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State v. Shafer-Imhoff8/29/2001
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
AFFIRMED BUT REMANDED FOR RE-SENTENCING.
Opinion of the Court by VandeWalle, Chief Justice.
[ ] Kathlene Shafer-Imhoff appealed the district court judgment and conviction of two counts of removal of a child from the state in violation of N.D.C.C. § 14-14-22.1. We affirm the verdicts but remand to the trial court for re-sentencing in accordance with this opinion.
I.
[ ] Kathlene Shafer-Imhoff ("Shafer") and Lars Imhoff ("Imhoff") were divorced in March of 1998, after nine years of marriage. Imhoff was granted custody of their two children and Shafer was granted visitation. The parties agreed Shafer would have the children for extended visitation during the summer of 1998, from June 1 to 15 and again from July 1 to 15. At the end of the second summer extended visitation on July 15, 1998, Shafer did not return the children to their father. Shafer had taken her two children out of the country. Eight months later, the children and Shafer were located in London, England. Shafer was charged with two counts of removal of a child from the state in violation of N.D.C.C. § 14-14-22.1., a class C felony.
[ ] Prior to the trial, the State moved to exclude evidence of physical assaults on Shafer. Shafer opposed the motion, claiming it was relevant to the element of intent. The trial court excluded the evidence, allowing Shafer to testify about her fear but not about the assaults. The trial court stated the evidence of assaults on Shafer by third parties was not relevant to the crimes charged and was unfairly prejudicial.
[ ] The trial lasted one day with the case submitted to the jury for deliberation at about 3:00 p.m. Within two hours, the jury indicated they were unable to come to a unanimous decision. The trial court read to the jury instructions concerning their duty to reach a verdict, as suggested in State v. Champagne, 198 N.W.2d 218 (N.D. 1972). The jurors were also given a copy of these instructions and were dismissed from the courtroom to continue deliberation.
[ ] Later, the jury submitted to the trial court specific questions on the element of intent. The trial court, after conferring with the parties, reconvened the parties and the jury in the courtroom. The trial court provided the jury with answers, a special verdict form and instructions in response to the jury's questions, as agreed by the parties. At 9:00 p.m. the trial court sent the jury home for the evening, after informing them that each of the parties would present additional closing arguments in the morning solely focused on the element of intent.
[ ] The next morning, the parties presented additional closing arguments to the jury and the jury resumed deliberation. At 11:00 a.m., the jury returned the verdict of guilty on both counts of removal of a child from the state in violation of N.D.C.C. § 14-14-22.1.
[ ] The trial court sentenced Shafer to five years for each count, suspending all but eighteen months on each count followed by five years of parole. The court ordered Shafer pay $22,765.20 restitution and a court fine of $2,500. The court stayed the sentence pending resolution of the appeal.
II.
[ ] Shafer argues the trial court abused its discretion by excluding evidence of physical assaults on her. Shafer's offer of proof for this evidence included photographs of her injuries, testimony from two witnesses who reported hearing fighting in Shafer's apartment, and testimony of Shafer's sister and boyfriend who observed bruising and other injuries to Shafer. Shafer
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