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State of North Dakota v. Branden Thurman Clark

July 12, 2012

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
BRANDEN THURMAN CLARK,
DEFENDANT AND APPELLANT



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.

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

N.D. Supreme Court

State v. Clark,

2012 ND 135

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

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AFFIRMED.

Opinion of the Court by Crothers, Justice.

State v. ClarkNo. 20110359

[¶1] Branden Clark appeals from a criminal judgment entered after a jury found him guilty of theft of property. Clark argues the district court erred in refusing to give his requested jury instruction, insufficient evidence existed to support his conviction, his sentence is erroneous and excessive, and the court erred in admitting evidence the State failed to disclose before trial. We affirm.

I

[¶2] On July 10, 2007, Clark purchased various tools from Acme Electric Tool Crib of the North in Grand Forks. When a customer purchases an item from Acme, the sales associate asks the customer his or her name, the associate looks the customer's name up in the store's point-of-sale computer system, and, if the customer's name is in the system, an invoice is generated using the information in the system. Each invoice includes a signature box directly above the customer name and address. Evidence established Clark gave the sales associate, Ben Litzinger, the name of "Clark Construction" when he purchased the tools, and Litzinger entered the name in the computer system, finding an account for Clark Construction with an address in Oriska, North Dakota. Clark paid for the item with a check. The check had Clark's name on it and an address in Gilby, North Dakota. Litzinger printed out an invoice using the information in the system for Clark Construction in Oriska and Clark signed the invoice as "Clark Const."

[¶3] After the first sale was complete, Clark told Litzinger he was interested in purchasing a generator. Litzinger entered the second purchase in the computer system using the name "Clark Construction." Clark did not pay for the generator, and the sale was charged to the Clark Construction account. Clark did not take the generator with him, but returned to Acme and picked up the item on July 18, 2007.

[¶4] In August 2007, Acme sent a bill for the generator to the address for Clark Construction in Oriska. A representative from Clark Construction contacted Acme about the bill. The representative informed Acme the purchase was not authorized by anyone who worked for the company and no one named "Branden Clark" worked for the company. Acme investigated the sale and contacted the Grand Forks Police Department to report the incident. The police attempted to contact Clark at the residence listed on the check Clark used to pay for the first items purchased from Acme, but their attempts were unsuccessful.

[ΒΆ5] Clark was subsequently charged with theft. In 2009, Clark was convicted of theft of property after entering a guilty plea and he was sentenced to four years incarceration. This Court affirmed his conviction in State v. Clark, 2010 ND 106, 783 N.W.2d 274. Clark filed a federal habeas corpus petition. The federal court granted Clark's petition and vacated his ...


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