Lesser Included Offense of Accomplice.

Criminal facilitation is a lesser included offense to accomplice liability. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Where the same evidence from which a juror could infer that the defendant aided another with intent that the other commit an offense (accomplice liability) could also allow a juror to infer that she only aided another with knowledge that the other intended to commit an offense (facilitation), there was evidence which could create a reasonable doubt as to accomplice liability and support a conviction of criminal facilitation, and the trial court’s refusal to give a lesser included offense instruction constituted prejudicial error. State v. Langan, 410 N.W.2d 149, 1987 N.D. LEXIS 368 (N.D. 1987).

Not a Lesser Included Offense of Attempted Murder.

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Because it is possible to commit criminal attempt without assisting another, criminal facilitation is not a lesser included offense of attempted murder. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Not a Lesser Included Offense of Conspiracy.

Where defendant was charged with conspiracy to commit murder, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Facilitation, by definition, is not a lesser included offense of conspiracy to commit murder, because it is possible to commit the crime of conspiracy without necessarily committing the crime of facilitation. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-06-03. Criminal solicitation.

  1. A person is guilty of criminal solicitation if he commands, induces, entreats, or otherwise attempts to persuade another person to commit a particular felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that felony, under circumstances strongly corroborative of that intent, and if the person solicited commits an overt act in response to the solicitation.
  2. It is a defense to a prosecution under this section that, if the criminal object were achieved, the defendant would be a victim of the offense, or the offense is so defined that his conduct would be inevitably incident to its commission, or he otherwise would not be guilty under the statute defining the offense or as an accomplice under section 12.1-03-01.
  3. It is no defense to a prosecution under this section that the person solicited could not be guilty of the offense because of lack of responsibility or culpability, or other incapacity or defense.
  4. Criminal solicitation is an offense of the class next below that of the offense solicited.

Source: S.L. 1973, ch. 116, § 6.

Cross-References.

Obstruction of proceedings, soliciting, see N.D.C.C. § 12.1-10-06.

Soliciting outside this state for criminal action within this state, prosecution, see N.D.C.C. § 29-03-01.1.

Collateral References.

Construction and effect of statutes making solicitation to commit crime a substantive offense, 51 A.L.R.2d 953.

Validity and construction of statute or ordinance proscribing solicitation for purposes of prostitution, lewdness, or assignation, 77 A.L.R.3d 519.

Solicitation to commit crime against more than one person or property, made in single conversation, as single or multiple crimes, 24 A.L.R.4th 1324.

Validity, Construction, and Application of 18 U.S.C.S. § 373, Proscribing Solicitation to Commit Crime of Violence. 49 A.L.R. Fed. 2d 333.

12.1-06-04. Criminal conspiracy.

  1. A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and any one or more of such persons does an overt act to effect an objective of the conspiracy. The agreement need not be explicit but may be implicit in the fact of collaboration or existence of other circumstances.
  2. If a person knows or could expect that one with whom he agrees has agreed or will agree with another to effect the same objective, he shall be deemed to have agreed with the other, whether or not he knows the other’s identity.
  3. A conspiracy shall be deemed to continue until its objectives are accomplished, frustrated, or abandoned. “Objectives” includes escape from the scene of the crime, distribution of booty, and measures, other than silence, for concealing the crime or obstructing justice in relation to it. A conspiracy shall be deemed abandoned if no overt act to effect its objectives has been committed by any conspirator during the applicable period of limitations.
  4. It is no defense to a prosecution under this section that the person with whom such person is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.
  5. Accomplice liability for offenses committed in furtherance of the conspiracy is to be determined as provided in section 12.1-03-01.
  6. Conspiracy is an offense of the same class as the crime which was the objective of the conspiracy.

Source: S.L. 1973, ch. 116, § 6; 1983, ch. 162, § 2.

Notes to Decisions

Constitutionality.

As applied in the instant case, this section was not unconstitutionally vague. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Common Law.

The elements of common-law conspiracy are identical to the elements of the statutory crime of conspiracy. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

Conspiracy to Commit Murder.

Because the information and jury instructions did not reference extreme indifference to the value of human life, and considering the facts of the case included a plan to kill a law enforcement officer, it was logical that the jury properly found petitioner guilty of conspiring to commit intentional murder under N.D.C.C. § 12.1-06-04 and N.D.C.C. § 12.1-16-01(1)(a), rather than § 12.1-16-01(1)(b). Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

Under judicial precedent, a charge of conspiracy to commit murder required the State to prove an intent to cause the death of another human being, and conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), was not a cognizable offense. State v. Swanson, 2019 ND 181, 930 N.W.2d 645, 2019 N.D. LEXIS 185 (N.D. 2019).

Because the inclusion of knowingly in the jury instruction allowed the jury to convict defendant of conspiracy to commit murder without an intent to cause the death of another human being, the instruction was improper and allowed defendant to have potentially been convicted of a non-cognizable offense. State v. Swanson, 2019 ND 181, 930 N.W.2d 645, 2019 N.D. LEXIS 185 (N.D. 2019).

Elements of Offense.

Crime of conspiracy requires an agreement, as explained, this section, and commission of an overt act; an overt act may be an act of only a single one of the conspirators and need not be itself a crime. State v. Lind, 322 N.W.2d 826, 1982 N.D. LEXIS 366 (N.D. 1982).

Where the defendant agreed to engage in conduct which constitutes an offense, i.e., the delivery of a controlled substance, and she performed an overt act in furtherance of that agreement, her conduct thus satisfies the elements of criminal conspiracy under subsection 1. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

Trial court did not abuse its discretion in dismissing conspiracy count in information which failed to allege an overt act in furtherance of the conspiracy. State v. Gwyther, 1999 ND 15, 589 N.W.2d 575, 1999 N.D. LEXIS 17 (N.D. 1999).

Proof of a buyer-seller relationship in itself is not enough to prove a conspiracy to deliver a controlled substance, and without more, evidence that a buyer was reselling the substance is insufficient. The “something more” required is an understanding between the buyer and seller, often implicit, relating to the subsequent distribution by the buyer. State v. Gonzalez, 2000 ND 32, 606 N.W.2d 873, 2000 N.D. LEXIS 20 (N.D. 2000).

When a homeowner and her husband started a fire intending to destroy or damage their home and collect insurance on the loss, conspiracy to commit arson existed even when the insurance had lapsed without their knowledge. State v. Beciraj, 2003 ND 173, 671 N.W.2d 250, 2003 N.D. LEXIS 177 (N.D. 2003).

Charge of conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b) was not a cognizable offense because conspiracy was a specific intent crime requiring intent to agree and intent to achieve a particular result that was criminal. State v. Borner, 2013 ND 141, 836 N.W.2d 383, 2013 N.D. LEXIS 151 (N.D. 2013).

Evidence Insufficient.

Evidence was insufficient to show conspiracy to deliver controlled substances, as there was no evidence defendant and alleged co-conspirator were partners or assisted each other in delivering controlled substances. State v. Serr, 1998 ND 66, 575 N.W.2d 896, 1998 N.D. LEXIS 64 (N.D. 1998).

The trial court abused it’s discretion in denying defendant’s motion for judgment of acquittal where the evidence was insufficient to support defendant’s conviction of conspiracy; there was no evidence that the informant was going to resell the drugs, that the informant discussed the resale of the drugs with defendant, that he agreed with defendant to distribute the drugs, or that defendant believed the drugs would be resold. State v. Gonzalez, 2000 ND 32, 606 N.W.2d 873, 2000 N.D. LEXIS 20 (N.D. 2000).

Evidence Sufficient.

Evidence was sufficient to support conviction for conspiracy to deliver a controlled substance where, at the time the overt acts which effected an objective of the conspiracy were committed, the co-conspirator was not acting in concert with the police. State v. Burgard, 458 N.W.2d 274, 1990 N.D. LEXIS 131 (N.D. 1990).

There was sufficient evidence to support defendant’s conviction for conspiracy to deliver a controlled substance. State v. McKinney, 518 N.W.2d 696, 1994 N.D. LEXIS 147 (N.D. 1994).

The juvenile court did not err in finding reasonable grounds under N.D.C.C. § 27-20-34(1)(c)(4)(a) to believe that juvenile committed alleged delinquent act of conspiracy to commit armed robbery, where the juvenile was present when another left the juvenile’s residence with shotgun to commit an armed robbery, and he was present in the car when others robbed and shot victim in another car. Dawson v. Guerrero (In re J.A.G.), 552 N.W.2d 317, 1996 N.D. LEXIS 163 (N.D. 1996).

Evidence was sufficient to establish implicit agreement required to prove juvenile committed delinquent act of conspiracy to commit unlawful entry into or concealment within a motor vehicle, where juvenile provided access to his parent’s car to transport others to the vehicle, he knew the others had previously broken into and stolen property from the vehicle, and he voluntarily returned to the vehicle with them a second time. J.C.S. v. J.C.S., 1997 ND 126, 565 N.W.2d 759, 1997 N.D. LEXIS 128 (N.D. 1997).

Evidence that the defendant had an arrangement in which another person would act as a conduit to get methamphetamine to a third party was sufficient to sustain a conviction for conspiracy to deliver a controlled substance. State v. Freed, 1999 ND 185, 599 N.W.2d 858, 1999 N.D. LEXIS 203 (N.D. 1999).

Sufficient evidence supported a conviction for conspiracy to commit arson where there was no evidence of an accidental cause, very few household items remained in the burned mobile home, neighbors testified that they saw the defendant carrying bags away from the home on the day of the fire, and the defendant’s husband said that the family had insurance and expected to receive money donated from the community. State v. Beciraj, 2003 ND 173, 671 N.W.2d 250, 2003 N.D. LEXIS 177 (N.D. 2003).

Where defendant and his co-conspirator were involved in illegal drugs and carried out a police shoot-out as part of a plan to avoid being arrested, the evidence was sufficient to establish overt acts in furtherance of that agreement; defendant was properly convicted of conspiracy to commit murder. During the shoot-out, his co-conspirator was killed. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Evidence was sufficient to sustain a conviction for conspiracy to commit aggravated assault under N.D.C.C. § 12.1-06-04 because defendant provided the coconspirator with the weapon the coconspirator used to beat the victim and then joined in the beating; based on either act, defendant and the coconspirator agreed to assault the victim. State v. Cain, 2011 ND 213, 806 N.W.2d 597, 2011 N.D. LEXIS 208 (N.D. 2011).

Evidence was sufficient to sustain defendant’s conviction of conspiracy to commit burglary against defendant’s son-in-law, because the jury could properly infer the discussions between defendant and his acquaintance of taking the son-in-law’s items, and their later discovery in the acquaintance’s possession, evidenced an agreement to burglarize the son-in-law’s home. State v. Kirkpatrick, 2012 ND 229, 822 N.W.2d 851, 2012 N.D. LEXIS 224 (N.D. 2012).

Evidence was sufficient to support convictions for leading a criminal association to commit felonious acts and conspiracy to commit aggravated assault where there was testimony during the trial of defendant supplying drugs to individuals for sale and offering a reward for kicking a victim's teeth in. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

Evidence was sufficient to support a conviction for conspiracy to commit murder because the jury could have believed that defendant and another person were serious when a statement was made that they were so mad that they could kill someone, especially given their conduct during a killing. Defendant's actions during the murder and his subsequent conduct to clean up or conceal the crime satisfied the definition of an objective of the conspiracy. State v. Clark, 2015 ND 201, 868 N.W.2d 363, 2015 N.D. LEXIS 215 (N.D. 2015).

Evidence was constitutionally sufficient to support the inmate's conviction for criminal conspiracy because the evidence supported the findings that the inmate and his friend participated in committing the murder and attempting to conceal it because their joint attempts to conceal the murder may have been interpreted as evidence of an implicit agreement to murder the victim without getting caught, and were relevant not only to demonstrate a potential conspiracy to conceal the crime, but a conspiracy to commit the crime itself, the evidence included events that occurred while the victim was injured but remained alive, and the inmate admitted that he participated in the events that ultimately lead to the victim's death. Howard v. Braun, 862 F.3d 706, 2017 U.S. App. LEXIS 12036 (8th Cir. N.D. 2017).

Evidence was sufficient to convict defendant of conspiring with his co-defendants to cause a financial loss greater than $ 10,000 to a company because a video played for the jury showed defendant and the codefendants discussing their plans; inside a notebook were sticky notes with names of multiple people associated with actions that were part of the coordinated event. State v. Foster, 2019 ND 28, 921 N.W.2d 454, 2019 N.D. LEXIS 19 (N.D. 2019).

Court did not err when it found a lack of evidence for the drug procurement to qualify as an overt act because testimony indicated that defendant already had it in her possession when the conversation between herself and the alleged co-conspirators took place - before they made any agreement. State v. Howard, 2021 ND 101, 960 N.W.2d 775, 2021 N.D. LEXIS 104 (N.D. 2021).

Court erred when it found no evidence establishing probable cause that defendant and the alleged co-conspirator committed an overt act to effect the conspiracy because, although the court found no nexus, a timing nexus existed between the recorded meeting and the text messages linking them to the messages. State v. Howard, 2021 ND 101, 960 N.W.2d 775, 2021 N.D. LEXIS 104 (N.D. 2021).

Individualized Intent.

The word “agreement” within subsection (1) focuses upon the individualized intent and conduct of the defendant-conspirator, regardless of any secret intent of co-conspirators. State v. Rambousek, 479 N.W.2d 832, 1992 N.D. LEXIS 12 (N.D. 1992).

Juvenile Offender.

The State met its burden of persuasion and established reasonable grounds to believe that juvenile committed delinquent act of conspiracy to commit armed robbery. Dawson v. Esparza (In the Interest of A.E.), 1997 ND 9, 559 N.W.2d 215, 1997 N.D. LEXIS 8 (N.D. 1997).

Lesser Included Offenses.

Where defendant was charged with conspiracy to commit murder, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Facilitation, by definition, is not a lesser included offense of conspiracy to commit murder, because it is possible to commit the crime of conspiracy without necessarily committing the crime of facilitation. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Obvious Error.

Rule was applied to avoid manifest injustice and provide defendant with the same relief granted his codefendant because in the codefendant’s trial, the trial court obviously erred when it failed to require proof of an essential element of the offense and failed to recognize the information was defective; defendant was also prejudiced by the error, and to deny him the relief granted his codefendant would seriously affected the fairness, integrity, and public reputation of the criminal jury trial. State v. Whitman, 2013 ND 183, 838 N.W.2d 401, 2013 N.D. LEXIS 196 (N.D. 2013).

Uniform Controlled Substances Act.

The conspiracy provisions of this section and N.D.C.C. § 12.1-06-05 apply to the Uniform Controlled Substances Act, N.D.C.C. ch. 19-03.1. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

Unilateral Approach.

The legislature intended a unilateral, not bilateral, approach to conspiracy. The unilateral approach requires only that defendant believe that he was participating in an agreement with another to engage in criminal conduct, manifested by some overt act, for defendant to be guilty of conspiracy. State v. Rambousek, 479 N.W.2d 832, 1992 N.D. LEXIS 12 (N.D. 1992).

DECISIONS UNDER PRIOR LAW

Civil Action.

Generally the civil action of conspiracy was a tort action and could not be maintained merely for inducing a third person to break his contract with the plaintiff except where direct fraud, force, or coercion had been used. Sleeper v. Baker, 22 N.D. 386, 134 N.W. 716, 1911 N.D. LEXIS 71 (N.D. 1911); Wedwik v. Russell-Miller Milling Co., 64 N.D. 690, 256 N.W. 107, 1934 N.D. LEXIS 252 (N.D. 1934).

“Felony.”

A felony, within the constitutional provision that no person convicted of a felony shall be qualified to vote at any election unless restored to civil rights, was a crime which was or could be punishable with death or imprisonment in the penitentiary, and conviction of the crime of conspiracy under a federal law designating the crime a felony disqualified the person convicted even though conspiracy was only a misdemeanor under state law. State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, 1934 N.D. LEXIS 178 (N.D. 1934).

Collateral References.

Breach of contract, conspiracy to induce, 26 A.L.R.2d 1227.

Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Entrapment: availability of defense of entrapment where one accused of conspiracy denies participation in offense, 61 A.L.R.2d 677.

Limitation of actions: when does statute of limitations begin to run against civil action or criminal prosecution for conspiracy, 62 A.L.R.2d 1369.

Gambling, criminal conspiracies as to, 91 A.L.R.2d 1205.

Admissibility of statements of coconspirators made after termination of conspiracy and outside accused’s presence, 4 A.L.R.3d 671.

Jurisdiction to prosecute conspirator who is not in state at time of substantive criminal act, for offense committed pursuant to conspiracy, 5 A.L.R.3d 887.

Impossibility: comment note on impossibility of consummation of substantive crime as defense in criminal prosecution for conspiracy or attempt to commit crime, 37 A.L.R.3d 375.

Corporations: criminal liability of corporation for bribery or conspiracy to bribe public official, 52 A.L.R.3d 1274.

Criminal conspiracy between spouses, 74 A.L.R.3d 838.

Criminal liability for wrongfully obtaining unemployment benefits, 80 A.L.R.3d 1280.

Right of defendants in prosecution for criminal conspiracy to separate trials, 82 A.L.R.3d 366.

Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators, 19 A.L.R.4th 192.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 A.L.R.4th 534.

Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault, 24 A.L.R.4th 243.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

12.1-06-05. General provisions.

  1. The definition of an offense in sections 12.1-06-01 to 12.1-06-04 does not apply to another offense also defined in sections 12.1-06-01 to 12.1-06-04.
  2. Whenever “attempt” or “conspiracy” is made an offense outside this chapter, it means attempt or conspiracy, as the case may be, as defined in this chapter.
    1. Other than as provided in subsection 4, in a prosecution under section 12.1-06-01, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of criminal intent, the defendant avoided the commission of the crime attempted by abandoning any criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.
    2. Other than as provided in subsection 4, in a prosecution under section 12.1-06-03 or 12.1-06-04, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of criminal intent, the defendant prevented the commission of the crime solicited or of the crime or crimes contemplated by the conspiracy.
    3. A renunciation is not “voluntary and complete” within the meaning of this section if it is motivated in whole or in part by (1) a belief that a circumstance exists which increases the probability of detection or apprehension of the defendant or another participant in the criminal operation, or which makes more difficult the consummation of the crime, or (2) a decision to postpone the criminal conduct until another time or to substitute another victim, or another but similar objective.
  3. An individual is immune from prosecution under this chapter if:
    1. The individual voluntarily and completely renounced the individual’s criminal intent;
    2. The individual is a student enrolled in an elementary school, middle school, or a high school in this state or is enrolled at an institution of higher education in this state;
    3. The offense would have resulted in:
      1. Harm to another student enrolled in an elementary school, middle school, or a high school in this state;
      2. Harm to another student enrolled in an institution of higher education in this state;
      3. Harm to an employee of a school district or a nonpublic school in this state;
      4. Harm to an employee of an institution of higher education in this state; or
      5. Damage to property of a school district in this state or property of an institution of higher education in this state; and
    4. The renunciation was given to a law enforcement officer, to an administrator of a school or school district in this state, or to an official of an institution of higher education in this state before any harm to others or damage to property occurs.

Source: S.L. 1973, ch. 116, § 6; 2007, ch. 121, § 1; 2007, ch. 162, § 1.

Notes to Decisions

Uniform Controlled Substances Act.

The conspiracy provisions of N.D.C.C. 12.1-06-04 and this section apply to the Uniform Controlled Substances Act, N.D.C.C. ch. 19-03.1. State v. Coutts, 364 N.W.2d 88, 1985 N.D. LEXIS 270 (N.D. 1985).

CHAPTER 12.1-06.1 Racketeer Influenced and Corrupt Organizations

12.1-06.1-01. Definitions.

  1. For the purpose of section 12.1-06.1-02:
    1. “Combination” means persons who collaborate in carrying on or furthering the activities or purposes of a criminal association even though those persons may not know each other’s identity or membership in the combination may change from time to time or one or more members may stand in a wholesaler-retailer or other arm’s-length relationship with others as to activities or dealings between or among themselves in an illicit operation.
    2. “Criminal association” means any combination of persons or enterprises engaging, or having the purpose of engaging, on a continuing basis in conduct which violates any one or more provisions of any felony statute of this state or which is the willful and illegal transportation or disposal of radioactive waste material or hazardous waste.
  2. For the purposes of sections 12.1-06.1-02 through 12.1-06.1-07, unless the context otherwise requires:
    1. “Control” means the possession of a sufficient interest to permit substantial direction over the affairs of an enterprise.
    2. “Enterprise” means any corporation, limited liability company, association, labor union, or other legal entity or any group of persons associated in fact although not a legal entity.
    3. “Financial institution” means any bank, trust company, savings and loan association, credit union, or moneylender under the jurisdiction of the state department of financial institutions or its commissioner, or the state banking board, or the state credit union board.
    4. “Illegal transportation or disposal of radioactive waste material or hazardous waste” means the transportation or disposal into a nonhazardous waste landfill or the intentional and unlawful dumping into or on any land or water of radioactive waste material in violation of chapter 38-23 or the rules adopted pursuant to that chapter, or hazardous waste in willful violation of chapter 23.1-04 or the rules adopted pursuant to that chapter.
    5. “Pattern of racketeering activity” requires at least two acts of racketeering activity, one of which occurred after July 8, 1987, and the last of which occurred within ten years, excluding any period of imprisonment, after the commission of a prior act of racketeering activity.
    6. “Racketeering” means any act including any criminal attempt, facilitation, solicitation, or conspiracy, committed for financial gain, which is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable by imprisonment for more than one year, regardless of whether such act is charged or indicted, involving:
      1. Homicide.
      2. Robbery.
      3. Kidnapping.
      4. Forgery.
      5. Theft.
      6. Bribery.
      7. Gambling.
      8. Usury.
      9. Extortion.
      10. Unlawful delivery of controlled substances.
      11. Trafficking in explosives, weapons, or stolen property.
      12. Leading a criminal association.
      13. Obstructing or hindering criminal investigations or prosecutions.
      14. Asserting false claims including, but not limited to, false claims asserted through fraud or arson.
      15. Fraud.
      16. Sale of unregistered securities or real property securities and transactions involving such securities by unregistered dealers or salesmen.
      17. Obscenity.
      18. Child pornography.
      19. Prostitution.
      20. Human trafficking.
    7. “Records” means any book, paper, writing, record, computer program, or other material.
  3. For the purposes of section 12.1-06.1-08:
    1. “Access” means to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system, or computer network.
    2. “Computer” means an electronic device which performs work using programmed instruction and which has one or more of the capabilities of storage, logic, arithmetic, communication, or memory and includes all input, output, processing, storage, software, or communication facilities that are connected or related to such a device in a system or network.
    3. “Computer network” means the interconnection of communication lines, including microwave, fiber optics, light beams, or other means of electronic or optic data communication, with a computer through remote terminals or a complex consisting of two or more interconnected computers.
    4. “Computer program” means a series of instructions or statements, in a form acceptable to a computer, which permits the functioning of a computer system in a manner designed to provide appropriate products from such computer system.
    5. “Computer software” means a set of computer programs, procedures, and associated documentation concerned with the operation of a computer system.
    6. “Computer system” means a set of related, connected, or unconnected computer equipment, devices, and software.
    7. “Financial instrument” means any credit card, debit card, or electronic fund transfer card, code, or other means of access to an account for the purpose of initiating electronic fund transfers, or any check, draft, money order, certificate of deposit, letter of credit, bill of exchange, marketable security, or any other written instrument which is transferable for value.
    8. “Property” includes financial instruments, information, electronically produced or stored data, supporting documentation, computer software, and computer programs in either machine or human readable form, and any other tangible or intangible item of value.
    9. “Services” includes computer time, data processing, storage functions, and other uses of a computer, computer system, or computer network to perform useful work.

Source: S.L. 1983, ch. 163, § 1; 1987, ch. 164, § 1; 1987, ch. 165, § 1; 1993, ch. 54, § 106; 1995, ch. 124, § 2; 1997, ch. 119, § 1; 2001, ch. 88, § 68; 2009, ch. 139, § 2; 2019, ch. 301, § 1, effective July 1, 2019; 2017, ch. 199, § 8, effective April 29, 2019.

Notes to Decisions

Dismissal Proper.

Limited liability company’s (LLC) racketeering claim was properly dismissed because the LLC’s allegations were conclusory, it did not allege any prior convictions, and the allegations were not sufficient for probable cause. McColl Farms, LLC v. Pflaum, 2013 ND 169, 837 N.W.2d 359, 2013 N.D. LEXIS 170 (N.D. 2013).

Pattern of Racketeering Activity.

To establish a cognizable Racketeer Influenced and Corrupt Organizations Act claim, plaintiff in civil action must establish two predicate acts. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Whether theft of survey instrument and computer theft under N.D.C.C. § 12.1-06.1-08 amounted to a pattern of racketeering activity, under the Racketeer Influenced and Corrupt Organizations Act, was a question of fact, precluding summary judgment in civil action. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Civil RICO claim against a bankruptcy debtor “as permitted under North Dakota’s RICO Act” which did not set forth the two predicate criminal acts required by the Act failed to satisfy the pleading requirements for a RICO claim. E.W. Wylie Corp. v. Montgomery (In re Montgomery), 236 B.R. 914, 1999 Bankr. LEXIS 992 (Bankr. D.N.D. 1999).

In plaintiff’s action against defendants under state and federal RICO statutes arising out of a child custody dispute and claims that defendants assisted his wife in absconding out of state with their children, plaintiff met the standing elements under both state and federal RICO statutes by alleging out-of-pocket expenses incurred as a direct result of the ordeal in the form of travel, lodging, telephone calls, food, and attorneys fees, which were arguably considered injury to business or property by the weight of authority. However, plaintiff failed to establish the essential elements of a RICO claim under either federal or state law where, although he alleged predicate acts that might have qualified under the state act, there were no convictions against the defendants for the predicate acts, plaintiff failed to establish probable cause that the predicate acts occurred and, even if he did, he failed to show continuity of the acts and failed to show future criminal threat. Geraci v. Women's Alliance, Inc., 436 F. Supp. 2d 1022, 2006 U.S. Dist. LEXIS 45606 (D.N.D. 2006).

Collateral References.

Criminal liability of corporation for extortion, false pretenses or similar offenses, 49 A.L.R.3d 820.

Validity of Criminal State Racketeer Influenced and Corrupt Organizations Acts and Similar Acts Related to Gang Activity and the Like. 58 A.L.R.6th 385.

What constitutes “property” obtained within extortion statute, 67 A.L.R.3d 1021.

Criminal prosecutions under state RICO statutes for engaging in organized criminal activity, 89 A.L.R.5th 629.

Validity, construction, and application of Racketeer Influenced and Corrupt Organization Act, 18 U.S.C.A. §§ 1961 et seq. — Supreme Court cases, 171 A.L.R. Fed. 1.

12.1-06.1-02. Leading a criminal association — Classification.

  1. A person is guilty of an offense by any of the following:
    1. Intentionally organizing, managing, directing, supervising, or financing a criminal association.
    2. Knowingly inciting or inducing others to engage in violence or intimidation to promote or further the criminal objectives of a criminal association.
    3. Willfully furnishing advice, assistance, or direction in the conduct, financing, or management of a criminal association’s affairs with the intent to promote or further the criminal objectives of a criminal association.
    4. Intentionally promoting or furthering the criminal objectives of a criminal association by inducing or committing any act or omission by a public servant in violation of official duty.
  2. No person shall be convicted pursuant to this section on the basis of accountability as an accomplice unless that person aids or participates in violating this section in one of the ways specified.
  3. Leading a criminal association is a class B felony.

Source: S.L. 1983, ch. 163, § 2; 1995, ch. 124, § 3; 1997, ch. 119, § 2.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Validity of Criminal State Racketeer Influenced and Corrupt Organizations Acts and Similar Acts Related to Gang Activity and the Like. 58 A.L.R.6th 385.

Notes to Decisions

Evidence Sufficient.

Evidence was sufficient to support convictions for leading a criminal association to commit felonious acts and conspiracy to commit aggravated assault where there was testimony during the trial of defendant supplying drugs to individuals for sale and offering a reward for kicking a victim's teeth in. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

12.1-06.1-03. Illegal control of an enterprise — Illegally conducting an enterprise.

  1. A person is guilty of an offense if such person, through a pattern of racketeering activity or its proceeds, acquires or maintains, by investment or otherwise, control of any enterprise.
  2. A person is guilty of an offense if the person is employed or associated with any enterprise and conducts or participates in the conduct of that enterprise’s affairs through a pattern of racketeering activity.
  3. A knowing violation of this section is a class B felony.

Source: S.L. 1983, ch. 163, § 3; 1987, ch. 165, § 2; 1995, ch. 124, § 4.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Conviction Is Aggravated Felony for Immigration Purposes.

Petitioner alien’s N.D.C.C. § 12.1-06.1-03 racketeering conviction was an aggravated felony under 8 U.S.C.S. § 1101(a)(43)(J) because the interstate commerce element of its federal counterpart was merely a jurisdictional basis not essential to whether a state crime was an aggravated felony; he was not eligible for an 8 U.S.C.S. § 1229b(a)(3) cancellation of removal. Spacek v. Holder, 688 F.3d 536, 2012 U.S. App. LEXIS 15742 (8th Cir. 2012).

Collateral References.

Validity of Criminal State Racketeer Influenced and Corrupt Organizations Acts and Similar Acts Related to Gang Activity and the Like. 58 A.L.R.6th 385.

12.1-06.1-04. Judicial powers over racketeering criminal cases.

During the pendency of any criminal case charging an offense included in the definition of racketeering if it is shown to the satisfaction of the court when ruling upon the application for the order that the racketeering offense has occurred as a part of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03, the court may, in addition to its other powers, issue an order pursuant to subsections 1 and 2 of section 12.1-06.1-05. Upon conviction of a person for an offense included in the definition of racketeering if it is shown to the satisfaction of the court when ruling upon the application for the order that the racketeering offense has occurred as a part of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03, the court may, in addition to its other powers, issue an order pursuant to section 12.1-06.1-05.

Source: S.L. 1983, ch. 163, § 4; 1987, ch. 165, § 3; 1997, ch. 119, § 3.

12.1-06.1-05. Racketeering — Civil remedies.

  1. A person who sustains injury to person, business, or property by a pattern of racketeering activity or by a violation of section 12.1-06.1-02 or 12.1-06.1-03 may file an action in district court for the recovery of treble damages and the costs of the suit, including reasonable attorney fees. The state may file an action in behalf of those persons injured or to prevent, restrain, or remedy a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03.
  2. The district court has jurisdiction to prevent, restrain, and remedy a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03 after making provision for the rights of all innocent persons affected by the violation and after hearing or trial, as appropriate, by issuing appropriate orders.
  3. Prior to a determination of liability, orders may include entering restraining orders, receivership orders or prohibitions or other actions, including the acceptance of satisfactory performance bonds, in connection with any property or other interest subject to damages, forfeiture, or other restraints pursuant to this section.
  4. Following a determination of liability, orders may include:
    1. Ordering any person to divest himself of any interests, direct or indirect, in any enterprise.
    2. Imposing reasonable restrictions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect the laws of this state, to the extent the constitutions of the United States and this state permit.
    3. Ordering dissolution or reorganization of any enterprise.
    4. Ordering the payment of treble damages and appropriate restitution to those persons injured by a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03.
    5. Ordering the payment of all costs and expenses and reasonable attorneys’ fees concerned with the prosecution and investigation of any offense included in the definition of racketeering if upon application for the order it is shown to the satisfaction of the court that the racketeering offense has occurred as a part of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03, civil and criminal, incurred by the state or county as appropriate to be paid to the general fund of the state or county that brings the action.
    6. Forfeiture, pursuant to chapter 32-14, to the state school fund of the state or county as appropriate under section 29-27-02.1, to the extent not already ordered to be paid in other damages:
      1. Any property or other interest acquired or maintained by a person in violation of section 12.1-06.1-02 or 12.1-06.1-03.
      2. Any interest in, security of, claims against, or property or contractual right of any kind affording a source of influence over any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of in violation of section 12.1-06.1-02 or 12.1-06.1-03.
      3. All proceeds traceable to an offense included in the definition of racketeering and all moneys, negotiable instruments, securities, and other things of value used or intended to be used to facilitate commission of the offense if upon application for the order it is shown to the satisfaction of the court that the racketeering offense has occurred as a part of a pattern of racketeering activity.
    7. Payment to the state school fund of the state or county as appropriate under section 29-27-02.1 of an amount equal to the gain a person has acquired or maintained through an offense included in the definition of racketeering if upon application for the order it is shown to the satisfaction of the court that the racketeering offense has occurred as a part of a pattern of racketeering activity.
  5. In addition to or in lieu of an action under this section the state may file an action for forfeiture to the state school fund of the state or county as appropriate under section 29-27-02.1, to the extent not already ordered paid pursuant to this section, of:
    1. Any interest acquired or maintained by a person in violation of section 12.1-06.1-02 or 12.1-06.1-03.
    2. Any interest in, security of, claims against, or property or contractual right of any kind affording a source of influence over any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of in violation of section 12.1-06.1-02 or 12.1-06.1-03.
    3. All proceeds traceable to an offense included in the definition of racketeering and all moneys, negotiable instruments, securities, and other things of value used or intended to be used to facilitate the commission of the offense if upon application for the order it is shown to the satisfaction of the court that such racketeering offense has occurred as a part of a pattern of racketeering activity.
  6. A defendant convicted in any criminal proceeding shall be precluded from subsequently denying the essential allegations of the criminal offense of which he was convicted in any civil proceeding. For purposes of this subsection, a conviction may result from a verdict or plea including a no contest plea.
  7. Notwithstanding any law to the contrary, the initiation of civil proceedings related to violations of any offense included in the definition of racketeering or a violation of section 12.1-06.1-02 or 12.1-06.1-03 must be commenced within seven years of actual discovery of the violation.
  8. This state may, in a civil action brought pursuant to this section, file with the clerk of the district court a certificate stating that the case is of special public importance. A copy of that certificate shall be furnished immediately by the clerk to the presiding judge of the district court in which the action is pending and, upon receipt of the copy, the judge shall immediately designate a judge to hear and determine the action. The judge designated shall promptly assign the action for hearing, participate in the hearings and determination, and cause the action to be expedited.
  9. The standard of proof in actions brought pursuant to this section is the preponderance of the evidence.
  10. A person other than the attorney general or state’s attorney who files an action under this section shall serve notice and one copy of the pleading on the attorney general within thirty days after the action is filed with the district court. The notice shall identify the action, the person, and the person’s attorney. Service of the notice does not limit or otherwise affect the right of the state to maintain an action under this section or intervene in a pending action nor does it authorize the person to name the state or the attorney general as a party to the action.
  11. Except in cases filed by a state’s attorney, the attorney general may, upon timely application, intervene in any civil action or proceeding brought pursuant to this section if the attorney general certifies that in his opinion the action is of special public importance. Upon intervention, the attorney general may assert any available claim and is entitled to the same relief as if the attorney general had instituted a separate action.
  12. In addition to the state’s right to intervene as a party in any action under this section, the attorney general may appear as amicus curiae in any proceeding in which a claim under this section has been asserted or in which a court is interpreting any provisions of this chapter.
  13. A civil action under this section is remedial and does not limit any other civil or criminal action. Civil remedies provided under this section are supplemental and not mutually exclusive.

Source: S.L. 1983, ch. 163, § 5; 1987, ch. 165, § 4; 1997, ch. 119, § 4.

Notes to Decisions

Complaint.

Defendants’ contention they did not commit theft or use plaintiff’s material improperly would not sustain summary judgment on claim alleging violation of Racketeer Influenced and Corrupt Organization Act (RICO); they had to present evidence demonstrating why complaint did not state a predicate act under RICO. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Complaint Insufficient.

Where a complaint did not plead dates, times, and places of fraudulent statements, characterized some events as criminal, but did not allege any relevant convictions or probable cause, the complaint did not plead criminal activity with the particularity required to support a Racketeer and Corrupt Organizations Act (RICO) claim. Rolin Mfg. v. Mosbrucker, 544 N.W.2d 132, 1996 N.D. LEXIS 48 (N.D. 1996).

Limited liability company’s (LLC) racketeering claim was properly dismissed because the LLC’s allegations were conclusory, it did not allege any prior convictions, and the allegations were not sufficient for probable cause. McColl Farms, LLC v. Pflaum, 2013 ND 169, 837 N.W.2d 359, 2013 N.D. LEXIS 170 (N.D. 2013).

Independent contractor failed to state a claim against a package delivery company because the contractor did not sufficiently allege two predicate acts of racketeering activity; the contractor failed to sufficiently plead facts supporting claims of fraud and violation of the North Dakota Franchise Investment Law. Neubauer v. FedEx Corp., 849 F.3d 400, 2017 U.S. App. LEXIS 2788 (8th Cir. N.D. 2017).

Statute of Limitations.

Three year statute of limitations under N.D.C.C. § 28-01-22.1 applies only when no other period is specified; therefore, whether seven year statute of limitations under this section for violations of the Racketeer Influenced and Corrupt Organization Act (RICO) applied depended on whether plaintiff demonstrated state employee’s conduct amounted to a pattern of racketeering activity, under RICO. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Collateral References.

Civil action for damages under state Racketeer Influenced and Corrupt Organizations Acts (RICO) for losses from racketeering activity, 62 A.L.R.4th 654.

Law Reviews.

Racketeer Influence and Corrupt Organizations Act — Civil Rico: Stating A Claim in North Dakota, 73 N.D. L. Rev. 741 (1997).

12.1-06.1-06. Racketeering lien — Content — Filing — Notice — Effect.

  1. The state, upon filing a civil action under section 12.1-06.1-05 or upon charging an offense included in the definition of racketeering if the offense is committed as a part of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03, may file a racketeering lien. A filing fee or other charge is not required for filing a racketeering lien.
  2. A racketeering lien shall be signed by the attorney general or the state’s attorney representing the state in the action and set forth the following information:
    1. The name of the defendant whose property, interests in property, or other interests are to be subject to the lien.
    2. In the discretion of the attorney general or state’s attorney filing the lien, any aliases or fictitious names of the defendant named in the lien.
    3. If known to the attorney general or state’s attorney filing the lien, the present residence or principal place of business of the person named in the lien.
    4. A reference to the proceeding pursuant to which the lien is filed, including the name of the court, the title of the action, and the court’s file number for the proceeding.
    5. The name and address of the attorney representing the state in the proceeding pursuant to which the lien is filed.
    6. A statement that the notice is being filed pursuant to this section.
    7. The amount which the state claims in the action or, with respect to property or other interests which the state has requested forfeiture to the state or county, a description of the property or interests sought to be paid or forfeited.
    8. If known to the attorney general or state’s attorney filing the lien, a description of property which is subject to forfeiture to the state or property in which the defendant has an interest which is available to satisfy a judgment entered in favor of the state.
    9. Such other information as the attorney general or state’s attorney filing the lien deems appropriate.
  3. The attorney general or the state’s attorney filing the lien may amend a lien filed under this section at any time by filing an amended racketeering lien in accordance with this section which identifies the prior lien amended.
  4. The attorney general or the state’s attorney filing the lien shall, as soon as practical after filing a racketeering lien, furnish to any person named in the lien a notice of the filing of the lien. Failure to furnish notice under this subsection does not invalidate or otherwise affect a racketeering lien filed in accordance with this section.
  5. A racketeering lien is perfected against interests in personal property by filing the lien with the secretary of state, except that in the case of titled motor vehicles it shall be filed with the director of the department of transportation. A racketeering lien is perfected against interests in real property by filing the lien with the county recorder of the county in which the real property is located. The state may give additional notice of the lien.
  6. The filing of a racketeering lien in accordance with this section creates a lien in favor of the state in:
    1. Any interest of the defendant in real property situated in the county in which the lien is filed, then maintained or later acquired in the name of the defendant identified in the lien.
    2. Any interest of the defendant in personal property situated in this state, then maintained or later acquired in the name of the defendant identified in the lien.
    3. Any property identified in the lien to the extent of the defendant’s interest in the property.
  7. The filing of a racketeering lien under this section is notice to all persons dealing with the person or property identified in the lien of the state’s claim. The lien created in favor of the state in accordance with this section is superior and prior to the claims or interests of any other person, except a person possessing:
    1. A valid lien perfected prior to the filing of the racketeering lien.
    2. In the case of real property, an interest acquired and recorded prior to the filing of the racketeering lien.
    3. In the case of personal property, an interest acquired prior to the filing of the racketeering lien.
  8. Upon entry of judgment in favor of the state, the state may proceed to execute the judgment as in the case of any other judgment, except that in order to preserve the state’s lien priority as provided in this section the state shall, in addition to notice as required by law, give at least thirty days’ notice of execution to any person possessing at the time notice is given, an interest recorded after the date the state’s lien was perfected.
  9. Upon the entry of a final judgment in favor of the state providing for forfeiture of property to the state, the title of the state to the property:
    1. In the case of real property, or a beneficial interest in real property, relates back to the date of filing the racketeering lien with the county recorder of the county where the real property is located, or if no racketeering lien is filed, then to the date of recording of the final judgment with the county recorder of the county where the real property is located.
    2. In the case of personal property or a beneficial interest in personal property, relates back to the date the personal property was seized by the state, or the date of filing of a racketeering lien in accordance with this section, whichever is earlier, but if the property was not seized and no racketeering lien was filed then to the date the final judgment was filed with the secretary of state, or in the case of a titled motor vehicle, with the director of the department of transportation.
  10. This section does not limit the right of the state to obtain any order or injunction, receivership, writ, attachment, garnishment, or other remedy authorized under section 12.1-06.1-05 or available under other applicable law.

Source: S.L. 1983, ch. 163, § 6; 1987, ch. 165, § 5; 1997, ch. 119, § 5; 2001, ch. 120, § 1.

12.1-06.1-07. Racketeering — Investigation of records — Confidentiality — Court enforcement — Classification.

  1. A custodian of the records of a financial institution shall, at no expense to the financial institution, produce for inspection or copying the records in the custody of the financial institution when requested to be inspected by the attorney general or a state’s attorney authorized by the attorney general, if the person requesting the information signs and submits a sworn statement to the custodian that the request is made to investigate a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03. Records may be removed from the premises of the financial institution only for the purpose of copying the records and must be returned within forty-eight hours. The attorney general or an authorized state’s attorney or any peace officer designated by an authorized state’s attorney or the attorney general may not use or release the information except in the proper discharge of official duties. The furnishing of records in compliance with this section by a custodian of records is a bar to civil or criminal liability against the custodian or financial institution in any action brought alleging violation of the confidentiality of the records. The fact that records have been obtained may not be released in any way by the financial institution until ninety days after the release.
  2. The attorney general or the authorized state’s attorney may petition the district court for enforcement of this section upon noncompliance with the request for inspection. Enforcement must be granted if the request is reasonable and the attorney general or the authorized state’s attorney has reasonable grounds to believe the records sought to be inspected are relevant to a civil or criminal investigation of a pattern of racketeering activity or a violation of section 12.1-06.1-02 or 12.1-06.1-03.
  3. The investigation authority granted pursuant to the provisions of this section may not be exercised by a state’s attorney in the absence of authorization by the attorney general.
  4. Any person releasing information obtained pursuant to this section, except in the proper discharge of official duties, is guilty of a class B misdemeanor.

Source: S.L. 1983, ch. 163, § 7; 1987, ch. 165, § 6; 1997, ch. 119, § 6.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-06.1-08. Computer fraud — Computer crime — Classification — Penalty.

  1. A person commits computer fraud by gaining or attempting to gain access to, altering, damaging, modifying, copying, disclosing, taking possession of, or destroying any computer, computer system, computer network, or any part of the computer, computer system, or computer network, without authorization, and with the intent to devise or execute any scheme or artifice to defraud, deceive, prevent the authorized use of, or control property or services by means of false or fraudulent pretenses, representations, or promises. A person who commits computer fraud is guilty of a class C felony.
  2. A person commits computer crime by intentionally and either in excess of authorization given or without authorization gaining or attempting to gain access to, altering, damaging, modifying, copying, disclosing, taking possession of, introducing a computer contaminant into, destroying, or preventing the authorized use of any computer, computer system, or computer network, or any computer software, program, or data contained in the computer, computer system, or computer network. A person who commits computer crime is guilty of a class A misdemeanor.
  3. In addition to any other remedy available, the owner or lessee of a computer, computer system, computer network, or any part of the computer, computer system, or computer network may bring a civil action for damages, restitution, and attorney’s fees for damages incurred as a result of the violation of this section.

Source: S.L. 1983, ch. 163, § 8; 1987, ch. 164, § 2; 2003, ch. 104, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Question of Fact.

Whether theft of survey instrument and computer theft under this section amounted to a pattern of racketeering activity, under the Racketeer Influenced and Corrupt Organization Act, was a question of fact, precluding summary judgment in civil action. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Collateral References.

Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files, or systems, 51 A.L.R.4th 971.

What is computer “trade secret” under state law, 53 A.L.R.4th 1046.

Computer fraud, 70 A.L.R.5th 647.

Validity, construction, and application of state computer crime and fraud laws, 87 A.L.R.6th 1.

CHAPTER 12.1-06.2 Criminal Street Gangs

12.1-06.2-01. Definitions.

As used in this chapter, the term:

  1. “Crime of pecuniary gain” means any violation of state law that directly results or was intended to result in the defendant alone, or in association with others, receiving income, benefit, property, money, or anything of value.
  2. “Crime of violence” means any violation of state law where a person purposely or knowingly causes or threatens to cause death or physical bodily injury to another person or persons.
  3. “Criminal street gang” means any ongoing organization or group of three or more persons, whether formal or informal, that acts in concert or agrees to act in concert with a purpose that any of those persons alone or in any combination commit or will commit two or more predicate gang crimes one of which occurs after August 1, 1995, and the last of which occurred within five years after the commission of a prior predicate gang crime.
  4. “Participate in a criminal street gang” means to act in concert with a criminal street gang with intent to commit or with the intent that any other person associated with the criminal street gang will commit one or more predicate gang crimes.
  5. “Predicate gang crime” means the commission, attempted commission, or solicitation of any felony, misdemeanor crime of violence, or misdemeanor crime of pecuniary gain.

Source: S.L. 1995, ch. 124, § 1.

12.1-06.2-02. Criminal street gang crime — Penalty.

Any person who commits a felony or class A misdemeanor crime of violence or crime of pecuniary gain for the benefit of, at the direction of, or in association with any criminal street gang, with the intent to promote, further, or assist in the affairs of a criminal gang, or obtain membership into a criminal gang, is guilty of a class C felony.

Source: S.L. 1995, ch. 124, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Right to Fair Trial.

Defendant was not denied fair trial by state charging him with street-gang crime and moving to have that charge dismissed at the end of its case-in-chief, where defendant did not show street-gang charge was a bad faith contrivance by state’s attorney. State v. Garcia, 1997 ND 60, 561 N.W.2d 599, 1997 N.D. LEXIS 45 (N.D.), cert. denied, 522 U.S. 874, 118 S. Ct. 193, 139 L. Ed. 2d 131, 1997 U.S. LEXIS 5532 (U.S. 1997).

12.1-06.2-03. Encouraging minors to participate in criminal street gang — Penalty.

  1. Any person eighteen years of age or older who knowingly or willfully causes, aids, abets, encourages, solicits, or recruits a person under the age of eighteen years to participate in a criminal street gang is upon conviction guilty of a class C felony.
  2. Nothing in this section may be construed to limit prosecution under any other provision of law.

Source: S.L. 1995, ch. 124, § 1.

12.1-06.2-04. Local ordinances not preempted.

Nothing in this chapter may be construed as preventing a local governing body from adopting and enforcing ordinances relating to gangs and gang-related violence.

Source: S.L. 1995, ch. 124, § 1.

CHAPTER 12.1-07 Treason — Flag Desecration

12.1-07-01. Treason.

Treason as defined in section 17 of article I of the Constitution of North Dakota is a class A felony.

Source: S.L. 1973, ch. 116, § 7.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Constitutional provision defining treason, see N.D. Const., Art. I, § 17.

Overt act without state, jurisdiction, see N.D.C.C. § 29-03-11.

12.1-07-02. Desecration of the flag of the United States.

  1. A person is guilty of a class A misdemeanor if he knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it.
  2. The term “flag of the United States” as used in this section shall include any flag, standard, colors, or ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America, or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, standard, colors, or ensign of the United States of America.

Source: S.L. 1973, ch. 116, § 7.

Note.

The validity, under the federal Constitution, of a similar Nebraska act providing for the protection of the national flag against illegitimate uses was upheld in Halter v. Nebraska, 205 U.S 34, 51 L.Ed 696, 27 S. Ct. 419 (1907).

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Similar Flag.

Flag similar to United States flag except for peace symbol instead of stars in the upper left corner on blue field was never a United States flag and could not be subject of flag desecration. State v. Nicola, 182 N.W.2d 870, 1971 N.D. LEXIS 151 (N.D. 1971).

Collateral References.

Flag desecration statutes, what constitutes violation of, 41 A.L.R.3d 502.

Validity, and Standing to Challenge Validity, of State Statute Prohibiting Flag Desecration and Misuse, 31 A.L.R.6th 333.

12.1-07-03. Carrying in parade or the display of certain flags, ensigns, banners, and standards prohibited.

No flag of any nation, state, country, or territory other than the flag of the United States or a state flag, or the flag of a friendly foreign nation, or the dependencies of such nations, shall be:

  1. Carried in parade on any public street or highway within this state.
  2. Exhibited in any hall or public place.
  3. Displayed or exhibited:
    1. On any vehicle.
    2. On any building or premises.
    3. In any other manner in public within the state.

Source: S.L. 1975, ch. 117, § 1.

Notes to Decisions

Constitutionality.

This section is in contravention of the First and Fourteenth Amendments to the United States Constitution and is unconstitutional on its face. Altevogt v. Sinner, Civil No. A4-88-072 (D.N.D. 1988).

Collateral References.

Validity, construction, and application of state or local enactments regulating parades, 80 A.L.R.5th 255.

Validity, and Standing to Challenge Validity, of State Statute Prohibiting Flag Desecration and Misuse, 31 A.L.R.6th 333.

12.1-07-04. Red or black flags prohibited. [Repealed]

Repealed by S.L. 1981, ch. 155, § 2.

12.1-07-05. Penalty.

Any person who violates any of the provisions of section 12.1-07-03 is guilty of a class B misdemeanor.

Source: S.L. 1975, ch. 117, § 3; 1981, ch. 155, § 1.

Cross-References.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-08 Obstruction of Law Enforcement — Escape

12.1-08-01. Physical obstruction of government function.

  1. A person is guilty of a class A misdemeanor if he intentionally obstructs, impairs, impedes, hinders, prevents, or perverts the administration of law or other governmental function.
  2. This section does not apply to the conduct of a person obstructing arrest of himself, but such conduct is subject to section 12.1-08-02. This section does apply to the conduct of a person obstructing arrest of another. Inapplicability under this subsection is a defense.
  3. It is a defense to a prosecution under this section that the administration of law or other government function was not lawful, but it is no defense that the defendant mistakenly believed that the administration of law or other government function was not lawful. For the purposes of this subsection, the conduct of a public servant acting in good faith and under color of law in the execution of a warrant or other process for arrest or search and seizure shall be deemed lawful.

Source: S.L. 1973, ch. 116, § 8; 1975, ch. 116, § 5.

Cross-References.

Mistake of fact or law, see N.D.C.C. §§ 12.1-02-03, 12.1-05-09.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Action Not Obstruction.

As a matter of law, defendant’s conduct in asking the officer why people were being arrested, without more, did not constitute physical obstruction of a public officer in the discharge of his duty. City of Grand Forks v. Cameron, 435 N.W.2d 700, 1989 N.D. LEXIS 30 (N.D. 1989).

Applicability.

While this statute does not apply to the conduct of a person obstructing arrest of himself, it does apply to the conduct of a person obstructing arrest of another. State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Elements of Offense.

Although the use of direct force or physical violence may not be required to constitute the offense of physical obstruction of a government function, some overt act is required. State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Photographic evidence of defendant linking arms with others when law enforcement officers were arresting individuals grouped together at a skirmish line was sufficient to sustain his ND.C.C. § 12.1-08-01 conviction. State v. Simon, 2018 ND 197, 916 N.W.2d 626, 2018 N.D. LEXIS 214 (N.D. 2018).

Jury Instruction.

Jury instruction held sufficient to support conviction for physical obstruction of a governmental function. State v. Rott, 380 N.W.2d 325, 1986 N.D. LEXIS 238 (N.D. 1986).

Refusal to Leave.

One’s refusal to leave after being instructed by an officer to do so may constitute obstruction. City of Grand Forks v. Cameron, 435 N.W.2d 700, 1989 N.D. LEXIS 30 (N.D. 1989).

Substantial Stoppage.

Section does not require a substantial stoppage of the officer’s progress for a violation to have been committed. State v. Rott, 380 N.W.2d 325, 1986 N.D. LEXIS 238 (N.D. 1986).

Collateral References.

Criminal liability for obstructing process as affected by invalidity or irregularity of the process, 10 A.L.R.3d 1146.

When statute of limitations begins to run on charge of obstructing justice or of conspiring to do so, 77 A.L.R.3d 725.

Defenses to state obstruction of justice charge relating to interfering with criminal investigation or judicial proceeding, 87 A.L.R.5th 597.

Criminal and civil liability of civilians and police officers concerning recording of police actions, 84 A.L.R.6th 89.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to criminal law, 66 N.D. L. Rev. 753 (1990).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-08-02. Preventing arrest or discharge of other duties.

  1. 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 or the discharge of the duty. A person is guilty of a class C felony if, with intent to prevent a public servant from effecting an arrest of himself or another for a class A, B, or C felony, 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 such an arrest.
  2. It is a defense to a prosecution under this section that the public servant was not acting lawfully, but it is no defense that the defendant mistakenly believed that the public servant was not acting lawfully. A public servant executing a warrant or other process in good faith and under color of law shall be deemed to be acting lawfully.

Source: S.L. 1973, ch. 116, § 8; 1975, ch. 116, § 6.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Mistake of law or fact, see N.D.C.C. §§ 12.1-02-03, 12.1-05-09.

Notes to Decisions

Evidence.
—Derived From Unlawful Conduct.

Although traditionally the remedy for constitutional violations has been exclusion of the evidence derived from the unlawful conduct, the remedy for unlawful official conduct in a preventing-arrest case is to permit the defendant to raise the factual defense of unlawfulness. State v. Cox, 532 N.W.2d 384, 1995 N.D. LEXIS 103 (N.D. 1995).

—Held Sufficient.

Defendant intended to prevent a public servant from effecting an arrest and thereby created a substantial risk of bodily injury to the public servant or to anyone except himself where he struggled with police officers, injuring one’s thumb, and attempted to kick the officers. State v. Hondl, 506 N.W.2d 404, 1993 N.D. LEXIS 181 (N.D. 1993).

Evidence was sufficient to convict defendant of preventing arrest or discharge of other duties where defendant created a substantial risk of bodily injury to the sheriff and “substantial force” was required to overcome defendant’s resistance to effecting the arrest and the sheriff was acting lawfully when he arrested defendant. Defendant swung at the sheriff one or two times and when the sheriff told defendant he was placing him under arrest, defendant put up both fists and swung and grazed the side of the sheriff’s face, and, after wrestling defendant to the ground he was trying to kick the sheriff. State v. Barth, 2005 ND 134, 702 N.W.2d 1, 2005 N.D. LEXIS 169 (N.D. 2005).

Actual or imminent physical combat between an officer and a defendant is not required before charges under N.D.C.C. § 12.1-08-02 are sustainable; therefore, defendant was properly convicted of preventing arrest or discharge of other duties under N.D.C.C. § 12.1-08-02(1) when he physically resisted handcuffing during the issuance of a citation. State v. Brossart, 2007 ND 39, 729 N.W.2d 137, 2007 N.D. LEXIS 40 (N.D. 2007).

Sufficient evidence existed to support defendant’s conviction for resisting arrest under N.D.C.C. § 12.1-08-02(1) because (1) an arresting officer testified that he thought the arrest occurred after he removed defendant from defendant’s vehicle and held defendant at the hood of the patrol car; (2) the officer testified that while attempting to place defendant in his patrol car, he had to call for the help of another police officer because defendant would not climb into the back seat of the patrol car until both officers used physical force to place him there; and (3) the officer’s testimony allowed a reasonable factfinder to determine guilt for resisting arrest. State v. Skarsgard, 2008 ND 31, 745 N.W.2d 358, 2008 N.D. LEXIS 32 (N.D. 2008).

Defendant was properly convicted of simple assault on a peace officer, fleeing or attempting to elude a peace officer, and preventing arrest because he was given a visual signal to stop when a detective activated his emergency lights and, while the emergency lights were still on and without any indication the detective had released him, defendant drove away and when the detective another officer later encountered defendant at a storage unit, defendant shoved the detective into a storage unit door, closed his car door on the detective’s arm, and kicked the other officer in the chest and chin, causing both officers pain. State v. Hamre, 2019 ND 86, 924 N.W.2d 776, 2019 N.D. LEXIS 85 (N.D. 2019).

Defendant’s conviction for class A misdemeanor engaging in a riot was not supported by substantial evidence because defendant’s act of locking arms and resisting arrest with other protesters did not rise to the commonly understood definition of violence; it was law enforcement that was required to use force to overcome the protesters’ non-compliance, and the situation was more akin to preventing arrest or discharge of other duties. State v. Bearrunner, 2019 ND 29, 921 N.W.2d 894, 2019 N.D. LEXIS 29 (N.D. 2019).

District court did not err in applying the four-level enhancement because there was preponderance of the evidence that the defendant possessed the firearm “in connection with” the felony-level preventing arrest conduct as defendant engaged in the felony-level offensive conduct precisely because the firearm had a round chambered and was somewhere in his pants during the struggle with law enforcement and the conduct alone posed a substantial risk of misfire and potential injury to the officers. United States v. Nilsen, — F.3d —, 18 F.4th 587, 2021 U.S. App. LEXIS 34387 (8th Cir. N.D. 2021).

Execution of Warrant.

Officers were acting lawfully under N.D.C.C. §§ 29-06-02 and 12.1-08-02(2) when executing a federal arrest warrant, and defendant made no contrary showing. Therefore, the contraband yielded was admissible against defendant because it was found in a search incident to a valid arrest. State v. Proell, 2007 ND 17, 726 N.W.2d 591, 2007 N.D. LEXIS 11 (N.D. 2007).

Factual Defenses.
—Pretrial Proceedings.

Although there are factual defenses to this charge for unlawful official conduct, pretrial proceedings are not the appropriate stage to resolve fact issues regarding guilt or innocence. State v. DuPaul, 509 N.W.2d 266, 1993 N.D. LEXIS 232 (N.D. 1993).

Failure to Stop Automobile.

When a police officer turns on his flashing red lights it constitutes a directive for the driver to pull over. The driver who does not stop has committed a crime. State v. Indvik, 382 N.W.2d 623, 1986 N.D. LEXIS 270 (N.D. 1986).

Investigatory Stop.

Where defendant was stopped because his vehicle was observed weaving through traffic without signaling lane changes and because police had received a report that a vehicle matching that description had struck a viaduct, then, in the course of investigating those incidents, the officers were presented with facts giving rise to a reasonable suspicion that defendant was driving while under the influence of alcohol, and they were justified in briefly detaining defendant to further investigate that suspicion. By fleeing while he was still being lawfully detained by the officers, defendant prevented them from carrying out their official duties, conduct which may have constituted a violation of this section. State v. DuPaul, 509 N.W.2d 266, 1993 N.D. LEXIS 232 (N.D. 1993).

Lack of Transcript on Appeal.

Where defendant provided no transcript on appeal, as required by N.D.R.App.P. 10(b), from convictions for preventing arrest and related offenses, the appellate court had no basis to evaluate the sufficiency of the evidence and, in response to defendant’s argument that his arrest was not a lawful warrantless arrest under N.D.C.C. § 29-06-15, had to infer that defendant failed to provide evidence supporting the defense of unlawful police conduct under N.D.C.C. § 12.1-08-02. State v. Mathre, 2004 ND 149, 683 N.W.2d 918, 2004 N.D. LEXIS 277 (N.D. 2004).

Leaving Scene During Investigation.

The fact that officer did not immediately arrest defendant did not authorize defendant to leave during a reasonable and noncoercive stop and investigation. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 1992 N.D. LEXIS 117 (N.D. 1992).

Collateral References.

Resisting illegal arrest, with force, 44 A.L.R.3d 1078.

What constitutes obstructing or resisting officer, in absence of actual force, 66 A.L.R.5th 397.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-08-03. Hindering law enforcement.

  1. A person is guilty of hindering law enforcement if he intentionally interferes with, hinders, delays, or prevents the discovery, apprehension, prosecution, conviction, or punishment of another for an offense by:
    1. Harboring or concealing the other;
    2. Providing the other with a weapon, money, transportation, disguise, or other means of avoiding discovery or apprehension;
    3. Concealing, altering, mutilating, or destroying a document or thing, regardless of its admissibility in evidence;
    4. Warning the other of impending discovery or apprehension other than in connection with an effort to bring another into compliance with the law; or
    5. Giving false information or a false report to a law enforcement officer knowing such information or report to be false.
  2. Hindering law enforcement is a class C felony if the actor:
    1. Knows of the conduct of the other and such conduct constitutes a class AA, class A, or class B felony; or
    2. Knows that the other has been charged with or convicted of a crime and such crime is a class AA, class A, or class B felony.
  3. A person who commits the crime of hindering law enforcement is subject to prosecution in this state if the conduct interferes with or hinders an investigation of a crime occurring within this state. The venue of a criminal action involving the crime of hindering law enforcement is in any county in which the conduct of hindering is committed or in any county in which a criminal offense is being investigated which is hindered by the false information or other interfering conduct.

Otherwise hindering law enforcement is a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 8; 1975, ch. 116, § 7; 1983, ch. 164, § 1; 2015, ch. 102, § 1, effective August 1, 2015.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Reasonable Suspicion.

Regardless of whether the officers had a reasonable and articulable suspicion that defendant was hindering law enforcement in violation of N.D.C.C. § 12.1-08-03, the trial court found, by then, the officers noticed that defendant had a knife in a sheath that was visible in his pocket and the officers thought defendant made some action that they interpreted as a first step toward taking out his folding knife; having seen the knife and furtive gestures, the officers certainly had a reasonable and articulable suspicion that defendant was armed and possibly dangerous. State v. Beane, 2009 ND 146, 770 N.W.2d 283, 2009 N.D. LEXIS 155 (N.D. 2009).

DECISIONS UNDER PRIOR LAW

State’s Attorney.

A state’s attorney who gambled for money in a gambling house without informing against and prosecuting the keeper was guilty of a misdemeanor. Voss, 11 N.D. 540, 90 N.W. 15, 1902 N.D. LEXIS 187 (N.D. 1902).

Collateral References.

Defenses to state obstruction of justice charge relating to interfering with criminal investigation or judicial proceeding, 87 A.L.R.5th 597.

Criminal and civil liability of civilians and police officers concerning recording of police actions, 84 A.L.R.6th 89.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

The 2015 amendment of this section by section 1 of chapter 102, S.L. 2015 became effective August 1, 2015.

12.1-08-04. Aiding consummation of crime.

  1. A person is guilty of aiding consummation of crime if he intentionally aids another to secrete, disguise, or convert the proceeds of a crime or otherwise profit from a crime.
  2. Aiding consummation of a crime:
    1. Is a class C felony if the actor knows of the conduct of the other and such conduct constitutes a class A or class B felony.
    2. Is a class A misdemeanor if the actor knows of the conduct of the other and such conduct constitutes a class C felony or class A misdemeanor.

Otherwise aiding consummation of a crime is a class B misdemeanor.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Compromise of public offense prohibited except for misdemeanor or infraction on request of injured party, see N.D.C.C. § 29-01-19.

DECISIONS UNDER PRIOR LAW

Analysis

Express or Implied Contract.

Any contract or agreement, express or implied, to conceal or compound an offense, to abstain from prosecuting therefor, or to withhold any evidence thereof, was unlawful. School Dist. v. Collins, 41 N.W. 466, 6 Dakota 145, 1889 Dakota LEXIS 11 (Dakota 1889).

Ineffective Defense.

In an action on notes where the defense was that they were given to compound a felony, the answer did not state a defense because it did not show the commission of a crime or an agreement to compound a crime. Grandin Inv. Co. v. Hartung, 49 N.D. 364, 191 N.W. 783, 1922 N.D. LEXIS 64 (N.D. 1922).

12.1-08-05. Failure to appear after release — Bail jumping.

  1. A person is guilty of an offense if, after having been released upon condition or undertaking that he will subsequently appear before a court or judicial officer as required, he willfully fails to appear as required.
  2. The offense is a class C felony if the actor was released in connection with a charge of felony or while awaiting sentence or pending appeal after conviction of any crime. Otherwise it is a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Evidence Sufficient.

Evidence, including that defendant did miss her preliminary hearing, that she turned herself in 11 days thereafter, and that it was common for methamphetamine users to crash and sleep for a couple days was sufficient to convict defendant of failure to appear in violation of N.D.C.C. § 12.1-08-05(1). State v. Demarais, 2009 ND 143, 770 N.W.2d 246, 2009 N.D. LEXIS 149 (N.D. 2009).

Time of Release.

To be a violation of this section, the failure to appear must follow a release subsequent, and not prior, to an appearance before the court or judicial officer. State v. Howe, 257 N.W.2d 413, 1977 N.D. LEXIS 160 (N.D. 1977).

Collateral References.

State statutes making default on bail a separate criminal offense, 63 A.L.R.4th 1064.

Forfeiture of bail for breach of conditions of release other than that of appearance, 68 A.L.R.4th 1082.

Failure of person, released pursuant to provisions of Federal Bail Reform Act of 1966 (18 USCS secs. 3141 et. seq.), to make appearance as subjecting person to penalty provided for by 18 USCS sec. 3150, 66 A.L.R. Fed. 668.

12.1-08-06. Escape.

  1. A person is guilty of escape if, without lawful authority, the person removes or attempts to remove himself from official detention or fails to return to official detention following temporary leave granted for a specified purpose or limited period. A person who is subject to official detention under this section is guilty of escape, if while outside the state of North Dakota and without lawful authority, the person removes or attempts to remove himself from official detention, or fails to return to official detention following temporary leave granted for a specified purpose or limited period, when at the time the person is in the legal custody of a warden of the penitentiary, department of corrections and rehabilitation, or other competent authority by virtue of a lawful commitment to official detention.
  2. Escape is a class B felony if the actor uses a firearm, destructive device, or other dangerous weapon in effecting or attempting to effect the actor’s removal from official detention. Escape is a class C felony if:
    1. The actor uses any other force or threat of force against another in effecting or attempting to effect the actor’s removal from official detention; or
    2. The person escaping was in official detention by virtue of the person’s arrest for, or on charge of, a felony, or pursuant to the person’s conviction of any offense. Otherwise escape is a class A misdemeanor.
  3. In this section:
    1. “Conviction of an offense” does not include an adjudication of juvenile delinquency.
    2. “Official detention” means arrest, custody following surrender in lieu of arrest, detention in any facility for custody of persons under charge or conviction of an offense or alleged or found to be delinquent, detention under a law authorizing civil commitment in lieu of criminal proceedings or authorizing such detention while criminal proceedings are held in abeyance, detention for extradition, home detention as authorized by chapter 12-67, or custody for purposes incident to the foregoing, including transportation, medical diagnosis or treatment, court appearances, work, and recreation, or being absent without permission from any release granted while under custody of a sentence such as work or education release, community confinement, or other temporary leaves from a correctional or placement facility. “Official detention” does not include supervision on probation or parole or constraint incidental to release.
  4. Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority, shall not be a defense to a prosecution under this section if the escape is from the penitentiary or other facility used for official detention or from detention pursuant to commitment by an official proceeding. In the case of other detentions, irregularity or lack of jurisdiction shall be an affirmative defense if:
    1. The escape involved no substantial risk of harm to the person or property of anyone other than the detainee; or
    2. The detaining authority did not act in good faith under color of law.
  5. The jurisdiction of a violation of this section when the person is in the legal custody of a warden of the penitentiary, the department of corrections and rehabilitation, or other lawful authority is in the county where the violation occurred if the violation occurred within this state, and is in Burleigh County or in the county in which the order committing the person to official detention was entered if the violation occurred outside this state.

Source: S.L. 1973, ch. 116, § 8; 1995, ch. 121, § 4; 2001, ch. 131, §§ 1, 2; 2007, ch. 117, § 2.

Cross-References.

Aiding or attempting the rescue or escape of another when county in state of insurrection, see N.D.C.C. § 37-01-20.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Criminal attempt, see N.D.C.C. § 12.1-06-01.

Notes to Decisions

Official Detention.

For an involuntary civil commitment to constitute official detention, a court determination is necessary that civil commitment is in lieu of a criminal proceeding or that civil commitment is while criminal charges are held in abeyance; this necessarily implies that criminal proceedings be initiated and that a court make such determinations. State v. Wingerter, 334 N.W.2d 475, 1983 N.D. LEXIS 285 (N.D. 1983).

Defendant was not in official detention while he was in state hospital as result of an involuntary civil commitment where there was no court determination that civil commitment was in lieu of criminal proceedings or while criminal proceedings were held in abeyance. State v. Wingerter, 334 N.W.2d 475, 1983 N.D. LEXIS 285 (N.D. 1983).

Defendant was guilty of felony escape where he exited sheriff’s vehicle and barricaded himself in a house after the sheriff had arrested him for violation of probation, because defendant was under official detention while in the vehicle and such detention was causally related to the defendant’s underlying conviction. State v. Rue, 2001 ND 92, 626 N.W.2d 681, 2001 N.D. LEXIS 108 (N.D. 2001).

DECISIONS UNDER PRIOR LAW

Failure to Allege Intent.

Failure to charge that accused escaped from prison “with intent to escape therefrom” was not a jurisdictional defect since intent to avoid lawful confinement or custody is inherent in word escape and since instructions required jury to find that accused had the intent to escape. State v. Hendrick, 164 N.W.2d 57, 1969 N.D. LEXIS 119 (N.D. 1969).

Recapture of Escapee.

Arrest and return of an escapee was not an arrest for the crime of escape, but a recapture under the direction of the warden; prisoner was taken into custody for the crime of escape at the time he was taken from the penitentiary with the approval of the warden and brought before the court for a preliminary hearing. State v. Brodell, 220 N.W.2d 848, 1974 N.D. LEXIS 209 (N.D. 1974).

Collateral References.

Escape or prison breach as affected by means employed, 96 A.L.R.2d 520.

Failure of prisoner to return at expiration of work furlough or other permissive release period as crime of escape, 76 A.L.R.3d 658.

Temporary unauthorized absence of prisoner as escape or attempted escape, 76 A.L.R.3d 695.

Conviction for escape where prisoner fails to leave confines of prison or institution, 79 A.L.R.4th 1060.

Validity, construction, and application of juvenile escape statutes, 46 A.L.R.5th 523.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.

12.1-08-07. Public servants permitting escape.

A public servant concerned in official detention pursuant to process issued by a court, judge, or magistrate is guilty of a class A misdemeanor if he recklessly permits an escape and is guilty of a class B misdemeanor if he negligently permits an escape. “Official detention” has the meaning prescribed in subsection 3 of section 12.1-08-06.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Action against sheriff for escape of prisoner, time limitation, see N.D.C.C. § 28-01-19.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sheriff’s liability for rescue or escape, see N.D.C.C. § 11-15-20.

12.1-08-08. Inciting or leading riot in detention facilities.

  1. A person is guilty of a class C felony if, with intent to cause, continue, or enlarge a riot, he solicits a group of five or more persons to engage in a riot in a facility used for official detention or engages in conduct intended to serve as the beginning of or signal for such riot, or participates in planning such riot, or, in the course of such riot, issues commands or instructions in furtherance thereof.
  2. In this section:
    1. “Official detention” has the meaning prescribed in subsection 3 of section 12.1-08-06.
    2. “Riot” means a disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs the operation of the facility or other government function.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Prosecutions of inmates of state or local penal institutions for crime of riot, 39 A.L.R.4th 1170.

12.1-08-09. Introducing or possessing contraband useful for escape.

  1. A person is guilty of a class C felony if he unlawfully provides an inmate of an official detention facility with any tool, weapon, or other object which may be useful for escape. Such person is guilty of a class B felony if the object is a firearm, destructive device, or other dangerous weapon.
  2. An inmate of an official detention facility is guilty of a class C felony if he unlawfully procures, makes, or otherwise provides himself with, or has in his possession, any tool, weapon, or other object which may be useful for escape. Such person is guilty of a class B felony if the object is a firearm, destructive device, or other dangerous weapon.
  3. In this section:
    1. “Official detention” has the meaning prescribed in subsection 3 of section 12.1-08-06.
    2. “Unlawfully” means surreptitiously or contrary to a statute or regulation, rule, or order issued pursuant thereto.

Source: S.L. 1973, ch. 116, § 8.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Criminal attempt, see N.D.C.C. § 12.1-06-01.

12.1-08-10. Harboring a runaway minor — Penalty.

A person who willfully harbors a runaway minor with knowledge that the child is being sought by a law enforcement authority is guilty of a class A misdemeanor. This section does not apply to a person who provides temporary sanctuary, not exceeding seventy-two hours, to a runaway minor who is seeking refuge from a physically, sexually, or mentally abusive person. For the purposes of this section, a “runaway minor” is an unemancipated minor who is voluntarily absent from the minor’s home without the consent of a minor’s parent entitled to legal custody of the minor or legal guardian with the intention of evading the direction or control of the parent or guardian. This section does not apply to persons providing temporary sanctuary to minors accompanied by a parent or legal guardian in a domestic violence shelter or safe home.

Source: S.L. 1991, ch. 122, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-08-11. Refusing to halt.

Any person, other than the driver of a motor vehicle under section 39-10-71, who willfully fails or refuses to stop or who otherwise flees or attempts to elude, in any manner, a pursuing peace officer, when given a visual or audible signal to stop, is guilty of a class B misdemeanor for a first or second offense and a class A misdemeanor for a subsequent offense. A signal to stop complies with this section if the signal is perceptible to the person and:

  1. If given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the vehicle is appropriately marked showing it to be an official law enforcement vehicle; or
  2. If not given from a vehicle, the signal is given by hand, voice, emergency light, or siren, and the officer is in uniform or prominently displays the officer’s badge of office.

Source: S.L. 1997, ch. 120, § 1; 2009, ch. 279, § 1; 2011, ch. 281, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Double Jeopardy.

Even if the City of Williston, North Dakota, had adopted N.D.C.C. § 12.1-08-11 verbatim as its city ordinance or the State had stipulated to the substitution, double jeopardy did not attach, because the statute to which defendant had already pled guilty was criminalized flight by anything other than a motor vehicle, including on foot, under N.D.C.C. § 12.1-08-11, and N.D.C.C. § 39-10-71, governed flight by motor vehicle. Thus, a comparison of the two offenses revealed that they were two distinctly different crimes; therefore, double jeopardy could not attach and his conviction under N.D.C.C. § 39-10-71(1) was affirmed. State v. Stensaker, 2007 ND 6, 725 N.W.2d 883, 2007 N.D. LEXIS 7 (N.D. 2007).

CHAPTER 12.1-09 Tampering and Unlawful Influence

12.1-09-01. Tampering with witnesses and informants in proceedings.

  1. A person is guilty of a class C felony if he uses force, threat, deception, or bribery:
    1. With intent to influence another’s testimony in an official proceeding; or
    2. With intent to induce or otherwise cause another:
      1. To withhold any testimony, information, document, or thing from an official proceeding, whether or not the other person would be legally privileged to do so;
      2. To violate section 12.1-09-03;
      3. To elude legal process summoning him to testify in an official proceeding; or
      4. To absent himself from an official proceeding to which he has been summoned.
  2. A person is guilty of a class C felony if he solicits, accepts, or agrees to accept from another a thing of pecuniary value as consideration for:
    1. Influencing the actor’s testimony in an official proceeding; or
    2. The actor’s engaging in the conduct described in paragraphs 1 through 4 of subdivision b of subsection 1.
    1. It is a defense to a prosecution under this section for use of threat with intent to influence another’s testimony that the threat was not of unlawful harm and was used solely to influence the other to testify truthfully.
    2. In a prosecution under this section based on bribery, it shall be an affirmative defense that any consideration for a person’s refraining from instigating or pressing the prosecution of an offense was to be limited to restitution or indemnification for harm caused by the offense.
    3. It is no defense to a prosecution under this section that an official proceeding was not pending or about to be instituted.
  3. This section shall not be construed to prohibit the payment or receipt of witness fees provided by statute, or the payment, by the party upon whose behalf a witness is called, and receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time spent in attendance at an official proceeding, or in the case of expert witnesses, a reasonable fee for preparing and presenting an expert opinion.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Knowledge of Accused.

To be guilty of an offense under this section, the defendant need not have absolute knowledge that the person threatened is expected to testify; information or a reasonably founded belief to that effect will suffice; whether the defendant possessed the requisite knowledge, information or belief is to be inferred from the circumstances and is a question of fact. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Substance of Offense.

The substance of the offense defined by this section is the use of a threat with intent to influence another as to his testimony in an official proceeding; it requires a willful and corrupt attempt to interfere with and obstruct the administration of justice; the offense is not limited to successful attempts at influence, but is complete when the coercive act is done. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Sufficiency of Charge.

Where information alleged that defendant, after learning of witness’ signature of complaint against a third party for contributing to the delinquency of a minor, telephoned her and told her that if she wanted to “play these silly little legal games” he would “sue for your back teeth”, sue her “for everything you’ve got”, and “charge you with neglect” of her child, it contained facts sufficient to support a charge under this section, and should not have been dismissed. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Sufficiency of Evidence.

Evidence was sufficient to convict defendant of tampering with a witness where, under N.D.C.C. § 12.1-09-01, the evidence showed that defendant had a reasonably founded belief that his daughter was expected to testify, and that he approached his daughter and her boyfriend in an attempt to bribe her to change her story about the drug paraphernalia. State v. Schmeets, 2007 ND 197, 742 N.W.2d 513, 2007 N.D. LEXIS 201 (N.D. 2007).

Who Is “Witness”.

In order to be a “witness” within the meaning of this section, one need not be under subpoena to testify; it is sufficient that he know or be supposed to know material facts and be expected to testify to them or be called to do so. State v. Howe, 247 N.W.2d 647, 1976 N.D. LEXIS 161 (N.D. 1976).

Collateral References.

Validity, construction, and application of state statutes imposing criminal penalties for influencing, intimidating, or tampering with witness, 8 A.L.R.4th 769.

Validity, construction, and application of federal witness tampering statute, 18 U.S.C.A. § 1512(b), 183 A.L.R. Fed. 611.

Construction and application of federal witness tampering statute, 18 U.S.C.A. § 1512(b), 185 A.L.R. Fed. 1.

12.1-09-02. Tampering with informants in criminal investigations.

A person is guilty of a class C felony if, believing another may have information relating to an offense, he deceives such other person or employs force, threat, or bribery with intent to hinder, delay, or prevent communication of such information to a law enforcement officer. The affirmative defense in subdivision b of subsection 3 of section 12.1-09-01 applies to this section.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

12.1-09-03. Tampering with physical evidence.

  1. A person is guilty of an offense if, believing an official proceeding is pending or about to be instituted, or believing process, demand, or order has been issued or is about to be issued, he alters, destroys, mutilates, conceals, or removes a record, document, or thing with intent to impair its verity or availability in such official proceeding or for the purposes of such process, demand, or order.
  2. The offense is a class C felony if the actor substantially obstructs, impairs, or perverts prosecution for a felony. Otherwise it is a class A misdemeanor.
  3. In this section, “process, demand, or order” means process, demand, or order authorized by law for the seizure, production, copying, discovery, or examination of a record, document, or thing.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Tampering with public records, see N.D.C.C. § 12.1-11-05.

Collateral References.

Intentional spoliation of evidence, interfering with prospective civil action, as actionable, 70 A.L.R.4th 984.

Criminal liability of attorney for tampering with evidence, 49 A.L.R. 5th 619.

Negligent spoliation of evidence, interfering with prospective civil action, as actionable, 101 A.L.R.5th 61.

Electronic spoliation of evidence, 3 A.L.R.6th 13.

Law Reviews.

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

12.1-09-04. Harassment of and communication with jurors.

  1. A person is guilty of a class A misdemeanor if, with intent to influence the official action of another as juror, that person communicates directly or indirectly with the juror, other than as part of the proceedings in a case, or harasses or alarms the juror. A person is guilty of a class A misdemeanor if, with the intent to harass or annoy a former juror because of the verdict returned by the jury or the participation of the juror in the verdict, that person communicates directly or indirectly with the juror in a manner that intimidates the juror or conveys a threat of injury or damage to the juror’s property or person. Conduct directed against the juror’s spouse or other relative residing in the same household with the juror shall be deemed conduct directed against the juror.
  2. In this section, “juror” means a grand juror or a petit juror and includes a person who has been drawn or summoned to attend as a prospective juror, and any referee, arbitrator, umpire, or assessor authorized by law to hear and determine any controversy.

Source: S.L. 1973, ch. 116, § 9; 2001, ch. 132, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Collateral References.

Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror, 3 A.L.R.5th 963.

12.1-09-05. Eavesdropping on jury deliberations.

  1. A person is guilty of a class A misdemeanor if he intentionally:
    1. Records the proceedings of a jury while such jury is deliberating or voting; or
    2. Listens to or observes the proceedings of any jury of which he is not a member while such jury is deliberating or voting.
  2. This section shall not apply to the taking of notes by a juror in connection with and solely for the purpose of assisting him in the performance of his official duties. Nor does this section apply to a person studying the jury process in the manner provided by statute, and under the control and supervision of the court. Inapplicability under this subsection is a defense.
  3. In this section, “jury” means grand jury or petit jury, and “juror” means grand juror or petit juror.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-09-06. Nondisclosure of retainer in criminal matter.

  1. A person employed for compensation to influence the official action of a public servant with respect to:
    1. The initiation, conduct, or dismissal of a prosecution;
    2. The imposition or modification of a sentence; or
    3. The granting of parole or probation is guilty of a class A misdemeanor if he privately addresses to such public servant any representation, entreaty, argument, or other communication intended to influence official action without disclosing the fact of such employment, knowing that the public servant is unaware of it.
  2. This section does not apply to an attorney at law or to a person authorized by statute or regulation to act in a representative capacity with respect to the official action when he is acting in such capacity and makes known to the public servant or has indicated in any manner authorized by law that he is acting in such capacity. Inapplicability under this subsection is a defense.

Source: S.L. 1973, ch. 116, § 9.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-10 Contempt — Obstruction of Judicial Proceedings

12.1-10-01. Criminal contempt. [Repealed]

Repealed by S.L. 1993, ch. 89, § 32.

12.1-10-02. Failure to appear as witness, to produce information, or to be sworn.

  1. A person who has been lawfully ordered to appear at a specified time and place to testify or to produce information in an official proceeding is guilty of a class A misdemeanor if, without lawful privilege, he fails to appear or to produce the information at that time and place.
  2. A person attending an official proceeding is guilty of a class A misdemeanor if, without lawful privilege, he fails to comply with a lawful order:
    1. To occupy or remain at the designated place from which he is to testify as a witness in such proceeding; or
    2. To be sworn or to make equivalent affirmation as a witness in such proceeding.
  3. It is a defense to a prosecution under this section that the defendant:
    1. Was prevented from appearing at the specified time and place or unable to produce the information because of circumstances to the creation of which he did not contribute in reckless disregard of the requirement to appear or to produce; or
    2. Complied with the order before his failure to do so substantially affected the proceeding.
  4. In this section, and in section 12.1-10-03:
    1. “Authorized agency” means an agency authorized by statute to issue subpoenas or similar process supported by the sanctions of this section.
    2. “Information” means a book, paper, document, record, or other tangible object.
    3. “Official proceeding” means:
      1. An official proceeding before a judge or court of this state, a magistrate, or a grand jury.
      2. An official proceeding before the legislative assembly or one of its session or interim committees.
      3. An official proceeding in which, pursuant to lawful authority, a court orders attendance or the production of information.
      4. An official proceeding before an authorized agency.
      5. An official proceeding which otherwise is made expressly subject to this section.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-10-03. Refusal to testify.

  1. A person is guilty of a class A misdemeanor if, without lawful privilege, he refuses:
    1. To answer a question pertinent to the subject under inquiry in an official proceeding before the legislative assembly, or one of its session or interim committees, and continues in such a refusal after the presiding officer directs him to answer, and advises him that his continuing refusal may make him subject to criminal prosecution; or
    2. To answer a question in any other official proceeding and continues in such refusal after a court or judge directs or orders him to answer and advises him that his continuing refusal may make him subject to criminal prosecution.
  2. It is a defense to a prosecution under this section that the defendant complied with the direction or order before his refusal to do so substantially affected the proceeding.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-10-04. Hindering proceedings by disorderly conduct.

  1. A person is guilty of a class A misdemeanor if the person intentionally hinders an official proceeding by noise or violent or tumultuous behavior or disturbance.
  2. A person is guilty of a class B misdemeanor if the person recklessly hinders an official proceeding by noise or violent or tumultuous behavior or disturbance.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Disorderly conduct, see N.D.C.C. § 12.1-31-01.

Collateral References.

Defenses to state obstruction of justice charge relating to interfering with criminal investigation or judicial proceeding, 87 A.L.R.5th 597.

12.1-10-05. Disobedience of judicial order.

  1. A person is guilty of a class A misdemeanor if the person disobeys or resists a lawful temporary restraining order or preliminary or final injunction or other final order, other than for the payment of money, of a court of this state.
  2. Notwithstanding the limitations of section 12.1-32-01, the defendant may be sentenced to pay a fine in any amount deemed just by the court.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Evidence Sufficient.

Sufficient evidence supported defendant’s convictions of four counts of disobedience of a judicial order because the evidence showed defendant repeatedly violated an eviction judgment by returning to live in a home from which defendant had been evicted. State v. Baltrusch, 2019 ND 259, 934 N.W.2d 886, 2019 N.D. LEXIS 261 (N.D. 2019).

Failure to Demand Hearing or Dissolution.

Trial court erred in dismissing criminal charges under this section against defendants accused of violating temporary injunction, who had not exercised their right to demand a hearing be held within six months of the time the temporary injunction was issued or to seek dissolution of the injunction after six months under N.D.C.C. § 32-06-03, because the injunction remained valid and their attempt to dissolve the injunction after the alleged violation came too late. State v. Holecek, 545 N.W.2d 800, 1996 N.D. LEXIS 102 (N.D. 1996).

Violation of Preliminary Injunction.

There was sufficient evidence for the jury to find that the defendant was guilty of disobeying a lawful preliminary injunction where the defendant evidenced knowledge of the injunction by her initial lawful demonstration, by her response to a warning, and by her testimony, where there was ample evidence that the defendant was part of a group that demonstrated other than quietly and peacefully, and where there were evidentiary conflicts and factual questions about the defendant’s state of mind sufficient for the jury to infer a willfulness to violate the injunction. State v. Franck, 499 N.W.2d 108, 1993 N.D. LEXIS 73 (N.D. 1993).

12.1-10-06. Soliciting obstruction of proceedings.

A person is guilty of a class A misdemeanor if the person solicits another to commit an offense defined in sections 12.1-10-02 through 12.1-10-05.

Source: S.L. 1973, ch. 116, § 10.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-11 Perjury — Falsification — Breach of Duty

12.1-11-01. Perjury.

  1. A person is guilty of perjury, a class C felony, if, in an official proceeding, the person makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a false statement previously made, when the statement is material and the person does not believe the statement to be true.
  2. Commission of perjury need not be proved by any particular number of witnesses or by documentary or other types of evidence.
  3. If in the course of one or more official proceedings, the defendant made a statement under oath or equivalent affirmation inconsistent with another statement made by the defendant under oath or equivalent affirmation to the degree that one of them is necessarily false, both having been made within the period of the statute of limitations, the prosecution may set forth the statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant to be true. Proof that the defendant made such statements constitutes a prima facie case that one or the other of the statements was false, but in the absence of sufficient proof of which statement was false, the defendant may be convicted under this section only if each of such statements was material to the official proceeding in which it was made.
  4. For purposes of this section, “false statement under oath or equivalent affirmation” includes a writing made in accordance with chapters 31-14 and 31-15.

Source: S.L. 1973, ch. 116, § 11; 2011, ch. 243, § 1; 2019, ch. 277, § 1, effective August 1, 2019.

Cross-References.

Parties to be advised of perjury provisions, see N.D.C.C. § 28-32-34.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Interpretation.

This section, entitled “Perjury,” and N.D.C.C. § 12.1-11-02, entitled “False statements,” are derived from sections 1351 and 1352, respectively, of the proposed Federal Criminal Code. Hence, when confronted with a question of statutory interpretation, courts will be guided by both the drafter’s official comments to the proposed Federal Criminal Code and the relevant legislative history. State v. Bower, 442 N.W.2d 438, 1989 N.D. LEXIS 131 (N.D. 1989).

Materiality of Statement.

In a prosecution of perjury, state must show that false statement was material to cause before court; such determination of materiality being a legal question for court. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

DECISIONS UNDER PRIOR LAW

Application for Insurance.

Knowingly and falsely answering interrogatories on an application for insurance agent’s license was perjury, since former N.D.C.C. § 26-17-01, providing for such interrogatories, required that they be answered under oath and no prohibition against giving false answers, or penalty for doing so, was provided in that section. State v. Davis, 138 N.W.2d 595, 1965 N.D. LEXIS 106 (N.D. 1965).

Materiality of Testimony.

A conviction could not be sustained where the record disclosed the false testimony to be immaterial, nor where the record failed to disclose the materiality of the testimony to the inquiry upon which it was given. State v. Falk, 34 N.D. 520, 159 N.W. 10, 1916 N.D. LEXIS 51 (N.D. 1916).

In a prosecution for perjury, the materiality of the questions asked on a former trial and of the answers given thereto were questions of law for the court. State v. Scott, 37 N.D. 105, 163 N.W. 810, 1917 N.D. LEXIS 86 (N.D. 1917).

Collateral References.

Recantation as defense in perjury prosecution, 64 A.L.R.2d 176, 281.

Statement of belief or opinion as perjury, 66 A.L.R.2d 791.

Circumstantial evidence, conviction of perjury where one or more of elements is established solely by, 88 A.L.R.2d 852.

Contempt, perjury or false swearing as, 89 A.L.R.2d 1258.

Defense: invalidity of statute or ordinance giving rise to proceedings in which false testimony was received as defense for prosecution for perjury, 34 A.L.R.3d 413.

Jurisdiction: offense of perjury as affected by lack of jurisdiction of court or government body before which false testimony was given, 36 A.L.R.3d 1038.

Attorney and client: rights and duties of attorney in a criminal prosecution where client informs him of intention to present perjured testimony, 64 A.L.R.3d 385.

Incomplete, misleading, or unresponsive but literally true statement as perjury, 69 A.L.R.3d 993.

Perjury conviction as affected by notary’s nonobservance of formalities for administration of oath to affiant, 80 A.L.R.3d 278.

Acquittal as bar to a prosecution of accused for perjury committed at trial, 89 A.L.R.3d 1098.

Materiality of testimony forming basis of perjury charge as question for court or jury in state trial, 37 A.L.R.4th 948.

Determination of materiality of allegedly perjurious testimony in prosecution under 18 USCS secs. 1621, 1622, 22 A.L.R. Fed. 379.

12.1-11-02. False statements.

  1. A person is guilty of a class A misdemeanor if, in an official proceeding, he makes a false statement, whether or not material, under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, if he does not believe the statement to be true.
  2. A person is guilty of a class A misdemeanor if, in a governmental matter, he:
    1. Makes a false written statement, when the statement is material and he does not believe it to be true;
    2. Intentionally creates a false impression in a written application for a pecuniary or other benefit, by omitting information necessary to prevent a material statement therein from being misleading;
    3. Submits or invites reliance on any material writing which he knows to be forged, altered, or otherwise lacking in authenticity;
    4. Submits or invites reliance on any sample, specimen, map, boundarymark, or other object which he knows to be false in a material respect; or
    5. Uses a trick, scheme, or device which he knows to be misleading in a material respect.
  3. This section does not apply to information given during the course of an investigation into possible commission of an offense unless the information is given in an official proceeding or the declarant is otherwise under a legal duty to give the information. Inapplicability under this subsection is a defense.
  4. A matter is a “governmental matter” if it is within the jurisdiction of a government office or agency, or of an office, agency, or other establishment in the legislative or the judicial branch of government.

Source: S.L. 1973, ch. 116, § 11; 1975, ch. 116, § 8.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Complaint Sufficient.

The term “willfully” need not be included in a criminal complaint in order to charge the offense of falsification in a governmental matter in violation of subdivision (2)(a) of this section. State v. Bower, 442 N.W.2d 438, 1989 N.D. LEXIS 131 (N.D. 1989).

Interpretation of Statute.

Section 12.1-11-01, entitled “Perjury,” and this section, entitled “False statements,” are derived from sections 1351 and 1352, respectively, of the proposed Federal Criminal Code. Hence, when confronted with a question of statutory interpretation, the courts will be guided by both the drafter’s official comments to the proposed Federal Criminal Code and the relevant legislative history. State v. Bower, 442 N.W.2d 438, 1989 N.D. LEXIS 131 (N.D. 1989).

Tortious Interference With Prospective Business Advantage.

Racing simulcast provider and its owner were not entitled to recovery against an employee for tortiously interfering with their prospective business advantage. The employee did not violate N.D.C.C. §§ 12.1-11-02(1) and 12.1-11-03(1) by offering a statement of his opinion to law enforcement officers. Bala v. Stenehjem, 671 F. Supp. 2d 1067, 2009 U.S. Dist. LEXIS 111133 (D.N.D. 2009).

DECISIONS UNDER PRIOR LAW

Justified Reliance.

A party to a contract, in the absence of knowledge putting him on inquiry, was justified in relying on statements of fact regarding the property involved. Moone v. Martin State Bank, 59 N.D. 352, 230 N.W. 11, 1930 N.D. LEXIS 149 (N.D. 1930).

12.1-11-03. False information or report to law enforcement officers or security officials.

A person is guilty of a class A misdemeanor if that person:

  1. Gives false information or a false report to a law enforcement officer which that person knows to be false, and the information or report may interfere with an investigation or may materially mislead a law enforcement officer; or
  2. Falsely reports to a law enforcement officer or other security official the occurrence of a crime of violence or other incident calling for an emergency response when that person knows that the incident did not occur. “Security official” means a public servant responsible for averting or dealing with emergencies involving public safety.

Source: S.L. 1973, ch. 116, § 11; 1999, ch. 121, § 1.

Notes to Decisions

Tortious Interference With Prospective Business Advantage.

Analysis

Evidence Insufficient.

Information Sufficient.

Racing simulcast provider and its owner were not entitled to recovery against an employee for tortiously interfering with their prospective business advantage. The employee did not violate N.D.C.C. §§ 12.1-11-02(1) and 12.1-11-03(1) by offering a statement of his opinion to law enforcement officers. Bala v. Stenehjem, 671 F. Supp. 2d 1067, 2009 U.S. Dist. LEXIS 111133 (D.N.D. 2009).

Evidence Insufficient.

Where while an officer was attempting to serve a warrant defendant provided him with a false name, the evidence was insufficient to convict defendant of providing false information because there was no investigation of defendant when she provided the false name or any possibility that her false name misled the officer. State v. Houkom, 2021 ND 223, 967 N.W.2d 801, 2021 N.D. LEXIS 215 (N.D. 2021).

Information Sufficient.

Where while an officer was attempting to serve a warrant defendant provided him with a false name, the criminal information was sufficient because it set forth the charged offense using the words of the statute, which was sufficient specificity to allow defendant to prepare a defense. State v. Houkom, 2021 ND 223, 967 N.W.2d 801, 2021 N.D. LEXIS 215 (N.D. 2021).

12.1-11-04. General provisions.

  1. Falsification is material under sections 12.1-11-01, 12.1-11-02, and 12.1-11-03 regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the official proceeding or the disposition of the matter in which the statement is made. Whether a falsification is material in a given factual situation is a question of law. It is no defense that the declarant mistakenly believed the falsification to be immaterial.
  2. It is no defense to a prosecution under sections 12.1-11-01 or 12.1-11-02 that the oath or affirmation was administered or taken in an irregular manner or that the declarant was not competent to make the statement. A document purporting to be made upon oath or affirmation at a time when the actor represents it as being so verified shall be deemed to have been duly sworn or affirmed.
  3. It is a defense to a prosecution under sections 12.1-11-01, 12.1-11-02, or 12.1-11-03 that the actor retracted the falsification in the course of the official proceeding or matter in which it was made, if in fact he did so before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding or the matter.
  4. In sections 12.1-11-01 and 12.1-11-02, “statement” means any representation but includes a representation of opinion, belief, or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.

Source: S.L. 1973, ch. 116, § 11.

Cross-References.

Mistake of fact or law, see N.D.C.C. §§ 12.1-02-03, 12.1-05-09.

Notes to Decisions

Retraction Defense.

Defendant has the burden of proving by the preponderance of the evidence that he is within the protection of the retraction defense provided by this section. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

The defense of retraction provided by this section is a bar to the commencement of trial and not an affirmative defense to be asserted at trial; whether defendant is entitled to the benefit of such defense is a question of law to be decided by the trial court, with the assistance of an evidentiary hearing if necessary. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

The exposure of perjury becomes “manifest” when the defendant knows or has reason to know that the authorities are or will be aware of the falsification; the crucial matter being defendant’s motive in retracting in determining whether retraction occurs before perjury becomes manifest. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

To have the benefit of the defense of retraction provided by this section, defendant’s retraction of the falsification must have occurred before it became manifest and before it substantially affected the proceeding. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

Whether retraction of falsification occurred before it “substantially affected the proceeding” is to be decided on a case-by-case basis; defendant was allowed the retraction defense where at the time of retraction the record did not indicate the defendant suspected or had reason to suspect the court was on to her attempt to deceive, the court was not greatly hampered in the conduct of its business, defendant’s testimony involved only a minor part of the case, and the judge was notified of the retraction in time so that his deliberations were not tainted. State v. Hanson, 302 N.W.2d 399, 1981 N.D. LEXIS 253 (N.D. 1981).

12.1-11-05. Tampering with public records.

  1. A person is guilty of an offense if he:
    1. Knowingly makes a false entry in or false alteration of a government record; or
    2. Knowingly, without lawful authority, destroys, conceals, removes, or otherwise impairs the verity or availability of a government record.
  2. The offense is:
    1. A class C felony if committed by a public servant who has custody of the government record.
    2. A class A misdemeanor if committed by any other person.
  3. In this section “government record” means:
    1. Any record, document, or thing belonging to, or received or kept by the government for information or record.
    2. Any other record, document, or thing required to be kept by law, pursuant, in fact, to a statute which expressly invokes the sanctions of this section.

Source: S.L. 1973, ch. 116, § 11; 1975, ch. 116, § 9.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Forgery, counterfeiting, deceptive writings, see N.D.C.C. §§ 12.1-24-01 to 12.1-24-03.

Tampering with physical evidence, see N.D.C.C. § 12.1-09-03.

Collateral References.

Receipt of public documents taken by another without authorization as receipt of stolen property, 57 A.L.R.3d 1211.

What constitutes a public record or document within statute making falsification, forgery, mutilation, removal, or other misuse thereof an offense, 75 A.L.R.4th 1067.

12.1-11-06. Public servant refusing to perform duty.

Any public servant who knowingly refuses to perform any duty imposed upon him by law is guilty of a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 11; 1975, ch. 116, § 10.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Analysis

Judicial Mistake.

A state’s attorney, passing on the sufficiency of evidence as a basis for criminal prosecution, was not liable for a judicial mistake or for having process issued. Kittler v. Kelsch, 56 N.D. 227, 216 N.W. 898, 1927 N.D. LEXIS 94 (N.D. 1927).

Jury Instruction.

In an action for libel based on a newspaper article charging a public official with failure to discharge the duties of his office, it was proper for the trial court to instruct the jury as to the statute defining nonfeasance in office. Murphy v. Farmers Educ. & Coop. Union, 72 N.W.2d 636, 1955 N.D. LEXIS 143 (N.D. 1955).

Refusal to Prosecute.

The willful refusal of a state’s attorney to prosecute a case constituted a misdemeanor. State ex rel. Clyde v. Lauder, 11 N.D. 136, 90 N.W. 564, 1902 N.D. LEXIS 194 (N.D. 1902).

12.1-11-07. Fraudulent practice in urine testing.

A person is guilty of a class A misdemeanor if that person willfully defrauds a urine test and the test is designed to detect the presence of a chemical substance or a controlled substance. A person is guilty of a class A misdemeanor if that person knowingly possesses, distributes, or assists in the use of a device, chemical, or real or artificial urine advertised or intended to be used to alter the outcome of a urine test.

Source: S.L. 2005, ch. 113, § 1; 2009, ch. 128, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-12 Bribery — Unlawful Influence of Public Servants

12.1-12-01. Bribery.

  1. A person is guilty of bribery, a class C felony, if he knowingly offers, gives, or agrees to give to another, or solicits, accepts, or agrees to accept from another, a thing of value as consideration for:
    1. The recipient’s official action as a public servant; or
    2. The recipient’s violation of a known legal duty as a public servant.
  2. It is no defense to a prosecution under this section that a recipient was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.
  3. A prima facie case is established under this section upon proof that the actor knew that a thing of pecuniary value was offered, given, or agreed to be given by, or solicited, accepted, or agreed to be accepted from, a person having an interest in an imminent or pending: a. examination, investigation, arrest, or judicial or administrative proceeding; or b. bid, contract, claim, or application, and that interest could be affected by the recipient’s performance or nonperformance of his official action or violation of his known legal duty as a public servant.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Bribery of school official, see N.D.C.C. § 15-49-11.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

“Bribe”.

The word “bribe” was given a specific meaning by statute and when used in an information in connection with a charge that a bribe was offered unlawfully and feloniously with intent to influence the action of a road overseer, the information was sufficient to make it certain what offense was charged. State v. Johnson, 17 N.D. 554, 118 N.W. 230, 1908 N.D. LEXIS 89 (N.D. 1908).

Completion of Crime.

The crime of giving a bribe to a deputy sheriff was complete when the money was paid feloniously to influence future acts with reference to a possible future violation of law. State v. La Flame, 30 N.D. 489, 152 N.W. 810, 1915 N.D. LEXIS 139 (N.D. 1915).

Payment to Avoid Arrest.

Payment of money to a deputy sheriff to procure immunity from future arrest for violating the prohibition law constituted giving a bribe. State v. La Flame, 30 N.D. 489, 152 N.W. 810, 1915 N.D. LEXIS 139 (N.D. 1915).

Receipt of Bribes by Governor.

A contention that the power to determine whether a governor should continue in office was reposed solely in the legislative assembly under article 14 of the constitution was denied by section 81 of that instrument which was contained in the statutes as former N.D.C.C. § 12-08-18 relating to receipt of bribes by the governor. State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, 1934 N.D. LEXIS 178 (N.D. 1934).

Collateral References.

Other bribery or acceptance of bribe, admissibility of evidence tending to show commission of, in prosecution for bribery or accepting bribes, 20 A.L.R.2d 1012.

Solicitation or receipt of funds by public officer or employee for political campaign expenses or similar purposes as bribery, 55 A.L.R.2d 1137.

Recovery of money paid, or property transferred, as a bribe, 60 A.L.R.2d 1273.

Entrapment to commit bribery or to offer a bribe, 69 A.L.R.2d 1397.

Validity and construction of statutes punishing commercial bribery, 1 A.L.R.3d 1350.

Corporations: criminal liability of corporation for bribery or conspiracy to bribe public official, 52 A.L.R.3d 1274.

Furnishing public official with meals, lodging, or travel, or receipt of such benefits, as bribery, 67 A.L.R.3d 1231.

Criminal offense of bribery as affected by lack of authority of state public officer or employee, 73 A.L.R.3d 374.

Federal regulation of competitive practices in liquor industry under sec. 5 of Federal Alcohol Administration Act (27 USCS sec. 205), 58 A.L.R. Fed. 797.

Law Reviews.

Article: Lawyering and Lobbying: The Discipline of Public Policy Advocacy, 87 N.D. L. Rev. 59 (2011).

12.1-12-02. Illegal influence between legislators or between legislators and governor.

Any person who violates the provisions of section 9 of article IV or section 10 of article V of the Constitution of North Dakota is guilty of a class C felony.

Source: S.L. 1973, ch. 116, § 12; 1989, ch. 69, § 6; 2003, ch. 48, § 7.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

12.1-12-03. Unlawful compensation for assistance in government matters.

  1. A public servant is guilty of a class A misdemeanor if he solicits, accepts, or agrees to accept a thing of pecuniary value from nongovernmental sources:
    1. As compensation for advice or other assistance in preparing or promoting a bill, contract, claim, or other matter which is or is likely to be subject to his official action;
    2. As compensation for omitting or delaying official action; or
    3. As a fee or compensation for services not rendered or to which he was not legally entitled.
  2. A person is guilty of a class A misdemeanor if he knowingly offers, gives, or agrees to give a thing of pecuniary value to a public servant, receipt of which is prohibited by this section.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Purpose.

The object of the section prohibiting a public officer from taking unlawful fees was to prevent improper influences being brought to bear upon official action and it was not intended to include the offense of demanding and receiving extortionate fees where the officer asked for such fees as legal fees. State v. Bauer, 1 N.D. 273, 47 N.W. 378, 1890 N.D. LEXIS 35 (N.D. 1890).

12.1-12-04. Trading in public office and political endorsement.

  1. A person is guilty of a class A misdemeanor if he solicits, accepts, or agrees to accept, or offers, gives, or agrees to give, a thing of pecuniary value as consideration for approval or disapproval by a public servant or party official of a person for:
    1. Appointment, employment, advancement, or retention as a public servant; or
    2. Designation or nomination as a candidate for elective office.
  2. In this section:
    1. “Approval” includes recommendation, failure to disapprove, or any other manifestation of favor or acquiescence.
    2. “Disapproval” includes failure to approve or any other manifestation of disfavor or nonacquiescence.
    3. “Party official” means a person who holds a position or office in a political party, whether by election, appointment, or otherwise.
  3. Any appointment of a public servant made in violation of this section is void, but any official action taken by the appointee prior to conviction under this section is valid.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Contractual Provision Void.

A provision in a partnership contract whereby the parties agreed to procure the appointment of one partner to a public office and that the fees arising from such office would inure to the benefit of the firm, was void. Wishek v. Hammond, 10 N.D. 72, 84 N.W. 587, 1900 N.D. LEXIS 12 (N.D. 1900).

12.1-12-05. Trading in special influence.

A person is guilty of a class A misdemeanor if he knowingly offers, gives, or agrees to give, or solicits, accepts, or agrees to accept, a thing of pecuniary value for exerting, or procuring another to exert, special influence upon a public servant with respect to his legal duty or official action as a public servant. “Special influence” means power to influence through kinship or by reason of position as a public servant or party official, as defined in section 12.1-12-04.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Unlawful means to influence legislative assembly, see N.D.C.C. § 54-05.1-06.

12.1-12-06. Threatening public servants.

  1. A person is guilty of a class C felony if that person threatens harm to a public servant with intent to influence the public servant’s official action as a public servant in a pending or prospective judicial or administrative proceeding held before the public servant, or with intent to influence the public servant to violate the public servant’s duty as a public servant.
  2. A person is guilty of a class C felony if, with intent to influence another’s official action as a public servant, the person threatens:
    1. To commit any crime or to do anything unlawful;
    2. To accuse anyone of a crime; or
    3. To expose a secret or publicize an asserted fact, whether true or false, tending to subject any individual, living or deceased, to hatred, contempt, or ridicule, or to impair another’s credit or business repute.
    1. A person is guilty of an offense if the person files any lien or encumbrance against real or personal property of a public servant if that person knows or has reason to know the lien or encumbrance is false or contains any materially false or fraudulent statement or representation.
    2. An offense under this subsection is a class A misdemeanor, unless the person previously pled guilty or had been convicted under this subsection on two or more occasions, in which event the offense is a class C felony.
  3. It is not a defense to a prosecution under this section that an individual whom the actor sought to influence was not qualified to act in the desired way whether because the individual had not yet assumed office, or lacked jurisdiction, or for any other reason.

Source: S.L. 1973, ch. 116, § 12; 2015, ch. 103, § 1, effective August 1, 2015.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Federal Criminal Code.

Section was adopted by the legislature from, and is identical to, the proposed Federal Criminal Code’s provision on threatening public servants. State v. Haugen, 392 N.W.2d 799, 1986 N.D. LEXIS 387 (N.D. 1986).

Frivolous Lawsuit.

It is not a crime to bring a frivolous lawsuit against a public official. Rather, the punishment for such abuses of process is the imposition of appropriate monetary sanctions against the party bringing the frivolous action. State v. Haugen, 392 N.W.2d 799, 1986 N.D. LEXIS 387 (N.D. 1986).

Question of Fact or Law.

Generally, whether the words used in the communication constitute a true threat is a question for the jury. Nevertheless, some cases exist when a court should determine as a matter of law that a particular threat does not constitute a true threat. State v. Haugen, 392 N.W.2d 799, 1986 N.D. LEXIS 387 (N.D. 1986).

Threat of Civil Action.

A threat to bring a civil action against a public official is not proscribed by the statute. State v. Haugen, 392 N.W.2d 799, 1986 N.D. LEXIS 387 (N.D. 1986).

12.1-12-07. Sports bribery.

  1. A person is guilty of a class C felony if, with intent to prevent a publicly exhibited sporting contest from being conducted in accordance with the rules and usages purporting to govern it, he:
    1. Confers, offers, or agrees to confer any benefit upon, or threatens any harm to, a participant, official, or other person associated with the contest; or
    2. Tampers with any person, animal, or thing.
  2. A person is guilty of a class C felony if he knowingly solicits, accepts, or agrees to accept any benefit, the giving of which is prohibited under subsection 1.
  3. A “publicly exhibited sporting contest” is any contest in any sport, between individual contestants or teams of contestants, the occurrence of which is publicly announced in advance of the event.
  4. The status of the contestant as amateur or professional is not material to the commission of the offense described in this section.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Collateral References.

Athletic contests, bribery in, 49 A.L.R.2d 1234.

12.1-12-08. Commercial bribery.

  1. A person is guilty of a class C felony if he:
    1. Confers, agrees, or offers to confer any benefit upon an employee or agent without the consent of the latter’s employer or principal, with intent to influence his conduct in relation to his employer’s or principal’s affairs; or
    2. Confers, agrees, or offers to confer any benefit upon any fiduciary without the consent of the beneficiary, with intent to influence the fiduciary to act or conduct himself contrary to his fiduciary obligation.
  2. A person is guilty of a class C felony if he knowingly solicits, accepts, or agrees to accept any benefit, the giving of which is prohibited under subsection 1.

Source: S.L. 1973, ch. 116, § 12.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Collateral References.

Validity and construction of statutes punishing commercial bribery, 1 A.L.R.3d 1350.

Federal regulation of competitive practices in liquor industry under sec. 5 of Federal Alcohol Administration Act (27 USCS sec. 205), 58 A.L.R. Fed. 797.

12.1-12-09. Definitions for chapter.

In this chapter, “thing of value” and “thing of pecuniary value” do not include (1) salary, fees, and other compensation paid by the government in consideration for which the official action or legal duty is performed; or (2) concurrence in official action in the course of legitimate compromise among public servants, except as provided in section 9 of article IV or section 10 of article V of the Constitution of North Dakota.

Source: S.L. 1973, ch. 116, § 12; 1989, ch. 69, § 7; 2009, ch. 65, § 2.

CHAPTER 12.1-13 Confidential Information — Conflict of Interest — Impersonation

12.1-13-01. Disclosure of confidential information provided to government.

A person is guilty of a class C felony if, in knowing violation of a statutory duty imposed on him as a public servant, he discloses any confidential information which he has acquired as a public servant. “Confidential information” means information made available to the government under a governmental assurance of confidence as provided by statute.

Source: S.L. 1973, ch. 116, § 13; 1975, ch. 116, § 11.

Cross-References.

Grand jury proceedings, duty of secrecy, see N.D.C.C. §§ 29-10.1-30, 29-10.1-32, N.D.R.Ct. 6.10.

Power of court to order disclosure by grand jurors, see N.D.C.C. § 29-10.1-31.

12.1-13-02. Speculating or wagering on official action or information.

  1. A person is guilty of a class A misdemeanor if during employment as a public servant, or within one year thereafter, in contemplation of official action by himself as a public servant or by a government agency with which he is or has been associated as a public servant, or in reliance on information to which he has or had access only in his capacity as a public servant, he:
    1. Acquires a pecuniary interest in any property, transaction, or enterprise which may be affected by such information or official action;
    2. Speculates or wagers on the basis of such information or official action; or
    3. Aids another to do any of the foregoing.
  2. A person is guilty of a class A misdemeanor if as a public servant he takes official action which is likely to benefit him as a result of an acquisition of a pecuniary interest in any property, transaction, or enterprise, or of a speculation or wager, which he made, or caused or aided another to make, in contemplation of such official action.

Source: S.L. 1973, ch. 116, § 13.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-13-03. Public servant’s interest in public contracts.

  1. Every public servant authorized to sell or lease any property, or to make any contract in his official capacity, alone or in conjunction with other public servants, who voluntarily becomes interested individually in the sale, lease, or contract, directly or indirectly, is guilty of a class A misdemeanor.
  2. Subsection 1 shall not apply to:
    1. Contracts of purchase or employment between a political subdivision and an officer of that subdivision, if the contracts are first unanimously approved by the other members at a meeting of the governing body of the political subdivision, and a unanimous finding is entered in the official minutes of that body that the contract is necessary because the services or property contracted for are not otherwise obtainable at equal cost.
    2. Sales, leases, or contracts entered into between school boards and school board members or school officers.

Source: S.L. 1973, ch. 116, § 13.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Analysis

Personal Interest.

The interest contemplated by the statute may have been either direct or indirect but it must have been an interest that accrued to the officer personally and not in a representative capacity such as that of receiver, trustee, or administrator. State v. Robinson, 71 N.D. 463, 2 N.W.2d 183, 1942 N.D. LEXIS 80 (N.D. 1942).

Whether a public officer, who was a stockholder and officer of a corporation with which he made a contract in his official capacity, was interested individually, directly or indirectly, in the contract was primarily a question of fact. State v. Robinson, 71 N.D. 463, 2 N.W.2d 183, 1942 N.D. LEXIS 80 (N.D. 1942).

Purchase Contract.

The purchase of commodities or supplies necessary and essential to the operation of vehicles used by employees of the motor vehicle department came within the terms of former section relating to personal interest in contract by public officer. State v. Robinson, 71 N.D. 463, 2 N.W.2d 183, 1942 N.D. LEXIS 80 (N.D. 1942).

Township Officers.

Although N.D.C.C. § 58-05-12 applied specifically to township officers, they were nevertheless public officers within the meaning of former section relating to a public servant’s interest in public contracts, and subject to its provisions. State v. Pyle, 71 N.W.2d 342, 1955 N.D. LEXIS 120 (N.D. 1955).

“Voluntarily.”

Trial court’s instruction defining the word “voluntarily” as an act done or performed willingly or intentionally as distinguished, from being done under compulsion or coercion was not erroneous and it was the province of the jury to determine from the evidence whether the contract was entered into voluntarily or involuntarily. State v. Pyle, 71 N.W.2d 342, 1955 N.D. LEXIS 120 (N.D. 1955).

12.1-13-04. Impersonating officials.

  1. A person is guilty of an offense if he falsely pretends to be:
    1. A public servant, other than a law enforcement officer, and acts as if to exercise the authority of such public servant.
    2. A public servant or a former public servant and thereby obtains a thing of value.
    3. A law enforcement officer.
  2. It is no defense to prosecution under this section that the pretended capacity did not exist or the pretended authority could not legally or otherwise have been exercised or conferred.
  3. An offense under subdivision b or c of subsection 1 is a class A misdemeanor. An offense under subdivision a of subsection 1 is a class B misdemeanor.

Source: S.L. 1973, ch. 116, § 13; 1975, ch. 116, § 12.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Impersonation of patrolman, see N.D.C.C. § 39-03-11.

Unlawful wearing of military uniforms and devices indicating rank, see N.D.C.C. § 37-01-16.

DECISIONS UNDER PRIOR LAW

Failure to Take Oath.

Failure to take and file the required oath of office ipso facto created a vacancy in such office and worked a forfeiture of all right to the office involved. State ex rel. Johnson v. Cahill, 49 N.D. 895, 193 N.W. 938, 1923 N.D. LEXIS 31 (N.D. 1923).

CHAPTER 12.1-14 Official Oppression — Elections — Civil Rights

12.1-14-01. Official oppression.

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity is guilty of a class A misdemeanor if, knowing that his conduct is illegal, he:

  1. Subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien, or other infringement of personal or property rights; or
  2. Denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity.

Source: S.L. 1973, ch. 116, § 14.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Analysis

Burden of Proof.

One suing for malicious prosecution had to show malice and want of probable cause. Lux v. Bendewald, 58 N.D. 761, 227 N.W. 550, 1922 N.D. LEXIS 2 (N.D. 1922).

Proof of Malice.

Malice could be inferred from lack of probable cause, and proof that the defendant himself committed the act for which he instituted criminal proceedings against the plaintiff showed want of probable cause and authorized the inference of malice. Lux v. Bendewald, 58 N.D. 761, 227 N.W. 550, 1922 N.D. LEXIS 2 (N.D. 1922).

12.1-14-02. Interference with elections.

A person is guilty of a class A misdemeanor if, whether or not acting under color of law, the person, by force or threat of force or by economic coercion, intentionally:

  1. Injures, intimidates, or interferes with another because the other individual is or has been voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election.
  2. Injures, intimidates, or interferes with another in order to prevent that individual or any other individual from voting for any candidate or issue or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as an election official or an election observer, in any primary, special, or general election.

Source: S.L. 1973, ch. 116, § 14; 2015, ch. 162, § 2, effective August 1, 2015.

Cross-References.

Interference with elections, offenses and penalties, see N.D.C.C. § 16.1-01-12.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Analysis

Evidence of Intent.

Evidence that defendant had misstated the name of the candidate voted for thirty-eight times in reading the votes for one office from one precinct, supported a finding that the misstatements were intentional and not accidental. State v. Krueger, 124 N.W.2d 468, 1963 N.D. LEXIS 121 (N.D. 1963).

“Willfully.”

“Willfully” as used in former section meant “intentional and not accidental”, and that the wrongdoer acted with intent to do the act charged. State v. Krueger, 124 N.W.2d 468, 1963 N.D. LEXIS 121 (N.D. 1963).

12.1-14-03. Safeguarding elections.

A person is guilty of a class A misdemeanor if, in connection with any election, he:

  1. Makes or induces any false voting registration;
  2. Offers, gives, or agrees to give a thing of pecuniary value to another as consideration for the recipient’s voting or withholding his vote or voting for or against any candidate or issue or for such conduct by another;
  3. Solicits, accepts, or agrees to accept a thing of pecuniary value as consideration for conduct prohibited under subsection 1 or 2; or
  4. Otherwise obstructs or interferes with the lawful conduct of such election or registration therefor.

As used in this section, “thing of pecuniary value” shall include alcoholic beverages, by the drink or in any other container.

Source: S.L. 1973, ch. 116, § 14; 1975, ch. 116, § 13.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Supervision of elections, see N.D.C.C. § 16.1-01-01.

DECISIONS UNDER PRIOR LAW

Information Sufficient.

The returns contemplated by the statute were the results disclosed by the tally books kept by the clerks, and an information charging a judge of election with making a false canvass of votes by misreading ballots and names of candidates thereon to clerks of election recording votes contained a sufficient statement of facts to apprise the defendant of the offense charged. State v. Wicks, 68 N.D. 1, 276 N.W. 690, 1937 N.D. LEXIS 123 (N.D. 1937).

Collateral References.

Solicitation or receipt of funds by public officer or employee for political campaign expenses or similar purposes as bribery, 55 A.L.R.2d 1137.

Effect of alleged misstatements or misrepresentations in campaign literature, material, or leaflets on validity of representation election, 3 A.L.R.3d 889.

Manner of marking ballot as affecting validity of employee’s vote in elections under Labor Relations Acts, 11 A.L.R.3d 818.

12.1-14-04. Discrimination in public places.

A person is guilty of a class B misdemeanor if, whether or not acting under color of law, he, by force, or threat of force or by economic coercion, intentionally:

  1. Injures, intimidates, or interferes with another because of his sex, race, color, religion, or national origin and because he is or has been exercising or attempting to exercise his right to full and equal enjoyment of any facility open to the public.
  2. Injures, intimidates, or interferes with another because of his sex, race, color, religion, or national origin in order to intimidate him or any other person from exercising or attempting to exercise his right to full and equal enjoyment of any facility open to the public.

Source: S.L. 1973, ch. 116, § 14.

Cross-References.

Equal pay for men and women, see N.D.C.C. § 34-06.1-09.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

Collateral References.

Place of public entertainment or amusement, exclusion of person (for reason other than color or race) from, 1 A.L.R.2d 1165.

Businesses or establishments falling within state civil rights statute provisions prohibiting discrimination, 87 A.L.R.2d 120.

Racial or religious discrimination in furnishing of public utilities, services, or facilities, 58 A.L.R.3d 1027.

Trailer park as place of public accomodation within meaning of state civil rights statutes, 70 A.L.R.3d 1142.

State law prohibiting sex discrimination as violated by dress or grooming requirements for customers of establishments serving food or beverages, 89 A.L.R.3d 7.

