State v. McClary
State of North Dakota, Plaintiff and Appellee
Michael J. McClary, Defendant and Appellant
South Central Judicial District,
Judge Robert O. Wefald
|Nature of Action:||Misc. Statutory Offense (Felony)|
|Term:||03/2004  Argument: 03/31/2004|
|ND cite:||2004 ND 98|
679 N.W.2d 455
Listen to recording of oral argument in MP3 format
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|
|27||06/03/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|28||11/17/2010 EXPUNGED - Nonpermanent record items destroyed|