Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
[¶1] The State of North Dakota appeals a trial court order of dismissal, setting aside a jury verdict of guilty and entering a judgment of acquittal. We conclude the State was not authorized to appeal the order of dismissal; however, we consider the State's attempt at an appeal a petition for supervisory writ. We further hold the trial court did not have the authority, on its own motion, to set aside the guilty verdict. Therefore, we reverse and remand the case to the trial court to enter judgment based upon the jury's guilty verdict.
[¶2] On April 24, 2007, Deutscher went to a check cashing business, Money Lenders, in Bismarck, North Dakota. Money Lenders cashed the check, and on May 1, 2007, the check was returned to Money Lenders as a counterfeit check. After several unsuccessful attempts to collect restitution, Money Lenders filed a report with law enforcement.
[¶3] A criminal complaint and information were filed, and Deutscher was charged with theft of property, a class C felony. A jury trial was held on May 6, 2008. At the close of the State's evidence, Deutscher moved for an acquittal under N.D.R.Crim.P. 29, asserting the State did not present sufficient evidence to sustain a conviction. The trial court held it was satisfied there was sufficient evidence for the jury to consider the alleged offense; it denied Deutscher's motion.
[¶4] Deutscher presented evidence. At the close of all of the evidence, she did not move for a judgment of acquittal. The jury returned a verdict of guilty. After the jury returned its verdict, Deutscher did not move for a judgment of acquittal. Sentencing was scheduled for June 16, 2008, and the trial court ordered the preparation of a presentence investigation. The hearing was continued. At the August 8, 2008 sentencing hearing, the trial court stated:
Counsel, I have previously ordered a presentence investigation, and unbeknownst to you, counsel, I've also requested, and my court reporter has been gracious enough to prepare for me, a complete transcript of the testimony of each of the complaining witness and the defendant in this matter. My reason for requesting my court reporter to do so is my concern as to the sufficiency of the evidence in this matter. Ms. Deutscher was charged by Criminal Information with the alleged offense of "knowingly obtaining the money or property of another by deception or by threat with intent to deprive the owner thereof; specifically, the defendant cashed a counterfeit cashier's check in the amount of $3,000 at Money Lenders."
I have reviewed the evidence, I listened to the evidence and now I have reviewed the written transcript, and I'm satisfied that there is insufficient evidence to sustain this verdict. Accordingly, on my own motion, under the provisions of Rule 29(c)(2) I'm herewith reversing the jury verdict and dismissing the charge against you, Ms. Deutscher. In addition thereto, I've also reviewed the transcript for any basis for a motion for new trial under 33 of the North Dakota Rules of Criminal Procedure, and I find no basis for a new trial.
However, I'm not going to rule upon the same summarily, and I will grant both the State or - to the State, I should say, a 10-day window of opportunity for a motion for new trial, if they so desire. The State, of course, will have its right to appeal my order of dismissal. The same will be dismissed without prejudice.
[¶5] On August 18, 2008, the trial court entered an order of dismissal: This Court having orally received all testimony and evidence at the time of trial and thereafter having the benefit of a transcript of the testimony of Wendy Grafsgaard and Defendant Jennifer Deutscher, does herewith find and determine that under Rule 29(c)(2), that the evidence presented at the time of trial is insufficient to sustain a guilty verdict.
IT IS THEREFORE THE ORDER OF THE COURT that the pending charge of one count of Theft of Property with respect to the Defendant Jennifer Deutscher is herewith set aside and a Judgment of Acquittal shall be entered.
The evidence presented at the time of trial is undisputed that the Defendant received by mail a cashier's check payable to the Defendant, with the Defendant concerned whether or not said check was valid. The Defendant presented said check to the Money Lenders station to determine the validity of said instrument, and was thereafter informed that the cashier's check was valid. Said Money Lenders station expressly authorized and invited the Defendant to endorse said check for negotiation. The Defendant did so, receiving the cash equivalent thereof, and was later informed by Money Lenders station that the check had been returned as counterfeit. Further, that the cashier's check appeared valid from a physical inspection of the same absent any alteration of the same by the Defendant.
The State appeals the order of dismissal.
[¶6] The State's only right of appeal is that expressly granted by statute. State v. Hogie, 424 N.W.2d 630, 631 (N.D. 1988) (citing State v. Flohr, 259 N.W.2d 293, 295 (N.D. 1977)). In the notice of appeal, the State indicated its appeal is permitted according to N.D.C.C. § 29- 28-07(1). Section 29-28-07(1), N.D.C.C., specifies the State may appeal from an order quashing an information or indictment or any count thereof. This Court has noted "quash" is defined as "to overthrow; to abate; to vacate; to annul; to make void." State v. Howe, 247 N.W.2d 647, 652 (N.D. 1976) (citation omitted).
[¶7] The State has the burden of proving every element of a crime beyond a reasonable doubt. City of Dickinson v. Kraft, 472 N.W.2d 441, 443 (N.D. 1991) (citing State v. Vogel, 467 N.W.2d 86, 89 (N.D. 1991)). If the State fails to do so, the defendant must be acquitted of the charge. Id. "There can be no appeal from a true judgment of acquittal." Id. (citing Flohr, 259 N.W.2d at 296).
