State v. Gomez

20100100 State of North Dakota, Plaintiff and Appellee
v.
Ciro Gomez, Defendant and Appellant

Appeal from: District Court, Northeast Judicial District, Walsh County
Judge M. Richard Geiger
Nature of Action: Sexual Offense
Counsel:
Appellant: Kent M. Morrow
Appellee: Barbara L. Whelan , State's Attorney
Term: 11/2010   Argument: 11/29/2010  1:30pm
ND cite: 2011 ND 29
NW cite: 793 N.W.2d 451

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Issues: Appellant's Statement of the Issues:
The trial court erred when it failed to issue a special verdict form pursuant to N.D.Cent.Code 12.1-20-03.1(2).
There was insufficient evidence to support the guilty verdict.
The trial court erred when it refused to consider Gomez's challenge to the ethnic and racial makeup of the jury panel and jury.
The sentence imposed by the Court violates the Eighth Amendment prohibition against cruel and unusual punishment by being disproportionate to the crime.

Appellee's Statement of the Issues:
When the defendant has already stipulated that he was at least twenty-two years of age at the time of the offense, N.D.C.C.  12.1-20-03.1(2) does not require a special verdict form nor any special interrogatories as to the elements of the offense, and consequently there was no error when a general verdict form was submitted to the jury in this case.
There was more than ample evidence to support the jury's verdict of "guilty" in this case.
The Defendant neither properly presented nor preserved his challenge to the ethnic/racial makeup of the jury panel, and consequently there was no error in the seating of the jury.
The sentence imposed by the District Court was within the statutory guidelines and did not violate the Eighth Amendment of the United States Constitution.

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Docket entries:
103/30/2010 NOTICE OF APPEAL: 03/30/2010
203/30/2010 ORDER FOR TRANSCRIPT: 03/30/2010
304/01/2010 ACKNOWLEDGMENT OF OTR & RETENTION OF RECORD ON APPEAL: 05/19/2010
404/06/2010 Notice of Assignment of Kent M. Morrow to replace Gretchen Handy as counsel for AT
504/27/2010 RECORD ON APPEAL and Separates
605/18/2010 MOT. EXT/TIME TRANSCRIPT
705/18/2010 ACTION BY TRIAL COURT (MTR). Granted: 05/31/2010
805/24/2010 Supplemental Clerk's Certificate of Record dated May 20, 2010 (Entry Nos. 158-160).
905/26/2010 TRANSCRIPTS DATED 1/6/09 & 2/11/09, 4/21/09, 8/31/09, 9/8/09, 10/23/09, 10/27/09, 10/28/09,
1005/26/2010 10/29/09, 10/30/09, 3/16/10 AND C.O.S.
1105/27/2010 DISK-TRA (1/6/09 & 2/11/09, 4/21/09, 8/31/09, 9/8/09, 10/23/09, 10/27/09, 10/28/09,
1205/27/2010 10/29/09 & 10/30/09 (e-mailed)
1306/01/2010 DISK-TRA (3/16/10) E-MAILED
1406/28/2010 MOT. EXT/TIME APPELLANT BRIEF (e-filed)
1506/28/2010 E-FILED MOTION (MAT)
1606/29/2010 ACTION BY CLERK (MAT). Granted: 08/04/2010
1708/04/2010 APPELLANT BRIEF (e-filed)
1808/04/2010 E-FILED BRIEF (ATB)
1908/04/2010 APPELLANT APPENDIX (e-filed)
2008/04/2010 E-FILED APPENDIX (ATA)
2108/05/2010 Received surcharge for ATB (Receipt #19756)
2208/10/2010 Received 7 copies of ATB from CSD
2308/10/2010 Received 6 copies of ATA from CSD
2408/30/2010 MOT. EXT/TIME APPELLEE BRIEF
2508/30/2010 ACTION BY CLERK. Granted: 09/28/2010
2609/28/2010 APPELLEE BRIEF & Addendum (e-filed) (PDF)
2709/28/2010 E-FILED BRIEF (AEB) (PDF)
2809/30/2010 Received $25 surcharge for AEB (Receipt #19989)
2909/30/2010 Received 7 copies of AEB from CSD
3010/18/2010 NOTICE OF ORAL ARGUMENT SENT
3111/29/2010 APPEARANCES: Kent M. Morrow; Barbara L. Whelan
3211/29/2010 ARGUED: Kent M. Morrow; Barbara L. Whelan
3311/29/2010 ORAL ARGUMENT WEBCAST
3402/08/2011 DISPOSITION: AFFIRMED
3502/08/2011 UNANIMOUS OPINION: Crothers, Daniel John
3602/09/2011 Corrected/Substitute Opinion Page 7
3702/09/2011 Judgment Sent to Parties
3803/02/2011 MANDATE
3903/08/2011 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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