State v. Luetzen

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                   Plaintiff and Appellee
      v.
Deyan Robert Luetzen,                                Defendant and Appellant

                                 No. 20250223

Appeal from the District Court of Ward County, North Central Judicial District,
the Honorable Gary H. Lee, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Justice.

Kenessa R. Copeland, Assistant State’s Attorney, Minot, ND, for plaintiff and
appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                State v. Luetzen
                                 No. 20250223

Jensen, Justice.

[¶1] Deyan Luetzen appeals from a criminal judgment entered after a jury
found him guilty of illegally possessing a firearm. He argues the district court
erred by failing to instruct the jury consistently with amendments to the law
defining the term “possession” under N.D.C.C. tit. 62.1. He also argues the court
obviously erred by not entering a judgment of acquittal because the State failed
to present sufficient evidence to prove the gun in this case met the statutory
definition of a “firearm.” We affirm.

                                        I

[¶2] The State charged Luetzen with unlawful possession of a firearm by a
felon. The State alleged law enforcement found a handgun in Luetzen’s vehicle
while he was inside a bar where the vehicle was parked. During the trial, Luetzen
objected to proposed jury instructions defining the term “possession,” asserting
the instructions improperly informed the jury the State did not have to prove he
acted intentionally. The district court overruled his objection. After the State
rested its case, Luetzen moved for entry of a judgment of acquittal arguing there
was insufficient evidence to connect him to the vehicle where the gun was found.
The court denied his motion. The jury returned a guilty verdict. Luetzen appeals
from the criminal judgment.

                                       II

[¶3] Luetzen raises two issues with respect to the nature of the criminal charge
in this case. The first issue requires interpretation of an amendment to N.D.C.C.
§ 62.1-01-01(11), which defines the term “possession.” The second issue requires
us to decide whether, based on the meaning of the amendment, the district court
improperly instructed the jury on the essential elements of illegally possessing a
firearm.




                                        1
                                         A

[¶4] Luetzen argues the district court erred by treating the offense of felon in
possession of a firearm as a strict liability crime. He asserts 2023 amendments to
N.D.C.C. § 62.1-01-01(11) require the State to prove intent to possess a firearm.
The State argues the amendments did not change the nature of the offense and it
continues to be a strict liability crime.

[¶5] The interpretation of a criminal statute is a question of law fully
reviewable on appeal. State v. Gaddie, 

, 

.

      Our primary goal in interpreting statutes is to ascertain the
      Legislature’s intentions. In ascertaining legislative intent, we first
      look to the statutory language and give the language its plain,
      ordinary and commonly understood meaning. We interpret statutes
      to give meaning and effect to every word, phrase, and sentence, and
      do not adopt a construction which would render part of the statute
      mere surplusage. When a statute’s language is ambiguous because
      it is susceptible to differing but rational meanings, we may consider
      extrinsic aids, including legislative history, along with the language
      of the statute, to ascertain the Legislature’s intent. We construe
      ambiguous criminal statutes against the government and in favor of
      the defendant.

 (quoting State v. McCreary, 

, 

).

[¶6] A defendant must generally have a guilty mind before he or she can be
convicted. State v. Gedrose, 

, 

. This is a concept
commonly referred to as “mens rea, scienter, malice aforethought, guilty
knowledge, and the like.” 

 (quoting Elonis v. United States, 

(2015)). If an offense is in the criminal code, N.D.C.C. tit. 12.1, and no culpability
is specified, the State must prove willfulness. N.D.C.C. § 12.1-02-02(2). The
default willfulness requirement in the criminal code “will not be read into other
chapters unless the Legislature has specifically so stated.” State v. Montplaisir,

, 

 (quoting State v. Holte, 

, 

). “[W]hen a statute outside of Title 12.1, N.D.C.C., does not specify
a culpability requirement, the offense is a strict liability offense for which no
proof of intent is needed[.]” State v. Kleppe, 

, 

                                     2
(citing Holte, ¶ 10). “A strict liability offense requires no proof of the defendant’s
intent, knowledge, willfulness, or negligence for conviction.” Gedrose, ¶ 8.

