State v. Clark

20110359 State of North Dakota, Plaintiff and Appellee
v.
Branden Thurman Clark, Defendant and Appellant

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Lawrence E. Jahnke
Nature of Action: Theft
Counsel:
Appellant: Blake Dylan Hankey
Appellee: Faye A. Jasmer , Asst. State's Attorney
Term: 05/2012   Argument: 05/14/2012  11:00am
ND cite: 2012 ND 135
NW cite: 818 N.W.2d 739

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Issues: Appellant's Statement of the Issues:
1. Whether the trial court erred (committed prejudicial and reversible error) by not allowing an additional jury instruction that Mr. Clark did honestly believe that he had a valid claim to the property.
2. Whether the trial court erred by instructing the jury on the elements of Theft of Property Delivered By Mistake.
3.Whether there is sufficient evidence of the Defendant's knowledge and intent in the record to support a conviction for the crime of Theft of Property.
4.Whether the trial court's imposing a sentence of eight (8) years in prison based on Mr. Clark being a habitual offender when Mr. Clark had originally received a sentence of four (4) years in prison in this case, was clearly erroneous and excessive.
5. Whether the trial court erred by admitting certain evidence that was not provided to the Defendant prior to trial thereby committing a Brady violation?
6. Whether the trial court's initial violation of due process caused severe prejudice and irreversible error by subjecting evidence to the usual risk of imprecision and distortion from the passage of time. 7. Whether the trial judge should have disqualified himself.
8. Whether Mr. Clark was denied his Eight Amendment Constitutional right to bail.
9. Whether the trial court improperly compelled Mr. Clark to surrender his Fifth Amendment right in order to negate an essential element of the case.
10. Whether prosecutorial vindictiveness existed in this case.
II. Whether Mr. Clark was denied his First, Fifth, Sixth, Eighth, and Fourteenth Amendment Constitutional rights to access the courts, when he was deprived of legal materials while awaiting retrial at the Grand Forks County Correctional Center.

Appellee's Statement of the Issues:
I. The trial court did not commit prejudicial and reversible error when it did not allow an additional jury instruction that Mr. Clark did honestly believe that he had a valid claim to the property.
II. The trial court did not err when it instructed the jury on the elements of Theft of Property Delivered by Mistake.
III. There is sufficient evidence of Mr. Clark's knowledge and intent in the record to support a conviction for the crime of Theft of Property.
IV. The trial court's imposition of a sentence of eight (8) years in prison based on Mr. Clark being a habitual offender was not erroneous or excessive.
V. The trial court did not commit a Brady violation when it admitted marked copes of sales invoices generated by Acme.

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Docket entries:
112/14/2011 NOTICE OF APPEAL: 12/14/2011
212/14/2011 ORDER FOR TRANSCRIPT: 12/14/2011
312/16/2011 STATEMENT
401/25/2012 TRANSCRIPT DATED 12/6/11 & C.O.S.
501/25/2012 DISK-TRA (12/6/11) E-MAILED
602/01/2012 Electronic RECORD ON APPEAL dated January 31, 2012 (entry nos.1-5,7,9,11-17,19,20,22-114,117-146)
702/01/2012 (not scanned nos.6,8,10,18,& 21)(deleted nos.115,116 & 147)
802/02/2012 1st Electronic SUPPLEMENTAL RECORD ON APPEAL dated February 1, 2012 (entry nos. 148 & 149)
902/24/2012 MOT. EXT/TIME TRANSCRIPT (by Clark, pro se)
1002/24/2012 NO ACTION TAKEN
1103/05/2012 APPELLANT BRIEF(pdf)
1203/05/2012 E-FILED BRIEF
1303/05/2012 APPELLANT APPENDIX
1403/05/2012 E-FILED APPENDIX
1503/05/2012 Received $25 surcharge for ATB (receipt #20914)
1603/08/2012 Supplemental Order for Transcript
1703/09/2012 2nd Electronic SUPPLEMENTAL RECORD ON APPEAL dated March 8, 2012 (ENTRY NOS. 150 - 152)
1803/19/2012 Received 7 copies of ATB from Central Duplicating
1903/19/2012 Received 6 copies of ATA from Central Duplicating
2003/23/2012 ELEC. THIRD SUPPLEMENTAL RECORD ON APPEAL (ENTRY NOS.153-156)
2103/23/2012 Second Supplemental Order for Transcript filed by Appellant Branden T. Clark
2204/03/2012 MOT. EXT/TIME TRANSCRIPT
2304/03/2012 ACTION BY CLERK. Granted: 04/13/2012
2404/04/2012 APPELLEE BRIEF
2504/04/2012 E-FILED BRIEF (aeb)
2604/04/2012 APPELLEE APPENDIX
2704/04/2012 E-FILED APPENDIX (aea)
2804/09/2012 Received $25.00 surcharge for AEB (Receipt # 20959)
2904/09/2012 Received Consent to Appearance Under the Senior Practice Rule for Heather Harris
3004/10/2012 ELEC. FOURTH SUPPLEMENTAL RECORD ON APPEAL (ENTRY NOS.157-158) dated April 9, 2012
3104/11/2012 NOTICE OF ORAL ARGUMENT SENT
3204/11/2012 Received Affidavit of Service for ATB & ATA for Mr. Clark
3304/11/2012 SUPPLEMENTAL BRIEF OF INDIGENT DEFENDANT UNDER RULE 24
3404/11/2012 E-FILED BRIEF (supplemental brief of indigent defendant)
3504/13/2012 Receved 7 copies of ATB from Central Duplicating
3604/13/2012 Received 6 copies of AEB from Central Duplicating (pdf)
3704/17/2012 Received 7 copies of Supplemental Brief of Indigent Defendant from Central Duplicating
3804/19/2012 MOTION FOR Additional Transcripts ("Show Cause") - referred to the Court for whatever consideration
3904/19/2012 the Court deems appropriate
4004/20/2012 TRANSCRIPT DATED DECEMBER 9, 2011, & C.O.S.
4104/20/2012 DISK-TRA (12/9/11) E-MAILED
4204/26/2012 THIRD SUPPLEMENTAL ORDER FOR TRANSCRIPT (9/21/11, 10/26/11, 11/2/11) & AFFIDAVIT OF SERVICE
4304/26/2012 ELEC. SUPPLEMENTAL RECORD ON APPEAL DATED 4/20/12 (ENTRY NOS. 159-160 )
4404/26/2012 ELEC. SUPPLEMENTAL RECORD ON APPEAL DATED APRIL 26, 2012 (ENTRY NOS.161-163)
4505/04/2012 Order by tr ct dated 5/3/12 denying 3rd Supp Order for Tra (9/21/11, 10/26/11 & 11/2/11)
4605/04/2012 ELEC. SUPPLEMENTAL RECORD ON APPEAL DATED 5/4/12 (ENTRY NOS.164-165)
4705/14/2012 APPEARANCES: Blake D. Hankey; Faye A. Jasmer
4805/14/2012 ARGUED: Blake D. Hankey; Faye A. Jasmer
4905/14/2012 ORAL ARGUMENT WEBCAST
5007/12/2012 DISPOSITION: AFFIRMED
5107/12/2012 UNANIMOUS OPINION: Crothers, Daniel John
5207/12/2012 NO ACTION TAKEN (MOTION FOR Additional Transcripts ("Show Cause"))
5307/13/2012 Judgment Sent to Parties
5407/26/2012 PETITION FOR REHEARING (PDF)
5507/26/2012 E-FILED BRIEF (PDF)
5607/30/2012 Received 7 copies of PER from Central Duplicating
5708/16/2012 ACTION BY SUPREME COURT. Denied
5808/24/2012 MANDATE
5908/28/2012 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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