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State v. Walker

November 9, 2010

STATE OF NORTH DAKOTA, PLAINTIFF, APPELLEE AND CROSS-APPELLANT
v.
MICHAEL JERMAINE WALKER, DEFENDANT, APPELLANT AND CROSS-APPELLEE



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Gary H. Lee, Judge.

The opinion of the court was delivered by: Sandstrom, Justice

AFFIRMED.

[¶1] Michael Walker appeals after a jury found him guilty of robbery. The State cross-appeals the district court's conclusion that Walker's actions do not fit the requirements under the mandatory minimum sentencing statute. We affirm the criminal judgment and hold the State's cross-appeal is not authorized.

I.

[¶2] Daniella Thompson was employed by Minot Junior Golf as the site manager for its charitable gaming operation at the Hooterville Bar in Ruthville, North Dakota. One of the employees she supervised was Dillon Ouellette. At the end of the night of May 1, 2009, Thompson and Ouellette were the only employees working at this gaming site. The two went through the usual procedures to shut down the operation around bar-closing time before leaving.

[¶3] Ouellette and Thompson walked out to the parking lot with the items they needed to take to their employer's office. Among these items were the slips accounting for all gaming activity and the cash collected and used to run the various games at the bar. Everything was stored in a duffel bag carried by Thompson.

[¶4] Soon after they left the bar, Ouellette heard Thompson call out his name. He turned and found a man ready to attack him, with another man going to Thompson. Ouellette wrestled back at first, thinking it was a joke, but then saw the man had a knife and realized the gravity of the situation. The assailant kicked Ouellette in the groin, knocking him to the ground. The other man took the duffel bag from Thompson.

[¶5] David Mosley and Michael Walker later admitted in court proceedings they were the attackers, and Thompson was shown to be involved in the robbery as well. Mosley, who was Thompson's boyfriend, pled guilty to the crime of robbery and admitted he was the man who attacked Ouellette. Testimony and exhibits showed Thompson helped coordinate the attack through text messages. She admitted picking up Mosley and Walker after the robbery, as well as storing knives and other items for them.

[¶6] In his testimony at trial, Walker acknowledged his presence at the robbery and made many other admissions. He admitted helping to plan the robbery with Mosley and Thompson. He admitted he took the gaming operation's duffel bag from Thompson. He admitted dividing up the money with Mosley and other friends. He admitted dumping evidence of the robbery in a river. Finally, he admitted trying to conceal his involvement when questioned by police.

[¶7] The court instructed the jury to find Walker guilty of robbery if it found that any combination of actions by Walker and Mosley, his accomplice actually present, satisfied the elements of robbery. The evidence showed it was Mosley alone who attacked Ouellette. Walker carried out his role in the attack by taking the duffel bag from Thompson. While the district court held the elements of robbery could be satisfied jointly by accomplices, it concluded the mandatory minimum sentence provisions of N.D.C.C. § 12.1-32-02.1 require all elements be satisfied by each defendant. Walker was convicted of robbery and sentenced to six years in prison with two years suspended.

[¶8] Walker contends conviction of robbery requires a defendant satisfy all elements of the offense personally. Walker appeals, arguing that because he did not personally satisfy all those elements, the jury instructions were improper and the district court erred by denying his motion for judgment of acquittal. The State cross-appeals, arguing the actions of Walker's accomplice who was actually present should be considered in imposing the mandatory sentence under N.D.C.C. § 12.1-32-02.1.

[¶9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Walker's appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction over Walker's appeal under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06. Whether or not the State may challenge the sentence by cross-appealing the criminal judgment is an issue in this case.

II.

[ΒΆ10] Walker contends the district court's jury instructions were improper and his motions for acquittal should have been granted. The jury instruction central to Walker's argument is ...


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