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State v. Jessee

Supreme Court of North Dakota

November 6, 2018

State of North Dakota, Plaintiff and Appellee
v.
Rebecca Kathleen Jessee, Defendant and Appellant

          Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Daniel S. El-Dweek, Judge.

          Brian D. Grosinger, Mandan, ND, for plaintiff and appellee.

          Melinda L. Power (argued), Chicago, IL, and B.J. Jones, Fargo, ND, for defendant and appellant.

          Laura C. Ringsak (on brief), Bismarck, ND, for defendant and appellant.

          OPINION

          Crothers, Justice.

         [¶ 1] Rebecca Kathleen Jessee appeals from a district court order deferring imposition of sentence after she was found guilty of tampering with a public service. Jessee argues her presence on railroad tracks during the Dakota Access Pipeline protest did not constitute tampering with tangible property and the district court improperly classified Burlington Northern Sante Fe Railway as a public service. We reverse, concluding Jessee's presence on the tracks did not constitute tampering with tangible property.

         I

         [¶ 2] In November 2016 a two-line stand-off between protesters and law enforcement formed at the intersection of the railroad tracks and County Road 82 in Morton County. Law enforcement responded to reports of protesters attempting to cross the railroad tracks to reach a pipeline construction yard. Responding officers observed a small group, which did not include Jessee, placing debris on the railroad tracks. Law enforcement alerted Burlington Northern Sante Fe Railway of the situation and stopped all trains traveling through the area. As both law enforcement and protestors gathered in greater numbers, the railroad tracks became the dividing line between the two groups. Law enforcement used loudspeakers to warn the protesters to disperse or face arrest.

         [¶ 3] Jessee was among dozens arrested and charged with varying crimes for participating in the protest. Jessee was charged with tampering with a public service for being on and near the railroad tracks during the protest. At Jessee's bench trial the district court found Burlington Northern Sante Fe Railway qualifies as a public service under N.D.C.C. § 12.1-21-06, the delay of one hour and forty-five minutes was a substantial interruption and Jessee's presence on the railroad tracks was tampering. The court found Jessee guilty and entered an order deferring imposition of sentence for one year. Jessee appeals the order.

         II

         [¶ 4] Jessee argues insufficient evidence supports her conviction of tampering with or damaging a public service. Section 12.1-21-06, N.D.C.C., provides:

"1. A person is guilty of an offense if he causes a substantial interruption or impairment of a public communication, transportation, supply of water, gas, power, or other public service by:
a. Tampering with or damaging the tangible property of ...

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