| State of North Dakota, | |||||||||||
| Plaintiff - Appellee, | |||||||||||
| Supreme Court Number: 2006 0242 | vs. | ||||||||||
| Rodney Brossart, | |||||||||||
| Defendant - Appellant, | |||||||||||
Appeal From The District Court
Nelson County, North Dakota
Northeast Central Judicial District
Honorable Karen Braaten
Judgment of Criminal Conviction
Dated August 11, 2006
Reply Brief of the Appellee
| NEIL W. FLEMING | ||||||
| Attorney ID # 02887 | ||||||
| For: Fleming, DuBois & Fleming, PLLP | ||||||
| Attorneys at Law | ||||||
| PO Box 633 | ||||||
| Cavalier, North Dakota 58220 | ||||||
| Telephone No. (701) 265-8446 | ||||||
| Facsimile No. (701) 265-8947 | ||||||
| Attorney for the Appellant | ||||||
TABLE OF CONTENTS
| Table of Authorities.ii |
| Statement of the Case..iii |
| Law and Argument...1 |
| Conclusion.8 |
i
| State vs. Erickstad, 2000 N.D. 202 at Paragraph 34, 620 N.W.2d 136..¶1 |
| State vs. Jenson, 2000 N.D. 28 at Paragraph 10; 606 N.W. 2d 507 ...¶1 |
| State vs. Goebel, 2007 N.D. 4 at Paragraph 11 ¶2 |
| State vs. Graf, 2006 N.D. 1996 at paragraph seven; 721 N.W. 2d 381.¶2,3 |
1. The appellee on page three of his brief the appellee indicates that the standard of review to be used in this case is an abuse of discretion standard. The appellee goes on to cite State vs. Erickstad, 2000 N.D. 202 at Paragraph 34; 620 N.W.2d 136; and State vs. Jenson, 2000 N.D. 28 at Paragraph 10; 606 N.W. 2d 507. This is the wrong standard of review. The appellant is not arguing that the court made an erroneous decision on evidence admitted, or excluded, rather the appellant is arguing that the court reached an erroneous legal conclusion from the evidence presented.
2. Accordingly, the "abuse of discretion" standard which the appellee cites to in paragraph seven of his brief is the inappropriate standard of review to use. This court has repeatedly held that the question of law is fully reviewable on appeal. (citations omitted). Most recently in State vs. Goebel, 2007 N.D. 4 at Paragraph 11, the court cites State vs. Graf, 2006 N.D. 1996 at paragraph seven; 721 N.W. 2d 381. In Graf, this court stated very specifically questions of law are fully reviewable on appeal and whether a finding of fact meets a legal standard is a question of law. See Graf at Paragraph seven.
3. Accordingly, then the trial court's determination of guilt based upon its findings of fact are subject to the fully reviewable on appeal standard of review that was most recently set out in State vs. Graf.
II.
4. Does Brossart have the right to resist an unlawful arrest where the police used unreasonable force to subdue him?
5. Again, in paragraph 11 the appellee indicates that an abuse of discretion standard is applicable in this case. However, the question raised by the appellant is whether or not as a matter of law he had the right to resist an unlawful arrest. Again, this represents a question of law which is fully reviewable on appeal. The question at issue is whether as a matter of law under the circumstances of this case did Rodney Brossart have the right to resist an unlawful arrest where the police were used unreasonable force to subdue him.
6. The appellee also raises the question of whether this defense was raised in the trial court below. In paragraph eight under II (which is the second paragraph 8) the appellee indicates that the record however makes no reference to this defense prior to the appeal. However, this defense was raised through testimony and even if it was not specifically set out there was certainly facts presented to the trial court upon which that trial court could accept or deny the defense of self defense. In fact in the transcript at page 139 to transcript page 140 the court and Mr. Fleming have a discussion about the defense of being able to resist an unlawful arrest. See Transcript Pp. 139, 140 at Supplemental Appendix page 1,2 .
7. It should be clear then from those record entries, that the defense was raised in the trial court which is sufficient for the Supreme Court to address it on appeal. The evidence below, as well as the exchange between the court and Mr. Fleming demonstrates that the issue was raised at the trial court, and is sufficient to render the decision on that issue fully reviewable on appeal as a decision as a matter of law.
8. The State in their brief of the appellee has misstated the proper standard of review with respect to both of the issues of this case. The court should rule based on its own clear precedent that the issues in this case are fully reviewable on appeal and that the trial court erred as a matter of law in convicting Mr. Brossart of his crime.
Respectfully submitted this 22nd day of January, 2007.
| /s/ Neil W. Fleming NEIL W. FLEMING | |||||||
| Attorney ID # 02887 | |||||||
| For: Fleming, DuBois & Fleming | |||||||
| Attorneys at Law | |||||||
| PO Box 633 | |||||||
| Cavalier, North Dakota 58220 | |||||||
| Telephone No. (701) 265-8446 | |||||||
| Facsimile No. (701) 265-8947 | |||||||
| Attorney for the Appellee | |||||||