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State of North Dakota v. Richard A. Starke

July 18, 2011

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
RICHARD A. STARKE, DEFENDANT AND APPELLANT RICHARD ANTHONY STARKE,
PETITIONER AND APPELLANT
v.
STATE OF NORTH DAKOTA,
RESPONDENT AND APPELLEE



Appeals from the District Court of Ward County, Northwest Judicial District, the Honorable Douglas L. Mattson, Judge.

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

N.D. Supreme CourtState v. Starke,

2011 ND 147

This opinion is subject to petition for rehearing. [Go to Documents]

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REVERSED AND REMANDED.

Opinion of the Court by Sandstrom, Justice.

State v. StarkeNos. 20100062 & 20100327

[¶1] In this consolidated appeal, Richard Starke appeals from the district court's criminal judgment entered after a jury found him guilty of terrorizing, sentencing him to three years in prison with one year suspended. He also appeals from the district court's order denying his petition for post-conviction relief. We reverse Starke's conviction and remand for a new trial, concluding that the district court erred by not giving Starke's requested instruction on defense of premises.

I

[¶2] Richard Starke was charged with terrorizing following an incident that occurred in his home in January 2009. A jury trial was held on the charge, during which Starke and numerous other witnesses testified. The testimony introduced at trial revealed the following facts.

[¶3] At the time of the incident, Starke was a 79-year-old man living alone in Burlington with the help of a caregiver. He testified that on the day in question, he got his pickup stuck in the snow outside his house while moving it to facilitate snow removal. Because he was in weak health and did not have another vehicle to pull the pickup out, Starke called a towing company in Minot to remove it. Two men from the towing company responded and were successful in removing the pickup from the snow.

[¶4] According to one of the tow truck operators, they were informed by Starke's neighbor, who helped them remove the vehicle, that they could go into Starke's house to get paid for their services. Starke was seated at the table in the kitchen, and when given the bill for the towing services, he was dissatisfied with the price and allegedly called the tow truck driver a "crook." According to the driver, Starke continued to refuse to pay the bill even after the reasons for the charge were explained. At that point, the driver explained to Starke that if he did not pay his bill, they would hold his pickup as collateral. The tow truck operators both testified that Starke then pointed to a rifle propped against the wall and told them that "this is loaded."

[ΒΆ5] One of the tow truck operators testified that Starke then wrote out a check for the bill and told them to "get out of my house." The operators then asked Starke for identification to go with the check, at which point Starke pulled out a leather case containing a handgun, telling both of the operators that "this is loaded too" and again to get out of his house. The operators both testified that Starke removed the gun from its case and pointed it at them. Starke and his caregiver claimed he only set the gun in front of him on the ...


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