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State v. Norby4/19/2002
indictment or information." 1A Charles Alan Wright, Federal Practice & Procedure: Criminal, § 191 (3d ed. 1999). Rule 12, N.D.R.Crim.P., is patterned after the federal rule, and decisions of federal courts are persuasive when applying our rule. State v. O'Rourke, 544 N.W.2d 384, 385 (N.D. 1996).
[ ] Norby contends her argument on appeal is properly before this Court because it was either not "capable of determination without the trial of the general issue" or it falls under the exception in Rule 12(b)(2). The State argues Norby waived her argument by failing to raise the issue in the district court proceedings.
A.
[ ] "A defense is `capable of determination' under Rule 12(b) `if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.'" State v. O'Boyle, 356 N.W.2d 122, 124 (N.D. 1984) (quoting United States v. Covington, 395 U.S. 57, 60 (1969)).
[ ] Norby defines her argument as an issue of legislative intent. She relies on legislative history and statutory construction for her proposition that the legislature did not intend a defendant to be prosecuted simultaneously for reckless endangerment and DUI causing serious bodily injury. She argues the State had to choose between the two offenses; it could not charge both.
[ ] A trial of the facts surrounding the offense was not needed to assist the district court in deciding the issue of legislative intent. Norby's legislative intent argument existed from the time the criminal complaint was filed, yet she never presented her argument to the district court. The argument was "capable of determination" without trial and should have been presented to the district court. See N.D.R.Crim.P. 12(b). Norby's failure to present her argument to the district court waived the argument.
B.
[ ] Norby also contends her issue on appeal falls under the exception in Rule 12(b)(2) that a defect in the criminal complaint may be brought to the Court's attention at any time if the complaint "fail to show jurisdiction in the court or to charge an offense." Norby relies on State v. Erban for the proposition that a "failure to charge an offense `[must] be noticed by the court at any time during the pendency of the proceeding.'" 429 N.W.2d 408, 410 (N.D. 1988) (quoting N.D.R.Crim.P. 12(b)(2)). Norby has failed to show either a lack of the district court's jurisdiction or a failure to charge an offense.
1.
[ ] The jurisdiction of district courts is defined by both constitutional and statutory provisions. N.D. Const. art. VI, § 8; N.D.C.C. § 27-05-06(1). Article VI, section 8, of the North Dakota Constitution provides:
The district court shall have original jurisdiction of all causes, except as otherwise provided by law, and such appellate jurisdiction as may be provided by law or by rule of the supreme court. The district court shall have authority to issue such writs as are necessary to the proper exercise of its jurisdiction.
Section 27-05-06 provides, in part:
The district courts of this state have the general jurisdiction conferred upon them by the constitution, and in the exercise of such jurisdiction they have power to issue all writs, process, and commissions provided therein or by law or which may be necessary for the due execution of the powers with which they are vested. Such courts have:
ù Common-law jurisdiction and authority within their respective judicial districts for the redress of all wrongs committed against the laws of this state affecting persons or property.
There is no question the district court p
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