Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
The opinion of the court was delivered by: Sandstrom, Justice
[¶1] Charles Blunt appeals from an order deferring imposition of sentence entered upon a jury verdict finding him guilty of misapplication of entrusted property. We affirm.
[¶2] Blunt was the Executive Director of Workforce Safety and Insurance ("WSI") from 2004 to 2007. The State Auditor's Office conducted a performance review of WSI in 2006. The Auditor's report questioned the use of public funds at WSI, noting more than $18,000 in expenditures which allegedly failed to comply with constitutional provisions, state law, and policies of the Office of Management and Budget. See State v. Blunt, 2008 ND 135, ¶ 2, 751 N.W.2d 692.
[¶3] As a result of the Auditor's report, Blunt was charged with two counts of misapplication of entrusted property in violation of N.D.C.C. § 12.1-23-07(1). Count I charged Blunt with a class B felony for misapplying more than $10,000 in WSI funds for gift certificates given to WSI employees; food, beverages, flowers, balloons, decorations, costume rentals, ornaments, and gifts for WSI meetings; and food and convention expenses provided to legislators. See N.D.C.C. § 12.1-23-07(2)(a) (misapplication of entrusted property exceeding $10,000 is a class B felony). Count II charged Blunt with a class C felony for misapplying more than $500 in WSI funds for illegal bonuses paid to three high-ranking WSI executives. See N.D.C.C. § 12.1-23-07(2)(b) (misapplication of entrusted property exceeding $500 but less than $10,000 is a class C felony).
[¶4] Following a preliminary hearing, the district court concluded the State had failed to establish probable cause and dismissed the complaint. We reversed and remanded on appeal, concluding "the district court erred in concluding there was not probable cause to believe that an offense had been committed or that Blunt had committed it." Blunt, 2008 ND 135, ¶ 32, 751 N.W.2d 692.
[¶5] On remand to the district court, the State filed an information and Blunt was arraigned. After the arraignment Blunt filed numerous motions, including a motion for a bill of particulars. In its response to this motion, the State noted, in addition to evidence of the gift certificates, meeting expenses, expenditures on legislators, and employee bonuses, it intended to present evidence at trial that Blunt: (1) had illegally authorized payment of sick leave to a WSI executive who was resigning but was not sick; (2) had failed to recoup relocation expenses owed to WSI by this same executive; and (3) had illegally committed $150,000 in grant money to the North Dakota Firefighter's Association under a grant program that did not exist.
[¶6] Prior to trial, Blunt moved to bar the State from aggregating the value of multiple items misapplied so as to reach the $10,000 threshold for a class B felony, arguing that each item allegedly misapplied was a separate offense. He requested the district court rule that only an individual item allegedly exceeding $10,000 is relevant to prove a class B felony. The district court ruled that the State was allowed to include the value of all items misapplied to reach the grading thresholds under N.D.C.C. § 12.1-23-07(2).
[¶7] The case was tried to a jury. At the close of the State's case-in-chief, Blunt moved for a judgment of acquittal under N.D.R.Crim.P. 29. The district court concluded the State had presented insufficient evidence to go to the jury on the allegations regarding the grant money, but "everything else" should go to the jury:
The grant program. . . . I'm going to grant the motion in regards to the grant program. We'll have to figure out how to address that. But that amount will not be considered by the Jury, as I'm going to dismiss that portion of the allegation, is one way to put it, I guess . . . .
So, I guess, I don't--I'm finding there is insufficient evidence for that portion of it to go to the Jury. But everything else is going to stay. So simply, that portion will be out. But we'll go forward on the others with that, then. After the district court ruled on Blunt's N.D.R.Crim.P. 29 motion, the State questioned whether the court could dismiss only that part of the charge in Count I involving the grant money and argued that the entire count should be submitted to the jury. The following colloquy then occurred between the court and the attorney for the State:
THE COURT: But, guess what, that's the way it is. I mean, I don't think you proved that portion of it. You charge it out that way. If I say, oh, that can go forward, too, where am I at when they come back guilty? . . . .
THE COURT: So I think it's appropriate and it's carved out of there. I'm going to say they can't consider that amount . . . in coming to a conclusion on Count I.
MS. FELAND: So then am I under the understanding it is part of the Court's ruling, since the Court has said that there will be no comment about that, that includes comments from either side? So there is no discussion about the grants for all practical purposes, as if it never existed as part of this charge. It that what I'm understanding?
THE COURT: It is going to be in the closing instructions that they can't consider those amounts.
[¶8] At the close of all the evidence, Blunt moved the court "to enter the judgment of acquittal granted as to Count I" under N.D.R.Crim.P. 29, and the State again argued that the grant money allegations should be submitted to the jury. The district court again denied Blunt's motion on all allegations other than the grant money and reiterated its conclusion:
I'm indicating there is insufficient evidence to go before the Jury to find a conviction on the Firemens Fund grant program as an offense. And that's how I'm going to rule. And I'm going to issue an instruction along those lines that they are not to consider that in considering Count I. In its closing instructions, the court instructed the jury:
As a matter of law, the Court has determined, you are not to consider any evidence of the Fireman's grant funds in reaching your verdict.
