State v. King

                         IN THE SUPREME COURT
                         STATE OF NORTH DAKOTA


                                  

State of North Dakota,                                     Plaintiff and Appellee
       v.
Shawn Darryll King,                                    Defendant and Appellant



                                  No. 20250101

Appeal from the District Court of Cass County, East Central Judicial District, the
Honorable Wade L. Webb, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Nicholas S. Samuelson, Assistant State’s Attorney, Fargo, ND, for plaintiff and
appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                  State v. King
                                  No. 20250101

Crothers, Justice.

[¶1] Shawn King appeals from a district court’s judgment after a jury found
him guilty of one count of terrorizing, a class C felony, under N.D.C.C. § 12.1-
17-04(1). King was sentenced to five years, four served, and one year suspended
during two years of supervised probation. King claims the court obviously erred
by not sua sponte concluding N.D.C.C. § 12.1-17-04 is unconstitutionally vague
and overbroad as applied to his conduct and N.D.C.C. §§ 12.1-17-04 and 62.1-04-
02 combine to violate his right to lawfully carry a weapon. King fails to show
any of his alleged errors were a clear deviation from applicable current law.
Therefore, his claims of obvious error fail. We affirm the judgment.

                                        I

[¶2] In the early morning of September 17, 2024, police officers responded to a
report that a man drew his knife and approached a woman in her vehicle at a
Fargo gas station. The officers reviewed surveillance video from the store. King
was apprehended near the scene, arrested, and searched. King was charged with
terrorizing (N.D.C.C. § 12.1-17-04(1)), carrying a concealed weapon (N.D.C.C.
§ 62.1-04-02), and possession of drug paraphernalia (N.D.C.C. § 19-03.4-03(2)).
Before trial the State dismissed the drug paraphernalia charge.

[¶3] At trial the victim testified King approached her vehicle on bicycle,
stopped, threw his bike down, took out his knife, and came at her. She testified
King appeared angry, moved quickly, and she was terrified. The State entered
into evidence surveillance video of the incident and called three officers to
testify. The jury found King guilty of terrorizing and acquitted him of carrying a
concealed weapon. King timely appealed.

                                       II

[¶4] King claims that, as applied to his conduct, N.D.C.C. § 12.1-17-04 is
unconstitutionally vague and overbroad and N.D.C.C. §§ 12.1-17-04 and 62.1-04-
02 combine to violate his right to lawfully carry a weapon. This Court reviews a


                                        1
challenge to the constitutionality of a law de novo. City of Fargo v. Roehrich, 

, 

.

[¶5] King did not raise the constitutional challenges at the district court, and
issues not preserved at the district court are reviewed by this Court for obvious
error. State v. Williams, 

, 

. “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. Hamilton, 

, 

. The second prong requires the defendant to show the error was
plain. Plain error is a “clear or obvious deviation from current law.” State v.
Landrus, 

, 

 (cleaned up). To establish plain error,
King must show the statutes are unconstitutional as applied and were applied
by the court in a clear deviation from an applicable legal rule under current law.
Hamilton, ¶ 10.

[¶6] If the alleged errors are not shown by King to be a clear or obvious
deviation from the current law, any claimed error is not plain, and no further
analysis of the alleged error is required. We have declined to analyze the
underlying error in obvious error cases where the alleged error is not plain:

             A plain or obvious error requires a clear deviation from an
      applicable legal rule under current law. [State v. ]Tresenriter, 

, 

 (concluding admission of DNA
      test results, if erroneous, was not clear deviation from applicable
      legal rule under current law); State v. Desjarlais, 

,
      

 (concluding no obvious error when rule of law for
      charging multiple counts is not clearly established); State v. Lee, 

, 

 (concluding error, if any, in
      admitting 911 tape as excited utterance was not clear deviation from
      applicable legal rule under current law); State v. Weaver, 

, 

 (concluding instruction mirroring statutory
      definition of knowingly was not deviation from applicable legal rule
      under current law); State v. Miller, 

, 

 (concluding defendant failed to establish courtroom
      configuration for examination of minor victim of gross sexual
      imposition constituted clear deviation from applicable legal rule
      under current law).


                                          2
State v. Majetic, 

, 

.

[¶7] Determining if the alleged error was plain aligns with our narrow review
of obvious error. “We exercise our power to consider obvious error cautiously
and only in exceptional situations where the defendant has suffered serious
injustice.” Landrus, 

. This framework also aligns with core
principles of separation of powers and constitutional avoidance. “The separation
of powers created by our state and federal constitutions requires courts to
exercise judicial restraint and constitutional avoidance.” Overbo v. Overbo, 

, 

. This Court “will not consider or decide questions,
particularly constitutional questions, that are not necessary to the determination
of an appeal.” Nw. Landowners Ass’n v. State, 

, 

.
“Concepts of judicial restraint and abstention require that courts first consider
whether the pending question can be resolved without constitutional analysis.”
N.D. Legis. Assembly v. Burgum, 

, ¶ 84, 

 (Crothers, J.,
concurring and dissenting).

