State v. McClary
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| 20030237 |
State of North Dakota, Plaintiff and Appellee
v.
Michael J. McClary, Defendant and Appellant
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| Appeal from: |
District Court,
South Central Judicial District,
Burleigh County
Judge Robert O. Wefald |
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Nature of Action: |
Misc. Statutory Offense (Felony)
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| Counsel: |
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| Term: |
03/2004 Argument: 03/31/2004 01:30pm
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| ND cite: |
2004 ND 98
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| NW cite: |
679 N.W.2d 455
Listen to recording of oral argument
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| Issues: |
Appellant's Statement of the Issues:
I. Whether the conviction for abuse or neglect of child should be reversed when the jury's verdict is legally inconsistent.
II. Whether it was obvious error for the trial court for failing to dismiss the abuse or neglect of child charge from the Information and instructing the jury on that count when the child undisputedly died due to shaken baby syndrome and a jury could
not reasonably acquit the Defendant of felony murder and convict the Defendant of the underlying felony abuse or neglect of child.
III. Whether there was sufficient evidence for the conviction of abuse or neglect of child when the State's entire case was based upon circumstantial evidence.
IV. Whether the trial court erred when it refused to question the jury about how it reached a guilty verdict on the abuse or neglect of child charge.
Appellee's Statement of the Issues:
I. Whether the jury's verdicts were legally inconsistent.
II. Whether the trial court erred by failing to dismiss the charge of Abuse or Neglect of a Child from the Information or by instructing the jury on such charge.
III. Whether the trial court properly denied McClary's North Dakota Rules of Criminal Procedure Rule 29 motion and his motion for new trial.
IV. Whether the trial court erred by not questioning the jury as to how it reached its verdicts.
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| 1 | | 08/13/2003 | |
NOTICE OF APPEAL: 08/06/2003 |
| 2 | | 08/13/2003 | |
ORDER FOR TRANSCRIPT FILED IN THE TRIAL COURT ON 8-6-03 |
| 3 | | 08/18/2003 | |
RETENTION OF RECORD ON APPEAL: 09/25/2003 |
| 4 | | 09/15/2003 | |
Cy of Ct. Reporter's Notice of Suspension of Preparation of TRA due to Nonpayment from Lois |
| 5 | | 09/15/2003 | |
Scharnhorst dated Sept. 12, 2003 |
| 6 | | 09/26/2003 | |
S.Ct. Not. of Dismissal/Failure to Proceed. RspDue: 10/06/2003 |
| 7 | | 09/30/2003 | |
Affidavit of Ralph A. Vinje dated 9-29-03 |
| 8 | | 10/20/2003 | |
NO ACTION TAKEN (MSN) |
| 9 | | 11/14/2003 | |
MOT. EXT/TIME TRANSCRIPT (titled Motion Requesting a Transcript and Briefing Schedule) |
| 10 | | 11/14/2003 | |
ACTION BY CLERK. Granted: 11/21/2003 |
| 11 | | 11/21/2003 | |
TRANSCRIPTS DATED May 27 - May 30, 2003 (4 Vol.), July 2, 2003, and July 29, 2003 |
| 12 | | 11/21/2003 | |
DISK - TRAs of May 27-30, 2003, July 2, 2003 & July 29, 2003 (e-mailed) |
| 13 | | 11/26/2003 | |
RECORD ON APPEAL and exhibits |
| 14 | | 12/31/2003 | |
APPELLANT BRIEF |
| 15 | | 12/31/2003 | |
APPELLANT APPENDIX |
| 16 | | 12/31/2003 | |
DISK - ATB |
| 17 | | 01/29/2004 | |
APPELLEE BRIEF |
| 18 | | 01/29/2004 | |
DISK - AEB |
| 19 | | 03/19/2004 | |
Request for Radio/TV Coverage (KXMB TV, with feed to KFYR TV, and Bismarck Tribune (e-mail)) |
| 20 | | 03/31/2004 | |
APPEARANCES: Paul H. Myerchin; Leann K. Bertsch |
| 21 | | 03/31/2004 | |
ARGUED: Myerchin; Bertsch (Vol. Y; Page 223) |
| 22 | | 03/31/2004 | |
ORAL ARGUMENT WEBCAST |
| 23 | | 05/05/2004 | |
DISPOSITION: AFFIRMED |
| 24 | | 05/05/2004 | |
UNANIMOUS OPINION: Neumann, William A. |
| 25 | | 05/07/2004 | |
Judgment Mailed to Parties |
| 26 | | 05/27/2004 | |
MANDATE |
| 27 | | 06/03/2004 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |
| 28 | | 11/17/2010 | |
EXPUNGED - Nonpermanent record items destroyed |