State v. Alg

                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                                 

State of North Dakota,                                  Plaintiff and Appellee
     v.
Jeffrey Alan Alg,                                   Defendant and Appellant

                                No. 20240190

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable David E. Reich, Judge.

AFFIRMED.

Per Curiam.

Isaac O. Lees (argued) and Gabrielle J. Goter (on brief), Assistant State’s
Attorneys, Bismarck, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                  State v. Alg
                                  No. 20240190

Per Curiam.

[¶1] Jeffrey Alg appeals the criminal judgment entered after a jury verdict
finding him guilty of gross sexual imposition. Alg argues the district court
abused its discretion when it failed to comply with Rule 24 of the North Dakota
Rules of Criminal Procedure when it excused a juror and committed an obvious
error in the jury instructions.

[¶2] Alg argues the district court abused its discretion when it relied on defense
counsel’s acquiescence in excusing a juror without first conducting a proper
determination of disqualification and by impaneling an alternate juror after
deliberations began, both in violation of Rule 24 of the North Dakota Rules of
Criminal Procedure. By failing to object to the use of the alternate juror, Alg
failed to give the court an opportunity to rule on this issue. Alg forfeited the
issue, and the issue can be reviewed only for obvious error. See State v. Morales,

, 

. We conclude Alg failed to properly preserve
the issue for appeal and did not brief the issue as an obvious error to this Court.
State v. Rourke, 

, 

 (This Court “need not exercise
our discretion to notice obvious error in an appeal when the defendant does not
raise the issue of obvious error, because it is the defendant’s burden to show an
obvious error that effects a substantial right.”).

[¶3] Alg also argues the jury instructions were improper because the essential
elements did not identify specific conduct and as a result, the jury was not
required to be in unanimous agreement when it convicted him. Alg did not object
to the instructions relevant to this issue. A defendant’s decision to not object to
a jury instruction when given the opportunity constitutes a waiver of the right
to argue on appeal that the instruction was erroneous. State v. Goodale, 

, 8 N.W.3d 271 (holding claim of error waived by answering “yes” in
response to inquiry whether instructions were acceptable); see also City of Grand
Forks v. Riemers, 

, 8 N.W.3d 289 (holding claim of error waived
by “I’m satisfied with them” in response to requests for comments or additional
instructions); State v. Studhorse, 

, 7 N.W.3d 253 (declining to

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review a jury instruction issue waived by defendant’s affirmative statement he
had no request for changes to the instructions). Alg waived this issue.

[¶4] We affirm the criminal judgment under N.D.R.App.P. 35.1(a)(7).

[¶5] Jon J. Jensen, C.J.
     Daniel J. Crothers
     Lisa Fair McEvers
     Jerod E. Tufte
     Douglas A. Bahr




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