
Filed 12/6/18 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA







2018 ND 252







State 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

