State v. Weaver, 20010083.
| Decision Date | 15 January 2002 |
| Docket Number | No. 20010083.,20010083. |
| Citation | 638 N.W.2d 30,2002 ND 4 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Michael Paul WEAVER, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Wade Lykken Webb, Assistant State's Attorney, Fargo, for plaintiff and appellee.
Douglas W. Nesheim (argued), Mervin D. Nordeng (on brief), Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, for defendant and appellant.
[¶ 1] NEUMANN, Justice.
Michael Paul Weaver appeals from a criminal judgment entered upon a jury verdict finding him guilty of contact by bodily fluids with a law enforcement officer or correctional facility employee. We affirm, concluding (1) the trial court did not err in denying Weaver's motion for judgment of acquittal, (2) the trial court's instruction on the definition of "knowingly" and its failure to instruct on a lesser included offense did not constitute obvious error, and (3) trial counsel's assistance was not plainly defective.
[¶ 2] On July 27, 2000, Weaver was an inmate at the Cass County Jail and had been placed in "lockdown." After Weaver urinated through the bars of his cell door onto the floor in front of the cell and refused to clean it up, he was moved to a special cell in which the inside is lined with plexiglass so the inmate cannot touch the bars or reach outside. There is a vertical gap in the plexiglass approximately one inch wide next to the sliding door of the cell.
[¶ 3] Shortly after being placed in this cell, Weaver intentionally caused the toilet to overflow, flooding the cell and the surrounding area. The water to Weaver's cell was shut off, and Cass County Deputy Sheriff Jay Sandvig began cleaning up the water in front of Weaver's cell. Deputy Sandvig testified Weaver threatened to urinate out his cell door if the water was not turned back on. Sandvig continued to clean up the water. As he was cleaning close to the cell door, Sandvig saw Weaver laughing and noticed that Weaver was urinating through the gap in the plexiglass onto Sandvig's pants, ankle, and shoe. At trial, Weaver denied urinating on Sandvig, admitting he urinated through the cell door onto the floor but that Sandvig was not in the area at the time.
[¶ 4] Weaver was charged with class C felony contact by bodily fluids with a law enforcement officer or correctional facility employee under N.D.C.C. § 12.1-17-11. The case was tried to a jury, which found Weaver guilty of the offense charged. A criminal judgment was entered and Weaver appealed.
[¶ 5] Weaver argues the trial court erred when it denied his motion for judgment of acquittal at the close of the State's case-in-chief.
[¶ 6] Weaver was charged with contact by bodily fluids in violation of N.D.C.C. § 12.1-17-11:
[¶ 7] Weaver was charged only with the class C felony, which required that the State prove he had caused the contact knowingly. "Knowingly" is defined in N.D.C.C. § 12.1-02-02(1)(b):
Weaver argues the evidence presented by the State was insufficient to establish that he caused the contact "knowingly."
[¶ 8] Motions for judgment of acquittal are governed by N.D.R.Crim.P. 29(a), which provides in part:
(a) Motion Before Submission to Jury. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.
[¶ 9] We recently outlined the standards guiding the determination of a Rule 29 motion in State v. Gonzalez, 2000 ND 32, ¶¶ 14-15, 606 N.W.2d 873 (citations omitted):
[¶ 10] In reviewing a question of sufficiency of the evidence under N.D.R.Crim.P. 29(a), we do not resolve conflicts in the evidence or reweigh the credibility of the witnesses. State v. Delaney, 1999 ND 189, ¶ 4, 601 N.W.2d 573; State v. Steinbach, 1998 ND 18, ¶ 17, 575 N.W.2d 193. On appeal, we determine only whether there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. Delaney, at ¶ 4; Steinbach, at ¶ 17.
[¶ 11] Viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the State, we conclude there was sufficient evidence upon which a reasonable mind could find guilt beyond a reasonable doubt. During the State's case-in-chief, Deputy Sandvig testified:
Q Then what happened, if anything?
A As I continued to mop up the floor, it was, you know, a few minutes after that, I was still standing in very close proximity to the door, I noticed on—off to my side I could see him standing next to the door. I turned to look at him. He was laughing at me. And when I looked at him, he said, "I told you I was going to piss through the door." At that time he was standing up close to the door in the crack, kind of facing me, and when I looked down, there was a stream of what I believe to be urine landing on my lower left leg, ankle, shoe area while I was vacuuming. It was at that time that I had—I quit vacuuming at that time and advised some other officers what had happened.
[¶ 12] The jury could certainly infer from this evidence that Weaver caused the contact "knowingly." Viewed in the light most favorable to the State, Deputy Sandvig's testimony indicated Weaver was urinating through...
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State v. Clark
...constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.”Jacob, at ¶ 14 (quoting State v. Weaver, 2002 ND 4, ¶¶ 16, 17, 638 N.W.2d 30). [¶ 12] Clark did not object to the court's decision to give the State's requested instruction, and it do......
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State v. Majetic
...error, if any, in admitting 911 tape as excited utterance was not clear deviation from applicable legal rule under current law); State v. Weaver , 2002 ND 4, ¶ 20, 638 N.W.2d 30 (concluding instruction mirroring statutory definition of knowingly was not deviation from applicable legal rule ......
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State v. Austin
...does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law. Id. (quoting State v. Weaver, 2002 ND 4, ¶ 17, 638 N.W.2d 30). The Court will notice obvious error only in exceptional circumstances when the defendant has suffered a serious......
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State v. Clark, 20110359
...obvious error unless there is a clear deviation from an applicable legal rule under current law." Jacob, at ¶ 14 (quoting State v. Weaver, 2002 ND 4, ¶¶ 16, 17, 638 N.W.2d 30). [¶12] Clark did not object to the court's decision to give the State's requested instruction, and it does not cons......