Propriety of exclusion of persons from horseracing tracks for reasons other than color or race, 90 A.L.R.3d 1361.

Exclusion of one sex from admission to or enjoyment of equal privileges in places of accommodation or entertainment as actionable sex discrimination under state law, 38 A.L.R.4th 339.

Propriety of exclusion of persons from horseracing tracks for reasons other than color or race, 64 A.L.R.5th 769.

What constitutes private club or association not otherwise open to public that is exempt from state civil rights statute, 83 A.L.R.5th 467.

12.1-14-05. Preventing exercise of civil rights — Hindering or preventing another aiding third person to exercise civil rights.

A person is guilty of a class B misdemeanor if, whether or not acting under color of law, he, by force or threat of force or by economic coercion, intentionally:

  1. Injures, intimidates, or interferes with another because he is or is about to exercise his civil rights, or because he has exercised his civil rights.
  2. Intimidates or prevents another from aiding a third person to exercise his civil rights.

Source: S.L. 1973, ch. 116, § 14.

Cross-References.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

Collateral References.

Blockbusting: validity and construction of anti-blockbusting regulations as designed to prevent brokers from inducing sales of realty because of actual or rumored entry of racial group in neighborhood, 34 A.L.R.3d 1432.

Aliens: constitutionality of enactment or regulation prohibiting employment of aliens in public employment or on public works, 38 A.L.R.3d 1213.

Construction and operation of “equal opportunities clause” requiring pledge against racial discrimination in hiring under construction contract, 44 A.L.R.3d 1283.

Intoxicating liquors: validity and construction of statute or ordinance respecting employment of women in places where intoxicating liquors are sold, 46 A.L.R.3d 369.

Prohibition, under state civil rights laws, of racial discrimination in rental of privately owned residential property, 96 A.L.R.3d 497.

Enforceability of bylaw or other rule of condominium or co-operative association restricting occupancy by children, 100 A.L.R.3d 241.

What constitutes employment discrimination on basis of marital status for purposes of state civil rights laws, 44 A.L.R.4th 1044.

Accommodation requirement under state legislation forbidding job discrimination on account of handicap, 76 A.L.R.4th 310.

Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 265.

Damages and other relief under state legislation forbidding job disqualification on account of handicap, 78 A.L.R.4th 435.

Discrimination “because of handicap” or “on the basis of handicap” under state statutes prohibiting job discrimination on account of handicap, 81 A.L.R.4th 144.

What constitutes handicap under state legislation forbidding job discrimination on account of handicap, 82 A.L.R.4th 26.

Availability and Scope of Punitive Damages Under State Employment Discrimination Law, 81 A.L.R.5th 367.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act,Civil Rights Act, 83 A.L.R.5th 1.

Preemption of state statute, law, ordinance, or policy with respect to employment- and education-related issues involving aliens, 88 A.L.R.6th 627.

CHAPTER 12.1-15 Defamation — Interception of Communications

12.1-15-01. Criminal defamation.

  1. A person is guilty of a class A misdemeanor if he willfully publishes defamatory matter or knowingly procures such publication or in any way knowingly aids or assists in the same being done.
  2. It is a defense to a prosecution under this section that:
    1. The matter alleged to be defamatory is true; or
    2. The matter alleged to be defamatory was contained in a privileged communication.
  3. In this section:
    1. “Defamatory matter” means any written or oral communication concerning a natural person made public with actual malice or with reckless disregard of the truth by any utterance, printing, writing, sign, picture, representation, or effigy tending to expose such person to public hatred, contempt, or ridicule or to deprive him of the benefits of public confidence and social intercourse or any written or oral communication concerning a natural person made public as aforesaid designed to blacken and vilify the memory of one who is dead and tending to scandalize or provoke his surviving relatives and friends.
    2. “Privileged communication” means a communication made to a person entitled to or interested in the communication by one who is also entitled to or interested or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent.
    3. “Publication” means a knowing display of defamatory matter, or the parting with its immediate custody under circumstances which exposed the defamatory matter to be read or seen or understood by a person other than the publisher of the defamatory matter, although it is not necessary that the matter complained of should have been seen or read by another.

Source: S.L. 1973, ch. 116, § 15.

Cross-References.

Civil libel, definition, see N.D.C.C. § 14-02-03.

Civil slander, definition, see N.D.C.C. § 14-02-03.

Libel or slander of bank, safe deposit, annuity, surety, or trust company, see N.D.C.C. § 6-08-15.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Circumstances Surrounding Publication.

Statute does not prohibit testimony explaining circumstances surrounding publication of allegedly libelous writing; where accused was charged with giving $20 check to performer who was not member of musicians’ union for one dance job and, after it had cleared bank, writing “two dance jobs” on check so as to make it appear that union member had twice accepted employment for less than minimum union wage scale, it was not error to permit testimony going to proof of libelous nature of words written on canceled check. State v. Haider, 150 N.W.2d 71, 1967 N.D. LEXIS 137 (N.D. 1967).

Gist of Libel.

The gist of the crime of criminal libel was malicious defamation of a person made public in one or more of the modes prescribed and tending to expose such person to public hatred, contempt, or ridicule. State v. Tolley, 23 N.D. 284, 136 N.W. 784, 1912 N.D. LEXIS 94 (N.D. 1912).

Privilege.

Evidence relating to alleged altering of check, after it had cleared bank, so as to make it appear that union musician had twice accepted employment at less than minimum union wage scale was not sufficient to bring defendant-maker within privilege contained in former section; since no witnesses were called on behalf of accused and no evidence was submitted by him, malice was presumed. State v. Haider, 150 N.W.2d 71, 1967 N.D. LEXIS 137 (N.D. 1967).

Special Verdict.

Court was without power to require special verdict in criminal libel case. State v. Tolley, 23 N.D. 284, 136 N.W. 784, 1912 N.D. LEXIS 94 (N.D. 1912).

Collateral References.

Joint criminal liability for slander, 26 A.L.R.2d 1031.

Criminal liability of partners or partnership for libel, 88 A.L.R.2d 479 3001.

Criticism or disparagement of physician’s or dentist’s character, competence, or conduct as defamation, 38 A.L.R.4th 836.

Defamation of psychiatrist, psychologist, or counselor, 38 A.L.R.4th 874.

Defamation: Application of New York Times and related standards to nonmedia defendants, 38 A.L.R.4th 1114.

Defamation: Privilege accorded state or local governmental administrative records relating to private individual member of public, 40 A.L.R.4th 318.

Defamation action as surviving plaintiff’s death, under statute not specifically covering action, 42 A.L.R.4th 272.

Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.

Defamation: Who is “libel-proof”, 50 A.L.R.4th 1257.

Defamation of professional athlete or sports figure, 54 A.L.R.4th 869.

Validity of criminal defamation statutes, 68 A.L.R.4th 1014.

12.1-15-02. Interception of wire or oral communications — Eavesdropping.

  1. A person is guilty of a class C felony if he:
    1. Intentionally intercepts any wire or oral communication by use of any electronic, mechanical, or other device; or
    2. Intentionally discloses to any other person or intentionally uses the contents of any wire or oral communication, knowing that the information was obtained through the interception of a wire or oral communication.
  2. A person is guilty of a class A misdemeanor if he secretly loiters about any building with intent to overhear discourse or conversation therein and to repeat or publish the same with intent to vex, annoy, or injure others.
  3. It is a defense to a prosecution under subsection 1 that:
    1. The actor was authorized by law to intercept, disclose, or use, as the case may be, the wire or oral communication.
    2. The actor was:
      1. A person acting under color of law to intercept a wire or oral communication, and
      2. He was a party to the communication or one of the parties to the communication had given prior consent to such interception.
      1. The actor was a party to the communication or one of the parties to the communication had given prior consent to such interception, and
      2. Such communication was not intercepted for the purpose of committing a crime or other unlawful harm.

Source: S.L. 1973, ch. 116, § 15.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Disclosing telegraph and telephone messages, see N.D.C.C. § 8-10-09.

Interruption or impairment of a public communication, see N.D.C.C. § 12.1-21-06.

Unlawful use of telecommunications devices, see N.D.C.C. § 8-10-07.2.

Notes to Decisions

Defense.

Where the individuals solicited by private investigator to telephone the defendant clinic knew they were being recorded and consented to the recording, that consent is sufficient to implement subdivision (3)(c) of this section. Fargo Women's Health Org. v. Larson, 391 N.W.2d 627, 1986 N.D. LEXIS 376 (N.D. 1986).

Collateral References.

Validity, construction, and effect of state legislation making wire tapping a criminal offense, 74 A.L.R.2d 855.

Interception: what constitutes an “interception” of a telephone or similar communication forbidden by the Federal Communications Act [47 USCS § 605] or similar state statutes, 9 A.L.R.3d 423.

Eavesdropping as violating right of privacy, 11 A.L.R.3d 1296.

Propriety of governmental eavesdropping on communications between accused and his attorney, 44 A.L.R.4th 841.

Eavesdropping on extension telephone as invasion of privacy, 49 A.L.R.4th 430.

12.1-15-03. Traffic in intercepting devices.

  1. A person is guilty of a class C felony if, within this state, he manufactures, assembles, possesses, transports, or sells an electronic, mechanical, or other device, knowing that the design of such device renders it primarily useful to the purpose of the surreptitious interception of wire or oral communications.
  2. A person is guilty of a class A misdemeanor if he places, in a newspaper, magazine, handbill, or other publication published in this state, an advertisement of an electronic, mechanical, or other device, knowing that the design of such device renders it primarily useful for surreptitious interception of wire or oral communications, or knowing that such advertisement promotes the use of such device for surreptitious interception of wire or oral communications.
  3. It is a defense to a prosecution under this section that the actor was:
    1. An officer, agent, or employee of, or a person under contract with, a communications common carrier, acting within the normal course of the business of the communications common carrier; or
    2. A public servant acting in the course of his official duties or a person acting within the scope of a government contract made by a person acting in the course of his official duties.

Source: S.L. 1973, ch. 116, § 15.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-15-04. Definitions.

In sections 12.1-15-02 through 12.1-15-04:

  1. “Communications common carrier” shall have the meaning prescribed for the term “common carrier” by section 8-07-01.
  2. “Contents”, when used with respect to any wire or oral communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
  3. “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire or oral communication other than:
    1. Any telephone or telegraph instrument, equipment, or facility, or any component thereof, (1) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or (2) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.
    2. A hearing aid or similar device being used to correct subnormal hearing to not better than normal.
  4. “Intercept” means the aural acquisition of the contents of any wire or oral communication through the use of an electronic, mechanical, or other device, or by secretly overhearing the communication.
  5. “Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.
  6. “Wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of communications.

Source: S.L. 1973, ch. 116, § 15.

12.1-15-05. Interception of correspondence.

  1. A person is guilty of a class A misdemeanor if, knowing that a letter, postal card, or other written private correspondence has not yet been delivered to the person to whom it is directed, and knowing that he does not have the consent of the sender or receiver of the correspondence, he:
    1. Damages or destroys the correspondence with intent to prevent its delivery;
    2. Opens or reads sealed correspondence with intent to discover its contents; or
    3. Knowing that sealed correspondence has been opened or read in violation of subdivision b, intentionally divulges its contents, in whole or in part, or a summary of any portion thereof.

Source: S.L. 1973, ch. 116, § 15.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-15-06. Implanting microchips prohibited.

A person may not require that an individual have inserted into that individual’s body a microchip containing a radio frequency identification device. A violation of this section is a class A misdemeanor.

Source: S.L. 2007, ch. 122, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-16 Homicide

12.1-16-01. Murder.

  1. A person is guilty of murder, a class AA felony, if the person:
    1. Intentionally or knowingly causes the death of another human being;
    2. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life; or
    3. Acting either alone or with one or more other persons, commits or attempts to commit treason, robbery, burglary, kidnapping, felonious restraint, arson, gross sexual imposition, a felony offense against a child under section 12.1-20-03, 12.1-27.2-02, 12.1-27.2-03, 12.1-27.2-04, or 14-09-22, or escape and, in the course of and in furtherance of such crime or of immediate flight therefrom, the person or any other participant in the crime causes the death of any person. In any prosecution under this subsection in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
      1. Did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid the commission thereof;
      2. Was not armed with a firearm, destructive device, dangerous weapon, or other weapon which under the circumstances indicated a readiness to inflict serious bodily injury;
      3. Reasonably believed that no other participant was armed with such a weapon; and
      4. Reasonably believed that no other participant intended to engage in conduct likely to result in death or serious bodily injury.
  2. A person is guilty of murder, a class A felony, if the person causes the death of another human being under circumstances which would be class AA felony murder, except that the person causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse must be determined from the viewpoint of a person in that person’s situation under the circumstances as that person believes them to be. An extreme emotional disturbance is excusable, within the meaning of this subsection only, if it is occasioned by substantial provocation, or a serious event, or situation for which the offender was not culpably responsible.

Subdivisions a and b are inapplicable in the circumstances covered by subsection 2.

Source: S.L. 1973, ch. 116, § 16; 1973, ch. 117, § 2; 1975, ch. 116, § 14; 1979, ch. 177, § 1; 1985, ch. 174, § 1; 1993, ch. 118, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Dangerous special offenders, extended sentences, N.D.C.C. § 12.1-32-09.

Intestate succession, wills, and related matters, effect of homicide on, see N.D.C.C. § 30.1-10-03.

Jurisdiction of murder, see N.D.C.C. § 29-03-18.

Limitation of time for commencing prosecution for murder, see N.D.C.C. § 29-04-01.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Notes to Decisions

Constitutionality.
—Equal Protection.

The grading phrase “extreme indifference to the value of human life” is an understandable and distinct definition of the conduct prohibited by subsection 1 of this section, and is a reasonable and rational method of distinguishing the greater crime of class AA murder from the lesser crime of class B manslaughter (N.D.C.C. § 12.1-16-02); therefore, there is no arbitrary discrimination between classes similarly situated that is prohibited by the Equal Protection Clause of the Fourteenth Amendment. Frey v. State, 509 N.W.2d 261, 1993 N.D. LEXIS 230 (N.D. 1993).

—Vagueness Doctrine.

This section is not void for vagueness. Frey v. State, 509 N.W.2d 261, 1993 N.D. LEXIS 230 (N.D. 1993).

Elements.

District court erred in summarily dismissing defendant’s application for postconviction relief because, while defendant failed to demonstrate that he received ineffective assistance of counsel, at the time of defendant’s trial, it was not clearly established that attempted knowing murder was a non-cognizable offense. Yoney v. State, 2021 ND 132, 962 N.W.2d 617, 2021 N.D. LEXIS 131 (N.D. 2021).

Accomplice to Extreme Indifference Murder.

Inmate’s claim that the charge of accomplice to commit murder was not a cognizable criminal offense in North Dakota lacked merit because, under the factual situation presented, the inmate could be charged with accomplice to extreme indifference murder by agreeing to willfully aid in the aggravated assault upon the victim under circumstances manifesting extreme indifference to the value of human life. Olson v. State, 2019 ND 135, 927 N.W.2d 444, 2019 N.D. LEXIS 138 (N.D. 2019).

Attempted Murder.
—In General.

Where defendant retrieved his 9 mm handgun, loaded the weapon, and repeatedly fired through the bedroom door and walls at police officers located on the other side and a police officer was shot in the leg, defendant’s conduct in shooting at the police officers sufficiently constituted a substantial step toward the commission of the crime of murder to justify his conviction of attempted murder. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Defendant’s convictions for attempted murder in violation of N.D.C.C. §§ 12.1-06-01(1) and 12.1-16-01 and reckless endangerment were appropriate based on defendant’s statements to a detective after the accident in which defendant tried to kill himself and his girlfriend. Defendant had told the detective that defendant “snapped” and that he floor-boarded the car and said that he was angling to collide with a semi tractor-trailer. State v. Frohlich, 2007 ND 45, 729 N.W.2d 148, 2007 N.D. LEXIS 41 (N.D. 2007).

Petitioner’s attempted murder conviction was not a cognizable offense because attempt required an intent to complete the commission of the underlying crime, and murder under circumstances manifesting an extreme indifference to the value of human life results in an unintentional death. Dominguez v. State, 2013 ND 249, 840 N.W.2d 596, 2013 N.D. LEXIS 238 (N.D. 2013).

Because the attempted murder instruction options required the jury to find that petitioner intentionally attempted to murder a police officer, the jury could not him guilty of the incognizable offense of attempted murder. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

Attempting to cause the death of someone significantly differs from intentionally engaging in conduct which constitutes a step towards causing the death of another human being; attempting to cause the death of someone amounts to intentional attempted murder. Keller v. State, 2015 ND 228, 869 N.W.2d 424, 2015 N.D. LEXIS 245 (N.D. 2015).

Defendant failed to establish all the requirements to support a claim of obvious error because the amendment of the information did not modify the facts upon which the State sought to prove the attempted murder charge; the timing of the amendment, immediately prior to trial, was not per se substantially prejudicial. State v. Pemberton, 2019 ND 157, 930 N.W.2d 125, 2019 N.D. LEXIS 165 (N.D. 2019).

—Lesser Included Offenses.

Aggravated assault under subsections 1, 2, and 3 of N.D.C.C. § 12.1-17-02, which require a bodily injury be suffered by the victim, is not a lesser included offense of attempted murder; however, aggravated assault under subsection 4 of N.D.C.C. § 12.1-17-02, which does not require a bodily injury be suffered by the victim, can be a lesser included offense of attempted murder. State v. Sheldon, 301 N.W.2d 604, 1980 N.D. LEXIS 342 (N.D. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204, 1981 U.S. LEXIS 1398 (U.S. 1981).

Trial court did not err in refusing to give an instruction on aggravated assault as a lesser included offense of attempted murder where the charge against the defendant did not allege that he fired a firearm or hurled a destructive device at the victim as provided for in subsection (4) of N.D.C.C. § 12.1-17-02, and where the State was only required to prove that defendant intentionally engaged in conduct which constituted a substantial step toward the commission of a crime and not that the victim suffered a bodily injury as required by a charge of aggravated assault. State v. Ellis, 2001 ND 84, 625 N.W.2d 544, 2001 N.D. LEXIS 89 (N.D. 2001).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Because it is possible to commit criminal attempt without assisting another, criminal facilitation is not a lesser included offense of attempted murder. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court properly denied his requested instruction on reckless endangerment as an included offense. A person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was a substantial risk of serious bodily injury or death to another as required for reckless endangerment; in this case, defendant was properly convicted of both offenses for firing shots at police officers. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Burden of Proof.

The trial court was not required to instruct the jury that, in order to find defendant guilty of murder under subsection 1 of this section, the state was required to prove the absence of extreme emotional disturbance for which there is reasonable excuse, under subsection 2 of this section. State v. Frey, 441 N.W.2d 668, 1989 N.D. LEXIS 111 (N.D. 1989).

Conspiracy to Commit Murder.

Where defendant and his co-conspirator were involved in illegal drugs and carried out a police shoot-out as part of a plan to avoid being arrested, the evidence was sufficient to establish overt acts in furtherance of that agreement; defendant was properly convicted of conspiracy to commit murder. During the shoot-out, his co-conspirator was killed. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Charge of conspiracy to commit murder under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b) was not a cognizable offense because conspiracy was a specific intent crime requiring intent to agree and intent to achieve a particular result that was criminal. State v. Borner, 2013 ND 141, 836 N.W.2d 383, 2013 N.D. LEXIS 151 (N.D. 2013).

Rule was applied to avoid manifest injustice and provide defendant with the same relief granted his codefendant because in the codefendant’s trial, the trial court obviously erred when it failed to require proof of an essential element of the offense and failed to recognize the information was defective; defendant was also prejudiced by the error, and to deny him the relief granted his codefendant would seriously affected the fairness, integrity, and public reputation of the criminal jury trial. State v. Whitman, 2013 ND 183, 838 N.W.2d 401, 2013 N.D. LEXIS 196 (N.D. 2013).

Evidence was sufficient to support a conviction for conspiracy to commit murder because the jury could have believed that defendant and another person were serious when a statement was made that they were so mad that they could kill someone, especially given their conduct during a killing. Defendant's actions during the murder and his subsequent conduct to clean up or conceal the crime satisfied the definition of an objective of the conspiracy. State v. Clark, 2015 ND 201, 868 N.W.2d 363, 2015 N.D. LEXIS 215 (N.D. 2015).

Under judicial precedent, a charge of conspiracy to commit murder required the State to prove an intent to cause the death of another human being, and conspiracy to commit extreme indifference murder, under N.D.C.C. §§ 12.1-06-04 and 12.1-16-01(1)(b), was not a cognizable offense. State v. Swanson, 2019 ND 181, 930 N.W.2d 645, 2019 N.D. LEXIS 185 (N.D. 2019).

Because the inclusion of knowingly in the jury instruction allowed the jury to convict defendant of conspiracy to commit murder without an intent to cause the death of another human being, the instruction was improper and allowed defendant to have potentially been convicted of a non-cognizable offense. State v. Swanson, 2019 ND 181, 930 N.W.2d 645, 2019 N.D. LEXIS 185 (N.D. 2019).

—Lesser Included Offenses.

Where defendant was charged with conspiracy to commit murder, the trial court did not err in refusing to give the jury instructions on criminal facilitation. Facilitation, by definition, is not a lesser included offense of conspiracy to commit murder, because it is possible to commit the crime of conspiracy without necessarily committing the crime of facilitation. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Elements.

This section does not require that someone hit, shoot, or throw something at someone else in order to be guilty of murder; the section requires that a person intentionally or knowingly caused the death of another human being, and one can cause the death of another without hitting, shooting, or throwing something at the victim by engaging in conduct which contributes to or results in the death of that other person. State v. Morrissey, 295 N.W.2d 307, 1980 N.D. LEXIS 251 (N.D. 1980).

Evidence Sufficient.

There was competent evidence, viewed in the light most favorable to the verdict, to permit a jury to reasonably infer that a murder defendant caused the victim’s death either “intentionally or knowingly” or “under circumstances manifesting extreme indifference to the value of human life,” where the evidence indicated that the victim’s gunshot wounds were inconsistent with defendant’s claims of self-defense. State v. Frey, 441 N.W.2d 668, 1989 N.D. LEXIS 111 (N.D. 1989).

A rational factfinder could find plaintiff guilty beyond a reasonable doubt of having murdered victim and conclude that the evidence was legally sufficient to support the conviction. State v. Thiel, 515 N.W.2d 186, 1994 N.D. LEXIS 100 (N.D. 1994).

Circumstantial evidence was sufficient to support convictions for murder, gross sexual imposition, and burglary where the victim was sexually assaulted and murdered in her home, items of the victim’s property were found in defendant’s possession, DNA evidence and fingerprints implicated defendant, items belonging to defendant were found in the victim’s home, and defendant had injuries that were consistent with the victim’s attempt to defend herself. State v. Charette, 2004 ND 187, 687 N.W.2d 484, 2004 N.D. LEXIS 316 (N.D. 2004).

Defendant’s conviction for murder under N.D.C.C. § 12.1-16-01 was affirmed because he failed to object to the prosecutor’s comments on closing argument about portions of defendant’s audio-taped interview with a doctor that had not been admitted into evidence. Also defendant failed to show the prosecutor’s improper comments constituted plain error in light of the overwhelming evidence against defendant because the prosecutor did not refer to anything specific on the tapes, but merely made an isolated comment that there was more on the tapes that had not been heard. State v. Schmidkunz, 2006 ND 192, 721 N.W.2d 387, 2006 N.D. LEXIS 195 (N.D. 2006).

Sufficient evidence supported defendant’s murder conviction, because although there was no independent and direct evidence about the actual trigger person for the victim’s death, the combined and cumulative effect of the other independent evidence tended to connect defendant to the murder and corroborated the testimony of defendant’s wife. State v. Gaede, 2007 ND 125, 736 N.W.2d 418, 2007 N.D. LEXIS 124 (N.D. 2007).

Evidence was sufficient to support defendant’s conviction for attempted murder where defendant did not meet his burden of showing the evidence revealed no reasonable inference of guilt when viewed in the light most favorable to the verdict; there was testimony that he stabbed the victim with scissors, held a steak knife over her, and cut off her air supply and this evidence allowed the jury to draw an inference reasonably tending to prove defendant took a substantial step toward murdering the victim and fairly warranting his conviction. State v. Coppage, 2008 ND 134, 751 N.W.2d 254, 2008 N.D. LEXIS 132 (N.D. 2008).

There was sufficient circumstantial evidence for the jury to find defendant guilty of murder, including the DNA under the victim’s fingernails and on her shirt, the scratches on defendant’s hands, that defendant was a resident of the same apartment complex, and that he did not use his cell phone or computer during the time that the victim was allegedly killed. State v. Gibbs, 2009 ND 44, 763 N.W.2d 430, 2009 N.D. LEXIS 64 (N.D. 2009).

Evidence was sufficient to sustain a murder conviction because witnesses testified that they saw defendant chasing the victim, one saw defendant jump on the victim, tussle with him, and then run off, the victim said he had been stabbed, and defendant had blood on his clothes and hands when he was arrested that was consistent with the victim’s DNA. State v. Addai, 2010 ND 29, 778 N.W.2d 555, 2010 N.D. LEXIS 24 (N.D. 2010), overruled in part, State v. Decker, 2018 ND 43, 907 N.W.2d 378, 2018 N.D. LEXIS 56 (N.D. 2018).

Defendant’s conviction for attempted murder of a prosecutor, in violation of N.D.C.C. § 12.1-16-01(1)(a), was supported by the evidence because the jury heard evidence that defendant brought a loaded gun and three clips with 38 rounds of ammunition into a courtroom, stood in a “shooter’s stance” with two hands holding the gun pointed at the prosecutor’s chest, and pulled the trigger multiple times. State v. Chacano, 2013 ND 8, 826 N.W.2d 294, 2013 N.D. LEXIS 4 (N.D. 2013).

Sufficient evidence supported defendant’s conviction for attempted murder of a law enforcement officer because a reasonable jury could find (1) a shot fired in an officer’s direction was intended to kill the officer, even if the officer’s head was not in a bullet’s trajectory, and (2) defendant’s intent to kill an officer, based on defendant’s social media posts. State v. Wangstad, 2018 ND 217, 917 N.W.2d 515, 2018 N.D. LEXIS 250 (N.D. 2018).

District court properly dismissed defendant’s motion for an acquittal because there was sufficient evidence for the jury to convict him of murder and conclude he was not acting in self-defense where the evidence presented at trial included evidence that the victim’s death was the result of defendant shooting the victim in the back while the victim was walking away. State v. Eggleston, 2020 ND 68, 940 N.W.2d 645, 2020 N.D. LEXIS 59 (N.D. 2020).

Extreme Emotional Disturbance.

Where defendant raises evidence of extreme emotional disturbance, state is not required to prove nonexistence of extreme emotional disturbance for which there was reasonable excuse beyond a reasonable doubt in order for jury to convict defendant of murder; extreme emotional disturbance for which there is reasonable excuse is a mitigating factor that jury may consider if evidence of such a condition is raised, and not a defense to a charge of murder. State v. Dilger, 338 N.W.2d 87, 1983 N.D. LEXIS 373 (N.D. 1983).

Extreme emotional disturbance was not a defense to the crime of murder pursuant to N.D.C.C. § 12.1-16-01 and thus, the State was not required to prove the non-existence of an extreme emotional disturbance beyond a reasonable doubt. State v. Sorenson, 2009 ND 147, 770 N.W.2d 701, 2009 N.D. LEXIS 150 (N.D. 2009).

Guilty Plea.

By pleading guilty to class AA murder, defendant waived all nonjurisdictional defects and defenses, and admitted all elements of the crime. State v. Sisson, 1997 ND 158, 567 N.W.2d 839, 1997 N.D. LEXIS 177 (N.D. 1997).

Jury Instructions.

Where defendant was charged with murder in that he “intentionally” and “knowingly” caused the death of another human being, the giving of a jury instruction stating that “It is presumed, however, that an unlawful act was done with unlawful intent”, without qualifying or explaining how the jurors should interpret the presumption, was unconstitutional as a violation of due process of law. State v. Trieb, 315 N.W.2d 649, 1982 N.D. LEXIS 231 (N.D. 1982).

Where court instructed jury that a person is guilty of murder under this section if he: “1. Intentionally or knowingly causes the death of another human being; or 2. Willfully causes the death of another human being under circumstances manifesting extreme indifference to the value of human life,” assertion of word “willfully” did not make instruction misleading and was not error. State v. Halvorson, 346 N.W.2d 704, 1984 N.D. LEXIS 269 (N.D. 1984).

In a murder trial, the court did not err by refusing an instruction requested by defendant that possession of a firearm by the proprietor of a retail liquor establishment was not illegal, because the instruction concerned a “collateral matter” which would “only cause confusion of the real issues before the jury” where defendant was being tried for using the firearm, not possessing it. State v. Wiedrich, 460 N.W.2d 680, 1990 N.D. LEXIS 161 (N.D. 1990).

Once the trial court determined to instruct on self-defense and, despite defendant’s objection, to instruct on the lesser-included offense of manslaughter, it had an obligation, when the state failed to make the request, to also instruct on the lesser-included offense of negligent homicide, notwithstanding the lack of a request from defendant to do so. State v. Wiedrich, 460 N.W.2d 680, 1990 N.D. LEXIS 161 (N.D. 1990).

A negligent homicide instruction must be given when self-defense and manslaughter are issues in a murder case. State v. Gagnon, 1997 ND 153, 567 N.W.2d 807, 1997 N.D. LEXIS 172 (N.D. 1997).

A jury verdict of acquittal for murder and conviction for abuse or neglect of a child under N.D.C.C. §§ 12.1-16-01(1)(b), (c) and 14-09-22 could be rationally reconciled and did not represent inconsistent verdicts where the trial court instructed the jury on alternative theories of murder but used “and/or” language, which could have precluded the jury from considering whether defendant caused the child’s death while committing or attempting to commit a felony offense against a child. State v. McClary, 2004 ND 98, 679 N.W.2d 455, 2004 N.D. LEXIS 194 (N.D. 2004).

Jury instructions in defendant’s prosecution for attempted murder of a law enforcement officer did not obviously err because (1) an elements instruction did not ignore the required mens rea, (2) the instructions communicated the applicable statute’s meaning, and (3) the law was accurately described. State v. Wangstad, 2018 ND 217, 917 N.W.2d 515, 2018 N.D. LEXIS 250 (N.D. 2018).

Because the jury instructions as a whole adequately informed the jury of the applicable law and did not mislead or confuse the jury, it did not affect a substantial right, and defendant did not establish his claim that the instructions created obvious error; the jury was given the correct description of attempted murder twice in the instructions, which clearly directed the jury to consider whether defendant attempted to intentionally or knowingly cause the death of another human being. State v. Pemberton, 2019 ND 157, 930 N.W.2d 125, 2019 N.D. LEXIS 165 (N.D. 2019).

Lesser Included Offense.

Where defendant argued that the trial court should not have instructed the jury on the charge for abuse or neglect of a child on the ground that the jury could not have reasonably acquitted on the greater offense of felony murder, there was no obvious error. Neglect or abuse of a child is not a lesser included offense of felony murder under N.D.C.C. §§ 12.1-16-01(1)(c), 14-09-22; a felony murder charge does not require the defendant to have committed the underlying felony, and the underlying felony is not an included offense of felony murder. State v. McClary, 2004 ND 98, 679 N.W.2d 455, 2004 N.D. LEXIS 194 (N.D. 2004).

Defendant was not entitled to a new trial because the verdict was not legally inconsistent where the culpability required for both murder under N.D.C.C. § 12.1-16-01(1)(b) and aggravated assault under N.D.C.C. § 12.1-17-02(1) was willfully, and for attempt under N.D.C.C. § 12.1-06-01(1), the culpability level of the substantial step conduct was intentionally; the culpability requirements for the two crimes were not identical because conviction of attempted murder in this case also required proof of circumstances manifesting extreme indifference to the value of human life and intentionality of the substantial step conduct, but in order to convict an individual of aggravated assault, there was no need to prove an absence of circumstances manifesting an extreme indifference to the value of human life, nor was there a need to prove an absence of intentionality; therefore, the jury’s verdict finding defendant guilty of both crimes was not legally inconsistent. State v. Coppage, 2008 ND 134, 751 N.W.2d 254, 2008 N.D. LEXIS 132 (N.D. 2008).

Sentence.

Defendant’s sentence was not illegal because his sentence to life in prison without parole was within the limits prescribed by statute; defendant was was convicted of murder, a class AA felony. State v. Wilder, 2018 ND 93, 909 N.W.2d 684, 2018 N.D. LEXIS 102 (N.D. 2018).

Defendant was not entitled to be resentenced to probation because (1) any sentence available when defendant was originally sentenced could be imposed upon revocation of probation, (2) defendant could only receive two probation periods, defendant’s first period had been revoked, and defendant was serving a second period when probation was revoked, so the court could not sentence defendant to a third period, and (3) defendant’s sentence of life in prison with the possibility of parole, after his murder conviction, was within the statutory range. State v. Alberts, 2019 ND 66, 924 N.W.2d 96, 2019 N.D. LEXIS 67 (N.D. 2019).

DECISIONS UNDER PRIOR LAW

Constitutionality.

An act substituting the penitentiary for the county jail as the place of confinement pending execution, and directing that any execution shall take place within the penitentiary walls, did not operate to increase the punishment of one convicted of murder in the first degree with the death penalty affixed, and was not ex post facto as to one convicted before its passage. State v. Rooney, 12 N.D. 144, 95 N.W. 513, 1903 N.D. LEXIS 18 (N.D. 1903), aff'd, 196 U.S. 319, 25 S. Ct. 264, 49 L. Ed. 494, 1905 U.S. LEXIS 903 (U.S. 1905).

Allegations Constituting Second Degree Murder.

An information charging the unintentional killing of a human being while engaged in procuring a miscarriage which was not necessary to save the life of deceased, was sufficient to charge the offense of murder in the second degree. State v. Belyea, 9 N.D. 353, 83 N.W. 1, 1900 N.D. LEXIS 126 (N.D. 1900); State v. Reilly, 25 N.D. 339, 141 N.W. 720, 1913 N.D. LEXIS 116 (N.D. 1913).

Burglary.

This section did not require that the commission of a burglary required that something must actually have been taken or that there was a forceable entry. State v. Olson, 290 N.W.2d 664, 1980 N.D. LEXIS 215 (N.D. 1980).

Confession by Guilty Plea.

By a plea of guilty a defendant confessed the indictment to be wholly true, and, where an accused pleaded guilty to the charge of murder as charged in the indictment, the court could sentence him to death. Territory v. Miller, 29 N.W. 7, 4 Dakota 173, 1886 Dakota LEXIS 7 (Dakota 1886).

Definition.

—First Degree Murder.

Murder in the first degree was a willful, deliberate, and premeditated killing. Territory v. Bannigan, 46 N.W. 597, 1 Dakota 451, 1877 Dakota LEXIS 11 (Dakota 1877).

Felony Murder.

To constitute murder without design to cause death in the commission of a felony, death need not have occurred during its commission. State v. Shortridge, 54 N.D. 779, 211 N.W. 336, 1926 N.D. LEXIS 83 (N.D. 1926).

Inference of Intent.

Criminal intent was inferred from every malicious, deliberate, and unlawful administration of poison resulting in death. State v. Schneider, 53 N.D. 931, 208 N.W. 566, 1926 N.D. LEXIS 39 (N.D. 1926).

Information Inconclusive As to Degree of Offense.

An information which designated the offense as murder in the first degree did not control as to the degree, as that depended upon the facts alleged, and not upon the conclusions of the pleader or grand jury. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910).

Instructions.

In a case where a jury was impaneled to determine the punishment upon a plea of guilty in a murder case it was improper to charge the jury that the court had the power to reduce the penalty if they imposed the death penalty, as it tended to give the jury to understand that the whole responsibility was not on them. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910).

Where the proof was such as to show that the defendant was guilty of one of the degrees of murder or of manslaughter, or not guilty, and the court instructed the jury on the degrees, it was not error to omit to instruct as to the lesser offenses included within such greater offenses. State v. Woods, 24 N.D. 156, 139 N.W. 321, 1912 N.D. LEXIS 21 (N.D. 1912).

After instructing, in a prosecution for second degree murder, that the state had to prove beyond a reasonable doubt that an operation was not necessary to save life, it was error to give a further instruction from which it could be inferred that defendant had to prove the operation was necessary to save life. State v. Darrow, 56 N.D. 334, 217 N.W. 519, 1928 N.D. LEXIS 221 (N.D. 1928).

Where the evidence showed that the essential elements of murder in the first degree were all present and there was no evidence of murder in the second degree, there was no question of fact for the jury to determine touching the degree and it was not error for the trial court to say so. State v. Tucker, 58 N.D. 82, 224 N.W. 878, 1929 N.D. LEXIS 184 (N.D. 1929).

Instruction which quoted criminal information alleging four acts in the alternative, any one of which constituted the crime of negligent homicide, and which thereafter defined the crime of negligent homicide in the language of the statute, was not misleading to the jury and not error on the part of the trial court. State v. Steele, 211 N.W.2d 855, 1973 N.D. LEXIS 113 (N.D. 1973).

A charge of manslaughter required proof of only ordinary negligence, or a lack of ordinary care which would not constitute a showing of culpable negligence. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Jury Decides Punishment.

It was the duty of the court to inform the jury upon a trial for murder as to the two methods of punishment, and to leave it to the jury to determine which should be inflicted; and when the court advised the jury as to grounds or reasons for inflicting the death penalty, or life imprisonment, it invaded the province of the jury. State v. Peltier, 21 N.D. 188, 129 N.W. 451, 1910 N.D. LEXIS 157 (N.D. 1910).

Lesser Included Offenses.

Under a charge of assault and battery with intent to kill, while armed with a deadly weapon, it was competent for the jury to return a verdict of guilty of an aggravated assault. State v. Maloney, 7 N.D. 119, 72 N.W. 927, 1897 N.D. LEXIS 44 (N.D. 1897).

The elements of murder in the second degree were necessarily included in the charge of murder in the first degree. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910).

A defendant informed against for assault and battery with intent to kill could be convicted of assault and battery without intent to kill. State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Assault and battery with a dangerous weapon with intent to do bodily harm, and without justifiable or excusable cause, was not a lesser and included offense in the crime of shooting at another with a firearm with intent to kill. State v. Muzzy, 66 N.D. 41, 262 N.W. 335, 1935 N.D. LEXIS 169 (N.D. 1935).

An assault and battery with a dangerous weapon, with intent to do bodily harm, was included in the offense of assault with a deadly weapon with intent to kill, and a conviction of the former offense, under an information charging the latter, was valid. State v. Grassy, 50 N.D. 715, 197 N.W. 881, 1924 N.D. LEXIS 25 (N.D. 1924).

“Malice.”

The statutory definition of “malice” could properly be applied as a definition of the element of malice in the crime of murder, and was not inconsistent with premeditated design necessary to constitute criminal intent. Territory v. Egan, 13 N.W. 568, 3 Dakota 119, 1882 Dakota LEXIS 10 (Dakota 1882).

Malice, express or implied, was essential to the crime of murder in the second degree. State v. Carter, 50 N.D. 270, 195 N.W. 567, 1923 N.D. LEXIS 98 (N.D. 1923).

Negligent Homicide.

Defendant who killed a boy while negligently operating a motor vehicle was improperly sentenced under manslaughter statute, and should have been sentenced for the lesser penalty under the negligent homicide statute. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Negligent homicide required proof of more than ordinary negligence; there must have been reckless disregard for the safety of others, or culpable negligence which implied a total lack of care. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

The legislature, by enactment of the negligent homicide statute, legislated anew in the field of homicide resulting from the improper operation of motor vehicles and when applicable, the law superseded the manslaughter statute. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Premeditation As Affecting Degree of Crime.

Murder in the second degree differed from murder in the first degree only in the fact that as to the second degree there was no premeditation or deliberation. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910); State v. Mueller, 40 N.D. 35, 168 N.W. 66, 1918 N.D. LEXIS 64 (N.D. 1918).

No premeditation or malice aforethought was necessary to constitute the crime of murder in the second degree. State v. Mueller, 40 N.D. 35, 168 N.W. 66, 1918 N.D. LEXIS 64 (N.D. 1918).

Proof of Death.

Fact of death had to be established by direct proof. STATE v. GIBSON, 69 N.D. 70, 284 N.W. 209, 1939 N.D. LEXIS 135 (N.D. 1939).

Reckless Driving.

By its enactment of a special statute on the commission of homicide by reckless driving of a motor vehicle, the legislature removed that particular offense from the general statute on manslaughter. State v. Hagge, 224 N.W.2d 560, 1974 N.D. LEXIS 144 (N.D. 1974).

Sentence.

Penitentiary sentences from one to three years were not warranted by a verdict finding the defendants guilty of an assault with a dangerous weapon with intent to do bodily harm, without justifiable or excusable cause, where defendants were charged with shooting or attempting to shoot with intent to kill, or with shooting or attempting to shoot with intent to do bodily harm. State v. Mattison, 13 N.D. 391, 100 N.W. 1091, 1904 N.D. LEXIS 56 (N.D. 1904).

State’s Burden of Proof.

Under an information charging the commission of murder in the first degree, which alleged that at the said time and place said defendant did then and there willfully, unlawfully and feloniously strike deceased a blow, causing her death, while he the said defendant was attempting to commit rape in and upon the person of the deceased, the state was required to prove to the satisfaction of the jury beyond a reasonable doubt that the defendant struck the fatal blow while attempting to commit rape upon the person of the deceased. State v. Maresch, 75 N.D. 229, 27 N.W.2d 1, 1947 N.D. LEXIS 62 (N.D. 1947).

Where defendants in a criminal case were charged with murder in the first degree, and there was reasonable ground to doubt in which of two or more degrees they were guilty, they could be convicted of the lowest degree only. State v. Whiteman, 79 N.W.2d 528, 1956 N.D. LEXIS 159, 1956 N.D. LEXIS 160 (N.D. 1956).

Collateral References.

Malice: inference of malice or intent to kill where killing is done by blow without weapon, 22 A.L.R.2d 854.

Hunting accident, criminal responsibility for injury or death resulting from, 23 A.L.R.2d 1401.

Causing one, by threats or fright, to leap or fall to his death, 25 A.L.R.2d 1186.

Fright or shock, homicide by, 47 A.L.R.2d 1072.

Druggist’s criminal responsibility for death or injury in consequence of mistake, 55 A.L.R.2d 714.

Validity and construction of 59 A.L.R.2d 946.

Premeditation: presumption of deliberation or premeditation from the fact of killing, 86 A.L.R.2d 656.

Dying declarations as to motive for killing, 86 A.L.R.2d 905.

Punishment of child: criminal liability of parent, teacher, or one in loco parentis for homicide by excessive or improper punishment inflicted on child, 89 A.L.R.2d 396.

“Lying in wait,” what constitutes, 89 A.L.R.2d 1140.

Medical or surgical attention, failure to provide, 100 A.L.R.2d 483.

Treatment of injury: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 100 A.L.R.2d 769.

Intoxication: modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 A.L.R.3d 1236.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

Arrest: private person’s authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

Improper treatment of disease or injury, homicide predicated on, 45 A.L.R.3d 114.

Attempted murder, what constitutes, 54 A.L.R.3d 612.

Self-defense: unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 A.L.R.3d 1000.

Criminal liability where the act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.

Felony-murder rule, what constitutes termination of felony for purpose of, 58 A.L.R.3d 851.

Withholding food, clothing, or shelter, 61 A.L.R.3d 1207.

Live birth: proof of live birth in prosecution for killing newborn child, 65 A.L.R.3d 413.

Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.3d 98.

When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 A.L.R.3d 195.

What constitutes murder by torture, 83 A.L.R.3d 1222.

Modern status of the rules requiring “malice aforethought,” “deliberation,” or “premeditation” as elements of murder in the first degree, 18 A.L.R.4th 961.

Criminal liability for death of another as result of accused’s attempt to kill self or assist another’s suicide, 40 A.L.R.4th 702.

Homicide: Sufficiency of evidence of mother’s neglect of infant born alive, in minutes or hours immediately following unattended birth, to establish culpable homicide, 40 A.L.R.4th 724.

Homicide by causing victim’s brain-dead condition, 42 A.L.R.4th 742.

Corporation’s criminal liability for homicide, 45 A.L.R.4th 1021.

Homicide: physician’s withdrawal of life supports from comatose patient, 47 A.L.R.4th 18.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 A.L.R.5th 497.

Admissibility of evidence in homicide case that victim was threatened by one other than defendant, 11 A.L.R.5th 831.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

Admissibility of evidence of prior physical acts of spousal abuse committed by defendant accused of murdering spouse or former spouse, 24 A.L.R.5th 465.

Admissibility in homicide prosecution of allegedly gruesome or inflammatory visual recording of crime scene, 37 A.L.R.5th 515.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R. 5th 467.

Adequacy of defense counsel’s representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

Sufficiency of Evidence to Support Homicide Conviction Where No Body Was Produced. 65 A.L.R.6th 359.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to homicide, 66 N.D. L. Rev. 753 (1990).

Defending battered women: Everything she says may be used against them, 68 N.D. L. Rev. 131 (1992).

12.1-16-02. Manslaughter.

A person is guilty of manslaughter, a class B felony, if he recklessly causes the death of another human being.

Source: S.L. 1973, ch. 116, § 16; 1983, ch. 165, § 1; 1985, ch. 174, § 2.

Cross-References.

Jurisdiction of manslaughter, see N.D.C.C. § 29-03-18.

Penalty for class B felony, see N.D.C.C. § 12.1-32-01.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Notes to Decisions

Constitutionality.
—Equal Protection.

The grading phrase “extreme indifference to the value of human life” is an understandable and distinct definition of the conduct prohibited by N.D.C.C. § 12.1-16-01, subsection 1, subdivision b, and is a reasonable and rational method of distinguishing the greater crime of class AA murder from the lesser crime of class B manslaughter; therefore, there is no arbitrary discrimination between classes similarly situated that is prohibited by the Equal Protection Clause of the Fourteenth Amendment. Frey v. State, 509 N.W.2d 261, 1993 N.D. LEXIS 230 (N.D. 1993).

Culpability.

“Knowingly”, “willfully”, “intentionally”, and “negligently” are not components of manslaughter’s culpability requirement of recklessly, and defendant charged and tried for offense of manslaughter was not entitled to have jury instructed on such terms. State v. Granrud, 301 N.W.2d 398, 1981 N.D. LEXIS 284 (N.D.), cert. denied, 454 U.S. 825, 102 S. Ct. 113, 70 L. Ed. 2d 98, 1981 U.S. LEXIS 3207 (U.S. 1981).

Extreme Emotional Disturbance.

Where defendant raises evidence of extreme emotional disturbance, state is not required to prove nonexistence of extreme emotional disturbance for which there was reasonable excuse beyond a reasonable doubt in order for the jury to convict defendant of murder; same is true with regard to a charge of manslaughter. State v. Dilger, 338 N.W.2d 87, 1983 N.D. LEXIS 373 (N.D. 1983).

Joinder.

Defendant’s manslaughter conviction was proper where he failed to show that the trial court made an obvious error or that he was prejudiced by the joinder of the other defendant at trial; defendants were linked by their participation in a common transaction or act. State v. Bingaman, 2002 ND 202, 655 N.W.2d 51, 2002 N.D. LEXIS 270 (N.D. 2002).

Jury Verdict.

Jury verdict convicting defendant of reckless endangerment and negligent homicide while acquitting him of manslaughter was not inconsistent; evidence showed that the defendant, who was driving a vehicle in an accident that killed one and injured four, was reckless in his endangerment of his passengers’ lives before the death occurred. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

Recklessness.

Jury could have reasonably concluded that defendant, who injected the victim with a syringe, was familiar with drug overdose symptoms and was awake while the victim was in a medical crisis. Whether defendant’s conduct in failing to render aid to the victim rose to the level of criminal negligence or recklessness was within the province of the jury. State v. Streeper, 2007 ND 25, 727 N.W.2d 759, 2007 N.D. LEXIS 22 (N.D. 2007).

Sufficiency of Evidence.

Evidence that defendant made unsolicited comments to various police officers and other persons to the effect that she had kicked victim and that she had killed him, along with testimony that witness observed defendant stomping or kicking victim about the head and body, and that the cause of victim’s death was hemorrhage of the brain resulting from a blow to the head by a blunt object such as a bare foot, constituted sufficient evidence to support the jury’s verdict that defendant committed manslaughter. State v. Olson, 372 N.W.2d 901, 1985 N.D. LEXIS 379 (N.D. 1985).

DECISIONS UNDER PRIOR LAW

Erroneous Instruction.

Where a jury under an erroneous instruction found the defendant guilty only of manslaughter in the second degree which was not based on reckless driving, such instruction was without prejudice to the defendant. State v. Tjaden, 69 N.W.2d 272, 1955 N.D. LEXIS 97 (N.D. 1955).

Reckless Driving.

If a homicide occurred while the driver of a motor vehicle was engaged in committing the misdemeanor of reckless driving it was neither excusable nor justifiable and was therefore manslaughter. Green v. Whipple, 89 N.W.2d 881, 1958 N.D. LEXIS 78 (N.D. 1958).

Reckless driving was not included in a conviction on second degree of manslaughter. State v. Tjaden, 69 N.W.2d 272, 1955 N.D. LEXIS 97 (N.D. 1955).

Collateral References.

Who other than actor is responsible for manslaughter, 95 A.L.R.2d 175.

Insulting words as provocation of homicide or as reducing degree thereof, 2 A.L.R.3d 1292.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

Self-defense: unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.3d 98.

When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 A.L.R.3d 195.

Spouse’s confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.

Propriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter, 19 A.L.R.4th 861.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R. 5th 467.

Adequacy of defense counsel’s representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

Propriety of lesser included offense charge of voluntary manslaughter to jury in state murder prosecution-Twenty-first century cases, 3 A.L.R.6th 543.

Law Reviews.

Criminal Law — Self-Defense — Jury Instructions Given on Subjective Standard of Reasonableness in Self-Defense Do Not Require a Specific Instruction on Battered Woman Syndrome, 60 N.D. L. Rev. 45 (1984).

12.1-16-03. Negligent homicide.

A person is guilty of a class C felony if he negligently causes the death of another human being.

Source: S.L. 1973, ch. 116, § 16.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Culpability.

Jury verdict convicting defendant of reckless endangerment and negligent homicide was not inconsistent; defendant was driving when involved in an accident that killed one and injured four, and the evidence showed reckless endangerment of the passengers’ lives before the death occurred. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

Evidence.
—Admissible.

The results of an intoxilyzer test may well be relevant evidence in a negligent homicide case. State v. Winkler, 552 N.W.2d 347, 1996 N.D. LEXIS 187 (N.D. 1996).

—Sufficient.

A boat operator’s actions in failing to have each passenger wear a personal flotation device, operating his boat in adverse water and weather conditions, operating his boat in poor light, and operating his boat while under the influence of intoxicating liquor, were sufficient to support a conviction of negligent homicide arising out of the death of two children passengers when the boat overturned. State v. Tranby, 437 N.W.2d 817, 1989 N.D. LEXIS 55 (N.D.), cert. denied, 493 U.S. 841, 110 S. Ct. 128, 107 L. Ed. 2d 88, 1989 U.S. LEXIS 4147 (U.S. 1989).

District court properly denied defendant’s motions for acquittal as the evidence was sufficient to convict defendant of negligent homicide when a trailer completely decoupled from his pickup truck, collided with an oncoming car, and killed the driver of that car because the record contained evidence from which the jury could conclude that defendant failed to properly attach his trailer by not using a ball, improperly attaching the ball, or using an incorrectly sized ball; and by failing to use or incorrectly attaching the safety chains while towing his trailer on the highway. State v. Evans, 2013 ND 195, 838 N.W.2d 605, 2013 N.D. LEXIS 199 (N.D. 2013).

Instruction.

The negligence involved in a negligent homicide instruction in a self-defense case is a negligently-held belief in the necessity of using force in self-defense. State v. Gagnon, 1997 ND 153, 567 N.W.2d 807, 1997 N.D. LEXIS 172 (N.D. 1997).

A negligent homicide instruction must be given when self-defense and manslaughter are issues in a murder case. State v. Gagnon, 1997 ND 153, 567 N.W.2d 807, 1997 N.D. LEXIS 172 (N.D. 1997).

Intentional Shooting.

The fact that a shooting was intentional does not preclude a verdict of manslaughter if the shooting resulted from an unreasonable belief in the necessity of using force. State v. Clark, 1997 ND 199, 570 N.W.2d 195, 1997 N.D. LEXIS 243 (N.D. 1997).

Intervening Event.

In a prosecution for negligent homicide arising out of death of the victim from hypothermia, where it appeared very unlikely from the record that the victim could have been, by any means, revived after her body was discovered, someone else’s failure, if it could be so proved, to revive the victim after her body was discovered could not have excused the defendant for his negligent conduct. State v. Schlickenmayer, 364 N.W.2d 108, 1985 N.D. LEXIS 273 (N.D. 1985).

Negligently Caused Death.

It is not necessary to show that defendant realized her conduct would in all probability produce death in order to establish that she negligently caused death; negligent conduct requires only showing of an unreasonable disregard of a substantial likelihood of existence of relevant facts or risks. State v. Ohnstad, 359 N.W.2d 827, 1984 N.D. LEXIS 435 (N.D. 1984).

Statute Not Vague.

The language of this section when read together with the definition of “negligently” in N.D.C.C. § 12.1-02-02 is sufficiently explicit to enable a reasonable person to determine what type of conduct renders him liable under the statute. State v. Tranby, 437 N.W.2d 817, 1989 N.D. LEXIS 55 (N.D.), cert. denied, 493 U.S. 841, 110 S. Ct. 128, 107 L. Ed. 2d 88, 1989 U.S. LEXIS 4147 (U.S. 1989).

Verdicts Consistent.

Acquittals for murder and negligent homicide were not inconsistent with a conviction for leaving the scene of an accident causing death because the jury could have found that defendant did not negligently cause death, but negligently left the scene when he failed to get out and see what a bump was when he left the parking lot across from a bar. State v. Jacob, 2006 ND 246, 724 N.W.2d 118, 2006 N.D. LEXIS 253 (N.D. 2006).

DECISIONS UNDER PRIOR LAW

Culpable Negligence.

The term “culpable negligence” in former section defining manslaughter in the second degree, as applied to the operation of a motor vehicle, implied a total lack of care properly described as being in a reckless and heedless manner, with utter disregard for the lives and limbs of persons upon the highway. State v. Gulke, 76 N.D. 653, 38 N.W.2d 722 (1949), decided prior to the enactment of section 12.1-16-02; State v. Tjaden, 69 N.W.2d 272, 1955 N.D. LEXIS 97 (N.D. 1955).

Where defendant was charged with first degree manslaughter perpetrated while committing misdemeanor of reckless driving and the evidence showed that defendant was guilty of culpable negligence, trial court properly instructed the jury on manslaughter in the second degree as an included offense. State v. Gulke, 76 N.D. 653, 38 N.W.2d 722, 1949 N.D. LEXIS 85 (N.D. 1949).

Collateral References.

Criminal responsibility for death resulting from hunting accident, 23 A.L.R.2d 1401.

Criminal responsibility of druggist for death in consequence of mistake, 55 A.L.R.2d 714.

Criminal responsibility of motor vehicle operator for fatal accident arising from physical defect, illness, drowsiness, or falling asleep, 63 A.L.R.2d 983.

Punishment of child: criminal liability of parent, teacher, or one in loco parentis for homicide by excessive or improper punishment inflicted on child, 89 A.L.R.2d 396.

Medical or surgical attention, failure to provide, 100 A.L.R.2d 483.

Treatment of injury: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 100 A.L.R.2d 769.

What amounts to negligence within meaning of statutes penalizing negligent homicide by operation of a motor vehicle, 20 A.L.R.3d 473.

Criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.

Improper treatment of disease or injury, homicide predicated on, 45 A.L.R.3d 114.

Use of set gun, trap, or similar device on defendant’s own property, 47 A.L.R.3d 646.

Unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

Criminal liability for injury or death caused by operation of pleasure boat, 8 A.L.R.4th 886.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R. 5th 467.

Establishment of negligence within meaning of statute penalizing negligent homicide by operation of motor vehicle — Speeding or driving at unsafe speed, 84 A.L.R.6th 427.

12.1-16-04. Assisting the commission of suicide — Causing death by suicide — Penalties.

  1. Any person who intentionally or knowingly aids, abets, facilitates, solicits, or incites another person to commit suicide, or who provides to, delivers to, procures for, or prescribes for another person any drug or instrument with knowledge that the other person intends to attempt to commit suicide with the drug or instrument is guilty of a class C felony.
  2. Any person who, through deception, coercion, or duress, willfully causes the death of another person by suicide is guilty of a class AA felony.

Source: S.L. 1991, ch. 123, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-16-05. Injunctive relief.

  1. A claim for relief for an injunction may be maintained against any person who has attempted or will attempt to violate subsection 1 of section 12.1-16-04 by any person who is entitled to inherit from the person who would commit suicide or who is the spouse, parent, child, sibling, or health care provider of such person.
  2. Any public official with jurisdiction to prosecute or enforce the laws of this state may maintain a claim for relief for an injunction against any present or future violation or attempted violation of subsection 1 of section 12.1-16-04.

Source: S.L. 1991, ch. 123, § 2.

12.1-16-06. Construction.

Sections 12.1-16-04 through 12.1-16-06 do not preclude the use of medications or procedures necessary to relieve a person’s pain or discomfort if the use of the medications or procedures is not intentionally or knowingly prescribed or administered to cause the death of that person. In addition, sections 12.1-16-04 through 12.1-16-06 do not preclude the withholding or withdrawal of life-prolonging treatment pursuant to state or federal law.

Source: S.L. 1991, ch. 123, § 3.

12.1-16-07. Civil damages.

Any person given standing under subsection 1 of section 12.1-16-05, except the health care provider, may maintain a claim for relief for compensatory and punitive damages against any person who violates or attempts to violate section 12.1-16-04. Prior knowledge of or consent to the violation by the plaintiff does not preclude a claim for relief under this section. This section does not preclude any claim under any other provision of law.

Source: S.L. 1999, ch. 122, § 1.

12.1-16-08. Suspension or revocation of license of health care provider.

If the person who assists in a suicide in violation of section 12.1-16-04 is a person who is licensed, certified, or otherwise authorized by title 43 to administer health care in the ordinary course of business or professional practice, the licensing agency that issued the license or certification to that person may suspend or revoke the license or certification of that person upon receipt of:

  1. A copy of the record of criminal conviction or plea of guilty to a felony in violation of section 12.1-16-04;
  2. A copy of the record of a judgment of contempt of court for violating an injunction issued under section 12.1-16-05; or
  3. A copy of the record of a judgment assessing damages under section 12.1-16-07.

Source: S.L. 1999, ch. 122, § 2.

Cross-References.

Discipline of nurses, see N.D.C.C. § 43-12.1-14.

Discipline of physicians and surgeons, see N.D.C.C. §§ 43-17-30.1 to 43-17-32.1.

CHAPTER 12.1-17 Assaults — Threats — Coercion — Harassment

12.1-17-01. Simple assault.

  1. A person is guilty of an offense if that person:
    1. Willfully causes bodily injury to another human being; or
    2. Negligently causes bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury.
  2. The offense is:
    1. 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; an employee of the state hospital acting in the course and scope of employment, which the actor knows to be a fact, and the actor is an individual committed to or detained at the state hospital pursuant to chapter 25-03.3; a person engaged in a judicial proceeding; or a member of a municipal or volunteer fire department or emergency medical services personnel unit or emergency department worker in the performance of the member’s duties.
    2. A class B misdemeanor except as provided in subdivision a.

Source: S.L. 1973, ch. 116, § 17; 1975, ch. 116, § 15; 1979, ch. 178, § 1; 1993, ch. 119, § 1; 1997, ch. 121, § 1; 2001, ch. 133, §§ 1, 2; 2003, ch. 105, § 1; 2005, ch. 114, § 1; 2009, ch. 129, § 1; 2019, ch. 107, § 2, effective August 1, 2019.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Evidence Admissible.

Where defendant appealed her conviction for violating N.D.C.C. § 12.1-17-01(1)(a), the district court’s admission of prior bad act evidence under N.D.R.Ev. 404(b) was harmless error as ample evidence supported the conclusion that she willfully caused bodily injury to another human being independent of the evidence of the prior bad acts. State v. Dieterle, 2013 ND 130, 833 N.W.2d 473, 2013 N.D. LEXIS 121 (N.D. 2013).

Evidence Sufficient.

Evidence was sufficient to convict defendant of attempted simple assault where the sheriff testified that defendant “swung, and he grazed the side of my face,” leaving a “mark on my face” and “also a mark on my knee where he had kicked me.” Defendant’s conduct evidenced he intentionally attempted to hit the sheriff and did hit and kick the sheriff, leaving visible marks on his body. State v. Barth, 2005 ND 134, 702 N.W.2d 1, 2005 N.D. LEXIS 169 (N.D. 2005).

Evidence was sufficient to convict defendant of simple assault-domestic violence because he caused bodily injury to a victim; although the victim testified that she did not feel any pain, it was a matter of common experience and understanding that was left to the jury. A reporting witness testified to seeing defendant strike the alleged victim repeatedly in the upper body, and defendant had a fresh laceration on his arm after the alleged assault; moreover, officers testified that it was not uncommon to investigate assaults where there was no indication of physical injury. State v. Hannah, 2016 ND 11, 873 N.W.2d 668, 2016 N.D. LEXIS 7 (N.D. 2016).

Defendant was properly convicted of simple assault on a peace officer, fleeing or attempting to elude a peace officer, and preventing arrest because he was given a visual signal to stop when a detective activated his emergency lights and, while the emergency lights were still on and without any indication the detective had released him, defendant drove away and when the detective another officer later encountered defendant at a storage unit, defendant shoved the detective into a storage unit door, closed his car door on the detective’s arm, and kicked the other officer in the chest and chin, causing both officers pain. State v. Hamre, 2019 ND 86, 924 N.W.2d 776, 2019 N.D. LEXIS 85 (N.D. 2019).

Intoxication.

Intoxication is not an element of simple assault, nor is it a defense to a simple assault charge. State v. Schindele, 540 N.W.2d 139, 1995 N.D. LEXIS 208 (N.D. 1995).

Invited Error.

District court did not err in failing to instruct the jury to make a finding as to whether defendant knew that a state trooper was acting in his official capacity at the time of her arrest because she invited the error by kicking and striking the trooper in the face and shoulder when he tried to get her back in the patrol car after he checked her for weapons, nothing in the record indicated that defendant did not know the trooper was working in his official capacity, and while defendant argued on appeal that she was fearful during the traffic stop, she never testified at trial, the trooper testified that she was belligerent and uncooperative throughout the entire traffic stop, but did not appear fearful or scared. State v. Rende, 2018 ND 56, 907 N.W.2d 361, 2018 N.D. LEXIS 44 (N.D. 2018).

Lesser Included Offense.
—Assault of a Police Officer.

Because there was no evidence to create a reasonable doubt about the official capacities of deputies, the evidence did not require a jury instruction on simple assault as a lesser-included offense of assault of a police officer. State v. Larson, 554 N.W.2d 655, 1996 N.D. LEXIS 219 (N.D. 1996).

—Murder.

Because murder can occur without an assault, the district court correctly determined the elements of assault are not a subset of the elements of murder and refused defendant’s request to instruct the jury on assault as a lesser included offense of murder. United States v. Standish, 3 F.3d 1207, 1993 U.S. App. LEXIS 22509 (8th Cir. N.D. 1993).

Preventing Arrest.

Record contained competent evidence to permit the jury to find defendant guilty of resisting arrest. State v. Hondl, 506 N.W.2d 404, 1993 N.D. LEXIS 181 (N.D. 1993).

Self-Defense Instruction.

Where self-defense and defense of others were the defendant’s primary defenses to the simple assault charge, the trial court’s refusal to give the instructions constituted reversible error under N.D.R.Crim.P. 52(a). State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

In prosecution for simple assault, the defendant was entitled to the instructions on self-defense and defense of another, although he refused to unequivocably admit striking the victim. State v. Thiel, 411 N.W.2d 66, 1987 N.D. LEXIS 364 (N.D. 1987).

DECISIONS UNDER PRIOR LAW

“Assault and Battery.”

Where jury acquitted defendant of assault and battery, but convicted him of assault, the verdict was lawful and valid since the strict standards of logical consistency need not be applied to jury verdicts in criminal cases, and since the common use of the term “assault and battery” as a single offense enjoyed general acceptance. State v. Swanson, 225 N.W.2d 283, 1974 N.D. LEXIS 145 (N.D. 1974).

Battery As “Consummated Assault.”

Every battery was, in effect, a consummated assault, and thus a person could make an unlawful attempt to do violence to another, which constituted an assault, without committing the battery. State v. Swanson, 225 N.W.2d 283, 1974 N.D. LEXIS 145 (N.D. 1974).

Character Evidence.

In order for defendant to introduce evidence of the turbulent and quarrelsome character of the victim — a police officer — he had first to introduce foundation evidence tending to show that he acted in self-defense. State v. Lende, 190 N.W.2d 52, 1971 N.D. LEXIS 134 (N.D. 1971).

Evidence Sufficient.

Where four defendants, charged with assault and battery, admitted they traveled together, arrived at scene of assault together, were present while fighting between them and occupants of house was going on, and acted in support of each other, none of them doing anything to stop fighting, there was ample evidence that all of defendants aided and abetted in commission of the battery, and conviction was affirmed. State v. Berger, 235 N.W.2d 254, 1975 N.D. LEXIS 142 (N.D. 1975), cert. denied, 425 U.S. 913, 96 S. Ct. 1511, 47 L. Ed. 2d 764, 1976 U.S. LEXIS 880 (U.S. 1976).

Information Sufficient.

Where the offense charged in the information included another smaller constituent offense the charge of such other offense would not render the information duplicitous. State v. Climie, 12 N.D. 33, 94 N.W. 574, 1903 N.D. LEXIS 3 (N.D. 1903).

Rape.

As an assault did not imply an ability to consummate the attempted act, impotency could not be a defense to the charge of an assault with intent to commit the crime of rape. Territory v. Keyes, 38 N.W. 440, 5 Dakota 244, 1888 Dakota LEXIS 23 (Dakota 1888).

Threatened Violence.

It was sufficient to constitute an assault that there was an overt act of threatened violence with the apparent ability to commit a battery. State v. Cruikshank, 13 N.D. 337, 100 N.W. 697, 1904 N.D. LEXIS 36 (N.D. 1904).

Touching.

To constitute a battery there had to be an actual touching, however slight, of the person assaulted. State v. Cruikshank, 13 N.D. 337, 100 N.W. 697, 1904 N.D. LEXIS 36 (N.D. 1904).

Touching one willfully was not sufficient to constitute a battery. State v. Magill, 19 N.D. 131, 122 N.W. 330, 1909 N.D. LEXIS 80 (N.D. 1909).

Collateral References.

Indecent proposal to a woman as a criminal assault, 12 A.L.R.2d 971.

Criminal responsibility for injury resulting from hunting accident, 23 A.L.R.2d 1401.

Motor vehicle: criminal responsibility for assault and battery by operation of mechanically defective motor vehicle, 88 A.L.R.2d 1165.

Child: criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.

Admissibility of evidence as to other’s character or reputation for turbulence on question of self-defense by one charged with assault or homicide, 1 A.L.R.3d 571.

Relationship with assailant’s wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.

Use of set gun, trap, or similar device on defendant’s own property, 47 A.L.R.3d 646.

Self-defense: unintentional killing of or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 A.L.R.3d 1000.

Consent as defense to charge of criminal assault and battery, 58 A.L.R.3d 662.

Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.

Automobile as dangerous or deadly weapon within meaning of assault or battery statute, 89 A.L.R.3d 1026.

Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault, 24 A.L.R.4th 243.

Franchisor’s tort liability for injuries allegedly caused by assault or other criminal activity on or near franchise premises, 2 A.L.R.5th 369.

Transmission or risk of transmission of human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) as basis for prosecution or sentencing in criminal or military discipline case, 13 A.L.R.5th 628.

Validity, construction, and effect of assault and battery exclusion in liability insurance policy at issue, 44 A.L.R.5th 91.

Secondary smoke as battery, 46 A.L.R.5th 813.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

Parents’ criminal liability for failure to provide medical attention to their children, 118 A.L.R.5th 253.

Parts of Human Body, other than Feet, as Deadly or Dangerous Weapons or Instrumentalities for Purposes of Statutes Aggravating Offenses such as Assault and Robbery. 67 A.L.R.6th 103.

12.1-17-01.1. Assault.

A person is guilty of a class A misdemeanor, except if the victim is under the age of twelve years in which case the offense is a class C felony, if that person:

  1. Willfully causes substantial bodily injury to another human being; or
  2. Negligently causes substantial bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury.

Source: S.L. 1985, ch. 175, § 2; 1999, ch. 123, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Injury or death caused by assault as within coverage of no-fault motor vehicle insurance, 44 A.L.R.4th 1010.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

Parts of Human Body, other than Feet, as Deadly or Dangerous Weapons or Instrumentalities for Purposes of Statutes Aggravating Offenses such as Assault and Robbery. 67 A.L.R.6th 103.

Notes to Decisions

Included Offenses.

When defendant was charged with aggravated assault, it was no error to instruct the jury on assault and simple assault because the greater offense could not be committed without committing the lesser offense. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

12.1-17-01.2. Domestic violence.

  1. For purposes of this section “family or household member” means family or household member as defined in section 14-07.1-01.
  2. A person is guilty of an offense if that person willfully causes:
    1. Bodily injury to the actor’s family or household member;
    2. Substantial bodily injury to the actor’s family or household member; or
    3. Serious bodily injury to the actor’s family or household member.
  3. The offense is:
    1. A class B misdemeanor for the first offense under subdivision a of subsection 2 and a class A misdemeanor for a second or subsequent offense under this section or sections 12.1-17-01, 12.1-17-01.1, or 12.1-17-02 involving the commission of domestic violence, as defined in section 14-07.1-01. For purposes of this subdivision, a prior conviction includes a conviction of any assault offense in which a finding of domestic violence was made under a law or ordinance of another state which is equivalent to this section.
    2. A class A misdemeanor for an offense under subdivision b of subsection 2 and a class C felony for an offense under subdivision c of subsection 2.
    3. A class B felony for an offense under subdivision b or c of subsection 2 if the victim is under twelve years of age.
  4. A person charged with an offense under this section must be prosecuted in district court .

Source: S.L. 2019, ch. 107, § 3, effective August 1, 2019.

12.1-17-02. Aggravated assault.

  1. Except as provided in subsection 2, a person is guilty of a class C felony if that person:
    1. Willfully causes serious bodily injury to another human being;
    2. Knowingly causes bodily injury or substantial bodily injury to another human being with a dangerous weapon or other weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury;
    3. Causes bodily injury or substantial bodily injury to another human being while attempting to inflict serious bodily injury on any human being; or
    4. Fires a firearm or hurls a destructive device at another human being.
  2. The person is guilty of a class B felony if the person violates subsection 1 and the victim:
    1. Is under twelve years of age;
    2. Is a peace officer or correctional institution employee acting in an official capacity, which the actor knows to be a fact; or
    3. Suffers permanent loss or impairment of the function of a bodily member or organ.

Source: S.L. 1973, ch. 116, § 17; 1985, ch. 175, § 3; 1999, ch. 123, § 2; 2015, ch. 104, § 1, effective August 1, 2015; 2017, ch. 98, § 1, effective August 1, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Notes to Decisions

Effect of Conviction on Other Proceedings.

Trial court’s only finding on domestic violence was the acknowledgment of the father’s conviction for aggravated assault domestic violence, and this conviction alone was sufficient reason to find the statutory presumption of supervised parenting was triggered based on serious bodily injury; while the court would have preferred more detailed findings, it was clear that the father’s conduct triggered the presumption and this finding was not clearly erroneous. Wisnewski v. Wisnewski, 2020 ND 148, 945 N.W.2d 331, 2020 N.D. LEXIS 148 (N.D. 2020).

Harmless Error.

Defendant’s conviction for aggravated assault in violation of N.D.C.C. § 12.1-17-02(1) was appropriate even though the district court abused its discretion in admitting testimony from a police detective as lay witness opinion testimony under N.D.R.Ev. 701 because the error was harmless since there was overwhelming evidence of guilt. The detective testified that his testimony was based on his review of the police reports and on his interview with the victim weeks after the incident; the detective did not observe the incident or the victim’s injuries. State v. Saulter, 2009 ND 78, 764 N.W.2d 430, 2009 N.D. LEXIS 76 (N.D. 2009).

Included Offenses.

Kidnapping is not an included offense of aggravated assault. State v. Motsko, 261 N.W.2d 860, 1977 N.D. LEXIS 181 (N.D. 1977).

Where defendant was convicted of aggravated assault under this section, the trial court did not err by not instructing the jury on the lesser included offenses of assault and simple assault when a self-defense instruction was given and neither party requested a lesser included offense instruction. State v. Mathre, 1999 ND 224, 603 N.W.2d 173, 1999 N.D. LEXIS 240 (N.D. 1999).

When defendant was charged with aggravated assault, it was no error to instruct the jury on assault and simple assault because the greater offense could not be committed without committing the lesser offense. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

Ineffective Assistance of Counsel.

Defendant failed to prove ineffective assistance of counsel where he was advised by his counsel to enter a plea of guilty to aggravated battery, in light of defendant’s extensive prior record and the absence of evidence tending to corroborate defendant’s version of the incident, and where defendant received less than the maximum sentence. State v. Bowers, 426 N.W.2d 293, 1988 N.D. LEXIS 164 (N.D. 1988).

Lesser Included Offense of Attempted Murder.

Aggravated assault under subsections 1, 2, and 3 of this section, which require a bodily injury be suffered by victim, is not a lesser included offense of attempted murder, however, aggravated assault under subsection 4 of this section, which does not require a bodily injury be suffered by victim, can be a lesser included offense of attempted murder. State v. Sheldon, 301 N.W.2d 604, 1980 N.D. LEXIS 342 (N.D. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204, 1981 U.S. LEXIS 1398 (U.S. 1981).

Defendant was not entitled to a new trial because the verdict was not legally inconsistent where the culpability required for both murder under N.D.C.C. § 12.1-16-01(1)(b) and aggravated assault under N.D.C.C. § 12.1-17-02(1) was willfully, and for attempt under N.D.C.C. § 12.1-06-01(1), the culpability level of the substantial step conduct was intentionally; the culpability requirements for the two crimes were not identical because conviction of attempted murder in this case also required proof of circumstances manifesting extreme indifference to the value of human life and intentionality of the substantial step conduct, but in order to convict an individual of aggravated assault, there was no need to prove an absence of circumstances manifesting an extreme indifference to the value of human life, nor was there a need to prove an absence of intentionality; therefore, the jury’s verdict finding defendant guilty of both crimes was not legally inconsistent. State v. Coppage, 2008 ND 134, 751 N.W.2d 254, 2008 N.D. LEXIS 132 (N.D. 2008).

Prosecutorial Misconduct.

In defendant’s trial for reckless endangerment and aggravated assault, a prosecutor’s comments about not believing defendant’s version of events was not obvious error, and any prejudice was cured by the trial court’s instructions. Also, the prosecutor’s comment during the closing, that defendant had no excuse, was not an attempt to shift the burden; the burden of proof was sufficiently explained in the trial court’s jury instructions on reasonable doubt and the defense of excuse. State v. Clark, 2004 ND 85, 678 N.W.2d 765, 2004 N.D. LEXIS 183 (N.D. 2004).

Sentence.

District court did not abuse its discretion in denying defendant's motion to correct his sentence because his sentence did not contain an arithmetical, technical, or other clear error to correct; while the statutes defining class B and C aggravated assault and requiring service of eighty-five percent of a sentence for specified offenses had been amended to remove the class C felony offense from the eighty-five percent service requirement, that did not constitute an "error" in sentence. State v. Myers, 2017 ND 265, 903 N.W.2d 520, 2017 N.D. LEXIS 266 (N.D. 2017).

District court erred in imposing a five-year sentence of supervised probation because aggravated assault—domestic violence was a class C felony that fell within the "any other felony offense" category, which limited defendant's supervised probation to three years for his crime. State v. Isom, 2018 ND 60, 907 N.W.2d 340, 2018 N.D. LEXIS 61 (N.D. 2018).

Defendant’s prior conviction for willful aggravated assault under North Dakota law did not qualify as crime of violence under United States Sentencing Guidelines because it satisfied neither force clause nor enumerated-offenses clause; it was unclear under which subsection defendant pleaded guilty, and thus, it could not be said with certainty that defendant’s conviction had as element use, attempted use, or threatened use of physical force, and subsection (a) of statute of conviction was broader than generic definition of aggravated assault because it included recklessly causing serious bodily injury. United States v. Schneider, 905 F.3d 1088, 2018 U.S. App. LEXIS 27669 (8th Cir. N.D. 2018).

Serious Bodily Injury.

Permanent reduction in the vision on one eye, with a resulting need to wear corrective lenses, is a “serious bodily injury” under N.D.C.C. § 12.1-01-04(29) which supports conviction of aggravated assault under this section. Dellwo v. R.D.B. (In the Interest of R.D.B.), 1998 ND 15, 575 N.W.2d 420, 1998 N.D. LEXIS 4 (N.D. 1998).

It was reasonable for the jury to find defendant guilty of aggravated assault because the testimony that his wife felt as though she was going to pass out, along with a doctor’s testimony that her injuries were consistent with strangulation, constituted “serious bodily injury”; the testimony stating defendant intentionally put his wife in a choke hold satisfied the requirement that the conduct be “willful.” State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

Sufficient Evidence.

Evidence was sufficient to support the aggravated assault conviction as there were photographs of the victim’s injuries, and the officers testified her injuries were consistent with her claims. State v. Vondal, 2011 ND 186, 803 N.W.2d 578, 2011 N.D. LEXIS 185 (N.D. 2011).

Defendant’s conviction for aggravated assault with a dangerous weapon, in violation of N.D.C.C. § 12.1-17-02(1), was proper because the jury could have reasonably found that defendant used a vehicle as a dangerous weapon; defendant intentionally drove a vehicle forward while the victim backpedaled. Defendant continued forward after the victim fell and both the front and rear tire of defendant’s vehicle went over the victim. State v. Vetter, 2013 ND 4, 826 N.W.2d 334, 2013 N.D. LEXIS 2 (N.D. 2013).

Evidence was sufficient to support convictions for leading a criminal association to commit felonious acts and conspiracy to commit aggravated assault where there was testimony during the trial of defendant supplying drugs to individuals for sale and offering a reward for kicking a victim's teeth in. State v. Owens, 2015 ND 68, 860 N.W.2d 817, 2015 N.D. LEXIS 66 (N.D. 2015).

Rational fact finder and a reasonable mind could have concluded the female victim suffered a permanent impairment of a bodily function. Sufficient evidence supported defendant's aggravated assault conviction, and the district court did not err in denying defendant's motion for a judgment of acquittal. State v. Putney, 2016 ND 59, 877 N.W.2d 28, 2016 N.D. LEXIS 61 (N.D. 2016).

Evidence, viewed in a light most favorable to the verdict, permitted a reasonable inference that defendant was guilty of aggravated assault because the victim testified at defendant's preliminary hearing that he grabbed her, threw her against the house, and kicked her five or six different times and an orthopedic surgeon testified the victim suffered from a fractured dislocation of her hip and observed bruising on the victim's arm that was not consistent with her story of a fall but, rather, from being roughly treated. State v. Azure, 2017 ND 195, 899 N.W.2d 294, 2017 N.D. LEXIS 194 (N.D. 2017).

Defendant’s motion for a judgment of acquittal was properly denied because the evidence was sufficient to sustain defendant’s conviction for aggravated assault as he willfully caused serious bodily injury to the victim because the victim testified that defendant strangled her; her testimony alone was sufficient to sustain defendant’s conviction; and the State introduced pictures of the victim showing bruising around her neck, and the emergency room doctor testified the bruising could have been caused by strangulation. State v. Polk, 2020 ND 248, 950 N.W.2d 764, 2020 N.D. LEXIS 252 (N.D. 2020).

Evidence was sufficient to convict defendant of aggravated assault because, although he asserted that there was no attempt, intent, or readiness to inflict serious bodily injury, the jury was permitted to draw its own inferences regarding defendant’s intent in using the beer bottle as a weapon and whether striking the other individual’s face with it causing a serious cut was reasonable self-defense based on defendant’s injuries sustained in the fight. State v. Hirschkorn, 2020 ND 268, 952 N.W.2d 225, 2020 N.D. LEXIS 268 (N.D. 2020).

Defendant was properly found guilty of aggravated assault with a dangerous weapon because a rational fact finder could conclude beyond a reasonable doubt the flashlight used by defendant constituted a dangerous weapon as the victim testified that defendant struck him with a long cylinder black object that was very similar to a Maglite, that he saw defendant swing a cylinder object, and that defendant used a powerful overhand blow to strike the victim in the head. State v. McCreary, 2021 ND 212, 967 N.W.2d 447, 2021 N.D. LEXIS 214 (N.D. 2021).

DECISIONS UNDER PRIOR LAW

“Deadly Weapon.”

A “deadly weapon” included a dangerous weapon. State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Trial court improperly instructed jury that unloaded pistol, which defendant neither attempted to fire nor to use as bludgeon, was “dangerous weapon” under this section; since that was factual question for jury to decide. United States v. Davis, 429 F.2d 552, 1970 U.S. App. LEXIS 7861 (8th Cir. N.D. 1970).

In prosecution for assault with a dangerous weapon, trial court did not err by refusing to instruct jury on simple assault where, despite fact that defendant had been drinking heavily the night of the occurrence, record supported court’s conclusion that defendant was coherent at time of act, that he had no difficulty understanding or being understood, and that he had no trouble walking. United States v. Thompson, 490 F.2d 1218, 1974 U.S. App. LEXIS 10415 (8th Cir. N.D. 1974).

In prosecution for assault with a dangerous weapon, trial court did not err by refusing to instruct the jury on simple assault where evidence was clear and undisputed that the weapon used in the assault was a loaded rifle and where defendant had fired a shot at his wife which caused an injury to the back of her head; since defendant’s action constituted use of dangerous weapon the evidence did not justify instruction on simple assault. United States v. Thompson, 490 F.2d 1218, 1974 U.S. App. LEXIS 10415 (8th Cir. N.D. 1974).

Although the common use of the term “assault and battery” enjoyed general acceptance, it was technically incorrect, and an unlawful offer or attempt to do violence to another constituted an assault without a battery. State v. Swanson, 225 N.W.2d 283, 1974 N.D. LEXIS 145 (N.D. 1974).

Disjunctive Indictment.

Where an indictment charged an assault or assault and battery with intent to kill, defendant could be convicted either of the crime charged, or assault, or assault and battery with intent to do bodily harm, or assault and battery, or simple assault. People v. Odell, 46 N.W. 601, 1 Dakota 197, 1875 Dakota LEXIS 11 (Dakota 1876); Territory v. Conrad, 46 N.W. 605, 1 Dakota 363, 1877 Dakota LEXIS 12 (N.D. 1877).

To constitute the felony of shooting or attempting to shoot another with intent to injure that person, there must have been shown an attempt to carry out such intent. State v. Gunderson, 42 N.D. 498, 173 N.W. 791, 1919 N.D. LEXIS 172 (N.D. 1919).

Jurisdiction.

A county court had no jurisdiction to hear and determine charge of aggravated assault and battery as defined by former section. State ex rel. Stricker v. Andrews, 62 N.D. 215, 242 N.W. 912 (1932).

Lesser Included Offenses.

Defendant, being tried for the crime of assault and battery committed with a deadly weapon, could be convicted of an assault and battery armed with a dangerous weapon, with intent to do bodily harm. State v. Johnson, 3 N.D. 150, 54 N.W. 547 (1893), explained, State v. Cruikshank, 13 N.D. 337, 100 N.W. 697 (1904) and State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Under a charge of assault and battery with intent to kill, while armed with a deadly weapon, it was competent for the jury to return a verdict of guilty of an aggravated assault. State v. Maloney, 7 N.D. 119, 72 N.W. 927, 1897 N.D. LEXIS 44 (N.D. 1897).

On an indictment or information for assault and battery with a dangerous weapon, without justifiable or excusable cause, and with intent to do bodily harm, accused could be lawfully convicted of simple assault and battery. State v. Climie, 12 N.D. 33, 94 N.W. 574, 1903 N.D. LEXIS 3 (N.D. 1903).

An assault or assault and battery with any sharp or dangerous weapon did not include an assault or assault and battery with firearms for the purpose of shooting. State v. Cruikshank, 13 N.D. 337, 100 N.W. 697, 1904 N.D. LEXIS 36 (N.D. 1904).

Maiming by destroying someone’s leg was not an included offense in shooting with intent to kill. State v. Mattison, 13 N.D. 391, 100 N.W. 1091, 1904 N.D. LEXIS 56 (N.D. 1904).

Where an information charged the commission of assault by shooting with intent to kill, verdict finding defendant guilty of an assault without intent to kill was not erroneous, since the latter was necessarily included in the former. State v. Grassy, 50 N.D. 715, 197 N.W. 881, 1924 N.D. LEXIS 25 (N.D. 1924); State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Assault and battery with a dangerous weapon with intent to do bodily harm, and without justifiable or excusable cause, was not a lesser and included offense in the crime of shooting at another with a firearm with intent to kill. State v. Muzzy, 66 N.D. 41, 262 N.W. 335, 1935 N.D. LEXIS 169 (N.D. 1935).

Rape Indictment.

An indictment for an assault with intent to commit rape was not required to set out the intended means to effect the crime. Territory v. Keyes, 38 N.W. 440, 5 Dakota 244, 1888 Dakota LEXIS 23 (Dakota 1888).

An indictment for assault with intent to rape was properly drawn under former section defining assault with intent to commit felony without deadly weapon. Territory v. Godfrey, 50 N.W. 481, 6 Dakota 46, 1888 Dakota LEXIS 59 (Dakota 1888).

A conviction for attempt to commit rape was not vulnerable to attack because the information also charged assault with an intent to commit a felony. State v. Murbach, 55 N.D. 846, 215 N.W. 552, 1927 N.D. LEXIS 177 (N.D. 1927).

Under an information charging the defendant with the crime of rape in the first degree by force and violence, a verdict of guilty of assault with intent to commit rape could be returned. State v. Becker, 74 N.D. 293, 21 N.W.2d 532, 1946 N.D. LEXIS 64 (N.D. 1946).

Sentence.

Imposition of sentence to imprisonment in the penitentiary from one to three years was not warranted by a verdict finding the defendants guilty of an assault with a dangerous weapon with intent to do bodily harm, without justifiable or excusable cause, where defendants were charged with shooting or attempting to shoot with intent to kill, or of shooting or attempting to shoot with intent to do bodily harm. State v. Mattison, 13 N.D. 391, 100 N.W. 1091, 1904 N.D. LEXIS 56 (N.D. 1904).

One convicted of shooting at another with a firearm with intent to do bodily harm could not be sentenced to imprisonment in the county jail and fined. State v. Hunskor, 16 N.D. 420, 114 N.W. 996, 1908 N.D. LEXIS 122 (N.D. 1908).

“Unlawful” Assault.

Mere anger on the part of a deputy sheriff when he struck plaintiff, who was intoxicated, while making an interrupted arrest, did not make such an assault unlawful. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

The circumstances of the assault rather than the result had to control. Schell v. Collis, 83 N.W.2d 422, 1957 N.D. LEXIS 126 (N.D. 1957).

Verdict.

The strict standards of logical consistency need not be applied to jury verdicts in criminal cases, and where jury had been instructed concerning the elements of assault and battery, and also instructed on the lesser included offense of assault, they could properly acquit defendant on charges of assault and battery, and convict him of assault. State v. Swanson, 225 N.W.2d 283, 1974 N.D. LEXIS 145 (N.D. 1974).

Weapon Essential.

A weapon was an essential feature of the crime of shooting at another with any kind of firearm or of assault and battery by means of a deadly weapon. State v. Johnson, 3 N.D. 150, 54 N.W. 547 (1893), explained, State v. Cruikshank, 13 N.D. 337, 100 N.W. 697 (1904) and State v. Hoerner, 55 N.D. 761, 215 N.W. 277, 1927 N.D. LEXIS 160 (N.D. 1927).

Collateral References.

Homicide: acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.

Deadly or dangerous weapon, intent to do physical harm as essential element of crime of assault with, 92 A.L.R.2d 635.

Sexual nature of physical contact as aggravating offense, 63 A.L.R.3d 225.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 A.L.R.3d 287.

Dog as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault and robbery, 7 A.L.R.4th 607.

Walking cane as deadly or dangerous weapon for purpose of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 1268.

Injury or death caused by assault as within coverage of no-fault motor vehicle insurance, 44 A.L.R.4th 1010.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Criminal assault or battery statutes making attack on elderly person a special or aggravated offense, 73 A.L.R.4th 1123.

Franchisor’s tort liability for injuries allegedly caused by assault or other criminal activity on or near franchise premises, 2 A.L.R.5th 369.

Kicking as aggravated assault, or assault with dangerous or deadly weapon, 19 A.L.R.5th 823.

Validity, construction, and effect of assault and battery exclusion in liability insurance policy at issue, 44 A.L.R.5th 91.

Sufficiency of allegations or evidence of victim’s mental injury or emotional distress to support charge of aggravated degree of rape, sodomy, or other sexual offense, 44 A.L.R.5th 651.

Attempt to commit assault as criminal offense, 93 A.L.R.5th 683.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 124 A.L.R. 5th 657.

Parts of Human Body, other than Feet, as Deadly or Dangerous Weapons or Instrumentalities for Purposes of Statutes Aggravating Offenses such as Assault and Robbery. 67 A.L.R.6th 103.

The 2015 amendment of this section by section 1 of chapter 104, S.L. 2015 became effective August 1, 2015.

12.1-17-03. Reckless endangerment.

A person is guilty of an offense if he creates a substantial risk of serious bodily injury or death to another. The offense is a class C felony if the circumstances manifest his extreme indifference to the value of human life. Otherwise it is a class A misdemeanor. There is risk within the meaning of this section if the potential for harm exists, whether or not a particular person’s safety is actually jeopardized.

Source: S.L. 1973, ch. 116, § 17.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Constitutionality.

This section does not operate as a denial of due process or equal protection of the laws nor is it unconstitutionally vague. State v. Hanson, 256 N.W.2d 364, 1977 N.D. LEXIS 152 (N.D. 1977).

Allegation Sufficient.

Information which alleged the essential elements of both this section and the armed offender statute, N.D.C.C. § 12.1-32-02.1, gave defendant sufficient notice to the possible application of N.D.C.C. § 12.1-32-02.1 to his reckless endangerment charge, even though the information did not contain the specific language “threatens or menaces another with imminent bodily injury with a dangerous weapon” used in N.D.C.C. § 12.1-32-02.1. State v. Meier, 447 N.W.2d 506, 1989 N.D. LEXIS 196 (N.D. 1989).

Criminal Complaint Supporting Charge.

In light of the fact that the criminal complaint on its face supported a charge of reckless endangerment, which has been described by the state’s attorney as a class A misdemeanor, and no evidence had been received in the case through affidavits or testimony to disprove the allegations of the complaint, the court clearly erred in dismissing the complaint, where the constitutional question upon which dismissal was based could not be resolved apart from the facts. State v. Swanson, 407 N.W.2d 204, 1987 N.D. LEXIS 325 (N.D. 1987).

Culpability Required.

Recklessly is the culpability required by this section. State v. Hanson, 256 N.W.2d 364, 1977 N.D. LEXIS 152 (N.D. 1977).

Jury verdict convincing defendant of reckless endangerment and negligent homicide but acquitting him of manslaughter was not inconsistent; defendant, who was driving a vehicle in an accident that killed one and injured four, was reckless in his endangerment of his passengers, although the jury declined to convict him of manslaughter, which also requires recklessness, in the later death. State v. Jahner, 2003 ND 36, 657 N.W.2d 266, 2003 N.D. LEXIS 32 (N.D. 2003).

Elements of Offense.

Where risk is caused by firing of a gun, proof of possession of the weapon or of a certain gun is not an essential element of reckless endangerment. State v. Kroeplin, 266 N.W.2d 537, 1978 N.D. LEXIS 250 (N.D. 1978).

A person is guilty of reckless endangerment where his actions indicate that he has disregarded a risk to human life by creating the potential for harm, even if no person was actually placed in danger by the conduct. State v. Meier, 422 N.W.2d 381, 1988 N.D. LEXIS 90 (N.D. 1988).

For purposes of reckless endangerment, the criminal code does not specifically define the term “create” used in N.D.C.C. § 12.1-17-03 and it is not ambiguous; therefore, it should be given its plain, ordinary, and commonly understood meaning. The plain meaning of “create” includes to produce or bring about by a course of action or behavior. State v. O'Toole, 2009 ND 174, 773 N.W.2d 201, 2009 N.D. LEXIS 184 (N.D. 2009).

Evidence Sufficient.

Evidence held sufficient to prove that juvenile defendant committed offenses of reckless endangerment and conspiracy to commit reckless endangerment. Rainesalo v. P.A. (In the Interest of P.A.), 1997 ND 146, 566 N.W.2d 422, 1997 N.D. LEXIS 147 (N.D. 1997).

There was sufficient evidence presented to uphold a conviction for reckless endangerment where defendant’s brother testified that defendant shot a rifle in his direction from a car; the jury believed the brother’s testimony over the conflicting evidence offered by defendant. State v. Zahn, 2007 ND 2, 725 N.W.2d 894, 2007 N.D. LEXIS 6 (N.D. 2007).

During a traffic stop, a police officer made a passenger stand outside after midnight in freezing cold weather and refused to allow him to sit in the officer’s car; the passenger was later treated for frostbite. The evidence was sufficient to support the police officer’s conviction for reckless endangerment in violation of N.D.C.C. § 12.1-17-03; by refusing to allow the passenger to sit in his squad car, the officer created a substantial risk of bodily injury. State v. O'Toole, 2009 ND 174, 773 N.W.2d 201, 2009 N.D. LEXIS 184 (N.D. 2009).

Felony.

Intentionally pointing a loaded weapon at a person with the intent to shoot around the person to scare him manifests such an extreme indifference to the value of human life as to make the conduct a felony. United States v. Wallette, 580 F.2d 335, 1978 U.S. App. LEXIS 9953 (8th Cir. N.D. 1978).

Intent.

Only a general intent is required for the offense of reckless endangerment. State v. Kroeplin, 266 N.W.2d 537, 1978 N.D. LEXIS 250 (N.D. 1978).

Jury Instruction Adequate.

State, to convict a person of reckless endangerment, has to prove that at least one person was endangered or jeopardized by defendant’s conduct, but the State need not identify the person or persons endangered or jeopardized; although the omission of the word “particular,” which prefaces “person’s safety” in N.D.C.C. § 12.1-17-03, from the pattern jury instruction’s definition of reckless endangerment rendered that part of the instruction erroneous, the instruction adequately and correctly informed the jury of the applicable law where the remainder of the instruction stating the elements of the offense made reference to “a particular person.” State v. Jaster, 2004 ND 223, 690 N.W.2d 213, 2004 N.D. LEXIS 368 (N.D. 2004).

Trial court’s reckless endangerment jury instruction was not obvious error because even though the instruction did not include the word “particular,” the instruction, read as a whole, was not misleading or confusing and fairly advised the jury of the law on the essential issues of the case, which involved a shooting at a movie theater parking lot. State v. Estrada, 2013 ND 79, 830 N.W.2d 617, 2013 N.D. LEXIS 80 (N.D. 2013).

Lesser Included Offense.

Where defendant was charged with attempted murder for his involvement in a police shoot-out, the trial court properly denied his requested instruction on reckless endangerment as an included offense. A person can be convicted of attempted murder for having taken a substantial step toward commission of the crime of murder even if there never was, in fact, a substantial risk of serious bodily injury or death to another as required for reckless endangerment; in this case, defendant was properly convicted of both offenses for firing shots at police officers. State v. Keller, 2005 ND 86, 695 N.W.2d 703, 2005 N.D. LEXIS 94 (N.D. 2005).

Pointing An Unloaded Gun.

Pointing a gun, later determined to be unloaded, constitutes reckless endangerment. State v. Meier, 422 N.W.2d 381, 1988 N.D. LEXIS 90 (N.D. 1988).

Prosecutorial Misconduct.

In defendant’s trial for reckless endangerment and aggravated assault, a prosecutor’s comments about not believing defendant’s version of events was not obvious error, and any prejudice was cured by the trial court’s instructions. Also, the prosecutor’s comment during the closing, that defendant had no excuse, was not an attempt to shift the burden; the burden of proof was sufficiently explained in the trial court’s jury instructions on reasonable doubt and the defense of excuse. State v. Clark, 2004 ND 85, 678 N.W.2d 765, 2004 N.D. LEXIS 183 (N.D. 2004).

Sentencing.

Defendant who was convicted of reckless endangerment as a result of pointing a rifle, later determined to have been unloaded, at two police officers, was properly sentenced under section 12.1-32-02.1. State v. Meier, 447 N.W.2d 506, 1989 N.D. LEXIS 196 (N.D. 1989).

12.1-17-04. Terrorizing.

A person is guilty of a class C felony if, with intent to place another human being in fear for that human being’s or another’s safety or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious disruption or public inconvenience, or in reckless disregard of the risk of causing such terror, disruption, or inconvenience, the person:

  1. Threatens to commit any crime of violence or act dangerous to human life; or
  2. Falsely informs another that a situation dangerous to human life or commission of a crime of violence is imminent knowing that the information is false.

Source: S.L. 1973, ch. 116, § 17; 1983, ch. 166, § 1.

Cross-References.

Causing catastrophe a felony, see N.D.C.C. § 12.1-21-04.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Construction.

Defendant provided no authority for the proposition that threats against law enforcement officers were an exception from the statute; the plain language of the statute did not provide any “law enforcement exception” for conduct that violated the statute. State v. Johnson, 2021 ND 161, 964 N.W.2d 500, 2021 N.D. LEXIS 160 (N.D. 2021).

Culpability Required.

Evidence.

—Admissible.

—Held Sufficient.

—Prior Assaults.

Included Offenses.

Instructions.

Intent.

Prosecutor’s Statements to the Jury.

Questions of Fact.

Self-Defense.

Culpability Required.

The degree of culpability required is that the act be done “willfully” as defined in N.D.C.C. § 12.1-02-02. State v. Hass, 268 N.W.2d 456, 1978 N.D. LEXIS 253 (N.D. 1978).

Evidence.

In a terrorizing prosecution, the First Amendment did not protect defendant's statements because the statements' recipients thought the statements were a serious threat. State v. Brossart, 2015 ND 1, 858 N.W.2d 275, 2015 N.D. LEXIS 1 (N.D. 2015).

—Admissible.

The court could rely upon the testimony of victim that she got a restraining order against the defendant, as proof of the element of intent to place another in fear, though the state had failed to fulfill a procedural requirement for the charge of stalking which was also filed against the defendant but dismissed due to the state’s failure to introduce a certified copy of the restraining order. State v. Touche, 549 N.W.2d 193, 1996 N.D. LEXIS 152 (N.D. 1996).

—Held Sufficient.

Testimony that the defendant met with the victim, picked her up and drove her out to a remote gravel road, where he held a knife to her throat and made verbal threats to her, and that only by verbally patronizing the defendant was the victim able to talk defendant out of harming her, supported a conviction of terrorizing. State v. Kaiser, 417 N.W.2d 376, 1987 N.D. LEXIS 459 (N.D. 1987).

Record contained competent evidence to permit the jury to find defendant guilty of terrorizing. State v. Hondl, 506 N.W.2d 404, 1993 N.D. LEXIS 181 (N.D. 1993).

Where the defendant entered a friend’s unlocked home at 2 a.m. while intoxicated, brandished an open pocket knife and told the friend he was going to kill him, and made threatening gestures toward the friend’s daughter, the evidence was sufficient to sustain the defendant’s conviction for terrorizing. State v. Delaney, 1999 ND 189, 601 N.W.2d 573, 1999 N.D. LEXIS 219 (N.D. 1999).

Threat did not have to be made verbally to be a terroristic threat under N.D.C.C. § 12.1-17-04. Although defendant’s wife was only outside in the freezing weather for a couple of minutes, for that time, she did not know if she was locked out of their home or not; thus, defendant’s action of throwing her outside did constitute a threat to commit an act dangerous to human life and the evidence supported his conviction. State v. Laib, 2005 ND 191, 705 N.W.2d 815, 2005 N.D. LEXIS 233 (N.D. 2005).

Denial of defendant’s motion for judgment of acquittal on his terrorizing conviction was affirmed because the trial court properly exercised its discretion in allowing the jury to deliberate and clarify its verdict without first polling the jury individually when it was clear there was not unanimity on the verdict as read, and there was sufficient evidence to sustain the terrorizing conviction where defendant’s girlfriend testified that defendant picked her up, verbally abused her and threw her against the kitchen wall, which caused her to lose consciousness. State v. Kautzman, 2007 ND 133, 738 N.W.2d 1, 2007 N.D. LEXIS 133 (N.D. 2007).

It was reasonable for the jury to find defendant guilty of terrorizing because his statement asserting that he would break his wife’s neck and kill her was a threat of violence dangerous to human life; the statement, taken in conjunction with the attack on the wife, allowed the jury to infer defendant made the statement either intentionally or with reckless disregard of the risk of causing his wife fear. State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

There was sufficient evidence to convict defendant of terrorizing, including defendant’s multiple threats to kill or harm law enforcement and their families, including the officers who appeared at the trial court and the prosecuting attorneys, which could reasonable be construed as threats of a crime of violence or acts dangerous to human life. State v. Norton, 2019 ND 191, 930 N.W.2d 635, 2019 N.D. LEXIS 198 (N.D. 2019).

Evidence was sufficient to convict defendant of terrorizing because defendant fired a rifle into the victim’s house, forced entry into the house, and pointed the rifle at the victim; and the victim testified he was scared for his and his family’s lives. State v. Yoney, 2020 ND 118, 943 N.W.2d 791, 2020 N.D. LEXIS 126 (N.D. 2020).

Substantial evidence was presented to the jury to warrant a conviction for terrorizing because a sheriff testified that he was afraid for his safety and his family members; the State presented evidence that other people were also concerned for the sheriff’s safety based on defendant threats, that the FBI National Threat Organization had received a call from someone concerned about the sheriff’s safety, and that defendant had engaged in his conduct intentionally and recklessly. State v. Johnson, 2021 ND 161, 2021 N.D. LEXIS 160 (N.D. 2021).

—Prior Assaults.

In a prosecution for terrorizing, the State was properly allowed to introduce evidence of prior assaults by the defendant on the victim where the trial court limited the evidence to one incident, and did not allow the State to delve into graphic details of the assault, and where the trial court only allowed the evidence to be used as a brief background of the relationship between the assailant and the victim. State v. Gefroh, 495 N.W.2d 651, 1993 N.D. LEXIS 3 (N.D. 1993).

Included Offenses.

Court did not err in refusing to instruct jury that disorderly conduct was a lesser included offense of terrorizing, where, if jury had believed defendant’s assertion he lacked the requisite intent for his statements to constitute terrorizing, the jury could also not convict him on the charge of disorderly conduct. State v. Carlson, 1997 ND 7, 559 N.W.2d 802, 1997 N.D. LEXIS 6 (N.D. 1997).

Instructions.

Trial court did not err in denying defendant’s proposed instruction on “transitory anger” which misstated that aspect of the law that threats may constitute terrorizing regardless of whether the defendant intends to carry them out or inflict actual injury. State v. Carlson, 1997 ND 7, 559 N.W.2d 802, 1997 N.D. LEXIS 6 (N.D. 1997).

In a terrorizing prosecution, the jury was not properly instructed because (1) “threat” was not defined, and (2) the jury was not told to consider facts from the perspective of a reasonable person in the recipient's position. State v. Brossart, 2015 ND 1, 858 N.W.2d 275, 2015 N.D. LEXIS 1 (N.D. 2015).

Intent.

There was sufficient evidence to establish the element of intent where defendant’s threat was made to a person other than the victim, who then communicated the threat to the victim. State v. Olson, 552 N.W.2d 362, 1996 N.D. LEXIS 190 (N.D. 1996).

Prosecutor’s Statements to the Jury.

In a criminal trial for terrorizing, the prosecutor’s statements to the jury that the victim had placed her trust in them, and that they were the conscience of the community, and references to bringing a body into court, although arguably improper, did not affect the verdict prejudicially or deprive the defendant of a fair trial. State v. Kaiser, 417 N.W.2d 376, 1987 N.D. LEXIS 459 (N.D. 1987).

Questions of Fact.

The determination whether particular words constitute a threat is a question of fact. State v. Zeno, 490 N.W.2d 707, 1992 N.D. LEXIS 198 (N.D. 1992).

Self-Defense.

Where defendant claimed self-defense to a charge under this section, court was required to give instruction based on justification section, 12.1-05-01. State v. Hass, 268 N.W.2d 456, 1978 N.D. LEXIS 253 (N.D. 1978).

Collateral References.

Validity and construction of terroristic threat statutes, 45 A.L.R.4th 949.

12.1-17-05. Menacing.

A person is guilty of a class A misdemeanor if he knowingly places or attempts to place another human being in fear by menacing him with imminent serious bodily injury.

Source: S.L. 1973, ch. 116, § 17.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Imminent.

Defendant’s words, “when you are up here alone, we will get you”, spoke to the future and did not denote sufficient immediacy. And, taken in context, no aspect of immediacy could be inferred: defendant made the statement as he was leaving the scene, and in addition, defendant, unlike one of his antagonists, was unarmed. State v. Kurle, 390 N.W.2d 48, 1986 N.D. LEXIS 366 (N.D. 1986).

Defendant’s conviction for menacing was supported by the evidence because the record revealed that during an encounter with police officers, defendant threatened to “kick their ass” and “put them in the hospital,” and he took at least one step toward the officers before one officer subdued him; defendant’s statements to the officers denoted sufficient imminency. State v. Bruce, 2012 ND 140, 818 N.W.2d 747, 2012 N.D. LEXIS 134 (N.D. 2012).

12.1-17-06. Criminal coercion.

  1. A person is guilty of a class A misdemeanor if, with intent to compel another to engage in or refrain from conduct, he threatens to:
    1. Commit any crime;
    2. Accuse anyone of a crime;
    3. Expose a secret or publicize an asserted fact, whether true or false, tending to subject any person, living or deceased, to hatred, contempt, or ridicule, or to impair another’s credit or business repute; or
    4. Take or withhold official action as a public servant or cause a public servant to take or withhold official action.
  2. It is an affirmative defense to a prosecution under this section that the actor believed, whether or not mistakenly:
    1. That the primary purpose of the threat was to cause the other to conduct himself in his own best interest; or
    2. That a purpose of the threat was to cause the other to desist from misbehavior, engage in behavior from which he could not lawfully abstain, make good a wrong done by him, or refrain from taking any action or responsibility for which he was disqualified.

Source: S.L. 1973, ch. 116, § 17.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Collateral References.

Criminal liability of corporation for extortion, false pretenses or similar offenses, 49 A.L.R.3d 820.

Truth as defense to state charge of criminal intimidation, extortion, blackmail, threats, and the like, based upon threats to disclose information about victim, 39 A.L.R.4th 1011.

12.1-17-07. Harassment.

  1. A person is guilty of an offense if, with intent to frighten or harass another, the person:
    1. Communicates in writing or by electronic communication a threat to inflict injury on any person, to any person’s reputation, or to any property;
    2. Makes a telephone call anonymously or in offensively coarse language;
    3. Makes repeated telephone calls or other electronic communication, whether or not a conversation ensues, with no purpose of legitimate communication; or
    4. Communicates a falsehood in writing or by electronic communication and causes mental anguish.
  2. The offense is a class A misdemeanor if it is under subdivision a of subsection 1 or subsection 4. Otherwise it is a class B misdemeanor.
  3. Any offense defined herein and committed by use of electronic communication may be deemed to have been committed at either the place at which the electronic communication was made or at the place where the electronic communication was received.
  4. A person is guilty of an offense if the person initiates communication with a 911 emergency line, public safety answering point, or an emergency responder communication system with the intent to annoy or harass another person or a public safety agency or who makes a false report to a public safety agency.
    1. Intent to annoy or harass is established by proof of one or more calls with no legitimate emergency purpose.
    2. Upon conviction of a violation of this subsection, a person is also liable for all costs incurred by any unnecessary emergency response.
  5. Any offense defined herein is deemed communicated in writing if it is transmitted electronically, by electronic mail, facsimile, or other similar means. Electronic communication means transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic, or photo-optical system.

Source: S.L. 1973, ch. 116, § 17; 1975, ch. 116, § 16; 1995, ch. 125, § 1; 1999, ch. 124, § 1; 2013, ch. 103, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Sufficient Evidence.

Evidence was sufficient to sustain defendant’s conviction for harassment when defendant sent two communications to an attorney, and the attorney testified that she was threatened by the communications. State v. Curtis, 2008 ND 93, 748 N.W.2d 709, 2008 N.D. LEXIS 87 (N.D. 2008).

State produced sufficient evidence to raise a reasonable inference that defendant had communicated threats by telephone to inflict injury on the victim’s property and his son; the evidence presented created reasonable inferences that defendant acted with the intent to frighten or harass another. State v. Dahl, 2009 ND 204, 776 N.W.2d 37, 2009 N.D. LEXIS 211 (N.D. 2009).

DECISIONS UNDER PRIOR LAW

Apprehension.

Under repealed N.D.C.C. § 8-10-07.1, relating to telephone calls with intent to annoy, issue was whether circumstances justified apprehension by ordinary hearer, not whether threat actually caused recipient to become apprehensive. State v. Weippert, 237 N.W.2d 1, 1975 N.D. LEXIS 146 (N.D. 1975).

Collateral References.

Misuse of telephone as minor criminal offense, 97 A.L.R.2d 503.

Forum state’s jurisdiction over nonresident defendant in action based on obscene or threatening telephone call from out of state, 37 A.L.R.4th 852.

Telephone calls as nuisance, 53 A.L.R.4th 1153.

Law Reviews.

Protecting Victims by Working Around the System and Within the System: Statutory Protection for Emotional Abuse in the Domestic Violence Context, 81 N.D. L. Rev. 837 (2005).

12.1-17-07.1. Stalking.

  1. As used in this section:
    1. “Course of conduct” means a pattern of conduct consisting of two or more acts evidencing a continuity of purpose. The term does not include constitutionally protected activity.
    2. “Immediate family” means a spouse, parent, child, or sibling. The term also includes any other individual who regularly resides in the household or who within the prior six months regularly resided in the household.
    3. “Stalk” means:
      1. To engage in an intentional course of conduct directed at a specific person which frightens, intimidates, or harasses that person and which serves no legitimate purpose. The course of conduct may be directed toward that person or a member of that person’s immediate family and must cause a reasonable person to experience fear, intimidation, or harassment; or
      2. The unauthorized tracking of the person’s movements or location through the use of a global positioning system or other electronic means that would cause a reasonable person to be frightened, intimidated, or harassed and which serves no legitimate purpose.
  2. A person may not intentionally stalk another person.
  3. In any prosecution under this section, it is not a defense that the actor was not given actual notice that the person did not want the actor to contact or follow the person; nor is it a defense that the actor did not intend to frighten, intimidate, or harass the person. An attempt to contact or follow a person after being given actual notice that the person does not want to be contacted or followed is prima facie evidence that the actor intends to stalk that person.
  4. In any prosecution under this section, it is a defense that a private investigator licensed under chapter 43-30 or a peace officer licensed under chapter 12-63 was acting within the scope of employment.
  5. If a person claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.
    1. A person who violates this section is guilty of a class C felony if:
      1. The person previously has been convicted of violating section 12.1-17-01, 12.1-17-01.1, 12.1-17-01.2, 12.1-17-02, 12.1-17-04, 12.1-17-05, or 12.1-17-07, or a similar offense from another court in North Dakota, a court of record in the United States, or a tribal court, involving the victim of the stalking;
      2. The stalking violates a court order issued under chapter 14-07.1 protecting the victim of the stalking, if the person had notice of the court order; or
      3. The person previously has been convicted of violating this section.
    2. If subdivision a does not apply, a person who violates this section is guilty of a class A misdemeanor.

Source: S.L. 1993, ch. 120, § 1; 1995, ch. 126, § 1; 2011, ch. 96, § 1; 2015, ch. 105, § 1, effective August 1, 2015; 2019, ch. 107, § 4, effective August 1, 2019.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notification of stalking law when domestic violence protective order issued, see N.D.C.C. § 14-07.1-03.1.

Notes to Decisions

Constitutionally Protected Activity.

Trial court did not err in not excluding evidence of defendant’s conduct during a trial for stalking because defendant was not engaged in constitutionally protected activities under N.D.C.C. § 12.1-17-07.1(5); the activities defendant engaged in were not constitutionally protected because defendant’s right to travel had been restricted by a judicial order. State v. Holbach, 2009 ND 37, 763 N.W.2d 761, 2009 N.D. LEXIS 59 (N.D.), cert. denied, 558 U.S. 893, 130 S. Ct. 232, 175 L. Ed. 2d 160, 2009 U.S. LEXIS 6123 (U.S. 2009).

Domestic Violence Protective Order.

State’s failure to comply with N.D.C.C. § 14-07.1-03.1, by failing to include a copy of this section with an order issued under sections 14-07.1-02 or 14-07.1-03, does not deprive the trial court of jurisdiction to hear the charge against one accused of violating a domestic violence protection order; however dismissal might be appropriate if actual prejudice is shown. State v. Sundquist, 542 N.W.2d 90, 1996 N.D. LEXIS 11 (N.D. 1996).

Evidence Sufficient.

Evidence was sufficient to convict defendant under this section, where his wife, who had obtained protective order, testified defendant called her about twenty times and made personal contact on three separate occasions when he was not accompanied by a peace officer. State v. Keller, 550 N.W.2d 411, 1996 N.D. LEXIS 168 (N.D. 1996).

Defendant did not have standing to claim that the statute was unconstitutionally vague because a reasonable person would have known that defendant’s conduct was prohibited by statute. Defendant had notice that the victim did not want to have contact with defendant and, as a result of defendant’s conduct, the victim experienced fear, intimidation, or harassment; however, defendant continued the conduct. State v. Holbach, 2009 ND 37, 763 N.W.2d 761, 2009 N.D. LEXIS 59 (N.D.), cert. denied, 558 U.S. 893, 130 S. Ct. 232, 175 L. Ed. 2d 160, 2009 U.S. LEXIS 6123 (U.S. 2009).

Collateral References.

Validity, construction, and application of stalking statutes, 29 A.L.R.5th 487.

Law Reviews.

North Dakota’s Stalking Law: Criminalizing the Crime Before the Crime, 70 N.D. L. Rev. 159 (1994).

Protecting Victims by Working Around the System and Within the System: Statutory Protection for Emotional Abuse in the Domestic Violence Context, 81 N.D. L. Rev. 837 (2005).

12.1-17-07.2. Distribution of intimate images without or against consent — Penalty.

  1. As used in this section:
    1. “Distribute” means selling, exhibiting, displaying, wholesaling, retailing, providing, giving, granting admission to, providing access to, or otherwise transferring or presenting an image to another individual, with or without consideration.
    2. “Hosting company” means a person that provides services or facilities for storing or distributing content over the internet without editorial or creative alteration of the content.
    3. “Intimate image” means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that depicts:
      1. Exposed human male or female genitals or pubic area, with less than an opaque covering;
      2. A female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or
      3. The individual engaged in any sexually explicit conduct.
    4. “Service provider” means an internet service provider, including a person who leases or rents a wire or cable for the transmission of data.
    5. “Sexually explicit conduct” means actual or simulated:
      1. Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
      2. Masturbation;
      3. Bestiality;
      4. Sadistic or masochistic activities;
      5. Exhibition of the genitals, pubic region, buttocks, or female breast of any individual;
      6. Visual depiction of nudity or partial nudity;
      7. Fondling or touching of the genitals, pubic region, buttocks, or female breast; or
      8. Explicit representation of the defecation or urination functions.
    6. “Simulated sexually explicit conduct” means a feigned or pretended act of sexually explicit conduct that duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.
  2. A person commits the offense of distribution of intimate images if the person knowingly or intentionally distributes to any third party any intimate image of an individual eighteen years of age or older, if:
    1. The person knows that the depicted individual has not given consent to the person to distribute the intimate image;
    2. The intimate image was created by or provided to the person under circumstances in which the individual has a reasonable expectation of privacy; and
    3. Actual emotional distress or harm is caused to the individual as a result of the distribution under this section.
  3. This section does not apply to:
    1. Lawful practices of law enforcement agencies;
    2. Prosecutorial agency functions;
    3. The reporting of a criminal offense;
    4. Court proceedings or any other judicial proceeding;
    5. Lawful and generally accepted medical practices and procedures;
    6. An intimate image if the individual portrayed in the image voluntarily allows public exposure of the image; or
    7. An intimate image that is portrayed in a lawful commercial setting.
  4. This section also does not apply to:
    1. An internet service provider or interactive computer service, as defined in 47 U.S.C. 230(f)(2);
    2. A provider of an electronic communications service, as defined in 18 U.S.C. 2510;
    3. A telecommunications service, information service, or mobile service, as defined in 47 U.S.C. 153, including a commercial mobile service, as defined in 47 U.S.C. 332(d);
    4. A cable operator, as defined in 47 U.S.C. 552, if:
      1. The distribution of an intimate image by the cable operator occurs only incidentally through the operator’s function of:
        1. Transmitting or routing data from one person to another person; or
        2. Providing a connection between one person and another person;
      2. The operator does not intentionally aid or abet in the distribution of the intimate image; and
      3. The operator does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the operator, as a specific condition for permitting the person to distribute the intimate image; or
    5. A hosting company, if:
      1. The distribution of an intimate image by the hosting company occurs only incidentally through the hosting company’s function of providing data storage space or data caching to a person;
      2. The hosting company does not intentionally engage, aid, or abet in the distribution of the intimate image; and
      3. The hosting company does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute, store, or cache the intimate image.
  5. Distribution of an intimate image is a class A misdemeanor.

History. S.L. 2015, ch. 106, § 1, effective August 1, 2015.

12.1-17-08. Consent as a defense.

  1. When conduct is an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury by all persons injured or threatened by the conduct is a defense if:
    1. Neither the injury inflicted nor the injury threatened is such as to jeopardize life or seriously impair health;
    2. The conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport; or
    3. The conduct and the injury are reasonably foreseeable hazards of an occupation or profession or of medical or scientific experimentation conducted by recognized methods, and the persons subjected to such conduct or injury, having been made aware of the risks involved, consent to the performance of the conduct or the infliction of the injury.
  2. Assent does not constitute consent, within the meaning of this section, if:
    1. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense and such incompetence is manifest or known to the actor;
    2. It is given by a person who by reason of youth, mental disease or defect, or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
    3. It is induced by force, duress, or deception.

Source: S.L. 1973, ch. 116, § 17.

Collateral References.

Assault with intent to commit unnatural sex act upon minor as affected by latter’s consent, 65 A.L.R.2d 748.

Consent as a defense in prosecution for sodomy, 58 A.L.R.3d 636.

Consent as defense to charge of criminal assault and battery, 58 A.L.R.3d 662.

Notes to Decisions

Question for Jury.

District court erred in failing to provide defendant’s requested jury instructions on consent and self-defense because whether the victim consented to the fight and whether the injury inflicted by defendant was such as to jeopardize life or seriously impair health were questions for the jury, and the district court impermissibly evaluated video evidence of the incident when it stated the video spoke for itself and defendant could have just walked away. City of Jamestown v. Kastet, 2022 ND 40, 970 N.W.2d 187, 2022 N.D. LEXIS 41 (N.D. 2022).

12.1-17-09. Killing or injury of law enforcement support animal — Definition — Penalty.

  1. A person is guilty of a class C felony and is subject to a civil penalty of up to ten thousand dollars if that person willfully and unjustifiably kills, shoots, tortures, torments, beats, kicks, strikes, mutilates, disables, or otherwise injures a law enforcement support animal.
  2. A person is guilty of a class A misdemeanor and is subject to a civil penalty of up to five thousand dollars if that person willfully:
    1. Harasses, taunts, or provokes a law enforcement support animal;
    2. Interferes with a law enforcement support animal while the animal is working; or
    3. Interferes with the individual handling the animal.
  3. For purposes of this section, “law enforcement support animal” means any animal used by or on behalf of a law enforcement officer in the performance of the officer’s functions and duties, including crowd control, corrections, arson investigation, or search and rescue, regardless of whether the animal is on or off duty.
  4. This section does not apply to a law enforcement officer or a veterinarian who terminates the life of a law enforcement support animal to relieve the animal of undue suffering and pain.

Source: S.L. 1995, ch. 127, § 1; 2009, ch. 130, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-17-10. Hazing — Penalty.

A person is guilty of an offense when, in the course of another person’s initiation into or affiliation with any organization, the person willfully engages in conduct that creates a substantial risk of physical injury to that other person or a third person. As used in this section, “conduct” means any treatment or forced physical activity that is likely to adversely affect the physical health or safety of that other person or a third person, or which subjects that other person or third person to extreme mental stress, and may include extended deprivation of sleep or rest or extended isolation, whipping, beating, branding, forced calisthenics, overexposure to the weather, and forced consumption of any food, liquor, beverage, drug, or other substance. The offense is a class A misdemeanor if the actor’s conduct causes physical injury, otherwise the offense is a class B misdemeanor.

Source: S.L. 1995, ch. 128, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual act or conduct as part of hazing to become member of gang, see N.D.C.C. § 12.1-20-04.

