State v. Rodriguez ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 12, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 102State of North Dakota, Plaintiff and Appellant
v.
Antoinette Rose Rodriguez, Defendant and Appellee
No. 20210359
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven E. McCullough, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Nicholas S. Samuelson (argued) and SheraLynn Ternes (on brief), Assistant
State’s Attorneys, Fargo, ND, for plaintiff and appellant.
Leah R. Carlson, West Fargo, ND, for defendant and appellee.
State v. Rodriguez
No. 20210359
Crothers, Justice.
[¶1] The State appeals from an order dismissing a criminal child neglect
charge against Antoinette Rodriguez. The State argues Rodriguez had
sufficient notice of the charge against her, and the district court erred when it
dismissed the amended information against Rodriguez. We affirm, concluding
the court did not abuse its discretion by dismissing the amended information.
I
[¶2] In November 2021, the State filed an amended information charging
Rodriguez with child neglect, a class C felony. The State alleged that from
January 1, 2020 to January 27, 2021, Rodriguez failed to provide proper
parental care necessary for a child’s physical, mental or emotional health.
Rodriguez moved to dismiss the charge, claiming the amended information was
insufficient to advise her of the charge against her.
[¶3] The district court granted Rodriguez’s motion, concluding the amended
information lacked the specificity to provide Rodriguez with adequate notice of
the charge against her. The court concluded the amended information
prejudiced Rodriguez’s ability to prepare her defense or to protect herself
against additional prosecution. The court dismissed the amended information
without prejudice.
II
[¶4] The State argues the district court abused its discretion by dismissing
the amended information. Rodriguez claims the court properly dismissed the
charge.
A
[¶5] The right to appeal is jurisdictional, and we will consider the
appealability of an order sua sponte even if the parties do not question
appealability. Everett v. State, 2017 ND 93, ¶ 6, 892 N.W.2d 898. “The State’s
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right to appeal must be expressly granted by statute.” State v. Brown, 2021 ND
226, ¶ 5, 967 N.W.2d 797 (quoting State v. Mitchell, 2021 ND 93, ¶ 5, 960
N.W.2d 788). In a criminal case the State is authorized to appeal from “[a]n
order quashing an information or indictment or any count thereof.” N.D.C.C. §
29-28-07(1). “We have consistently held that an order dismissing a criminal
complaint, information, or indictment is the equivalent of an order quashing
an information or indictment and is therefore appealable under the statute.”
State v. Gwyther, 1999 ND 15, ¶ 11, 589 N.W.2d 575.
[¶6] The State’s Jurisdictional Statement asserts the district court’s order
dismissing the amended information without prejudice is appealable under
N.D.C.C. § 29-28-07(1). Rodriguez does not argue otherwise. In Gwyther, this
Court first considered “whether an order dismissing a criminal information
without prejudice is appealable” under N.D.C.C. § 29-28-07(1). 1999 ND 15,
¶ 9. We held, “Because the statute does not specifically limit appealability to
an order quashing with prejudice, we conclude an order dismissing a
complaint, information, indictment, or any count thereof, with or without
prejudice, is appealable under N.D.C.C. § 29-28-07(1).” Gwyther, ¶ 11.
[¶7] The State appealed the district court’s order rather than refiling the
information within the statute of limitations. See N.D.C.C. § 29-04-02 (stating
“a prosecution for any felony other than murder must be commenced within
three years after its commission”). Under this Court’s interpretation of
N.D.C.C. § 29-28-07(1) in Gwyther, which nobody argues we should revisit, we
have jurisdiction over the State’s appeal.
B
[¶8] We review a district court’s dismissal of a criminal information under an
abuse of discretion standard. Brown, 2021 ND 226, ¶ 6. A court abuses its
discretion when it acts in an arbitrary, unreasonable, or capricious manner, if
it misinterprets or misapplies the law or if its decision is not the product of a
rational mental process leading to a reasoned determination. State v. Newark,
2017 ND 209, ¶ 6, 900 N.W.2d 807.
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[¶9] Under N.D.R.Crim.P. 7(c)(1), a criminal information “must name or
otherwise identify the defendant, and must be a plain, concise, and definite
written statement of the essential facts constituting the elements of the offense
charged.” The information also must provide a citation to the statute the
defendant allegedly violated. Id.[¶10] The State charged Rodriguez with child neglect under N.D.C.C. § 14-09-
22.1(1). Under the statute a parent of a child is guilty of a class C felony if he
or she “[f]ails to provide proper parental care or control, subsistence, education
as required by law, or other care or control necessary for the child’s physical,
mental, or emotional health, or morals.”
