IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|The State of North Dakota,||)||Supreme Court No. 20120332|
|Appellee,||)||Morton Co. No. 30-2012-CR-00182|
|Jenelle Denise Chase,||)|
BRIEF OF APPELLEE
APPEAL FROM JURY TRIAL VERDICT
AND CRIMINAL JUDGMENT ENTERED AUGUST 14, 2012
HONORABLE CYNTHIA M. FELAND, PRESIDING
|Brian D. Grosinger, State I.D. 04500|
|Assistant State's Attorney|
|210 Second Avenue NW|
|Mandan ND 58554|
Table of Contents
|Table of Authorities ii|
|Issues . . . . . . . . . . 1|
|Statement of Case . 1|
|Statement of Facts . . . . . . . . . . . . 1-2|
|Argument . . . . . . 2-8|
|Conclusion . . . . . . .|
Table of Authorities
|Blakely v. Washington, 542 U.S. 296 (2004) . . . . . . 3, 4|
|Mandan v. Sperle, 2004 ND 11, 680 N.W.2d 275 . . 6|
|State v. Gomez, 2011 ND 29, 793 N.W.2d 451 3, 5, 6, 7|
|State v. Martin, 2001 ND 189, 636 N.W.2d 447 . . . . . . . . . . . . .2, 3, 7, 8|
|Teigen v. State, 2008 ND 88, 749 N.W.2d 505 . . . . . . 2||Statutes:|
|N.D.C.C. §12.1-20-03.1 . . . . . . 1, 5, 7|
1. Whether to sustain a conviction for Continuous Sexual Abuse of a Child per Section 12.1-20-03.1 N.C.C.C. the State is required to prove three specific acts on three specific dates.
2. Whether to sustain a conviction for Continuous Sexual Abuse of a Child the Jury is required to find the same act unanimously.
Statement of Case
The State accepts the Defense Statement of the Case in that the Defendant was charged with continuous sexual abuse of a child pursuant to Section 12.1-20-03.1 of the North Dakota Century Code. Subsequently the defendant was convicted of the offense, judgment was entered and this appeal was duly noticed.
Statement of Facts
The State accepts the Defense Statement of facts but emphasizes the following specific facts:
The State's primary witness was the victim, designated as D.C. in the transcript of the trial.
D.C. testified that he was age fifteen at the time of trial, and that he was under the age of fifteen at the time of occurrence. Tr. 30, L. 14. The offense occurred during the two years D.C. resided with the Defendant in Mandan, North Dakota. Tr. 32, L. 16. D.C. described what happened to him the first time the Defendant's actions constituted oral sex and intercourse. Tr. 31, L. 3. D.C. testified that the Defendant perpetrated sexual acts and/or contacts on him in excess of three times. He also testified that it happened for more than three months. For example:
"I don't really know how many more times. I just know that it happened for a couple of years, a year, really close to a year". Tr. 32, L. 13. Followed by D.C.'s testimony that it happened every day or every other day. Tr. 32, L. 20. Then D.C. answered affirmatively that it happened more than three times. Tr. 32, L. 23.
As indicated by the Defendant's brief the jury found her guilty as charged, judgment was entered and this appeal followed.
Standard of Review
In regard to the issue of the proof of three separate instances the State argues the appropriate standard of review is the same as sufficiency of the evidence and that all inferences are to be drawn in favor of the verdict. State v. Martin, 2001 ND 189, 636 N.W.2d 447 at ¶5.
In regard to the issue of constitutionality, the State argues that there is a presumption of constitutionality and that presumption is not disturbed unless the defense "clearly demonstrates" that there is a violation of the Federal or State Constitution. See e.g. Teigen v. State, 2008 ND 88, 749 N.W.2d 505 at ¶7.
* * *
Neither issue raised by the defense has merit. The constitutionality of the statute has been challenged previously and has survived that challenge. The law does not require the jury to find the same specific events, and that is also an issue that has survived challenge in the past.
There is precedent regarding these issues contrary to the argument of the Defense. The Defense cites no authority adequate to disturb the current precedent. Further, the Defense argument is not persuasive.
1. The Defense interpretation of applicable law is incorrect.
The precedent the Defense cites is solely Blakely v. Washington, 542 U.S. 296 (2004). Blakely is not on point to the issues in the instant case. Blakely addresses cases where it is required that the jury find affirmatively for an enhancement for purposes of penalty, particularly cases that require a mandatory minimum. That is not the issue in the instant case.
The instant case is on point with State v. Gomez, 2011 ND 29, 793 N.W.2d 451 and with State v. Martin, 2001 ND 189, 636 N.W.2d 447. Both of those matters specify that there is no need for a special verdict form for this specific offense.
The strategy of the Defense argument is understandable because were the Defense to prevail on this point it would make it impossible to prove the instant case. D.C. was not able to remember each specific incident over the course of the year or more that the Defendant was offending. There would have been no evidence for the jury to make such specific findings.
The offense of continuous sexual abuse of a child means the state is required to prove at least three Gross Sexual Imposition offenses over a period in excess of three months. The State argues the purpose of this statute is to recognize the increased impact of multiple offenses on a victim. Further, the State argues that the Statute recognizes that the victim of such offenses will not have specific memory of each separate occurrence.
