FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 24, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 217
State of North Dakota, Plaintiff and Appellee
v.
Carolyn Nelson, Defendant and Appellant
No. 20230038
Appeal from the District Court of Benson County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
James P. Wang, State’s Attorney, Minnewaukan, ND, for plaintiff and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Nelson
No. 20230038
Crothers, Justice.
[¶1] Carolyn Nelson appeals from a criminal judgment entered after a bench
trial for the crime of accomplice to theft. We affirm, concluding the evidence is
sufficient to sustain the conviction. We decline to address issues Nelson did not
raise in the district court or brief on appeal under the obvious error standard
of review.
I
[¶2] Nelson was the president of the Oberon School Board. Laura Schnieber-Bruns and her business, Victim Survivor the Voice, LLC, were engaged to
perform services for the school. The exact nature of the services was disputed,
but an agreement signed by Nelson and Schnieber-Bruns described the work
as “investigate, research, compile and deliver ongoing actions request of the
Oberon School Board.” The agreement specified a “set-up fee” of $7,500, an “ongoing management” fee of $7,500, and a $200 hourly rate for “services outside
the scope of this Agreement.” Schnieber-Bruns was later charged with class A
felony theft for taking more than $150,000 from the Oberon School “through a
deceptive scheme pursuant to” the agreement. She pleaded guilty by an Alford
plea.
[¶3] The State charged Nelson as an accomplice to the theft. At the bench
trial, the State presented evidence of a pattern of instances where either
Nelson or Schnieber-Bruns submitted invoices to the school’s business
manager with little detail and demanded quick payment. The business
manager testified Schnieber-Bruns was initially paid by checks approved and
hand delivered by Nelson, but later Nelson instructed the business manager to
issue direct deposit payments to Schnieber-Bruns’ bank account. The business
manager testified she raised concerns about payments being made to
Schnieber-Bruns before being authorized by the school board, but Nelson
dismissed her concerns. Nelson acknowledged payments were made prior to
board approval, but testified they were all ultimately approved. Nelson
admitted Schnieber-Bruns gave her money at a casino, but she claimed the
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money was for school-related purchases. Nelson also admitted Schnieber-Bruns gave her daughter a loan. At the close of the State’s case, Nelson moved
for acquittal and argued no evidence established she knew of the theft or
intentionally caused it to happen. The court denied her motion, found her
guilty, and sentenced her to ten years of imprisonment with roughly nine years
suspended. Nelson appeals.
II
[¶4] Nelson raises multiple issues that were not argued to the district court
or briefed on appeal under the obvious error standard of review. She asserts
she was convicted of an incognizable offense, the case should have been
dismissed under the civil dispute doctrine, and as a school board member she
was a victim of Schnieber-Bruns’ fraud and thus cannot be held liable as an
accomplice. When an issue is not raised in the district court, we may opt to
exercise our power to consider the issue under the obvious error standard of
review, but we do so cautiously and only in “exceptional situations” to correct
“serious injustice.” State v. Landrus, 2022 ND 107, ¶ 6,
974 N.W.2d 676. To
establish an obvious error, the appellant must show (1) error; (2) that is plain;
and (3) affects the defendant’s substantial rights.”
Id. Nelson did not claim
these unraised issues constitute obvious error until she was questioned at oral
argument. We decline to address these issues because Nelson failed to raise
them in the district court, did not brief them under the obvious error standard
of review, and provided no meaningful analysis at argument as to whether they
constitute obvious error.
III
[¶5] Nelson argues the evidence is insufficient to sustain the conviction. Our
standard for reviewing the sufficiency of evidence is the same for both a bench
trial and a jury trial. City of Napoleon v. Kuhn, 2015 ND 75, ¶ 14,
860 N.W.2d
460.
“When the sufficiency of evidence to support a criminal conviction
is challenged, this Court merely reviews the record to determine if
there is competent evidence allowing the trier of fact to draw an
inference reasonably tending to prove guilt and fairly warranting
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a conviction. The defendant bears the burden of showing the
evidence reveals no reasonable inference of guilt when viewed in
the light most favorable to the verdict. When considering
insufficiency of the evidence, we will not reweigh conflicting
evidence or judge the credibility of witnesses. . . . A trier of fact may
find a defendant guilty even though evidence exists which, if
believed, could lead to a verdict of not guilty.”
Id. (alteration omitted) (quoting State v. Romero,
2013 ND 77, ¶ 24,
830 N.W.2d
586).
[¶6] Nelson asserts the evidence is insufficient to prove she knew Schnieber-Bruns’ invoices for services were fraudulent and, absent such knowledge,
nothing proves she intentionally aided Schnieber-Bruns in committing theft by
deception. We are not convinced. The State presented evidence that Nelson
frequently requested large payments be made to Schnieber-Bruns prior to
approval of the board, Nelson knew what work Schnieber-Bruns was actually
performing, the two had a close relationship, and Nelson accepted money from
Schnieber-Bruns. Schnieber-Bruns’ daughter testified Nelson and Schnieber-Bruns were friends. Nelson admitted Schnieber-Bruns gave both her and her
daughter money. The school business manager testified Nelson was “pretty
much in charge and telling [Schnieber-Bruns] what to do” and Schnieber-Bruns “did everything with [Nelson’s] permission.” Many of the invoices Nelson
approved were admitted into evidence and included charges for thousands of
dollars with little to no description of any work performed. Reviewing all
evidence in the record in a light most favorable to the verdict, we conclude the
evidence is sufficient to sustain the conviction.
IV
[¶7] The criminal judgment is affirmed.
[¶8] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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