FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 3, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 101
State of North Dakota, Plaintiff and Appellant
v.
Kristen Danielle Howard, Defendant and Appellee
No. 20200300
State of North Dakota, Plaintiff and Appellant
v.
Oshaya Inez Watkins, Defendant
No. 20200301
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Stacy J. Louser, Judge.
REVERSED AND REMANDED.
Opinion of the Court by VandeWalle, Justice.
Tiffany M. Sorgen, Assistant State’s Attorney, Minot, ND, for plaintiff and
appellant.
Erich M. Grant, Minot, ND, for defendant and appellee Kristen Danielle
Howard.
State v. Howard
Nos. 20200300 & 20200301
VandeWalle, Justice.
[¶1] The State appealed from an order of dismissal after the district court
dismissed conspiracy charges against Kristen Howard and Oshaya Watkins for
lack of probable cause. We reverse and remand.
I
[¶2] The State charged Howard and Watkins with conspiracy to commit
burglary and conspiracy to commit aggravated assault, both class C felonies.
On August 6, 2020, Kayla Kelly recorded a conversation on her phone that she
had with Howard and Watkins at their workplace in Minot. Howard supervised
Kelly and Watkins and called them in on their day off for this meeting. Howard
and Watkins were speaking when Kelly arrived.
[¶3] Howard told Kelly that Howard’s husband was having an affair with
Jane Doe, a service member in the U.S. Air Force. Howard allegedly planned
to get back at Doe for having the affair with Howard’s husband. According to
the alleged plan, Watkins was supposed to pick up Doe that night. The three
would then take Doe drinking in Minot and slip her a drug. While in Minot,
Watkins was supposed to get Doe’s keys, and Howard would then go back to
Doe’s apartment and “plant paraphernalia and drug items.” The apparent
purpose of drugging Doe and planting items was to get Doe in trouble with the
Air Force. Howard told Kelly and Watkins she had a drug they could use.
[¶4] After the conversation ended, Kelly reported it to Deputy Taylor Schiller
of the Ward County Sheriff’s Office on the same day. Schiller listened to the
recording of the conversation. Schiller contacted Howard’s husband, who
confirmed he had an affair with Doe. Schiller also spoke to Doe, who said she
received text messages about meeting up with others that evening. However,
the person texting Doe told Doe her name was Mandy, and the phone number
did not come back to Howard or Watkins. No meeting took place with Doe as
Howard was arrested that same day. After a preliminary hearing, the district
court dismissed the charges without prejudice for lack of probable cause. The
1
court found no evidence supported the “overt act” requirement for the
conspiracy charges.
II
[¶5] The State appealed from an order dismissing the charges against
Howard and Watkins without prejudice. Under N.D.C.C. § 29-28-07(1) the
State can appeal from “[a]n order quashing an information or indictment or
any count thereof.” We have previously held an order dismissing a criminal
case without prejudice is appealable under N.D.C.C. § 29-28-07(1). State v.
Gwyther, 1999 ND 15, ¶¶ 10-11,
589 N.W.2d 575. In State v. Gwyther we said,
“Because the statute does not specifically limit appealability to an order
quashing with prejudice, we conclude an order dismissing a complaint,
information, indictment, or any count thereof, with or without prejudice, is
appealable under N.D.C.C. § 29-28-07(1).” Id. at ¶ 11. Therefore, the State can
appeal the district court’s order dismissing the charges without prejudice.
III
[¶6] The State argues the district court erred when it found no probable cause
existed for the charges of conspiracy to commit burglary and conspiracy to
commit aggravated assault. It asserts the dismissal was contrary to the
evidence presented at the hearing. This Court reviews a district court’s
decision to dismiss a criminal charge for an abuse of discretion. State v. Brown,
2018 ND 229, ¶ 3,
918 N.W.2d 382. “A district court abuses its discretion if it
acts in an arbitrary, unreasonable, or unconscionable manner or if it
misinterprets or misapplies the law.”
Id.