12.1-17-11. Contact by bodily fluids or excrement.

  1. An individual is guilty of an offense if the individual causes blood, emesis, excrement, mucus, saliva, semen, vaginal fluid, or urine to come in contact with:
    1. A law enforcement officer acting in the scope of employment;
    2. An employee of a correctional facility or the department of corrections and rehabilitation acting in the scope of employment unless the employee does an act within the scope of employment which requires or causes the contact;
    3. An individual lawfully present in a correctional facility who is not an inmate;
    4. An individual lawfully present in the penitentiary or an affiliated facility of the penitentiary who is not an inmate;
    5. An individual transporting an individual who is lawfully detained;
    6. A health care facility employee or contractor acting within the scope of employment unless the employee or contractor is performing an act within the scope of employment which requires or causes the contact; or
    7. An emergency responder, including a licensed medical services provider, law enforcement officer, firefighter, volunteer firefighter, officer of a nonprofit volunteer fire department, emergency medical technician, emergency nurse, ambulance operator, or a provider of civil defense services, who while acting in the scope of employment is present at a health care facility.
  2. Subsection 1 does not apply to a mentally ill person as defined in section 25-03.1-02 who has been detained pursuant to chapter 25-03.1.
  3. The offense is a class C felony if the individual knowingly causes the contact and is a class A misdemeanor if the individual recklessly causes the contact.
  4. As used in this section, “health care facility” means an office or institution providing health care services or treatment of diseases, whether physical, mental, or emotional, or other medical, physiological, or psychological conditions, including a hospital; clinic; ambulatory surgery center; outpatient care facility; weight control clinic; nursing home; basic care or assisted living facility; laboratory; or office of any medical professional licensed or registered under title 43 or any individual who is included within a specialty and subspecialty of those fields. The term includes a waiting room, hallway, private room, semiprivate room, ward, and any mobile or temporary facility.

Source: S.L. 1999, ch. 125, § 1; 2017, ch. 99, § 1, 2, effective August 1, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Elements of Offense.

Where court denied defendant’s request for an amendment of the information, but included the appropriate statutory language in its instruction on the essential elements of contact by bodily fluids, any error in the failure to allege in the information language from N.D.C.C. § 12.1-17-11 that “unless the employee does an act within the scope of employment which requires or causes the contact,” was harmless because in opening statements to the jury, defense counsel said that any contact “was at the direct requirement and at the direct request of an employee, and it was the employee’s demands while performing his duties that caused any of this alleged contact.” Based on proper jury instructions that included all of the essential elements of contact by bodily fluids, a unanimous jury found defendant guilty. State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Evidence Sufficient.

Evidence was sufficient to sustain the defendant’s conviction for knowingly causing contact by bodily fluids where he urinated on a deputy’s leg, he was very close to the deputy, and the defendant was laughing. State v. Weaver, 2002 ND 4, 638 N.W.2d 30, 2002 N.D. LEXIS 8 (N.D. 2002).

Law Reviews.

North Dakota Supreme Court Review (State v. Bertram), 82 N.D. L. Rev. 1033 (2006).

12.1-17-12. Assault or homicide while fleeing peace officer.

A person is guilty of a class A felony if that person negligently causes the death of another or a class B felony if that person negligently causes serious bodily injury to another while in violation of section 39-10-71.

Source: S.L. 1999, ch. 126, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-17-13. Mandated treatment of domestic violence offenders.

The sentence for an offense under section 12.1-17-01, 12.1-17-01.1, 12.1-17-01.2, 12.1-17-02, 12.1-17-03, 12.1-17-04, or 12.1-17-05 against an actor’s family or household member, as defined in subsection 4 of section 14-07.1-01, must include an order to complete a domestic violence offender evaluation and treatment program as determined by the court. A court may not order the offender to attend anger management classes or individual counseling unless a domestic violence offender treatment program is not reasonably available to the defendant and the court makes findings for the record explaining why an order to complete a domestic violence offender treatment program would be inappropriate.

Source: S.L. 2003, ch. 105, § 2; 2015, ch. 107, § 1, effective August 1, 2015; 2017, ch. 108, § 4, effective April 21, 2017; 2019, ch. 107, § 5, effective August 1, 2019.

CHAPTER 12.1-17.1 Offenses Against Unborn Children

12.1-17.1-01. Definitions.

As used in this chapter:

  1. “Abortion” means the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead embryo or fetus.
  2. “Person” does not include the pregnant woman.
  3. “Unborn child” means the conceived but not yet born offspring of a human being, which, but for the action of the actor would beyond a reasonable doubt have subsequently been born alive.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Abortion Control Act, see N.D.C.C. § ch. 14-02.1.

12.1-17.1-02. Murder of an unborn child.

  1. A person is guilty of murder of an unborn child, a class AA felony, if the person:
    1. Intentionally or knowingly causes the death of an unborn child;
    2. Causes the death of an unborn child under circumstances manifesting extreme indifference to the value of the life of the unborn child or the pregnant woman; or
    3. Acting either alone or with one or more other persons, commits or attempts to commit treason, robbery, burglary, kidnapping, felonious restraint, arson, gross sexual imposition, or escape and, in the course of and in furtherance of such crime or of immediate flight therefrom, the person, or another participant, if any, causes the death of an unborn child; except that in any prosecution under this subsection in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
      1. Did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid the commission thereof;
      2. Was not armed with a firearm, destructive device, dangerous weapon, or other weapon that under the circumstances indicated a readiness to inflict serious bodily injury;
      3. Reasonably believed that no other participant was armed with such a weapon; and
      4. Reasonably believed that no other participant intended to engage in conduct likely to result in death or serious bodily injury.
  2. A person is guilty of murder of an unborn child, a class A felony, if the person causes the death of an unborn child under circumstances which would be class AA murder, except that the person causes the death of the unborn child under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse must be determined from the viewpoint of a person in the person’s situation under the circumstances as the person believes them to be. An extreme emotional disturbance is excusable, within the meaning of this subsection only, if it is occasioned by substantial provocation or a serious event or situation for which the offender was not culpably responsible.

Subdivisions a and b are inapplicable in the circumstances covered by subsection 2.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Homicide based on killing of unborn child, 64 A.L.R.5th 671.

12.1-17.1-03. Manslaughter of an unborn child.

A person is guilty of manslaughter of an unborn child, a class B felony, if the person recklessly causes the death of an unborn child.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Penalty for class B felony, see N.D.C.C. § 12.1-32-01.

12.1-17.1-04. Negligent homicide of an unborn child.

A person is guilty of negligent homicide of an unborn child, a class C felony, if the person negligently causes the death of an unborn child.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Collateral References.

Homicide based on killing of unborn child, 64 A.L.R.5th 671.

12.1-17.1-05. Aggravated assault of an unborn child.

A person is guilty of assault of an unborn child, a class C felony, if that person willfully assaults a pregnant woman and inflicts serious bodily injury on an unborn child.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

12.1-17.1-06. Assault of an unborn child.

A person is guilty of assault of an unborn child, a class A misdemeanor, if the person willfully assaults a pregnant woman and inflicts bodily injury on an unborn child.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-17.1-07. Exception.

This chapter does not apply to acts or omissions that cause the death or injury of an unborn child if those acts or omissions are committed during an abortion performed by or under the supervision of a licensed physician to which the pregnant woman has consented, nor does it apply to acts or omissions that are committed pursuant to usual and customary standards of medical practice during diagnostic or therapeutic treatment performed by or under the supervision of a licensed physician.

Source: S.L. 1987, ch. 166, § 1.

Cross-References.

Regulation of abortion, see N.D.C.C. chs. 14-02.1, 14-02.3, and 14-02.6.

12.1-17.1-08. Other convictions not prohibited.

A prosecution for or conviction under this chapter is not a bar to conviction of or punishment for any other offense committed by a person as part of the same conduct.

Source: S.L. 1987, ch. 166, § 1.

CHAPTER 12.1-18 Kidnapping

12.1-18-01. Kidnapping.

  1. A person is guilty of kidnapping if he abducts another or, having abducted another, continues to restrain him with intent to do the following:
    1. Hold him for ransom or reward;
    2. Use him as a shield or hostage;
    3. Hold him in a condition of involuntary servitude;
    4. Terrorize him or a third person;
    5. Commit a felony or attempt to commit a felony; or
    6. Interfere with the performance of any governmental or political function.
  2. Kidnapping is a class A felony unless the actor voluntarily releases the victim alive and in a safe place prior to trial, in which case it is a class B felony.

Source: S.L. 1973, ch. 116, § 18.

Cross-References.

Child custody decree, removal of child from state in violation as felony, see N.D.C.C. § 12.1-18-05.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Prosecution for bringing kidnap victim into this state, see N.D.C.C. § 29-03-01.1.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Venue, see N.D.C.C. § 29-03-09.

Notes to Decisions

Constitutionality.

This chapter is not unconstitutionally vague. State v. Motsko, 261 N.W.2d 860, 1977 N.D. LEXIS 181 (N.D. 1977).

Elements.

Comparison of the statutory elements does not support a finding that a child abuse offense is similar to a kidnapping offense since the child abuse statute requires that a defendant inflict harm on the victim and cause some form of injury and also requires that the victim be a child; the kidnapping statute requires none of these elements but requires an abduction and an interference with a governmental or political function, and the child abuse statute requires neither of these. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

Evidence.

Jury was presented sufficient evidence on which it could have found defendant guilty of kidnapping, where testimony revealed defendant restrained the victim with a string from a sweatshirt, placed the victim in a car, tied him into the car, threatened him, negotiated his release, and restrained him while driving him around a city for two hours. State v. Lehman, 2010 ND 134, 785 N.W.2d 204, 2010 N.D. LEXIS 136 (N.D. 2010).

Included Offenses.

Aggravated assault is not an included offense of kidnapping. State v. Motsko, 261 N.W.2d 860, 1977 N.D. LEXIS 181 (N.D. 1977).

Sentence.

Because the dangerous special offender status did not apply to defendant, he was subject only to the maximum penalty for conspiracy to commit kidnapping, a class A felony with a maximum of twenty years’ imprisonment and a $ 20,000 fine. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

District court abused its discretion by misapplying or misinterpreting the law when it sentenced defendant for conspiracy to commit kidnapping as a dangerous special offender because his previous child abuse offense was not a similar offense in terms of its elements or its underlying conduct; in the child abuse offense, defendant injured his infant son, but his conduct in the conspiracy to commit kidnapping offense did not cause physical injury to the victim’s baby. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

DECISIONS UNDER PRIOR LAW

Essential Elements.

Essential elements of kidnapping were that a person willfully kidnapped another, with intent to cause him unlawfully to be detained against his will. State v. Taylor, 70 N.D. 201, 293 N.W. 219, 1940 N.D. LEXIS 161 (N.D. 1940).

Collateral References.

Validity and construction of Federal Bank Robbery Act, 59 A.L.R.2d 946.

Fraud or false pretenses, kidnapping by, 95 A.L.R.2d 450.

What is “harm” within provisions of statutes increasing penalty for kidnapping where victim suffers harm, 11 A.L.R.3d 1053.

Prison official, seizure by inmates as kidnapping, 59 A.L.R.3d 1306.

False imprisonment as included offense with charge of kidnapping, 68 A.L.R.3d 828.

Validity, construction, and application of Uniform Child Custody Jurisdiction Act, 20 A.L.R.5th 700; 21 A.L.R.5th 396, 40 A.L.R.5th 227.

Necessity and sufficiency of showing, in kidnapping prosecution, that detention was with intent to “secretly” confine victim, 98 A.L.R.3d 733.

Kidnapping or related offense by taking or removing of child by or under authority of parent or one in loco parentis, 20 A.L.R.4th 823.

Liability of legal or natural parent, or one who aids and abets, for damages resulting from abduction of own child, 49 A.L.R.4th 7.

Coercion, compulsion, or duress as defense to charge of kidnapping, 69 A.L.R.4th 1005.

What types of proceedings or determinations are governed by the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA),Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 78 A.L.R.4th 1028.

Significant connection jurisdiction of court under § 3(a)(2) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 5 A.L.R.5th 550.

Abandonment and emergency jurisdiction of court under § 3(a)(3) of the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA), 5 A.L.R.5th 788.

Home state jurisdiction of court under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 6 A.L.R.5th 1.

Default jurisdiction of court under § 3(a)(4) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 6 A.L.R.5th 69.

Parties’ misconduct as ground for declining jurisdiction under sec. 8 of the Uniform Child Custody Jurisdiction Act (UCCJA), 16 A.L.R.5th 650.

Pending proceeding in another state as ground for declining jurisdiction under § 6(a) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 20 A.L.R.5th 700.

Inconvenience of forum as ground for declining jurisdiction under § 7 of the Uniform Child Custody Jurisdiction Act (UCCJA), 21 A.L.R.5th 396, 40 A.L.R.5th 227.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.

Recognition and enforcement of out-of-state custody decree under § 13 of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 USCS § 1738A(A), 40 A.L.R.5th 227.

Home state jurisdiction of court to modify foreign child custody decree under §§ 3(a)(1) and 14(a)(2) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. §§ 1738A(c)(2)(A) and 1738A(f)(1), 72 A.L.R.5th 249.

Declining jurisdiction to modify prior child custody decree under § 14(a)(1) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(f)(2), 73 A.L.R.5th 185.

12.1-18-02. Felonious restraint.

A person is guilty of a class C felony, if he:

  1. Knowingly abducts another;
  2. Knowingly restrains another under terrorizing circumstances or under circumstances exposing him to risk of serious bodily injury; or
  3. Restrains another with intent to hold him in a condition of involuntary servitude.

Source: S.L. 1973, ch. 116, § 18.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Prosecution when victim brought into this state, see N.D.C.C. § 29-03-01.1.

Notes to Decisions

Evidence Insufficient.

Evidence showing defendant approached four-year-old in bus depot restroom, asked where her mommy was, grabbed her by the hand and said “Well, I’m your mommy now” and “Come on, let’s go” reveals no competent evidence of words or acts from which the jury could reasonably infer that defendant was guilty of threats of violence or acts dangerous to human life intended to induce fear. Thus, conviction for attempted felonious restraint under terrorizing circumstances could not stand. State v. Plentychief, 464 N.W.2d 373, 1990 N.D. LEXIS 252 (N.D. 1990).

Evidence Sufficient.

Defendant’s conviction of felonious restraint for knowingly restraining another under terrorizing circumstances under N.D.C.C. § 12.1-18-02(2) was supported by sufficient evidence where defendant grabbed his wife against her will, threw her over his shoulder, and returned to their home while she shouted to neighbors to call the police and defendant threatened that she would be sorry if the police appeared. While defendant contended that his statement was too ambiguous to constitute a threat, the court held that a threat did not have to be precise. State v. Alvarado, 2008 ND 203, 757 N.W.2d 570, 2008 N.D. LEXIS 225 (N.D. 2008).

Jury Instructions.

Instruction by the trial court was misleading, as it departed from the statutory definition and clouded the essential elements of threats of violence or dangerous acts made with an intent to induce fear. State v. Plentychief, 464 N.W.2d 373, 1990 N.D. LEXIS 252 (N.D. 1990).

12.1-18-03. Unlawful imprisonment.

  1. A person is guilty of a class A misdemeanor if he knowingly subjects another to unlawful restraint.
  2. It is a defense to a prosecution under this section that the actor is a parent or person in equivalent relation to the person restrained and that the person restrained is a minor.

Source: S.L. 1973, ch. 116, § 18.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Parental Equivalent.

A person in equivalent relation may be a foster parent or a relative who is acting in loco parentis to the minor. State v. Schlotman, 1998 ND 39, 575 N.W.2d 208, 1998 N.D. LEXIS 29 (N.D. 1998).

Grandparents who were not acting as substitute parents for the children and who had no other legal or factual basis for claiming the right to custody of the children were not entitled to the defense from prosecution as parental equivalents under subsection (2). State v. Schlotman, 1998 ND 39, 575 N.W.2d 208, 1998 N.D. LEXIS 29 (N.D. 1998).

12.1-18-04. Definitions.

In this chapter:

  1. “Abduct” means to restrain a person with intent to prevent his liberation by:
    1. Secreting or holding him in a place where he is not likely to be found; or
    2. Endangering or threatening to endanger the safety of any human being.
  2. “Restrain” means to restrict the movement of a person unlawfully and without consent so as to interfere substantially with his liberty by removing him from his place of residence or business, by moving him a substantial distance from one place to another, or by confining him for a substantial period. Restraint is “without consent” if it is accomplished by: a. force, intimidation, or deception; or b. any means, including acquiescence of the victim, if he is a child less than fourteen years old or an incompetent person, and if the parent, guardian, or person or institution responsible for the general supervision of his welfare has not acquiesced in the movement or confinement.

Source: S.L. 1973, ch. 116, § 18.

Notes to Decisions

“Substantial”.

The terms “substantial” and “substantially” are not unconstitutionally vague as they mean “significant”, “important”, or “real”, as distinguished, from “insignificant”, “trivial”, “nominal”, or “imaginary”. State v. Motsko, 261 N.W.2d 860, 1977 N.D. LEXIS 181 (N.D. 1977).

12.1-18-05. Removal of child from state in violation of custody decree — Penalty.

Any person who intentionally removes, causes the removal of, or detains the person’s own child under the age of eighteen years outside this state with the intent to deny another person’s rights in violation of an existing custody decree is guilty of a class C felony. Detaining the child outside this state in violation of the custody decree for more than seventy-two hours is prima facie evidence that the person charged intended to violate the custody decree at the time of removal.

Source: S.L. 2001, ch. 149, § 1.

Cross-References.

Custody decrees, award of primary residential responsibility, see N.D.C.C. § 14-05-22.

Uniform Child Custody Jurisdiction & Enforcement Act, see N.D.C.C. ch. 14-14.1.

CHAPTER 12.1-19 Abortion [Repealed]

[Repealed by S.L. 1975, ch. 124, § 2]

Note.

For present provisions, see N.D.C.C. ch. 14-02.1.

CHAPTER 12.1-20 Sex Offenses

12.1-20-01. General provisions.

In sections 12.1-20-03 through 12.1-20-08:

  1. When the criminality of conduct depends on a child’s being below the age of fifteen, it is no defense that the actor did not know the child’s age, or reasonably believed the child to be older than fourteen.
  2. When criminality depends on the victim being a minor, it is an affirmative defense that the actor reasonably believed the victim to be an adult.
  3. When criminality depends on the victim being a minor fifteen years of age or older, the actor is guilty of an offense only if the actor is at least three years older than the minor.

Source: S.L. 1973, ch. 117, § 1; 1983, ch. 172, § 6; 1985, ch. 536, § 1; 1987, ch. 167, § 1; 2005, ch. 115, § 1; 2007, ch. 123, § 1.

Notes to Decisions

Affirmative Defense.

The legislature did not explicitly designate the three-year age difference requirement under N.D.C.C. § 12.1-20-01(3) as an affirmative defense. State v. Boespflug, 2011 ND 30, 793 N.W.2d 774, 2011 N.D. LEXIS 25 (N.D. 2011).

In a statutory rape prosecution, the culpability requirement of “willfully” did not apply to the element of the victim's age, under N.D.C.C. § 12.1-02-02(3)(a), because the crime was a strict liability crime, since lack of knowledge or mistake as to the victim's age was not a defense, under N.D.C.C. § 12.1-20-01(1). State v. Vandermeer, 2014 ND 46, 843 N.W.2d 686, 2014 N.D. LEXIS 43 (N.D. 2014).

Denying defendant a mistake of age defense to statutory rape did not violate due process because sexual intercourse involved conscious activity giving rise to circumstances placing a reasonable person on notice of potential illegality. State v. Vandermeer, 2014 ND 46, 843 N.W.2d 686, 2014 N.D. LEXIS 43 (N.D. 2014).

Reasonable Belief.

In a case in which a jury found defendant guilty of corruption or solicitation of a minor, defendant did not dispute the actual three-year age difference between him and the minor. Therefore, the reasonableness of defendant’s belief that there was less than a three-year age difference between him and the minor was not a defense. State v. Boespflug, 2011 ND 30, 793 N.W.2d 774, 2011 N.D. LEXIS 25 (N.D. 2011).

DECISIONS UNDER PRIOR LAW

Burden of Proof.

Former subsection 3 of this section was a statute of limitations, and the state had to prove compliance with the statute by a preponderance of the evidence. State v. Ford, 377 N.W.2d 125, 1985 N.D. LEXIS 431 (N.D. 1985).

By its plain language, former subsection 3 was a statute of limitation. The state therefore had the burden to affirmatively prove that the charge was brought within the limitation period, or that the limitation period did not apply. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985).

Effective Assistance of Counsel.

While former subsection 3 placed a three month limitation for the initiation of the criminal prosecution of a singular incident, it did not apply where the prosecution alleged that sexual abuse occurred only weeks before the police investigation and the defendant’s subsequent arrest; therefore, failure of the trial attorney to move for dismissal of the criminal proceedings pursuant to former subsection 3 did not deprive the defendant of effective assistance of counsel. State v. Gutsche, 405 N.W.2d 295, 1987 N.D. LEXIS 308 (N.D. 1987).

Specifically Interested in Victim.

The phrase “persons specifically interested in the victim”, as used in former subsection 4 prior to the 1985 amendment of this section, means a person interested in the child’s welfare who, by virtue of his or her relationship with the child and the confidence thereby enjoyed, is more likely than others to learn of the alleged crime. Proof of such an amorphous standard depends necessarily on the facts and circumstances of each particular case. The nature of the relationship, the manner of learning of the offense, and the reasons for reporting it or not, are some of the facts to be established. A relative may qualify as may others. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985).

By its exclusive reliance on the insufficient legal argument that the sister of the accused, who reported the offense, could not be specifically interested in the alleged victim, the state failed to meet its burden of proving either compliance with the three-month reporting requirement or an exception to it. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985) (decided prior to the 1985 amendment to this section).

Submission to Jury.

Where there was conflicting evidence as to when twelve-year old victim’s mother learned of the incident in which defendant father engaged in a sexual act with victim, the court’s submission of that issue to the jury was proper. State v. Ford, 377 N.W.2d 125, 1985 N.D. LEXIS 431 (N.D. 1985) (decided under this section as it read prior to the 1985 amendment).

Collateral References.

Liability of parent or person in loco parentis for rape of minor child, 19 A.L.R.2d 423.

Age: applicability of rape statute covering children of a specified age, with respect to a child who has passed the anniversary date of such age, 73 A.L.R.2d 874.

Marriage: statutory rape of female who is or has been married, 32 A.L.R.3d 1030.

Burden of proof of defendant’s age, in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526.

Liability of parent for injury in unemancipated child caused by parent’s negligence — modern cases, 6 A.L.R.4th 1066.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 A.L.R.4th 105.

Prosecution of female as principal for rape, 67 A.L.R.4th 1127.

Mistake or lack of information as to victim’s age as defense to statutory rape, 46 A.L.R.5th 499.

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to rape, 66 N.D. L. Rev. 753 (1990).

12.1-20-02. Definitions.

In sections 12.1-20-03 through 12.1-20-12:

  1. “Coercion” means to exploit fear or anxiety through intimidation, compulsion, domination, or control with the intent to compel conduct or compliance.
  2. “Deviate sexual act” means any form of sexual contact with an animal, bird, or dead person.
  3. “Object” means anything used in commission of a sexual act other than the person of the actor.
  4. “Sexual act” means sexual contact between human beings consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any other portion of the human body and the penis, anus, or vulva; or the use of an object which comes in contact with the victim’s anus, vulva, or penis. For the purposes of this subsection, sexual contact between the penis and the vulva, the penis and the anus, any other portion of the human body and the anus or vulva, or an object and the anus, vulva, or penis of the victim, occurs upon penetration, however slight. Emission is not required.
  5. “Sexual contact” means any touching, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission of urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires.

Source: S.L. 1973, ch. 117, § 1; 1977, ch. 122, § 1; 1983, ch. 172, § 7; 1985, ch. 176, § 1; 1997, ch. 122, § 1; 2001, ch. 134, § 1; 2009, ch. 131, § 1.

Notes to Decisions

Evidence of Penetration.

Evidence was sufficient to establish that defendant’s penis had penetrated victim’s anus where victim testified that defendant had penetrated his rectum and a doctor, although unable to speak unequivocably as to penetration, testified that victim’s condition was consistent with that type of trauma. State v. Sadler, 305 N.W.2d 913, 1981 N.D. LEXIS 319 (N.D. 1981).

Lesser Included Offenses.

Section 12.1-20-03(2)(a) which prohibits “sexual contact” is a lesser included offense of N.D.C.C. § 12.1-20-03(1)(d) which prohibits a “sexual act”. State v. Vance, 537 N.W.2d 545, 1995 N.D. LEXIS 171 (N.D. 1995).

Sexual Act.
—Double Jeopardy.

Where defendant was convicted of two counts of gross sexual imposition, because each conviction arose from evidence of a different sexual act, i.e., oral and vaginal sex, his convictions rested on two separate sexual acts and his double jeopardy argument was meritless. State v. Sievers, 543 N.W.2d 491, 1996 N.D. LEXIS 46 (N.D. 1996).

Sexual Contact.

It may be inferred from details of incident that touching was done for purpose of arousing or gratifying sexual desire. State v. Jenkins, 326 N.W.2d 67, 1982 N.D. LEXIS 331 (N.D. 1982).

The statute does not require an erection; it only requires sexual contact between the penis and the vulva by penetration, however slight. State v. Drader, 374 N.W.2d 601, 1985 N.D. LEXIS 405 (N.D. 1985).

The tongue is part of the mouth for purposes of subsection (3) (now (4)) of this section. State v. Johnson, 379 N.W.2d 291, 1986 N.D. LEXIS 241 (N.D.), cert. denied, 475 U.S. 1141, 106 S. Ct. 1792, 90 L. Ed. 2d 337, 1986 U.S. LEXIS 2064 (U.S. 1986).

Sexual contact occurs even though clothing is interposed between the sexual or other intimate part and the offender. State v. Brown, 420 N.W.2d 5, 1988 N.D. LEXIS 70 (N.D. 1988).

A crime may be committed by “any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires.” Penetration is not a required element of a sexual offense as made clear in subsection (4). State v. Skaro, 474 N.W.2d 711, 1991 N.D. LEXIS 157 (N.D. 1991).

Evidence was sufficient to support defendant’s convictions of gross sexual imposition and abuse or neglect of a child because the son testified that he and defendant had sex after defendant got out of the shower, the daughter testified that defendant was present when her father had sex with her, and a third child testified that defendant had sex with the son. The jury also heard testimony from a detective, a physician who examined the daughter, and an employee of county social services. State v. Muhle, 2007 ND 131, 737 N.W.2d 636, 2007 N.D. LEXIS 135 (N.D. 2007).

Defendant’s conviction for gross sexual imposition was appropriate pursuant to N.D.C.C. §§ 12.1-20.03 and 12.1-20-02(4) because there was sufficient evidence to support defendant’s conviction where the victim’s mother testified that she observed defendant rubbing the child and the child also testified that defendant touched her sexually. State v. Wegley, 2008 ND 4, 744 N.W.2d 284, 2008 N.D. LEXIS 7 (N.D. 2008).

Evidence was sufficient to support defendant’s conviction of class AA felony gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(d), (3)(a), given that the victim testified that defendant made her “go like this” to his genitals, which testimony was sufficient to establish sexual contact, for purposes of N.D.C.C. § 12.1-20-02(3) (now (4)); furthermore, although defendant argued that the evidence was insufficient because it rested on the victim’s testimony, the uncorroborated testimony of a child was sufficient to sustain a conviction of a sexual offense. State v. Paul, 2009 ND 120, 769 N.W.2d 416, 2009 N.D. LEXIS 135 (N.D. 2009).

Evidence was sufficient to convict defendant of gross sexual imposition with a child less than six years of age under N.D.C.C. § 12.1-20-03(1)(d) because the child testified that defendant put his hands and his sexual organ in the child’s privates, he made her lick his sexual organ, and the uncorroborated testimony of the child was sufficient to sustain a conviction for gross sexual imposition; the jury saw a videotaped interview of the child by a forensic interviewer in which the child detailed several acts of sexual contact by defendant; and the jury heard a recording of the incriminating statements made by defendant at his house in which he admitted that he had engaged in oral sex with the child. State v. Huether, 2010 ND 233, 790 N.W.2d 901, 2010 N.D. LEXIS 236 (N.D. 2010).

Evidence was sufficient to support defendant’s conviction of continuous sexual abuse of a child in violation of N.D.C.C. § 12.1-20-03.1 because: (1) the child victim testified that defendant forced her to place her hands on his penis over his clothing and forced her to move her hand over his penis; (2) defendant was in a relationship with the victim’s mother and periodically lived with them between May 2008 and January 2009; and (3) the victim testified the sexual contacts occurred almost daily when defendant lived with them, including the day he was arrested for the offense. State v. Gomez, 2011 ND 29, 793 N.W.2d 451, 2011 N.D. LEXIS 35 (N.D. 2011).

Plain language of N.D.C.C. § 12.1-20-02(5) states sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires; the word “person” is not specifically defined in the statute; therefore, the plain, ordinary, and commonly understood meaning applies. The statute does not limit the definition of sexual contact to the touching of the child’s sexual or other intimate parts; rather, the plain language of the statute includes any touching of the sexual or intimate parts of the person by the child. State v. Gomez, 2011 ND 29, 793 N.W.2d 451, 2011 N.D. LEXIS 35 (N.D. 2011).

Touch.

The words in our statutes are to be understood in their ordinary sense. The word “touch” is defined to mean “perceive by the sense of feeling.” State v. Brown, 420 N.W.2d 5, 1988 N.D. LEXIS 70 (N.D. 1988).

DECISIONS UNDER PRIOR LAW

Accomplice.

Question whether in a sodomy offense with two or more participants, one of them was an accomplice, was a question of fact to be determined by the jury. State v. Powell, 73 N.W.2d 777, 1955 N.D. LEXIS 157 (N.D. 1955).

Attempt.

One convicted of attempted sodomy could be sentenced to five years in the penitentiary. King, 9 N.D. 149, 82 N.W. 423, 1900 N.D. LEXIS 207 (N.D. 1900).

Definition.

Crime of sodomy as defined by former section was much broader than the common-law offense and included carnal knowledge by or with the mouth. State v. Nelson, 36 N.D. 564, 163 N.W. 278, 1917 N.D. LEXIS 211 (N.D. 1917).

Collateral References.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation — Post-New York Times cases, 57 A.L.R.4th 404.

Admissibility, in prosecution for sex-related offense, of results of tests on semen or seminal fluids, 75 A.L.R.4th 897.

Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape, 76 A.L.R.4th 1147.

Validity, Construction, and Application of State Statute Including “Sexually Motivated Offenses” Within Definition of Sex Offense for Purposes of Sentencing or Classification of Defendant as Sex Offender, 30 A.L.R.6th 373.

Law Reviews.

North Dakota Supreme Court Review (State v. Paul), see 86 N.D. L. Rev. 437 (2010).

12.1-20-03. Gross sexual imposition — Penalty.

  1. A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if:
    1. That person compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being;
    2. That person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct by administering or employing without the victim’s knowledge intoxicants, a controlled substance as defined in chapter 19-03.1, or other means with intent to prevent resistance;
    3. That person knows or has reasonable cause to believe that the victim is unaware that a sexual act is being committed upon him or her;
    4. The victim is less than fifteen years old; or
    5. That person knows or has reasonable cause to believe that the other person suffers from a mental disease or defect which renders him or her incapable of understanding the nature of his or her conduct.
  2. A person who engages in sexual contact with another, or who causes another to engage in sexual contact, is guilty of an offense if:
    1. The victim is less than fifteen years old;
    2. That person compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being; or
    3. That person knows or has reasonable cause to believe that the victim is unaware that sexual contact is being committed on the victim.
    1. An offense under this section is a class AA felony if in the course of the offense the actor inflicts serious bodily injury upon the victim, if the actor’s conduct violates subdivision a of subsection 1, or if the actor’s conduct violates subdivision d of subsection 1 and the actor was at least twenty-two years of age at the time of the offense. For any conviction of a class AA felony under subdivision a of subsection 1, the court shall impose a minimum sentence of twenty years’ imprisonment, with probation supervision to follow the incarceration. The court may deviate from the mandatory sentence if the court finds that the sentence would impose a manifest injustice and the defendant has accepted responsibility for the crime or cooperated with law enforcement. However, a defendant convicted of a class AA felony under this section may not be sentenced to serve less than five years of incarceration.
    2. Otherwise the offense is a class A felony.
  3. If, as a result of injuries sustained during the course of an offense under this section, the victim dies, the offense is a class AA felony, for which the maximum penalty of life imprisonment without parole must be imposed unless the defendant was a juvenile at the time of the offense.

Source: S.L. 1973, ch. 117, § 1; 1977, ch. 122, § 2; 1987, ch. 168, § 1; 1997, ch. 123, § 1; 2005, ch. 115, § 2; 2007, ch. 123, § 2; 2009, ch. 131, § 2; 2015, ch. 116, § 2, effective August 1, 2015; 2017, ch. 109, § 1, effective August 1, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Prohibition against deferred imposition of sentence for certain offenders, exception, see N.D.C.C. § 12.1-32-04.1.

Removal of offender from child’s residence as condition for child’s release from shelter care, see N.D.C.C. § 27-20-17.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Constitutionality.

Defendant charged with gross sexual imposition had no standing to challenge the section as being unconstitutionally vague and overbroad, where he did not show that the statute was impermissibly vague or overbroad as applied to him. State v. Tibor, 373 N.W.2d 877, 1985 N.D. LEXIS 390 (N.D. 1985).

Age of Victim.

Subdivision (2)(a) of this section makes it a crime to have sexual contact with a person who is under 15 years old. State v. Thill, 473 N.W.2d 451, 1991 N.D. LEXIS 137 (N.D. 1991).

The trial court did not abuse its discretion by not considering the victim’s age when sentencing defendant on the theory that the seriousness of gross sexual imposition diminishes as the victim’s age approaches 15; this section makes no distinction in punishment when the victim is less than 15 years old. State v. Halton, 535 N.W.2d 734, 1995 N.D. LEXIS 134 (N.D. 1995).

Cross-Examination of Victim.

Trial court’s refusal to allow any inquiry on cross-examination of victim of gross sexual imposition as to the victim’s history of treatment for a mental condition did not constitute an abuse of discretion and did not deny defendant his constitutional right to confrontation where the record did not establish the relevancy of such inquiry; psychiatric treatment of the victim two years before the incident, without more, did not establish a sufficient basis to make questions concerning that treatment relevant. State v. Buckley, 325 N.W.2d 169, 1982 N.D. LEXIS 336 (N.D. 1982).

Defendant, on trial for gross sexual imposition, was prohibited by N.D.R.Ev. 510 from cross-examining the complainant on her refusal to release her counseling records. State v. Lange, 497 N.W.2d 83, 1993 N.D. LEXIS 24 (N.D. 1993).

Ordinarily, in a trial for gross sexual imposition when a prosecutor has introduced medical evidence of a youthful complainant’s physical condition, the defendant should be allowed to cross-examine the complainant about her prior sexual activity in order to show that another person might have been responsible for her condition. State v. Osier, 1999 ND 28, 590 N.W.2d 205, 1999 N.D. LEXIS 30 (N.D. 1999).

Where defendant charged with gross sexual imposition was permitted to introduce evidence about the thirteen year old complainant’s sexual activity with her boyfriend through her boyfriend’s testimony, the trial court did not abuse its discretion in excluding additional cumulative evidence concerning her sexual activity through cross-examination of the complainant herself. State v. Osier, 1999 ND 28, 590 N.W.2d 205, 1999 N.D. LEXIS 30 (N.D. 1999).

Culpability.

In a statutory rape prosecution, the culpability requirement of “willfully” did not apply to the element of the victim's age, under N.D.C.C. § 12.1-02-02(3)(a), because the crime was a strict liability crime, since lack of knowledge or mistake as to the victim's age was not a defense, under N.D.C.C. § 12.1-20-01(1). State v. Vandermeer, 2014 ND 46, 843 N.W.2d 686, 2014 N.D. LEXIS 43 (N.D. 2014).

Crime of gross sexual imposition as defined in this section does not require any specific culpability; therefore, culpability required is “willfully”. State v. Cummins, 347 N.W.2d 571, 1984 N.D. LEXIS 293 (N.D. 1984).

Elements.

To justify a conviction of gross sexual imposition, the state must establish beyond a reasonable doubt the defendant’s sexual contact with a child less than fifteen years old. State v. Schill, 406 N.W.2d 660, 1987 N.D. LEXIS 335 (N.D. 1987).

In a prosecution for gross sexual imposition, defendant’s knowledge of the victim’s unawareness was an essential element of the offense charged and could not be inferred; because it was missing from the information, the criminal information was defective and the charge was properly dismissed. State v. Frankfurth, 2005 ND 167, 704 N.W.2d 564, 2005 N.D. LEXIS 200 (N.D. 2005), limited, State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Age-in-relation-to-the-victim provision in N.D.C.C. § 12.1-20-03 is an essential element added by the legislature in 2005, but it was not an element in December 2004 when defendant committed the offense of gross sexual imposition and, thus, defendant was properly charged with gross sexual imposition based on the law in effect when the crime occurred where he engaged in a sexual act with a woman who was under 15 years old. State v. Flatt, 2007 ND 98, 733 N.W.2d 608, 2007 N.D. LEXIS 97 (N.D. 2007).

North Dakota adopts the intermediate construction of the phrase “incapable of understanding the nature of his or her conduct,” the construction adopted by the majority of jurisdictions. Under that construction, mental incapacity that renders one incapable of understanding the nature of his or her conduct means that the person does not know either the physiological aspects of sex or the possible consequences of sexual activity, such as pregnancy and the contraction of sexually transmitted diseases. State v. Mosbrucker, 2008 ND 219, 758 N.W.2d 663, 2008 N.D. LEXIS 210 (N.D. 2008).

Defendant’s guilty plea to gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(c) was supported by a sufficient factual basis where the victim went to a bar where she had too much to drink and passed out in her car and where defendant came upon the victim in her car, entered the car, and forced the victim to have oral sex with him. State v. Blurton, 2009 ND 144, 770 N.W.2d 231, 2009 N.D. LEXIS 146 (N.D.), cert. denied, 558 U.S. 1036, 130 S. Ct. 656, 175 L. Ed. 2d 500, 2009 U.S. LEXIS 8143 (U.S. 2009).

Evidence.
—Admissibility.

Information as to where the alleged assault occurred, description of the assailant, nature of the assault, victim’s behavior after the assault, the assailant’s behavior after the assault, and to whom and when the assault was reported are reasonably pertinent to diagnosis and treatment and admissible under N.D.R.Ev. 803(4). State v. Janda, 397 N.W.2d 59, 1986 N.D. LEXIS 459 (N.D. 1986).

The intensity of psychological trauma suffered by the victim of a sexual assault may vary, depending upon such things as the location of the attack, the kind and degree of restraint of movement or force used, or the imposition of fear through an assailant’s admonition to the victim not to tell anyone. Thus, such matters are “reasonably pertinent to diagnosis and treatment” and statements about them are admissible under N.D.R.Ev. 803(4). State v. Janda, 397 N.W.2d 59, 1986 N.D. LEXIS 459 (N.D. 1986).

Evidence introduced to show preparation defendant undertook before he engaged in gross sexual imposition of minor, for which he was convicted, to gain trust of minor and her parents, were actions in preparation of his criminal activity not prohibited by N.D.R.Ev. 404(b). State v. Christensen, 1997 ND 57, 561 N.W.2d 631, 1997 N.D. LEXIS 53 (N.D. 1997).

The trial court’s admission of evidence that defendant had sexually assaulted a niece eight years prior to alleged acts of intercourse with his daughter constituted reversible error. State v. Osier, 1997 ND 170, 569 N.W.2d 441, 1997 N.D. LEXIS 189 (N.D. 1997).

In gross sexual imposition prosecution the trial court did not abuse its discretion by allowing the introduction of a photograph of the victim at the age of six; the photograph was relevant to show the victim’s age and size as compared to the defendant’s age and size, whether the victim would take seriously a threat of physical harm if he reported the abuse, and to explain why the victim waited two years to report the abuse. State v. Klein, 1999 ND 76, 593 N.W.2d 325, 1999 N.D. LEXIS 81 (N.D. 1999).

A letter and postcard written by the defendant and describing prior and planned sexual assaults against his daughter, to whom they were addressed, had probative value, were not unduly prejudicial and were therefore admissible. State v. Anderson, 2003 ND 30, 657 N.W.2d 245, 2003 N.D. LEXIS 37 (N.D. 2003).

District court had not erroneously denied defendant’s motion to suppress incriminating statements about the sexual abuse of his young niece and nephew because, inter alia, he was informed of his Miranda rights both verbally and in writing prior to the start of the interview, he signed a waiver of rights form at that time and, even if he was in custody during the interview, the police officers complied with the requirements of the Fifth Amendment. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

It was no error to bar defendant’s prior sexual contact with a victim because (1) consent was irrelevant to gross sexual imposition of which a victim was unaware, (2) the N.D. R. Evid. 412(b)(1)(B) exception only applied when consent was relevant, and the exceptions in N.D. R. Evid. 412(b)(1)(A) and (C) did not apply. State v. Muhammad, 2019 ND 159, 931 N.W.2d 181, 2019 N.D. LEXIS 166 (N.D. 2019).

—Insufficient.

There was insufficient evidence presented to support a finding that a juvenile committed gross sexual imposition in violation of N.D.C.C. § 12.1-20-03, by having engaged in a “sexual act” with a victim less than 15 years old. The only testimony offered was that of a detective, who testified that the victim had admitted to social services that she had a “sexual relationship” with the juvenile. Russell v. L.B.B. (Interest of L.B.B.), 2005 ND 220, 707 N.W.2d 469, 2005 N.D. LEXIS 264 (N.D. 2005).

—Sufficient.

Testimony of victim and other witnesses was sufficient to support jury’s verdict of guilty for crime of gross sexual imposition; uncorroborated testimony of a rape victim is sufficient to establish all elements of crime. State v. Kringstad, 353 N.W.2d 302, 1984 N.D. LEXIS 344 (N.D. 1984).

Circumstantial evidence was sufficient to support convictions for murder, gross sexual imposition, and burglary where the victim was sexually assaulted and murdered in her home, items of the victim’s property were found in defendant’s possession, DNA evidence and fingerprints implicated defendant, items belonging to defendant were found in the victim’s home, and defendant had injuries that were consistent with the victim’s attempt to defend herself. State v. Charette, 2004 ND 187, 687 N.W.2d 484, 2004 N.D. LEXIS 316 (N.D. 2004).

Evidence was sufficient to convict defendant of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(d) by having sexual intercourse with a 14-year-old victim; both the victim and the victim’s friend testified that defendant sexually assaulted the victim and the friend informed her boyfriend’s mother that the victim had been assaulted. State v. Igou, 2005 ND 16, 691 N.W.2d 213, 2005 N.D. LEXIS 19 (N.D. 2005).

Evidence was sufficient to support defendant’s conviction of class AA felony gross sexual imposition because there was evidence in the record supporting the conclusion that the abuse occurred in August 2005, after N.D.C.C. § 12.1-20-03 was amended effective August 1, 2005 to increase the penalty. The child victim’s physician testified that the injuries could have occurred sometime in August 2005 and that the injuries were most likely recent in the last couple of weeks prior to her examination of the victim on September 1, 2005; the victim’s statements to the physician indicated that she had been recently abused. State v. Muhle, 2007 ND 132, 737 N.W.2d 647, 2007 N.D. LEXIS 136 (N.D. 2007).

Evidence was sufficient to support defendant’s guilty verdicts on both counts of gross sexual imposition because both victims testified at trial and implicated defendant in detail and the State presented evidence regarding the law enforcement interview in which defendant admitted he had sexual contact with the victims when they were children. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

When comparing the factual basis for defendant’s guilty plea with the elements of gross sexual imposition, N.D.C.C. § 12.1-20-03, the factual basis addressed each essential element of the crime, including (1) the fact that defendant lived with the victim, the victim’s mother, and other children; (2) where the offenses occurred; (3) the fact that defendant had touched her on her privates, on her buttocks, and had put his sexual organ in her mouth; and (4) the fact that the victim was between four and five years old when the sexual contact occurred. Thus, the trial court did not err when it determined the factual basis was sufficient to support the guilty plea; accordingly, the trial court did not err in denying defendant’s motion to withdraw his guilty plea. State v. Bates, 2007 ND 15, 726 N.W.2d 595, 2007 N.D. LEXIS 14 (N.D. 2007).

District court did not err in denying defendant’s motion for a judgment of acquittal because, when viewed in a light most favorable to the verdict, the evidence supported the jury’s verdict finding the defendant guilty of gross sexual imposition; the victim testified that defendant touched her vagina and breasts on several occasions and he digitally penetrated her vagina during the last incident, a videotape of the victim’s forensic interview was shown to the jury, and an officer also testified that defendant admitted touching the victim and made other incriminating statements during an interview. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

Evidence was sufficient to sustain a defendant’s conviction for gross sexual imposition where a jury could have reasonably concluded that he had engaged in a sex act with the victim based on the testimony of several witnesses who attended the party, as well as the victim’s testimony and the testimony of the nurse who examined the victim the next morning. State v. Fehl-Haber, 2007 ND 99, 734 N.W.2d 770, 2007 N.D. LEXIS 100 (N.D. 2007).

Evidence was sufficient to support defendant’s convictions of gross sexual imposition and abuse or neglect of a child because the son testified that he and defendant had sex after defendant got out of the shower, the daughter testified that defendant was present when her father had sex with her, and a third child testified that defendant had sex with the son. The jury also heard testimony from a detective, a physician who examined the daughter, and an employee of county social services. State v. Muhle, 2007 ND 131, 737 N.W.2d 636, 2007 N.D. LEXIS 135 (N.D. 2007).

Evidence was sufficient to sustain defendant’s conviction on two counts of gross sexual imposition, N.D.C.C. § 12.1-20-03(1)(d) and (2)(a), where the victim testified about defendant’s inappropriate touching, her brothers testified that defendant was often home alone with the victim and her siblings after school, and two doctors had testified that the abrasions on the victim’s genitals were consistent with sexual abuse. State v. Tibor, 2007 ND 146, 738 N.W.2d 492, 2007 N.D. LEXIS 149 (N.D. 2007).

Defendant’s conviction for gross sexual imposition was appropriate pursuant to N.D.C.C. §§ 12.1-20-03 and 12.1-20-02(4) because there was sufficient evidence to support defendant’s conviction where the victim’s mother testified that she observed defendant rubbing the child and the child also testified that defendant touched her sexually. State v. Wegley, 2008 ND 4, 744 N.W.2d 284, 2008 N.D. LEXIS 7 (N.D. 2008).

Evidence was sufficient to convict defendant of gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(e) because the victim’s doctor testified that the 18-year-old victim had a mental age of between nine and 11 years old, that the victim was susceptible to exploitation, and that the victim was incapable of understanding the physiological aspects of sex or the possible consequences of sexual activity. Although defendant claimed to be unaware of the victim’s handicap, a detective testified that there were obvious signs of deficit in the victim when speaking with her, and defendant had lived with the victim and her family for two years. State v. Mosbrucker, 2008 ND 219, 758 N.W.2d 663, 2008 N.D. LEXIS 210 (N.D. 2008).

Evidence was sufficient to support defendant’s conviction of class AA felony gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(d), (3)(a), given that the victim testified that defendant made her “go like this” to his genitals, which testimony was sufficient to establish sexual contact, for purposes of N.D.C.C. § 12.1-20-02(3); furthermore, although defendant argued that the evidence was insufficient because it rested on the victim’s testimony, the uncorroborated testimony of a child was sufficient to sustain a conviction of a sexual offense. State v. Paul, 2009 ND 120, 769 N.W.2d 416, 2009 N.D. LEXIS 135 (N.D. 2009).

Evidence was sufficient to convict defendant of gross sexual imposition where the victim testified defendant touched her vagina with his fingers, mouth, and penis, and also touched her mouth with his penis; the nurse practitioner’s report stated the victim described physical symptoms consistent with genital penetration, and the victim’s description remained consistent when discussing the allegations with different persons. State v. Grant, 2009 ND 210, 776 N.W.2d 209, 2009 N.D. LEXIS 223 (N.D. 2009).

Evidence was sufficient to convict defendant of gross sexual imposition with a child less than six years of age under N.D.C.C. § 12.1-20-03(1)(d) because the child testified that defendant put his hands and his sexual organ in the child’s privates, he made her lick his sexual organ, and the uncorroborated testimony of the child was sufficient to sustain a conviction for gross sexual imposition; the jury saw a videotaped interview of the child by a forensic interviewer in which the child detailed several acts of sexual contact by defendant; and the jury heard a recording of the incriminating statements made by defendant at his house in which he admitted that he had engaged in oral sex with the child. State v. Huether, 2010 ND 233, 790 N.W.2d 901, 2010 N.D. LEXIS 236 (N.D. 2010).

District court erred in dismissing the charge of gross sexual imposition against defendant because the evidence produced by the State was sufficient to establish that a crime had been committed and that defendant was probably guilty as he admitted he engaged in a sexual act with the victim; the victim testified that the sex was not consensual, stating she was asleep on the couch and awoke with defendant having sex with her; the victim provided testimony concerning whether defendant knew or had reasonable cause to believe the victim was unaware of the sexual act; and N.D.C.C. § 12.1-20-03(1)(c) did not require the victim to have been actually unaware that a sexual act was being committed upon her. State v. Midell, 2011 ND 114, 798 N.W.2d 645, 2011 N.D. LEXIS 121 (N.D. 2011).

Evidence was sufficient to find defendant guilty of gross sexual imposition where, in addition to the girl’s testimony, the State presented testimony from several other witnesses, and introduced DNA evidence tending to prove the girl’s testimony was true. State v. Doll, 2012 ND 32, 812 N.W.2d 381, 2012 N.D. LEXIS 33 (N.D. 2012).

Evidence was sufficient to convict defendant of two counts of gross sexual imposition because the first child testified that defendant put his hand up her shirt and touched her nipples and that he put her hand down his pants and touched his private part; although the jury heard the second child's testimony that defendant did not touch her private parts, the jury also heard her forensic interview where she disclosed that defendant did make sexual contact with her by forcing her to sit on his lap while he was naked and that defendant made her hand touch his private part; and the forensic investigator testified that the second child had made disclosures that defendant touched her private parts. State v. Roe, 2014 ND 104, 846 N.W.2d 707, 2014 N.D. LEXIS 101 (N.D. 2014).

Evidence was sufficient to convict defendant of gross sexual imposition because the victim testified she awoke to defendant having sexual intercourse with her and she told him to stop; the victim reported the incident to law enforcement the next day; a report was admitted that showed that defendant's DNA was found on the victim's vaginal swab; and the forensic scientist who conducted the analysis of the swab testified regarding the results. State v. Jasmann, 2015 ND 101, 862 N.W.2d 809, 2015 N.D. LEXIS 101 (N.D. 2015).

There was sufficient evidence in the record to support defendant's gross sexual imposition conviction. There was sufficient evidence on which the jury could conclude penetration occurred, as well as sufficient evidence of violence prior to penetration to show that defendant used force to compel the victim to submit. State v. Truelove, 2017 ND 283, 904 N.W.2d 342, 2017 N.D. LEXIS 288 (N.D. 2017).

District court properly declined to declare a mistrial and entered a judgment against defendant after a jury found him guilty of gross sexual imposition because there was sufficient evidence to support the conviction where the victim’s testimony provided competent evidence to support a finding that defendant engaged in a sexual act with her when she was less than 15 years old, her school friend testified that the victim was “very distraught” and was “confused” that her mother did not believe her, the court did not deviate from established precedent in striking the responses and giving curative instruction, and its failure to grant a mistrial on its own motion did not constitute a clear deviation from applicable law. State v. Lyons, 2019 ND 175, 930 N.W.2d 156, 2019 N.D. LEXIS 176 (N.D. 2019).

Evidence was sufficient to sustain conviction of gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) where the elements for gross sexual imposition were proven through the complainant’s testimony, in addition to the other witnesses and evidence, defendant’s argument contending insufficient evidence essentially asked the appellate court to reweigh the trial testimony and find him more credible than the complainant, but the jury had found the complainant more credible. State v. Poulor, 2019 ND 215, 932 N.W.2d 534, 2019 N.D. LEXIS 221 (N.D. 2019).

Because sufficient evidence supported finding defendant used force to compel the victim to submit to a sexual act, the district court did not abuse its discretion when it denied defendant’s motion for acquittal. Defendant’s argument that there was no evidence that the victim physically resisted any action that would need to be overcome in the bedroom where the alleged sexual assault occurred was not supported by the law. State v. Mohammed, 2020 ND 52, 939 N.W.2d 498, 2020 N.D. LEXIS 51 (N.D. 2020).

District court properly denied defendant’s motion for an acquittal because the victim’s testimony was sufficient for the jury to find that he compelled the victim to submit to a sexual act by force, the location of the conduct was not an essential element of the offense, and the issue of prosecutorial misconduct was not sufficiently preserved for appeal or argued on appeal. State v. Samaniego, 2022 ND 38, 970 N.W.2d 222, 2022 N.D. LEXIS 37 (N.D. 2022).

—Victim Less Than Fifteen Years Old.

Where the record showed that on separate occasions when the defendant’s seven-year-old niece stayed overnight at his residence, defendant entered the room where she was sleeping, removed her panties and touched her inside the vagina, and she testified at trial that it happened more than once and at different locations, although the child’s testimony at trial was inconsistent in some respects, it was sufficient to sustain a felony conviction. State v. Schill, 406 N.W.2d 660, 1987 N.D. LEXIS 335 (N.D. 1987).

Although a child’s uncorroborated testimony may be sufficient to sustain a conviction for child sexual abuse, the preferred practice obviously is to support that testimony with as much other evidence as possible. State v. Schill, 406 N.W.2d 660, 1987 N.D. LEXIS 335 (N.D. 1987).

Where the fourteen-year-old victim testified that the adult defendant touched her over her clothes and placed his hand inside her jeans, inside her underwear, and touched her bare skin in the pubic region and where the victim used an exhibit depicting a line drawing of a young girl to mark the areas where defendant had touched her, the evidence was sufficient to permit the jury to draw an inference that defendant had touched victim’s sexual or other intimate parts. State v. Hagensen, 498 N.W.2d 615, 1993 N.D. App. LEXIS 5 (N.D. Ct. App. 1993).

Notwithstanding inconsistencies in the evidence, where the child did not deviate from her basic position that defendant gave her “bad touches” on multiple occasions in various locations, the evidence presented established the essential elements of the crime of gross sexual imposition and was sufficient to sustain the conviction on all counts. State v. Vance, 537 N.W.2d 545, 1995 N.D. LEXIS 171 (N.D. 1995).

Valid factual basis was established for defendant’s plea of guilty to gross sexual imposition, in violation of N.D.C.C. § 12.1-20-03(1)(d); there was testimony that the victim and defendant engaged in sexual contact on at least three separate occasions when defendant was at least 22 years of age and the victim was less than 15 years of age. Mackey v. State, 2012 ND 159, 819 N.W.2d 539, 2012 N.D. LEXIS 162 (N.D. 2012).

Expert Testimony.

Defendant’s conviction for gross sexual imposition and the denial of his motion for a new trial were both proper where the trial court did not abuse its discretion in allowing the State’s handwriting expert to identify defendant as the author of an incriminating letter handwritten in Spanish pursuant to N.D.R.Ev. 702. The private investigator was qualified as an expert in handwriting analysis and his testimony was determined to assist the jury. State v. Hernandez, 2005 ND 214, 707 N.W.2d 449, 2005 N.D. LEXIS 256 (N.D. 2005).

Where defendant was charged with engaging in sexual contact with his former girlfriend’s niece who was under 15 years-old, the trial court did not err in excluding the testimony of defendant’s expert, a psychologist, that defendant did not have a sexual interest in children; defendant was not accused of being a pedophile, but rather having committed or engaged in a sexual act with a minor child and the expert opinion and evaluation was of no probative value to the jury in its determination of whether or not defendant committed the alleged crime. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

Where defendant was charged with engaging in sexual contact with his former girlfriend’s niece who was under 15 years-old, the trial court did not err in excluding the testimony of defendant’s expert, a psychologist, because the court found that expert testimony was not necessary to tell a jury that a custody battle might be a motivational factor in sexual abuse allegations because the proffered testimony was generic and did not require any expertise and there was no foundation for the opinion that a possible child custody proceeding motivated the allegations in the instant case. State v. Austin, 2007 ND 30, 727 N.W.2d 790, 2007 N.D. LEXIS 30 (N.D. 2007).

Force.

Where, in a prosecution for gross sexual imposition, the court refused a jury request for a definition of the term “force” which is defined by N.D.C.C. § 12.1-01-04, error was committed, but the error was harmless where counsel did not bring the definition to the court’s attention nor object to the answer which was given, and there was substantial evidence to support the conviction. State v. Smuda, 419 N.W.2d 166, 1988 N.D. LEXIS 33 (N.D. 1988).

Where defendant tore a complainant’s pajama bottoms and pulled the pants down in order to engage in a sexual act with the complainant, who feigned sleeping, did not try to resist, and did not attempt to flee, there was no evidence that defendant used force to compel the complainant to submit to the sexual act as required by N.D.C.C. § 12.1-20-03(1)(a). State v. Vantreece, 2007 ND 126, 736 N.W.2d 428, 2007 N.D. LEXIS 127 (N.D. 2007).

In defendant’s trial for gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(a), the prosecutor’s argument relating to the complainant’s diminished mental capacity was neither improper nor prejudicial where the statements were supported by record evidence and the evidence was relevant to the issue of the amount of force which was required by defendant to compel complainant to submit to engaging in a sexual act with him. State v. Vantreece, 2007 ND 126, 736 N.W.2d 428, 2007 N.D. LEXIS 127 (N.D. 2007).

The serious nature of sexual assault is underscored by the North Dakota legislature classifying them as class AA felonies, carrying a potential sentence of life imprisonment without parole under N.D.C.C. §§ 12.1-20-03(3)(a) and 12.1-32-01(1). The North Dakota legislature has defined force to mean physical action in N.D.C.C. § 12.1-01-04(11), and it is the force or physical action by defendant which must compel the victim to submit to a sex act for a crime to be committed under N.D.C.C. § 12.1-20-03(1)(a); in the absence of force or threats of death or serious bodily injury, there is no crime under N.D.C.C. § 12.1-20-03(1)(a). State v. Vantreece, 2007 ND 126, 736 N.W.2d 428, 2007 N.D. LEXIS 127 (N.D. 2007).

Impotence.

Whether or not a defendant is impotent, or can maintain an erection, is not an element of the offense of gross sexual imposition, nor is it a defense to the charge; therefore, the issue of impotency and defendant’s ability to maintain an erection was not a significant factor at his criminal prosecution for gross sexual imposition, and the trial court’s denial of additional public funds for a “nocturnal penile study” did not deny him a fair trial. State v. Gonderman, 531 N.W.2d 11, 1995 N.D. LEXIS 46 (N.D. 1995).

Information.

Allowing the State to amend its information regarding victim the day before trial was not an abuse of discretion where documents produced during discovery and the original charge put defendant on notice that the State could allege that he sexually assaulted the victim with a body part other than his penis under N.D.C.C. § 12.1-20-03(1)(c), and defendant failed to show prejudice. State v. Carlson, 2016 ND 130, 881 N.W.2d 649, 2016 N.D. LEXIS 116 (N.D. 2016).

Jury Instructions.

In a case involving gross sexual imposition, a trial court’s failure to instruct a jury on the age of the victim was reviewed for obvious error because defendant failed to object; after applying the plain error framework of Fed.R.Crim.P. 52(b) to the case, a reversal was not required because the only evidence of inappropriate touching applied to just one victim, who was indisputably under the age of 15 at the time of the incident. State v. Flanagan, 2004 ND 112, 680 N.W.2d 241, 2004 N.D. LEXIS 208 (N.D. 2004).

In a gross sexual imposition case where the jury had to unanimously agree which sexual act or acts the defendant engaged in to find him guilty, a district court's failure to include information in the jury instructions identifying the underlying act for each count of the offense or to instruct the jury that it had to unanimously agree on the underlying act for each count constituted an obvious error; the complaint was not read to the jury and a copy of the complaint was not given to the jury with the jury instructions. State v. Martinez, 2015 ND 173, 865 N.W.2d 391, 2015 N.D. LEXIS 195 (N.D. 2015).

Defendant did not show a unanimity issue amongst the gross sexual imposition counts alleging that he engaged in two sexual acts with the victim because the jury instructions provided information identifying and differentiating the underlying acts; the charges were the same, but each count alleged defendant committed a factually distinct criminal act, and the jury could not find him guilty of both counts without agreeing each distinct act occurred. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Jury instructions that grouped the elements for the sexual act charges together and the elements for the sexual contact charges together were not misleading or confusing as to the criminal conduct for which defendant was standing trial because the jury instructions and verdict form, taken as a whole, adequately advised the jury that defendant was on trial for four separate crimes. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Gross sexual imposition charges alleging defendant engaged in sexual contact created a unanimity issue because the instructions did not provide sufficient factual information to distinguish the counts when each permitted a finding of guilt for touching the victim’s vulva; an obvious error occurred because it implicated defendant’s constitutional right to a unanimous verdict since it was not clear the jury agreed on the act supporting the conviction for touching the victim’s breasts and vulva. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

District court did not err when it instructed the jury on the elements of the crimes of gross sexual imposition because the jury was required to find defendant’s actions were willful, and the district court’s instructions correctly advised the jury on that element of the crimes; the charges also required a finding that defendant acted with a specific purpose and correctly instructed the jury on that element of the offense by providing the jury with the definition of sexual contact. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Juvenile Proceedings.

Remand was necessary to determine if jurisdiction was proper in a district court because N.D.C.C. § 27-20-34(1)(b) was ambiguous on whether delinquent acts of gross sexual imposition, in violation of N.D.C.C. § 12.1-20-03(1)(d), (2)(a), constituted a stand alone offense. The juvenile court incorrectly found that N.D.C.C. § 27-20-34(1)(b) only required a showing that the act of gross sexual imposition occurred, but the legislature intended the clause requiring force or threat of imminent death, serious bodily injury, or kidnapping to modify both gross sexual imposition and attempted gross sexual imposition; therefore, the case was remanded for a hearing where the juvenile court could hear evidence from both parties and make a determination of whether transfer was appropriate under N.D.C.C. 27-20-34(1)(c).Divide County Sheriff's Dep't. v. M.W. (In the Interest of M.W.), 2009 ND 55, 764 N.W.2d 185, 2009 N.D. LEXIS 37 (N.D. 2009).

Purpose of N.D.C.C. § 27-20-34 is to transfer serious, violent crimes to district court. Gross sexual imposition by force or threat of imminent harm is a statutorily violent and a serious crime to be transferred to district court. R.A. v. R.A., 2011 ND 119, 799 N.W.2d 332, 2011 N.D. LEXIS 120 (N.D. 2011).

Plain language of N.D.C.C. § 27-20-34(1)(b) provides that the court shall transfer the offense of gross sexual imposition or attempted gross sexual imposition of a victim by threat of imminent death, serious bodily injury, or kidnapping, and the plain language does not say the threat must be to the victim. The statute is not ambiguous. R.A. v. R.A., 2011 ND 119, 799 N.W.2d 332, 2011 N.D. LEXIS 120 (N.D. 2011).

Where the juvenile and the victim were involved in a relationship for approximately nine months but remained friends after their relationship ended, where the juvenile contacted the victim six months later victim via phone, text message, and Facebook telling her that he was receiving threats from drug dealers who were trying to get his uncle to help them traffic drugs, where the juvenile indicated that he had been sexually assaulted by the drug dealers and that they were threatening to assault him again and to sexually assault and kill the victim unless they both changed their relationship status on Facebook to “in a relationship” and engaged in sexual acts together, where the victim complied after receiving threats directly from the alleged drug dealers, and where a delinquency petition was filed after it was determined that the juvenile was behind the threats, the transfer of the juvenile’s case to district court was appropriate because the evidence was sufficient to support a finding of probable cause in that the record contained evidence that the threats received by the victim compelled her to engage in sexual acts with the juvenile and that the victim feared imminent harm. R.A. v. R.A., 2011 ND 119, 799 N.W.2d 332, 2011 N.D. LEXIS 120 (N.D. 2011).

Lesser Included Offenses.

When the offense of gross sexual imposition is committed by an act of sexual contact with a victim less than fifteen years of age, aggravated assault, N.D.C.C. § 12.1-17-02, is not a lesser included offense. State v. Sadler, 305 N.W.2d 913, 1981 N.D. LEXIS 319 (N.D. 1981).

Subdivision (2)(a) which prohibits “sexual contact” is a lesser included offense of subdivision (1)(d) which prohibits a “sexual act”. State v. Vance, 537 N.W.2d 545, 1995 N.D. LEXIS 171 (N.D. 1995).

District court properly did not give instruction on lesser included offense of sexual assault, since the only issue was the consent of the victim, and the evidence would not permit the jury to rationally convict the defendant of the lesser offense and acquit him of the greater. State v. McDonell, 550 N.W.2d 62, 1996 N.D. LEXIS 155 (N.D. 1996).

Evidence would not permit a jury to rationally find defendant guilty of sexual assault and not guilty of gross sexual imposition, and therefore defendant was not entitled to a jury instruction on the lesser included offense. State v. Foreid, 2009 ND 41, 763 N.W.2d 475, 2009 N.D. LEXIS 47 (N.D. 2009).

Denying a request for a jury instruction on the lesser-included offense of sexual assault was not error where defendant effectively admitted the occurrence of a sexual act, he had not requested a verdict form amendment to include sexual assault as an additional offense based on testimony revealing two separate incidents, and as presented, the jury must have found each of the elements of gross sexual imposition based only on the incident involving penetration. State v. Blotske, 2017 ND 190, 899 N.W.2d 661, 2017 N.D. LEXIS 185 (N.D. 2017).

Mental Deficiency.

Absent expert medical testimony, prosecution, nevertheless, minimally met its burden of presenting a prima facie case that defendant’s victims must, by reason of mental disease or defect, be incapable of understanding the nature of the conduct involved. State v. Kingsley, 383 N.W.2d 828, 1986 N.D. LEXIS 285 (N.D. 1986).

Mistrial.

In a gross sexual imposition case, the district court did not abuse its discretion by denying defendant's motion for mistrial after witness testimony referenced prior bad acts. Defendant pointed to no evidence the district court's failure to grant a mistrial resulted in manifest injustice. State v. Van Chase, 2015 ND 234, 869 N.W.2d 733, 2015 N.D. LEXIS 249 (N.D. 2015).

Multiple Counts.
—In General.

Defendant in resident child molester case was not denied the right to prepare his defense by the state’s inability to be more specific as to the time of the commission of the offenses; when multiple acts of molestation are alleged by a minor child, specificity as to the time of the offense may be impossible and an alibi defense is not likely to be viable since the defendant did not claim that he was not alone with the child. State v. Vance, 537 N.W.2d 545, 1995 N.D. LEXIS 171 (N.D. 1995).

Although the state’s decision to charge one count of gross sexual imposition for each month that “resident child molester” resided with child does not create an additional burden upon the state to prove beyond a reasonable doubt that an offense occurred specific to each month, there must nonetheless be sufficient evidence to support each count for which the defendant was found guilty. State v. Vance, 537 N.W.2d 545, 1995 N.D. LEXIS 171 (N.D. 1995).

Defendant’s acquittal on one count and conviction on five other counts of gross sexual imposition based on sexual contact with his thirteen year old daughter over an eleven month period was not a perverse compromise verdict denying the defendant a fair trial. State v. Osier, 1999 ND 28, 590 N.W.2d 205, 1999 N.D. LEXIS 30 (N.D. 1999).

—Double Jeopardy.

Where defendant was convicted of two counts of gross sexual imposition, because each conviction arose from evidence of a different sexual act, i.e., oral and vaginal sex, his convictions rested on two separate sexual acts and his double jeopardy argument was meritless. State v. Sievers, 543 N.W.2d 491, 1996 N.D. LEXIS 46 (N.D. 1996).

Probable Cause.

Defendant’s admissions of touching nine-year-old victim inside her sweatpants and having his hand under her shirt provided evidence for a finding of probable cause that he had committed the offense of gross sexual imposition for purposes of preliminary hearing, despite his denial that he received gratification from the sexual contact. From the details of the incident, the defendant’s admission, and his acknowledgment that what he had done was wrong and stupid, the magistrate could draw the inference that the touching was for the purpose of gratifying or arousing sexual desire. Schiermeister v. Riskedahl, 449 N.W.2d 566, 1989 N.D. LEXIS 251 (N.D. 1989).

Nine-year-old victim’s statement that defendant “rubbed around my private spots” and touched her on the chest established probable cause for magistrate to believe the offense of gross sexual imposition had been committed by defendant and to bind him over for trial. Schiermeister v. Riskedahl, 449 N.W.2d 566, 1989 N.D. LEXIS 251 (N.D. 1989).

Probation.

In a case where defendant was convicted under N.D.C.C. § 12.1-20-03, an illegal sentence was imposed because defendant had served two probation periods authorized by N.D.C.C. § 12.1-32-06.1 prior to his 2012 resentencing due to a revocation, and a trial court was unable to impose a third period of probation. State v. Perales, 2012 ND 158, 820 N.W.2d 119, 2012 N.D. LEXIS 154 (N.D. 2012).

Psychiatric Examination of Complaining Witness in Sex Offense.

The trial court has discretion to order a psychiatric examination of a complaining witness in a sex offense based upon compelling reasons established on the record, but not for a mere fishing expedition. State v. Buckley, 325 N.W.2d 169, 1982 N.D. LEXIS 336 (N.D. 1982).

Sentence Enhancement

Denial of defendant’s motion for judgment of acquittal was affirmed because defendant attempted to challenge the trial proceeding, which resulted in serious bodily injury being treated as a sentence enhancement and not an element of gross sexual imposition; however, because defendant invited the treatment of serious bodily injury as a sentence enhancement he could not now claim it was error to treat it as such. Defendant actively participated in the drafting of the verdict form and specifically requested that the inquiry regarding whether there was serious bodily injury be added in the order it was presented to the jury, the form of this second inquiry did not request a “guilty” or “not guilty” response, but merely a “yes” or “no” response, and taken together defendant’s actions led the trial court to submit the case as a sentence enhancement case. State v. Kautzman, 2007 ND 133, 738 N.W.2d 1, 2007 N.D. LEXIS 133 (N.D. 2007).

In a gross sexual imposition with a child less than six years of age case, because defendant was living with the child’s mother at the relevant times and there was evidence that several of the sexual acts occurred when defendant was watching the child while her mother was attending school, defendant was essentially in a parental relationship with the child; thus, the trial court’s reference to a position of trust in sentencing defendant was not an impermissible consideration and the trial court did not err in relying on that factor in sentencing defendant. State v. Huether, 2010 ND 233, 790 N.W.2d 901, 2010 N.D. LEXIS 236 (N.D. 2010).

Statute of Limitations.

Charges based on the sexual abuse of defendant’s young niece were not barred by the statute of limitations; the district court correctly applied the current version of N.D.C.C. § 29-04-03.1, and, because the victim was under 15 at the time of the sexual abuse, the statute of limitations did not begin to run until her 15th birthday in 2002. The offense was reported to law enforcement authorities in December 2002, within the initial seven-year limitation period, and the prosecution was commenced within seven years. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

Charges based on the sexual abuse of defendant’s young nephew were not barred by the statute of limitations; because the nephew was under 15 at the time of the offense, the statute of limitations did not begin to run until his 15th birthday in 1997, he did not report the offense to law enforcement until January 31, 2005, therefore, the prosecution had to be commenced within three years after that date, and the State filed a criminal complaint against defendant in June 2005, well within the three-year limitation period. State v. Goebel, 2007 ND 4, 725 N.W.2d 578, 2007 N.D. LEXIS 2 (N.D. 2007).

DECISIONS UNDER PRIOR LAW

In General.

An act of sexual intercourse accomplished with a female under the age of eighteen years and not the wife of the perpetrator, was always rape; but the act could be rape in the first, second or third degree, depending solely upon the age of the defendant. State v. Running, 53 N.D. 896, 208 N.W. 231, 1926 N.D. LEXIS 32 (N.D. 1926).

Age of Defendant.

In a prosecution for the statutory offense of rape without force the age of the defendant going to the degree of the crime, as distinguished, from the age going to his capacity to commit the crime at all, was an essential fact to be established by the evidence and to be considered by the jury in fixing the degree of the crime. It was a question of fact to be submitted to and determined by the jury. State v. Running, 53 N.D. 896, 208 N.W. 231, 1926 N.D. LEXIS 32 (N.D. 1926).

Consent.

If the act was committed with a female under the age of consent by a male over the age of seventeen and under the age of twenty years, whether or not she willingly participated in the act was immaterial except in determining the degree of the offense. State v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 1947 N.D. LEXIS 86 (N.D. 1947).

Where the statute fixed the age of consent of the female, under that age she could not consent. Her willingness to participate constituted only an apparent consent and in such case the female was to be regarded as resisting no matter what the actual state of her mind at the time, since the law resisted for her. State v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 1947 N.D. LEXIS 86 (N.D. 1947).

Failure to cry out for help did not give rise to presumption of consent by victim who was elderly, had had recent heart attack, and was much smaller than her assailant, where her chances of receiving help as a result of crying out were few. State v. Champagne, 198 N.W.2d 218, 1972 N.D. LEXIS 154 (N.D. 1972).

Even if complaining witness who was under eighteen years of age had cooperated with defendant in every way, his act of intercourse with her would nevertheless have been rape. State v. Klein, 200 N.W.2d 288, 1972 N.D. LEXIS 133 (N.D. 1972).

Defenses.

Impotency was a sufficient defense to an indictment for the consummated offense of rape. Territory v. Keyes, 38 N.W. 440, 5 Dakota 244, 1888 Dakota LEXIS 23 (Dakota 1888).

Error in Instructions.

In a prosecution for statutory rape, the omission of instructions on a minor degree of the offense was not error in the absence of request. State v. Martin, 54 N.D. 840, 211 N.W. 585, 1926 N.D. LEXIS 88 (N.D. 1926).

Evidence Sufficient.

Defendant was guilty of rape in the first degree of a six-year-old child where the evidence showed penetration. State v. Oliver, 78 N.D. 398, 49 N.W.2d 564, 1951 N.D. LEXIS 98 (N.D. 1951).

Prosecutrix’s testimony of penetration, corroborated by defendant’s witness who walked into bedroom and observed prosecutrix’s pants unzipped and her attempt to close them as she left the room, plus defendant’s statement before entering room with victim that he was going to “make” her, was sufficient evidence to sustain guilty verdict convicting accused of an act of sexual intercourse with female under the age of eighteen years. State v. Klein, 200 N.W.2d 288, 1972 N.D. LEXIS 133 (N.D. 1972).

Testimony of two eyewitnesses that they had observed defendant perform what appeared to be sexual intercourse with the complainant, and testimony by physician that complainant’s hymen was bruised and torn was sufficient evidence to sustain conviction of rape, despite the complainant’s inability to identify her attacker since her eyes were covered during the assault. State v. Kirk, 211 N.W.2d 757, 1973 N.D. LEXIS 116 (N.D. 1973).

Uncorroborated testimony of victim was sufficient to establish any or all elements of the crime of rape. State v. Olmstead, 246 N.W.2d 888, 1976 N.D. LEXIS 155 (N.D. 1976).

Information Sufficient.

If the information properly charged rape in the first degree, and the evidence of defendant’s guilt thereof was sufficient, the verdict stood, although the information also charged rape in the second degree. State v. Rhoades, 17 N.D. 579, 118 N.W. 233, 1908 N.D. LEXIS 90 (N.D. 1908).

The particular acts constituting the alleged rape had to be set forth in the information in a manner sufficient to apprise the accused in which one of the different ways it was claimed he had committed the offense. State v. Rhoades, 17 N.D. 579, 118 N.W. 233, 1908 N.D. LEXIS 90 (N.D. 1908).

Under an information charging defendant with the crime of rape in the first degree by force and violence, a verdict of guilty of assault with intent to commit rape could be returned. State v. Becker, 74 N.D. 293, 21 N.W.2d 532, 1946 N.D. LEXIS 64 (N.D. 1946).

An information alleging facts and circumstances constituting an offense under the law was not fatally defective because it designated the offense by a wrong name. State v. Hefta, 88 N.W.2d 626, 1958 N.D. LEXIS 68 (N.D. 1958).

An information which charged rape in the first degree and then set out all of the elements of such charge correctly except that it stated defendant’s age as twenty years or over instead of twenty-four years as necessary to constitute first degree rape under former section, was not fatally defective, where defendant admitted at the trial and before pronouncement of sentence that he was thirty-three years old, and the information could have been amended to show age as thirty-three had the defendant raised any objection. State v. Hefta, 88 N.W.2d 626, 1958 N.D. LEXIS 68 (N.D. 1958).

Lesser Included Offenses.

Under an information charging the commission of rape in the first degree a verdict could be returned finding the defendant guilty of a lesser degree. State v. Bancroft, 23 N.D. 442, 137 N.W. 37, 1912 N.D. LEXIS 106 (N.D. 1912).

A verdict of rape in the second degree or of assault with intent to commit rape was returnable under an information charging rape in the first degree. State v. Bancroft, 23 N.D. 442, 137 N.W. 37, 1912 N.D. LEXIS 106 (N.D. 1912).

On a charge of second degree rape if it did not certainly appear that the act was committed by overcoming the female’s resistance by force and violence, the jury could return only a verdict of rape in the third degree. State v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 1947 N.D. LEXIS 86 (N.D. 1947).

Second degree and third degree rape both were included offenses within the crime of rape in the first degree, and were differentiated only by reason of the ages of the parties thereto. State v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 1947 N.D. LEXIS 86 (N.D. 1947).

Third degree rape was included in the offense of second degree rape. State v. Nagel, 75 N.D. 495, 28 N.W.2d 665, 1947 N.D. LEXIS 86 (N.D. 1947).

Nonmarriage.

Nonmarriage between the complaining witness and perpetrator of an alleged rape had to be alleged and proved beyond a reasonable doubt, and could be proved by circumstances. State v. Johnson, 58 N.D. 832, 227 N.W. 560, 1929 N.D. LEXIS 287 (N.D. 1929).

Penetration.

Testimony by physician that rape victim’s hymen was bruised and torn constituted sufficient proof of penetration, despite the fact that the tear in hymen was not large enough to indicate any penetration beyond the hymen; any penetration beyond the labia is legally sufficient, and insertion of the penis into the vaginal canal is not necessary. State v. Kirk, 211 N.W.2d 757, 1973 N.D. LEXIS 116 (N.D. 1973).

Physical Ability.

Child under fourteen was presumed physically incapable of crime of rape, and physical ability to commit rape had to be proved as an independent fact. State v. Fisk, 15 N.D. 589, 108 N.W. 485, 1906 N.D. LEXIS 63 (N.D. 1906).

Resistance by Female.

After verdict, and on motion in arrest of judgment, the allegations of the information that the female ravished resisted, and that her resistance was overcome by force or violence, had to be held sufficient. State v. Rhoades, 17 N.D. 579, 118 N.W. 233, 1908 N.D. LEXIS 90 (N.D. 1908).

Sentencing.

Imprisonment in the penitentiary for rape was neither cruel nor unusual punishment. State v. Youman, 66 N.D. 204, 263 N.W. 477, 1935 N.D. LEXIS 188 (N.D. 1935).

Where defendant who pleaded guilty to first degree rape and, in habeas corpus proceeding claimed that he was unaware of maximum sentence of life imprisonment at the time of pleading and that he was misled and unable to understand statement of trial court that offense was “punishable by imprisonment in the state penitentiary for not less than one year”, his contention was without merit. In re Stone, 171 N.W.2d 119, 1969 N.D. LEXIS 88 (N.D. 1969), cert. denied, 397 U.S. 912, 90 S. Ct. 912, 25 L. Ed. 2d 93, 1970 U.S. LEXIS 3002 (U.S. 1970).

State’s Election of Charges.

Where the state elected to try the defendant for rape in the second degree because of the nature and character of the offense, it was bound by its election. State v. Noel, 66 N.D. 676, 268 N.W. 654, 1936 N.D. LEXIS 214 (N.D. 1936).

Voluntary Intercourse.

A female person under the age of eighteen years having voluntary sexual intercourse constituting statutory rape was guilty of fornication, precluding the recovery of damages. Braun v. Heidrich, 62 N.D. 85, 241 N.W. 599, 1932 N.D. LEXIS 154 (N.D. 1932).

Collateral References.

Liability of parent or person in loco parentis for rape of minor child, 19 A.L.R.2d 423.

Blood grouping tests, 46 A.L.R.2d 1000.

Marriage: admissibility and propriety, in rape prosecution, of evidence that accused is married, has children, and the like, 62 A.L.R.2d 1067.

Pregnancy, admissibility, in nonstatutory rape prosecution, of evidence of, 62 A.L.R.2d 1083.

Admissibility, in prosecution for sexual offense, of evidence of other similar offenses, 77 A.L.R.2d 841.

Fraud or impersonation, rape by, 91 A.L.R.2d 591.

Privilege: applicability in criminal proceedings of privilege as to communications between physician and patient, 7 A.L.R.3d 1458.

Impotency as defense to charge of rape, attempt to commit rape, or assault with intent to commit rape, 23 A.L.R.3d 1351.

Mental deficiency: rape or similar offense based on intercourse with woman who is allegedly mentally deficient, 31 A.L.R.3d 1227.

Chastity: admissibility of prosecution evidence on issue of consent that victim was a virgin, absent defense attack on her chastity, 35 A.L.R.3d 1452.

Chastity: mistake or lack of information as to victim’s chastity as defense to statutory rape, 44 A.L.R.3d 1434.

Burden of proof of defendant’s age, in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526.

Recantation by prosecuting witness in sex crime as ground for new trial, 51 A.L.R.3d 907.

Sodomy, consent as defense in prosecution for, 58 A.L.R.3d 636.

What constitutes penetration in prosecution for rape or statutory rape, 76 A.L.R.3d 163.

Multiple instances of forcible intercourse involving same defendant and same victim as constituting multiple crimes of rape, 81 A.L.R.3d 1228.

What constitutes offense of “sexual battery”, 87 A.L.R.3d 1250.

Time element as affecting admissibility of statement or complaint made by victim of sex crime as res gestae, spontaneous exclamation, or excited utterance, 89 A.L.R.3d 102.

Competency of one spouse to testify against other in prosecution for offense against child of both or either, 93 A.L.R.3d 1018.

Admissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix, 2 A.L.R.4th 330.

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 A.L.R.4th 1009.

Liability of parent for injury to unemancipated child caused by parent’s negligence — modern cases, 6 A.L.R.4th 1066.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 A.L.R.4th 105.

Modern status of rule regarding necessity for corroboration of victim’s testimony in prosecution for sexual offense, 31 A.L.R.4th 120.

Admissibility of impeached witness’ prior consistent statement — modern state criminal cases, 58 A.L.R.4th 1014.

Conviction of rape or related sexual offenses on basis of intercourse accomplished under the pretext of, or in the course of, medical treatment, 65 A.L.R.4th 1064.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.

Sufficiency of allegations or evidence of victim’s mental injury or emotional distress to support charge of aggravated degree of rape, sodomy, or other sexual offense, 44 A.L.R.5th 651.

Defense of mistake of fact as to victim’s consent in rape prosecution, 102 A.L.R.5th 447.

Offense of Rape After Withdrawal of Consent, 33 A.L.R.6th 353.

Law Reviews.

State v. Hirschkorn, 2002 ND 36, 640 N.W.2d 439 (2002), 79 N.D. L. Rev. 589 (2003).

North Dakota Supreme Court Review (State v. Vantreece, 2007 ND 126, 736 N.W.2d 428 (2007)), see 84 N.D. L. Rev. 567 (2008).

North Dakota Supreme Court Review (State v. Flatt, 2007 ND 98, 733 N.W.2d 608 (2007)), see 84 N.D. L. Rev. 567 (2008).

North Dakota Supreme Court Review (State v. Tibor, 2007 ND 146, 738 N.W.2d 492 (2007)), see 84 N.D. L. Rev. 567 (2008).

North Dakota Supreme Court Review (State v. Paul), see 86 N.D. L. Rev. 437 (2010).

12.1-20-03.1. Continuous sexual abuse of a child.

  1. An individual in adult court is guilty of an offense if the individual engages in any combination of three or more sexual acts or sexual contacts with a minor under the age of fifteen years during a period of three or more months. The offense is a class AA felony if the actor was at least twenty-two years of age at the time of the offense. Otherwise, the offense is a class A felony. The court may not defer imposition of sentence.
  2. If more than three sexual acts or contacts are alleged, a jury must unanimously agree that any combination of three or more acts or contacts occurred. The jury does not need to unanimously agree which three acts or contacts occurred.
  3. No other felony offense under this chapter involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section, but a separate count may be charged for each victim if more than one victim is involved.

Source: S.L. 1997, ch. 124, § 2; 2005, ch. 115, § 3; 2007, ch. 123, § 3.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Sentencing.

Defendant’s sentence of life in prison, with the balance suspended after he serves 30 years, did not violate the Eighth Amendment because defendant committed a serious offense under N.D.C.C. § 12.1-20-03.1 that caused substantial harm and his sentence was within the statutory sentencing range. State v. Gomez, 2011 ND 29, 793 N.W.2d 451, 2011 N.D. LEXIS 35 (N.D. 2011).

Sufficient Evidence.

Evidence was sufficient to support defendant’s conviction of continuous sexual abuse of a child in violation of N.D.C.C. § 12.1-20-03.1 because: (1) the child victim testified that defendant forced her to place her hands on his penis over his clothing and forced her to move her hand over his penis; (2) defendant was in a relationship with the victim’s mother and periodically lived with them between May 2008 and January 2009; and (3) the victim testified the sexual contacts occurred almost daily when defendant lived with them, including the day he was arrested for the offense. State v. Gomez, 2011 ND 29, 793 N.W.2d 451, 2011 N.D. LEXIS 35 (N.D. 2011).

Termination of Parental Rights.

Father’s parental rights were properly terminated because the son was a deprived child given the father’s incarceration, the father’s sexual abuse of the son’s half-sister with whom the son lived, the continuation of the sibling relationship between the son and his half-sister, and the father’s continued incarceration, which would prevent him from ever participating in active parental care while the son was a minor, and substantial evidence supported the juvenile court’s finding that the son was subjected to aggravated circumstances as the father had been convicted of continuously sexually abusing the son’s half-sister, and the father would be incarcerated well past double the son’s current age. Whelan v. C.G. (In the Interest of C.N.), 2013 ND 205, 839 N.W.2d 841, 2013 N.D. LEXIS 219 (N.D. 2013), cert. denied, 575 U.S. 1015, 135 S. Ct. 2324, 191 L. Ed. 2d 989, 2015 U.S. LEXIS 3237 (U.S. 2015).

Time Limits.

Four year gap between initial allegation of defendant’s sexual abuse of his child and two additional allegations did not require the court to consider the older allegation separately from the more recent allegations; statute does not contain a maximum time limit. State v. Martin, 2001 ND 189, 636 N.W.2d 447, 2001 N.D. LEXIS 220 (N.D. 2001).

Defendant was not entitled to post-conviction relief due to an information’s failure to state a specific date or the victim’s name because (1) the statute had no time requirement, (2) the crime was adequately alleged, and (3) defendant knew the victim. Davies v. State, 2018 ND 211, 917 N.W.2d 8, 2018 N.D. LEXIS 220 (N.D. 2018).

Verdict Form.

Trial court did not err by failing to issue a special verdict form for defendant’s charge under N.D.C.C. § 12.1-20-03.1 because defendant was not charged with treason and he did not raise any defenses requiring a special verdict form under N.D.R.Crim.P. 31, the parties stipulated that defendant was at lease 22 years old at the time of the offense, and therefore a special finding was not required. State v. Gomez, 2011 ND 29, 793 N.W.2d 451, 2011 N.D. LEXIS 35 (N.D. 2011).

12.1-20-04. Sexual imposition.

A person who engages in a sexual act or sexual contact with another, or who causes another to engage in a sexual act or sexual contact, is guilty of a class B felony if the actor:

  1. Compels the other person to submit by any threat or coercion that would render a person reasonably incapable of resisting; or
  2. Engages in a sexual act or sexual contact with another, whether consensual or not, as part of an induction, initiation, ceremony, pledge, hazing, or qualification to become a member or an associate of any criminal street gang as defined in section 12.1-06.2-01.

Source: S.L. 1973, ch. 117, § 1; 1977, ch. 122, § 3; 1983, ch. 167, § 1; 2001, ch. 134, § 2; 2009, ch. 131, § 3.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Evidence.

Evidence that defendant pushed victim down and pulled her face within three inches of his exposed penis while victim was pushing back in resistance and screaming was sufficient to sustain conviction for attempted sexual imposition. State v. Walden, 336 N.W.2d 629, 1983 N.D. LEXIS 390 (N.D. 1983).

Defendant’s motion to dismiss was properly denied because there was sufficient evidence to support a conviction for two counts of gross sexual imposition where two victims testified that inappropriate touching occurred; it was within the province of the district court to make credibility determinations since the testimony had inconsistencies. State v. Krull, 2005 ND 63, 693 N.W.2d 631, 2005 N.D. LEXIS 73 (N.D. 2005).

Lesser Included Offenses.

Section 12.1-20-03(2)(a) which prohibits “sexual contact” is a lesser included offense of N.D.C.C. § 12.1-20-03(1)(d) which prohibits a “sexual act”. State v. Vance, 537 N.W.2d 545, 1995 N.D. LEXIS 171 (N.D. 1995).

Collateral References.

Defense of mistake of fact as to victim’s consent in rape prosecution, 102 A.L.R.5th 447.

12.1-20-05. Corruption or solicitation of minors.

  1. An adult who engages in, solicits with the intent to engage in, or causes another to engage in a sexual act with a minor, is guilty of a class A misdemeanor if the victim is a minor fifteen years of age or older.
  2. An adult who solicits with the intent to engage in a sexual act with a minor under age fifteen or engages in or causes another to engage in a sexual act when the adult is at least twenty-two years of age and the victim is a minor fifteen years of age or older, is guilty of a class C felony.
  3. An adult who commits a violation of subsection 1 within fifty feet [15.24 meters] of or on the real property comprising a public or nonpublic elementary, middle, or high school is guilty of a class C felony. An adult who commits a violation of subsection 2 within fifty feet [15.24 meters] of or on the real property comprising a public or nonpublic elementary, middle, or high school is guilty of a class B felony.

Source: S.L. 1973, ch. 117, § 1; 1977, ch. 122, § 4; 1979, ch. 179, § 2; 1997, ch. 122, § 2; 2001, ch. 134, § 3; 2007, ch. 124, § 2.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Application.

Because defendant solicited sexual conduct with a 17-year-old minor located in North Dakota, he was liable to prosecution under the laws of North Dakota, including its proscription of sexual contact with a person under 18, even though he lived in Texas where the legal age of consent was 17. United States v. Goodwin, 712 F.3d 1238, 2013 U.S. App. LEXIS 7683 (8th Cir. N.D. 2013), vacated, 2013 U.S. App. LEXIS 10771 (8th Cir. N.D. May 28, 2013), reprinted, 719 F.3d 857, 2013 U.S. App. LEXIS 10632 (8th Cir. N.D. 2013).

Evidence.

In a prosecution under this section, evidence was sufficient to show that sexual intercourse occurred in the county alleged. State v. Copeland, 448 N.W.2d 611, 1989 N.D. LEXIS 234 (N.D. 1989).

Evidence Sufficient.

There was sufficient evidence for the jury to have reasonably found that defendant earnestly requested a fifteen-year-old girl to have sex with the intent of engaging in sexual intercourse with her and that his conduct violated N.D.C.C. § 12.1-20-05 where the girl testified that, while she and defendant were riding in his car, defendant twice asked her to have sex with him, upon which she declined and told him she wanted to go back to be with her mother. State v. Igou, 2005 ND 16, 691 N.W.2d 213, 2005 N.D. LEXIS 19 (N.D. 2005).

Sufficient evidence supported the jury’s verdict finding defendant guilty of corruption or solicitation of a minor. Defendant did not dispute the fact that he sought to engage in a sexual act with a minor or that he was actually three years older than the minor. State v. Boespflug, 2011 ND 30, 793 N.W.2d 774, 2011 N.D. LEXIS 25 (N.D. 2011).

Registration as Sexual Offender.

Trial court abused its discretion in denying defendant’s withdrawal of his guilty plea, because its failure to inform him he was required to register as a sexual offender upon conviction of engaging in a sexual act with a minor caused a manifest injustice, unless he knew of the need to register when he pled. State v. Breiner, 1997 ND 71, 562 N.W.2d 565, 1997 N.D. LEXIS 73 (N.D. 1997), overruled, State v. Burr, 1999 ND 143, 598 N.W.2d 147, 1999 N.D. LEXIS 176 (N.D. 1999) (compare State v. Burr, 1999 ND 143, 598 N.W.2d 147, 1999 N.D. LEXIS 176 (N.D. 1999).

District court properly refused to allow defendant to withdraw his guilty plea on the failure-to-register charge because he offered no support for his argument that he was incorrectly informed of the penalty for pleading guilty to that charge as the permissive probationary provisions were not applicable, and his probationary sentence was appropriately categorized as mandatory. Peltier v. State, 2013 ND 246, 841 N.W.2d 236, 2013 N.D. LEXIS 243 (N.D. 2013).

District court properly amended defendant’s solicitation of minors charge from a felony to a misdemeanor because the error was one of form, rather than substance, and after the judgment was amended to reflect a misdemeanor conviction, rather than a felony, resentencing was proper in order to correct an illegal sentence. Peltier v. State, 2013 ND 246, 841 N.W.2d 236, 2013 N.D. LEXIS 243 (N.D. 2013).

12.1-20-05.1. Luring minors by computer or other electronic means.

  1. An adult is guilty of luring minors by computer or other electronic means when:
    1. The adult knows the character and content of a communication that, in whole or in part, implicitly or explicitly discusses or depicts actual or simulated nudity, sexual acts, sexual contact, sadomasochistic abuse, or other sexual performances and uses any computer communication system or other electronic means that allows the input, output, examination, or transfer of data or programs from one computer or electronic device to another to initiate or engage in such communication with a person the adult believes to be a minor; and
    2. By means of that communication the adult importunes, invites, or induces a person the adult believes to be a minor to engage in sexual acts or to have sexual contact with the adult, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for the adult’s benefit, satisfaction, lust, passions, or sexual desires.
  2. A violation of this section is a class A misdemeanor if the adult is less than twenty-two years of age and reasonably believes the minor is age fifteen to seventeen. If the adult is less than twenty-two years of age and reasonably believes the minor is under age fifteen, or the adult is twenty-two years of age or older and the adult reasonably believes the minor is age fifteen to seventeen, violation of this section is a class C felony. If the adult is twenty-two years of age or older and the adult reasonably believes the minor is under the age of fifteen, violation of this section is a class B felony. The court shall sentence an adult convicted of a class B or class C felony under this section to serve a term of imprisonment of at least one year, except the court may sentence an individual to less than one year if the individual did not take a substantial step toward meeting with the minor.
  3. The attorney general may issue an administrative subpoena compelling an internet service provider or cellular phone company to provide subscriber information to a law enforcement agency investigating a possible violation of this section.

Source: S.L. 2001, ch. 134, § 4; 2007, ch. 125, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Use of Computers Outside the State.

North Dakota courts had jurisdiction to prosecute defendant under this section, although he used his computer in Minnesota to initiate the offense; N.D.C.C. § 29-03-01.1 applied when the defendant offered to pick up the person he believed to be a minor at a location in North Dakota. State v. Backlund, 2003 ND 184, 672 N.W.2d 431, 2003 N.D. LEXIS 198 (N.D. 2003).

Collateral References.

Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Electronic Communications, 33 A.L.R.6th 373.

Construction and Application of U.S. Sentencing Guideline § 2G1.3(b)(3), Providing Two-Level Enhancement for Use of Computer to Persuade, Induce, Entice, Coerce, or Facilitate the Travel of, Minor to Engage in Prohibited Sexual Conduct. 58 A.L.R. Fed. 2d 1.

12.1-20-06. Sexual abuse of wards.

A person who engages in a sexual act with another person, or any person who causes another to engage in a sexual act is guilty of a class C felony if the other person is in official custody or detained in a hospital, prison, or other institution and the actor has supervisory or disciplinary authority over the other person.

Source: S.L. 1973, ch. 117, § 1; 2001, ch. 135, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Collateral References.

Liability of parent or person in loco parentis for rape of minor child, 19 A.L.R.2d 423.

Liability of parent for injury to unemancipated child caused by parent’s negligence — modern cases, 6 A.L.R.4th 1066.

Liability of hospital or clinic for sexual relationships with patients by staff physicians, psychologists, and other healers, 45 A.L.R.4th 289.

Conviction of rape or related sexual offenses on basis of intercourse accomplished under the pretext of, or in the course of, medical treatment, 65 A.L.R.4th 1064.

12.1-20-06.1. Sexual exploitation by therapist — Definitions — Penalty.

Any person who is or who holds oneself out to be a therapist and who intentionally has sexual contact, as defined in section 12.1-20-02, with a patient or client during any treatment, consultation, interview, or examination is guilty of a class C felony. Consent by the complainant is not a defense under this section. A complaint of a violation of this section may be made to the police department of the city in which the violation occurred, the sheriff of the county in which the violation occurred, or the bureau of criminal investigation. Local law enforcement agencies and the bureau of criminal investigation shall cooperate in investigations of violations of this section. As used in this section, unless the context or subject matter otherwise requires:

  1. “Psychotherapy” means the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction.
  2. “Therapist” means a physician, psychologist, psychiatrist, social worker, nurse, addiction counselor, member of the clergy, or other person, whether licensed or not by the state, who performs or purports to perform psychotherapy.

Source: S.L. 1987, ch. 169, § 1; 1995, ch. 129, § 1; 2019, ch. 225, § 3, effective August 1, 2019.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Private Right of Action.

There is no private right of action, either express or implied, under this statute. Enderle v. Trautman, 2001 U.S. Dist. LEXIS 20181 (D.N.D. Dec. 3, 2001).

Collateral References.

Conviction of rape or related sexual offenses on basis of intercourse accomplished under the pretext of, or in the course of, medical treatment, 65 A.L.R.4th 1064.

12.1-20-07. Sexual assault.

  1. A person who knowingly has sexual contact with another person, or who causes another person to have sexual contact with that person, is guilty of an offense if:
    1. That person knows or has reasonable cause to believe that the contact is offensive to the other person;
    2. That person knows or has reasonable cause to believe that the other person suffers from a mental disease or defect which renders that other person incapable of understanding the nature of that other person’s conduct;
    3. That person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct, by administering or employing without the victim’s knowledge intoxicants, a controlled substance as defined in chapter 19-03.1, or other means for the purpose of preventing resistance;
    4. The other person is in official custody or detained in a hospital, prison, or other institution and the actor has supervisory or disciplinary authority over that other person;
    5. The other person is a minor, fifteen years of age or older, and the actor is the other person’s parent, guardian, or is otherwise responsible for general supervision of the other person’s welfare; or
    6. The other person is a minor, fifteen years of age or older, and the actor is an adult.
  2. The offense is:
    1. A class C felony if the actor’s conduct violates subdivision b, c, d, or e of subsection 1, or subdivision f of subsection 1 if the adult is at least twenty-two years of age; or
    2. A class A misdemeanor if the actor’s conduct violates subdivision f of subsection 1 if the adult is at least eighteen years of age and not twenty-two years of age or older, or if the actor’s conduct violates subdivision a of subsection 1.

Source: S.L. 1973, ch. 117, § 1; 1977, ch. 122, § 5; 1997, ch. 122, § 3; 1997, ch. 123, § 2; 2001, ch. 135, § 2; 2017, ch. 100, § 1, effective August 1, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Removal of offender from child’s residence as condition for child’s release from shelter care, see N.D.C.C. § 27-20-17.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Evidence.

In a prosecution for sexual assault as a class C felony under N.D.C.C. § 12.1-20-07(2), evidence was sufficient to show defendant was over the age of 22 because defendant chose not to stand on defendant’s motion for a judgment of acquittal at the close of the State’s case in chief and testified on cross examination that defendant was 34 years old. State v. Kinsella, 2011 ND 88, 796 N.W.2d 678, 2011 N.D. LEXIS 84 (N.D. 2011).

Petitioner’s trial counsel was not ineffective by failing to enter an allegedly exculpatory lab report into evidence because petitioner was charged with knowingly having sexual contact with another person, and contact did not require the presence of semen in a vaginal swab, so the jury still could have convicted him of sexual assault even if no semen was present in the vaginal and rectal swabs of his stepdaughter, and petitioner’s other claims second guessed the trial strategy through the distorting light of hindsight. Kinsella v. State, 2013 ND 238, 840 N.W.2d 625, 2013 N.D. LEXIS 249 (N.D. 2013).

Lesser Included Offenses.

District court properly did not give instruction on lesser included offense of sexual assault at trial for gross sexual imposition, since the only issue was the consent of the victim, and the evidence would not permit the jury to rationally convict the defendant of the lesser offense and acquit him of the greater. State v. McDonell, 550 N.W.2d 62, 1996 N.D. LEXIS 155 (N.D. 1996).

Evidence would not permit a jury to rationally find defendant guilty of sexual assault and not guilty of gross sexual imposition; therefore, defendant was not entitled to a jury instruction on the lesser included offense. State v. Foreid, 2009 ND 41, 763 N.W.2d 475, 2009 N.D. LEXIS 47 (N.D. 2009).

Denying a request for a jury instruction on the lesser-included offense of sexual assault was not error where defendant effectively admitted the occurrence of a sexual act, he had not requested a verdict form amendment to include sexual assault as an additional offense based on testimony revealing two separate incidents, and as presented, the jury must have found each of the elements of gross sexual imposition based only on the incident involving penetration. State v. Blotske, 2017 ND 190, 899 N.W.2d 661, 2017 N.D. LEXIS 185 (N.D. 2017).

Relation to Other Laws.

Transcripts of Internet chats and a telephone conversation were sufficient evidence to permit a reasonable jury to find that defendant intended to persuade the “16-year-old girl” (actually an undercover officer) to engage in sexual activity, and when the “16-year-old girl” said she did not have a car available, defendant said he would come to North Dakota to meet her; thus, the jury could have reasonably inferred that defendant intended to persuade the “16-year-old girl” to engage in sexual activity in North Dakota, where the sexual contact would have been criminal, not Minnesota, where the contact may not have been criminal, in violation of 18 U.S.C.S. § 2422. United States v. Patten, 397 F.3d 1100, 2005 U.S. App. LEXIS 2512 (8th Cir. N.D. 2005).

Sufficiency of Evidence.

Where defendant conceded that the State proved the victim of the sexual assaults had a mental defect which rendered her incapable of understanding the nature of the alleged conduct and he knew or had reason to know of the defect, there was sufficient evidence to support his conviction for three counts of sexual assault under N.D.C.C. § 12.1-20-07(1)(b). State v. Torkelsen, 2008 ND 137, 756 N.W.2d 548, 2008 N.D. LEXIS 138 (N.D. 2008).

DECISIONS UNDER PRIOR LAW

“Child.”

In former statute punishing the taking of indecent liberty with a child, the term “child” meant a human being under the age of eighteen. State v. Flath, 59 N.D. 121, 228 N.W. 847, 1929 N.D. LEXIS 239 (N.D. 1929).

Conviction Proper.

A defendant was properly convicted of the commission of the crime of attempted indecent liberties upon the person of an individual under eighteen years of age where his conduct indicated an intent to take indecent liberties with a girl eleven years of age, consisting of a series of acts tending to effect the commission of the crime that failed only because of the flight and fright of the girl. State v. Holte, 87 N.W.2d 47, 1957 N.D. LEXIS 178 (N.D. 1957).

On the trial of one charged with the crime of indecent liberties, direct testimony of the prosecuting witness, eight years of age, who was competent to testify, substantiated by corroborative evidence, both direct and circumstantial, was sufficient to support a verdict of guilt. State v. Dietz, 115 N.W.2d 1, 1962 N.D. LEXIS 72 (N.D. 1962).

Evidence.

On the trial of defendant charged with the crime of taking indecent liberty with the person of a child it was reversible error to admit evidence relating to alleged criminal acts upon two other boys. State v. Flath, 61 N.D. 342, 237 N.W. 792, 1931 N.D. LEXIS 282 (N.D. 1931).

“Indecent Liberties.”

“Indecent liberties” meant such liberties as the common sense of society would regard as indecent and improper. State v. Holte, 87 N.W.2d 47, 1957 N.D. LEXIS 178 (N.D. 1957).

Sentencing.

A sentence to three years in the state penitentiary for taking indecent liberties was not excessive and was not subject to review although jury added a recommendation of leniency to its verdict. State v. Holte, 87 N.W.2d 47, 1957 N.D. LEXIS 178 (N.D. 1957).

Sixteen-year-old boy with prior delinquency record was properly committed to state training school for offense of taking indecent liberties with persons under age eighteen. State v. Reister, 80 N.W.2d 114, 1956 N.D. LEXIS 166 (N.D. 1956).

Collateral References.

Indecent proposal to woman as assault, 12 A.L.R.2d 971.

Sodomy: assault with intent to commit unnatural sex act upon minor as affected by latter’s consent, 65 A.L.R.2d 748.

Impotency as defense to charge of rape, attempt to commit rape, or assault with intent to commit rape, 23 A.L.R.3d 1351.

Sexual nature of assault as aggravating offense, 63 A.L.R.3d 225.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 A.L.R.4th 105.

Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defendant minor within protected age group, 18 A.L.R.5th 856.

Law Reviews.

North Dakota Supreme Court Review (State v. Rogers, 2007 ND 68, 730 N.W.2d 859 (2007)), see 84 N.D. L. Rev. 567 (2008).

12.1-20-08. Fornication.

An individual is guilty of a class A misdemeanor if the individual engages in a sexual act in a public place. A minor engaging in a sexual act is guilty of a class B misdemeanor, unless that sexual act was committed against the minor in violation of sections 12.1-20-01 through 12.1-20-07.

Source: S.L. 1973, ch. 117, § 1; 2003, ch. 106, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Civil Suit.

Female under age of eighteen years who had voluntary sexual intercourse constituting statutory rape was guilty of fornication and could not recover damages arising out of her unlawful act. Braun v. Heidrich, 62 N.D. 85, 241 N.W. 599, 1932 N.D. LEXIS 154 (N.D. 1932).

Collateral References.

Prosecution of female as principal for rape, 67 A.L.R.4th 1127.

What constitutes “public place” within meaning of state statute or local ordinance prohibiting indecency or commission of sexual act in public place, 95 A.L.R.5th 229.

12.1-20-09. Adultery.

  1. A married person is guilty of a class A misdemeanor if he or she engages in a sexual act with another person who is not his or her spouse.
  2. No prosecution shall be instituted under this section except on the complaint of the spouse of the alleged offender, and the prosecution shall not be commenced later than one year from commission of the offense.
  3. The court shall grant immunity from prosecution under this section to a person subject to prosecution under this section who, as part of a divorce, annulment, or separation proceeding, provides information regarding sexual acts with another person.

Source: S.L. 1973, ch. 117, § 1; 1987, ch. 167, § 2; 1997, ch. 125, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Complaints by Spouses.

The spouse of either of the parties committing adultery could complain against either or both parties. State v. Wesie, 17 N.D. 567, 118 N.W. 20, 1908 N.D. LEXIS 85 (N.D. 1908).

The provisions of adultery statute were mandatory, but when the prosecution was commenced, on the complaint of the husband or wife, the general criminal procedure of the court was invoked, and the husband or wife had no further control of the prosecution. State v. Beck, 52 N.D. 391, 202 N.W. 857, 1925 N.D. LEXIS 29 (N.D. 1925).

Definition.

The term adultery had no technical meaning in law distinct from its significance in its ordinary and popular sense. State v. Hart, 30 N.D. 368, 152 N.W. 672, 1915 N.D. LEXIS 129 (N.D. 1915).

Information Sufficient.

In an information charging the crime of adultery it was not necessary to allege that the prosecution was commenced by the husband or wife. State v. Beck, 52 N.D. 391, 202 N.W. 857, 1925 N.D. LEXIS 29 (N.D. 1925).

Collateral References.

Mistaken belief in existence, validity, or effect of divorce or separation as defense to prosecution for adultery, 56 A.L.R.2d 915.

Reversal of divorce decree: cohabitation under marriage contracted after divorce decree as adultery, where decree is later reversed, or set aside, 63 A.L.R.2d 816.

Validity of statute making adultery and fornication criminal offense, 41 A.L.R.3d 1338.

12.1-20-10. Unlawful cohabitation. [Repealed]

Repealed by S.L. 2007, ch. 131, § 4.

12.1-20-11. Incest.

A person who intermarries, cohabits, or engages in a sexual act with another person related to him within a degree of consanguinity within which marriages are declared incestuous and void by section 14-03-03, knowing such other person to be within said degree of relationship, is guilty of a class C felony.

Source: S.L. 1973, ch. 117, § 1; 1989, ch. 163, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Marriages incestuous and void, see N.D.C.C. § 14-03-03.

Removal of offender from child’s residence as condition for child’s release from shelter care, see N.D.C.C. § 27-20-17.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Consent is no defense to a charge of incest. Lucke v. Lucke, 300 N.W.2d 231, 1980 N.D. LEXIS 315 (N.D. 1980).

Sexually Predatory Conduct.

Each offense required proof of fact that other did not where aggravated sexual abuse of child included element that victim must have been under age of 12 at time of offense; incest required proof that victim was sufficiently close relative of defendant that marriage between them would be considered incestuous, therefore, two charges were not multiplicitous. United States v. Fool Bear, 903 F.3d 704, 2018 U.S. App. LEXIS 25278 (8th Cir. N.D. 2018).

Sexually Predatory Conduct.

Civil commitment order ruling that appellant was a sexually dangerous individual under N.D.C.C. § 25-03.3-01(8) for siring three children with two daughters, molesting one grandson, showing pornography to another grandson/son, and impregnating a 16-year-old was overturned because the district court made a legal error by finding that incest between consenting adults fell within the statutory definition of sexually predatory conduct under N.D.C.C.§ 25-03.3-01(9) and by omitting findings related to the first and second prongs of the analysis used to determine if appellant was a sexually dangerous individual. State v. Voisine (In re Voisine), 2010 ND 17, 777 N.W.2d 908, 2010 N.D. LEXIS 20 (N.D. 2010).

Incest between consenting adults is not sexually predatory conduct under N.D.C.C. § 25-03.3-01(9). State v. Voisine (In re Voisine), 2010 ND 17, 777 N.W.2d 908, 2010 N.D. LEXIS 20 (N.D. 2010).

DECISIONS UNDER PRIOR LAW

Accomplice.

A conviction of incest could not be had upon the uncorroborated testimony of an accomplice, but the female, when uninfluenced by any element of coercion, would be an accomplice, and whether she was an accomplice was usually a question of fact for the jury. State v. Kellar, 8 N.D. 563, 80 N.W. 476, 1899 N.D. LEXIS 47 (N.D. 1899).

Definitions.

In proceedings in federal court charging the crime of incest and rape by a single act of intercourse by defendant with his seventeen-year-old first cousin in Indian country, the definition and punishment of the offense of incest were supplied by former section 12-22-06, defining incest, and by N.D.C.C. § 14-03-03, defining incestuous and void marriages. United States v. Davis, 148 F. Supp. 478, 1957 U.S. Dist. LEXIS 4044 (D.N.D. 1957).

Collateral References.

Consent as element of incest, 36 A.L.R.2d 1299.

Prosecutrix in incest case as accomplice or victim, 74 A.L.R.2d 705.

Rape, incest as included within charge of, 76 A.L.R.2d 484.

Admissibility, in incest prosecution, of evidence of alleged victim’s prior sexual acts with persons other than accused, 97 A.L.R.3d 967.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution — modern state cases, 74 A.L.R.4th 223.

Sexual intercourse between persons related by half blood as incest, 34 A.L.R.5th 723.

Sexual intercourse between persons related by half blood as incest, 34 A.L.R.5th 723.

Law Reviews.

North Dakota Supreme Court Review (In re Voisine), see 86 N.D. L. Rev. 437 (2010).

12.1-20-12. Deviate sexual act.

A person who performs a deviate sexual act with the intent to arouse or gratify his sexual desire is guilty of a class A misdemeanor.

Source: S.L. 1973, ch. 117, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Collateral References.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation — post-New York Times cases, 57 A.L.R.4th 404.

12.1-20-12.1. Indecent exposure.

  1. An individual, with intent to arouse, appeal to, or gratify that individual’s lust, passions, or sexual desires, is guilty of a class A misdemeanor if that individual:
    1. Masturbates in a public place or in the presence of a minor;
    2. Exposes the individual’s penis, vulva, or anus in a public place or to a minor in a public or private place;
    3. Exposes the individual’s penis, vulva, or anus by unsolicited electronic means; or
    4. Exposes the individual’s penis, vulva, or anus by any electronic means to a minor.
  2. An individual is guilty of a class C felony if the individual violates subsection 1 after a previous conviction for violating subsection 1, after a previous conviction for violating section 12.1-20-12.2, or after being required to register under section 12.1-32-15.
  3. An individual who commits a violation of subdivision a or b of subsection 1 within fifty feet [15.24 meters] of or on the real property comprising a public or nonpublic elementary, middle, or high school is guilty of a class C felony. An individual who commits a violation of subsection 2 within fifty feet [15.24 meters] of or on the real property comprising a public or nonpublic elementary, middle, or high school is guilty of a class B felony.
  4. As used in this section, “electronic means” includes images and pictures transmitted via electronic mail, electronic messaging, or from an electronic communications device.

Source: S.L. 1979, ch. 179, § 1; 2001, ch. 134, § 5; 2003, ch. 106, § 2; 2007, ch. 124, § 3; 2009, ch. 220, § 1; 2017, ch. 101, § 1, effective August 1, 2017; 2021, ch. 203, § 1, effective August 1, 2021.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Public Place.

Discussion of whether conduct occurring in an enclosed stall of a public restroom takes place in a “public place.” Hougum v. Valley Mem. Homes, 1998 ND 24, 574 N.W.2d 812, 1998 N.D. LEXIS 24 (N.D. 1998).

Collateral References.

Indecent exposure: what is “person,” 63 A.L.R.4th 1040.

Regulation of exposure of female, but not male, breasts, 67 A.L.R.5th 431.

Validity of State and Municipal Indecent Exposure Statutes and Ordinances. 71 A.L.R.6th 283.

12.1-20-12.2. Surreptitious intrusion.

  1. An individual, with the intent to arouse, appeal to, or gratify that individual’s lust, passions, or sexual desires, is guilty of a class A misdemeanor if that individual does any of the following:
    1. With intent to intrude upon or interfere with the privacy of another, enters upon another’s property and surreptitiously gazes, stares, or peeps into a house or place of dwelling of another.
    2. With intent to intrude upon or interfere with the privacy of another, enters upon another’s property and surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events from a house or place of dwelling of another.
    3. With intent to intrude upon or interfere with the privacy of the occupant, surreptitiously gazes, stares, or peeps into a tanning booth, a sleeping room in a hotel, or other place where a reasonable individual would have an expectation of privacy and has exposed or is likely to expose that individual’s intimate parts or has removed the clothing covering the immediate area of the intimate parts.
    4. With intent to intrude upon or interfere with the privacy of the occupant, surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events from a tanning booth, a sleeping room in a hotel, or other place where a reasonable individual would have an expectation of privacy and has exposed or is likely to expose that individual’s intimate parts or has removed the clothing covering the immediate area of the intimate parts.
  2. A person is guilty of a class C felony if the person violates subsection 1 after a previous conviction for violating subsection 1, after a previous conviction for violating section 12.1-20-12.1, after being required to register under section 12.1-32-15, or if the victim is a minor.

Source: S.L. 2001, ch. 134, § 6; 2011, ch. 97, § 1; 2017, ch. 101, § 2, effective August 1, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

“Window or Other Aperture.”

Even if a trial court might have erred in finding that the phrase “window or other aperture” was not an essential element of surreptitious intrusion under N.D.C.C. § 12.1-20-12.2(1)(d), defendant was not entitled to an arrest of judgment under N.D.R.Crim.P. 34 because any error was harmless in that the jury considered the phrase, defendant was permitted to argue the failure of proof as to that matter, and no prejudice was shown to defendant. State v. Just, 2006 ND 225, 723 N.W.2d 541, 2006 N.D. LEXIS 229 (N.D. 2006). (Decided under prior law. The “window or other aperture” language was deleted by the 2011 amendments to this section.)

12.1-20-12.3. Sexual extortion.

  1. An individual commits the offense of sexual extortion if the individual:
    1. With an intent to coerce a victim to engage in sexual contact, in sexually explicit conduct, or in simulated sexually explicit conduct, or to produce, provide, or distribute an image, video, or other recording of any individual engaged in sexually explicit conduct or any intimate image of an individual, or a demand for money, communicates in person or by electronic means:
      1. A threat to the victim’s or another’s person, property, or reputation; or
      2. A threat to distribute or an enticement to delete an intimate image or video of the victim or another.
    2. Knowingly causes a victim to engage in sexual contact, in sexually explicit conduct, or in simulated sexually explicit conduct, or to produce, provide, or distribute any image, video, or other recording of any individual engaged in sexually explicit conduct or any intimate image of an individual, or a demand for money, by means of:
      1. A threat to the victim’s or another’s person, property, or reputation; or
      2. A threat to distribute or an enticement to delete an intimate image or video of the victim or another.
  2. The offense is:
    1. A class B felony if the actor’s conduct violates subdivision b of subsection 1 and the victim is a minor or vulnerable adult, otherwise a class A misdemeanor.
    2. A class A misdemeanor if the actor’s conduct violates subdivision a of subsection 1.
  3. For purposes of this section:
    1. “Intimate image” has the meaning provided in subsection 1 of section 12.1-17-07.2.
    2. “Sexual contact” has the meaning provided in section 12.1-20-02.
    3. “Sexually explicit conduct” has the meaning provided in subsection 1 of section 12.1-17-07.
    4. “Simulated sexually explicit conduct” has the meaning provided in subsection 1 of section 12.1-17-07.2.

Source: S.L. 2019, ch. 108, § 1, effective August 1, 2019.

12.1-20-13. Bigamy.

  1. A person who marries another person, while married to another person, is guilty of a class C felony.
  2. Subsection 1 does not extend to:
    1. A person whose spouse has been absent for five successive years and is believed by him or her to be dead.
    2. A person whose spouse has voluntarily absented himself and has continually remained without the United States for the space of five successive years.
    3. A person whose former marriage has been pronounced void, null, or dissolved by the judgment of a competent court.

Source: S.L. 1973, ch. 117, § 1.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Collateral References.

Mistake as to validity or effect of divorce as defense, 56 A.L.R.2d 915.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution — modern state cases, 74 A.L.R.4th 223.

Validity of Bigamy and Polygamy Statutes and Constitutional Provisions. 22 A.L.R.6th 1.

12.1-20-14. Admissibility of evidence concerning reputation of complaining witness — Gross sexual imposition and sexual imposition.

Superseded by N.D.R.Ev. 412.

Note.

This section was superseded by Rule 412 of the North Dakota Rules of Evidence, effective March 1, 1998.

12.1-20-15. Credibility of complaining witness attacked — Procedure.

Superseded by N.D.R.Ev. 412.

Note.

This section was superseded by Rule 412 of the North Dakota Rules of Evidence, effective March 1, 1998.

12.1-20-15.1. Admissibility of evidence of victim’s manner of dress in sex offense cases.

Superseded by N.D.R.Ev. 412.

Note.

This section was superseded by Rule 412 of the North Dakota Rules of Evidence, effective March 1, 1998.

12.1-20-16. Appointment of a guardian ad litem in prosecution for sex offenses.

A minor or an individual with a developmental disability who is a material or prosecuting witness in a criminal proceeding involving an act in violation of sections 12.1-20-01 through 12.1-20-08, section 12.1-20-11, or chapter 12.1-41, may, at the discretion of the district court, have the witness’ interests represented by a guardian ad litem at all stages of the proceedings arising from the violation. The appointment may be made upon the order of the court on its own motion or at the request of a party to the action. The guardian ad litem may, but need not, be a licensed attorney and must be designated by the court after due consideration is given to the desires and needs of the minor or the individual with a developmental disability. An individual who is also a material witness or prosecuting witness in the same proceeding may not be designated guardian ad litem. The guardian ad litem must receive notice of and may attend all depositions, hearings, and trial proceedings to support the minor or the individual with a developmental disability and advocate for the protection of the minor or the individual with a developmental disability but may not separately introduce evidence or directly examine or cross-examine witnesses. The expenses of the guardian ad litem, when approved by the judge, must be paid by the supreme court. The state shall also pay the expenses of the guardian ad litem in commitment proceedings held in district court pursuant to chapter 25-03.1.

Source: S.L. 1987, ch. 170, § 1; 1991, ch. 54, § 4; 1991, ch. 326, § 42; 1993, ch. 122, § 1; 2019, ch. 109, § 1, effective August 1, 2019.

Notes to Decisions

Material or Prosecuting Witness.

An individual was appointed guardian ad litem for defendant’s children in divorce proceeding before criminal charges were brought against defendant. Therefore, the individual was not designated as the victim’s guardian ad litem in violation of this section’s proscription of designating material or prosecuting witnesses as guardians ad litem in criminal proceedings arising out of violations of N.D.C.C. §§ 12.1-20-01 through 12.1-20-08 or N.D.C.C. § 12.1-20-11. State v. Copeland, 448 N.W.2d 611, 1989 N.D. LEXIS 234 (N.D. 1989).

