State v. Simundson , 2019 ND 6 ( 2019 )


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  •                 Filed 1/15/19 by Clerk of Supreme Court
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2019 ND 6
    State 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
    1
    

Document Info

Docket Number: 20180223

Citation Numbers: 2019 ND 6

Judges: Per Curiam

Filed Date: 1/15/2019

Precedential Status: Precedential

Modified Date: 3/4/2019