Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Mikal Simonson, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[¶1] Douglas Moos appealed from a judgment of conviction finding him guilty of forgery or counterfeiting, deceptive writings, and theft by deception, and from an order dismissing his motion for a new trial. We conclude Moos was improperly convicted and sentenced upon multiplicious counts, and we therefore reverse the judgment and remand with directions that the district court vacate some of the convictions. In all other respects, the judgment and the order dismissing the motion for a new trial are affirmed.
[¶2] The charges in these cases stem from lease transactions between RCT Services, Inc. ("RCT") and Cen-Dak Leasing ("Cen-Dak"). RCT was a trucking company whose sole officer was Charlene Spotts. Moos was an employee of RCT, but the extent of his involvement in the company was disputed by the parties. Moos claims he was merely a driver and mechanic for RCT. The State claims he was integrally involved in the management of the company with Spotts. To support its claim, the State presented evidence that Moos had opened RCT's bank account and was the sole signatory on the account, and that Moos decided which equipment RCT would purchase and arranged the leases with Cen-Dak.
[¶3] Cen-Dak provided financing to trucking operators through lease-to- own transactions. Operators would select equipment to purchase and negotiate the purchase with the seller. Cen-Dak would then either provide payment directly to the seller of the equipment, or the operator could purchase the truck itself, provide the information to Cen-Dak, and Cen-Dak would send a check and lease directly to the operator, with title to the vehicle to be provided later.
[¶4] On March 23, 2001, a handwritten fax was sent from RCT to Cen-Dak indicating RCT had purchased a 2001 Peterbilt truck, giving the truck's vehicle identification number ("VIN") ending in "1605" and indicating a lease amount of $89,500. In response to the fax, Cen-Dak prepared and sent to RCT a lease covering the truck and a check for $89,500. Charlene Spotts signed the lease, and the check was deposited in RCT's account. The State presented evidence that the March 23, 2001, fax and the endorsement on the $89,500 check were in Moos's handwriting.
[¶5] Ordinarily RCT would have subsequently provided Cen-Dak a certificate of title or certificate of origin for the vehicle. Instead, on July 26, 2001, a handwritten fax was sent from RCT to Cen-Dak indicating RCT had provided the wrong VIN for the 2001 Peterbilt, and providing a corrected VIN ending in "2566." The State again presented evidence that the fax was in Moos's handwriting. On September 4, 2001, a certificate of origin for the 2001 Peterbilt, showing a VIN ending in "2566," was faxed from RCT to Cen-Dak. At trial, the State established that neither RCT nor Moos had ever purchased or owned any interest in a 2001 Peterbilt with either of the listed VINs, and that the certificate of origin faxed to Cen-Dak was counterfeited.
[¶6] On May 25, 2001, a handwritten fax was sent from RCT to Cen-Dak indicating RCT had purchased a 2002 Peterbilt "glider kit,"*fn1 and noting that a copy of the invoice for the purchase was enclosed. The fax was signed "Doug." Also faxed was a copy of an invoice from Peterbilt of Winona, indicating RCT had purchased the glider kit on May 24, 2001, for $68,250. Based on these faxes, Cen-Dak provided two checks, for $26,062 and $24,188, respectively, to RCT. The State presented evidence that no such glider kit ever existed, that the invoice was counterfeited, and that the handwritten fax and endorsements on the two checks were in Moos's handwriting.
[¶7] In early 2004, the State charged Moos in two separate criminal informations. In file number 04-K-105, the State charged Moos with 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). All three counts were based upon the falsified glider kit invoice faxed to Cen-Dak on May 25, 2001. The criminal information in file number 04-K-226 charged Moos with five separate counts: (1) deceptive writings under N.D.C.C. § 12.1-24-03(1) for the March 23, 2001, fax; (2) theft by deception under N.D.C.C. § 12.1-23-02(2) for the March 23, 2001, fax; (3) deceptive writings under N.D.C.C. § 12.1-24-03(1) for the July 26, 2001, fax; (4) forgery or counterfeiting under N.D.C.C. § 12.1-24-01(1) for the falsified certificate of origin faxed to Cen-Dak on September 4, 2001; and (5) theft by deception under N.D.C.C. § 12.1-23-02(2) for the July 26, 2001, fax and the September 4, 2001, falsified certificate of origin.
[¶8] Moos filed a "Motion and Brief to Elect and Dismiss on Grounds of Multiplicity," arguing that the charges were multiplicious and that the State should be required to elect which charges to maintain. The district court denied Moos's motion. The cases were consolidated for trial, and a jury trial was held in July 2005. The jury found Moos guilty on all three counts in file number 04-K-105 and on the first three counts in file number 04-K-226. The jury found Moos not guilty on counts four and five, the two counts dealing with the falsified certificate of origin, in file number 04-K-226.