12.1-20-17. Transfer of body fluid that may contain the human immunodeficiency virus — Definitions — Defenses — Penalty.

  1. As used in this section, unless the context otherwise requires:
    1. “Body fluid” means semen, irrespective of the presence of spermatozoa; blood; or vaginal secretion.
    2. “Transfer” means to engage in sexual activity by genital-genital contact, oral-genital contact, or anal-genital contact, or to permit the reuse of a hypodermic syringe, needle, or similar device without sterilization.
  2. A person who, knowing that that person is or has been afflicted with acquired immune deficiency syndrome, afflicted with acquired immune deficiency syndrome related complexes, or infected with the human immunodeficiency virus, willfully transfers any of that person’s body fluid to another person is guilty of a class A felony.
  3. It is an affirmative defense to a prosecution under this section that if the transfer was by sexual activity, the sexual activity took place between consenting adults after full disclosure of the risk of such activity and with the use of an appropriate prophylactic device.

Source: S.L. 1989, ch. 164, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Reports of human immunodeficiency virus infection, see N.D.C.C. § 23-07-02.1.

12.1-20-18. Definitions. [Repealed]

Repealed by S.L. 1993, ch. 129, § 5.

12.1-20-19. Release of sexual offender from place of confinement — Duties of official in charge. [Repealed]

Repealed by S.L. 1993, ch. 129, § 5.

12.1-20-20. Duty to register. [Repealed]

Repealed by S.L. 1993, ch. 129, § 5.

12.1-20-21. Change of address — Duty to inform. [Repealed]

Repealed by S.L. 1993, ch. 129, § 5.

12.1-20-22. Duration of registration. [Repealed]

Repealed by S.L. 1993, ch. 129, § 5.

12.1-20-23. Penalty. [Repealed]

Repealed by S.L. 1993, ch. 129, § 5.

12.1-20-24. Facilitation of sexual acts in public. [Effective through August 31, 2022]

  1. As used in this section:
    1. “Adult entertainment center” means any commercial facility at which motion pictures or videos that include explicit representations of sexual conduct are offered for viewing at that facility, but does not include the guest rooms of a hotel or motel.
    2. “Sexual act” has the meaning prescribed in section 12.1-20-02.
    3. “Sexual conduct” has the meaning prescribed in section 12.1-27.1-01.
  2. It is an infraction for a person to willfully own, rent, lease, manage, or exercise control of any portion of an adult entertainment center if that portion contains:
    1. Any partition between subdivisions of a room or area that has an opening that facilitates a sexual act between individuals on either side of the partition; or
    2. A room, booth, stall, or partitioned portion of a room offered to individuals for a fee as an incident to viewing a video, motion picture, or similar entertainment, unless the room, booth, stall, or partitioned portion of the room has:
      1. At least one side open to an adjacent public space so that the area inside is visible to individuals in the adjacent public space; and
      2. The viewing area is lighted in a manner that the persons in that area are visible from the adjacent public space.
  3. This section does not apply to an enclosure that is a private office space used by the owner, manager, or employees of the adult entertainment center if that office space is not held out or available to the public for the purpose of viewing a video, motion picture, or similar entertainment for a fee.
  4. The state department of health or the state’s attorney having jurisdiction may bring an action to enjoin a pattern of violations of this section.

Source: S.L. 1997, ch. 126, § 1.

Cross-References.

Penalty for infraction, see N.D.C.C. § 12.1-32-01.

12.1-20-24. Facilitation of sexual acts in public. [Effective September 1, 2022]

  1. As used in this section:
    1. “Adult entertainment center” means any commercial facility at which motion pictures or videos that include explicit representations of sexual conduct are offered for viewing at that facility, but does not include the guest rooms of a hotel or motel.
    2. “Sexual act” has the meaning prescribed in section 12.1-20-02.
    3. “Sexual conduct” has the meaning prescribed in section 12.1-27.1-01.
  2. It is an infraction for a person to willfully own, rent, lease, manage, or exercise control of any portion of an adult entertainment center if that portion contains:
    1. Any partition between subdivisions of a room or area that has an opening that facilitates a sexual act between individuals on either side of the partition; or
    2. A room, booth, stall, or partitioned portion of a room offered to individuals for a fee as an incident to viewing a video, motion picture, or similar entertainment, unless the room, booth, stall, or partitioned portion of the room has:
      1. At least one side open to an adjacent public space so that the area inside is visible to individuals in the adjacent public space; and
      2. The viewing area is lighted in a manner that the persons in that area are visible from the adjacent public space.
  3. This section does not apply to an enclosure that is a private office space used by the owner, manager, or employees of the adult entertainment center if that office space is not held out or available to the public for the purpose of viewing a video, motion picture, or similar entertainment for a fee.
  4. The department of health and human services or the state’s attorney having jurisdiction may bring an action to enjoin a pattern of violations of this section.

Source: S.L. 1997, ch. 126, § 1; 2021, ch. 352, § 21, effective September 1, 2022.

12.1-20-25. Sexual offender presence near schools prohibited.

  1. Except for purposes of voting in a school building used as a public polling place or attending an open meeting under chapter 44-04 in a school building, a sexual offender, as defined in section 12.1-32-15, who has pled guilty or been found guilty of or has been adjudicated delinquent of a class A misdemeanor or felony sexual offense against a minor or is required to register under section 12.1-32-15 or equivalent law of another state may not knowingly enter upon the real property comprising a public or nonpublic elementary, middle, or high school unless provided by this section or allowed on school property through compliance with a written policy adopted by the school board of a public school or governing body of a nonpublic school. The school board or governing body shall provide a copy of the policy to local law enforcement upon request.
  2. If a school board or a governing body does not have a written policy on sexual offenders on school property, subsection 1 does not apply under the following circumstances:
    1. The offender is a parent or guardian of a student attending the school and the offender, with the written permission of the school board or governing body of the school, or designee of the board or body, is attending a conference at the school with school personnel to discuss the progress of the student academically or socially, participating in a child review conference in which evaluation and placement decisions may be made regarding special education services, or attending a conference to discuss other student issues, including retention and promotion.
    2. The offender is a parent, guardian, or relative of a student attending or participating in a function at the school and the offender has requested advance permission from the school board or governing body, or designee of the board or body, and received permission allowing the offender’s presence at the school function.
    3. The offender is a student at the school with the written permission of the school board or governing body, or designee of the board or body.
    4. The school board or governing body, or designee of the board or body, allows the offender on school property under other circumstances on a case-by-case basis.
  3. An individual who violates this section is guilty of a class A misdemeanor.

Source: S.L. 2007, ch. 124, § 1; 2007, ch. 126, § 1.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-21 Damaging Property or Public Services

12.1-21-01. Arson.

A person is guilty of arson, a class B felony, if he starts or maintains a fire or causes an explosion with intent to destroy an entire or any part of a building or inhabited structure of another or a vital public facility, or if he starts or maintains a fire or causes an explosion with intent to destroy or damage his own real or personal property for the purpose of collecting insurance for the loss.

Source: S.L. 1973, ch. 116, § 20; 1979, ch. 180, § 1.

Cross-References.

Penalty for class B felony, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Elements of Offense.

When a homeowner and her husband started a fire intending to destroy or damage their home and collect insurance on the loss, conspiracy to commit arson existed even when the insurance had lapsed without their knowledge. State v. Beciraj, 2003 ND 173, 671 N.W.2d 250, 2003 N.D. LEXIS 177 (N.D. 2003).

Evidence Sufficient.

For a case holding that the evidence was sufficient for the jury to find beyond a reasonable doubt that defendant was guilty of arson of his house, see State v. Carson, 453 N.W.2d 485, 1990 N.D. LEXIS 68 (N.D. 1990).

For a case holding that the circumstantial evidence was sufficient to sustain the conviction of defendant for burglary and arson, see State v. Lambert, 539 N.W.2d 288, 1995 N.D. LEXIS 182 (N.D. 1995).

Sufficient evidence supported a conviction for conspiracy to commit arson where there was no evidence of an accidental cause, very few household items remained in the burned mobile home, neighbors testified that they saw the defendant carrying bags away from the home on the day of the fire, and the defendant’s husband said that the family had insurance and expected to receive money donated from the community. State v. Beciraj, 2003 ND 173, 671 N.W.2d 250, 2003 N.D. LEXIS 177 (N.D. 2003).

Evidence was sufficient to sustain defendant's arson conviction where evidence was presented at trial supported a finding that defendant started the fire in the residence with the intent to destroy part of the building, and the jury could have inferred from the evidence that, by setting the fire, defendant also had the requisite intent to destroy at least part of the building. State v. Friesz, 2017 ND 177, 898 N.W.2d 688, 2017 N.D. LEXIS 164 (N.D. 2017).

DECISIONS UNDER PRIOR LAW

Constitutionality.

Arson statute (ch. 115, S.L. 1929) did not embrace more than one subject in violation of section 61 of the state constitution. State v. Isensee, 64 N.D. 1, 249 N.W. 898, 1933 N.D. LEXIS 241 (N.D. 1933).

“Burning.”

To constitute the act of burning contemplated by former section, it was not necessary that the building should be consumed or materially injured; it was sufficient if the fire was actually communicated to any part thereof. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202, 1950 N.D. LEXIS 131 (N.D. 1950).

Where the states established by the testimony of witnesses and by photographs introduced in evidence that there was a burning and charring of the wood of some of the interior of a dwelling house before the fire was extinguished, the trial court properly determined that this was sufficient to constitute a burning and, therefore, the completed crime of arson. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202, 1950 N.D. LEXIS 131 (N.D. 1950).

Expert Testimony.

In an arson trial the expert opinion of an agent for the National Board of Fire Underwriters that the fire was “caused by human hands” was admissible. State v. Carroll, 123 N.W.2d 659, 1963 N.D. LEXIS 112 (N.D. 1963).

Sufficiency of Information.

An information accusing the defendant of the crime of arson, and charging facts constituting arson in the third degree as defined by statute, was sufficiently specific as to the crime charged and did not accuse of one crime and state facts constituting a different crime. State v. Young, 9 N.D. 165, 82 N.W. 420, 1900 N.D. LEXIS 205 (N.D. 1900).

An information for arson which failed to allege malice was insufficient. State v. Mutschler, 55 N.D. 120, 55 N.D. 1920, 212 N.W. 832, 1927 N.D. LEXIS 13 (N.D. 1927); State v. Pedie, 58 N.D. 27, 224 N.W. 898, 1929 N.D. LEXIS 177 (N.D. 1929).

Where an indictment for burning a garage complied with statute in its averment with respect to malice, additional descriptive words could be disregarded as surplusage. State v. Bendickson, 62 N.D. 201, 242 N.W. 693, 1932 N.D. LEXIS 167 (N.D. 1932).

An information stating that the defendant did willfully and maliciously attempt to set fire to and burn a dwelling charged an attempt to commit the crime described and defined as arson. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202, 1950 N.D. LEXIS 131 (N.D. 1950).

An information was not fatally defective for giving offense an erroneous name where it charged that the defendant committed the crime of arson by burning a store and restaurant building. State v. English, 85 N.W.2d 427, 1957 N.D. LEXIS 151 (N.D. 1957).

Collateral References.

Vacancy or nonoccupancy of building as affecting its character as “dwelling” as regards arson, 44 A.L.R.2d 1456.

Mortgagor: burning of building by mortgagor as burning property of another so as to constitute arson, 76 A.L.R.2d 524.

Evidence: admissibility, in prosecution for criminal burning of property, or for maintaining fire hazard, of other fires, 87 A.L.R.2d 891.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.

What constitutes “burning” to justify charge of arson, 28 A.L.R.4th 482.

Admissibility, in criminal case, of evidence discovered by warrantless search in connection with fire investigation, 31 A.L.R.4th 194.

Pyromania and the criminal law, 51 A.L.R.4th 1243.

12.1-21-02. Endangering by fire or explosion.

  1. A person is guilty of an offense if he intentionally starts or maintains a fire or causes an explosion and thereby recklessly:
    1. Places another person in danger of death or bodily injury;
    2. Places an entire or any part of a building or inhabited structure of another or a vital public facility in danger of destruction; or
    3. Causes damage to property of another constituting pecuniary loss in excess of two thousand dollars.
  2. The offense is a class B felony if the actor places another person in danger of death under circumstances manifesting an extreme indifference to the value of human life. Otherwise it is a class C felony.

Source: S.L. 1973, ch. 116, § 20; 1977, ch. 123, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Penalty for failure to extinguish camp or other fire, see N.D.C.C. § 18-08-07.

Setting lands on fire, when lawful, see N.D.C.C. § 18-08-02.

Setting prairie fire, penalty, see N.D.C.C. § 18-08-01.

Collateral References.

Pyromania and the criminal law, 51 A.L.R.4th 1243.

12.1-21-03. Failure to control or report a dangerous fire.

A person who knows that a fire which was started or maintained, albeit lawfully, by him or with his assent is endangering life or a substantial amount of property of another is guilty of a class A misdemeanor if he willfully fails either to take reasonable measures to put out or control the fire when he can do so without substantial risk to himself or to give a prompt fire alarm.

Source: S.L. 1973, ch. 116, § 20.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-21-03.1. Negligent act resulting in fire — Penalty.

It is unlawful for any person to negligently cause a fire to be started in any part of any hotel, motel, roominghouse, lodginghouse, or other place of public abode so as to endanger life or property in any way or to any extent.

  1. The state fire marshal shall print and distribute copies of this section to all hotels, motels, roominghouses, lodginghouses, and other places of public abode in this state and such copies shall be conspicuously displayed in each room of every hotel, motel, roominghouse, lodginghouse, and other place of public abode in this state.
  2. Violation of this section is a class B misdemeanor.

Source: S.L. 1985, ch. 178, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-21-04. Release of destructive forces.

  1. A person is guilty of a class B felony if he intentionally causes a catastrophe by any means and is guilty of a class C felony if he does so willfully.
  2. A person is guilty of a class C felony if he willfully creates a risk of catastrophe, although no fire, explosion, or other destruction results.
  3. A person who knowingly does an act which causes or which he knows is likely to cause a catastrophe, or assents to the doing of such act, is guilty of a class C felony if he willfully fails to take reasonable measures to prevent the catastrophe.
  4. Catastrophe means serious bodily injury to ten or more people or substantial damage to ten or more separate habitations or structures or property loss in excess of five hundred thousand dollars.

Source: S.L. 1973, ch. 116, § 20.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Terrorizing with threats or false information a felony, see N.D.C.C. § 12.1-17-04.

12.1-21-05. Criminal mischief.

  1. A person is guilty of an offense if that person:
    1. Willfully tampers with tangible property of another so as to endanger person or property; or
    2. Willfully damages tangible property of another.
  2. The offense is:
    1. A class B felony if the actor intentionally causes pecuniary loss in excess of ten thousand dollars.
    2. A class C felony if the actor intentionally causes pecuniary loss in excess of two thousand dollars but not in excess of ten thousand dollars or damages tangible property of another by means of an explosive or a destructive device.
    3. A class A misdemeanor if the actor recklessly causes pecuniary loss in excess of two thousand dollars or if the actor intentionally causes pecuniary loss of from one hundred dollars through two thousand dollars.

Otherwise the offense is a class B misdemeanor.

Source: S.L. 1973, ch. 116, § 20; 1977, ch. 124, § 1; 1997, ch. 127, § 1.

Cross-References.

Civil liability for damages, see N.D.C.C. § 32-03-09.2.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Dams, destruction, see N.D.C.C. § 61-01-09.

Highway, injury to, see N.D.C.C. § 24-12-01.

Mileboard or guidepost, injury to, see N.D.C.C. § 24-12-04.

Notes to Decisions

Bankruptcy.

Where a Chapter 7 debtor pled guilty to being an accomplice to criminal mischief in violation of N.D.C.C. § 12.1-03-01 and § 12.1-21-05(1)(b), in connection with vandalism against property of a judgment creditor’s insured, the debtor was not collaterally estopped from seeking a discharge of the debt because the issue of willfulness as decided by the guilty plea was not identical to the issue of willfulness under 11 U.S.C.S. § 523(a)(6); the definition of “willfulness” under N.D.C.C. § 12.1-02-02(1)(e) included reckless conduct, whereas reckless conduct did not satisfy willfulness under 11 U.S.C.S. § 523(a)(6). Acuity v. Wieser (In re Wieser), 2007 Bankr. LEXIS 4493 (Bankr. D.N.D. Apr. 4, 2007).

Due Process.

A police officer’s use of obscenities and alleged death threat against the defendant at the time of his arrest after a high-speed chase did not violate due process so as to require reversal of the conviction for criminal mischief. State v. Erdman, 422 N.W.2d 808, 1988 N.D. LEXIS 106 (N.D. 1988).

Elements.

Damage to tangible personal property is an element of criminal mischief under subdivision (1)(b); thus, both the photographs of the soybean field and the farmer’s testimony were probative of whether or not the defendant damaged tangible property of another, when he drove through a bean field during a high-speed chase. State v. Erdman, 422 N.W.2d 808, 1988 N.D. LEXIS 106 (N.D. 1988).

A defendant who, being pursued by police, drove into and through a bean field in an attempt to escape, could be convicted of criminal mischief for the damage to the bean field. State v. Erdman, 422 N.W.2d 808, 1988 N.D. LEXIS 106 (N.D. 1988).

Evidence.

Where, in a prosecution for criminal mischief, the chase lasted for approximately 14 miles and changed directions several times, the trial court did not abuse its discretion in allowing use of an overhead projector illustrating the route of the chase, as it may have been helpful to the jury in determining whether the defendant willfully drove through a bean field. State v. Erdman, 422 N.W.2d 808, 1988 N.D. LEXIS 106 (N.D. 1988).

Even if a witness’s testimony was inadmissible hearsay, its presentation to the jury was harmless error because other evidence supported the verdict; the jury had ample evidence from which it could infer the damages to a company were greater than $ 10,000 under the criminal mischief statute because in addition to the witness’s testimony, the evidence included twenty-two videos and a notebook. State v. Foster, 2019 ND 28, 921 N.W.2d 454, 2019 N.D. LEXIS 19 (N.D. 2019).

State presented insufficient evidence of defendant’s intent to cause a financial loss greater than $ 10,000 because there was ample evidence in addition to a witness’s testimony about shipping costs from which a jury could infer an intent to cause a financial loss to a company greater than $ 10,000. State v. Foster, 2019 ND 28, 921 N.W.2d 454, 2019 N.D. LEXIS 19 (N.D. 2019).

Evidence was sufficient to convict defendant of conspiring with his co-defendants to cause a financial loss greater than $ 10,000 to a company because a video played for the jury showed defendant and the codefendants discussing their plans; inside a notebook were sticky notes with names of multiple people associated with actions that were part of the coordinated event. State v. Foster, 2019 ND 28, 921 N.W.2d 454, 2019 N.D. LEXIS 19 (N.D. 2019).

Insufficiency of Evidence.

Conviction was reversed, and judgment of acquittal was ordered where only evidence that defendant broke car dealership’s windows consisted of a witness’ testimony that he received a telephone call from a person he had never met but who identified himself as defendant and stated that there were some windows broken. State v. McMorrow, 286 N.W.2d 284, 1979 N.D. LEXIS 325 (N.D. 1979).

Defendant was charged with criminal trespass and criminal mischief under N.D.C.C. §§ 12.1-22-03, 12.1-21-05, based on allegations that he drove his vehicle on his ex-wife’s property and damaged flax planted over the passable portion of the section line. The district court erred in denying defendant’s motion to dismiss and motion for judgment of acquittal, because there existed a legitimate dispute as to whether the road upon which he was alleged to have trespassed became a public road by prescription under N.D.C.C. § 24-07-01. State v. Herzig, 2012 ND 247, 825 N.W.2d 235, 2012 N.D. LEXIS 256 (N.D. 2012).

Mental State Required for Class A Misdemeanor.

Recklessness is required mental state for conviction of a class A misdemeanor pursuant to former language of subdivision (2)(b). State v. Chyle, 297 N.W.2d 409, 1980 N.D. LEXIS 292 (N.D. 1980).

Proof of Damage Amounts.

Amount of damages must be proved beyond a reasonable doubt. State v. Thorson, 264 N.W.2d 441, 1978 N.D. LEXIS 238 (N.D. 1978).

DECISIONS UNDER PRIOR LAW

Malicious Mischief.

Malice was an essential ingredient of the offense of malicious mischief. State v. Minor, 17 N.D. 454, 117 N.W. 528, 1908 N.D. LEXIS 75 (N.D. 1908).

“Maliciously”, as used in former malicious mischief section, had a more restricted meaning than that given to it generally in criminal statutes, and imported a wish or desire to vex, annoy, and injure the owner or possessor of the property. State v. Minor, 17 N.D. 454, 117 N.W. 528, 1908 N.D. LEXIS 75 (N.D. 1908).

Proof of Motive.

A misdemeanor in sowing mustard seed in complainant’s crops could not be shown as a motive for an independent offense of poisoning his horses. State v. Hakon, 21 N.D. 133, 129 N.W. 234, 1910 N.D. LEXIS 155 (N.D. 1910).

Purpose for Destruction.

One claiming land or the right to its use could not destroy or injure property to regain possession. State v. Spitzer, 55 N.D. 774, 215 N.W. 270, 1927 N.D. LEXIS 157 (N.D. 1927).

Treble Damages.

A jury could award treble damages in a general verdict, or the court could require the jury to return a verdict on the actual damages with a special finding on the question of malice, and then could award treble damages thereon. Wacker v. Mertz, 41 N.D. 620, 171 N.W. 830, 1919 N.D. LEXIS 101 (N.D. 1919).

Collateral References.

Validity and construction of statute making it a criminal offense to “tamper” with motor vehicle or contents, or to obscure registration plates, 57 A.L.R.3d 606.

12.1-21-06. Tampering with or damaging a critical infrastructure facility or a public service — Penalty.

  1. An individual may not cause a substantial interruption or impairment of a critical infrastructure facility or a public service by:
    1. Tampering with or damaging the tangible property of another;
    2. Incapacitating an operator of a critical infrastructure facility or a public service;
    3. Damaging, destroying, vandalizing, defacing, or tampering with equipment in a critical infrastructure facility;
    4. Damaging, destroying, vandalizing, defacing, impeding, inhibiting, or tampering with the operations of a critical infrastructure facility; or
    5. Interfering, inhibiting, impeding, or preventing the construction or repair of a critical infrastructure facility.
  2. A violation of this section is a class C felony if the actor engages in the conduct intentionally and a class A misdemeanor if the actor engages in the conduct knowingly or recklessly. Otherwise it is a class B misdemeanor.
  3. This section does not apply to an employee or contractor acting within the scope of the employee’s or contractor’s employment. As used in this subsection, “employee or contractor” means any person hired or under contract to provide services to a critical infrastructure facility or public service.
  4. An organization that has pled guilty or been convicted of a violation under section 12.1-06-04 for conspiring with an individual who has pled guilty or been convicted under subsection 1 must be assessed a fine equivalent to the penalty authorized by subsection 2 for each individual who has pled guilty or been convicted under subsection 1, not to exceed one hundred thousand dollars.
  5. This section may not be construed to prevent or prohibit lawful assembly and peaceful and orderly petition for the redress of grievances, including a labor dispute between an employer and its employee.
  6. As used in this section, “critical infrastructure facility” includes:
    1. A petroleum or alumina refinery;
    2. An electrical power generating facility, substation, switching station, electrical control center, or electric power line and associated equipment infrastructure;
    3. A chemical, polymer, or rubber manufacturing facility;
    4. A drinking water source, water transmission line, water treatment plant, water distribution system, ground water monitoring well, waste water treatment plant, or waste water collection system;
    5. A natural gas compressor station;
    6. A liquid natural gas terminal or storage facility;
    7. Wireline telecommunications and internet infrastructure, including central offices, fiber optic lines, cable lines, and all additional equipment associated with the provision of broadband or telecommunication services;
    8. Wireless telecommunications infrastructure, including a cell tower, telephone pole or line, including a fiber optic line;
    9. A port, railroad switching yard, railroad track, trucking terminal, or other freight transportation facility;
    10. A gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas or a natural gas liquid;
    11. A transmission facility used by a federally licensed radio or television station;
    12. A steel-making facility using an electric arc furnace to make steel;
    13. A facility identified and regulated by the United States department of homeland security chemical facility anti-terrorism standards program;
    14. A dam regulated by the state or federal government;
    15. A natural gas transmission or distribution utility facility, including a pipeline interconnection, a city gate or town border station, a metering station, below or aboveground piping, a regulator station, and a natural gas storage facility;
    16. A crude oil or refined product storage and distribution facility, including a valve site, pipeline interconnection, pump station, metering station, below or aboveground pipeline or piping, and a truck loading or offloading facility;
    17. Any below or aboveground portion of an oil, gas, hazardous liquid, or chemical pipeline, tank, railroad facility, or other storage facility;
    18. An oil and gas production site; and
    19. A site or location designated or approved for the construction of a facility described in this subsection.

Source: S.L. 1973, ch. 116, § 20; 2019, ch. 110, § 1, effective August 1, 2019.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Interception of communications, correspondence, see N.D.C.C. §§ 12.1-15-02, 12.1-15-03, 12.1-15-05.

Unlawful use of telecommunications devices, see N.D.C.C. § 8-10-07.2.

DECISIONS UNDER PRIOR LAW

Sufficient Evidence.

Where there could be little doubt that defendant deliberately planned the destruction of new and secondhand cars and other property by fire in order to defraud the insurer, and where there was evidence from which the jury could find that defendant had the opportunity as well as the will and the motive to set the fire, then the evidence was sufficient to sustain a conviction. State v. Isensee, 64 N.D. 1, 249 N.W. 898, 1933 N.D. LEXIS 241 (N.D. 1933).

Although evidence of defendant standing with her feet on the railroad tracks and her knowledge that her presence was unauthorized due to law enforcement commands was sufficient to establish that she was in an unauthorized place, there was no evidence that she had changed, altered, or harmed the tracks in any way, and thus, her actions did not constitute tampering under N.D.C.C. § 12.1-21-06. State v. Jessee, 2018 ND 241, 919 N.W.2d 335, 2018 N.D. LEXIS 253 (N.D. 2018).

Tampering Definition.

Definition in N.D.C.C. § 49-04.1-01(3) is neither controlling nor persuasive in defining tampering under N.D.C.C. § 12.1-21-06. State v. Jessee, 2018 ND 241, 919 N.W.2d 335, 2018 N.D. LEXIS 253 (N.D. 2018).

Collateral References.

Validity and construction of statute making it a criminal offense to “tamper” with motor vehicle or contents, or to obscure registration plates, 57 A.L.R.3d 606.

12.1-21-06.1. Interference with telephone during emergency call.

A person is guilty of an offense if that person removes, damages, or obstructs any telephone or telephone line or any part or apparatus on the line, or severs any wire connected to the line, so as to interfere with an emergency telephone call. The offense is a class C felony if it was done intentionally. The offense is a class A misdemeanor if it was done knowingly or recklessly.

Source: S.L. 1999, ch. 127, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Sufficiency of Evidence.

It was reasonable for the jury to find defendant guilty of interference with an emergency call because there was evidence in the record suggesting defendant intentionally removed a phone from his wife’s possession and obstructed her attempt to make an emergency phone call; the wife testified defendant told her she could not call 911, grabbed the phone from her, and threw it on the couch. State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

12.1-21-07. Consent as a defense.

Whenever in this chapter it is an element of the offense that the property is of another, it is a defense to a prosecution under those sections that the other has consented to the actor’s conduct with respect to the property.

Source: S.L. 1973, ch. 116, § 20.

12.1-21-08. Definitions.

In this chapter:

  1. “Inhabited structure” means a structure or vehicle:
    1. Where any person lives or carries on business or other calling;
    2. Where people assemble for purposes of business, government, education, religion, entertainment, or public transportation; or
    3. Which is used for overnight accommodation of persons.
  2. Property is that “of another” if anyone other than the actor has a possessory or proprietary interest therein.
  3. “Vital public facility” includes a facility maintained for use as a bridge (whether over land or water), dam, tunnel, wharf, communications installation, or power station.

Any structure or vehicle is deemed to be “inhabited” regardless of whether a person is actually present. If a building or structure is divided into separately inhabited units, any unit which is property of another constitutes an inhabited structure of another.

Source: S.L. 1973, ch. 116, § 20.

12.1-21-09. Tampering with, disabling, or falsely sounding a fire alarm — Tampering with or disabling fire suppression equipment.

  1. A person may not tamper with, disable, or falsely sound an alarm signifying a fire in a hotel, motel, roominghouse, lodginghouse, or other place of public abode or in any other public place so as to endanger person or property. A person does not violate this subsection if that person sounds an alarm and has a reasonable belief there is a fire endangering person or property.
  2. A person may not tamper with or disable fire suppression equipment in a hotel, motel, roominghouse, lodginghouse, or other place of abode or in any other public place so as to endanger person or property.
  3. A violation of this section is a class B misdemeanor.

Source: S.L. 2003, ch. 107, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-21.1 Animal Research Facility Damage

12.1-21.1-01. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Animal” means any living organism that is used in food, fur, or fiber production, agriculture, research, testing, or education. The term does not include a human being, plant, or bacteria.
  2. “Animal facility” means any vehicle, building, structure, research facility, premises, or defined area where an animal is kept, handled, housed, exhibited, bred, or offered for sale.
  3. “Deprive” means to:
    1. Withhold an animal or other property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the animal or property is lost to the owner;
    2. Restore the animal or property only upon payment of a reward or other compensation; or
    3. Dispose of an animal or other property in a manner that makes recovery of the animal or property by the owner unlikely.
  4. “Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if:
    1. Induced by force or threat;
    2. Given by a person the offender knows is not legally authorized to act for the owner; or
    3. Given by a person who by reason of age, mental disease or defect, or influence of drugs or alcohol is known by the offender to be unable to make a reasonable decision.
  5. “Owner” means a person who has title to the property, possession of the property, or a greater right to possession of the property than the actor.
  6. “Possession” means actual care, custody, control, or management.
  7. “Research facility” means any place at which any scientific test, experiment, or investigation involving the use of any living animal is carried out, conducted, or attempted.

Source: S.L. 1991, ch. 125, § 1.

12.1-21.1-02. Animal facility — Damage or destruction.

No person without the effective consent of the owner may:

  1. Intentionally damage or destroy an animal facility, an animal or property in or on the animal facility, or any enterprise conducted at the animal facility.
  2. Acquire or otherwise exercise control over an animal facility or an animal or other property from an animal facility with the intent to deprive the owner and to damage the enterprise conducted at the facility.
  3. Enter an animal facility, not then open to the public, with intent to commit an act prohibited by this section.
  4. Enter an animal facility and remain concealed with intent to commit an act prohibited by this section.
  5. Enter an animal facility and commit or attempt to commit an act prohibited by this section.
  6. Enter an animal facility and use or attempt to use a camera, video recorder, or any other video or audio recording equipment.
  7. Intentionally turn out or release any animal in or on an animal facility.

This section does not apply to lawful activities of a governmental agency carrying out its duties under law.

Source: S.L. 1991, ch. 125, § 2.

12.1-21.1-03. Entry forbidden — Notice.

No person may without the effective consent of the owner, and with the intent to damage the enterprise conducted at the animal facility, enter or remain on an animal facility, if the person had notice that the entry was forbidden or received notice to depart but failed to do so. Notice includes communication by the owner or someone with apparent authority to act for the owner, fencing or other enclosures designed to exclude intruders or to contain animals, or a sign posted on the property or at the entrance to the animal facility indicating that entry is forbidden.

Source: S.L. 1991, ch. 125, § 3.

12.1-21.1-04. Penalty.

A person who violates subsection 1 of section 12.1-21.1-02 is guilty of a class B felony if there is damage of ten thousand dollars or more, a class C felony if there is damage of at least five hundred dollars but less than ten thousand dollars, and a class A misdemeanor if there is damage of less than five hundred dollars. A person who violates subsections 2 through 5 or 7 of section 12.1-21.1-02 is guilty of a class C felony. A person who violates subsection 6 of section 12.1-21.1-02 is guilty of a class B misdemeanor.

Source: S.L. 1991, ch. 125, § 4.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-21.1-05. Civil action.

A person who has been damaged by reason of violation of this chapter may bring an action in the district court against the person causing the damage to recover an amount equal to three times all actual and consequential damages and court costs and reasonable attorney fees.

This chapter does not affect any other rights of a person who has been damaged by reason of violation of this chapter.

Source: S.L. 1991, ch. 125, § 5.

CHAPTER 12.1-22 Robbery — Breaking and Entering Offenses

12.1-22-01. Robbery.

  1. A person is guilty of robbery if, in the course of committing a theft, he inflicts or attempts to inflict bodily injury upon another or threatens or menaces another with imminent bodily injury.
  2. Robbery is a class A felony if the actor fires a firearm or explodes or hurls a destructive device or directs the force of any other dangerous weapon against another. Robbery is a class B felony if the robber possesses or pretends to possess a firearm, destructive device, or other dangerous weapon, or menaces another with serious bodily injury, or inflicts bodily injury upon another, or is aided by an accomplice actually present. Otherwise robbery is a class C felony.
  3. In this section:
    1. An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft, whether or not the theft is successfully completed, or in immediate flight from the commission of, or an unsuccessful effort to commit, the theft.
    2. “Dangerous weapon” means a weapon defined in subsection 6 of section 12.1-01-04 or a weapon the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury.

Source: S.L. 1973, ch. 116, § 21.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Prosecution for robbery committed outside this state, see N.D.C.C. § 29-03-01.1.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Theft offenses, see N.D.C.C. ch. 12.1-23.

Notes to Decisions

Evidence.
—Sufficiency of Evidence.

Evidence that defendant put robbery victim in a headlock and demanded five dollars was sufficient to sustain robbery conviction. State v. McKing, 1999 ND 81, 593 N.W.2d 342, 1999 N.D. LEXIS 72 (N.D. 1999).

Lesser Included Offense.

District court did not err in refusing to give jury instruction on theft as lesser included offense in robbery prosecution; under N.D.C.C. § 12.1-23-02 theft requires the taking of property of another, which is not an element of the offense of robbery. State v. McKing, 1999 ND 81, 593 N.W.2d 342, 1999 N.D. LEXIS 72 (N.D. 1999).

Unloaded or Toy Weapon.

A person who uses an unloaded or toy weapon during a robbery is subject to an aggravated penalty because of the “heightened fear” the presence of a weapon creates in the victim. State v. Clinkscales, 536 N.W.2d 661, 1995 N.D. LEXIS 152 (N.D. 1995).

DECISIONS UNDER PRIOR LAW

Instructions on Intent.

It was the duty of the court to charge that to constitute robbery the property taking must have been with an intent to steal, whether such charge was requested or not. State v. Fordham, 13 N.D. 494, 101 N.W. 888, 1904 N.D. LEXIS 67 (N.D. 1904).

Collateral References.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 124 A.L.R. 5th 657.

Other robberies, admissibility of evidence of, 42 A.L.R.2d 854.

Gambling or lottery paraphernalia as subject of robbery, 51 A.L.R.2d 1396.

Validity and construction of Federal Bank Robbery Act, 59 A.L.R.2d 946.

Stolen money or property as subject of robbery, 89 A.L.R.2d 1435.

Purse snatching as robbery or theft, 42 A.L.R.3d 1381.

Former jeopardy: prosecution for robbery of one person as bar to subsequent prosecution for robbery committed of another person at the same time, 51 A.L.R.3d 693.

Exclusive possession: what amounts to “exclusive” possession of stolen goods to support inference of burglary or other felonious taking, 51 A.L.R.3d 727.

Retaking of money lost at gambling as robbery or larceny, 77 A.L.R.3d 1363.

Robbery by means of toy or simulated gun or pistol, 81 A.L.R.3d 1006.

Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309.

Use of force or intimidation in retaining property or in attempting to escape, rather than in taking property, as element of robbery, 93 A.L.R.3d 643.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 A.L.R.3d 287.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 A.L.R.4th 481.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 7 A.L.R.4th 607.

Walking cane as deadly or dangerous weapon for purpose of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 1268.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Robbery: Identification of victim as person named in indictment or information, 4 A.L.R.6th 577.

Parts of Human Body, other than Feet, as Deadly or Dangerous Weapons or Instrumentalities for Purposes of Statutes Aggravating Offenses such as Assault and Robbery. 67 A.L.R.6th 103.

What constitutes “puts in jeopardy” within enhanced penalty provision of Federal Bank Robbery Act (18 USCS sec. 2113(d)), 32 A.L.R. Fed. 279.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.

12.1-22-02. Burglary.

  1. A person is guilty of burglary if he willfully enters or surreptitiously remains in a building or occupied structure, or a separately secured or occupied portion thereof, when at the time the premises are not open to the public and the actor is not licensed, invited, or otherwise privileged to enter or remain as the case may be, with intent to commit a crime therein.
  2. Burglary is a class B felony if:
    1. The offense is committed at night and is knowingly perpetrated in the dwelling of another; or
    2. In effecting entry or while in the premises or in immediate flight therefrom, the actor inflicts or attempts to inflict bodily injury or physical restraint on another, or menaces another with imminent serious bodily injury, or is armed with a firearm, destructive device, or other weapon the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury.

Otherwise burglary is a class C felony.

Source: S.L. 1973, ch. 116, § 21.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sentencing of violent offenders, see N.D.C.C. § 12.1-32-09.1.

Notes to Decisions

Accomplices.

Where all the material elements of the crime of accomplice to burglary were established by testimony of defendant’s accomplice, and his testimony was adequately corroborated by direct testimony of others and by the introduction of various physical evidence seized from vehicle pursuant to a search warrant, there was substantial evidence to support the jury’s verdict that defendant acted as an accomplice to burglary. State v. Haugen, 448 N.W.2d 191, 1989 N.D. LEXIS 215 (N.D. 1989).

Circumstantial Evidence.

The element of entry for the purposes of committing a burglary may be proved by circumstantial evidence. State v. Olson, 290 N.W.2d 664, 1980 N.D. LEXIS 215 (N.D. 1980).

Forceable Entry.

Forceable entry is not a necessary element of the crime of burglary. State v. Olson, 290 N.W.2d 664, 1980 N.D. LEXIS 215 (N.D. 1980).

Intent to Commit a Crime Therein.
—In General.

Element of the crime of burglary requiring that entry be with intent to commit a crime therein was satisfied where defendants broke into a building with the intent to turn on a switch to activate the gasoline pumps located outside the building so that they could steal gasoline from the pumps. State v. Arne, 311 N.W.2d 186, 1981 N.D. LEXIS 390 (N.D. 1981).

To sustain a conviction for burglary, there must be proof that the offender intended to commit a crime in the building or structure which he has entered. State v. Arne, 311 N.W.2d 186, 1981 N.D. LEXIS 390 (N.D. 1981).

Specific crime intended to be committed in the premises is not an element of burglary under N.D.C.C. § 12.1-22-02(1). State v. Mertz, 2012 ND 145, 818 N.W.2d 782, 2012 N.D. LEXIS 129 (N.D. 2012).

—Criminal Sexual Activity.

Although burglary itself does not contain criminal sexual activity, where the underlying crime was viewed as sexual in nature, the court could find that defendant intended to commit a sexual assault at the woman’s home on the evening in question. State v. Shepherd, 554 N.W.2d 821, 1996 N.D. LEXIS 234 (N.D. 1996).

Jury Instructions.
—Intent to Deprive.

Where the element of intent to deprive the owner of his property was never contested by the defendant at trial, the court, when it included the intent to deprive element in its jury instructions, did not commit an obvious error. State v. Woehlhoff, 540 N.W.2d 162, 1995 N.D. LEXIS 224 (N.D. 1995).

—“Otherwise Privileged.”

Where, in a burglary trial, the court defined “otherwise privileged” as having some legal right to enter the premises, this definition was not so necessarily erroneous and misleading so as to cause prejudice to the substantial rights of the defendant. State v. Haugen, 458 N.W.2d 288, 1990 N.D. LEXIS 148 (N.D. 1990).

—Specific Crime Intended Not an Element.

Because the specific crime intended to be committed in the premises was not an element of burglary under N.D.C.C. § 12.1-22-02(1), the jury instruction stating the State was required to prove defendant “then and there intended to commit a crime in the premises” correctly informed the jury of the applicable law, and, under N.D.C.C. § 29-22-05, the district court did not err by referring the jury to the jury instructions in its response to a jury question. State v. Mertz, 2012 ND 145, 818 N.W.2d 782, 2012 N.D. LEXIS 129 (N.D. 2012).

“Privileged.”

A person is “privileged” within the meaning of a burglary statute if he may naturally be expected to be on the premises often and in the natural course of his duties or habits; further, a person who is privileged may still commit a burglary if he enters at a time when he would not reasonably be expected to be present or if he goes into a room as to which his privilege does not extend. State v. Haugen, 458 N.W.2d 288, 1990 N.D. LEXIS 148 (N.D. 1990).

Probable Cause for Arrest

Denial of suppression motion was affirmed because officers had probable cause to arrest an individual lying in the back seat of a vehicle for physical obstruction of government function, preventing arrest and burglary, where, during the investigation of a burglary the officers observed defendant and his companion in the vehicle and observed gloves, a hammer and a crowbar, and the occupants refused to open the vehicle and the officers had a locksmith open the vehicle. The officers’ use of a locksmith to open the vehicle to effectuate the arrest of the occupants was eminently reasonable under the Fourth Amendment, seizure of the evidence would have been justified under the plain view doctrine or as incident to a lawful arrest, and the officers’ use of caution in obtaining a search warrant before proceeding further and their subjective beliefs as to the existence or nonexistence of reasonable suspicion and probable cause were of no moment. State v. Washington, 2007 ND 138, 737 N.W.2d 382, 2007 N.D. LEXIS 138 (N.D. 2007).

Sufficiency of Evidence.

Evidence held sufficient to support conviction of burglary. State v. Matuska, 379 N.W.2d 273, 1985 N.D. LEXIS 455 (N.D. 1985).

Evidence held sufficient to sustain the conviction of defendant for burglary and arson. State v. Lambert, 539 N.W.2d 288, 1995 N.D. LEXIS 182 (N.D. 1995).

Circumstantial evidence was sufficient to support convictions for murder, gross sexual imposition, and burglary where the victim was sexually assaulted and murdered in her home, items of the victim’s property were found in defendant’s possession, DNA evidence and fingerprints implicated defendant, items belonging to defendant were found in the victim’s home, and defendant had injuries that were consistent with the victim’s attempt to defend herself. State v. Charette, 2004 ND 187, 687 N.W.2d 484, 2004 N.D. LEXIS 316 (N.D. 2004).

Evidence was sufficient to convict defendant of burglary under N.D.C.C. § 12.1-22-02(1) as the State was not required to show that defendant entered the residence with intent to commit the specific crime of theft, he did not have permission to enter the residence and take the television, and he entered the residence with the intent to commit a crime. State v. Mertz, 2012 ND 145, 818 N.W.2d 782, 2012 N.D. LEXIS 129 (N.D. 2012).

Evidence was sufficient to sustain defendant’s conviction of conspiracy to commit burglary against defendant’s son-in-law, because the jury could properly infer the discussions between defendant and his acquaintance of taking the son-in-law’s items, and their later discovery in the acquaintance’s possession, evidenced an agreement to burglarize the son-in-law’s home. State v. Kirkpatrick, 2012 ND 229, 822 N.W.2d 851, 2012 N.D. LEXIS 224 (N.D. 2012).

Taking of Property.

There is no requirement that property must actually have been taken in order for a burglary to have been committed. State v. Olson, 290 N.W.2d 664, 1980 N.D. LEXIS 215 (N.D. 1980).

DECISIONS UNDER PRIOR LAW

Larceny.

Burglary and larceny could not be charged as a single offense. State v. Smith, 2 N.D. 515, 52 N.W. 320, 1892 N.D. LEXIS 35 (N.D. 1892).

Lesser Offense.

One charged with burglary by breaking and entering a building with intent to steal could be convicted of unlawfully entering the building. State v. Tough, 12 N.D. 425, 96 N.W. 1025, 1903 N.D. LEXIS 41 (N.D. 1903); State v. Balliet, 61 N.D. 703, 240 N.W. 604, 1932 N.D. LEXIS 247 (N.D. 1932).

Sufficient Evidence.

Defendant was properly convicted of burglary where evidence established that defendant and three others had agreed to burglarize building and skylight was broken by accomplice in order to enter building with intent to steal and such “breaking” was overt act tending directly toward commission of the crime for which defendant was accountable as principal. State v. Anderson, 172 N.W.2d 597, 1969 N.D. LEXIS 67 (N.D. 1969).

Defendant’s apprehension while fleeing from building in which police found jimmied doors through which entry appeared to have been gained, broken lock on office door, and office safe loaded onto and tied to a dolly was sufficient evidence to convict defendant of burglary. State v. Ankney, 195 N.W.2d 547, 1972 N.D. LEXIS 118 (N.D. 1972).

Evidence that burglar alarm sounded in building, police converged on the building within seconds, alarm sounded again as police watched, defendant ran from shadow near door which opened from inside only and was wearing dark clothing, gloves, and ski mask, and several windows had been broken was sufficient to sustain verdict of guilty under this section. State v. De Priest, 206 N.W.2d 859, 1973 N.D. LEXIS 160 (N.D. 1973).

Collateral References.

Outbuildings or the like as part of “dwelling house,” 43 A.L.R.2d 831.

Gambling or lottery paraphernalia as subject of burglary, 51 A.L.R.2d 1396.

Motor vehicle, burglary or breaking and entering of, 79 A.L.R.2d 286.

Night, sufficiency of showing that burglary was committed at, 82 A.L.R.2d 643.

Construction and application of statutes relating to burglars’ tools, 33 A.L.R.3d 798.

Door: breaking and entering of inner door of building as burglary, 43 A.L.R.3d 1147.

Vending machine: criminal prosecution based upon breaking into or taking money or goods from vending machine or other coin operated machine, 45 A.L.R.3d 1286.

Exclusive possession: what amounts to “exclusive” possession of stolen goods to support inference of burglary or other felonious taking, 51 A.L.R.3d 727.

What constitutes “recently” stolen property within rule inferring guilt from unexplained, possession of such property, 89 A.L.R.3d 1202.

Applicability of best evidence rule to proof of ownership of allegedly stolen property in prosecution for theft, 94 A.L.R.3d 824.

Occupant’s absence from residential structure as affecting nature of offense as burglary or breaking and entering, 20 A.L.R.4th 349.

Maintainability of burglary charge, where entry into building is made with consent, 58 A.L.R.4th 335.

What is “building” or “house” within burglary or breaking and entering statute, 68 A.L.R.4th 425.

Burglary, breaking, or entering of motor vehicle, 72 A.L.R.4th 710.

Minor’s entry into home of parent as sufficient to sustain burglary charge, 17 A.L.R.5th 111.

Use of fraud or trick as “constructive breaking” for purpose of burglary or breaking and entering offense, 17 A.L.R.5th 125.

12.1-22-03. Criminal trespass — Noncriminal offense on posted property.

  1. An individual is guilty of a class C felony if, knowing the individual is not licensed or privileged to do so, the individual enters or remains in a dwelling or in highly secured premises.
  2. An individual is guilty of a class A misdemeanor if, knowing the individual is not licensed or privileged to do so, the individual:
    1. Enters or remains in or on any building, occupied structure, or storage structure, or separately secured or occupied portion thereof; or
    2. Enters or remains in any place enclosed by a fence or otherwise enclosed as manifestly to exclude intruders, unless the individual is a licensed hunter or angler who is lawfully hunting or fishing. For purposes of this subdivision, “fence” means a permanent structure on nonurban, private property which is maintained and capable of containing livestock.
    1. An individual is guilty of a class B misdemeanor if, knowing the individual is not licensed or privileged to do so, the individual enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the owner or an individual authorized by the owner or by posting in a manner reasonably likely to come to the attention of intruders. The name of the person posting the premises must appear on each sign in legible characters.
    2. Even if the conduct of the owner or individual authorized by the owner varies from the provisions of subdivision a, an individual may be found guilty of violating subdivision a if the owner or individual authorized by the owner substantially complied with subdivision a and notice against trespass is clear from the circumstances.
    3. An individual who violates subdivision a is guilty of a class A misdemeanor for the second or subsequent offense within a two-year period.
    1. A peace officer may cite an individual who, knowing the individual is not licensed or privileged to do so, entered or remained in a place as to which notice against trespass is given by posting in a manner reasonably likely to come to the attention of intruders or a place enclosed by a fence as defined in subsection 2, with a noncriminal offense. An individual cited under this subsection may not be prosecuted under subsection 2 or 3 for the same offense.
    2. The fine for a citation under subdivision a is two hundred fifty dollars for each violation.
    3. The peace officer citing the individual shall:
      1. Take the name and address of the individual; and
      2. Notify the individual of the right to request a hearing if posting bond by mail.
    4. The peace officer may not take the individual into custody or require the individual to proceed with the peace officer to any other location for the purpose of posting bond. The officer shall provide the individual with an envelope for use in mailing the bond.
    5. An individual cited may appear before the designated official and pay the statutory fine for the violation at or before the time scheduled for hearing.
    6. If the individual has posted bond, the individual may forfeit bond by not appearing at the designated time.
    7. If the individual posts bond by mail, the bond must be submitted within fourteen days of the date of the citation and the individual cited shall indicate on the envelope or citation whether a hearing is requested. If the individual does not request a hearing within fourteen days of the date of the citation, the bond is deemed forfeited and the individual is deemed to have admitted to the violation and to have waived the right to a hearing on the issue of commission of the violation. If the individual requests a hearing, the court for the county in which the citation is issued shall issue a summons to the individual requesting the hearing notifying the individual of the date of the hearing before the designated official.
    8. Upon appearing at the hearing scheduled in the citation or otherwise scheduled at the individual’s request, the individual may make a statement in explanation of the individual’s action. The official may at that time waive or suspend the statutory fine or bond.
    9. A citing peace officer may not receive the statutory fine or bond.
    10. The bond required to secure appearance before the judge must be identical to the statutory fine established in subdivision b.
  3. An individual is guilty of a class B misdemeanor if that individual remains upon the property of another after being requested to leave the property by a duly authorized individual. An individual who violates this subsection is guilty of a class A misdemeanor for the second or subsequent offense within a two-year period.
  4. This section does not apply to a peace officer in the course of discharging the peace officer’s official duties.

Source: S.L. 1973, ch. 116, § 21; 1989, ch. 165, § 1; 1991, ch. 126, § 1; 1991, ch. 127, § 1; 1997, ch. 121, § 2; 2007, ch. 127, § 1; 2017, ch. 102, § 1, effective February 23, 2017; 2021, ch. 182, § 1, effective August 1, 2021.

Notes to Decisions

Acquittal.

Defendant was convicted of criminal trespass under N.D.C.C. § 12.1-22-03, based on allegations that he drove his vehicle on his ex-wife’s property and damaged flax planted over the passable portion of the section line. The district court erred in denying defendant’s motion to dismiss and motion for judgment of acquittal, because there existed a legitimate dispute as to whether the road upon which he was alleged to have trespassed became a public road by prescription under N.D.C.C. § 24-07-01. State v. Herzig, 2012 ND 247, 825 N.W.2d 235, 2012 N.D. LEXIS 256 (N.D. 2012).

Application.

First defendant and second defendants’ claim had to be rejected that because a private individual who entered their farmstead would be guilty of criminal trespass, the deputy sheriff and game warden who did so regarding the first defendant and second defendants’ illegal shooting of a deer on a wildlife refuge violated their reasonable expectation of privacy. Peace officers discharging their officials duties were exempt from North Dakota’s criminal trespass statute, N.D.C.C. § 12.1-22-03(5). State v. Mittleider, 2011 ND 242, 809 N.W.2d 303, 2011 N.D. LEXIS 242 (N.D. 2011).

Plain reading of the statute indicates the fence must be enclosed in a manner that obviously excludes intruders before an individual is guilty of trespass, fences differ in size, materials of construction, and purpose, and one fence may clearly communicate that trespassers are not allowed while another fence may not; accordingly, whether a fence is so enclosed that it obviously excludes intruders is a finding of fact, not a matter or law. State v. Bearrunner, 2019 ND 29, 921 N.W.2d 894, 2019 N.D. LEXIS 29 (N.D. 2019).

N.D.C.C. § 20.1-01-17 does not create an exception to N.D.C.C. § 12.1-22-03; instead, it creates a separate offense imposing a separate penalty that includes the loss of hunting privileges. State v. Bearrunner, 2019 ND 29, 921 N.W.2d 894, 2019 N.D. LEXIS 29 (N.D. 2019).

Evidence Insufficient.

Insufficient evidence supported a juvenile’s criminal trespass conviction because nothing showed a name was on the sign posting the premises on which the juvenile allegedly trespassed or that this requirement was substantially complied with. K.V. v. A.V., 2019 ND 255, 934 N.W.2d 879, 2019 N.D. LEXIS 259 (N.D. 2019).

Evidence Sufficient.

Where the defendant entered a friend’s unlocked home at 2 a.m. while intoxicated, brandished a knife, stabbed the friend’s dog, told the friend he was there to kill him, and the friend yelled for his daughter to secure help by calling 911, the evidence was sufficient to sustain the jury’s finding that the defendant had neither privilege nor license to enter the house. State v. Delaney, 1999 ND 189, 601 N.W.2d 573, 1999 N.D. LEXIS 219 (N.D. 1999).

Evidence was sufficient to sustain a criminal trespass conviction where defendant admitted that he received the divorce decree, which awarded his ex-wife the parties’ home, the ex-wife testified that she informed defendant that he could not come to the house without her approval, and defendant admitted that he had been told not to come to the house without her approval. The ex-wife testified that she did not receive a phone call from defendant, but awoke and discovered him in her residence, and defendant admitted that he entered the house through the window. State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Defendant’s conviction for conviction of class A misdemeanor criminal trespass was supported by substantial evidence because defendant and protesters were aware a fence was intended to exclude intruders and chose to disregard their obvious exclusion in an act of civil disobedience; after entering the pasture, the protesters engaged in an extraordinary intrusion by constructing tepees and building a sizeable bonfire, and they refused to leave when informed they were on private property. State v. Bearrunner, 2019 ND 29, 921 N.W.2d 894, 2019 N.D. LEXIS 29 (N.D. 2019).

False Arrest.

In action by plaintiff against defendant for instigating a false arrest for criminal trespass defendant was entitled to summary judgment where defendant was justified in calling police for assistance when plaintiff refused to leave defendant’s office, which plaintiff conceded in his affidavit. Wishnatsky v. Bergquist, 550 N.W.2d 394, 1996 N.D. LEXIS 156 (N.D.), cert. denied, 519 U.S. 895, 117 S. Ct. 240, 136 L. Ed. 2d 169, 1996 U.S. LEXIS 5876 (U.S. 1996).

Police officers were immune from claim under 42 USCS § 1983, where they advised plaintiff he was not privileged to be in university student lounge and gave him notice he was trespassing; reasonable officers could have believed there was probable cause to arrest plaintiff for trespassing. Wishnatsky v. Bergquist, 550 N.W.2d 394, 1996 N.D. LEXIS 156 (N.D.), cert. denied, 519 U.S. 895, 117 S. Ct. 240, 136 L. Ed. 2d 169, 1996 U.S. LEXIS 5876 (U.S. 1996).

Hearsay Evidence.

In prosecution for criminal trespass, the error of admitting hearsay evidence regarding the location of persons who had broken into automobiles was prejudicial because the appellate court could conclude that the jury verdict was not affected by the error in any way. State v. Jensen, 418 N.W.2d 776, 1988 N.D. LEXIS 37 (N.D. 1988).

“Licensed.”

In criminal trespass statute “licensed” refers to a consensual entry while “privileged” refers to a nonconsensual entry where the actor may naturally be expected to be on the premises often and in the normal course of his duties or habits. State v. Ronne, 458 N.W.2d 294, 1990 N.D. LEXIS 144 (N.D. 1990).

“Licensed” means a consensual entry. State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Privilege.

The privilege referred to in this section is the freedom or authority to act and to use the property; privilege of confidential communication between husband and wife, N.D.R.Ev. 504, is not applicable to this section. State v. Mehralian, 301 N.W.2d 409, 1981 N.D. LEXIS 246 (N.D. 1981).

Where wife left her husband and moved in with her parents, and wife’s father told her husband that he was not welcome in the parents’ home, husband had no privilege to enter the parents’ home to visit his wife. State v. Mehralian, 301 N.W.2d 409, 1981 N.D. LEXIS 246 (N.D. 1981).

As referred to in this section, “privilege” is the freedom or authority to act and to use property. State v. Ronne, 458 N.W.2d 294, 1990 N.D. LEXIS 144 (N.D. 1990); State v. Purdy, 491 N.W.2d 402, 1992 N.D. LEXIS 195 (N.D. 1992).

Reasonable and Articulable Suspicion.

Where, shortly after midnight, officers responded to a call that a person was knocking on an inhabitant’s door, and found defendant and a companion at the inhabitant’s door, they had a reasonable and articulable suspicion that defendant was engaged in unlawful activity and were justified in temporarily detaining him. State v. Parizek, 2004 ND 78, 678 N.W.2d 154, 2004 N.D. LEXIS 170 (N.D. 2004).

Collateral References.

Trespass: state prosecution for unauthorized entry or occupation, for public demonstration purposes, of business, industrial, or utility premises, 41 A.L.R.4th 773.

Entry on private lands in pursuit of wounded game as criminal trespass, 41 A.L.R.4th 805.

Law Reviews.

North Dakota Supreme Court Review (State v. Bertram), 82 N.D. L. Rev. 1033 (2006).

North Dakota Supreme Court Review (State v. Rogers, 2007 ND 68, 730 N.W.2d 859 (2007)), see 84 N.D. L. Rev. 567 (2008).

12.1-22-03.1. Surreptitious intrusion. [Repealed]

Repealed by S.L. 2001, ch. 134, § 11.

12.1-22-04. Unlawful entry into or concealment within a vehicle.

  1. A person is guilty of an offense if, knowing that the person is not licensed or privileged to do so, the person:
    1. Forcibly enters a vehicle, vessel, or aircraft;
    2. Enters a vehicle, vessel, or aircraft, without the use of force, with intent to commit a crime; or
    3. Enters a vehicle, vessel, or aircraft lawfully, and with the intent to commit a crime, conceals oneself in the vehicle, vessel, or aircraft.
  2. The offense is a class B felony if the actor is armed with a firearm, destructive device, or other weapon the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury. Otherwise the offense is a class C felony.

Source: S.L. 1973, ch. 116, § 21; 1995, ch. 130, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Sentencing.

Where there was no indication in the record that the trial court considered an impermissible factor in sentencing defendant accused of breaking into a vehicle, imposition of maximum penalty of five years’ imprisonment was not error. State v. Manhattan, 453 N.W.2d 758, 1990 N.D. LEXIS 62 (N.D. 1990).

Collateral References.

Burglary or breaking and entering of motor vehicle, 79 A.L.R.2d 286.

Burglary, breaking, or entering of motor vehicle, 72 A.L.R.4th 710.

12.1-22-05. Stowing away.

A person is guilty of a class A misdemeanor if, knowing that he is not licensed or privileged to do so, he surreptitiously remains aboard a vehicle, train, vessel, or aircraft with intent to obtain transportation.

Source: S.L. 1973, ch. 116, § 21; 1975, ch. 116, § 17.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Validity and construction of statute or ordinance specifically criminalizing passenger misconduct on public transportation, 78 A.L.R.4th 1127.

12.1-22-06. Definitions.

In sections 12.1-22-02 to 12.1-22-06:

  1. “Dwelling” has the meaning prescribed in subsection 2 of section 12.1-05-12.
  2. “Highly secured premises” means any place which is continuously guarded and where display of visible identification is required of persons while they are on the premises.
  3. “Night” means the period between thirty minutes past sunset and thirty minutes before sunrise.
  4. “Occupied structure” means a structure or vehicle:
    1. Where any person lives or carries on business or other calling; or
    2. Which is used for overnight accommodation of persons.
    3. Any such structure or vehicle is deemed to be “occupied” regardless of whether a person is actually present.
  5. “Storage structure” means any structure, truck, railway car, or aircraft which is used primarily for the storage or transportation of property.

Source: S.L. 1973, ch. 116, § 21.

Note.

The reference in subsection 1 to “subsection 2 of section 12.1-05-12” was originally enacted as “subsection 4 of section 12.1-05-12”. Due to the reordering of the definitions in section 12.1-05-12, the code revisor has made this change.

Collateral References.

What is “building” or “house” within burglary or breaking and entering statute, 68 A.L.R.4th 425.

CHAPTER 12.1-23 Theft and Related Offenses

12.1-23-01. Consolidation of theft offenses.

  1. Conduct denominated theft in sections 12.1-23-02 to 12.1-23-04 constitutes a single offense designed to include the separate offenses heretofore known as larceny, stealing, purloining, embezzlement, obtaining money or property by false pretenses, extortion, blackmail, fraudulent conversion, receiving stolen property, misappropriation of public funds, swindling, and the like.
  2. An indictment, information, or complaint charging theft under sections 12.1-23-02 to 12.1-23-04 which fairly apprises the defendant of the nature of the charges against him shall not be deemed insufficient because it fails to specify a particular category of theft. The defendant may be found guilty of theft under such an indictment, information, or complaint if his conduct falls under sections 12.1-23-02 to 12.1-23-04, so long as the conduct proved is sufficiently related to the conduct charged that the accused is not unfairly surprised by the case he must meet.

Source: S.L. 1973, ch. 116, § 22.

Cross-References.

Issuing check without account or with insufficient funds, penalty, defense, procedure, see N.D.C.C. § 6-08-16.2.

Notes to Decisions

Warrant for Fraud.

Since North Dakota’s theft of property laws are broadly defined to include a variety of conduct in which a person bilks another of his property, and incorporate conduct like false pretenses, confidence games, fraud, and the like, where the state’s petition to revoke defendant’s probation alleged that he had failed to make restitution as required by his guilty plea to a theft of property charge, and the court’s order to apprehend him indicated that he had violated the conditions of his probation for the theft of property conviction, the inclusion of the word “fraud” in a warrant did not invalidate his arrest and the subsequent extradition. State v. Halbom, 495 N.W.2d 83, 1993 N.D. App. LEXIS 1 (N.D. Ct. App. 1993).

Collateral References.

Embezzlement by independent collector or collection agency working on commission or percentage, 56 A.L.R.2d 1156.

Stockholder owning entire beneficial interest, criminal responsibility for embezzlement from corporation by, 83 A.L.R.2d 791.

Conversion by promoter of money paid for preincorporation subscription for stock shares as embezzlement, 84 A.L.R.2d 1100.

Drawing of check on bank account of employer payable to accused’s creditor as constituting embezzlement, 88 A.L.R.2d 688.

Criminal offenses in connection with rental of motor vehicles, 38 A.L.R.3d 949.

When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes, 77 A.L.R.3d 689.

Embezzlement, larceny, false pretenses, or allied criminal fraud by a partner, 82 A.L.R.3d 822.

Obtaining payment by debtor on valid indebtedness by false representations as criminal false pretenses, 20 A.L.R.2d 1266.

False statement as to existing encumbrance on chattel in obtaining loan or credit as criminal false pretense, 53 A.L.R.2d 1215.

Admissibility to establish fraudulent purpose or intent, in prosecution for obtaining or attempting to obtain money or property by false pretenses, of evidence of similar attempt on other occasions, 78 A.L.R.2d 1359.

“Merger” clause in written contract as precluding conviction for false pretenses based on earlier false oral representations, 94 A.L.R.2d 570.

Home repairs or installations, criminal responsibility for fraud or false pretenses in connection with, 99 A.L.R.2d 925.

Attempts to commit offenses of larceny by trick, confidence game, false pretenses, and the like, 6 A.L.R.3d 241.

Admissibility in prosecution for obtaining money or property by fraud or false pretenses of evidence of subsequent payments made by accused to victim, 10 A.L.R.3d 572.

When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes, 77 A.L.R.3d 689.

Embezzlement, larceny, false pretenses, or allied criminal fraud by a partner, 82 A.L.R.3d 822.

Modern status of rule that crime of false pretenses cannot be predicated upon present intention not to comply with promise or statement as to future act, 19 A.L.R.4th 959.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 A.L.R.4th 534.

Gambling or lottery paraphernalia as subject of larceny, 51 A.L.R.2d 1396.

Construction and effect of “bad check” statute with respect to check in payment of pre-existing debt, 59 A.L.R.2d 1159.

Carcass: stealing carcass as within statute making it larceny to steal cattle or livestock, 78 A.L.R.2d 1100.

Pawns: taking, and pledging or pawning, another’s property as larceny, 82 A.L.R.2d 863.

Stolen money or property as subject of larceny, 89 A.L.R.2d 1435.

Entrapment or consent, 10 A.L.R.3d 1121.

Cotenant taking cotenancy property, 17 A.L.R.3d 1394.

Single or separate larceny predicated upon stealing property from different owners at the same time, 37 A.L.R.3d 1407.

Purse snatching as robbery or theft, 42 A.L.R.3d 1381.

Vending machine or other coin operated machine, criminal prosecution based upon breaking into or taking money or goods from, 45 A.L.R.3d 1286.

Application of “bad check” statute with respect to postdated checks, 52 A.L.R.3d 464.

Series of takings over a period of time as involving single or separate larcenies, 53 A.L.R.3d 398.

Price tags: changing of price tags by patron in self-service store as criminal offense, 60 A.L.R.3d 1293.

What constitutes larceny “from a person,” 74 A.L.R.3d 271.

What conduct amounts to an overt act or acts done toward commission of larceny so as to sustain charge of attempt to commit larceny, 76 A.L.R.3d 842.

Criminal liability for wrongfully obtaining unemployment benefits, 80 A.L.R.3d 1280.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 A.L.R.4th 481.

Failure to pay to government sales or use tax funds as constituting larceny or embezzlement, 8 A.L.R.4th 1068.

Constitutionality of “bad check” statute, 16 A.L.R.4th 631.

Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files, or systems, 51 A.L.R.4th 971.

Cat as subject of larceny, 55 A.L.R.4th 1080.

Thief as accomplice of one charged with receiving stolen property, or vice versa, within rule requiring corroboration or cautionary instruction, 53 A.L.R.2d 817.

Receiving property stolen in another state or country as receiving stolen property, 67 A.L.R.2d 752.

Attempts to receive stolen property, 85 A.L.R.2d 259.

Indictment: sufficiency of description of stolen property in indictment or information for receiving it, 99 A.L.R.2d 813.

Exclusive possession: what amounts to “exclusive” possession of stolen goods to support inference of burglary or other felonious taking, 51 A.L.R.3d 727.

Public documents: receipt of public documents taken by another without authorization as receipt of stolen property, 57 A.L.R.3d 1211.

Receiver of stolen goods as accomplice of thief for purposes of corroboration, 74 A.L.R.3d 560.

What constitutes “recently” stolen property within rule inferring guilt from unexplained, possession of such property, 89 A.L.R.3d 1202.

What constitutes “constructive” possession of stolen property to establish requisite element of possession supporting offense of receiving stolen property, 30 A.L.R.4th 488.

Validity, construction, and effect of statutes establishing shoplifting or its equivalent as separate criminal offense, 64 A.L.R.4th 1088.

12.1-23-02. Theft of property.

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 with intent 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.

Source: S.L. 1973, ch. 116, § 22.

Cross-References.

Bringing stolen property into state, jurisdiction, see N.D.C.C. § 29-03-17.

False weights and measures, see N.D.C.C. §§ 64-03-01 to 64-03-03.

Prosecution for theft committed outside this state, see N.D.C.C. § 29-03-01.1.

Robbery, see N.D.C.C. § 12.1-22-01.

Unlawful seed sales agreements, see N.D.C.C. §§ 4-25-02, 4-25-03.

Notes to Decisions

Constitutionality.

This section is not vague for failure to specifically point out or prohibit the various different means by which theft is prohibited; person who received aid to dependent child, and who was informed that it was unlawful to give false eligibility information, had adequate warning that she would violate state law by failure to report that her child was not living in her home while continuing to receive assistance. State v. Moore, 286 N.W.2d 274, 1979 N.D. LEXIS 320 (N.D. 1979), cert. denied, 446 U.S. 943, 100 S. Ct. 2170, 64 L. Ed. 2d 799, 1980 U.S. LEXIS 1652 (U.S. 1980).

Aid to Dependent Children.

This section is a consolidation of all theft-of-property offenses, and included obtaining AFDC assistance to which defendant was not entitled by willfully making false statements as to residence of dependent child. State v. Moore, 286 N.W.2d 274, 1979 N.D. LEXIS 320 (N.D. 1979), cert. denied, 446 U.S. 943, 100 S. Ct. 2170, 64 L. Ed. 2d 799, 1980 U.S. LEXIS 1652 (U.S. 1980).

Attempted Theft.

Evidence was sufficient to support defendant’s conviction for attempted theft of property where there was evidence that defendant grabbed shoulder of victim’s jacket and demanded his wallet and watch. State v. Saul, 346 N.W.2d 282, 1984 N.D. LEXIS 273 (N.D. 1984).

Automobile.

Theft of an automobile may only be charged as a class C felony. State v. Hogie, 424 N.W.2d 630, 1988 N.D. LEXIS 122 (N.D. 1988).

Court erred in dismissing a class B felony theft charge at the preliminary hearing because an officer testified that the vehicle was worth over $62,000 when defendant purported to transfer the vehicle payment. State v. Goldmann, 2013 ND 105, 831 N.W.2d 748, 2013 N.D. LEXIS 104 (N.D. 2013).

City Ordinances.

City shoplifting ordinance, which established a prima facie presumption regarding the concealment of merchandise, was authorized under N.D.C.C. § 40-05-01, did not attempt to supersede state law, and was not constitutionally repugnant; it did not define an offense different from that in the state statute, and merely provided a non-mandatory presumption as an evidentiary device for proving the element of intent. City of Dickinson v. Gresz, 450 N.W.2d 216, 1989 N.D. LEXIS 252 (N.D. 1989).

Dismissal.

District court erred in dismissing the felony theft of property count for lack of probable cause because, at the preliminary hearing, the State needed to establish that someone other than defendant had an interest in the property which defendant was not privileged to infringe without consent; the State did not need to have the victim testify as probable cause could be based on hearsay and other evidence that would be inadmissible at trial; a deputy testified that the victim told him that she owned the vehicles and defendant did not have permission to take them; the vehicle was property of the victim; and, even if defendant had a marital property interest in the vehicle, that interest did not prevent him from being prosecuted for theft. State v. Gratton, 2020 ND 41, 938 N.W.2d 902, 2020 N.D. LEXIS 37 (N.D. 2020).

Restitution.

In a case in which defendant was convicted of possession of a stolen vehicle, but was not charged with the theft of the vehicle, the district court abused its discretion by ordering restitution for the unrecovered personal property that was in the vehicle at the time the vehicle was stolen, but was not in the vehicle seven days later when defendant was arrested for, and charged with, possession of the stolen vehicle, because there was no immediate and intimate causal connection between the criminal conduct and the loss of the personal property. State v. Harstad, 2020 ND 151, 945 N.W.2d 265, 2020 N.D. LEXIS 139 (N.D. 2020).

“Continuing Scheme.”

Defendant’s argument that his conduct was only a breach of contract and not a crime overlooked the “continuing scheme” statutory language in subdivision (2) of this section; while theft by deception is limited so that a fraudulent intent not to perform a promise cannot be inferred from the nonperformance of a contract, if the nonperformance is part of a continuing scheme to defraud, deceptive intent may be inferred. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Credit Card.

Where defendant knowingly used a credit card far beyond the authorized credit limit, was more than $200,000 in debt during this period of time, his income was minimal in relation to his debts, and he filed for bankruptcy shortly thereafter, there was substantial evidence in the record for the jury to convict defendant of the crime of theft by deception. State v. Huwe, 413 N.W.2d 350, 1987 N.D. LEXIS 411 (N.D. 1987), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

In prosecution for theft by deception, the trial court did not err in allowing the introduction in evidence of a credit card application, which the defendant claimed he did not sign, and the complete listing of credit charges which included charges made by his wife, because the credit card application showed not only that the defendant had been authorized a card, but also that there was a $1,000 credit line on the account, and the lists documenting the charges made by both the defendant and his wife were also relevant because they had a tendency of showing that the defendant must have been aware that the credit limit had been exceeded. State v. Huwe, 413 N.W.2d 350, 1987 N.D. LEXIS 411 (N.D. 1987), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

In a trial for theft arising from accumulation of debt on credit card, the trial court did not commit reversible error in refusing to give requested jury instructions to the effect that a husband is not responsible for his wife’s actions. State v. Huwe, 413 N.W.2d 350, 1987 N.D. LEXIS 411 (N.D. 1987), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

Defense Based on UCC.

In prosecution for theft, failure by the trial court to include an instruction to the jury on the defense based on the UCC which went to an essential question of law constituted error that affected substantial rights of the defendant such that it was an abuse of discretion by the trial judge to deny the defendant’s motion for a new trial after the omission was brought to the attention of the court. State v. Kraft, 413 N.W.2d 303, 1987 N.D. LEXIS 412 (N.D. 1987).

In prosecution for theft, no crime was committed, pursuant to N.D.C.C. § 41-01-15(5) (see now N.D.C.C. § 41-01-17) by the defendant merchant’s subsequent sale of replaceable component parts of a building previously sold to the complaining witness, where it was in the regular usage of the trade to treat nonunique component parts as inventory to be sold as needed and replaced; therefore, the specific intent required under subsection 1 to take the property of another with intent to deprive the owner thereof was absent. Any defense or area of defense based in the delivery and acceptance sections of the UCC pertain to the element of intent which is essential for the crime of theft of property under subsection 1. State v. Kraft, 413 N.W.2d 303, 1987 N.D. LEXIS 412 (N.D. 1987).

Section 41-03-03(1)(c) does not affect the authorization or deception of payments where the “drawer” in question signed blank checks with the expectation co-drawer would use the checks to pay legitimate expenses, the gravamen of the offense being the breach of fiduciary duty which occurred when co-drawer used those blank checks with other’s signature to pay himself amounts clearly in excess of authorized amounts. State v. Trosen, 547 N.W.2d 735, 1996 N.D. LEXIS 138 (N.D. 1996).

Double Jeopardy.

Convictions for forgery or counterfeiting under N.D.C.C. § 12.1-24-01(1), deceptive writings under N.D.C.C. § 12.1-24-03(1), and theft by deception under N.D.C.C. § 12.1-23-02(2), were multiplicitous and violated double jeopardy because they involved the same conduct of creating a counterfeit invoice by deceptive writings and forgery to purchase a vehicle glider kit through a defendant’s employer. State v. Moos, 2008 ND 228, 758 N.W.2d 674, 2008 N.D. LEXIS 213 (N.D. 2008).

Elements.
—In General.

To establish theft of property under subdivision 1 the state must prove three elements: (1) knowingly (2) takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another (3) with intent to deprive the owner thereof. State v. Johnson, 425 N.W.2d 903, 1988 N.D. LEXIS 141 (N.D. 1988).

The elements of the crime of intentionally depriving another of property by deception are (1) a mens rea of intentional deprivation, and (2) an actus reus of depriving another of property by deception. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Three elements must exist under subdivision 1 of this section in order to establish theft of property: (1) knowingly (2) takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another (3) with intent to deprive the owner thereof. Erickson v. Roehrich (In re Roehrich), 169 B.R. 941, 1994 Bankr. LEXIS 1164 (Bankr. D.N.D. 1994).

District court did not plainly err in not instructing the jury that it had to unanimously decide upon which of the prosecution's two theories it found him guilty of theft of property where the legislature clearly intended the subsections of N.D.C.C. § 12.1-23-02 to be alternative means of committing theft, not separate independent elements, and thus, it was not error to combine N.D.C.C. § 12.1-23-02(1) and (3) into one jury instruction. State v. Pulkrabek, 2017 ND 203, 900 N.W.2d 798, 2017 N.D. LEXIS 205 (N.D. 2017).

It is clear the subsections of N.D.C.C. § 12.1-23-02 are alternative means of completing the crime of theft and are not separate offenses. State v. Pulkrabek, 2017 ND 203, 900 N.W.2d 798, 2017 N.D. LEXIS 205 (N.D. 2017).

—Deception.

Double-billing by accountant for three or four quarters, at $210 per quarter, supported conviction of theft in excess of $500, where accountant had another board member sign blank checks, made the checks payable to himself, provided the required second signature, filed invoices and canceled checks in records stored in his office, and never showed those records to any other representative of organization, from which conduct a rational factfinder could find a continuing scheme to defraud. State v. Trosen, 547 N.W.2d 735, 1996 N.D. LEXIS 138 (N.D. 1996).

—Time of Offense.

Exact time of commission of offense of theft of property is not a substantive element of proof; therefore it is not required that crime of theft be proved to have been committed on precise date or time period alleged in complaint or information. State v. Hatch, 346 N.W.2d 268, 1984 N.D. LEXIS 260 (N.D. 1984).

Evidence.
—Filing for Bankruptcy.

In prosecution for theft by deception, the defendant’s filing for bankruptcy within six months after credit charges were made had some probative value as to whether he had the intention or ability to pay off the debt at the time the charges were made, even though there was no evidence that he was contemplating bankruptcy at the time the credit charges were made. State v. Huwe, 413 N.W.2d 350, 1987 N.D. LEXIS 411 (N.D. 1987), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

Where the element of intent to deprive the owner of his property was never contested by the defendant at trial, the court, when it included the intent to deprive element in its jury instructions, did not commit an obvious error. State v. Woehlhoff, 540 N.W.2d 162, 1995 N.D. LEXIS 224 (N.D. 1995).

—Possession.

Defendant’s possession of stolen vehicle in Kansas with plates stolen in South Dakota tended to connect him to its recent theft in North Dakota, and thus sufficiently corroborated testimony of two accomplices for theft conviction. State v. Hogie, 454 N.W.2d 501, 1990 N.D. LEXIS 87 (N.D. 1990).

—Sufficiency of Evidence.

Evidence held sufficient to support conviction for possession of stolen property. State v. Matuska, 379 N.W.2d 273, 1985 N.D. LEXIS 455 (N.D. 1985).

Where there was evidence at the preliminary hearing that stolen goods were found in a trailer house owned by the defendant’s grandfather in which the defendant was residing and that additional stolen property, also owned by the same victims, was found at a junkyard owned by the defendant’s grandfather which was located near the trailer house, and that the total value of the property found at the two locations exceeded $500, the value of property required to be received, retained, or disposed of to constitute theft of property, an inference that the defendant was involved with the property could be deduced from evidence introduced at the hearing; the county court did not exceed its jurisdiction, because there was some evidence to support its probable cause finding. Sivertson v. McLees, 407 N.W.2d 799, 1987 N.D. LEXIS 339 (N.D. 1987).

The defendant violated subdivision (2) of this section when the evidence showed that he visited the victim four times over a week-long period, obtaining more money from the victim with each visit and that the victim had Alzheimer’s disease, affecting her mental abilities; the jury also had an opportunity to observe the victim personally while she testified. State v. Wilson, 2004 ND 51, 676 N.W.2d 98, 2004 N.D. LEXIS 62 (N.D. 2004).

Evidence was sufficient to sustain defendant’s conviction for theft when defendant, with knowledge that he was not entitled to keep the money, issued at least fourteen money orders in various third parties, and the money orders were written on the day defendant was told that a Canadian check had not cleared and that he should return the money orders. Moreover, defendant’s writings on the Internet allowed the inference that defendant’s conduct was part of a scheme. State v. Curtis, 2008 ND 108, 750 N.W.2d 438, 2008 N.D. LEXIS 112 (N.D. 2008).

State had met its burden of proof beyond a reasonable doubt that appellant, a juvenile, violated N.D.C.C. § 12.1-23-02 because he knowingly took or exercised unauthorized control over the property of another with intent to deprive the owner. Molbert v. J.K. (In the Interest of J.K.), 2009 ND 46, 763 N.W.2d 507, 2009 N.D. LEXIS 52 (N.D. 2009).

Sufficient evidence supported defendant’s conviction for theft of property by deception because the State established that property, i.e., the proceeds of the initial check issued after the cattle were sold, were property of the lienholders. Further, defendant’s negotiated interest in the $400 with regard to the reissued second check did not negate the fact that the amount of money deposited into his account from the initial check was $10,039 and the amount of liens held by the payee lienholders totaled more than $20,000, far in excess of the amount of the check. State v. Fleck, 2022 ND 49, 971 N.W.2d 387, 2022 N.D. LEXIS 44 (N.D. 2022).

Interpretation of Statute.

This section and N.D.C.C. § 12.1-23-10, are virtually identical to sections 1732 and 1741 of the Final Report of the National Commission on Reform of Federal Criminal Laws. Because these statutes are derived from the proposed Federal Criminal Code, courts may look to the official commentaries of the proposed code for guidance in the meaning and application of these statutes. State v. Bastien, 436 N.W.2d 229, 1989 N.D. LEXIS 31 (N.D. 1989).

Legislative Intent.
—Scope of Definitions.

The broad definitions of conspiracy, theft of property, and deception evidence a legislative intent that conspiracy to commit theft by deception encompass an agreement to knowingly manufacture evidence to support a false claim in a civil action. State v. Bastien, 436 N.W.2d 229, 1989 N.D. LEXIS 31 (N.D. 1989).

Lesser Included Offense.

District court did not err in refusing to give jury instruction on theft as lesser included offense in robbery prosecution; under this section, theft requires the taking of property of another, which is not an element of the offense of robbery. State v. McKing, 1999 ND 81, 593 N.W.2d 342, 1999 N.D. LEXIS 72 (N.D. 1999).

Manufacture of False Evidence.

An agreement to knowingly manufacture evidence for a civil lawsuit seeking compensation for a claimed loss, knowing that no actual loss occurred, constitutes conspiracy to commit theft by deception. State v. Bastien, 436 N.W.2d 229, 1989 N.D. LEXIS 31 (N.D. 1989).

Property of Another.

Fact that one person has title to property does not preclude the property from being property of another person; fact that title to automobile remained in name of defendant at time of its theft did not preclude a finding that defendant took or exercised unauthorized control over the property of another where there was evidence that defendant had traded the automobile to another person prior to its theft. State v. Cox, 325 N.W.2d 181, 1982 N.D. LEXIS 339 (N.D. 1982).

District court erred in dismissing the criminal charges of theft of property and exploitation of a vulnerable adult against defendant after she used for herself more than $50,000 in funds her elderly mother deposited in a joint bank account which listed the mother as the “member” and defendant as a “joint owner” because the mother's donative intent to make an inter vivos gift was not a “unique” property law issue that affected anyone (the public in general) other than her and defendant and defendant's claim of a gift did no more than raise a factual question encompassed in the general issue of whether she was guilty of theft or exploitation of a vulnerable adult. State v. Conrad, 2017 ND 79, 892 N.W.2d 200, 2017 N.D. LEXIS 79 (N.D. 2017).

Shoplifting.

Shoplifting is “theft” as defined under this section. Therefore, shoplifting ordinance must not attempt to prohibit any conduct other than that prohibited by the state statute. City of Dickinson v. Gresz, 450 N.W.2d 216, 1989 N.D. LEXIS 252 (N.D. 1989).

Single Offense.

The crime defined by this section is a single offense; where information originally alleged that defendants were guilty of theft by knowingly receiving or retaining the property of another with intent to deprive the owner of it, and in light of additional evidence was amended at arraignment to charge exercise of unauthorized control over the property of another, the amendment did not change the offense charged nor deprive defendants of notice of the charge against them. State v. Bourbeau, 250 N.W.2d 259, 1977 N.D. LEXIS 226 (N.D. 1977).

Statute of Limitations.
—In General.

Crime of withholding or retaining property is not a continuing offense for which the statute of limitations does not begin to run until completion of the last act; for purposes of the statute of limitations, the crime of withholding or retaining property is complete from the time a defendant first withholds or retains property with the requisite intent. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Where jury was not instructed that the State must prove by a preponderance of evidence that the theft by deception occurred within the applicable statute of limitations, and where evidence, viewed in the light most favorable to defendant, was that he both knowingly obtained and intentionally deprived others of property by deception before the date the statute of limitations commenced, failure to instruct the jury on that issue was obvious error and defendant was entitled to a new trial with appropriate instructions. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

—Completion of Crime.

When the actor withholds another’s property by reinforcing a false impression, failing to correct an impression which has become false, or using any other scheme to defraud and when that conduct and the mens rea coalesce, the crime of intentionally depriving another of property by deception is complete for purposes of the statute of limitations. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Sufficiency of Information or Indictment.

Where each four-count information contained introductory language, where a colon followed the prefatory language, and where each information then stated four separate counts, which alleged that defendant promised to provide the complainants with blood pressure machines or pay telephones and failed to provide the machines and refused to return the purchase money, the colon at the end of the prefatory language of the four-count informations incorporated that language into each count. The four-count informations contained a plain, concise, and definite written statement of the essential elements required to allege a violation of this section. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Unemployment Benefits.

Prosecution of defendant for wrongfully obtaining unemployment benefits by means of false statements regarding his eligibility status was proper under this section and did not violate due process on grounds of vagueness where defendant was informed at time he applied for benefits that it was unlawful to give false information and law provided penalties for false statements. State v. Hatch, 346 N.W.2d 268, 1984 N.D. LEXIS 260 (N.D. 1984).

DECISIONS UNDER PRIOR LAW

Bank Bills.

The stealing of bank bills, known as national currency, of the amount and value of twenty-five dollars was grand larceny under Pen. C. 1877, § 583. Territory v. Anderson, 50 N.W. 124, 6 Dakota 300, 1889 Dakota LEXIS 42 (Dakota 1889).

Burglary.

Burglary and larceny could not be charged as a single offense. State v. Smith, 2 N.D. 515, 52 N.W. 320, 1892 N.D. LEXIS 35 (N.D. 1892).

Champerty.

The common-law doctrine which condemned, as void, conveyances of real estate when title was in suit, or when the vendor had not been in possession or taken rents for the space of a year prior to the conveyance, as acts of champerty or maintenance, was not abolished by the Revised Codes of 1895, but was perpetuated by express statute. Galbraith v. Paine, 12 N.D. 164, 96 N.W. 258, 1903 N.D. LEXIS 21 (N.D. 1903).

Embezzlement.

The taking of grain by a party hired at a monthly salary, to assist in harvesting, threshing, caring for, and transporting the same to market, was larceny. State v. Ugland, 48 N.D. 841, 187 N.W. 237, 1922 N.D. LEXIS 106 (N.D. 1922).

A fraudulent conversion of property by a bailee for hire was embezzlement and not larceny. State v. Black, 57 N.D. 567, 223 N.W. 303, 1929 N.D. LEXIS 301 (N.D. 1929).

Extortion.

Statutes defining extortion were to be read together; thus, “fear”, within statute defining extortion as the obtaining of property from another with his consent induced by fear, must have been induced by threats, with the result that threat was a necessary ingredient of extortion. State v. Anderson, 66 N.D. 522, 267 N.W. 121, 1936 N.D. LEXIS 197 (N.D. 1936).

False Pretenses or False Tokens.

To constitute the offense of obtaining a signature or property by false pretenses, there must have been a fraudulent representation of an existing or past fact by one who knew that it was not true. State v. Stewart, 9 N.D. 409, 83 N.W. 869, 1900 N.D. LEXIS 249 (N.D. 1900).

A fraud was complete when the person deceived by false pretenses parted with his property. State v. Merry, 20 N.D. 337, 127 N.W. 83, 1910 N.D. LEXIS 85 (N.D. 1910).

A complaint for obtaining money or signature of a person to a written instrument by false pretense or token charged no offense where it merely alleged a promise to “procure and deliver a term insurance policy”. Spriggs v. Craig, 36 N.D. 160, 161 N.W. 1007, 1917 N.D. LEXIS 170 (N.D. 1917).

A false pretense was a misrepresentation as to an existing fact or past event, and not a mere broken promise to do something in the future or a misrepresentation as to something to take place in the future. Spriggs v. Craig, 36 N.D. 160, 161 N.W. 1007, 1917 N.D. LEXIS 170 (N.D. 1917).

Information charging the obtaining of property by false pretenses could allege more than one ground, and also could allege by way of innuendo facts and circumstances, part of which could have been true, which would serve as a basis upon which the false pretenses might have operated in order to secure the property. State v. Henderson, 45 N.D. 19, 176 N.W. 126, 1919 N.D. LEXIS 240 (N.D. 1919).

Where defendant pleaded guilty to obtaining money under false pretenses, the trial court had jurisdiction to impose a sentence for that offense and also for offense of using a check as a false token. State v. Ziesemer, 93 N.W.2d 803, 1958 N.D. LEXIS 108 (N.D. 1958).

The crime described in former section relating to use of checks as false tokens could be punished by imprisonment in the penitentiary and was therefore a felony. State v. Feist, 93 N.W.2d 646, 1958 N.D. LEXIS 103 (N.D. 1958).

The legislature did not intend by the enactment of N.D.C.C. § 6-08-16 to repeal or supersede by implication either in whole or in part the penalties applicable to violations of former section relating to the use of a check as a false token. State v. Ziesemer, 93 N.W.2d 803, 1958 N.D. LEXIS 108 (N.D. 1958).

Accepting an attorney’s fee as a retainer on the promise to commence the probate of an estate by one whose certificate of admission to the bar was under suspension constituted a false pretense with intent to defraud, a ground for disbarment. In re Lyons, 193 N.W.2d 462, 1971 N.D. LEXIS 175 (N.D. 1971).

In order to constitute the offense of obtaining money by false pretenses, four things had to be shown: (1) intent to defraud; (2) actual fraud committed; (3) false pretenses used for the purpose of perpetrating the fraud; and (4) false pretenses as the cause which induced the owner to part with his property. State v. Persons, 201 N.W.2d 895, 1972 N.D. LEXIS 93 (N.D. 1972).

Information Sufficient.

Information for buying or receiving stolen property was sufficient which charged defendant with receiving property stolen from another, knowing it to be stolen when he received it, and receiving it with intent to deprive the owner thereof. State v. Marcovitz, 63 N.D. 458, 248 N.W. 481, 1933 N.D. LEXIS 199 (N.D. 1933).

Where hotel operator’s clerk was accountable to the operator for room rentals and defendant hotel guest paid the clerk with a bad check, defendant thereby fraudulently obtained money belonging to the operator, since the clerk was the operator’s agent, thus sustaining the allegation of ownership in the information charging defendant with obtaining the operator’s money by false pretenses. State v. Hopkins, 64 N.D. 301, 252 N.W. 48, 1933 N.D. LEXIS 277 (N.D. 1933).

An information alleging the crime of larceny of livestock and charging defendant with killing and stealing a calf did not state two offenses, since it was not necessary to allege that the defendant killed the calf in order to charge grand larceny. State v. McKenzie, 67 N.D. 443, 273 N.W. 1, 1937 N.D. LEXIS 98 (N.D. 1937).

If the information set forth grand larceny, it was immaterial that the word “grand” was omitted. State v. McKenzie, 67 N.D. 443, 273 N.W. 1, 1937 N.D. LEXIS 98 (N.D. 1937).

Jurisdiction.

A court had no jurisdiction in the first instance to try a charge of larceny under the statute pertaining to the stealing of property in another state or country and bringing such property into the state, unless such property was brought into or through the county in which the prosecution was had. State v. Tennyson, 73 N.D. 262, 14 N.W.2d 168, 1944 N.D. LEXIS 59 (N.D. 1944).

Stolen Property.

Property found in the possession of defendants, to have the character of stolen property, had to be identified and shown beyond reasonable doubt to be stolen property. State v. Bossart, 62 N.D. 11, 241 N.W. 78, 1932 N.D. LEXIS 145 (N.D. 1932).

Collateral References.

Cat as subject of larceny, 55 A.L.R.4th 1080.

Possession of stolen property as continuing offense, 24 A.L.R.5th 132.

Injury to reputation or mental well-being as within penal extortion statutes requiring threat of “Injury to the Person” 87 A.L.R.5th 715.

What is “Property of Another” Within Statute Proscribing Larceny, Theft, or Embezzlement of Property of Another. 57 A.L.R.6th 445.

Law Reviews.

Criminal Law — Review: Exercising Jurisdiction to Prosecute a Priest for Theft is Constitutional, State v. Burkhard, 1998 N.D. 121, 579 N.W.2d 194 (1998), 75 N.D. L. Rev. 587 (1999).

12.1-23-02.1. Disarming or attempting to disarm a law enforcement officer.

Notwithstanding subdivision d of subsection 3 of section 12.1-23-05, a person is guilty of a class C felony if, without the consent of the law enforcement officer, the person willfully takes or removes, or attempts to take or remove, a firearm from a law enforcement officer engaged in the performance of official duties.

Source: S.L. 1997, ch. 129, § 1; 2013, ch. 104, § 3.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-23-03. Theft of services.

A person is guilty of theft if:

  1. He intentionally obtains services, known by him to be available only for compensation, by deception, threat, false token, or other means to avoid payment for the services; or
  2. Having control over the disposition of services of another to which he is not entitled, he knowingly diverts those services to his own benefit or to the benefit of another not entitled thereto.

Where compensation for services is ordinarily paid immediately upon their rendition, as in the case of hotels, restaurants, and comparable establishments, absconding without payment or making provision to pay is prima facie evidence that the services were obtained by deception.

Source: S.L. 1973, ch. 116, § 22.

Notes to Decisions

Valuation.

District court’s order granting the State’s motion in limine precluding defendant from providing alternative values for the services of a body shop that she was charged with having stolen was in error because, inter alia, it removed that determination from the province of the jury and deprived defendant of the opportunity to have proven that a lesser amount was the correct value. State v. Bjerklie, 2006 ND 173, 719 N.W.2d 359, 2006 N.D. LEXIS 175 (N.D. 2006).

Collateral References.

Civil Liability Under 18 U.S.C.S. § 2511(1)(a) for Unauthorized Interception or Viewing of Satellite Television Broadcasts. 55 A.L.R. Fed 2d 419.

12.1-23-04. Theft of property lost, mislaid, or delivered by mistake.

A person is guilty of theft if he:

  1. Retains or disposes of property of another when he knows it has been lost or mislaid; or
  2. Retains or disposes of property of another when he knows it has been delivered under a mistake as to the identity of the recipient or as to the nature or amount of the property,

and with intent to deprive the owner of it, he fails to take readily available and reasonable measures to restore the property to a person entitled to have it.

Source: S.L. 1973, ch. 116, § 22.

Cross-References.

Rights of finder as depositary for hire, see N.D.C.C. § 60-01-34.

Notes to Decisions

Elements of Offense.

In order to support a conviction under this section, state must establish that someone other than defendant had an interest in the property which defendant was not privileged to infringe without consent. State v. Kaufman, 310 N.W.2d 709, 1981 N.D. LEXIS 324 (N.D. 1981).

Lost Property.

Property which is stolen and later abandoned by thief is “lost” property for purposes of this section. State v. Kaufman, 310 N.W.2d 709, 1981 N.D. LEXIS 324 (N.D. 1981).

Mens Rea.

Defendant’s knowledge that property has been lost or mislaid need not be absolute, but merely a firm belief, unaccompanied by substantial doubt; fact finder is allowed to consider all surrounding facts and circumstances in determining whether defendant knew that property was lost or mislaid. State v. Kaufman, 310 N.W.2d 709, 1981 N.D. LEXIS 324 (N.D. 1981).

Specific Intent.

Crime of theft of lost or mislaid property requires defendant to have a specific intent to deprive owner of such property, which intent must be proven by state beyond a reasonable doubt. Huff v. P., 302 N.W.2d 779, 1981 N.D. LEXIS 228 (N.D. 1981).

DECISIONS UNDER PRIOR LAW

Lost Animals.

A complaint alleging the appropriation of lost animals without effort to find the true owner charged grand larceny. State v. Black, 57 N.D. 567, 223 N.W. 303, 1929 N.D. LEXIS 301 (N.D. 1929).

Where stray cattle came to defendant’s place, he was guilty of larceny where he made no reasonable effort to find the owner and restore the property to him. State v. Johnson, 60 N.D. 56, 232 N.W. 473, 1930 N.D. LEXIS 206 (N.D. 1930).

“Lost Property.”

The term “lost property”, as used in the statute making the finder of lost property who appropriates property to his own use without first making an effort to restore the same to the owner guilty of larceny, included livestock, as against the contention that livestock might be estrays but not lost. State v. Brewster, 72 N.D. 409, 7 N.W.2d 742, 1943 N.D. LEXIS 78 (N.D. 1943).

Purchase in Good Faith.

Former section relating to wrongful appropriation of lost property did not apply to a defense of ownership through a purchase in good faith. State v. McCarty, 47 N.D. 523, 182 N.W. 754, 1921 N.D. LEXIS 123 (N.D. 1921).

Collateral References.

Validity, construction, and application of state statutes relating to offense of identity theft, 125 A.L.R.5th 537.

12.1-23-05. Grading of theft offenses.

  1. Notwithstanding subsection 3, theft under this chapter is a class A felony if the property or services stolen exceed fifty thousand dollars in value.
  2. Notwithstanding the provisions of subsection 3, theft under this chapter is a class B felony if the property or services stolen exceed ten thousand dollars in value but do not exceed fifty thousand dollars or are acquired or retained by a threat to commit a felony.
  3. Theft under this chapter is a class C felony if:
    1. The property or services stolen exceed one thousand dollars in value;
    2. The property or services stolen are acquired or retained by threat and:
      1. Are acquired or retained by a public servant by a threat to take or withhold official action; or
      2. Exceed one hundred dollars in value;
    3. The property or services stolen exceed one hundred dollars in value and are acquired or retained by a public servant in the course of official duties;
    4. The property stolen is a firearm, ammunition, or an explosive or destructive device;
    5. The property consists of any government file, record, document, or other government paper stolen from any government office or from any public servant;
    6. The defendant is in the business of buying or selling stolen property and the defendant receives, retains, or disposes of the property in the course of that business;
    7. The property stolen consists of any implement, paper, or other thing uniquely associated with the preparation of any money, stamp, bond, or other document, instrument, or obligation of this state;
    8. The property stolen consists of livestock taken from the premises of the owner;
    9. The property stolen consists of a key or other implement uniquely suited to provide access to property the theft of which would be a felony and it was stolen to gain such access;
    10. The property stolen is a card, plate, or other credit device existing for the purpose of obtaining money, property, labor, or services on credit, or is a debit card, electronic fund transfer card, code, or other means of access to an account for the purposes of initiating electronic fund transfers; or
    11. The property stolen is a prescription drug as defined in section 43-15.3-01, except when the quantity stolen is five or fewer capsules, pills, or tablets.
  4. All other theft under this chapter is a class A misdemeanor, unless the requirements of subsection 5 are met.
    1. Theft under this chapter of property or services of a value not exceeding five hundred dollars is a class B misdemeanor for a first offense if:
      1. The theft was committed by shoplifting; or
      2. The following three factors are met:
        1. The theft was not committed by threat;
        2. The theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft; and
        3. The defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties.
    2. The special classification provided in paragraph 2 of subdivision a applies if the offense is classified under this subsection in the charge or if, at sentencing, the required factors are established by a preponderance of the evidence.
    3. A second or third offense under paragraph 1 of subdivision a occurring within three years is a class A misdemeanor. A fourth or subsequent violation under paragraph 1 of subdivision a occurring within four years is a class C felony.
    4. A sentence imposed under this subsection must be accompanied by a written statement by the court providing notice of any offense under this section which provides an enhanced penalty, including the penalty for a subsequent offense.
  5. Notwithstanding subsection 3 of section 12.1-06-01, an attempt to commit a theft under this chapter is punishable equally with the completed offense when the actor has completed all of the conduct which the actor believes necessary on the actor’s part to complete the theft except receipt of the property.
  6. For purposes of grading, the amount involved in a theft under this chapter is the highest value by any reasonable standard, regardless of the actor’s knowledge of such value, of the property or services which were stolen by the actor, or which the actor believed that the actor was stealing, or which the actor could reasonably have anticipated to have been the property or services involved. Thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be charged as one offense and the amounts proved to have been stolen may be aggregated in determining the grade of the offense.

Source: S.L. 1973, ch. 116, § 22; 1975, ch. 116, § 18; 1981, ch. 156, § 1; 1989, ch. 166, § 1; 1995, ch. 131, § 1; 2011, ch. 98, § 1; 2013, ch. 104, § 4; 2017, ch. 108, § 5, effective April 21, 2017; 2017, ch. 164, § 1, effective August 1, 2017; 2021, ch. 107, § 1, effective April 16, 2021.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Application.

The 1981 amendment of this section does not have retroactive application. State v. Kaufman, 310 N.W.2d 709, 1981 N.D. LEXIS 324 (N.D. 1981).

Automobile.

Theft of an automobile may only be charged as a class C felony. State v. Hogie, 424 N.W.2d 630, 1988 N.D. LEXIS 122 (N.D. 1988).

Where the trial court’s decision was based upon the legal conclusion that theft of an automobile could only be charged as a class C felony and not as a class B felony, there was no resolution of factual elements of the offense of theft, and defendant successfully avoided submission of his factual guilt or innocence to the jury; he was, therefore, not acquitted and suffered no injury cognizable under the double jeopardy clause when the state was permitted to appeal. State v. Hogie, 424 N.W.2d 630, 1988 N.D. LEXIS 122 (N.D. 1988).

Credit Cards.

In determining value of credit card to determine if its theft constituted a felony, and thereby giving police officer authority to make a warrantless arrest where offense was not committed in officer’s presence, police officer could consider street value or thieves’ market value of credit card. State v. McCabe, 315 N.W.2d 672, 1982 N.D. LEXIS 230 (N.D. 1982).

Evidence Sufficient.

There was competent evidence to allow the jury to reasonably find that defendant intended to deprive owner of the property, where defendant had agreed to certain lease conditions, including conditions stating that: the owner retained ownership of the leased property and title thereto; the defendant would keep and use the property only at his home address as listed on the lease agreement; and the defendant had no right to transfer or in any way encumber the leased property. Defendant pawned the property approximately two months after the commencement of the lease, when his investment in the property was still quite small, and the defendant knew he had 30 days to redeem the pawned property and that the property would be sold if he did not redeem it. State v. Lovejoy, 464 N.W.2d 386, 1990 N.D. LEXIS 260 (N.D. 1990).

A rational fact finder could reasonably infer that the value of stolen ski equipment by a reasonable standard would exceed five hundred dollars where the owner testified the original cost of the equipment five years ago was six hundred dollars, where a pawn shop dealer testified that it was very good equipment and its present market value may exceed five hundred dollars, and where a jury, which saw photographs of the ski equipment, could reasonably have concluded that the owner would have spent over five hundred dollars to replace the equipment. State v. Ensz, 503 N.W.2d 236, 1993 N.D. LEXIS 147 (N.D. 1993).

Double-billing by accountant for three or four quarters, at $210 per quarter, supported conviction of theft in excess of $500, where accountant had another board member sign blank checks, then made the checks payable to himself, provided the required second signature, filed invoices and canceled checks in records stored in his office, and never showed those records to any other representative of organization, from which conduct a rational factfinder could find a continuing scheme to defraud. State v. Trosen, 547 N.W.2d 735, 1996 N.D. LEXIS 138 (N.D. 1996).

Evidence was sufficient to sustain defendant’s conviction for theft when defendant, with knowledge that he was not entitled to keep the money, issued at least fourteen money orders in various third parties, and the money orders were written on the day defendant was told that a Canadian check had not cleared and that he should return the money orders. Moreover, defendant’s writings on the Internet allowed the inference that defendant’s conduct was part of a scheme. State v. Curtis, 2008 ND 108, 750 N.W.2d 438, 2008 N.D. LEXIS 112 (N.D. 2008).

Sufficient evidence supported defendant’s conviction for theft of property by deception because the State established that property, i.e., the proceeds of the initial check issued after the cattle were sold, were property of the lienholders. Further, defendant’s negotiated interest in the $400 with regard to the reissued second check did not negate the fact that the amount of money deposited into his account from the initial check was $10,039 and the amount of liens held by the payee lienholders totaled more than $20,000, far in excess of the amount of the check. State v. Fleck, 2022 ND 49, 971 N.W.2d 387, 2022 N.D. LEXIS 44 (N.D. 2022).

Property Returned by Thief to Owner.

There is nothing in this section which prevents grading of a theft offense or precludes a criminal prosecution if property stolen is later returned by thief. State v. Hatch, 346 N.W.2d 268, 1984 N.D. LEXIS 260 (N.D. 1984).

Valuation.
—In General.

Evidence was sufficient to show that the property exceeded $500 in value where stereo which defendant leased had possible values all in excess of $500 pursuant to the lease agreement. Jury was allowed to consider these values pursuant to this section despite the fact that defendant only realized $75 from pawning stereo. State v. Lovejoy, 464 N.W.2d 386, 1990 N.D. LEXIS 260 (N.D. 1990).

In some instances, the original or replacement cost of the stolen property is an appropriate measure of value. State v. Ensz, 503 N.W.2d 236, 1993 N.D. LEXIS 147 (N.D. 1993).

Evidence was sufficient to show that the value of a washer, dryer, rototiller, ladder, plastic table and lawn chairs taken from a residence exceeded $500. State v. Ebach, 1999 ND 5, 589 N.W.2d 566, 1999 N.D. LEXIS 11 (N.D. 1999).

District court’s order granting the State’s motion in limine precluding defendant from providing alternative values for the services of a body shop that she was charged with having stolen was in error because, inter alia, it removed that determination from the province of the jury and deprived defendant of the opportunity to have proven that a lesser amount was the correct value. State v. Bjerklie, 2006 ND 173, 719 N.W.2d 359, 2006 N.D. LEXIS 175 (N.D. 2006).

Court erred in dismissing a class B felony theft charge at the preliminary hearing because an officer testified that the vehicle was worth over $62,000 when defendant purported to transfer the vehicle payment. State v. Goldmann, 2013 ND 105, 831 N.W.2d 748, 2013 N.D. LEXIS 104 (N.D. 2013).

In a case involving stolen tires, the evidence at trial was sufficient to sustain defendant’s receiving stolen property conviction. The record supported a reasonable inference by the jury that the value of stolen tires exceeded $1,000. State v. Michel, 2020 ND 101, 942 N.W.2d 472, 2020 N.D. LEXIS 102 (N.D. 2020).

—Highest Reasonable Value.

The rationale of this section is that the highest reasonable value is to be used and that the reasonableness of valuation is to be measured against any standard that is fair under the circumstances. State v. Lovejoy, 464 N.W.2d 386, 1990 N.D. LEXIS 260 (N.D. 1990).

Prosecutor’s statement in closing argument that the jury should give stolen property “the highest value by any reasonable standard” was consistent with governing statutes, case law, and the instruction the court gave the jury. State v. Ebach, 1999 ND 5, 589 N.W.2d 566, 1999 N.D. LEXIS 11 (N.D. 1999).

DECISIONS UNDER PRIOR LAW

Limitations on Penalty.

In a sentence for grand larceny, the punishment would be determined within the limitations of the statute. State v. Jochim, 55 N.D. 313, 213 N.W. 484, 1927 N.D. LEXIS 39 (N.D. 1927).

Punishment for Larceny of Animals.

A statute authorizing a more severe penalty for the larceny of poultry and livestock did not create a separate offense from general larceny but only authorized a different penalty when the larceny was committed in a particular manner. State v. Kingen, 58 N.D. 327, 226 N.W. 505, 1929 N.D. LEXIS 214 (N.D. 1929).

Collateral References.

Consideration of sales tax in determining value of stolen property or amount of theft, 63 A.L.R.5th 417.

12.1-23-06. Unauthorized use of a vehicle.

  1. A person is guilty of an offense if, knowing that the person does not have the consent of the owner, the person takes, operates, or exercises control over an automobile, train, aircraft, motorcycle, motorboat, or other motor-propelled vehicle of another.
  2. It is a defense to a prosecution under this section that the actor reasonably believed that the owner would have consented had the owner known of the conduct on which the prosecution was based.
  3. The offense is a class C felony if the vehicle is an aircraft or if the value of the use of the vehicle and the cost of retrieval and restoration exceeds one thousand dollars. Otherwise the offense is a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 22; 1975, ch. 116, § 19; 2013, ch. 104, § 5.

Cross-References.

Altering engine or serial number, penalty, see N.D.C.C. § 39-05-28.

Bringing stolen property into this state, prosecution, see N.D.C.C. § 29-03-01.1.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Registration suspended upon theft of vehicle, see N.D.C.C. § 39-04-07.

Notes to Decisions

“Exercises Control.”

The phrase “exercises control” in subdivision (1) of this section, requires an actor to exercise some degree of authority, direction, or command over the car. In re Anderson, 494 N.W.2d 160 (N.D. 1992).

Mere Presence.

Defendant’s mere presence in the moving car, without evidence that he exercised authority, direction or command over the car, was insufficient, as a matter of law, to support the juvenile court’s determination that defendant committed the delinquent act of unauthorized use of a motor vehicle. In re Anderson, 494 N.W.2d 160 (N.D. 1992).

Suppression of Evidence.

Court did not err in not suppressing evidence of drugs and drug paraphernalia found on defendant after defendant was arrested for possession of a stolen vehicle pursuant to N.D.C.C. § 12.1-23-06(1); while the facts and circumstances known to the officer who stopped the vehicle might not have been sufficient to establish beyond a reasonable doubt that defendant had committed the crime of unauthorized use of a motor vehicle and to support a conviction, they were sufficient, when viewed in totality, to furnish a prudent person with reasonable grounds for believing a violation had occurred. State v. Spidahl, 2004 ND 168, 686 N.W.2d 115, 2004 N.D. LEXIS 298 (N.D. 2004).

DECISIONS UNDER PRIOR LAW

Presumption of Intent.

Former statute was severable, first part making larceny of automobile or motorcycle a felony, and second part establishing presumption of intent; question of constitutionality of second portion of statute was not before court on appeal from larceny conviction where the statutory presumption was never applied at trial to defendant’s disadvantage; instruction allowing jury to infer intent from fact that automobile was taken without owner’s consent was not erroneous since it cast upon the state greater burden than that provided by statute by depriving state of presumptive evidence of intent. State v. Williams, 150 N.W.2d 844, 1967 N.D. LEXIS 136 (N.D. 1967).

Collateral References.

Elements of offense defined in “joyriding” statutes, 9 A.L.R.3d 633.

Motor vehicles, criminal liability in connection with rental of, 38 A.L.R.3d 949.

Validity and construction of statute making it a criminal offense to “tamper” with motor vehicle or contents, or to obscure registration plates, 57 A.L.R.3d 606.

Liability for personal injury or property damage caused by unauthorized use of automobile which had been parked with keys removed from ignition, 70 A.L.R.4th 276.

Joyriding or similar charge as lesser-included offense of larceny or similar charge, 78 A.L.R.5th 567.

Validity, construction, and application of state carjacking statutes, 100 A.L.R.5th 67.

12.1-23-07. Misapplication of entrusted property.

  1. A person is guilty of misapplication of entrusted property if the person disposes of, uses, or transfers any interest in property that has been entrusted to the person as a fiduciary, or in the person’s capacity as a public servant or an officer, director, agent, employee of, or a person controlling a financial institution, in a manner that the person knows is not authorized and that the person knows to involve a risk of loss or detriment to the owner of the property or to the government or other person for whose benefit the property was entrusted.
  2. Misapplication of entrusted property is:
    1. A class A felony if the value of the property misapplied exceeds fifty thousand dollars.
    2. A class B felony if the value of the property misapplied exceeds ten thousand dollars but does not exceed fifty thousand dollars.
    3. A class C felony if the value of the property misapplied exceeds one thousand dollars but does not exceed ten thousand dollars.
    4. A class A misdemeanor if the value of the property misapplied exceeds five hundred dollars but does not exceed one thousand dollars.
    5. A class B misdemeanor in all other cases.

Source: S.L. 1973, ch. 116, § 22; 1989, ch. 167, § 1; 2013, ch. 104, § 6.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Embezzlement by directors of banking corporation, see N.D.C.C. § 6-05-16.

Notes to Decisions

Conversion by Attorney.

Even though an attorney had not yet been charged with a criminal act for conversion of the attorney’s client’s funds, the attorney was disbarred because his conduct and deceitfulness violated N.D. R. Prof. Conduct 1.15(a) and (b), and N.D. R. Lawyer Discipl 1.2(A)(3). Moreover, the attorney’s conduct harmed his client. Disciplinary Board v. Buresh (In re Buresh), 2007 ND 8, 726 N.W.2d 210, 2007 N.D. LEXIS 8 (N.D. 2007).

Course of Conduct.

There is a separate violation of this section each time one misapplies entrusted funds, regardless of whether such misapplication is part of a continuing course of conduct; where state’s attorney withdrew money from publicly owned trust account and applied funds to his personal use, he committed a separate offense after each withdrawal, and where course of conduct began before effective date of section and continued beyond it, withdrawals after effective date could be prosecuted under this section without contravention of N.D.C.C. § 12.1-01-01. State v. Jelliff, 251 N.W.2d 1, 1977 N.D. LEXIS 235 (N.D. 1977).

Elements.

Trial court erred in dismissing a complaint charging defendant with two counts of misapplication of entrusted property, in violation of N.D.C.C. § 12.1-23-07(1), because personal gain to defendant was not an element of the crime; the trial court essentially engrafted an additional element onto the offense that was not included in the statute. State v. Blunt, 2008 ND 135, 751 N.W.2d 692, 2008 N.D. LEXIS 137 (N.D. 2008).

Evidence Sufficient.

Evidence was sufficient to convict defendant of misapplication of entrusted property under N.D.C.C. § 12.1-23-07, because a factfinder could reasonably infer defendant knew the withdrawal and expenditure of the grandmother’s funds was unauthorized when she withdrew and spent the funds, since one could infer she knew these acts were not undertaken to benefit the grandmother pursuant to the durable power of attorney; defendant admitted she gambled with some of the money she withdrew from her grandmother’s account, defendant purchased a vehicle with her grandmother’s money and that she, and not her grandmother, enjoyed the benefits of using the vehicle, the officer testified defendant admitted to using a considerable amount of the grandmother’s money on various types of illegal drugs, and defendant testified she used the grandmother’s funds to pay her own personal debts. State v. Barendt, 2007 ND 164, 740 N.W.2d 87, 2007 N.D. LEXIS 165 (N.D. 2007).

Multiple Transactions.

In a prosecution on a charge of misapplication of entrusted property under N.D.C.C. § 12.1-23-07(1), the district court did not err by submitting a count to the jury involving multiple transactions after granting a judgment of acquittal as to one transaction. Ample evidence remained to establish the elements of the offense and support a conviction. State v. Blunt, 2010 ND 144, 785 N.W.2d 909, 2010 N.D. LEXIS 144 (N.D.), cert. denied, 562 U.S. 1065, 131 S. Ct. 668, 178 L. Ed. 2d 484, 2010 U.S. LEXIS 9173 (U.S. 2010).

DECISIONS UNDER PRIOR LAW

Agents.

To sustain a conviction of embezzlement as an agent, the agency had to be shown. State v. Wine, 7 N.D. 18, 72 N.W. 905, 1897 N.D. LEXIS 40 (N.D. 1897).

An alleged agent was not guilty of embezzling money of alleged principal where the evidence did not show that at the time the money was placed in the hands of the alleged agent, he was the agent of the alleged principal, or that he acted as such in taking the money under the arrangement made between them at that time. State v. Wine, 7 N.D. 18, 72 N.W. 905, 1897 N.D. LEXIS 40 (N.D. 1897).

Where a manufacturer entrusted a vacuum cleaner to its agent for sale at a stated price and the agent sold it as the manufacturer’s property for the stated price, the agent could not be convicted of embezzling the cleaner. State v. Bertrand, 68 N.D. 134, 278 N.W. 237, 1938 N.D. LEXIS 90 (N.D. 1938).

A real estate agent was guilty of embezzlement where he appropriated rent receipts to his own use. State v. Ritter, 72 N.D. 523, 9 N.W.2d 270, 1943 N.D. LEXIS 87 (N.D. 1943).

Aggregation of Acts of Misappropriation.

The aggregate misappropriation of public funds could be treated as one crime and all the embezzlements as parts of the one offense, and the aggregate shortage proven could be more or less than the sum stated in the information. State v. Bickford, 28 N.D. 36, 147 N.W. 407 (N.D. 1914).

“Appropriate.”

The words “appropriate” and “secrete” as used in former statute were descriptive of different acts by which the offense could be committed, and were not intended to describe the means by which the embezzlement was committed. State v. Lonne, 15 N.D. 275, 107 N.W. 524, 1906 N.D. LEXIS 39 (N.D. 1906).

Attorney.

An attorney who embezzled feloniously could properly be disbarred. In re Lyons, 193 N.W.2d 462, 1971 N.D. LEXIS 175 (N.D. 1971).

Bailee for Hire.

A fraudulent conversion of property by bailee for hire was embezzlement and not larceny. State v. Black, 57 N.D. 567, 223 N.W. 303, 1929 N.D. LEXIS 301 (N.D. 1929).

A statutory embezzlement committed by an agent or bailee in secreting property with fraudulent intent was separate and distinct from the crime committed by an officer or servant who fraudulently appropriated property. State v. Ruemmele, 64 N.D. 248, 251 N.W. 879, 1933 N.D. LEXIS 271 (N.D. 1933).

Corporate Officer.

President and manager of corporation was not guilty of embezzling amount allowed to him by resolution of the directors of the corporation, which was received and retained by him pursuant to such resolution, where the state failed to establish that it was falsely and fraudulently appropriated by him. State v. Rud, 54 N.D. 395, 209 N.W. 961, 1926 N.D. LEXIS 160 (N.D. 1926).

Defense of Good Faith.

The defense of good faith was not dependent upon the validity of the claim of title to retain the moneys by the party charged with the embezzlement. State v. Torzeski, 79 N.D. 105, 54 N.W.2d 879, 1952 N.D. LEXIS 102 (N.D. 1952).

Employee.

The taking of grain by a party hired at a monthly salary, to assist in harvesting, threshing, caring for, and transporting the same to market, was larceny and not embezzlement. State v. Ugland, 48 N.D. 841, 187 N.W. 237, 1922 N.D. LEXIS 106 (N.D. 1922).

Evidence Insufficient.

An agent was not guilty of embezzling notes delivered for collection where title to the notes passed to another five days after they were so entrusted, and where evidence failed to show whether act of conversion was prior or subsequent to the date when title was transferred. State v. Collins, 4 N.D. 433, 61 N.W. 467, 1895 N.D. LEXIS 44 (N.D. 1895).

Exact Sum.

It was not necessary to allege the exact sum embezzled in the information and it was not necessary to prove the exact sum charged. State v. Bickford, 28 N.D. 36, 147 N.W. 407 (N.D. 1914).

Fiduciaries.

An unauthorized loan of client’s money by an attorney was a loan on his own account and for his own benefit, a fraud upon his client and a felonious act under former section defining embezzlement by fiduciary. Simpson, 9 N.D. 379, 83 N.W. 541, 1900 N.D. LEXIS 245 (N.D. 1900).

Fraudulent Intent.

A fraudulent intent to appropriate the property was an essential element of the crime of embezzlement. State v. Torzeski, 79 N.D. 105, 54 N.W.2d 879, 1952 N.D. LEXIS 102 (N.D. 1952).

Generally.

Under the statute “embezzlement” arose out of a fraudulent appropriation or conversion of property by a person to whom the property had been entrusted, and who had lawfully acquired possession thereof. State v. Schmidt, 72 N.D. 719, 10 N.W.2d 868, 1943 N.D. LEXIS 110 (N.D. 1943).

Information Insufficient.

An information under former section was indefinite and uncertain where it charged embezzlement by fraudulent appropriation, or embezzlement by secreting the property with intent to fraudulently appropriate it thereafter. State v. Lonne, 15 N.D. 275, 107 N.W. 524, 1906 N.D. LEXIS 39 (N.D. 1906).

An information was defective where it attempted to combine a portion of section defining embezzlement by corporate officer or government agent with portion of section defining embezzlement by a bailee. State v. Ruemmele, 64 N.D. 248, 251 N.W. 879, 1933 N.D. LEXIS 271 (N.D. 1933).

Information Sufficient.

An information charging state treasurer with embezzling public moneys, bank drafts, notes, bills of exchange, and valuable securities of the aggregate value of $60,438.11 was sufficient without specification of items. State v. Bickford, 28 N.D. 36, 147 N.W. 407 (N.D. 1914).

An information charging fraudulent conversion by bailee need not have alleged a demand for the return of the property alleged to have been embezzled. State v. Hoff, 29 N.D. 412, 150 N.W. 929, 1915 N.D. LEXIS 18 (N.D. 1915).

Information charging officer of bank with embezzling “property of said bank” was sufficient where it stated that the property was $13,400. State v. Hastings, 54 N.D. 871, 211 N.W. 813, 1926 N.D. LEXIS 98 (N.D. 1926).

An indictment or information for embezzlement did not need to describe the property with particularity but could describe it in general terms. State v. O'Connor, 58 N.D. 554, 226 N.W. 601, 1929 N.D. LEXIS 250 (N.D. 1929).

An information against a county auditor was sufficient where it alleged that “he did aid and advise” in the commission of the acts which the treasurer was charged with having committed. State v. Schmidt, 72 N.D. 719, 10 N.W.2d 868, 1943 N.D. LEXIS 110 (N.D. 1943).

An information charging the defendant, while acting county auditor, with unlawfully participating in the embezzlement of county funds, if the offense was fully described, was sufficient without referring to the section or subsection of the statute creating the offense charged. State v. Schmidt, 72 N.D. 719, 10 N.W.2d 868, 1943 N.D. LEXIS 110 (N.D. 1943).

