State v. Ellis

20000092 State of North Dakota, Plaintiff and Appellee
v.
Blaine Douglas Ellis, Defendant and Appellant

Appeal from: District Court, East Central Judicial District, Cass County
Judge Frank L. Racek
Nature of Action: Misc. Statutory Offense (Felony)
Counsel:
Appellant: Brian W. Nelson & Associates
Appellee: Lori Sue Mickelson , Asst. State's Attorney
Appellee: Wade Lykken Webb , Asst. State's Attorney
Term: 02/2001   Argument: 02/06/2001  10:45am
ND cite: 2001 ND 84
NW cite: 625 N.W.2d 544

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Whether the trial court abused its discretion when it denied the change of venue motion.
II. Whether the trial court abused its discretion when it refused to include the lesser included offense of aggravated assault in the jury instruction.
III. Whether the trial court erred when it considered a conviction which was under appeal as a factor in the sentencing of the current matter.
IV. Whether the trial court erred when it did not issue a curative instruction regarding a bat found by law enforcement.

Appellee's Statement of the Issues:
I. Whether the trial court abused its discretion when it denied the change of venue motion?
II. Whether the trial court abused its discretion when it refused to include the lesser included offense of aggravated assault in the jury instruction?
III. Whether the trial court erred when it considered a conviction which was under appeal as a factor in the sentencing of the current matter?
IV. Whether the trial court erred when it did not issue a curative instruction regarding a bat found by law enforcement?

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Docket entries:
103/29/2000 NOTICE OF APPEAL: 03/27/2000
203/29/2000 ORDER FOR TRANSCRIPT: 03/27/2000
304/03/2000 Acknowledgment of order for transcript and request for advance payment
404/12/2000 Letter dated 4-11-00 from Ct. Reporter re suspending preparation of TRA due to nonpayment
504/28/2000 RECORD ON APPEAL & separates(Not rec'd-8, 9, 28, 32, 50, 56, 125, 208, 240, 247/steno notes/tapes);
604/28/2000 (not rec'd-12, 23, 42, 47/state's attorney copy of felony scheduling orders)
704/28/2000 (not rec'd-119 through 124/subpoenas/missing)(not rec'd-213, 219, 220, 222, 239/exhibits)
805/08/2000 Cy of Ltr from Joan Utter, Recorder to Brian Nelson re Transcripts
905/15/2000 MOT. EXT/TIME TRANSCRIPT
1005/15/2000 NO ACTION TAKEN (Motion needs to be made to trial court for first 40 day extension-per WAN)
1105/17/2000 Request for Return of Record by Court Reporter
1205/17/2000 ACTION BY CLERK (record returned for use by court reporter). Granted
1305/17/2000 RETURN OF ROA TO DIST. CT.
1406/25/2000 MOT. EXT/TIME TRANSCRIPT
1506/25/2000 ACTION BY TRIAL COURT. Granted: 06/25/2000
1606/25/2000 MOT. EXT/TIME TRANSCRIPT (requesting an addtl. 30 days)
1706/25/2000 ACTION BY CLERK (CMB) (MTR). Granted: 07/25/2000
1807/25/2000 MOT. EXT/TIME TRANSCRIPT
1907/25/2000 ACTION BY CHIEF JUSTICE (MTR). Granted: 09/08/2000
2008/31/2000 TRANSCRIPTS DATED JANUARY 13, 2000 (MOTIONS), JANUARY 31, 2000 (MOTION), COMMENCING FEBRUARY 1,
2108/31/2000 2000 (TRIAL, 8 VOLUMES), MARCH 17, 2000 (SENTENCING)
2209/01/2000 DISK - TRA's dtd 1-13-00, 1-31-00, 02-02-00, 03-17-00 (10 Disks)
2309/07/2000 RECORD ON APPEAL - refiled (3 volumes; & separates transcript dated 2/2/00 & photos)(not rec'd - 8,
2409/07/2000 9, 12, 23, 28, 32, 42, 47, 50, 56, 119-124, 125, 208, 213, 219, 220, 222, 239, 240 & 247)
2510/05/2000 MOT. EXT/TIME APPELLANT BRIEF
2610/05/2000 ACTION BY CLERK (MAT). Granted: 11/09/2000
2711/08/2000 MOT. EXT/TIME APPELLANT BRIEF
2811/08/2000 ACTION BY CHIEF JUSTICE. Granted: 12/09/2000
2912/08/2000 APPELLANT BRIEF
3012/08/2000 APPELLANT APPENDIX
3112/11/2000 DISK - ATB
3201/08/2001 APPELLEE BRIEF
3301/08/2001 APPELLEE APPENDIX
3401/09/2001 DISK - AEB
3501/15/2001 DISK - AEB (including preferatory pages)
3601/29/2001 MOTION to Disqualify Prosecutor and Reverse Conviction
3701/31/2001 ACTION BY SUPREME COURT (MOT/disqualify prosecutor & reverse conviction). Denied
3801/31/2001 Order Mailed to Parties
3902/02/2001 Request for Radio/TV Coverage (WDAY-TV and KVRR-TV, Fargo) (APPROVED)
4002/05/2001 (NOTE: The Forum will also be present -- email from Jack McDonald dated 2-05-01)
4102/06/2001 APPEARANCES: Mark T. Blumer, Kevin M. Miller; Wade L. Webb, Lori S. Mickelson
4202/06/2001 ARGUED: Blumer; Webb (Vol. X; page 107)
4302/06/2001 ORAL ARGUMENT WEBCAST
4405/01/2001 DISPOSITION: AFFIRMED
4505/01/2001 UNANIMOUS OPINION: Kapsner, Carol Ronning
4605/02/2001 Order/Judgment Mailed to Parties
4705/31/2001 MANDATE
4806/04/2001 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4905/16/2007 EXPUNGED - Nonpermanent record items destroyed

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