State v. Roller

                         IN THE SUPREME COURT
                         STATE OF NORTH DAKOTA


                                 

State of North Dakota,                                   Plaintiff and Appellee
       v.
Thomas Joseph Roller,                                Defendant and Appellant



                                 No. 20240051

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Isaac O. Lees, Assistant Burleigh County State’s Attorney, Bismarck, ND, for
plaintiff and appellee; on brief.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant; on brief.
                                  State v. Roller
                                  No. 20240051

Bahr, Justice.

[¶1] Thomas Roller appeals from a criminal judgment entered after a jury
convicted him of terrorizing an adult victim, reckless endangerment, criminal
mischief, and domestic violence. He argues the jury instruction identifying the
essential elements of criminal mischief allowed the jury to find him guilty of a
non-cognizable offense. He further argues the district court imposed an illegal
sentence by considering his prior convictions when determining he was a
habitual offender. We affirm the judgment.

                                        I

[¶2] In July 2023, the State charged Roller with terrorizing an adult victim, a
class C felony, reckless endangerment, a class C felony, criminal mischief, a class
A misdemeanor, unauthorized use of a vehicle, a class A misdemeanor, and
domestic violence, a class B misdemeanor. At the same time, the State gave
written notice of its intent to request Roller be sentenced as a habitual offender
under N.D.C.C. § 12.1-32-09(1)(c). The notice identified five separate cases in
which Roller was allegedly convicted of eight class C felonies. Before trial, the
district court granted the State’s motion to dismiss the unauthorized use of a
vehicle charge. The court held a jury trial in November 2023.

[¶3] The district court’s jury instructions stated the essential elements of
criminal mischief as:

      1) On or about July 19 through July 20, 2023, in Burleigh County,
      ND;
      2) The Defendant, Thomas Roller;
      3) Willfully damaged a vehicle, belonging to Wendy Moore; and
      4) Intentionally caused pecuniary loss greater than $100.

(Emphasis added.) Roller did not object to the instructions.

[¶4] The jury returned a guilty verdict on all four charges.



                                        1
[¶5] The district court held a presentencing hearing to determine whether
Roller met the statutory requirements to be sentenced as a habitual offender. The
State requested the court take judicial notice “of its own files and docket”
reflecting the judgments in five cases. Roller objected, arguing there was no
direct authentication verifying that he was the defendant in the prior cases. He
later withdrew the objection, stating he was not taking the position he was not
the defendant in the five cases. After taking judicial notice of the five judgments,
the court found Roller met the criteria to be sentenced as a habitual offender.

[¶6] At a later sentencing hearing, the district court sentenced Roller to
concurrent sentences of ten years for terrorizing an adult victim and reckless
endangerment, suspending all but seven years of the sentences. The court
sentenced Roller to 202 days for criminal mischief and 30 days for domestic
violence.

                                         II

[¶7] Roller argues the jury instruction on the essential elements of criminal
mischief included “a legally impossible culpability” because the instruction
included both “willfully” and “intentionally.”

[¶8] “The district court must instruct the jury on the law; however, the parties
must request and object to specific jury instructions.” State v. Hartson, 

, 

 (quoting State v. Jacob, 

, 

). “[A] party who objects to an instruction . . . must do so on the record, stating
distinctly the matter objected to and the grounds[.]” N.D.R.Crim.P. 30(c)(1).
“When a defendant fails to object to a proposed instruction properly, or fails to
specifically request an instruction or object to the omission of an instruction, the
issue is not adequately preserved for appellate review and our inquiry is limited
under N.D.R.Crim.P. 52(b) to whether the jury instructions constitute obvious
error affecting substantial rights.” Hartson, at ¶ 20.

[¶9] Roller did not propose an instruction identifying the essential elements of
criminal mischief. He also did not object to the district court’s proposed
instruction regarding the essential elements of criminal mischief. Roller
acknowledges he did not preserve this issue for appeal. He requests we review

                                          2
the instruction for obvious error. See State v. Studhorse, 

, 

 (stating when defendant does not make an objection to the proposed
jury instructions, the alleged error is not preserved for appeal and the court
reviews only for obvious error).

