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State v. Isom

Supreme Court of North Dakota

February 22, 2018

State of North Dakota, Plaintiff and Appellee
v.
John Daniel Isom, Defendant and Appellant

         Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Daniel Saleh El-Dweek, Judge.

          Todd A. Schwarz, McKenzie County State's Attorney Office, Watford City, ND, for plaintiff and appellee.

          Kiara Costa Kraus-Parr, Grand Forks, ND, for defendant and appellant.

          OPINION

          Crothers, Justice.

         [¶ 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.

         I

         [¶ 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 guilty.

         [¶ 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 sentence:

"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."

         The 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 Isom's ...


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