*1 442 dynаmic risk factor for Dr. Riedel’s frustration” is
If the Court understood correctly, agrees Furthermore, he that there testimony offending. sexual Dr. future sexual disorder [A.M.’s] is evidence that in Sullivan testified that even a controlled dysfunction disorder or or other mental setting, difficulty A.M. continues to have likely him an individual to reof- makes controlling his behavior. We will not sec- in acts of a by engaging further fend ond-guess credibility the district nature, danger- sexual which would Hehn, See Matter determinations. perhaps ous and violent conduct which ¶ 23, ND 631. N.W.2d danger physical or constitute our We conclude from review safety mental health or of others. How- that the district court’s order record ever, about whether he had concerns discharge denying petition A.M.’s from tests score on the statistical [A.M.’s] not induced an erro- commitment was any greater that he was at would show suppоrted by neous view of the law and is sexually predatory risk to reoffend in a convincing clear and evidence that A.M. average prison popula- manner than the sexually dangerous individual. remains a tion. conclude the We therefore district concluded, The court however “In the ab- clearly denying peti- did not err in A.M.’s data, sence of reliable statistical Dr. Riedel tion. acknowledges clinical information and behavioral material from treat- [A.M.’s] IV ment are also valuable tools to assess the We affirm the district court or- sexually preda- in likelihood reoffend denying petition discharge der AM.’s tory manner.” sexually danger- from his commitment as a Here, considering conflicting ex- ous individual. perts’ reports opinions, and there is evi- longer appeared dence that A.M. no com- WALLE, [¶ 23] GERALD W. VANDE and, fact, mitted to his treatment had C.J., CROTHERS, DANIEL J. MARY regressed his treatment at the state MARING, MUEHLEN and CAROL M.D., hospital. Matter ND See KAPSNER, JJ., RONNING concur. ¶ (discussing Mat- N.W.2d ¶ Barrera, 2008 ND ter of (concluding
N.W.2d 744 committed sex of- complete
fender’s failure to
sex offender
program
treatment
alcohol treatment
and
emotions such as
I April [¶ 2] On Deutscher went business, cashing Money to a check Lend- ers, Bismarck, Mоney North Dakota. *3 check, 1,May Lenders cashed the and on Money the check was returned to Lenders as a counterfeit check. After sev- attempts eral unsuccessful to collect resti- tution, Money Lenders filed a report with law enforcement. A criminal complaint and informa- filed,
tion were was Deutscher charged with theft of property, class C felony. A jury trial on May was held evidence, 2008. At the close of the State’s Deutscher moved for an under 29, asserting the State did present sufficient evidence to sustain a conviction. The trial court held it was satisfied there was sufficient evidence for offense; jury to consider the alleged denied Deutscher’s motion. presented Deutscher evidence. evidence, At the close of all of the she did Lawyer A. (argued), Julie Assistant not move for a judgment acquittal. Bismarck, ND, Attornеy, plain- State’s for guilty. returned a verdict of After appellant. tiff and returned its Deutscher Bismarck, (argued), Kent M. Morrow did not move for a ND, appellee. for defendant and Sentencing was scheduled for June 2008, and the trial court prep- ordered the KAPSNER, Justice. presentence aration of a investigation. hearing was At continued. the Au- The State of North ap- Dakota gust sentencing hearing, the trial peals dismissal, a trial court order of set- court stated: ting aside a entering judgment Counsel, of acquittal. We con- I previously ordered a clude the State ap- was authorized to presentence investigation, and unbe- dismissal; peal however, counsel, order we you, knownst to I’ve also re- consider the State’s attempt quested, at an my reporter has been petition supervisory writ. gracious me, We further enough preрare hold the trial court did not complete have the au- transcript testimony thority, on its own complaining set aside the each of the witness and the Therefore, guilty verdict. we reverse and My defendant this matter. reason for remand the case to the trial court to enter requesting my reporter to do so is upon jury’s based my ver- concern as to sufficiency dict. evidence this matter. THEREFORE THE by IT IS ORDER charged Crimi- Deutscher
Ms. pending THE that alleged offense OF COURT with nal Information money Property Theft of obtaining charge of one count of “knowingly by deception respect to the Defendant Jennifer of another property the owner deprive intent to Deutscher is herewith set aside and threat with thereof; specifically, Judgment Acquittal shall be entered. check in cashier’s cashed a counterfeit $3,000 Money Lend- amount of presеnted The evidence at the time of ers.” undisputed the Defendant evidence, I lis-
I have reviewed
pay-
mail a
received
cashier’s check
*4
I
and now have
Defendant,
to the evidence
tened
Defen-
able to the
and I’m
transcript,
the written
reviewed
concerned whether or not said
dant
insufficient evi-
that
there is
pre-
satisfied
check .was valid. The Defendant
Accord-
this verdict.