[¶9] The jury found Blunt guilty on Count I and not guilty on Count II. Blunt filed a post-trial motion, arguing that the district court's granting of a part of his N.D.R.Crim.P. 29 motion for judgment of acquittal required acquittal on all of Count I. The court denied the motion. The court entered an order deferring imposition of sentence, and Blunt appeals.
[¶10] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 29-01-12 and 29-28-06.
[¶11] Blunt contends the district court erred when it did not grant a judgment of acquittal on all of Count I after concluding there was insufficient evidence to allow allegations regarding the grant money to go to the jury. Blunt contends the district court's action constituted an acquittal on Count I and any further prosecution on that Count was barred.
[¶12] Under N.D.R.Crim.P. 29(a), the district court is authorized, upon the defendant's motion, to "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Thus to grant a motion for judgment of acquittal under Rule 29, "a trial court must find the evidence is insufficient to sustain a conviction of the offenses charged." State v. Maki, 2009 ND 123, ¶ 7, 767 N.W.2d 852 (quoting State v. Kautzman, 2007 ND 133, ¶ 10, 738 N.W.2d 1); see also State v. Ness, 2009 ND 182, ¶ 11, 774 N.W.2d 254; State v. Hammeren, 2003 ND 6, ¶ 6, 655 N.W.2d 707. When considering a motion for judgment of acquittal, "the trial court, upon reviewing the evidence most favorable to the prosecution, must deny the motion if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt." Hammeren, at ¶ 6 (quoting State v. Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d 193).
[¶13] Blunt contends that because the district court stated it was granting the motion for judgment of acquittal as to the grant money, the court's action constituted an acquittal of the offense charged in Count I. In determining what constitutes an acquittal, however, the label used by the district court is not conclusive, and "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." State v. Deutscher, 2009 ND 98, ¶ 8, 766 N.W.2d 442 (quoting State v. Jackson, 2005 ND 137, ¶ 5, 701 N.W.2d 887). In United States v. Pacheco, 434 F.3d 106, 112 (1st Cir. 2006), the court, interpreting Fed.R.Crim.P. 29 in a case in which the trial court purported to grant a "partial" judgment of acquittal on a portion of a single-count indictment, concluded:
[T]he question of what constitutes a "judgment of acquittal" is not governed either by the form of the trial judge's ruling or by his characterization of it. See United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 57 L.Ed. 2d 65 (1978); [United States v.] Martin Linen [Supply Co.], 430 U.S. [564,] 571, 97 S.Ct. 1349 [(1977)]. Rather, a reviewing court "must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." Martin Linen, 430 U.S. at 571, 97 S.Ct. 1349; see Gonzalez [v. Justices of the Mun. Ct.], 420 F.3d [5,] 8-9 [(1st Cir. 2005)]. A resolution in the defendant's favor of a necessary factual element of the offense is a definitive determination that the defendant cannot be convicted.
[¶14] In Blunt, 2008 ND 135, ¶ 7, 751 N.W.2d 692, we identified the elements of the offense of misapplication of entrusted property under N.D.C.C. § 12.1-23-07(1):
(1) the disposal, use, or transfer; (2) of any interest in property; (3) which has been entrusted to the defendant; (4) as a fiduciary or in his capacity as a public servant; (5) in a manner he knows is not authorized; (6) and that he knows to involve a risk of loss or detriment to; (7) the owner of the property or the government. See also State v. Barendt, 2007 ND 164, ¶ 10, 740 N.W.2d 87 (recognizing and listing the "seven elements" of misapplication of entrusted property under N.D.C.C. § 12.1-23-07).
[¶15] On Count I, the State provided multiple evidentiary bases and legal theories to support its allegation that Blunt had misapplied entrusted property in violation of N.D.C.C. § 12.1-23-07(1). Included in Count I were the State's allegations regarding gift certificates, meeting expenses, legislator expenses, sick leave, and relocation expenses. To find a violation under Count I, the jury did not have to find the State proved each and every one of the instances of improper expenditures alleged in Count I. The State is not required to prove multiple transactions to establish an offense under N.D.C.C. § 12.1-23-07(1), as long as all seven elements of the offense are present. State v. Jelliff, 251 N.W.2d 1, 7 (N.D. 1977). Removing the allegations regarding the grant money from the jury's consideration did not result in there being insufficient evidence to sustain a conviction of the offense charged. See Ness, 2009 ND 182, ¶ 11, 774 N.W.2d 254; Maki, 2009 ND 123, ¶ 7, 767 N.W.2d 852. There was ample evidence remaining which, if believed by the jury, was sufficient to establish the essential factual elements of the offense and support a conviction of misapplication of entrusted property. See Hammeren, 2003 ND 6, ¶ 6, 655 N.W.2d 707.
