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City of Fargo v. Nikle

Supreme Court of North Dakota

March 13, 2019

City of Fargo, Plaintiff and Appellee
v.
Jared James Nikle, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Susan L. Bailey, Judge.

          William B. Wischer (argued), Assistant City Attorney, and Ian R. McLean (appeared), Fargo, ND, for plaintiff and appellee.

          William Kirschner, Fargo, ND, for defendant and appellant.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] Jared Nikle appeals from a criminal judgment after the district court found him guilty of actual physical control while under the influence in violation of Fargo Municipal Code § 08-0310. On appeal, Nikle argues he was entitled to a jury instruction on the affirmative defense of necessity. We conclude Nikle failed to meet his burden in raising the affirmative defense, and therefore we affirm the criminal judgment.

         I

         [¶2] In January 2018, Nikle was charged with actual physical control in violation of Fargo Municipal Code § 08-0310 after law enforcement officers found Nikle intoxicated and sleeping in his car with the engine running. Fargo Municipal Code § 08-0310 reads, in pertinent part:

A. No person shall drive, or be in actual physical control of, any vehicle upon any street, highway, public or private parking lot, or other public or private property in this city if said person is under the influence of intoxicating liquor or controlled substances. Being under the influence of intoxicating liquor or controlled substances shall be as defined by chapter 39-08 of the North Dakota Century Code including any amendments hereafter adopted. All other relevant and applicable statutes of the state of North Dakota relating to driving under the influence of intoxicating liquor or controlled substances are also incorporated herein by reference and made a part hereof.

         [¶3] Before the scheduled jury trial, Nikle requested the district court include a jury instruction on the affirmative defense of necessity. After receiving a brief submitted by the City opposing the instruction and hearing Nikle's argument at the pretrial conference, the court denied the request to include the necessity instruction, finding it was not "currently supported by North Dakota law." The court also looked into the possibility of an instruction on the excuse defense and found that instruction inapplicable as well. See N.D.C.C. § 12.1-05-08. Following the denial, Nikle conditionally waived his right to a jury trial, expressly reserving his right to appeal the court's denial of his requested jury instruction on necessity, and agreed to proceed by presenting stipulated facts followed by a bench trial.

         [¶4] The stipulated facts indicated that on December 30, 2017, Nikle was in Fargo celebrating a friend's birthday and after consuming alcohol he returned to his car to charge his cell phone. He started his car to enable the cell phone charger to work, turned on the heat, and waited for his phone to charge so he could call his daughter for a ride. While waiting for his phone to charge, he fell asleep. Law enforcement officers found Nikle's car parked with the engine running, headlights on, and Nikle asleep in the driver's seat. The officers awoke Nikle by knocking on the window. Nikle admitted he had consumed alcohol; he appeared confused, had slurred speech, and smelled of alcohol. The officers had Nikle perform field sobriety tests which he failed. Nikle was transported to the jail where an Intoxilyzer test was administered, indicating a result above the legal limit.

         [¶5] The district court found Nikle guilty of the charge of driving under the influence, as referenced by the Fargo City Ordinance.

         II

         [¶6] Nikle argues the district court erred by denying his request to include a jury instruction on the affirmative defense of necessity. Rule 30, N.D.R.Crim.P., allows parties to request and object to proposed jury instructions. "Generally, this Court reviews jury instructions as a whole to determine whether the instructions fairly and adequately informed the jury of the applicable law." State v. Zajac, 2009 ND 119, ¶ 12, 767 N.W.2d 825 (citations omitted). In Lehman, this Court reiterated its standard for reviewing jury instructions:

We view the evidence in the light most favorable to the defendant to determine whether there is sufficient evidence to support a jury instruction. A trial court errs if it refuses to instruct the jury on an issue that has been adequately raised. A court, however, may ...

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