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State v. Mayland

Supreme Court of North Dakota

October 17, 2017

State of North Dakota, Plaintiff and Appellee
v.
Charles Spencer Mayland, Defendant and Appellant

         Appeal 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.

          Dan L. Herbel, Bismarck, ND, for defendant and appellant.

          OPINION

          Jensen, Justice.

         [¶ 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.

         I

         [¶ 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 ...

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