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State v. Zajac

July 9, 2009

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
LAWRENCE JAMES ZAJAC, DEFENDANT AND APPELLANT



Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

The opinion of the court was delivered by: Maring, Justice.

AFFIRMED.

[¶1] Lawrence Zajac appeals from a district court order deferring imposition of sentence, entered upon a jury verdict finding him guilty of injuring a highway under N.D.C.C. § 24-12-01, and from the court's order denying his motion for a new trial. Because we conclude that the district court did not err in denying Zajac's requested jury instruction on the defense of excuse, we affirm.

I.

[¶2] In a June 11, 2007, complaint, Zajac was charged with causing injury to a highway in violation of N.D.C.C. § 24-12-01, a class B misdemeanor. According to the complaint, on June 2, 2007, Zajac willfully dug up a highway by cutting a ditch through a Belford Township road near Mantador in Richland County, without first obtaining permission from the Belford Township Board. Zajac's residence is located in rural Mantador on the west side of the township road.

[¶3] At trial, Zajac testified that his residence was threatened with rising water after approximately four and one-half inches of rainfall and that culverts on the township road were not draining enough water and were, instead, acting as a dam. Water began backing up over Zajac's driveway and around his house. Zajac testified that he believed he had two choices: he could go into the basement of his home and try to save his property, risking injury from the rising waters; or he could use a pay loader to cut the township road, allowing water to flow out of his yard. Zajac testified that "[a]bout a half an hour" had passed from the time he had returned to his home that morning and the time he started cutting the road. Although Zajac testified that he thought his life was in danger, on cross-examination he conceded that he could have left "if [he] wanted to."

[¶4] Zajac testified that he used a pay loader on his property to dig two ditches across the township road to allow water to escape, purportedly saving his home and reducing the risk of harm to himself. After about forty-five minutes, the water receded and did not reach his home. Zajac acknowledged that he did not seek permission before cutting the road, but testified that there was not time because he had "never seen water running so fast in [his] life." Zajac also testified that he spoke to a township board member later, after cutting the road, who he said told him, "[Y]ou gotta do what you gotta do."

[¶5] After being charged for cutting the township road, Zajac pled not guilty. On July 2 and 3, 2008, a jury trial was held in the district court. Before trial, Zajac submitted proposed jury instructions to the district court, including requested instructions on defenses of consent, excuse, mistake of law, and duress. At the close of the defense's case and before instructing the jury, the district court ruled on the proposed jury instructions based on the evidence presented during the trial. The district court rejected Zajac's proposed jury instructions on his defenses, adopting instead the State's proposed instructions. The court concluded that Zajac did not present sufficient evidence to support the requested instructions and Zajac chose to place himself in a position of jeopardy. The court also found that Zajac had options other than cutting the road. The court then heard Zajac's objections to its decision not to instruct the jury on the proposed jury instructions regarding his defenses. After closing arguments, the case was submitted to the jury, and the jury convicted Zajac.

[¶6] On July 3, 2008, the district court issued an order deferring imposition of sentence. On July 14, 2008, Zajac moved for a new trial, arguing the court should have instructed the jury on the affirmative defense of excuse. On July 23, 2008, the district court denied Zajac's motion for a new trial.

II.

[¶7] On appeal, Zajac argues that the district court erred in not allowing his requested jury instructions on justification, excuse, and duress. Zajac also argues that the court abused its discretion in denying his motion for a new trial due to the State's improper final argument. However, subsequent to the jury's verdict and the district court's order deferring imposition of sentence, Zajac moved for a new trial, arguing only that the court should have instructed the jury on the defense of excuse.

[¶8] We have explained that "although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal to the grounds presented to the trial court in the motion for a new trial." State v. Hernandez, 2005 ND 214, ¶ 34, 707 N.W.2d 449 (citing State v. Jordheim, 508 N.W.2d 878, 880-81 (N.D. 1993)); see also State v. Syring, 524 N.W.2d 97, 100 (N.D. 1994); City of Fargo v. McLaughlin, 512 N.W.2d 700, 703 (N.D. 1994); Andrews v. O'Hearn, 387 N.W.2d 716, 728-29 (N.D. 1986). In Jordheim, 508 N.W.2d at 881 (citations omitted), a majority of this Court held that "[t]his long-standing rule applies equally to criminal appeals."

[¶9] Here, the only issue Zajac identified in his July 14, 2008, motion for a new trial was: "Where the evidence presented indicates that Defendant cut a road to protect himself from imminent bodily injury and to protect his home, should the jury have been instructed on the defense of excuse?" We conclude that Zajac is limited on appeal to this narrow issue presented to the district court in his motion for a new trial and that Zajac has failed to preserve for review the remaining issues he has raised in his appeal to this Court.

III.

[ΒΆ10] Zajac argues that the district court erred in not allowing his requested ...


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