IN THE SUPREME COURT
OF THE STATE OF NORTH DAKOTA
|State of North Dakota,|
|Supreme Court No. 20100069|
|Ward Co. No. 08-K-1842|
APPEAL FROM THE CRIMINAL JUDGMENT AND COMMITMENT
ENTERED BY THE DISTRICT COURT FOR THE NORTHWEST JUDICIAL
DISTRICT THE HONORABLE GARY H. LEE PRESIDING ON FEBRUARY 10, 2010
BRIEF OF APPELLANT
|MYHRE LAW OFFICE|
|By: Mark T. Blumer|
|Attorney at Law|
|ND Bar ID#: 04669|
|341 Central Ave. North, Suite 3|
|P.O. Box 475|
|Valley City, ND 58072|
|TABLE OF CONTENTS|
|Table of Contents.p.2|
|Table of Authorities.p.3|
|Statement of the Issues.. ¶1|
|Statement of the Case.... ¶2|
|Facts of the Case..¶7|
|Law and Argument Jurisdiction...¶14|
|1. Daniel Peltier's conviction should be reversed because the evidence is insufficient to|
|sustain the guilty verdicts.¶1, ¶14|
|TABLE OF AUTHORITIES|
|State v. Schmeets, 2007 ND 197, 663 N.W.2d 637¶16|
|State v. Igou, 2005 ND 16, 691 N.W.2d 213.¶16|
|State v. Knowles, 2003 ND 180, 709 N.W.2d 348....¶16|
|STATUTORY MATERIALS AND RULES OF PROCEDURE|
|N.D.C.C. Sect. 29-28-03....¶14|
|N.D.C.C. Sect. 29-28-06..¶14|
|N.D.C.C. Sect. 12.1-20-02(5).¶19|
|N.D.C.C. Sect. 12.1-20-03(2)(a).¶17|
|N.D.C.C. Sect. 12.1-20-03(1)(d).¶20|
STATEMENT OF THE ISSUES
¶1 Daniel Peltier's conviction should be reversed because the evidence is insufficient to sustain the guilty verdicts.
STATEMENT OF THE CASE
¶2 Nature of the case, course of the proceedings, and disposition in the trial court.
¶3 This is an appeal from the Ward County Amended Criminal Judgment and Commitment entered by the Honorable Gary H. Lee on February 10, 2010. (Appendix ("A") p. 3, Docket ("D") 103-105).
¶4 On September 4, 2008, a Complaint was filed charging Daniel Peltier ("Peltier") with Count I, Gross Sexual Imposition, a Class AA Felony (sexual act in which the victim was less than 15), and Count II, Gross Sexual Imposition (sexual contact in which the victim was less than 15), a Class A Felony. (A. 1 D. 1, A. 4). On October 27, 2008, Peltier was arrested. (Trial Transcript ("T") Vol. II, p. 156, l. 4-6). An Amended Complaint was filed December 29, 2008. (A. 1, D. 23, A. 5). An Information was filed February 13, 2009. (A. 1, D. 35, A. 6). An Amended Information was filed February 24, 2009. (A. 1, D. 39, A. 7). A Third Amended Information was filed October 15, 2009. (A. 2, D. 69, A. 8).
¶5 A jury trial was held on October 26, 2009. (T. Vol. I-III). At the close of the State's case, Peltier made a Rule 29 Motion to Dismiss. (T. Vol. II, p. 96, l. 22- p. 97, l. 6). The trial court denied the motion. (Id. p. 98, l. 2 p. 99, l. 2). After further testimony, Peltier renewed his Rule 29 Motion and the Motion was denied. (T. Vol. III, p. 3, l. 7-14).
¶6 The jury returned guilty verdicts on both counts, (T. Vol. III, p. 45, l. 1 - 14). A presentence investigation was ordered. (Id. p. 50, l. 6-11). On February 18, 2010, Peltier was sentenced on Count I to serve a sentence of "40 years in the state penitentiary with 10 years of that suspended", and on Count II, to serve "20 years in the department of corrections; that time to run concurrent with the sentence in the prior matter". (Sentencing Transcript p. 61, l. 3-19). Criminal Judgments were entered on February 23, 2010 (A. 3, D. 103-105); A. 9). Notice of Appeal was timely filed on March 2, 2010. (A. 3, D. 105; A. 18) and Peltier was appointed counsel to prosecute this appeal.
FACTS OF CASE
¶7 M.P. testified that on July 15, 2008, she had gone to work at 6:00 a.m. and then went home to pick up her children and Peltier at around 8:00 a.m. (T. Vol. II, p. 33, l. 24 p. 34, l. 25). When M.P. arrived home her daughter, "Jane Doe", was sitting on the couch with a blanket over her. (Id. p. 36, l. 2-8). M.P. took the blanket off Jane Doe and Jane Doe's pants and panties were down to her ankles. (Id. p. 36, l. 18-23). M.P. began yelling at Jane Doe (Id. p. 45, l. 8-12) and Jane Doe would not answer M.P.'s questions about why her pants and panties were down. Jane Doe ran to her room and M.P. called her sister , J.M. to come over to talk to Jane Doe. (T. Vol. II, p. 21, l. 24 p. 22, l. 1). M.P. testified that Peltier was in the back, taking a shower (Id. l. 9-20) but that he came out and asked what was going on. (Id. p. 38, l. 3-4) and that he was kind of surprised. (T. Vol. II, p. 45, l. 24 p. 46, l. 5).
¶8 Jane Doe testified that prior to M.P. coming home that morning, "[she] got up for school, and was laying on the couchand Daniel woke [her] up first, and he touched [her] in the wrong spots". (T. Vol. I, p. 214, l. 14-17). Jane Doe testified that Peltier touched her "[I]n my crouch and my boobs", but did not know what he touched her with and that he had touched her under her clothes. (Id. p. 215, l. 12-24). Jane Doe's pants were down to her knees but she does not know how they got down. (Id. p. 216, l. 4-7). Jane Doe further testified that her shirt was on and that Peltier touched her "over the shirt" and that he touched her "inside" her crotch. (Id. l. 12-22). Jane Doe testified that when Peltier heard M.P.'s car door slam shut he went to the back to get dressed. (Id. p. 217, l. 12-16). Jane Doe told her aunt J.M. what happened. (Id. p. 218, l. 3-4).
¶9 Jane Doe testified that she had previously stated that she did not know if Peltier had his penis in her (T. Vol. I, p. 230, l. 14-17) and that she did not know where he put his finger in her, that she didn't know for sure. (Id. l. 19-25). Jane Doe told her mother, M.P., that she had lied about the allegation. (T. Vol. I, p. 227, l. 25 p. 228, l. 5). M.P. testified that Jane Doe told her that she had lied about the allegations and that Jane Doe said it didn't happen. (T. Vol. II, p. 49, l. 4-23). M.P. had some doubts about what went on. (Id. p. 48, 1-3). M.P. was fearful "because Justin from social services had told meif I didn't believe my daughter, they'd take my kids away". (Id. p. 51, l. 14-18).
¶10 M.P.'s sister, J.M. testified that she arrived at M.P.'s home and Jane Doe told her that Peltier "was touching her, and been doing stuff to her down there". (T. Vol. II, p. 24, l. 23-25). J.M. then had Jane Doe, M.P. and M.P.'s other children leave with her. (Id. p. 25, l. 2-6). Jane Doe was then taken to the hospital. (T. Vol. I, p. 218, l. 5-7).
