State v. Pavlicek, 20120012.

Decision Date26 July 2012
Docket NumberNo. 20120012.,20120012.
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Sarah Ann PAVLICEK, Defendant and Appellant.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Dawn M. Deitz, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Kent M. Morrow, Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Sarah Pavlicek appeals from a criminal judgment entered after a jury found her guilty of abuse or neglect of a child. We affirm.

I

[¶ 2] Pavlicek lived with her boyfriend, their son, Pavlicek's daughter from a previous relationship, and L.B., the boyfriend's daughter from a previous relationship. In October 2010, a teacher at L.B.'s school received a phone call from Pavlicek regarding a mark on L.B.'s face. When L.B. arrived at school, the teacher was suspicious of the mark on L.B.'s face and also found bruises on L.B.'s back. The teacher followed school reporting procedures, and Burleigh County Social Services became involved. The teacher testified that when Pavlicek arrived at the school to discuss L.B.'s injuries with the staff, Pavlicek did not seem concerned about L.B.

[¶ 3] The State charged Pavlicek with two counts of abuse or neglect of a child; one count related to L.B.'s facial injury, and the other count pertained to her back injury. A jury trial was held, at which the teacher testified. A coworker of Pavlicek's testified about text messages she received from Pavlicek, in which Pavlicek expressed her negative feelings toward L.B. The coworker also testified Pavlicek admitted she had punched [L.B.] in the back.” The coworker stated Pavlicek told her of admitting the same to a police officer because “it was obvious ... her fist was marked in [L.B.'s] back, bruised.” A child protection worker with Burleigh County Social Services testified Pavlicek admitted to hitting L.B. in the back and face, a nurse who examined L.B. testified L.B.'s bruises were caused by “some sort of trauma or force[,] and a detective with the Bismarck Police Department testified Pavlicek admitted to using a fist and hitting L.B. in the back.

[¶ 4] Before jury deliberations, Pavlicek argued that, under N.D.C.C. § 12.1–05–05(1), an individual cannot be convicted of child abuse or neglect unless the force used by the individual upon the child creates a substantial risk of death, serious bodily injury, disfigurement, or gross degradation; Pavlicek asked the court to so instruct the jury, but Pavlicek did not submit her proposed instructions in writing. The court denied Pavlicek's request, noting “the jury has to determine whether or not they feel under the circumstances the force used was reasonable.” Following trial, the jury found Pavlicek not guilty of the count relating to L.B.'s facial injury but guilty of the count relating to L.B.'s back injury.

II

[¶ 5] On appeal, Pavlicek argues the guilty verdict was not supported by sufficient evidence and claims the jury rendered legally inconsistent verdicts. Pavlicek also contends the court erred by “refus[ing] to give a proper jury instruction on parental discipline.”

A

[¶ 6] Pavlicek asserts the guilty verdict was not supported by sufficient evidence. A highly deferential standard of review applies to appeals challenging the sufficiency of the evidence:

[T]his 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. 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. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses.... A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.

State v. Doll, 2012 ND 32, ¶ 21, 812 N.W.2d 381 (quoting State v. Buckley, 2010 ND 248, ¶ 7, 792 N.W.2d 518).

[¶ 7] We conclude the evidence presented at Pavlicek's trial supports the jury's finding that Pavlicek was guilty of child abuse or neglect by causing bodily injury to L.B.'s back. L.B.'s teacher testified that Pavlicek called and reported a spot on L.B.'s cheek. When L.B. arrived at school that day, the teacher stated she observed what “looked like a hand shaped bruise on the small of [L.B.'s] back.... Couple of more bruises smaller, maybe nickel size, quarter size above those bruises and then two bruises on either side of the rather large bruise on her back.” The teacher also testified that when Pavlicek and L.B.'s father arrived at school to speak with her about L.B.'s injuries, “Neither her or [L.B.'s father] were concerned about L.[B.].... They didn't say a lot to her. They were very intent on looking through their phone and through their camera trying to find an old picture of the spot that L.[B.] had had previously.” The teacher stated Pavlicek's reaction was not typical of a parent in that type of situation, noting Pavlicek's behavior “was concerning to me.”

[¶ 8] Pavlicek's coworker testified about text messages she received from Pavlicek. The coworker read several of Pavlicek's text messages to the jury, including the following, which was received before the date of the incident in question:

I've thought about life without L.[B.] ... That kid is a waste of time and money.... [N]othing on earth makes me more angry and frustrated than L.[B.] Even just passing her picture in the hall right now she looks like an evil little demon child.... Three and a half more fucking weeks of having L.[B.] with no break. One of us is going to fucking die. I can't fucking take this.... L.[B.] is just a giant fucking pain.