[¶9] Moos did not appear for the scheduled sentencing hearing on October 25, 2005, and a bench warrant was issued for his arrest. On March 11, 2006, Moos was arrested for driving under the influence in Williston, but he resisted arrest and escaped from the arresting officer. He was finally apprehended in West Fargo on June 8, 2007, after leading officers on a high speed vehicle chase, abandoning his vehicle after spinning into a ditch, and fleeing on foot. Officers had to use a taser to apprehend and restrain Moos.
[¶10] On October 29, 2007, Moos moved for a new trial based upon newly discovered evidence. The new evidence was a recently disclosed transcript of an FBI agent's interview of Dennis Paulsrud, the manager of Cen-Dak. Paulsrud had testified at Moos's July 2005 trial, and in August 2005 the State informed Moos's attorney that Paulsrud had been indicted on federal charges for check-kiting and had committed suicide. Moos argued that, had he been aware of the FBI interview and the federal investigation of Paulsrud, he could have more intensely cross-examined Paulsrud at trial and developed other evidence. The district court ultimately dismissed Moos's motion for new trial on the alternative grounds that it was precluded by the fugitive dismissal rule and that Moos had failed to show an exculpatory link between the interview transcript and the charges against Moos.
[¶11] Moos was sentenced to serve five years on each of the six counts on which he was found guilty, to be served concurrently, followed by ten years of supervised probation. Moos was also ordered to pay restitution in the amount of $169,923.
[¶12] Moos contends that the district court erred in concluding the informations were not multiplicious, and argues that his multiple convictions violated the double jeopardy clause.
[¶13] The constitutional guarantee against double jeopardy encompasses three separate protections: protection against a second prosecution for the same offense after acquittal, protection against a second prosecution for the same offense after conviction, and protection against multiple punishments for the same offense. Department of Revenue v. Kurth Ranch, 511 U.S. 767, 769 n.1 (1994); North Carolina v. Pearce, 395 U.S. 711, 717 (1969). When the same conduct violates more than one statutory provision, the first step in the double jeopardy analysis is to determine whether the legislature intended that each violation be a separate offense. Garrett v. United States, 471 U.S. 773, 778 (1985). The "question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." Whalen v. United States, 445 U.S. 684, 688 (1980). The question is ultimately one of legislative intent, and if the "legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the `same' conduct under Blockburger [v. United States, 284 U.S. 299 (1932)], a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial." Missouri v. Hunter, 459 U.S. 359, 368-69 (1983). If, however, the legislature "intended that there be only one offense-that is, a defendant could be convicted under either statutory provision for a single act, but not both-there would be no statutory authorization for" multiple convictions or punishments "and that would end the double jeopardy analysis." Garrett, at 778.
[¶14] This focus upon legislative intent, and the recognition that "[c]courts may not `prescrib[e] greater punishment than the legislature intended,'" Rutledge v. United States, 517 U.S. 292, 297 (1996) (quoting Hunter, 459 U.S. at 366), is an outgrowth of the constitutional separation of powers. The power to define criminal offenses and prescribe punishments to be imposed for violations "resides wholly" within the legislative branch. Whalen, 445 U.S. at 689; see Hunter, 459 U.S. at 368; State v. Backlund, 2003 ND 184, ¶ 42, 672 N.W.2d 431; State v. Bastien, 436 N.W.2d 229, 231 (N.D. 1989). If a court exceeds its authority by "imposing multiple punishments not authorized by [the legislature], it violates not only the specific guarantee against double jeopardy, but also the constitutional principle of separation of powers in a manner that trenches particularly harshly on individual liberty." Whalen, at 689.
[¶15] Moos was convicted and sentenced on six separate criminal counts under three criminal statutes. He was convicted of forgery or counterfeiting, deceptive writings, and theft by deception for the falsified glider kit invoice faxed to Cen-Dak on May 25, 2001; he was convicted of deceptive writings and theft by deception for the March 23, 2001, fax; and he was convicted of deceptive writings for the July 26, 2001, fax. The three crimes are statutorily defined:
12.1-23-02. Theft of property. A person is guilty of theft if he:
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 . . . .
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 he is facilitating such deception or harm by another person, he:
a. Knowingly and falsely makes, completes, or alters any writing; or
b. Knowingly utters or possesses a forged or counterfeited writing.
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 he is facilitating such a deception or harm by another person, he knowingly issues a writing without authority to ...