IN THE SUPREME COURT STATE OF NORTH DAKOTA

State of North Dakota,

Plaintiff- Appellee,

vs.

Jonathan Horvath,

Defendant- Appellant.

SUPREME COURT NOS. 20140468

20140469

20140470 Criminal Nos. 53-2013-CR-00607 53-2013-CR-00608 53-2013-CR-00669

ON APPEAL FROM THE CRIMINAL JUDGMENTS, ENTERED DECEMBER 24, 2014

WILLIAMS COUNTY DISTRICT COURT NORTHWEST JUDICIAL DISTRICT

STATE OF NORTH DAKOTA THE HONORABLE DAVID W. NELSON, PRESIDING

APPELLANT’S BRIEF

Scott O. Diamond

ND bar # 05773 210 Broadway, Suite 401B Fargo, ND 58102 Telephone: (701) 373-0373 Fax: (701) 373-0330 Email: Scott@scottdiamondlaw.com Attorney for the Defendant-Appellant

201404682014046920140470

FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT APRIL 1, 2015 STATE OF NORTH DAKOTA

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ………...…………………………………………… ii

Paragraph

STATEMENT OF THE ISSUES ……………………………………………………... ¶ 1

STATEMENT OF THE CASE ………………………………………………………... ¶ 2

STATEMENT OF THE FACTS …...………………………………………………...... ¶ 5

LAW AND ARGUMENT ………….………………………………………………... ¶ 22 I. Jonathan Horvath’s conviction for murder should be reversed because

the evidence was insufficient to sustain the jury’s verdict ……………..…….. ¶ 24 CONCLUSION …………………………………………………………………...….. ¶ 31

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TABLE OF AUTHORITIES North Dakota Cases Paragraph

State v. Johnson, 2001 ND 184, 636 N.W.2d 391 ……………….…………….…….. ¶ 24

State v. Kinsella, 2011 ND 88, 796 N.W.2d 678 …………………………………….. ¶ 23

State v. Nakvinda, 2011 ND 217, 807 N.W.2d 204 ………………………………….. ¶ 23

State v. Noorlun, 2005 ND 189, 705 N.W.2d 819 ……………..…………………….. ¶ 23

State v. Wanner, 2010 ND 121, 784 N.W.2d 143 ……………………………………. ¶ 23

North Dakota Constitution

N.D. Const. art. VI § 6 …………………………………………………………..…… ¶ 22

North Dakota Statutes

N.D.C.C. §12.1-02-02 ………….…………………………………………………….. ¶ 25

N.D.C.C. § 12.1-16-01 …………………...…………………………………….…….. ¶ 24

N.D.C.C. § 29-28-03 …………...………………………..…………………..…… ¶ 22, 24

N.D.C.C. § 29-28-06 ……………...………………………………………………..… ¶ 22

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[¶1] STATEMENT OF THE ISSUES

I. Whether the evidence was sufficient to sustain Jonathan Horvath’s conviction for murder.

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STATEMENT OF THE CASE

[¶2] This is a consolidated appeal from five Criminal Judgments which were entered

against Jonathan Horvath (hereinafter referred to as “Mr. Horvath”) after a single jury

trial. In file number 53-2013-CR-00607, Mr. Horvath was charged with two counts of

Terrorizing. (Appellant’s App. at 1). In file number 53-2013-CR-00608, Mr. Horvath

was charged with Murder and Reckless Endangerment. (Appellant’s App. at 7).

[¶3] On July 8, 2014, a single jury trial was commenced, on both files, on the two

counts of Terrorizing, Reckless Endangerment and Murder. (Appellant’s App. at 1 - 12).

At the close of the State’s case, Mr. Horvath moved for a Rule 29 Judgment of Acquittal

in regards to all counts. (Tr. at 451, ln. 23 – 452, ln. 4). Mr. Horvath’s motion was

denied by the trial court. (Tr. at 452, ln. 5 – 8). Following the trial, the Mr. Horvath was

convicted of two counts of Terrorizing, Reckless Endangerment and Murder.

(Appellant’s App. at 18 – 26). After jury trial, Mr. Horvath filed a renewed Motion for

Rule 29 Judgment of Acquittal and Motion for New Trial. (Appellant’s App. at 17). Mr.

Horvath now appeals from the Criminal Judgments entered against him. (Appellant’s

App. at 29).

