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State v. Pulkrabek

Supreme Court of North Dakota

August 17, 2017

State of North Dakota, Plaintiff and Appellee
v.
Robert John Pulkrabek, Defendant and Appellant

         Appeal from the District Court of Ransom County, Southeast Judicial District, the Honorable Jay A. Schmitz, Judge.

          Fallon M. Kelly, Ransom County State's Attorney, Lisbon, ND, for plaintiff and appellee.

          Scott 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 affirm.

         I.

         [¶ 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.

         II.

         [¶ 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 ...

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