[¶11] The State’s amended information against Rodriguez provided in part:
“[O]n or about [January 1, 2020 to January 27, 2021], the
defendant, ANTOINETTE ROSE RODRIGUEZ, a parent, adult
family or household member, guardian, or other custodian of any
child, willfully failed to provide proper parental care or control,
subsistence, education as required by law, or other care or control
necessary for the child’s physical, mental, or emotional health or
morals.”
[¶12] The amended criminal information identified Rodriguez as the
defendant and recited the language of N.D.C.C. § 14-09-22.1(1). In granting
Rodriguez’s motion to dismiss, the district court concluded the amended
information lacked the specificity to provide Rodriguez with adequate notice of
the charge against her. The court noted Rodriguez had more than one child,
and the amended information failed to provide specifics as to which child she
allegedly neglected.
[¶13] The State claims the district court erred in its analysis and the amended
information was sufficient to put Rodriguez on notice of the charge against her.
The State cites State v. Montplaisir, 2015 ND 237, ¶ 9, 869 N.W.2d 435 to
support its argument that an information is sufficient if it sets forth the offense
in the words of the statute.
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[¶14] In Montplaisir we stated, “Generally, an information is sufficient if it sets
forth the offense in the words of the statute.” 2015 ND 237, ¶ 9 (citing Hamling
v. United States, 418 U.S. 87, 117 (1974)). We did not hold a criminal
information always will be sufficient if it describes the offense using words of
the statute. We only noted in general that an information may be sufficient by
using the statutory language of the offense. While an information may be
sufficient by reciting the statutory language, the information also must satisfy
the requirements of N.D.R.Crim.P. 7(c)(1) by providing the defendant a
“written statement of the essential facts constituting the elements of the
offense charged.”
[¶15] The explanatory note to N.D.R.Crim.P. 7 provides:
“The language employed in subdivision (c) is intended to provide
the defendant with the Sixth Amendment protection to ‘be
informed of the nature and the cause of the accusation . . . .’ With
this view in mind, subdivision (c) is established for the benefit of
the defendant and is intended simply to provide a means by which
the defendant can be properly informed of the proceedings without
jeopardy to the prosecution.”
[¶16] The explanatory note to N.D.R.Crim.P. 7 states the rule “is an adaptation
of Fed.R.Crim.P. 7.” “When a state rule is derived from a corresponding federal
rule, the federal courts’ interpretation of the federal rule may be persuasive
authority when interpreting our rule.” Johnson v. Menard, Inc., 2021 ND 19,
¶ 10, 955 N.W.2d 27. When discussing indictments under Fed.R.Crim.P. 7, the
Eighth Circuit requires a statement of the essential facts and a citation of the
statute. United States v. Camp, 541 F.2d 737, 740 (8th Cir. 1976). The
statement of facts and statutory citation are “separate requirements and not a
restatement of one another.” Id. “If citation of the statute were a statement of
the facts, nothing beyond a citation would be necessary.” Id.[¶17] Here, the State’s amended information failed to satisfy N.D.R.Crim.P.
7(c)(1)’s requirement of a “plain, concise, and definite written statement of the
essential facts constituting the elements of the offense charged.” The amended
information said Rodriguez violated N.D.C.C. § 14-09-22.1(1) but provided no
statement of essential facts explaining how she violated the statute. The State
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claims either Rodriguez or the district court should have requested a bill of
particulars under N.D.R.Crim.P. 7(f) if the amended information was not
specific enough to advise Rodriguez of the charge against her. However, “it is a
settled rule that a bill of particulars cannot save an invalid indictment.”
Russell v. United States, 369 U.S. 749, 770 (1962).
[¶18] In the documents filed with the amended information, the State
established Rodriguez had more than one child. The amended information is
unclear as to whether Rodriguez allegedly neglected one child or all of her
children from January 1, 2020 to January 27, 2021. The amended information
is not specific enough to allow Rodriguez to defend the charge against her or
protect her from a subsequent prosecution for the same offense. The district
court did not abuse its discretion in dismissing the amended information
against Rodriguez.
III
[¶19] The parties’ remaining arguments are either without merit or are not
necessary to our decision. The district court order is affirmed.
[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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