State v. Simundson

2019 ND 6, 921 N.W.2d 175

Opinion

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