State v. Ruddell ( 2013 )

Filed 12/19/13 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2013 ND 231

State of North Dakota, Plaintiff and Appellee

v.

Byron Clarence Ruddell, Defendant and Appellant

No. 20130209

Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.

AFFIRMED.

Per Curiam.

Frederick R. Fremgen, State’s Attorney, 511 2nd Ave. SE, Jamestown, ND 58401, for plaintiff and appellee; submitted on brief.

Mark T. Blumer, P.O. Box 7340, Fargo, ND 58106, for defendant and appellant; submitted on brief.

State v. Ruddell

No. 20130209

Per Curiam.

[¶1] Byron Clarence Ruddell appealed from a criminal judgment entered following a bench trial convicting him of abandonment or nonsupport of a child.  On appeal, Ruddell argues his conviction should be reversed because there is insufficient evidence to sustain the conviction.  At the time of the trial, Ruddell was serving an eight year prison sentence, and had previously been incarcerated for various periods of time during his children’s lives.  In a civil case, “[w]hile incarceration alone is insufficient to establish abandonment, incarceration along with other factors such as parental neglect, withholding affection, failure to provide financial support, and lack of contact can support a finding of abandonment.”   Adoption of H.G.C. , 2009 ND 19, ¶ 15, 761 N.W.2d 565.  H ere, there is substantial evidence to support a conviction for abandonment or nonsupport of a child.   See State v. Mertz , 514 N.W.2d 662, 669 (N.D. 1994) (concluding father’s conviction of abandonment or nonsupport of children was supported by substantial evidence).  We summarily affirm under N.D.R.App.P. 35.1(a)(3).

[¶2] Gerald W. VandeWalle, C.J.

Carol Ronning Kapsner

Mary Muehlen Maring

Daniel J. Crothers

Dale V. Sandstrom