In determining if probable cause exists, the court may judge
credibility and make findings of fact and we will not reverse the
findings if, after resolving conflicts in the evidence in favor of
affirming, sufficient evidence exists that support the court’s
findings and the decision is not contrary to the manifest weight of
the evidence. Whether the facts found by the court constitute
probable cause is a question of law, fully reviewable on appeal.
State v. Gratton, 2020 ND 41, ¶ 8,
938 N.W.2d 902 (internal citation omitted).
We have also said:
2
The probable cause showing required at a preliminary hearing
under N.D.R.Crim.P. 5.1 is “a minimal burden of proof.” The
standard of probable cause at the preliminary hearing is the same
standard of probable cause required for a valid arrest. Under that
standard, 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, and
knowledge of facts sufficient to establish guilt is not necessary to
establish probable cause.
Gratton, 2020 ND 41, ¶ 9 (internal quotations and citations omitted). “To
justify binding over for trial a person accused of a crime, it is only necessary at
the preliminary examination that sufficient evidence be introduced to satisfy
the judge that a crime has been committed and that the accused is probably
guilty.” Heick v. Erickson,
2001 ND 200, ¶ 4,
636 N.W.2d 913; see also State v.
Serr,
1998 ND 66, ¶ 10,
575 N.W.2d 896; N.D.R.Crim.P. 5.1(a).
IV
[¶7] The State charged Howard and Watkins with conspiracy to commit
burglary and conspiracy to commit aggravated assault. The legal standard for
conspiracy is set by statute:
A person commits conspiracy if he agrees with one or more persons
to engage in or cause conduct which, in fact, constitutes an offense
or offenses, and any one or more of such persons does an overt act
to effect an objective of the conspiracy. The agreement need not be
explicit but may be implicit in the fact of collaboration or existence
of other circumstances.
N.D.C.C. § 12.1-06-04(1).
[¶8] A person commits the crime of burglary if the person:
willfully enters or surreptitiously remains in a building or occupied
structure, or a separately secured or occupied portion thereof,
when at the time the premises are not open to the public and the
actor is not licensed, invited, or otherwise privileged to enter or
remain as the case may be, with intent to commit a crime therein.
3
N.D.C.C. § 12.1-22-02(1). Aggravated assault, as charged in the amended
complaint, is a class C felony and requires a person to willfully cause serious
bodily injury to another human. N.D.C.C. § 12.1-17-02(1)(a).
[¶9] “A conspiracy shall be deemed abandoned if no overt act to effect its
objectives has been committed by any conspirator during the applicable period
of limitations.” N.D.C.C. § 12.1-06-04(3). “The burden upon the prosecution to
prove an overt act is minimal, for almost any act in furtherance of the unlawful
agreement will satisfy the overt-act requirement.” State v. Lind, 322 N.W.2d
826, 845 (N.D. 1982).
[¶10] Here, the district court dismissed the conspiracy charges against
Howard and Watkins after finding “no evidence either Howard or Watkins
performed an overt act in furtherance of their alleged objective.” Instead, the
court found:
[T]he only evidence presented was that Watkins, Howard and the
third individual had a discussion regarding Jane Doe, “slipping
something” into Jane Doe’s beverage, trying to interfere with Jane
Doe’s employment and that Jane Doe received a general text
message from an unidentified number asking her to “go out.”
Neither Watkins nor Howard were alleged to have made contact
with Jane Doe nor her residence nor was there any evidence that
Watkins or Howard took steps to obtain any substance intended to
be used on Jane Doe. As to the text message, because same was
general in nature and was from an unknown number, there is no
nexus between Howard, Watkins and the message.
A
[¶11] The State argues the procurement of the controlled substance to drug
Doe satisfied the overt act requirement for the conspiracy. “The necessary overt
act in furtherance of the conspiracy by any one of the conspirators should be
made subsequent to the agreement or may accompany or follow the agreement
if in furtherance of its object.” 15A C.J.S. Conspiracy § 148 (2021); see also 16
Am. Jur. 2d Conspiracy § 12 (2021) (“Where an overt act is required for a
conspiracy prosecution, the act need not be unlawful or criminal but may be
any act, innocent or illegal, accompanying or following the agreement.”).