The Defense is arguing to nullify the statue. The State argues the Defense has no legal basis for that argument.
The Defense cites to Blakely and argues that every allegation has to be proved. The essential elements of the offense were duly instructed by the Trial Court. The Trial Court instructed that three or more sexual acts or contacts, had to be perpetrated on the victim over three or more months. A. 14-15. The Court's instructions were correct and true to the statute and the precedent. Therefore, there is no error.
2. The argument that there was insufficient evidence because the specific acts were not alleged is without merit, and has previously been settled against that argument by precedent.
In the course of the trial the victim testified to the elements of the offense charged against the Defendant. The victim testified to sexual acts that occurred every, or every other day. D.C. testified that this occurred over the course of at least a year. The jury believed D.C.'s testimony. Juries are allowed to choose the testimony of a witness believed to be more credible than another witness forwarding contrary testimony.
The Defendant's argument is that there was no ability of the jury to agree on individual events. The State argues that is not so. The testimony was that events occurred over a substantial amount of time. The State argues that there is no requirement that every act of a substantial number be proved over the entire period of time constituting this offense.
A similar challenge was presented in State v. Gomez, 2011 ND 29, 793 N.W.2d 451. Gomez was also a prosecution under N.D.C.C. §12.1-20-03.1. Constitutionality and the issue of unanimous verdict on specific acts was also addressed in Gomez. The Gomez Court ruled that instructions must fully and fairly advise the jury of the law. Gomez at ¶ 10. Gomez cited that three or more acts constituted an essential element of the offense which was appropriately instructed. The Trial Court instruction also indicated that the jury did not have to agree on which three acts of contacts occurred. That conviction was affirmed.
In the instant case the jury was instructed the same as that in Gomez. The challenge in the instant case is sufficiently similar to that of Gomez that no distinction is discernible. Therefore the instant case should also be affirmed.
Special verdict forms were at issue in Gomez. Gomez at ¶ 8. Gomez held that special interrogatories and special verdicts are disfavored in criminal cases. Id. Further, only to be used except in special circumstances. No such special circumstance was raised in the instant case.
Mandan v. Sperle, 2004 ND 11, 680 N.W.2d 275 provides persuasive precedent for the State's argument. In Sperle a conviction for Disorderly Conduct was challenged. One basis for the challenge was that the conduct under the Disorderly Conduct ordinance was not specified in violation of the Fourth and Fifth Amendments to the United States Constitution.
In rejecting the Sperle argument this Court recognized that special verdict forms are disfavored in criminal cases. Sperle at ¶ 12. This Court recognized that the special verdict forms may serve to coerce a jury against the defendant. Id.
Sperle concluded that there was ample evidence in the record to find that the defendant had violated the disorderly conduct ordinance. In the instant case there is also prima facie evidence of the violation of the Statute. There is no constitutional requirement of a special verdict.
Therefore the defense argument is without merit.
3. The Defense argument that the there was a constitutional violation in not requiring the jurors to unanimously agree to the same bad acts is without merit.
N.D.C.C. §12.1-20-03.1 requires the State to prove elements consisting of three or more acts or contacts over three or more months. In the instant case, the victim specifically testified that he did not know how many occurrences there were in total, but over time it was in excess of three. In regard to the period of time the offenses occurred, the victim was again not definite, but was able to testify that it was at least a year.
There is definition within the language of the statute as to what the State is required to prove to obtain a conviction on the offense. Likewise, there was definition to the testimony of the victim as to what occurred, sufficient to meet the statute and corresponding constitutional requirements.
Precedents have established that the statute is not unconstitutionally vague. See e.g., Gomez and Martin.
In State v. Martin, 2001 ND 189, 636 N.W.2d 447 this Court held that the statute was not unconstitutionally vague. The issue of the Defense in the instant case is sufficiently similar that the holding should prevail. The Martin Court held the statute constitutional based on the analysis that the criminal offense must be defined with sufficient definiteness that an ordinary person can understand the prohibited conduct. Martin at ¶14. The Statute prohibits sexual acts and sexual contacts multiple times over a period of time. There is sufficient definition that ordinary people can understand the prohibited conduct.
In terms of the issue raised in the instant case, the analysis is the same. The trial produced evidence sufficient to establish the violation defined within the statute. There is no basis for the relief requested.
The facts of the Martin case are important to consider in the instant case. In the Martin case there was a four-year interval between the initial act and the acts that concluded the offense. The Martin Court held that the language of the statute does not preclude a factual situation where there is a four-year separation between specific acts. That interpretation grants sufficient flexibility in the timing of the criminal acts that it is appropriate to extend that rationale to the instant case.
In the instant case, when all inferences are drawn in favor of the verdict, there was ample proof of the offense of continuous sexual abuse of a child per the statute. Further, the defense did not clearly demonstrate that there was a violation of the Constitution of the State of North Dakota or of the United States.
Based on the argument above the State of North Dakota requests that the Judgment of the Trial Court be in all respects affirmed.
Dated this 18th day of December, 2012.
|Brian D. Grosinger, 4500|
|Assistant State's Attorney|
|210 2nd Avenue NW|
|Mandan ND 58554|