from the District Court of Divide County, Northwest Judicial
District, the Honorable Joshua B. Rustad, Judge.
Seymour R. Jordan, Assistant State's Attorney, Crosby,
ND, for plaintiff and appellee.
Herbel, Bismarck, ND, for defendant and appellant.
1] Charles Mayland appealed from a judgment of conviction
entered upon a jury finding him guilty of being in actual
physical control of a motor vehicle while under the influence
of intoxicating liquor fourth-offense, a class C felony.
Because the parties stipulated to the existence of
Mayland's prior convictions, and Mayland's driveway
was within the scope of the statute, we affirm.
2] Sergeant Coby Hubble was dispatched to Mayland's
residence to respond to a domestic disturbance call. Upon
arriving at Mayland's residence, Hubble observed Mayland
with an armload of clothes approach a vehicle parked in the
driveway of the residence. Hubble observed Mayland open the
driver's door, place clothes in the front passenger seat,
enter the vehicle, and sit in the driver's seat.
3] Mayland was charged with being in actual physical control
pursuant to N.D.C.C. § 39-08-01. The offense was charged
as a class C felony, asserting that a conviction would be
Mayland's fourth offense within the prior fifteen years.
While discussing the appropriate jury instructions with the
trial court, Mayland and his counsel agreed that his prior
convictions would not be disclosed to the jury. Mayland and
his counsel also agreed that the offense, if Mayland were
convicted, would be treated as a fourth offense.
4] Prior to trial, the parties discussed whether or not
Mayland's prior convictions should be disclosed to the
jury and whether the jury instructions should require a
determination of Mayland's prior convictions for
violations of N.D.C.C. § 39-08-01. The following
exchange regarding the inclusion of the essential element of
prior convictions within the jury instructions is reflected
in the record as follows:
MR. SCHULTZ [Mayland's Counsel]: Your Honor, I would
object to including the fourth offense language. At this
point, the Defense is willing to stipulate that it would be a
fourth offense. I am concerned about the--first off the
prejudice of the jury with it being a fourth offense. Any
indication or inclination they might have for a finding of
guilt just simply based on the number of prior offenses. I
think with the Defense stipulating that it would be fourth
offense, we can remove that from the instruction.
THE COURT: Counsel?
MR. JORDAN [State's Counsel]: Your Honor, ... but we are
not really doing Mr. Mayland any favors and that is why the
State didn't want to stipulate, and... now it is still
going to be in the video.
THE COURT: And... a week or two ago in chambers, parties had
come in, indicated they did not have an agreement but that
they were going to stipulate that the language of fourth
offense wouldn't be included [in the instructions], and
that would just be stipulated to ...