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State v. O'Toole

October 13, 2009


Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Sonja Clapp, Judge.

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


[¶1] David O'Toole appeals from a criminal judgment entered upon a jury verdict finding him guilty of reckless endangerment. We affirm, concluding that there is sufficient evidence to support O'Toole's conviction and that the district court did not err in refusing to give O'Toole's requested jury instruction.


[¶2] O'Toole is a police officer with the Grand Forks Police Department and has approximately nine years of law enforcement experience. O'Toole had achieved the rank of master police officer at the time of the incident. He was on duty during the early hours of February 10, 2008. The weather was very cold that night, with an air temperature of sixteen degrees below zero, twenty-one mile per hour winds, and a windchill of approximately forty-two degrees below zero.

[¶3] Shortly after midnight on February 10, 2008, Grand Forks Police Officer Brian Cofer stopped a pickup truck for speeding. Jason Hickman was a passenger in the stopped vehicle. After stopping the vehicle Cofer learned there was an outstanding warrant for the driver of the vehicle. Cofer requested backup, and Officer Eric Straus arrived on the scene. Cofer asked the vehicle's driver to exit the vehicle and placed the driver in the back of his squad car. Cofer requested Straus remove Hickman from the vehicle so it could be searched, and Straus directed Hickman to exit the vehicle. Hickman was wearing jeans and a long- sleeved shirt, but he did not have a coat, hat, or gloves with him. Cofer asked Straus to place Hickman in Straus's squad car, but Straus refused.

[¶4] O'Toole arrived on the scene shortly after Hickman was removed from the pickup truck. Although O'Toole was a master police officer and a higher rank than Cofer and Straus, he did not have command authority over the other two officers, and the other two officers did not have command authority over O'Toole. Straus told Hickman to stand in front of O'Toole's squad car while the officers searched the vehicle. O'Toole started to get out of his squad car, but Straus told him to get back in the car. Straus got in his squad car and left Hickman standing outside. Hickman attempted to get O'Toole's attention. O'Toole rolled down his window and Hickman asked O'Toole if he could sit in O'Toole's car. O'Toole refused and closed his window. O'Toole sent Straus an electronic message over the mobile data computer located in his squad car, saying, "[T]hats right make him freeze." Straus responded with a message saying, "[Y]ep . . . that boy has earned it over the years here."

[¶5] After the officers searched the pickup truck, Hickman was allowed back in the vehicle. The officers later discovered the warrant for the driver was invalid, and the driver and Hickman were allowed to leave. Hickman sought medical attention later that day, and he was diagnosed with frostbite on his ears.

[¶6] O'Toole was charged with reckless endangerment in violation of N.D.C.C. § 12.1-17-03, alleging he created a substantial risk of bodily injury or death to Hickman. A jury trial was held, and O'Toole requested the court instruct the jury that Hickman was not in custody at the time of the stop and that he was free to leave. The court denied his request. At the close of the State's evidence and at the close of all the evidence, O'Toole moved for a directed verdict of acquittal under N.D.R.Crim.P. 29. The court denied O'Toole's motions. The jury found O'Toole guilty of reckless endangerment.


[¶7] O'Toole argues insufficient evidence exists to support his conviction for reckless endangerment. He contends that a person only is guilty of reckless endangerment if he creates a substantial risk of serious bodily injury or death to another and that there is no evidence he created the risk of serious bodily injury to Hickman.

[¶8] O'Toole preserved the issue of sufficiency of the evidence for appellate review by timely moving for a judgment of acquittal under N.D.R.Crim.P. 29. See State v. McAvoy, 2009 ND 130, ¶ 8, 767 N.W.2d 874. The standard of review for claims of insufficient evidence is well established:

"[W]e look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In ...

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