IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, | ) | |
| ) | ||
| Plaintiff-Appellee, | ) | |
| ) | ||
| -vs- | ) | |
| ) | ||
| Ernest Coppage, | ) | Supreme Ct. No. 20070304 |
| ) | ||
| Defendant-Appellant, | ) | District Ct. No. 08-06-K-2085 |
| ) | SA File No. F 747-06-10 |
BRIEF OF PLAINTIFF-APPELLEE
APPEAL FROM THE JURY TRIAL AND VERDICT, JULY 26 - 27, 2007 AND SENTENCING HELD ON OCTOBER 8, 2007 AND ORDER DENYING MOTION FOR NEW TRIAL, DATED FEBRUARY 8, 2008
Burleigh County District Court
South Central Judicial District
The Honorable Donald L. Jorgensen, Presiding
| Lloyd C. Suhr |
| Assistant, Burleigh County State's Attorney |
| Courthouse, 514 East Thayer Avenue |
| Bismarck, North Dakota 58501 |
| Phone No: (701) 222-6672 |
| BAR ID No: 05405 |
| Attorney for Plaintiff-Appellee |
TABLE OF CONTENTS
Page No.
| Table of Authorities | i |
| Statement of the Issues | |
| 1 | |
| Statement of the Case | |
| 2 | |
| Argument | |
| 4 | |
| Conclusion | |
| 11 | |
Table of Authorities
Page No.
| Cases |
| State v. Banes 874 S.W.2d 73 (Tenn. 1993). |
| 5 |
| State v. Barendt 2007 ND 164, 740 N.W.2d 87 |
| 4 |
| State v. Lemons 2004 ND 44, 675 N.W.2d 148 |
| 4 |
| State v. Noorlun 2005 ND 189, 705 N.W.2d 819 |
| 6,7 |
| Statutes |
| N.D.C.C. § 12.1-16-01(1)(a) |
| 7 |
| N.D.C.C. § 12.1-16-01(1)(b) |
| 7 |
| Rules |
| N.D.R.Crim.P. 33 |
| 4 |
| N.D.R.Crim.P. 33(b)(1) |
| 4 |
| N.D.R.Crim.P. 33(b)(2). |
| 4 |
Statement of the Issues
I. Whether the Trial Court Abused its Discretion in Denying Coppage's Motion for a New Trial?
II. Whether the Evidence was Sufficient to Uphold the Jury's Verdict of Guilty? Statement of the Case
Coppage's statement of the case is substantially accurate and the state joins in the same with one exception. Specifically, the Motion for New Trial was filed on or about December 27, 2007, not January 28, 2008.
Statement of the Facts
The relevant facts from the Record are set out and developed as necessary in the Argument section of the Brief. Argument
I. The Trial Court did not Abuse it's Discretion in Denying Coppage's Motion for a New Trial.
A. Applicable standard
This Court applies the abuse of discretion standard when reviewing a trial court's decision to deny a motion for a new trial. State v. Barendt, 2007 ND 164, ¶ 22, 740 N.W.2d 87; State v. Lemons, 2004 ND 44, ¶ 18, 675 N.W.2d 148. A trial court only abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner or misinterprets or misapplies the law of the case. Lemons at ¶ 18.
B. The motion for new trial was not timely.
North Dakota Rule of Criminal Procedure 33(a) provides that upon motion of the defendant, the trial court may vacate a criminal judgment and grant a new trial if the interest of justice so requires. Rule 33(b) recognizes two primary grounds for granting a new trial. The first is where there is "newly discovered evidence." N.D.R.Crim.P. 33(b)(1). A motion for a new trial based on newly discovered evidence must be filed within three years of the date of the verdict or finding of guilt. Id.
The second is a "catch all" involving the need for a new trial on "other grounds." N.D.R.Crim.P. 33(b)(2). A motion under this section must be filed within ten days of the date of the verdict or finding of guilt. Id.
Here, Coppage's motion for a new trial would fall under the provisions of N.D.R.Crim.P. 33(b)(2), which as noted requires that the same be filed within 10 days after the verdict of guilt. The motion was filed on or about December 28, 2007, nearly four months after the guilty verdict. Given this, the motion was not timely.
C. Even if the motion for new trial was timely, the trial court did not abuse its discretion in denying it.
The undersigned's research did not uncover any cases in North Dakota where a jury verdict form was completed so as to find a criminal defendant guilty of both a lesser included and greater offense. However, this issue was addressed in State v. Banes, 874 S.W.2d 73 (Tenn. 1993).
In Banes, the defendant was charged with one count of Aggravated Rape and one count of Aggravated Sexual Battery, which was apparently a lesser included offense of the former under state law. Banes at 79. Banes was convicted by a jury of both offenses, even though the charges were related to only one incident. Id. at 77. He appealed and the Court of Criminal Appeals concluded that where two guilty verdicts are returned as to alternative charges, the guilty verdict on the greater charge stands and the guilty verdict on the lesser charge merges into the greater charge. Id. at 81.
This reasoning is directly applicable and should be adopted here. There is no question the jury was convinced of Coppage's guilt for the charge of Attempted Murder beyond a reasonable doubt. The trial court read the verdict of guilty on the Attempted Murder charge and each juror individually affirmed in open court that they had voted guilty with respect to it. (Trans. p. 658, lines 2-25; p. 659, lines 1-25).
There is no dispute that Aggravated Assault was an appropriate lesser included offense of Attempted Murder under the facts of this case. Logically, to prove Attempted Murder it was necessary as a matter of course to prove Aggravated Assault. It defies logic to conclude that the jury would have convicted Coppage of Attempted Murder but acquitted him of Aggravated Assault.
Their verdict of guilty as to both charges has the same effect here as the jury's verdict in the Bates case. The lesser charge of Aggravated Assault "merges" into the greater charge of Attempted Murder, and the latter guilty verdict stands. It was not an abuse of discretion for the trial court to deny the motion for new trial on the grounds that the guilty verdicts for both were legally inconsistent.
II. Whether the Evidence was Sufficient to Uphold the Jury's Verdict of Guilty?
Coppage asserts that there was insufficient evidence of intent to support the jury's guilty verdict for Attempted Murder. In an appeal challenging the sufficiency of the evidence, this Court will review the evidence in a light most favorable to the verdict to determine if there was substantial evidence to warrant the conviction. State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819.
A conviction rests on insufficient evidence only when, after reviewing the evidence in a light most favorable to the prosecution, and giving the prosecution the benefit of reasonable inferences in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. Noorlun, 2005 ND 189 at ¶ 20. In reviewing the sufficiency of evidence, this Court will not weigh conflicting evidence nor judge the credibility of witnesses. Id. A conviction may be justified on circumstantial evidence alone if the evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Id. A verdict based on circumstantial evidence carries the same weight as other verdicts. Id.
Here, Coppage was charged with Attempted Murder under N.D.C.C. § 12.1-16-01(1)(b), which required that he intentionally engage in certain conduct which manifested an extreme indifference to the value of human life. The Criminal Information, as amended, alleged that the intentional conduct was that of: 1) choking the victim to the point of unconsciousness; 2) repeatedly striking her with a wooden rod about the head; or 3) stabbing her with a scissors. (App. p. 8-9).
Thus, contrary to the position Coppage takes on appeal, the State did not have to prove that he actually intended to kill the victim--only that he intentionally engaged in the identified conduct and he did so with an extreme indifference to her life. Compare to N.D.C.C. § 12.1-16-01(1)(a), which requires proof of actual intent to cause death.
There was more than ample evidence for the jury to conclude that Coppage had intentionally engaged in the choking, striking, and stabbing conduct and that it reflected an extreme indifference to the value of human life. This evidence, when viewed in a light most favorable to the prosecution, requires affirmance of the verdict.
Lindsay Wenger testified that Coppage grabbed a plunger and used it to hit her about the head and shoulder area multiple times, in addition to using his hands to hit her. (Trans. p. 107, lines 16-21; p. 111 lines 23-25; p. 112, lines 1-15). She also testified that Coppage choked her with his hands and the handle of the plunger while she was on her stomach, cutting off her air supply. (Trans. p. 114, lines 10-25; p. 115 lines 1-15). She pled with him multiple times not to kill her, to which he responded that he did not care if he killed her, and would go to jail. (Trans. p. 116, lines 22-25; p. 117 lines 3-9).
Wenger further testified that throughout this attack she managed to get over to the couch in the residence, but did not remember how exactly, because she was blacking out and losing consciousness. (Trans. p. 118, lines 14-21). Coppage followed her, hovering over her with a serrated steak knife, which he held with the blade facing her. (Trans. p. 119, lines 11-12; p. 120, lines 2-11; p. 122, lines 24-25). She was able to get the knife away from him and throw it before running to a nearby chair. (Trans. p. 123, lines 11-15; p. 125, lines 15-17).
Coppage followed her again, leaning over her with a scissors in
hand, with the blade facing her. (Trans. p. 126, lines 22-25; p. 127, lines 1-6; p. 127, lines 22-25; p. 129 lines 1-3). She was able to get the scissors away at some time but not before being stabbed in the left leg. (Trans. p. 129, lines 1-3, 17-18).
Wenger was able to flee the residence and scream for help, but Coppage caught up to her, hit her in the back of the head, put his hand over her mouth, told her to be quiet, and drug her back into the residence. (Trans. p. 138, lines 1-25; p. 139, lines 1-25; p. 140, lines 1-10; p. 141 lines 1-5).
This collective testimony shows that Coppage pursued Wenger in predatory fashion and that his acts of hitting, choking, and stabbing her were intentional. Other compelling testimony was offered by her treating emergency physician Dr. Thomas Magill.
Dr. Magill testified that he examined Wenger on October 24, 2006 and, because of the apparent severe head and facial trauma she suffered, ordered a CAT scan to look for injury to the brain, possible tumors, or fractures. (Trans. p. 402, lines 13-23; p. 407 line 25; p. 408 lines 1-16). He offered an expert opinion that she had suffered soft tissue injuries and a right orbital fracture which could result from moderate to significant force inflicted as a result of multiple blows. (Trans. p. 409, lines 19-25; p. 410, lines 1-25; p. 411, lines 1-25; p. 412, lines 1-25; p. 413, lines 1-2).
He further testified that the CAT scan showed Wenger suffered from subarachnoid hemorrhaging, a potentially life threatening condition which resulted in her being hospitalized for three days. (Trans. p. 417, lines 2-25; p. 418, lines 1-25; p. 419, lines 1-25; p. 420, lines 1-25; p. 422, lines 10-12). Dr. Magill opined that the condition appeared to have been the result of trauma. (Trans. p. 419, lines 1-25).
Dr. Magill also noted a stab wound to Wenger's left thigh which he believed could have been caused by stabbing with a scissors. (Trans. p. 423, lines 1-4). He noted a linear mark on her neck consistent wit the use of, possibly a wooden rod applied forcefully against the throat area. (Trans. p. 424, lines 16-25; p. 425, lines 1-25). He also identified what he considered to be possible defensive wounds on Wenger's right thumb and left forearm. (Trans. p. 429, lines 2-21; p. 436, lines 12-17).
Finally, Dr. Magill identified a subconjunctive hemorrhaging in Wenger's eyes, which were consistent with the infliction of force or trauma, and could have been caused by a single significant blow or multiple blows of moderate force. (Trans. p. 431, lines 19-25; p. 432, lines 1-25; p. 433, lines 1-25; p. 434, lines 1-25).
Collectively this evidence from Dr. Magill shows that Wenger suffered a number of serious injuries on various areas of her body, at least one of which was potentially life threatening. This is evidence on which the jury could have reasonably relied to conclude that Coppage, in inflicting the injuries as described, manifested an extreme indifference to Wenger's life.
The evidence was more than sufficient to sustain the jury verdict and the same should be affirmed.
Based upon the foregoing, the State requests that the the jury trial and verdict, july 26 - 27, 2007 and sentencing held on october 8, 2007 and order denying motion for new trial, dated february 8, 2008 be affirmed.
Dated this ____ day of March, 2008.
| Lloyd C. Suhr |
| Assistant, Burleigh County State's Attorney |
| Courthouse, 514 East Thayer Avenue |
| Bismarck, North Dakota 58501 |
| Phone No: (701) 222-6672 |
| BAR ID No: 05405 |
| Attorney for Plaintiff-Appellee |