Money, Bank Notes, Etc.

A fraudulent appropriation of property was an essential element of the embezzlement of a savings bank’s “money, bank notes, and other funds”. State v. O'Connor, 58 N.D. 554, 226 N.W. 601, 1929 N.D. LEXIS 250 (N.D. 1929).

Ownership.

In a prosecution for embezzlement under the statute, it was necessary to allege the ownership of the property embezzled and to prove the same as alleged. State v. Collins, 4 N.D. 433, 61 N.W. 467, 1895 N.D. LEXIS 44 (N.D. 1895).

Partners.

A partner could not commit the offense of embezzling property belonging to the firm. State v. Wine, 7 N.D. 18, 72 N.W. 905, 1897 N.D. LEXIS 40 (N.D. 1897).

Public Officer.

A public officer committed embezzlement by fraudulent failure to account for funds. State v. Bickford, 28 N.D. 36, 147 N.W. 407 (N.D. 1914).

The fraudulent appropriation by a county auditor of moneys collected for licenses was embezzlement. State v. Kopriva, 51 N.D. 778, 201 N.W. 167, 1924 N.D. LEXIS 84 (N.D. 1924).

Trust.

One entrusted with money for safekeeping was a bailee of the money and was guilty of embezzlement where he appropriated it to a purpose not in the lawful execution of the trust under which it was held. State v. Hoff, 29 N.D. 412, 150 N.W. 929, 1915 N.D. LEXIS 18 (N.D. 1915).

12.1-23-08. Defrauding secured creditors.

  1. An owner of property who creates a security interest in such property may not intentionally alter, conceal, destroy, damage, encumber, transfer, remove, or otherwise deal with property that is subject to the security interest without the prior consent of the secured party if that action has the effect of hindering the enforcement of the security interest.
  2. A person may not destroy, remove, damage, conceal, encumber, transfer, or otherwise deal with property that is subject to a security interest with the intent to prevent collection of the debt represented by the security interest.
  3. A person may not, at the time of sale of property that is subject to a security interest, or is described in a certificate provided for under section 41-09-28, make false statements as to the existence of security interests in the property, or as to the ownership or location of the property.
  4. A violation of subsection 2 or 3 must be prosecuted as theft under section 12.1-23-02 or 12.1-23-04. Violation of subsection 2 or 3 is a class C felony if the property has a value of more than one thousand dollars, as determined under subsection 7 of section 12.1-23-05. In all other cases, violation of this section is a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 22; 1983, ch. 168, § 1; 1985, ch. 179, § 1; 2013, ch. 104, § 7.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Secured transactions, see N.D.C.C. ch. 41-09.

Notes to Decisions

Complaint Filed Before Note Due.

Criminal complaint charging debtor with defrauding a secured creditor and filed before note was due was timely filed where note contained an acceleration clause and secured creditor was justifiably insecure because debtor had sold collateral securing debt without applying proceeds to debt as requested by secured party; debtor had notice that creditor wanted proceeds so applied; debtor failed to notify creditor of location of some of collateral after receiving a letter of inquiry by secured creditor; and debtor left state making it impossible for secured creditor to further discuss use of proceeds. State v. Patten, 353 N.W.2d 26, 1984 N.D. LEXIS 336 (N.D. 1984).

Culpability.

This section is not a strict or absolute liability offense, and state must prove a defendant’s culpability beyond a reasonable doubt. State v. Miller, 357 N.W.2d 225, 1984 N.D. LEXIS 411 (N.D. 1984).

Debtor’s Duty at Auction.

Debtor had a good faith obligation, if not a statutory duty under this section, to inform auctioneer which items of property sold were subject to bank’s security interest and which items were not; in light of debtor’s failure to do so, the bank’s steps to protect its interest as a secured creditor by requesting that the auction proceeds be paid jointly to debtor and the bank were reasonable. Union State Bank v. Woell, 434 N.W.2d 712, 1989 N.D. LEXIS 12 (N.D. 1989).

Evidence.

Evidence that defendants pledged 8,500 bushels of wheat to secure a loan and that sometime thereafter only 261 bushels could be accounted for was, by itself, insufficient to permit jury to infer that defendants destroyed, concealed, encumbered, transferred, or otherwise dealt with wheat, and was insufficient to sustain defendants’ conviction for defrauding a secured creditor. State v. Miller, 357 N.W.2d 225, 1984 N.D. LEXIS 411 (N.D. 1984).

Intent to Prevent Collection of the Debt.
—In General.

Defendant’s refusal to apply proceeds from sale of collateral to debt as requested by creditor was an act that demonstrated his intent to prevent collecting of a debt represented by a security interest, in violation of this section. State v. Patten, 353 N.W.2d 26, 1984 N.D. LEXIS 336 (N.D. 1984).

Defendant borrowed money from the bank and pledged his livestock as collateral. Where defendant sold his livestock and, except for a small amount, did not pay the proceeds on his debt, and where there was evidence from bank personnel that no one from the bank authorized defendant to use the proceeds from the sale of the collateral for anything but repayment of the debt, the jury could reasonably infer that the defendant intended to prevent collection of the debt in violation of this section. State v. Martinsons, 462 N.W.2d 458, 1990 N.D. LEXIS 232 (N.D. 1990).

—Refusal to Apply Proceeds.

A refusal to apply proceeds from the sale of secured property demonstrates an intent to prevent the collection of a debt represented by a security interest in violation of this section. State v. Heintze, 482 N.W.2d 590, 1992 N.D. LEXIS 49 (N.D. 1992).

12.1-23-08.1. Removal of identification marks.

  1. A person commits the offense of removal of identification marks if he, with intent to cause interruption of the ownership of another, defaces, erases, or otherwise alters any serial number or identification mark placed or inscribed on any personal property by the manufacturer or owner for the purpose of identifying the personal property or its component parts, provided the personal property exceeds one hundred dollars in value. A person removes identification marks if he attempts to or succeeds in erasing, defacing, altering, or removing a serial number or identification mark or part thereof, on the personal property of another, that exceeds one hundred dollars in value.
  2. A person who commits the offense of removal of identification marks on property or its component parts which exceeds one hundred dollars in value is guilty of a class A misdemeanor.

Source: S.L. 1977, ch. 125, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Criminal liability, under state law, concerning illegal removal or alteration of vehicle identification number, including sale or possession of altered motor vehicles or parts, 107 A.L.R.5th 567.

12.1-23-08.2. Possession of altered property.

  1. A person is guilty of the offense of possession of altered property if he possesses property the identifying features of which, including serial numbers or labels, have been removed or in any fashion altered, knowing the serial number or identification mark placed on the same by the manufacturer or owner for the purpose of identification, has been erased, altered, changed, or removed for the purpose of changing the identity of such personal property.
  2. A person who commits the offense of possession of altered property or its component parts which exceed one hundred dollars in value, shall be guilty of a class A misdemeanor. In the event that more than one item of personal property is defaced, erased, or otherwise altered or unlawfully possessed, as specified in sections 12.1-23-08.2 and 12.1-23-08.3, by an individual, then an offense is determined to be committed under this section if the aggregate of the value of the property so defaced, erased, or otherwise altered or unlawfully possessed is in excess of one hundred dollars.

Source: S.L. 1977, ch. 125, § 2.

Collateral References.

Criminal liability, under state law, concerning illegal removal or alteration of vehicle identification number, including sale or possession of altered motor vehicles or parts, 107 A.L.R.5th 567.

12.1-23-08.3. Dealing in stolen property.

  1. A person is guilty of the offense of dealing in stolen property if he:
    1. Traffics in, or endeavors to traffic in, the property of another that has been stolen; or
    2. Initiates, organizes, plans, finances, directs, manages, or supervises the theft and trafficking in the property of another that has been stolen.
  2. A person who commits the offense of dealing in stolen property in violation of:
    1. Subdivision a of subsection 1 shall be guilty of a class C felony; or
    2. Subdivision b of subsection 1 shall be guilty of a class B felony.

Source: S.L. 1977, ch. 125, § 3.

Notes to Decisions

More Than One Selling.

This section was enacted to facilitate prosecution of fences, i.e., those who deal in stolen property as a routine business, both within and without the state. In view of the legislative history of this section, it is not likely that the drafters intended the offense of dealing in stolen property to encompass just one instance of selling stolen property. State v. Haugen, 365 N.W.2d 549, 1985 N.D. LEXIS 287 (N.D. 1985).

Section requires more than one instance of selling stolen property to constitute the offense of dealing in stolen property. State v. Haugen, 365 N.W.2d 549, 1985 N.D. LEXIS 287 (N.D. 1985).

Negotiations conducted once in the morning and again in the afternoon did not constitute two instances of selling stolen property, where the afternoon meeting was a continuation of the negotiations conducted earlier that day. Therefore, conduct did not constitute “dealing in stolen property.” State v. Haugen, 365 N.W.2d 549, 1985 N.D. LEXIS 287 (N.D. 1985).

In reconciling N.D.C.C. § 12.1-23-02(3) and subsection (1) of this section, it is likely that subsection (1) was designed to prosecute a person who sells stolen property on more than one occasion rather than in one isolated instance. The disposing of stolen property on one occasion is already prohibited by N.D.C.C. § 12.1-23-02(3), provided the state proves the necessary culpability requirements. State v. Haugen, 365 N.W.2d 549, 1985 N.D. LEXIS 287 (N.D. 1985).

Collateral References.

Conviction of receiving stolen property, or related offenses, where stolen property previously placed under police control, 72 A.L.R.4th 838.

Participation in larceny or theft as precluding conviction for receiving or concealing the stolen property, 29 A.L.R.5th 59.

12.1-23-08.4. Duplication of keys.

  1. Except as provided in subsection 2, no person shall duplicate or make a key from another key marked with the words “Do Not Duplicate”, “Do Not Copy”, or words of similar intent.
  2. It shall be an affirmative defense to prosecution under subsection 1 that:
    1. The person made or duplicated the key for his employer, solely for use within the employer’s place of business.
    2. The person for whom the key was made or duplicated owns the lock which the key fits.
  3. Any person who violates any provision of this section is guilty of a class B misdemeanor.

Source: S.L. 1979, ch. 181, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-23-09. Defenses and proof as to theft and related offenses.

  1. It is a defense to a prosecution under this chapter that:
    1. The actor reasonably believed that the actor had a claim to the property or services involved which the actor was entitled to assert in the manner which forms the basis for the charge against the actor; or
    2. The victim is the actor’s spouse, but only when the property involved constitutes household or personal effects or other property normally accessible to both spouses and the parties involved are living together. The term “spouse”, as used in this section, includes persons living together as husband and wife.
  2. It does not constitute a defense to a prosecution for conduct constituting an offense in violation of this chapter that:
    1. Stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed;
    2. A facility or an opportunity to engage in such conduct, including offering for sale property not stolen as if it were stolen, was provided; or
    3. Mere solicitation that would not induce an ordinary law-abiding person to engage in such conduct was made by a law enforcement officer to gain evidence against a person predisposed to engage in such conduct.
    1. It is a prima facie case of theft under this chapter if it is shown that a public servant or an officer, director, agent, employee of, or a person connected in any capacity with a financial institution has failed to pay or account upon lawful demand for money or property entrusted to the person as part of that person’s official duties or if an audit reveals a shortage or falsification of the person’s accounts.
    2. It is a prima facie case of theft under this chapter if it is shown that a person, having successfully bid on and obtained an item at an auction, removed the item from the auction premises without paying or making provisions to pay for the item.
    3. Proof of the purchase or sale of stolen property at a price substantially below its fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.
    4. Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business, or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.
  3. The testimony of an accomplice, if believed beyond a reasonable doubt, is sufficient for a conviction for conduct constituting an offense in violation of sections 12.1-23-08.1 through 12.1-23-08.3 when:
    1. Stratagem or deception, including the use of an undercover operative or law enforcement officer, was employed;
    2. A facility or an opportunity to engage in such conduct including offering for sale property not stolen as if it were stolen, was provided; or
    3. Mere solicitation that would not induce an ordinary law-abiding person to engage in such conduct was made by a law enforcement officer to gain evidence against a person predisposed to engage in such conduct.

Source: S.L. 1973, ch. 116, § 22; 1975, ch. 116, § 20; 1977, ch. 125, § 4; 1989, ch. 168, § 1; 2013, ch. 104, § 8.

Notes to Decisions

Jury Instruction.

Where defendant charged with attempted theft by deception based on his backdating a life insurance premium payment check to a date prior to his son’s death failed to introduce any evidence suggesting he had an honest belief he was entitled to claim the insurance proceeds, the trial court’s failure to instruct the jury on a claim of right defense did not constitute obvious error. State v. Burger, 1999 ND 30, 590 N.W.2d 197, 1999 N.D. LEXIS 32 (N.D. 1999).

Spouse of Victim Defense.

District court erred in dismissing the felony theft of property count for lack of probable cause because, at the preliminary hearing, the State needed to establish that someone other than defendant had an interest in the property which defendant was not privileged to infringe without consent; the State did not need to have the victim testify as probable cause could be based on hearsay and other evidence that would be inadmissible at trial; a deputy testified that the victim told him that she owned the vehicles and defendant did not have permission to take them; the vehicle was property of the victim; and, even if defendant had a marital property interest in the vehicle, that interest did not prevent him from being prosecuted for theft. State v. Gratton, 2020 ND 41, 938 N.W.2d 902, 2020 N.D. LEXIS 37 (N.D. 2020).

12.1-23-10. Definitions for theft and related offenses.

In this chapter:

  1. “Dealer in property” means a person who buys or sells property as a business.
  2. “Deception” means:
    1. Creating or reinforcing a false impression as to fact, law, status, value, intention, or other state of mind; or obtaining or attempting to obtain public assistance by concealing a material fact, making a false statement or representation, impersonating another, concealing the transfer of property without adequate consideration, or using any other fraudulent method; but deception as to a person’s intention to perform a promise may not be inferred from the fact alone that the person did not substantially perform the promise unless it is part of a continuing scheme to defraud;
    2. Preventing another from acquiring information which would affect his judgment of a transaction;
    3. Failing to correct a false impression which the actor previously created or reinforced, or which he knows to be influencing another to whom he stands in a fiduciary or confidential relationship;
    4. Failing to correct an impression which the actor previously created or reinforced and which the actor knows to have become false due to subsequent events;
    5. Failing to disclose a lien, adverse claim, or other impediment to the enjoyment of property which he transfers or encumbers in consideration for the property obtained or in order to continue to deprive another of his property, whether such impediment is or is not valid, or is or is not a matter of official record;
    6. Using a credit card, charge plate, or any other instrument which purports to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer:
      1. Where such instrument has been stolen, forged, revoked, or canceled, or where for any other reason its use by the actor is unauthorized; and
      2. Where the actor does not have the intention and ability to meet all obligations to the issuer arising out of his use of the instrument; or
    7. Any other scheme to defraud. The term “deception” does not, however, include falsifications as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed. “Puffing” means an exaggerated commendation of wares in communications addressed to the public or to a class or group.
  3. “Deprive” means:
    1. To withhold property or to cause it to be withheld either permanently or under such circumstances that a major portion of its economic value, or its use and benefit, has, in fact, been appropriated;
    2. To withhold property or to cause it to be withheld with the intent to restore it only upon the payment of a reward or other compensation; or
    3. To dispose of property or use it or transfer any interest in it under circumstances that make its restoration, in fact, unlikely.
  4. “Fiduciary” means a trustee, guardian, executor, administrator, receiver, or any other person acting in a fiduciary capacity, or any person carrying on fiduciary functions on behalf of a corporation, limited liability company, or other organization which is a fiduciary.
  5. “Financial institution” means a bank, insurance company, credit union, safety deposit company, savings and loan association, investment trust, or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.
  6. “Obtain” means:
    1. In relation to property, to bring about a transfer or purported transfer of an interest in the property, whether to the actor or another.
    2. In relation to services, to secure performance thereof.
  7. “Property” means any money, tangible or intangible personal property, property (whether real or personal) the location of which can be changed (including things growing on, affixed to, or found in land and documents although the rights represented thereby have no physical location), contract right, chose-in-action, interest in or claim to wealth, credit, or any other article or thing of value of any kind. “Property” also means real property the location of which cannot be moved if the offense involves transfer or attempted transfer of an interest in the property.
  8. “Property of another” means property in which a person other than the actor or in which a government has an interest which the actor is not privileged to infringe without consent, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person or government might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement. “Owner” means any person or a government with an interest in property such that it is “property of another” as far as the actor is concerned.
  9. “Receiving” means acquiring possession, control, or title, or lending on the security of the property.
  10. “Services” means labor, professional service, transportation, telephone, mail or other public service, gas, electricity and other public utility services, accommodations in hotels, restaurants, or elsewhere, admission to exhibitions, and use of vehicles or other property.
  11. “Shoplifting” means to willfully take possession of any merchandise owned, held, offered, or displayed for sale, by a merchant, store, or other mercantile establishment, with the intent to deprive the owner of the merchandise. The term includes:
    1. Removing merchandise from a store or other mercantile establishment without paying for the merchandise;
    2. Concealing a nonpurchased good or merchandise;
    3. Altering, transferring, or removing a price marking on a good or merchandise;
    4. Transferring a good from one container to another; and
    5. Causing the amount paid for a good or merchandise to be less than the stated retail price.
  12. “Stolen” means property which has been the subject of theft or robbery or a vehicle which is received from a person who is then in violation of section 12.1-23-06.
  13. “Threat” means an expressed purpose, however communicated, to:
    1. Cause bodily injury in the future to the person threatened or to any other person;
    2. Cause damage to property;
    3. Subject the person threatened or any other person to physical confinement or restraint;
    4. Engage in other conduct constituting a crime;
    5. Accuse anyone of a crime;
    6. Expose a secret or publicize an asserted fact, whether true or false, tending to subject a person living or deceased, to hatred, contempt, or ridicule or to impair another’s credit or business repute;
    7. Reveal any information sought to be concealed by the person threatened;
    8. Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense;
    9. Take or withhold official action as a public servant, or cause a public servant to take or withhold official action;
    10. Bring about or continue a strike, boycott, or other similar collective action to obtain property or deprive another of his property which is not demanded or received for the benefit of the group which the actor purports to represent;
    11. Cause anyone to be dismissed from his employment, unless the property is demanded or obtained for lawful union purposes; or
    12. Do any other act which would not in itself substantially benefit the actor or a group he represents but which is calculated to harm another person in a substantial manner with respect to his health, safety, business, employment, calling, career, financial condition, reputation, or personal relationship.
  14. “Traffic” means:
    1. To sell, transfer, distribute, dispense, or otherwise dispose of to another person; or
    2. To buy, receive, possess, or obtain control of, with intent to sell, transfer, distribute, dispense, or otherwise dispose of to another person.

Upon a charge of theft, the receipt of property in consideration for taking or withholding official action shall be deemed to be theft by threat regardless of whether the owner voluntarily parted with his property or himself initiated the scheme.

Source: S.L. 1973, ch. 116, § 22; 1977, ch. 125, § 5; 1993, ch. 54, § 106; 1993, ch. 123, § 1; 2021, ch. 107, § 2, effective April 16, 2021.

Notes to Decisions

Credit Card.

In a trial for theft arising from accumulation of debt on credit card, the trial court did not commit reversible error in refusing to give requested jury instructions to the effect that a husband is not responsible for his wife’s actions. State v. Huwe, 413 N.W.2d 350, 1987 N.D. LEXIS 411 (N.D. 1987), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

In prosecution for theft by deception, the trial court did not err in allowing the introduction in evidence of a credit card application, which the defendant claimed he did not sign, and the complete listing of credit charges which included charges made by his wife, because the credit card application showed not only that the defendant had been authorized a card, but also that there was a $1,000 credit limit on the account, and the lists documenting the charges made by both the defendant and his wife were also relevant because they had a tendency of showing that the defendant must have been aware that the credit limit had been exceeded. State v. Huwe, 413 N.W.2d 350, 1987 N.D. LEXIS 411 (N.D. 1987), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

Where the defendant knowingly used a credit card far beyond the authorized credit limit, was more than $200,000 in debt during this period of time, his income was minimal in relation to his debts, and he filed for bankruptcy shortly thereafter, there was substantial evidence in the record for the jury to convict defendant of the crime of theft by deception. State v. Huwe, 413 N.W.2d 350, 1987 N.D. LEXIS 411 (N.D. 1987), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

Deception.

The defendant did intend to create or reinforce a false impression with his forgery of the buyer’s signature on a bill of sale; the buyer had returned cattle that did not give birth with the understanding that they would be exchanged, and the bill of sale was intended to discourage the buyer from pursuing legal action when the defendant instead sent the buyer a monetary sum for each head of returned cattle. State v. Bollingberg, 2004 ND 30, 674 N.W.2d 281, 2004 N.D. LEXIS 33 (N.D. 2004).

Intent.

In prosecution for theft by deception, the defendant’s filing for bankruptcy within six months after credit charges were made had some probative value as to whether he had the intention or ability to pay off the debt at the time the charges were made, even though there was no evidence that he was contemplating bankruptcy at the time the credit charges were made. State v. Huwe, 413 N.W.2d 350, 1987 N.D. LEXIS 411 (N.D. 1987), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

Interpretation of Statute.

Sections 12.1-23-02 and this section are virtually identical to sections 1732 and 1741 of the Final Report of the National Commission on Reform of Federal Criminal Laws. Because these statutes are derived from the proposed Federal Criminal Code, courts may look to the official commentaries of the proposed code for guidance in the meaning and application of these statutes. State v. Bastien, 436 N.W.2d 229, 1989 N.D. LEXIS 31 (N.D. 1989).

Manufacture of False Evidence.

The broad definitions of conspiracy, theft of property, and deception evidence a legislative intent that conspiracy to commit theft by deception encompass an agreement to knowingly manufacture evidence to support a false claim in a civil action. State v. Bastien, 436 N.W.2d 229, 1989 N.D. LEXIS 31 (N.D. 1989).

An agreement to knowingly manufacture evidence for a civil lawsuit seeking compensation for a claimed loss, knowing that no actual loss occurred, constitutes conspiracy to commit theft by deception. State v. Bastien, 436 N.W.2d 229, 1989 N.D. LEXIS 31 (N.D. 1989).

Property of Another.

Fact that one person has title to property does not preclude property from being property of another person within meaning of this section; fact that title to automobile remained in name of defendant at time of its theft did not preclude a finding that defendant took or exercised unauthorized control over property of another where there was evidence that defendant had traded car to another person prior to its theft. State v. Cox, 325 N.W.2d 181, 1982 N.D. LEXIS 339 (N.D. 1982).

District court erred in dismissing the felony theft of property count for lack of probable cause because, at the preliminary hearing, the State needed to establish that someone other than defendant had an interest in the property which defendant was not privileged to infringe without consent; the State did not need to have the victim testify as probable cause could be based on hearsay and other evidence that would be inadmissible at trial; a deputy testified that the victim told him that she owned the vehicles and defendant did not have permission to take them; the vehicle was property of the victim; and, even if defendant had a marital property interest in the vehicle, that interest did not prevent him from being prosecuted for theft. State v. Gratton, 2020 ND 41, 938 N.W.2d 902, 2020 N.D. LEXIS 37 (N.D. 2020).

Theft by Deception.

Defendant’s argument that his conduct was only a breach of contract and not a crime overlooked the “continuing scheme” statutory language in N.D.C.C. § 12.1-23-02; while theft by deception is limited so that a fraudulent intent not to perform a promise cannot be inferred from the nonperformance of a contract, if the nonperformance is part of a continuing scheme to defraud, deceptive intent may be inferred. State v. Hersch, 445 N.W.2d 626, 1989 N.D. LEXIS 160 (N.D. 1989).

Double-billing by accountant for three or four quarters, at $210 per quarter, supported conviction of theft in excess of $500, where accountant had another board member sign blank checks, then made the checks payable to himself, provided the required second signature, filed invoices and canceled checks in records stored in his office, and never showed those records to any other representative of organization, from which conduct a rational factfinder could find a continuing scheme to defraud. State v. Trosen, 547 N.W.2d 735, 1996 N.D. LEXIS 138 (N.D. 1996).

Deception includes both creating or reinforcing a false impression as to a fact, as well as failing to correct a false impression which the actor previously created. State v. Burger, 1999 ND 30, 590 N.W.2d 197, 1999 N.D. LEXIS 32 (N.D. 1999).

Defendant’s backdating life insurance premium check to a date prior to his son’s death and his representation that he had written and mailed the check before his son’s death constituted “deception” within the meaning of the statute. State v. Burger, 1999 ND 30, 590 N.W.2d 197, 1999 N.D. LEXIS 32 (N.D. 1999).

DECISIONS UNDER PRIOR LAW

Definition in Jury Instruction.

A defendant on trial for larceny was entitled to have definition of the word “steal” given in a charge to the jury so that the jurors could apply the evidence to the charge with a full understanding of its meaning. State v. Tough, 12 N.D. 425, 96 N.W. 1025, 1903 N.D. LEXIS 41 (N.D. 1903).

Generally.

Under C.L. 1913, § 9916, “grand larceny” was the taking of personal property exceeding twenty dollars in value, or when the property was taken from the person of another without regard to its value. State v. Bossart, 62 N.D. 11, 241 N.W. 78, 1932 N.D. LEXIS 145 (N.D. 1932).

Under C.L. 1913, § 9916, “petit larceny” was the taking of personal property not from the person of another, nor of value exceeding twenty dollars. State v. Bossart, 62 N.D. 11, 241 N.W. 78, 1932 N.D. LEXIS 145 (N.D. 1932).

Collateral References.

Validity and construction of terroristic threat statutes, 45 A.L.R.4th 949.

Possession of stolen property as continuing offense, 24 A.L.R.5th 132.

12.1-23-11. Unauthorized use of personal identifying information — Penalty.

  1. As used in this section, “personal identifying information” means any of the following information:
    1. An individual’s name;
    2. An individual’s address;
    3. An individual’s telephone number;
    4. The operator’s license information assigned to an individual by the department of transportation under section 39-06-14;
    5. An individual’s social security number;
    6. An individual’s employer or place of employment;
    7. An identification number assigned to the individual by the individual’s employer;
    8. The maiden name of the individual’s mother;
    9. An individual’s financial institution account number, credit card number, or debit card number;
    10. An individual’s birth, death, or marriage certificate;
    11. An individual’s health insurance policy number or subscriber identification number or any unique identifier used by a health insurer to identify the individual;
    12. The nondriver color photo identification card information assigned to the individual by the department of transportation under section 39-06-03.1;
    13. An individual’s digitized or other electronic signature;
    14. An individual’s photograph or computerized image;
    15. An individual’s electronic mail address;
    16. An individual’s username and password of any digital service or computer system;
    17. An individual’s payment card information;
    18. An individual’s biometric data; or
    19. Any other numbers, documents, or information that can be used to access another person’s financial records.
  2. An individual is guilty of an offense if the individual obtains or attempts to obtain, transfers, records, or uses or attempts to use any personal identifying information of another individual, living or deceased, to obtain credit, money, goods, services, or anything else of value without the authorization or consent of the other individual. The offense is a class B felony if the credit, money, goods, services, or anything else of value exceeds one thousand dollars in value, otherwise the offense is a class C felony. A second or subsequent offense is a class A felony.
  3. A person is guilty of an offense if the person uses or attempts to use any personal identifying information of an individual, living or deceased, without the authorization or consent of the individual, in order to interfere with or initiate a contract or service for a person other than that individual, to obtain or continue employment, to gain access to personal identifying information of another individual, or to commit an offense in violation of the laws of this state, regardless of whether there is any actual economic loss to the individual. A first offense under this subsection is a class A misdemeanor. A second or subsequent offense under this subsection is a class C felony.
  4. A violation of this section, of a law of another state, or of federal law that is equivalent to this section and which resulted in a plea or finding of guilt must be considered a prior offense. The prior offense must be alleged in the complaint, information, or indictment. The plea or finding of guilt for the prior offense must have occurred before the date of the commission of the offense or offenses charged in the complaint, information, or indictment.
  5. A prosecution for a violation of this section must be commenced within six years after discovery by the victim of the offense of the facts constituting the violation.
  6. When a person commits violations of this section in more than one county involving either one or more victims or the commission of acts constituting an element of the offense, the multiple offenses may be consolidated for commencement of prosecution in any county where one of the offenses was committed.

Source: S.L. 1999, ch. 128, § 1; 2005, ch. 116, § 1; 2005, ch. 447, § 1; 2013, ch. 105, § 1; 2013, ch. 106, § 1; 2013, ch. 107, § 1; 2019, ch. 111, § 2, effective August 1, 2019.

Note.

Section 12.1-23-11 was amended 3 times by the 2013 Legislative Assembly. Pursuant to section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in section 1 of chapter 105, Session Laws 2013, House Bill 1197; section 1 of chapter 106, Session Laws 2013, House Bill 1435; and section 1 of chapter 107, Session Laws 2013, House Bill 1280.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-23-12. Jurisdiction — Conduct outside this state.

Notwithstanding section 29-03-01.1, a person who, while outside this state and by use of deception, obtains, deprives, or conspires, solicits, or attempts to obtain the property of a person within this state or to deprive the person of property is subject to prosecution under this chapter in the courts of this state. Except as provided in section 12.1-23-11, the venue is in the county in which the victim resides or any other county in which any part of the crime occurred.

Source: S.L. 1999, ch. 129, § 1; 2005, ch. 116, § 2; 2005, ch. 447, § 2.

12.1-23-13. Distribution and use of theft detection shielding devices.

  1. A person is guilty of unlawful distribution of a theft detection shielding device if the person knowingly manufactures, sells, offers for sale, or distributes any laminated or coated bag or device peculiar to shielding and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor.
  2. A person is guilty of unlawful possession of a theft detection shielding device if the person knowingly possesses any laminated or coated bag or device peculiar to and designed for shielding and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor, with the intent to commit theft.
  3. A person is guilty of unlawful possession of a theft detection device deactivator or remover if the person knowingly possesses any tool or device designed to allow the deactivation or removal of any theft detection device from any merchandise without the permission of the merchant or person owning or holding the merchandise.
  4. A person is guilty of unlawful deactivation or removal of a theft detection device if the person intentionally deactivates or removes the device from a product before purchase.
  5. A person is guilty of unlawful distribution of a theft detection device deactivator or remover if the person knowingly manufactures, sells, offers for sale, or distributes any tool or device designed to allow the deactivation or removal of a theft detection device from merchandise without the permission of the merchant or person owning or holding the merchandise.
  6. An offense under subsections 1 and 5 is a class C felony. An offense under subsections 2, 3, and 4 is a class A misdemeanor.

Source: S.L. 2003, ch. 108, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-23-14. Detention of persons suspected of unlawful use or removal of theft detection devices — Reasonable cause.

  1. The activation of an antishoplifting or inventory control device as a result of a person exiting the establishment or a protected area within the establishment constitutes reasonable cause for the detention of the person exiting by the owner or operator of the establishment or by an agent or employee of the owner or operator, provided sufficient notice has been posted to advise the patrons that the device is being utilized. Each detention must be made in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the device or for the recovery of goods.
  2. If the taking into custody and detention of the person by a law enforcement officer, security officer, merchant, or merchant’s employee is done in compliance with the requirements of this section, the law enforcement officer, security officer, merchant, or merchant’s employee may not be held criminally or civilly liable, including any liability for false arrest, false imprisonment, unlawful detention, malicious prosecution, intentional infliction of emotional distress, or defamation.

Source: S.L. 2003, ch. 108, § 1.

12.1-23-15. Purchase of beer kegs — Penalty.

A recycler, scrap metal dealer, or scrapyard operator may not purchase a metal beer keg, whether damaged or undamaged, except from the brewer or the brewer’s authorized representative, if:

  1. The keg is clearly marked as the property of a brewery manufacturer; or
  2. The keg’s identification markings have been made illegible.

A person who willfully violates this section is guilty of a class B misdemeanor.

Source: S.L. 2009, ch. 132, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-23-16. Automated sales suppression device, zapper, or phantom-ware — Prohibition — Penalties.

  1. For purposes of this section:
    1. “Automated sales suppression device” or “zapper” means a software program accessed through any method which falsifies the electronic records, transaction data, or transaction reports of electronic cash registers and other point-of-sale systems.
    2. “Electronic cash register” means a device that keeps a register or supporting documents through the use of an electronic device or computer system designed to record transaction data for the purpose of computing, compiling, or processing retail sales transaction data or transaction reports.
    3. “Phantom-ware” means a hidden, preinstalled or installed at a later time, programming option embedded in the operating system of an electronic cash register or hardwired into the electronic cash register, which can be used to create a virtual second cash register or that can eliminate or manipulate transaction records that may be preserved in digital formats to represent the true or manipulated transaction data or reports in the electronic cash register and is intended to falsify the electronic records of an electronic cash register or other point-of-sale system.
    4. “Transaction data” means items purchased by a customer, the price for each item, a taxability determination for each item, a segregated tax amount for each of the taxed items, the amount of cash or credit tendered, the net amount returned to the customer in change, the date and time of purchase, the name, address, and identification number of the vendor, and the receipt or invoice number of the transaction.
    5. “Transaction report” means a report documenting sales, the tax collected, methods of payment, voided sales, or other information at an electronic cash register which is printed on cash register tape at the end of a day or shift, or a report documenting every transaction at an electronic cash register that is stored electronically.
  2. It is unlawful to willfully sell, purchase, possess, install, transfer, manufacture, own, or use in this state, an automated sales suppression device, zapper, or phantom-ware.
  3. Any person convicted of a violation under subsection 2 is guilty of a class B felony. Any person convicted of a second or subsequent violation of subsection 2 is guilty of a class A felony and also is subject to a civil penalty of not more than one hundred thousand dollars.
  4. It is a defense to prosecution under this section that the person purchased, possessed, installed, transferred, owned, or used in this state, an automated sales suppression device, zapper, or phantom-ware for a legitimate purpose.
  5. Any person violating subsection 2 is liable for all sales and use tax, income tax, or other tax under title 57, and any county or city sales and use tax imposed under sections 11-09.2-05 and 40-05.1-06, and associated penalties and interest due the state as the result of the fraudulent use of an automated sales suppression device, zapper, or phantom-ware. Any tax found to be due must be assessed at double the amount so determined.
  6. The person shall forfeit all proceeds associated with the sale or use of an automated sales suppression device, zapper, or phantom-ware. The proceeds forfeited under this section must be deposited with the state treasurer for deposit in the state general fund.
  7. An automated sales suppression device, zapper, or phantom-ware, and the cash register or other device containing the device or the software, is contraband and subject to forfeiture in accordance with chapter 29-31.1.

Source: S.L. 2013, ch. 108, § 1.

12.1-23-17. Unlawful skimming of credit, debit, or other electronic payment cards — Penalty. [Repealed]

Source: S.L. 2013, ch. 108, § 2; repealed by 2019, ch. 111, § 4, effective August 1, 2019.

12.1-23-18. Definitions.

As used in this chapter:

  1. “Payment card” means a credit card, charge card, debit card, or any other card issued to an authorized card user which allows the user to obtain, purchase, or receive credit, money, goods, services, or anything else of value.
  2. “Re-encoder” means an electronic device that places encoded information from the computer chip or magnetic strip or stripe of a payment card onto the computer chip or magnetic strip or stripe of a different payment card, driver’s license, or state-issued identification card, or any electronic medium that allows an authorized transaction to occur.
  3. “Scanning device” means a scanner, reader, or any other electronic device used to access, read, scan, obtain, memorize, or store, information encoded on a computer chip or magnetic strip or stripe of a payment card, driver’s license, or state-issued identification card.
  4. “Skimmer” means an electronic, photographic, visual imaging, recording, or other device capable of accessing, reading, recording, capturing, copying, imaging, scanning, reproducing, or storing in any manner the financial information contained on a payment card or encoded on a computer chip or magnetic strip or stripe of a payment card.

Source: S.L. 2019, ch. 111, § 1, effective August 1, 2019.

12.1-23-19. Use and possession of re-encoders and scanning devices — Penalty.

  1. An individual is guilty of a class B felony if the individual uses or attempts to use a skimmer, re-encoder, or a scanning device to obtain information from a payment card, driver’s license, or state-issued identification card without the permission of the authorized card user of the card from which the information is being skimmed, re-encoded, or scanned. An individual convicted of a second or subsequent violation of this subsection is guilty of a class A felony and also is subject to a civil penalty of not more than one hundred thousand dollars.
  2. An individual is guilty of a class A misdemeanor if the individual owns or possess a skimmer, re-encoder, or scanning device with the intent to commit, aid, or abet any unlawful activity.

Source: S.L. 2019, ch. 111, § 3, effective August 1, 2019.

CHAPTER 12.1-23.1 Theft of Cable Television

12.1-23.1-01. Theft of cable television services — Penalty.

A person is guilty of a class B misdemeanor if the person:

  1. Knowingly obtains or attempts to obtain cable television service from another by any means, artifice, trick, deception, or device without the payment to the cable television operator of all lawful compensation for each type of service obtained;
  2. Knowingly assists or instructs any other person in obtaining or attempting to obtain any cable television service without the payment to the cable television operator of all lawful compensation for each type of service obtained or attempted to be obtained;
  3. Knowingly tampers, diverts from, or connects to by any means, whether mechanical, electrical, acoustical or other means, any cables, wires, or other devices used for the distribution of cable television without authority from the cable television operator; or
  4. Knowingly manufactures, imports into this state, distributes, sells, offers for sale or rental, possesses for sale, or advertises for sale, any device, plan or kit for a device, or printed circuit, designed to unlock, decode, descramble, or otherwise make intelligible any locked, encoded, scrambled, or other nonstandard signal carried by the cable television system, thereby facilitating the doing of any acts specified in subsections 1, 2, and 3.

Source: S.L. 1985, ch. 180, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

State civil actions by subscription television business for use, or providing technical means of use, of transmissions by nonsubscribers, 46 A.L.R.4th 811.

Civil Liability Under 18 U.S.C.S. § 2511(1)(a) for Unauthorized Interception or Viewing of Satellite Television Broadcasts. 55 A.L.R. Fed 2d 419.

12.1-23.1-02. Civil penalties for theft of cable television services.

  1. Any person who violates subsection 1, 2, or 3 of section 12.1-23.1-01 is liable to the franchised or otherwise duly licensed cable television system for the greater of one thousand dollars or three times the amount of actual damages, if any, sustained by the system, plus reasonable attorney fees.
  2. Any person who violates subsection 4 of section 12.1-23.1-01 is liable to the franchised or otherwise duly licensed cable television system for the greater of ten thousand dollars or three times the amount of actual damages, if any, sustained by the plaintiff, plus reasonable attorney fees. A second or subsequent conviction is punishable by the greater of twenty thousand dollars or three times the amount of actual damages, if any, plus reasonable attorney fees.

Source: S.L. 1985, ch. 180, § 2.

Collateral References.

State civil actions by subscription television business for use, or providing technical means of use, of transmissions by nonsubscribers, 46 A.L.R.4th 811.

12.1-23.1-03. Theft of cable television services — Action — Injunction — Property forfeiture.

  1. Any franchised or otherwise duly licensed cable television system may bring an action to enjoin and restrain violation of section 12.1-23.1-01 or an action for conversion, or both, and may in the same action seek damages as provided for in section 12.1-23.1-02.
  2. Any communications paraphernalia prohibited under section 12.1-23.1-01 may be seized and, upon conviction, is forfeited to the jurisdiction where the arrest was made. The paraphernalia may be, pursuant to court order, sold or destroyed.
  3. It is not a necessary prerequisite to an action pursuant to section 12.1-23.1-02 that the plaintiff has suffered, or is threatened with, actual damages.

Source: S.L. 1985, ch. 180, § 3.

Collateral References.

State civil actions by subscription television business for use, or providing technical means of use, of transmissions by nonsubscribers, 46 A.L.R.4th 811.

12.1-23.1-04. Amateur radio communications — Exemption.

This chapter shall not be construed to prevent the manufacture, importation, distribution, sale, offer for sale or rental, possession for sale, or advertisement for sale, any device, plan or kit for a device, or printed circuit, used by federally-licensed amateur radio (ham) operators for amateur radio communications as permitted under 47 CFR 91.7 et seq.

Source: S.L. 1985, ch. 180, § 4.

CHAPTER 12.1-24 Forgery and Counterfeiting

12.1-24-01. Forgery or counterfeiting.

  1. A person is guilty of forgery or counterfeiting if, with intent to deceive or harm the government or another person, or with knowledge that the person is facilitating such deception or harm by another person, the person:
    1. Knowingly and falsely makes, completes, or alters any writing; or
    2. Knowingly utters or possesses a forged or counterfeited writing.
  2. Forgery or counterfeiting is:
    1. A class B felony if:
      1. The actor forges or counterfeits an obligation or other security of the government; or
      2. The offense is committed pursuant to a scheme to defraud another or others of money or property of a value in excess of ten thousand dollars, but not in excess of fifty thousand dollars. If the value of the property exceeds fifty thousand dollars, the offense is a class A felony.
    2. A class C felony if:
      1. The actor is a public servant or an officer or employee of a financial institution and the offense is committed under color of office or is made possible by the actor’s office;
      2. The actor forges or counterfeits foreign money or other legal tender, or utters or possesses any forged or counterfeited obligation or security of the government or foreign money or legal tender;
      3. The actor forges or counterfeits any writing from plates, dies, molds, photographs, or other similar instruments designed for multiple reproduction;
      4. The actor forges or counterfeits a writing which purports to have been made by the government; or
      5. The offense is committed pursuant to a scheme to defraud another or others of money or property of a value in excess of one thousand dollars.
    3. A class A misdemeanor in all other cases.

Source: S.L. 1973, ch. 116, § 23; 2013, ch. 104, § 9.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Tampering with public records, see N.D.C.C. § 12.1-11-05.

Notes to Decisions

Double Jeopardy.

Convictions for forgery or counterfeiting under N.D.C.C. § 12.1-24-01(1), deceptive writings under N.D.C.C. § 12.1-24-03(1), and theft by deception under N.D.C.C. § 12.1-23-02(2), were multiplicitous and violated double jeopardy because they involved the same conduct of creating a counterfeit invoice by deceptive writings and forgery to purchase a vehicle glider kit through a defendant’s employer. State v. Moos, 2008 ND 228, 758 N.W.2d 674, 2008 N.D. LEXIS 213 (N.D. 2008).

Sufficient Evidence.

Evidence from surrounding facts and circumstances was sufficient for the jury to draw an inference that the defendant knowingly forged a check or presented a forged check where defendant had access to checks, the store clerk identified defendant as the person who filled out a portion of the check, the check was in an unlikely amount for babysitting services, and defendant’s testimony regarding how he received the check was unlikely. State v. Fraser, 2000 ND 53, 608 N.W.2d 244, 2000 N.D. LEXIS 51 (N.D. 2000).

DECISIONS UNDER PRIOR LAW

Elements of Offense.

The offense defined as the making of false entries by corporate officers involved four elements: the relationship of employee, the falsification of the account or record, the specific intent with which the act was done, and, if the specific intent was concealment, the commission of embezzlement, defalcation, or misconduct which the falsification was intended to conceal. State v. Craig, 54 N.D. 5, 208 N.W. 394, 1926 N.D. LEXIS 105 (N.D. 1926).

Instruments Subject to Forgery.

Certificate of township clerk that he had received one thousand gopher tails from a certain person, and had destroyed them, was not an instrument subject to forgery. State v. Ryan, 9 N.D. 419, 83 N.W. 865, 1900 N.D. LEXIS 248 (N.D. 1900).

Prosecutions for the offense of uttering forged instruments or coins were limited to the utterance of instruments which were the subject of forgery. State v. Ryan, 9 N.D. 419, 83 N.W. 865, 1900 N.D. LEXIS 248 (N.D. 1900).

The making of a false entry in the minutes of the board of directors by the president of a bank with intent to conceal his prior misconduct was an offense under former section proscribing false entries by corporate officers. State v. Craig, 54 N.D. 5, 208 N.W. 394, 1926 N.D. LEXIS 105 (N.D. 1926).

Intent to Defraud.

In a prosecution for uttering a forged instrument, knowing it to be forged, it was an essential ingredient that the uttering was done with intent to defraud. State v. Campbell, 67 N.D. 581, 274 N.W. 844, 1937 N.D. LEXIS 116 (N.D. 1937).

Purpose.

Former statute proscribing false entries by corporate officers was designed to penalize officers, members, or employees of corporations, associations, or partnerships, who falsified accounts or records of the corporation or association with intent to defraud the employer or to conceal defalcation or misconduct. State v. Craig, 54 N.D. 5, 208 N.W. 394, 1926 N.D. LEXIS 105 (N.D. 1926).

It was the purpose of the former section, regarding issuing false evidence of debt, to penalize the making and issuance of an instrument falsely purporting to be an evidence of debt of a corporation without the authority of the managing officers of such corporation. State v. Bell, 67 N.D. 382, 272 N.W. 334, 1937 N.D. LEXIS 90 (N.D. 1937).

Sufficient Evidence.

The willful signing and issuing of a draft by the agent of a corporation for a purpose for which he was not authorized to sign and issue the same constituted forgery. State v. Bell, 67 N.D. 382, 272 N.W. 334, 1937 N.D. LEXIS 90 (N.D. 1937).

Where agent of elevator company willfully signed and issued a draft for an unauthorized purpose, in violation of proscription against issuing false evidence of debt, his wife, who possessed knowledge of the irregularity, had guilty knowledge and fraudulent intent essential to the offense of uttering a forged instrument with intent to defraud, where she procured endorsement on false draft and cashed it. State v. Bell, 67 N.D. 382, 272 N.W. 334, 1937 N.D. LEXIS 90 (N.D. 1937).

Collateral References.

Admissibility, in forgery prosecution, of other acts of forgery, 34 A.L.R.2d 777.

Use of fictitious or assumed name, 49 A.L.R.2d 852, 876.

Alteration of figures indicating amount of check, bill, or note without change in written words, as forgery, 64 A.L.R.2d 1029.

Stolen money or property obtained by forgery, 89 A.L.R.2d 1435.

Credit charge or credit sales slip, signing of, 90 A.L.R.2d 822.

What constitutes uttering and passing counterfeit obligation or other security of the United States, with intent to defraud, under 18 USCS § 472, 3 A.L.R.3d 1051.

Procuring signature by fraud as forgery, 11 A.L.R.3d 1074.

Money orders: falsifying of money order as forgery, 65 A.L.R.3d 1307.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 A.L.R.4th 534.

What constitutes a public record or document within statute making falsification, forgery, mutilation, removal, or other misuse thereof an offense, 75 A.L.R.4th 1067.

Evidence of intent to defraud in state forgery prosecution, 108 A.L.R.5th 593.

12.1-24-02. Facilitation of counterfeiting.

  1. A person is guilty of an offense if, except as authorized by statute or by regulation, he knowingly makes, executes, sells, buys, imports, possesses, or otherwise has within his control any plate, stone, paper, tool, die, mold, or other implement or thing uniquely associated with or fitted for the preparation of any forged or counterfeited security or tax stamp or any writing which purports to be made by this government or any foreign government.
  2. A person is guilty of an offense if, except as authorized by statute or by regulation, he:
    1. Knowingly photographs or otherwise makes a copy of:
      1. Money or other obligation or security of this government or of any foreign government, or any part thereof;
      2. Any plate, stone, tool, die, mold, or other implement or thing uniquely associated with or fitted for the preparation of any writing described in subsection 1; or
    2. Knowingly sells, buys, imports, possesses, or otherwise has within his control any photograph or copy the making of which is prohibited by subdivision a.
  3. In a prosecution under this section, authorization by statute or by regulation is a defense.
  4. An offense defined in this section is a class B felony if the implement or the impression relates to the forging or counterfeiting of an obligation or security of the government. Otherwise it is a class C felony.

Source: S.L. 1973, ch. 116, § 23.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-24-03. Deceptive writings.

  1. A person is guilty of an offense if, with intent to deceive or harm the government or another person, or with knowledge that the person is facilitating such a deception or harm by another person, the person knowingly issues a writing without authority to issue it or knowingly utters or possesses a deceptive writing.
  2. The offense is:
    1. A class B felony if it is committed pursuant to a scheme to defraud another or others of money or property of a value in excess of ten thousand dollars.
    2. A class C felony if:
      1. The actor is a public servant or an officer or employee of a financial institution and the offense is committed under color of office or is made possible by the actor’s office; or
      2. The offense is committed pursuant to a scheme to defraud another or others of money or property of a value in excess of one thousand dollars.
    3. A class A misdemeanor in all other cases.

Source: S.L. 1973, ch. 116, § 23; 2013, ch. 104, § 10.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Double Jeopardy.

Convictions for forgery or counterfeiting under N.D.C.C. § 12.1-24-01(1), deceptive writings under N.D.C.C. § 12.1-24-03(1), and theft by deception under N.D.C.C. § 12.1-23-02(2), were multiplicitous and violated double jeopardy because they involved the same conduct of creating a counterfeit invoice by deceptive writings and forgery to purchase a vehicle glider kit through a defendant’s employer. State v. Moos, 2008 ND 228, 758 N.W.2d 674, 2008 N.D. LEXIS 213 (N.D. 2008).

Sufficient Evidence.

The defendant did intend to create or reinforce a false impression with his forgery of the buyer’s signature on a bill of sale; the buyer had returned cattle that did not give birth with the understanding that they would be exchanged, and the bill of sale was intended to discourage the buyer from pursuing legal action when the defendant instead sent the buyer a monetary sum for each head of returned cattle. State v. Bollingberg, 2004 ND 30, 674 N.W.2d 281, 2004 N.D. LEXIS 33 (N.D. 2004).

12.1-24-04. Definitions.

In this chapter:

  1. The definitions prescribed in section 12.1-23-10 apply.
  2. A “deceptive writing” is a writing which has been:
    1. Procured by deception; or
    2. Issued without authority.
  3. “Falsely alters” means to make a change in a writing, without authority, such that the writing appears to have been made by, or fully authorized by, its apparent maker.
  4. “Falsely completes” means to make an addition to or an insertion in a writing, without authority, such that the writing appears to have been made by, or fully authorized by, its apparent maker.
  5. “Falsely makes” means to make a writing which purports to be made by the government or another person, or a copy thereof, but which is not because the apparent maker is fictitious or because the writing was made without authority.
  6. To “forge” or to “counterfeit” a writing means to falsely make, complete, or alter the writing, and a “forged” or “counterfeited” writing is a writing which has been falsely made, completed, or altered. The terms “forgery” and “counterfeiting” and their variants are intended to be synonymous in legal effect.
  7. The term “obligation or other security of this state” means a bond, certificate of indebtedness, coupon, fractional note, certificate of deposit, a stamp, or other representative of value of whatever denomination, issued pursuant to a statute.
  8. “Possess” means to receive, conceal, or otherwise exercise control over.
  9. “Security” other than as provided in subsection 10 includes any note, stock certificate, bond, debenture, check, draft, warrant, traveler’s check, letter of credit, warehouse receipt, negotiable bill of lading, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of interest in tangible or intangible property, instrument or document or writing evidencing ownership of goods, wares, and merchandise, or transferring or assigning any right, title, or interest in or to goods, wares, and merchandise, uncanceled stamp issued by a foreign government (whether or not demonetized); or, in general, any instrument commonly known as a “security”, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, warrant, or right to subscribe to or purchase any of the foregoing.
  10. “Tax stamp” includes any tax stamp, tax token, tax meter imprint, or any other form of evidence of an obligation running to a state, or evidence of the discharge thereof.
  11. “Utter” means to issue, authenticate, transfer, publish, sell, transmit, present, use, or otherwise give currency.
  12. “Without authority” includes conduct that, on the specific occasion called into question, is beyond any general authority given by statute, regulation, or agreement.
  13. “Writing” means:
    1. Any paper, document, or other instrument containing written or printed matter or its equivalent, including money, a money order, bond, public record, affidavit, certificate, contract, security, or obligation.
    2. Any coin or any gold or silver bar coined or stamped at a mint or assay office or any signature, certification, credit card, token, stamp, seal, badge, decoration, medal, trademark, or other symbol or evidence of value, right, privilege, or identification which is capable of being used to the advantage or disadvantage of the government or any person.

Source: S.L. 1973, ch. 116, § 23.

12.1-24-05. Making or uttering slugs.

  1. A person is guilty of an offense if he makes or utters a slug with intent to deprive a supplier of property or service sold or offered by means of a coin machine or with knowledge that he is facilitating such a deprivation by another person.
  2. The offense is a class A misdemeanor if it involves slugs which exceed fifty dollars in value. Otherwise it is a class B misdemeanor.
  3. In this section:
    1. “Slug” means a metal, paper, or other object which by virtue of its size, shape, or any other quality is capable of being inserted, deposited, or otherwise used in a coin machine as an improper but effective substitute for a genuine coin, bill, or token.
    2. “Coin machine” means a coin box, turnstile, vending machine, or other mechanical or electronic device or receptacle designed:
      1. To receive a coin or bill of a certain denomination or a token made for the purpose; and
      2. In return for the insertion or deposit thereof, automatically to offer, provide, assist in providing, or permit the acquisition of property or a public or private service.
    3. “Value” of the slugs means the value of the coins, bills, or tokens for which they are capable of being substituted.

Source: S.L. 1973, ch. 116, § 23.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-25 Riot

12.1-25-01. Inciting riot.

  1. A person is guilty of an offense if he:
    1. Incites or urges five or more persons to create or engage in a riot; or
    2. Gives commands, instructions, or directions to five or more persons in furtherance of a riot.
  2. “Riot” means a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.
  3. A person shall be convicted under section 12.1-06-01, 12.1-06-03, or 12.1-06-04 of attempt, solicitation, or conspiracy to commit an offense under this section only if he engages in the prohibited conduct under circumstances in which there is a substantial likelihood that his conduct will imminently produce a violation of this section.
  4. The offense is a class B felony if it is under subdivision b of subsection 1 or the riot involves one hundred or more persons. Otherwise it is a class C felony.

Source: S.L. 1973, ch. 116, § 24; 2017, ch. 103, § 1, effective February 23, 2017.

Cross-References.

Disorderly conduct, see N.D.C.C. § 12.1-31-01.

National guard ordered out by governor in case of insurrection or riot, see N.D.C.C. § 37-01-04.

Notes to Decisions

Construction.

Terms “tumultuous and violent” are not ambiguous and do not require interpretation; whether conduct is “tumultuous and violent” is a factual determination better suited to the district court where there is an opportunity to make evidentiary observations and credibility determinations. State v. Bearrunner, 2019 ND 29, 921 N.W.2d 894, 2019 N.D. LEXIS 29 (N.D. 2019).

Evidence Insufficient.

Defendant’s conviction for class A misdemeanor engaging in a riot was not supported by substantial evidence because defendant’s act of locking arms and resisting arrest with other protesters did not rise to the commonly understood definition of violence; it was law enforcement that was required to use force to overcome the protesters’ non-compliance, and the situation was more akin to preventing arrest or discharge of other duties. State v. Bearrunner, 2019 ND 29, 921 N.W.2d 894, 2019 N.D. LEXIS 29 (N.D. 2019).

Evidence Sufficient.

In a prosecution of defendant for engaging in a riot while armed, the trial court did not err in denying defendant’s motion for judgment of acquittal at trial or in denying defendant’s motion for a new trial on the ground of insufficiency of the evidence. A witness testified she was 100 percent sure that defendant had participated in a fight and was armed with a baseball bat, and the jury judged the credibility of the witnesses and weighed the evidence admitted at trial, and this evidence was not reweighed on appeal. State v. Hidanovic, 2008 ND 66, 747 N.W.2d 463, 2008 N.D. LEXIS 74 (N.D. 2008).

DECISIONS UNDER PRIOR LAW

Fear of Injury.

Sufficient force was shown to have been used to make out a charge of riot where the orders of the person charged with riot were obeyed through reasonable fear of injury to person or property. State v. Russell, 66 N.D. 272, 264 N.W. 532, 1935 N.D. LEXIS 193 (N.D. 1935).

Collateral References.

Participation of student in demonstration on or near campus as warranting imposition of criminal liability for breach of peace, disorderly conduct, trespass, unlawful assembly, or similar offense, 32 A.L.R.3d 551.

Expulsion from school: participation of student in demonstration on or near campus as warranting expulsion or suspension from school or college, 32 A.L.R.3d 864.

Curfew statute, ordinance, or proclamation, validity and construction of, 59 A.L.R.3d 321.

Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault, 24 A.L.R.4th 243.

What constitutes sufficiently violent, tumultuous, forceful, aggressive, or terrorizing conduct to establish crime of riot in state courts, 38 A.L.R.4th 648.

Validity, construction, and effect of juvenile curfew regulations, 83 A.L.R.4th 1056.

12.1-25-02. Arming rioters.

  1. A person is guilty of a class B felony if the person:
    1. Knowingly supplies a firearm, dangerous weapon, or destructive device for use in a riot;
    2. Teaches another to prepare or use a firearm, dangerous weapon, or destructive device with intent that any such thing be used in a riot; or
    3. While engaging in a riot, is knowingly armed with a firearm, dangerous weapon, or destructive device.
  2. “Riot” has the meaning prescribed in section 12.1-25-01.

Source: S.L. 1973, ch. 116, § 24; 1975, ch. 116, § 21; 2017, ch. 103, § 2, effective February 23, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-25-03. Engaging in a riot.

  1. A person is guilty of a class A misdemeanor if the person engages in a riot, as defined in section 12.1-25-01.
  2. The provisions of subsection 3 of section 12.1-25-01 are applicable to attempt, solicitation, and conspiracy to commit an offense under this section. Mere presence at a riot is not an offense under this section.

Source: S.L. 1973, ch. 116, § 24; 2017, ch. 103, § 3, effective February 23, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Construction.

Terms “tumultuous and violent” are not ambiguous and do not require interpretation; whether conduct is “tumultuous and violent” is a factual determination better suited to the district court where there is an opportunity to make evidentiary observations and credibility determinations. State v. Bearrunner, 2019 ND 29, 921 N.W.2d 894, 2019 N.D. LEXIS 29 (N.D. 2019).

Evidence Insufficient.

Defendant’s conviction for class A misdemeanor engaging in a riot was not supported by substantial evidence because defendant’s act of locking arms and resisting arrest with other protesters did not rise to the commonly understood definition of violence; it was law enforcement that was required to use force to overcome the protesters’ non-compliance, and the situation was more akin to preventing arrest or discharge of other duties. State v. Bearrunner, 2019 ND 29, 921 N.W.2d 894, 2019 N.D. LEXIS 29 (N.D. 2019).

12.1-25-04. Disobedience of public safety orders under riot conditions.

A person is guilty of a class A misdemeanor if, during a riot as defined in section 12.1-25-01, or when one is immediately impending, the person disobeys a reasonable public safety order to move, disperse, or refrain from specified activities in the immediate vicinity of the riot. A public safety order is an order designed to prevent or control disorder, or promote the safety of persons or property, issued by the senior law enforcement official on the scene.

Source: S.L. 1973, ch. 116, § 24; 2017, ch. 103, § 4, effective February 23, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-26 Firearms and Destructive Devices [Repealed]

[Repealed by S.L. 1985, ch. 683, § 8]

Note.

For current provisions, see N.D.C.C. ch. 62.1-02.

CHAPTER 12.1-27 Obscenity [Repealed]

[Repealed by S.L. 1975, ch. 119, § 13]

CHAPTER 12.1-27.1 Obscenity Control

12.1-27.1-01. Obscenity — Definitions — Dissemination — Classification of offenses.

  1. A person is guilty of a class C felony if, knowing of its character, the person disseminates obscene material or if the person produces, transports, or sends obscene material with intent that it be disseminated.
  2. A person is guilty of a class C felony if the person presents or directs an obscene performance for pecuniary gain or participates in any portion of a performance which contributes to the obscenity of the performance as a whole.
  3. A person is guilty of a class C felony if the person, as owner or manager of an establishment licensed under section 5-02-01, permits an obscene performance in the establishment. A person is guilty of a class C felony if that person participates, whether or not for compensation, in an obscene performance in an establishment licensed under section 5-02-01.
    1. In addition to the penalty provided in subsection 1, 2, or 3, any person who violates subsection 1, 2, or 3 in the course of a commercial or for-profit activity or transaction in which the offender had or shared ownership, control, managerial responsibility, or a financial interest other than wages is subject to the following penalty:
      1. For an individual, a fine not to exceed ten thousand dollars; or
      2. For a corporation, limited liability company, association, partnership, or other legal entity, a fine not to exceed twenty-five thousand dollars.
    2. In addition to the penalty provided in subsection 1, 2, or 3, the court shall impose the following penalty upon the conviction of a person or entity described in subdivision a for a second or subsequent offense under subsection 1, 2, or 3:
      1. For an individual, a fine not to exceed fifty thousand dollars; or
      2. For a corporation, limited liability company, association, partnership, or other legal entity, a fine not to exceed one hundred thousand dollars.
  4. As used in this chapter, the terms “obscene material” and “obscene performance” mean material or a performance which:
    1. Taken as a whole, the average person, applying contemporary North Dakota standards, would find predominantly appeals to a prurient interest;
    2. Depicts or describes in a patently offensive manner sexual conduct, whether normal or perverted; and
    3. Taken as a whole, the reasonable person would find lacking in serious literary, artistic, political, or scientific value.
  5. As used in this chapter, “disseminate” means to sell, lease, rent, advertise, broadcast, transmit, exhibit, or distribute for pecuniary gain. “Disseminate” includes any transmission of visual material shown on a cable television system, whether or not accompanied by a soundtrack, and any sound recording played on a cable television system.
  6. As used in this chapter, the term “material” means any physical object, including, but not limited to, any type of book, sound recording, film, or picture used as a means of presenting or communicating information, knowledge, sensation, image, or emotion to or through a human being’s receptive senses.
  7. As used in this chapter, the term “patently offensive” means so offensive on its face as to affront the contemporary North Dakota standards of decency.
  8. As used in this chapter, the term “performance” means any play, dance, or other exhibition presented before an audience.
  9. As used in this chapter, the term “prurient interest” means a voyeuristic, lascivious, degrading, shameful, or morbid interest in nudity, sex, or excretion that goes substantially beyond customary limits of candor in description or representation of those matters.
  10. As used in this chapter, the term “sexual conduct” means actual or simulated:
    1. Sexual intercourse;
    2. Sodomy;
    3. Sexual bestiality;
    4. Masturbation;
    5. Sadomasochistic abuse;
    6. Excretion; or
    7. Lewd exhibition of the male or female genitals.
  11. As used in this chapter, the term “book” means any book, magazine, pamphlet, newspaper, or other article made out of paper and containing printed, typewritten, or handwritten words.
  12. As used in this chapter, “sexually expressive image” means a photograph or visual representation that exhibits a nude or partially denuded human figure, as defined in section 12.1-27.1-03.1, or sexual conduct.

Whether material or a performance is obscene must be judged with reference to ordinary adults, unless it appears from the character of the material or the circumstances of its dissemination that the material or performance is designed for minors or other specially susceptible audience, in which case the material or performance must be judged with reference to that type of audience.

As used in this subsection, the term “sodomy” means contact between the penis and the anus, the mouth and the penis, the mouth and the vulva, or the mouth and the anus. As used in this subsection, the term “sadomasochistic abuse” means a depiction or description of flagellation or torture by or upon a person who is nude or clad in undergarments or in a bizarre or revealing costume; or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.

Source: S.L. 1975, ch. 119, § 1; 1985; ch. 181, § 1; 1985, ch. 182, § 1; 1989, ch. 169, § 1; 1991, ch. 128, § 1; 1993, ch. 54, § 106; 2009, ch. 133, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Local Regulation Not Preempted.

City had authority to enact ordinance that prohibited liquor licensees from allowing sexually explicit or obscene entertainment on licensed premises; this chapter, as amended by S.L. 1979, ch. 184, did not preempt such ordinance. Olson v. West Fargo, 305 N.W.2d 821, 1981 N.D. LEXIS 302 (N.D. 1981).

Preemption of Local Regulation.

Provisions of subsection 3, which specifically apply to establishments licensed to sell alcoholic beverages under the provisions of N.D.C.C. § 5-02-01 et seq., preempt that field of regulation, and, notwithstanding the provisions of N.D.C.C. § 5-02-09, local governments do not have the power to enact obscenity ordinances relating to such establishments. City of Grafton v. Four G’s, Inc., 252 N.W.2d 879 (N.D. 1977), decided prior to the amendment to N.D.C.C. § 12.1-27.1-12 by Session Laws 1979, ch. 184.

DECISIONS UNDER PRIOR LAW

Constitutionality.

Former section on buying, selling, etc., obscene materials was unconstitutional as it failed to require scienter and was overly broad and so ambiguous that it failed to provide adequate, fair notice of criminal conduct regulated; words such as “salacious”, “lascivious”, “obscene”, “lewd”, and “indecent” were so void of common meaning when applied to a particular act that a person would have no way of determining whether his conduct or material violated the statute. McCright v. Olson, 367 F. Supp. 937, 1973 U.S. Dist. LEXIS 10614 (D.N.D. 1973).

Act Openly Outraging Public.

Requirement that acts prosecuted under indecent exposure law had to “openly outrage public decency” was a part of the statutory definition, and the act must have been done openly, and not to the exclusion of public observation, to constitute the crime. State v. Stevens, 33 N.D. 540, 157 N.W. 668, 1916 N.D. LEXIS 110 (N.D. 1916).

Applicability.

Indecent exposure law applied only where no other punishment was provided in the statute for the act complained of. State v. Nelson, 36 N.D. 564, 163 N.W. 278, 1917 N.D. LEXIS 211 (N.D. 1917).

Collateral References.

Entrapment to commit offense against obscenity laws, 77 A.L.R.2d 792.

Modern concept of obscenity, 5 A.L.R.3d 1158.

Validity of procedures designed to protect the public against obscenity, 5 A.L.R.3d 1214.

Nude-model photograph studio, operation as offense, 48 A.L.R.3d 1313.

Topless or bottomless dancing or similar conduct as offense, 49 A.L.R.3d 1084.

Motion pictures, exhibition as nuisance, 50 A.L.R.3d 969.

Massage salons and health clubs: validity and construction of statute or ordinances forbidding treatment in health clubs or massage salons by persons of the opposite sex, 51 A.L.R.3d 936.

Pornoshops or similar places disseminating obscene materials as nuisance, 58 A.L.R.3d 1134.

Validity, construction, and effect of statutes or ordinances prohibiting the sale of obscene materials to minors, 93 A.L.R.3d 297.

Validity, construction, and application of statutes or ordinances regulating sexual performance by child, 21 A.L.R.4th 239, 42 A.L.R.5th 291.

Validity and application of statute exempting nonmanagerial, nonfinancially interested employees from obscenity prosecution, 35 A.L.R.4th 1237.

Admissibility of evidence of public-opinion polls or surveys in obscenity prosecutions on issue whether materials in question are obscene, 59 A.L.R.5th 749.

Regulation of exposure of female, but not male, breasts, 67 A.L.R.5th 431.

Nudity as constituting nuisance, 92 A.L.R.5th 593.

Constitutionality of state statutes banning distribution of sexual devices, 94 A.L.R.5th 497.

What constitutes “public place” within meaning of state statute or local ordinance prohibiting indecency or commission of sexual act in public place, 95 A.L.R.5th 229.

Law Reviews.

For Case Comment: Constitutional Law — Freedom of Speech, Expression: Protecting Main Street? The North Dakota Supreme Court Analyzes Whether an Ordinance Regulating Exotic Dancing and Adult Entertainment Violates Free Speech and Constitutes a Regulatory Taking (McCrothers Corp. v. City Of Mandan, 2007 ND 28, 728 N.W.2d 124), see 84 N.D. L. Rev. 495 (2008).

12.1-27.1-02. Promoting obscenity to minors — Definitions.

As used in this section and in section 12.1-27.1-03:

  1. “Promote” means to produce, direct, manufacture, issue, sell, lend, mail, publish, distribute, exhibit, or advertise.
  2. “Harmful to minors” means that quality of any description or representation, in whatever form of sexual conduct or sexual excitement, when such description or representation:
    1. Considered as a whole, appeals to the prurient sexual interest of minors;
    2. Is patently offensive to prevailing standards in the adult community in North Dakota as a whole with respect to what is suitable material for minors; and
    3. Considered as a whole, lacks serious literary, artistic, political, or scientific value for minors.
  3. “Sexual excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

Source: S.L. 1975, ch. 119, § 2; 1979, ch. 183, § 2.

12.1-27.1-03. Promoting obscenity to minors — Minor performing in obscene performance — Classification of offenses.

  1. It is a class C felony for a person, knowing of its character, to recklessly promote to a minor any material or performance which is harmful to minors, or to admit a minor to premises where a performance harmful to minors is exhibited or takes place.
  2. It is a class C felony to permit a minor to participate in a performance which is harmful to minors.

Source: S.L. 1975, ch. 119, § 3; 1989, ch. 169, § 2.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Intent.

Defendant’s motion to dismiss the charge of attempted promotion of obscenity to minors, N.D.C.C. §§ 12.1-27.1-03(1) and 12.1-06-01, should have been granted because the reckless culpability required for the offense of promoting obscenity to minors was inconsistent with and could not be rectified with the culpability required for criminal attempt. Even if the State could impose a higher burden than the statute required in an attempt to create a cognizable offense, the State had not done so where it did not allege in the information that defendant intentionally promoted the obscenity. State v. Richter, 2021 ND 55, 956 N.W.2d 421, 2021 N.D. LEXIS 46 (N.D. 2021).

12.1-27.1-03.1. Objectionable materials or performance — Display to minors — Definitions — Penalty.

  1. A person is guilty of a class B misdemeanor if he willfully displays at newsstands or any other business establishment frequented by minors, or where minors are or may be invited as a part of the general public, any photograph, book, paperback book, pamphlet, or magazine, the exposed cover or available content of which exploits, is devoted to, or is principally made up of depictions of nude or partially denuded human figures posed or presented in a manner to exploit sex, lust, or perversion for commercial gain.
  2. As used in this section:
    1. “Nude or partially denuded human figures” means less than completely and opaquely covered human genitals, pubic regions, female breasts or a female breast, if the breast or breasts are exposed below a point immediately above the top of the areola, or human buttocks; and includes human male genitals in a discernibly turgid state even if completely and opaquely covered.
    2. “Where minors are or may be invited as a part of the general public” includes any public roadway or public walkway.
    3. The above shall not be construed to include a bona fide school, college, university, museum, public library, or art gallery.

Source: S.L. 1977, ch. 126, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Constitutionality of state statutes banning distribution of sexual devices, 94 A.L.R.5th 497.

12.1-27.1-03.2. Exhibition of X-rated motion picture in unscreened outdoor theater — Penalty.

Any person who, knowing of its character, exhibits any motion picture rated X by the motion picture association of America in any outdoor theater where the screen is visible beyond the limits of the theater audience area, so that the motion picture may be seen and its content or character distinguished by normal unaided vision by a minor viewing it from beyond the limits of the theater audience area, is guilty of a class B misdemeanor.

Source: S.L. 1979, ch. 183, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-27.1-03.3. Creation, possession, or dissemination of sexually expressive images prohibited — Exception.

  1. A person is guilty of a class A misdemeanor if, knowing of its character and content, that person:
    1. Without written consent from each individual who has a reasonable expectation of privacy in the image, surreptitiously creates or willfully possesses a sexually expressive image that was surreptitiously created; or
    2. Distributes or publishes, electronically or otherwise, a sexually expressive image with the intent to cause emotional harm or humiliation to any individual depicted in the sexually expressive image who has a reasonable expectation of privacy in the image, or after being given notice by an individual or parent or guardian of the individual who is depicted in a sexually expressive image that the individual, parent, or guardian does not consent to the distribution or publication of the sexually expressive image.
  2. A person is guilty of a class B misdemeanor if, knowing of its character and content, that person acquires and knowingly distributes any sexually expressive image that was created without the consent of the subject of the image.
  3. This section does not authorize any act prohibited by any other law. If the sexually expressive image is of a minor and possession does not violate section 12.1-27.2-04.1, a parent or guardian of the minor may give permission for a person to possess or distribute the sexually expressive image.
  4. This section does not apply to any book, photograph, video recording, motion picture film, or other visual representation sold in the normal course of business through wholesale or retail outlets that possess a valid sales tax permit or used by an attorney, attorney’s agent, or any other person obtaining evidence for a criminal investigation or pending civil action, or by a medical professional or a peace officer acting within that individual’s scope of employment.

Source: S.L. 2009, ch. 133, § 2; 2011, ch. 99, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-27.1-04. Definitions. [Repealed]

Repealed by S.L. 1981, ch. 157, § 1.

12.1-27.1-05. Civil proceeding a prerequisite to criminal liability. [Repealed]

Repealed by S.L. 1981, ch. 157, § 1.

12.1-27.1-06. Commencement of civil proceeding — Intervention — Seizure of materials. [Repealed]

Repealed by S.L. 1981, ch. 157, § 1.

12.1-27.1-07. Procedures — Expanded district court — Appeal. [Repealed]

Repealed by S.L. 1981, ch. 157, § 1.

12.1-27.1-08. Judgment — Effect — Notice to constructive defendants — Use in criminal prosecutions. [Repealed]

Repealed by S.L. 1981, ch. 157, § 1.

12.1-27.1-09. Preliminary injunction — Limitations. [Repealed]

Repealed by S.L. 1981, ch. 157, § 1.

12.1-27.1-10. Conflicting decisions — Resolution. [Repealed]

Repealed by S.L. 1981, ch. 157, § 1.

12.1-27.1-11. Exceptions to criminal liability.

Sections 12.1-27.1-01 and 12.1-27.1-03 shall not apply to the possession or distribution of material in the course of law enforcement, judicial, or legislative activities; or to the possession of material by a bona fide school, college, university, museum, or public library for limited access for educational research purposes carried on at such an institution by adults only. Sections 12.1-27.1-01 and 12.1-27.1-03 shall also not apply to a person who is returning material, found to be obscene, to the distributor or publisher initially delivering it to the person returning it.

Source: S.L. 1975, ch. 119, § 11.

Collateral References.

Obscenity prosecutions: statutory exemption based on dissemination to persons or entities having scientific, educational, or similar justification for possession of such materials, 13 A.L.R.5th 567.

12.1-27.1-12. State pre-emption of local laws regulating obscenity.

This chapter shall be applicable and uniform throughout the state, and no political subdivision shall enact new, or enforce existing, ordinances or resolutions regulating or prohibiting the dissemination of obscene materials, or controlling obscene performances, except ordinances authorized by section 5-02-09, section 58-03-11, chapter 11-33, or chapter 40-47.

Source: S.L. 1975, ch. 119, § 12; 1979, ch. 184, § 1; 1981, ch. 158, § 1.

Notes to Decisions

Local Ordinances Authorized.

City had authority to enact ordinance that prohibited liquor licensees from allowing sexually explicit or obscene entertainment on the licensed premises; this chapter did not preempt such ordinance. Olson v. West Fargo, 305 N.W.2d 821, 1981 N.D. LEXIS 302 (N.D. 1981).

Law Reviews.

For Case Comment: Constitutional Law — Freedom of Speech, Expression: Protecting Main Street? The North Dakota Supreme Court Analyzes Whether an Ordinance Regulating Exotic Dancing and Adult Entertainment Violates Free Speech and Constitutes a Regulatory Taking (McCrothers Corp. v. City Of Mandan, 2007 ND 28, 728 N.W.2d 124), see 84 N.D. L. Rev. 495 (2008).

CHAPTER 12.1-27.2 Sexual Performances by Children

12.1-27.2-01. Definitions.

As used in this chapter:

  1. “Obscene sexual performance” means any performance which includes sexual conduct by a minor in any obscene material or obscene performance, as defined in section 12.1-27.1-01.
  2. “Performance” means any play, motion picture, photograph, dance, or other visual representation, or any part of a performance.
  3. “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, ship, transport, publish, distribute, circulate, disseminate, present, exhibit, or advertise.
  4. “Sexual conduct” means actual or simulated:
    1. Sexual intercourse;
    2. Sodomy, as defined under section 12.1-27.1-01;
    3. Sexual bestiality;
    4. Masturbation;
    5. Sadomasochistic abuse, as defined under section 12.1-27.1-01;
    6. Lewd exhibition of the buttocks, breasts, or genitals;
    7. Nude or partially denuded human figure, as defined in section 12.1-27.1-03.1, if depicted for the purpose of the sexual stimulation or the sexual gratification of any individual who may view such depiction; or
    8. Physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or breasts. It is not necessary that the minor know that he or she is participating in the described conduct, or any aspect of it.
  5. “Sexual performance” means any performance which includes sexual conduct by a minor.
  6. “Simulated” means the explicit depiction of any of the conduct set forth in subsection 4 which creates the appearance of actual sexual conduct and which exhibits any nude or partially denuded human figure, as defined in section 12.1-27.1-03.1.

Source: S.L. 1985, ch. 177, § 1; 1989, ch. 169, § 3; 2011, ch. 370, § 1; 2015, ch. 108, § 1, effective August 1, 2015; 2017, ch. 101, § 3, effective August 1, 2017.

Notes to Decisions

Particularity of Search Warrant.

State child pornography statute could be used to limit the scope of the search executed against a defendant, who was suspected of having sexually exploited and photographed a minor in violation of federal law; search warrants were sufficiently particular, as to the identity of the items to be seized, because they limited the searches to the items specifically prohibited under N.D.C.C. §§ 12.1-27.2-01(1), (4), 12.1-27.2-04. United States v. Gleich, 397 F.3d 608, 2005 U.S. App. LEXIS 1972 (8th Cir. N.D. 2005).

Collateral References.

Validity, construction, and application of state statutes or ordinances regulating sexual performance by child, 42 A.L.R.5th 291.

Law Reviews.

Note: Putting A Price On Child Porn: Requiring Defendants Who Possess Child Pornography Images To Pay Restitution To Child Pornography Victims, 86 N.D. L. Rev. 205 (2010).

12.1-27.2-02. Use of a minor in a sexual performance.

  1. A person is guilty of a class A felony if, knowing the character and content of a performance, that person employs, authorizes, or induces a minor to engage in sexual conduct during a performance or, if being a parent, legal guardian, or custodian of a minor, that person consents to the participation by the minor in sexual conduct during a performance.
  2. An adult is guilty of a class A felony if, with the intent to persuade, induce, entice, or coerce a minor to engage in a sexual performance, the adult portrays the adult to be a minor.

Source: S.L. 1985, ch. 177, § 1; 1989, ch. 169, § 4; 2015, ch. 108, § 2, effective August 1, 2015.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

12.1-27.2-03. Promoting or directing an obscene sexual performance by a minor.

A person is guilty of a class A felony if, knowing the character and content of a performance, that person produces, directs, or promotes any obscene performance which includes sexual conduct by a person who was a minor at the time of the performance.

Source: S.L. 1985, ch. 177, § 1; 1989, ch. 169, § 5; 2015, ch. 108, § 3, effective August 1, 2015.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

12.1-27.2-04. Promoting a sexual performance by a minor.

A person is guilty of a class B felony if, knowing the character and content of a performance, that person produces, directs, or promotes any performance which includes sexual conduct by a person who was a minor at the time of the performance.

Source: S.L. 1985, ch. 177, § 1; 1989, ch. 169, § 6; 2015, ch. 108, § 4, effective August 1, 2015.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Particularity of Search Warrants.

State child pornography statute could be used to limit the scope of the search executed against a defendant, who was suspected of having sexually exploited and photographed a minor in violation of federal law; search warrants were sufficiently particular, as to the identity of the items to be seized, because they limited the searches to the items specifically prohibited under N.D.C.C. §§ 12.1-27.2-01(1), (4), 12.1-27.2-04. United States v. Gleich, 397 F.3d 608, 2005 U.S. App. LEXIS 1972 (8th Cir. N.D. 2005).

Law Reviews.

Note: Putting A Price On Child Porn: Requiring Defendants Who Possess Child Pornography Images To Pay Restitution To Child Pornography Victims, 86 N.D. L. Rev. 205 (2010).

12.1-27.2-04.1. Possession of certain materials prohibited.

A person is guilty of a class C felony if, knowing of its character and content, that person knowingly possesses any motion picture, photograph, or other visual representation that includes sexual conduct by a minor.

Source: S.L. 1989, ch. 169, § 7; 2007, ch. 128, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

No Double Jeopardy Violation.

District court did not err by summarily denying defendant's application for postconviction relief where the Double Jeopardy Clause was not violated by defendant's conviction of 119 counts of possession of child pornography, as the plain language of this section authorized multiple prosecutions and punishments based on the number of prohibited images possessed rather than on the number of computers possessed containing those images. Peterka v. State, 2015 ND 156, 864 N.W.2d 745, 2015 N.D. LEXIS 167 (N.D. 2015).

Probable Cause for Search.

Defendant’s second motion to suppress was properly denied as there was probable cause that defendant was in possession of certain materials prohibited as the affidavit accompanying the search warrant described an image displayed on the computer of a prepubescent female in a body of water wearing underwear and a wet shirt exposing the child’s nipples and areolas through her shirt. State v. Black, 2021 ND 103, 960 N.W.2d 820, 2021 N.D. LEXIS 97 (N.D. 2021).

Sex Offender Registration Requirement.

While the trial court erred in deciding whether defendant was statutorily required to register as a sex offender after defendant’s probation was revoked, it nevertheless correctly determined that defendant had to register as a sex offender, and, thus, that decision had to be upheld on appeal. The trial court found that it should apply N.D.C.C. § 12.1-32-15(2)(b), a permissive registration statute that took into account a number of factors to decide whether such registration was required, although it should have applied N.D.C.C. § 12.1-32-15(2)(a) making it mandatory for felony sex offenders to register, as defendant had pled guilty to the sex offense of possession of certain materials prohibited under N.D.C.C. § 12.1-27.2-04.1, which was a Class C felony. State v. Humann, 2011 ND 237, 807 N.W.2d 609, 2011 N.D. LEXIS 223 (N.D. 2011).

Law Reviews.

Note: Putting A Price On Child Porn: Requiring Defendants Who Possess Child Pornography Images To Pay Restitution To Child Pornography Victims, 86 N.D. L. Rev. 205 (2010).

12.1-27.2-04.2. Sexual performance by a minor — Enhanced penalties.

  1. Notwithstanding the provisions of sections 12.1-32-01 and 12.1-32-01.1 relating to fines, a person who commits an offense under this chapter and who acts in the course of a commercial or for-profit activity or transaction in which the offender had or shared ownership, control, managerial responsibility, or a financial interest other than wages is subject to the following penalty:
    1. For an individual, a fine not to exceed ten thousand dollars; or
    2. For a corporation, limited liability company, association, partnership, or other legal entity, a fine not to exceed twenty-five thousand dollars.
  2. Notwithstanding the provisions of sections 12.1-32-01 and 12.1-32-01.1 relating to fines, the court shall impose the following fine upon the conviction of a person or entity described in subsection 1 for a second or subsequent offense under this chapter:
    1. For an individual, a fine not to exceed fifty thousand dollars; or
    2. For a corporation, limited liability company, association, partnership, or other legal entity, a fine not to exceed one hundred thousand dollars.

Source: S.L. 1991, ch. 128, § 2; 1993, ch. 54, § 106.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Sexual offender registration requirement, see N.D.C.C. § 12.1-32-15.

Notes to Decisions

Sentence Enhancement.

Trial court did not abuse its discretion in denying defendant’s request to deviate from a plea agreement because the trial court considered defendant’s criminal history, the commission of new offenses, and defendant’s apparent inability to follow the law. The sentence was appropriate because the trial court followed the parties’ agreement, and the trial court did not enhance defendant’s sentence. State v. Henes, 2009 ND 42, 763 N.W.2d 502, 2009 N.D. LEXIS 51 (N.D. 2009).

12.1-27.2-05. Sexual performance by a minor — Affirmative defenses.

It is an affirmative defense to a prosecution under this chapter that:

  1. The defendant in good faith reasonably believed the person appearing in the performance was eighteen years of age or older, if the minor was in fact fifteen years of age or older; or
  2. The material or performance involved was disseminated or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other appropriate purpose by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, member of the clergy, prosecutor, judge, or other person having a similar interest in the material or performance.

Source: S.L. 1985, ch. 177, § 1; 1989, ch. 169, § 8; 2013, ch. 109, § 1; 2015, ch. 108, § 5, effective August 1, 2015.

12.1-27.2-06. Proof of age of minor.

When it becomes necessary under this chapter to determine whether a minor participated in a sexual performance, the trier of fact may base its determination on personal inspection of the minor, inspection of a photograph or motion picture of the sexual performance, testimony by a witness to the sexual performance as to the age of the minor based upon the minor’s appearance, expert testimony based upon the appearance of the minor in the sexual performance, or any other method authorized by law or by rule.

Source: S.L. 1985, ch. 177, § 1; 1989, ch. 169, § 9.

CHAPTER 12.1-28 Gambling and Related Offenses

12.1-28-01. Gambling — Definitions.

As used in this chapter:

  1. “Gambling” means risking any money, credit, deposit, or other thing of value for gain, contingent, wholly or partially, upon lot, chance, the operation of gambling apparatus, or the happening or outcome of an event, including an election or sporting event, over which the person taking the risk has no control. Gambling does not include:
    1. Lawful contests of skill, speed, strength, or endurance in which awards are made only to entrants or to the owners of entries;
    2. Lawful business transactions, or other acts or transactions now or hereafter expressly authorized by law; or
    3. Use of gaming equipment and devices that may not otherwise be lawful in the state when the equipment or devices are used by any institution under the control of the state board of higher education which awards degrees of bachelor’s or higher for the purpose of conducting scientific research in a controlled environment on the campus of that institution.
  2. “Gambling apparatus” means any device, machine, paraphernalia, or equipment that is used or usable in the playing phases of any gambling activity, whether that activity consists of gambling between persons, or gambling by a person involving the playing of a machine. Gambling apparatus does not include an amusement game or device as defined in section 53-04-01.
  3. “Gambling house” means any location or structure, stationary or movable, wherein gambling is permitted or promoted, or where a lottery is conducted or managed. In the application of this definition, any place where gambling apparatus is found is presumed to be a gambling house, provided that this presumption shall not apply where cards, dice, or other games are found in a private residence.
  4. “Lottery” means any plan for the distribution of a thing of value, whether tangible or intangible, to a person or persons selected by chance from among participants, some or all of whom have given a consideration for the chance of being selected.

Source: S.L. 1973, ch. 116, § 27; 1977, ch. 473, § 16; 1987, ch. 171, § 1; 2005, ch. 117, § 1.

Cross-References.

Attorney general’s licensing department, see N.D.C.C. § 53-06.1-03.

Licensing eligible organizations to conduct games of chance, see N.D.C.C. ch. 53-06.1.

Notes to Decisions

Consideration Given.

Despite the owner’s characterization of a phone card dispensing device as a promotional sweepstakes and not gambling, players were providing consideration for the chance to win cash bonuses given that people continued to play the game even when the phone cards were available free of charge. Midwestern Enters. v. Stenehjem, 2001 ND 67, 625 N.W.2d 234, 2001 N.D. LEXIS 83 (N.D. 2001).

Gambling Apparatus.

Device used to dispense 2 minute emergency phone cards was a gambling device under subsection (3) of this section because purchasers of the card were given a chance to win up to $500.00 with each card purchased and consideration was given for the chance of being selected as a winner. Midwestern Enters. v. Stenehjem, 2001 ND 67, 625 N.W.2d 234, 2001 N.D. LEXIS 83 (N.D. 2001).

DECISIONS UNDER PRIOR LAW

In General.

One who kept or exhibited any gambling table, device, or apparatus was deemed a gambler. People v. Sponsler, 46 N.W. 459, 1 Dakota 289, 1876 Dakota LEXIS 5 (Dakota 1876).

Pinball Machine.

The operation of a pinball machine constituted a lottery. Middlemas v. Strutz, 71 N.D. 186, 299 N.W. 589, 1941 N.D. LEXIS 151 (N.D. 1941).

Prize.

To constitute a game of chance a lottery, under the provisions of the former statute defining a lottery, and the former statute dealing with gambling, the prize or award which a player would win must have been property or an interest in property. Middlemas v. Strutz, 71 N.D. 186, 299 N.W. 589, 1941 N.D. LEXIS 151 (N.D. 1941).

Collateral References.

Forfeiture of property used in connection with gaming before trial of individual offender, 3 A.L.R.2d 738.

Forfeiture of money used in connection with gambling or seized by officers in connection with an arrest or search on premises where such activities took place, 19 A.L.R.2d 1228.

Entrapment to commit offense with respect to gambling or lotteries, 31 A.L.R.2d 1212.

Admissibility as corroborative evidence, in prosecution for gambling or gaming offense, of evidence of other acts of gambling, 64 A.L.R.2d 823.

Coin-operated pinball machine or similar device, played for amusement alone or confining reward to privilege of free replays, as prohibited or permitted by antigambling laws, 89 A.L.R.2d 815.

Criminal conspiracies as to gambling, 91 A.L.R.2d 1205.

Bridge as within gambling laws, 97 A.L.R.2d 1420.

Paraphernalia or appliances used for recording gambling transactions or receiving or furnishing gambling information as gaming “devices” within criminal statute or ordinance, 1 A.L.R.3d 726.

Constitutionality of statutes providing for destruction of gambling devices, 14 A.L.R.3d 366.

Possession: validity of criminal legislation making possession of gambling or lottery devices or paraphernalia presumptive or prima facie evidence of other incriminating facts, 17 A.L.R.3d 491.

Private residence: gambling in private residence as prohibited or permitted by anti-gambling laws, 27 A.L.R.3d 1074.

Advertising: promotional schemes of retail stores as criminal offense under antigambling laws, 29 A.L.R.3d 888.

Right or duty to refuse telephone, telegraph, or other wire service in aid of illegal gambling operations, 30 A.L.R.3d 1143.

Religious, charitable, or other nonprofit organizations, validity and construction of statute exempting gambling operations carried on by, from general prohibition against gambling, 42 A.L.R.3d 663.

Pyramid distribution plan, validity of, 54 A.L.R.3d 217.

Gasoline sales: validity and construction of statute or ordinance prohibiting promotional games in connection with sale of gasoline, 57 A.L.R.3d 1288.

Criminal liability of member or agent of private club or association, or of owner or lessor of its premises, for violation of state or local liquor or gambling laws thereon, 98 A.L.R.3d 694.

Validity, construction, and application of statutes or ordinances involved in prosecutions for possession of bookmaking paraphernalia, 51 A.L.R.4th 796.

Construction and application of statute or ordinance prohibiting or regulating bookmaking or pool selling, 84 A.L.R.4th 740.

12.1-28-02. Gambling — Related offenses — Classification of offenses.

Except as permitted by law:

  1. It is an infraction to engage in gambling on private premises where the total amount wagered by an individual player exceeds twenty-five dollars per individual hand, game, or event.
  2. It is a class A misdemeanor to:
    1. Sell, purchase, receive, or transfer a chance to participate in a lottery, whether the lottery is drawn in state or out of state, and whether the lottery is lawful in the other state or country;
    2. Disseminate information about a lottery with intent to encourage participation in it, except that a legal lottery may be advertised in North Dakota; or
    3. Engage in gambling on private premises where the total amount wagered by an individual player exceeds five hundred dollars per individual hand, game, or event.
  3. A person is guilty of a class C felony if that person engages or participates in the business of gambling. Without limitation, a person is deemed to be engaged in the business of gambling if that person:
    1. Conducts a wagering pool or lottery;
    2. Receives wagers for or on behalf of another person;
    3. Alone or with others, owns, controls, manages, or finances a gambling business;
    4. Knowingly leases or otherwise permits a place to be regularly used to carry on a gambling business or maintain a gambling house;
    5. Maintains for use on any place or premises occupied by that person a coin-operated gaming device; or
    6. Is a public servant who shares in the proceeds of a gambling business whether by way of a bribe or otherwise.
    1. As used in subsection 3 but with the exceptions provided by subdivision b of this subsection, the term “coin-operated gaming device” means any machine that is:
      1. A so-called “slot” machine that operates by means of the insertion of a coin, token, or similar object and which, by application of the element of chance, may deliver, or entitle the person playing or operating the machine to receive cash, premiums, merchandise, or tokens; or
      2. A machine that is similar to machines described in paragraph 1 and is operated without the insertion of a coin, token, or similar object.
    2. The term “coin-operated gaming device” does not include a bona fide vending or amusement machine in which gambling features are not incorporated as defined in section 53-04-01, or an antique “slot” machine twenty-five years old or older that is collected and possessed by a person as a hobby and is not maintained for the business of gambling.
    3. A law enforcement officer may seize any device described in subdivision a upon probable cause to believe that the device was used or is intended to be used in violation of this chapter or chapter 53-06.1. The court shall order the device forfeited in the same manner and according to the same procedure as provided under chapter 29-31.1.

Source: S.L. 1973, ch. 116, § 27; 1977, ch. 473, § 17; 1981, ch. 159, § 1; 1989, ch. 170, § 1; 1991, ch. 129, § 1; 1991, ch. 346, § 1; 1993, ch. 124, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Gambling at carnival prohibited, see N.D.C.C. § 53-03-03.

Licensing eligible organizations to conduct games of chance, see N.D.C.C. ch. 53-06.1.

Lotteries unlawful, constitutional provision, see N.D. Const. Art. XI, § 25.

Notes to Decisions

Gambling Features.

Gambling features were incorporated in the phone card dispensing device where visual and audio features resembled a slot machine, the device randomly dispensed a chance for cash and prizes with each dollar risked with a pay-out rate of 65%, and the device did not give change if a $5, $10, or $20 bill was inserted for the $1 phone card. Midwestern Enters. v. Stenehjem, 2001 ND 67, 625 N.W.2d 234, 2001 N.D. LEXIS 83 (N.D. 2001).

Venue.

In a prosecution for gambling, where the defendant’s statement indicated that, while he was working in Mercer County, he placed and accepted bets and passed the proceeds on to a man known as “Chief”, and a witness who personally engaged in gambling transactions with the defendant testified that he obtained line sheets from the defendant which he then used to solicit wagers from coworkers in Oliver County, and he later turned the bets over to the defendant, who paid him for his services, the defendant’s written statement that he met “Chief” while working in Mercer County and that he placed wagers for others which he then turned over to “Chief” certainly supported a reasonable inference that part of the gambling transactions took place in Mercer County; therefore, venue in Mercer County was proper. State v. Rasmussen, 365 N.W.2d 481, 1985 N.D. LEXIS 280 (N.D. 1985).

DECISIONS UNDER PRIOR LAW

Illegal Contracts.

A contract to do an act expressly forbidden by law or contrary to policy of express law was unenforceable. Erickson v. North Dakota State Fair Ass'n, 54 N.D. 830, 211 N.W. 597, 1926 N.D. LEXIS 95 (N.D. 1926).

Racing.

Horse racing for a prize, premium, or purse was prohibited. Erickson v. North Dakota State Fair Ass'n, 54 N.D. 830, 211 N.W. 597, 1926 N.D. LEXIS 95 (N.D. 1926).

Collateral References.

Gambling; validity, construction, and application of statutes or ordinances involved in prosecution for transmission of wagers or wagering information related to bookkeeping, 53 A.L.R.4th 801.

Private contests and lotteries: entrants’ rights and remedies, 64 A.L.R.4th 1021.

Validity of statute or ordinance prohibiting or regulating bookmaking or pool selling, 80 A.L.R.4th 1079.

Validity, construction, and application of statute or ordinance prohibiting or regulating use or occupancy of premises for bookmaking or pool selling, 82 A.L.R.4th 356.

Construction and application of statute or ordinance prohibiting or regulating bookmaking or pool selling, 84 A.L.R.4th 740.

Enforceability of contract to share winnings from legal lottery ticket, 90 A.L.R.4th 784.

CHAPTER 12.1-29 Prostitution

12.1-29-01. Promoting prostitution.

  1. A person is guilty of an offense if he:
    1. Operates a prostitution business or a house of prostitution;
    2. Induces or otherwise intentionally causes another to become engaged in sexual activity as a business; or
    3. Knowingly procures a prostitute for a prostitution business or a house of prostitution.
  2. The offense is a class C felony if it is under subdivision b or c of subsection 1 or if it is under subdivision a and the actor owns, controls, manages, or otherwise supervises the prostitution business or house of prostitution. Otherwise the offense is a class A misdemeanor.

Source: S.L. 1973, ch. 116, § 28.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Reputation of Person and Place.

In a prosecution for receiving a woman, for the purpose of prostitution, into a building owned and controlled by defendant, the reputation of the woman for morality and the reputation of the place as a disorderly house were admissible in evidence. State v. Farrier, 61 N.D. 694, 240 N.W. 872, 1932 N.D. LEXIS 245 (N.D. 1932); State v. Simpson, 78 N.D. 571, 50 N.W.2d 661, 1951 N.D. LEXIS 112 (N.D. 1951).

Collateral References.

Entrapment defense, availability of defense where one accused of pandering denies participation in offense, 61 A.L.R.2d 677.

Separate acts of taking earnings of or support from prostitute as separate or continuing offenses of pimping, 3 A.L.R.4th 1195.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

Laws prohibiting or regulating “escort services,” “outcall entertainment,” or similar services used to carry on prostitution, 15 A.L.R.5th 900.

12.1-29-02. Facilitating prostitution.

  1. A person is guilty of an offense if the person:
    1. Knowingly solicits a person to patronize a prostitute;
    2. Knowingly procures a prostitute for a patron;
    3. Knowingly leases or otherwise permits a place controlled by the actor, alone or in association with others, to be regularly used for prostitution, promoting prostitution, or facilitating prostitution, or fails to make reasonable effort to abate such use by ejecting the tenant, notifying law enforcement authorities, or taking other legally available means; or
    4. Knowingly induces or otherwise intentionally causes another to remain a prostitute. A person who is supported in whole or substantial part by the proceeds of prostitution, other than the prostitute or the prostitute’s minor child or a person whom the prostitute is required by law to support, is presumed to be knowingly inducing or intentionally causing another to remain a prostitute.
  2. The offense is a class A felony if the actor intentionally causes another to remain a prostitute by force, coercion, threat, or deception, or the prostitute is the actor’s spouse or ward, or a person for whose care, protection, or support the actor is responsible. Otherwise it is a class C felony.

Source: S.L. 1973, ch. 116, § 28; 1983, ch. 172, § 8; 2015, ch. 109, § 1, effective August 1, 2015.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

DECISIONS UNDER PRIOR LAW

Analysis

Accomplice.

A prostitute who paid over to a third person her proceeds or earnings was not an accomplice of the one who received such proceeds. State v. Green, 70 N.D. 722, 297 N.W. 783, 1941 N.D. LEXIS 221 (N.D. 1941).

Evidence.
—Ownership.

Evidence that the house was listed for taxation in the same year, in the name of the defendant, is admissible on the question of ownership in prosecution for keeping house of prostitution. Territory v. Stone, 4 N.W. 697, 2 Dakota 155, 1879 Dakota LEXIS 4 (Dakota 1879).

—Reputation.

In prosecution for keeping a house of prostitution, evidence tending to show the general reputation or character of the house kept by defendant was admissible. Territory v. Chartrand, 46 N.W. 583, 1 Dakota 379, 1877 Dakota LEXIS 8 (Dakota 1877); Territory v. Stone, 4 N.W. 697, 2 Dakota 155, 1879 Dakota LEXIS 4 (Dakota 1879).

In prosecution for receiving proceeds from prostitution, it was error to admit evidence of the reputation of the defendant’s house in which the prostitution was alleged to have been carried on. State v. Green, 70 N.D. 722, 297 N.W. 783, 1941 N.D. LEXIS 221 (N.D. 1941).

Joint Enterprise.

One charged with knowingly receiving the proceeds or earnings of a woman engaged in prostitution was not engaged in a joint enterprise with the prostitute so as to constitute both parties principals. State v. Green, 70 N.D. 722, 297 N.W. 783, 1941 N.D. LEXIS 221 (N.D. 1941).

Unreasonable Seizure of House.

The issuance of a writ directing the taking possession of and closing a dwelling house alleged to be a nuisance, prior to the rendition of a judgment, was contrary to law and constituted a violation of the occupant’s rights in that it directed the taking of property without due process of law and an unreasonable seizure of the house. Simpson v. District Court, 77 N.D. 189, 42 N.W.2d 213, 1950 N.D. LEXIS 118 (N.D. 1950).

12.1-29-03. Prostitution.

An adult is guilty of prostitution, a class B misdemeanor, if the adult:

  1. Is an inmate of a house of prostitution or is otherwise engaged in sexual activity as a business;
  2. Solicits another person with the intention of being hired to engage in sexual activity; or
  3. Agrees to engage in sexual activity with another for money or other items of pecuniary value.

Source: S.L. 1973, ch. 116, § 28; 2005, ch. 118, § 1; 2015, ch. 109, § 2, effective August 1, 2015.

Cross-References.

Common nuisance, abatement, see N.D.C.C. ch. 42-02.

DECISIONS UNDER PRIOR LAW

Destruction of Property.

In the absence of legislative enactment authorizing the destruction of personal property kept and used in connection with the operation and maintenance of a bawdyhouse, the court had no inherent authority to order the destruction of such property. State ex rel. McCurdy v. Bennett, 37 N.D. 465, 163 N.W. 1063, 1917 N.D. LEXIS 101 (N.D. 1917).

Elements of Crime.

In a prosecution for unlawfully receiving a person into a place for the purpose of assignation, the actual indulgence of the person so received in the proscribed act was not an essential element of the crime charged. State v. Simpson, 78 N.D. 571, 50 N.W.2d 661, 1951 N.D. LEXIS 112 (N.D. 1951).

Reputation.

In a prosecution for receiving a woman into defendant’s building for the purpose of prostitution, evidence of the woman’s reputation for morality and the reputation of the place as a disorderly house was admissible. State v. Farrier, 61 N.D. 694, 240 N.W. 872, 1932 N.D. LEXIS 245 (N.D. 1932); State v. Simpson, 78 N.D. 571, 50 N.W.2d 661, 1951 N.D. LEXIS 112 (N.D. 1951).

Collateral References.

Admissibility of evidence of similar offense in prosecution for sexual offense, 77 A.L.R.2d 841.

Prosecution under White Slave Traffic Act (18 USCS § 2421) based on interstate transportation not involving commercial vice, 23 A.L.R.3d 423.

Validity and construction of statute or ordinance proscribing solicitation for purposes of prostitution, lewdness, or assignation, 77 A.L.R.3d 519.

Admissibility, in rape case, of evidence that accused raped or attempted rape person other than prosecutrix, 2 A.L.R.4th 330.

Entrapment defense in sex offense prosecutions, 12 A.L.R.4th 413.

12.1-29-04. Testimony of spouse in prostitution offenses.

Testimony of a person against his or her spouse shall be admissible to prove offenses under this chapter involving that spouse’s prostitution.

Source: S.L. 1973, ch. 116, § 28.

12.1-29-05. Definitions.

In this chapter:

  1. A “house of prostitution” is any place where prostitution is regularly carried on by a person under the control, management, or supervision of another.
  2. An “inmate” is a prostitute who acts as such in or through the agency of a house of prostitution.
  3. A “prostitute” is a person who engages in sexual activity for hire.
  4. A “prostitution business” is any business which derives funds from prostitution regularly carried on by a person under the control, management, or supervision of another.
  5. “Sexual activity” means sexual act or sexual contact as those terms are defined in section 12.1-20-02.

Source: S.L. 1973, ch. 116, § 28; 1973, ch. 117, § 3; 1975, ch. 116, § 22.

DECISIONS UNDER PRIOR LAW

Analysis

“Female.”

The word “female” as used in the former statute included a married as well as an unmarried woman. State v. Phillips, 26 N.D. 206, 144 N.W. 94, 1913 N.D. LEXIS 57 (N.D. 1913).

Instructions Regarding Definitions.

It was not error for the court, in instructing the jury, to give the statutory definitions of terms. State v. Farrier, 61 N.D. 694, 240 N.W. 872, 1932 N.D. LEXIS 245 (N.D. 1932).

Undefined Terms.

The terms “prostitution”, “lewdness”, and “assignation” were not defined as crimes in the statutes, but the terms denoted acts concerning which various related courses of conduct were made unlawful by former section. State v. Simpson, 78 N.D. 571, 50 N.W.2d 661, 1951 N.D. LEXIS 112 (N.D. 1951).

12.1-29-06. Hiring an individual to engage in sexual activity.

Except as provided in section 12.1-41-06, an individual who hires or offers or agrees to hire another individual with the intention of engaging in sexual activity is guilty of:

  1. A class B misdemeanor for a first offense; and
  2. A class A misdemeanor for a second or subsequent offense within ten years.

Source: S.L. 2005, ch. 119, § 1; 2015, ch. 110, § 1, effective August 1, 2015; 2019, ch. 109, § 2, effective August 1, 2019.

12.1-29-07. Offender education program.

A sentence for an offense under section 12.1-29-06 or chapter 12.1-41 may include an order for the offender to participate in an offender education program on the negative consequences of the commercial sex industry, including health and legal consequences and the impact on communities, survivors, spouses, and children. The court may order the offender to pay the cost of the offender education program.

History. S.L. 2015, ch. 110, § 2, effective January 1, 2016; 2017, ch. 366, § 2, effective February 23, 2017.

CHAPTER 12.1-30 Sunday Closing Law

12.1-30-01. Business or labor on Sunday — Exemptions — Classification of offenses. [Repealed]

Source: S.L. 1973, ch. 116, § 29; 1985, ch. 183, § 1; 1991, ch. 130, § 4; repealed by 2019, ch. 112, § 2, effective August 1, 2019.

12.1-30-02. Items prohibited from sale or rental on Sunday. [Repealed]

Source: S.L. 1973, ch. 116, § 29; 1979, ch. 112, § 3; 1985, ch. 183, § 2; 1991, ch. 130, § 5; repealed by 2019, ch. 112, § 2, effective August 1, 2019.

12.1-30-03. Businesses allowed to operate on Sunday — Limitations. [Repealed]

Source: S.L. 1973, ch. 116, § 29; 1979, ch. 112, § 4; 1983, ch. 169, § 1; 1985, ch. 183, § 3; 1987, ch. 100, § 3; 1989, ch. 171, § 1; 1991, ch. 131, §§ 1, 2; 1993, ch. 63, § 5; 2001, ch. 460, § 1; 2017, ch. 104, § 1, effective August 1, 2017; repealed by 2019, ch. 112, § 2, effective August 1, 2019.

12.1-30-04. Retail business leases or agreements — Penalty.

A retail business may not be required to be open on Sunday as a part of a lease agreement, franchise agreement, or any other contractual arrangement entered and executed before January 1, 2019. A violation of this section is a class A misdemeanor.

Source: S.L. 1991, ch. 130, § 6; 2019, ch. 112, § 1, effective August 1, 2019.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-31 Miscellaneous Offenses

12.1-31-01. Disorderly conduct.

  1. An individual is guilty of a class B misdemeanor if, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual’s behavior, the individual:
    1. Engages in fighting, or in violent, tumultuous, or threatening behavior;
    2. Makes unreasonable noise;
    3. In a public place, uses abusive or obscene language, knowingly exposes that individual’s penis, vulva, or anus, or makes an obscene gesture;
    4. Obstructs vehicular or pedestrian traffic or the use of a public facility;
    5. Persistently follows a person in or about a public place or places;
    6. While loitering in a public place for the purpose of soliciting sexual contact, the individual solicits the contact;
    7. Creates a hazardous, physically offensive, or seriously alarming condition by any act that serves no legitimate purpose;
    8. Engages in harassing conduct by means of intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person; or
    9. Uses a fixed optical device that enhances or records a visual occurrence to view through any window of another person’s property; or uses a surveillance camera to capture an image from the dwelling or accessory structure of another person; however, an individual using a surveillance camera has seven days from notice by a law enforcement officer to direct or shield the camera so as to not capture an image from another person’s dwelling or accessory structure before there is an offense.
  2. This section does not apply to constitutionally protected activity. If an individual claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

Source: S.L. 1973, ch. 116, § 30; 1993, ch. 125, § 1; 2001, ch. 134, § 7; 2011, ch. 100, § 1.

Cross-References.

Hindering proceedings by disorderly conduct, see N.D.C.C. § 12.1-10-04.

Inciting riot, see N.D.C.C. § 12.1-25-01.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

Riots, generally, see N.D.C.C. §§ 12.1-25-01 to 12.1-25-04.

Notes to Decisions

City Ordinance.

City disorderly conduct ordinance which did not attempt to prohibit or penalize any speech other than that which is constitutionally prohibited by N.D.C.C. § 12.1-31-01, and which contained additional language that only clarified the particular language which it prohibited, literally expressing what the state statute must be construed to include to be constitutional, did not supersede the state statute. As the ordinance stood in its entirety, it was not facially susceptible of application to constitutionally protected speech and therefore was not unconstitutional. City of Bismarck v. Nassif, 449 N.W.2d 789, 1989 N.D. LEXIS 249 (N.D. 1989).

City’s disorderly conduct ordinance does not attempt to prohibit or penalize any speech other than that which is constitutionally prohibited by N.D.C.C. § 12.1-31-01. The additional language of the ordinance only clarifies the particular language which it prohibits. It literally expresses what the state statute must be construed to include to be constitutional. Accordingly, the ordinance has not superseded the state statute. City of Bismarck v. Schoppert, 450 N.W.2d 757, 1990 N.D. LEXIS 2 (N.D. 1990).

Defenses.

Section 12.1-05-03, N.D.C.C., which describes self-defense as justification, applies to conduct, and is not limited to specified offenses; thus if a person is justified in engaging in conduct that would otherwise constitute disorderly conduct, self defense is a defense. State v. Schumaier, 1999 ND 239, 603 N.W.2d 882, 1999 N.D. LEXIS 256 (N.D. 1999).

Evidence Sufficient.

Where defendant was in the only tanning booth with access to another booth at the time another patron saw a mirror, mirror fragments were found in defendant’s garbage, and the state submitted evidence showing a mirror could be manipulated from defendant’s booth into the other booth so as to display its contents, the evidence was sufficient for a rational factfinder to find beyond a reasonable doubt defendant’s actions violated former subsection (7), now see subdivision (1)(g) for similar provisions. State v. Carriere, 545 N.W.2d 773, 1996 N.D. LEXIS 104 (N.D. 1996).

State of North Dakota produced sufficient evidence to sustain defendant’s disorderly conduct conviction under N.D.C.C. § 12.1-31-01(1) by showing that a reasonable person in neighbor’s shoes would have become alarmed by defendant’s actions of yelling loudly and shouting profanity in light of defendant’s past reckless endangerment conviction for shooting the neighbor’s husband with a pellet gun. State v. Klindtworth, 2005 ND 18, 691 N.W.2d 284, 2005 N.D. LEXIS 24 (N.D. 2005).

Evidence was sufficient to convict defendant of disorderly conduct where defendant was involved in a dispute over the right to cut hay, the sheriff asked him to remove his machinery, he refused and became angry, began yelling obscenities and making obscene and threatening gestures toward the sheriff, he made gestures close to the sheriff’s face, and, after swinging at the sheriff’s face, he was wrestled to the ground. State v. Barth, 2005 ND 134, 702 N.W.2d 1, 2005 N.D. LEXIS 169 (N.D. 2005).

Defendant’s motion to dismiss a charge of disorderly conduct under N.D.C.C. § 12.1-31-01 was properly denied because, while defendant could not have been charged for disorderly conduct solely on the basis of the content of his speech, the affidavit filed with the complaint described conduct that could be the basis of disorderly conduct charges, such as defendant’s intentional yelling on a city street in the middle of the night in a residential area or his pointing at a sheriff’s deputy while standing five feet away and yelling obscenities. State v. Bornhoeft, 2009 ND 138, 770 N.W.2d 270, 2009 N.D. LEXIS 151 (N.D. 2009).

Where a juvenile was charged with delinquency based upon disorderly conduct after she and two other girls followed an African-American girl into a bathroom at a teen center and began yelling at her, using racial slurs, and threatening her, the juvenile court did not err in finding that the juvenile committed acts constituting disorderly conduct because her use of racial slurs heightened the potential that her threatening statements and actions would incite a breach of the peace or violent reaction and because her threatening behavior and harassing conduct was intended to adversely affect the safety, security, or privacy of the victim. Cruff v. H.K. (In re H.K.), 2010 ND 27, 778 N.W.2d 764, 2010 N.D. LEXIS 30 (N.D. 2010).

Sufficient evidence was introduced to support a finding that the juvenile was a delinquent and unruly child, and, thus, the juvenile’s adjudication in that regard had to be upheld. The State had presented evidence at the relevant hearing about one such act that occurred in a classroom when the juvenile started screaming words that were not making sense, started throwing objects, and then kicked an aide, as well as a second such act on a school bus when the juvenile started screaming and using vulgar language, and, thus, the evidence showed that the juvenile engaged in multiple acts of disorderly conduct in violation of N.D.C.C. § 12.1-31-01(1). State v. T.S. (In re T.S.), 2011 ND 118, 798 N.W.2d 649, 2011 N.D. LEXIS 122 (N.D. 2011).

Evidence was sufficient to sustain defendant's conviction for disorderly conduct. Although defendant claimed that he lacked the requisite intent for the crime, that he had a legitimate purpose in protesting at a construction site, and that no testimony established defendant intended to adversely affect the safety, security, and privacy of another person, these arguments merely requested the Supreme Court to reweigh the evidence. State v. Decker, 2018 ND 43, 907 N.W.2d 378, 2018 N.D. LEXIS 56 (N.D. 2018).

Sufficient evidence supported defendants’ disorderly conduct convictions under N.D.C.C. § 12.1-31-01 where photographs and testimony showed that they were part of a group engaged in attempts to flank law enforcement’s skirmish lines on private property after being told to return to a state highway in an effort to advance toward construction equipment. State v. Simon, 2018 ND 197, 916 N.W.2d 626, 2018 N.D. LEXIS 214 (N.D. 2018).

First Amendment.

Where a juvenile was charged with delinquency based upon disorderly conduct after she and two other girls followed an African-American girl into a bathroom at a teen center and began yelling at her, using racial slurs, and threatening her, the juvenile court did not err in denying the juvenile’s motion to dismiss because the First Amendment did not prohibit the juvenile court from considering the juvenile’s statements, as well as the context in which she made the statements, in determining whether the delinquency petition sufficiently set forth a charge of disorderly conduct. While the disorderly conduct statute did not apply to constitutionally protected activity and protected the mere use of racial slurs, the juvenile did more than simply utter an offensive racial epithet; her use of racial slurs heightened the potential that her threatening statements and actions would incite a breach of the peace or violent reaction. Cruff v. H.K. (In re H.K.), 2010 ND 27, 778 N.W.2d 764, 2010 N.D. LEXIS 30 (N.D. 2010).

Defendants’ conduct underlying the conviction was not constitutionally protected activity under N.D.C.C. § 12.1-31-01(2) as the multiple attempts to flank law enforcement and move toward construction equipment on private property after being directed to leave was not protected speech merely because it occurred at a protest or was accompanied by carried signs or speaking for a cause. State v. Simon, 2018 ND 197, 916 N.W.2d 626, 2018 N.D. LEXIS 214 (N.D. 2018).

Included Offenses.

Court did not err in refusing to instruct jury that disorderly conduct was a lesser included offense of terrorizing, where, if jury had believed defendant’s assertion he lacked the requisite intent for his statements to constitute terrorizing, the jury could also not convict him on the charge of disorderly conduct. State v. Carlson, 1997 ND 7, 559 N.W.2d 802, 1997 N.D. LEXIS 6 (N.D. 1997).

Restraining Order.

Employee’s restraining order was affirmed because the customer’s actions of hitting the employee satisfied the definition of disorderly conduct, when hitting the employee constituted an intrusive and unwanted act intended to adversely affect the safety and security of the employee, and a disorderly conduct restraining order did not require a pattern of behavior. Wetzel v. Schlenvogt, 2005 ND 190, 705 N.W.2d 836, 2005 N.D. LEXIS 230 (N.D. 2005).

In determining whether to issue a disorderly conduct restraining order under N.D.C.C. § 12.1-31-01(1)(h), appellant’s conduct had to be viewed in its totality, and therefore, even constitutionally protected speech was of no consequence if appellant engaged in harassing conduct meant to adversely affect the privacy of another person. Hoggarth v. Kropp, 2010 ND 197, 790 N.W.2d 22, 2010 N.D. LEXIS 191 (N.D. 2010).

Victim’s Alarm or Fear.

Victim’s alarm or fear is an element of disorderly conduct only if the defendant is charged with those parts of the disorderly conduct statute that refer to it. State v. Klindtworth, 2005 ND 18, 691 N.W.2d 284, 2005 N.D. LEXIS 24 (N.D. 2005).

Determining the reasonableness of a person’s fear in a disorderly conduct case is analogous to the standard used in domestic violence cases. State v. Klindtworth, 2005 ND 18, 691 N.W.2d 284, 2005 N.D. LEXIS 24 (N.D. 2005).

DECISIONS UNDER PRIOR LAW

Applicability.

This section was applicable only where no other punishment was provided in the statutes for the act complained of. State v. Stevens, 33 N.D. 540, 157 N.W. 668, 1916 N.D. LEXIS 110 (N.D. 1916); State v. Nelson, 36 N.D. 564, 163 N.W. 278, 1917 N.D. LEXIS 211 (N.D. 1917).

Generally.

In relation to breach of the peace, public peace meant the tranquility and sense of security enjoyed by citizens of a community where good order reigned. State v. Laufenberg, 99 N.W.2d 331, 1959 N.D. LEXIS 117 (N.D. 1959).

Proof.

The offense of grossly disturbing the public peace as defined in this section was a graver offense than ordinary breach of the peace. Proof of such offense, to be sufficient, had to establish that the public peace was actually and grossly disturbed. State v. Laufenberg, 99 N.W.2d 331, 1959 N.D. LEXIS 117 (N.D. 1959).

Where there was no evidence in the record that the tranquility and sense of security enjoyed by the public were in any manner disturbed, a conviction of the offense of grossly disturbing the public peace could not be sustained. State v. Laufenberg, 99 N.W.2d 331, 1959 N.D. LEXIS 117 (N.D. 1959).

Collateral References.

Failure of one on street to obey order of police officer to move on as disorderly conduct, 65 A.L.R.2d 1152.

Misuse of telephone as minor criminal offense, 97 A.L.R.2d 503.

Vagueness as invalidating statutes or ordinances dealing with disorderly persons or conduct, 12 A.L.R.3d 1448.

Students: participation of student in demonstration on or near campus as warranting imposition of criminal liability for breach of peace, disorderly conduct, trespass, unlawful assembly, or similar offense, 32 A.L.R.3d 551.

Larceny as within disorderly conduct statute or ordinance, 71 A.L.R.3d 1156.

Validity, construction, and application of state criminal statute forbidding use of telephone to annoy or harass, 95 A.L.R.3d 411.

Validity and construction of state statute or ordinance prohibiting picketing, parading, demonstrating, or appearing in public while masked or disguised, 2 A.L.R.4th 1241.

Validity and construction of statutes or ordinances prohibiting profanity or profane swearing or cursing, 5 A.L.R.4th 938.

Insulting words addressed directly to police officer as breach of peace or disorderly conduct, 14 A.L.R.4th 1252.

Validity, construction, and application of loitering statutes and ordinances, 72 A.L.R.5th 1.

Validity, Construction, and Application of State Statutes and Municipal Ordinances Proscribing Failure or Refusal to Obey Police Officer’s Order to Move On, or Disperse, on Street, as Disorderly Conduct. 52 A.L.R.6th 125.

Validity, construction, and operation of Federal disorderly conduct regulation (36 C.F.R. § 2.34), 180 A.L.R. Fed. 637.

Law Reviews.

North Dakota Supreme Court Review (In re H.K.), see 86 N.D. L. Rev. 437 (2010).

12.1-31-01.1. Disorderly conduct at a funeral — Penalty.

  1. For purposes of this section:
    1. “Funeral” means the ceremonies, rituals, processions, and memorial services held at a funeral site in connection with the burial, cremation, or memorial of a deceased individual.
    2. “Funeral site” means a church, synagogue, mosque, funeral home, mortuary, cemetery, gravesite, mausoleum, or other place at which a funeral is conducted or is scheduled to be conducted within the next hour or has been conducted within the last hour.
  2. An individual is guilty of disorderly conduct at a funeral if the individual:
    1. Engages, with knowledge of the existence of a funeral site, in any loud singing, playing of music, chanting, whistling, yelling, or noisemaking within one thousand feet [300.48 meters] of any ingress or egress of that funeral site if the volume of the singing, music, chanting, whistling, yelling, or noisemaking is likely to be audible at and disturbing to the funeral site; or
    2. Displays, with knowledge of the existence of a funeral site and within one thousand feet [300.48 meters] of any ingress or egress of that funeral site, any visual images that convey fighting words or actual or veiled threats against any other individual.
  3. Disorderly conduct at a funeral is a class B misdemeanor. A second or subsequent violation of this section is a class A misdemeanor.

Source: S.L. 2007, ch. 129, § 1; 2011, ch. 100, § 2.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Collateral References.

Actions by or Against Individuals or Groups Protesting or Picketing at Funerals. 40 A.L.R.6th 375.

12.1-31-01.2. Sexual assault restraining order — Penalty.

