State v. Jahner

20020143 State of North Dakota, Plaintiff and Appellee
v.
Joseph Paul Jahner, Defendant and Appellant

Appeal from: District Court, South Central Judicial District, Morton County
Judge Bruce B. Haskell
Nature of Action: Homicide
Counsel:
Appellant: Chad Rory McCabe
Appellee: Ladd Ronald Erickson , Asst. State's Attorney
Term: 12/2002   Argument: 12/17/2002  9:30am
ND cite: 2003 ND 36
NW cite: 657 N.W.2d 266

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Issues: Appellant's Statement of the Issues:
I The district court committed obvious error in failing to provide Jahner's testimony as mandated by N.D.C.C.  29-22-05, and instead responding, "You are to rely on your recollection of the testimony to resolve the disagreement", after being demanded by the jury to provide Jahner's testimony, and again being informed by the jury that, "[W]e are in disagreement about Mr. Jahner's memory and the period of time that the memory loss included," particularly when his testimony was not consistent with all the testimony, and clearly a portion of it was, if believed by the jury, sufficient to sustain a verdict for Jahner.
II: The district court committed reversible error in failing to provide the definition of reasonable doubt from NDJI Criminal K-1.10 upon request of the State which Jahner relied upon, and/or the district court committed obvious error in failing to provide the definition of reasonable doubt, particularly when Jahner's testimony was not consistent with all the testimony, and clearly a portion of it was, if believed by the jury, sufficient to sustain a verdict for Jahner.
III: The conviction of reckless endangerment should be reversed and the count from the indictment dismissed, because the verdict is repugnant, given that the acquittal as to the mens rea element of recklessness in the charge of manslaughter was conclusive as to a necessary mens rea element of recklessness in the charge of reckless endangerment, there being no difference in the means alleged to have been employed for both charges.

Appellee's Statement of the Issues:
The is an appeal from a jury trial conviction for the lesser-included offense of Negligent Homicide, felony Reckless Endangerment, and Driving Under the Influence of Alcohol.

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Docket entries:
106/10/2002 NOTICE OF APPEAL: 06/07/2002
206/10/2002 ORDER FOR TRANSCRIPT: 06/07/2002
306/12/2002 RETENTION OF RECORD ON APPEAL (Lisa Schmidt): 07/27/2002
407/02/2002 Ltr. from Lisa Schmidt, Ct. Rptr. advising she is suspending preparation of transcript due to lack
507/02/2002 of advance payment dated 7-1-02.
607/03/2002 E-mail from Lisa Schmidt,Ct.Rptr.stating she is has been paid and will begin prep of TRA dtd 7-3-02
707/10/2002 RECORD ON APPEAL & Exhibits (Not rec'd: Exhibit 4 (Piece of Metal) & Exhibit 5 (Light Assembly)
807/25/2002 TRANSCRIPT COMMENCING 3-12-02 (2 vols.)
907/25/2002 DISK - TRA (3/12/02 & 3/13/02)
1008/22/2002 MOT. EXT/TIME APPELLANT BRIEF & AFF. OF CHAD R. MCCABE
1108/22/2002 ACTION BY CLERK (MAT). Granted: 10/03/2002
1208/22/2002 Faxed Certificate of Service (MAT) (attached to MAT)
1308/23/2002 Original Certificate of Service (MAT) (attached to orig. MAT)
1410/04/2002 MOT. EXT/TIME APPELLANT BRIEF
1510/04/2002 ACTION BY CHIEF JUSTICE. Granted: 10/07/2002
1610/07/2002 MOTION FOR WORD COUNT TO EXTEND TO 11,150 WORDS FOR ATB
1710/07/2002 ACTION BY CHIEF JUSTICE. GRANTED
1810/07/2002 APPELLANT BRIEF
1910/07/2002 APPELLANT APPENDIX
2010/07/2002 DISK - ATB
2110/30/2002 MOT. EXT/TIME APPELLEE BRIEF
2210/30/2002 ACTION BY CLERK. Granted: 11/20/2002
2311/20/2002 MOT. EXT/TIME APPELLEE BRIEF (faxed copy)
2411/20/2002 ACTION BY CLERK. Granted: 11/22/2002
2511/22/2002 Original Mot/Ext/AEB (same as faxed copy filed 11-20-02)
2611/22/2002 APPELLEE BRIEF
2711/22/2002 DISK - AEB
2812/09/2002 REPLY BRIEF
2912/09/2002 DISK - ryb
3012/17/2002 APPEARANCES: Chad R. McCabe; Ladd R. Erickson
3112/17/2002 ARGUED: McCabe; Erickson (Vol. Y; Page 70)
3212/17/2002 ORAL ARGUMENT WEBCAST
3303/05/2003 DISPOSITION: AFFIRMED
3403/05/2003 UNANIMOUS OPINION: Kapsner, Carol Ronning
3503/06/2003 Order/Judgment Mailed to Parties
3603/28/2003 MANDATE
3704/01/2003 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3807/29/2008 EXPUNGED - Nonpermanent record items destroyed

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