[¶8] The question before this Court is whether the trial court order from which the State appealed is a judgment of acquittal, which would not be appealable, or an order quashing the information, which would be appealable. This question is not controlled by the form of the trial court's ruling. State v. Jackson, 2005 ND 137, ¶ 5, 701 N.W.2d 887 (citing Flohr, 259 N.W.2d at 295). "Rather, to determine what constitutes an acquittal, as distinguished from a dismissal quashing the information, we look at the substance of the judge's ruling to determine whether it actually represents a resolution of some or all of the factual elements of the offense charged." Id. (citing State v. Meyer, 494 N.W.2d 364, 366 (N.D. 1992)). If the trial court's decision is based upon legal conclusions rather than a resolution of some or all of the factual elements of the events charged, the ruling amounts to a dismissal or a quashing of the information from which the State has a right to appeal. Id. (citing City of Wahpeton v. Desjarlais, 458 N.W.2d 330, 333 (N.D. 1990)). The propriety of this appeal is contingent upon whether the trial court reached only legal conclusions or resolved factual elements. Kraft, 472 N.W.2d at 443.
[¶9] In Flohr, 259 N.W.2d at 294, the State charged Flohr with furnishing or delivering intoxicating beverages to a minor. A bench trial was held, and the trial court found there was reasonable doubt as to the guilt of Flohr. Id. at 294-95. The State appealed and argued the trial court abused its discretion by finding the State failed to prove Flohr's guilt beyond a reasonable doubt. Id. at 295. Flohr requested this Court to dismiss the appeal because the trial court's judgment was an acquittal; therefore, it could not be appealed by the State. Id. This Court held the judgment constituted an acquittal because it represented a resolution of some of the factual elements of the offense charged; therefore, it held the State did not have the right to appeal. Id. at 295-96.
[¶10] In Kraft, 472 N.W.2d at 441-42, the City of Dickinson charged Kraft with dispensing alcoholic beverages to a minor and permitting the minor to remain on a premises licensed to sell alcoholic beverages. A jury trial was held, and at the close of the City's evidence, Kraft moved for a judgment of acquittal, arguing the City failed to prove the elements of the crime. Id. at 442. The trial court entered a judgment of acquittal, and the City appealed. Id. In Kraft, this Court noted the trial court deemed the City's evidence insufficient to establish Kraft's factual guilt and held, a ruling, that as a matter of law, provides the State's evidence is insufficient to establish factual guilt is an acquittal under the Double Jeopardy Clause. Id. at 443 (citation omitted). This Court reviewed the trial court's order for judgment and noted the trial court assumed the truth of all information the City brought forward, and even so, held the information did not prove the elements of the crime. Id. at 444. This Court held the City was not permitted to appeal, and it dismissed the appeal. Id.
[¶11] In the present case, in the order of dismissal, the trial court noted the jury returned a verdict of guilty, then it held the evidence presented at trial was insufficient to sustain a guilty verdict. According to Flohr, 259 N.W.2d at 295-96 and Kraft, 472 N.W.2d at 444, the order of dismissal resolved the factual elements of the offense charged; therefore, the order of dismissal was a judgment of acquittal rather than an order quashing the information.
[¶12] In addition, this Court has held if a written order does not provide the relevant information to "determine whether it actually represents a resolution of some or all of the factual elements of the offense charged[,]" this Court may examine the trial court's oral statements. Hogie, 424 N.W.2d at 632 (citation omitted). At the sentencing hearing, the trial court indicated he was concerned with the sufficiency of the evidence and stated:
Ms. Deutscher was charged by Criminal Information with the alleged offense of "knowingly obtaining the money or property of another by deception or by threat with intent to deprive the owner thereof; specifically, the defendant cashed a counterfeit cashier's check in the amount of $3,000 at Money Lenders."
I have reviewed the evidence, I listened to the evidence and now I have reviewed the written transcript, and I'm satisfied that there is insufficient evidence to sustain this verdict. The written order of dismissal and the trial court's oral statements at sentencing, together, prove the order of dismissal resolved factual elements of the offense charged. We hold the order of dismissal was a judgment of acquittal from which the State is not permitted to appeal.
[¶13] Although the State's appeal is not authorized because it was not expressly granted by statute, we deem its attempt at an appeal a request for supervisory writ. See Olsen v. Koppy, 1999 ND 87, ¶ 16, 593 N.W.2d 762 (citing Mitchell v. Sanborn, 536 N.W.2d 678, 682-83 (N.D. 1995)). We elect to exercise our original jurisdiction and our authority to supervise the trial court. K.L.B. v. S.B., 2003 ND 88, ¶ 7, 662 N.W.2d 277 (citing Boedecker v. St. Alexius Hosp., 298 N.W.2d 372, 374 (N.D. 1980)).
[¶14] At trial, at the close of the State's evidence, Deutscher moved for a judgment of acquittal. The trial court did not reserve decision on the motion under N.D.R.Crim.P. 29(b). Rather, the trial court denied the motion and indicated there was sufficient evidence to submit the case to the jury. Deutscher did not move for a judgment of acquittal after the jury returned its verdict.
[¶15] The question for this Court to address is whether the trial court erred as a matter of law by setting aside the jury's guilty verdict under N.D.R.Crim.P. 29(c), when Deutscher did not move for a judgment of acquittal after the jury returned a guilty verdict. Questions of law, including the interpretation and application of a statute, are fully reviewable on appeal. In re Estate of Samuelson, 2008 ND 190, ¶ 11, 757 N.W.2d 44 (citations omitted).
[¶16] Rule 29, N.D.R.Crim.P., titled Motion for a Judgment of Acquittal, provides in part:
(a) Before Submission to the Jury
After the prosecution closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the prosecution's evidence, the defendant may offer evidence without having reserved the right to do so.
The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.
(c) After Jury Verdict or Discharge.
A defendant may move for a judgment of acquittal, or renew such a motion, within ten days after a guilty verdict or after the court ...