from the District Court of Cass County, East Central Judicial
District, the Honorable Steven E. McCullough, Judge.
Tristan J. Van de Streek (argued), Cherie L. Clark (on brief)
and Reid A. Brady (on brief), for plaintiff and appellant.
D. Meyers, for defendant and appellee.
1] The State appeals from a pretrial order dismissing
criminal charges of theft of property and exploitation of a
vulnerable adult against Caroline Conrad based on the civil
dispute doctrine. We reverse and remand for further
proceedings because the civil dispute doctrine does not apply
in this case.
2] In December 2015 the State charged Conrad with theft of
property under N.D.C.C. § 12.1-23-02(1) and exploitation
of a vulnerable adult under N.D.C.C. §
12.1-32-07.1(1)(b), alleging Conrad 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 Conrad as a "joint owner."
After the district court found probable cause at the
preliminary hearing, Conrad, at the court's suggestion,
brought a motion to dismiss the charges based on the civil
3] In its 19-page decision on the motion the district court
detailed our case law on the civil dispute doctrine.
See State v. Herzig, 2012 ND 247, 825 N.W.2d 235;
State v. Curtis, 2008 ND 108, 750 N.W.2d 438;
State v. Perreault, 2002 ND 14, 638 N.W.2d 541;
State v. Trosen, 547 N.W.2d 735 (N.D. 1996);
State v. Brakke, 474 N.W.2d 878 (N.D. 1991); and
State v. Meyer, 361 N.W.2d 221 (N.D. 1985). The
district court correctly concluded the doctrine has two
prongs: (1) "there is a legitimate dispute about a
unique issue of property, contract, or civil law upon which
an element of the charged offense turns;" or (2)
"there is a legitimate dispute about an issue
traditionally and more appropriately settled in a civil
forum." The court found the second prong did not apply
because "issues involving ownership interests in joint
accounts are not so traditionally and appropriately resolved
in a civil forum." However, the court found the first
prong applied because there was "a legitimate dispute
over a unique issue of contract, property [or] civil law
which involves an element of the criminal offense."
4] The district court began its analysis by noting under both
charges the property stolen must belong to another, and it is
long-settled law that "placement of money by one person
into a joint account with another creates a joint tenancy
interest in the money of both the co-owners of the account.
First Nat. Bank & Trust Co. v. Green, [66 N.D.
160, 165, ] 262 N.W. 596[, 597] ( 193) (stating that
after money was placed into a joint account by one party,
that either party on the account 'might have withdrawn
any part of the whole of the deposit during the lifetime of
both')." Relying on In re Paulson's
Estate, 219 N.W.2d 132, 134 (N.D. 1974), the court noted
the three elements for a valid inter vivos gift "are:
(1) intent to give; (2) delivery of the gift[;] and (3)
acceptance by the donee." Based on the mother's
joint account application and her account contract with the
bank, the court found "a legitimate dispute exists"
regarding the mother's donative intent in determining
whether an inter vivos gift had been given by the mother to
Conrad. The court found delivery occurred because the mother
changed her sole ownership of the funds to joint ownership
with Conrad and Conrad accepted the gift because she
"used these funds herself." The court concluded
Conrad met her burden of showing "a legitimate dispute
on a fairly unique underlying issue of property or civil law,
" referring to donative intent for an inter vivos gift.
The court therefore dismissed the charges based on the civil
5] The State argues the district court erred in dismissing
the criminal charges under the civil dispute doctrine.
6] Under N.D.R.Crim.P. 12(b)(1), "[a] party may raise by
pretrial motion any defense, objection, or request that the
court can determine without a trial on the merits." In
Perreault, 2002 ND 14, ¶ 7, 638 N.W.2d 541, we
"[T]he purpose of a motion to dismiss is to test the
sufficiency of the information or indictment. It is not a
device for summary trial of the evidence, and facts not
appearing on the face of the information cannot be
considered. The court is obliged to confine itself to the
face of the information. Further, for ...