Opinion
No. 20020328.
Decided July 16, 2003.
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
AFFIRMED.
Rick Maixner, Assistant State's Attorney, 210 2nd Avenue NW, Mandan, N.D. 58554, for plaintiff and appellee.
Thomas M. Tuntland, P.O. Box 1315, Mandan, N.D. 58554-7315, for defendant and appellant.
[¶ 1] Delane Heupel appealed from the judgments of conviction entered upon jury verdicts finding her guilty of Theft by Deception under N.D.C.C. § 12.1-23-02(2) and Tampering with Physical Evidence under N.D.C.C. § 12.1-09-03. Prior to submission of the case to the jury, Heupel moved for a judgment of acquittal under N.D.R.Crim.P. 29. The trial court denied the motion and submitted the case to the jury.
[¶ 2] On appeal, Heupel argues there is insufficient evidence to sustain her convictions. "In reviewing the sufficiency of the evidence to convict, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction." State v. Kunkel, 548 N.W.2d 773, 773 (N.D. 1996). Heupel also contends the district court's failure to give the jury instructions on the definitions of "deprive" and "deception" was obvious error, although she failed to object to the instructions at trial. See State v. Hersch, 445 N.W.2d 626, 631-33 (N.D. 1989) (discussing the terms "deprive" and "deception") (citing Comment of Theft Offenses: §§ 1731-1741, Working Papers of the National Commission on Reform of Federal Criminal Laws, Volume 2, pp. 922-23 (1970)). Heupel has failed to establish the alleged obvious error affected her substantial rights, was prejudicial, or affected the outcome of the proceeding. See, e.g., State v. Glass, 2000 ND 212, ¶ 14, 620 N.W.2d 146.
[¶ 3] After reviewing the record, we conclude this case contains no reversible errors of law and the verdicts are supported by substantial evidence. And we summarily affirm under N.D.R.App.P. 35.1(a)(3) and (7).
[¶ 4] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
Carol Ronning Kapsner