State v. Pena Garcia, 812 N.W.2d 328

Pena Garcia was arrested in September 2010 and charged with actual physical control (APC), a class B misdemeanor.
A jury trial occurred on March 1, 2011.
Officers Rakoczy and Inocencio testified Pena Garcia was found asleep in the driver’s seat with the vehicle running and lights on.
Pena Garcia’s girlfriend testified she drove him home and that the keys were in the apartment.
During closing, defense argued the State failed to prove key location and movement controls; the State rebutted that keys were not dispositive; Pena Garcia moved for a mistrial and the court sustained the objection and instructed to follow jury instructions.
The jury found Pena Garcia guilty, and the district court judgment was affirmed on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutorial misconduct by reading case law violated due process.	Pena Garcia argues the State’s case-law reading tainted the jury.	State contends comments were invited and not reversible; the court cured error.	No due process violation; judgment affirmed.

Kruckenberg v. State, 2008 ND 212 (ND 2008) (reversal not automatic for improper comments; invited error doctrine)
State v. Vondal, 2011 ND 186 (ND 2011) (prosecutorial conduct analyzed for prejudicial effect in trial context)
State v. Paulson, 477 N.W.2d 208 (N.D.1991) (inappropriate comments generally do not alone require reversal)
State v. Haugen, 2007 ND 195 (ND 2007) (jury instructions reviewed to determine fair advisory of law)
Azure v. North Dakota, 525 N.W.2d 654 (ND 1994) (improper argument presumed not to prejudice when court instructs jury)
Rist v. North Dakota Dept. of Transp., 2003 ND 113 (ND 2003) (ignition key presence not dispositive to APC offense)
Obrigewitch v. Dir., North Dakota Dept. of Transp., 2002 ND 177 (ND 2002) (key factors not dispositive; focus on elements)
Haverluk v. State, 2000 ND 178 (ND 2000) (conduct must relate to elements of offense)