               Filed 03/19/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 68

State of North Dakota,                                 Plaintiff and Appellee
     v.
Alex Kenny Eggleston,                              Defendant and Appellant

                                No. 20190214

Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Joshua B. Rustad, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Jensen, Chief Justice.

Nathan K. Madden, Williston, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant appellant.
                             State v. Eggleston
                               No. 20190214

Jensen, Chief Justice.

[¶1] Alex Eggleston appeals from the district court’s amended judgment
entered following a jury verdict finding him guilty of murder and possession
of a firearm by a convicted felon. Eggleston argues there was insufficient
evidence for the jury to find him guilty of murder. Eggleston also contends his
sentence is illegal because N.D.C.C. § 12.1-32-09.1 and N.D. Sup. Ct. Admin.
R. 51, which apply to his sentencing, are unconstitutionally vague, and because
the district court improperly calculated his life expectancy. We affirm the
district court’s amended judgment in part, reverse in part, and remand for
recalculation of Eggleston’s life expectancy.

                                       I

[¶2] On July 17, 2017, the State charged Eggleston with the crime of murder,
a Class AA felony, in violation of N.D.C.C. § 12.1-16-01(1), and possession of a
firearm by a convicted felon, a Class C felony, in violation of N.D.C.C.
§ 62.1-02-01. A jury trial was held on December 17, 2018.

[¶3] During the trial, the State offered the testimony of a witness who
observed Eggleston display a pistol and shortly thereafter discharge the
weapon. The witness also testified Eggleston discharged the weapon several
additional times as the victim began walking away. An autopsy of the victim
revealed there were two gunshot wounds in the victim’s mid-back, one of which
was fatal.

[¶4] At the close of the State’s case, Eggleston moved for a judgment
of acquittal under N.D.R.Crim.P. 29. The district court denied Eggleston’s
motion, finding there was substantial evidence upon which a reasonable
mind could find guilt beyond a reasonable doubt. The jury subsequently found
Eggleston guilty of both charges.

[¶5] On June 28, 2018, the district court sentenced Eggleston to life with the
possibility of parole. On July 27, 2018, the State moved to correct the sentence


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to include a calculation of Eggleston’s remaining life expectancy as
required under N.D.C.C. § 12.1-32-09.1. The court amended the judgment
after calculating Eggleston’s remaining life expectancy to be 47.9 years using
a 2017 version of the life expectancy tables.

                                       II

[¶6] Eggleston challenges the sufficiency of the evidence offered by the
State to support the convictions. First, he asserts the district court abused its
discretion in denying his motion for a judgment of acquittal by applying the
wrong legal standard. Second, he argues the State provided insufficient
evidence to allow the jury to find that he did not act in self-defense.

[¶7] Following the close of the prosecution’s evidence or at the close of all
evidence, the court may enter a judgment of acquittal if “the evidence is
insufficient to sustain a conviction.” N.D.R.Crim.P. 29(a). When considering
a defendant’s motion for a judgment of acquittal, the district court must “deny
the motion if there is substantial evidence upon which a reasonable mind could
find guilt beyond a reasonable doubt.” State v. McAllister, 2020 ND 48, ¶ 29
(quoting State v. Hafner, 1998 ND 220, ¶ 21, 587 N.W.2d 177). A court’s
decision on a Rule 29 motion for a judgment of acquittal is reviewed for an
abuse of discretion. Id. “Before granting a motion for [a judgment of] acquittal,
the court must find the evidence is insufficient to sustain a conviction.” State
v. Gunn, 2018 ND 95, ¶ 6, 909 N.W.2d 701, cert. denied, 139 S.Ct. 231, (2018).
A district court abuses its discretion in denying a motion under Rule 29 if the
evidence is insufficient to sustain a conviction. State v. Gonzalez, 2000 ND 32,
¶ 20, 606 N.W.2d 873. “In reviewing challenges to the sufficiency of the
evidence on appeal, 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.’” State v. Rai, 2019 ND 71, ¶ 13, 924 N.W.2d 410
(quoting State v. Truelove, 2017 ND 283, ¶ 7, 904 N.W.2d 342).

[¶8] Eggleston argues the district court applied an improper standard in
considering his motion for a judgment of acquittal. Specifically, he asserts the
following statement by the court was an incorrect statement of the law: “when
ruling on that motion, we must first assume the truth of what -- of the evidence

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that’s been presented by the State and determine whether a reasonable person
could conclude that the elements have been established beyond a reasonable
doubt.” Eggleston contends this is contrary to our case law holding that when
considering whether there was sufficient evidence for the conviction the
evidence is viewed “in the light most favorable to the prosecution and giving
the prosecution the benefit of all inferences reasonably to be drawn in its
favor.” State v. Kringstad, 353 N.W.2d 302, 306 (N.D. 1984). He argues the
requirement to “assume the truth” of the State’s evidence could lead to absurd
results. He provides the example of the court having to “assume the truth” of
testimony from a witness for the State who testifies an event did not occur even
though a video offered during the cross-examination of the witness shows the
event occurred.

[¶9] On appeal, Eggleston “bears the burden of showing the evidence reveals
no reasonable inference of guilt when viewed in the light most favorable to the
verdict.” State v. Rai, 2019 ND 71, at ¶ 13. In determining whether Eggleston
has met his burden this Court “view[s] the evidence and all reasonable
inferences that may be drawn therefrom in the light most favorable to the
verdict to decide whether a reasonable fact finder could have found the
defendant guilty beyond a reasonable doubt.” State v. Wangstad, 2018 ND 217,
¶ 23, 917 N.W.2d 515 (quoting State v. Carlson, 1997 ND 7, ¶ 51, 559 N.W.2d
802). “When the verdict is attacked and the evidence is legally sufficient to
sustain the verdict, we will not disturb the verdict and judgment even though
the trial included conflicting evidence and testimony.” State v. Friesz, 2017
ND 177, ¶ 34, 898 N.W.2d 688 (quoting State v. Romero, 2013 ND 77, ¶ 24, 830
N.W.2d 586).

