State v. Nelson , 2023 ND 217 ( 2023 )


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  •                                                                                  FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    NOVEMBER 24, 2023
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2023 ND 217
    State of North Dakota,                                 Plaintiff and Appellee
    v.
    Carolyn Nelson,                                     Defendant and Appellant
    No. 20230038
    Appeal from the District Court of Benson County, Northeast Judicial District,
    the Honorable Donovan J. Foughty, Judge.
    AFFIRMED.
    Opinion of the Court by Crothers, Justice.
    James P. Wang, State’s Attorney, Minnewaukan, ND, for plaintiff and appellee.
    Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
    State v. Nelson
    No. 20230038
    Crothers, Justice.
    [¶1] Carolyn Nelson appeals from a criminal judgment entered after a bench
    trial for the crime of accomplice to theft. We affirm, concluding the evidence is
    sufficient to sustain the conviction. We decline to address issues Nelson did not
    raise in the district court or brief on appeal under the obvious error standard
    of review.
    I
    [¶2] Nelson was the president of the Oberon School Board. Laura Schnieber-
    Bruns and her business, Victim Survivor the Voice, LLC, were engaged to
    perform services for the school. The exact nature of the services was disputed,
    but an agreement signed by Nelson and Schnieber-Bruns described the work
    as “investigate, research, compile and deliver ongoing actions request of the
    Oberon School Board.” The agreement specified a “set-up fee” of $7,500, an “on-
    going management” fee of $7,500, and a $200 hourly rate for “services outside
    the scope of this Agreement.” Schnieber-Bruns was later charged with class A
    felony theft for taking more than $150,000 from the Oberon School “through a
    deceptive scheme pursuant to” the agreement. She pleaded guilty by an Alford
    plea.
    [¶3] The State charged Nelson as an accomplice to the theft. At the bench
    trial, the State presented evidence of a pattern of instances where either
    Nelson or Schnieber-Bruns submitted invoices to the school’s business
    manager with little detail and demanded quick payment. The business
    manager testified Schnieber-Bruns was initially paid by checks approved and
    hand delivered by Nelson, but later Nelson instructed the business manager to
    issue direct deposit payments to Schnieber-Bruns’ bank account. The business
    manager testified she raised concerns about payments being made to
    Schnieber-Bruns before being authorized by the school board, but Nelson
    dismissed her concerns. Nelson acknowledged payments were made prior to
    board approval, but testified they were all ultimately approved. Nelson
    admitted Schnieber-Bruns gave her money at a casino, but she claimed the
    1
    money was for school-related purchases. Nelson also admitted Schnieber-
    Bruns gave her daughter a loan. At the close of the State’s case, Nelson moved
    for acquittal and argued no evidence established she knew of the theft or
    intentionally caused it to happen. The court denied her motion, found her
    guilty, and sentenced her to ten years of imprisonment with roughly nine years
    suspended. Nelson appeals.
    II
    [¶4] Nelson raises multiple issues that were not argued to the district court
    or briefed on appeal under the obvious error standard of review. She asserts
    she was convicted of an incognizable offense, the case should have been
    dismissed under the civil dispute doctrine, and as a school board member she
    was a victim of Schnieber-Bruns’ fraud and thus cannot be held liable as an
    accomplice. When an issue is not raised in the district court, we may opt to
    exercise our power to consider the issue under the obvious error standard of
    review, but we do so cautiously and only in “exceptional situations” to correct
    “serious injustice.” State v. Landrus, 
    2022 ND 107
    , ¶ 6, 
    974 N.W.2d 676
    . To
    establish an obvious error, the appellant must show (1) error; (2) that is plain;
    and (3) affects the defendant’s substantial rights.” 
    Id.
     Nelson did not claim
    these unraised issues constitute obvious error until she was questioned at oral
    argument. We decline to address these issues because Nelson failed to raise
    them in the district court, did not brief them under the obvious error standard
    of review, and provided no meaningful analysis at argument as to whether they
    constitute obvious error.
    III
    [¶5] Nelson argues the evidence is insufficient to sustain the conviction. Our
    standard for reviewing the sufficiency of evidence is the same for both a bench
    trial and a jury trial. City of Napoleon v. Kuhn, 
    2015 ND 75
    , ¶ 14, 
    860 N.W.2d 460
    .
    “When the sufficiency of evidence to support a criminal conviction
    is challenged, this Court merely reviews the record to determine if
    there is competent evidence allowing the trier of fact to draw an
    inference reasonably tending to prove guilt and fairly warranting
    2
    a conviction. The defendant bears the burden of showing the
    evidence reveals no reasonable inference of guilt when viewed in
    the light most favorable to the verdict. When considering
    insufficiency of the evidence, we will not reweigh conflicting
    evidence or judge the credibility of witnesses. . . . A trier of fact may
    find a defendant guilty even though evidence exists which, if
    believed, could lead to a verdict of not guilty.”
    
    Id.
     (alteration omitted) (quoting State v. Romero, 
    2013 ND 77
    , ¶ 24, 
    830 N.W.2d 586
    ).
    [¶6] Nelson asserts the evidence is insufficient to prove she knew Schnieber-
    Bruns’ invoices for services were fraudulent and, absent such knowledge,
    nothing proves she intentionally aided Schnieber-Bruns in committing theft by
    deception. We are not convinced. The State presented evidence that Nelson
    frequently requested large payments be made to Schnieber-Bruns prior to
    approval of the board, Nelson knew what work Schnieber-Bruns was actually
    performing, the two had a close relationship, and Nelson accepted money from
    Schnieber-Bruns. Schnieber-Bruns’ daughter testified Nelson and Schnieber-
    Bruns were friends. Nelson admitted Schnieber-Bruns gave both her and her
    daughter money. The school business manager testified Nelson was “pretty
    much in charge and telling [Schnieber-Bruns] what to do” and Schnieber-
    Bruns “did everything with [Nelson’s] permission.” Many of the invoices Nelson
    approved were admitted into evidence and included charges for thousands of
    dollars with little to no description of any work performed. Reviewing all
    evidence in the record in a light most favorable to the verdict, we conclude the
    evidence is sufficient to sustain the conviction.
    IV
    [¶7] The criminal judgment is affirmed.
    [¶8] Jon J. Jensen, C.J.
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    Douglas A. Bahr
    3
    

Document Info

Docket Number: 20230038

Citation Numbers: 2023 ND 217

Judges: Crothers, Daniel John

Filed Date: 11/24/2023

Precedential Status: Precedential

Modified Date: 11/24/2023