State v. Hebert

Filed 12/6/18 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2018 ND 252State of North Dakota, Plaintiff and Appellee
v.
Mark Hebert, Defendant and Appellant
No. 20180171
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable David W. Nelson, Surrogate Judge.
REVERSED.
Per Curiam.
Brian D. Grosinger, Assistant State’s Attorney, Mandan, ND, for plaintiff and
appellee.
April E. Olson (argued), Tempe, AZ, Peter Schoenburg (on brief),
Albuquerque, NM, and Bruce D. Nestor (on brief), Minneapolis, MN, for defendant
and appellant.
State v. Hebert
No. 20180171
Per Curiam.
[¶1] Mark Hebert appeals from a criminal judgment convicting him of tampering
or damaging a public service. The district court found Hebert’s conduct, by standing
on or near railroad tracks, amounted to tampering with a public service. Hebert
argues the district court misinterpreted the law and the conduct alleged could not have
supported a conviction for tampering or damaging a public service. We agree,
concluding State v. Jessee, 2018 ND 24, 919 N.W.2d 335, is dispositive of this
appeal. We summarily reverse the district court’s judgment under N.D.R.App.P.
35.1(b), concluding the evidence did not establish Hebert’s presence on or near the
tracks constituted tampering with tangible property. See Jessee, at ¶ 13 (tampering
under N.D.C.C. § 12.1-21-06(1)(a) requires a change, alteration, or harmful conduct
towards the tangible property of another).
[¶2] Gerald W. VandeWalle, C.J.
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
1