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State v. Putney

Supreme Court of North Dakota

March 15, 2016

State of North Dakota, Plaintiff and Appellee
v.
Robert Anthony Putney, Defendant and Appellant

Page 29

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

         Kelly A. Dillon, Assistant State's Attorney, Ward County Courthouse, Minot, ND, for plaintiff and appellee.

         Eric P. Baumann, Minot Public Defender Office, Minot, ND, for defendant and appellant.

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

          OPINION

Page 30

          Gerald W. VandeWalle, Chief Justice.

          [¶1] Robert Putney appealed from a criminal judgment after the district court found him guilty of aggravated assault. Putney also appealed from orders denying his motion for judgment of acquittal and motion for new trial. We affirm the criminal judgment and the order denying the motion for judgment of acquittal. We reverse the order denying the motion for new trial and remand for further proceedings.

         I

          [¶2] Putney assaulted a woman on the night of June 15, 2014. According to police affidavits, Putney brought an injured woman to a Minot hospital. After arriving at the hospital, medical personnel observed the woman had abrasions on her face, an injury to the back of her head, and hair had been forcibly pulled from her head. After further examination, medical personnel also discovered the woman had been shot, which necessitated removal of part of her large intestine. The medical personnel also informed the responding officers the woman identified Putney as the man who assaulted her. At the hospital, the responding officers observed Putney had bloodied knuckles and a substance, later identified as gunshot residue, on his hands. The officers also noted Putney appeared to be intoxicated. Based upon this information, Minot police arrested Putney.

          [¶3] The City of Minot charged Putney with violation of a municipal ordinance for simple assault. On June 16, 2014, the day after the alleged assault, Putney appeared in municipal court, pled guilty, and the municipal court sentenced Putney to thirty days in jail.

          [¶4] After Putney pled guilty to the municipal charge, police discovered a discarded handgun that matched an empty gun box found in Putney's residence. Medical personnel could not recover the bullet because of the way it was lodged in the woman, but it had a diameter comparable to that which would be fired from the recovered handgun. On July 9, 2014, the State charged Putney with aggravated assault under N.D.C.C. § 12.1-17-02. Prior to the bench trial, Putney moved to dismiss the charge, arguing the charge violated his constitutional and statutory rights against double jeopardy because he had already been convicted of the assault in municipal court. The court preliminarily denied the motion, concluding factual issues existed making summary disposition inappropriate. After a bench trial, the court found Putney guilty. Because the court found Putney caused a permanent impairment of a bodily function, the court found Putney guilty of a class B felony.

          [¶5] In an accompanying order, the court concluded it could not rule on whether double jeopardy barred Putney's conviction. Although Putney provided the ordinance regarding simple assault, he did not provide the ordinance defining culpability. The court, citing Keyes v. Amundson,391 N.W.2d 602 (N.D. 1986), concluded it could not take judicial notice of the missing ordinance because it was a court of general jurisdiction, Putney did not offer the ordinance into evidence, and the parties had not stipulated to the ordinance. Further, even if it were allowed to take judicial notice of the ordinance, the court ...


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