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State v. Turbeville

Supreme Court of North Dakota

June 7, 2017

State of North Dakota, Plaintiff and Appellant
v.
Kensley Danielle Turbeville, Defendant and Appellee

         Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Daniel Saleh El-Dweek, Judge.

          Stephenie L. Davis, McKenzie County Assistant State's Attorney, Watford City, ND, for plaintiff and appellant.

          Steven J. Fischer, Bismarck, ND, for defendant and appellee.

          OPINION

          Kapsner, Justice.

         [¶ 1] The State appeals a district court order dismissing with prejudice a class B felony charge of possession of a controlled substance with intent to deliver against Kensley Turbeville for lack of probable cause. Because we conclude the State produced sufficient evidence to establish probable cause for a charge of class B felony possession of a controlled substance with intent to deliver, we reverse and remand.

         I

         [¶ 2] On July 25, 2016, Turbeville was charged with possession of a controlled substance with intent to deliver and two counts of possession of drug paraphernalia following the execution of a search warrant at Turbeville's residence. The district court held a preliminary hearing and arraignment on September 29, 2016. At the hearing, an officer testified he responded to Turbeville's residence to investigate a potential domestic dispute. The officer testified he smelled an odor of burnt marijuana when the door was opened, and after determining no domestic dispute was occurring, asked for consent to search the home. The officer testified he obtained a search warrant for the home after being unable to secure consent from all the residents of the home. The officer testified the search revealed multiple items of drug paraphernalia, "a sizable amount of marijuana that looked like it had been processed into smaller, equal pieces for distribution, " a "box to a small pocket scale, " baggies containing marijuana, a grinder, and $379.00 in cash. Turbeville's counsel questioned the officer about the amount of marijuana found. The officer testified he did not feel he could get an accurate weight and that it was being analyzed at the state crime lab. The officer testified the individual "nuggets" of marijuana were not packaged separately. Turbeville argued there was nothing presented at the hearing to indicate she had intent to deliver. The State argued there was sufficient evidence presented for probable cause Turbeville possessed marijuana with intent to deliver.

         [¶ 3] The district court ordered count 1, possession of a controlled substance with intent to deliver, dismissed with prejudice. At the preliminary hearing, the district court stated, "I just don't believe there's sufficient evidence to go forward to a jury.... I just don't feel there's sufficient evidence... not on this charge anyway." On September 29, 2016, the district court entered an order dismissing, with prejudice, Turbeville's possession of a controlled substance with intent to deliver charge. The State filed a notice of appeal on October 4, 2016.

         II

         [¶ 4] On appeal, the State argues the district court erred by failing to find probable cause in support of the charge of possession of a controlled substance with intent to deliver. The State asks this Court to reverse the district court's order of dismissal and remand for further proceedings. Turbeville argues the district court properly dismissed the charge.

         [¶ 5] "The State's right to appeal must be expressly granted by statute." State v. Goldmann, 2013 ND 105, ¶ 6, 831 N.W.2d 748 (quoting State v. Erickson, 2011 ND 49, ¶ 6, 795 N.W.2d 375). The State has the ability to appeal from an order dismissing a charge with prejudice under N.D.C.C. § 29-28-07. Section 29-28-07(1), N.D.C.C., provides the State may appeal from "[a]n order quashing an information or indictment or any count thereof." "This Court has 'consistently held that an order dismissing a criminal complaint, information, or indictment is the equivalent of an order quashing an information or indictment and is therefore appealable under the statute.'" Goldmann, at ¶ 6 (quoting State v. Gwyther, 1999 ND 15, ¶ 11, 589 N.W.2d 575). Accordingly, this Court has jurisdiction of the State's appeal from the order dismissing Turbeville's class B felony possession of a controlled substance with intent to deliver charge with prejudice.

         [¶ 6] The district court dismissed the class B felony charge of possession of a controlled substance with intent to deliver against Turbeville at the preliminary hearing. This Court has previously explained the purpose of a preliminary hearing in a criminal case:

A preliminary hearing is a screening tool "to determine the existence or absence of probable cause." State v. Blunt, 2008 ND 135, ¶ 17, 751 N.W.2d 692 (citation and quotation omitted). Probable cause "exists when the facts and circumstances are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed." Id. at ¶ 16 (citations and quotation omitted). "The standard of probable cause at the preliminary hearing is the same standard of probable cause required for a valid arrest." Id. (citations omitted). "To establish probable cause, the officer does not have to possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred." State v. Berger, 2004 ND 151, ¶ 11, 683 N.W.2d 897 (citations omitted). Because a preliminary hearing is not an actual trial, "[t]he finding of probable cause may be based on hearsay evidence" and "evidence that would be inadmissible at the trial." N.D.R.Crim.P. 5.1(a). If, after hearing the evidence, the court finds "either a public offense has not been committed or there is not sufficient cause to believe the defendant guilty of the offense, the magistrate must discharge the defendant." N.D.R.Crim.P. 5.1(b).

Goldmann, 2013 ND 105, ¶ 8, 831 N.W.2d 748. "The district court's authority to assess credibility and make findings of fact must be viewed... in the context of the minimal burden of proof placed upon the State and the limited purpose of the preliminary hearing." Blunt, at ¶ 15. "The State is not required to prove with absolute certainty or beyond a reasonable doubt that a crime occurred, but rather need only produce sufficient evidence to satisfy the court that a crime has been committed and that the accused is probably guilty." Id. "At its core, the preliminary hearing ...


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