State v. Foreid

20080128 State of North Dakota, Plaintiff and Appellee
v.
Derek Lynn Foreid, Defendant and Appellant

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Douglas L. Mattson
Nature of Action: Sexual Offense
Counsel:
Appellant: Robert Wade Martin
Appellee: Rozanna Christine Larson , Asst. State's Attorney
Term: 12/2008   Argument: 12/01/2008  1:45pm
ND cite: 2009 ND 41
NW cite: 763 N.W.2d 475

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
[1]Whether the lower court's leave to amend the information herein, over the objection of the Appellant, was a fatal flaw ab initio to the continued prosecution of the Appellant and his ultimate conviction of a Class AA Felony, when the preliminary hearing was held on this matter and evidence adduced against the Appellant on a Class A Felony, to which the Appellant entered a formal plea of not guilty?
[2] Whether the lower court erred in not giving the Appellant's requested jury instruction regarding a lesser included offense of sexual assault in the instant case?

Appellee's Statement of the Issues:
I. The District Court did not err in granting the State's motion to amend the Information.
II. The District court did not err in denying the defendant's request for a lesser included instruction.

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Docket entries:
105/30/2008 NOTICE OF APPEAL: 05/29/2008
205/30/2008 ORDER FOR TRANSCRIPT: 05/29/2008
306/04/2008 Acknowledgment of order for transcripts by Renee Hermanson
406/04/2008 RETENTION OF RECORD ON APPEAL: 07/18/2008
506/30/2008 RECORD ON APPEAL (2 vols.), Exhibits & Transcript dated 11-9-06 (Not rec'd: Nos. 62(Exh.1-Jeans);
606/30/2008 63 (Exh. 2--underwear); 64 (Exh. 3--Shirt); 65 (Exh. 4--Sports Bra); & 66 (Evidence Bags)
707/03/2008 E-mail request from clerk's office to return record & exhibits
807/03/2008 ACTION BY CHIEF DEPUTY CLERK (Req/Return/ROA). Granted
907/03/2008 RETURN OF ROA TO DIST. CT.: 08/27/2008
1007/10/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
1107/11/2008 MOT. EXT/TIME TRANSCRIPT
1207/11/2008 ACTION BY TRIAL COURT (MTR). Granted: 08/27/2008
1308/15/2008 Transcript dated December 20, 2006
1408/15/2008 DISK - tra 12-20-06
1508/19/2008 TRANSCRIPTS DATED DECEMBER 10-13,2007 (VOLS. I-III)
1608/19/2008 DISK - TRA (12/10-13/07) (e-mailed)
1708/20/2008 Certificate of Service of TRA
1808/21/2008 RE-FILED RECORD ON APPEAL (2 VOLUMES) AND SEPARATES (ENTRY NOS. 25, 67-76, & 93).
1908/21/2008 NOT REC'D W/ROA WERE ENTRY IN ERROR (ENTRY NO. 33) AND EXHIBITS (ENTRY NOS. 62-66).
2009/29/2008 MOT. EXT/TIME APPELLANT BRIEF
2109/29/2008 ACTION BY Chief Deputy Clerk. Granted: 10/01/2008
2209/30/2008 APPELLANT APPENDIX (E-filed)
2309/30/2008 E-FILED APPENDIX (ATA)
2410/01/2008 APPELLANT BRIEF (e-filed) (PDF)
2510/01/2008 E-FILED BRIEF (ATB) (pdf)
2610/06/2008 Received copies of ATB from Central Duplicating Services
2710/06/2008 Received copies of ATA from Central Duplicating Services
2810/07/2008 Received surcharge. See Journal No. 0000697465
2910/29/2008 APPELLEE BRIEF
3010/29/2008 APPELLEE APPENDIX
3110/30/2008 DISK - AEB (CD)
3210/30/2008 Corrected Affidavit of Service by Mail of AEB
3312/01/2008 APPEARANCES: Robert W. Martin; Rozanna C. Larson
3412/01/2008 ARGUED: Martin; Larson
3512/01/2008 ORAL ARGUMENT WEBCAST
3604/02/2009 DISPOSITION: AFFIRMED
3704/02/2009 UNANIMOUS OPINION: Sandstrom, Dale V.
3804/06/2009 Judgment E-Mailed to Parties
3904/24/2009 MANDATE
4005/08/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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