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State v. Watkins

Supreme Court of North Dakota

July 12, 2017

State of North Dakota, Plaintiff and Appellee
v.
Eybon Avyon Watkins, Defendant and Appellant

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

          Julie A. Lawyer, Burleigh County Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Jackson Lofgren, Bismarck, ND, for defendant and appellant.

          OPINION

          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 error.

         I

         [¶ 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 court:

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.

         The 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 ...

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