  1. For purposes of this section:
    1. “Second or subsequent violation of a protection order” means two or more violations of protection orders.
    2. “Sexual assault” means any nonconsensual offense in chapter 12.1-20 for which sexual act or sexual contact, as defined in section 12.1-20-02, is an element.
  2. An individual who is the victim of sexual assault or the parent, stepparent, or guardian of a minor who reasonably believes the minor is a victim of sexual assault may seek a sexual assault restraining order from a court of competent jurisdiction in the manner provided in this section.
  3. A petition for relief must allege facts sufficient to show the name of the alleged victim, the name of the individual who committed the sexual assault, and that the individual committed the sexual assault. An affidavit made under oath stating the specific facts and circumstances supporting the relief sought must accompany the petition.
  4. If the petition for relief alleges reasonable grounds to believe an individual has committed sexual assault, the court, pending a full hearing, may grant a temporary sexual assault restraining order.
  5. A temporary restraining order may be entered only against the individual named in the petition. The order must include prohibiting the individual from:
    1. Harassing, stalking, or threatening the individual requesting the order;
    2. Appearing at the individual’s residence, school, and place of employment; and
    3. Contacting the individual requesting the order.
  6. The court may grant a sexual assault restraining order prohibiting the respondent from contacting, harassing, stalking, or threatening the applicant, and from appearing at the applicant’s residence, school, and place of employment if:
    1. An individual files a petition under subsection 3;
    2. The sheriff serves the respondent with a copy of the temporary restraining order issued under subsections 4 and 5, and with notice of the time and place of the hearing;
    3. The court sets a hearing for not later than fourteen days after issuance of the temporary restraining order or at a later date if good cause is shown; and
    4. The court finds after the hearing there are reasonable grounds to believe the respondent committed sexual assault.
  7. A restraining order may be issued only against the individual named in the petition. Relief granted by the restraining order may not exceed a period of two years. The restraining order may be served on the respondent by publication pursuant to rule 4 of the North Dakota Rules of Civil Procedure.
  8. A sexual assault restraining order must contain a conspicuous notice to the respondent providing:
    1. The specific conduct that constitutes a violation of the order;
    2. Notice that violation of the restraining order is punishable as a class A misdemeanor; and
    3. Notice that a peace officer may arrest the respondent without a warrant and take the respondent into custody if the peace officer has probable cause to believe the respondent has violated an order issued under this section.
  9. If the respondent knows of an order issued under subsections 4 and 5, or subsection 6, violation of the order is a class A misdemeanor and also constitutes contempt of court. A second or subsequent violation of a protection order is a class C felony. If the existence of an order issued under subsection 3, or subsections 4 and 5 can be verified by a peace officer, the officer, without a warrant, may arrest and take into custody an individual whom the peace officer has probable cause to believe has violated the order.
  10. The clerk of court shall transmit a copy of a restraining order by the close of the business day on which the order was granted to the local law enforcement agency with jurisdiction over the residence of the alleged victim of sexual assault. Each appropriate law enforcement agency may make available to its officers current information as to the existence and status of any restraining order involving sexual assault.
  11. Notwithstanding subsection 5 of section 11-16-05, a state’s attorney may advise and assist an individual in the preparation of documents necessary to secure a restraining order under this section.
  12. Fees for filing and service of process may not be charged to the petitioner in a proceeding seeking relief due to sexual assault under section 12.1-20-07.

Source: S.L. 2017, ch. 105, § 1, effective August 1, 2017; 2019, ch. 113, § 1, effective August 1, 2019; 2019, ch. 114, § 1, effective August 1, 2019.

12.1-31-02. Engaging in or financing criminal usury business.

  1. A person is guilty of a class C felony if he knowingly engages in, or directly or indirectly provides financing for, the business of making extensions of credit at such a rate of interest that repayment or performance of any promise given in consideration thereof is unenforceable through civil judicial process in this state.
  2. Knowledge of unenforceability shall be presumed, in the case of a person engaging in the business, if any of the following exist, and in the case of a person directly or indirectly providing financing, if he knew any of the following:
    1. It is an offense to charge, take, or receive interest at the rate involved.
    2. The rate of interest charged, taken, or received is fifty or more per centum greater than the maximum enforceable rate of interest.
    3. The rate of interest involved exceeds forty-five per centum per annum or the equivalent rate for a longer or shorter period.
  3. Unless otherwise provided by law, the rate of interest is to be calculated according to the actuarial method of allocating payments made on a debt between principal and interest, pursuant to which a payment is applied first to the accumulated interest and the balance is applied to the unpaid principal.
  4. It is a defense to a prosecution under this section that the defendant was licensed or otherwise authorized by the United States or by any state government to engage in the business of making extensions of credit.
  5. In this section:
    1. An “extension of credit” means any loan, or any agreement, tacit or express, whereby the repayments or satisfaction of any debt, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred.
    2. “Debtor” means any person to whom an extension of credit is made, or who guarantees the repayment of that extension of credit, or in any manner undertakes to indemnify the creditor against loss resulting from the failure of any person to whom that extension of credit is made to repay the same.
    3. The repayment of any extension of credit includes the repayment, satisfaction, or discharge in whole or in part of any debt or claim, acknowledged or disputed, valid or invalid, resulting from or in connection with that extension of credit.

Source: S.L. 1973, ch. 116, § 30.

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

Usury, definition, criminal and civil liability, see N.D.C.C. §§ 47-14-09 to 47-14-11.

Collateral References.

Banks’ liability for breach of implied contract of good faith and fair dealing, 55 A.L.R.4th 1026.

12.1-31-03. Sale of tobacco, electronic smoking devices, or alternative nicotine products to an individual under twenty-one years of age and use by an individual under twenty-one years of age prohibited.

    1. It is an infraction for any person to sell or furnish to an individual under twenty-one years of age, or procure for an individual under twenty-one years of age, cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products. As used in this subdivision, “sell” includes dispensing from a vending machine under the control of the actor.
    2. It is an infraction for any person to display or offer for sale cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products through a self-service display. This subdivision does not apply to a:
      1. Vending machine or other coin-operated machine that is permitted under section 12.1-31-03.1; or
      2. Self-service display that is located in a tobacco specialty store.
  1. It is a noncriminal offense for an individual under twenty-one years of age to purchase, possess, smoke, or use cigarettes, cigars, cigarette papers, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products. However, an individual under twenty-one years of age may purchase and possess tobacco, electronic smoking devices, or alternative nicotine products as part of a compliance survey program when acting with the permission of the individual’s parent or guardian and while acting under the supervision of any law enforcement authority. A state agency, city, county, board of health, tobacco, electronic smoking devices, or alternative nicotine products retailer, or association of tobacco, electronic smoking devices, or alternative nicotine products retailers may also conduct compliance surveys, after coordination with the appropriate local law enforcement authority.
  2. Subsections 1 and 2 do not apply to an individual under twenty-one years of age who possesses cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which it may be used for smoking or chewing, electronic smoking devices, or alternative nicotine products when required in the performance of the individual’s duties as an employee.
  3. It is a noncriminal offense for an individual under twenty-one years of age to present or offer to another individual a purported proof of age which is false, fraudulent, or not actually that individual’s own proof of age, for the purpose of attempting to purchase or possess cigarettes, cigars, cigarette papers, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products.
  4. A city or county may adopt an ordinance or resolution regarding the sale of tobacco, electronic smoking devices, or alternative nicotine products to individuals under twenty-one years of age and use of tobacco, electronic smoking devices, or alternative nicotine products by individuals under twenty-one years of age which includes prohibitions in addition to those in subsection 1, 2, or 4. Any ordinance or resolution adopted must include provisions deeming a violation of subsection 2 or 4 a noncriminal violation and must provide for a fee of not less than twenty-five dollars for an individual fourteen years of age or older who has been charged with an offense under subsection 2 or 4. The failure to post a required bond or pay an assessed fee by an individual found to have violated the ordinance or resolution is punishable as a contempt of court, except an individual under twenty-one years of age may not be imprisoned for the contempt.
  5. An individual fourteen years of age or older found to have violated subsection 2 or 4 must pay a fee of twenty-five dollars.
    1. Any individual who has been cited for a violation of subsection 2 or 4 may appear before a court of competent jurisdiction and pay the fee by the time scheduled for a hearing, or if bond has been posted, may forfeit the bond by not appearing at the scheduled time. An individual appearing at the time scheduled in the citation may make a statement in explanation of that individual’s action and the judge may waive, reduce, or suspend the fee or bond, or both. If the individual cited follows the procedures of this subdivision, that individual has admitted the violation and has waived the right to a hearing on the issue of commission of the violation. The bond required to secure appearance before the court must be identical to the fee. This subdivision does not allow a citing officer to receive the fee or bond.
    2. If an individual cited for a violation of subsection 2 or 4 does not choose to follow the procedures provided under subdivision a, that individual may request a hearing on the issue of the commission of the violation cited. The hearing must be held at the time scheduled in the citation or at some future time, not to exceed ninety days later, set at that first appearance. At the time of a request for a hearing on the issue on commission of the violation, the individual cited shall deposit with the court an appearance bond equal to the fee for the violation cited.
    3. The failure to post bond or to pay an assessed fee is punishable as a contempt of court, except an individual may not be imprisoned for the contempt.
  6. The prosecution must prove the commission of a cited violation under subsection 2 or 4 by a preponderance of the evidence.
  7. A law enforcement officer that cites a minor for violation of this section shall mail a notice of the violation to the parent or legal guardian of the minor within ten days of the citation.
  8. A person adjudged guilty of contempt for failure to pay a fee or fine may be sentenced by the court to a sanction or order designed to ensure compliance with the payment of the fee or fine or to an alternative sentence or sanction including community service.
  9. As used in this section:
    1. “Alternative nicotine product” means any noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. The term does not include any cigarette, cigar, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, any electronic smoking device, or any product regulated as a drug or device by the United States food and drug administration under chapter V of the Federal Food, Drug, and Cosmetic Act [21 U.S.C 501 et seq.].
    2. “Electronic smoking device” means any electronic product that delivers nicotine or other substances to the individual inhaling from the device, including, an electronic cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component, part, or accessory of such a product, whether or not sold separately. Electronic smoking device does not include drugs, devices, or combination products approved for sale by the United States food and drug administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act [52 Stat. 1040; 21 U.S.C. 301 et seq.].
    3. “Self-service display” means a display that contains cigarettes, cigarette papers, cigars, snuff, tobacco in any other form which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products and is located in an area that is openly accessible to the retailer’s customers, and from which customers can readily access those products without the assistance of a salesperson. A display case that holds those products behind locked doors does not constitute a self-service display.
    4. “Tobacco specialty store” means a retail store that:
      1. Derives at least seventy-five percent of its revenue from the sale of cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products; and
      2. Does not permit minors to enter the premises unless accompanied by a parent or legal guardian.
    5. “Vending machine” means a machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or other means of payment that is designed or used for vending purposes, including machines or devices that use remote control locking mechanisms.

Source: S.L. 1973, ch. 118, § 1; 1999, ch. 130, § 1; 2001, ch. 136, § 1; 2007, ch. 130, § 1; 2015, ch. 111, § 1, effective August 1, 2015; 2021, ch. 108, § 1, effective April 1, 2021.

Cross-References.

Penalty for infraction, see N.D.C.C. § 12.1-32-01.

Collateral References.

Civil liability for tobacco sales to minors, 55 A.L.R.4th 1238.

12.1-31-03.1. Vending machines prohibited — Penalty.

  1. It is an infraction for any person to sell or furnish cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products through a vending machine, except as provided in subsection 2.
  2. Subsection 1 does not apply to:
    1. A vending machine that is located in an area in which individuals under twenty-one years of age are not permitted access; or
    2. A vending machine that dispenses cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products through the operation of a device that requires a salesperson to control the dispensation of such product.
  3. It is an infraction for any person to sell or furnish cigarettes, cigarette papers, cigars, snuff, tobacco in any other form in which it may be utilized for smoking or chewing, electronic smoking devices, or alternative nicotine products through any vending machine, if those products are placed together with any nontobacco product, other than matches, in the vending machine.
  4. As used in this section, “electronic smoking devices” and “alternative nicotine products” have the same meaning as in section 12.1-31-03.

Source: S.L. 2007, ch. 130, § 2; 2015, ch. 111, § 2, effective August 1, 2015; 2021, ch. 108, § 2, effective April 1, 2021.

Cross-References.

Penalty for infraction, see N.D.C.C. § 12.1-32-01.

12.1-31-03.2. Child-resistant packaging for liquid nicotine containers. [Contingent expiration date – See note]

  1. Any nicotine liquid container that is sold at retail in this state must satisfy the child-resistant effectiveness standards set forth in title 16, CFR, part 1700, section 15(b)(1), when tested in accordance with the method described in title 16, CFR, part 1700, section 20.
  2. As used in this section, “nicotine liquid container” means a bottle or other container of a liquid or other substance containing nicotine in which the liquid or substance is sold, marketed, or intended for use in an electronic smoking device. The term does not include a liquid or other substance containing nicotine in a cartridge that is sold, marketed, or intended for use in an electronic smoking device, provided that the cartridge is prefilled and sealed by the manufacturer and not intended to be opened by the consumer.
  3. Any person that engages in retail sales of liquid nicotine containers in violation of this section is subject to a civil penalty of not more than five hundred dollars for each separate violation of this section, to be recovered by any enforcement authority designated by the city or political subdivision in which the violation occurred.

History. S.L. 2015, ch. 111, § 3, effective August 1, 2015.

12.1-31-03.2. Child-resistant packaging for liquid nicotine containers. [Contingent effective date – See note]

History. Contingently enacted by S.L. 2015, ch. 111, § 3, effective August 1, 2015; contingently expired by 2015, ch. 111, § 6.

12.1-31-03.3. Sale of flavored e-liquid to minors prohibited — Penalty.

  1. A person may not sell, offer for sale, or distribute in this state any flavored e-liquid or electronic smoking device containing flavored e-liquid to an individual under twenty-one years of age.
  2. A person that violates subsection 1 and is not a manufacturer is subject to a fine of five hundred dollars for each individual package of flavored e-liquid product or electronic smoking device containing flavored e-liquid sold or offered for sale.

Source: S.L. 2019, ch. 115, § 1, effective August 1, 2019; 2021, ch. 108, § 3, effective April 1, 2021.

12.1-31-04. Manufacture, sale, or delivery of paraphernalia — Definitions — Penalty. [Repealed]

Repealed by S.L. 1981, ch. 160, § 8.

12.1-31-05. Child procurement — Penalty.

Except with respect to fees and charges authorized by law or approved by a court in a proceeding related to the placement of a minor child for adoption or related to the adoption of a minor child, a person is guilty of child procurement, a class C felony, if the person knowingly offers, gives, or agrees to give to another or solicits, accepts, or agrees to accept from another, a thing of value as consideration for the recipient’s furnishing or aiding another to furnish a minor child for the purposes of adoption. This section does not apply to parties to any agreement in which a woman agrees to become a surrogate, as defined in section 14-18-01, or to relinquish her rights and duties as parent of a child conceived through assisted reproduction, as defined in section 14-20-02.

Source: S.L. 1987, ch. 172, § 1; 1989, ch. 184, § 8; 2005, ch. 135, § 1.

Note.

The internal reference 14-20-01 at the end of this section was corrected to 14-20-02 at the direction of the state revisor.

12.1-31-06. Volatile chemicals — Inhalation of vapors prohibited — Definitions — Penalty. [Repealed]

Repealed by S.L. 2001, ch. 214, § 10.

12.1-31-07. Endangering an eligible adult — Penalty.

  1. In this chapter, unless the context otherwise requires:
    1. “Caregiver” means a person who is responsible for the care of an eligible adult as a result of a familial or legal relationship, or a person who has assumed responsibility for the care of an eligible adult. The term does not include a licensed health care provider who is acting within the provider’s legal scope of practice in providing appropriate care or assistance to an eligible adult who is the patient or client of the licensed health care provider.
    2. “Eligible adult” means an individual who is at least sixty-five years old or a vulnerable adult as defined in section 50-25.2-01.
    3. “Undue influence” means the use of a position of trust and confidence with an eligible adult to exploit or take advantage of that eligible adult through actions or tactics, including emotional, psychological, or legal manipulation.
  2. Except as provided for by chapters 23-06.5 and 30.1-30, a caregiver who knowingly performs an act that causes an eligible adult’s life to be endangered, health to be injured, or pre-existing physical or mental condition to deteriorate, or a caregiver who fails to perform acts that the caregiver knows are necessary to maintain or preserve the life or health of the eligible adult and the failure causes the eligible adult’s life to be endangered, health to be injured, or pre-existing physical or mental condition to deteriorate, is guilty of a class B felony.

Source: S.L. 1993, ch. 126, § 1; 1995, ch. 132, § 1; 1997, ch. 130, § 1; 2005, ch. 232, § 1; 2017, ch. 74, § 2, effective August 1, 2017.

Collateral References.

Validity, construction, and application of state civil and criminal elder abuse laws, Elder Abuse, 113 A.L.R.5th 431.

12.1-31-07.1. Exploitation of an eligible adult — Penalty.

  1. A person is guilty of exploitation of an eligible adult if:
    1. The person stands in a position of trust and confidence or has a business relationship with the eligible adult and knowingly, by deception, intimidation, or undue influence, obtains or uses, or attempts to obtain or use, the eligible adult’s funds, assets, or property with the intent to temporarily or permanently deprive the eligible adult of the use, benefit, or possession of the property, for the benefit of someone other than the eligible adult; or
    2. The person knows the eligible adult lacks the capacity to consent, and obtains or uses, or attempts to obtain or use, or assists another in obtaining or using or attempting to obtain or use, the eligible adult’s funds, assets, or property with the intent to temporarily or permanently deprive the eligible adult of the use, benefit, or possession of the property for the benefit of someone other than the eligible adult.
  2. Exploitation of an eligible adult is:
    1. A class A felony if the value of the exploited funds, assets, or property exceeds fifty thousand dollars.
    2. A class B felony if the value of the exploited funds, assets, or property exceeds ten thousand dollars but does not exceed fifty thousand dollars.
    3. A class C felony if the value of the exploited funds, assets, or property is in excess of one thousand dollars but does not exceed ten thousand dollars.
    4. A class A misdemeanor if the value of the exploited funds, assets, or property does not exceed one thousand dollars.
  3. It is not a defense to a prosecution of a violation of this section that the accused did not know the age of the victim.
  4. This section does not impose criminal liability on a person who has:
    1. Managed the eligible adult’s funds, assets, or property in a manner that clearly gives primacy to the needs and welfare of that person or is consistent with any explicit written authorization; or
    2. Made a good-faith effort to assist in the management of the eligible adult’s funds, assets, or property.

Source: S.L. 1997, ch. 130, § 2; 2013, ch. 110, § 1; 2017, ch. 74, § 3, effective August 1, 2017.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-31-07.2. Criminal proceeding involving an eligible adult — Speedy trial.

In a criminal proceeding in which an eligible adult is a victim, the court and state’s attorney shall take appropriate action to ensure a speedy trial to minimize the length of time the eligible adult must endure the stress of involvement in the proceedings. In ruling on a motion or other request for a delay or a continuance of proceedings, the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of the eligible adult.

Source: S.L. 1997, ch. 130, § 2; 2017, ch. 74, § 4, effective August 1, 2017.

12.1-31-08. Possession or distribution of certain photographs or other visual representations prohibited — Penalty. [Repealed]

Repealed by S.L. 2009, ch. 133, § 3.

12.1-31-09. Fraudulent use of receipts and universal product code labels prohibited — Penalty.

Except as otherwise provided in this section, any person who, with the intent to defraud a retailer, possesses, uses, utters, transfers, alters, counterfeits, or reproduces a retail sales receipt or a universal product code label is guilty of a class A misdemeanor. Any person who, with the intent to defraud a retailer, possesses fifteen or more fraudulent retail sales receipts or universal product code labels or who possesses a device the purpose of which is to manufacture fraudulent retail sales receipts or universal product code labels is guilty of a class C felony. For purposes of this section, “universal product code” means the twelve-digit identification number and bar code system developed by the uniform code council which is used to uniquely identify products.

Source: S.L. 2003, ch. 109, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

12.1-31-10. Sale of bidis prohibited — Penalty.

It is an infraction for any person to sell the tobacco product commonly referred to as bidis or beedies. For purposes of this section, “bidis” or “beedies” means a product containing tobacco which is wrapped in temburni leaf, also known as diospyros melanoxylon, or tendu leaf, also known as diospyros exculpra.

Source: S.L. 2003, ch. 110, § 1.

Cross-References.

Penalty for infraction, see N.D.C.C. § 12.1-32-01.

12.1-31-11. False representation of marital status.

An individual is guilty of a class B misdemeanor if the individual lives openly and notoriously with an individual of the opposite sex as a married couple without being married to the other individual and falsely represents the couple’s status as being married to each other.

Source: S.L. 2007, ch. 131, § 1.

Cross-References.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-31-12. Abortion — Affirmative defenses. [Contingent effective date – See note]

  1. As used in this section:
    1. “Abortion” means the use or prescription of any substance, device, instrument, medicine, or drug to intentionally terminate the pregnancy of an individual known to be pregnant. The term does not include an act made with the intent to increase the probability of a live birth; preserve the life or health of a child after live birth; or remove a dead, unborn child who died as a result of a spontaneous miscarriage, an accidental trauma, or a criminal assault upon the pregnant female or her unborn child.
    2. “Physician” means an individual licensed to practice medicine under chapter 43-17.
    3. “Professional judgment” means a medical judgment that would be made by a reasonably prudent physician who is knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
  2. It is a class C felony for a person, other than the pregnant female upon whom the abortion was performed, to perform an abortion.
  3. The following are affirmative defenses under this section:
    1. That the abortion was necessary in professional judgment and was intended to prevent the death of the pregnant female.
    2. That the abortion was to terminate a pregnancy that resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest, as those offenses are defined in chapter 12.1-20.
    3. That the individual was acting within the scope of that individual’s regulated profession and under the direction of or at the direction of a physician.

Source: S.L. 2007, ch. 132, § 1.

Effective Date.

Section 2 of chapter 132, S.L. 2007, as amended by S.L. 2019, ch. 126, § 2, provides: “This section becomes effective on the thirtieth day after:

1. The adoption of an amendment to the United States Constitution which, in whole or in part, restores to the states the authority to prohibit abortion; or

2. The attorney general certifies to the legis- lative council the issuance of the judgment in any decision of the United States Supreme Court which, in whole or in part, restores to the states authority to prohibit abortion.”

Cross-References.

Penalty for class C felony, see N.D.C.C. § 12.1-32-01.

12.1-31-13. Tattooing, branding, subdermal implants, scarifying, and piercing — Minors.

  1. As used in this section:
    1. “Brand” means the use of heat, cold, or any chemical compound to imprint permanent markings on an individual’s skin.
    2. “Pierce” means the puncture of any part of an individual’s body to insert studs, pins, rings, chains, or other jewelry or adornment.
    3. “Scarify” means to cut, tear, or abrade an individual’s skin for the purpose of creating a permanent mark or design on the skin.
    4. “Subdermal implant” means to insert a foreign object beneath the skin to decorate an individual’s body.
    5. “Tattoo” means to mark the skin of an individual by insertion of permanent colors through puncture of the skin.
  2. It is a class B misdemeanor for a person, other than a licensed health care professional acting within that professional’s scope of practice, to tattoo, brand, subdermal implant, scarify, or pierce an individual who is under eighteen years of age unless the tattooing, branding, subdermal implanting, scarifying, or piercing takes place in the presence of and with the written consent of the individual’s parent or legal guardian.
  3. It is a class B misdemeanor for a person to sell, trade, or otherwise provide materials or kits for tattooing, self-tattooing, branding, self-branding, scarifying, self-scarifying, subdermal implanting, self-subdermal implanting, body piercing, or self-body piercing to an individual who is under eighteen years of age.
  4. A political subdivision may enact and enforce an ordinance restricting tattooing, branding, subdermal implanting, scarifying, and piercing or restricting the sale of tattooing, branding, subdermal implanting, scarifying, and piercing materials and kits if the ordinance is equal to or more stringent than this section.

Source: S.L. 2007, ch. 133, § 1.

Cross-References.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-31-14. Surreptitious intrusion or interference with privacy.

  1. An individual is guilty of a class B misdemeanor if, with intent to intrude upon or interfere with the privacy of another, the individual:
    1. Enters upon another’s property and surreptitiously gazes, stares, or peeps into a house or place of dwelling of another; or
    2. Enters upon another’s property and surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events from a house or place of dwelling of another.
  2. An individual is guilty of a class B misdemeanor if, with intent to intrude upon or interfere with the privacy of an occupant, the individual:
    1. Surreptitiously gazes, stares, or peeps into a tanning booth, a sleeping room in a hotel, or other place where a reasonable individual would have an expectation of privacy; or
    2. Surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events from a tanning booth, a sleeping room in a hotel, or other place where a reasonable individual would have an expectation of privacy.
  3. An individual is guilty of an infraction if the individual enters upon another’s property and installs any device for observing, recording, or photographing wildlife while the owner of the device is absent unless:
    1. The individual has written permission from the owner or an individual authorized by the owner of the property; and
    2. The device has a permanently affixed metal or plastic tag with a registration number issued by the game and fish department, or the individual’s name, address, and telephone number.
  4. In a prosecution under this section, it is an affirmative defense that an individual was acting pursuant to section 50-10.2-02.1.

Source: S.L. 2011, ch. 100, § 3; 2019, ch. 116, § 1, effective August 1, 2019; 2019, ch. 403, § 1, effective August 1, 2019; 2021, ch. 183, § 1, effective August 1, 2021.

Effective Date.

This section became effective August 1, 2011.

Cross-References.

Penalty for class B misdemeanor, see N.D.C.C. § 12.1-32-01.

12.1-31-15. Wearing of masks during commission of criminal offense prohibited.

  1. An individual may not wear a mask, hood, or other device that covers, hides, or conceals any portion of that individual’s face:
    1. With the intent to intimidate, threaten, abuse, or harass any other individual;
    2. For the purpose of evading or escaping discovery, recognition, or identification during the commission of a criminal offense; or
    3. For the purpose of concealment, flight, or escape when the individual has been charged with, arrested for, or convicted of a criminal offense.
  2. A violation of this section is a class A misdemeanor.

Source: S.L. 2017, ch. 106, § 1, effective February 23, 2017.

CHAPTER 12.1-31.1 Drug Paraphernalia [Repealed]

[Repealed by S.L. 2001, ch. 214, § 10]

CHAPTER 12.1-31.2 Disorderly Conduct Restraining Order

12.1-31.2-01. Disorderly conduct restraining order — Penalty.

  1. “Disorderly conduct” means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. For the purposes of this section, disorderly conduct includes human trafficking or attempted human trafficking as defined in this title. Disorderly conduct does not include constitutionally protected activity.
  2. A person who is a victim of disorderly conduct or the parent or guardian of a minor who is a victim of disorderly conduct may seek a disorderly conduct restraining order from any court of competent jurisdiction in the manner provided in this section.
  3. A petition for relief must allege facts sufficient to show the name of the alleged victim, the name of the individual engaging in the disorderly conduct, and that the individual engaged in disorderly conduct. An affidavit made under oath stating the specific facts and circumstances supporting the relief sought must accompany the petition.
  4. If the petition for relief alleges reasonable grounds to believe that an individual has engaged in disorderly conduct, the court, pending a full hearing, may grant a temporary disorderly conduct restraining order ordering the individual to cease or avoid the disorderly conduct or to have no contact with the person requesting the order. A temporary restraining order may be entered only against the individual named in the petition. The court may issue the temporary restraining order without giving notice to the respondent. Unless otherwise terminated by the court, the temporary restraining order is in effect until a restraining order issued under subsection 5 is served.
  5. The court may grant a disorderly conduct restraining order ordering the respondent to cease or avoid the disorderly conduct or to have no contact with the applicant if:
    1. A person files a petition under subsection 3;
    2. The sheriff serves the respondent with a copy of the temporary restraining order issued under subsection 4 and with notice of the time and place of the hearing;
    3. The court sets a hearing for not later than fourteen days after issuance of the temporary restraining order or at a later date if good cause is shown; and
    4. The court finds after the hearing that there are reasonable grounds to believe that the respondent has engaged in disorderly conduct. If a person claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.
  6. A restraining order may be issued only against the individual named in the petition. Relief granted by the restraining order may not exceed a period of two years. The restraining order may be served on the respondent by publication pursuant to rule 4 of the North Dakota Rules of Civil Procedure.
  7. A disorderly conduct restraining order must contain a conspicuous notice to the respondent providing:
    1. The specific conduct that constitutes a violation of the order;
    2. Notice that violation of the restraining order is a class A misdemeanor punishable by imprisonment of up to three hundred sixty days or a fine of up to three thousand dollars or both; and
    3. Notice that a peace officer may arrest the respondent without a warrant and take the respondent into custody if the peace officer has probable cause to believe the respondent has violated an order issued under this section.
  8. If the respondent knows of an order issued under subsection 4 or 5, violation of the order is a class A misdemeanor. If the existence of an order issued under subsection 3 or 4 can be verified by a peace officer, the officer, without a warrant, may arrest and take into custody an individual whom the peace officer has probable cause to believe has violated the order.
  9. Whenever a restraining order is issued, extended, modified, or terminated under this section, the court shall transmit the order electronically to the bureau. Unless the order is a temporary order under subsection 4, the bureau shall enter the order electronically in the national crime information center database provided by the federal bureau of investigation, or its successor agency. The sheriff of the county in which the order was issued shall maintain and respond to inquiries regarding the order in the national crime information center database provided by the federal bureau of investigation, or its successor agency, pursuant to bureau and federal requirements. Whenever a restraining order is issued, the clerk of court shall forward a copy of the order to the local law enforcement agency with jurisdiction over the residence of the protected party by the close of business on the day the restraining order is issued. Once the bureau, after consultation with the state court administrator, determines and implements an electronic method to notify the sheriff of the county that issued the order, the clerk of court’s requirement to forward the order to a law enforcement agency will be satisfied.
  10. Notwithstanding subsection 5 of section 11-16-05, a state’s attorney may advise and assist any person in the preparation of documents necessary to secure a restraining order under this section.
  11. Fees for filing and service of process may not be charged to the petitioner in any proceeding seeking relief due to domestic violence under this chapter.

Source: S.L. 1993, ch. 125, § 2; 1995, ch. 133, §§ 1, 2; 2001, ch. 137, § 1; 2015, ch. 112, § 1, effective August 1, 2015; 2017, ch. 107, § 2, effective August 1, 2017; 2019, ch. 54, § 2, effective August 1, 2019; 2019, ch. 114, § 2, effective August 1, 2019.

Cross-References.

Domestic violence protective orders, see N.D.C.C. ch. 14-07.1.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Constitutionality.

Statute was not unconstitutionally overbroad or unconstitutional as applied to defendant because she had been served with temporary disorderly conduct orders, the district court had jurisdiction to enter the orders, and they were not void on their face; although counsel attempted to argue the temporary restraining orders dispossessed or deprived defendant of her real property, she was not charged or convicted for being in her home but for her conduct in approaching and speaking to neighbors. State v. Kenny, 2019 ND 218, 932 N.W.2d 516, 2019 N.D. LEXIS 220 (N.D. 2019).

N.D.C.C. § 12.1-31.2-01 is not unconstitutionally overbroad. State v. Kenny, 2019 ND 218, 932 N.W.2d 516, 2019 N.D. LEXIS 220 (N.D. 2019).

Business Entity Not An “Individual.”

Customer was not entitled to a disorderly conduct restraining order under N.D.C.C. § 12.1-31.2-01 against a business for giving him the wrong color hot tub cover, refusing to refund his money, yelling at him, and continued unwanted contact with him, because a restraining order could be brought only against a natural person, not a business. Holkesvig v. Dakota Spas, 2014 ND 9, 841 N.W.2d 755, 2014 N.D. LEXIS 4 (N.D. 2014).

Claim for Damages.

If, in addition to requesting a protective order under this section, a petitioning party claims a right to damages arising from defendant’s objectionable conduct, he can institute a separate action and is not prejudiced by court’s refusal to join damage claim with special injunctive proceedings. Wishnatsky v. Huey, 1997 ND 35, 560 N.W.2d 878, 1997 N.D. LEXIS 34 (N.D. 1997).

Consideration of Constitutional Claims.

District court erred in entering a two-year disorderly conduct restraining order against a husband because the husband claimed that all of his speech was constitutionally protected and it could not be said that the court would have issued the order based solely on the husband's other conduct. Williams v. Williams, 2018 ND 13, 905 N.W.2d 900, 2018 N.D. LEXIS 2 (N.D. 2018).

Construction.
—Reasonable Grounds.

“Reasonable grounds” is synonymous with the term “probable cause.” Svedberg v. Stamness, 525 N.W.2d 678, 1994 N.D. LEXIS 272 (N.D. 1994).

Contact by Movant Does Not Bar Relief.

Petitioner’s contact with a respondent who is subject to the restrictions imposed by a temporary restraining order might certainly be a factor for the court to consider in evaluating the merits of the petition during the hearing, but it does not automatically bar the petitioner from any relief. Cusey v. Nagel, 2005 ND 84, 695 N.W.2d 697, 2005 N.D. LEXIS 92 (N.D. 2005).

Domestic Violence Protection Order.

Res judicata did not bar entry of the wife’s domestic violence protection order, N.D.C.C. § 14-07.1-07, where although the wife had a disorderly conduct restraining order against the husband, N.D.C.C. § 12.1-31.2-01, she provided additional facts supporting the subsequent issuance of the domestic violence protection order. Wolt v. Wolt, 2010 ND 33, 778 N.W.2d 802, 2010 N.D. LEXIS 33 (N.D. 2010).

Due Process.

District court errs as a matter of law when it denies a respondent the full and fair hearing mandated by N.D.C.C. § 12.1-31.2-01 and due process. The same rule applies to a review of a magistrate’s decision under N.D.C.C. § 27-05-31. Harris v. Harris, 2010 ND 45, 779 N.W.2d 642, 2010 N.D. LEXIS 44 (N.D. 2010).

Husband was denied due process because he was not afforded a full hearing before a magistrate entered a disorderly conduct restraining order under N.D.C.C. § 12.1-31.2-01(5)(d); no evidence was offered by the wife during the proceeding to support the allegations in her petition, and the husband was not given an opportunity to rebut any of the allegations. The magistrate’s focus on dispensing with the evidentiary hearing in his case could have been viewed as subtle coercion; therefore, the husband did not voluntarily, knowingly, and intelligently waive his right to the hearing. Harris v. Harris, 2010 ND 45, 779 N.W.2d 642, 2010 N.D. LEXIS 44 (N.D. 2010).

In the context of a request for a restraining order, a district court abused its discretion in not allowing defendant to directly cross-examine the complainant without adequately explaining, on the record, its reasons for not allowing him to do so. Rath v. Rath, 2016 ND 71, 877 N.W.2d 298, 2016 N.D. LEXIS 72 (N.D. 2016).

Subsection (5) did not violate defendant’s constitutional right to due process because defendant was charged with violating temporary disorderly conduct orders issued under subsection (4) before the hearing on the orders could be held under subsection (5), and she was ultimately convicted of violating the orders. State v. Kenny, 2019 ND 218, 932 N.W.2d 516, 2019 N.D. LEXIS 220 (N.D. 2019).

Evidence Sufficient.

Employee’s restraining order was affirmed because the customer’s actions of hitting the employee satisfied the definition of disorderly conduct, when hitting the employee constituted an intrusive and unwanted act intended to adversely affect the safety and security of the employee, and a disorderly conduct restraining order did not require a pattern of behavior. Wetzel v. Schlenvogt, 2005 ND 190, 705 N.W.2d 836, 2005 N.D. LEXIS 230 (N.D. 2005).

Evidence showed that defendant knew about the restraining order and contacted his ex-girlfriend on February 20, 2008, for a purpose other than contacting the child; viewing the evidence and all reasonable inferences in the light most favorable to the verdict, a reasonable factfinder could have found defendant guilty beyond a reasonable doubt. State v. Boyle, 2009 ND 156, 771 N.W.2d 604, 2009 N.D. LEXIS 165 (N.D. 2009).

Neighbor alleged reasonable grounds for the district court to believe the homeowner engaged in disorderly conduct under N.D.C.C. § 12.1-31.2-01(4); considering the homeowner’s statements coupled with his video recording of the neighbor and her mother in the neighbor’s yard as well as his pattern of behavior toward the neighbor dating back to 2006, there was sufficient evidence to establish reasonable grounds to believe the homeowner engaged in disorderly conduct, N.D.C.C. § 12.1-31.2-01(5)(d). Gonzalez v. Witzke, 2012 ND 60, 813 N.W.2d 592, 2012 N.D. LEXIS 59 (N.D. 2012).

Trial court did not err under N.D.C.C. § 12.1-31.2-01(5) in granting a disorderly conduct restraining order against respondent because petitioner established through her sworn petition and testimony that respondent had sent her harassing text messages and pictures of her genitals and other private parts of her body, at least some taken without her consent. Hanisch v. Kroshus, 2013 ND 37, 827 N.W.2d 528, 2013 N.D. LEXIS 35 (N.D. 2013).

District court did not abuse its discretion in granting the disorderly conduct restraining orders against the couple, N.D.C.C. § 12.1-31.2-01, given their words and actions in confronting the victim, which was intended to adversely affect the victim’s safety, security, or her privacy. Rebel v. Rebel, 2013 ND 164, 837 N.W.2d 351, 2013 N.D. LEXIS 167 (N.D. 2013).

Sufficient evidence supported the jury’s verdict convicting defendant of violating disorderly conduct restraining orders because neighbors testified that the day after the temporary orders were issued, defendant approached them and initiated contact in violation of the orders; defendant’s own testimony corroborated the events that took place. State v. Kenny, 2019 ND 218, 932 N.W.2d 516, 2019 N.D. LEXIS 220 (N.D. 2019).

Ex-Spouse.

It is not enough that the petitioner for a restraining order wants the other person out of the petitioner’s life; conversely, because of previous physical or emotional abuse, in some instances the person restrained is well aware that his or her mere presence is sufficient to cause such emotional stress as to adversely affect the safety, security, or privacy of the other person, and a restraining order might well be justified in that instance. Although a party may not welcome an ex-spouse’s mere presence or telephone calls, a certain amount of contact must be expected when there is split custody of the children and visitation exchanges; unless there is evidence that the contacts rise to the level of disorderly conduct under the statute, a “no contact” order is not authorized. Williams v. Spilovoy, 536 N.W.2d 383, 1995 N.D. LEXIS 155 (N.D. 1995).

Fighting Words.

To determine what constitutes fighting words, a court must consider both the content and the context of the expression, including the age of the participants. Svedberg v. Stamness, 525 N.W.2d 678, 1994 N.D. LEXIS 272 (N.D. 1994).

Taunts, threats including a threat to kill, and the public display of snow effigies which were constructed to harass victim, when delivered to a 14-year-old, were sufficient when taken as a whole to constitute fighting words, and were therefore unprotected by the First Amendment. Svedberg v. Stamness, 525 N.W.2d 678, 1994 N.D. LEXIS 272 (N.D. 1994).

Incorrect Standard Used.

To the extent that a district court said that an ex-husband had to have the intent to hurt a former wife, as opposed to an intent to affect her safety, security, or privacy, in order to grant a disorderly conduct restraining order, the district court appeared to have misapplied or misinterpreted this statute. An appellate court's grant of discretion was strictly conditioned on the district court's proper application and interpretation of the applicable law in reaching its final decision to grant or deny a disorderly conduct restraining order. George v. George, 2014 ND 222, 856 N.W.2d 769, 2014 N.D. LEXIS 217 (N.D. 2014).

Insufficient Grounds.

Trial court did not abuse its discretion in refusing to issue temporary restraining order where plaintiff did not demonstrate in his petition a pattern of intimidation by defendant or that defendant was stalking or seeking out plaintiff to harass him. Wishnatsky v. Huey, 1997 ND 35, 560 N.W.2d 878, 1997 N.D. LEXIS 34 (N.D. 1997).

Ex-stepmother’s attempts to visit with children at their daycare center and at her ex-husband’s home did not constitute disorderly conduct. Tibor v. Lund, 1999 ND 176, 599 N.W.2d 301, 1999 N.D. LEXIS 197 (N.D. 1999).

Where a former boyfriend alleged that a former girlfriend yelled at him at his job, continued to leave messages at his home, stared at him and his new lover, and engaged in actions towards others, there was insufficient evidence to support a trial court’s decision to grant a disorderly conduct restraining order under N.D.C.C. § 12.1-31.2-01; the allegations were vague, did not show fear, and failed to state the specifics of the conversations or the amount of phone calls received. Cusey v. Nagel, 2005 ND 84, 695 N.W.2d 697, 2005 N.D. LEXIS 92 (N.D. 2005).

District court erred as a matter of law in issuing a disorderly conduct restraining order against appellant under N.D.C.C. § 12.1-31.2-01 where the sole basis for the order was the presence of a gun, but evidence of appellant's actions of carrying a handgun while on her private property was constitutionally protected activity and therefore, should have been excluded under N.D.C.C. § 12.1-31.2-01(5)(d). Keller v. Keller, 2017 ND 119, 894 N.W.2d 883, 2017 N.D. LEXIS 122 (N.D. 2017).

District court erred in issuing a two-year disorderly conduct restraining order against a boyfriend because there were no reasonable grounds to believe he engaged in disorderly conduct where the petition did not allege that he threatened the mother’s daughter with violence, that he intended to adversely affect the daughter’s safety, security, or privacy, or that the daughter or the mother were fearful for the daughter’s safety or security, rather the petition focused on the boyfriend’s manipulation of the daughter and his disrespectful behavior toward the mother. Jacobs v. R.B., 2018 ND 83, 908 N.W.2d 687, 2018 N.D. LEXIS 80 (N.D. 2018).

Jury Instructions.

Jury instructions using differing language than the temporary disorderly conduct restraining orders were the law of the case because defendant did not object to the instruction. State v. Kenny, 2019 ND 218, 932 N.W.2d 516, 2019 N.D. LEXIS 220 (N.D. 2019).

Pattern of Behavior Not Required.

N.D.C.C. § 12.1-31.2-01 did not use the term “pattern” to describe disorderly conduct and a pattern was not necessarily required because all that was required were reasonable grounds to believe that the respondent had engaged in disorderly conduct, when the statute’s use of plural words such as acts, words, and gestures did not mean that a pattern of behavior was required. Wetzel v. Schlenvogt, 2005 ND 190, 705 N.W.2d 836, 2005 N.D. LEXIS 230 (N.D. 2005).

Procedure.

Under N.D.C.C. § 12.1-31.2-01, the better practice is to allow the presentation of evidence and not to rely merely on affidavits. Cusey v. Nagel, 2005 ND 84, 695 N.W.2d 697, 2005 N.D. LEXIS 92 (N.D. 2005).

Business’s restraining order against the customer was vacated because the business was never represented by an attorney, and its petition was void from the beginning, when the matter was commenced on behalf of the business by a non-attorney agent, the business’s manager. Wetzel v. Schlenvogt, 2005 ND 190, 705 N.W.2d 836, 2005 N.D. LEXIS 230 (N.D. 2005).

Disorderly conduct restraining orders were overturned and the case was remanded because it could not be determined whether the trial court considered and determined the validity of respondent’s constitutional claims as required under N.D.C.C. § 12.1-31.2-01(5)(d); respondent claimed that an obscene gesture and telephone messages were constitutionally permissible. Hutchinson v. Boyle, 2008 ND 150, 753 N.W.2d 881, 2008 N.D. LEXIS 151 (N.D. 2008).

N.D.C.C. § 12.1-31.2-01(5) did not require a hearing to be held for a disorderly conduct restraining order petition. Rather, that statute only required a hearing be held before a restraining order was granted. Holkesvig v. Dakota Spas, 2014 ND 9, 841 N.W.2d 755, 2014 N.D. LEXIS 4 (N.D. 2014).

While the record may have included some evidence showing appellant's actions could have affected petitioner's safety, security, or privacy, petitioner's lack of specific testimony and the district court's conclusory statements on the record did not adequately show how N.D.C.C. § 12.1-31.2-01 was satisfied. Therefore, petitioner failed as a matter of law to allege the specific facts or threats necessary to support his petition for a disorderly conduct restraining order, and the district court abused it discretion in issuing the restraining order. Mitzel v. Larson, 2017 ND 48, 890 N.W.2d 817, 2017 N.D. LEXIS 54 (N.D. 2017).

District court properly granted a restraining order against the respondent, and in favor of both the petitioners, without hearing testimony by both petitioners because the respondent waived any potential defect in the service by failing to object during the proceedings, and he also waived personal jurisdiction and unfair surprise claims by appearing at the hearing and failing to object or request a continuance. Sollin v. Klein, 2021 ND 75, 958 N.W.2d 144, 2021 N.D. LEXIS 74 (N.D. 2021).

Reasonable Grounds.

Reasonable grounds exist for purposes of this section when facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting the offense of disorderly conduct have been committed. Svedberg v. Stamness, 525 N.W.2d 678, 1994 N.D. LEXIS 272 (N.D. 1994).

Where a wife alleged that the wife’s husband put pieces of crushed up abortion pills in a bowl of soup the husband served to the wife and that the husband raped the wife multiple times during their two-week marriage, it was not an abuse of discretion to issue a two-year disorderly conduct restraining order against the husband, because the wife’s testimony about the incidents provided reasonable grounds to believe that the husband had engaged in disorderly conduct. Meier v. Said, 2007 ND 18, 726 N.W.2d 852, 2007 N.D. LEXIS 15 (N.D. 2007).

Specific Acts or Threats Required.

In order to support a disorderly-conduct restraining order, the petitioner must present evidence of specific acts or threats constituting disorderly conduct. Williams v. Spilovoy, 536 N.W.2d 383, 1995 N.D. LEXIS 155 (N.D. 1995).

Merely showing that a person’s actions are “unwanted” is not sufficient to support a restraining order; the petitioner must show specific unwanted acts that are intended to adversely affect the safety, security or privacy of another person. Tibor v. Lund, 1999 ND 176, 599 N.W.2d 301, 1999 N.D. LEXIS 197 (N.D. 1999).

Reasonable grounds did not exist for a disorderly conduct restraining order against an ex-boyfriend where the plaintiff simply did not satisfy her burden to prove, through specific facts and circumstances, that the ex-boyfriend engaged in disorderly conduct. A person of reasonable caution would not have found that the ex-boyfriend’s actions, including driving by plaintiff’s home and requesting her work schedule, were intended to affect plaintiff’s safety, security, or privacy. Baker v. Mayer, 2004 ND 105, 680 N.W.2d 261, 2004 N.D. LEXIS 206 (N.D. 2004).

Summary Judgment.

Summary dismissal of petition for restraining order was proper, where petitioner did not raise a genuine issue of material fact as to whether defendant engaged in disorderly conduct, and as a matter of law defendant’s conduct was not intrusive behavior warranting the conclusion he committed that offense. Wishnatsky v. Huey, 1997 ND 35, 560 N.W.2d 878, 1997 N.D. LEXIS 34 (N.D. 1997).

Telephone Calls.

Where repeated telephone calls served no purpose but to harass and intimidate, the trial court did not err when it determined that a pattern of hang-up calls adversely affected plaintiff’s safety, security, or privacy. Cave v. Wetzel, 545 N.W.2d 149, 1996 N.D. LEXIS 68 (N.D. 1996).

Violation of Order.

Evidence held sufficient to justify conviction for violating a disorderly conduct restraining order. State v. Lusby, 1998 ND 19, 574 N.W.2d 805, 1998 N.D. LEXIS 8 (N.D. 1998).

Court’s instruction on defendant’s violation of a disorderly conduct restraining order was not erroneous where it instructed the jury on the essential elements of the offense in language tracking N.D.C.C. § 12.1-31.2-01(8), which required the State to prove beyond a reasonable doubt that defendant had knowledge of the order and that he violated one or more provisions of the order, specifically that he entered the victim’s home and spoke with her. State v. Bertram, 2006 ND 10, 708 N.W.2d 913, 2006 N.D. LEXIS 6 (N.D. 2006).

Collateral References.

Criminal and civil liability of civilians and police officers concerning recording of police actions, 84 A.L.R.6th 89.

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Constitutional Law — Freedom of Speech, 71 N.D. L. Rev. 841 (1995).

Summary of North Dakota Supreme Court decisions on Breach of Peace, 72 N.D. L. Rev. 763 (1996).

Protecting Victims by Working Around the System and Within the System: Statutory Protection for Emotional Abuse in the Domestic Violence Context, 81 N.D. L. Rev. 837 (2005).

North Dakota Supreme Court Review (State v. Bertram), 82 N.D. L. Rev. 1033 (2006).

The 2015 amendment of this section by section 1 of chapter 112, S.L. 2015 became effective August 1, 2015.

12.1-31.2-02. Order prohibiting contact.

  1. If an individual who is charged with or arrested for a crime of violence or threat of violence, stalking, harassment, or a sex offense is released from custody before arraignment or trial, the court authorizing the release of the individual shall consider and may issue an order prohibiting the individual from having contact with the victim. The order must contain the court’s directives and must inform the individual that any violation of the order constitutes a criminal offense. The state’s attorney shall provide a copy of the order to the victim. The court shall determine at the time of the individual’s arraignment whether an order issued pursuant to this section will be extended. If the court issues an order pursuant to this section before the time the individual is charged, the order expires at the individual’s arraignment or within seventy-two hours of issuance if charges against the individual are not filed.
  2. If the court has probable cause to believe that the individual charged or arrested is likely to use, display, or threaten to use a firearm or dangerous weapon as defined in section 12.1-01-04 in any further act of violence, the court shall require that the individual surrender for safekeeping any firearm or specified dangerous weapon in or subject to the individual’s immediate possession or control, to the sheriff of the county or chief of police of the city in which the individual resides.
  3. Whenever an order prohibiting contact is issued, modified, extended, or terminated under this section, the clerk of court shall forward a copy of the order within one business day to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order, the law enforcement agency shall enter the order in the central warrant information system and the national crime information center database provided by the federal bureau of investigation, or its successor agency.
    1. Once the bureau, after consultation with the state court administrator, determines and implements a method to transmit electronically to the bureau an order prohibiting contact, the court electronically shall send the full text of the order as issued, modified, extended, or terminated in accordance with this section and any data fields identified by the bureau. This electronic submission will fulfill the law enforcement agency’s requirement to enter the order in the central warrant information system, but will not fulfill its requirement to enter, maintain, and respond to inquiries regarding the order in the national crime information center database provided by the federal bureau of investigation, or its successor agency.
    2. Once the bureau, after consultation with the state court administrator, determines and implements an electronic method to notify law enforcement about the order, the clerk of court’s requirement to forward the order to the law enforcement agency will be satisfied.
    3. Once the bureau, after consultation with the director of state radio, determines and implements a method to enter the order into the national crime information center database provided by the federal bureau of investigation, or its successor agency, the bureau shall enter the order electronically in the national crime information center database provided by the federal bureau of investigation, or its successor agency. This electronic entry will fulfill the law enforcement agency’s requirement to enter the order in the national crime information center database provided by the federal bureau of investigation, or its successor agency, but will not fulfill its requirement to maintain and respond to inquiries regarding the order in the national crime information center database provided by the federal bureau of investigation, or its successor agency.
  4. An individual who violates a court order issued under this section is guilty of a class A misdemeanor.
  5. A law enforcement officer shall arrest an individual without a warrant if the officer determines there is probable cause that the individual has committed the offense of violating an order prohibiting contact under this section, whether or not the violation was committed in the presence of the officer. A law enforcement officer who acts in good faith on probable cause and without malice is immune from any civil or criminal liability for making an arrest under this subsection.

Source: S.L. 2009, ch. 134, § 1; 2017, ch. 107, § 3, effective August 1, 2017.

Cross-References.

Penalty for class A misdemeanor, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Evidence Sufficient.

State presented sufficient that defendant, already subject to order prohibiting defendant from contacting a particular woman, made numerous cell phone and text message contacts from defendant’s phone numbers to the woman and came to her parents’ house while she was there. As a result, sufficient evidence showed that defendant violated an order prohibiting contact in violation of N.D.C.C. § 12.1-31.2-02. State v. Zottnick, 2011 ND 84, 796 N.W.2d 666, 2011 N.D. LEXIS 90 (N.D. 2011).

CHAPTER 12.1-32 Penalties and Sentencing

12.1-32-01. Classification of offenses — Penalties.

Offenses are divided into seven classes, which are denominated and subject to maximum penalties, as follows:

  1. Class AA felony, for which a maximum penalty of life imprisonment without parole may be imposed. The court must designate whether the life imprisonment sentence imposed is with or without an opportunity for parole. Notwithstanding the provisions of section 12-59-05, a person found guilty of a class AA felony and who receives a sentence of life imprisonment with parole, shall not be eligible to have that person’s sentence considered by the parole board for thirty years, less sentence reduction earned for good conduct, after that person’s admission to the penitentiary.
  2. Class A felony, for which a maximum penalty of twenty years’ imprisonment, a fine of twenty thousand dollars, or both, may be imposed.
  3. Class B felony, for which a maximum penalty of ten years’ imprisonment, a fine of twenty thousand dollars, or both, may be imposed.
  4. Class C felony, for which a maximum penalty of five years’ imprisonment, a fine of ten thousand dollars, or both, may be imposed.
  5. Class A misdemeanor, for which a maximum penalty of imprisonment for three hundred sixty days, a fine of three thousand dollars, or both, may be imposed.
  6. Class B misdemeanor, for which a maximum penalty of thirty days’ imprisonment, a fine of one thousand five hundred dollars, or both, may be imposed.
  7. Infraction, for which a maximum fine of one thousand dollars may be imposed. Any person convicted of an infraction who, within one year before commission of the infraction of which the person was convicted, has been convicted previously at least twice of the same offense classified as an infraction may be sentenced as though convicted of a class B misdemeanor. If the prosecution contends that the infraction is punishable as a class B misdemeanor, the complaint must specify the offense is a misdemeanor.

This section shall not be construed to forbid sentencing under section 12.1-32-09, relating to extended sentences.

Source: S.L. 1973, ch. 116, § 31; 1975, ch. 116, § 23; 1979, ch. 177, § 2; 1995, ch. 134, § 1; 1997, ch. 132, § 1; 2013, ch. 104, § 11; 2017, ch. 164, § 2, effective August 1, 2017; 2019, ch. 186, § 1, effective August 1, 2019.

Notes to Decisions

Class A Felony.

Sentence of ten years, with four years suspended and five years of supervised probation, for defendant’s conviction of unlawful delivery of a controlled substance was affirmed because defendant’s sentence was within the range of sentences for a Class A Felony, and defendant failed to show that the district court substantially relied upon an impermissible factor in sentencing; the trial court determined defendant was engaged in an ongoing enterprise of selling drugs and this was a reasonable inference based upon the evidence in the record and was a factor the trial court could consider during sentencing, and the trial court also considered at least seven other factors in sentencing defendant, all of which were listed in N.D.C.C. § 12.1-32-04. State v. Hoverson, 2006 ND 49, 710 N.W.2d 890, 2006 N.D. LEXIS 53 (N.D. 2006).

District court erred in sentencing defendant to life in prison because his sentence for attempted murder exceeded the statutory maximum sentence allowed for a class A felony and was illegal where, while the State gave notice it was requesting defendant be sentenced as a habitual offender and the court subsequently entered an amended judgment stating defendant was a habitual offender, he was not originally sentenced as a habitual offender. State v. Lyon, 2019 ND 21, 921 N.W.2d 441, 2019 N.D. LEXIS 3 (N.D. 2019).

Because the dangerous special offender status did not apply to defendant, he was subject only to the maximum penalty for conspiracy to commit kidnapping, a class A felony with a maximum of twenty years’ imprisonment and a $ 20,000 fine. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

Gross sexual imposition charges alleging defendant engaged in sexual contact created a unanimity issue because the instructions did not provide sufficient factual information to distinguish the counts when each permitted a finding of guilt for touching the victim’s vulva; an obvious error occurred because it implicated defendant’s constitutional right to a unanimous verdict since it was not clear the jury agreed on the act supporting the conviction for touching the victim’s breasts and vulva. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Class A Misdemeanor.

Reviewing court overruled defendant’s assertion that the district court erred in sentencing him to the maximum penalty of one year of incarceration for driving under the influence, a class A misdemeanor, because the district court sentenced defendant within the prescribed statutory limits, and the record did not reflect the court relied on an impermissible sentencing factor. State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786, 2007 N.D. LEXIS 166 (N.D. 2007).

Class AA Felony.

The serious nature of sexual assault is underscored by the North Dakota legislature classifying them as class AA felonies, carrying a potential sentence of life imprisonment without parole under N.D.C.C. §§ 12.1-20-03(3)(a) and 12.1-32-01(1). The North Dakota legislature has defined force to mean physical action in N.D.C.C. § 12.1-01-04(11), and it is the force or physical action by defendant which must compel the victim to submit to a sex act for a crime to be committed under N.D.C.C. § 12.1-20-03(1)(a); in the absence of force or threats of death or serious bodily injury, there is no crime under N.D.C.C. § 12.1-20-03(1)(a). State v. Vantreece, 2007 ND 126, 736 N.W.2d 428, 2007 N.D. LEXIS 127 (N.D. 2007).

Defendant did not show a unanimity issue amongst the gross sexual imposition counts alleging that he engaged in two sexual acts with the victim because the jury instructions provided information identifying and differentiating the underlying acts; the charges were the same, but each count alleged defendant committed a factually distinct criminal act, and the jury could not find him guilty of both counts without agreeing each distinct act occurred. State v. Gaddie, 2022 ND 44, 971 N.W.2d 811, 2022 N.D. LEXIS 49 (N.D. 2022).

Class B Misdemeanor.

The punishments set forth in N.D.C.C. § 39-08-01(4)(a) are mandatory minimum penalties and because a first-time offender is guilty of a class B misdemeanor under N.D.C.C. § 39-08-01(2), he may be punished in accordance with the punishments specified for a class B misdemeanor in subsection 6, — up to a $500 fine, 30 days’ imprisonment, or both; thus, the trial court was not limited to sentencing the defendant to pay a fine of $250 and to undergo an addiction evaluation. State v. Nelson, 417 N.W.2d 814, 1987 N.D. LEXIS 464 (N.D. 1987).

With respect to class B misdemeanor offenses under N.D.C.C. § 39-08-01, the enhanced sentencing language under N.D.C.C. § 39-08-01.2(2) (a conviction for driving under the influence of alcohol which results in serious bodily injury to another), requiring at least 90 days incarceration, conflicts with the maximum penalty of 30 days allowed under N.D.C.C. § 12.1-32-01(6) and is invalid and unenforceable. State v. Smith, 697 N.W.2d 368, 2005 ND App 5, 2005 N.D. App. LEXIS 2 (N.D. Ct. App. 2005).

Defendant’s sentence for DUI, a Class B misdemeanor, was overturned and, on remand, the trial court was to sentence defendant as a first-time DUI offender in accordance with N.D.C.C. § 39-08-01, within the parameters of N.D.C.C. § 12.1-32-01(6), where the record did not contain evidence of a prior counseled conviction within five years or of a waiver of counsel by defendant in a prior DUI proceeding. State v. Emery, 2008 ND 3, 743 N.W.2d 815, 2008 N.D. LEXIS 9 (N.D. 2008).

Class C Felony.

Court preliminarily enjoined enforcement of an abortion provision making it a Class C felony for a physician to knowingly violate the abortion law by performing an abortion when a heartbeat had been detected. MKB Mgmt. Corp. v. Burdick, 954 F. Supp. 2d 900, 2013 U.S. Dist. LEXIS 102620 (D.N.D. 2013), dismissed without prejudice in part, 2013 U.S. Dist. LEXIS 191752 (D.N.D. Sept. 9, 2013).

Collateral Sentences.

Appellate court rejected defendant’s argument that his state court conviction resulting in mandatory indefinite detention amounted to cruel and unusual punishment since that part of the sentence was derived from federal immigration law which was collateral to his sentencing for a Class A felony, gross sexual imposition. State v. Abdullahi, 2000 ND 39, 607 N.W.2d 561, 2000 N.D. LEXIS 56 (N.D. 2000).

Infraction.

Although the penalty for possession of less than one-half ounce, or 14.175 grams, of marijuana had been reduced to an infraction offense, because an infraction was a criminal offense, the officer detected an odor of raw marijuana emanating from the interior of the vehicle during the traffic stop, and the officer was trained in identifying the odor of marijuana in its raw and burnt form, there was probable cause to believe criminal activity was afoot, and to deny defendant’s motion to suppress. State v. Bolme, 2020 ND 255, 952 N.W.2d 75, 2020 N.D. LEXIS 258 (N.D. 2020).

Maximum Sentences.

Where there was no indication in the record that the trial court considered an impermissible factor in sentencing defendant accused of breaking into a vehicle, imposition of maximum penalty of five years’ imprisonment was not error. State v. Manhattan, 453 N.W.2d 758, 1990 N.D. LEXIS 62 (N.D. 1990).

Eighth Amendment was not violated because legislature authorized maximum penalty of life imprisonment without parole for class AA felonies. State v. Garcia, 1997 ND 60, 561 N.W.2d 599, 1997 N.D. LEXIS 45 (N.D.), cert. denied, 522 U.S. 874, 118 S. Ct. 193, 139 L. Ed. 2d 131, 1997 U.S. LEXIS 5532 (U.S. 1997).

Under N.D.C.C. § 12.1-32-01, the maximum penalty for a class B felony was ten years imprisonment, a fine of ten thousand dollars, or both, and on the count of driving under the influence, defendant was sentenced to five years, with eighteen months in prison and forty-two months suspended for five years starting after the ten year incarceration for manslaughter, and ordered to pay a fine of $1,000; under N.D.C.C. § 12.1-32-01, the maximum penalty for a class C felony was five years imprisonment, a fine of five thousand dollars, or both; defendant was sentenced within the statutory sentencing limits, and the court did not abuse its discretion in sentencing him. State v. Dailey, 2006 ND 184, 721 N.W.2d 29, 2006 N.D. LEXIS 188 (N.D. 2006).

Where defendant had violated the conditions of his probation for gross sexual imposition on two occasions and district court sentenced defendant to seven years’ imprisonment, the sentence that had been suspended while defendant was on probation, the court did not abuse its discretion as the sentence was within the statutory limit of 20 years and consistent with the written plea agreement, the district court sentenced defendant within the limits of N.D.C.C. § 12.1-32-01(2) and nothing in the record indicated the district court relied on an impermissible sentencing factor. State v. Wardner, 2006 ND 256, 725 N.W.2d 215, 2006 N.D. LEXIS 264 (N.D. 2006).

Parole Eligibility.

Failure of the sentencing judge to advise defendant of the parole eligibility provision of this section was not a violation of N.D.R.Crim.P. 11, nor did it affect the voluntariness of defendant’s guilty plea; however, judges were urged to inform defendants of parole ineligibility features of the North Dakota Century Code. Houle v. State, 482 N.W.2d 24, 1992 N.D. LEXIS 46 (N.D. 1992).

Defendant’s sentence of life imprisonment with the possibility of parole did not illegally postpone defendant’s parole eligibility beyond 85% of defendant’s life expectancy at the time of sentencing because N.D.C.C. §§ 12.1-32-09.1 and 12.1-32-01(1), which were not ambiguous, could be harmonized by applying a floor of 30 years to serve, less any sentence reduction for good conduct, before defendant could be considered for parole, as defendant’s life expectancy at sentencing was less than 30 years, and the floor created by N.D.C.C. § 12.1-32-01(1) insured an offender with a life expectancy less than 30 years was not eligible for parole until a minimum 30 year period had run. State v. Comes, 2019 ND 290, 936 N.W.2d 114, 2019 N.D. LEXIS 298 (N.D. 2019).

Parole Ineligibility.

There is no mandatory minimum punishment which must be imposed for a class AA felony. Rather, subdivision (1) of this section, merely establishes a period of parole ineligibility. Houle v. State, 482 N.W.2d 24, 1992 N.D. LEXIS 46 (N.D. 1992).

Sentence Proper.

In defendant’s failure to properly tag a big game animal case, where defendant claimed that his sentence was unfairly harsh, cruel, and unusual for that offense, the trial court did not abuse its discretion in sentencing since defendant’s sentence and probation were within the statutorily prescribed limits of N.D.C.C. §§ 12.1-32-01(5) and 12.1-32-06.1(1). State v. Loughead, 2007 ND 16, 726 N.W.2d 859, 2007 N.D. LEXIS 16 (N.D. 2007).

Defendant’s 20-year prison sentence, with credit for time served, for harboring a runaway minor and gross sexual imposition was within the limits of N.D.C.C. § 12.1-32-01(2) and was thus not invalid. State v. Eagleman, 2013 ND 101, 831 N.W.2d 759, 2013 N.D. LEXIS 110 (N.D. 2013).

Defendant’s sentence was not illegal because his sentence to life in prison without parole was within the limits prescribed by statute; defendant was was convicted of murder, a class AA felony. State v. Wilder, 2018 ND 93, 909 N.W.2d 684, 2018 N.D. LEXIS 102 (N.D. 2018).

Theft of Property.

In prosecution for theft of property, the trial court did not abuse its discretion when it sentenced the defendant to one year of confinement, where the sentence was within the statutory limit, and the defendant did not allege that the trial court relied on impermissible sentence factors. State v. Jacobson, 419 N.W.2d 899, 1988 N.D. LEXIS 48 (N.D. 1988).

DECISIONS UNDER PRIOR LAW

Assignation.

Assignation, as a first offense, was a misdemeanor punishable by imprisonment in the county jail. Davis v. Riedman, 114 N.W.2d 881, 1962 N.D. LEXIS 71 (N.D. 1962).

“Felony.”

Where a crime was by statute a felony, an imposition of a jail sentence or fine did not reduce the charge to a misdemeanor as of the time of presentation and trial, so as to give a county court jurisdiction. State ex rel. Stricker v. Andrews, 62 N.D. 215, 242 N.W. 912 (1932).

A felony, within the constitutional provision that no person convicted of a felony shall be qualified to vote at any election unless restored to civil rights, was a crime punishable with death or imprisonment in the penitentiary. State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, 1934 N.D. LEXIS 178 (N.D. 1934).

Presumption.

Generally where the statute did not state a crime was a felony or a misdemeanor, or classify it by fixing the place of imprisonment, and doubt existed as to whether it was to be punished by imprisonment in the state penitentiary or the county jail, the defendant would be given the benefit of the doubt and the offense would be deemed a misdemeanor, punishable by confinement in the county jail. Davis v. Riedman, 114 N.W.2d 881, 1962 N.D. LEXIS 71 (N.D. 1962).

Collateral References.

Validity, construction, and application of concurrent-sentence doctrine — state cases, 56 A.L.R.5th 385.

Law Reviews.

Female Offenders: A Challenge to Courts and the Legislature, 51 N.D. L. Rev. 771 (1975).

“A Comparison of Drinking and Driving Law in Norway and North Dakota: More Than a Difference in Penalties,” 76 N.D. L. Rev. 33 (2000).

North Dakota Supreme Court Review (State v. Vantreece, 2007 ND 126, 736 N.W.2d 428 (2007)), see 84 N.D. L. Rev. 567 (2008).

Article: Lawyering and Lobbying: The Discipline of Public Policy Advocacy, 87 N.D. L. Rev. 59 (2011).

Case Comment: Sentencing and Punishment - Sentencing Guidelines: The Sentencing Reform Act Precludes Courts from Lengthening a Prison Sentence Solely to Foster Offender Rehabilitation: Tapia v. United States, 131 S. Ct. 2382 (2011), see 87 N.D. L. Rev. 375 (2011).

12.1-32-01.1. Organizational fines.

Any organization, as defined in section 12.1-03-04, shall, upon conviction, be subject to a maximum fine in accordance with the following classification:

  1. For a class A felony, a maximum fine of one hundred thousand dollars.
  2. For a class B felony, a maximum fine of seventy thousand dollars.
  3. For a class C felony, a maximum fine of fifty thousand dollars.
  4. For a class A misdemeanor, a maximum fine of thirty thousand dollars.
  5. For a class B misdemeanor, a maximum fine of twenty thousand dollars.

Nothing in this section shall be construed as preventing the imposition of the sanction provided for in section 12.1-32-03, nor as preventing the prosecution of agents of the organization under section 12.1-03-03.

Source: S.L. 1975, ch. 116, § 24; 2013, ch. 104, § 12.

Cross-References.

Corporate criminal responsibility, see N.D.C.C. § 12.1-03-02.

Collateral References.

Dissolved corporation, maintainability of criminal proceedings against, 40 A.L.R.2d 1396.

Extortion, false pretenses, or similar offenses, criminal liability of corporation for, 49 A.L.R.3d 820.

Bribery or conspiracy to bribe public official, criminal liability of corporation for, 52 A.L.R.3d 1274.

Corporation’s liability to criminal prosecution as affected by punishment or penalty imposed, 80 A.L.R.3d 1220.

12.1-32-02. Sentencing alternatives — Credit for time in custody — Diagnostic testing.

  1. Every person convicted of an offense who is sentenced by the court must be sentenced to one or a combination of the following alternatives, unless the sentencing alternatives are otherwise specifically provided in the statute defining the offense or sentencing is deferred under subsection 4:
    1. Payment of the reasonable costs of the person’s prosecution.
    2. Probation.
    3. A term of imprisonment, including intermittent imprisonment:
      1. In a state correctional facility in accordance with section 29-27-07, in a regional corrections center, or in a county jail, if convicted of a felony or a class A misdemeanor.
      2. In a county jail or in a regional corrections center, if convicted of a class B misdemeanor.
      3. In a facility or program deemed appropriate for the treatment of the individual offender, including available community-based or faith-based programs.
      4. In the case of persons convicted of an offense who are under eighteen years of age at the time of sentencing, the court is limited to sentencing the minor defendant to a term of imprisonment in the custody of the department of corrections and rehabilitation.
    4. A fine.
    5. Restitution for damages resulting from the commission of the offense.
    6. Restoration of damaged property or other appropriate work detail.
    7. Commitment to an appropriate licensed public or private institution for treatment of alcoholism, drug addiction, or mental disease or defect.
    8. Commitment to a sexual offender treatment program.
    9. Drug court program. A drug court is a district court supervised treatment program approved by the supreme court which combines judicial supervision with alcohol and drug testing and substance use disorder treatment in a licensed treatment program. The supreme court may adopt rules, including rules of procedure, for drug court programs.
    10. Veterans treatment docket. A veterans treatment docket is a district court supervised docket approved by the supreme court which combines judicial supervision with licensed treatment programs to treat substance use disorders, mental health conditions, behavioral health conditions, traumatic brain injuries, military sexual trauma, and co-occurring disorders. The supreme court may adopt rules, including rules of procedure, for veterans treatment dockets.
    11. Completion of a restorative justice program. For purposes of this section, “restorative justice program” means a system of justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.
  2. Credit against any sentence to a term of imprisonment must be given by the court to a defendant for all time spent in custody as a result of the criminal charge for which the sentence was imposed or as a result of the conduct on which such charge was based. “Time spent in custody” includes time spent in custody in a jail or mental institution for the offense charged, whether that time is spent prior to trial, during trial, pending sentence, or pending appeal. The total amount of credit the defendant is entitled to for time spent in custody and any credit for sentence reduction under section 12-44.1-32 or 12-54.1-01 the defendant is entitled to must be stated in the criminal judgment.
  3. A court may suspend the execution of all or a part of the sentence imposed. The court shall place the defendant on probation during the term of suspension.
  4. A court, upon application or its own motion, may defer imposition of sentence. The court must place the defendant on probation during the period of deferment. An order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment. In any subsequent prosecution, for any other offense, the prior conviction for which imposition of sentence is deferred may be pleaded and proved, and has the same effect as if probation had not been granted or the information or indictment dismissed under section 12.1-32-07.1.
  5. A court may, prior to imposition of sentence, order the convicted offender committed to an appropriate licensed public or private institution for diagnostic testing for such period of time as may be necessary, but not to exceed thirty days. The court may, by subsequent order, extend the period of commitment for not to exceed thirty additional days. The court may also order such diagnostic testing without ordering commitment to an institution. Validity of a sentence must not be challenged on the ground that diagnostic testing was not performed pursuant to this subsection.
  6. All sentences imposed must be accompanied by a written statement by the court setting forth the reasons for imposing the particular sentence. The statement must become part of the record of the case.
  7. If an offender is sentenced to a term of imprisonment, that term of imprisonment commences at the time of sentencing, unless, upon motion of the defendant, the court orders the term to commence at some other time.
  8. Unless otherwise specifically authorized in the statute defining the offense, a court may not include a minimum term of imprisonment as part of its sentence.
  9. A person who is convicted of a felony and sentenced to imprisonment for not more than three hundred sixty days is deemed to have been convicted of a misdemeanor. However, if an order is entered revoking a term of probation that was imposed as part of a sentence, the person is deemed to have been convicted of a felony.
  10. A court shall order a defendant to pay fifty dollars to the department of corrections and rehabilitation at the time a presentence investigation is initiated to partially defray the costs incurred by the department for the preparation of the presentence report. The court may also order that any additional costs incurred by the department relating to the presentence investigation and report be paid by the defendant at a rate of payment up to the full costs of conducting the investigation and preparing the report as established by the department.
  11. Before sentencing a defendant on a felony charge under section 12.1-20-03, 12.1-20-03.1, 12.1-20-11, 12.1-27.2-02, 12.1-27.2-03, 12.1-27.2-04, or 12.1-27.2-05, a court shall order the department of corrections and rehabilitation to conduct a presentence investigation and to prepare a presentence report. A presentence investigation for a charge under section 12.1-20-03 must include a risk assessment. A court may order the inclusion of a risk assessment in any presentence investigation. In all felony or class A misdemeanor offenses, in which force, as defined in section 12.1-01-04, or threat of force is an element of the offense or in violation of section 12.1-22-02, or an attempt to commit the offenses, a court, unless a presentence investigation has been ordered, must receive a criminal record report before the sentencing of the defendant. Unless otherwise ordered by the court, the criminal record report must be conducted by the department of corrections and rehabilitation after consulting with the prosecuting attorney regarding the defendant’s criminal record. The criminal record report must be in writing, filed with the court before sentencing, and made a part of the court’s record of the sentencing proceeding.

Except as provided by section 12.1-32-06.1, sentences imposed under this subsection may not exceed in duration the maximum sentences of imprisonment provided by section 12.1-32-01, section 12.1-32-09, or as provided specifically in a statute defining an offense. This subsection does not permit the unconditional discharge of an offender following conviction. A sentence under subdivision e or f must be imposed in the manner provided in section 12.1-32-08. If the person is sentenced to a term of imprisonment, the court may prohibit the person from contacting the victim during the term of imprisonment. For purposes of this subsection, “victim” means victim as defined in section 12.1-34-01.

Source: S.L. 1973, ch. 116, § 31; 1975, ch. 116, §§ 25 to 27; 1975, ch. 120, § 1; 1981, ch. 152, § 2; 1989, ch. 158, § 2; 1989, ch. 172, § 1; 1991, ch. 116, §§ 17, 18; 1993, ch. 128, § 1; 1993, ch. 129, §§ 1, 2; 1995, ch. 120, § 17; 1995, ch. 124, § 5; 1995, ch. 135, § 1; 1995, ch. 136, § 3; 1997, ch. 118, § 2; 1997, ch. 124, § 3; 2001, ch. 138, § 1; 2005, ch. 598, § 1; 2007, ch. 134, § 1; 2009, ch. 135, § 1; 2017, ch. 108, § 7, effective April 21, 2017; 2017, ch. 108, § 6, effective July 1, 2017; 2019, ch. 188, § 1, effective August 1, 2019; 2019, ch. 118, § 1, effective August 1, 2019; 2019, ch. 117, § 1, effective April 9, 2019; 2021, ch. 109, § 1, effective August 1, 2021; 2021, ch. 110, § 1, effective August 1, 2021.

Note.

Section 12.1-32-02 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 1 of Chapter 110, Session Laws 2021, Senate Bill 2246; and Section 1 of Chapter 109, Session Laws 2021, House Bill 1393.

Notes to Decisions

Constitutionality.

Provision of this section permitting payment of reasonable costs of prosecution as a sentencing alternative is not patently or on its face unconstitutional and does not have an unconstitutionally chilling effect on defendant’s right to a trial. State v. Marinucci, 321 N.W.2d 462, 1982 N.D. LEXIS 300 (N.D. 1982).

Appellate Review.

Appellate review of a criminal sentence is confined to determining whether the judge acted within the limits prescribed by statute, or substantially relied on an impermissible factor. State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

In a case in which defendant filed a second motion for credit for time served under N.D.R.Crim.P. 35(b), defendant's counsel agreed the sentence was discretionary and not mandatory under N.D.C.C. § 12.1-32-02(2). Defendant's motion for reduction of sentence under rule 35(b) was discretionary and therefore not appealable. State v. Lowe, 2015 ND 126, 863 N.W.2d 525, 2015 N.D. LEXIS 128 (N.D. 2015).

Subsection (9) was ambiguous as applied to the facts of the case because the district court held that defendant was not entitled to the benefit of a misdemeanor sentence, but in its oral pronouncement stated defendant would keep his “misdemeanor disposition”; because no adequate alternative remedy existed, defendant's request on appeal was treated as seeking a writ of supervision based on the oral pronouncement, and the supreme court exercised its discretionary supervisory jurisdiction. State v. Rath, 2017 ND 213, 901 N.W.2d 51, 2017 N.D. LEXIS 215 (N.D. 2017).

Commencement of Imprisonment Term.

Subsection 6 (now subsection 7) does not prohibit a state court from imposing a sentence upon defendant to commence on date of his release from federal custody when at time of state sentencing defendant is awaiting sentencing by federal court. State v. Mees, 272 N.W.2d 61, 1978 N.D. LEXIS 190 (N.D. 1978).

Sentence was imposed, and absent a motion by defendant, imprisonment commenced when trial judge pronounced original sentence, even though trial judge did not prepare written criminal judgment until after he changed original sentence, where after original sentencing defendant was held in county jail awaiting transportation to penitentiary. State v. Bryan, 316 N.W.2d 335, 1982 N.D. LEXIS 217 (N.D. 1982).

Where state court sentenced defendant to imprisonment, and a federal court sentenced defendant on a federal charge and recommended that federal sentence be served at state penitentiary and that it run concurrently with state court sentence, state court did not have authority, after its original sentence had commenced, to amend its original sentence so as not to commence until after defendant was released by federal authorities. State v. Kunze, 350 N.W.2d 36, 1984 N.D. LEXIS 315 (N.D. 1984).

Concurrent or Consecutive Sentences.
—In General.

Subsection 7 does not prohibit a court from imposing a consecutive sentence. State v. Mees, 272 N.W.2d 61, 1978 N.D. LEXIS 190 (N.D. 1978).

A court cannot sentence someone to a term of confinement to be served concurrently or consecutive to a term which has already been completed. State v. Trudeau, 487 N.W.2d 11, 1992 N.D. LEXIS 113 (N.D. 1992).

—Jail Credit Applied Only to First Consecutive Sentence.

This section does not require credit for time spent in custody before sentencing to be applied against each of two consecutive sentences; jail credit shall be applied only to the first consecutive sentence, because to do otherwise would constitute double credit. State v. Arcand, 403 N.W.2d 23, 1987 N.D. LEXIS 287 (N.D. 1987).

Construction.
—Stylistic Change.

The 1989 amendment to subdivision (2) of this section which changed “shall” to “must” was stylistic, not substantive. State v. Sorensen, 482 N.W.2d 596, 1992 N.D. LEXIS 55 (N.D. 1992).

—With Other Statutes.

Since the definition of “victim” in N.D.C.C. § 12.1-34-01, which is concerned with fair treatment of victims and witnesses, does not apply to this section which puts no limitation on who can be a victim for purposes of restitution, an award of restitution to the drug task force was appropriate. State v. Velasquez, 1999 ND 217, 602 N.W.2d 693, 1999 N.D. LEXIS 229 (N.D. 1999).

Credit for Time in Custody.
—In General.

Defendant was not entitled to credit against burglary sentence for time served in connection with wholly unrelated charges based on conduct other than that for which defendant was sentenced on burglary conviction. State v. Eugene, 340 N.W.2d 18, 1983 N.D. LEXIS 396 (N.D. 1983).

Defendants could not receive credit to their sentences for their March trespass convictions for time spent in custody as a result of June trespass charges, even though the June trespass violation occurred at the same locations and as a result of the same type of conduct as the March trespass. State v. Sorensen, 482 N.W.2d 596, 1992 N.D. LEXIS 55 (N.D. 1992).

Credit was appropriate where a defendant’s presentence custody was the result of his or her inability to make bail, but was not appropriate for time served in connection with an unrelated charge. State v. Trudeau, 487 N.W.2d 11, 1992 N.D. LEXIS 113 (N.D. 1992).

Defendant’s two-day sentencing credit was inappropriate under N.D.C.C. § 12.1-32-02(2) because defendant was incarcerated for 13 days prior to the entry of his criminal judgment and should have received credit for the entire 13 days. State v. Schrum, 2006 ND 18, 709 N.W.2d 348, 2006 N.D. LEXIS 30 (N.D. 2006).

Appellate court affirmed the denial of sentencing credits as defendant was convicted before N.D.C.C. § 12.1-32-02(2), the statute under which defendant sought sentencing credits, was effective and retroactive application of N.D.C.C. § 12.1-32-02(2) would constitute an infringement on the executive pardoning power. State v. Iverson, 2006 ND 193, 721 N.W.2d 396, 2006 N.D. LEXIS 198 (N.D. 2006).

Where defendant committed the offense of fraudulent practices in urine testing in violation of the conditions of his probation, and he was sentenced to confinement for this offense and the probated offenses, defendant was not entitled to credit under N.D.C.C. § 12.1-32-02(2) for 108 days served in custody prior to sentencing; it was not clear from the record whether the time was spent in connection with the revocation charges, and defendant had already received the 108-day credit on a sentence imposed in another county. State v. Rodriquez, 2008 ND 157, 755 N.W.2d 102, 2008 N.D. LEXIS 154 (N.D. 2008).

—Degree of Causation.

Any resolution of the issue of whether or not the county court was required to give credit for days served on the second misdemeanor charge would turn on the degree of causation required between a certain charge and presentence custody. State v. Trudeau, 487 N.W.2d 11, 1992 N.D. LEXIS 113 (N.D. 1992).

—Mandatory Provisions.

Credit under subsection (2) of this section is mandatory. State v. Trudeau, 487 N.W.2d 11, 1992 N.D. LEXIS 113 (N.D. 1992).

—Unrelated Charge.

Where time spent in custody has been credited toward an unrelated charge, a defendant is not entitled to credit for that period of time on any other sentence. State v. Trudeau, 487 N.W.2d 11, 1992 N.D. LEXIS 113 (N.D. 1992).

Time credited toward an unrelated charge is the retroactive equivalent of time served pursuant to an order of commitment. Time spent in custody that has been credited toward a sentence is effectively the same thing as time served pursuant to a sentence. State v. Trudeau, 487 N.W.2d 11, 1992 N.D. LEXIS 113 (N.D. 1992).

Defendant was not entitled to credit on felony sentences for the time he served in connection with an unrelated sentence; defendant’s inability to make bail on felony delivery charges was not relevant to his custody during the days he served on a disorderly conduct charge. State v. Trudeau, 487 N.W.2d 11, 1992 N.D. LEXIS 113 (N.D. 1992).

Criminal Record Report.

Failure to require a written criminal record report, as required by statute, before sentencing a postconviction applicant was harmless. It was determined that resentencing for a piece of paper would have been an idle act. Rencountre v. State, 2015 ND 62, 860 N.W.2d 837, 2015 N.D. LEXIS 61 (N.D. 2015).

Criminal Rule Controlling.

Subsection 3 of this section does not limit operation or application of N.D.R.Crim.P. 35; since rule was adopted after enactment of statute, rule prevails either by superseding legislative enactment or by requiring statutory provisions to be construed in harmony with rule; it is time of enactment of statute and time of promulgation of rule which control, not effective date of either. State v. Rueb, 249 N.W.2d 506, 1976 N.D. LEXIS 182 (N.D. 1976).

Deferred Imposition.

In a case where defendant was convicted of violating a municipal ordinance, a district court erred in failing to enter an appropriate order deferring imposition of sentence; the district court entered a “criminal judgment” that also purported to defer imposition of defendant's sentence, but it is unclear what was being deferred since a sentence was actually imposed. City of Napoleon v. Kuhn, 2015 ND 75, 860 N.W.2d 460, 2015 N.D. LEXIS 54 (N.D. 2015).

It was error to impose a mandatory minimum sentence because defendant’s prior deferred imposition of sentence could not be used to trigger the sentence once defendant completed probation and the case was dismissed, as the phrase “the prior conviction for which imposition of sentence is deferred” in N.D.C.C. § 12.1-32-02(4) referred to a deferred sentence that had not been dismissed. State v. Nelson, 2019 ND 204, 932 N.W.2d 101, 2019 N.D. LEXIS 208 (N.D. 2019).

District court erred in denying defendant’s motion to dismiss a charge for unlawful possession of drug paraphernalia as a class C felony second offense as he did not have a prior conviction for enhancement purposes because a deferred imposition of sentence for a prior charge for unlawful possession of drug paraphernalia resulted in a dismissal of that charge; and the State could not use the prior dismissed deferred imposition of sentence to enhance the charge against defendant. State v. Johns, 2019 ND 227, 932 N.W.2d 893, 2019 N.D. LEXIS 230 (N.D. 2019).

Discretion of Trial Judge.

A trial judge is ordinarily allowed the widest range of discretion in fixing a criminal sentence. On appeal of a claim that a sentence is excessive or incorrect, this court has no power to review the discretion of a sentencing court in fixing a term of imprisonment within the range authorized by statute. State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

Felony or Misdemeanor.

Length of sentence, not time actually served, determines whether felony conviction is reduced to misdemeanor. State v. Patten, 380 N.W.2d 346, 1986 N.D. LEXIS 249 (N.D. 1986).

Where defendant was sentenced to 60 days, his felony conviction for issuing a check without sufficient funds was reduced to a misdemeanor conviction under N.D.C.C. § 12.1-32-02(9); accordingly, defendant was convicted of a felony and probable cause to believe defendant was a felon in possession of a firearm existed under N.D.C.C. § 62.1-02-01(2), and the district court’s order discharging defendant from the charge of felon in possession of a firearm was reversed. State v. Buchholz, 2005 ND 30, 692 N.W.2d 105, 2005 N.D. LEXIS 31 (N.D. 2005).

Defendant was properly prohibited from arguing a mistake of law defense under N.D.C.C. § 12.1-05-09 because his offense of possession of a firearm by a felon under N.D.C.C. § 62.1-02-01(2) was a strict liability offense. Defendant’s prior sentence for issuing a check without sufficient funds was not illegal because the district court only addressed the conditions of probation under N.D.C.C. § 12.1-32-07 and did not address whether defendant could possess or own a firearm after probation. N.D.C.C. § 62.1-02-01 explicitly prohibited defendant from possessing firearms after he had been convicted of a felony reduced to a misdemeanor under N.D.C.C.§ 12.1-32-02(9) and defendant was presumed to know the law and could not claim that the prohibition did not apply to him. State v. Buchholz, 2006 ND 227, 723 N.W.2d 534, 2006 N.D. LEXIS 232 (N.D. 2006).

District court did not abuse its discretion by sentencing defendant as an habitual offender because, although defendant argued that his prior out-of-state convictions were misdemeanors for the purpose of determining whether he was an habitual offender, defendant’s prior convictions had potential punishable sentences of at least five years, and were considered felonies under the habitual offender statute. State v. Maines, 2019 ND 274, 935 N.W.2d 665, 2019 N.D. LEXIS 274 (N.D. 2019).

Juvenile Offender's Credit for Time Served.

Juvenile Court Act does not provide for credit for time spent in custody prior to disposition of matter; failure to provide such credit for a juvenile does not deny him equal protection of law, since his maximum custody under juvenile law is substantially less than he could receive under criminal law. In Interest of J., 285 N.W.2d 558, 1979 N.D. LEXIS 310 (N.D. 1979).

Legislative Intent.

To impose the felony/misdemeanor distinction in former N.D.C.C. § 12.1-32-06(1) upon former N.D.C.C. § 12-53-13 would be contrary to the legislative directive in subsection (1). State v. Siegel, 404 N.W.2d 469, 1987 N.D. LEXIS 305 (N.D. 1987).

Maximum Probation Term.

Under the law in effect prior to the 1989 repeal of Chapter 12-52, amendment of Chapter 12.1-32, and enactment of section 12.1-32-06.1, a person could not be placed on probation for a period of time in excess of one year, the maximum term for which the person could have been imprisoned. State v. Rohrich, 450 N.W.2d 774, 1990 N.D. LEXIS 23 (N.D. 1990).

Maximum Sentences of Imprisonment.

Where defendant was sentenced to five years imprisonment for negligent homicide with three years suspended for a period of five years “of this date” on the day of sentencing, his combination sentence of imprisonment and probation did not exceed in duration the maximum sentences of imprisonment as limited by subsection 1 of this section and former N.D.C.C. § 12-53-12. State v. Olson, 379 N.W.2d 801, 1986 N.D. LEXIS 237 (N.D. 1986).

No Contract as Part of Prison Sentence.

Statute authorizes the court to sentence a defendant to one or more of a number of alternatives, including a term of imprisonment, probation, fines, restitution, and sex offender treatment, but it does not authorize a court to order no contact as part of a prison sentence; in the absence of statutory language authorizing a court to order no contact as part of a prison sentence, the legislature did not intend to give the court that authority. State v. Wilder, 2018 ND 93, 909 N.W.2d 684, 2018 N.D. LEXIS 102 (N.D. 2018).

District court did not have authority to order that defendant have no contact with two of his children until the children turned 18 years old because the sentencing statutes did not authorize the district court to order no contact as part of defendant’s prison sentence. State v. Wilder, 2018 ND 93, 909 N.W.2d 684, 2018 N.D. LEXIS 102 (N.D. 2018).

Payment of Prosecution Costs.

Court, as a sentencing alternative, may assess payment of reasonable costs of a defendant’s prosecution; based on amounts of compensation set forth in N.D.C.C. §§ 31-01-16, 44-08-04 and 54-06-09; assessment of $600 against defendant for travel expenses of state’s two witnesses was not unreasonable where witnesses traveled 1,200 miles round trip for a one-day trial. State v. Marinucci, 321 N.W.2d 462, 1982 N.D. LEXIS 300 (N.D. 1982).

Place of Imprisonment.

It is trial court, and not director of institutions, that has discretion to determine initial place of imprisonment. State ex rel. Olson v. Maxwell, 259 N.W.2d 621, 1977 N.D. LEXIS 192 (N.D. 1977).

Presentence Investigation.

Where defendant received a 7-year suspended sentence for gross sexual imposition and a presentence investigation was performed both before the initial sentencing and prior to re-sentencing following an initial parole violation and parole revocation hearing, the State was not required to conduct a third presentence investigation prior to revoking defendant’s probation and requiring defendant to serve the suspended sentence following a second parole violation. The State complied with the plain language of N.D.C.C. § 12.1-32-02(11) by conducting a presentence investigation prior to sentencing; the North Dakota legislature has not chosen to require new or updated presentence investigations before resentencing. State v. Wardner, 2006 ND 256, 725 N.W.2d 215, 2006 N.D. LEXIS 264 (N.D. 2006).

Requirement to Undergo Medical Treatment.

A defendant who is convicted of driving while under the influence of alcohol may be required to undergo medical treatment, but the defendant must be ordered by the trial court directly, and not indirectly, to undergo treatment. State v. Nelson, 417 N.W.2d 814, 1987 N.D. LEXIS 464 (N.D. 1987).

Restitution.

Trial court did not err by imposing restitution for extradition costs in defendant’s gross sexual imposition case (GSI) because defendant pleaded guilty to both the GSI and the bail-jumping charges, he fled the country during and from the GSI prosecution, it was his act of fleeing that directly resulted in the bail-jumping charges and the cost to return him for trial, and the trial court’s jurisdiction over restitution in the bail-jumping case was continually held open. State v. Rogers, 2018 ND 244, 919 N.W.2d 193, 2018 N.D. LEXIS 252 (N.D. 2018).

—Amount.

District court, which found defendant guilty of improper disposal of refuse, did not abuse its discretion in awarding restitution to a city in the amount of $10,696.98. The city offered testimony and exhibits showing the city's efforts and expenses in removing and transporting the materials defendant had illegally dumped. City of Napoleon v. Kuhn, 2016 ND 150, 882 N.W.2d 301, 2016 N.D. LEXIS 143 (N.D. 2016).

—Causal Connection.

There must exist an immediate and intimate causal connection between the criminal conduct and the damages or expenses for which restitution is ordered. State v. Pippin, 496 N.W.2d 50, 1993 N.D. LEXIS 22 (N.D. 1993).

—Damages Not Recoverable.

Where defendant was convicted of possession of stolen property, she could not be held liable to make restitution for the expenses incurred by the victims in repairing and cleaning their homes, or for damages attributable to unrecovered personal property or cash. State v. Pippin, 496 N.W.2d 50, 1993 N.D. LEXIS 22 (N.D. 1993).

—Increase in Amount.

Amended judgment ordering defendant to pay over $10,000 in restitution was improper because district courts were not permitted to order a sentence, then later increase the sentence and restitution was a type of sentence, N.D.C.C. § 12.1-32-02(1)(e)-(f). Therefore, the district court abused its discretion in ordering restitution and later increasing it, without previously reserving the issue. State v. Kaseman, 2008 ND 196, 756 N.W.2d 923, 2008 N.D. LEXIS 196 (N.D. 2008).

Restoration.

In a case where defendant was convicted of violating a municipal ordinance, while the court could have properly imposed a sentence to include “restoration of damaged property,” the court's sentence that ordered defendant to remove from the dump or relocate within the dump unspecified rubbish to a city's satisfaction was vague and ambiguous and could have represented an improper delegation of its sentencing authority. City of Napoleon v. Kuhn, 2015 ND 75, 860 N.W.2d 460, 2015 N.D. LEXIS 54 (N.D. 2015).

Revocation of Probation.

Revocation of probation does not have the effect of increasing the term of imprisonment beyond the maximum sentence of imprisonment authorized by law. State v. Olson, 379 N.W.2d 801, 1986 N.D. LEXIS 237 (N.D. 1986).

Where the trial court revoked the defendant’s probation and resentenced him, but delayed the execution of the sentence on the condition that the defendant complete drug and alcohol treatment, the defendant was not entitled to credit toward his prison sentence for the time between the date of the order and his return to prison. State v. Miller, 418 N.W.2d 614, 1988 N.D. LEXIS 17 (N.D. 1988).

District court properly revoked defendant’s probation under N.D.C.C. § 12.1-32-02(3), because his probation period started on his original charges at the conclusion of his incarceration thereon despite his remaining incarcerated on other unrelated charges, the district court provided him with notice of the conditions he would be required to follow at the end of his incarceration, and he was not required to sign an acknowledgment of his probation conditions. State v. Roth, 2008 ND 227, 758 N.W.2d 686, 2008 N.D. LEXIS 209 (N.D. 2008).

It was no error to sentence defendant as an habitual offender because a prior felony, deemed a misdemeanor under former N.D.C.C. § 12.1-32-02(9) when defendant was sentenced to less than one year in prison and probation, was deemed a felony when probation was revoked, which the court properly judicially noticed. Ratliff v. State, 2016 ND 129, 881 N.W.2d 233, 2016 N.D. LEXIS 133 (N.D. 2016).

It was not obvious error to revoke defendant’s probation when a prior order did not specifically resentence defendant to probation because, (1) at most, the order was unclear, and (2) the court’s clearly expressed intent to place defendant on probation statutorily controlled. State v. Alberts, 2019 ND 66, 924 N.W.2d 96, 2019 N.D. LEXIS 67 (N.D. 2019).

Revocation of Suspended Sentence.

Proceedings to revoke suspension of a sentence are governed by N.D.R.Crim.P. 32. State v. Lesmeister, 293 N.W.2d 875, 1980 N.D. LEXIS 246 (N.D. 1980).

Sentence Defined.

The term “sentence” refers to the judgment of the court formally pronounced awarding punishment to be inflicted. State v. Patten, 380 N.W.2d 346, 1986 N.D. LEXIS 249 (N.D. 1986).

“Time Spent in Custody.”

“Probation” is not included in the definition of “time spent in custody.” State v. Vavrosky, 442 N.W.2d 433, 1989 N.D. LEXIS 133 (N.D. 1989).

The 1975 amendment to former section 12-53-11 (repealed) was to permit credit to be given for any time spent in custody, not only time spent in the penitentiary after probation was terminated. The amendment also removed any conflict between former N.D.C.C. § 12-53-11 and subsection 2 of this section. State v. Vavrosky, 442 N.W.2d 433, 1989 N.D. LEXIS 133 (N.D. 1989).

By its terms, subdivision 2 of this section requires credit only for time spent in custody. Hughes v. Powers, 453 N.W.2d 608, 1990 N.D. LEXIS 64 (N.D. 1990).

Time on probation is not “time spent in custody” within the meaning of this section. A defendant whose probation is revoked is not entitled to credit for the time that he has already spent on probation. Time on parole, too, is not “time spent in custody” within the meaning of this section, because time on parole is no different in kind than time on probation. Both are conditional releases, not custodial. State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

Transfer to Correctional Center.

There was no error of law by the trial court, authorized to designate the initial place of a convict’s confinement, in issuing a writ of habeas corpus to order the transfer of a female prisoner from the prison to the Missouri River correctional center, where the prisoner was sentenced to the center and the warden was holding her at the prison. Little v. Graff, 507 N.W.2d 55, 1993 N.D. LEXIS 178 (N.D. 1993).

Written Statement.

Written statement executed upon sentencing complied with subsection 5 of this section. State v. Berger, 285 N.W.2d 533, 1979 N.D. LEXIS 308 (N.D. 1979).

Statutory direction for written reasons by a sentencing judge does not authorize general appellate review of a sentencing judge’s discretion. State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

DECISIONS UNDER PRIOR LAW

“After a Judgment.”

Where the court made several orders immediately after the entry of final judgment purporting to postpone the operation of the judgment to dates in the future, and the orders were without authority of law, they were null and void from the beginning and did not operate as a stay or supersedeas. In re Markuson, 5 N.D. 180, 64 N.W. 939, 1895 N.D. LEXIS 23 (N.D. 1895).

In a case where a jury was impaneled to determine the punishment upon a plea of guilty in a murder case, it was improper to charge the jury that the court had the power to reduce the penalty if they imposed the death penalty, as it tended to give the jury to understand that the whole responsibility was not on them. State v. Noah, 20 N.D. 281, 124 N.W. 1121, 1910 N.D. LEXIS 55 (N.D. 1910).

When the statute spoke of “after a judgment”, it meant a valid judgment, and where a court pronounced an invalid judgment, it had authority to amend it to provide imprisonment in a place prescribed by law. Ex parte Moore, 71 N.D. 274, 300 N.W. 37, 1941 N.D. LEXIS 167 (N.D. 1941).

Delayed by Defendant.

When a defendant by his own act postponed the putting in effect of a sentence, he could not take advantage thereof. Ex parte Schantz, 26 N.D. 380, 144 N.W. 445, 1913 N.D. LEXIS 68 (N.D. 1913).

Discretion of Trial Judge.

Trial judges had wide discretion in determining the length of sentences imposed, especially where sentence was well within statutory limits; supreme court refused to reduce sentence or remand case because of undue influence exerted by television publicity upon a trial judge between time of conviction and sentencing. State v. Ankney, 195 N.W.2d 547, 1972 N.D. LEXIS 118 (N.D. 1972).

Improper Bail.

The acceptance of an improper bail bond by the trial court did not entitle one at liberty pending an appeal to a discharge on habeas corpus. Cook v. State, 54 N.D. 178, 208 N.W. 977, 1926 N.D. LEXIS 131 (N.D. 1926).

Penalty Set by Statute.

In a sentence for grand larceny, the punishment would be determined within the limitations of the statute. State v. Jochim, 55 N.D. 313, 213 N.W. 484, 1927 N.D. LEXIS 39 (N.D. 1927).

Place of Incarceration.

Attempt to commit defendant to another penal institution, which differed in some degree from both the county jail and the penitentiary, was erroneous. Ex parte Moore, 71 N.D. 274, 300 N.W. 37, 1941 N.D. LEXIS 167 (N.D. 1941).

“Sentence.”

The time fixed for executing a sentence, or for the commencement of its execution, was not one of its essential elements, and, strictly speaking, was not a part of the sentence at all. Ex parte Schantz, 26 N.D. 380, 144 N.W. 445, 1913 N.D. LEXIS 68 (N.D. 1913).

The term “sentence” as used in the criminal law of this state referred to the judgment of the court formally pronounced, awarding punishment to be inflicted. Waltman v. Austin, 142 N.W.2d 517, 1966 N.D. LEXIS 172 (N.D. 1966).

Sentence Upheld.

A sentence of three years to the penitentiary was not cruel and unusual punishment. State v. Jochim, 55 N.D. 313, 213 N.W. 484, 1927 N.D. LEXIS 39 (N.D. 1927).

Where defendant had pleaded guilty to rape in the first degree, and, in habeas corpus proceeding, claimed that he was unaware of maximum sentence of life imprisonment at the time of pleading and that he was misled and unable to understand statement of trial court that the offense was “punishable by imprisonment in the state penitentiary for not less than one year”, his contention was without merit. In re Stone, 171 N.W.2d 119, 1969 N.D. LEXIS 88 (N.D. 1969), cert. denied, 397 U.S. 912, 90 S. Ct. 912, 25 L. Ed. 2d 93, 1970 U.S. LEXIS 3002 (U.S. 1970).

State Training School.

A person eighteen years of age charged with grand larceny could be committed to state training school. State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 1947 N.D. LEXIS 72 (N.D. 1947).

Collateral References.

Voluntary absence of accused when sentence is pronounced, 6 A.L.R.2d 997.

Reducing punishment because of voluntary statements damaging to accused not proper subject of testimony, uttered by testifying police or peace officer, 8 A.L.R.2d 1085.

Indeterminate sentence: validity of sentence fixing identical minimum and maximum terms of imprisonment, 29 A.L.R.2d 1344.

Intermittent incarceration, power of court to impose sentence providing for, 39 A.L.R.2d 985.

Propriety of general sentence covering several counts in information or indictment not exceeding in aggregate the sentences which might have been imposed cumulatively under the several counts, 91 A.L.R.2d 511.

Gambling, sentence and punishment for criminal conspiracy as to, 91 A.L.R.2d 1205.

Other offenses committed by defendant, court’s right, in imposing sentence, to hear evidence of or to consider, 96 A.L.R.2d 768.

Allocution: necessity and sufficiency of question to defendant as to why sentence should not be pronounced against him, 96 A.L.R.2d 1292.

New trial: propriety of increased punishment on new trial for same offense, 12 A.L.R.3d 978.

Racial discrimination in punishment for crime, 40 A.L.R.3d 227.

Presentence reports: defendant’s rights to disclosure of presentence reports, 40 A.L.R.3d 681.

Juvenile record: consideration of accused’s juvenile court record in sentencing for offense committed as adult, 64 A.L.R.3d 1291.

Probation: propriety, in imposing sentence for original offense after revocation of probation, of considering acts because of which probation was revoked, 65 A.L.R.3d 1100.

Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim, 79 A.L.R.3d 976.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 79 A.L.R.3d 1083.

Statute or court rule authorizing suspension or dismissal of criminal prosecution on defendant’s consent to noncriminal alternative, 4 A.L.R.4th 147.

Application of death penalty to nonhomicide cases, 62 A.L.R.5th 121.

Propriety of probation condition exposing defendant to public shame or ridicule, 65 A.L.R.5th 187.

Persons or entities entitled to restitution as “victim” under state criminal restitution statute, 92 A.L.R.5th 35.

12.1-32-02.1. Mandatory prison terms for armed offenders.

  1. Notwithstanding any other provision of this title, a term of imprisonment must be imposed upon an offender and served without benefit of parole when:
    1. In the course of committing an offense, the offender inflicts or attempts to inflict bodily injury upon another, threatens or menaces another with imminent bodily injury with a dangerous weapon, explosive, destructive device, or firearm; or
    2. The offender possesses or has within immediate reach and control a dangerous weapon, explosive, destructive device, or firearm while in the course of committing any felony offense under subsection 1, 3, or 7 of section 19-03.1-23.
  2. This requirement applies only when possession of a dangerous weapon, explosive, destructive device, or firearm has been charged and admitted or found to be true in the manner provided by law, and must be imposed as follows:
    1. If the offense for which the offender is convicted is a class AA, class A, or class B felony, the court shall impose a minimum sentence of four years’ imprisonment.
    2. If the offense for which the offender is convicted is a class C felony, the court shall impose a minimum sentence of two years’ imprisonment.
  3. This section applies even when being armed is an element of the offense for which the offender is convicted.
  4. An offender serving a sentence subject to this section may be eligible to participate in a release program under section 12-48.1-02 during the last six months of the offender’s sentence.

Source: S.L. 1977, ch. 127, § 1; 1983, ch. 170, § 1; 1993, ch. 128, § 2; 2003, ch. 111, § 1; 2011, ch. 101, § 2; 2015, ch. 113, § 1, effective August 1, 2015; 2017, ch. 164, § 3, effective August 1, 2017; 2019, ch. 187, § 1, effective August 1, 2019.

Notes to Decisions

Discretion of Trial Court.

This section applies only if the possession of a dangerous weapon, an explosive, or a firearm is an essential element of the crime committed or if the trier of fact makes a special finding that in the course of committing the offense the accused was in possession of a dangerous weapon, an explosive, or a firearm. State v. Sheldon, 312 N.W.2d 367, 1981 N.D. LEXIS 415 (N.D. 1981).

This section, when viewed as a whole, indicates that a court may not suspend a sentence imposed pursuant to its provisions; and this section would prevail over the more general provisions contained in former N.D.C.C. ch. 12-53, which set forth the power of the court to suspend the execution of a sentence. State v. Brandon, 413 N.W.2d 340, 1987 N.D. LEXIS 405 (N.D. 1987).

By enacting this section, the legislature removed all discretionary power from the trial court as to the minimum sentence to be imposed upon an individual whose crime falls within the purview of the statute; it did not, however, place that discretion into the hands of the jury to decide whether the sentence should be imposed. State v. Clinkscales, 536 N.W.2d 661, 1995 N.D. LEXIS 152 (N.D. 1995).

Impermissible Sentencing Factor.

In a case in which defendant pled guilty to leaving the scene of an accident involving injury and aggravated reckless driving, defendant’s sentence was vacated and the case was remanded for resentencing as the district court substantially relied upon an impermissible factor in sentencing defendant to jail because the case did not implicate an offense involving domestic violence, sexual offender registration, or mandatory terms of incarceration; defendant was not charged with, nor did he plead guilty to, any offense involving a dangerous weapon; and the dangerous weapon exception to the presumptive probation statute did not apply in defendant’s case. State v. Christensen, 2019 ND 11, 921 N.W.2d 436, 2019 N.D. LEXIS 18 (N.D. 2019).

Possession of a Firearm.

Jury’s verdict finding defendant guilty of the offense of reckless endangerment was a special finding that, in the course of committing the offense, the accused was in possession of a firearm; the trial court did not err in applying this section in sentencing defendant for reckless endangerment. State v. Whalen, 520 N.W.2d 830, 1994 N.D. LEXIS 178 (N.D. 1994).

Sentence Less Than Minimum.

If the trial court has erred by imposing a sentence less than the statutory minimum, it is not only lawful to revoke an initial sentence and substitute a greater sentence that should have been imposed, it is the court’s obligation to do so. State v. Wika, 1998 ND 33, 574 N.W.2d 831, 1998 N.D. LEXIS 35 (N.D. 1998).

Sufficient Notice of Application of Section.

Information which alleged the essential elements of both the reckless endangerment statute, N.D.C.C. § 12.1-17-03, and the armed offender statute, gave defendant sufficient notice of the possible application of this section to his reckless endangerment charge, even though the information did not contain the specific language “threatens or menaces another with imminent bodily injury with a dangerous weapon” used in this section. State v. Meier, 447 N.W.2d 506, 1989 N.D. LEXIS 196 (N.D. 1989).

Although defendant argued that informations lacked proper allegations of firearm use, making a minimum mandatory sentence for armed offenders inapplicable to his case, the informations contained proper firearm allegations and the minimum mandatory sentence for armed offenders was correctly applied where it was stated in the informations that defendant placed the victims in fear of their safety by “discharging a firearm in the immediate area of the victim in the City of Sheldon causing the victim to flee in fear of his life.” State v. Loomer, 2008 ND 69, 747 N.W.2d 113, 2008 N.D. LEXIS 65 (N.D. 2008).

Tear Gas Gun.

The trial court correctly concluded that the mandatory minimum sentencing provisions were applicable where a tear gas gun was used in a robbery. State v. Schweitzer, 510 N.W.2d 612, 1994 N.D. LEXIS 17 (N.D. 1994).

Toy Weapon.

A person who uses an unloaded or toy weapon during a robbery is subject to an aggravated penalty because of the “heightened fear” the presence of a weapon creates in the victim. State v. Clinkscales, 536 N.W.2d 661, 1995 N.D. LEXIS 152 (N.D. 1995).

Unloaded Rifle.

Defendant who was convicted of reckless endangerment as a result of pointing a rifle, later determined to have been unloaded, at two police officers, was properly sentenced under this section. State v. Meier, 447 N.W.2d 506, 1989 N.D. LEXIS 196 (N.D. 1989).

12.1-32-02.2. Repayment of rewards paid by crimestoppers programs — Duties of attorney general — Qualified local programs — Disbursement of moneys collected.

  1. After a defendant has been convicted of a felony, the court may order the defendant to repay all or part of any reward paid by a qualified local program. In determining whether the defendant must repay the reward or part of the reward, the court shall consider:
    1. The ability of the defendant to make the payments, including any financial hardship that payment may cause to the defendant’s dependents.
    2. Whether the information that was reported to the qualified local program substantially contributed to the defendant being charged with the offense. To the extent allowed by law, the court shall respect the confidentiality of the records of the qualified local program.
  2. “A qualified local program” means a program approved by the attorney general to receive repayment of rewards. The attorney general shall consider the organization, continuity, leadership, community support, and general conduct of the program to determine whether the repayments will be spent to further crime prevention purposes of the program. The attorney general also shall determine that the qualified local program provides rewards to persons who report information concerning criminal activity and whether that information substantially leads to defendants being charged with felonies.
  3. If the court determines that a defendant is capable of repaying all or any part of a reward paid by a qualified local program, the judgment must include a statement of the amount owed, the identity of the qualified local program, and a schedule, if any, of payments to be made by the defendant. The clerk of court may establish an account within which to deposit repayments of rewards and at least quarterly shall pay over to each qualified local program the sums that have been collected for the benefit of that program.
  4. A judgment that includes a repayment of reward, either alone or in conjunction with section 29-26-22, may be docketed and thereafter constitutes a lien upon the real estate of the defendant in the same manner as a judgment for money rendered in a civil action.

Source: S.L. 1991, ch. 133, § 1.

12.1-32-02.3. Mandatory sentences — Exceptions.

  1. In addition to any other provision of law, when sentencing an individual convicted of a violation in chapter 19-03.1 for which there is a mandatory minimum sentence, the court may depart from the applicable mandatory minimum sentence if the court, in giving due regard to the nature of the crime, history and character of the defendant, and the defendant’s chances of successful rehabilitation, finds a compelling reason on the record that imposition of the mandatory minimum sentence would result in manifest injustice to the defendant and that the mandatory minimum sentence is not necessary for the protection of the public.
  2. Subsection 1 does not apply if the individual is sentenced under section 12.1-32-02.1.
  3. Upon departing from a mandatory minimum sentence, a judge shall report to the state court administrator who shall make available in electronic form and on the world wide web an annual report by July 1 of each year on the total number of departures from mandatory minimum sentences.

History. S.L. 2015, ch. 116, § 4, effective August 1, 2015.

12.1-32-03. Special sanction for organizations.

When an organization is convicted of an offense, the court may, in addition to any other sentence which may be imposed, require the organization to give notice of its conviction to the persons or class of persons ostensibly harmed by the offense, by mail or by advertising in designated areas or by designated media or otherwise.

Source: S.L. 1973, ch. 116, § 31.

Cross-References.

Corporate criminal responsibility, see N.D.C.C. § 12.1-03-02.

Collateral References.

Dissolved corporation, maintainability of criminal proceedings against, 40 A.L.R.2d 1396.

Extortion, false pretenses, or similar offenses, criminal liability of corporation for, 49 A.L.R.3d 820.

Bribery or conspiracy to bribe public official, criminal liability of corporation for, 52 A.L.R.3d 1274.

12.1-32-03.1. Procedure for trial of infraction — Incidents.

  1. Except as provided in this subsection, all procedural provisions relating to the trial of criminal cases as provided in the statutes or rules relating to criminal procedure shall apply to the trial of a person charged with an infraction. A person charged with an infraction is not entitled to be furnished counsel at public expense nor to have a trial by jury unless the person may be subject to a sentence of imprisonment under subsection 7 of section 12.1-32-01.
  2. Except as provided in this title, all provisions of law and rules of criminal procedure relating to misdemeanors shall apply to infractions, including, but not limited to, the powers of law enforcement officers, the jurisdiction of courts, the periods for commencing action and bringing a case to trial, and the burden of proof.
  3. Following conviction of an infraction, the offender may be sentenced in accordance with subsection 1 of section 12.1-32-02, except that a term of imprisonment may not be imposed except in accordance with subsection 3 of section 12.1-32-05, or subsection 7 of section 12.1-32-01.
  4. If a statute provides that conduct is an infraction without specifically including a requirement of culpability, no culpability is required.

Source: S.L. 1975, ch. 116, § 28.

12.1-32-04. Factors to be considered in sentencing decision.

The following factors, or the converse thereof where appropriate, while not controlling the discretion of the court, shall be accorded weight in making determinations regarding the desirability of sentencing an offender to imprisonment:

  1. The defendant’s criminal conduct neither caused nor threatened serious harm to another person or his property.
  2. The defendant did not plan or expect that his criminal conduct would cause or threaten serious harm to another person or his property.
  3. The defendant acted under strong provocation.
  4. There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant’s conduct.
  5. The victim of the defendant’s conduct induced or facilitated its commission.
  6. The defendant has made or will make restitution or reparation to the victim of his conduct for the damage or injury which was sustained.
  7. The defendant has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial period of time before the commission of the present offense.
  8. The defendant’s conduct was the result of circumstances unlikely to recur.
  9. The character, history, and attitudes of the defendant indicate that he is unlikely to commit another crime.
  10. The defendant is particularly likely to respond affirmatively to probationary treatment.
  11. The imprisonment of the defendant would entail undue hardship to himself or his dependents.
  12. The defendant is elderly or in poor health.
  13. The defendant did not abuse a public position of responsibility or trust.
  14. The defendant cooperated with law enforcement authorities by bringing other offenders to justice, or otherwise cooperated.

Nothing herein shall be deemed to require explicit reference to these factors in a presentence report or by the court at sentencing.

Source: S.L. 1973, ch. 116, § 31.

Notes to Decisions

Age of Victim.

The trial court did not abuse its discretion by not considering the victim’s age when sentencing defendant on the theory that the seriousness of gross sexual imposition diminishes as the victim’s age approaches 15; the gross sexual imposition statute, N.D.C.C. § 12.1-20-03, makes no distinction in punishment when the victim is less than 15 years old and the list of factors a court shall consider in sentencing in this section does not mention the age of the victim. State v. Halton, 535 N.W.2d 734, 1995 N.D. LEXIS 134 (N.D. 1995).

Discretion of Trial Court.

Sentence within the minimum and maximum statutory limits is within the discretion of the trial court, and will not be set aside unless it exceeds the statutory limit or unless the trial court substantially relied on an impermissible sentencing factor. State v. Garcia, 1997 ND 60, 561 N.W.2d 599, 1997 N.D. LEXIS 45 (N.D.), cert. denied, 522 U.S. 874, 118 S. Ct. 193, 139 L. Ed. 2d 131, 1997 U.S. LEXIS 5532 (U.S. 1997).

Although trial courts should articulate reasons for imposing a specific sentence, a 50-year sentence is within the range of permissible sentences for a class AA felony, and where the court’s decision does not reflect that the court relied on any impermissible factors in imposing the sentence, the court did not abuse its discretion. State v. Magnuson, 1997 ND 228, 571 N.W.2d 642, 1997 N.D. LEXIS 277 (N.D. 1997).

District court did not err by imposing the mandatory minimum one-year prison sentence because there was sufficient evidence to support the verdict; the district court indicated it had considered the discretionary sentencing factors, and defendant received the mandatory minimum sentence required by the criminal vehicular injury statute. State v. Montplaisir, 2015 ND 237, 869 N.W.2d 435, 2015 N.D. LEXIS 242 (N.D. 2015).

District court properly sentenced defendant to life imprisonment with the possibility of parole because the law of the case doctrine barred his argument that there was insufficient evidence to sustain his convictions since it was beyond the scope of the remand ordered in his first appeal, the court’s statements at the second sentencing were to inform defendant that it was not going to retry the case based on evidence not presented at trial and could not be construed to mean the court was reimposing the same sentence as the previous judge without evaluating the evidence, and, based on its familiarity with the record and underlying circumstances, the court adequately considered the facts of the case and the statutory factors. State v. Lyon, 2020 ND 34, 938 N.W.2d 908, 2020 N.D. LEXIS 33 (N.D. 2020).

Domestic Abuse.

Acts of domestic abuse by the defendant against the victim were not impermissibly considered in sentencing the defendant. State v. Steinbach, 1998 ND 18, 575 N.W.2d 193, 1998 N.D. LEXIS 7 (N.D. 1998).

Guilty Plea.

At sentencing, a defendant who has pleaded guilty is not entitled to assert he actually committed some lesser crime and should be sentenced accordingly. By pleading guilty, he has admitted guilt of the greater offense. State v. Sisson, 1997 ND 158, 567 N.W.2d 839, 1997 N.D. LEXIS 177 (N.D. 1997).

Impermissible Factors.

Court may not consider fact that defendant refused to plead guilty and went to trial, or that he chose to have his attorney speak instead of speaking for himself when given the opportunity to speak prior to sentencing, when court determines the sentence. State v. Hass, 268 N.W.2d 456, 1978 N.D. LEXIS 253 (N.D. 1978).

A guilty plea by a defendant is not to be considered cooperation for sentencing purposes. State v. Bell, 540 N.W.2d 599, 1995 N.D. LEXIS 221 (N.D. 1995).

Matters Subsequent to Commission of Offense.

In determining the desirability of imposing a sentence of imprisonment, this section permits the trial court to consider matters subsequent to the commission of the offense. State v. Sheldon, 312 N.W.2d 367, 1981 N.D. LEXIS 415 (N.D. 1981).

Mitigating Factors.

Eighth and Fourteenth Amendments place no constitutional duty upon trial court to affirmatively seek out mitigating circumstances before sentencing defendant when defendant does not offer any. State v. Garcia, 1997 ND 60, 561 N.W.2d 599, 1997 N.D. LEXIS 45 (N.D.), cert. denied, 522 U.S. 874, 118 S. Ct. 193, 139 L. Ed. 2d 131, 1997 U.S. LEXIS 5532 (U.S. 1997).

State court was not objectively unreasonable in determining that counsel’s failure to present mitigating information at sentencing about the inmate’s traumatic childhood would not have resulted in a more lenient sentence given his unwillingness to accept responsibility and the police, hospital, and victim reports detailing his violent past, which the trial court considered in its discretion, along with the guiding factors in N.D.C.C. § 12.1-32-04. Garcia v. Bertsch, 470 F.3d 748, 2006 U.S. App. LEXIS 30406 (8th Cir. N.D. 2006), cert. denied, 551 U.S. 1116, 127 S. Ct. 2937, 168 L. Ed. 2d 267, 2007 U.S. LEXIS 7569 (U.S. 2007), dismissed without prejudice, 2013 U.S. Dist. LEXIS 53059 (D.N.D. Apr. 12, 2013).

Permissible Factors.

This section sets forth the factors to be considered in sentencing decisions. Those factors include, among several others, the defendant’s history of prior delinquency or criminal activity, whether he has led a law abiding life, and whether the character, history, and attitudes of the defendant indicate that he is likely to commit another crime. A trial judge should be influenced by these factors. State v. Woehlhoff, 473 N.W.2d 446, 1991 N.D. LEXIS 139 (N.D. 1991).

Where ordained minister introduced the subject of his religion into the sentencing hearing in an effort to convince the court to mitigate his sentence, judge’s comment about “Christendom” was merely a response to this plea and did not illustrate substantial reliance on religion as a factor in sentencing; the comment was made in the context of discussing defendant’s position of trust within the church community and illustrated the judge’s awareness of the factors that the legislature has decided “shall be afforded weight.” State v. McClung, 529 N.W.2d 852, 1995 N.D. LEXIS 50 (N.D. 1995).

The trial court did not err in determining that defendant’s parental relationship with his daughter was a position of responsibility and trust which he had violated, and such a violation was an appropriate factor for consideration in sentencing. State v. Bell, 540 N.W.2d 599, 1995 N.D. LEXIS 221 (N.D. 1995).

Trial court properly considered a criminal conviction which was pending appeal during the sentencing hearing, and defendant’s reliance on N.D.C.C. § 39-06-30 which deals with the timing of reports of convictions to the appropriate licensing authority for purposes of license suspensions and revocations was misplaced as it did not define a conviction for purposes of sentencing a defendant under Title 12.1 of the N.D.C.C. State v. Ellis, 2001 ND 84, 625 N.W.2d 544, 2001 N.D. LEXIS 89 (N.D. 2001).

