State v. Blunt

20090110 State of North Dakota, Plaintiff and Appellee
Charles Blunt, Defendant and Appellant

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Bruce A. Romanick
Nature of Action: Misc. Statutory Offense (Felony)
Appellant: Michael Ray Hoffman
Appellee: Cynthia Mae Feland , Asst. State's Attorney
Appellee: Lloyd Clayton Suhr , Asst. State's Attorney
Term: 10/2009   Argument: 10/21/2009
ND cite: 2010 ND 144
NW cite: 785 N.W.2d 909

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Did the trial court's granting of the Rule 29 motion on the grant money prohibit Blunt's further prosecution on Count I?
2: Did the trial court err in allowing the State to constructively amend Count I to include the allegations of Spencer sick leave and relocation expenses without a new preliminary hearing?
3: Is the culpable mental state for "disposes of, uses, or transfers any interest in property" in NDCC 12.1-23-07(1) "knowingly" or "willfully"?
4: Can the State aggregate amounts under NDCC 12.1-23-07 as it did in Count I to reach a class B felony level?
5: Is "committed pursuant to one scheme or course of conduct" contained in NDCC 12.1-23-05(6) an essential element of Misapplication of entrusted property under NDCC 12.1-23-07, which must be alleged in Count I, charged to the jury, and found by the jury beyond a reasonable doubt?
6: Was the State's allegation that Blunt "failed to collect relocation (moving) expenses from Dave Spencer" not proven as a matter of law?
7: Is there insufficient evidence as a matter of law to support the finding of guilt on Count I in that all of the expenditures in This case were within Blunt's discretion, reasonable and necessary and a benefit to WSI?
8: Was Blunt convicted on a burden of proof below that which is constitutionally required for beyond a reasonable doubt?

Appellee's Statement of the Issues:
I. Exclusion of evidence in not commensurate with an acquittal of the charge.
II. A preliminary hearing is a safety device to prevent detention without probable cause, not a discovery device.
III.The information properly charged Blunt with Misapplication of Entrusted Property
IV.The State's ability to aggregate the value of property for the purpose of determining the grade of offense applies to all of the provisions of N.D.C.C., Section 12.1-23.
V. Aggregation alone does not enhance "the seriousness of the offense" alleged.
VI.The State presented sufficient evidence for the jury to decide that Blunt failed to collect relocation (moving) expenses.
VII. The evidence is sufficient as a matter of law to support the finding of guilt on count I.
VIII.Blunt was not convicted on a burden of proof below that which is constitutionally required for beyond a reasonable doubt.

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Docket entries:
103/26/2009 NOTICE OF APPEAL: 03/10/2009
203/26/2009 ORDER FOR TRANSCRIPT: 03/10/2009
303/26/2009 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
404/16/2009 TRANSCRIPT DATED February 25, 2009 (Original and one copy) and Copies of Transcripts dated November
504/16/2009 3, 2008, December 11, 2008, December 12, 2008, December 15, 2008, December 16, 2008, December 17,
604/16/2009 2008, December 18, 2008, December 19, 2008 and Jury Trial Master Index of Dec. 15 - 19, 2008.
704/16/2009 (Originals are part of the Record on Appeal)
804/16/2009 DISK - Transcripts (10) e-mailed
904/28/2009 RECORD ON APPEAL (2 vols.) & Separates (Entry Nos. 18, 19, 55, 93, 98, 123, 124, 138-141 & 146).
1004/28/2009 Not sent with the ROA were Entry Nos. 44 & 119-121.
1205/22/2009 ACTION BY CLERK (MAT). Granted: 06/22/2009
1306/22/2009 APPELLANT BRIEF
1406/22/2009 Addendum to Appellant Brief attached to brief
1606/22/2009 DISK - ATB (e-mailed)
1707/23/2009 APPELLEE BRIEF
1907/23/2009 DISK - aeb (e-mailed)
2007/23/2009 Consent to Appearance of Gabrielle Goter and Christopher S. Pieske
2109/15/2009 SITTING WITH THE COURT: Smith, Kirk
2309/21/2009 Request for Radio/TV Coverage (KFYR TV; Bismarck Tribune; ND Public Radio) approved
2410/21/2009 APPEARANCES: Michael R. Hoffman/Cynthia M. Feland, Asst. State's Atty
2510/21/2009 ARGUED: Hoffman/Feland
2807/16/2010 SPLIT OPINION: Sandstrom, Dale V.
2907/16/2010 (CONCURRING AND DISSENTING): VandeWalle, Gerald W.: CON/DIS
3007/19/2010 Judgment Sent to Parties
3108/09/2010 MANDATE
3310/04/2010 Corrected/Substitute Opinion Page 11
3410/21/2010 Letter from U.S. Supreme Court RE: Pet/Writ/Certiorari was filed & placed on docket
3512/06/2010 Letter dated 11/29/10 from U.S. Supreme Court RE: Petition for Writ of Certiorari is denied.

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