Filed 1/22/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 29
State of North Dakota, Plaintiff and Appellee
v.
Julian Bearrunner, Defendant and Appellant
No. 20180258
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Thomas J. Schneider, Judge.
AFFIRMED IN PART AND REVERSED IN PART.
Opinion of the Court by Jensen, Justice.
Chase R. Lingle, Assistant State’s Attorney, Mandan, ND, for plaintiff and
appellee.
Benjamin M. Stoll (argued), Washington, DC, Russell J. Myhre (appeared),
Valley City, ND, and Thomas A. Dickson (on brief), Bismarck, ND, for defendant
and appellant.
State v. Bearrunner
No. 20180258
Jensen, Justice.
[¶1] Julian Bearrunner appeals from a criminal judgment entered following
convictions of class A misdemeanor criminal trespass and class A misdemeanor
engaging in a riot. We affirm Bearrunner’s conviction of criminal trespass and
reverse the conviction of engaging in a riot.
I.
[¶2] On February 1, 2017, a large group of individuals, including Bearrunner,
gathered in a pasture near the Dakota Access Pipeline to participate in protest
activities. The pasture was owned by Energy Transfer Partners. The pasture was
separated from the adjacent highway by a barbed wire fence.
[¶3] Law enforcement arriving on the scene observed an open gate and that the road
leading from the highway into the pasture through the open gate had been plowed free
of snow. Law enforcement agents entered the pasture, notified the protesters they
were on private property, and informed the protesters they were required to leave. In
response, the protesters locked arms in a circle, refused to leave the pasture, and had
to be forcefully separated from each other in order to be arrested. Bearrunner was
arrested along with the other protesters and charged with class A misdemeanor
criminal trespass and with class A misdemeanor engaging in a riot. Following a
bench trial, Bearrunner was found guilty of both charges.
[¶4] On appeal, Bearrunner argues the district court misinterpreted the criminal
trespass statute by finding that the pasture was “so enclosed as manifestly to exclude
intruders” as required to convict him of the trespassing charge. Bearrunner also
argues the district court erred in finding that his conduct was “tumultuous and violent”
as required to convict him of the engaging in a riot charge.
II.
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[¶5] Under N.D.C.C. § 12.1-22-03(2)(b), “[a]n individual is guilty of a class A
misdemeanor if, knowing that that individual is not licensed or privileged to do so, the
individual . . . [e]nters or remains in any place so enclosed as manifestly to exclude
intruders.” “Statutory interpretation is a question of law, fully reviewable on appeal.”
Agri Indus., Inc. v. Franson, 2018 ND 156, ¶ 6, 915 N.W.2d 146. The primary
purpose of statutory interpretation is to determine legislative intent. Estate of Elken,
2007 ND 107, ¶ 7, 735 N.W.2d 842. Words in a statute are given their plain,
ordinary, and commonly understood meaning, unless defined by statute or unless a
contrary intention plainly appears. N.D.C.C. § 1-02-02.
[¶6] Bearrunner argues the district court misinterpreted the phrase “so enclosed as
manifestly to exclude intruders” and asserts that, as a matter of law, the fence in
question cannot be found to be so enclosed that it manifestly excludes intruders.
Bearrunner also claims, as a matter of law, a fence with an open gate may not be
considered so enclosed as manifestly to exclude intruders. The word “manifestly” is
not defined by N.D.C.C. § 12.1-22-03. As such, this Court looks to the plain,
ordinary, and commonly understood meaning of the word to determine its meaning.
N.D.C.C. § 1-02-02. The word “manifest” is defined as “readily perceived by the
senses” or “easily understood or recognized by the mind: obvious.” Merriam-
Webster’s Collegiate Dictionary 755 (11th ed. 2005). A plain reading of the statute
indicates the fence must be enclosed in a manner that obviously excludes intruders
before an individual is guilty of trespass. Fences differ in size, materials of
construction, and purpose. One fence may clearly communicate that trespassers are
not allowed while another fence may not. Accordingly, whether a fence is so
enclosed that it obviously excludes intruders is a finding of fact, not a matter or law.
[¶7] When reviewing a district court’s findings of fact made during a bench trial,
this Court has stated, “in reviewing a judgment of conviction in a criminal appeal to
determine whether or not the evidence is sufficient to establish guilt beyond a
reasonable doubt, our duty is to determine whether or not there is substantial evidence
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to warrant a conviction.” State v. Rufus, 2015 ND 212, ¶ 9, 868 N.W.2d 534 (quoting
State v. Hartleib, 335 N.W.2d 795, 797 (N.D. 1983)). “[T]his Court is not limited to
the reasons a trial court gives for a finding of guilt. Instead, we consider the entire
record to decide whether substantial evidence exists to support the conviction.” State
v. Steiger, 2002 ND 79, ¶ 8, 644 N.W.2d 187. Substantial evidence to support a
conviction exists when an inference can be drawn in favor of conviction when looking
at the evidence in the light most favorable to the verdict. State v. Barth, 2005 ND
134, ¶ 15, 702 N.W.2d 1.
[¶8] Here, the district court had access to photos of the fence, gate, and surrounding
area. The fence was constructed of barbed wire and separated the pasture from the
highway. Bearrunner attempts to frame the gate issue as if there is no factual dispute
regarding the gate being open when protesters arrived in the area. However, the State
elicited testimony during trial suggesting the protesters potentially opened the gate.
