State v. Thomas, 938 N.W.2d 897

In Feb 2017 the State charged Ross Thomas with aggravated assault, felonious restraint, terrorizing, and reckless endangerment. After a March 2018 trial the jury convicted him of terrorizing, acquitted on aggravated assault and reckless endangerment, and was hung on felonious restraint.
The State gave notice it would retry felonious restraint; a retrial was set for Jan 2, 2019. A newly elected Hettinger County state’s attorney notified the court and defense he would seek a continuance upon taking office and intended to file a dangerous special offender notice.
The district court continued the January trial on its own motion citing the incoming prosecutor’s need to prepare; the State later filed the dangerous special offender notice.
Before retrial the court granted the State’s motion in limine excluding the victim’s misdemeanor convictions and felony convictions dated after the incident; Thomas did not attempt to introduce the excluded convictions at trial.
In April 2019 a jury convicted Thomas of felonious restraint; he was sentenced as a dangerous special offender to ten years with 5.5 years suspended. Thomas appealed, raising (1) the district court’s sua sponte continuance, (2) exclusion of the victim’s convictions, and (3) the harsher sentence at retrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court abused its discretion by granting a continuance sua sponte	State: continuance was reasonable given incoming prosecutor needed time; good cause existed	Thomas: Rule 6.1(b) requires a party motion for continuance; no good cause was shown	Court: No abuse — trial court has inherent docket control; Rule 6.1 doesn't bar sua sponte continuances; court found good cause and acted within discretion
Whether the court erred in granting the State’s motion in limine excluding the victim’s convictions for impeachment	State: exclusion appropriate under evidentiary rules and timing	Thomas: victim’s drug convictions were admissible under N.D.R.Ev. 609(a)(2) to show impaired memory	Court: Issue forfeited — Thomas failed to offer the convictions at trial and thus did not preserve the objection; appellate review declined because Thomas did not argue obvious error
Whether a harsher sentence after retrial violated due process (presumption of vindictiveness)	State: sentence within statutory limits and no impermissible factors	Thomas: harsher sentence at second trial created Pearce presumption of vindictiveness	Court: Pearce inapplicable — first trial produced conviction and sentence for terrorizing and the felonious restraint charge was tried only once; sentence was authorized and court did not rely on impermissible factors

State v. Newark, 900 N.W.2d 807 (N.D. 2017) (standard of appellate review for continuance decisions)
Gullickson v. Kline, 678 N.W.2d 138 (N.D. 2004) (recognizing trial court’s inherent authority to control its docket)
State v. Smith, 934 N.W.2d 1 (N.D. 2019) (preservation rule for evidentiary objections under N.D.R.Ev. 103)
State v. Brewer, 893 N.W.2d 184 (N.D. 2017) (explaining need to renew in limine objections at trial for context)
North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (due process presumption of vindictiveness where harsher sentence follows retrial after reversal)
State v. Clark, 818 N.W.2d 739 (N.D. 2012) (scope of appellate review of sentencing discretion)
United States v. Atkinson, 297 U.S. 157 (U.S. 1936) (circumstances permitting appellate courts to notice errors not raised below)