The day after the abuse allegedly occurred, the coworker testified Pavlicek sent her a text message stating, “I will be good mommy. I want to listen mommy. Too late. Sorry little bitch. Too late to be sorry little bitch.” The coworker stated the message was regarding L.B.'s response “when she got home and got questioned about” the investigation into her injuries. The coworker also testified about a phone call she received from Pavlicek, in which Pavlicek stated she admitted to police she had punched [L.B.] in the back.” The coworker noted, “I asked her why she told the detective that, and she said it was obvious because her fist was marked in [L.B.'s] back, bruised.”

[¶ 9] A child protection worker with Burleigh County Social Services testified Pavlicek “said she hit [L.B.] And she said she hit her in the back and the face.... She said she used her hands.” The nurse who examined L.B.'s injuries testified the child's bruises were caused by “some sort of trauma or force against the skin that the capillaries underneath were caused to break.” A Bismark Police Department detective testified Pavlicek admitted to him she used a fist and hit L.B. in the back[.] Reviewing the evidence presented at trial, we conclude competent evidence supports the jury's verdict finding Pavlicek guilty of child abuse or neglect by causing bodily injury to L.B.'s back.

B

[¶ 10] Pavlicek claims the jury verdicts were legally inconsistent, requiring dismissal of the guilty verdict. “The standard for reconciling a jury verdict is whether the verdict is legally inconsistent.” State v. Moe, 2010 ND 90, ¶ 4, 782 N.W.2d 624 (quoting State v. Jacob, 2006 ND 246, ¶ 10, 724 N.W.2d 118). “Reconciliation of a verdict, therefore, includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.” Id. (quoting State v. Jahner, 2003 ND 36, ¶ 19, 657 N.W.2d 266). “Even if a jury fails to convict a defendant on a charge having a similar element to a charge on which the defendant is convicted, there is no legal inconsistency if there is substantial evidence to support the charge on which he is convicted.” Jahner, at ¶ 21.

[¶ 11] The State charged Pavlicek with two counts of abuse or neglect of a child under N.D.C.C. § 14–09–22(1)(a), which provides, in relevant part:

a parent, adult family or household member, guardian, or other custodian of any child, who willfully commits any of the following offenses is guilty [of abuse or neglect of the child] ...: Inflicts, or allows to be inflicted, upon the child, bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1–01–04 or mental injury.

“Bodily injury” is defined as “any impairment of physical condition, including physical pain.” N.D.C.C. § 12.1–01–04(4). The first count against Pavlicek related to “bodily injury to the face of L.B.” while the second count related to “bodily injury to the back of L.B.”

[¶ 12] The jury found Pavlicek not guilty of the count relating to L.B.'s facial injury but guilty of the count relating to L.B.'s back injury. The only essential element differing in the counts against Pavlicek was the location of L.B.'s bodily injury. Pavlicek offers no analysis of the elements of the charges against her, claiming only, “The verdicts on both counts were legally inconsistent so as to require dismissal of the guilty verdict.” It does not follow that because the jury determined the evidence was insufficient to support a guilty verdict on the count pertaining to L.B.'s facial injury, the evidence was also insufficient for the jury to find Pavlicek guilty of injuring L.B.'s back. We have stated that, when a jury acquits a defendant of a charge having a similar element to a charge of which a defendant is convicted, the verdicts are not legally inconsistent if substantial evidence supports the conviction. Jahner, 2003 ND 36, ¶ 21, 657 N.W.2d 266. As established...

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7 cases
  • State v. Martinez
    • United States
    • North Dakota Supreme Court
    • July 1, 2015
    ...“Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.” State v. Pavlicek, 2012 ND 154, ¶ 14, 819 N.W.2d 521 (quoting Rittenour v. Gibson, 2003 ND 14, ¶ 15, 656 N.W.2d 691 ). We view the instructions as a whole to det......
  • State v. Pemberton
    • United States
    • North Dakota Supreme Court
    • June 27, 2019
    ...the jury of the applicable law and must not mislead or confuse the jury." Martinez , 2015 ND 173, ¶ 8, 865 N.W.2d 391 (quoting State v. Pavlicek , 2012 ND 154, ¶ 14, 819 N.W.2d 521 ). This Court reviews the instructions as a whole to determine if they correctly and adequately inform the jur......
  • State v. Pemberton, 20180414
    • United States
    • North Dakota Supreme Court
    • June 27, 2019
    ...of the applicable law and must not mislead or confuse the jury." Martinez, 2015 ND 173, ¶ 8, 865 N.W.2d 391 (quoting State v. Pavlicek, 2012 ND 154, ¶ 14, 819 N.W.2d 521). This Court reviews the instructions as a whole to determine if they correctly and adequately inform the jury. Pavlicek,......
  • City of Bismarck v. King
    • United States
    • North Dakota Supreme Court
    • March 13, 2019
    ...Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. State v. Pavlicek , 2012 ND 154, ¶ 14, 819 N.W.2d 521. Jury instructions are reviewed as a whole to determine whether they adequately and correctly inform the jury......
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