dence to sustain
Money
said check to the
Lenders
sented
my
under
ingly, on
validity
of said
station to determine
29(c)(2) I’m herewith
instrument,
of Rule
provisions
informed
and was thereafter
and dismiss-
reversing the
verdict
was valid.
that the cashier’s check
Said
against you, Ms.
ing
charge
Money
expressly au-
Lenders station
Deutscher.
to
thorized and invited the Defendant
negotiation.
endorse said check for
The
thereto, I’ve also reviewed
In addition
so, receiving
did
the cash
Defendant
any basis for a motion
transcript for
thereof,
in-
and was later
equivalent
of the North
trial under 33
for new
Money Lenders station that
by
formed
Procedure,
Rules of Criminal
Dakota
as counter-
the check had been returned
trial.
I
no basis for
new
find
Further,
that
cashier’s check
feit.
However,
going
upon
to rule
I’m not
physical inspec-
from a
appeared valid
summarily,
grant
and I will
the same
any alteration of
tion of the same.absent
State, I
should
both the State or—to
by the Defendant.
the same
10-day
opportunity
window of
say,
appeals the order of dismissal.
The State
trial,
they so desire.
a motion for new
if
State,
course,
right
will have its
The
II
The
appeal my
to
order of dismissal.
ap
only right
The State’s
[¶ 6]
preju-
will be dismissed without
same
by statute.
expressly granted
is that
peal
dice.
(N.D.
424 N.W.2d
631
Hogie,
State v.
18, 2008, the trial
August
On
[¶ 5]
1988)
Flohr,
v.
259 N.W.2d
(citing State
an order of dismissal:
court entered
(N.D.1977)).
In the notice of
appeal
indicated its
appeal,
all
the State
having orally received
This Court
§ 29-28-
according to N.D.C.C.
permitted
time of
testimony and evidence at the
N.D.C.C.,
07(1).
29-28-07(1),
benefit of
Section
trial
thereafter
an
may appeal from
the State
testimony Wendy
specifies
transcript
or indict
an information
quashing
order
and Defendant
Jennifer
Grafsgaard
This Court
Deutscher,
any
count thereof.
de- ment
does herewith find and
29(c)(2),
as “to
“quash”
noted
is defined
over
Rule
has
termine that under
vacate;
annul;
throw;
abate;
time of
presented at the
the evidence
Howe, 247 N.W.2d
make void.” State v.
to sustain a
is insufficient
omitted).
(N.D.1976) (citation
647, 652
verdict.
State has the
appealed
burden
and argued the trial court
every
of proving
element of a crime be
abused its
discretion
finding the State
yond a reasonable doubt. City Dickin
failed to prove Flohr’s guilt beyond a rea-
(N.D.
son
Kraft,
N.W.2d
sonable doubt. Id. at 295. Flohr request-
1991) (citing
Vogel,
State v.
467 N.W.2d
ed this Court to dismiss
appeal
be-
(N.D.1991)).
so,
If the State fails to do
cause the trial
was an
the defendant must
acquitted
acquittal; therefore,
it could not be appeal-
charge.
“There can
be no
from ed
the State.
Id. This Court held the
acquittal.”
a true judgment of
Id. (citing judgment constituted an acquittal because
Flohr,
296).
N.W.2d
represented
a resolution of some of the
factual elements of the
charged;
offense
question
before this
therefore,
it held the State did not have
Court is whether the trial court order from
the right
appeal.
Id. at 295-96.
which
appealed
the State
is a judgment of
In Kraft,
441-42,
472 N.W.2d at
acquittal, which would not be appealable,
City
of Dickinson charged Kraft with
information,
or an
quashing
order
dispensing alcoholic beverages to a minor
which
appealable.
would be
This quеstion
and permitting the minor to remain on a
*5
by
is not controlled
the form of the trial
premises licensed to sell alcoholic bever-
Jackson,
ruling.
v.
State
2005 ND
ages.
held,
A jury trial
¶
was
and at the
Flohr,
701
887 (citing
N.W.2d
259
City’s evidence,
close of the
Kraft
295).
moved
“Rather,
at
N.W.2d
to determine
for a judgment of acquittal, arguing the
what constitutes an
as distin
City
prove
failed to
the elements of the
guished from a
quashing
dismissal
the in
crime. Id. at 442. The trial court entered
formation, we look at the substance of the
a judgment of acquittal, and the City ap-
judge’s ruling to determine whether it ac
pealed.
