" As this court said in State v. Gann, 244 N.W.2d 746, 750-751 (N.D. 1976): "Consolidation is proper under Rule 13 in any cases where the offenses charged in the separate indictments or informations could have been joined in a single charge under Rule 8(a).
State v. Warmsbecker, 466 N.W.2d 105, 108 (N.D. 1991). The trial court's decision will not be reversed unless there is clear abuse of discretion. Id.; see also State v. Gann, 244 N.W.2d 746, 750-51 (N.D. 1976) (stating consolidation of indictments for trial against an individual defendant reversible error only when there is clear abuse of discretion); State v. Purdy, 491 N.W.2d 402, 406 (N.D. 1992) (applying clear abuse of discretion standard in review of joinder of indictments against multiple defendants). The defendant bears the burden of demonstrating prejudice caused by joinder.
State v. McIntyre, 488 N.W.2d 612 (N.D. 1992); State v. Mounts, 484 N.W.2d 843 (N.D. 1992). In a criminal case, a defendant is entitled to a jury instruction on a valid applicable theory, but only if there is some evidence to support it. Rule 30, N.D.R.Crim.P.; State v. Cummins, 347 N.W.2d 571 (N.D. 1984); State v. Gann, 244 N.W.2d 746 (N.D. 1976). On appeal, jury instructions are fully reviewable and must be viewed as a whole; and when so considered, if they correctly advise the jury as to the law, their inclusion or exclusion is sufficient. City of Minot v. Rubbelke, 456 N.W.2d 511 (N.D. 1990); State v. Haakenson, 213 N.W.2d 394 (N.D. 1973).
" Schan v. Howard Sober, Inc., 216 N.W.2d 793, 803 (N.D. 1974). "A defendant is entitled to an instruction on a valid applicable theory, but only if there is some evidence to support it." State v. Gann, 244 N.W.2d 746, 753 (N.D. 1976). "[A] trial court may properly refuse to submit an inapplicable or irrelevant instruction to the jury.
Consolidation of offenses under Rule 13 is proper if the offenses charged in the separate criminal complaints could have been joined in a single charge under Rule 8(a), NDRCrimP. State v. Gann, 244 N.W.2d 746 (N.D. 1976). Under Rule 8(a) two offenses may be charged in the same complaint in a separate count for each offense if they "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of the common scheme or plan."
We agree. A defendant is entitled to an instruction based on a legal defense if there is evidence to support it. E.g., State v. Biby, 366 N.W.2d 460, 465 (N.D. 1985); State v. Schimetz, 328 N.W.2d 808, 812 (N.D. 1982); State v. Gann, 244 N.W.2d 746, 753 (N.D. 1976). Self-defense and defense of others are classified as "defenses" rather than "affirmative defenses."
The Windmill's brief contains no argument concerning the selective law enforcement issue. For this reason we treat the latter issue as abandoned. State v. Gann, 244 N.W.2d 746, 748 (N.D. 1976); Regent Cooperative Equity Exchange v. Johnston's Fuel Liners, Inc., 122 N.W.2d 151, 155-56 (N.D. 1963). Only a fleeting reference is made to the overbreadth challenge in our court.
"A defendant is entitled to an instruction on a valid applicable theory, but only if there is some evidence to support it . . . ." State v. Gann, 244 N.W.2d 746, 753 (N.D. 1976). The crime of gross sexual imposition as defined in § 12.1-20-03, NDCC, does not require any specific culpability:
A defendant is entitled to a particular instruction on a valid applicable theory of a case if there is some evidence to support the theory. State v. Skjonsby, 319 N.W.2d 764 (N.D. 1982); State v. Gann, 244 N.W.2d 746 (N.D. 1976). If jury instructions, when considered as a whole, correctly and adequately advise the jury of the law, it is sufficient although part of the instruction, standing alone, is insufficient or erroneous.
Although the trial court is not required to submit instructions in the specific language requested by a defendant, the defendant is entitled to an instruction based on a legal defense if there is evidence to support it. State v. Gann, 244 N.W.2d 746 (N.D. 1976). Marinucci was charged with criminal coercion in violation of NDCC § 12.1-17-06 which provides as follows: