State v. Austin

20060022 State of North Dakota, Plaintiff and Appellee
v.
Shawn David Austin, Defendant and Appellant

Appeal from: District Court, South Central Judicial District, McLean County
Judge Donald L. Jorgensen
Nature of Action: Sexual Offense
Counsel:
Appellant: Benjamin C. Pulkrabek
Appellee: Ladd Ronald Erickson , State's Attorney
Term: 12/2006   Argument: 12/18/2006  9:30am
ND cite: 2007 ND 30
NW cite: 727 N.W.2d 790

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Did the trial judge err when he excluded the testimony of Appellant, Shawn Austin's psychological expert?
II. Did the trial judge err when he informed the jury, "That's all the transcripts and reading you'll receive"?
III. Did the trial judge err when he informed the jury, "There is no physical evidence; accordingly I don't want to waste your time or anyone else's if you are at an impasse"?
IV. Was there evidence and testimony sufficient to find Mr. Austin guilty of the criminal charge of gross sexual imposition?
POST CONVICTION ISSUE:
V. Was Mr. Austin's trial counsel ineffective, and with effective assistance of counsel, would the result of the trial been different?

Appellee's Statement of the Issues:
I. Did the trial court properly prohibit the defendant's psychological witness from testifying that the defendant only had an eleven percent (11%) chance of sexually molesting again?
II. Whether the trial court committed error when after the jury received all the requested testimony in their entirety they were told "that's all the transcripts and reading you'll receive"?
III. Whether the trial court committed error when it checked with the jury on the status of the deliberations?
IV. Whether sufficient evidence existed to support the jury's verdict of guilty?
V. Whether the defendant's trial attorney was constitutionally ineffective, and whether any issues relating to ineffectiveness would have made for a different result at trial?

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Docket entries:
101/20/2006 NOTICE OF APPEAL: 01/18/2006
201/20/2006 ORDER FOR TRANSCRIPT: 01/18/2006
301/24/2006 Acknowledgement of Order for Transcripts
401/24/2006 RETENTION OF RECORD ON APPEAL: 03/09/2006
503/08/2006 TRANSCRIPTS DATED June 30, 2005, August 15, 2005, September 1, 2005, October 13-14, 2005,
603/08/2006 and December 28, 2005
703/08/2006 DISK - Disks of TRAs (6-30-05, 9-1-05, 10-13&14-05, 12-28-05)
803/10/2006 RECORD ON APPEAL, incl. Presentence Investigation, TRA dated 4-06-05), Not rec'd were:
903/10/2006 Clerk's Cert. Nos. 39 (State's Ex. 5-VCR Tape); 46 (State's Ex. 5-VCR Tape); 47 (Def. Ex. 4 & 6-
1003/10/2006 2 CD Tapes); 48 (Def. ex. 2-Large Tagboard/pg. 23 of Preliminary Hearing)
1104/07/2006 Corrected cover page & page 2 for the Transcript original dated 8-12-05 but now dated 8-15-05
1204/07/2006 DISK - tra (8-15-05)
1304/07/2006 Transcript dated 8-12-05
1404/07/2006 DISK - tra (8-12-05)
1504/11/2006 MOTION TO STAY APPEAL
1604/11/2006 E-FILED MOTION
1704/11/2006 ACTION BY CHIEF JUSTICE (Mot/Stay/Appeal). Granted
1804/11/2006 STAY PENDING disposition of post-conviction relief proceedings
1905/25/2006 Substitution of Counsel - Benjamin C. Pulkrabek replaced Todd Schwarz as counsel for AT
2006/30/2006 Supplemental Clerk's Certificate dated 6-29-06 (Entry Nos. 68-76)
2107/07/2006 MOT. EXT/TIME TRANSCRIPT - reset due to appeal in 20060194 re post-conviction relief. Granted: 08/25/2006
2207/07/2006 ACTION BY CLERK (MTR). Granted: 08/25/2006
2308/07/2006 TRANSCRIPT DATED May 30, 2006
2408/08/2006 DISK - tra (5-30-06)
2508/23/2006 Supplemental Clerk's Certificate dated 8-22-06 (Entry Nos. 80-85) (Not rec'd: Nos. 77-79)
2609/13/2006 APPELLANT BRIEF
2709/13/2006 APPELLANT APPENDIX
2809/18/2006 Supplemental Clerk's Certificate dated 9-15-06 (Entry Nos. 77-79)
2909/20/2006 DISK - ATB
3010/12/2006 MOT. EXT/TIME APPELLEE BRIEF
3110/12/2006 E-FILED MOTION (MAE)
3210/13/2006 ACTION BY CLERK (MAE) (Granted w/understanding OA in December). Granted: 11/16/2006
3311/16/2006 APPELLEE BRIEF
3411/17/2006 DISK - AEB
3512/18/2006 APPEARANCES: Benjamin C. Pulkrabek; Ladd R. Erickson
3612/18/2006 ARGUED: Pulkrabek; Erickson
3712/18/2006 ORAL ARGUMENT WEBCAST
3802/28/2007 DISPOSITION: AFFIRMED
3902/28/2007 UNANIMOUS OPINION: Sandstrom, Dale V.
4003/01/2007 Judgment Mailed to Parties
4103/12/2007 PETITION FOR REHEARING
4203/12/2007 DISK - PER
4303/22/2007 ACTION BY SUPREME COURT. Denied
4404/02/2007 MANDATE
4504/04/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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