[¶7] Under N.D.C.C. § 62.1-02-01, individuals who have been convicted of
certain felony offenses are “prohibited from owning a firearm or having one in
possession . . . .” In State v. Buchholz, 

, 

, this
Court explained, “[t]he offense of felon in possession of a firearm is a strict
liability offense . . . .” In 2023, the North Dakota Legislature added the following
definition for the term “possession” to N.D.C.C. tit. 62.1:

      “Possession” means an individual has:

             a. Direct physical control of something on or around the
             individual’s person; or

             b. The power and intention to exercise control over something
             accessible to but not on or around the individual’s person.

N.D.C.C. § 62.1-01-01(11); see also 2023 N.D. Sess. Laws ch. 123, § 3; State v.
Enriquez, 

, 

 (generally discussing the difference
between actual and constructive possession).

[¶8] Luetzen argues the “amendment fundamentally changed the nature of the
offense by requiring proof of a mental state, intention to exercise control.” He
claims it has the same effect as an amendment this Court addressed in State v.
Bell, 

, 

, which concerned the offense of possessing a
controlled substance with intent to deliver. In Bell, this Court recognized the
offense was a strict liability offense until the Legislature amended the law to
include willfulness. Id. ¶ 30. In Bell, this Court concluded the offense at issue, “as
amended in 1989, now provides: ‘it is unlawful for any person to willfully, as
defined in section 12.1–02–02, manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance.’” Id. Given the amendment, this
Court determined the “offense in Bell’s case is no longer a strict liability
offense . . . .” Id.

[¶9] The willfulness requirement the Legislature added in Bell applied to each
type of conduct the law prohibited—namely manufacturing, possessing, and

                                          3
delivering a controlled substance. Unlike Bell, the intent requirement the
Legislature added to N.D.C.C. tit. 62.1 only applies to one type of conduct the
law prohibits—constructively possessing a firearm. See generally State v. Gardner,

, 

 (explaining offenses may be committed by
alternative means). Now, to obtain a conviction based on constructive
possession, the State must prove the person had “[t]he power and intention to
exercise control . . . .” N.D.C.C. § 62.1-01-01(11). Actual possession, on the other
hand, may be proven by establishing “[d]irect physical control . . . .” Id. Neither
party’s characterization of the offense is correct. It is no longer exclusively a strict
liability offense, but it also does not always require proof of intent.

                                          B

[¶10] Luetzen argues the district court erred when it instructed the jury. He
argues that prior to the amendment, unwitting possession was an affirmative
defense. He asserts that following the amendment, the law ensures due process
by “shifting the burden back to the prosecution where it properly belongs.” He
claims the instructions in this case failed to inform the jury the State had the
burden to prove he intended to exercise control over a firearm.

[¶11] Jury instructions must correctly and adequately advise the jury of the
applicable law. Gaddie, 

. They may not be misleading or
confusing. 

 This Court applies the following standard when reviewing the
propriety of jury instructions:

      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. We will only reverse a conviction based on an improper
      jury instruction if the instruction relates to a central subject in the
      case and affects a substantial right of the defendant.

 (citations omitted).

[¶12] The district court instructed the jury the State had the burden of
establishing the elements of the crime beyond a reasonable doubt. The jury
instructions described those elements as follows:


                                           4
                    ESSENTIAL ELEMENTS OF OFFENSE

      The State’s burden of proof is satisfied if the evidence shows, beyond
      a reasonable doubt, the following essential elements:

            1) On or about December 31, 2023, in Ward County, North
            Dakota,

            2) The Defendant, Deyan Robert Luetzen;

            3) Has been convicted of a Class A Misdemeanor, and the
            offense was committed while using or possessing a firearm;

            4) Owned, possessed, or controlled a firearm; and

            5) Did so within five (5) years from the date of conviction,
            release from incarceration, parole or probation, whichever is
            latest.

The court also provided the following definition for the term “possession”:

      “Possession” means an individual has direct physical control of
      something on or around the individual’s person; or the power and
      intention to exercise control over something accessible to but not on
      or around the individual’s person.

[¶13] Contrary to Luetzen’s assertion, the instructions properly advised the jury
that absent evidence he owned or had actual possession of a firearm, the State
was required to prove he intended to exercise control. This instruction is
consistent with our interpretation of N.D.C.C. § 62.1-01-01(11) in part II(A). The
instructions did not improperly shift the burden to Luetzen. They correctly and
adequately advised the jury of the law.