¶11 On July 15, 2008, Kimberly Krohn ("Krohn") conducted a forensic examination of Jane Doe as a result of the allegations of sexual abuse. (T. Vol. II, p. 8, l. 19-25). Krohn's "conclusions from her exam was that the findings in her exam were not inconsistent with vaginal penetration, but not diagnostic of it; and she had no acute injury at that time". (Id. p. 10, l. 16-18). Krohn's further testimony was that "there were no specific findings that would specifically state that she had been assaulted", but that at the same time she couldn't rule it out. (Id. p. 11, l. 7-12). Krohn did a rape kit (Id. p. 15, l. 2-5) and the results of the rape kit indicate that no semen was found, no pubic hairs that matched Peltier were found, and nothing else was found that matched Peltier. (Id. p. 158, l. 10-22).
¶12 Jeannie Lemay ("Lemay") of Northern Plains Children's Advocacy Center conducted forensic interviews of Jane Doe on July 16, 2008 (T. Vol. II, p. 62, l. 20-24) and December 18, 2008. (Id. p. 67, l. 12-13). During the first interview (Id. p. 73, l. 8-10), Lemay asked Jane Doe where Peltier touched her and received no response. Lemay asked "are you afraid of Dan? Do you want him to live at the house anymore? Jane Doe did not respond. (Id. p. 78, l. 16-23). During the first interview, Jane Doe told Lemay she had been sleeping and that it only happened one time and that she did not know what happened. (Id. p. 79, l. 7-13). During the second interview, Jane Doe told Lemay that they'd been watching TV on the couch. (Id. p. 82, l. 20-22). In one interview Jane Doe told Lemay that Peltier was wearing a tank top and shorts while in the second interview she stated he was wearing a sweatshirt and sweatpants. (Id. p. 82, l. 11-18). During the first interview Jane Doe told Lemay that Peltier had only touched her, while in the second interview Jane Doe informed Lemay that Peltier had placed his penis (hotdog) in her. (Id. p. 83, l. 16-20). Jane Doe told Lemay that Peltier had touched her sister, too, however her sister denied that allegation. (Id. p. 85, l. 22 p. 86, l. 4).
¶13 Peltier testified that, on July 15, 2008, M.P. had nudged him and let him know that she was leaving for work, that he told her he would see her in a little bit because he knew that she'd be back around 8:00 a.m., and that he went back to sleep. (T. Vo. II, p. 212, l. 1-10). Peltier woke up at 7:30 and woke the children up, telling them they had to get ready because M.P. was going to be there soon, after which he laid back down on the couch. (Id. l. 16-21). After waking up again, Peltier went back to wash and get ready for work. (Id. p. 114, l. 15-23). While he was getting ready, Peltier testified he heard yelling and he went out and found M.P. and Jane Doe yelling at each other. (Id. p. 115, l. 1-4). Jane Doe's pajama pants did not appear to be down, but were at her waist. (Id. l. 19-23). Peltier testified that Jane Doe "started saying, I hate you, Mom. I hate you". Peltier told her "don't talk to your mom like that" and Jane Doe stormed by, and went to her room". (Id. p. 116, l. 8-11). Peltier testified that he did not have sex with Jane Doe or inappropriately touch her. (Id. p. 126, l. 11-18). Peltier was arrested on October 27, 2008. (Id. p. 156, l. 4-6), pled not guilty to the charges and a jury trial was held on October 26, 2009, after which he was found guilty of both counts.
LAW AND ARGUMENT
¶14 Jurisdiction. Appeals shall be allowed from decisions of lower courts to the Supreme Court as may be provided by law. Pursuant to constitutional provisions, the North Dakota legislature enacted Sections 29-28-03 and 29-28-06, N.D.C.C., which provides as follows:
"An appeal to the Supreme Court provided for in this chapter may be taken
as a matter of right. N.D.C.C. § 29-28-03. An appeal may be taken by the
1. A verdict of guilty;
2. A final judgment of conviction;
3. An order refusing a motion in arrest of judgment;
4. An order denying a motion for new trial; or
5. An order made after judgment affecting any substantial right of the
N.D.C.C. § 29-28-06.
¶15 ISSUE: Daniel Peltier's convictions should be reversed because the evidence is insufficient to sustain the guilty verdicts.
