Osier v. State, 20130226.

• Decision Date: 03 April 2014
• Docket Number: No. 20130226.,20130226.
• Citation: 2014 ND 41,843 N.W.2d 277
• Court: North Dakota Supreme Court
• Parties: Mark C. OSIER, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.

843 N.W.2d 277

2014 ND 41

Mark C. OSIER, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20130226.

Supreme Court of North Dakota.

March 11, 2014.

Rehearing Denied April 3, 2014.

Benjamin C. Pulkrabek, Mandan, N.D., for petitioner and appellant.

Reid A. Brady and Cherie L. Clark, Assistant State's Attorneys, Fargo, N.D., for respondent and appellee; submitted on brief.

VANDE WALLE, Chief Justice.

[¶ 1] Mark Osier appealed from a district court order denying his application for post-conviction relief. We affirm, concluding Osier failed to establish he was prejudiced by his trial counsel's alleged deficient performance.

I

[¶ 2] In 1994, Osier was charged with multiple counts of gross sexual imposition (“GSI”) involving a minor under the age of 15 for alleged incidents involving his daughter, S.O.

[¶ 3] At Osier's first jury trial, S.O. testified that Osier had repeatedly engaged in sexual acts with her and that she began placing a “swirl” mark on her calendar to denote the dates when the sexual acts with her father occurred. A personnel manager from the employer of Osier and his wife corroborated that, on the marked dates, Osier did not work or only worked part of the day, and that Osier's wife usually worked on the marked dates. Dr. Miller, a pediatrician who had examined S.O., testified that S.O.'s hymen was worn away in a manner consistent with multiple acts of sexual intercourse or other repeated vaginal penetration.

[¶ 4] Osier's trial attorney had complied with the then-current rape shield statute, seeN.D.C.C. § 12.1–20–15 (superseded in 1998 by N.D.R.Ev. 412), and elicited testimony from S.O., her boyfriend, and two investigators that S.O. and her boyfriend had engaged in sexual intercourse on one occasion. Because S.O. had originally denied having sexual contact with anyone other than her father, Osier's attorney used this evidence to impeach S.O.'s credibility as well as to attempt to show that someone other than Osier was responsible for S.O.'s physical condition. The jury in Osier's first trial deadlocked, and the court declared a mistrial.

[¶ 5] For his second jury trial Osier hired an out-of-state attorney, Marc Kurzman. Kurzman filed a pretrial motion in limine requesting he be allowed to offer evidence of S.O.'s sexual relations with her boyfriend and of her previous denials of sexual activity. The State again presented evidence from S.O. detailing Osier's sexual acts and the “swirl” marks in the calendar; testimony regarding Osier and his wife's work schedules; and Dr. Miller's testimony regarding S.O.'s physical condition and its likely cause. Kurzman presented evidence of S.O.'s act of sexual intercourse with her boyfriend and the fact she had previously repeatedly lied about it.

[¶ 6] The jury convicted Osier of six counts of GSI. This Court reversed Osier's conviction on appeal, holding that the district court had erroneously admitted testimony from Osier's niece that Osier had sexually molested her on several occasions when she was eight or nine years old. See State v. Osier, 1997 ND 170, 569 N.W.2d 441.

[¶ 7] Osier was subsequently tried a third time. Kurzman again represented Osier and again filed a pretrial motion to offer evidence of S.O.'s sexual relations with her boyfriend. Again, the State presented S.O.'s testimony, the corroborating testimony regarding Osier and his wife's work schedules, and Dr. Miller's opinion. Kurzman was allowed to present evidence regarding S.O.'s one instance of sexual intercourse with her boyfriend through testimony of S.O., her boyfriend, and the two investigators. Kurzman also sought to introduce evidence of additional sexual conduct between S.O. and her boyfriend. In an offer of poof, Kurzman alleged that, in addition to the one act of sexual intercourse they admitted to, S.O. and her boyfriend had on one occasion engaged in fellatio and on another occasion the boyfriend had digitally penetrated S.O. The State objected, arguing Kurzman had not filed a pretrial affidavit complying with the rape shield statute. SeeN.D.C.C. § 12.1–20–15 (superseded). The court held Kurzman had not properly complied with the rape shield statute and refused to admit the testimony.

