State v. Norby, 20010144.
Decision Date | 19 April 2002 |
Docket Number | No. 20010144.,20010144. |
Citation | 642 N.W.2d 924,2002 ND 71 |
Parties | STATE of North Dakota, Plaintiff and Appellee, v. Lora Lou NORBY, Defendant and Appellant. |
Court | North Dakota Supreme Court |
Allen M. Koppy, State's Attorney, Mandan, for plaintiff and appellee.
Michael R. Hoffman, Bismarck, for defendant and appellant.
[¶ 1] Lora Lou Norby appeals from her convictions for reckless endangerment, a class C felony, and driving under the influence ("DUI") causing serious bodily injury, a class A misdemeanor. We affirm, concluding Norby did not properly preserve her argument for appeal.
[¶ 2] Norby was the driver in a traffic accident injuring a pedestrian. She was charged with one count of reckless endangerment and one count of DUI causing serious bodily injury. The criminal complaint charged:
Norby was found guilty of both counts after a jury trial. On appeal, she argues the legislature did not intend for a person to be prosecuted simultaneously for both reckless endangerment and DUI causing serious bodily injury.
[¶ 3] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06(1). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06.
[¶ 4] Generally, an issue must be raised in the trial court before it will be considered on appeal. Morstad v. State, 518 N.W.2d 191, 194 (N.D.1994). Rule 12(b), N.D.R.Crim.P., provides:
Rule 12(b), N.D.R.Crim.P., requires a defendant to raise certain objections or defenses prior to trial. A failure to raise these objections or defenses constitutes a waiver. Id. "A motion under [Federal] Rule 12 is the proper method to raise such matters as ... the sufficiency of the indictment or information." 1A Charles Alan Wright, Federal Practice & Procedure: Criminal, § 191 (3d ed.1999). Rule 12, N.D.R.Crim.P., is patterned after the federal rule, and decisions of federal courts are persuasive when applying our rule. State v. O'Rourke, 544 N.W.2d 384, 385 (N.D.1996).
[¶ 5] Norby contends her argument on appeal is properly before this Court because it was either not "capable of determination without the trial of the general issue" or it falls under the exception in Rule 12(b)(2). The State argues Norby waived her argument by failing to raise the issue in the district court proceedings.
[¶ 6] "A defense is `capable of determination' under Rule 12(b) `if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.'" State v. O'Boyle, 356 N.W.2d 122, 124 (N.D.1984) (quoting United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94 (1969)).
[¶ 7] Norby defines her argument as an issue of legislative intent. She relies on legislative history and statutory construction for her proposition that the legislature did not intend a defendant to be prosecuted simultaneously for reckless endangerment and DUI causing serious bodily injury. She argues the State had to choose between the two offenses; it could not charge both.
[¶ 8] A trial of the facts surrounding the offense was not needed to assist the district court in deciding the issue of legislative intent. Norby's legislative intent argument existed from the time the criminal complaint was filed, yet she never presented her argument to the district court.1 The argument was "capable of determination" without trial and should have been presented to the district court. See N.D.R.Crim.P. 12(b). Norby's failure to present her argument to the district court waived the argument.
[¶ 9] Norby also contends her issue on appeal falls under the exception in Rule 12(b)(2) that a defect in the criminal complaint may be brought to the Court's attention at any time if the complaint "fail[ed] to show jurisdiction in the court or to charge an offense." Norby relies on State v. Erban for the proposition that a "failure to charge an offense `[must] be noticed by the court at any time during the pendency of the proceeding.'" 429 N.W.2d 408, 410 (N.D.1988) (quoting N.D.R.Crim.P. 12(b)(2)). Norby has failed to show either a lack of the district court's jurisdiction or a failure to charge an offense.
[¶ 10] The jurisdiction of district courts is defined by both constitutional and statutory provisions. N.D. Const. art. VI, § 8; N.D.C.C. § 27-05-06(1). Article VI, section 8, of the North Dakota Constitution provides:
The district court shall have original jurisdiction of all causes, except as otherwise provided by law, and such appellate jurisdiction as may be provided by law or by rule of the supreme court. The district court shall have authority to issue such writs as are necessary to the proper exercise of its jurisdiction.
Section 27-05-06 provides, in part:
There is no question the district court properly exercised its jurisdiction over an alleged criminal offense committed within its judicial district. Norby has failed to show the district court lacked jurisdiction.
[¶ 11] The criminal complaint alleged two offenses: (1) reckless endangerment in violation of N.D.C.C. § 12.1-17-03 and (2) driving a motor vehicle while under the influence of intoxicating liquor causing serious bodily harm in violation of N.D.C.C. §§ 39-08-01 and 39-08-01.2. In support of count one, the State alleged Norby "drove a motor vehicle in a manner that...
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