Id. In Kraft, this Court noted the
tually
represents
resolution of some or
trial court
City’s
deemed the
evidence in-
all of the factual elements of the offense
sufficient to establish Kraft’s
guilt
factual
Id,
charged.”
(citing
Meyer,
State v.
494
held,
ruling,
law,
that as a matter of
(N.D.1992)).
364,
N.W.2d
366
If the trial
provides the State’s evidence is insufficient
upon
court’s decision is based
legal conclu
to
guilt
establish factual
is an
sions rather than a resolution of some or
under
Jeopardy
the Double
Clause. Id. at
all of the factual elements of the events
(citation omitted).
443
This Court re-
charged,
ruling
amounts to a dismissal
viewed the trial
court’s order for
a quashing
or
of the information from
and noted the trial court assumed the
which
right
appeal.
the State has a
to
truth of all
City
information the
brought
(citing City Wahpeton Desjarlais,
458
forward,
so,
and even
held the information
(N.D.1990)).
330,
N.W.2d
333
propri
did
prove
the elements of the crime.
ety
of this
is contingent upon
Id. at 444. This Court held the City was
whether the trial court
only legal
reached
permitted
appeal,
and it dismissed
conclusions or resolved factual elements.
appeal.
Kraft, 472
at
N.W.2d
Flohr,
In
[¶ 9]
259
at
N.W.2d
case,
In
present
[¶ 11]
in the
chargеd
Flohr
furnishing
dismissal,
order of
the trial court noted the
delivering intoxicating beverages to a mi-
guilty,
returned
then it
held,
nor. A bench trial was
and the trial
presented
held the evidence
at trial was
court found there was reasonable doubt as
insufficient
to sustain a
verdict. Ac
to the guilt of Flohr.
Flohr,
Id. at 294-95. The
cording to
I reviewed the statute, are fully of a reviewable tion I have evidence and now Samuelson, tened to the In re Estate appeal. of I’m transcript, ¶ the written and (citations reviewed 11, 190, 757 N.W.2d ND that there is insufficient evi- satisfied omitted). dence to sustain verdict. N.D.R.Crim.P., Rule titled
The order of and the written dismissal pro- Judgment Acquittal, a Motion for of sentencing, trial oral statements at in part: vides re- together, the order of dismissal prove (a) Jury. Submission to the offense factual elements of the Before solved its evidence prosecution After the closes charged. hold order of dismissal We evidence, the after the close of all the or acquittal judgment from which a motion court on the defendant’s must permitted appeal. is not State any judgment aсquittal enter a
Ill
insuffi-
for which
is
offense
the evidence
a
The court
Although
appeal
cient to sustain
conviction.
the State’s
whether the
may
is
authorized
it was not ex
on its
consider
because
statute,
a con-
its
pressly granted
we deem
evidence is insufficient
sustain
for
a
If the court denies a motion
attempt
request
supervi
at an
for
viction.
at the close of
sory
judgment
v.
1999 ND
a
Koppy,
writ. See Olsen
¶
evidence,
defen-
(citing
prosecution’s
motion, ignoring Deutscher is 29(b). 29(b), Rule a. Verdict. On motion of a de- Before N.D.R.Crim.P., 29(b), initiative, or on Fed.R.Crim.P. fendant its own the court are An argument identical. judgment acquittal similar to shall enter a of ... presented Deutscher’s Carlisle v. after on either is evidence side
449 closed, may no reserve decision on the mo- ... if is substantial there tion, allegation. jury, to warrant the submit the case evidence jury either decide the motion before the for judg- A motion Verdict. b. After or a returns a verdict after it rеturns acquittal made before verdict ment of within is guilty discharged renewed a defendant or without may be was returned. days having after verdict a verdict. 10 returned Proc., Rule 20. In Rules Crim. A.R.S. (c)Motion Verdict Discharge or After Ryder Superior Court in ex rel. v. Jury. If the returns a verdict of County, 124 Ariz. Maricopa and for discharged or is (1980), the issue before P.2d judg- a a returned “May Arizona was: Supreme Court of may ment of re- be made or motion, court, enter a its own [trial] days newed within ten acquittal after the verdict?” judgment of discharged or within such further time held: Court Arizona fix may ten-day as the court during reading this rule makes it Careful period. If a verdict of is re- a may judg- render plain that turned, may the court on such motion only sponte, Be- ment of Sua set judgment aside the verdict enter jury. the case submitted fore returned, If no verdict is B allows renew Section acquit- the court enter after made mоtion the