### Filed 1/22/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 29

State of North Dakota, Plaintiff and Appellee

v. Julian Bearrunner, Defendant and Appellant

No. 20180258

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

AFFIRMED IN PART AND REVERSED IN PART.
Opinion of the Court by Jensen, Justice

. Chase R. Lingle , Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
Benjamin M. Stoll (argued), Washington, DC, Russell J. Myhre (appeared), Valley City, ND, and Thomas A. Dickson(on brief), Bismarck, ND, for defendant and appellant.State v. Bearrunner
No. 20180258

Jensen, Justice. [¶1] Julian Bearrunner appeals from a criminal judgment entered following convictions of class A misdemeanor criminal trespass and class A misdemeanor engaging in a riot. We affirm Bearrunner’s conviction of crimi nal trespass and reverse the conviction of engaging in a riot.
I. [¶2] On February 1, 2017, a large group of individuals, includin g Bearrunner, gathered in a pasture near the Dakota Access Pipeline to partic ipate in protest activities. The pasture was owned by Energy Transfer Partners. The pasture was separated from the adjacent highway by a barbed wire fence. [¶3] Law enforcement arriving on the scene observed an open gate and that the road leading from the highway into the pasture through the open gate had been plowed free of snow. Law enforcement agents entered the pasture, notified the protesters they were on private property, and informed the protesters they wererequired to leave. In response, the protesters locked arms in a circle, refused to le ave the pasture, and had to be forcefully separated from each other in order to be arres ted. Bearrunner was arrested along with the other protesters and charged with class A misdemeanor criminal trespass and with class A misdemeanor engaging in a ri ot. Following a bench trial, Bearrunner was found guilty of both charges. [¶4] On appeal, Bearrunner argues the district court misinterpre ted the criminal trespass statute by finding that the pasture was “so enclosed a s manifestly to exclude intruders” as required to convict him of the trespassing charge . Bearrunner also argues the district court erred in finding that his conduct was “tumultuous and violent” as required to convict him of the engaging in a riot charge.
II.
1[¶5] Under N.D.C.C. § 12.1-22-03(2)(b), “[a]n individual is guil ty of a class A misdemeanor if, knowing that that individual is not licensed or privileged to do so, the individual . . . [e]nters or rema ins in any place so enclosed a s manifestly to exclude intruders.” “Statutory interpretation is a question of law, fu lly reviewable on appeal.” Agri Indus., Inc. v. Franson , 2018 ND 156, ¶ 6 , 915 N.W.2d 146. The primary purpose of statutory interpretation is to determine legislative intent. Estate of Elken , 2007 ND 107, ¶ 7 , 735 N.W.2d 842. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by st atute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. [¶6] Bearrunner argues the district court misinterpreted the phr ase “so enclosed as manifestly to exclude intruders” and asserts that, as a matter of law, the fence in question cannot be found to be so enclosed that it manifestly e xcludes intruders. Bearrunner also claims, as a matter of law, a fence with an ope n gate may not be considered so enclosed as manifestly to exclude intruders. The word “manifestly” is not defined by N.D.C.C. § 12.1-22-03. As such, this Court look s to the plain, ordinary, and commonly understood meaning of the word to determine its meaning. N.D.C.C. § 1-02-02. The word “manifest” is defined as “readilyperceived by the senses” or “easily understood or recognized by the mind: obvio us.” MerriamWebster’s Collegiate Dictionary755 (11th ed. 2005). A plain reading of the statute indicates the fence must be enclosed in a manner that obviouslyexcludes intruders before an individual is guilty of trespass. Fences differ in s ize, materials of construction, and purpose. One fence may clearly communicate that trespassers are not allowed while another fence may not. Accordingly, whether a fence is so enclosed that it obviously excludes intruders is a finding of f act, not a matter or law. [¶7] When reviewing a district court’s findings of fact made during a bench trial, this Court has stated, “in reviewing a judgment of conviction i n a criminal appeal to determine whether or not the evidence is sufficient to establis h guilt beyond a reasonable doubt, our duty is to determine whether or not thereis substantial evidence
2to warrant a conviction.” State v. Rufus , 2015 ND 212, ¶ 9 , 868 N.W.2d 534 (quoting
State v. Hartleib , 335 N.W.2d 795, 797 (N.D. 1983)). “[T]his Court is not limited to the reasons a trial court give s for a finding of guilt. Instea d, we consider the entire record to decide whether substantial evidence exists to support the conviction.” State v. Steiger , 2002 ND 79, ¶ 8 , 644 N.W.2d 187. Substantial evidence to support a conviction exists when an inference can be drawn in favor of co nviction when looking at the evidence in the light most favorable to the verdict. State v. Barth , 2005 ND 134, ¶ 15 , 702 N.W.2d 1. [¶8] Here, the district court had access to photos of the fence, gate, and surrounding area. The fence was constructed of barbed wire and separated t he pasture from the highway. Bearrunner attempts to frame the gate issue as if the re is no factual dispute regarding the gate being open when protesters arrived in the ar ea. However, the State elicited testimony during trial s uggesting the protesters potentially opened the gate. There was also testimony insinuating that protesters had previo usly torn down signs prohibiting trespassing from the fence. Even