dissenting.
[¶ 32] I respectfully dissent.
[¶ 33] Our review should determine whether the jury instructions, as a whole, fairly and adequately advised the jury about the applicable law. State v. Kleppe, 2011 ND 141, ¶ 12, 800 N.W.2d 311. The jury was properly instructed on the elements of criminal trespass under N.D.C.C. § 12.1-22-03. Secondly, to survive a motion for judgment of acquittal, there must be sufficient evidence presented to the jury for conviction of the crime:
On appeal, this Court reviews the evidence and all reasonable inferences in the light most favorable to the verdict, and will reverse only if no rational fact finder could have found the defendant guilty beyond a reasonable doubt. In reviewing a question of sufficiency of the evidence under N.D.R.Crim.P. 29(a), we do not resolve conflicts in the evidence or reweigh the credibility of witnesses. On appeal, we determine only whether there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.
State v. Lehman, 2010 ND 134, ¶ 7, 785 N.W.2d 204 (citations and quotations omitted). To decide whether Herzig committed criminal trespass, the jury had to decide whether he was licensed or privileged to be where he was. The jury was specifically instructed about public roads by prescription:
All public roads and highways within this state which have been or which shall be open and in use as such, during twenty successive years, are declared to be public roads or highways and confirmed and established as such whether the same have been laid out, established, and opened lawfully or not.
[¶ 34] The jury heard the conflicting evidence about whether Herzig was on a public road. To find that Herzig was not licensed or privileged to be where he was, the jury necessarily had to determine that it was not a public road.
[¶ 35] Although State v. Meyer, 361 N.W.2d 221 (N.D.1985), was argued to the trial court as the basis for acquittal, Meyer is distinguishable. Meyer was a case in which a criminal charge was brought against a person attempting to obstruct a road on his own property in violation of N.D.C.C. § 24-12-02. It was not a case about whether a person was trespassing on the property of another. I would leave the issue of whether to follow or to overrule Meyer for another day on facts more similar.
[¶ 36] On these facts, the jury had sufficient evidence to convict and I would affirm.
[¶ 37] CAROL RONNING KAPSNER