ver- previously It necessary tal. shall not be timely. There is dict if the renewal is making a motion of such that such court, authority for the on its [trial] no has been prior similar motion made ac- enter submission case to the a jury after verdict. quittal Darland, People 200 Colo. (1980), Darland P.2d rule, a similar Rule Colorado has 20] [¶ did move for P., Motion for Ac- R.Crim. titled Colo. count of the Peo- one at conclusion quittal, provides part: which case at the of his own ple’s or conclusion (a) Acquittal. Judgment Motion for to reach a case. The was unable ... The court on motion of defendant one, and verdict on count the trial court its own motion shall order the or of discharged jury and continued the case ... entry of 12, 1979, days, until March “for the evidence on either side is resetting On March closed, disposition.” if the is insufficient to evidence requested the case be People of such sustain conviction offense *8 trial, the trial court instead If a motion for set for but offenses. defendant’s the acquittal prepare close asked the to to address judgment parties of at the should, the by prosecution question offered the is of “whether trial evidence of may judgment enter a granted, the defendant offer on its own having Argument without reserved at 1310-11. acquittal.” evidence may ruling hearing, The court not reserve right. set for at the March judgment acquittal a motion for of “I’m going to find court held: People’s made at the close of the case. justice in of in this case it is the interest acquittal of and dis- (b) judgment enter a Reservation Decision Motion. of charge Defendant this cause.” acquittal for a of is judgment If a motion evidence, at the all the made close of People appealed and raised guilty verdict of discharged is with-
the issue of whether under Colo. out having R.Crim. returned a verdict. P. jurisdiction the trial court had (c)Motion Discharge Jury. If After of judgment acquittal. enter a of Id. The returns a verdict of or is People argued the trial court “was without discharged without returned a jurisdiction judgment to enter a acquit- of verdict, a motion judgment acquit- for of tal since the action was not taken within may tal be made or renewed within 10 ten-day period or within the further days after the discharged period by time fixed the court.” Id. The within such further time as the court Supreme Court of Colorado held: may fix during 10-day period. If a is returned the court court could sponte [trial] not sua may on such motion set aside the verdict judgment acquittal order a of and enter judgment acquittal. of If no pursuant date had “fixed” to Crim.P. verdict is may returned the court enter 29(c). Any extension of time after judgment of acquittal. It shall not be March nullity was a pur- for necessary to the making of such a mo- poses entertaining judg- motion for tion that a similar motion has been made ment Since the [trial] court prior to the submission of the case to the jurisdiction
was without
judg-
enter a
judgment
ment of
is void.
Reed,
State v.
77 Hawai'i
(citations omitted).
Id. at 1311-12
(1994),
881 P.2d
overruled on
[¶ 23] The State of Hawaii also has a
grounds
Balanza,
by
other
State v.
29, HRPP,
similar rule. Rule
provides:
279, 1
(2000),
Hawai'i
P.3d 281
Reed filed a
(a)
Motion
Submission
Jury.
more
Before
... The court on
than two
motion of a
months after a
found him
guilty.
or of its own motion
The trial
shall order
court heard
and denied
entry
the motion.
of one or
Id. The
Court of
alleged
more offenses
Hawaii deemed
charge
af-
the motion untimely ac
29(c).
ter
cording
the evidence on
to HRPP
either side is
Id. The Supreme
closed
if the evidence is
Court of Hawaii
insufficient to sustain a
held the trial court “was
authority
conviction of such
offense or offenses.
to waive the time re
If a
quirement
defendant’s motion
set forth in
]
HRPP
...
therefore,
acquittal at
jurisdiction
the close of
the evidence
was without
prosecution
offered
entertain
is not
Reed’s
for ...
grant-
judg
motion[ ]
ed,
acquittal.”
this,
the defendant
ment of
offer evidence
Id. From
without having
Supreme Court of
right.
reserved the
Hawaii deemed the trial
ruling
denying Reed’s motion null
(b) Reservation
Decision on Motion.
and void. Id.
If a
motion for
rule,
Ohio’s comparable
made at the close of the
Crim. R.
evidence offered
29(c),
titled “Motion after
prosecution,
verdict or
the court
dis-
shall not
charge
jury,”
states:
reserve decision thereon.