Sentence of ten years, with four years suspended and five years of supervised probation, for defendant’s conviction of unlawful delivery of a controlled substance was affirmed because defendant’s sentence was within the range of sentences for a Class A Felony, and defendant failed to show that the district court substantially relied upon an impermissible factor in sentencing; the trial court determined defendant was engaged in an ongoing enterprise of selling drugs and this was a reasonable inference based upon the evidence in the record and was a factor the trial court could consider during sentencing, and the trial court also considered at least seven other factors in sentencing defendant, all of which were listed in N.D.C.C. § 12.1-32-04. State v. Hoverson, 2006 ND 49, 710 N.W.2d 890, 2006 N.D. LEXIS 53 (N.D. 2006).

Trial court did not abuse its discretion in denying defendant’s request to deviate from a plea agreement because the trial court considered defendant’s criminal history, the commission of new offenses, and defendant’s apparent inability to follow the law. State v. Henes, 2009 ND 42, 763 N.W.2d 502, 2009 N.D. LEXIS 51 (N.D. 2009).

In a gross sexual imposition with a child less than six years of age case, because defendant was living with the child’s mother at the relevant times and there was evidence that several of the sexual acts occurred when defendant was watching the child while her mother was attending school, defendant was essentially in a parental relationship with the child; thus, the trial court’s reference to a position of trust in sentencing defendant was not an impermissible consideration and the trial court did not err in relying on that factor in sentencing defendant. State v. Huether, 2010 ND 233, 790 N.W.2d 901, 2010 N.D. LEXIS 236 (N.D. 2010).

Where defendant was under supervised probation for five years following a gross sexual imposition conviction and State subsequently moved to revoke probation because defendant violated the terms of probation by having contact with minor females on Facebook, possessing sexually stimulating material, and committing gross sexual imposition, where the trial court found that defendant exhibited predatory behavior that warranted revocation of probation and further found that defendant was a dangerous person and resentenced him to 20 years in prison on each count, to run consecutively, the trial court’s reliance on defendant’s likelihood to re-offend sexually fell within the converse of statutory factors N.D.C.C. § 12.1-32-04(8) and (9). Thus, the trial court’s reliance on defendant’s likelihood to re-offend sexually stemmed from the factors listed under N.D.C.C. § 12.1-32-04 and were not impermissible factors. State v. Gonzalez, 2011 ND 143, 799 N.W.2d 402, 2011 N.D. LEXIS 130 (N.D. 2011).

District court did not abuse its discretion in resentencing defendant because it did not need to analyze each sentencing factor; the record did not show the district court substantially relied on an impermissible factor; and the district court considered defendant’s criminal history. State v. Dubois, 2019 ND 284, 936 N.W.2d 380, 2019 N.D. LEXIS 291 (N.D. 2019).

District court properly considered defendant’s prior convictions without first ascertaining whether they were uncounseled because defendant did not show that his prior convictions were uncounseled or that he was given an enhanced sentence based upon his criminal history, the record showed the court’s appropriate consideration of defendant’s prior convictions. State v. Aune, 2021 ND 7, 953 N.W.2d 601, 2021 N.D. LEXIS 3 (N.D. 2021).

District court properly considered defendant’s prior criminal convictions as part of her criminal history at sentencing because they were not relied upon to enhance her term of incarceration, defendant did not show that the prior convictions were, in fact, uncounseled or that the district court abused its discretion in applying the sentencing factors in an illegal manner, her sentence was below the statutory maximum and within statutory limits, and her prior convictions were properly considered by the district court as her criminal history and as one of many sentencing factors. State v. Evanson, 2021 ND 4, 953 N.W.2d 607, 2021 N.D. LEXIS 4 (N.D. 2021).

Use of Weapon.

The use of a weapon during commission of an armed robbery, even by an associate in the crime, is a permissible factor to weigh in fixing the sentence. State v. Esparza, 1998 ND 13, 575 N.W.2d 203, 1998 N.D. LEXIS 2 (N.D. 1998).

Collateral References.

Use of prior military conviction to establish repeat offender status, 11 A.L.R.5th 218.

Vulnerability of victim as aggravating factor under state sentencing guidelines, 73 A.L.R.5th 383.

Downward departure under state sentencing guidelines based on extraordinary family circumstances, 106 A.L.R.5th 377.

Law Reviews.

Case Comment: Sentencing and Punishment - Sentencing Guidelines: The Sentencing Reform Act Precludes Courts from Lengthening a Prison Sentence Solely to Foster Offender Rehabilitation: Tapia v. United States, 131 S. Ct. 2382 (2011), see 87 N.D. L. Rev. 375 (2011).

12.1-32-04.1. Gross sexual imposition — Deferred imposition of sentence.

A person who violates subdivision d of subsection 1 or subdivision a of subsection 2 of section 12.1-20-03 may not receive a deferred imposition of sentence unless that person proves at sentencing by clear and convincing evidence that that person reasonably believed the victim to be fifteen years of age or older.

Source: S.L. 1997, ch. 122, § 4.

12.1-32-05. Imposition of fine — Response to nonpayment.

  1. The court, in making a determination of the propriety of imposing a sentence to pay a fine, shall consider the following factors:
    1. The ability of the defendant to pay without undue hardship.
    2. Whether the defendant, other than a defendant organization, gained money or property as a result of commission.
    3. Whether the sentence to pay a fine will interfere with the defendant’s capacity to make restitution.
    4. Whether a sentence to pay a fine will serve a valid rehabilitative purpose.
  2. The court may allow the defendant to pay any fine imposed in installments. When a defendant is sentenced to pay a fine, the court shall not impose at the same time an alternative sentence to be served in the event that the fine is not paid.
  3. If the defendant does not pay the fine, or make any required partial payment, the court, upon motion of the prosecuting attorney or on its own motion, may issue an order to show cause why the defendant should not be imprisoned for nonpayment. Unless the defendant shows that his default is excusable, the court may sentence him to the following periods of imprisonment for failure to pay a fine:
    1. If the defendant was convicted of a misdemeanor, to a period not to exceed thirty days.
    2. If the defendant was convicted of a felony, to a period not to exceed six months.

Source: S.L. 1973, ch. 116, § 31.

Notes to Decisions

Maximum Sentence.

If a default in payment of a fine for a felony is not excusable, this section limits the resulting imprisonment to six months. State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

Resentence for Nonpayment of Fines.

Resentence based solely on nonpayment of the fines could not exceed six months imprisonment; however, defendant’s failure to get permission for his moves and to report were reasons which authorized revocation of probation and imposition of the original sentence, for over five years. These were the significant factors that the trial court considered in sentencing. Most of the revocation hearing focused on defendant’s failure to keep in contact with his probation officer. Because there was nothing to indicate that the trial court relied solely on an impermissible factor, and there were proper factors which the court obviously considered in resentencing, the court would decline to vacate defendant’s sentence. State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

Collateral References.

Cumulative statutory penalties, 71 A.L.R.2d 986, 1011.

Propriety of applying cash bail to payment of fine, 42 A.L.R.5th 547.

Indigency of offender as affecting validity of imprisonment as alternative to payment of fine, 31 A.L.R.3d 926.

Abatement of state criminal case by accused’s death pending appeal of conviction — modern cases, 80 A.L.R.4th 189.

Measure and Elements of Restitution to Which Victim is Entitled under State Criminal Statute — Payment for Installation of Alarm or Locks or Change of Locks Due to Burglary, Attempted Burglary, or Felonious Breaking and Entering. 44 A.L.R.6th 301.

Propriety, Measure, and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute — Cruelty to, Killing, or Abandonment of, Animals. 45 A.L.R.6th 435.

Abatement effects of accused’s death before appellate review of federal criminal conviction, 80 A.L.R. Fed. 446.

Law Reviews.

Imprisonment of Indigents for Non-Payment of Fines or Court Costs: The Need for Legislation That Will Provide Protection to the Poor, 48 N.D. L. Rev. 41 (1971).

12.1-32-06. Incidents of probations. [Repealed]

Repealed by S.L. 1989, ch. 158, § 18.

12.1-32-06.1. Length and termination of probation — Additional probation for violation of conditions — Penalty.

  1. Except as provided in this section, the length of unsupervised probation imposed in conjunction with a sentence to probation or a suspended execution or deferred imposition of sentence may not extend for more than five years for a felony and two years for a misdemeanor or infraction from the later of the date of:
    1. The order imposing probation;
    2. The defendant’s release from incarceration; or
    3. Termination of the defendant’s parole.
  2. Except as provided in this section, the length of supervised probation imposed in conjunction with a sentence of probation or a suspended execution or deferred imposition of sentence may not extend for more than five years for a felony offense subject to section 12.1-32-09.1, a felony offense subject to section 12.1-32-02.1, which involves the use of a firearm or dangerous weapon, a second or subsequent violation of section 12.1-17-07.1, a second or subsequent violation of any domestic violence protection order, a violation of chapter 12.1-41, or a violation of section 14-09-22; three years for any other felony offense; two years for a class A misdemeanor; and three hundred sixty days for a class B misdemeanor offense from the later of the date of:
    1. The order imposing probation;
    2. The defendant’s release from incarceration; or
    3. Termination of the defendant’s parole.
  3. If the defendant has pled or been found guilty of an offense for which the court imposes a sentence of restitution or reparation for damages resulting from the commission of the offense, the court may, following a restitution hearing pursuant to section 12.1-32-08, impose additional periods of unsupervised probation not to exceed five years for each additional period imposed.
  4. If the defendant has pled or been found guilty of a felony sexual offense in violation of chapter 12.1-20, the court shall impose at least five years but not more than ten years of supervised probation to be served after sentencing or incarceration. If the defendant has pled or been found guilty of a class AA felony sexual offense in violation of section 12.1-20-03 or 12.1-20-03.1, the court may impose lifetime supervised probation on the defendant. If the defendant has pled or been found guilty of a misdemeanor sexual offense in violation of chapter 12.1-20, the court may impose additional periods of probation not to exceed two years for each additional period imposed. If the unserved portion of the defendant’s maximum period of incarceration is less than one year, a violation of the probation imposed under this subsection is a class A misdemeanor.
  5. If the defendant has pled or been found guilty of abandonment or nonsupport of spouse or children, the period of probation may be continued for as long as responsibility for support continues.
  6. In felony and misdemeanor cases, in consequence of violation of probation conditions, the court may impose additional probation if the defendant has not served the maximum sentence of imprisonment available to the court at the time of initial sentencing or deferment or the total time on probation authorized under this section.
    1. For class B and greater felony offenses, an offense subject to section 12.1-32-09.1, a felony offense subject to section 12.1-32-02.1, which involves the use of a firearm or dangerous weapon, a second or subsequent violation of section 12.1-17-07.1, a second or subsequent violation of any domestic violence protection order, a violation of chapter 12.1-41, or a violation of section 14-09-22, the total time on probation may not exceed ten years.
    2. For all other felony offenses, the total time on probation may not exceed five years.
    3. For misdemeanor cases, the total time on probation may not exceed three years.
    4. The court shall allow the defendant credit for a sentence of probation from the date the defendant began probation until the date a petition to revoke probation was filed with the court. If the defendant is on supervised probation, the defendant is not entitled to credit for a sentence of probation for any period the defendant has absconded from supervision. The total amount of credit a defendant is entitled to for time spent on probation must be stated in the criminal judgment or order of revocation of probation.
  7. The court may terminate a period of probation and discharge the defendant at any time earlier than that provided in subsection 1 if warranted by the conduct of the defendant and the ends of justice.
  8. Notwithstanding the fact that a sentence to probation subsequently can be modified or revoked, a judgment that includes such a sentence constitutes a final judgment for all other purposes.

Source: S.L. 1989, ch. 158, § 3; 1995, ch. 135, § 2; 1995, ch. 137, § 1; 1997, ch. 124, § 4; 2005, ch. 115, § 4; 2007, ch. 123, § 4; 2015, ch. 114, § 1, effective August 1, 2015.

Notes to Decisions

In General.

N.D.C.C. § 12.1-32-06.1(3) is intended to permit a district court to impose initial periods of probation longer than the five-year and two-year periods authorized by N.D.C.C. § 12.1-32-06.1(1). State v. Perales, 2012 ND 158, 820 N.W.2d 119, 2012 N.D. LEXIS 154 (N.D. 2012).

Under N.D.C.C. § 12.1-32-06.1(5), a district court may impose only one additional period of probation not exceeding five years. State v. Perales, 2012 ND 158, 820 N.W.2d 119, 2012 N.D. LEXIS 154 (N.D. 2012).

District court did not substantially comply with N.D. R. Crim. P. 11 because it failed to inform defendant of the mandatory minimum five-year probation term required when he entered his plea of guilty; the district court was required to inform defendant of any mandatory minimum penalty and determine that he understood the mandatory minimum penalty. State v. Wallace, 2018 ND 225, 918 N.W.2d 64, 2018 N.D. LEXIS 234 (N.D. 2018).

Construction with Other Laws.

The holding in State v. Nace, 371 N.W.2d 129 (N.D. 1985), citing N.D.R.Crim.P. 35(a), that a post-conviction proceeding “is also available to collaterally attack a sentence where it ‘exceeds the maximum authorized by law’” has been superseded by this section. DeCoteau v. State, 504 N.W.2d 552, 1993 N.D. LEXIS 157 (N.D. 1993).

The one-year sentence limitation in subsection 3 of N.D.C.C. § 12.1-32-11 applies only to a sentence for imprisonment. This does not conflict with subsection 1 of this section, which permits misdemeanor probations of up to two years. State v. Woehlhoff, 537 N.W.2d 543, 1995 N.D. LEXIS 175 (N.D. 1995).

District court properly refused to allow defendant to withdraw his guilty plea on the failure-to-register charge because he offered no support for his argument that he was incorrectly informed of the penalty for pleading guilty to that charge as the permissive probationary provisions were not applicable, and his probationary sentence was appropriately categorized as mandatory. Peltier v. State, 2013 ND 246, 841 N.W.2d 236, 2013 N.D. LEXIS 243 (N.D. 2013).

Maximum Probation Period.

By the 1989 amendments, the legislature gave the trial court the ability to impose a maximum probation sentence separate from and in addition to its ability to impose a maximum imprisonment sentence. The legislature’s intent was to allow probation sentences beyond the maximum term of imprisonment. State v. McClean, 1998 ND 21, 575 N.W.2d 200, 1998 N.D. LEXIS 10 (N.D. 1998).

A trial court is not precluded from imposing both a maximum probation sentence and a maximum imprisonment sentence for misdemeanors. State v. McClean, 1998 ND 21, 575 N.W.2d 200, 1998 N.D. LEXIS 10 (N.D. 1998).

“Maximum periods” under N.D.C.C. § 12.1-32-06.1(5) means two probation periods and therefore, under N.D.C.C. § 12.1-32-06.1(2), a district court can impose only one additional period of probation not to exceed five years where a defendant has been ordered to pay restitution. State v. Stavig, 2006 ND 63, 711 N.W.2d 183, 2006 N.D. LEXIS 62 (N.D. 2006).

District court erred when it imposed a third period of probation on defendant and ordered him to pay restitution where defendant had been ordered to pay restitution and the court held that he had not made payments as requested by his probation officer. State v. Stavig, 2006 ND 63, 711 N.W.2d 183, 2006 N.D. LEXIS 62 (N.D. 2006).

Legislative history of N.D.C.C. § 12.1-32-06.1(2) reflects that “an additional period of probation not to exceed five years” means one additional period of probation. State v. Stavig, 2006 ND 63, 711 N.W.2d 183, 2006 N.D. LEXIS 62 (N.D. 2006).

Defendant’s sentence entered for defendant’s DUI conviction was illegal and, thus, the trial court should not have denied defendant’s postconviction relief application and was required to resentence defendant. Under N.D.C.C. § 12.1-32-06.1(1), defendant’s probationary sentence for a felony conviction could not exceed five years from the end of the DUI sentence, but the trial court ordered that the five-year probationary period start running only after defendant completed a 10-year sentence on a manslaughter conviction, which meant that the DUI probationary period could not be completed within five years after defendant’s five-year DUI sentence ended. Dailey v. State, 2011 ND 223, 807 N.W.2d 225, 2011 N.D. LEXIS 221 (N.D. 2011).

District court erred in imposing a five-year sentence of supervised probation because aggravated assault—domestic violence was a class C felony that fell within the "any other felony offense" category, which limited defendant's supervised probation to three years for his crime. State v. Isom, 2018 ND 60, 907 N.W.2d 340, 2018 N.D. LEXIS 61 (N.D. 2018).

Defendant was not entitled to be resentenced to probation because (1) any sentence available when defendant was originally sentenced could be imposed upon revocation of probation, (2) defendant could only receive two probation periods, defendant’s first period had been revoked, and defendant was serving a second period when probation was revoked, so the court could not sentence defendant to a third period, and (3) defendant’s sentence of life in prison with the possibility of parole, after his murder conviction, was within the statutory range. State v. Alberts, 2019 ND 66, 924 N.W.2d 96, 2019 N.D. LEXIS 67 (N.D. 2019).

Modification.

A sentencing court has continuing power to modify the conditions of probation. State v. Gates, 540 N.W.2d 134, 1995 N.D. LEXIS 199 (N.D. 1995).

Revocation of Probation.

Defendant was not subjected to double jeopardy for his original conviction of gross sexual imposition when his probation was revoked; the trial court was statutorily authorized to increase defendant’s sentence during resentencing. State v. Causer, 2004 ND 75, 678 N.W.2d 552, 2004 N.D. LEXIS 171 (N.D.), cert. denied, 543 U.S. 906, 125 S. Ct. 139, 160 L. Ed. 2d 182, 2004 U.S. LEXIS 6076 (U.S. 2004).

In a case where defendant was convicted under N.D.C.C. § 12.1-20-03, an illegal sentence was imposed because defendant had served two probation periods authorized by N.D.C.C. § 12.1-32-06.1 prior to his 2012 resentencing due to a revocation, and a trial court was unable to impose a third period of probation. State v. Perales, 2012 ND 158, 820 N.W.2d 119, 2012 N.D. LEXIS 154 (N.D. 2012).

Sentence Proper.

In defendant’s failure to properly tag a big game animal case, where defendant claimed that his sentence was unfairly harsh, cruel, and unusual for that offense, the trial court did not abuse its discretion in sentencing since defendant’s sentence and probation were within the statutorily prescribed limits of N.D.C.C. §§ 12.1-32-01(5) and 12.1-32-06.1(1). State v. Loughead, 2007 ND 16, 726 N.W.2d 859, 2007 N.D. LEXIS 16 (N.D. 2007).

DECISIONS UNDER PRIOR LAW

Deferred Imposition of Sentence.

A deferred imposition of sentence is not a sentence and probation imposed not as a sentence was not limited by subsection 1 of former N.D.C.C. § 12.1-32-06 or former N.D.C.C. § 12-53-03. State v. Siegel, 404 N.W.2d 469, 1987 N.D. LEXIS 305 (N.D. 1987).

Delegation of Sentencing Authority.

In sentencing a first time offender convicted of driving under the influence of intoxicating liquor, the trial court erred where it, in effect, delegated its authority to sentence defendant to the addiction evaluator by requiring defendant to “follow the treatment prescribed by the addiction evaluator” in violation of N.D.R.Crim.P. 32(e). State v. Nelson, 417 N.W.2d 814, 1987 N.D. LEXIS 464 (N.D. 1987).

Felony/Misdemeanor Distinction.

To impose the felony/misdemeanor distinction in subsection 1 of former N.D.C.C. § 12.1-32-06 upon former N.D.C.C. § 12-53-13 would be contrary to the legislative directive in N.D.C.C. § 12.1-32-02(1). State v. Siegel, 404 N.W.2d 469, 1987 N.D. LEXIS 305 (N.D. 1987).

Jurisdiction.

Where probation pursuant to a sentence under former N.D.C.C. § 12.1-32-06 and former N.D.C.C. § 12-53-03 was for a period of 30 days, the court did not lack jurisdiction to revoke probation after the period of probation had elapsed, where such action was taken with reasonable promptness and within the five-year period authorized by former N.D.C.C. § 12-53-13. State v. Nelson, 417 N.W.2d 814, 1987 N.D. LEXIS 464 (N.D. 1987).

Maximum Probation Period.

Under the law in effect prior to the 1989 repeal of N.D.C.C. ch. 12-53, amendment of N.D.C.C. ch. 12.1-32, and enactment of N.D.C.C. § 12.1-32-06.1, a person could not be placed on probation for a period of time in excess of one year, the maximum term for which the person could have been imprisoned. State v. Rohrich, 450 N.W.2d 774, 1990 N.D. LEXIS 23 (N.D. 1990).

Collateral References.

State court’s power to place defendant on probation without imposition of sentence, 56 A.L.R.3d 932.

Revocation of probation based on defendant’s misrepresentation or concealment of information from trial court, 36 A.L.R.4th 1182.

Probation revocation: insanity as defense, 56 A.L.R.4th 1178.

Right and sufficiency of allocution in probation revocation proceeding, 70 A.L.R.5th 533.

Measure and Elements of Restitution to Which Victim is Entitled under State Criminal Statute — Payment for Installation of Alarm or Locks or Change of Locks Due to Burglary, Attempted Burglary, or Felonious Breaking and Entering. 44 A.L.R.6th 301.

Propriety, Measure, and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute — Cruelty to, Killing, or Abandonment of, Animals. 45 A.L.R.6th 435.

12.1-32-07. Supervision of probationer — Conditions of probation — Revocation.

  1. When the court imposes probation upon conviction for a felony offense subject to section 12.1-32-09.1 or 12.1-32-02.1, a second or subsequent violation of section 12.1-17-07.1, a second or subsequent violation of any domestic violence protection order, a violation of chapter 12.1-41, a violation of section 14-09-22, or a felony offense under chapter 39-08, the court shall place the defendant under the supervision and management of the department of corrections and rehabilitation. When the court imposes probation upon conviction or order of disposition in all other felony cases, the court may place the defendant under the supervision and management of the department of corrections and rehabilitation. In class A misdemeanor cases, the court may place the defendant under the supervision and management of the department of corrections and rehabilitation or other responsible party. In all other cases, the court may place the defendant under the supervision and management of a community corrections program other than the department of corrections and rehabilitation. A community corrections program means a program for the supervision of a defendant, including monitoring and enforcement of terms and conditions of probation set by the court.
  2. The conditions of probation must be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist the defendant to do so. The court shall provide as an explicit condition of every probation that the defendant not commit another offense during the period for which the probation remains subject to revocation. The court shall order supervision costs and fees of not less than fifty-five dollars per month unless the court makes a specific finding on record that the imposition of fees will result in an undue hardship. If the offender has not paid the full amount of supervision fees and costs before completion or termination of probation, the court may issue an order, after opportunity for hearing, to determine the amount of supervision fees and costs that are unpaid. The order may be filed, transcribed, and enforced by the department of corrections and rehabilitation in the same manner as civil judgments rendered by a district court of this state.
  3. The court shall provide as an explicit condition of every probation that the defendant may not possess a firearm, destructive device, or other dangerous weapon while the defendant is on probation. Except when the offense is a misdemeanor offense under section 12.1-17-01, 12.1-17-01.1, 12.1-17-01.2, 12.1-17-05, or 12.1-17-07.1, or chapter 14-07.1, the court may waive this condition of probation if the defendant has pled guilty to, or has been found guilty of, a misdemeanor or infraction offense, the misdemeanor or infraction is the defendant’s first offense, and the court has made a specific finding on the record before imposition of a sentence or a probation that there is good cause to waive the condition. The court may not waive this condition of probation if the court places the defendant under the supervision and management of the department of corrections and rehabilitation. The court shall provide as an explicit condition of probation that the defendant may not willfully defraud a urine test administered as a condition of probation. Unless waived on the record by the court, the court shall also provide as a condition of probation that the defendant undergo various agreed-to community constraints and conditions as intermediate measures of the department of corrections and rehabilitation to avoid revocation, which may include:
    1. Community service;
    2. Day reporting;
    3. Curfew;
    4. Home confinement;
    5. House arrest;
    6. Electronic monitoring;
    7. Residential halfway house;
    8. Intensive supervision program;
    9. Up to five nonsuccessive periods of incarceration during any twelve-month period, each of which may not exceed forty-eight consecutive hours;
    10. Participation in the twenty-four seven sobriety program; or
    11. One period of incarceration during a period of probation not to exceed thirty consecutive days in lieu of a petition for revocation of probation.
  4. When imposing a sentence to probation, probation in conjunction with imprisonment, or probation in conjunction with suspended execution or deferred imposition of sentence, the court may impose such conditions as it deems appropriate and may include any one or more of the following:
    1. Work faithfully at a suitable employment or faithfully pursue a course of study or of career and technical education training that will equip the defendant for suitable employment.
    2. Undergo available medical or psychiatric treatment and remain in a specified institution if required for that purpose.
    3. Attend or reside in a facility established for the instruction, recreation, or residence of persons on probation.
    4. Support the defendant’s dependents and meet other family responsibilities.
    5. Make restitution or reparation to the victim of the defendant’s conduct for the damage or injury which was sustained or perform other reasonable assigned work. When restitution, reparation, or assigned work is a condition of probation, the court shall proceed as provided in subsection 1 or 2, as applicable, of section 12.1-32-08.
    6. Pay a fine imposed after consideration of the provisions of section 12.1-32-05.
    7. Refrain from excessive use of alcohol or any use of narcotics or of another dangerous or abusable drug without a prescription.
    8. Permit the probation officer to visit the defendant at reasonable times at the defendant’s home or elsewhere.
    9. Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer.
    10. Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment.
    11. Report to a probation officer at reasonable times as directed by the court or the probation officer.
    12. Submit to a medical examination or other reasonable testing for the purpose of determining the defendant’s use of narcotics, marijuana, or other controlled substance whenever required by a probation officer.
    13. Refrain from associating with known users or traffickers in narcotics, marijuana, or other controlled substances.
    14. Submit the defendant’s person, place of residence, or vehicle to search and seizure by a probation officer at any time of the day or night, with or without a search warrant.
    15. Serve a term of imprisonment of up to one-half of the maximum term authorized for the offense of which the defendant was convicted.
    16. Reimburse the costs and expenses determined necessary for the defendant’s adequate defense when counsel is appointed or provided at public expense for the defendant. When reimbursement of indigent defense costs and expenses is imposed as a condition of probation, the court shall proceed as provided in subsection 4 of section 12.1-32-08.
    17. Provide community service for the number of hours designated by the court.
    18. Refrain from any subscription to, access to, or use of the internet.
  5. When the court imposes a sentence to probation, probation in conjunction with imprisonment, or probation in conjunction with suspended execution or deferred imposition of sentence, the defendant must be given a certificate explicitly setting forth the conditions on which the defendant is being released.
  6. The court, upon notice to the probationer and with good cause, may modify or enlarge the conditions of probation at any time before the expiration or termination of the period for which the probation remains conditional. If the defendant violates a condition of probation at any time before the expiration or termination of the period, the court may continue the defendant on the existing probation, with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing or deferment.
  7. The court may continue or modify probation conditions or revoke probation for a violation of probation conditions occurring before the expiration or termination of the period of probation notwithstanding that the order of the court is imposed after the expiration or termination has occurred. The petition for revocation must be issued within sixty days of the expiration or termination of probation.
  8. Jurisdiction over a probationer may be transferred from the court that imposed the sentence to another court of this state with the concurrence of both courts. Retransfers of jurisdiction may also occur in the same manner. The court to which jurisdiction has been transferred under this subsection may exercise all powers permissible under this chapter over the defendant.
  9. Notwithstanding any other provision of law, the court may authorize the defendant to assist law enforcement officers in an investigation of a criminal offense upon the terms and conditions as the court may require by written order. The court shall hold a hearing in camera before issuing an order under this subsection. The order must be sealed and is subject to inspection only upon order of the court.
  10. The department of corrections and rehabilitation shall provide written notice to a defendant who is in the department’s physical custody of any untried petition for revocation against the defendant of which the department has notice and of the defendant’s right to make a request for final disposition of the petition.
    1. Upon notice of an untried petition for revocation of probation, the defendant may request final disposition of the petition. The defendant’s request must be in writing and name the court in which the petition for revocation of probation is pending and the prosecuting official charged with the duty of prosecuting the petition.
    2. The defendant shall submit the request to the department. The department shall certify the term of commitment under which the defendant is being held, the time the defendant has served on the sentence, the time remaining to be served, sentence reduction credit the defendant has earned, the defendant’s eligibility for parole, and whether the parole board has made a decision regarding the defendant’s parole.
    3. The department shall send by registered mail, return receipt requested, one copy of the request and certificate to the court and one copy to the prosecuting official to whom the request and certificate is addressed.
    4. The petition for revocation of probation must be brought to the court for hearing within ninety days after the receipt of the request and certificate by the court and prosecuting official. If the petition is not brought to the court for hearing within the ninety days, the court shall dismiss the petition with prejudice.
    5. The parties may stipulate for a continuance or the court may grant a continuance upon a showing of good cause by either party for a petition under this subsection.
    6. If the defendant escapes from custody subsequent to the defendant’s execution of a request for final disposition of a petition for revocation, the request is considered void.

Source: S.L. 1973, ch. 116, § 31; 1989, ch. 158, § 4; 1991, ch. 134, §§ 1, 2; 1993, ch. 114, § 3; 1993, ch. 130, § 1; 1993, ch. 131, §§ 1, 2; 1993, ch. 132, §§ 1, 2; 1995, ch. 138, § 1; 1997, ch. 133, § 1; 1999, ch. 16, § 6; 1999, ch. 124, § 2; 2001, ch. 130, § 2; 2001, ch. 133, § 3; 2001, ch. 139, § 1; 2003, ch. 112, § 2; 2003, ch. 138, § 9; 2005, ch. 43, § 8; 2005, ch. 113, § 2; 2007, ch. 15, § 5; 2007, ch. 119, § 3; 2007, ch. 135, § 1; 2009, ch. 469, § 2; 2013, ch. 46, § 7; 2013, ch. 112, § 1; 2013, ch. 111, § 1; 2015, ch. 114, § 2, effective August 1, 2015; 2017, ch. 108, § 8, effective January 1, 2018; 2019, ch. 118, § 2, effective August 1, 2019; 2019, ch. 107, § 6, effective August 1, 2019; 2021, ch. 111, § 1, effective August 1, 2021.

Notes to Decisions

Amendment.
—Ex Post Facto.

Current statute, which expressly granted authority to the trial court to revoke probation after the probation has terminated, was not ex post facto as it was not being applied to defendant’s conviction before the amendment, but to his alleged probation violation after the amendment; it was his acts subsequent to the amendment of the statute that were at issue. State v. Monson, 518 N.W.2d 171, 1994 N.D. LEXIS 134 (N.D. 1994).

Violation of probation.

District court did not abuse its discretion in revoking defendant’s probation because defendant admitted to committing three new offenses while on probation. State v. Dubois, 2019 ND 284, 936 N.W.2d 380, 2019 N.D. LEXIS 291 (N.D. 2019).

Authority of Sentencing Court.
—In General.

A sentencing court may impose conditions on probation. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Trial court’s imposition of the probation condition prohibiting defendant from entering a specific geographic location was reasonably related to the goals of his probation, protected the rights of law-abiding citizens from the effects of his refuse hoarding behavior, and had only limited restrictions on his right to associate with the property owner; therefore, the restriction was constitutional and the trial court acted within its sentencing authority. State v. Aune, 2002 ND 176, 653 N.W.2d 53, 2002 N.D. LEXIS 224 (N.D. 2002).

Defendant was not given an illegal sentence because the order that he have no contact with his child was interpreted as a condition of probation; if the no-contact order was part of the conditions of probation, it was proper and expired in three years when the probationary period ceases, but if the no-contact order was part of the judgment, it continued in perpetuity and was an illegal sentence. State v. Abdiwali Mohamud, 2019 ND 101, 925 N.W.2d 396, 2019 N.D. LEXIS 109 (N.D. 2019).

—Condition of Probation Limited to Trial Court.

The Legislature gave the sentencing court, not the probation officer, the authority to impose conditions of probation, and a condition to submit to drug testing procedures which was imposed by the probation officer, not by the court, resulted in an unlawful delegation of authority. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

A fee collected by director of department of corrections under N.D.C.C. § 54-23.3-04 is a civil fee for the cost of rehabilitative and supervision services for probationers, and is not a new condition of probation which would violate the separation of powers by delegating the judicial duty to impose conditions of probation. Glaspie v. Little, 1997 ND 108, 564 N.W.2d 651, 1997 N.D. LEXIS 109 (N.D. 1997).

Submission to Search.

Although this statute did not explicitly authorize the court to require defendant to submit to a search of his cell phone and the conditions of defendant's probation did not expressly state he was required to submit to a warrantless search of his cell phone, both authorized a warrantless search of the probationer's residence and vehicle, and the cell phones were found in defendant's residence and his vehicle. State v. Gonzalez, 2015 ND 106, 862 N.W.2d 535, 2015 N.D. LEXIS 91 (N.D. 2015).

In a case where defendant was placed on probation after he was convicted of two counts of gross sexual imposition for engaging in a sexual act with a female under the age of 15, because the conditions of defendant's probation included that he submit to searches of his person, residence, and vehicle, with or without a warrant, and that he not have contact with minor females, telephone the victim, or utilize 900 telephone numbers, the conditions of defendant's probation gave him notice that his cell phones would be subject to search; thus, the search of defendant's cell phones was within the scope of the conditions of his probation, and the conditions were authorized by this statute. State v. Gonzalez, 2015 ND 106, 862 N.W.2d 535, 2015 N.D. LEXIS 91 (N.D. 2015).

—Forfeiture of Firearms.

The trial court did not have statutory authority to order forfeiture of defendant’s firearms as a condition of probation and abused its discretion in ordering the forfeiture in the absence of a civil forfeiture proceeding under N.D.C.C. § 29-31.1-04(1). State v. Faleide, 2002 ND 152, 652 N.W.2d 312, 2002 N.D. LEXIS 192 (N.D. 2002).

—Legal Conduct As Probation Conditions.

Conditions of probation may prohibit activity that is not itself violative of the criminal law. State v. Kunkel, 455 N.W.2d 213, 1990 N.D. LEXIS 106 (N.D. 1990).

—No Contact.

The no-contact condition of defendant’s probation which provided that defendant “shall have no contact in any form with the victim . . . . This includes personal contact, as well as telephonic and mail communications” was not violated by defendant’s mere attendance at six of the victim’s college basketball games over a four-month period. State v. Monson, 518 N.W.2d 171, 1994 N.D. LEXIS 134 (N.D. 1994).

—Possession of Firearms.

Defendant was properly prohibited from arguing a mistake of law defense under N.D.C.C. § 12.1-05-09 because his offense of possession of a firearm by a felon under N.D.C.C. § 62.1-02-01(2) was a strict liability offense. Defendant’s prior sentence for issuing a check without sufficient funds was not illegal because the district court only addressed the conditions of probation under N.D.C.C. § 12.1-32-07 and did not address whether defendant could possess or own a firearm after probation. N.D.C.C. § 62.1-02-01 explicitly prohibited defendant from possessing firearms after he had been convicted of a felony reduced to a misdemeanor under N.D.C.C.§ 12.1-32-02(9) and defendant was presumed to know the law and could not claim that the prohibition did not apply to him. State v. Buchholz, 2006 ND 227, 723 N.W.2d 534, 2006 N.D. LEXIS 232 (N.D. 2006).

—Prohibiting Use of Alcoholic Beverages.

Where defendant was convicted of delivering an alcoholic beverage to a person under 21 years of age, it was proper for trial court to impose as a condition of probation that defendant refrain from use of alcoholic beverages for a one-year probationary period. State v. Bohl, 317 N.W.2d 790, 1982 N.D. LEXIS 264 (N.D. 1982).

—Repayment for Court-Appointed Attorney.

Repayment for court-appointed attorney may be made a condition of probation; however, there must be a finding that probationer is capable, but unwilling, to repay before probation may be revoked for failure to repay. State v. Kottenbroch, 319 N.W.2d 465, 1982 N.D. LEXIS 281 (N.D. 1982).

—Required Medical Treatment.

A defendant who is convicted of driving while under the influence of alcohol may be required to undergo medical treatment, but the defendant must be ordered by the trial court directly, and not indirectly, to undergo treatment. State v. Nelson, 417 N.W.2d 814, 1987 N.D. LEXIS 464 (N.D. 1987).

Where the trial court revoked the defendant’s probation and resentenced him, but delayed the execution of the sentence on the condition that the defendant complete drug and alcohol treatment, the defendant was not entitled to credit toward his prison sentence for the time between the date of the order and his return to prison. State v. Miller, 418 N.W.2d 614, 1988 N.D. LEXIS 17 (N.D. 1988).

—Required Programs.

Requiring defendant convicted of aggravated assault for a stabbing committed while under the influence of alcohol to participate in alcohol treatment and anger management programs as a condition of probation was reasonable and related to the offense committed. State v. Bender, 1998 ND 72, 576 N.W.2d 210, 1998 N.D. LEXIS 76 (N.D. 1998).

—Restitution.

Where restitution is a condition of probation, the trial court should specify the minimum amount defendant should pay regularly given his ability, expected earnings, and obligations. State v. Gates, 540 N.W.2d 134, 1995 N.D. LEXIS 199 (N.D. 1995).

—Sex Offender Treatment.

The sex offender treatment was reasonably related to the crime for which defendant was convicted, and imposing such treatment as a condition of probation was not an abuse of discretion. State v. Shepherd, 554 N.W.2d 821, 1996 N.D. LEXIS 234 (N.D. 1996).

Defendant willfully violated a condition of his probation when he failed to complete a sex offender treatment program while in prison because completion of the program was an unambiguous prior condition to probation and completion of a condition of probation may be required while a defendant is still in prison, not only upon his release. Davis v. State, 2001 ND 85, 625 N.W.2d 855, 2001 N.D. LEXIS 97 (N.D. 2001).

—Submission to Search.

Condition of probation requiring probationer to submit to a search by police officers or probation officers without a warrant and without probable cause or even a reasonable suspicion that probationer is engaging in criminal activities or violating a condition of his probation does not violate fourth amendment rights to extent such a search contributes to rehabilitation process; is not used as a subterfuge for criminal investigation; and is performed in a reasonable manner. State v. Perbix, 331 N.W.2d 14, 1983 N.D. LEXIS 244 (N.D. 1983), overruled in part, State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002), overruled in part, State v. Ballard, 2016 ND 8, 874 N.W.2d 61, 2016 N.D. LEXIS 15 (N.D. 2016).

Condition of probation requiring probationer to submit to a search with or without a warrant by police officers or probation officers was not in violation of this section as this section does not necessarily limit authority to conduct such searches to probation officers only. State v. Perbix, 331 N.W.2d 14, 1983 N.D. LEXIS 244 (N.D. 1983), overruled in part, State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002), overruled in part, State v. Ballard, 2016 ND 8, 874 N.W.2d 61, 2016 N.D. LEXIS 15 (N.D. 2016).

Reasonable suspicion is not required for a probationary search as long as the search itself is reasonable. State v. Smith, 1999 ND 9, 589 N.W.2d 546, 1999 N.D. LEXIS 7 (N.D.), cert. denied, 526 U.S. 1162, 119 S. Ct. 2054, 144 L. Ed. 2d 221, 1999 U.S. LEXIS 3893 (U.S. 1999).

Warrantless search of the home and car of defendant convicted of drug paraphernalia possession to determine if he was following the terms of his probation was reasonable where narcotics task force agents informed probation officer of suspected drug activity at defendant’s home. State v. Smith, 1999 ND 9, 589 N.W.2d 546, 1999 N.D. LEXIS 7 (N.D.), cert. denied, 526 U.S. 1162, 119 S. Ct. 2054, 144 L. Ed. 2d 221, 1999 U.S. LEXIS 3893 (U.S. 1999).

Warrantless search of defendant’s home and computer after probation officer learned defendant had violated a condition of his release by having unsupervised contact with children not his own, including taking children on out-of-state rafting trips, was reasonable and appropriate. United States v. Vincent, 167 F.3d 428, 1999 U.S. App. LEXIS 1462 (8th Cir. N.D.), cert. denied, 528 U.S. 848, 120 S. Ct. 124, 145 L. Ed. 2d 105, 1999 U.S. LEXIS 5463 (U.S. 1999).

Where searches of defendant and defendant’s car were authorized by a condition of defendant’s probation, and defendant’s probation officer had a reasonable suspicion that defendant was engaging in unlawful activity, the searches did not violate the Fourth Amendment. State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002).

Under subsection (2) and subdivision (4)(n) of this section, reasonable suspicion was not required for the warrantless search of the home shared by two defendants; one defendant’s probation officer had a reasonable basis for believing that the defendant was in violation of probation by operating an illegal drug lab. United States v. Moser, 240 F. Supp. 2d 1068, 2003 U.S. Dist. LEXIS 836 (D.N.D. 2003).

— —Criminal Investigation.

There was sufficient evidence for trial court to conclude probationary search was not subterfuge for criminal investigation, where probation conditions required probationer to obey criminal laws, marijuana was found in a prior probation search of his residence, search was instigated and conducted by probation officers, and law enforcement officers present recognized probation officer as the person in charge. State v. LaFromboise, 542 N.W.2d 110, 1996 N.D. LEXIS 17 (N.D. 1996).

— —Evidence.

Where submission to a warrantless search is imposed as a condition of probation, evidence obtained as a result of a valid search conducted pursuant to such condition is not limited in its use to probation revocation proceedings, but may be used in a new criminal prosecution. State v. Perbix, 331 N.W.2d 14, 1983 N.D. LEXIS 244 (N.D. 1983), overruled in part, State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002), overruled in part, State v. Ballard, 2016 ND 8, 874 N.W.2d 61, 2016 N.D. LEXIS 15 (N.D. 2016).

Effect of Reversal of Conviction.

If a probation revocation is based upon a conviction which is subsequently reversed, the probation revocation must also be reversed. State v. Kunkel, 455 N.W.2d 213, 1990 N.D. LEXIS 106 (N.D. 1990).

Judicial Discretion.

The Legislature has given the court discretion in imposing conditions of probation under this section, which allows the court to fashion any probation requirements it deems necessary to insure that the defendant will lead a law-abiding life; the list of conditions is not exclusive and the imposition of these conditions is purely a matter of judicial discretion so as to allow a judge to tailor conditions to meet particular facts and circumstances in any given case. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

Modification of Conditions.

A sentencing court has continuing power to modify the conditions of probation. State v. Gates, 540 N.W.2d 134, 1995 N.D. LEXIS 199 (N.D. 1995).

No Credit for Probation.

Probation is not “time spent in custody” and therefore defendant was not entitled to credit from time he was released on probation under former section 12-53-11. State v. Gefroh, 458 N.W.2d 479, 1990 N.D. LEXIS 143 (N.D. 1990), overruled, Dubois v. State, 2021 ND 153, 963 N.W.2d 543, 2021 N.D. LEXIS 158 (N.D. 2021).

Notice of Conditions of Probation.
—In General.

A state must give a probationer some type of formal notice of noncriminal conduct which would result in the revocation of probation, while recognizing that a proscription against criminal activity is an implied condition of every probation, as no person has the right to commit a crime. State v. Kunkel, 455 N.W.2d 213, 1990 N.D. LEXIS 106 (N.D. 1990).

Supreme court will not reverse an order revoking probation for committing a criminal offense where the condition (that the probationer not commit crimes) is not included in the probation certificate. State v. Kunkel, 455 N.W.2d 213, 1990 N.D. LEXIS 106 (N.D. 1990).

The requirement of former subsection 3 (now subsection 5) that a probationer receive a written certificate of probation conditions was meant to apply to those instances in which the court, as permitted by statute, proscribes or requires certain noncriminal conduct. State v. Kunkel, 455 N.W.2d 213, 1990 N.D. LEXIS 106 (N.D. 1990).

Subsection 5 wasn’t violated when the court mailed the defendant a copy of his second N.D.R.Crim.P. 35 order reducing his sentence and releasing him on probation subject to the same conditions as originally imposed; at the re-sentencing hearing the court reiterated the specific conditions defendant had received at his original sentencing and stated that if he were to violate any of those conditions again he would be re-sentenced with no clemency. State v. Vondal, 1998 ND 188, 585 N.W.2d 129, 1998 N.D. LEXIS 200 (N.D. 1998).

Trial court erred in denying defendant’s motion under N.D.R.Crim.P. 35(a) to correct illegal sentences because the trial court did not provide defendant with notice and an opportunity to be heard before it increased defendant’s five-year probationary period for five offenses; the trial court did not provide defendant with proper notice under N.D.C.C. § 12.1-32-07(6). State v. Eide, 2012 ND 129, 818 N.W.2d 711, 2012 N.D. LEXIS 132 (N.D. 2012).

—Purpose.

The purpose of the written statement of conditions is to give a defendant notice of the conditions of his probation in a clear and specific way. State v. Vondal, 1998 ND 188, 585 N.W.2d 129, 1998 N.D. LEXIS 200 (N.D. 1998).

Probation Officer.

While there was no problem with the trial court’s relying on and ordering a pre-established standardized list of probation terms, it was unauthorized and unlawful for the trial court to allow a probation officer to pick and choose among optional terms of probation contained within that agreement. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

While a probation officer may not impose the conditions of probation, he is not precluded from exercising discretion pursuant to his authority to supervise the probationer. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

Where, finding conditions imposed by the probation officer too restrictive, the defendant refused to sign his probation agreement, provoking the first revocation hearing at which the defendant agreed to abide by the conditions and made no objection to the prior procedure, it was clear that the trial court and the defendant knew the terms of probation, the court ordered and adapted them, the defendant agreed to follow them, and probation was not revoked. Thus the improper completion of the probation agreement and imposition of probation conditions by the probation officer did not have a significant impact on a subsequent revocation, the defendant’s substantial liberty rights were not affected, and there was not obvious error. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

Purpose.

One purpose of this section was to avoid the use of imprisonment as an automatic response to the violation of a probationary condition, encouraging consideration of other recourse. State v. Miller, 418 N.W.2d 614, 1988 N.D. LEXIS 17 (N.D. 1988).

Resentencing.

Former subsection 4 (now 6) provides authority for the trial court to resentence a defendant if it determines to revoke his or her probation. State v. Miller, 418 N.W.2d 614, 1988 N.D. LEXIS 17 (N.D. 1988).

Resentencing a defendant after revoking his probation to a sentence greater than that originally imposed does not violate the fifth amendment guarantee against subjection of the defendant to double jeopardy. State v. Jones, 418 N.W.2d 782, 1988 N.D. LEXIS 16 (N.D. 1988).

The trial court is not prohibited from imposing a greater sentence at the time of resentencing than was imposed in the initial sentence, provided that the term of a combined sentence of imprisonment and probation does not exceed the maximum term for which a defendant might have been imprisoned. State v. Jones, 418 N.W.2d 782, 1988 N.D. LEXIS 16 (N.D. 1988).

Former subsection 4 (now subsection 6) authorized the district court to increase the length of the sentence imposed, but suspended, upon resentencing defendant after revocation of his probation. State v. Gefroh, 458 N.W.2d 479, 1990 N.D. LEXIS 143 (N.D. 1990), overruled, Dubois v. State, 2021 ND 153, 963 N.W.2d 543, 2021 N.D. LEXIS 158 (N.D. 2021).

Where defendant could have been sentenced to at least 10 years on concurrent sentences, after credit for the year that defendant was imprisoned, this section made available at least nine years of imprisonment for defendant when his probation was revoked. State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

This section says that when probation is revoked, the court may continue probation or “may impose any other sentence that was available under section 12.1-32-02 or 12.1-32-09 at the time of initial sentencing.” State v. Ennis, 464 N.W.2d 378, 1990 N.D. LEXIS 261 (N.D. 1990).

Former subsection (4) (now subsection 6), authorizes a trial court to resentence a defendant who violates a condition of probation to any sentence that was initially available. State v. Lindgren, 483 N.W.2d 777, 1992 N.D. LEXIS 83 (N.D. 1992), overruled, Dubois v. State, 2021 ND 153, 963 N.W.2d 543, 2021 N.D. LEXIS 158 (N.D. 2021).

Subsection 6 of this section gives a defendant “actual notice” that a violation of probation could result in the imposition of a sentence more severe than his originally sentence. Peltier v. State, 2003 ND 27, 657 N.W.2d 238, 2003 N.D. LEXIS 38 (N.D. 2003).

The supreme court has long held that this section allows a trial court to impose a harsher sentence upon revocation of probation and, therefore, it was not error for a trial court to order a defendant to serve some of the remaining portions of his prison sentences consecutively to each other upon revocation even though the original plea agreement required that all sentences be imposed concurrently. Peltier v. State, 2003 ND 27, 657 N.W.2d 238, 2003 N.D. LEXIS 38 (N.D. 2003).

Credit previously granted against all of defendant’s four concurrent sentences was not required to be granted against each of his newly-imposed consecutive sentences, imposed following revocation of his probation pursuant to N.D.C.C. § 12.1-32-07(6). The trial court’s grant of a credit against only one of the consecutive sentences was not illegal under N.D.R.Crim.P. 35(a). State v. Neva, 2009 ND 127, 767 N.W.2d 879, 2009 N.D. LEXIS 123 (N.D. 2009).

—Double Jeopardy on Resentencing.

Because subsection 4 of this section (now subsection 6) gave defendant notice that violation of the conditions of his probation could result in the imposition of a harsher sentence upon revocation of his probation, defendant had no legitimate expectation in the finality of his sentence and the district court’s imposition of a harsher sentence upon revocation of probation was not prohibited by the double jeopardy clause. State v. Gefroh, 458 N.W.2d 479, 1990 N.D. LEXIS 143 (N.D. 1990), overruled, Dubois v. State, 2021 ND 153, 963 N.W.2d 543, 2021 N.D. LEXIS 158 (N.D. 2021).

The trial court’s decision to resentence defendant to twenty years did not subject him to multiple punishments for the same offense, and accordingly, the trial court did not violate defendant’s double jeopardy rights given that a sentence which includes probation is not final and resentencing a defendant to a harsher sentence reflects the trial court’s need to alter a defendant’s sentence in light of the fact that its initial sentence of probation was not effective. Davis v. State, 2001 ND 85, 625 N.W.2d 855, 2001 N.D. LEXIS 97 (N.D. 2001).

District court’s new sentence of five years’ imprisonment was not illegal because the district court was allowed impose any sentence available at the initial time of sentencing upon revocation of probation; and a sentence which included probation was not final. State v. Dubois, 2019 ND 284, 936 N.W.2d 380, 2019 N.D. LEXIS 291 (N.D. 2019).

Defendant’s sentence was illegal because the court resentenced him to a duration exceeding the suspended sentence imposed in the judgment of conviction. State v. McGinnis, 2022 ND 46, 971 N.W.2d 380, 2022 N.D. LEXIS 46 (N.D. 2022).

Review.

The supreme court will review a trial court’s finding of a violation of probation under the clearly erroneous standard. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

While the standard of review of a probation revocation is an abuse of discretion, revocation proceedings encompass a two-step analysis which requires a bifurcated review on appeal: first, the supreme court must review the trial court’s factual determination that the defendant violated the terms of his probation, and then the trial court’s discretionary determination that the violation warrants revocation. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

Revocation.
—In General.

Trial courts have authority to revoke probation after termination, as long as the court acts with reasonable promptness. State v. Monson, 518 N.W.2d 171, 1994 N.D. LEXIS 134 (N.D. 1994).

—Delay in Revoking Probation.

It is appropriate for the state to await dispostion of criminal charges before initiating probation revocation proceedings. State v. Gefroh, 458 N.W.2d 479, 1990 N.D. LEXIS 143 (N.D. 1990), overruled, Dubois v. State, 2021 ND 153, 963 N.W.2d 543, 2021 N.D. LEXIS 158 (N.D. 2021).

—Standing to Challenge.

Contempt was not an available remedy for a burglary victim as he was not a party to the criminal prosecution and did not suffer an injury recognized by law as a result of the district court’s decision to terminate the accused’s probation; therefore, the victim did not have standing to challenge the district court’s order. The victim’s rights enunciated in N.D.C.C. ch. 12.1-34 did not give the victim standing under N.D.R.Crim.P. 35, the court’s inherent authority to correct fraud, or N.D.C.C. § 12.1-32-07(7) to contest the court’s order terminating the accused’s probation and dismissing the criminal action against him. State v. Leingang, 2009 ND 38, 763 N.W.2d 769, 2009 N.D. LEXIS 58 (N.D. 2009).

—Subsequent Probation.

Subsection 6 of this section does not prohibit revocation of subsequent probation if the defendant violates the conditions of probation while still incarcerated. State v. Bender, 1998 ND 72, 576 N.W.2d 210, 1998 N.D. LEXIS 76 (N.D. 1998).

In a case where defendant was convicted under N.D.C.C. § 12.1-20-03, an illegal sentence was imposed because defendant had served two probation periods authorized by N.D.C.C. § 12.1-32-06.1 prior to his 2012 resentencing due to a revocation, and a trial court was unable to impose a third period of probation. State v. Perales, 2012 ND 158, 820 N.W.2d 119, 2012 N.D. LEXIS 154 (N.D. 2012).

Plain language of N.D.C.C. § 12.1-32-07(6) provides a district court with the distinct alternatives of continuing existing probation or revoking probation and resentencing the defendant. Therefore, when the district court revokes probation and resentences a defendant, the existing probationary period ends and the district court may not order the defendant to complete the unserved portion of the existing probationary term. State v. Perales, 2012 ND 158, 820 N.W.2d 119, 2012 N.D. LEXIS 154 (N.D. 2012).

Violation of Probation.

Once a violation of a condition of probation is established, the trial court is authorized to revoke an order suspending a sentence or an order suspending the imposition of a sentence, or to continue probation on the same or different conditions. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

Where the probation officer testified that he requested the defendant to provide a urine sample for a drug test and gave him two opportunities to comply, but he did not comply with the first request and did not show up for a second appointment, the trial court’s finding that the defendant violated a condition of his probation by failing to submit to a drug test was not clearly erroneous. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

Defendant violated the terms of his probation by failing to make any restitution payments. State v. Gates, 540 N.W.2d 134, 1995 N.D. LEXIS 199 (N.D. 1995).

A probationer does not violate his or her conditions of probation for conduct committed prior to the imposition of sentence. Therefore, offense committed six months before imposition of probation sentence could not be used to revoke probation. State v. Ballensky, 1998 ND 197, 586 N.W.2d 163, 1998 N.D. LEXIS 216 (N.D. 1998).

—Burden of Establishing a Violation.

The prosecution has the burden of establishing a violation of probation by a preponderance of the evidence. State v. Saavedra, 406 N.W.2d 667, 1987 N.D. LEXIS 338 (N.D. 1987).

DECISIONS UNDER PRIOR LAW

Probation Revocation.

A person placed on probation under a suspended sentence could not be deprived of the liberty thus granted except in pursuance of pertinent statutes, and if unlawfully restrained of his liberty while on probation, he could invoke the writ of habeas corpus. State ex rel. Vadnais v. Stair, 48 N.D. 472, 185 N.W. 301, 1921 N.D. LEXIS 66 (N.D. 1921).

Collateral References.

Revocation: right to notice and hearing, 29 A.L.R.2d 1074.

Counsel: right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306.

Political activities: propriety of conditioning probation or suspended sentence on defendant’s refraining from political activity, protest, or the like, 45 A.L.R.3d 1022.

Good behavior: what constitutes “good behavior” within statute or judicial order expressly conditioning suspension of sentence thereon, 58 A.L.R.3d 1156.

Sentence: propriety, in imposing sentence for original offense after revocation of probation, of considering acts because of which probation was revoked, 65 A.L.R.3d 1100.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 A.L.R.4th 534.

Propriety of conditioning probation on defendant’s submission to drug testing, 87 A.L.R.4th 929.

Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges, 2 A.L.R.5th 262.

Who may institute proceedings to revoke probation, 21 A.L.R.5th 275.

Right and sufficiency of allocution in probation revocation proceeding, 70 A.L.R.5th 533.

Measure and Elements of Restitution to Which Victim is Entitled under State Criminal Statute — Payment for Installation of Alarm or Locks or Change of Locks Due to Burglary, Attempted Burglary, or Felonious Breaking and Entering. 44 A.L.R.6th 301.

Propriety, Measure, and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute — Cruelty to, Killing, or Abandonment of, Animals. 45 A.L.R.6th 435.

Propriety of Requirement, as Condition of Probation, That Defendant Refrain from Use of Intoxicants. 46 A.L.R.6th 241.

Law Reviews.

North Dakota Supreme Court Review (State v. Maurstad, 2002 ND 121, 647 N.W.2d 688), see 79 N.D. L. Rev. 589 (2003).

North Dakota Supreme Court Review (State v. Buchholz), 83 N.D. L. Rev. 1085 (2007).

Case Comment: Sentencing and Punishment - Sentencing Guidelines: The Sentencing Reform Act Precludes Courts from Lengthening a Prison Sentence Solely to Foster Offender Rehabilitation: Tapia v. United States, 131 S. Ct. 2382 (2011), see 87 N.D. L. Rev. 375 (2011).

12.1-32-07.1. Release, discharge, or termination of probation.

  1. Whenever a person has been placed on probation and in the judgment of the court that person has satisfactorily met the conditions of probation, the court shall cause to be issued to the person a final discharge from further supervision.
  2. Whenever a person has been placed on probation pursuant to subsection 4 of section 12.1-32-02, the court at any time, when the ends of justice will be served, and when reformation of the probationer warrants, may terminate the period of probation and discharge the person so held. A person convicted of gross sexual imposition under subdivision a of subsection 1 of section 12.1-20-03 is not entitled to early termination of probation pursuant to this section, unless the court finds after at least eight years of supervised probation that further supervision would impose a manifest injustice. Every defendant who has fulfilled the conditions of probation for the entire period, or who has been discharged from probation prior to termination of the probation period, may at any time be permitted in the discretion of the court to withdraw the defendant’s plea of guilty. The court may in its discretion set aside the verdict of guilty. In either case, the court may dismiss the information or indictment against the defendant. The court may, upon its own motion or upon application by the defendant and before dismissing the information or indictment, reduce to a misdemeanor a felony conviction for which the plea of guilty has been withdrawn or set aside. The defendant must then be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted except as provided by sections 12.1-32-15 and 62.1-02-01.

Source: S.L. 1989, ch. 158, § 5; 2007, ch. 123, § 5; 2015, ch. 116, § 3, effective August 1, 2015.

Notes to Decisions

Donative Intent.

District court erred in dismissing the criminal charges of theft of property and exploitation of a vulnerable adult against defendant after she used for herself more than $50,000 in funds her elderly mother deposited in a joint bank account which listed the mother as the “member” and defendant as a “joint owner” because the mother's donative intent to make an inter vivos gift was not a “unique” property law issue that affected anyone (the public in general) other than her and defendant and defendant's claim of a gift did no more than raise a factual question encompassed in the general issue of whether she was guilty of theft or exploitation of a vulnerable adult. State v. Conrad, 2017 ND 79, 892 N.W.2d 200, 2017 N.D. LEXIS 79 (N.D. 2017).

Effect of Dismissal of Deferred Imposition of Sentence.

District court erred in denying defendant’s motion to dismiss a charge for unlawful possession of drug paraphernalia as a class C felony second offense as he did not have a prior conviction for enhancement purposes because a deferred imposition of sentence for a prior charge for unlawful possession of drug paraphernalia resulted in a dismissal of that charge; and the State could not use the prior dismissed deferred imposition of sentence to enhance the charge against defendant. State v. Johns, 2019 ND 227, 932 N.W.2d 893, 2019 N.D. LEXIS 230 (N.D. 2019).

12.1-32-07.2. Records and filing of papers.

  1. Whenever the court orders that a person convicted of a felony is to be placed on probation, the clerk of the court in which the order is entered immediately shall make full copies of the judgment or order of the court with the conditions of probation and shall certify the same to the director of parole and probation of the department of corrections and rehabilitation. Upon the disposition of any criminal case, the clerk of court shall transmit to the department of corrections and rehabilitation statistical data, in accordance with rules adopted by the department, regarding all defendants whether found guilty or discharged.
  2. Whenever imposition of sentence is deferred and, pursuant to section 12.1-32-07.1, the plea of guilty is withdrawn by the defendant or the verdict of guilty is set aside by the court, the clerk of court shall file all papers, including the findings and final orders in proceedings under section 12.1-32-07.1, and shall note the date of filing on the papers. The records and papers are subject to examination by the clerk, a judge of the court, the juvenile commissioner, probation officers, the defendant or defendant’s counsel, and the state’s attorney. Others may examine the records and papers only upon the written order of a judge of the court.

Source: S.L. 1989, ch. 158, § 6; 1991, ch. 135, § 1.

12.1-32-07.3. When probationer deemed escapee and fugitive from justice.

A probationer is considered an escapee and a fugitive from justice if the probationer leaves the jurisdiction before the expiration of the probationary period without permission of the court or the department of corrections and rehabilitation.

Source: S.L. 1989, ch. 158. § 7; 1991, ch. 135, § 2.

12.1-32-07.4. Presumptive probation.

  1. The sentencing court shall sentence an individual who has pled guilty to, or has been found guilty of, a class C felony offense or class A misdemeanor offense to a term of probation at the time of initial sentencing, except for an offense involving domestic violence; an offense subject to registration under section 12.1-32-15; an offense involving a firearm or dangerous weapon, explosive, or incendiary device; or if a mandatory term of incarceration is required by law.
  2. The sentencing court may impose a sentence of imprisonment if the sentencing court finds there are aggravating factors present to justify a departure from presumptive probation. Aggravating factors include:
    1. That the individual has plead guilty to, or has been found guilty of, a felony offense or class A misdemeanor offense prior to the date of the commission of the offense or offenses charged in the complaint, information, or indictment;
    2. The age and vulnerability of the victim, whether the individual was in a position of responsibility or trust over the victim, or whether the individual abused a public position of responsibility or trust; or
    3. If the individual used threats or coercion in the commission of the offense.
  3. This section does not preclude the sentencing court from deferring imposition of sentence in accordance with subsection 4 of section 12.1-32-02 or sentencing an individual to a term of incarceration with credit for time spent in custody if execution of the sentence is suspended.

Source: S.L. 2017, ch. 108, § 9, effective January 1, 2018.

Notes to Decisions

Impermissible Sentencing Factor.

In a case in which defendant pled guilty to leaving the scene of an accident involving injury and aggravated reckless driving, defendant’s sentence was vacated and the case was remanded for resentencing as the district court substantially relied upon an impermissible factor in sentencing defendant to jail because the case did not implicate an offense involving domestic violence, sexual offender registration, or mandatory terms of incarceration; defendant was not charged with, nor did he plead guilty to, any offense involving a dangerous weapon; and the dangerous weapon exception to the presumptive probation statute did not apply in defendant’s case. State v. Christensen, 2019 ND 11, 921 N.W.2d 436, 2019 N.D. LEXIS 18 (N.D. 2019).

12.1-32-08. Hearing prior to ordering restitution, reparation, or reimbursement of indigent defense costs and expenses — Conditions — Collection of restitution for insufficient funds checks — Continuing appropriation.

  1. Before imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount of restitution. The court, when sentencing a person adjudged guilty of criminal activities that have resulted in pecuniary damages, in addition to any other sentence the court may impose, shall order that the defendant make restitution to the victim or other recipient as determined by the court. Restitution must include payment to the owner of real property that is contaminated by the defendant in the manufacturing of methamphetamine for the cost of removing the contamination and returning the property to the property’s condition before contamination and to any other person that has incurred costs in decontaminating the property. In determining the amount of restitution, the court shall take into account the reasonable damages sustained by the victim or victims of the criminal offense, which damages are limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action. This can include an amount equal to the cost of necessary and related professional services and devices relating to physical, psychiatric, and psychological care. The defendant may be required as part of the sentence imposed by the court to pay the prescribed treatment costs for a victim of a sexual offense as defined in chapters 12.1-20 and 12.1-27.2. The court shall fix the amount of restitution or reparation and shall fix the manner of performance of any condition or conditions of probation established pursuant to this subsection. The court shall order restitution be paid to the division of adult services for any benefits the division has paid or may pay under chapter 54-23.4 unless the court, on the record, directs otherwise. Any payments made pursuant to the order must be deducted from damages awarded in a civil action arising from the same incident. An order that a defendant make restitution or reparation as a sentence or condition of probation may, unless the court directs otherwise, be filed without filing fee, transcribed, and enforced by the person entitled to the restitution or reparation or by the division of adult services in the same manner as civil judgments rendered by the courts of this state may be enforced. Upon thirty days’ written notice to the victim’s last known address, the court may order the judgment imposing a duty to pay restitution or reparation be docketed in the same manner as a civil judgment under section 29-26-22.1.
  2. When the restitution ordered by the court under subsection 1 is the result of a finding that the defendant issued a check or draft without sufficient funds or without an account, the court shall impose as costs the greater of the sum of ten dollars or an amount equal to twenty-five percent of the amount of restitution ordered. The costs imposed under this subsection, however, may not exceed one thousand dollars. The state-employed clerks of district court shall remit the funds collected as costs under this subsection to the state treasurer for deposit in the restitution collection assistance fund. The funds deposited into the restitution collection assistance fund are appropriated to the judicial branch on a continuing basis for the purpose of defraying expenses incident to the collection of restitution, including operating expenses and the compensation of additional necessary personnel. The state’s attorneys and county-employed clerks of district court shall remit the funds collected as costs under this subsection to the county treasurer to be deposited in the county general fund.
  3. The court may order the defendant to perform reasonable assigned work as a condition of probation, which assigned work need not be related to the offense charged, but must not be solely for the benefit of a private individual other than the victim.
    1. Under section 12.1-32-07, the court may order that the defendant reimburse indigent defense costs and expenses as a condition of probation. Unless it finds that there is no likelihood that the defendant is or will be able to pay attorney’s fees and expenses, the court, in its judgment of conviction, and in any order or amended judgment following a revocation or other postjudgment proceeding, shall notify the defendant, the defendant’s probation officer, and the prosecuting attorney of the presumed amount of costs and expenses to be reimbursed, as determined by the commission on legal counsel for indigents, and of the right to a hearing on the reimbursement amount. The reimbursement amount must include an application fee imposed under section 29-07-01.1 if the fee has not been paid before disposition of the case and the court has not waived payment of the fee. If the defendant or prosecutor requests a hearing within thirty days of receiving notice under this subdivision, the court shall schedule a hearing at which the actual amount of attorney’s fees and expenses must be shown. In determining the amount and method of reimbursement, the court shall consider the financial resources of the defendant and the nature of the burden that reimbursement of costs and expenses will impose.
    2. A defendant who is required to reimburse indigent defense costs and expenses as a condition of probation and who is not willfully in default in that reimbursement may at any time petition the court that imposed the condition to waive reimbursement of all or any portion of the costs and expenses. If the court is satisfied that reimbursement of the amount due will impose undue hardship on the defendant or the defendant’s immediate family, the court may waive reimbursement of all or any portion of the amount due or modify the method of payment.
    3. If at any time the court finds that the defendant is able to reimburse costs and expenses and has willfully failed to do so, the court may continue, modify, or enlarge the conditions of probation or revoke probation as provided in subsection 6 or 7, as applicable, of section 12.1-32-07.
  4. If the court finds that the defendant is unable to pay a fine, supervision fee, reimbursement for indigent defense costs and expenses, or restitution or reparations, the court may order the defendant to perform reasonable assigned work in lieu of all or part of a fine, a supervision fee, reimbursement for indigent defense costs and expenses, or restitution or reparations. The defendant may not perform reasonable assigned work in lieu of restitution or reparations unless the person entitled to restitution or reparations has consented in writing or on the record.

Source: S.L. 1973, ch. 116, § 31; 1975, ch. 116, § 29; 1987, ch. 173, § 1; 1993, ch. 132, § 3; 1997, ch. 133, § 2; 1997, ch. 134, § 1; 2001, ch. 41, § 11; 2001, ch. 299, § 1; 2003, ch. 112, § 3; 2005, ch. 120, § 1; 2007, ch. 119, § 4; 2009, ch. 112, § 2; 2019, ch. 117, § 2, effective April 9, 2019; 2019, ch. 270, § 1, effective August 1, 2019.

Cross-References.

County and state offices performing restitution collection and enforcement activities, see N.D.C.C. § 11-16-01.1.

Notes to Decisions

Constitutionality.

N.D.C.C. § 12.1-32-08(1), which requires a court to take into account the ability of the defendant to pay restitution, is unconstitutional in part. State v. Strom, 2019 ND 9, 921 N.W.2d 660, 2019 N.D. LEXIS 20 (N.D. 2019).

Amount of Restitution.

In a case involving the misapplication of entrusted property, restitution was properly ordered under this section for checks that an estate received for its interest in an oil well because there was no evidence presented showing that a deposit made was an oil check or that the remaining checks were deposited into the estate's accounts; however, defendant should not have been ordered to pay restitution for stock proceeds because the undisputed evidence showed that they were deposited in the estate's bank accounts. A check allegedly paid for a weed spraying business was never cashed, and the funds remained in the estate's bank account; therefore, that amount should also not have been included in the restitution. State v. Gates, 2015 ND 177, 865 N.W.2d 816, 2015 N.D. LEXIS 188 (N.D. 2015), cert. denied, 577 U.S. 1075, 136 S. Ct. 819, 193 L. Ed. 2d 734, 2016 U.S. LEXIS 271 (U.S. 2016).

District court abused its discretion in failing to consider N.D.C.C. § 12.1-32-08(1)(b) when ordering restitution by sua sponte refusing to address factors found under § 12.1-32-08(1)(b), deeming it unnecessary under N.D. Const. art. I, § 25(1)(n), and not addressing whether defendant had the ability to pay even though he had raised the issue. State v. Blue, 2018 ND 171, 915 N.W.2d 122, 2018 N.D. LEXIS 159 (N.D. 2018).

Supreme Court concluded the district court did not abuse its discretion in fixing the amount of restitution without regard to defendant’s ability to pay. The Supreme Court resolved an irreconcilable conflict between N.D. Const. art. I, § 25(1)(n), and N.D.C.D. § 12.1-32-08(1) by interpreting the constitutional amendment as implicitly repealing the conflicting portion of the statute. State v. Strom, 2019 ND 9, 921 N.W.2d 660, 2019 N.D. LEXIS 20 (N.D. 2019).

Clerical Error.

Amounts totaled $ 65,708.57 in restitution owed by defendant, based on the victims' testimony, and there was no explanation for why restitution was set $ 3,949.43 higher than that amount; this appeared to be a clerical error, which the district court could address on remand. State v. Nelson, 2015 ND 301, 872 N.W.2d 613, 2015 N.D. LEXIS 309 (N.D. 2015).

Damages.
—Causal Connection.

There must exist an immediate and intimate causal connection between the criminal conduct and the damages or expenses for which restitution is ordered. State v. Pippin, 496 N.W.2d 50, 1993 N.D. LEXIS 22 (N.D. 1993).

—Not Recoverable.

Where defendant was convicted of possession of stolen property, she could not be held liable to make restitution for the expenses incurred by the victims in repairing and cleaning their homes, or for damages attributable to unrecovered personal property or cash. State v. Pippin, 496 N.W.2d 50, 1993 N.D. LEXIS 22 (N.D. 1993).

Hearing Not Required.

A hearing under this section is not required where the issue of restitution or reparation has been voluntarily resolved between the state and defendant in a plea bargain. State v. Thorstad, 261 N.W.2d 899, 1978 N.D. LEXIS 201 (N.D.), cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404, 1978 U.S. LEXIS 1796 (U.S. 1978); State v. Jenson, 301 N.W.2d 646, 1981 N.D. LEXIS 264 (N.D. 1981).

In a case involving theft by deception, a district court was not required to conduct a restitution hearing to determine if defendant had the ability to pay since restitution payments were set forth specifically in a plea agreement; therefore, the district court did not err by revoking probation and imposing a one-year sentence when defendant failed to pay because defendant was presumed to have known about personal assets and liabilities upon entering into the agreement. State v. Nordahl, 2004 ND 106, 680 N.W.2d 247, 2004 N.D. LEXIS 209 (N.D. 2004).

Hearing Required.

Restitution hearing was required to be held prior to imposing restitution as a sentence where there was a dispute concerning the amount of restitution and whether or not the alleged damage to victim’s car occurred during defendant’s unauthorized use of the car. State v. Bergeron, 326 N.W.2d 684, 1982 N.D. LEXIS 390 (N.D. 1982).

Where the amount of restitution has not been resolved through plea bargaining, a restitution hearing must be held prior to imposing restitution as a part of a sentence. State v. Steinolfson, 483 N.W.2d 182, 1992 N.D. LEXIS 72 (N.D. 1992).

A restitution hearing is part of a sentencing, and a defendant has the right to be personally present at the hearing; where defendant was not present at the hearing at which restitution was ordered, the restitution order was properly revoked. State v. Kensmoe, 2001 ND 190, 636 N.W.2d 183, 2001 N.D. LEXIS 216 (N.D. 2001).

After assuring defendant that he would be given the opportunity to present his side of the case, the district court failed to do so, and thus the district court abused its discretion by cancelling the subsequent restitution hearing without giving defendant the opportunity to be heard. State v. Nelson, 2015 ND 301, 872 N.W.2d 613, 2015 N.D. LEXIS 309 (N.D. 2015).

Because defendant pled guilty with the understanding that the State had agreed to recommend a particular sentence, which included restitution, but the issue of restitution was not resolved by plea agreement, the only legal basis to award restitution was pursuant to this statute, which required a hearing before awarding restitution, and the district court failed to act within the limits set by this statute when it amended the criminal judgment to include restitution without holding a hearing on the factual basis for the amount of restitution and the causal relationship between the criminal acts and the restitution ordered. State v. Youngbird, 2021 ND 21, 955 N.W.2d 54, 2021 N.D. LEXIS 36 (N.D. 2021).

Increase of Restitution.

Amended judgment ordering defendant to pay over $10,000 in restitution was improper pursuant to N.D.C.C. § 12.1-32-08(1) because district courts were not permitted to order a sentence, then later increase the sentence. Therefore, the district court abused its discretion in ordering restitution and later increasing it, without previously reserving the issue. State v. Kaseman, 2008 ND 196, 756 N.W.2d 923, 2008 N.D. LEXIS 196 (N.D. 2008).

Multiple Defendants.

Trial court did not abuse its discretion by ordering defendant to pay all of the victim’s medical bills and funeral expenses in restitution, given his ability to pay and the limited income and assets of his co-defendant. State v. Bingaman, 2002 ND 210, 655 N.W.2d 57, 2002 N.D. LEXIS 274 (N.D. 2002).

Probation.

“Maximum periods” under N.D.C.C. § 12.1-32-06.1(5) means two probation periods and therefore, under N.D.C.C. § 12.1-32-06.1(2), a district court can impose only one additional period of probation not to exceed five years where a defendant has been ordered to pay restitution under N.D.C.C. § 12.1-32-08. State v. Stavig, 2006 ND 63, 711 N.W.2d 183, 2006 N.D. LEXIS 62 (N.D. 2006).

District court erred when it imposed a third period of probation on defendant and ordered him to pay restitution where defendant had been ordered to pay restitution and the court held that he had not made payments as requested by his probation officer. State v. Stavig, 2006 ND 63, 711 N.W.2d 183, 2006 N.D. LEXIS 62 (N.D. 2006).

Record of Hearing.

Failure to make a record of the restitution hearing entitles defendant to a new hearing. State v. Spiekermeier, 256 N.W.2d 877, 1977 N.D. LEXIS 144 (N.D. 1977).

Restitution Affirmed.

District court did not abuse its discretion when it determined the restitution amount, because the value of merchandise defendant returned was not completely excluded from consideration in the restitution award, when defendant was credited for $145 of saleable merchandise. State v. Gendron, 2008 ND 70, 747 N.W.2d 125, 2008 N.D. LEXIS 68 (N.D. 2008).

District court did not abuse its wide degree of discretion in ordering restitution because a defendant failed to raise and prove an inability to pay the restitution. State v. Moos, 2008 ND 228, 758 N.W.2d 674, 2008 N.D. LEXIS 213 (N.D. 2008).

District court did not err in ordering defendant to pay restitution to his father for an ankle injury where its implicit finding that defendant's assault directly resulted in the injury was supported by the evidence, and it properly placed little, if any weight on defendant's unsubstantiated speculation as to how the father broke his ankle during the altercation. State v. Clayton, 2016 ND 131, 881 N.W.2d 239, 2016 N.D. LEXIS 124 (N.D. 2016).

District court did not err in ordering defendant to pay $49,559 in restitution for the victim's medical expenses related to his aggravated assault conviction. The district court's finding of the amount of medical expenses incurred by the victim and its finding that these expenses were the direct result of defendant's criminal actions were supported by the evidence in the record. State v. Putney, 2016 ND 135, 881 N.W.2d 663, 2016 N.D. LEXIS 131 (N.D. 2016).

In a negligent homicide case, the victim's father actually incurred expenses from driving to and from the court proceedings as a direct result of defendant's criminal actions. Therefore, the district court did not abuse its discretion, under these circumstances, when ordering restitution for travel expenses. State v. Bruce, 2018 ND 45, 907 N.W.2d 773, 2018 N.D. LEXIS 64 (N.D. 2018).

Trial court did not err by imposing restitution for extradition costs in defendant’s gross sexual imposition case (GSI) because defendant pleaded guilty to both the GSI and the bail-jumping charges, he fled the country during and from the GSI prosecution, it was his act of fleeing that directly resulted in the bail-jumping charges and the cost to return him for trial, and the trial court’s jurisdiction over restitution in the bail-jumping case was continually held open. State v. Rogers, 2018 ND 244, 919 N.W.2d 193, 2018 N.D. LEXIS 252 (N.D. 2018).

District court properly required defendant to pay restitution to the victim’s insurer because the restitution statute and the state constitution could be harmonized where the Supreme Court of North Dakota had determined that insurance companies fell within the statutory definition of “other recipient,” and, even if it were to determine that the definition of “victim” contained the constitution was limited to individuals, that definition did not conflict with the legislature’s expansion of restitution to “other recipients.”State v. Hunt, 2019 ND 127, 927 N.W.2d 412, 2019 N.D. LEXIS 133 (N.D. 2019).

In a case in which defendant pled guilty to possession of a stolen motorcycle, and the motorcycle was returned physically damaged, the trial court did not err in ordering defendant to pay restitution because the damage to the motorcycle was directly related to the criminal offense, and it could reasonably be inferred that damage was caused during possession of the stolen property. State v. Walker, 2019 ND 292, 936 N.W.2d 45, 2019 N.D. LEXIS 297 (N.D. 2019), limited, State v. Harstad, 2020 ND 151, 945 N.W.2d 265, 2020 N.D. LEXIS 139 (N.D. 2020).

District court did not err in awarding $2,314.35 in restitution be paid to the victim for the damages to her car and for the stolen property because the victim was damaged as a direct result of defendant’s conduct of breaking into the victim’s car, and damaging the radio, speedometer glass, and HVAC controls; and the fact that the victim did not incur any actual expenses as she chose not to repair the damages or could not afford to repair the damages was not dispositive of whether she sustained damages and was entitled to restitution. Further, the fact that the victim received an insurance payout had no bearing on the district court’s award of restitution. State v. Pagenkopf, 2020 ND 33, 939 N.W.2d 2, 2020 N.D. LEXIS 36 (N.D. 2020).

Defendant’s acquittal of aggravated assault did not bar restitution because (1) defendant was only acquitted of causing a victim’s unconsciousness, and (2) defendant assault conviction was sufficient to support a restitution award. State v. McAllister, 2020 ND 48, 939 N.W.2d 502, 2020 N.D. LEXIS 45 (N.D. 2020).

Restitution Improper.

In a case in which defendant was convicted of possession of a stolen vehicle, but was not charged with the theft of the vehicle, the district court abused its discretion by ordering restitution for the unrecovered personal property that was in the vehicle at the time the vehicle was stolen, but was not in the vehicle seven days later when defendant was arrested for, and charged with, possession of the stolen vehicle, because there was no immediate and intimate causal connection between the criminal conduct and the loss of the personal property. State v. Harstad, 2020 ND 151, 945 N.W.2d 265, 2020 N.D. LEXIS 139 (N.D. 2020).

Restitution Mandatory.

This section makes the ordering of restitution mandatory; the trial court is obligated to order restitution even when a victim or other recipient does not specifically request restitution. State v. Vick, 1998 ND 214, 587 N.W.2d 567, 1998 N.D. LEXIS 237 (N.D. 1998).

Trial court did not err in ordering restitution to insurer for amount of property damage claim paid to repair stolen vehicle even though insurer did not request restitution and did not appear at the restitution hearing. State v. Vick, 1998 ND 214, 587 N.W.2d 567, 1998 N.D. LEXIS 237 (N.D. 1998).

N.D.C.C. § 12.1-32-08 made the ordering of restitution mandatory and in accordance with N.D.C.C. § 12.1-32-08, the trial court reserved the right to amend defendant’s criminal judgment to include restitution and did so after notice and hearing. State v. Hatlewick, 2005 ND 125, 700 N.W.2d 717, 2005 N.D. LEXIS 164 (N.D. 2005).

Restitution Proper.

District court properly granted the State’s motion for a continuance to continue to provide factual information and imposed restitution on defendant for assaulting two correctional officers because the district court provided a reasoned explanation for why it granted the State’s motion for a continuance, the officers’ testimony plus a video of the event provided sufficient evidence for the jury to infer guilt that defendant willfully caused bodily injury to the officers and knew they were acting in an official capacity, they were treated for the type of injuries defendant was convicted of causing, and the district court received sufficient evidence to infer defendant’s criminal conduct directly resulted in the injuries. State v. McGowen, 2020 ND 127, 943 N.W.2d 817, 2020 N.D. LEXIS 111 (N.D. 2020).

Standard of Review.

Appellate review of a trial court’s order of restitution is confined to whether the trial court acted within the limits prescribed by the statute; this standard of review in a similar context has been called the abuse of discretion standard. State v. Vick, 1998 ND 214, 587 N.W.2d 567, 1998 N.D. LEXIS 237 (N.D. 1998).

District court, which found defendant guilty of improper disposal of refuse, did not err in holding another restitution hearing on remand, as the Supreme Court left it to the district court's discretion whether to take additional evidence. City of Napoleon v. Kuhn, 2016 ND 150, 882 N.W.2d 301, 2016 N.D. LEXIS 143 (N.D. 2016).

In a receiving stolen property case, the restitution award included both the full retail price of stolen tires and return of the tires to the tire store. The district court abused its discretion in awarding monetary restitution of the full retail price in addition to return of the stolen tires. State v. Michel, 2020 ND 101, 942 N.W.2d 472, 2020 N.D. LEXIS 102 (N.D. 2020).

Standing.

Contempt was not an available remedy for a burglary victim as he was entitled to enforce the restitution order in the same manner as a civil judgment under N.D.C.C. § 12.1-32-08(1); as he was not a party to the criminal action, he did not have standing to challenge the court’s order terminating the accused’s probation and dismissing the criminal action against the accused. State v. Leingang, 2009 ND 38, 763 N.W.2d 769, 2009 N.D. LEXIS 58 (N.D. 2009).

Statutory Limits.

There was no assertion that defendant's possessing stolen rifles, ammunition, and tools, by itself, resulted in failure to recover the other items, an impounded vehicle, lawn chairs being left at the burglarized home, or damage to a trailer. Accordingly, the district court exceeded the statutory limits on restitution awards in ordering restitution for those damages. State v. Carson, 2017 ND 196, 900 N.W.2d 41, 2017 N.D. LEXIS 190 (N.D. 2017).

Collateral References.

Propriety of condition of probation which requires defendant convicted of crime of violence to make reparation to injured victim, 79 A.L.R.3d 976.

Persons or entities entitled to restitution as “victim” under state criminal restitution statute, 92 A.L.R.5th 35.

Measure and Elements of Restitution to Which Victim is Entitled under State Criminal Statute — Payment for Installation of Alarm or Locks or Change of Locks Due to Burglary, Attempted Burglary, or Felonious Breaking and Entering. 44 A.L.R.6th 301.

Propriety, Measure, and Elements of Restitution to Which Victim is Entitled Under State Criminal Statute — Cruelty to, Killing, or Abandonment of, Animals. 45 A.L.R.6th 435.

Mandatory Victims Restitution Act — Measure and Elements of Restitution to Which Victim is Entitled. 51 A.L.R. Fed 2d 169.

12.1-32-09. Dangerous special offenders — Habitual offenders — Extended sentences — Procedure.

  1. A court may sentence a convicted offender to an extended sentence as a dangerous special offender or a habitual offender in accordance with this section upon a finding of any one or more of the following:
    1. The convicted offender is a dangerous, mentally abnormal person whose conduct has been characterized by persistent aggressive behavior and the behavior makes the offender a serious danger to other persons.
    2. The convicted offender is a professional criminal who has substantial income or resources derived from criminal activity.
    3. The convicted offender is a habitual offender. The court may not make such a finding unless the offender is an adult and has previously been convicted in any state or states or by the United States of two felonies of class C or above committed at different times when the offender was an adult. For the purposes of this subdivision, a felony conviction in another state or under the laws of the United States is considered a felony of class C or above if it is punishable by a maximum term of imprisonment of five years or more.
    4. The offender was convicted of an offense that seriously endangered the life of another person and the offender had previously been convicted of a similar offense.
    5. The offender is especially dangerous because the offender used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight therefrom.
  2. The extended sentence may be imposed in the following manner:
    1. If the offense for which the offender is convicted is a class A felony, the court may impose a sentence up to a maximum of life imprisonment.
    2. If the offense for which the offender is convicted is a class B felony, the court may impose a sentence up to a maximum of imprisonment for twenty years.
    3. If the offense for which the offender is convicted is a class C felony, the court may impose a sentence up to a maximum of imprisonment for ten years.
  3. Whenever an attorney charged with the prosecution of a defendant in a court of this state for an alleged felony committed when the defendant was over the age of eighteen years has reason to believe that the defendant is a dangerous special offender or a habitual offender, the attorney, at a reasonable time before trial or acceptance by the court of a plea of guilty, may sign and file with the court, and may amend, a notice specifying that the defendant is a dangerous special offender or a habitual offender who upon conviction for the felony is subject to the imposition of a sentence under subsection 2, and setting out with particularity the reasons why the attorney believes the defendant to be a dangerous special offender or a habitual offender. In no case may the fact that the prosecuting attorney is seeking sentencing of the defendant as a dangerous special offender or a habitual offender be disclosed to the jury before a verdict. If the court finds that the filing of the notice as a public record may prejudice fair consideration of a pending criminal matter, the court may order the notice sealed and the notice is not subject to subpoena or public inspection during the pendency of the criminal matter, except on order of the court, but is subject to inspection by the defendant alleged to be a dangerous special offender or a habitual offender and the offender’s counsel.
  4. Upon any plea of guilty, or verdict or finding of guilt of the defendant of such felony, a hearing must be held, before sentence is imposed, in accordance with this subsection as follows:
    1. By a jury, or the court if a jury is waived by the defendant, if the notice alleges that the defendant is a dangerous special offender under subdivision a, b, d, or e of subsection 1. The jury, or the court if a jury is waived, must find that the defendant is a dangerous special offender under one or more of these subdivisions by proof beyond a reasonable doubt. However, in the case of a notice alleging only subdivision e of subsection 1, the trial jury, or the trial court if a jury is waived, may make a special finding of proof of this subdivision without an additional hearing subsequent to a verdict or finding of guilt.
    2. By the court if the notice alleges that the defendant is a habitual offender under subdivision c of subsection 1. The court must find that the defendant is a habitual offender by a preponderance of the evidence.
  5. Except in the most extraordinary cases, the court shall obtain a presentence report and may receive a diagnostic testing report under subsection 5 of section 12.1-32-02 before holding a hearing under this subsection. The court shall fix a time for the hearing and notice thereof must be given to the defendant and the prosecution at least five days prior thereto. The court shall permit the prosecution and counsel for the defendant, or the defendant if the defendant is not represented by counsel, to inspect the presentence report sufficiently before the hearing as to afford a reasonable opportunity for verification. In extraordinary cases, the court may withhold material not relevant to a proper sentence, diagnostic opinion that might seriously disrupt a program of rehabilitation, any source of information obtained on a promise of confidentiality, and material previously disclosed in open court. A court withholding all or part of a presentence report shall inform the parties of its action and place in the record the reasons therefor. The court may require parties inspecting all or part of a presentence report to give notice of any part thereof intended to be controverted. In connection with the hearing, the defendant is entitled to compulsory process and cross-examination of such witnesses as appear at the hearing. A duly authenticated copy of a former judgment or commitment is prima facie evidence of such former judgment or commitment. If the jury or the court finds, after hearing, one or more of the grounds set forth in subsection 1, that the defendant is a dangerous special offender or a habitual offender, the court shall sentence the defendant to imprisonment for an appropriate term within the limits specified in subsection 2.

A conviction shown on direct or collateral review or at the hearing to be invalid or for which the offender has been pardoned on the ground of innocence must be disregarded for purposes of subdivision c. In support of findings under subdivision b, it may be shown that the offender has had control of income or property not explained as derived from a source other than criminal activity. For purposes of subdivision b, a substantial source of income means a source of income which for any period of one year or more exceeds the minimum wage, determined on the basis of a forty-hour week and a fifty-week year, without reference to exceptions, under section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended, for an employee engaged in commerce or in the production of goods for commerce, and which for the same period exceeds fifty percent of the offender’s declared adjusted gross income under chapter 57-38.

Source: S.L. 1973, ch. 116, § 31; 1975, ch. 116, § 30; 1977, ch. 128, § 1; 1989, ch. 158, § 8; 1995, ch. 136, § 4; 2001, ch. 214, § 1.

Note.

Section 6(a)(1) of the Fair Labor Standards Act of 1938 referenced above is compiled at 29 USCS § 206(a)(1).

Notes to Decisions

Constitutionality.

Establishment of different categories of dangerous special offenders does not violate due process or equal protection requirements, and procedure provided to prosecutor does not amount to an unconstitutional delegation of legislative authority. State v. Ternes, 259 N.W.2d 296, 1977 N.D. LEXIS 211 (N.D. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1524, 55 L. Ed. 2d 540, 1978 U.S. LEXIS 1280 (U.S. 1978).

Terms “mentally abnormal” and “persistent aggressive behavior” are not unconstitutionally vague, nor is this section unconstitutional on basis of not providing ascertainable standards of guilt. State v. Wells, 265 N.W.2d 239, 1978 N.D. LEXIS 245 (N.D. 1978).

This section does not constitute an unconstitutional delegation of legislative authority to executive branch. State v. Olson, 274 N.W.2d 190, 1978 N.D. LEXIS 194 (N.D. 1978).

Terms “mentally abnormal”, “persistent aggressive behavior”, and “dangerous” in subdivision 1a are not unconstitutionally vague. State v. Wells, 276 N.W.2d 679 (N.D. 1979), cert. denied, 442 U.S. 932, 99 S. Ct. 2865, 61 L. Ed. 2d 300 (1979), but see State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002).

This section did not constitute a special or local law in violation of former N.D. Const., Art. IV, § 43 (now repealed). State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

This section was not unconstitutional as an ex post facto law when applied to a defendant who committed offenses before effective date of this section and who was tried and convicted after effective date. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

As the defendant’s prosecution came within the exception of N.D.C.C. § 12.1-01-01(3)(b) and he had asked to be sentenced under the new criminal code, he had waived his argument that the dangerous special offender statute as applied to him operated as an unconstitutional ex post facto law. State v. Jensen, 429 N.W.2d 445, 1988 N.D. LEXIS 257 (N.D. 1988).

Defendant was not denied due process when trial judge knew of State’s intent to prosecute him as an habitual offender; this section is intended to keep such information from the jury, but contains no language prohibiting the trial judge from learning of State’s intent, and furthermore, the court specifically sentenced defendant without regard to whether he was an habitual offender. State v. Syvertson, 1999 ND 137, 597 N.W.2d 644, 1999 N.D. LEXIS 157 (N.D.), cert. denied, 528 U.S. 956, 120 S. Ct. 383, 145 L. Ed. 2d 299, 1999 U.S. LEXIS 7008 (U.S. 1999).

Amendment of Notice to Seek Extended Sentence.

Where state had informed defendant prior to his guilty plea that it intended to seek an extended sentence pursuant to this section based upon a belief that defendant was a dangerous, mentally abnormal person, and such extended sentence was granted by sentencing court but was remanded upon appeal due to state’s failure to set out with particularity in its notice to seek extended sentence its reasons for believing defendant a dangerous, mentally abnormal person, notice was not so defective as to violate constitutional due process requirement that defendant be given notice of potential sentence before pleading, and state was entitled to amend its notice upon remand to cure defect in original notice. State v. Wells, 276 N.W.2d 679 (N.D. 1979), cert. denied, 442 U.S. 932, 99 S. Ct. 2865, 61 L. Ed. 2d 300 (1979), but see State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002).

Categories of Special Offenders.

This statute establishes four categories of special offenders (former subdivisions 1a to 1f; now see subdivisions 1a to 1e) who may be shown to be dangerous and one category of special offenders (former subdivision 1e covering those who used a firearm, dangerous weapon or destructive device; now see subdivision 1f) who are, per se, dangerous. State v. Ternes, 259 N.W.2d 296, 1977 N.D. LEXIS 211 (N.D. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1524, 55 L. Ed. 2d 540, 1978 U.S. LEXIS 1280 (U.S. 1978); State v. Wells, 265 N.W.2d 239, 1978 N.D. LEXIS 245 (N.D. 1978).

Combining Dangerous Special Offender and Sentencing Hearings.

This section does not require dangerous special offender hearing and sentencing hearing to be two distinct and separate hearings and, therefore, combining hearings into one proceeding is not error. State v. Jensen, 333 N.W.2d 686, 1983 N.D. LEXIS 269 (N.D. 1983).

Under this section, it is permissible for the trial court to combine the dangerous special offender hearing and the sentencing hearing into one proceeding. State v. Hoffarth, 456 N.W.2d 111, 1990 N.D. LEXIS 112 (N.D. 1990).

Where the trial court was informed by presentence report and by testimony given at change-of-plea hearing that defendant used a firearm in committing crimes, it was unnecessary for the trial court to require the prosecution to repeat that evidence at the dangerous special offender hearing. State v. Hoffarth, 456 N.W.2d 111, 1990 N.D. LEXIS 112 (N.D. 1990).

Compliance.

In a post-conviction relief case, an appellate court was unable to review findings of fact under the clearly erroneous standard in N.D.R.Civ.P. 52(a) because the trial court did not mention the State’s alleged failure to comply with the requirements of N.D.C.C. § 12.1-32-09, and it failed to address the effectiveness of counsel relating to such. Kruckenberg v. State, 2012 ND 162, 820 N.W.2d 314, 2012 N.D. LEXIS 166 (N.D. 2012).

Construction.

This section does not create a new crime but only provides for an increase in the penalty for offense of which defendant was convicted. State v. Wells, 265 N.W.2d 239, 1978 N.D. LEXIS 245 (N.D. 1978).

Under the Court’s previous decisions, it was clear that the only predicate fact necessary to enhance a penalty under subsection (1)(e) was that the defendant committed a crime using a firearm, dangerous weapon, or destructive device; therefore, where defendant conceded his use of a firearm to kill his wife’s lover, trial court’s failure to have the jury find the predicate fact that defendant used a firearm beyond a reasonable doubt to do so was harmless error beyond a reasonable doubt. Clark v. State, 2001 ND 9, 621 N.W.2d 576, 2001 N.D. LEXIS 15 (N.D.), cert. denied, 532 U.S. 1043, 121 S. Ct. 2010, 149 L. Ed. 2d 1011, 2001 U.S. LEXIS 3934 (U.S. 2001).

Only predicate fact upon which defendant’s sentence was enhanced under the special dangerous offender statute was that defendant used a dangerous weapon to kill the victim, a fact that was never in dispute; thus, the failure to retroactively apply the Apprendi doctrine to defendant’s case, if error, was harmless error and defendant’s application for post-conviction relief was properly denied. Greybull v. State, 2004 ND 116, 680 N.W.2d 254, 2004 N.D. LEXIS 200 (N.D. 2004).

Two things that are “equivalent” have more characteristics in common than two things that are “similar”; the difference is one of degree, and the resemblance need not be as strong for two offenses to be similar as for two offenses to be equivalent. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

Dangerous Special Offender Designation.

Supreme court was not persuaded by plaintiff’s unsupported assertion that the trial court could not designate him as a dangerous special offender solely because his sentence could not be extended; if there was any error in doing so, it had no foreseeable legal effect. State v. Ash, 526 N.W.2d 473, 1995 N.D. LEXIS 5 (N.D. 1995).

District court abused its discretion by misapplying or misinterpreting the law when it sentenced defendant for conspiracy to commit kidnapping as a dangerous special offender because his previous child abuse offense was not a similar offense in terms of its elements or its underlying conduct; in the child abuse offense, defendant injured his infant son, but his conduct in the conspiracy to commit kidnapping offense did not cause physical injury to the victim’s baby. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

Comparison of the statutory elements does not support a finding that a child abuse offense is similar to a kidnapping offense since the child abuse statute requires that a defendant inflict harm on the victim and cause some form of injury and also requires that the victim be a child; the kidnapping statute requires none of these elements but requires an abduction and an interference with a governmental or political function, and the child abuse statute requires neither of these. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

As the courts do when considering whether offenses are equivalent, to determine whether two offenses are similar, the courts examine both the elements of the two statutes and, if necessary, also the facts underlying each conviction; because similar assaultive conduct may for a variety of reasons result in charges for disorderly conduct, simple assault, aggravated assault, or attempted murder, a simple comparison of statutes may be insufficient to determine whether two offenses are similar. State v. Hoehn, 2019 ND 222, 932 N.W.2d 553, 2019 N.D. LEXIS 225 (N.D. 2019).

Although the district court amended the judgment within 14 days of the State’s motion, any error in doing so was harmless because amending the judgment to correct count 2 to indicate defendant was sentenced as a dangerous special offender did not change the sentence and did not affect his substantial rights as the jury found he used a firearm and the court stated at the sentencing hearing that he was being sentenced as a dangerous special offender. State v. Yoney, 2020 ND 118, 943 N.W.2d 791, 2020 N.D. LEXIS 126 (N.D. 2020).

Finding of Dangerous.

A separate finding of dangerous is required only when defendant is to be sentenced as a dangerous special offender by being a dangerous, mentally abnormal person under subdivision 1a; subdivisions 1b through 1d do not require a finding of dangerous, and under subdivision 1e dangerous element is per se implied upon a showing that defendant used a firearm. State v. Wells, 276 N.W.2d 679 (N.D. 1979), cert. denied, 442 U.S. 932, 99 S. Ct. 2865, 61 L. Ed. 2d 300 (1979), but see State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002).

Habitual Offender Designation.

Trial court’s finding that defendant convicted of two counts of gross sexual imposition had previously been convicted of two felonies of Class C or above, at different times, when he was adult, supported the enhanced sentence of a total of 30 years in prison, and any error by the court in relying on the defendant’s pretrial psychiatric evaluation was harmless beyond a reasonable doubt. State v. Syvertson, 1999 ND 134, 597 N.W.2d 652, 1999 N.D. LEXIS 154 (N.D.), cert. denied, 528 U.S. 954, 120 S. Ct. 380, 145 L. Ed. 2d 297, 1999 U.S. LEXIS 6991 (U.S. 1999).

It was no error to sentence defendant as an habitual offender because a prior felony, deemed a misdemeanor under former N.D.C.C. § 12.1-32-02(9) when defendant was sentenced to less than one year in prison and probation, was deemed a felony when probation was revoked, which the court properly judicially noticed. Ratliff v. State, 2016 ND 129, 881 N.W.2d 233, 2016 N.D. LEXIS 133 (N.D. 2016).

District court properly dismissed defendant's application for postconviction relief because he did not establish that his trial counsel was ineffective where counsel could not be held responsible for something of which he had no knowledge, his chances of prevailing on a severance motion were slim where the codefendants did not testify against defendant, defendant's argument about the jury receiving an audio recording that was not received in evidence was determined in a previous proceeding, defendant did not identify what an objection to a jury instruction should have been or how it misstated the law, and the State only promised to forego the pursuit of habitual offender status if defendant entered into a written plea agreement. Ratliff v. State, 2016 ND 149, 882 N.W.2d 716, 2016 N.D. LEXIS 148 (N.D. 2016).

District court did not abuse its discretion by sentencing defendant as an habitual offender because, although defendant argued that his prior out-of-state convictions were misdemeanors for the purpose of determining whether he was an habitual offender, defendant’s prior convictions had potential punishable sentences of at least five years, and were considered felonies under the habitual offender statute. State v. Maines, 2019 ND 274, 935 N.W.2d 665, 2019 N.D. LEXIS 274 (N.D. 2019).

Notice by Prosecutor.
—In General.

In a notice alleging that defendant is especially dangerous because he used a firearm in commission of offense, it is not required that prosecutor set out with particularity reasons he believes defendant to be a dangerous special offender. State v. Ternes, 259 N.W.2d 296 (N.D. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1524, 55 L. Ed. 2d 540 (1978), explained, State v. Wells, 265 N.W.2d 239, 1978 N.D. LEXIS 245 (N.D. 1978).

District court properly denied defendant's motion to correct an illegal sentence because the sentence was not illegal where defendant had knowledge of the State's intent to seek the habitual offender sentence enhancement nine days before the hearing, but did not object to the enhancement at the hearing, and did not dispute that the previous convictions existed, or that they qualified for habitual offender status, defendant did not show that the sentence was in excess of the statutory parameters or that the convictions relied on by the State were not valid convictions and, by voluntarily pleading guilty, he waived any procedural defects in applying the enhancement for habitual offenders. State v. Booth, 2015 ND 59, 861 N.W.2d 160, 2015 N.D. LEXIS 65 (N.D. 2015).

—Insufficient.

Notice did not satisfy requirement of setting out with particularity reasons why state’s attorney believed defendant to be a dangerous special offender where only reasons given in notice were that defendant was over age of eighteen years when he committed offense of murder, that he was a dangerous, mentally abnormal person, and that he committed offense in a manner indicating lack of regard for value of human life. State v. Wells, 265 N.W.2d 239, 1978 N.D. LEXIS 245 (N.D. 1978).

Defendant’s enhanced sentence for endangering by fire or explosion was improper because the one-day notice given by the State of its intention to seek a habitual offender sentence enhancement under N.D.C.C. § 12.1-32-09(3) prejudiced both defendant and the trial court; the notice was not given at a reasonable time before trial. State v. Carpenter, 2011 ND 20, 793 N.W.2d 765, 2011 N.D. LEXIS 33 (N.D. 2011).

—Requirements.

State is required in its notice of intent to seek an extended sentence to set out with particularity reasons it believes defendant is dangerous when an extended sentence is sought on basis of defendant being a dangerous, mentally abnormal person under subdivision 1a; state is not required to set forth in its notice reasons it believes defendant is dangerous when extended sentence is sought on grounds under subdivisions 1b through 1e, or even that it believes defendant is dangerous when sought on grounds under subdivisions 1b through 1d. State v. Wells, 276 N.W.2d 679 (N.D. 1979), cert. denied, 442 U.S. 932, 99 S. Ct. 2865, 61 L. Ed. 2d 300 (1979), but see State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002).

Notice of Effect of Designation.

Defendant was not entitled to new trial because trial court failed to inform defendant about consequences of designation as a special dangerous offender. State v. Greybull, 1998 ND 102, 579 N.W.2d 161, 1998 N.D. LEXIS 109 (N.D. 1998).

Prejudice.

Where local newspaper reported that the State had filed a notice to seek an enhanced sentence under this section after the trial court ordered the notice sealed but the defendant made no showing that the jury had knowledge of or was prejudiced by the newspaper disclosure, the trial court did not err in sentencing the defendant under this section. State v. Syvertson, 1999 ND 134, 597 N.W.2d 652, 1999 N.D. LEXIS 154 (N.D.), cert. denied, 528 U.S. 954, 120 S. Ct. 380, 145 L. Ed. 2d 297, 1999 U.S. LEXIS 6991 (U.S. 1999).

Presentence and Psychiatric Reports.

This section does not require a presentence or psychiatric report to include defendant’s behavior between time of conviction and a sentencing hearing held upon remand after appeal of original sentence; in such cases, it is within discretion of sentencing court whether presentence or psychiatric reports should be extended to cover intervening time period. State v. Wells, 276 N.W.2d 679 (N.D. 1979), cert. denied, 442 U.S. 932, 99 S. Ct. 2865, 61 L. Ed. 2d 300 (1979), but see State v. Maurstad, 2002 ND 121, 647 N.W.2d 688, 2002 N.D. LEXIS 145 (N.D. 2002).

Procedural Requirements.

When dangerous special offender statute is invoked, procedural requirements in addition to those applying to all sentencing must be met; these include notice in advance to defendant that statute will be invoked, setting out with particularity of reasons defendant is believed to be a dangerous special offender, a sentencing hearing, a presentence report except in extraordinary cases, five days’ advance notice of hearing date, right to inspect presentence report and an opportunity to verify statements made in it except in extraordinary cases and right to compulsory process and cross-examination of witnesses produced by prosecution; these rights are in addition to rights of all persons being sentenced. State v. Wells, 265 N.W.2d 239, 1978 N.D. LEXIS 245 (N.D. 1978).

Rights of Defendant.

Defendant at dangerous special offender hearing is entitled to statutory rights provided in this section but not to constitutional rights of trial by jury, confrontation of witnesses, or right to have only evidence admissible at trial considered. State v. Wells, 265 N.W.2d 239, 1978 N.D. LEXIS 245 (N.D. 1978).

Sentence Enhancement.

Trial court did not abuse its discretion in denying defendant’s request to deviate from a plea agreement because the trial court considered defendant’s criminal history, the commission of new offenses, and defendant’s apparent inability to follow the law. The sentence was appropriate because the trial court followed the parties’ agreement, and the trial court did not enhance defendant’s sentence. State v. Henes, 2009 ND 42, 763 N.W.2d 502, 2009 N.D. LEXIS 51 (N.D. 2009).

District court erred in sentencing defendant to life in prison because his sentence for attempted murder exceeded the statutory maximum sentence allowed for a class A felony and was illegal where, while the State gave notice it was requesting defendant be sentenced as a habitual offender and the court subsequently entered an amended judgment stating defendant was a habitual offender, he was not originally sentenced as a habitual offender. State v. Lyon, 2019 ND 21, 921 N.W.2d 441, 2019 N.D. LEXIS 3 (N.D. 2019).

DECISIONS UNDER PRIOR LAW

Form of Information.

It was not contemplated that the fact of former convictions should be set forth in the information charging the commission of the crime for which the increased punishment was sought to be invoked. Ryan v. Nygaard, 70 N.D. 687, 297 N.W. 694, 1941 N.D. LEXIS 218 (N.D. 1941).

The imposition of a life sentence was within the jurisdiction and power of the trial court in a prosecution for first degree rape wherein an information had been filed giving the court jurisdiction under the Habitual Criminal Act. Davidson v. Nygaard, 78 N.D. 141, 48 N.W.2d 578, 1951 N.D. LEXIS 80 (N.D. 1951).

Where every material fact and essential ingredient of a prior convictions charge was stated in the body of the information, it was immaterial whether or not the charge was properly named in the caption or formal parts thereof. Davidson v. Nygaard, 78 N.D. 141, 48 N.W.2d 578, 1951 N.D. LEXIS 80 (N.D. 1951).

Jurisdiction.

A district court had jurisdiction of a prosecution for prior convictions after a conviction for felony either before or after judgment and sentence, but before the judgment and sentence were fully executed. Ryan v. Nygaard, 70 N.D. 687, 297 N.W. 694, 1941 N.D. LEXIS 218 (N.D. 1941).

Maximum Penalty.

Former section simply increased the maximum penalty for conviction of two or more felonies, leaving the minimum penalty unchanged and thereby enlarging the field in which the court could exercise its discretion. State v. Malusky, 59 N.D. 501, 230 N.W. 735, 1930 N.D. LEXIS 169 (N.D. 1930).

Misdemeanors.

Where statute imposed penalty of imprisonment for not more than one year without specifying place of imprisonment and without classifying offense, offense is deemed a misdemeanor. Davis v. Riedman, 114 N.W.2d 881, 1962 N.D. LEXIS 71 (N.D. 1962).

Moral Turpitude.

In determining whether a statute providing increased punishment for subsequent felony convictions involving moral turpitude should apply in a case, the character of the offenses, not the penalty, determined moral turpitude. State v. Malusky, 59 N.D. 501, 230 N.W. 735, 1930 N.D. LEXIS 169 (N.D. 1930).

Collateral References.

Propriety of using single prior felony conviction as basis for offense of possessing weapon by convicted felon and to enhance sentence, 37 A.L.R.4th 1168.

Use of prior military conviction to establish repeat offender status, 11 A.L.R.5th 218.

Right of convicted defendant or prosecution to receive updated presentence report at sentencing proceedings, 22 A.L.R.5th 660.

Pardoned or expunged conviction as “prior offense” under state statute or regulation enhancing punishment for subsequent conviction, 97 A.L.R.5th 293.

Validity of Statutes Imposing Residency Restrictions on Registered Sex Offenders. 25 A.L.R.6th 227.

Law Reviews.

Summary of North Dakota Supreme Court decisions on Criminal Law — Murder, 71 N.D. L. Rev. 841 (1995).

Case Comment: Sentencing and Punishment — Cruel and Unusual Punishment: The United States Supreme Court Upholds California’s Three Strikes Law, Ruling the Law Does Not Violate the Eighth Amendment’s Prohibition on Cruel and Unusual Punishment, Ewing v. California, 123 S. Ct. 1179, 538 U.S. 11, 155 L. Ed. 2d 108 (2003), 80 N.D. L. Rev. 497 (2004).

North Dakota Supreme Court Review (Greybull v. State), 81 N.D. L. Rev. 585 (2005).

12.1-32-09.1. Sentencing of violent offenders.

  1. Except as provided under section 12-48.1-02 and pursuant to rules adopted by the department of corrections and rehabilitation, an offender who is convicted of a crime in violation of section 12.1-16-01, 12.1-16-02, subsection 2 of section 12.1-17-02, section 12.1-18-01, subdivision a of subsection 1 or subdivision b of subsection 2 of section 12.1-20-03, section 12.1-22-01, subdivision b of subsection 2 of section 12.1-22-02, or an attempt to commit the offenses, and who receives a sentence of imprisonment is not eligible for release from confinement on any basis until eighty-five percent of the sentence imposed by the court has been served or the sentence is commuted.
  2. In the case of an offender who is sentenced to a term of life imprisonment with opportunity for parole under subsection 1 of section 12.1-32-01, the term “sentence imposed” means the remaining life expectancy of the offender on the date of sentencing. The remaining life expectancy of the offender must be calculated on the date of sentencing, computed by reference to a recognized mortality table as established by rule by the supreme court.
  3. Notwithstanding this section, an offender sentenced under subsection 1 of section 12.1-32-01 may not be eligible for parole until the requirements of that subsection have been met.
  4. An offender who is convicted of a class C felony in violation of section 12.1-17-02, or an attempt to commit the offense, and who has received a sentence of imprisonment or a sentence of imprisonment upon revocation of probation before August 1, 2015, is eligible to have the offender’s sentence considered by the parole board.
  5. Notwithstanding subsection 4, this section does not apply to a sentence imposed upon revocation of probation.

Source: S.L. 1995, ch. 136, § 5; 1997, ch. 135, § 1; 2011, ch. 101, § 3; 2015, ch. 104, § 2, effective August 1, 2015; 2017, ch. 164, § 4, effective August 1, 2017; 2019, ch. 119, § 1, effective August 1, 2019.

Note.

Section 2 of chapter 119, S.L. 2019 provides, “ APPLICATION. This Act applies retroactively to judgments of conviction for offenses subject to section 12.1-32-09.1 entered after July 31, 1995.”

Notes to Decisions

Advice of Counsel.

Defendant did not receive ineffective assistance of counsel by virtue of the fact that counsel did not inform him, prior to entry of his pleas or admissions, that defendants convicted of aggravated assault had to serve 85 percent of their sentences pursuant to N.D.C.C. § 12.1-32-09.1 and that defendant was ineligible for placement at a particular facility. State v. Raulston, 2005 ND 212, 707 N.W.2d 464, 2005 N.D. LEXIS 267 (N.D. 2005).

District court improperly granted summary dismissal, pursuant to N.D.C.C. § 29-32.1-09(1), of a postconviction relief petitioner’s claim of ineffective assistance of counsel under U.S. Const. amend. VI, which claim was made on the ground that petitioner’s attorney did not inform petitioner that he would be required, pursuant to N.D.C.C. § 12.1-32-9.1, to serve 85 percent of his sentence, because petitioner raised issues of fact and was entitled to an evidentiary hearing on the issue of whether counsel’s performance fell below an objective standard of reasonableness and as to whether petitioner suffered prejudice therefrom. Sambursky v. State, 2006 ND 223, 723 N.W.2d 524, 2006 N.D. LEXIS 228 (N.D. 2006).

District court did not err in finding that the inmate’s trial counsel did not actively misinform him about the length of time he would serve in the state penitentiary under the plea agreement and that the evidence demonstrated that his trial counsel merely failed to inform the inmate of the 85 percent service requirement under N.D.C.C. § 12.1-32-09.1, and therefore the inmate was not entitled to postconviction relief. Counsel freely admitted to not knowing about the 85 percent service requirement and not advising the inmate about the rule; the inmate conceded that counsel informed him that he was not subject to any mandatory minimum sentence and that North Dakota had no parolee rights; counsel denied ever telling the inmate that he would serve less time than what was agreed to in the plea agreements and that he could serve up to 30 years under the second plea agreement. Sambursky v. State, 2008 ND 133, 751 N.W.2d 247, 2008 N.D. LEXIS 133 (N.D. 2008).

Defendant’s claim of ineffective assistance of counsel as to sentencing failed, because the rule requiring service of 85% of his sentence did not apply to all Class B felonies, the application was not obvious and counsel did not actively misinform defendant. State v. Peterson, 2019 ND 140, 927 N.W.2d 74, 2019 N.D. LEXIS 126 (N.D. 2019).

Sentence.

District court did not abuse its discretion in denying defendant's motion to correct his sentence because his sentence did not contain an arithmetical, technical, or other clear error to correct; while the statutes defining class B and C aggravated assault and requiring service of eighty-five percent of a sentence for specified offenses had been amended to remove the class C felony offense from the eighty-five percent service requirement, that did not constitute an "error" in sentence. State v. Myers, 2017 ND 265, 903 N.W.2d 520, 2017 N.D. LEXIS 266 (N.D. 2017).

Defendant’s sentence of life imprisonment with the possibility of parole did not illegally postpone defendant’s parole eligibility beyond 85% of defendant’s life expectancy at the time of sentencing because N.D.C.C. §§ 12.1-32-09.1 and 12.1-32-01(1), which were not ambiguous, could be harmonized by applying a floor of 30 years to serve, less any sentence reduction for good conduct, before defendant could be considered for parole, as defendant’s life expectancy at sentencing was less than 30 years, and the floor created by N.D.C.C. § 12.1-32-01(1) insured an offender with a life expectancy less than 30 years was not eligible for parole until a minimum 30 year period had run. State v. Comes, 2019 ND 290, 936 N.W.2d 114, 2019 N.D. LEXIS 298 (N.D. 2019).

District court erred in computing defendant’s life expectancy because the use of the 2017 life expectancy table was contrary to the administrative rules. State v. Eggleston, 2020 ND 68, 940 N.W.2d 645, 2020 N.D. LEXIS 59 (N.D. 2020).

Voluntariness of Guilty Plea.

Although the trial court could inform a defendant who is pleading guilty about the requirements of this section, the court is not required under N.D.R.Crim.P. 11 to advise him about the implications of the statute, and the court’s failure to advise him about the statute did not affect the voluntariness of the plea. State v. Magnuson, 1997 ND 228, 571 N.W.2d 642, 1997 N.D. LEXIS 277 (N.D. 1997).

District court was correct in determining that appellant’s guilty pleas were voluntary and intelligent. Although a district court was encouraged to inform a defendant of the N.D.C.C. § 12.1-32-09.1 requirement to serve 85 percent of his sentence, the court was not required to do so. State v. Raulston, 2005 ND 212, 707 N.W.2d 464, 2005 N.D. LEXIS 267 (N.D. 2005).

District court properly granted summary dismissal, pursuant to N.D.C.C. § 29-32.1-09(1), of a postconviction relief petitioner’s claim that his guilty plea was not knowingly and voluntarily made; although the district court did not inform petitioner that he would be required, pursuant to N.D.C.C. § 12.1-32-9.1, to serve 85 percent of his sentence, the 85 percent rule was imposed as a condition of parole and was not a mandatory minimum sentence requiring disclosure under N.D.R.Crim.P. 11(b)(1)(Sambursky v. State, 2006 ND 223, 723 N.W.2d 524, 2006 N.D. LEXIS 228 (N.D. 2006).

12.1-32-10. Mandatory parole components. [Repealed]

Repealed by S.L. 1989, ch. 51, § 5.

12.1-32-11. Merger of sentences — Sentencing for multiple offenses.

  1. Unless the court otherwise orders, when a person serving a term of commitment imposed by a court of this state is committed for another offense or offenses, the shorter term or the shorter remaining term shall be merged in the other term. When a person on probation or parole for an offense committed in this state is sentenced for another offense or offenses, the period still to be served on probation or parole shall be merged in any new sentence of commitment or probation. A court merging sentences under this subsection shall forthwith furnish each of the other courts previously involved and the penal facility in which the defendant is confined under sentence with authenticated copies of its sentence, which shall cite the sentences being merged. A court which imposed a sentence which is merged pursuant to this subsection shall modify such sentence in accordance with the effect of the merger.
  2. Repealed by S.L. 1977, ch. 129, § 1.
  3. When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, except that a defendant being sentenced for two or more class A misdemeanors may be subject to an aggregate maximum not exceeding that authorized by section 12.1-32-01 for a class C felony if each class A misdemeanor was committed as part of a different course of conduct or each involved a substantially different criminal objective.

Source: S.L. 1973, ch. 116, § 31; 1975, ch. 116, § 31; 1977, ch. 129, § 1.

Notes to Decisions

Consecutive Sentences.

Court has authority to order sentences to run consecutively. State v. Mees, 272 N.W.2d 61, 1978 N.D. LEXIS 190 (N.D. 1978).

This section does not prohibit a trial court from ordering a sentence to run consecutive to another sentence. State v. Patten, 353 N.W.2d 26, 1984 N.D. LEXIS 336 (N.D. 1984).

Limitations on consecutive sentences provided in subsection 3 apply only when misdemeanors are involved, and were not applicable where defendant was convicted of a misdemeanor and sentence imposed was to run consecutively with a previous felony sentence. State v. Patten, 353 N.W.2d 26, 1984 N.D. LEXIS 336 (N.D. 1984).

Construction with Other Laws.

The one-year sentence limitation in subsection 3 applies only to a sentence for imprisonment. This does not conflict with N.D.C.C. § 12.1-32-06.1(1), which permits misdemeanor probations of up to two years. State v. Woehlhoff, 537 N.W.2d 543, 1995 N.D. LEXIS 175 (N.D. 1995).

Federal Courts.

Where state court sentenced defendant to imprisonment, and a federal court sentenced defendant on a federal charge and recommended that federal sentence be served at state penitentiary and that it run concurrently with state court sentence, state court did not have authority, after its original sentence had commenced, to amend its original sentence so as not to commence until after defendant was released by federal authorities; rationale expressed in this section was applicable even though federal courts are not specifically mentioned and only term “court of this state” is used. State v. Kunze, 350 N.W.2d 36, 1984 N.D. LEXIS 315 (N.D. 1984).

Misdemeanors.

Defendant did not receive consecutive sentences for multiple misdemeanors exceeding one year since his class B probation sentence expired almost two months before his class A prison sentence commenced; consecutive is defined as “to follow in uninterrupted succession.” State v. Woehlhoff, 537 N.W.2d 543, 1995 N.D. LEXIS 175 (N.D. 1995).

Consecutive sentences of one year for a class A misdemeanor and thirty days for a class B misdemeanor is in excess of the one-year limitation provided in subsection (3), and is an abuse of discretion by the trial court. State v. McClean, 1998 ND 21, 575 N.W.2d 200, 1998 N.D. LEXIS 10 (N.D. 1998).

Since driving while under the influence and driving with a suspended license each involve a substantially different criminal objective as a matter of law, the trial court was authorized to impose consecutive sentences for the defendant’s convictions of these two class A misdemeanors. State v. Ulmer, 1999 ND 245, 603 N.W.2d 865, 1999 N.D. LEXIS 253 (N.D. 1999).

District court did not err by sentencing defendant to consecutive sentences for three of the misdemeanor convictions as each of defendant's three consecutively-sentenced offenses was committed as part of a different course of conduct because the three offenses involved different crimes committed against different victims on different dates as defendant collected sexual images of multiple victims and in multiple retail locations over a span of weeks. State v. Rivera, 2018 ND 15, 905 N.W.2d 739, 2018 N.D. LEXIS 17 (N.D. 2018).

“Substantially Different Criminal Objectives.”

District court properly concluded that the crimes of aggravated reckless driving and driving under the influence (DUI) involved different criminal objectives for purposes of N.D.C.C. § 12.1-32-11(3); the definition of “substantially different criminal objectives” announced in State v. Ulmer was controlling in the case and, applying that definition, the supreme court concluded that the crimes of DUI and aggravated reckless driving constituted substantially different criminal objectives where aggravated reckless driving required a separate act of inflicting “injury upon the person of another,” and defendant’s separate act of hitting two pedestrians, mutilating the leg of one of them, was more than merely reckless drunk driving. State v. Salveson, 2006 ND 169, 719 N.W.2d 747, 2006 N.D. LEXIS 172 (N.D. 2006).

