State v. Vetter

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                 

State of North Dakota,                                   Plaintiff and Appellee
      v.
Zachary Glen Vetter,                                 Defendant and Appellant



                                No. 20250149

Appeal from the District Court of Richland County, Southeast Judicial District,
the Honorable Bradley A. Cruff, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Jessica M. Rydell, Assistant State’s Attorney, Wahpeton, ND, for plaintiff and
appellee; submitted on brief.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                 State v. Vetter
                                 No. 20250149

McEvers, Justice.

[¶1] Zachary Vetter appeals from a criminal judgment entered after the district
court found him guilty of disorderly conduct. Vetter argues he was engaged in
constitutionally protected activity and North Dakota law requires courts to first
determine whether his conduct was constitutionally protected before
determining whether there is sufficient evidence for conviction. Vetter argues
that when evidence of his constitutionally protected conduct is excluded, the
evidence is insufficient to sustain the conviction. We affirm.

                                       I

[¶2] On November 4, 2024, Vetter visited his stepchild’s elementary school to
speak with the principal regarding his stepchild’s suspension from riding the
bus. The principal reported Vetter’s conduct during and shortly following this
conversation to law enforcement. On November 26, 2024, the State charged
Vetter with disorderly conduct under N.D.C.C. § 12.1-31-01(1)(a).

[¶3] Vetter waived his right to a jury trial. At the April 2025 bench trial, the
school’s principal, a school counselor, and a paraprofessional at the school
testified. The principal testified that Vetter entered their conversation visibly
upset. Vetter raised his voice at her during this conversation, and while she was
never outright threatened by Vetter, she was alarmed by his behavior, describing
her alarm as being “on high guard.”

[¶4] The school counselor testified that she was supervising student breakfast
in the school commons area when Vetter exited the office, visibly upset. Vetter
pushed a garbage can causing it to collide with a door, pushed the door open
very hard creating a forcible noise, and exited the school. Students were present
during this behavior, and the school counselor testified she was alarmed, more
for the children than herself. A paraprofessional working outside when Vetter
exited the building testified to hearing commotion and yelling by the
playground. She saw and heard Vetter yelling obscenities and gesturing with his
middle finger toward the building, although she could not see who, if anyone,

                                       1
stood at the school doors where Vetter directed his gestures. She testified further
that after making these gestures, Vetter stopped yelling, entered a vehicle, and
sped away sending rocks into the air and blaring his horn. All three individuals
testified that Vetter’s actions caused them alarm.

[¶5] In analyzing Vetter’s behavior, the district court examined the culmination
of Vetter’s actions finding Vetter’s behavior of using obscene language, pushing
the garbage can, and spinning out in the parking lot—all in the presence of
students—reasonably alarmed the principal, counselor, and paraprofessional.
The district court found that because Vetter was charged under N.D.C.C. § 12.1-
31-01(1)(a), and threatening or fighting behavior was not present, a conviction
depended on whether Vetter’s behavior was violent or tumultuous and those
present were reasonably alarmed by it. Due to the alarm caused by the totality
of Vetter’s tumultuous behavior, the court found the elements were proven
beyond a reasonable doubt and that Vetter committed disorderly conduct. Vetter
timely appealed.

                                        II

                                        A

[¶6] Vetter attacks his conviction on constitutional grounds. He asserts he was
exercising his fundamental right to direct his child’s education and to advocate
for his child’s welfare in educational settings.

[¶7] Under N.D.C.C. § 12.1-31-01(1)(a), an individual commits disorderly
conduct if “with intent to harass, annoy, or alarm another person or in reckless
disregard of the fact that another person is harassed, annoyed, or alarmed by the
individual’s behavior, the individual: a. Engages in fighting, or in violent,
tumultuous, or threatening behavior.” However, “[i]f an individual claims to
have been engaged in a constitutionally protected activity, the court shall
determine the validity of the claim as a matter of law and, if found valid, shall
exclude evidence of the activity.” N.D.C.C. § 12.1-31-01(2).

[¶8] “Whether an activity is constitutionally protected is a question of law,
which is fully reviewable on appeal.” In re H.K., 

, 

. In H.K., the juvenile charged with disorderly conduct moved to dismiss,
claiming the conduct was protected by the First Amendment. Id. ¶¶ 11, 14. This
Court noted when a person accused of disorderly conduct claims to have been
engaged in constitutionally protected activity, the district court must determine
the claim as a matter of law and exclude evidence of constitutionally protected
activity. Id. ¶ 12. On appeal, “a reviewing court has a constitutional duty to
independently examine the record as a whole to assure that the judgment does
not constitute a forbidden intrusion on the field of free expression.” Id. (cleaned
up). This Court is cautious when reviewing claims of constitutionally protected
activity. State v. Brossart, 

, 

.