If such mo-
*9
tion is
parties
made after all
have rest-
If
jury
a
a
guilty
returns
verdiсt of
or is
ed, the
may
court
reserve decision on
discharged
having
without
returned a
motion,
submit the
jury
verdict,
case to the
a
judgment
motion for
of acquit-
and decide the motion either before the
may
tal
be made or renewed within four-
jury returns a verdict or
days
after it returns
jury
teen
is discharged or
jury
guilty
If a
a verdict of
or is
the court
returns
further time as
such
within
discharged
returned a
day period.
the fourteen
may
during
fix
verdict, a
returned,
judgment
acquit-
motion for
of
guilty is
If a verdict of
may
tal
be
or renewed
ten
made
within
may
motion set aside
court
on such
days
jury
discharged
after
is
acquittal.
judgment of
verdict and enter
time as
court
within such further
returned,
may
the court
If no verdict is
during
ten-day period.
fix
If a
may
It
not
judgment
acquittal.
of
shall
enter
may
a
guilty
is returned
court
such
making
to the
of
prerequisite
be a
such motion
aside the verdict and
on
set
been
motion has
motiоn that a similar
judgment
acquittal.
of
If no ver-
enter
case
submission of the
prior
made
to the
may
judg-
dict is returned a court
enter
jury.
In
ment of
order to make
Mendise,
No.
1987 WL
v.
In State
necessary
a motion it
not
to have
such
is
1987)
(Ohio
Ct.App.
*1
Jan.
at
prior
made a similar
to the sub-
motion
decision), a
trial was
bench
(unreported
jury.
mission of
case to
held,
the defen
trial court found
Tschetter,
337 N.W.2d
a
possession of
guilty of unlawful
dant
(S.D.1983),
jury
the respondent
convicted
later,
Four months
dangerous ordnance.
later,
aggravated
days
assault. Several
of
court,
its
sponte, reversed
the trial
sua
judgment
attorney
his
moved for
of ac-
not
found
defendant
decision and
requested that a
of
quittal and
conviction
assert
appealed
Id.
guilty.
The State
Id.
trial
simple assault be
entered.
by reversing its
trial
erred
ed the
court
granted
respondent’s request,
court
it violated
guilty
own verdict of
because
Supreme
the State
Id. The
appealed.
29(c).
First,
*2.
R.
Id. at
the Court
Crim.
of
Dakota determined the tri-
Court
South
judge’s
noted since
Appeals
of Ohio
authority
entering,
al court exceeded its
waived
finding
in a case in which
is
simple
of an
a-
assault
in lieu
to
R.
similar
Crim.
Supreme
Id. The
Court of
conviction.
Then,
held:
applicable.
Id.
the court
may,
trial
Dakota held: “The
court
South
requires
party
rule
expressly
“The
motion,
timely
set aside a
upon
and also
move for
acquittal.”
and enter
verdict
to ‘be
or re
requires such motion
made
added).
this,
(emphasis
From
it can
Id.
days after the
newed within fourteen
Dakota a
implied that
South
time
discharged or within such further
cannot,
its
set aside a
during
fix
the fourteen-
as the
discharge
guilty verdict after
”
(citation omitted). The
day period.’
States
United
did
court determined since
a similar
as
has addressed
issue
ac
move for a
29(c),
Fed.R.Crim.P.
applied
29(c),
could
cording to
R.
this rule
Crim.
29(c)’s counterpart. Car
power
of the trial court’s
not be
basis
lisle,
. At
Rule
stated:
late,
motion
and
Carlisle’s
held:
Discharge
Jury.
Motion
If the
After
prejudice
I can conceive of no
to the
a
jury returns
verdict of
or is
guilty
States
will
United
which
result
from
discharged
returned
consideration of a
that is
day
motion
one
for
judgment
acquit-
a motion
in this case. Because I
lat[e]
believe
may
tal
made or
within
renewed
refusal
to hear this motion would
days
jury
discharged
in grave injustice,
result
and because
within
further
such
time as
29(c)] permits
[Rule
the Court to extend
may
during
If
7-day period.
fix
deadline, I
will consider this motion
returned
if it
a timely
as
were filed in
manner.
may on
suсh
set aside the verdict
(citation
omitted)
Id. at
S.Ct. 1460
judgment
If
acquittal.
and enter
no
(alterations in original).
verdict is returned the court
enter
30] The
[¶
Sixth Circuit reversed
judgment of
It
not be
shall
acquittal
judgment
district
necessary
making
to the
a mo-
of such
remanded the case for reinstatement of
tion that a similar motion
made
has been
sentencing.
verdict and
Id. The
prior to the submission of the case to the
States Supreme
United
Court noted
held,
Sixth Circuit
Rule
“under
29 a dis-
29(c)
Currently,
Fed.R.Crim.P.
jurisdiction
grant
trict court has no
an
29(c)
identical, except
are
untimely motion
in
requirement
time
rule is
federal
jurisdiction
and that
district court has no
days
seven
requirement
while
time
sponte
to enter
sua
North
rule is
days.
Dakota’s
ten
after the case has
submitted
been
Carlisle,
[¶
at
28]
U.S.
(citation omitted).
Id.
jury.”
The United
S.Ct.
