from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
A. Lawyer, Burleigh County Assistant State's Attorney,
Bismarck, ND, for plaintiff and appellee.
Jackson Lofgren, Bismarck, ND, for defendant and appellant.
VandeWalle, Chief Justice.
1] Eybon Watkins appealed from a criminal judgment entered
after a jury found him guilty of robbery and the district
court imposed upon him a four-year mandatory minimum sentence
as an armed offender. Although the court did not instruct the
jury to make a finding whether Watkins possessed a firearm
during the robbery, we affirm because Watkins invited the
2] Watkins was charged with robbing a hotel in Bismarck
during August 2015. The charge was a class B felony under
N.D.C.C. § 12.1-22-01(2), which applies "if the
robber possesses or pretends to possess a firearm,
destructive device, or other dangerous weapon, or menaces
another with serious bodily injury, or inflicts bodily injury
upon another, ..." The State sought a four-year
mandatory minimum sentence under N.D.C.C. §
12.1-32-02.1(2)(a), which applies "only when possession
of a dangerous weapon, explosive, destructive device, or
firearm has been charged and admitted or found to be true in
the manner provided by law, ..."
3] Before the trial started, the State informed the district
MS. LAWYER [Prosecutor]:... In order for the mandatory
minimum to apply, since the State is alleging that he was in
possession of a firearm, the jury has to make a finding that
he was in possession of a firearm. So I would suggest that
after we have the guilty not guilty/guilty, that we have a
further paragraph that says if you find the defendant guilty,
something along the lines of, do you further find that the
defendant was in possession of a firearm at the time of the
offense? Yes or no. And have them check that as well. Because
I believe that the case law says that the jury has to make a
beyond a reasonable doubt finding for that factor to apply
for the mandatory minimum to apply, but, again, that's
just something we can think about for the next couple days.
court said it appreciated the "heads up" and gave
the jury a preliminary instruction on the essential elements
of the offense which included the requirement that the jury
find "[i]n the course of committing the theft the
defendant willfully possessed or pretended to possess a
firearm, destructive device, or other dangerous weapon."
4] During the trial, the State presented testimony of the
hotel's night auditor who was the only eyewitness to the
robbery. She testified that a man wearing a mask, glasses and
gloves approached her "holding something at me wrapped
in a garbage bag." The night auditor thought the man had
a gun because of the way he was pointing, but did not
actually see a gun in his possession.
5] At the close of the evidence, the district court and the
parties discussed the final jury instructions and the
State's request for a specific verdict question whether
the defendant used a firearm for the mandatory minimum
sentence to apply. The court said it did not believe a second
question was necessary on the verdict form because "[i]t
seems to me they already have to find that in order to find
him guilty." The discussion continued:
MS. LAWYER:... I'm fine with leaving the question out if
the Court is comfortable with that and I'm comfortable
with that interpretation of that case law as well.
THE COURT: I'm fine either way. It's just that when I
didn't do a lot of research, but I just looked at the
annotations. And it seems like the annotation or the primary
case at least where they talked about making a specific
finding was a reckless endangerment case and that
wouldn't have the element the essential element that
there is in this case. So I don't know if the question I