[¶10] “To establish an obvious error, the defendant must show: (1) error; (2) that
is plain; and (3) the error affects the defendant’s substantial rights.” State v.
Gardner, 

, 

 (quoting State v. Smith, 

, 

). “To constitute obvious error, the error must be a clear
deviation from an applicable legal rule under current law. There is no obvious
error when an applicable rule of law is not clearly established.” 

 (quoting State
v. Lott, 

, 

). “We have discretion in deciding
whether to correct an obvious error, and we should exercise that discretion only
if the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” 

 (quoting Smith, at ¶ 5).

[¶11] “Jury instructions must correctly and adequately inform the jury of the
applicable law and must not mislead or confuse the jury.” State v. Martinez, 

, 

 (quoting State v. Pavlicek, 

, 

). “We review the instructions as a whole to determine whether they
correctly and adequately advise the jury of the applicable law even if part of the
instruction standing alone may be insufficient or erroneous.” State v. Gaddie, 

, ¶ 6, 

.

[¶12] Under N.D.C.C. § 12.1-21-05, a person is guilty of criminal mischief, a class
B misdemeanor, if the person “[w]illfully damages tangible property of another.”
N.D.C.C. § 12.1-21-05(1)(b), (2) (1997) (amended 2023).1 The offense increases to
a class A misdemeanor if the person “intentionally causes pecuniary loss of from
one hundred dollars through two thousand dollars.” N.D.C.C. § 12.1-21-05(2)(c)
(1997).




1 The information charged Roller with conduct that allegedly occurred in July 2023. Section 12.1-21-05(2), N.D.C.C.,

was amended effective August 1, 2023. 2023 N.D. Sess. Laws ch. 129, § 1.


                                                         3
[¶13] Roller argues it is not legally possible to both “willfully cause damage”
and “intentionally cause pecuniary loss.” Roller does not cite any authority
showing “willfully” and “intentionally” are incongruent. To the contrary, in
Gaddie, 

, this Court determined “’willfully’ as defined by
N.D.C.C. § 12.1-02-02(1)(e) is not necessarily inconsistent with a crime requiring
specific intent[.]” Further, “willful” conduct includes “intentional” conduct.
N.D.C.C. § 12.1-02-02(1)(e) (a person engages in conduct “willfully” if the person
“engages in the conduct intentionally, knowingly, or recklessly.”). Thus,
intentional conduct is a subset of willful conduct, meaning a person’s conduct
can be both willful and intentional.

[¶14] Criminal mischief requires “willful” conduct, which includes intentional
conduct. By using the broader term “willfully” and the narrower term
“intentionally” as elements of the same crime, when read as a whole, the
instructions require the jury to find “intentional” conduct. In other words, the
jury’s finding Roller intentionally caused pecuniary loss greater than $100
necessarily includes a finding Roller willfully damaged the vehicle—intentional
conduct being a subset of willful conduct. Thus, the jury instructions increased
the State’s burden of proof by narrowing the culpability level from any “willful”
conduct to only “intentional” conduct.

[¶15] The district court’s use of “willfully” and “intentionally” in its jury
instruction is not a clear deviation from the statutory language of N.D.C.C.
§ 12.1-21-05 or any clearly established rule of law. The court’s instructions
correctly advised the jury on the elements of the crime. We conclude the district
court did not commit error.

                                       III

[¶16] Roller argues the district court imposed an illegal sentence after finding he
was a habitual offender. Specifically, he claims “there was no foundation or
authentication for the prior convictions asserted in the State’s notice,” and that
“[t]he State did not meet [its] burden of production that the prior conviction[s]
were with counsel or that counsel was waived.”




                                        4
[¶17] “A district court has discretion in sentencing, and review of a sentence is
generally limited to whether the court acted within the statutorily prescribed
sentencing limits or substantially relied on an impermissible factor.” State v.
Maines, 

, 

 (cleaned up). “This Court reviews
habitual offender proceedings under N.D.C.C. § 12.1-32-09 and the application
of a sentence enhancement for an abuse of discretion.” Id. “A trial court abuses
its discretion only when it acts in an arbitrary, unreasonable, or capricious
manner, or misinterprets or misapplies the law.” Id. (quoting State v. Cain, 

, 

).