if one assumes th e gate was open when Bearrunner arrived, we decline to hold as a matter of law that an open gate is an invitation to outsiders to gather on private property. [¶9] After entering the pasture, the protesters engaged in an extraordinary intrusion by constructing tepees and building a sizeable bonfire. The pr otesters also refused to leave when informed they were on private property. These actio ns, while not dispositive, tend to show an intention to trespass in order to convey the group’s political point of view. This leads to an inference that Bearr unner and the protesters were aware the fence was intended to exclude intruders and chos e to disregard their obvious exclusion in an act of civil disobedience. The distric t court believed the fence was so enclosed as manifestly to exclude intruders and su bstantial evidence exists to support this factual finding. We affirm the convicti on of criminal trespass. [¶10] Bearrunner argues that a barbed wire fence cannot satisfy the enclosure requirement of the class A misdemeanor charge because the same conduct would be
3a class B misdemeanor under N.D.C.C. §§ 20.1-01-17 and 20.1-01- 18. Under N.D.C.C. § 20.1-01-17, a landowner may give notice that huntingon their land is prohibited. If proper notificati on is posted, an intruder may be charged with a class B misdemeanor for the first violation and a class A misdemeanor for subsequent violations. This may have the appearance of creating a situati on where trespassers engaged in hunting activities are privileged over those who tre spass for non-hunting purposes. However, N.D.C.C. § 20.1-01-17 does not create an ex ception to N.D.C.C. § 12.1-22-03. Instead, it creates a separate offense imposing a separate penalty that includes the loss of hunting privileges. See N.D.C.C. § 20.1-01-26; see also State v.
Moos , 2008 ND 228, ¶¶ 13, 21 , 758 N.W.2d 674 (explaining limitations on multiple punishments where two statutory offenses apply to the same cond uct); Gray v. North Dakota Game & Fish Dep’t , 2005 ND 204, ¶ 14 , 706 N.W.2d 614.
III. [¶11] Under N.D.C.C. § 12.1-25-03, a person is guilty of a class A misdemeanor if the person engages in a riot. A riot is defined as “a public disturbance involving an assemblage of five or more persons which by tumultuous and viol ent conduct creates grave danger of damage or injury to property or persons or subs tantially obstructs law enforcement or other government function.” N.D.C.C. § 12.1-25- 01. Bearrunner challenges his conviction of engaging in a riot and argues the district court misinterpreted the phrase “tumultuous and violent conduct” as w ell as the elements of engaging in a riot. [¶12] It is undisputed that after being informed they were requi red to leave the private property the protesters locked arms in a circle, refuse d to leave the pasture, and law enforcement had to use physical force to separate the p rotesters prior to their arrest. Bearrunner argues these actions cannot be considered “ tumultuous and violent conduct” because they are merely passive resistance. Neither N .D.C.C. § 12.1-25-03 nor N.D.C.C. § 12.1-25-01 defines “tumultuous and violent condu ct.” As such, this Court looks to the plain, ordinary, and commonly understood meaning of the words.
4N.D.C.C. § 1-02-02. The word “tumultuous” is defined as “marke d by violent or overwhelming turbulence or upheaval.” Merriam-Webster’s Collegiate Dictionary 1347 (11th ed. 2005). The word “violent” is defined as “extrem e force or sudden intense activity.” Merriam-Webster’s Collegiate Dictionary 1396 (11th ed. 2005). The related definition of the word “violence” is “exertion of p hysical force so as to injure or abuse.” Merriam-Webster’s Collegiate Dictionary 1396 (11th ed. 2005). The terms “tumultuous and violent” are not ambiguous and do not require this Court’s interpretation. Whether conduct is “tumultuous and violent” is a factual determination better suited to the district court where there i s an opportunity to make evidentiary observations and credibility determinations. [¶13] Here, even when viewing the evidence in the light most fav orable to the verdict, the facts fall short of engaging in a riot. While we decline to hold that passive resistance to law enforcement can never be considered riotous, the conduct here cannot be considered violent. The State focuses on the term “f orce” being common to all definitions of violence and claims the protesters’ actio ns were forceful enough to qualify as violent. However, Bearrunner’s act of locking ar ms and resisting arrest with other protesters does not rise to the commonly understood definition of violence. Here, it was law enforcement that was required to use force to overcome the protesters’ non-compliance. The situation presented in this ca se is more akin to preventing arrest or discharge of other duties under N.D.C.C. § 12.1-08-02. Bearrunner’s conviction of engaging in a riot is not supported by substantial evidence.

IV. [¶14] Upon reviewing the recor d, we conclude Bearrunner’s convic tion of class A criminal trespass under N.D.C.C. § 12.1-22-03(2)(b) is supporte d by substantial evidence. However, there was not substantial evidence that Bearrunner engaged in violent conduct sufficient to support a conviction for the clas s A misdemeanor of engaging in a riot. We affirm the judgment with respect to the class A misdemeanor
5criminal trespass and reverse with respect to the class A misde meanor engaging in a riot. [¶15] Jon J. Jensen Jerod E. Tufte Daniel J. Crothers William A. Neuman, S.J. Gerald W. VandeWalle, C.J.

[¶16] The Honorable William A. Neumann, S.J., sitting in place o f McEvers, J., disqualified.

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