State v. Johnson

20070248 State of North Dakota, Plaintiff and Appellee
Steven Lennard Johnson, Defendant and Appellant

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Joel D. Medd
Nature of Action: Sexual Offense
Appellee: Peter David Welte , State's Attorney
Appellant: Benjamin C. Pulkrabek
Term: 04/2009   Argument: 04/06/2009  2:45pm
ND cite: 2009 ND 76
NW cite: 764 N.W.2d 696

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Issues: Appellant's Statement of the Issues:
I.Was the trial court's failure to instruct the jury on the affirmative defense of mistake in law, and defense's on the burden of proof, obvious error that affected Defendant-Appellant's substantial rights?
II.Should this case be remanded for new trial because the prosecutor, in closing argument, referred to Defendant-Appellant's constitutional right to remain silent?
III.Did the trial court err when it denied Defendant-Appellant's motion of a new trial?
IV.Was there evidence sufficient to convict Defendant-Appellant of the offense charged?

Appellee's Statement of the Issues:
I. Whether the district court erred when it excluded jury instructions.
II. Whether the state's attorney impermissibly commented on the defendant's failure to testify.
III. Whether the district court abused its discretion when it denied the defendant's motion for a new trial.
IV. Whether sufficient evidence was presented to convict the defendant of failure to register as a sex offender.

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Docket entries:
108/27/2007 NOTICE OF APPEAL: 08/23/2007
208/27/2007 ORDER FOR TRANSCRIPT: 08/23/2007
308/30/2007 Notice of Substitution of Counsel (Trent W. Mahler replaces Larry J. Richards)
409/04/2007 RETENTION OF RECORD ON APPEAL: 12/17/2007
509/05/2007 Reset due date for Appellant's Brief (trial court has denied transcripts at public expense)
609/05/2007 ACTION BY CLERK. Granted
810/01/2007 ACTION BY CLERK (MAT). Granted
910/19/2007 Reset due date for trans. (trial court granted motion to provide trans. at public expense)
1010/19/2007 ACTION BY CLERK (reset due date for transcripts). Granted: 11/28/2007
1110/19/2007 Reset due date for ATB because transcript will be prepared at public expense
1210/19/2007 ACTION BY CLERK (reset due date of ATB to 40 days after transcript is filed). Granted
1311/07/2007 Transcript dated 2-23-07
1411/08/2007 Certificate of Service of 2-23-07 transcript
1511/08/2007 DISK - tra (2-23-07)
1611/27/2007 TRANSCRIPTS DATED January 23, 2007 & August 21, 2007 (2 volumes)
1711/28/2007 Certificates of Service of 1-23-07 & 8-21-07 Transcripts
1811/28/2007 DISK - tra (1-23-07 & 8-21-07)
1912/27/2007 Notification from Commission on Legal Counsel for Indigents that Benjamin C. Pulkrabek is replacing
2012/27/2007 Trent Mahler as attorney on the appeal (Fax dated 12-27-07)
2112/27/2007 MOT. EXT/TIME APPELLANT BRIEF (Reset date for ATB due to assignment of new counsel)
2212/27/2007 ACTION BY CLERK (reset due date for Appellant's Brief). Granted: 02/05/2008
2312/28/2007 RECORD ON APPEAL (2 Vols.) and separates including PSI. Not sent were Nos. 6, 16, 17, 44, (Digital
2412/28/2007 Recording); Nos. 26, 54, 79, 80, 85, 88, 103, 118, (Steno Notes); No. 45 (Addressed Motion to
2512/28/2007 Withdraw as Counsel); Nos. 7 & 24 were listed as Error.
2601/30/2008 APPELLANT BRIEF
2801/30/2008 DISK-ATB (Electronic)
3002/29/2008 ACTION BY CLERK (MAE). Granted: 03/31/2008
3103/07/2008 MOTION For Remand (in conjunction with motion in 20080013)
3203/07/2008 ACTION BY CHIEF JUSTICE. Granted
3303/07/2008 ORDER OF REMAND
3509/26/2008 ROA RE-FILED AFTER REMAND (2 VOL.) & SEPARATES (ENTRY NOS. 1, 4, 49, 109, 132 & 149-152).
3609/26/2008 NOT REC'D W/ROA WERE ENTRY NOS. 6, 7, 16, 17, 24, 26, 44, 45, 54, 79, 80, 85, 88, 103, 118, 134,
3709/26/2008 160, 161, 164 AND 169.
3810/31/2008 Reset due date of AEB, due to consolidation w/ 20080013 and that ATB due date of 12/05/2008
3910/31/2008 Reset due date of AEB (30 days after filing of ATB, which is due December 5, 2008). Granted
4002/12/2009 Reset due date of AEB due to dismissal of 20080013
4102/13/2009 Reset due date of AEB due to dismissal of 20080013. Granted: 03/16/2009
4203/13/2009 APPELLEE BRIEF
4303/13/2009 E-FILED BRIEF - AEB
4403/16/2009 Affidavit of Service of AEB to Pulkrabek
4503/16/2009 Consent to Appearance under Senior Practice Rule for Christopher S. Pieske
4603/16/2009 Received $25 surcharge for AEB (Receipt No. 18759)
4703/20/2009 Received 7 copies of AEB from Central Duplicating
4803/26/2009 Motion to waive oral argument on behalf of the Appellee
4903/26/2009 E-FILED MOTION (Motion to waive oral argument on behalf of the Appellee)
5003/27/2009 ACTION BY SUPREME COURT (Motion to waive oral argument on behalf of Appellee). Granted
5104/06/2009 APPEARANCES: Benjamin C. Pulkrabek/Waived under N.D.R.App.P. 34(f)
5204/06/2009 ARGUED: Pulkrabek/waived
5504/30/2009 UNANIMOUS OPINION: VandeWalle, Gerald W.
5604/30/2009 (CONCUR IN THE RESULT): Maring, Mary Muehlen: CON/RES
5705/04/2009 Judgment Mailed to Parties
5805/26/2009 MANDATE

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