[¶4] In file number 53-2013-CR-00669, Mr. Horvath was charged with Possession of a

Firearm by Felon. (Appellant’s App. at 14). Prior to the jury trial on the other charges,

Mr. Horvath pled guilty to this charge. See id. The Criminal Judgment incorrectly

indicates that Mr. Horvath was convicted by a jury of this charge. (Appellant’s App. at

27). Although included in the Notice of Appeal, Mr. Horvath is not seeking relief from

this Court, with regard to the Possession of a Firearm charge. (Appellant’s App. at 29).

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STATEMENT OF THE FACTS

[¶5] In March, 2013, Mr. Horvath moved to Alexander, North Dakota, to find steel

construction work in the oil patch. (Tr. at 460, ln. 7 – 21). Mr. Horvath had only been in

North Dakota for five days before March 15, 2013, which was the night of the altercation.

(Tr. at 460, ln. 21). On March 15, 2013, Mr. Horvath had spent the day preparing for a

steel construction job. (Tr. at 461, ln. 17 – 18). Mr. Horvath was reluctant to go to

Williston that night, as he had heard stories about the “turmoil” associated with the area.

(Tr. at 462, ln. 11 – 22). Mr. Horvath had an acquaintance that had been injured in a

previous altercation in Williston, which made him nervous about going to Williston. (Tr.

at 463, ln. 8 – 18). Despite these misgivings, some of Mr. Horvath’s co-workers

convinced him to go to Williston on the night of March 15, 2013. (Tr. at 462, ln. 1 – 6).

[¶6] Mr. Horvath, along with Rich Donohoe, Don Rohrenback, Kevin Kallio and

Brittney Montee, went to an area of Williston commonly referred to as South Main. (Tr.

at 61, ln. 23 – 62, ln. 4). This area is at the very south end of Main Street in Williston.

(Tr. at 151, ln. 3 – 6). There are a number of bars in this area, including two nightclubs

known as Heartbreakers and Whispers and a bar called the No Place Bar. (Tr. at 62, ln.

9). These three establishments all face Main Street and are connected in that they share

common walls. (Tr. at 151, ln. 11 – 15).

[¶7] Mr. Horvath went into Whispers. (Tr. at 464, ln. 23 – 24). While in Whispers,

Mr. Horvath spoke to an unidentified man, whom he had never before met. (Tr. at 465,

ln 16 – 466, ln. 1). During their conversation, this individual showed Mr. Horvath a

handgun and a veiled reference to a drug cartel. (Tr. at 465, ln. 16 – 24). This exchange

put Mr. Horvath “extremely on edge”. (Tr. at 466, ln. 3).

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[¶8] Mr. Horvath left Whispers. (Tr. at 466, ln. 4 – 6). As he left, Mr. Horvath saw

Don Rohrenback, one of the individuals with whom he had come, in “an argument and

confrontation” with Derrick Spiegel (hereinafter referred to as Mr. Spiegel). (Tr. at 466,

ln. 14 – 15). Mr. Horvath broke up this argument between Don Rohrenback and Mr.

Spiegel. (Tr. at 466, ln. 17 – 21). After breaking up the argument between these two,

Mr. Horvath and most of the group met back at the pick-up truck, in which they had

come. (Tr. at 467, ln. 17 – 20).

[¶9] There are video cameras situated in front of Whispers and Heartbreakers. (Tr. at

67, ln. 17). One video camera covers the sidewalk area directly in front of the

Heartbreakers building. (Tr. at 67, ln. 18 – 24). The video from this camera was

obtained by law enforcement and was admitted as an exhibit during the course of the

trial. (Tr. at 69, ln. 11). The video was played multiple times throughout the trial. The

first time Mr. Horvath is seen on the video, he is on the sidewalk in front of the

Heartbreakers building and he is seen trying to get Don Rohrenback moved back towards

his vehicle. (Tr. at 102, ln. 14 – 18). The video indicates the time of this initial incident

was 1:11 a.m. (Tr. at 101, ln. 6 – 10). However, the time on the video was later

determined to be inaccurate and it was likely around 12:50 a.m. (Tr. at 101, ln. 6 – 16:

Tr. at 66, ln. 6).

[¶10] While back at the truck, Mr. Horvath realized that Brittney Montee was still

inside one of the bars. (Tr. at 467, ln. 19 – 23). Mr. Horvath discussed the situation with

the individuals with whom he had come. (Tr. at 467, ln. 23 – 468, ln. 7). Mr. Horvath

was reluctant to go back, as he feared an altercation could occur. (Tr. at 467, ln. 23 –

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468, ln. 7). Despite his reluctance to go back, the group decided that Mr. Horvath should

go back to get Brittney Montee from the bar area. (Tr. at 468, ln. 2 – 7).