                                       III

[¶8] King claims the district court obviously erred on three issues. He has the
burden to show the alleged errors were plain and a clear deviation from an
applicable legal rule under current law.
                                         A
[¶9] King claims the State’s application of N.D.C.C. § 12.1-17-04 is
unconstitutionally void for vagueness and allows for arbitrary enforcement of
the law. Section 12.1-17-04, N.D.C.C. states:
      A person is guilty of a class C felony if, with intent to place another
      human being in fear for that human being’s or another’s safety or to
      cause evacuation of a building, place of assembly, or facility of
      public transportation, or otherwise to cause serious disruption or
      public inconvenience, or in reckless disregard of the risk of causing
      such terror, disruption, or inconvenience, the person: 1. Threatens to
      commit any crime of violence or act dangerous to human life.

Id. King argues the statute allows for criminalization of his conduct based on an
observer’s subjective fear, and without requiring a finding of objectively
threatening conduct. Our precedents show that threats in terrorizing cases under

                                        3
N.D.C.C. § 12.1-17-04 are examined under both subjective and objective
standards. The crime of terrorizing under N.D.C.C. § 12.1-17-04 requires proof
of either the defendant’s subjective intent to cause fear or reckless disregard of
the risk of causing fear, combined with an objective assessment of the threat’s
impact on a reasonable person in the recipient’s position.

[¶10] Section 12.1-17-04, N.D.C.C., explicitly incorporates a subjective element
by requiring that the defendant either intend to place another person in fear for
their safety or act with reckless disregard of the risk of causing such fear. Id. This
mens rea requirement is a “critical inquiry [about] whether the defendant
intended to place others in fear for their safety.” State v. Laib, 

,

. In Laib, the defendant argued threats under N.D.C.C. § 12.1-17-
04 must be verbal. Id. ¶ 7. This Court disagreed, holding the threat contemplated
by N.D.C.C. § 12.1-17-04 need only “be communicated by speech, writing, or
act.” Id. This Court explained:

      [T]he State had to prove: (1) the defendant intended to put the victim
      in fear for her safety or acted with reckless disregard of the risk of
      causing her fear; and (2) the defendant made a threat of a “crime of
      violence or act dangerous to human life.” N.D.C.C. § 12.1-17-04;
      [State v.] Carlson, 

, 

. “The critical
      inquiry is whether the defendant intended to place others in fear for
      their safety. Carlson, ¶ 20.”

Laib, ¶ 8 (cleaned up). While the defendant’s subjective intent is one element, we
also apply an objective standard to evaluate whether the communication
constitutes a true threat. State v. Brossart, 

, 

. In
Brossart, we reversed a conviction for terrorizing after holding the district court
erred by not requiring the jury to assess the threat based on “the perspective of
a reasonable person in the recipient’s position.” Id. ¶ 20 (“Brossart was entitled
to an instruction defining ‘threat’ and instructing the jury to consider the facts
and circumstances from the perspective of a reasonable person in the recipient’s
position.”). In State v. Johnson, the defendant’s conviction was affirmed after
“Johnson’s instruction on the definition of a threat or threatening required the
jury to consider Johnson’s conduct from the perspective of a reasonable person
in the recipient’s position and is consistent with our prior cases.” 

,


                                          4
¶ 13, 

; see also State v. Dahl, 

, 

(“This Court has suggested that, when considering the sufficiency of the
evidence in a harassment case, we consider the ‘reasonable recipient,’ rather than
the ‘reasonable speaker.’”). Our dual focus on subjective intent and objective
impact reflects a balance between protecting individuals from true or genuine
threats and safeguarding free speech. Brossart, ¶ 20 (“The district court did not
give the jury any instructions explaining what constitutes a threat and that
communications that are not a ‘true threat’ are protected speech.”).

[¶11] King argues the jury could not determine his intent in carrying his weapon.
“Whether a communication constitutes a threat presents a question for the jury.”
Johnson, 

. Further, asking the factfinder to infer the underlying
intent of an action is commonplace. See, e.g., State v. Friesz, 

,

 (“The jury could infer from the evidence that, by setting the fire,
Friesz also had the requisite intent to destroy at least part of the building.”).
Therefore, King fails to show the district court’s application of N.D.C.C. § 12.1-
17-04 was a clear deviation from an applicable legal rule under current law, and
he fails to show any error would be plain. Thus, his claim of obvious error fails.



                                        B

[¶12] King claims the district court obviously erred by not concluding sua
sponte that N.D.C.C. § 12.1-17-04 “as applied to Mr. King criminalizes a
substantial amount of constitutionally protected conduct in violation of the
overbreadth doctrine.”

[¶13] Here, King fails to cite any authority applying overbreadth doctrine in an
as-applied Second Amendment challenge. See Massachusetts v. Oakes, 

 (explaining the “doctrine of substantial overbreadth is an exception
to the general rule that a person to whom a statute may be constitutionally
applied cannot challenge the statute on the ground that it may be
unconstitutionally applied to others” in contrast to an “as applied” challenge,
which is a “narrower and alternative ground”); United States v. Adams, 

 (8th Cir. 2019) (rejecting application of overbreadth doctrine in as-

                                        5
applied Second Amendment challenge). Therefore, any error would not be plain,
and King’s claim of obvious error fails.

                                       IV

[¶14] King fails to show any of his alleged errors were a clear deviation from an
applicable legal rule under current law. Therefore, his claims of obvious error
fail. We affirm the judgment.

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




                                       6