State v. Plentychief

VANDE WALLE, Justice,

dissenting.

I dissent. Not only does the majority opinion conclude that the instruction defining “terrorizing circumstances” is erroneous, but it also concludes that, assuming a correct instruction were given, whatever that instruction might be, the evidence could not be sufficient to convict Plenty-chief for the crime charged. I disagree with both conclusions.

The trial court is not required to submit an instruction to the jury in the specific language requested by a defendant, if the submitted instruction fairly informs the jury. State v. Marinucci, 321 N.W.2d 462 (N.D.1982). The submitted jury instruction did fairly and adequately inform the jury. The first sentence of the submitted instruction mimicked Plentychief’s requested instruction. The remaining sentences in the submitted instruction served to clarify the initial sentence. Plentychief suggests that the essence of terrorizing circumstances is a threat made with the intent to cause terror. The submitted jury instruction echoes that suggestion, informing the jury to consider both the threatening acts and the purpose or intention of the acts. The submitted jury instruction not only fairly informed the jury but also “harmonized” with the definition of terrorizing contained in section 12.1-17-04.1

*377Plentychief argues that the jury should not have been instructed to consider the child’s age because that instruction implies that less proof is necessary if a child is involved. The instruction carries no such implication.

The intent to place another human being in fear was an element of terrorizing circumstances agreed upon by both Plenty-chief and the trial court. When determining intent, it is necessary to determine whether the actor believed, based on her knowledge of the circumstances, that her actions would instill fear in another human being. Actions are tailored to circumstances to produce intended results. Evidence of the actor’s knowledge of the circumstances may serve as proof of the actor’s intent. Instructing the jury to consider the child’s age and other relevant circumstances does not imply that less proof is required for a child, but rather informs the jury as to what evidence may be considered as proof of the actor’s intent to place another human being in fear.

I strongly object to the majority’s observation that the portion of the instruction permitting the jury to consider the “age, experience, or any other relevant circumstances of the person or persons to whom the acts were directed” are “pallid additions having little to do with its important ingredients.” The majority opinion has placed the weak, the young and the invalid at the mercy of their tormentors. It requires no great intellect to conclude that a different inference may be drawn by the trier of fact from a remark made to a strong, healthy person and one made to an invalid. The intent of the perpetrator is indeed directly related to the condition of the victim and to imply otherwise does a disservice to the very young, the aged and the infirm.

Plentychief next contends that the evidence was insufficient to sustain a verdict of guilty to the charge of attempted felonious restraint. In particular, Plentychief argues that the State did not prove that the restraint was accomplished under terrorizing circumstances. In order to successfully challenge the sufficiency of the evidence, Plentychief must show that the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. City of Bismarck v. Nassif, 449 N.W.2d 789 (N.D.1989). Plentychief has failed to meet that burden.

The record reveals evidence from which the jury could have found that Plentychief restrained Tara Reichow under terrorizing circumstances. Tara was a four-year-old child standing alone in the restroom of a bus depot in an unfamiliar town. Plenty-chief approached Tara and asked “Where is your mommy?” Plentychief then made a statement to the effect, “Well I’m your mommy now,” grabbed the child’s hand and said, “Come on, let’s go.”

Plentychief contends that her actions did not constitute “threats of violence or acts dangerous to human life.” This Court has stated that “[a] threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited. [Citation omitted.]” State v. Howe, 247 N.W.2d 647, 654 (N.D.1976). The jury could properly find that the meaning of the words and actions of Plentychief in the context in which they were used constitut*378ed a threat of violence or act dangerous to human life. The threat of violence or act dangerous to human life was the attempted forcible detention of a four-year-old child and separation of that child from family, her only known means of physical and emotional support. Such actions taken upon a four-year-old child constitute terrorizing circumstances.

The evidence when viewed in a light most favorable to the verdict, permits a reasonable inference of guilt. In order to conclude that there is “no competent evidence from which the jury could reasonably infer that Plentychief was guilty of threats of violence or acts dangerous to human life,” the majority necessarily draws its own inferences from Plentychief s statements and injects itself as the trier of fact rather than the jury.

It is not difficult to attribute meanings to Plentychief s statements which rise to the level of threats of violence or acts dangerous to human life. Because the jury did not find Plentychief guilty of attempted abduction, the majority apparently takes comfort in a conclusion that Plentychief did not intend any such act. But that is a dangerous exercise when indulged in by an appellate court. Why the jury convicted of attempted felonious restraint rather than attempted abduction is known only to the jury. Whether it would have convicted of attempted abduction had it known this Court would reverse a conviction of felonious restraint is also known only to the jury. The jury could also logically have concluded from her statements that Plentychief intended violent acts or acts dangerous to human life other than abduction. Appellate courts ought not arrogate to themselves the function of the jury when the jury draws permissible inferences from the facts, and reaches a different result than the appellate court desires.

I would affirm the judgment of conviction.

ERICKSTAD, C.J., concurs.

. Section 12.1-17-04, NDCC, provides:

"Terrorizing. 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 *377transportation, 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; or "2. Falsely informs another that a situation dangerous to human life or commission of a crime of violence is imminent knowing that the information is false."

Section 12.1-17-04 includes actions taken in reckless disregard of the risk of causing terror, disruption or inconvenience. A definition of terrorizing patterned solely on that section without including this portion or further explaining the term, as did the trial court, would distort the meaning and intent of the definition.

I would not hold that the definition of terrorizing circumstances under section 12.1-18-02, NDCC, must be derived from section 12.1-17-04 as a matter of law. There is nothing in chapter 12.1, nor in the legislative history of that chapter which would demand such a holding. As a general rule, words not defined in a statute are to be understood in their ordinary sense. NDCC § 1-02-02.