[¶11] Mr. Horvath went back to the sidewalk area in front of the Heartbreakers

building, where he was confronted by Amanda Baker. (Tr. at 468, ln. 7 – 8). During the

ensuing confrontation, Amanda Baker told Mr. Horvath that if an altercation happened,

“it was gonna be all of them.” (Tr. at 468, ln. 11 – 12). Amanda Baker told Mr. Horvath,

“Come one, call all,” which she explained as a statement that all of her friends would

stick together in an altercation. (Tr. at 144, ln. 9 – 10). Mr. Horvath then left the bar area

and went back to the truck a second time. (Tr. at 468, ln. 15). While back at the truck

for the second time, Mr. Horvath retrieved his pistol for his protection. (Tr. at 468, ln. 15

– 16).

[¶12] Mr. Horvath went back over the sidewalk area in front of the Heartbreakers

building, to look for Brittney Montee. (Tr. at 469, ln. 1 – 3). An argument began again.

(Tr. at 469, ln. 1 – 15). Mr. Horvath felt threatened and intimidated at that point, because

he was outnumbered and he believed that physical violence was imminent. (Tr. at 469,

ln. 11 – 15, 499, ln 18 – 20). At this point, Mr. Horvath removed his pistol from his

pocket and pointed it towards Mr. Spiegel. (Tr. at 469, ln. 17 – 18). As he removed the

pistol from his pocket, Mr. Horvath’s did not intend to fire the pistol. (Tr. at 470, ln. 18 –

19).

[¶13] A struggle began between Mr. Horvath, Mr. Spiegel and Amanda Baker. (Tr. at

469, ln. 22 – 25). Mr. Spiegel and Amanda Baker grabbed Mr. Horvath’s arms. (Tr. at

469, ln. 22: Tr. at 104, ln. 18 – 24). They fell towards the recessed area of the door to

Heartbreakers and the gun accidentally discharged. (Tr. at 469, ln. 22 – 23). Mr.

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Horvath began backing up, trying to get out of Mr. Spiegel’s grasp. (Tr. at 471, ln. 14 –

17). As they “wrestled”, the gun accidentally discharged a second time, while on the

sidewalk. (Tr. at 469, ln. 23). Mr. Horvath and Mr. Spiegel stumbled and fell into the

street, where the gun accidentally discharged for a third time. (Tr. at 471, ln. 14 – 24).

The third discharge of the pistol struck Mr. Spiegel. (Tr. at 471, ln. 21 – 24).

[¶14] Mr. Spiegel sustained a gunshot wound to the head. (Tr. at 339, ln. 17). Mr.

Spiegel was taken to the emergency room and eventually died at the hospital. (Tr. at 225,

ln. 11 – 13).

[¶15] The video from the Heartbreaker’s building shows Mr. Horvath, Mr. Spiegel and

Amanda Baker arguing on the sidewalk. (Tr. at 73, ln. 6 – 9). The video shows Mr.

Horvath drawing a firearm out of his pocket. (Tr. at 74, ln. 20). The video shows a

struggle between Mr. Horvath and Mr. Spiegel with Amanda Baker between them. (Tr.

at 77, ln. 9 – 10, 24 – 25). During the struggle, Amanda Baker grabbed Mr. Horvath’s

arm. (Tr. at 104, ln. 18 – 24). Mr. Horvath and Mr. Spiegel stumble into the recessed

area of the doorway of Heartbreakers and are partially obscured from the view of the

camera. (Tr. at 78, ln. 4 – 6). While in this recessed area, there appears to a muzzle

flash. (Tr. at 105, ln. 4 – 5). The struggle continues and Mr. Horvath is seen falling

backwards while on the sidewalk, with Mr. Spiegel hanging onto him. (Tr. at 105, ln. 12

– 17). While Mr. Spiegel and Mr. Horvath are on the sidewalk and moving towards the

street, the video shows a second muzzle flash. (Tr. at 106, ln. 1 – 8). Finally, the video

shows Mr. Horvath and Mr. Spiegel on the street, where they disappear from the screen

and a third muzzle flash occurs. (Tr. at 78, ln. 15 – 17: Tr. at 106, ln 9 – 14).

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[¶16] The struggle with the pistol and the discharging of the weapon all happened very

fast. (Tr. at 146, ln. 25 – 147, ln. 3). This time was estimated to between one to two

seconds. (Tr. at 104, ln. 4 – 9).

[¶17] Mr. Horvath testified that he never intentionally pulled the trigger of the pistol.

(Tr. at 470, ln. 1 – 9). Mr. Horvath testified that he never intended to kill Mr. Spiegel.

