IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|State of North Dakota,|
|Jenelle Denise Chase,|
|Supreme Court Nos. 201200182|
|District Court No. 30-2012-CR-00332|
APPEAL FROM JURY TRIAL, VERDICT,
AND THE CRIMINAL JUDGMENT ENTERED AUGUST 14, 2012
HONORABLE CYNTHIA FELAND, PRESIDING
|Kent M. Morrow|
|Severin Ringsak & Morrow|
|411 N. 4th Street #6|
|Bismarck, ND 58501|
|TABLE OF CONTENTS|
|Table of Contents||.||page 2|
|Table of Authorities||..page 3|
|Statement of Issues||..1-3|
|In order to convict Chase of Continuous Sexual Abuse|
|of a child, is the State required to prove beyond a|
|reasonable doubt at least three specific acts on three specific dates?|
|Is the requirement that the jury not be required to unanimously|
|agree which acts or contacts occurred in violation of Chase's|
|Sixth Amendment right to jury unanimity?|
|Statement of the Case||4-7|
|Statement of Facts||....8-12|
|Law and Argument||..13-23|
|Certificate of Service||....page 8|
|TABLE OF AUTHORITIES|
|Blakely v. Washington, 542 U.S. 296, at 301 (2004).||.21|
|North Dakota Century Code:|
|Fourteenth Amendment to the Constitution||..19|
|Sixth Amendment to the Constitution||...p. 2, ¶3,19,21,23|
|North Dakota Constitution||...19|
2. In order to convict Chase of Continuous Sexual Abuse of a child, is the State required to prove beyond a reasonable doubt at least three specific acts on three specific dates?
3. Is the requirement that the jury not be required to unanimously agree which acts or contacts occurred in violation of Chase's Sixth Amendment right to jury unanimity?
4. STATEMENT OF THE CASE.
5. On February 7, 2012, Jenelle Chase ("Chase") was charged by Criminal Complaint in Morton County, North Dakota, with Continuous Sexual Abuse of a Child. Following a preliminary hearing on March 26, 2012, Chase was bound over to stand trial.
6. On June 7, 2012, Chase underwent a jury trial. The jury returned a verdict of guilty. On August 14, 2012, Chase was sentenced to forty (40) years in prison, with twenty (20) suspended for five (5) years.
7. On August 27, 2012, Chase filed a Notice of Appeal to the North Dakota Supreme Court.
8. STATEMENT OF FACTS.
9. D.C. was 15 years old in 2012. (Tr.p. 25, ll. 16-17). In 2009, he was under the age of 15. (Tr.p. 25, ll. 22-24).
10. D.C. and his brothers lived with their stepmother, Jenelle Chase ("Chase") in Mandan, North Dakota, from 2009 to 2011. (Tr.p. 29, ll. 2-16). In February, 2012, D.C. reported being sexually abused by Chase. (Tr.p. 29, ll. 17-20).
11. D.C. reported that the initial incident of sexual abuse occurred when Chase engaged D.C. in oral sex, and then vaginal sex. (Tr.p. 31, ll.3-23). D.C. could not recall how many times sexual abuse occurred. (Tr.p. 32, ll. 10-15), other than it occurred "almost every day or every other day." (Tr.p. 32, ll. 19-20).
12. D.C. reported that no one else knew of the abuse. (Tr.p. 35, ll. 19-20), not even his brothers knew of the abuse. (Tr.p. 35, ll. 21-25). He never disclosed any abuse to Social Services even when presented with the opportunity to do so. (Tr.p. 45, ll. 14-25).
13. LAW AND ARGUMENT.
14. Section 12.1-20-03.1, N.D.Cent.Code defines the crime of continuous sexual abuse of a child as follows:
12.1-20-03.1. Continuous sexual abuse of a child.
1. An individual in adult court is guilty of a class A felony if the individual engages in any combination of three or more sexual acts or sexual contacts with a minor under the age of fifteen years during a period of three or more months. The court may not defer imposition of sentence, nor may the court suspend any part of the specified sentence, either at the time of or after the imposition of the sentence, either at the time of or after the imposition of the sentence, unless the court first finds that the offense was the defendant's first violation of this chapter and that extenuating or mitigating circumstances exist which justify a suspension. The court shall announce the circumstances that justify a suspension in open court when sentence is imposed and recite these circumstances in the sentence or order suspending part of the sentence.
2. If more than three sexual acts or contacts are alleged, a jury must unanimously agree that any combination of three or more acts or contacts occurred. The jury does not need to unanimously agree which three acts or contacts occurred.
15. The victim, D.C., testified about the incidents of sexual abuse by Chase. One was an occasion (date unknown or established by the state), when Chase engaged D.C. in oral and vaginal sex in the bedroom. (Tr.p. 30, ll. 7-25; p. 31, ll. 1-25; p. 32, ll. 1-6).
16. D.C. then stated: "I don't really know how many more times." (Tr.p. 32, l. 13).
17. D.C. testified of a second incident of sexual abuse in the shower. (Tr.p. 33, ll. 10-24). Once again, no dates are provided. No evidence that it happened on different dates or on the same date as the first occasion. There was no testimony by D.C. as to any incidents.
18. There was insufficient evidence to support the jury verdict that the sexual abuse occurred more than three times over a period of at least three months.
19. Subsection (2) of Section 12.1-20-03.1 is an unconstitutional infringement upon Chase's right under the Sixth and Fourteenth Amendments of jury unanimity. North Dakota's Constitution also requires unanimity of jury verdicts.
20. A glance at the statute seems to reveal a requirement of jury unanimity. However, the statute only requires that the jury unanimously that "any consideration of three or more acts or contacts occurred." It fails to require, and in fact, does not require, that the jury "unanimously agree which three acts or contacts occurred."
21. The U.S. Supreme Court has determined that the Sixth Amendment guarantees that the 'truth of every accusation' against a defendant 'should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors." Blakely v. Washington, 542 U.S. 296, at 301 (2004).
22. The state is required to prove each element of the offense beyond reasonable doubt. Section 12.1-01-03(1), N.D.Cent.Code. The requirement that the state prove that three or more acts occurred, but not prove which three acts occurred, foregoes the requirement that the jury unanimously find that three or more acts did in fact occur. Some jurors may believe that acts A, B, and C occurred, while others might find that A, C, and D occurred. Such is outside of and contrary to the requirement of jury unanimity as to all essential elements of the crime.
23. The Sixth Amendment rights to jury unanimity requires more than a unanimous agreement that the defendant is guilty but unanimity as to each of the essential elements as to what he or she is guilty of. The statute does not require such a finding. It is unconstitutional.
25. The verdict must be reversed.
|Dated this 19th day of November, 2012.|
|/s/ Kent M. Morrow|
|Kent M. Morrow ID#03503|
|411 N. 4th Street #6|
|Bismarck, ND 58501|