[¶18] At the presentencing hearing on his habitual offender status, Roller
initially objected to the State’s request the district court take judicial notice of the
court files reflecting the judgments in five cases. However, Roller later withdrew
his objection, stating he was not taking the position he was not the defendant in
the five cases.

[¶19] Rule 28(b)(7)(B)(ii), N.D.R.App.P., requires the appellant’s brief contain
“citation to the record showing that the issue was preserved for review; or a
statement of grounds for seeking review of an issue not preserved[.]” Except for
the objection he later withdrew, Roller’s brief does not cite to the record where
Roller objected to the district court taking judicial notice of the judgments; it also
does not cite to where he argued the court could not consider the prior
convictions because the State did not meet its burden of showing the convictions
were with counsel or that counsel was waived. Roller’s brief provides no
argument regarding why this Court can review these issues when they were not
preserved. Roller’s brief on these issues does not meet the minimum
requirements of Rule 28(b)(7), N.D.R.App.P. “Appellate rules must be complied
with and treated respectfully.” State v. Wiese, 

, 

.

[¶20] Unlike the jury instructions, Roller does not request we review the
sentencing procedures under the obvious error standard. “The burden to show
an obvious error is on the appellant, and when it is not argued, it is difficult for
an appellate court to conclude the burden is satisfied.” State v. Sah, 

, 

. For that reason, we generally will not consider whether a
court committed obvious error if the issue is not briefed. See State v. Hansford,


                                           5


, 

 (“We only decide issues that have been
thoroughly briefed and argued.”); see also State v. Pederson, 

, 

 (declining to consider whether the district court committed obvious
error when appellant did not argue the district court committed obvious error);
State v. Thomas, 

, 

 (not addressing obvious error
because appellant did not argue it); State v. Samaniego, 

, 

 (declining “to engage in an unassisted search of the record for
obvious error” when it was not argued by appellant); Sah, at ¶ 9 (declining to
address obvious error when appellant did not argue it).

[¶21] Roller also does not argue these sentencing issues should be addressed on
appeal, despite not being raised below, because “an objection is unnecessary to
preserve a claim of illegal sentence imposed in a criminal judgment.” State v.
Thomas, 

, 

. This Court will review an illegal
sentence claim even when the defendant did not raise the argument below by
objecting at sentencing or through a motion under N.D.R.Crim.P. 35(a). State v.
McGinnis, 

, 

. However, our holding in Thomas is
limited to “the issue of an illegal sentence, meaning one that could not lawfully
be imposed in that case under any circumstances.” State v. Evanson, 

, 

; see also State v. Eggleston, 

, 

(“A sentence is illegal if it exceeds a statutory provision or in some other way is
contrary to an applicable statute.”). There is a significant distinction “between
claims of error regarding a sentence ‘imposed in a procedurally or factually
flawed manner,’ which can be waived, from an unauthorized sentence that
‘could not lawfully be imposed under any circumstance in the particular case.’”
Thomas, 

 (quoting People v. Valtakis, 

 (2003)).
Roller’s brief fails to address whether this Court should consider these issues
under Thomas, much less the distinction between alleged procedural sentencing
errors and an illegal sentence.

[¶22] Roller’s first issue, that the district court improperly took judicial notice of
Roller’s prior criminal convictions under N.D.R.Ev. 201, is procedural.
Moreover, his argument ignores N.D.R.Ev. 1101(d)(3)(D).




                                          6
[¶23] Rule 1101(d)(3)(D), N.D.R.Ev., provides the rules of evidence do not apply
to “sentencing.” Over four decades ago, addressing the dangerous offender
statute, this Court explained, “The rules of evidence, except those relating to
privileges, do not apply to sentencing procedures. Rule 1101(d)(3), N.D.R.Ev.”
State v. Wells, 

 (N.D. 1978). After discussing the procedural
requirements for finding a defendant a dangerous special offender, we
explained, “the whole process of being found to be, and sentenced as, a
dangerous special offender is a discretionary part of the procedure of sentencing
a defendant upon conviction of a substantive charge[.]” 