[¶ 8] The jury found Osier not guilty on one count of GSI but guilty on the remaining five counts. This Court affirmed the criminal judgment on appeal, concluding that the district court did not abuse its discretion in holding Kurzman had failed to comply with the rape shield statute; that the evidence of additional sexual conduct was not sufficient to explain S.O.'s physical condition; and that the impeachment value of the additional evidence was merely cumulative to abundant other evidence. See State v. Osier, 1999 ND 28, ¶¶ 8, 15–16, 590 N.W.2d 205.

[¶ 9] In 2012, Osier filed an application for post-conviction relief, alleging he received ineffective assistance of counsel at his third trial. Osier argued Kurzman's failure to comply with the rape shield statute, resulting in inadmissibility of the evidence of additional sexual acts between S.O. and her boyfriend, fell below the objective standard of reasonable representation and resulted in prejudice to Osier. After a hearing, the district court determined that Osier failed to demonstrate he was prejudiced by Kurzman's alleged deficient performance and that the issue was barred by res judicata because this Court had determined in Osier, 1999 ND 28, 590 N.W.2d 205, that Osier had failed to demonstrate that any of the proffered rape shield evidence was relevant. The court accordingly denied the application for post-conviction relief.

II

[¶ 10] Applications for post-conviction relief are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Broadwell v. State, 2014 ND 6, ¶ 5, 841 N.W.2d 750;Bahtiraj v. State, 2013 ND 240, ¶ 8, 840 N.W.2d 605. The applicant bears the burden of establishing grounds for post-conviction relief. Broadwell, at ¶ 5;Bahtiraj, at ¶ 8. When an applicant for post-conviction relief claims ineffective assistance of counsel, he must establish both prongs of the Strickland test and demonstrate (1) counsel's representation fell below an objective standard of reasonableness, and (2) he was prejudiced by counsel's deficient performance. Broadwell, 2014 ND 6, ¶ 7, 841 N.W.2d 750;Dahl v. State, 2013 ND 25, ¶ 8, 826 N.W.2d 922;see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whether a defendant received ineffective assistance of counsel is a mixed question of law and fact which is fully reviewable on appeal. Kinsella v. State, 2013 ND 238, ¶ 4, 840 N.W.2d 625;Bahtiraj, at ¶ 8.

[¶ 11] To meet the prejudice prong of the Strickland test, the defendant bears the heavy burden of establishing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Dahl, 2013 ND 25, ¶¶ 8, 15, 826 N.W.2d 922;Coppage v. State, 2013 ND 10, ¶ 12, 826 N.W.2d 320. To meet this burden the defendant must prove not only that counsel's assistance was ineffective, but must demonstrate with specificity how and where trial counsel was incompetent and must specify the probable different result if trial counsel had not performed incompetently. Kinsella, 2013 ND 238, ¶ 6, 840 N.W.2d 625;Dahl, at ¶ 8;Coppage, at ¶ 12. We have explained that, “[u]nless counsel's errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel's errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial.” Broadwell, at ¶ 7 (quoting Coppage, at ¶ 21). Courts need not address both prongs of the Strickland test, and if a court can resolve the case by addressing only one prong it is encouraged to do so. Broadwell, at ¶ 7.

[¶ 12] Osier claims he was prejudiced by his inability to elicit testimony that S.O.'s boyfriend had digitally penetrated S.O. on one occasion and that S.O. and her boyfriend had engaged in one other incident involving non-vaginal sexual activity. In his brief on appeal, Osier argues that “the result of the third trial could have been different without the trial court's limitations on attorney Kurzman's questioning of State's witnesses.” To satisfy the prejudice prong of the ineffective assistance test, however, Osier would have to establish there was a “reasonable probability” that the result of the trial would have been different if the excluded evidence had been admitted.

[¶ 13] In assessing the prejudicial effect of Kurzman's failure to comply with the rape shield statute and the resulting exclusion of evidence, we must consider the remaining evidence presented and the overall conduct of the trial. Broadwell, 2014 ND 6, ¶ 7, 841 N.W.2d 750. The State presented direct evidence from S.O. detailing multiple acts of sexual intercourse with her father and Dr. Miller's testimony regarding S.O.'s physical condition. This Court summarized Dr. Miller's testimony in Osier, 1999 ND 28, ¶ 11, 590 N.W.2d 205:

Dr. Ron Miller, a pediatrician, examined the complainant on November 30, 1994. Dr. Miller testified about the result of the examination:

This would be considered a non-virginal exam. The hymen was fairly well worn away and the opening of the vagina was significantly larger than would normally be seen.

When asked if he had “develop[ed] a professional opinion after [th...