City of Bismarck v. Fischer , 1998 ND 79 ( 1998 )

Filed 4/13/98 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

1998 ND 79

City of Bismarck, Plaintiff and Appellee

v.

Carl W. Fischer, Defendant and Appellant

Criminal No. 970368

Appeal from the District Court for Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

AFFIRMED.

Per Curiam.                             

William D. Schmidt of Schmitz, Moench & Schmidt, 222 North 4th Street, P.O. Box 2076, Bismarck, N.D. 58502-2076, for defendant and appellant.  

Paul H. Fraase, Assistant City Attorney, P.O. Box 5503, Bismarck, N.D. 58506-5503, for plaintiff and appellee.

City of Bismarck v. Fischer

Criminal No. 970368

PER CURIAM.

[¶1] Carl W. Fischer appeals from the trial court’s Amended Judgment of Conviction entered after a six-person jury found him guilty of driving under the influence of alcohol.  Prior to submission of the case to the jury, Fischer made a motion for judgment of acquittal under Rule 29, N.D.R.Crim.P.  The trial court denied Fischer’s motion and submitted the case to the jury.  The only issue raised on appeal is whether the trial court abused its discretion in denying Fischer’s motion for judgment of acquittal.

[¶2] In deciding a motion for judgment of acquittal, “the trial court, upon reviewing the evidence most favorable to the prosecution, must deny the motion if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.”   State v. Steinbach , 1998 ND 18, ¶16 (citing   State v. Kingsley , 383 N.W.2d 828, 829 (N.D. 1986)).  On appeal, in order to successfully challenge the sufficiency of the evidence, the defendant must show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt.   Id. (citing State v. Fasching , 461 N.W.2d 102, 103 (N.D. 1990)).  The record in this case does not establish an abuse of the trial court’s discretion in denying Fischer’s motion.  We, therefore, affirm the trial court’s decision under Rule 35.1(a)(4), N.D.R.App.P.

[¶3] Gerald W. VandeWalle, C.J.

Mary Muehlen Maring

Herbert L. Meschke

William A. Neumann

David W. Nelson, D.J.

[¶4] David Nelson, D.J., sitting in place of Sandstrom, J., disqualified.