from the District Court of Ransom County, Southeast Judicial
District, the Honorable Jay A. Schmitz, Judge.
M. Kelly, Ransom County State's Attorney, Lisbon, ND, for
plaintiff and appellee.
O. Diamond, Fargo, ND, for defendant and appellant.
VandeWalle, Chief Justice.
1] Robert Pulkrabek appealed the district court's
judgment after a jury found him guilty of theft of property.
Pulkrabek argued the district court erred when it did not
tell the jury it had to unanimously agree on which theory of
theft it believed he committed beyond a reasonable doubt. We
2] In September 2014, sports memorabilia were taken from a
trailer. A search warrant was issued for Robert
Pulkrabek's property in July 2015. During the execution
of the search warrant, some of the stolen sports memorabilia
were found in Pulkrabek's truck. Pulkrabek was
subsequently charged with theft of property in violation of
N.D.C.C. § 12.1-23-02. He was charged with a single
count of theft for taking the stolen property and receiving
the stolen property under § 12.1-23-02(1) and (3).
3] During the jury trial, the prosecutor, defense counsel,
and the district judge had a discussion about the jury
instructions. The discussion pertained to the issues which
arose from the State charging only one count of theft which
incorporated both the taking and the reception of the
property. In the end, the district court decided to combine
the two pattern jury instructions into a single instruction.
The jury instruction did not state the jury needed to be
unanimous in their decision as to which act they believed
Pulkrabek committed. However, the district court instructed
the jury numerous times its verdict needed to be unanimous.
After deliberation, the jury returned a verdict of guilty to
the single count of theft of property.
4] On appeal, Pulkrabek argues the district court erred by
not instructing the jury it must unanimously decide upon
which of the two theories it found him guilty.
5] We first consider whether Pulkrabek properly preserved the
issue for our review. Under N.D.R.Crim.P. 30(a), a party must
request a jury instruction in writing. If a party fails to
request the instruction in writing, the issue is not
adequately preserved for appeal and this Court's review
"is limited under N.D.R.Crim.P. 52(b) to whether the
jury instructions constitute plain or obvious error."
State v. Martinez, 2015 ND 173, ¶ 9, 865 N.W.2d
391; N.D.R.Crim.P. 30(d)(2). For an error to be obvious, the
defendant must show that the error is plain and affects
substantial rights. N.D.R.Crim.P.52(b); City of Mandan v.
Sperle, 2004 ND 114, ¶ 11, 680 N.W.2d 275. This
Court exercises its "power to notice obvious error
cautiously and only in exceptional circumstances when the
accused has suffered serious injustice."
Sperle, 2004 ND 114, ¶ 11 (citing State v.
Mathre, 1999 ND 224, ¶ 5, 603 N.W.2d 173).
Pulkrabek acknowledges he failed to object to the jury
instructions in writing. Therefore, we are limited in our
review to obvious errors.
6] In Martinez, we stated:
Jury instructions must correctly and adequately inform the
jury of the applicable law and must not mislead or confuse
the jury. We view the instructions as a whole to determine if
they correctly and adequately inform the jury. A court errs
if it refuses to instruct the jury on an issue that has been
adequately raised, but the court may refuse to give an
instruction that is irrelevant or inapplicable.
2015 ND 173, ¶ 8 (internal quotes and citations
omitted). "No person may be convicted of an offense
unless each element of the offense is proved beyond a
reasonable doubt." N.D.C.C. § 12.1-01-03(1).
7] N.D.C.C. § 12.1-23-02 defines the crime of theft of
property, and provides a person is guilty if the person:
1. Knowingly takes or exercises unauthorized control over, or
makes an unauthorized transfer of an interest in, the
property of another with intent to deprive the owner thereof;
2. Knowingly obtains the property of another by deception or
by threat with intent to deprive the owner thereof, or
intentionally deprives another of his ...