Crimes of driving under the influence (DUI) and aggravated reckless driving constitute substantially different criminal objectives for purposes of N.D.C.C. § 12.1-32-11(3) as each offense involves separate and distinct violations of the law and separate criminal objectives the legislature sought to proscribe; to conclude otherwise would mean the separate act of inflicting injury upon pedestrians while driving recklessly is without consequence. State v. Salveson, 2006 ND 169, 719 N.W.2d 747, 2006 N.D. LEXIS 172 (N.D. 2006).

DECISIONS UNDER PRIOR LAW

Consecutive Sentences.

Under former section on commencement of the term of imprisonment, since no law prohibited a district court from imposing a consecutive sentence upon one already incarcerated on a prior conviction, it was within the district court’s discretion to determine whether the second sentence should run concurrently or consecutively with the first. State v. Flemmer, 211 N.W.2d 189, 1973 N.D. LEXIS 124 (N.D. 1973).

Collateral References.

Sentences by different courts as concurrent, 57 A.L.R.2d 1410.

Effect of invalidation of sentence upon separate sentence which runs consecutively, 68 A.L.R.2d 712.

Law Reviews.

North Dakota Supreme Court Review (State v. Salveson), 83 N.D. L. Rev. 1085 (2007).

12.1-32-12. Penalties, sentences, and parole for offenses unclassified and in other titles.

Where an offense is defined by a statute or by the constitution without specification of its classification pursuant to section 12.1-32-01, the offense is punishable as provided in the statute or constitutional provision defining it, or:

  1. If the offense is declared to be a felony, without further specification of punishment, it is punishable as if it were a class C felony.
  2. If the offense is declared to be a misdemeanor, without further specification of punishment, it is punishable as if it were a class A misdemeanor.

The sentencing alternatives available under section 12.1-32-02 are available to a court sentencing an offender for commission of an offense defined by a statute outside this title.

Source: S.L. 1973, ch. 116, § 31; 1975, ch. 116, § 32; 1989, ch. 51, § 3.

Cross-References.

Property forfeiture, see N.D.C.C. ch. 29-31.1.

Corporate criminal responsibility, see N.D.C.C. § 12.1-03-02.

Fines and penalties imposed by city, limited, see N.D.C.C. § 40-05-06.

Title registration for motor vehicles, general penalty, see N.D.C.C. § 39-05-33.

DECISIONS UNDER PRIOR LAW

Analysis

Assignation.

Assignation, as a first offense, was a misdemeanor punishable by imprisonment in the county jail. Davis v. Riedman, 114 N.W.2d 881, 1962 N.D. LEXIS 71 (N.D. 1962).

Lack of Penalty in Statute.

Where a statute prohibited the performance of an act without prescribing a penalty for its violation, the doing of such act was a misdemeanor punishable by the penalty provided by former section. State v. Prince, 75 N.D. 386, 28 N.W.2d 538, 1947 N.D. LEXIS 74 (N.D. 1947).

12.1-32-13. Minor convicted of felony — Sentencing.

Whenever a minor is convicted of a felony, the sentencing court may commit the person to the North Dakota youth correctional center as provided in this title. Provided, however, that a minor over the age of sixteen who is convicted of a felony may be sentenced to a penal institution or detention facility.

Source: S.L. 1973, ch. 116, § 31; 1981, ch. 328, § 3; 1995, ch. 120, § 25.

Collateral References.

Consideration of accused’s juvenile court record in sentencing for offense committed as adult, 64 A.L.R.3d 1291.

12.1-32-13.1. Juveniles — Sentencing — Reduction.

  1. Notwithstanding any other provision of law, a court may reduce a term of imprisonment imposed upon a defendant convicted as an adult for an offense committed and completed before the defendant was eighteen years of age if:
    1. The defendant has served at least twenty years in custody for the offense;
    2. The defendant filed a motion for reduction in sentence; and
    3. The court has considered the factors provided in this section and determined the defendant is not a danger to the safety of any other individual, and the interests of justice warrant a sentence modification.
  2. A defendant whose sentence is reduced under this section must be ordered to serve a period of supervised release of at least five years upon release from imprisonment. The conditions of supervised release and any modification or revocation of the term of supervised release must be in accordance with this chapter.
  3. When determining whether to reduce a term of imprisonment under this section, the court shall consider:
    1. The factors provided in section 12.1-32-04, including the nature of the offense;
    2. The age of the defendant at the time of the offense;
    3. A report and recommendation from the department of corrections and rehabilitation, including information relating to the defendant’s ability to comply with the rules of the institution and whether the defendant completed any educational, vocational, or other prison programming;
    4. A report and recommendation from the state’s attorney for any county in which the defendant was prosecuted;
    5. Whether the defendant has demonstrated maturity, rehabilitation, and a fitness to re-enter society sufficient to justify a sentence reduction;
    6. A statement by a victim or a family member of a victim who was impacted by the actions of the defendant;
    7. A report of a physical, mental, or psychiatric examination of the defendant conducted by a licensed health care professional;
    8. The defendant’s family and community circumstances at the time of the offense, including any history of abuse, trauma, or involvement in the child welfare system;
    9. The role of the defendant in the offense and whether an adult also was involved in the offense;
    10. The diminished culpability of juveniles compared to adults and the level of maturity and failure to appreciate the risks and consequences; and
    11. Any additional information the court determines relevant.
  4. A defendant may make a second motion for a reduction in sentence under this section no earlier than five years after the initial motion for reduction.
  5. A defendant may make a final motion for a reduction in sentence no earlier than five years after the order for a second motion was filed.

Source: S.L. 2017, ch. 109, § 2, effective August 1, 2017.

Notes to Decisions

Applicability.

Appellant, who committed murder while he was a juvenile, failed to provide newly discovered evidence to support his motion for a new trial. Additionally, any application of N.D.C.C. § 12.1-32-13.1 to appellant’s sentence would require retroactive application and be an infringement on the executive pardoning power. Garcia v. State, 2019 ND 103, 925 N.W.2d 442, 2019 N.D. LEXIS 107 (N.D. 2019), cert. denied, — U.S. —, 141 S. Ct. 2593, 209 L. Ed. 2d 731, 2021 U.S. LEXIS 2237 (U.S. 2021).

12.1-32-14. Restoration of property or other work to be required of certain offenders.

Other provisions of this chapter notwithstanding, whenever a person convicted of criminal mischief is placed on probation pursuant to section 12.1-32-02 or 12.1-32-07, the court shall include as a condition of that probation the requirement that the person perform restoration or other assigned work as specified in subdivision e of subsection 4 of section 12.1-32-07.

Source: S.L. 1975, ch. 121, § 1; 1989, ch. 158, § 9; 1993, ch. 130, § 2.

12.1-32-15. Offenders against children and sexual offenders — Sexually violent predators — Registration requirement — Penalty. [Effective through August 31, 2022]

  1. As used in this section:
    1. “A crime against a child” means a violation of chapter 12.1-16, section 12.1-17-01.1 if the victim is under the age of twelve, 12.1-17-02, 12.1-17-04, subdivision a of subsection 6 of section 12.1-17-07.1, section 12.1-18-01, 12.1-18-02, 12.1-18-05, chapter 12.1-29, or section 14-09-22, subsection 3 of section 12.1-41-02, subsection 3 of section 12.1-41-03, or an equivalent offense from another court in the United States, a tribal court, or court of another country, in which the victim is a minor or is otherwise of the age required for the act to be a crime or an attempt or conspiracy to commit these offenses.
    2. “Department” means the department of corrections and rehabilitation.
    3. “Homeless” means an individual who is physically present in this state, but is living in a park, under a bridge, on the streets, in a vehicle or camper, or is otherwise without a traditional dwelling, and also one who resides in this state but does not maintain a permanent address. The term does not include individuals who are temporarily domiciled or individuals residing in public or private shelters that provide temporary living accommodations.
    4. “Mental abnormality” means a congenital or acquired condition of an individual that affects the emotional or volitional capacity of the individual in a manner that predisposes that individual to the commission of criminal sexual acts to a degree that makes the individual a menace to the health and safety of other individuals.
    5. “Predatory” means an act directed at a stranger or at an individual with whom a relationship has been established or promoted for the primary purpose of victimization.
    6. “Reside” means to live permanently or be situated for a considerable time in a home or a particular place.
    7. “Sexual offender” means a person who has pled guilty to or been found guilty, including juvenile delinquent adjudications, of a violation of section 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-05.1, 12.1-20-06, 12.1-20-06.1, 12.1-20-07 except for subdivision a of subsection 1, 12.1-20-11, 12.1-20-12.1, 12.1-20-12.2, 12.1-20-12.3 except for subdivision a of subsection 1 and subdivision b of subsection 1 if the offense involves only a demand for money, chapter 12.1-27.2, subsection 2 of section 12.1-22-03.1, subdivision b of subsection 1 of section 12.1-41-02, section 12.1-41-04, 12.1-41-05, or 12.1-41-06, or an equivalent offense from another court in the United States, a tribal court, or court of another country, or an attempt or conspiracy to commit these offenses.
    8. “Sexually dangerous individual” means an individual who meets the definition specified in section 25-03.3-01.
    9. “Temporarily domiciled” means staying or being physically present in this state for more than thirty days in a calendar year or at a location for longer than ten consecutive days, attending school for longer than ten days, or maintaining employment in the jurisdiction for longer than ten days, regardless of the state of the residence.
  2. The court shall impose, in addition to any penalty provided by law, a requirement that the individual register, within three days of coming into a county in which the individual resides, is homeless, or within the period identified in this section that the individual becomes temporarily domiciled. The individual must register with the chief of police of the city of the individual’s place of residence, or the sheriff of the county if the individual resides in an area other than a city. A homeless individual shall register every three days with the sheriff or chief of police of the jurisdiction in which the individual is physically present. The court shall require an individual to register by stating this requirement on the court records, if that individual:
    1. Has pled guilty or nolo contendere to, or been found guilty as a felonious sexual offender or an attempted felonious sexual offender, including juvenile delinquent adjudications of equivalent offenses unless the offense is listed in subdivision c.
    2. Has pled guilty or nolo contendere to, or been found guilty as a sexual offender for, a misdemeanor or attempted misdemeanor. The court may deviate from requiring an individual to register if the court first finds the individual is no more than three years older than the victim if the victim is a minor, the individual has not previously been convicted as a sexual offender or of a crime against a child, and the individual did not exhibit mental abnormality or predatory conduct in the commission of the offense.
    3. Is a juvenile found delinquent under subdivision d of subsection 1 of section 12.1-20-03, subdivision a of subsection 2 of section 12.1-20-03, or as a sexual offender for a misdemeanor. The court may deviate from requiring the juvenile to register if the court first finds the juvenile has not previously been convicted as a sexual offender or for a crime against a child, and the juvenile did not exhibit mental abnormality or predatory conduct in the commission of the offense.
    4. Has pled guilty or nolo contendere to, or been found guilty of, a crime against a child or an attempted crime against a child, including juvenile delinquent adjudications of equivalent offenses. Except if the offense is described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim, the court may deviate from requiring an individual to register if the court first finds the individual has not previously been convicted as a sexual offender or for a crime against a child, and the individual did not exhibit mental abnormality or predatory conduct in the commission of the offense.
    5. Has pled guilty or nolo contendere, been found guilty, or been adjudicated delinquent of any crime against another individual which is not otherwise specified in this section if the court determines that registration is warranted by the nature of the crime and therefore orders registration for the individual. If the court orders an individual to register as an offender under this section, the individual shall comply with all of the registration requirements in this chapter.
  3. If a court has not ordered an individual to register in this state, an individual who resides, is homeless, or is temporarily domiciled in this state shall register if the individual:
    1. Is incarcerated or is on probation or parole after July 31, 1995, for a crime against a child described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 if the individual was not the parent of the victim, or as a sexual offender;
    2. Has pled guilty or nolo contendere to, or been adjudicated for or found guilty of, an offense in a court of this state for which registration is mandatory under this section or an offense from another court in the United States, a tribal court, or court of another country equivalent to those offenses set forth in this section; or
    3. Has pled guilty or nolo contendere to, or has been found guilty of, a crime against a child or as a sexual offender for which registration is mandatory under this section if the conviction occurred after July 31, 1985.
  4. In its consideration of mental abnormality or predatory conduct, the court shall consider the age of the offender, the age of the victim, the difference in ages of the victim and offender, the circumstances and motive of the crime, the relationship of the victim and offender, and the mental state of the offender. The court may order an offender to be evaluated by a qualified counselor, psychologist, or physician before sentencing. Except as provided under subdivision e of subsection 2, the court shall state on the record in open court its affirmative finding for not requiring an offender to register.
  5. When an individual is required to register under this section, the official in charge of a facility or institution where the individual required to register is confined, or the department, shall, before the discharge, parole, or release of that individual, inform the individual of the duty to register pursuant to this section. The official or the department shall require the individual to read and sign a form as required by the attorney general, stating that the duty of the individual to register has been explained to that individual. The official in charge of the place of confinement, or the department, shall obtain the address where the individual expects to reside, attend school, or work upon discharge, parole, or release and shall report the address to the attorney general. The official in charge of the place of confinement, or the department, shall give three copies of the form to the individual and shall send three copies to the attorney general no later than forty-five days before the scheduled release of that individual. The attorney general shall forward one copy to the law enforcement agency having jurisdiction where the individual expects to reside, attend school, or work upon discharge, parole, or release, one copy to the prosecutor who prosecuted the individual, and one copy to the court in which the individual was prosecuted. All forms must be transmitted and received by the law enforcement agency, prosecutor, and court thirty days before the discharge, parole, or release of the individual.
  6. An individual who is required to register pursuant to this section who is released on probation or discharged upon payment of a fine must, before the release or discharge, be informed of the duty to register under this section by the court in which that individual is convicted. The court shall require the individual to read and sign a form as required by the attorney general, stating that the duty of the individual to register under this section has been explained to that individual. The court shall obtain the address where the individual expects to reside, attend school, or work upon release or discharge and shall report the address to the attorney general within three days. The court shall give one copy of the form to the individual and shall send two copies to the attorney general. The attorney general shall forward one copy to the appropriate law enforcement agency having jurisdiction where the individual expects to reside, attend school, or work upon discharge, parole, or release.
  7. Registration consists of a written or electronic statement signed by the individual, giving the information required by the attorney general, and the biometric data and photograph of the individual. An individual who is not required to provide a sample of blood and other body fluids under section 31-13-03 or by the individual’s state or court of conviction or adjudication shall submit a sample of blood and other body fluids for inclusion in a centralized database of DNA identification records under section 31-13-05. The collection, submission, testing and analysis of, and records produced from, samples of blood and other body fluids, are subject to chapter 31-13. Evidence of the DNA profile comparison is admissible in accordance with section 31-13-02. A report of the DNA analysis certified by the state crime laboratory is admissible in accordance with section 31-13-05. A district court shall order an individual who refuses to submit a sample of blood or other body fluids for registration purposes to show cause at a specified time and place why the individual should not be required to submit the sample required under this subsection. Within three days after registration, the registering law enforcement agency shall forward the statement, biometric data, and photograph to the attorney general and shall submit the sample of the individual’s blood and body fluids to the state crime laboratory. If an individual required to register under this section has a change in vehicle or computer online identity, the individual shall register, within three days after the change, with the law enforcement agency having local jurisdiction of the individual’s place of residence of the individual’s new vehicle or computer online identity. If an individual required to register pursuant to this section has a change in name, school, or residence or employment address, that individual shall register, at least ten days before the change, with the law enforcement agency having local jurisdiction of the individual’s place of residence of the individual’s new name, school, residence address, or employment address. A change in school or employment address includes the termination of school or employment for which an individual required to register under this section, the individual shall register within three days of the termination with the law enforcement agency having local jurisdiction of the individual’s place of residence. The law enforcement agency, within three days after receipt of the information, shall forward it to the attorney general. The attorney general shall forward the appropriate registration data to the law enforcement agency having local jurisdiction of the new place of residence, school, or employment. Upon a change of address, the individual required to register also shall register within three days at the law enforcement agency having local jurisdiction of the new place of residence. If an individual required to register in North Dakota, including in a tribal registry, resides in another state or on tribal lands, that individual shall register employment and school addresses and any changes in required registration information with the law enforcement agency having local jurisdiction over the school or employment address. The individual registering under this section shall periodically confirm the information required under this subsection in a manner and at an interval determined by the attorney general. A law enforcement agency that has previously registered an offender may omit the biometric data portion of the registration if that agency has a set of biometric data on file for that individual and is personally familiar with and can visually identify the offender. These provisions also apply in any other state that requires registration.
  8. An individual required to register under this section shall comply with the registration requirement for the longer of the following periods:
    1. A period of fifteen years after the date of sentence or order deferring or suspending sentence upon a plea or finding of guilt or after release from incarceration, whichever is later;
    2. A period of twenty-five years after the date of sentence or order deferring or suspending sentence upon a plea or finding of guilt or after release from incarceration, whichever is later, if the offender is assigned a moderate risk by the attorney general as provided in subsection 12; or
    3. For the life of the individual, if that individual:
      1. On two or more occasions has pled guilty or nolo contendere to, or been found guilty of a crime against a child or as a sexual offender. If all qualifying offenses are misdemeanors, this lifetime provision does not apply unless a qualifying offense was committed after August 1, 1999;
      2. Pleads guilty or nolo contendere to, or is found guilty of, an offense committed after August 1, 1999, which is described in subdivision a of subsection 1 of section 12.1-20-03, section 12.1-20-03.1, or subdivision d of subsection 1 of section 12.1-20-03 if the person is an adult and the victim is under age twelve, or section 12.1-18-01 if that individual is an adult other than a parent of the victim, or an equivalent offense from another court in the United States, a tribal court, or court of another country; or
      3. Is assigned a high risk by the attorney general as provided in subsection 12.
  9. An individual required to register under this section who violates this section is guilty of a class C felony. The failure of a homeless individual to register as required in subsections 2 and 3 is prima facie evidence of a violation of this section. The clerk of court shall forward all warrants issued for a violation of this section to the county sheriff, who shall enter all such warrants into the national crime information center wanted person file. A court may not relieve an individual, other than a juvenile, who violates this section from serving a term of at least ninety days in jail and completing probation of one year.
  10. When an individual is released on parole or probation and is required to register pursuant to this section, but fails to do so within the time prescribed, the court shall order the probation, or the parole board shall order the parole, of the individual revoked.
  11. If an individual required to register pursuant to this section is temporarily sent outside the facility or institution where that individual is confined under conviction or sentence, the local law enforcement agency having jurisdiction over the place where that individual is being sent must be notified within a reasonable time period before that individual is released from the facility or institution. This subsection does not apply to any individual temporarily released under guard from the facility or institution in which that individual is confined.
  12. The attorney general, with the assistance of the department and the juvenile courts, shall develop guidelines for the risk assessment of sexual offenders who are required to register, with a low-risk, moderate-risk, or high-risk level being assigned to each offender as follows:
    1. The department shall conduct a risk assessment of sexual offenders who are incarcerated in institutions under the control of the department and sexual offenders who are on supervised probation. The department, in a timely manner, shall provide the attorney general any information, including the offender’s level of risk and supporting documentation, concerning individuals required to be registered under this section who are about to be released or placed into the community.
    2. The attorney general shall conduct a risk assessment of sexual offenders who are not under the custody or supervision of the department. The attorney general may adopt a law enforcement agency’s previous assignment of risk level for an individual if the assessment was conducted in a manner substantially similar to the guidelines developed under this subsection.
    3. The juvenile courts or the agency having legal custody of a juvenile shall conduct a risk assessment of juvenile sexual offenders who are required to register under this section. The juvenile courts or the agency having legal custody of a juvenile shall provide the attorney general any information, including the offender’s level of risk and supporting documentation, concerning juveniles required to register and who are about to be released or placed into the community.
    4. The attorney general shall notify the offender of the risk level assigned to that offender. An offender may request a review of that determination with the attorney general’s sexual offender risk assessment committee and may present any information that the offender believes may lower the assigned risk level.
  13. An individual assessed as a high-risk sexual offender in accordance with subsection 12, may not reside within five hundred feet [152.4 meters] of a public or nonpublic preschool or elementary, middle, or high school.
  14. Relevant and necessary conviction and registration information must be disclosed to the public by a law enforcement agency if the individual is a moderate or high risk and the agency determines that disclosure of the conviction and registration information is necessary for public protection. The attorney general shall develop guidelines for public disclosure of offender registration information. Public disclosure may include internet access if the offender:
    1. Is required to register for a lifetime under subsection 8;
    2. Has been determined to be a high risk to the public by the department, the attorney general, or the courts, according to guidelines developed by those agencies; or
    3. Has been determined to be a high risk to the public by an agency of another state or the federal government.
  15. A state officer, law enforcement agency, or public school district or governing body of a nonpublic school or any appointee, officer, or employee of those entities is not subject to civil or criminal liability for making risk determinations, allowing a sexual offender to attend a school function under section 12.1-20-25, or for disclosing or for failing to disclose information as permitted by this section.
  16. If a juvenile is adjudicated delinquent and required or ordered to register as a sexual offender or as an offender against a child under this section, the juvenile shall comply with the registration requirements in this section. Notwithstanding any other provision of law, a law enforcement agency shall register a juvenile offender in the same manner as adult offenders and may release any relevant and necessary information on file to other law enforcement agencies, the department of human services, or the public if disclosure is necessary to protect public health or safety. The law enforcement agency shall release any relevant and necessary information on file to the superintendent or principal of the school the juvenile attends. The school administration shall notify others in similar positions if the juvenile transfers to another learning institution in or outside the state.
  17. If an individual has been required to register as a sexual offender or an offender against a child under section 12.1-32-15 or former section 27-20-52.1 before August 1, 1999, the individual may petition the court to be removed from the offender list if registration is no longer mandatory for that individual. In considering the petition, the court shall comply with the requirements of this section.
  18. A sexual offender who is currently assigned a moderate or high-risk level by the attorney general may not use a state park of this state as a residence or residential address to comply with the registration requirements of this section. Before arriving at a state park for overnight lodging or camping, a sexual offender who is assigned a moderate or high-risk level by the attorney general shall notify a parks and recreation department law enforcement officer at the state park where the sexual offender will be staying.
  19. When an individual who is required to register pursuant to this section plans to travel outside of the United States, at least twenty-one days before the intended travel, the individual shall inform the agency with which the individual last registered the individual’s residence address the details of the intended travel. Upon receipt of the information from the registering law enforcement agency, the attorney general shall report the travel to the United States marshal service.

If the offender has been determined to be a moderate risk, public disclosure must include, at a minimum, notification of the offense to the victim registered under chapter 12.1-34 and to any agency, civic organization, or group of persons who have characteristics similar to those of a victim of the offender. Upon request, law enforcement agencies may release conviction and registration information regarding low-risk, moderate-risk, or high-risk offenders.

Source: S.L. 1991, ch. 136, § 1; 1993, ch. 129, § 3; 1995, ch. 139, § 1; 1997, ch. 124, § 5; 1997, ch. 128, § 2; 1997, ch. 136, § 1; 1997, ch. 137, § 1; 1999, ch. 50, § 33; 1999, ch. 123, § 3; 1999, ch. 131, § 1; 2001, ch. 134, § 8; 2001, ch. 140, § 1; 2001 Sp., ch. 690, § 1; 2003, ch. 113, § 1; 2005, ch. 121, § 1; 2007, ch. 124, § 4; 2007, ch. 136, § 1; 2009, ch. 121, § 2; 2009, ch. 136, § 1; 2009, ch. 137, § 1; 2009, ch. 139, § 3; 2011, ch. 103, § 1; 2011, ch. 102, §§ 1, 2; 2013, ch. 113, § 1; 2015, ch. 96, § 7, effective August 1, 2015; 2015, ch. 115, § 1, effective April 8, 2015; 2015, ch. 117, § 1, effective August 1, 2015; 2015, ch. 127, § 1, effective August 1, 2015; 2017, ch. 110, § 1, effective August 1, 2017; 2017, ch. 112, § 1; 2017, ch. 111, § 1, effective August 1, 2017; 2019, ch. 108, § 2, effective August 1, 2019; 2019, ch. 120, § 1, effective August 1, 2019; 2021, ch. 245, § 2, effective July 1, 2021.

Note.

Section 12.1-32-15 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 22 of Chapter 352, Session Laws 2021, House Bill 1247; and Section 2 of Chapter 245, Session Laws 2021, House Bill 1035.

Section 12.1-22-03.1, referred to in this section, was repealed by S.L. 2001, ch. 134, § 11. For present provisions see 12.1-20-12.2.

Section 27-20-52.1, referred to in subsection 16, was repealed by S.L. 1999, chapter 131, § 2.

The amendments to subsections 2 and 7 become effective on the date the attorney general certifies to the legislative council that the registration process provided in subsections 2 and 7 is operational.

Notes to Decisions

Constitutionality.

Retrospective application of the sexual offender registration requirement is not an ex post facto punishment and does not violate U.S. Const. art. 1, § 10 or N.D. Const. art. I, § 18. State v. Burr, 1999 ND 143, 598 N.W.2d 147, 1999 N.D. LEXIS 176 (N.D. 1999) (compare State v. Breiner, 1997 ND 71, 562 N.W.2d 565, 1997 N.D. LEXIS 73 (N.D. 1997), overruled, State v. Burr, 1999 ND 143, 598 N.W.2d 147, 1999 N.D. LEXIS 176 (N.D. 1999).

North Dakota Supreme Court applied the appropriate legal standard when it found that this section’s registration requirement was not additional punishment for defendant’s original conviction because the requirement to register did not impose on defendant any affirmative disability or restraint, did not fit within any traditional notion of what was punishment, furthered a legitimate public interest of protecting communities from sexual predators, and was not excessive considering its important purpose. Burr v. Snider, 234 F.3d 1052, 2000 U.S. App. LEXIS 31778 (8th Cir. N.D. 2000), cert. denied, 534 U.S. 844, 122 S. Ct. 105, 151 L. Ed. 2d 63, 2001 U.S. LEXIS 5915 (U.S. 2001).

Defendant’s conviction for luring a minor by computer in violation of N.D.C.C. § 12.1-20-05.1 was proper where this section’s notification provisions did not violate procedural due process requirements or double jeopardy; the required registration was part and parcel of the conviction for the offense and was not a separate proceeding. State v. Backlund, 2003 ND 184, 672 N.W.2d 431, 2003 N.D. LEXIS 198 (N.D. 2003).

Defendant’s argument that N.D.C.C. § 12.1-32-15 was unconstitutional was rejected because it had already been determined that N.D.C.C. § 12.1-32-15 was not an ex post facto law under U.S. Const. art. I, § 10 and N.D. Const. art. I, § 18. State v. Meador, 2010 ND 139, 785 N.W.2d 886, 2010 N.D. LEXIS 137 (N.D. 2010).

Change of Address.

Defendant’s conviction affirmed for failure to notify the sheriff of a change of address from a residential address to a P.O. box because the term “address” used in subsection 6 was found to include mailing addresses such as the defendant’s P.O. box. State v. Rubey, 2000 ND 119, 611 N.W.2d 888, 2000 N.D. LEXIS 128 (N.D. 2000).

Jury could reasonably have found beyond a reasonable doubt that defendant willfully failed to register as a sex offender in violation of N.D.C.C. § 12.1-32-15 where the defendant testified that he mailed a letter to the Bismarck Police Department about his change of address in Bismarck but the supervisor of records for the Bismarck Police Department testified that, although the department would accept a handwritten notification of a sex offender’s change of address, there were no records on file that the department ever received such a letter from defendant or that defendant otherwise attempted to notify the department of his change of address. State v. Igou, 2005 ND 16, 691 N.W.2d 213, 2005 N.D. LEXIS 19 (N.D. 2005).

Sufficient evidence supported defendant’s conviction for failure to register as a sex offender in violation of N.D.C.C. § 12.1-32-15(2), where there was evidence that he was ejected from an address in Bismarck, moved to another county, and failed to register within three days, despite defendant’s claim he was just visiting the other county for the holidays. State v. McAvoy, 2009 ND 130, 767 N.W.2d 874, 2009 N.D. LEXIS 130 (N.D. 2009).

Change of Employment.

In a case involving a failure to register as a sex offender, a trial court did not commit an obvious error by failing to instruct a jury on the affirmative defense of mistake of law under N.D.C.C. § 12.1-05-09 because defendant did not offer any credible evidence to show that he took steps toward discovering if he had to register a change in employment. Instead, defendant relied on his self-selected belief that he did not need to register such change and that no one told him any differently. State v. Johnson, 2009 ND 76, 764 N.W.2d 696, 2009 N.D. LEXIS 77 (N.D. 2009).

Change of Employment Address.

Trial court erred in quashing the criminal information against defendant for failing to register as a convicted sexual offender based on the trial court’s erroneous interpretation of N.D.C.C. § 12.1-32-15(7) because defendant was required to register a change of employment address. The express language of N.D.C.C. § 12.1-32-15(7), which provides that if an individual “has a change in name, school, or address” that person must inform the law enforcement agency with whom he last registered of the “new name, school, residence address, or employment address,” unambiguously requires a registered sexual offender to inform law enforcement of a change in employment address. State v. Jackson, 2005 ND 137, 701 N.W.2d 887, 2005 N.D. LEXIS 180 (N.D. 2005).

Mens Rea.

Failure to register as a sex offender under subdivision (9) is not a strict liability offense and the requisite culpable mental state is “willfully.” State v. Knowels, 2002 ND 62, 643 N.W.2d 20, 2002 N.D. LEXIS 75 (N.D. 2002).

Purpose.

The legitimate public interest in having sexual offenders register with local law enforcement authorities is to notify them about the offender’s presence in their community and when the offender moves. State v. Burr, 1999 ND 143, 598 N.W.2d 147, 1999 N.D. LEXIS 176 (N.D. 1999).

Predatory.

Because this section plainly defines “predatory” and states the definition applied “as used in this section” of the North Dakota Century Code, the trial court was correct in applying the definition of “predatory” when determining that defendant had to register as a sex offender. State v. Glaser, 2015 ND 31, 858 N.W.2d 920, 2015 N.D. LEXIS 23 (N.D. 2015).

Registration Requirement.

The fact that a court did not inform the defendant of his need to register as a sex offender did not relieve the defendant of his obligation to register under subsection 3(c) of this section. State v. Rubey, 2000 ND 119, 611 N.W.2d 888, 2000 N.D. LEXIS 128 (N.D. 2000).

Defendant’s argument that N.D.C.C. § 12.1-32-15 required registration within 3 days, which did not include weekends or holidays, was rejected because N.D.C.C. § 12.1-32-15 did not state that registration had to be made in 3 business days; even if it was 3 business days, defendant still failed to comply. Therefore, a trial court did not err in its interpretation of N.D.C.C. § 12.1-32-15, and the jury was properly instructed. State v. Meador, 2010 ND 139, 785 N.W.2d 886, 2010 N.D. LEXIS 137 (N.D. 2010).

Defendant’s argument that N.D.C.C. § 12.1-32-15 did not require a sexual offender locate a new address within three days, but required an offender to register a new address within three days of obtaining a new residence, was rejected because the plain language of N.D.C.C. § 12.1-32-15 required an offender to register within 3 days of a change of address. Therefore, a trial court did not err by denying defendant’s motion to dismiss. State v. Meador, 2010 ND 139, 785 N.W.2d 886, 2010 N.D. LEXIS 137 (N.D. 2010).

Construed together, N.D.C.C. § 12.1-32-15 and N.D.C.C. ch. 27-20 authorize that the disposition of a juvenile found delinquent under N.D.C.C. § 12.1-20-03(1)(d) requires registration as a sexual offender under N.D.C.C. § 12.1-32-15(2)(c) unless the court finds the requirements for deviation from registration are met. In assessing the requirements for deviation from registration under those provisions, a juvenile court may order the preparation of a report or evaluation for purposes of registration, may require production of the report or evaluation at a registration hearing, and may rely on the report or evaluation in making necessary findings on the requirements for registration or for a deviation from registration. Denham v. D.J. (In re D.J.), 2011 ND 142, 800 N.W.2d 333, 2011 N.D. LEXIS 133 (N.D. 2011).

Plain language of N.D.C.C. § 12.1-32-15(2)(c), allows a deviation from the requirement for registration as a sexual offender for first-time juvenile offenders who commit certain enumerated offenses but do not exhibit mental abnormality or predatory conduct in the commission of the offense; that language indicates that registration is ordinarily required for juveniles found delinquent under N.D.C.C. § 12.1-20-03(1)(d) but allows a court some discretion in limited circumstances to permit deviation from registration for first time offenders who do not exhibit mental abnormality or predatory conduct in the commission of the offense. N.D.C.C. § 12.1-32-15(4) authorizes the court to order an offender to be evaluated by a qualified counselor, psychologist, or physician before sentencing, and an individual’s sentence may include a requirement for registration under N.D.C.C. § 12.1-32-15(2). Denham v. D.J. (In re D.J.), 2011 ND 142, 800 N.W.2d 333, 2011 N.D. LEXIS 133 (N.D. 2011).

While N.D.C.C. § 27-20-24(3) generally provides the State’s attorney, upon request of the court, shall present the evidence in support of any allegations of the petition not admitted and otherwise conduct the proceedings on behalf of the State, regardless of which party may have the ultimate burden of production or persuasion for the requirements of registration, however, the statutory framework authorizes the juvenile court to order, to require production of, and to rely on court-ordered reports or evaluations and requires the juvenile court to make necessary findings about mental abnormality or predatory conduct ostensibly from information in those reports or evaluations. Denham v. D.J. (In re D.J.), 2011 ND 142, 800 N.W.2d 333, 2011 N.D. LEXIS 133 (N.D. 2011).

While the trial court erred in deciding whether defendant was statutorily required to register as a sex offender after defendant’s probation was revoked, it nevertheless correctly determined that defendant had to register as a sex offender, and, thus, that decision had to be upheld on appeal. The trial court found that it should apply N.D.C.C. § 12.1-32-15(2)(b), a permissive registration statute that took into account a number of factors to decide whether such registration was required, although it should have applied N.D.C.C. § 12.1-32-15(2)(a) making it mandatory for felony sex offenders to register, as defendant had pled guilty to the sex offense of possession of certain materials prohibited under N.D.C.C. § 12.1-27.2-04.1, which was a Class C felony. State v. Humann, 2011 ND 237, 807 N.W.2d 609, 2011 N.D. LEXIS 223 (N.D. 2011).

Prisoner did not establish that the North Dakota Supreme Court’s interpretation of N.D.C.C. § 12.1-32-15(7) as requiring sex offenders to register a residence address while they were transients was an unforeseeable and retroactive judicial expansion of the statute; the prisoner therefore was not entitled to habeas relief. Meador v. Branson, 688 F.3d 433, 2012 U.S. App. LEXIS 17195 (8th Cir. N.D. 2012), cert. denied, 568 U.S. 1105, 133 S. Ct. 878, 184 L. Ed. 2d 688, 2013 U.S. LEXIS 87 (U.S. 2013).

Trial court did not abuse its discretion in ordering defendant to register as a sex offender despite a doctor's determination that defendant fell at the zero percentile on the sexual assault scale, because, under this section, the court was permitted, but not required, to exercise its discretion to exempt defendant from registration. State v. Glaser, 2015 ND 31, 858 N.W.2d 920, 2015 N.D. LEXIS 23 (N.D. 2015).

District court abused its discretion in granting petitioner declaratory relief on the grounds that the attorney general's office had imposed his duty to register where the plain language of N.D.C.C. § 12.1-32-15(3) applied to an individual who has not been ordered to register by a court. Denault v. State, 2017 ND 167, 898 N.W.2d 452, 2017 N.D. LEXIS 166 (N.D. 2017).

Minn. Stat. § 609.3451, subd. 1(2), and N.D.C.C. § 12.1-20-12.1 were equivalent for purposes of N.D.C.C. § 12.1-32-15(3)(b) as both statutes made it unlawful for a person to either masturbate or expose one's genitals in the presence of a minor. Denault v. State, 2017 ND 167, 898 N.W.2d 452, 2017 N.D. LEXIS 166 (N.D. 2017).

Juvenile court properly adopted a judicial referee's order finding that a juvenile committed the delinquent act of failure to register as a sex offender because double jeopardy was not implicated at trial following the judicial referee's order rescinding the order of dismissal, the juvenile's assault IV with sexual motivation in Washington would be at least equivalent to a class A misdemeanor, sexual offense, in North Dakota, and although the juvenile was not required to register as a sex offender in Washington, the Full Faith and Credit Clause did not prohibit North Dakota from requiring the juvenile to register. C.B. v. C.B., 2018 ND 27, 906 N.W.2d 93, 2018 N.D. LEXIS 32 (N.D. 2018).

District court properly denied defendant’s application for post-conviction relief because, regardless of whether an email from the Bureau of Criminal Investigations accurately recited the registration requirements for individuals who were homeless, defendant agreed that he failed to register the location where he was temporarily domiciled and failed to make a sufficient showing his attorney was ineffective in his plea representation. Edwardson v. State, 2019 ND 297, 936 N.W.2d 376, 2019 N.D. LEXIS 303 (N.D. 2019).

Relation to Federal Registration Law.

It did not violate defendant’s due process rights to retroactively apply the sex offender registration requirements of the Sex Offender Registration and Notification Act to him pursuant to 28 C.F.R. § 72.3 because defendant was already obligated to register as a sex offender pursuant to N.D.C.C. § 12.1-32-15. Defendant was responsible for keeping abreast of changes in the law pertaining to his sex offender registration obligations. United States v. Lovejoy, 516 F. Supp. 2d 1032, 2007 U.S. Dist. LEXIS 72988 (D.N.D. 2007).

Withdrawal of Guilty Plea.

Trial court abused its discretion in denying defendant’s withdrawal of his guilty plea, because its failure to inform him he was required to register as a sexual offender upon conviction of engaging in a sexual act with a minor caused a manifest injustice, unless he knew of the need to register when he pled. State v. Breiner, 1997 ND 71, 562 N.W.2d 565, 1997 N.D. LEXIS 73 (N.D. 1997), overruled, State v. Burr, 1999 ND 143, 598 N.W.2d 147, 1999 N.D. LEXIS 176 (N.D. 1999) (compare State v. Burr, 1999 ND 143, 598 N.W.2d 147, 1999 N.D. LEXIS 176 (N.D. 1999).

District court properly refused to allow defendant to withdraw his guilty plea on the failure-to-register charge because he offered no support for his argument that he was incorrectly informed of the penalty for pleading guilty to that charge as the permissive probationary provisions were not applicable, and his probationary sentence was appropriately categorized as mandatory. Peltier v. State, 2013 ND 246, 841 N.W.2d 236, 2013 N.D. LEXIS 243 (N.D. 2013).

Collateral References.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities, 36 A.L.R.5th 161.

Validity, Construction, and Application of State Statute Including “Sexually Motivated Offenses” Within Definition of Sex Offense for Purposes of Sentencing or Classification of Defendant as Sex Offender, 30 A.L.R.6th 373.

Validity, Construction, and Application of State Statute Including “Sexually Motivated Offenses” Within Definition of Sex Offense for Purposes of Sentencing or Classification of Defendant as Sex Offender. 30 A.L.R.6th 373.

Validity, Construction, and Application of State Statutes Imposing Criminal Penalties for Failure to Register as Required Under Sex Offender or Other Criminal Registration Statutes, 33 A.L.R.6th 91.

Validity, Construction, and Application of State Statutory Requirement that Person Convicted of Sexual Offense in Other Jurisdiction Register or Be Classified as Sexual Offender in Forum State, 34 A.L.R.6th 171.

Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Verbal or Other Nonelectronic Communications, 35 A.L.R.6th 361.

State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities as Applied to Juvenile Offenders — Constitutional Issues. 37 A.L.R.6th 55.

State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities as Applied to Juvenile Offenders — Duty to Register, Requirements for Registration, and Procedural Matters. 38 A.L.R.6th 1.

State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities as Applied to Juvenile Offenders — Expungement, Stay or Deferral, Exceptions, Exemptions, and Waiver. 39 A.L.R.6th 577.

Validity, Construction, and Application of Statutory and Municipal Enactments and Conditions of Release Prohibiting Sex Offenders from Parks. 40 A.L.R.6th 419.

Court’s Duty to Advise Sex Offender as to Sex Offender Registration Consequences or Other Restrictions Arising from Plea of Guilty, or to Determine that Offender Is Advised Thereof. 41 A.L.R.6th 141.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, 6 A.L.R. Fed. 2d 619 (2004), to Sex Offender Registration Statutes. 51 A.L.R.6th 139.

Validity and Applicability of State Requirement That Person Convicted or Indicted of Sex Offenses Be Subject to Electronic Location Monitoring, Including Use of Satellite or Global Positioning System. 57 A.L.R.6th 1.

Validity, Construction and Application of State Sex Offender Registration Statutes Concerning Level of Classification — General Principles, Evidentiary Matters, and Assistance of Counsel. 64 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Initial Classification Determination. 65 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Claims for Downward Departure. 66 A.L.R.6th 1.

Validity, Construction, and Application of State Sex Offender Registration Statutes Concerning Level of Classification — Claims Challenging Upward Departure. 67 A.L.R.6th 1.

Validity, construction, and application of state sex offender statutes prohibiting use of computers and internet as conditions of probation or sentence, 89 A.L.R.6th 261.

Law Reviews.

North Dakota Supreme Court Review, 77 N.D. L. Rev. 589 (2001).

For Note: Letting in the Light: the Need for Independent Review of Sex Offender Assessments in North Dakota, see 85 N.D. L. Rev. 171 (2009).

The 2015 amendment of this section by section 4 of chapter 127, S.L. 2015 became effective August 1, 2015.

12.1-32-15. Offenders against children and sexual offenders — Sexually violent predators — Registration requirement — Penalty. [Effective September 1, 2022]

  1. As used in this section:
    1. “A crime against a child” means a violation of chapter 12.1-16, section 12.1-17-01.1 if the victim is under the age of twelve, 12.1-17-02, 12.1-17-04, subdivision a of subsection 6 of section 12.1-17-07.1, section 12.1-18-01, 12.1-18-02, 12.1-18-05, chapter 12.1-29, or section 14-09-22, subsection 3 of section 12.1-41-02, subsection 3 of section 12.1-41-03, or an equivalent offense from another court in the United States, a tribal court, or court of another country, in which the victim is a minor or is otherwise of the age required for the act to be a crime or an attempt or conspiracy to commit these offenses.
    2. “Department” means the department of corrections and rehabilitation.
    3. “Homeless” means an individual who is physically present in this state, but is living in a park, under a bridge, on the streets, in a vehicle or camper, or is otherwise without a traditional dwelling, and also one who resides in this state but does not maintain a permanent address. The term does not include individuals who are temporarily domiciled or individuals residing in public or private shelters that provide temporary living accommodations.
    4. “Mental abnormality” means a congenital or acquired condition of an individual that affects the emotional or volitional capacity of the individual in a manner that predisposes that individual to the commission of criminal sexual acts to a degree that makes the individual a menace to the health and safety of other individuals.
    5. “Predatory” means an act directed at a stranger or at an individual with whom a relationship has been established or promoted for the primary purpose of victimization.
    6. “Reside” means to live permanently or be situated for a considerable time in a home or a particular place.
    7. “Sexual offender” means a person who has pled guilty to or been found guilty, including juvenile delinquent adjudications, of a violation of section 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-05.1, 12.1-20-06, 12.1-20-06.1, 12.1-20-07 except for subdivision a of subsection 1, 12.1-20-11, 12.1-20-12.1, 12.1-20-12.2, 12.1-20-12.3 except for subdivision a of subsection 1 and subdivision b of subsection 1 if the offense involves only a demand for money, chapter 12.1-27.2, subsection 2 of section 12.1-22-03.1, subdivision b of subsection 1 of section 12.1-41-02, section 12.1-41-04, 12.1-41-05, or 12.1-41-06, or an equivalent offense from another court in the United States, a tribal court, or court of another country, or an attempt or conspiracy to commit these offenses.
    8. “Sexually dangerous individual” means an individual who meets the definition specified in section 25-03.3-01.
    9. “Temporarily domiciled” means staying or being physically present in this state for more than thirty days in a calendar year or at a location for longer than ten consecutive days, attending school for longer than ten days, or maintaining employment in the jurisdiction for longer than ten days, regardless of the state of the residence.
  2. The court shall impose, in addition to any penalty provided by law, a requirement that the individual register, within three days of coming into a county in which the individual resides, is homeless, or within the period identified in this section that the individual becomes temporarily domiciled. The individual must register with the chief of police of the city of the individual’s place of residence, or the sheriff of the county if the individual resides in an area other than a city. A homeless individual shall register every three days with the sheriff or chief of police of the jurisdiction in which the individual is physically present. The court shall require an individual to register by stating this requirement on the court records, if that individual:
    1. Has pled guilty or nolo contendere to, or been found guilty as a felonious sexual offender or an attempted felonious sexual offender, including juvenile delinquent adjudications of equivalent offenses unless the offense is listed in subdivision c.
    2. Has pled guilty or nolo contendere to, or been found guilty as a sexual offender for, a misdemeanor or attempted misdemeanor. The court may deviate from requiring an individual to register if the court first finds the individual is no more than three years older than the victim if the victim is a minor, the individual has not previously been convicted as a sexual offender or of a crime against a child, and the individual did not exhibit mental abnormality or predatory conduct in the commission of the offense.
    3. Is a juvenile found delinquent under subdivision d of subsection 1 of section 12.1-20-03, subdivision a of subsection 2 of section 12.1-20-03, or as a sexual offender for a misdemeanor. The court may deviate from requiring the juvenile to register if the court first finds the juvenile has not previously been convicted as a sexual offender or for a crime against a child, and the juvenile did not exhibit mental abnormality or predatory conduct in the commission of the offense.
    4. Has pled guilty or nolo contendere to, or been found guilty of, a crime against a child or an attempted crime against a child, including juvenile delinquent adjudications of equivalent offenses. Except if the offense is described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 and the person is not the parent of the victim, the court may deviate from requiring an individual to register if the court first finds the individual has not previously been convicted as a sexual offender or for a crime against a child, and the individual did not exhibit mental abnormality or predatory conduct in the commission of the offense.
    5. Has pled guilty or nolo contendere, been found guilty, or been adjudicated delinquent of any crime against another individual which is not otherwise specified in this section if the court determines that registration is warranted by the nature of the crime and therefore orders registration for the individual. If the court orders an individual to register as an offender under this section, the individual shall comply with all of the registration requirements in this chapter.
  3. If a court has not ordered an individual to register in this state, an individual who resides, is homeless, or is temporarily domiciled in this state shall register if the individual:
    1. Is incarcerated or is on probation or parole after July 31, 1995, for a crime against a child described in section 12.1-29-02, or section 12.1-18-01 or 12.1-18-02 if the individual was not the parent of the victim, or as a sexual offender;
    2. Has pled guilty or nolo contendere to, or been adjudicated for or found guilty of, an offense in a court of this state for which registration is mandatory under this section or an offense from another court in the United States, a tribal court, or court of another country equivalent to those offenses set forth in this section; or
    3. Has pled guilty or nolo contendere to, or has been found guilty of, a crime against a child or as a sexual offender for which registration is mandatory under this section if the conviction occurred after July 31, 1985.
  4. In its consideration of mental abnormality or predatory conduct, the court shall consider the age of the offender, the age of the victim, the difference in ages of the victim and offender, the circumstances and motive of the crime, the relationship of the victim and offender, and the mental state of the offender. The court may order an offender to be evaluated by a qualified counselor, psychologist, or physician before sentencing. Except as provided under subdivision e of subsection 2, the court shall state on the record in open court its affirmative finding for not requiring an offender to register.
  5. When an individual is required to register under this section, the official in charge of a facility or institution where the individual required to register is confined, or the department, shall, before the discharge, parole, or release of that individual, inform the individual of the duty to register pursuant to this section. The official or the department shall require the individual to read and sign a form as required by the attorney general, stating that the duty of the individual to register has been explained to that individual. The official in charge of the place of confinement, or the department, shall obtain the address where the individual expects to reside, attend school, or work upon discharge, parole, or release and shall report the address to the attorney general. The official in charge of the place of confinement, or the department, shall give three copies of the form to the individual and shall send three copies to the attorney general no later than forty-five days before the scheduled release of that individual. The attorney general shall forward one copy to the law enforcement agency having jurisdiction where the individual expects to reside, attend school, or work upon discharge, parole, or release, one copy to the prosecutor who prosecuted the individual, and one copy to the court in which the individual was prosecuted. All forms must be transmitted and received by the law enforcement agency, prosecutor, and court thirty days before the discharge, parole, or release of the individual.
  6. An individual who is required to register pursuant to this section who is released on probation or discharged upon payment of a fine must, before the release or discharge, be informed of the duty to register under this section by the court in which that individual is convicted. The court shall require the individual to read and sign a form as required by the attorney general, stating that the duty of the individual to register under this section has been explained to that individual. The court shall obtain the address where the individual expects to reside, attend school, or work upon release or discharge and shall report the address to the attorney general within three days. The court shall give one copy of the form to the individual and shall send two copies to the attorney general. The attorney general shall forward one copy to the appropriate law enforcement agency having jurisdiction where the individual expects to reside, attend school, or work upon discharge, parole, or release.
  7. Registration consists of a written or electronic statement signed by the individual, giving the information required by the attorney general, and the biometric data and photograph of the individual. An individual who is not required to provide a sample of blood and other body fluids under section 31-13-03 or by the individual’s state or court of conviction or adjudication shall submit a sample of blood and other body fluids for inclusion in a centralized database of DNA identification records under section 31-13-05. The collection, submission, testing and analysis of, and records produced from, samples of blood and other body fluids, are subject to chapter 31-13. Evidence of the DNA profile comparison is admissible in accordance with section 31-13-02. A report of the DNA analysis certified by the state crime laboratory is admissible in accordance with section 31-13-05. A district court shall order an individual who refuses to submit a sample of blood or other body fluids for registration purposes to show cause at a specified time and place why the individual should not be required to submit the sample required under this subsection. Within three days after registration, the registering law enforcement agency shall forward the statement, biometric data, and photograph to the attorney general and shall submit the sample of the individual’s blood and body fluids to the state crime laboratory. If an individual required to register under this section has a change in vehicle or computer online identity, the individual shall register, within three days after the change, with the law enforcement agency having local jurisdiction of the individual’s place of residence of the individual’s new vehicle or computer online identity. If an individual required to register pursuant to this section has a change in name, school, or residence or employment address, that individual shall register, at least ten days before the change, with the law enforcement agency having local jurisdiction of the individual’s place of residence of the individual’s new name, school, residence address, or employment address. A change in school or employment address includes the termination of school or employment for which an individual required to register under this section, the individual shall register within three days of the termination with the law enforcement agency having local jurisdiction of the individual’s place of residence. The law enforcement agency, within three days after receipt of the information, shall forward it to the attorney general. The attorney general shall forward the appropriate registration data to the law enforcement agency having local jurisdiction of the new place of residence, school, or employment. Upon a change of address, the individual required to register also shall register within three days at the law enforcement agency having local jurisdiction of the new place of residence. If an individual required to register in North Dakota, including in a tribal registry, resides in another state or on tribal lands, that individual shall register employment and school addresses and any changes in required registration information with the law enforcement agency having local jurisdiction over the school or employment address. The individual registering under this section shall periodically confirm the information required under this subsection in a manner and at an interval determined by the attorney general. A law enforcement agency that has previously registered an offender may omit the biometric data portion of the registration if that agency has a set of biometric data on file for that individual and is personally familiar with and can visually identify the offender. These provisions also apply in any other state that requires registration.
  8. An individual required to register under this section shall comply with the registration requirement for the longer of the following periods:
    1. A period of fifteen years after the date of sentence or order deferring or suspending sentence upon a plea or finding of guilt or after release from incarceration, whichever is later;
    2. A period of twenty-five years after the date of sentence or order deferring or suspending sentence upon a plea or finding of guilt or after release from incarceration, whichever is later, if the offender is assigned a moderate risk by the attorney general as provided in subsection 12; or
    3. For the life of the individual, if that individual:
      1. On two or more occasions has pled guilty or nolo contendere to, or been found guilty of a crime against a child or as a sexual offender. If all qualifying offenses are misdemeanors, this lifetime provision does not apply unless a qualifying offense was committed after August 1, 1999;
      2. Pleads guilty or nolo contendere to, or is found guilty of, an offense committed after August 1, 1999, which is described in subdivision a of subsection 1 of section 12.1-20-03, section 12.1-20-03.1, or subdivision d of subsection 1 of section 12.1-20-03 if the person is an adult and the victim is under age twelve, or section 12.1-18-01 if that individual is an adult other than a parent of the victim, or an equivalent offense from another court in the United States, a tribal court, or court of another country; or
      3. Is assigned a high risk by the attorney general as provided in subsection 12.
  9. An individual required to register under this section who violates this section is guilty of a class C felony. The failure of a homeless individual to register as required in subsections 2 and 3 is prima facie evidence of a violation of this section. The clerk of court shall forward all warrants issued for a violation of this section to the county sheriff, who shall enter all such warrants into the national crime information center wanted person file. A court may not relieve an individual, other than a juvenile, who violates this section from serving a term of at least ninety days in jail and completing probation of one year.
  10. When an individual is released on parole or probation and is required to register pursuant to this section, but fails to do so within the time prescribed, the court shall order the probation, or the parole board shall order the parole, of the individual revoked.
  11. If an individual required to register pursuant to this section is temporarily sent outside the facility or institution where that individual is confined under conviction or sentence, the local law enforcement agency having jurisdiction over the place where that individual is being sent must be notified within a reasonable time period before that individual is released from the facility or institution. This subsection does not apply to any individual temporarily released under guard from the facility or institution in which that individual is confined.
  12. The attorney general, with the assistance of the department and the juvenile courts, shall develop guidelines for the risk assessment of sexual offenders who are required to register, with a low-risk, moderate-risk, or high-risk level being assigned to each offender as follows:
    1. The department shall conduct a risk assessment of sexual offenders who are incarcerated in institutions under the control of the department and sexual offenders who are on supervised probation. The department, in a timely manner, shall provide the attorney general any information, including the offender’s level of risk and supporting documentation, concerning individuals required to be registered under this section who are about to be released or placed into the community.
    2. The attorney general shall conduct a risk assessment of sexual offenders who are not under the custody or supervision of the department. The attorney general may adopt a law enforcement agency’s previous assignment of risk level for an individual if the assessment was conducted in a manner substantially similar to the guidelines developed under this subsection.
    3. The juvenile courts or the agency having legal custody of a juvenile shall conduct a risk assessment of juvenile sexual offenders who are required to register under this section. The juvenile courts or the agency having legal custody of a juvenile shall provide the attorney general any information, including the offender’s level of risk and supporting documentation, concerning juveniles required to register and who are about to be released or placed into the community.
    4. The attorney general shall notify the offender of the risk level assigned to that offender. An offender may request a review of that determination with the attorney general’s sexual offender risk assessment committee and may present any information that the offender believes may lower the assigned risk level.
  13. An individual assessed as a high-risk sexual offender in accordance with subsection 12, may not reside within five hundred feet [152.4 meters] of a public or nonpublic preschool or elementary, middle, or high school.
  14. Relevant and necessary conviction and registration information must be disclosed to the public by a law enforcement agency if the individual is a moderate or high risk and the agency determines that disclosure of the conviction and registration information is necessary for public protection. The attorney general shall develop guidelines for public disclosure of offender registration information. Public disclosure may include internet access if the offender:
    1. Is required to register for a lifetime under subsection 8;
    2. Has been determined to be a high risk to the public by the department, the attorney general, or the courts, according to guidelines developed by those agencies; or
    3. Has been determined to be a high risk to the public by an agency of another state or the federal government.
  15. A state officer, law enforcement agency, or public school district or governing body of a nonpublic school or any appointee, officer, or employee of those entities is not subject to civil or criminal liability for making risk determinations, allowing a sexual offender to attend a school function under section 12.1-20-25, or for disclosing or for failing to disclose information as permitted by this section.
  16. If a juvenile is adjudicated delinquent and required or ordered to register as a sexual offender or as an offender against a child under this section, the juvenile shall comply with the registration requirements in this section. Notwithstanding any other provision of law, a law enforcement agency shall register a juvenile offender in the same manner as adult offenders and may release any relevant and necessary information on file to other law enforcement agencies, the department of health and human services, or the public if disclosure is necessary to protect public health or safety. The law enforcement agency shall release any relevant and necessary information on file to the superintendent or principal of the school the juvenile attends. The school administration shall notify others in similar positions if the juvenile transfers to another learning institution in or outside the state.
  17. If an individual has been required to register as a sexual offender or an offender against a child under section 12.1-32-15 or former section 27-20-52.1 before August 1, 1999, the individual may petition the court to be removed from the offender list if registration is no longer mandatory for that individual. In considering the petition, the court shall comply with the requirements of this section.
  18. A sexual offender who is currently assigned a moderate or high-risk level by the attorney general may not use a state park of this state as a residence or residential address to comply with the registration requirements of this section. Before arriving at a state park for overnight lodging or camping, a sexual offender who is assigned a moderate or high-risk level by the attorney general shall notify a parks and recreation department law enforcement officer at the state park where the sexual offender will be staying.
  19. When an individual who is required to register pursuant to this section plans to travel outside of the United States, at least twenty-one days before the intended travel, the individual shall inform the agency with which the individual last registered the individual’s residence address the details of the intended travel. Upon receipt of the information from the registering law enforcement agency, the attorney general shall report the travel to the United States marshal service.

If the offender has been determined to be a moderate risk, public disclosure must include, at a minimum, notification of the offense to the victim registered under chapter 12.1-34 and to any agency, civic organization, or group of persons who have characteristics similar to those of a victim of the offender. Upon request, law enforcement agencies may release conviction and registration information regarding low-risk, moderate-risk, or high-risk offenders.

Source: S.L. 1991, ch. 136, § 1; 1993, ch. 129, § 3; 1995, ch. 139, § 1; 1997, ch. 124, § 5; 1997, ch. 128, § 2; 1997, ch. 136, § 1; 1997, ch. 137, § 1; 1999, ch. 50, § 33; 1999, ch. 123, § 3; 1999, ch. 131, § 1; 2001, ch. 134, § 8; 2001, ch. 140, § 1; 2001 Sp., ch. 690, § 1; 2003, ch. 113, § 1; 2005, ch. 121, § 1; 2007, ch. 124, § 4; 2007, ch. 136, § 1; 2009, ch. 121, § 2; 2009, ch. 136, § 1; 2009, ch. 137, § 1; 2009, ch. 139, § 3; 2011, ch. 103, § 1; 2011, ch. 102, §§ 1, 2; 2013, ch. 113, § 1; 2015, ch. 96, § 7, effective August 1, 2015; 2015, ch. 115, § 1, effective April 8, 2015; 2015, ch. 117, § 1, effective August 1, 2015; 2015, ch. 127, § 1, effective August 1, 2015; 2017, ch. 110, § 1, effective August 1, 2017; 2017, ch. 112, § 1; 2017, ch. 111, § 1, effective August 1, 2017; 2019, ch. 108, § 2, effective August 1, 2019; 2019, ch. 120, § 1, effective August 1, 2019; 2021, ch. 245, § 2, effective July 1, 2021; 2021, ch. 352, § 22, effective September 1, 2022.

12.1-32-16. Restitution to be required of certain offenders — Penalty.

Notwithstanding any other provision in this chapter, whenever a person whose license has been suspended for nonpayment of child support under section 50-09-08.6 is convicted of engaging in activity for which the license was required, the court shall require as a condition of the sentence that the person pay restitution in the amount of two hundred fifty dollars, or a higher amount set by the court, as specified in subdivision e of subsection 4 of section 12.1-32-07. Any restitution ordered under this section must be paid to the state disbursement unit for distribution under section 14-09-25.

Source: S.L. 2005, ch. 122, § 1.

CHAPTER 12.1-33 Rights of Convicts

12.1-33-01. Rights lost.

  1. A person sentenced for a felony to a term of imprisonment, during the term of actual incarceration under such sentence, may not:
    1. Vote in an election; or
    2. Become a candidate for or hold public office.
  2. A public office, other than an office held by one subject to impeachment, held at the time of sentence is forfeited as of the date of the sentence if the sentence is in this state, or, if the sentence is in another state or in a federal court, as of the date a certification of the sentence from the sentencing court is filed in the office of the secretary of state who shall receive and file it as a public document. An appeal or other proceeding taken to set aside or otherwise nullify the conviction or sentence does not affect the application of this section, but if the conviction is reversed, the defendant shall be restored to any public office forfeited under this section from the time of the reversal and shall be entitled to the emoluments thereof from the time of the forfeiture.

Source: S.L. 1973, ch. 116, § 32; 1979, ch. 186, § 1.

Cross-References.

Constitutional rights of defendants, see N.D. Const., Art. I, § 12.

Collateral References.

Offense under federal law or law of another state or country, conviction as vacating accused’s holding of state or local office or as ground of removal, 20 A.L.R.2d 732.

What constituted “conviction” within constitutional or statutory provision disfranchising one convicted of crime, 36 A.L.R.2d 1238.

Statutes or ordinances requiring persons previously convicted of crime to register with designated officials, 82 A.L.R.2d 398, 36 A.L.R.5th 161.

Effect of conviction under federal law, or law of another state or country, on right to vote or hold public office, 39 A.L.R.3d 303.

Pardon as restoring public office or license or eligibility therefor, 58 A.L.R.3d 1191.

Validity and construction of prison regulation of inmates’ possession of personal property, 66 A.L.R.4th 800.

Validity, construction, and application of state criminal disenfranchisement provisions, 10 A.L.R.6th 31.

Law Reviews.

Reducing Civil Disabilities for Convicted Felons in North Dakota: A Step in the Right Direction, 50 N.D. L. Rev. 45 (1973).

12.1-33-02. Rights retained by convicted person.

Except as otherwise provided by law, a person convicted of a crime does not suffer civil death or corruption of blood or sustain loss of civil rights or forfeiture of estate or property, but retains all of his rights, political, personal, civil, and otherwise, including the right to hold public office or employment; to vote; to hold, receive, and transfer property; to enter into contracts; to sue and be sued; and to hold offices of private trust in accordance with law.

Source: S.L. 1973, ch. 116, § 32.

Cross-References.

Constitutional rights of defendants, see N.D. Const., Art. I, § 12.

Notes to Decisions

Change of Name.

A civil right retained by prison inmate is the right to change one’s name. In re Mees, 465 N.W.2d 172, 1991 N.D. LEXIS 2 (N.D. 1991).

Requiring written findings delineating the reasons for denying a change of name petition is consistent with legislation which has expanded civil rights retained by convicts. In re Mees, 465 N.W.2d 172, 1991 N.D. LEXIS 2 (N.D. 1991).

Personal Appearance at Civil Proceeding.

Convict has no right under this section or the constitution to appear personally at a civil proceeding where he is permitted to appear through counsel or deposition; personal appearance in a civil case rests within the discretion of the trial court, taking into consideration the costs and inconvenience of transporting a prisoner, any potential danger or security risks involved, the substantiality of the matter involved, the need for an early determination of the matter, possibility of delaying until prisoner is released, probability of success on the merits, integrity of the correctional system, and the interest of the prisoner in presenting his testimony in person rather than by deposition. In Interest of H., 283 N.W.2d 202, 1979 N.D. LEXIS 298 (N.D. 1979).

The holding of a divorce hearing without the convict-husband being personally present because of his imprisonment did not constitute an abuse of the trial court’s discretion or violate any of convict-husband’s civil rights where his ability to give testimony by deposition and to be represented by counsel was unimpaired by the trial court, and no convincing reasons for a personal appearance were brought forth. Shulze v. Shulze, 322 N.W.2d 250, 1982 N.D. LEXIS 321 (N.D. 1982).

Reasonable Access to Courts.

Although prisoners retain a due process right to reasonable access to the courts, the court is powerless to order an out-of-state prison to make the defendant available for a civil trial; the court’s due process obligations are met when it does not impede a prisoner’s appearance at trial. St. Claire v. St. Claire, 2004 ND 39, 675 N.W.2d 175, 2004 N.D. LEXIS 47 (N.D. 2004).

DECISIONS UNDER PRIOR LAW

Loss of Ability to Maintain Actions.

A convict could maintain no action except one concerning his personal liberty and based on natural as distinguished, from legal rights, but, if sued, he could defend. Miller v. Turner, 64 N.D. 463, 253 N.W. 437, 1934 N.D. LEXIS 222 (N.D. 1934).

Collateral References.

State prisoner’s right to personally appear at civil trial to which he is a party — state court cases, 82 A.L.R.4th 1063.

12.1-33-02.1. Prior conviction of a crime not bar to state licensures — Exceptions.

  1. A person may not be disqualified to practice, pursue, or engage in any occupation, trade, or profession for which a license, permit, certificate, or registration is required from any state agency, board, commission, or department solely because of prior conviction of an offense. However, a person may be denied a license, permit, certificate, or registration because of prior conviction of an offense if it is determined that such person has not been sufficiently rehabilitated, or that the offense has a direct bearing upon a person’s ability to serve the public in the specific occupation, trade, or profession.
  2. A state agency, board, commission, or department shall consider the following in determining sufficient rehabilitation:
    1. The nature of the offense and whether it has a direct bearing upon the qualifications, functions, or duties of the specific occupation, trade, or profession.
    2. Information pertaining to the degree of rehabilitation of the convicted person.
    3. The time elapsed since the conviction or release. Completion of a period of five years after final discharge or release from any term of probation, parole or other form of community corrections, or imprisonment, without subsequent conviction shall be deemed prima facie evidence of sufficient rehabilitation.
  3. If conviction of an offense is used in whole or in part as a basis for disqualification of a person, such disqualification shall be in writing and shall specifically state the evidence presented and the reasons for disqualification. A copy of such disqualification shall be sent to the applicant by certified mail.
  4. A person desiring to appeal from a final decision by any state agency, board, commission, or department shall follow the procedure provided by the chapter of this code regulating the specific occupation, trade, or profession. If no appeal or review procedure is provided by such chapter, an appeal may be taken in accordance with chapter 28-32, except for attorneys disbarred or suspended under chapter 27-14.

Source: S.L. 1977, ch. 130, § 5; 1997, ch. 116, § 9.

Cross-References.

Definition of offense, see N.D.C.C. § 12.1-01-04(19).

Collateral References.

Propriety of questioning expert witness regarding specific incidents or allegations of expert’s unprofessional conduct or professional negligence, 11 A.L.R.5th 1.

12.1-33-02.2. Public employment — Consideration of criminal record.

  1. A public employer may not inquire into or consider the criminal record or criminal history of an applicant for public employment until the applicant has been selected for an interview by the employer.
  2. This section does not apply to the department of corrections and rehabilitation or to a public employer that has a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.
  3. This section does not prohibit a public employer from notifying an applicant that law or the employer’s policy will disqualify an individual with a particular criminal history background from employment in particular positions.
  4. As used in this section, the term “public employer” means the state or a county or city government, or an instrumentality or agency of the state or of a county or city government. The term includes a park district but does not include a school district.

Source: S.L. 2019, ch. 121, § 1, effective August 1, 2019.

12.1-33-03. Certificate of discharge.

  1. If the sentence were in this state, the sentence shall state that the defendant’s rights to vote and to hold any future public office are not lost except during the term of any actual incarceration and that he suffers no other disability by virtue of his conviction and sentence except as otherwise provided in such sentence or by law.
  2. If the sentence were in another state or in a federal court, the convicted person shall lose the rights to vote and to hold public office only during the term of actual incarceration. Any person who has been sentenced in another state or in a federal court to a term of imprisonment and who is present in this state shall be presumed to have had such rights restored.
  3. If another state having a similar statute issues its certificate of discharge to a convicted person stating that the defendant’s rights have been restored, the rights of which he was deprived in this state, under section 12.1-33-01, are restored to him in this state.

Source: S.L. 1973, ch. 116, § 32; 1979, ch. 186, § 2.

Collateral References.

Validity, construction, and application of state criminal disenfranchisement provisions, 10 A.L.R.6th 31.

12.1-33-04. Savings provisions.

This chapter does not:

  1. Affect the power of a court, otherwise given by law to impose sentence or to suspend imposition or execution of sentence on any conditions, or to impose conditions of probation, or the power of the parole board to impose conditions of parole.
  2. Deprive or restrict the authority and powers of officials of a penal institution or other penal facility, otherwise provided by law, for the administration of the institution or facility or for the control of the conduct and conditions of confinement of a convicted person in their custody.
  3. Affect the qualifications or disqualifications otherwise required or imposed by law for a designated office, public or private, or to serve as a juror or to vote or for any designated profession, trust, or position, or for any designated license or privilege conferred by public authority.
  4. Affect the rights of others arising out of the conviction or out of the conduct on which the conviction is based and not dependent upon the doctrines of civil death, the loss of civil rights, the forfeiture of estate, or corruption of blood.
  5. Affect laws governing rights of inheritance of a murderer from his victim.

Source: S.L. 1973, ch. 116, § 32.

CHAPTER 12.1-34 Fair Treatment of Victims and Witnesses

12.1-34-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Court” means a forum established by law for the adjudication of juvenile petitions, criminal complaints, informations, or indictments.
  2. “Crime” includes all felony offenses; class A misdemeanors, excluding violations of section 6-08-16.1 for no-account checks; all violations of chapters 12.1-17 and 12.1-20, including all corresponding violations of municipal ordinances; and any of the offenses in this subsection that may result in adjudication of delinquency.
  3. “Crime of violence” means any crime in which force, as defined by section 12.1-01-04, or threat of force was used against the victim.
  4. “Custodial authority” includes city jail, county jail, juvenile detention center, regional corrections center, halfway house, state penitentiary or Missouri River correctional center, state hospital, or any other inpatient mental health or treatment facility to which a criminal defendant may be sentenced or referred.
  5. “Disposition” means the sentencing or determination of penalty or punishment to be imposed upon a person convicted of a crime or found delinquent or against whom a finding of sufficient facts for conviction or finding of delinquency is made.
  6. “Family member” includes a spouse, child, sibling, parent, grandparent, grandchild, legal guardian, or custodian of a victim, and any person with a relationship to the victim which is substantially similar to a relationship specified in this section.
  7. “Prosecuting attorney” includes city attorney, state’s attorney, attorney general, or their assistants.
  8. “Registered victim” or “registered witness” means a victim or witness registered with the statewide automated victim information and notification system.
  9. “System” means the statewide automated victim information and notification system.
  10. “Victim” means a person who suffers direct or threatened physical, financial, or psychological harm as the result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed. The term “victim” does not include the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim.
  11. “Witness” means any person who has been or is expected to be summoned to testify for the prosecution whether or not any action or proceeding has yet been commenced.

Source: S.L. 1987, ch. 174, § 2; 1991, ch. 116, § 19; 2009, ch. 137, § 2; 2017, ch. 113, § 1, effective August 1, 2017; 2019, ch. 117, § 3, effective April 9, 2019.

Note.

Section 1 of chapter 174, S.L. 1989, provides:

“In recognition of the civic and moral duty of victims and witnesses of crime to fully and voluntarily cooperate with law enforcement and prosecutorial agencies, and in further recognition of the continuing importance of citizen cooperation to state and local law enforcement efforts and the general effectiveness and well-being of the criminal justice system of this state, the legislative assembly declares its intent to ensure that all victims and witnesses of crime are treated with dignity, respect, courtesy, and sensitivity; and that the rights extended in this Act to victims and witnesses of crime are honored and protected by law enforcement agencies, prosecutors, and judges in a manner no less vigorous than the protections afforded criminal defendants.”

Notes to Decisions

“Victim.”

The definition of “victim” in this chapter, does not apply to § 12.1-32-02 which is concerned with sentencing alternatives and puts no limitation on who can be a victim for purposes of restitution, thus an award of restitution to the drug task force is appropriate. State v. Velasquez, 1999 ND 217, 602 N.W.2d 693, 1999 N.D. LEXIS 229 (N.D. 1999).

Collateral References.

Validity, construction, and application of state constitutional or statutory victims’ bill of rights, 91 A.L.R.5th 343.

12.1-34-02. Fair treatment standards for victims and witnesses.

Victims and witnesses of crime must be afforded the following rights where applicable:

  1. Informed by those entities that have contact with the victim or witness as to the availability of and the methods available for registration with the statewide automated victim information and notification system. Those entities include law enforcement, prosecuting attorneys, the courts, and custodial authorities. A victim or witness who clearly objects to registration may not be required to register with the system or must be able to opt out of the system. A victim has the right to:
    1. Prevent the disclosure of confidential or privileged information about the victim or the victim’s family; and
    2. Be notified of any request for identifying information or confidential or privileged information about the victim or victim’s family.
  2. Informed as to status of investigation. Victims and witnesses, upon request, must be informed by law enforcement authorities investigating a criminal case of the status of the investigation, except where the prosecuting attorney or law enforcement authority determines that to disclose such information would unreasonably interfere with the investigation, until such time as the alleged offender is apprehended or the investigation is closed. A victim, upon request, must be allowed to confer with the prosecuting attorney.
  3. Informed as to criminal charges filed. Victims must be promptly informed by the prosecuting attorney of any criminal charges, arising from an incident in which the person was a victim, filed against any person arrested. The prosecuting attorney shall also provide a brief statement in nontechnical language of the procedural steps involved in the processing of a criminal case. Victims must also be informed by the prosecuting attorney of the pretrial status of each person arrested, including bail and any pretrial release conditions.
  4. Notice of pretrial release.
    1. Registered victims must be given prompt notice of any hearing in which the arrested person’s pretrial release status will be determined. If the alleged offender is scheduled to be released prior to an appearance in court, prompt notice must be given to the registered victim and witness.
    2. Victims who are not registered must be given prompt notice, by the law enforcement agency that has made an arrest in any case involving a crime of violence, of any hearing in which the arrested person’s pretrial release status will be determined. If the alleged offender in a crime of violence is scheduled to be released before an appearance in court, the custodial authority shall give prompt notice to the victim and witness or, if unavailable, to the arresting law enforcement agency, which shall provide the notice to the victim or witness. The law enforcement agency or custodial authority may fulfill its obligation to notify by registering the victim with the system.
    3. Victims and witnesses must be informed by the prosecuting attorney of the methods for enforcing any pretrial release conditions including information as to the level of protection available from law enforcement in the case of harm, threats, or intimidation made to the victim or witness.
  5. Notice as to victims’ and witnesses’ participation in court proceedings. Victims must be informed by the prosecuting attorney of all court proceedings in a reasonable time prior to the proceedings. Witnesses must be informed by the prosecuting attorney of all court proceedings at which their presence is required in a reasonable time prior to the proceedings and informed in nontechnical language of the procedural steps involved in the processing of a criminal case. Victims and witnesses must be notified by the prosecuting attorney of the cancellation of any scheduled court proceeding in sufficient time to prevent an unnecessary appearance in court. All victims and witnesses shall provide the prosecuting attorney with current information as to address and telephone number, such information to be kept confidential subject to other provisions of this chapter. The notice given by the prosecuting attorney to the victims and witnesses must be given by any means reasonably calculated to give prompt notice.
  6. Services available. Victims and witnesses must be informed by the prosecuting attorney and arresting law enforcement agency of all appropriate and available public or private programs that provide counseling, treatment, or support for victims and witnesses, including rape crisis centers, victim and witness assistance programs, elderly victim services, victim assistance hotlines, social service agencies, and domestic violence programs. Victims and witnesses must be informed of the right to seek the advice of an attorney. The prosecuting attorney and law enforcement authority shall advise victims eligible for services of the relevant provisions of chapter 54-23.4.
  7. Employer intercession. Victims and witnesses upon request must be provided by the prosecuting attorney with appropriate employer intercession services to ensure that employers of victims and witnesses will cooperate with the criminal justice process in order to minimize an employee’s loss of pay and other benefits resulting from court appearances.
  8. Witness fee. Witnesses must be informed by the prosecuting attorney or the court of the procedures to be followed in order to apply for and receive any witness fee to which they are entitled under law.
  9. Return of property. Victims shall have any personal property that was stolen or taken for evidentiary purposes, except contraband, property subject to evidentiary analysis, and property the ownership of which is disputed, returned by the court, prosecuting attorney, or law enforcement agency within ten days after its taking or recovery if it is not needed for law enforcement, prosecution, or defense purposes or as expeditiously as possible when the property is no longer needed for law enforcement, prosecution, or defense purposes. If there is a defendant, the prosecuting attorney shall notify the defendant of the intent to return the property to the owner. Upon a motion made by the defendant and upon good cause shown that the property contains exculpatory evidence of the defendant’s innocence, the court may order the law enforcement personnel in possession of the property not to release it to the owner.
  10. Waiting area. Victims and witnesses must be provided by prosecuting attorneys and defense attorneys as assisted by the court with a waiting area separate from the defendant, defendant’s relatives and friends, and defense witnesses if such an area is available and the use of the area is practical. If a separate waiting area is not available or practical, the court shall provide other safeguards to minimize the victims’ and witnesses’ contact with the defendant, defendant’s relatives and friends, and defense witnesses during court proceedings.
  11. Protection of identifying information. Victims and witnesses may not be compelled to testify at any pretrial proceeding or at trial for purposes of identifying the victims’ or witnesses’ address, telephone number, place of employment, or other personal identification except for name without the victims’ or witnesses’ consent, unless there is a showing of good cause as determined by the court. Records of a criminal justice agency as defined by section 44-04-18.7, a correctional facility as defined in section 12-44.1-01, and the department of corrections and rehabilitation containing the address, telephone number, place of employment, or other information that could be used to locate the victim or witness to a crime, are exempt.
  12. Right to be present throughout trial. The victim must be informed by the prosecuting attorney of the victim’s right to be present throughout the trial of the defendant, except as provided by rule 615 of the North Dakota Rules of Evidence.
  13. Prompt disposition of case. Victims and witnesses must be informed by the prosecuting attorney of their rights to a prompt disposition of the cases in which they are involved as victims or witnesses as defined by the docket currency standards of the North Dakota supreme court.
  14. Notice as to scheduling of hearing. Registered victims must be informed of the date, time, and place of hearing at which a plea of guilty or not guilty will be entered and of a sentencing hearing. Victims who are not registered must be given the same information by the prosecuting attorney. The prosecuting attorney shall explain to and consult with the victim in nontechnical language details of any potential plea agreement or verdict.
  15. Victim impact statement. The victim must be informed by the prosecuting attorney, prior to sentencing, of the victim’s right to submit or make a written impact statement to the court in any criminal case. If a presentence investigation is ordered, the probation officer assigned the report shall include this information in the report. This statement may include an explanation by the victim of the nature and extent of any physical, psychological, or emotional harm or trauma suffered by the victim; an explanation of the extent of any economic loss or property damage suffered by the victim; an opinion of the need for and extent of restitution; and the victim’s recommendation for an appropriate sentence. The prosecuting attorney shall advise all victims that the presentence report is subject to review by the defendant and that the report will include the victim’s statement. If the sentencing court does not order a presentence investigation, the victim may submit a written impact statement, under oath, to the office of the state’s attorney which statement must be submitted to the sentencing court. The victim of violent crime may appear in court to make an oral crime impact statement at the sentencing of the defendant in appropriate circumstances at the discretion of the judge. This oral statement must be made under oath and is subject to cross-examination.
  16. Notice of final disposition and parole procedures. Registered victims and witnesses must be informed of the final disposition of any criminal case. Victims who are not registered must be given the same notice by the prosecuting attorney. The prosecuting attorney shall explain to the victim the parole process and pardon process and further advise the victim of the necessity of advising the custodial authority and the parole board and the pardon clerk of the victim’s address in order for the victim to receive further information under other provisions of this chapter.
  17. Prompt notice of custodial release. Registered victims and witnesses must be informed whenever a criminal defendant receives a temporary, provisional, or final release from custody or whenever the defendant escapes from custody. Victims who are not registered must be given the same notice by the appropriate custodial authority. Notification must include the transfer of the defendant to a work-release program, a community residential program, or transfer to a mental health facility. All notices to the registered victim and witnesses concerning this release information must be within a reasonable time prior to the defendant’s release or transfer. The notice given by the custodial authority must be given by any means reasonably calculated to give prompt notice.
  18. Participation in parole board and pardon decision. Victims may submit a written statement for consideration by the parole board, the governor, or the pardon advisory board, if one has been appointed, prior to the parole board, the governor, or the pardon advisory board taking any action on a defendant’s request for parole or pardon. A victim statement made under this subsection is a confidential record and may be disclosed only to the parole board, the governor, the pardon advisory board, or their authorized representative. Victims of violent crimes may at the discretion of the parole board, the governor, or the pardon advisory board personally appear and address the parole board, the governor, or the pardon advisory board. Victim testimony and written statements under this subsection are confidential and may be disclosed only to the parole board, the governor, the pardon advisory board, or their authorized representative. Notice must be given by the parole board or pardon clerk informing the registered victim of the pending review. The registered victim must be provided notice of the decision of the parole board or of the governor and the recommendations of the pardon advisory board, if any, and, if applicable, notice of the date of the prisoner’s release on parole or the prisoner’s pardon, conditional pardon, reprieve, commutation, or remission of fine. Notice must be given within a reasonable time after the parole board or the governor makes a decision but in any event before the parolee’s or pardoned prisoner’s release from custody.
  19. Victims and witnesses of crimes committed by juveniles are entitled to the same rights under this chapter in juvenile delinquency proceedings as in any other proceeding. In addition, every victim or a witness who is a minor is entitled to have that person’s spouse, parent, guardian, and no more than two other designated adults present with that person during any juvenile delinquency proceedings.
  20. Access to law enforcement report. Upon request of the child sexual abuse victim over the age of eighteen, the prosecuting attorney or law enforcement authority shall provide the victim with a copy of the law enforcement report corresponding with the victim’s case number.
  21. Preservation of evidence. A prosecuting attorney, law enforcement authority, criminal laboratory, or evidentiary storage facility may not destroy or dispose of any evidence to a criminal offense before the limitation period for prosecution for the offense has ended or the offense has been adjudicated.
  22. If the victim is deceased, incompetent, incapacitated, or a minor, the victim’s spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim which is substantially similar to a listed relationship, may exercise the rights granted to a victim under this chapter.

Source: S.L. 1987, ch. 174, § 3; 1993, ch. 133, § 1; 1993, ch. 135, § 19; 1995, ch. 124, § 6; 1997, ch. 115, § 3; 1999, ch. 117, § 4; 2005, ch. 123, § 1; 2009, ch. 137, § 3; 2013, ch. 114, § 1; 2017, ch. 308, § 1, effective April 12, 2017; 2017, ch. 113, § 2, effective August 1, 2017; 2019, ch. 117, § 4, effective April 9, 2019; 2019, ch. 268, § 1, effective August 1, 2019.

Collateral References.

Victim impact evidence in capital sentencing hearings — post-Payne v. Tennessee, 79 A.L.R.5th 33.

Law Reviews.

Note: The Domestic Violence Leave Act: The Need For Victim Workplace Leave On A Federal Level And In North Dakota, 87 N.D. L. Rev. 167 (2011).

12.1-34-03. Responsibilities of victims and witnesses.

Victims and witnesses have all of the following responsibilities to aid in the prosecution of crime:

  1. To make a timely report of the crime.
  2. To cooperate with law enforcement authorities throughout the investigation, prosecution, and trial.
  3. To testify at trial.
  4. To notify the system, law enforcement authorities, prosecuting attorney, custodial authority, parole board, pardon clerk, and court, where appropriate, of any change of contact information. Except for release to a domestic violence sexual assault organization as defined in section 14-07.1-01, all contact information provided must be kept confidential.

Source: S.L. 1987, ch. 174, § 4; 1997, ch. 115, § 4; 2009, ch. 137, § 4; 2011, ch. 104, § 1.

12.1-34-04. Victim and witness services.

Each prosecuting attorney is responsible for securing for victims and witnesses of crime the rights and services described in this chapter. Those services include all of the following:

  1. Court appearance notification services, including cancellations of appearances.
  2. Informational services relative to the availability of the collection of witness fees, victim compensation, or restitution.
  3. Escort and other transportation services related to the investigation or prosecution of the case, if necessary.
  4. Case process notification services.
  5. Employer intercession services.
  6. Expedited return of property services.
  7. Protection services.
  8. Family support services, including child and other dependent care services.
  9. Waiting facilities.
  10. Social service and other public or private agency referrals.

Source: S.L. 1987, ch. 174, § 5.

12.1-34-05. Cause of action for damages or injunctive relief.

Nothing in this chapter may be construed as creating a cause of action for money damages or injunctive relief against the state, county, municipality, or any of their agencies, instrumentalities, or employees. Furthermore, the failure to provide a right, privilege, or notice to a victim under this chapter is not grounds for the defendant to seek to have the conviction or sentence set aside. This chapter does not limit any rights to which victims and witnesses of crime are otherwise entitled.

Source: S.L. 1987, ch. 174, § 6.

Notes to Decisions

Standing.

Contempt was not an available remedy for a burglary victim as he was not a party to the criminal prosecution and did not suffer an injury recognized by law as a result of the district court’s decision to terminate the accused’s probation; therefore, the victim did not have standing to challenge the district court’s order. The victim’s rights enunciated in N.D.C.C. ch. 12.1-34 did not give the victim standing under N.D.R.Crim.P. 35, the court’s inherent authority to correct fraud, or N.D.C.C. § 12.1-32-07(7) to contest the court’s order terminating the accused’s probation and dismissing the criminal action against him. State v. Leingang, 2009 ND 38, 763 N.W.2d 769, 2009 N.D. LEXIS 58 (N.D. 2009).

12.1-34-06. Statewide automated victim information and notification system.

  1. The office of the attorney general shall maintain a statewide automated victim information and notification system that must:
    1. Permit a victim to register or update the victim’s registration information for the system by calling a toll-free telephone number or accessing a public website.
    2. Notify a registered victim by telephone, mail, text message, or electronic mail in accordance with this chapter.
    3. Notify a registered victim by telephone, mail, text message, or electronic mail when the offender has a scheduled court proceeding, a parole review, or a change in the status of the offender’s parole or probation status, including a change in the offender’s address.
    4. Notify a registered victim by telephone, mail, text message, or electronic mail when a protective order requested by the victim has been served upon the respondent.
    5. Permit a victim to receive a status report for an offender under the supervision or in the custody of the department of corrections and rehabilitation or other correctional facility by calling the system on a toll-free telephone number or by accessing the system through a public website.
  2. The provision of offender and case data on a timely basis to the automated victim information and notification system satisfies any obligation under this chapter to notify a registered victim of an offender’s custody and the status of the offender’s scheduled court proceedings.
  3. The user agency shall ensure that an offender’s information contained in the system is updated to timely notify a victim that an offender has been released or discharged or has escaped. The failure of the system to provide notice to the victim does not establish a cause of action by the victim against the state or any custodial authority.
  4. All affected entities, including custodial authorities, prosecuting attorneys, law enforcement agencies, courts, the attorney general’s office, and the parole clerk, shall cooperate with the system operator in establishing and maintaining the statewide automated victim information and notification system.

Source: S.L. 2007, ch. 137, § 1; 2009, ch. 137, § 5; 2013, ch. 114, § 2; 2017, ch. 113, § 3, effective August 1, 2017.

12.1-34-07. Medical screening and acute forensic medical examinations costs — Reimbursement by attorney general — Use of evidence.

  1. An acute forensic medical examination is an examination performed on an alleged victim of criminal sexual conduct for the purpose of gathering evidence of an alleged crime and is performed within ninety-six hours after the alleged crime unless good cause is shown for the delay in performing the examination. When an acute forensic medical examination is performed, the costs incurred by a health care facility or health care professional for performing the acute forensic medical examination or any preliminary medical screening examination may not be charged, either directly or through a third-party payer, to the alleged victim.
  2. A child forensic medical examination is an examination performed on an alleged child victim of criminal sexual conduct for the purpose of gathering evidence of an alleged crime. When a child forensic medical examination is performed, the costs incurred by a health care facility or health care professional for performing the child forensic medical examination or any preliminary medical screening examination may not be charged, either directly or through a third-party payer, to the alleged child victim or the child’s parent, guardian, or custodian.
  3. Upon submission of appropriate documentation, the attorney general, within the limits of legislative appropriations, shall reimburse the health care facility or a health care professional for the reasonable costs incurred in performing the medical screening and acute forensic medical examination. Beginning on April first of the final year of each biennium, the attorney general, subject to legislative appropriations, shall reimburse each accredited children’s advocacy center located in the state for a forensic interview that is not reimbursable by insurance, Medicaid, or crime victims compensation.
  4. Evidence obtained during a medical examination under this section may not be used against an alleged victim for the prosecution of the alleged victim for a separate offense.

Source: S.L. 2007, ch. 138, § 1; 2009, ch. 138, § 1; 2017, ch. 344, § 1, effective August 1, 2017.

12.1-34-08. Victim’s rights card.

The attorney general shall develop a card containing the rights of victims as provided in this chapter and section 25 of article I of the Constitution of North Dakota to be distributed to all crime victims.

Source: S.L. 2017, ch. 113, § 4, effective August 1, 2017.

CHAPTER 12.1-35 Child Victim and Witness Fair Treatment Standards

12.1-35-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Child” means an individual under the age of eighteen years.
  2. “Child development specialist” means an individual who demonstrates educational and work experience exhibiting an understanding of child development and behavior.
  3. “Court” means a forum established by law for the adjudication of juvenile petitions, criminal complaints, informations, or indictments.
  4. “Family member” means a spouse, child, sibling, parent, legal guardian, or custodian of a victim.
  5. “Prosecuting attorney” includes city attorney, state’s attorney, attorney general, or their assistants.
  6. “Sex offense” includes all sex offenses defined as such in chapter 12.1-20.
  7. “Victim” means a living child who has suffered direct or threatened physical, financial, or emotional harm as a result of the commission or attempted commission of a crime.
  8. “Witness” means any living child who has been or is expected to be summoned to testify in a criminal case whether or not any action or proceeding has been commenced.

Source: S.L. 1987, ch. 175, § 2; 1993, ch. 134, § 1; 1997, ch. 138, § 1.

Note.

Section 1 of chapter 175, S.L. 1987, provides:

“The legislature finds that it is necessary to provide child victims and witnesses with additional consideration and fair treatment than that usually afforded to adults. The legislature intends, in this Act, to provide these children with additional rights and protections during their involvement with the criminal justice system.”

Collateral References.

Witnesses: child competency statutes, 60 A.L.R.4th 369.

12.1-35-02. Additional services.

In addition to all rights afforded to victims and witnesses by law, state’s attorneys are encouraged to provide the following additional services to children who are involved in criminal proceedings as victims or witnesses:

  1. Explanations, in language understood by the child, of all legal proceedings in which the child will be involved.
  2. Advice to the court concerning the ability of a child witness to cooperate with the prosecution and the potential effects of the proceedings on the child.
  3. Information about, and referrals to, appropriate social services programs to assist the child and the child’s family members in coping with the emotional impact of the crime and the subsequent proceedings in which the child is involved.
  4. Information about the availability of a child development specialist to ensure questions asked of the witness are chronologically and developmentally appropriate.

Source: S.L. 1987, ch. 175, § 3; 1993, ch. 134, § 2.

12.1-35-03. Information about child victims or witnesses of crimes generally may not appear in public record.

  1. In order to protect the child from possible trauma resulting from publicity, the name of the child victim or child witness of a crime, except as specified in subsection 2, and identifying biographical information may not appear on the indictment or any other public record. Instead, a Jane Doe or Joe Doe designation must appear in all public records. Sealed confidential records containing the child’s name and necessary biographical information must be kept in order to ensure that no defendant is charged twice.
  2. Interviews and statements of child victims or child witnesses obtained during an investigation of a crime of a violent or sexual nature are exempt.
  3. Subsection 1 does not apply to the name and identifying biographical information of:
    1. A child victim or child witness of a criminal offense under title 39 or equivalent ordinance; and
    2. A child victim of a fire.

Source: S.L. 1987, ch. 175, § 4; 1997, ch. 138, § 2; 2017, ch. 308, § 2, effective April 12, 2017.

12.1-35-04. Limits on interviews and testimony.

The prosecuting attorney, the court, and appropriate law enforcement personnel, to the extent possible, shall protect the victim or witness from the psychological damage of repeated or lengthy interview, testimony, or discovery proceedings while preserving the rights of the public, the victim, and the person charged with the violation.

Source: S.L. 1987, ch. 175, § 5; 1993, ch. 134, § 3; 1997, ch. 139, § 1.

12.1-35-05. Prompt disposition.

In all criminal cases and juvenile proceedings involving a child victim or witness, the court and the state’s attorney shall take appropriate action to ensure a speedy trial in order to minimize the length of time the child must endure the stress of involvement in the proceedings. In ruling on any motion or other request for a delay or a continuance of proceedings, the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or witness.

Source: S.L. 1987, ch. 175, § 6.

12.1-35-05.1. Assistance during proceedings.

Upon request of a witness who is under the age of fourteen, the court shall permit an individual selected by the court to sit with, accompany, or be in close proximity to the witness in order to provide support to the witness while that witness is giving testimony. In order to provide support to a witness who is fourteen years of age or older, while that witness is giving testimony, the court may permit an individual selected by the court to sit with, accompany, or be in close proximity to that witness.

Source: S.L. 1993, ch. 134, § 4.

12.1-35-05.2. Confidentiality of testimony.

In any criminal proceeding in which the defendant is charged with a violation of chapter 12.1-20 involving a child, the court, upon the motion of the prosecuting attorney, shall conduct a hearing to determine whether the testimony of and relating to a child may be closed to the public in order to protect the child’s reputation. In making the determination to close the proceedings, the court shall consider:

  1. The nature and seriousness of the offense;
  2. The age of the child;
  3. The extent to which the size of the community would preclude the anonymity of the victim;
  4. The likelihood of public opprobrium due to the status of the victim;
  5. Whether the prosecution has demonstrated a substantial probability that the identity of the witness would otherwise be disclosed to the public during the proceeding and that the disclosure would cause serious harm to the witness;
  6. Whether the witness has disclosed information concerning the case to the public through press conferences, public meetings, or other means; and
  7. Any other factor the court may find necessary to protect the interests of justice.

Source: S.L. 1993, ch. 134, § 4.

Notes to Decisions

Closure of courtroom.

District court’s findings in support of closing the courtroom for the victim’s testimony were not clearly erroneous because the district court assumed that the State’s interest was to allow the juvenile victim to testify without fear, to keep her identity private, and to shield her from coercion and intimidation, and there was no reasonable alternatives to closure; it was not clearly erroneous to infer that the overriding interest was the express purpose of the statute. State v. Martinez, 2021 ND 42, 956 N.W.2d 772, 2021 N.D. LEXIS 57 (N.D. 2021).

Failure to Analyze Factors.

District court erred in denying defendant’s motion to dismiss a jury verdict finding him guilty of corruption and solicitation of a minor because the district court committed structural error by closing the courtroom during the complaining witness’ testimony without conducting a hearing, making findings, or analyzing the appropriate constitutional and statutory factors, and considered only that the complaining witness was a minor. State v. Pittenger, 2019 ND 22, 921 N.W.2d 439, 2019 N.D. LEXIS 24 (N.D. 2019).

12.1-35-05.3. Application to discovery proceedings.

This chapter applies to any criminal proceeding, including a deposition or other discovery proceeding.

Source: S.L. 1993, ch. 134, § 4.

12.1-35-06. Cause of action for damages and injunctive relief.

Nothing in this chapter may be construed as creating a cause of action for money damages or injunctive relief against the state, county, municipality, or any of their agencies, instrumentalities, or employees. Furthermore, the failure to provide a right, privilege, or notice to a child victim or witness under this chapter is not grounds for the defendant to seek to have the conviction or sentence set aside. This chapter does not limit any rights to which child victims and witnesses of crime are otherwise entitled.

Source: S.L. 1987, ch. 175, § 7.

CHAPTER 12.1-36 Female Genital Mutilation

12.1-36-01. Surgical alteration of the genitals of female minor — Penalty — Exception.

  1. Except as provided in subsection 2, any person who knowingly separates or surgically alters normal, healthy, functioning genital tissue of a female minor is guilty of a class C felony.
  2. A surgical operation is not a violation of this section if a licensed medical practitioner performs the operation to correct an anatomical abnormality or to remove diseased tissue that is an immediate threat to the health of the female minor. In applying this subsection, any belief that the operation is required as a matter of custom, ritual, or standard of practice may not be taken into consideration.
  3. Any parent, adult family or household member, guardian, or other custodian of any child who willfully allows a child to be surgically altered under this section is guilty of child abuse under subsection 1 of section 14-09-22.
  4. A custom, ritual, religious practice, or the consent of the parent or guardian of a minor is not a defense against a violation under this section.
  5. Notwithstanding the limitations of section 29-04-02, prosecution for a violation of subsection 3 must be commenced within three years of the date of the offense or within three years after the offense is reported to law enforcement, whichever is later.

Source: S.L. 1995, ch. 140, § 1; 2019, ch. 122, § 1, effective August 1, 2019.

Notes to Decisions

Constitutionality.

Mother of baby son who was circumcised, to which father consented but she did not, lacked standing to challenge this section as a violation of the equal protection clause of U.S. Const., Amend. 14. Fishbeck v. North Dakota, 115 F.3d 580, 1997 U.S. App. LEXIS 12708 (8th Cir. N.D. 1997).

CHAPTER 12.1-37 Child Support Nonpayment

12.1-37-01. Willful failure to pay child support — Classification of offenses — Affirmative defense — Penalty.

  1. A person is guilty of an offense if the person willfully fails to pay child support in an amount ordered by a court or other governmental agency having authority to issue the orders.
    1. If the unpaid amount is greater than the greater of two thousand dollars or six times the monthly child support obligation, the offense is a class C felony.
    2. If the unpaid amount is greater than the greater of one thousand dollars or three times the monthly child support obligation, but less than the amount required under subdivision a, the offense is a class A misdemeanor.
    3. If the unpaid amount is less than the amount required under subdivision b, the offense is a class B misdemeanor.
  2. If the failure to pay child support occurs while the defendant was in another state, and while the child was in this state, the offense must be construed to have been committed in this state.
  3. It is an affirmative defense to a charge under subsection 1 that the defendant suffered from a disability during the periods an unpaid child support obligation accrued, such as to effectively preclude the defendant’s employment at any gainful occupation. This defense is available only if the defendant lacked the means to pay the ordered amounts other than from employment.
  4. For purposes of this section, “child support” has the meaning provided in section 14-09-09.10.
  5. This section applies only to the willful failure to pay child support after August 1, 1995.
  6. In a prosecution under this chapter, a copy of a record certified under section 14-08.1-08 is admissible as prima facie evidence of the contents of the record.

Source: S.L. 1995, ch. 141, § 1; 2007, ch. 148, § 1.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Child Support Arrearages.

Prosecution for willful failure to pay child support in violation of N.D.C.C. § 12.1-37-01 was not time-barred under N.D.C.C § 29-04-02 because the plain language of N.D.C.C. § 12.1-37-01 authorized a prosecution for willful failure to pay not only orders for current support, but also child support arrearages. State v. Nastrom, 2008 ND 110, 750 N.W.2d 432, 2008 N.D. LEXIS 106 (N.D. 2008).

CHAPTER 12.1-38 Assumption of Risk in Crimes

12.1-38-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Convicted” includes a finding of guilt, whether or not the adjudication of guilt is stayed or executed, an unwithdrawn judicial admission of guilt or guilty plea, a no contest plea, a judgment of conviction, an adjudication as a delinquent child, or an admission to a juvenile delinquency petition.
  2. “Course of criminal conduct” includes the acts or omissions of a victim in resisting criminal conduct.
  3. “Crime” includes an offense named in section 12.1-16-01, 12.1-16-02, 12.1-16-03, 12.1-17-01, 12.1-17-01.1, 12.1-17-01.2, 12.1-17-02, 12.1-17-03, 12.1-17-04, chapter 12.1-18, section 12.1-20-03, 12.1-20-04, 12.1-20-05, 12.1-20-07, chapter 12.1-21, section 12.1-22-01, 12.1-22-02, or 12.1-22-03, or an attempt to commit any of these offenses. The term includes a crime in other states which would have been within this definition if the crime had been committed in this state.
  4. “Perpetrator” means a person who has engaged in criminal conduct and includes a person convicted of a crime.
  5. “Victim” means a person who was the object of another’s criminal conduct and includes a person at the scene of an emergency who gives reasonable assistance to another person who is exposed to or has suffered grave physical harm.

Source: S.L. 1997, ch. 140, § 1; 2019, ch. 107, § 7, effective August 1, 2019.

12.1-38-02. Perpetrator’s assumption of the risk.

A perpetrator assumes the risk of loss, injury, or death resulting from or arising out of a course of criminal conduct involving a crime, as defined in this chapter, engaged in by the perpetrator or an accomplice, as defined in section 12.1-03-01, and the crime victim is immune from and not liable for any damages as a result of acts or omissions of the victim if the victim used reasonable force as authorized in section 12.1-05-03 or 12.1-05-04. However, the perpetrator’s assumption of risk does not eliminate the crime victim’s duty to protect against conditions upon the premises which the crime victim knows or has reason to know may create an unreasonable risk of harm or which may cause a foreseeable trespass by minors, nor does the assumption of risk apply to perpetrators who are mentally incompetent or deficient.

Source: S.L. 1997, ch. 140, § 1.

12.1-38-03. Evidence.

Notwithstanding other evidence that the victim may adduce relating to the perpetrator’s conviction of the crime involving the parties to a claim for relief, a certified copy of a guilty plea, a court judgment of guilt, a court record of conviction, or an adjudication as a delinquent child is conclusive proof of the perpetrator’s assumption of the risk.

Source: S.L. 1997, ch. 140, § 1.

12.1-38-04. Attorney’s fees to victim.

If the perpetrator does not prevail in a claim for relief that is subject to this chapter, the court may award reasonable expenses, including attorney’s fees and disbursements, to the victim.

Source: S.L. 1997, ch. 140, § 1.

12.1-38-05. Stay of claim for relief.

Except to the extent needed to preserve evidence, any claim for relief in which the defense set forth in this chapter is raised must be stayed by the court on the motion of the defendant during the pendency of any criminal action against the plaintiff based on the alleged crime.

Source: S.L. 1997, ch. 140, § 1.

CHAPTER 12.1-39 Human Cloning

12.1-39-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Fetus” means a living organism of the species homo sapiens from eight weeks’ development until complete expulsion or extraction from a woman’s body, or until removal from an artificial womb or other similar environment designed to nurture the development of such organism.
  2. “Human cloning” means human asexual reproduction, accomplished by introducing the genetic material of a human somatic cell into a fertilized or unfertilized oocyte, the nucleus of which has been or will be removed or inactivated, to produce a living organism with a human or predominantly human genetic constitution.
  3. “Human embryo” means a living organism of the species homo sapiens from the single-celled state to eight weeks’ development.
  4. “Human somatic cell” means a cell having a complete set of chromosomes obtained from a living or deceased human organism of the species homo sapiens at any stage of development.
  5. “Oocyte” means a human female germ cell, also known as an egg.

Source: S.L. 2003, ch. 114, § 1.

12.1-39-02. Human cloning — Prohibition — Penalty.

  1. A person may not intentionally or knowingly:
    1. Perform or attempt to perform human cloning;
    2. Participate in performing or attempting to perform human cloning;
    3. Transfer or receive the product of a human cloning for any purpose; or
    4. Transfer or receive, in whole or in part, any oocyte, human embryo, human fetus, or human somatic cell, for the purpose of human cloning.
  2. Nothing in subsection 1 restricts areas of scientific research not specifically prohibited, including in vitro fertilization, the administration of fertility-enhancing drugs, or research in the use of nuclear transfer or other cloning techniques to produce molecules, deoxyribonucleic acid, tissues, organs, plants, animals other than humans, or cells other than human embryos.
  3. A person who violates subdivision a or b of subsection 1 is guilty of a class C felony. A person who violates subdivision c or d of subsection 1 is guilty of a class A misdemeanor.

Source: S.L. 2003, ch. 114, § 2.

Cross-References.

Classification of offenses, penalties, see N.D.C.C. § 12.1-32-01.

CHAPTER 12.1-40 Human Trafficking [Repealed]

[Repealed by S.L. 2015, ch. 117, § 3]

12.1-40-01. Human trafficking — Penalty. [Repealed]

Source: S.L. 2009, ch. 139, § 1; repealed by 2015, ch. 117, § 3, effective August 1, 2015.

12.1-40-02. Definitions. [Repealed]

Source: S.L. 2009, ch. 139, § 1; repealed by 2015, ch. 117, § 3, effective August 1, 2015.

CHAPTER 12.1-41 Uniform Act on Prevention of and Remedies for Human Trafficking

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-01. Definitions.

In this chapter:

  1. “Adult” means an individual eighteen years of age or older.
  2. “Coercion” means:
    1. The use or threat of force against, abduction of, serious harm to, or physical restraint of, an individual;
    2. The use of a plan, pattern, or statement with intent to cause an individual to believe that failure to perform an act will result in the use of force against, abduction of, serious harm to, or physical restraint of, an individual;
    3. The abuse or threatened abuse of law or legal process;
    4. Controlling or threatening to control an individual’s access to a controlled substance as defined in section 19-03.1-01;
    5. The destruction or taking of or the threatened destruction or taking of an individual’s identification document or other property;
    6. The use of debt bondage;
    7. The use of an individual’s physical or mental impairment when the impairment has a substantial adverse effect on the individual’s cognitive or volitional function; or
    8. The commission of civil or criminal fraud.
  3. “Commercial sexual activity” means sexual activity for which anything of value is given to, promised to, or received, by a person.
  4. “Debt bondage” means inducing an individual to provide commercial sexual activity in payment toward or satisfaction of a real or purported debt or inducing an individual to provide labor or services in payment toward or satisfaction of a real or purported debt if the reasonable value of the labor or services is not applied toward the liquidation of the debt or if the length of the labor or services is not limited and the nature of the labor or services is not defined. The term does not include an effort by a creditor to collect an enforceable obligation by means that are permitted under state or federal laws.
  5. “Human trafficking” means the commission of an offense created by sections 12.1-41-02 through 12.1-41-06.
  6. “Identification document” means a passport, driver’s license, immigration document, travel document, or other government-issued identification document, including a document issued by a foreign government.
  7. “Labor or services” means activity having economic value.
  8. “Minor” means an individual less than eighteen years of age.
  9. “Serious harm” means harm, whether physical or nonphysical, including psychological, economic, or reputational, to an individual which would compel a reasonable individual of the same background and in the same circumstances to perform or continue to perform labor or services or sexual activity to avoid incurring the harm.
  10. “Sexual activity” means “sexual act” as defined in section 12.1-20-02. The term includes a sexually explicit performance.
  11. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.
  12. “Victim” means an individual who is subjected to human trafficking or to conduct that would have constituted human trafficking had this chapter been in effect when the conduct occurred, regardless of whether a perpetrator is identified, apprehended, prosecuted, or convicted.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

Effective Date.

This chapter became effective August 1, 2015.

12.1-41-02. Trafficking an individual.

  1. A person commits the offense of trafficking an individual if the person knowingly recruits, transports, transfers, harbors, receives, provides, obtains, isolates, maintains, or entices an individual in furtherance of:
    1. Forced labor in violation of section 12.1-41-03; or
    2. Sexual servitude in violation of section 12.1-41-04.
  2. Trafficking an individual who is an adult is a class A felony.
  3. Trafficking an individual who is a minor is a class AA felony.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-03. Forced labor.

  1. A person commits the offense of forced labor if the person knowingly uses coercion to compel an individual to provide labor or services, except when that conduct is permissible under federal law or law of this state other than this chapter.
  2. Forced labor of an individual who is an adult is a class A felony.
  3. Forced labor of an individual who is a minor is a class AA felony.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-04. Sexual servitude.

  1. A person commits the offense of sexual servitude if the person knowingly:
    1. Maintains or makes available a minor for the purpose of engaging the minor in commercial sexual activity; or
    2. Uses coercion or deception to compel an adult to engage in commercial sexual activity.
  2. It is not a defense in a prosecution under subdivision a of subsection 1 that the minor consented to engage in commercial sexual activity or that the defendant believed the minor was an adult.
  3. Sexual servitude under subdivision a of subsection 1 is a class AA felony.
  4. Sexual servitude under subdivision b of subsection 1 is a class A felony.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-05. Patronizing a victim of sexual servitude.

  1. A person commits the offense of patronizing a victim of sexual servitude if the person knowingly gives, agrees to give, or offers to give anything of value so that an individual may engage in commercial sexual activity with another individual and the person knows that the other individual is a victim of sexual servitude.
  2. Patronizing a victim of sexual servitude who is an adult is a class B felony.
  3. Patronizing a victim of sexual servitude who is a minor is a class A felony.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-06. Patronizing a minor for commercial sexual activity.

  1. A person commits the offense of patronizing a minor for commercial sexual activity if:
    1. With the intent that an individual engage in commercial sexual activity with a minor, the person gives, agrees to give, or offers to give anything of value to a minor or another person so that the individual may engage in commercial sexual activity with a minor; or
    2. The person gives, agrees to give, or offers to give anything of value to a minor or another person so that an individual may engage in commercial sexual activity with a minor.
  2. Patronizing a minor for commercial sexual activity under subdivision a of subsection 1 is a class A felony.
  3. Patronizing a minor for commercial sexual activity under subdivision b of subsection 1 is a class B felony.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

Notes to Decisions

Entrapment.

Defendant failed to prove entrapment in connection with the crime of patronizing a minor for commercial sexual activity; the online advertisement and text messages from the undercover officer posing as a young girl merely afforded defendant an opportunity to commit a crime and did not shock the court’s conscience. State v. Rai, 2019 ND 71, 924 N.W.2d 410, 2019 N.D. LEXIS 62 (N.D. 2019).

Sufficiency of Evidence.

District court properly denied defendants' motions for judgment of acquittal and found them guilty of patronizing a minor for commercial sexual activity because they each discussed engaging in sex acts and paying for the sex acts with someone claiming to be a minor, they drove to the location discussed with the agreed upon payment on their person, the agreement could be made with someone other than a minor, and the statute did not require the presence of a minor. State v. Davison, 2017 ND 188, 900 N.W.2d 66, 2017 N.D. LEXIS 188 (N.D. 2017).

Defendant was properly found guilty of patronizing a minor for commercial sexual activity because the stipulated facts indicated that defendant agreed to exchange money or something of value for a sex act, that defendant originally thought an undercover officer purporting to be a female with whom defendant communicated was over eighteen but later learned that the purported female claimed to be sixteen, and that defendant arrived at an agreed upon hotel and knocked on the designated room door. The actual presence of a minor was not required. State v. Sheperd, 2017 ND 260, 903 N.W.2d 292, 2017 N.D. LEXIS 268 (N.D. 2017).

There was sufficient evidence to allow a jury to draw a reasonable inference in favor of conviction and defendant’s motion for acquittal was properly denied; text message conversations supported the State’s argument that defendant believed he was talking to a 14-year old girl and intended to pay her for a sexual encounter, and testimony from officers involved in the operation also established the elements of the crime. State v. Rai, 2019 ND 71, 924 N.W.2d 410, 2019 N.D. LEXIS 62 (N.D. 2019).

12.1-41-07. Business entity liability.

  1. A person that is a business entity may be prosecuted for an offense under sections 12.1-41-02 through 12.1-41-06 as provided by chapter 12.1-03.
  2. When a person that is a business entity is prosecuted for an offense under sections 12.1-41-02 through 12.1-41-06, the court may consider the severity of the entity’s conduct and order penalties in addition to those otherwise provided for the offense, including:
    1. A fine of not more than one million dollars per offense;
    2. Disgorgement of profit from activity in violation of this chapter; and
    3. Debarment from state and local government contracts.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-08. Aggravating circumstance.

  1. An aggravating circumstance during the commission of an offense under section 12.1-41-02, 12.1-41-03, or 12.1-41-04 occurs when the defendant recruited, enticed, or obtained the victim of the offense from a shelter that serves individuals subjected to human trafficking, domestic violence, or sexual assault, runaway youth, foster children, or the homeless.
  2. If the trier of fact finds that an aggravating circumstance occurred during the commission of an offense under section 12.1-41-02, 12.1-41-03, or 12.1-41-04, the defendant may be imprisoned for up to five years in addition to the period of imprisonment prescribed for the offense.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-09. Restitution.

  1. The court shall order a person convicted of an offense under section 12.1-41-02, 12.1-41-03, or 12.1-41-04 to pay restitution to the victim of the offense for:
    1. Expenses incurred or reasonably certain to be incurred by the victim as a result of the offense, including reasonable attorney’s fees and costs; and
    2. An amount equal to the greatest of the following, with no reduction for expenses the defendant incurred to maintain the victim:
      1. The gross income to the defendant for, or the value to the defendant of, the victim’s labor or services or sexual activity;
      2. The amount the defendant contracted to pay the victim; or
      3. The value of the victim’s labor or services or sexual activity, calculated under the minimum wage and overtime provisions of the Fair Labor Standards Act, [29 U.S.C. 201 et seq.] or section 34-06-22, whichever is higher, even if the provisions do not apply to the victim’s labor or services or sexual activity.
  2. The court shall order restitution under subsection 1 even if the victim is unavailable to accept payment of restitution.
  3. If the victim does not claim restitution ordered under subsection 1 for five years after entry of the order, the restitution must be paid to the crime victims restitution and gift fund under section 54-23.4-05.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-10. Victim confidentiality.

In an investigation of or a prosecution for an offense under this chapter, a law enforcement agency and state’s attorney shall keep confidential the identity, pictures, and images of the alleged victim and the family of the alleged victim, except to the extent that disclosure is:

  1. Necessary for the purpose of investigation or prosecution;
  2. Required by law or court order; or
  3. Necessary to ensure provision of services or benefits for the victim or the victim’s family.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-11. Past sexual behavior of victim.

In a prosecution for an offense under this chapter or a civil action under section 12.1-41-15, evidence of a specific instance of the alleged victim’s past sexual behavior or reputation or opinion evidence of past sexual behavior of the alleged victim is not admissible unless the evidence is:

  1. Admitted in accordance with the North Dakota rules of evidence; or
  2. Offered by the prosecution to prove a pattern of human trafficking by the defendant.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-12. Immunity of minor.

  1. If the individual was a minor at the time of the offense and committed the offense as a direct result of being a victim, the individual is not criminally liable or subject to a juvenile delinquency proceeding under chapter 27-20.4 for:
    1. Prostitution under section 12.1-29-03;
    2. Misdemeanor forgery under section 12.1-24-01;
    3. Misdemeanor theft offenses under chapter 12.1-23;
    4. Insufficient funds or credit offenses under section 6-08-16;
    5. Manufacture or possession of a controlled or counterfeit substance offenses under section 19-03.1-23; and
    6. Drug paraphernalia offenses under chapter 19-03.4.
  2. It is an affirmative defense to felony forgery, felony theft, and felony drug distribution that the individual was a minor at the time of the offense and committed the offense as a direct result of being a victim as defined by this chapter.
  3. An individual who has engaged in commercial sexual activity is not criminally liable or subject to a juvenile delinquency proceeding under chapter 27-20.4 for prostitution if the individual was a minor at the time of the offense.
  4. A minor who, under subsection 1 or 3, is not subject to criminal liability or a juvenile delinquency proceeding is presumed to be a child in need of services under chapter 50-25.1.
  5. This section does not apply in a prosecution or a juvenile delinquency proceeding for patronizing a prostitute.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015; 2021, ch. 245, § 3, effective July 1, 2021.

12.1-41-13. Affirmative defense of victim.

An individual charged with prostitution, felony forgery, felony theft, felony drug distribution, or an offense listed in subsection 1 of section 12.1-41-12 which was committed as a direct result of being a victim may assert an affirmative defense that the individual is a victim.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-14. Motion to vacate and seal conviction.

  1. An individual convicted of prostitution or an offense listed in subsection 1 of section 12.1-41-12 which was committed as a direct result of being a victim may apply by motion to the court to vacate the conviction and seal the record of conviction. The court may grant the motion on a finding that the individual’s participation in the offense was a direct result of being a victim.
  2. Official determination or documentation is not required to grant a motion by an individual under subsection 1, but an official determination or documentation from a federal, state, local, or tribal agency that the individual was a victim at the time of the offense creates a presumption that the individual’s participation was a direct result of being a victim.
  3. A motion filed under subsection 1, any hearing conducted on the motion, and any relief granted are governed by chapter 29-32.1.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015; 2019, ch. 103, § 2, effective August 1, 2019.

12.1-41-15. Civil action.

  1. A victim may bring a civil action against a person that commits an offense against the victim under section 12.1-41-02, 12.1-41-03, or 12.1-41-04 for compensatory damages, exemplary or punitive damages, injunctive relief, and any other appropriate relief.
  2. If a victim prevails in an action under this section, the court shall award the victim reasonable attorney’s fees and costs.
  3. An action under this section must be commenced not later than ten years after the later of the date on which the victim:
    1. No longer was subject to human trafficking; or
    2. Attained eighteen years of age.
  4. Damages awarded to a victim under this section for an item must be offset by any restitution paid to the victim pursuant to section 12.1-41-09 for the same item.
  5. This section does not preclude any other remedy available to a victim under federal law or law of this state other than this chapter.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-16. Display of public-awareness sign.

The department of transportation shall display in every transportation station, rest area, and welcome center in the state which is open to the public a public-awareness sign that contains any state or local human trafficking resource information and the National Human Trafficking Resource Center hotline information.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-17. Eligibility for benefit or service. [Effective through August 31, 2022]

  1. A victim is eligible for a benefit or service available through the state, including compensation under chapter 54-23.4, regardless of immigration status.
  2. A minor who has engaged in commercial sexual activity is eligible for a benefit or service available through the state, regardless of immigration status.
  3. As soon as practicable after a first encounter with an individual who reasonably appears to law enforcement to be a victim or a minor who has engaged in commercial sexual activity, the law enforcement agency shall notify the victim services division of the department of corrections and rehabilitation that the individual may be eligible for a benefit or service under the law of this state.
  4. For purposes of this section, “a benefit or service available through the state” does not include a benefit or service of a program administered by the department of human services using federal or special funds, if the victim or minor does not meet program eligibility requirements including an eligibility requirement that is based on immigration status.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-17. Eligibility for benefit or service. [Effective September 1, 2022]

  1. A victim is eligible for a benefit or service available through the state, including compensation under chapter 54-23.4, regardless of immigration status.
  2. A minor who has engaged in commercial sexual activity is eligible for a benefit or service available through the state, regardless of immigration status.
  3. As soon as practicable after a first encounter with an individual who reasonably appears to law enforcement to be a victim or a minor who has engaged in commercial sexual activity, the law enforcement agency shall notify the victim services division of the department of corrections and rehabilitation that the individual may be eligible for a benefit or service under the law of this state.
  4. For purposes of this section, “a benefit or service available through the state” does not include a benefit or service of a program administered by the department of health and human services using federal or special funds, if the victim or minor does not meet program eligibility requirements including an eligibility requirement that is based on immigration status.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015; 2021, ch. 352, § 23, effective September 1, 2022.

12.1-41-18. Law enforcement protocol.

  1. On request from an individual whom a law enforcement officer reasonably believes is a victim who is or has been subjected to a severe form of trafficking or criminal offense required for the individual to qualify for a nonimmigrant T or U visa under 8 U.S.C. 1101(a)(15)(T) or 8 U.S.C. 1101(a)(15)(U), or for continued presence under 22 U.S.C. 7105(c)(3), the law enforcement officer, as soon as practicable after receiving the request, shall complete, sign, and give to the individual the form I-914B or form I-918B provided by the United States citizenship and immigration services on its internet website and ask a federal law enforcement officer to request continued presence.
  2. If the law enforcement agency determines that an individual does not meet the requirements for the law enforcement agency to comply with subsection 1, the law enforcement agency shall inform the individual of the reason and that the individual may make another request under subsection 1 and submit additional evidence satisfying the requirements.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-19. Grant to or contract with service provider.

  1. The attorney general may make a grant to or contract with a unit of state or local government, tribal government, or nongovernmental victims service organization to develop or expand service programs for victims.
  2. A recipient of a grant or contract under subsection 1 shall report annually to the attorney general the number and demographic information of all victims receiving services under the grant or contract.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-20. Use of public funds for abortions prohibited.

Except as provided by federal law, funds of this state or a political subdivision of this state and federal funds passing through the state treasury or a state agency to provide treatment and support services for victims of human trafficking may be used to refer for or counsel for family planning services, but may not be used to perform, refer for, or encourage abortion.

History. S.L. 2015, ch. 117, § 2, effective August 1, 2015.

12.1-41-21. Forced or coerced abortion.

  1. As used in this section:
    1. “Forces or coerces” means committing, attempting to commit, or threatening to commit physical harm to the woman, the unborn child, or another individual intended to compel a victim of an offense under section 12.1-41-02, 12.1-41-03, or 12.1-41-04 to have an abortion performed against her will.
    2. “Threat” means at least one statement, or a course of conduct by the defendant, which places one in reasonable apprehension that the individual will follow through with the statement or act as implied by the defendant’s course of conduct. The term does not include constitutionally protected speech or any generalized statement regarding a lawful pregnancy option.
  2. A forced or coerced abortion during the commission of an offense under section 12.1-41-02, 12.1-41-03, or 12.1-41-04 occurs when the defendant forces or coerces a victim of the offense to have an abortion against her will.
  3. Upon the request of the victim, a law enforcement agency investigating a violation of this section shall notify the victim not less than twenty-four hours before initially contacting the individual alleged to have committed a violation of this section.
  4. If the trier of fact finds that a forced or coerced abortion occurred during the commission of an offense under section 12.1-41-02, 12.1-41-03, or 12.1-41-04, the court may sentence the defendant to be imprisoned for up to five years in addition to the period of imprisonment prescribed for the offense.

History. S.L. 2015, ch. 118, § 1, effective August 1, 2015.