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State v. Kelly7/20/2001
Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Ronald E. Goodman, Judge.
AFFIRMED.
Opinion of the Court by Neumann, Justice.
[ ] Joseph Kelly appealed from the trial court's judgment of conviction entered upon a jury verdict finding him guilty of assault. We affirm.
I.
[ ] Joseph Kelly, an inmate at the James River Correctional Center, was involved in an altercation with a fellow inmate. He was removed from the general inmate population, and a disciplinary proceeding was conducted four days later. The disciplinary committee recommended thirty days of disciplinary detention with credit for time served, restitution to the state for medical costs associated with treating the victim inmate, and a referral to the state's attorney's office for possible criminal charges. The warden approved the committee's recommendations.
[ ] A criminal complaint was filed charging Kelly with assault in violation of N.D.C.C. § 12.1-17-01.1(1), a class A misdemeanor. At a pretrial conference, Kelly entered a not guilty plea and raised the affirmative defense of once in jeopardy under N.D.C.C. § 29-16-01(3).
[ ] Another inmate gave a written statement describing the altercation as witnessed by him. The inmate testified for the State at trial, and the State offered the inmate's written statement into evidence. Kelly objected to its admission under N.D.R.Ev. 801 on the grounds it was hearsay. The trial court overruled the objection and admitted the exhibit. At the close of the evidence, the court determined the prison disciplinary proceedings did not constitute jeopardy, as a matter of law. Thus, the court did not submit the issue of former jeopardy to the jury.
[ ] The jury returned a guilty verdict. The trial court entered a judgment of conviction.
[ ] On appeal, Kelly argues the trial court erred in refusing to submit the question of former jeopardy to the jury and in allowing the unsworn written statement of a witness into evidence.
II.
[ ] Kelly argues that whether he had previously been punished for the assault was a question of fact and was required to be decided by the jury. Under N.D.C.C. § 29-16-01(3), an issue of fact arises upon a plea of once in jeopardy. Issues of fact must be tried by a jury. N.D.C.C. § 29-16-02. Under Rule 31(e)(2), N.D.R.Crim.P., "When a defendant interposes the defense of having been formerly convicted or acquitted for the same offense or an offense necessarily included therein, or of having been once in jeopardy, and evidence thereof is given at trial, the jury, if it so finds, shall declare that fact in its verdict."
[ ] The explanatory note following Rule 31 says subdivision (e) was added to aid the court in deciding factual issues. "A determination of factual issues in the specific instances provided in this subdivision is deemed to be within the province of the jury. Because it is the court that determines the issue of law, the scope of the jury is not exceeded." Rule 31, N.D.R.Crim.P., Explanatory Note. The rule allows evidence of double jeopardy to be presented to the trial court and, if an issue of fact is presented, then to the jury for its determination. City of Fargo v. Hector, 534 N.W.2d 821, 823 (N.D. 1995). The rule requires the trial court to submit a special verdict form to the jury, but only if the double jeopardy issue includes a question of fact. Id.
[ ] The trial court ruled, as a matter of law, double jeopardy does not apply here. We, therefore, review the legal merits of Kelly's double jeopardy claim. See id.
[ ] Kelly asserts his conviction, fo
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