[¶9] Vetter argues discussing his stepchild’s bus suspension with the principal
was constitutionally protected under a fundamental parental right to direct
education and advocate for the child’s educational welfare. He argues that the
activity “occurred through entirely appropriate means in the proper forum” and
did not cause a loss of constitutional protection. Vetter has cited no authority
supporting a stepparent’s fundamental right to parent. Vetter further argues that
the statute is constitutionally vague as applied to him and charging Vetter
criminally demonstrates arbitrary enforcement violating his equal protection.

[¶10] Vetter did not raise any constitutional claims in the district court. An
individual must actually claim to have been engaged in constitutionally
protected activity before the court is required to determine the validity of the
claim. See N.D.C.C. § 12.1-31-01(2). “Issues not raised below, even constitutional
issues, generally will not be addressed on appeal unless the alleged error rises to
the level of obvious error under N.D.R.Crim.P. 52(b).” State v. Curtis, 

, 

 (cleaned up). “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. Thompson, 

, 

 “Only constitutional error that is ‘egregious’ or ‘grave’ is subject to
the obvious error rule.” Curtis, ¶ 9 (quoting State v. Parisien, 

,

). “Our power to notice obvious error is exercised cautiously and
only in exceptional situations where the defendant has suffered serious
injustice.” State v. Miller, 

 (N.D. 1986). On appeal, Vetter did



                                        3
not address obvious error, and in our discretion, we decline to further address
his constitutional claims.

                                        B

[¶11] Vetter argues the district court lacked sufficient evidence for conviction as
the State failed to prove the required mental state of intent and failed to prove
he engaged in tumultuous behavior.

[¶12] “When reviewing challenges to the sufficiency of evidence, this Court
draws all inferences in favor of the verdict.” Curtis, 

. “We reverse
criminal convictions only when, after viewing the evidence and all reasonable
evidentiary inferences in the light most favorable to the verdict, no rational
factfinder could have found the defendant guilty beyond a reasonable doubt.”

 (quoting State v. Barendt, 

, 

) (cleaned up). When
reviewing a challenge to the sufficiency of the evidence regarding a conviction
arising from a bench trial, we are not limited to the reasons a district court gives
for a guilty finding, and we may consider the entire record to decide whether
substantial evidence exists to support conviction. State v. Simon, 

, 

.

[¶13] Contrary to Vetter’s argument, intent to harass, annoy, or alarm another
person is not the only mental state statutorily enumerated; all that is required is
“reckless disregard of the fact that another person is harassed, annoyed, or
alarmed by the individual’s behavior.” N.D.C.C. § 12.1-31-01. Further,
circumstantial evidence is often the only method of proving criminal intent. State
v. Kinsella, 

, 

. “A defendant’s conduct may be
considered as circumstantial evidence of the required criminal intent.” 

[¶14] Behavior constituting disorderly conduct need not be directed at one
person. See Simon, 

 (affirming disorderly conduct
conviction when protesting defendants “attempted to flank officers’ skirmish
lines and advance toward construction equipment”). Rather, “[a]ctions
constituting disorderly conduct need be offensive to only one person,” under an
objective standard. City of Devils Lake v. Lawrence, 

, 

 (emphasis added); State v. Klindtworth, 

, 

.

                                         4
Here, several witnesses testified they were alarmed by Vetter’s conduct.
Viewing the evidence in the light most favorable to the verdict, we conclude
Vetter’s conduct and the effects of his conduct on its recipients provide sufficient
evidence to show that Vetter acted in reckless disregard that another person was
alarmed by his behavior.

[¶15] As to whether the State proved tumultuous behavior by Vetter, neither this
Court’s case law nor N.D.C.C. § 12.1-31-01 define “tumultuous.” When a term is
not specifically defined, the Court looks to the plain, ordinary, and commonly
understood meaning of the words. State v. Bearrunner, 

, 

; N.D.C.C. § 1-02-02. The word “tumultuous” has been defined as:
“1. Very loud; noisy; 2. Characterized by disorderly commotion; 3. Characterized
by mental or emotional agitation.” The Am. Heritage Dictionary of the English
Language, 1868 (Steven R. Kleinedler et al. eds., 5th ed. 2018). Whether conduct
is tumultuous is a factual determination better suited to the district court, where
evidentiary observations and credibility determinations are made. Bearrunner,
¶ 12. We conclude, viewing the evidence in the light most favorable to the
verdict, there was sufficient evidence to support the district court’s finding that
Vetter’s conduct constituted tumultuous behavior, and he was therefore guilty
of disorderly conduct.

                                        III

[¶16] We affirm the district court’s criminal judgment convicting Vetter of
disorderly conduct.

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




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