Interest of A.S.
2011 ND 129
| N.D. | 2011Background
- McElya was charged with two theft counts for taking Sarah Messmer's wallet: three credit cards in the first count and $400 in cash in the second.
- A jury convicted McElya on both counts, with the first count a class C felony and the second a class A misdemeanor.
- The district court sentenced McElya to two years for the first count and one year for the second, to run concurrently.
- McElya argued on appeal that the two convictions for taking one wallet in one incident violated double jeopardy.
- The State contends that double jeopardy claims may be waived and McElya failed to raise the issue before or during trial or sentencing.
- The Court declined to consider an argument under Rule 52(b) due to inadequate briefing and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether double jeopardy was waived. | McElya argues double jeopardy violation. | State asserts waiver due to failure to raise earlier. | McElya waived the claim; affirmed. |
Key Cases Cited
- State v. Voigt, 734 N.W.2d 787 (ND 2007) (double jeopardy defense may be waived)
- State v. O’Rourke, 544 N.W.2d 384 (ND 1996) (waiver considerations for double jeopardy claim)
- State v. Carpenter, 793 N.W.2d 765 (ND 2011) (argument not adequately briefed may be rejected)