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State v. Dahl

December 15, 2009

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
DARIN WAYNE DAHL, DEFENDANT AND APPELLANT



Appeal from the District Court of Griggs County, Southeast Judicial District, the Honorable James M. Bekken, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

AFFIRMED AND REMANDED.

[¶1] Darin Dahl appealed from criminal judgments filed in December 2008, sentencing him for two counts of harassment and one count of reckless endangerment. Dahl argues the evidence presented was insufficient to support the guilty verdicts and he did not voluntarily, knowingly, and intelligently waive his right to counsel for his second trial. Competent evidence was presented allowing the juries to draw inferences reasonably tending to prove Dahl's guilt and fairly warranting conviction; Dahl was competent to waive his right to counsel and represent himself; and Dahl voluntarily, knowingly, and intelligently waived his right to counsel. We affirm Dahl's convictions, but we remand for correction of the criminal judgments.

[¶2] This appeal encompasses two trials, Dahl's first trial for two counts of harassment, and his second trial for reckless endangerment. The facts and issues regarding each trial will be discussed separately.

I. Harassment Trial

A.

[¶3] In November 2007, Roger Kerber arrived at his home in rural Hannaford to find two messages laced with vulgarities on his answering machine from Dahl. In the first message, Dahl asked Kerber to repay him for a transmission that Kerber had damaged. Dahl stated, "I'll probably be over there to . . . put your horse down or something because I'm out of transportation on account of you." In the second message, Dahl told Kerber where Kerber could find him to make payment. Dahl also referred to a previous incident in which Kerber's son had fired a gun at Dahl. Dahl stated he was going to "return fire."

[¶4] The State charged Dahl with two counts of harassment. At trial on the harassment charges, Dahl, represented by counsel, admitted he had left the messages. He testified he did not intend to harass or threaten Kerber. His intention was to get restitution for his transmission. Dahl testified he left the second message to notify Kerber of where to make payment.

[¶5] Dahl made a motion to dismiss under N.D.R.Crim.P. 29 after the close of the State's case, which the district court denied. The jury convicted Dahl on both counts of harassment. In December 2008, the district court entered criminal judgments sentencing Dahl to concurrent sentences of 180 days, with credit for 180 days already served. The criminal judgments incorrectly state Dahl pled guilty.

B.

[¶6] Dahl argues the evidence supporting his conviction was insufficient because the State did not prove he acted with the intent to frighten or harass another. This Court's standard of review when a defendant challenges the sufficiency of the evidence for his conviction is well established:

Appellate review of the sufficiency of the evidence for a jury verdict is very limited. When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses. . . . A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.

State v. Demarais, 2009 ND 143, ¶ 7, 770 N.W.2d 246 (internal citations and quotes omitted).

[¶7] Section 12.1-17-07(1)(a), N.D.C.C., defines harassment: "A person is guilty of an offense if, with intent to frighten or harass another, the person [c]ommunicates in writing or by telephone a threat to inflict injury on any person, to any person's reputation, or to any property." This Court has suggested that, when considering the sufficiency of the evidence in a harassment case, we consider the "reasonable recipient," rather than the "reasonable speaker." State v. Curtis, 2008 ND 93, ¶ 5, 748 N.W.2d 709 (citing DeMers v. DeMers, 2006 ND 142, ¶ 13, 717 N.W.2d 545). We consider whether a communication is a threat from the viewpoint of a "reasonable person standing in the recipient's shoes." Id. (citing Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 622 (8th Cir. 2002)).

[¶8] It is clear that the messages Dahl left included threats. In his first message, Dahl asserted he would "put [Kerber's] horse down," unless Kerber paid him. In his second message, Dahl said he may "return fire" on Kerber's son, in retaliation for some prior incident. A reasonable person standing in Kerber's shoes would take these messages to be threats to damage his property and shoot his son. Viewing the evidence in the light most favorable to the verdicts, the State produced sufficient evidence to raise a reasonable inference that Dahl had communicated threats by telephone to inflict injury on Kerber's property and his son.

[¶9] Dahl argues the State did not prove he acted with the intent to frighten or harass another. Dahl testified he did not intend to threaten or harass Kerber. Rather, he intended to get restitution for his transmission and let Kerber know where he could be found to make payment. Dahl argues the State did not present any testimony to contradict Dahl's testimony regarding his intent. However, the messages themselves are evidence of intent. The jury was instructed intent could be proved by circumstantial evidence and it could consider any statement made by Dahl. In addition, the jury was not required to believe Dahl's testimony. Demarais, 2009 ND 143, ¶ 7, 770 N.W.2d 246 (citing State v. Wilson, 2004 ND 51, ΒΆ 9, 676 N.W.2d 98). Viewing the evidence in the light most favorable to the verdicts, the evidence ...


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