Carlisle was tried
before
Supreme
granted
States
Court
certiorari.
conspirаcy
possess
intent
Id.
trial,
marijuana. During
distribute
he did
not move for a
under
31] Before the
States
[¶
United
Su-
29(a).
Court,
Fed.R.Crim.P.
re
preme
arguments
one of Carlisle’s
29(a)
of guilty
July
turned a verdict
“gives
was that Fed.R.Crim.P.
a dis-
authority
Carlisle filed motion for
a judgment
trict court
to enter
any
on acquittal
sponte
under Fed.R.Crim.P.
sua
time before
July
1993, asserting
pre
sentencing.”
the evidence
Id. at 421. The United
sented
was insufficient
sustain
States
noted
Fed.
29(a)
verdict.
Id. The district court denied Car R.Crim.P.
is titled “Motion Before
lisle’s
provides
but
did not
to Jury,”
part:
address
Submission
*11
more
Perhaps
inexplicable
even
what
or of
of a
The court on motion
by the
entry of
be achieved
Gov-
precisely would
motion shall order the
its own
(unlike
reading,
peti-
one
more
which
acquittal of
or
ernment’s
judgment of
theories)
the
permit
the indictment
tioner’s
would
court
charged in
offenses
only during
on either
the
sponte
7-day
after the evidence
to act sua
information
(or
if
is insuffi-
Rule
specified
any
closed
the evidence
the
period
side is
a
of such of-
conviction
cient to sustain
thereof ordered
court
extension
29(c)
fense or offenses.
Rule
during
7-day period, as
allows).
beneficiary
sole
of the
29(a)).
In re-
(quoting Fed.R.Crim.P.
Id.
textual contortions is the
Government’s
contention,
this
the United
sponse to
who wants to set
a
judge
district
aside
Court held:
Supreme
States
verdict, but
lacks the wit to
a
invite
a
surprise to find
quite
It
would
during
7-day period,
motion for that
to
sponte power
district court’s sua
unavailable)
(if
defendant’s counsel
sub-
acquittal
grant judgment of
7-day period, sua sponte,
to extend the
jury
to the
hidden
mission of
case
invite such a motion
It
order to
later.
Be-
“Motion
away
provision
in a
entitled
that no such dis-
hope
is our
belief
Jury.” We are
to
Submission
fore
judge
trict
exists.
interpretation that
adopt
an
inclined
unless the intent
surprise
creates such
delinquent,
on aggravated
based
reckless
dy Clause
bar
appeal
d[oes] not
an
since
driving
negligent
homicide. Trial was
simply
verdict could
be reinstated
judicial referee,
before a
held
and B.F. was
without a new
if
the Government
guilty
charges.
found
of both
Id. B.F.
were successful.” The State also relies
challenged
judicial
finding
referee’s
on several federal
appeals
courts of
deci-
that he
negligent
committed
homicide and
holding
sions
the government
permit-
requested
juvenile
judge
court
to appeal
ted
from federal district
judicial
finding.
review the
referee’s
Id. at
court’s reversal of a
of convic-
¶
juvenile
The
court
3.
conducted a de novo
by
tion
magistrate
entered
be-
judge
review
the record
according
N.D.
cause the
jeopardy
double
clause
Sup.Ct.
13, §
R.
11(b),
Admin.
and it
by
violated
an appeal that
results in
determined B.F.’s actions did not rise to
reinstatement of a
verdict.
negligent
the level
homicide.
Id.
The
¶
(citations
(alteration
omitted)
Id.
at
in
State
appealed.
original). This Court did not find the
Court,
appeal
[¶
On
to this
34]
B.F.
State’s argument compelling and held:
asserted the
should be dismissed
“The federal
upon
circuit court cases relied
proceedings against
because further
him
by
persuasive
the State are not
because
by
would be barred
the Double Jeopardy
procedure
for a federal district court’s
¶ 4.
Clause.
Id. at
This Court noted:
magistrate’s
review of a
decision differs
appellate
an
or trial
“When
court ‘con-
substantially from the
procedure
current
legally
cludes that evidence is
insufficient
for a state district court’s review of a
suрport
it concludes
judicial referee’s decision in North Dako-
prosecution
produce
that the
has failed to
¶
ta.”
prove
sufficient
its
evidence
case. The
Jeopardy
Double
Clause of the Fifth
Rather,
this Court
relied on
Amendment
the United States Constitu-
Sup.Ct.
§
N.D.
R.
Admin.
titled
”
in such
tion bars retrial
a case.’
Id. at
Review,”
“Procedure for
provides:
¶
(quoting
Rogers,
State
2007 ND
(a) A review of the findings and order
¶
859).