[¶10] Eggleston was observed pulling out a pistol and discharging the weapon.
He was observed shooting toward the victim after the victim had turned and
started to walk away. The autopsy revealed that one of the two shots striking
the victim in the back was a fatal wound. The jury instruction required the
jury to find the following essential elements to convict Eggleston of the offense
of murder: That on or about July 14, 2017, in Williams County, North Dakota,
Eggleston intentionally or knowingly caused the death of the victim, and
Eggleston did not act in self-defense. While there may be contradictory facts,

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applying our standard of review on appeal, we conclude the evidence was
legally sufficient to sustain the verdict.

[¶11] Eggleston also contends the evidence is insufficient to prove, beyond
a reasonable doubt, he was not acting in self-defense. He argues the State’s
witness testimony contradicts the forensic evidence on the timing of the shots
and location of the bullets. However, the evidence presented at trial included
evidence the victim’s death was the result of Eggleston shooting the victim in
the back while the victim was walking away. Reviewing the evidence in the
light most favorable to the verdict, and recognizing there may be contradictory
facts, we conclude the evidence was sufficient for a reasonable fact finder to
determine Eggleston was not acting in self-defense.

                                      III

[¶12] On appeal, Eggleston argues the interplay between N.D.C.C.
§ 12.1-32-09.1 and N.D. Sup. Ct. Admin. R. 51 in sentencing renders N.D.C.C.
§ 12.1-32-09.1 unconstitutionally vague and results in a violation of
due process. Within his argument he also asserts the district court erred by
applying a 2017 life expectancy table rather than the 2002 life expectancy table
as required in N.D. Sup. Ct. Admin. R. 51.

[¶13] Although Eggleston did not raise a challenge to the sentencing in the
district court during his sentencing hearing or through a post-sentencing
motion under N.D.R.Crim.P. 35(a), “we address the claim because an objection
is unnecessary to preserve a claim of illegal sentence imposed in a criminal
judgment from which an appeal may be immediately taken.” State v. Thomas,
2020 ND 30, ¶ 16, 938 N.W.2d 897. A sentence is illegal if it exceeds a statutory
provision or in some other way is contrary to an applicable statute. State v.
Abdiwali Mohamud, 2019 ND 101, ¶ 20, 925 N.W.2d 396 (citing State v. Booth,
2015 ND 59, ¶ 4, 861 N.W.2d 160).

[¶14] Eggleston was convicted of murder under N.D.C.C. § 12.1-16-01(1) and
his eligibility for parole is subject to N.D.C.C. § 12.1-32-09.1, which provides,
in part, as follows:



                                       4
      2. In the case of an offender who is sentenced to a term of life
      imprisonment with opportunity for parole under subsection 1 of
      section 12.1-32-01, the term “sentence imposed” means the
      remaining life expectancy of the offender on the date of sentencing.
      The remaining life expectancy of the offender must be calculated
      on the date of sentencing, computed by reference to a recognized
      mortality table as established by rule by the supreme court.

[¶15] The recognized mortality table referenced in N.D.C.C. § 12.1-32-09.1(2)
for computing the life expectancy of an offender is established in N.D. Sup. Ct.
Admin. R. Rule 51. Rule 51 provides, in part, as follows: “the trial court shall
compute the remaining life expectancy of the offender by reference to Table A
(Expectation of life by age, race, and sex) of the United States Life Tables, 2002,
included in the National Vital Statistics Reports prepared by the National
Center for Health Statistics (Center for Disease Control and Prevention).”

[¶16] As part of the sentencing process, the district court referenced a 2017 life
expectancy table to compute Eggleston’s life expectancy. Administrative Rule
51 has not been modified since its effective date of February 9, 2005, and
continues to require the court to compute Eggleston’s remaining life
expectancy by using the 2002 life expectancy table. We agree with Eggleston
the use of the 2017 life expectancy table was contrary to Rule 51. We remand
this case to the district court for recalculation of Eggleston’s life expectancy
consistent with the life expectancy table referenced within Rule 51.

[¶17] Eggleston’s constitutional challenge to his sentence was not presented to
the district court. Generally, “issues not raised at trial will not be addressed
on appeal unless the alleged error rises to the level of obvious error under
N.D.R.Crim.P. 52(b).” State v. Pemberton, 2019 ND 157, ¶ 8, 930 N.W.2d 125
(quoting State v. Lott, 2019 ND 18, ¶ 8, 921 N.W.2d 428). In light of our remand
for recalculation of Eggleston’s life expectancy, and the court’s lack of an
opportunity to address the issue, we decline to reach his constitutional
challenge on this appeal.




                                        5
                                     IV

[¶18] The district court did not err in dismissing Eggleston’s motion for an
acquittal because there was sufficient evidence for the jury to convict
Eggleston of murder and for the jury to conclude he was not acting in self-
defense. We affirm the district court’s judgment of conviction. The district
court referenced an incorrect life table to compute Eggleston’s remaining life
expectancy, we reverse the district court’s amended judgment, and remand to
the district court for a proper computation of Eggleston’s remaining life
expectancy consistent with N.D. Sup. Ct. Admin. R. 51.

[¶19] Jon J. Jensen, C.J.
      Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Gerald W. VandeWalle




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