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State v. Horn

Supreme Court of North Dakota

December 18, 2014

State of North Dakota, Plaintiff and Appellee
v.
Derald Ross Horn, Jr., Defendant and Appellant

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

Christopher M. Redmann (submitted on brief), Assistant State's Attorney, and Tessa M. Vaagen (on brief), under the Rule on Limited Practice of Law by Law Students, Bismarck, ND, for plaintiff and appellee.

Lee M. Grossman, Valley City, ND, for defendant and appellant; submitted on brief.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice.

OPINION

Page 78

Kapsner, Justice.

[¶1] Derald Ross Horn Jr. appeals from a criminal judgment entered after a jury found him guilty of burglary. We conclude the district court did not commit obvious error in allowing the records custodian to testify, Horn failed to establish a Brady violation, and there was sufficient evidence to support the jury's guilty verdict. We affirm.

I

[¶2] Horn was charged with three counts of burglary stemming from alleged

Page 79

burglaries at three bars in Burleigh County: Flash's Bar in Sterling, Moffit Bar in Moffit, and Uncle Jesse's Bar in Driscoll. Police investigated alleged burglaries at Moffit Bar and Flash's Bar and discovered size 13 Nike shoe prints and one-half inch pry marks along the outside windows and on pull tab machines at both scenes. An investigation after an alleged burglary at Uncle Jesse's Bar also uncovered size 13 shoe prints and one-half inch pry marks. Horn was pulled over because his vehicle matched a report of a car possibly involved in the burglaries. The police officer noted Horn was acting nervous and was wearing Nike shoes. Horn consented to a search of his vehicle, and " burglary" tools, including bolt cutters with fresh metal filings, were found. Officers later went to Horn's place of employment, and Horn again consented to a search of his vehicle. Officers discovered a map opened to rural areas of Burleigh County, a bolt cutter, tire irons with one-half inch prying ends, various tools, dark clothing, and size 13 Nike shoes.

[¶3] At the final dispositional conference before trial, Horn moved to dismiss the case arguing the State had violated a discovery rule by failing to provide the actual name, rather than simply the job title, of one of its witnesses. The district court denied the motion. At the close of the State's evidence, Horn moved for acquittal based on lack of evidence. The district court denied Horn's motion. After the defense rested, Horn renewed his motion for acquittal, and the district court again denied the motion. The jury found Horn guilty of all three counts.

II

[¶4] On appeal, Horn argues the State violated his due process rights by failing to comply with N.D.R.Crim.P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Horn also argues there was insufficient evidence to support the jury's guilty verdict.

[¶5] Rule 16, N.D.R.Crim.P., governs the disclosure of witnesses. State v. Roerick, 557 N.W.2d 55, 56 (N.D. 1996). Upon the defendant's written request, it requires the prosecution to timely disclose its witnesses' names and materials pertinent to their testimony. Id.; N.D.R.Crim.P. 16(f)(1). " We expect compliance with Rule 16, N.D.R.Crim.P., to be the norm, not the exception." Roerick, at 56. However, Horn must show prejudice in order to be entitled to relief for a Rule 16 violation. See State v. Thorson, 2003 ND 76, ¶ 12, 660 N.W.2d 581.

[¶6] Horn argues he was denied a substantial right because the State violated Rule 16 by failing to disclose the actual name of one of its witnesses. Although the State disclosed the witness's job title, " Prairie Knights Casino Records Custodian," it did not disclose the witness's actual name. Horn argues the alleged violation should ...


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