4
[¶12] Here, the district court found no evidence Howard or Watkins took steps
to obtain a substance to drug Doe. In its brief the State notes, “What the Court
neglected to consider was the fact Defendant Howard had already procured the
drug which was intended to be introduced into Jane Doe’s drink.” (Emphasis
added.) At the hearing Schiller testified, “[Howard] had said in her statement
that she had had the drug.”
[¶13] Although the district court found no evidence was presented on the drug
procurement, the testimony of Schiller indicates Howard already had it in her
possession when the conversation between herself, Watkins, and Kelly took
place. A conspiracy charge requires the overt act to occur at the same time or
after the agreement is made. The manifest weight of the evidence does not
show that occurred here regarding the drug procurement. The little evidence
introduced appears to show Howard acquired the drug before she and Watkins
made any agreement. Therefore, the court did not err when it found a lack of
evidence for the drug procurement to qualify as an overt act.
B
[¶14] The State also argues the text messages Doe received from someone who
called herself Mandy indicated Howard or Watkins took an overt act to effect
the conspiracy.
[¶15] In Commonwealth v. Ericson, the Massachusetts Appeals Court
reviewed a defendant’s convictions after he approached a minor in a park and
asked her to send him nude photographs. 10 N.E.3d 127, 130 (Mass. App. Ct.
2014). The defendant approached the minor claiming he lost his cell phone,
and asked to borrow her phone so he could locate his own.
Id. Later that day,
the minor received text messages from the defendant’s phone.
Id. The minor
told the defendant she was sixteen and eventually went to the police after the
defendant asked for pictures of the minor.
Id. at 130-31. The police took
possession of the minor’s phone, and “the defendant sent a picture of himself
in a tank top from the waist up.”
Id. at 131. Two days later, the police obtained
the defendant’s phone when it was delivered to them as lost property.
Id. The
phone contained the tank top picture and other pictures of the defendant.
Id.
at 131, 137.
5
[¶16] After he was convicted the defendant claimed, “[T]he evidence failed to
show beyond a reasonable doubt his knowledge of [the minor’s] age and his
authorship of the text messages to her.” Ericson, 10 N.E.3d at 137. The court
concluded “ample circumstantial evidence” identified the defendant as the
sender of the text messages to the minor.
Id. It noted, “[The text messages]
timing closely followed the meeting in the park.”
Id. It also noted, “The tank
top image extracted from the cell phone showed the user of the cell phone as
the man in the park.”
Id. The court held the evidence was sufficient to sustain
the convictions. See
id. at 139.
[¶17] In this case, the State only needed to meet a “minimal burden of proof”
to show that a conspiracy was made and that Howard and Watkins probably
are the culprits. Although the State has this minimal burden, the district court
concluded there was no nexus between Howard, Watkins, and a text message
to qualify as an overt act because it was “general in nature” and “from an
unknown number.” However, Schiller testified that Doe received text messages
“from somebody regarding hanging out that evening.”
[¶18] In Ericson, the timing of text messages to the minor was used as evidence
to support a jury’s finding the defendant sent them. Ericson,
10 N.E.3d at 137.
Similar to Ericson, the time between the meeting of the three women to discuss
the plan and Doe receiving the text messages can be used as evidence to
indicate it was probably either Howard or Watkins who sent the messages.
Although the district court found no nexus, a timing nexus exists between the
recorded meeting and the text messages linking Howard and Watkins to the
messages. This timing nexus establishes probable cause that Howard or
Watkins committed an overt act under N.D.C.C. § 12.1-06-04(1) and (3).
Therefore, the court erred when it found no evidence establishing probable
cause that Howard and Watkins committed an overt act to effect the alleged
conspiracy.
6
V
[¶19] We reverse the district court’s order dismissing the charges against
Howard and Watkins and remand for further proceedings consistent with this
opinion.
[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
7