N.W.2d
This Court sum-
any
by
ordered at
time
district
argument
marized the State’s
that double
judge
court
and must be
if a
ordered
jeopardy
did
principles
not bar the State’s
party
request
files a written
for a review
appeal:
days
within five
after service of the no-
argues
The State
the double jeopardy
10(b).
tice
request
Section
for
here,
clause is not violated
if
because
review must state the reasons for the
prevailed
appeal,
the refer-
review. A party requesting review must
ee’s decision could simply be reinstated
give notice to all
parties.
other
Parties
and there would be no
need
a retrial.
seeking
respond
to a request for re-
The State relies on Sanabria v. United
response
view must file their
within 10
States,
U.S.
98 S.Ct.
days
after service
notice of
re-
(1978) (footnote
L.Ed.2d 43
omitted), in
quest.
which the
United States
(b)
noted that
primary
“the
purpose of the
review
a district court
Double Jeopardy
prevent
Clause was to
be a
judge must
de novo review of the
trials,
successive
and not Government
may:
record.
court
The district
(1)
findings
referee’s
and order do
findings;
not be-
adopt the referee’s
final disposition
they
come a
unless
are
(2)
the referee
addi-
remand to
juvenile
left undisturbed
court
findings; or
tional
juvenile
judge.
judge
When the
(3)
findings.
the referee’s
reject
order,
findings
reviews the referee’s
(c)
rejects
judge
*13
If
district
findings
order
only
the
and
survive
shall
findings, the court
the referee’s
judge
adopt
the extent the
chooses to
fact,
of
with or
findings
own
issue its
review,
Upon
the referee’s find-
them.
hearing.
a
and
ings
order constitute recommenda-
R.
Sup.Ct.
noted N.D.
Admin.
This Court
judge.
“
the juvenile
tions to
court
10(a)
13,
states,
and
findings
§
or-
‘[t]he
juvenile
judge
given
court
the ulti-
have the effect
judicial
referee
der
authority
mate
to be the factfinder and
until
an
of
district court
su-
of
order
the
adjudicator
a final disposi-
and
issue
a district
by a written order of
perseded
juvenile
”
judge
tion. Once the
court
is-
¶ 12,
B.F.,
53,
2009 ND
judge.’
court
order,
a final
sues
there remains no
(quoting
Sup.Ct.
N.D.
Admin.
N.W.2d 170
decision of the referee to reinstate if this
10(a)).
Dakota,
13,
juve-
a
§
In North
R.
juvenile
Court were to reverse the
court
judge
the decision
nile court
who reviews
question
judge’s decision. There is no
in a
judicial
“does
act
true
of a
referee
juvenile
judge’s
that the
court
decision
pro-
Id. This Court
appellate capacity.”
constitutes an
because
clear-
have
that double
vided
“courts
held
other
ly
a
“represents a resolution of
factual
from re-
prosecution
bars the
jeopardy
charged
of
element
the
offense.”
following
a trial
novo
court
questing
de
omitted).
¶¶
(citation
This
Id. at
15-16
by magistrate or referee
an
concluded, “the
Jeopardy
Court
Double
only
statutory
operates
scheme
as
if the
¶
the Fifth
the
Clause of
Amendment
at
proceedings.”
Id.
separate
two
the
(citations omitted).
United States Constitution bars
juvenile
judge’s
from
court
appealing the
Next, this
held:
Court
acquitting
rejecting
B.F. and
order
system
operate
does not
North Dakota’s
of
judicial
guilt.”
determination
referee’s
Although
prоceedings.
as two distinct
¶
Therefore,
Id.
16.
this Court dis-
at
13,
R.
Sup.Ct.
under N.D.
Admin.
appeal.
missed the
10(a),
judicial
findings
§
referee’s
Martinez,
In
[¶
a final order
United States
37]
can
the effect of
order
(9th Cir.1997),
1161,
court,
juvenile
only
of
that occurs
if
F.3d
analyzed
Jeopar-
Double
superseded by a
order Ninth Circuit
it is not
written
dy
and its
Fed.R.Crim.P.
juvenile
of
court
and under
Clause
effect on
judge,
11(a),
29(c). Martinez,
§
R.
In
convicted Mar-
Sup.Ct.
N.D.
Admin.
methamphetamine
findings
tinez of distribution
may review the referee’s
judge
possession methamphetamine
and must
and order on its own motion
1162. The
intent
to distribute.
Id. at
timely requested by
if
conduct
review
granted
Martinez’s motion
party.
Sup.Ct.
N.D.
