State v. Simundson , 2019 ND 6 ( 2019 )

Filed 1/15/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 6State of North Dakota, Plaintiff and Appellee
v.
Shane Leigh Simundson, Defendant and Appellant
No. 20180223
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Donald Hager, Judge.
AFFIRMED.
Per Curiam.
Carmell F. Mattison, Assistant State’s Attorney, Grand Forks, ND, for plaintiff
and appellee; submitted on brief.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Simundson
No. 20180223
Per Curiam.
[¶1] Shane L. Simundson appealed from a jury verdict finding him guilty of actual
physical control under N.D.C.C. § 39-08-01. Simundson argues that he was parked
in an area to which the public had no right of access, and thus there was insufficient
evidence to satisfy the elements of N.D.C.C. § 39-08-01. We summarily affirm under
N.D.R.App.P. 35.1(a)(3) and (7), concluding there is sufficient evidence in the record
to sustain the conviction. See State v. Novak, 338 N.W.2d 637, 639-40 (N.D. 1983)
(agreeing with other courts that the prohibition on actual physical control applies
anywhere within a state); see also State v. Mayland, 2017 ND 244, 902 N.W.2d 762.
[¶2] Gerald W. VandeWalle, C.J.
Daniel J. Crothers
Lisa Fair McEvers
[¶3] We concur only in the result. Our decision here is required by Novak, and
Simundson has not asked us to overrule Novak. Novak’s rationale was doubtful when
decided because it drained all substantive content from “public or private areas to
which the public has a right of access for vehicular use.” Mayland has restored some
substance to this provision, undermining Novak. In an appropriate case, we would be
open to reconsidering Novak.
[¶4] Jerod E. Tufte
Jon J. Jensen
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