(Tr. at 476, ln 6 – 8: Tr. at 470, ln. 18 – 22). Mr. Horvath testified that the discharge of

the weapon was accidental. (Tr. at 485, ln 8 – 11: Tr. at 486, ln. 14 – 16: Tr. at 498, ln.

24 – 499, ln. 1).

[¶18] Steven McCollum obtained Mr. Horvath’s weapon, which was identified as a

Smith and Wesson semiautomatic handgun. (Tr. at 266, ln. 8). Mr. McCollum testified

that he is familiar with this sort of handgun. (Tr. at 277, ln. 7 – 8). Mr. McCollum

testified that with this sort of handgun, if a round is in the chamber, all that is necessary

to discharge the weapon is for the trigger to be pulled. (Tr. at 278, ln. 2 – 5).

[¶19] After the discharge of the weapon, Mr. Horvath went back to the pick-up truck.

(Tr. at 472, ln. 1). Bruce Sesseman worked as a security officer for Heartbreakers

nightclub and he was in Heartbreakers that night. (Tr. at 195, ln. 22 – 23). Bruce

Sesseman followed Mr. Horvath to the pickup truck. (Tr. at 197, ln. 24). Mr. Sesseman

began struggling with Mr. Horvath inside the pickup truck. (Tr. at 198, ln. 12, 200, ln. 7

– 11). After Mr. Horvath exited the pickup truck, Mr. Sesseman “leg swiped” him. (Tr.

at 200, ln. 21). Mr. Horvath ran and Mr. Sesseman and two other individuals began

chasing him for about three blocks. (Tr. at 200, ln. 23 – 201, ln. 4).

[¶20] Mr. Horvath ran away from Mr. Sesseman and the other two individuals,

eventually ending up at Westside Fuel. (Tr. at 473, ln. 19 – 22). While there he got a

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ride back to Alexander, North Dakota. (Tr. at 474, ln. 3 – 4). From Alexander, Mr.

Horvath traveled to Billings, Montana. (Tr. at 470, ln. 11 – 14). Mr. Horvath testified

that he wanted to get back home, “to get somewhere safe, and then be able to come back

and deal with it”. (Tr. at 474, ln. 19 – 21). Mr. Horvath was arrested in Billings,

Montana and brought back to North Dakota. (Tr. at 364, ln. 1 – 8).

[¶21] On July 16, 2014, following a single jury trial on all charges, Mr. Horvath was

convicted of two counts of Terrorizing, Reckless Endangerment and Murder.

(Appellant’s App. at 18 – 26).

LAW AND ARGUMENT

[¶22] This is an appeal of multiple Criminal Judgments entered after a consolidated jury

trial. (Appellant’s App. at 29). This Court has jurisdiction over this appeal under N.D.

Const. art. VI § 6, N.D.C.C. § 29-28-03 and N.D.C.C. § 29-28-06.

Standard of Review

[¶23] The standard of review for a claim of insufficiency of the evidence is well

established. State v. Nakvinda, 2011 ND 217, ¶ 12, 807 N.W.2d 204. “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 jury to draw

an inference reasonably tending to prove guilt and fairly warranting 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.” Id. State v. Kinsella, 2011

ND 88, ¶ 7, 796 N.W.2d 678 (quoting State v. Wanner, 2010 ND 121, ¶ 9, 784 N.W.2d

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143). In an appeal challenging the sufficiency of the evidence, this court will review the

evidence and reasonable inferences most favorable to the verdict, to ascertain if there is

substantial evidence to warrant the conviction. State v. Noorlun, 2005 ND 189, ¶ 20, 705

N.W.2d 819. “A conviction rests upon insufficient evidence only when, after reviewing

the evidence in the light most favorable to the prosecution and giving the prosecution the

benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could

find the defendant guilty beyond a reasonable doubt.” Id. This is a heavy, but not

impossible, burden to meet.

I. JONATHAN HORVATH’S CONVICTION FOR MURDER SHOULD BE REVERSED BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE JURY’S VERDICT.

[¶24] Jonathan Horvath was convicted of the murder of Mr. Spiegel, in violation of

N.D.C.C.§ 12.1-16-01. N.D.C.C. § 12.1-16-01 provides:

A person is guilty of murder, a class AA, felony, if the person: a. Intentionally or knowingly causes the death of

another human being; […]

In order to prove Mr. Horvath committed this crime, the jury was required to find that the

State had proved each and every element of the crime beyond a reasonable doubt.

N.D.C.C. § 12.1-01-03. State v. Johnson, 2001 ND 184, ¶ 13, 636 N.W.2d 391. The

elements of the offense, which the State was required to prove, included the required

culpability for the crime. N.D.C.C. § 12.1-01-03(1)(c).

[¶25] In order to find Mr. Horvath guilty of the offense of Murder, the State was

required to prove that Mr. Horvath acted intentionally or knowingly. A person engages

in conduct intentionally, “if, when he engages in the conduct, it is his purpose to do so.”

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N.D.C.C. §12.1-02-02(1)(a). A person engages in conduct knowingly, “If when he

engages in the conduct, he knows of has a firm belief, unaccompanied by substantial

doubt, that he is doing so, whether or not it is his purpose to do so.” N.D.C.C. §12.1-02-

02(1)(b).

[¶26] The facts in this case precluded a finding that Mr. Horvath intentionally or

knowingly caused Mr. Spiegel’s death. Prior to March 15, 2013, Mr. Horvath had heard

stories about the potential for violence, which could occur in the Williston area, and

which made him nervous about going to Williston. (Tr. at 462, ln. 11 – 22): Tr. at 463,

ln. 8 – 18). Mr. Horvath’s fears were confirmed, when Mr. Horvath was in Whispers.

While in Whispers, Mr. Horvath spoke to a man who showed Mr. Horvath his pistol and

made a reference to a drug cartel. (Tr. at 465, ln. 16 – 24). This exchange put Mr.

Horvath “extremely on edge”. (Tr. at 466, ln. 3). As he left Whispers, Mr. Horvath

witnessed and broke up an argument between Mr. Spiegel and one of the individuals with

whom he had come. (Tr. at 466, ln. 17 – 21). This continued to increase his

apprehension. When he went back to the Heartbreaker’s area, he was confronted by

Amanda Baker. (Tr. at 468, ln. 7 – 8).

[¶27] It is important to understand this chain of events, as this created the dreadful

mindset that Mr. Horvath had as he decided to get his pistol from the truck. He was

initially concerned about going to Williston and his concerns were ultimately confirmed

as he saw a friend in an argument and then felt personally threatened in the argument

with Amanda Baker. All of these events combined to place Mr. Horvath in a tense and

fearful attitude, as he went back to the truck and retrieved his pistol. He did not retrieve

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the pistol with the intent to shoot it. Rather, he believed that he needed the pistol for his

own protection.

[¶28] When Mr. Horvath went back to the Heartbreakers area, he had his pistol with

him for his protection. An argument began. (Tr. at 469, ln. 1 – 15). Mr. Horvath felt

threatened and intimidated at that point and he believed that physical violence was

imminent. (Tr. at 469, ln. 11 – 15, 499, ln 18 – 20). He then brought out the pistol. At

the time he removed the pistol from his pocket, it was not because he intended to fire it,

but rather for his own protection against a crowd of potential attackers.

[¶29] When Mr. Horvath removed the pistol from his pocket, the struggle began. Even

during the course of the struggle, Mr. Horvath did not intend to fire the pistol. (Tr. at

470, ln. 1 – 9). The struggle happened very fast and only lasted one to two seconds,

before the pistol accidentally discharged. (Tr. at 104, ln. 4 – 9). This was an insufficient

amount of time to form the intent to fire the pistol.

[¶30] The pistol accidentally discharged. A review of the video indicates that Mr.

Horvath was falling backwards prior to the third discharge of the pistol, which was the

discharge that struck Mr. Spiegel. (Tr. at 471, ln. 21 – 24). Because he was falling

backwards and struggling with two other individuals, a reasonable jury would conclude

that the discharge was accidental. All that was necessary to discharge the pistol was for

someone to accidentally pull the trigger. (Tr. at 278, ln. 2 – 5). This could have easily

happened accidentally, during the struggle. The evidence was that the discharge was

accidental. There was insufficient evidence from which the jury could reasonably infer

intent under these circumstances. Even when viewing the evidence in a light most

favorable to the prosecution, no rational fact finder could have found the defendant guilty

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beyond a reasonable doubt. As a result, the jury’s verdict should be set aside and Mr.

Horvath should be allowed a new trial.

CONCLUSION

[¶31] For the foregoing reasons, Mr. Horvath’s conviction should be reversed and the

case should be remanded for a new trial.

Dated this 1st day of April, 2015.

/s/ Scott O. Diamond Scott O. Diamond

ND bar # 05773 210 Broadway, Suite 401B Fargo, ND 58102 Telephone: (701) 373-0373 Fax: (701) 373-0330 Email: Scott@scottdiamondlaw.com Attorney for the Defendant