[¶16] A review of the entire record demonstrates the district court's intent was not to grant a judgment of acquittal on Count I, but rather was to preclude the jury from considering evidence of the grant money in determining whether Blunt had misapplied entrusted property. The court in its discussions with counsel on the record expressly stated its intent that the remaining allegations would be submitted to the jury, and the court's final instructions directed the jury not to consider any evidence relating to the grant money when reaching a verdict.
[¶17] Blunt essentially argues the State is required to prove each and every factual allegation and legal theory precisely as pleaded in the complaint or information, or the defendant is entitled to a judgment of acquittal. This Court, however, "has consistently held the State need not prove every allegation in the complaint or information, but is required to prove only the elements of the offense charged." State v. Trosen, 547 N.W.2d 735, 740 (N.D. 1996); see also State v. Tranby, 437 N.W.2d 817, 823 (N.D. 1989) ("[T]he State is not required to prove beyond a reasonable doubt each and every factual allegation set forth in the criminal complaint."). Courts in other jurisdictions have further concluded a trial court has the authority to withdraw from the jury's consideration particular factual issues or legal theories that are not supported by the evidence and submit the remaining factual issues and legal theories to the jury. See, e.g., Pacheco, 434 F.3d at 112-14; United States v. O'Shea, 426 F.3d 475, 479 n.3 (1st Cir. 2005); United States v. Burns, 624 F.2d 95, 104 (10th Cir. 1980); State v. Mogan, 627 A.2d 527, 528 (Me. 1993); State v. Hogan, 231 N.W.2d 135, 140 (Neb. 1975). Such a ruling merely "narrow[s] the scope of the facts that the jury could find in deciding whether to convict on the offense charged." Pacheco, at 114. As explained by the Tenth Circuit Court of Appeals in Burns:
It is clear that a court may withdraw from jury consideration indictment counts unsupported by evidence. The fact that here the court withdrew one of two charges contained in a single count is inconsequential. The controlling principle is that "'. . . a portion of an indictment that the evidence does not support may be withdrawn from the jury, and this is not an impermissible amendment, provided nothing is thereby added to the indictment, and that the remaining allegations charge an offense.' (C. Wright, 1 Federal Practice and Procedure 274-75 (1969).)" United States v. Dawson, 516 F.2d 796 (9th Cir. 1975). Burns, 624 F.2d at 104-05 (citation omitted).
[¶18] Similarly, in Hogan, the Nebraska Supreme Court concluded:
In this case the court amended count II from a charge of possession of marijuana with intent to deliver, to a charge of simple possession of marijuana. The action, for all practical purposes, withdrew from the jury the issue of whether or not the possession was with intent to deliver. While a court has no power to dismiss a part of an offense or direct a verdict of acquittal on one or more degrees of a crime, an attempt to do so will be treated as withdrawing the issue from consideration by the jury. A trial court is bound to submit to the jury only such degrees of the crime as find support in the evidence. Here the evidence did not support the charge of possession of marijuana with intent to deliver and the court was fully justified in withdrawing the issue of intent to deliver from the jury. The offenses involved were based upon the possession of marijuana at a given time and place and the change in the charge could not have created any confusion as to the nature and cause of the accusation nor created any difficulty in defending against it. The action was clearly to the defendant's benefit and his contention of error is unsupportable. Hogan, 231 N.W.2d at 140 (citation omitted).
[¶19] Under analogous circumstances, this Court considered a similar argument in State v. Morris, 331 N.W.2d 48 (N.D. 1983). Morris had been charged with possession of marijuana with intent to deliver, and the district court denied his motion for judgment of acquittal under N.D.R.Crim.P. 29. The jury convicted Morris of the lesser-included offense of possession of marijuana. On appeal, Morris argued the district court erred in denying his motion for judgment of acquittal and the case should not have been submitted to the jury. This Court concluded:
One might wonder what difference it makes whether the trial judge granted or denied Morris's motion for judgment of acquittal with regard to the major offense charged, i.e., possession with intent to deliver, because Morris was not convicted of the major offense charged; he was convicted of the lesser included offense of simple possession. Had we decided that Morris's motion for acquittal of the crime of possession with intent to deliver should have been granted, Morris would have had us use this decision as a premise in a more elaborate argument: namely, once the trial judge decides a jury could not reasonably conclude from the evidence at trial that the accused is guilty of the major offense charged, and therefore the motion for judgment of acquittal should be granted, the trial judge should not let the case go to the jury even if there is sufficient evidence for the jury to find the accused guilty of a lesser included offense.
Morris's conception of the procedure a trial judge should follow if a motion for acquittal ...