STATE v. CANN

13 Citing cases

  1. State v. Boushee

    284 N.W.2d 423 (N.D. 1979)   Cited 22 times
    Concluding that despite only mentioning one affidavit in the search warrant, commonsense requires the acknowledgment that both affidavits were in front of the magistrate when he determined whether probable cause existed to issue a search warrant, and the two affidavits provided sufficient probable cause

    " 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).

  2. State v. Neufeld

    1998 N.D. 103 (N.D. 1998)   Cited 10 times

    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.

  3. State v. Steffes

    500 N.W.2d 608 (N.D. 1993)   Cited 50 times
    Summarizing three categories of cases in which courts "have attempted to analyze an accused's right to due process when prosecutors fail[ed] to provide evidence to the defense which [was] within, or potentially within, their purview"

    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).

  4. Matter of Estate of Ambers

    477 N.W.2d 218 (N.D. 1991)   Cited 12 times

    " 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.

  5. State v. Warmsbecker

    466 N.W.2d 105 (N.D. 1991)   Cited 8 times

    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."

  6. State v. Thiel

    411 N.W.2d 66 (N.D. 1987)   Cited 42 times
    In Thiel, an assault case, we held Thiel was entitled to his requested jury instruction because evidence was presented sufficient to raise a reasonable doubt on whether he was justified in using force under self-defense and defense of others.

    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."

  7. City of Fargo v. Windmill, Inc.

    350 N.W.2d 32 (N.D. 1984)   Cited 5 times
    Underlying basis for agency's decision clearly revealed despite lack of findings

    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.

  8. State v. Cummins

    347 N.W.2d 571 (N.D. 1984)   Cited 5 times

    "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:

  9. State v. Schimetz

    328 N.W.2d 808 (N.D. 1982)   Cited 11 times
    In Schimetz, supra, 328 N.W.2d at 812-813, this court held that the trial court did not err in refusing to give an instruction on excuse where, among other things, the defendant denied stabbing the victim, the defendant testified that if he did it was "accidental," and the record did not establish that the victim was proceeding in a violent or dangerous manner.

    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.

  10. State v. Marinucci

    321 N.W.2d 462 (N.D. 1982)   Cited 8 times

    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: