State v. Ness

20090046 State of North Dakota, Plaintiff and Appellee
v.
Thomas Paul Ness, Defendant and Appellant

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Sonna M. Anderson
Nature of Action: Misc. Statutory Off. (Misdemeanor)
Counsel:
Appellant: Paul Henry Myerchin
Appellee: Bryan David Denham , Asst. State's Attorney
Term: 09/2009   Argument: 09/01/2009  1:30pm
ND cite: 2009 ND 182
NW cite: 774 N.W.2d 254

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Issues: Appellant's Statement of the Issues:
I. Whether the trial court committed error when it failed to dismiss the citation of Failing to Tag a White Tail Doe After it was Killed against Tom Ness' (Ness), despite it being unconstitutionally vague.
II. Whether the trial court committed error when it failed to grant Ness' Rule 29, N.D.R.Crim.P., Motion for Judgment of Acquittal, despite the State failing to bring forth sufficient evidence as to a critical element of the offense, namely the definition or meaning of "immediately" in the Governor's 2007 Deer Hunting Proclamation.
III. Whether the trial court committed error when it failed to give Ness' requested Affirmative Defense Jury Instruction, Defendant's Requested Instruction No. 9.
IV. Whether the trial court committed error when it failed to give Ness' requested Excuse Jury Instructions, Defendant's Requested Instructions Nos. 3 and 4.
V. Whether the trial court committed error when it never allowed Ness his constitutional right to confront witnesses by ruling in pretrial that he could not cross examine the sole prosecution witness as to biases, prejudices, or ulterior motives.
VI. Whether the trial court committed error when it never allowed Ness his constitutional right to confront witnesses by precluding Ness the opportunity to cross examine the sole prosecution witness on the "immediate tagging" requirements, despite the trial court allowing the State the opportunity to elicit such testimony from its sole prosecution witness.
VII. Whether the trial court committed error when it failed to grant a mistrial after a juror indicated during deliberations that he was indirectly familiar with Ness' property.

Appellee's Statement of the Issues:
I. The Honorable Sonna M. Anderson did not err in her ruling that the Appellant could not cross examine District Game Warden Jackie Lundstrom as to her relationship with Bruce Burkett and the fact that the Appellant was a licensed Outfitter.
II. The Appellant waived his right to appeal the issue of whether or not the Governor's Proclamation was unconstitutionally vague.
III. The Appellant was not entitled to a jury instruction as to innocence or mistake.
IV. There is sufficient evidence to support the conviction of the Appellant
. V. The admission by the juror was not a fundamental defect in the proceedings.

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Docket entries:
102/03/2009 NOTICE OF APPEAL: 01/30/2009
202/03/2009 ORDER FOR TRANSCRIPT: 01/30/2009
303/23/2009 TRANSCRIPT DATED January 7, 2009
403/23/2009 DISK - tra (1-7-09)
503/26/2009 RECORD ON APPEAL - includes separate entry nos. 30, 31 (exhibits), & 33
605/01/2009 APPELLANT BRIEF
705/01/2009 APPELLANT APPENDIX
805/01/2009 DISK of ATB (e-mailed)
905/29/2009 APPELLEE BRIEF
1005/29/2009 DISK - AEB (e-mailed)
1105/29/2009 APPELLEE APPENDIX
1206/12/2009 REPLY BRIEF
1306/12/2009 DISK-ryb (e-mailed)
1407/23/2009 NOTICE OF ORAL ARGUMENT MAILED
1507/29/2009 Supplemental Clerk's Certificate dated 7/28/09 (Entry Nos. 42 - 44)
1608/29/2009 ANNOUNCED DISQUALIFICATION: Sandstrom, Dale V.
1708/31/2009 SITTING WITH THE COURT: Graff, Benny A.
1809/01/2009 APPEARANCES: Paul H. Myerchin/Bryan D. Denham, Asst. State's Attny.
1909/01/2009 ARGUED: Myerchin/Denham
2009/01/2009 ORAL ARGUMENT WEBCAST
2110/15/2009 DISPOSITION: AFFIRMED
2210/15/2009 UNANIMOUS OPINION: Maring, Mary Muehlen
2310/19/2009 Judgment Sent to Parties
2411/09/2009 MANDATE
2511/12/2009 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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