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State v. Kremer

Supreme Court of North Dakota

February 22, 2018

State of North Dakota, Plaintiff and Appellee
v.
James Richard Kremer, Defendant and Appellant

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.

          Caitlyn A. Pierson, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

          James R. Kremer, self-represented, Jamestown, ND, defendant and appellant; on brief.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] James Kremer appealed from an order for forfeiture and destruction of items of property involved in his criminal convictions for possessing images of sexual conduct by minors. We conclude the district court did not err in ordering forfeiture and destruction of Kremer's laptop and portable hard drive, but erred in ordering forfeiture and destruction of Kremer's X-Box and PlayStation. We affirm in part and reverse in part.

         I

         [¶ 2] In 2016 Kremer pled guilty to three class C felony counts of possessing prohibited materials under N.D.C.C. § 12.1-27.2-04.1 involving images of sexual conduct by minors. Kremer was sentenced to serve ten years in prison followed by three years of supervised probation. During the first year after his release from incarceration, Kremer is prohibited from possessing "any equipment which allows you to access the internet." During the final two years of his probation, Kremer is allowed "to access the internet as per your probation officer."

         [¶ 3] In December 2016, the State moved for forfeiture and destruction of six pieces of "property used or intended to be used in the commission of the crime(s) charged" under N.D.C.C. §§ 29-31.1-01(1) and 29-31.1-03:

the ASUS laptop (model no. G745, serial no. G74ST-BBK7), the Western Digital portable hard drive (serial no. WX11A82T5914), the HP laptop (model no. 2000, serial no. 5CG25000HG), Sony PlayStation 3 with controller, Sony PlayStation 2 with 8GB memory card (serial no. FU4929723), and Microsoft X-Box with controller (serial no. 613278144505).

         Kremer filed a self-represented response:

The State requests that the six (6) items articulated above be forfeited and destroyed because the State alleges the items had been used or intended to be used to facilitate the commission of a criminal offense and because the items are now illegal for Defendant to possess based upon Defendant's sentence in this matter.
Defendant would argue that he does not want to possess the items, but all tax information, personal documents, personal photos, business documents, school e-books and documents, and account information contained on the items need to be saved, and that after saving such information Defendant's family would then be able to sell such items, and such would not be "illegal" based upon Defendant's sentence in this matter.

         Kremer also informed the district court judge through correspondence that, "[a]s a computer technician, I know there is a way to only remove the offending data, so it cannot be recoverable, while keeping the integrity of the rest of the data on the laptop. The laptop and external hard drive can then be returned without the offending information on them."

         [¶ 4] At the hearing on the motion, Kremer, self-represented, appeared by interactive video network. The only person who testified at the hearing was Kremer's former roommate, who claimed ownership of the HP laptop and Sony PlayStation 3. The district court ordered those two items be returned to the roommate. The State indicated it had a witness present ...


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