¶16 The appellate standard of review regarding a claim of insufficiency of evidence is well-established. In State v. Schmeets, 2007 ND 197, ¶8, 742 N.W.2d 513, the court stated: "When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction." State v. Igou, 2005 ND 16, ¶5, 691 N.W.2d 213. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. Id. "A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all
inferences reasonably to be drawn in its favor." State v. Knowels, 2003 ND 180, ¶6,
671 N.W.2d 816.
¶17 Under N.D.C.C. § 12.1-20-03(2)(a), the prosecutor must prove the defendant engaged in a sexual contact with another, or caused another to engage in a sexual contact, under circumstances in which the victim was less than fifteen years old. In the case at hand, the Third Amended Information alleged that the defendant engaged in sexual contact with Jane Doe on or about 2007 through July 2008. A jury trial was held on October 26, 2009. At the time of trial Jane Doe was 12 years old, having had her 12th birthday in [REDACTED], 2009. (T. p. 212, l. 24 p. 213, l. 1).
¶18 On direct examination, Jane Doe was questioned regarding allegations of gross sexual imposition relating to Count I (sexual act) which occurred in the summer of 2008 when she was asked:
Q. Was this the only time that that had ever happened to you?
A. Yes, Well, there's one time in my mom's bedroom.
Q. When was that?
A. I don't remember..
Q. .. How old were you this other time?
A. Same exact age. I was I think I was 10 or 11.
Q. What happened at that time?
A. Of course, he touched me in the wrong spots.
(T. p. 218, l. 12 p. 219, l. 3).
¶19 This testimony is insufficient to sustain a conviction on the Count II allegation that Peltier had sexual contact with Jane Doe on or about 2007 through July 2008. Sexual contact is defined as "any touching, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person... for the purpose of arousing or satisfying sexual or aggressive desires." N.D.C.C. § 12.1-20-02(5). Jane Doe does not remember when the alleged contact occurred and is speculating as to her age. This is not sufficient to prove the alleged act occurred on or about 2007 through July 2008 as charged. Additionally, the simple statement that he touched me in the wrong spots is not sufficient to prove the alleged act was a touching of the sexual or other intimate parts of the personfor the purpose of arousing or satisfying sexual or aggressive desires. Jane Doe did not answer what the wrong spots were and it is not known whether the alleged touching, if in fact it occurred, was inadvertent or actually for the purpose of arousing or satisfying sexual or aggressive desires.
¶20 Under N.D.C.C. § 12.1-20-03(1)(d), the prosecutor must prove the defendant engaged in a sexual act with another, or caused another to engage in a sexual act. Sexual act means sexual contact between human beings consisting of contact between the penis and the vulva . or any other portion of the human body and the penis, anus, or vulva; or the use of an object which comes in contact with the victim's anus, vulva, or penis. For the purposes of this subsection, sexual contact between the penis and the vulva, the penis and the anus, any other portion of the human body and the anus or vulva, or an object and the anus, vulva, or penis of the victim, occurs upon penetration, however slight. Emission is not required.
¶21 Testimony at trial indicates that there was no physical evidence that a sexual act had taken place. The forensic examination and rape kit were inconclusive. Testimony was presented that Jane Doe had told her mother she lied about the incident(s) and that there was a threat through state social services that Jane Doe, and the other children, would be taken from Jane Doe's mother if M.P. did not believe the accusations. Jane Doe's statements and/or testimony were contradictory and changed as time went on. The conviction on Count I should be reversed as it was not based upon competent evidence which would allow the jury to draw an inference reasonably tending to prove guilt when viewed in the light most favorable to the verdict.
¶22 The evidence presented at trial was insufficient to support the verdict of guilty on both counts and the verdicts should be reversed.
|Respectfully submitted this 18th day of June, 2010.|
|Mark T. Blumer, ND Bar ID #: 04669|
|Attorney at Law|
|Myhre Law Office|
|341 Central Ave. N. Suite 3|
|P.O. Box 475|
|Valley City, ND 58072|
|Attorney for Defendant/Appellant.|