from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Daniel Saleh El-Dweek,
A. Schwarz, McKenzie County State's Attorney Office,
Watford City, ND, for plaintiff and appellee.
Costa Kraus-Parr, Grand Forks, ND, for defendant and
1] John Daniel Isom appeals from a criminal judgment entered
after a jury found him guilty of aggravated assault--domestic
violence. Isom argues the district court imposed an illegal
sentence, abused its discretion in substituting a juror after
empanelment, and erred in denying his motion for judgment of
acquittal. We affirm in part and reverse in part.
2] Isom lived with his girlfriend in Arnegard, McKenzie
County. On November 10, 2016 Isom and his girlfriend fought
at their home. Isom was intoxicated. The dispute turned
physical. Isom choked his girlfriend, blocking her airway.
She attempted to fight back. Isom called 911, and handed the
phone to her to speak to the operator.
3] Officer Maxwell Ingram responded to the residence. Isom
told Officer Ingram "I did everything" and "I
was at fault." While at the scene Officer Ingram took
pictures of the victim's neck. The State charged Isom
with aggravated assault--domestic violence under N.D.C.C.
§ 12.1-17-02, a class C felony.
4] At trial the district court empaneled a twelve-member
jury. Immediately after release of the remaining jury pool,
the State alerted the district court to an empaneled
juror's misstatement during jury selection. One selected
juror was in a relationship with a police officer, which she
had not indicated on her juror information form. The court
allowed peremptory strikes on two potential jurors, and the
parties agreed on a replacement. After the substitution the
clerk seated the jury and administered an oath.
5] The victim and Officer Ingram testified for the
prosecution. Officer Ingram identified pictures of the
victim's neck taken at the scene and testified in his
experience the marks on the victim's neck appeared to be
signs of strangulation. Isom moved for a judgment of
acquittal based on insufficient evidence at the close of the
State's case. The district court denied the motion. Isom
testified in his own defense. The jury returned a verdict of
6] At the sentencing hearing the district court heard a
victim impact statement and a statement from Isom. The
district court considered sentencing factors then issued its
"I am going to sentence you to five years with the North
Dakota Department of Corrections. I'm going to order that
you serve two-and-one-half years with the Department of
Corrections and I'm going to stay two-and-one-half years
for a period of five years of supervised probation."
criminal judgment and sentence were filed on July 5, 2017.
7] The Department of Corrections notified the district court
that its imposition of five years supervised probation was
illegal under N.D.C.C. § 12.1-32-06.1(2), which in July
2017 set a maximum of three years supervised probation for