State v. Jones
| Decision Date | 04 December 1996 |
| Docket Number | No. 960092,960092 |
| Citation | 557 N.W.2d 375 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Jay Armstrong JONES, Defendant and Appellant. Criminal |
| Court | North Dakota Supreme Court |
M. Kelly Clark, of Clark & Dusek, Grand Forks, for defendant and appellant; Caroline A. Clark, out-of-state counsel, on brief.
Warren D. Johnson, Jr., Assistant State's Attorney, Grand Forks, for plaintiff and appellee; argued by Paul Emerson, third-year law student.
Jones appeals from a terrorizing conviction under N.D.C.C. § 12.1-17-04(1). He argues the trial court erred by improperly allowing the State to reopen its case after it had rested, and by denying his motion for a judgment of acquittal. In addition, Jones argues the State's remarks during closing argument constituted reversible error. We affirm.
On July 3, 1995, Brent Braun hosted a party at his apartment in Grand Forks. Late that evening, guests at the party noticed a red 1984 Buick Skyhawk parked in the apartment complex parking lot. Concerned that the individuals in the Skyhawk might burglarize cars in the lot, the guests told them to leave the area. After an exchange of words, the individuals in the Skyhawk left the area. Later, the Skyhawk returned to the parking lot accompanied by a red Chevy S-10 pickup. Three individuals exited the vehicles and entered the apartment complex. Uninvited, the individuals entered the party and began to verbally abuse the guests. One of the individuals produced a gun, pointed it at Braun, and threatened to kill him if he did not get off the phone.
Braun called the Grand Forks police department. When the officers arrived, many of the guests were standing outside the apartment complex, and Braun was yelling from his third floor balcony stating a person inside his apartment had a gun. The officers entered the complex to apprehend the suspect with the gun. The suspect had fled the scene and could not be found. The officers, however, uncovered several .22 caliber shells in the laundry room garbage.
Jay Jones was named as the individual who had produced the gun. Jones' identification was subsequently confirmed by various witnesses from a photo lineup. The Grand Forks Police Department apprehended Jones and charged him with terrorizing.
On November 29, 1994, a trial was held. During the trial, the State called two members of the Grand Forks Police Department and three witnesses who were at the party and saw Jones produce a gun and threaten Braun. The State rested its case without calling Braun to testify. Jones moved for a judgment of acquittal based on insufficient evidence. The court denied Jones' motion. Believing the State had failed to prove its case, Jones also rested, without presenting evidence. The trial court informed the jury that all the evidence had been presented, and it scheduled closing arguments for the following morning.
The following morning, before closing arguments began, the State asked to call Braun to testify. Jones objected. The court determined the State could call its witness, and that Jones could reopen his case that afternoon if he desired. Jones moved for a mistrial arguing the trial court's decision to allow the State to reopen its case prejudiced him. The court denied his motion. After Braun testified, Jones called one witness who testified Jones did not have a gun on the evening in question. The jury returned a verdict of guilty. Jones appeals.
Jones first argues the trial court abused its discretion by allowing the State to reopen its case after it had rested. Jones argues the trial court's decision to allow more testimony on the morning of November 30, 1996, after declaring to the jury that all the evidence had been presented, gave the prejudicial aura that the new testimony was necessary to ensure the proper outcome of the trial.
Section 29-21-01, N.D.C.C., outlines the order of a trial. Ordinarily, after both parties have rested, closing arguments are made. However, N.D.C.C. § 29-21-02 gives a trial court discretion to change the order of trial under N.D.C.C. § 29-21-01 for good reason. In State v. Otto, 245 N.W.2d 885, 888 (N.D.1976), this court reviewed a trial court's decision to allow the State to reopen its case to cross-examine a defense witness and stated "absent any showing of abuse of a trial court's discretionary power ... this court will not overturn a trial judge's exercise of that power."
Before allowing Braun to testify, the record reflects the court considered both parties' concerns and arguments. Specifically, the court inquired why Braun did not testify the previous day. Satisfied the State had attempted to locate Braun earlier, and that Braun had been disclosed as a possible witness and was not a surprise to the defense, the court exercised its discretion and allowed the testimony. When announcing its decision to the jury, the court was careful not to give undue weight to Braun's testimony. The court merely explained that the State would be calling an additional witness whom it had not been able to locate earlier. The court allowed both sides to reopen their cases, not just the prosecution. In fact, Jones was given a continuance until after lunch. On appeal, Jones suggests he was not given enough time to locate his witnesses and prepare his closing arguments based on the new testimony, but the record does not reflect Jones asked for an extension of the continuance. Because the State had attempted to locate Braun earlier, because Braun was not a surprise witness, and because the trial court addressed the jury in an impartial manner regarding Braun's belated testimony, we do not believe the court abused its discretion by allowing the State to reopen its case after it had rested.
Jones' second argument asserts the trial court committed reversible error by refusing to grant his motion for a judgment of acquittal after the State first rested its case. Jones claims the witnesses' testimony at trial was inconsistent concerning the appearance of the gun, the apparel of Jones, and the events of the evening. Based on inconsistent testimony, and the fact the State closed its case without having Braun testify, Jones argues the State failed to prove its case.
To grant a judgment of acquittal, a trial court must find "the evidence is insufficient to sustain a conviction of the offenses charged." State v. Ohnstad, 359 N.W.2d 827, 834 (N.D.1984); Rule 29(a), N.D.R.Crim.P. Under our standard of review, we will sustain the guilty verdict if "upon reviewing the evidence in a light most favorable to the verdict, we determine that there is substantial evidence to support it." Ohnstad, 359 N.W.2d at 834. This standard allows us to review the entire record on appeal, and not just the evidence presented before the motion, to determine whether substantial evidence exists to sustain the verdict. State v. Schaeffer, 450 N.W.2d 754, 756 (N.D.1990); See State v. Allen, 237 N.W.2d 154, 159 (N.D.1975) ().
Before the State rested the first time, it had called three witnesses who had attended the party. Each witness confirmed that Jones had produced a gun and had threatened...
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