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State v. Tompkins

Docket No. 20220270
Oral Argument: Friday, February 24, 2023 2:45 PM

Docket Info

Title
State of North Dakota, Plaintiff and Appellee
v.
Brandon Todd Tompkins, Defendant and Appellant
Case Type
CRIMINAL APPEAL : DUI/DUS
Appeal From
Case No. 2022-CR-00145
Southeast Judicial District, Stutsman County
Troy J. LeFevre
Oral Argument 2/24/2023

Parties' Statement of Issues

  • Appellant

    Verdicts in a criminal case must be unanimous. Unanimity requires all jurors to agree that the defendant committed the same criminal act. Here, the jury instructions provided by the district court allowed the jury to convict Appellant if he committed either the act of: (1) being under the influence of an intoxicating liquor; or (2) refusing a chemical test requested by law enforcement. Did allowing the jury to convict Appellant without unanimously agreeing Appellant committed a singular criminal act violate Appellant’s right to a unanimous criminal verdict?

  • Appellee 1

    1. Whether Tompkins’ failure to submit specific proposed instructions and proposed verdict forms beyond his routine requests for pattern instructions failed to thoroughly preserve his objections for appeal and left his objections to be reviewed for plain error.
    2. Whether N.D.C.C. subsection 39-08-01(1)(e) refusal to submit to a chemical test is a separate offense or an alternate means of committing DUI or APC.
    3. Whether the jury instructions as a whole correctly and adequately informed the jury of the applicable law, when the trial court did not give separate elements instructions or separate verdict forms for either refusal DUI or refusal APC.


Summary

Brandon Tompkins appeals his convictions for driving under the influence and actual physical control. On appeal, Tompkins argues the district court provided the jury with incorrect jury instructions that allowed Tompkins to be found guilty without the jury unanimously agreeing Tompkins committed a singular criminal act.


Briefs

Filing Date Description
12/12/2022 APPELLANT BRIEF View
01/08/2023 APPELLEE BRIEF View
01/11/2023 REPLY BRIEF View

Counsel

Party Type Name
APPELLANT PRIVATE PRACTICE Drew James Hushka - 08230
APPELLANT PRIVATE PRACTICE Luke Thomas Heck - 08133
APPELLEE STATE'S ATTORNEY Frederick Russell Fremgen - 04875

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 09/14/2022 NOTICE OF APPEAL : 09/14/2022 View
2 09/14/2022 ORDER FOR TRANSCRIPT : 09/16/2022 View
3 09/15/2022 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV. View
4 09/15/2022 Notice Served on Luke T. Heck & Fredrick R. Fremgen
5 09/15/2022 ANNOUNCED DISQUALIFICATION : VandeWalle, Gerald W.
6 10/10/2022 ELEC. RECORD ON APPEAL DATED OCTOBER 7, 2022 (ENTRY NOS.1-53, 55-83)(NOT ELEC. #54 EXHIBIT) View
7 10/11/2022 AMENDED ELEC. REC. ON APPEAL DATED OCTOBER 10, 2022 (ENTRY NOS.1-53, 55-85; NOT SENT: 54) View
8 10/11/2022 MOTION FOR STAY BY APPELLANT View
9 10/13/2022 ACTION BY CHIEF JUSTICE - Denied
10 11/14/2022 All Transcripts Filed in Record
11 11/14/2022 1ST ELEC. SUPP. RECORD ON APPEAL DATED NOVEMBER 14, 2022 (ENTRY NOS. 86-89) View
12 12/12/2022 APPELLANT BRIEF View
13 12/12/2022 Oral Argument Request by Appellant
14 12/15/2022 Rec'd 3 copies of ATB from CSD
15 01/08/2023 APPELLEE BRIEF View
16 01/08/2023 Oral Argument Request by Appellee
17 01/09/2023 2ND ELEC. SUPP. RECORD ON APPEAL DATED JANUARY 6, 2023 (ENTRY NOS. 90-91) View
18 01/09/2023 Rec'd 3 copies of AEB from CSD
19 01/10/2023 Non-compliant RYB rec'd; given until 1/16/22
20 01/11/2023 Rec'd compliant RYB
21 01/11/2023 REPLY BRIEF View
22 01/13/2023 Rec'd 3 copies of RYB from CSD
23 01/24/2023 NOTICE OF ORAL ARGUMENT SENT
24 01/26/2023 3RD ELEC. SUPP. RECORD ON APPEAL DATED JANUARY 24, 2023 (ENTRY NOS. 92-93)
25 02/22/2023 AMENDED NOTICE OF ORAL ARGUMENT SENT (ZOOM)
26 02/24/2023 APPEARANCES: Drew J. Hushka & Fredrick R. Fremgen
27 02/24/2023 ARGUED: Drew J. Hushka & Fredrick R. Fremgen
28 02/24/2023 ORAL ARGUMENT WEBCAST