                                       III

[¶14] Luetzen argues the State did not provide sufficient evidence to prove the
handgun in this case met the statutory definition of a “firearm.” He asserts there
is nothing to prove the gun was functional as required by the definition. Luetzen
notes he moved for judgment of acquittal under N.D.R.Crim.P. 29, but he


                                        5
concedes he did not raise this specific issue in his motion for an acquittal. He
accordingly asks the Court to apply obvious error review.

[¶15] When a defendant moves for judgment of acquittal “on specified grounds
and those grounds did not include the claim on appeal, the defendant does not
preserve that issue for review.” State v. Dahl, 

, 

.
This Court will only consider unpreserved sufficiency of the evidence claims for
obvious error. State v. Rodriguez, 

, 

.

      To establish obvious error under N.D.R.Crim.P. 52(b), the defendant
      has the burden to show (1) error, (2) that is plain, and (3) that affects
      substantial rights. We exercise our power to notice obvious error
      cautiously, and only in exceptional circumstances where the accused
      has suffered serious injustice. In determining whether there has been
      obvious error, we examine the entire record and the probable effect
      of the alleged error in light of all of the evidence.

City of Fargo v. Lunday, 

, 

 (quoting State v. Yineman,

, 

).

[¶16] The standard for reviewing a sufficiency of the evidence claim is well
established:

      In reviewing the sufficiency of the evidence to convict, we look only
      to the evidence most favorable to the verdict and the reasonable
      inferences therefrom to see if there is substantial evidence to warrant
      a conviction. A conviction rests upon insufficient evidence only
      when no rational fact finder could have found the defendant guilty
      beyond a reasonable doubt after viewing the evidence in a light most
      favorable to the prosecution and giving the prosecution the benefit
      of all inferences reasonably to be drawn in its favor.

State v. Johnson, 

, 

 (quoting State v. Spillum, 

, 

).

[¶17] Under N.D.C.C. § 62.1-01-01(3), a “firearm” is defined as “any device that
expels or is readily capable of expelling a projectile by the action of an
explosive . . . .” This definition requires the State to prove a gun is functional. See
Enriquez, 

 (interpreting similar language in N.D.C.C. ch. 12.1-

                                          6
01 to require “one of two alternative levels of functionality”). Direct evidence is
not required; functionality may be proved by “the surrounding facts and
circumstances, including testimony from lay witnesses . . . .” Enriquez, ¶ 24; see
also State v. Williams, 

 (Ohio Ct. App. 2017) (explaining
functionality may be established by testimony of lay witnesses who observed the
gun and the surrounding circumstances). Our caselaw has “not establish[ed] a
clear or obvious legal rule as to what constitutes sufficient evidence to prove a
handgun is able to ‘expel’ or ‘readily capable of expelling’ a projectile.” State v.
Ahmed, 

, ___ N.W.3d ___.

[¶18] There is circumstantial evidence to support a finding that the gun in this
case was functional. The State introduced a federal firearm trace report
indicating the handgun law enforcement seized was a Glock 9mm pistol. The
State provided the jury with photos of the handgun and its magazine. An officer
testified the magazine was loaded with live ammunition. The State also provided
evidence the gun was purchased by Luetzen’s girlfriend from a commercial
firearms dealer roughly thirty days before it was seized. This case is different
than Enriquez, where there was “no evidence in the record” to prove
functionality. 

. Given our lack of a clear rule as to what
constitutes sufficient evidence on this issue, the existence of circumstantial
evidence in this case, and the lack of anything to suggest the firearm was
damaged or otherwise inoperable, we conclude the district court did not
obviously err by failing to enter a judgment of acquittal on its own accord.

                                        IV

[¶19] Title 62.1, N.D.C.C., requires the State to prove intent to exercise control
in cases of constructive possession. The district court’s jury instructions correctly
and adequately advised the jury the State had the burden of proving Luetzen
had direct physical control of or intended to exercise control of the gun in this
case. Luetzen has not met his burden of establishing the court obviously erred
by failing to enter a judgment of acquittal on grounds the evidence was
insufficient to prove the gun was functional. The criminal judgment is affirmed.




                                         7
[¶20] Lisa Fair McEvers, C.J.
      Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Douglas A. Bahr




                                8