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State v. Norby4/19/2002
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
AFFIRMED.
[ ] Lora Lou Norby appeals from her convictions for reckless endangerment, a class C felony, and driving under the influence ("DUI") causing serious bodily injury, a class A misdemeanor. We affirm, concluding Norby did not properly preserve her argument for appeal.
I.
[ ] Norby was the driver in a traffic accident injuring a pedestrian. She was charged with one count of reckless endangerment and one count of DUI causing serious bodily injury. The criminal complaint charged:
COUNT I: On or before the 30th day of January, 2000, in the city of Mandan, Morton County, North Dakota, the above-named Defendant committed the offense of RECKLESS ENDANGERMENT in violation of Section 12.1-17-03 of the North Dakota Century Code by then and there: Creates a substantial risk of serious bodily injury or death to another and the circumstances manifest an extreme indifference to the value of human life; to-wit: At said time and place the above-named defendant drove a motor vehicle in a manner that showed extreme indifference to the value of human life, specifically driving a motor vehicle with excess speed off the road, striking a pedestrian, . . . causing serious bodily injury. Penalty Section: 12.1-17-03 N.D.C.C.
COUNT II: On or about the 30th day of January, 2000, in the city of Mandan, Morton County, North Dakota, the above-named Defendant committed the offense of DRIVING A MOTOR VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS in violation of Section 39-08-01 of the North Dakota Century Code by then and there: Driving a vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state while said defendant was under the influence of intoxicating liquor and/or with an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of the chemical test within two hours after driving and said defendant caused serious bodily injury to another . . . . Penalty Section: 39-08-01.2 N.D.C.C.
Norby was found guilty of both counts after a jury trial. On appeal, she argues the legislature did not intend for a person to be prosecuted simultaneously for both reckless endangerment and DUI causing serious bodily injury.
[ ] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06(1). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06.
II.
[ ] Generally, an issue must be raised in the trial court before it will be considered on appeal. Morstad v. State, 518 N.W.2d 191, 194 (N.D. 1994). Rule 12(b), N.D.R.Crim.P., provides:
Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution;
(2) Defenses and objections based on defects in the indictment, information, or complaint other than that it fails to show jurisdiction in the court or to charge an offense, which objections must be noticed by the court at any time during the pendency of the proceeding;
Rule 12(b), N.D.R.Crim.P., requires a defendant to raise certain objections or defenses prior to trial. A failure to raise these objections or defenses constitutes a waiver. Id. "A motion under [Federal] Rule 12 is the proper method to raise such matters as . . . the sufficiency of the
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