There was also testimony insinuating that protesters had previously torn down signs
prohibiting trespassing from the fence. Even if one assumes the gate was open when
Bearrunner arrived, we decline to hold as a matter of law that an open gate is an
invitation to outsiders to gather on private property.
[¶9] After entering the pasture, the protesters engaged in an extraordinary intrusion
by constructing tepees and building a sizeable bonfire. The protesters also refused to
leave when informed they were on private property. These actions, while not
dispositive, tend to show an intention to trespass in order to convey the group’s
political point of view. This leads to an inference that Bearrunner and the protesters
were aware the fence was intended to exclude intruders and chose to disregard their
obvious exclusion in an act of civil disobedience. The district court believed the
fence was so enclosed as manifestly to exclude intruders and substantial evidence
exists to support this factual finding. We affirm the conviction of criminal trespass.
[¶10] Bearrunner argues that a barbed wire fence cannot satisfy the enclosure
requirement of the class A misdemeanor charge because the same conduct would be
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a class B misdemeanor under N.D.C.C. §§ 20.1-01-17 and 20.1-01-18. Under
N.D.C.C. § 20.1-01-17, a landowner may give notice that hunting on their land is
prohibited. If proper notification is posted, an intruder may be charged with a class
B misdemeanor for the first violation and a class A misdemeanor for subsequent
violations. This may have the appearance of creating a situation where trespassers
engaged in hunting activities are privileged over those who trespass for non-hunting
purposes. However, N.D.C.C. § 20.1-01-17 does not create an exception to N.D.C.C.
§ 12.1-22-03. Instead, it creates a separate offense imposing a separate penalty that
includes the loss of hunting privileges. See N.D.C.C. § 20.1-01-26; see also State v.
Moos, 2008 ND 228, ¶¶ 13, 21, 758 N.W.2d 674 (explaining limitations on multiple
punishments where two statutory offenses apply to the same conduct); Gray v. North
Dakota Game & Fish Dep’t, 2005 ND 204, ¶ 14, 706 N.W.2d 614.
III.
[¶11] Under N.D.C.C. § 12.1-25-03, a person is guilty of a class A misdemeanor if
the person engages in a riot. A riot is defined as “a public disturbance involving an
assemblage of five or more persons which by tumultuous and violent conduct creates
grave danger of damage or injury to property or persons or substantially obstructs law
enforcement or other government function.” N.D.C.C. § 12.1-25-01. Bearrunner
challenges his conviction of engaging in a riot and argues the district court
misinterpreted the phrase “tumultuous and violent conduct” as well as the elements
of engaging in a riot.
[¶12] It is undisputed that after being informed they were required to leave the
private property the protesters locked arms in a circle, refused to leave the pasture,
and law enforcement had to use physical force to separate the protesters prior to their
arrest. Bearrunner argues these actions cannot be considered “tumultuous and violent
conduct” because they are merely passive resistance. Neither N.D.C.C. § 12.1-25-03
nor N.D.C.C. § 12.1-25-01 defines “tumultuous and violent conduct.” As such, this
Court looks to the plain, ordinary, and commonly understood meaning of the words.
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N.D.C.C. § 1-02-02. The word “tumultuous” is defined as “marked by violent or
overwhelming turbulence or upheaval.” Merriam-Webster’s Collegiate Dictionary
1347 (11th ed. 2005). The word “violent” is defined as “extreme force or sudden
intense activity.” Merriam-Webster’s Collegiate Dictionary 1396 (11th ed. 2005).
The related definition of the word “violence” is “exertion of physical force so as to
injure or abuse.” Merriam-Webster’s Collegiate Dictionary 1396 (11th ed. 2005).
The terms “tumultuous and violent” are not ambiguous and do not require this Court’s
interpretation. Whether conduct is “tumultuous and violent” is a factual
determination better suited to the district court where there is an opportunity to make
evidentiary observations and credibility determinations.
[¶13] Here, even when viewing the evidence in the light most favorable to the
verdict, the facts fall short of engaging in a riot. While we decline to hold that passive
resistance to law enforcement can never be considered riotous, the conduct here
cannot be considered violent. The State focuses on the term “force” being common
to all definitions of violence and claims the protesters’ actions were forceful enough
to qualify as violent. However, Bearrunner’s act of locking arms and resisting arrest
with other protesters does not rise to the commonly understood definition of violence.
Here, it was law enforcement that was required to use force to overcome the
protesters’ non-compliance. The situation presented in this case is more akin to
preventing arrest or discharge of other duties under N.D.C.C. § 12.1-08-02.
Bearrunner’s conviction of engaging in a riot is not supported by substantial evidence.
IV.
[¶14] Upon reviewing the record, we conclude Bearrunner’s conviction of class A
criminal trespass under N.D.C.C. § 12.1-22-03(2)(b) is supported by substantial
evidence. However, there was not substantial evidence that Bearrunner engaged in
violent conduct sufficient to support a conviction for the class A misdemeanor of
engaging in a riot. We affirm the judgment with respect to the class A misdemeanor
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criminal trespass and reverse with respect to the class A misdemeanor engaging in a
riot.
[¶15] Jon J. Jensen
Jerod E. Tufte
Daniel J. Crothers
William A. Neuman, S.J.
Gerald W. VandeWalle, C.J.
[¶16] The Honorable William A. Neumann, S.J., sitting in place of McEvers, J.,
disqualified.
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