from the District Court of Ward County, North Central
Judicial District, the Honorable Gary H. Lee, Judge.
A. Dillon, Assistant State's Attorney, Ward County
Courthouse, Minot, ND, for plaintiff and appellee.
Baumann, Minot Public Defender Office, Minot, ND, for
defendant and appellant.
W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair
McEvers, Daniel J. Crothers, Dale V. Sandstrom. Opinion of
the Court by VandeWalle, Chief Justice.
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
[¶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