 Since Wells, the
procedures for finding a defendant a dangerous special offender has changed.
See State v. Carpenter, 

, 

 (discussing different
procedures to find a defendant a habitual offender and a special dangerous
offender). Although a jury generally determines whether an offender is a special
dangerous offender, “the trial court’s role in determining the habitual offender
status and sentence enhancement is the same as in Wells.” Id. at ¶ 22; compare
N.D.C.C. § 12.1-32-09(4)(a) with (b). When the State seeks to have the defendant
declared a habitual offender, the district court determines whether “the
defendant’s criminal history is sufficient to deem the defendant a habitual
offender.” Id. at ¶ 19. Thus, determining whether an offender is a habitual
offender is part of the sentencing process, meaning the rules of evidence, except
those relating to privileges, do not apply to the court’s determination of whether
an offender is a habitual offender. See State v. Lyon, 

, 

 (“The habitual offender hearing may be combined with the sentencing
hearing.”). Therefore, not only did Roller not object to the district court taking
judicial notice of his prior convictions, but N.D.R.Ev. 201 did not apply to the
sentencing proceedings.

[¶24] Citing State v. Breiner, 

, 

, and State v. Orr, 

 (N.D. 1985), Roller argues his sentence is illegal because the State
did not meet its burden to show his prior felony convictions were with counsel
or that counsel was waived. Although the court records show Roller was
represented by counsel in his prior convictions, citing State v. Mann, 

,

, cert. granted, judgment vacated, 

 (2016), Roller argues




                                        7
the district court could not consider the court records to establish his prior
convictions.

[¶25] In Mann, this Court considered whether N.D.C.C. § 39-08-01(3) authorized
a court to take judicial notice of a defendant’s prior convictions to establish an
“essential element” of the charged offense. 

. In doing so, we noted
the distinction between prior offenses that are essential elements of the charged
offense and prior offenses that enhance the sentence. For a prior offense to
constitute an essential element of the charged offense, we explained, the prior
offense must elevate the charged offense, as opposed to enhancing the sentence
for the charged offense. Id. at ¶ 9. We wrote, “A prior offense does not constitute
an essential element if it only enhances the sentence of a given crime.” Id. After
noting that distinction, we held proof of the prior offenses was required because
the prior convictions constituted an essential element of the charged offense. Id.
We also held the court may not take judicial notice of a matter of proof; “the
question of whether the State satisfied its burden of persuasion remains solely
within the jury’s province[.]” Id. at ¶ 12.

[¶26] Mann is not applicable to this case. Section 12.1-32-09(1)(c), N.D.C.C., does
not create a new crime. Rather, it provides for a sentence enhancement or
extended sentence for the offense of which the defendant was convicted. Lyon,

 (“Section 12.1-32-09(1), N.D.C.C., allows the district court to
extend an offender’s sentence if the court finds the offender is a habitual
offender[.]”); State v. Booth, 

, 

 (stating a court may
sentence a convicted offender “to an extended sentence as a habitual offender”
under section 12.1-32-09(1)(c)); Carpenter, 

 (referring to
the “habitual offender sentence enhancement”). The district court did not
consider Roller’s prior convictions to establish an element of the charged offense.
Rather, the court considered Roller’s prior convictions to determine whether the
sentence could be enhanced under N.D.C.C. § 12.1-32-09(1)(c). It was the role of
the jury to determine what crimes, if any, Roller committed; it was in the
discretion of the district court to impose punishment, “within the statutorily
prescribed limits for the particular offense.” State v. Clinkscales, 

 (N.D. 1995). The district court did not invade the jury’s province by



                                         8
considering Roller’s prior convictions for sentencing. The court’s sentence was
also within the statutorily prescribed limits.

[¶27] The district court did not err when it considered Roller’s prior convictions
to determine his habitual offender status. We hold the district court did not
impose an illegal sentence and did not commit procedural error.

                                       IV

[¶28] We affirm the judgment.

[¶29] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                        9