813 N.W.2d 599
N.D.2012Background
- McCormick was charged with driving under the influence under a Bismarck city ordinance; case transferred from municipal to district court for a jury trial; jury found him guilty on June 28, 2011.
- McCormick moved for judgment of acquittal on July 1, 2011 because the city ordinance was not introduced into evidence.
- City argued the ordinance was nearly identical to the state statute, and that district court could take judicial notice under §40-18-19 and that transfer should not impose extra burden.
- District court granted acquittal, ruling there was no statutory basis to judicially notice the ordinance absent admission or stipulation, and that the motion was timely.
- This appeal concerns whether the district court order is an appealable quashing of an information or an impermissible judgment of acquittal, and whether the mid-trial issues were properly handled under applicable rules and statutes.
- Court remanded and reversed the district court order, directing further proceedings consistent with its opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order is an appealable quash of information or a judgment of acquittal. | City argues the order quashes the information and is appealable. | McCormick argues it is a judgment of acquittal and not appealable. | Appealable as quashing an information. |
| Timeliness of the acquittal motion under Rule 29(c). | City contends Rule 12 timing applies; not dispositive. | McCormick argues timing was improper under trial rules. | Motion timely under Rule 29(c) (within 14 days after verdict). |
| Whether the district court could take judicial notice of a city ordinance after transfer for a jury trial. | City contends §40-18-15.1 does not prohibit judicial notice; 40-18-19 is not controlling on transfer. | McCormick argues there was no statutory basis for judicial notice absent evidence/admission. | District court could take judicial notice; statute and Rule 201 allow legislative-fact notice of ordinances. |
Key Cases Cited
- State v. Deutscher, 2009 ND 98 (ND 2009) (statutory right of appeal requires express grant by statute)
- Keyes v. Amundson, 391 N.W.2d 602 (ND 1986) (ordinance evidence rules; dicta about municipal ordinance handling)
- State v. Erickson, 2011 ND 49 (ND 2011) (acquittal vs. dismissal; appealability standard)
- Nelson v. Johnson, 2010 ND 23 (ND 2010) (statutory interpretation; appellate review standard)