Admin. district
Under
gov-
juvenile
judge
§
for a
R.
court,
appealed to the Ninth Circuit.
appellate
not sit as an
but
ernment
does
the Dou-
appeal,
a de novo
of the record
Id. On
Martinez asserted
conducts
review
govern-
authority
rejeсt
Jeopardy
ble
barred
adopt
and has the
Clause
at
The Ninth
appeal.
its
ment’s
Id.
findings
the referee’s
and issue
held:
hearing.
with or without a
The Circuit
findings
clearly
Our
establishes that
sal
precedent
appeal
merely
would
reinstate
may appeal from
government
jury’s
review such
an order does
a motion for judgment
granting
not offend
policy against multiple
pros-
acquittal under
af-
Fed.R.Crim.P.
ecution.”
344-45. The United
because,
ter a
verdict
held:
States
government prevail
ap-
should
continue to
[W]e
the view that the
peal, the verdict would be reinstated
policies underlying
Jeopardy
the Double
with no need for
further trial.
Clause militate against permitting the
(citation omitted).
Government to
verdict
acquittal. Granting the Government
B.F.,
¶ 8,
[¶
2009 ND
38]
appeal rights
such broad
would allow
N.W.2d
we deemed the federal circuit
*14
prosecutor
the
persuade
seek to
unpersuasive
court cases
because of the
second trier
fact of the defendant’s
in procedures
difference
for a federal dis
first;
guilt
failed with the
it
magistrate’s
trict
court’s review a
deci
permit
would
him to re-examine the
sion and North Dakota state district
in
weaknesses
his first
in
presentation
judicial
court’s review of a
referee’s deci
second;
strengthen
order to
the
it
and
sion. The case before this Court arises in
would
legiti-
disserve the defendant’s
judge
the context of a district
unilaterally
in
finality
mate interest
the
of a verdict
negating
finding
of a
In this
interests,
however,
context, Martinez,
These
[¶ discussing Jeop 40] court will not violate Jeopar- the Double the Double dy Clause, ardy the United States Clause. noted, “where there no threat of IV
either multiple punishment or successive prosecutions, Jeopardy the Double 42] Clause We the remaining [¶ considered is- is not offended.” Id. at arguments 344. “Since rever- sues and they decided are Court, County, this We reverse Stark Southwest Judicial unnecessary to decision. (N.D.1990) case the trial court to Dist., and remand 450 N.W.2d 762-763 jury’s upon the judgment based (citations omitted). enter verdict. only argued [¶47] The State that brought proper appeal. The did WALLE, State GERALD W. 43] YANDE [¶ KAPSNER, C.J., supervisory RONNING not ask this Court exercise CAROL MARING, and case, MARY MUEHLEN jurisdiction givеn in this even when SANDSTROM, JJ., DALE V. concur. opportunity oral during argument. briefing had We therefore CROTHERS, Justice, part in concurring argument regarding why this is the rare dissenting part. case which we this should exercise part with that 44] I concur [¶ jurisdiction. original Court’s Nor have we concluding the can- Majority Opinion briefing argument why regarding had appeal from order of dismissal. injustice this case presents an or error ¶at I Majority Opinion respectfully requiring us to set aside caution and to to exercise dissent from decision our judicial extend hand where that hand from jurisdiction and supervisory Court’s *15 could otherwise reach. resulting remainder the decision attempt- on merits ruling State’s briefing, lack of argument 48] The [¶ appeal. ed aside, request supervision even a 29-28-07, N.D.C.C., [¶ 45] Section this is not a case that cries out for our which the State specifies the orders from The issue for which the intervention. action, the appeal. “In a criminal case, sought State review is isolated this has as is only right appeal such State misapplication procedural of a involves the by statute.” State v. expressly conferred likely again. rule and arise There is not Flohr, (N.D.1977); N.W.2d justice no overall insult to the criminal is ¶ proper Majority Opinion 6. Without agree is a system. I therefore do not this statute, this Court has no under the appeal proper case for exercise this Court’s jurisdiction to decide the matter. appellate authority. I supervisory would dismiss (N.D. Gohl, v. N.W.2d end review appeal our with 1991) (“The right governed act. solely statute this state. Without any statutory appeal, basis hear an this juris
Court must take notice lack Daniel J. Crothers (internal appeal.”) diction and dismiss the omitted). Therefore, exer
citation absent jurisdiction to original
cise of this Court’s appeal must be
supervise, the dismissed. consistently held that
[¶ 46] We supervisory of writs under our
“[i]ssuance
jurisdiction discretionary with entirely court, rarely and will be done jurisdiction only
caution. will be in- Such injus- rectify prevent
voked to errors and adequate
tice when no alternative reme- exist.” Polum North Dakota Dist.
dies