State v. Aabrekke
Decision Date | 13 July 2011 |
Docket Number | No. 20100170.,20100170. |
Citation | 800 N.W.2d 284,2011 ND 131 |
Parties | STATE of North Dakota, Plaintiff and Appelleev.Ivan Lee AABREKKE, Defendant and Appellant. |
Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
James Peter Wang, State's Attorney, Minnewaukan, N.D., for plaintiff and appellee.Ulysses Samuel Jones, Devils Lake, N.D., for defendant and appellant.CROTHERS, Justice.
[¶ 1] Ivan Lee Aabrekke appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition and from the denial of his motions for a new trial and for a judgment of acquittal. We reverse and remand, holding the district court failed to correctly apply the law regarding the admissibility of evidence of prior bad acts.
[¶ 2] The State charged Aabrekke with gross sexual imposition under N.D.C.C. § 12.1–20–03(1)(d) for allegedly engaging in a sexual act with his thirteen-year-old granddaughter at his Minnewaukan home on August 16, 2009. Based on recorded statements and testimony at a preliminary hearing and without formal pretrial notice from the State as required under N.D.R.Ev. 404(b), Aabrekke moved to prevent the State from introducing evidence that he “has a history of engaging in various types of sexual activity with the [complainant] and that this activity has occurred over the years” and that “relatives of [Aabrekke] may have engaged in sexual acts with either the [complainant], or the [complainant's] mother.” The district court denied Aabrekke's pretrial motion and ruled the evidence may be admissible at trial to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[¶ 3] At trial, the complainant testified Aabrekke used what was described as a “penis pump” to engage in a sexual act with her on the morning of August 16, 2009, while she, her mother and her brother were staying at Aabrekke's house for the weekend. The complainant's mother is Aabrekke's daughter, and the complainant testified she did not tell her mother about the incident until after they returned to their Minnesota home because she knew Aabrekke “would deny it and say [mean] stuff.” The complainant's mother reported the incident to Minnesota authorities, and the complainant provided statements about the incident to officials from Minnesota and North Dakota. A subsequent search of Aabrekke's home resulted in the seizure of a “penis pump.” After the complainant testified at trial about the August 16, 2009 incident, the State asked the complainant whether she had ever told her mother about any sexual contacts made against her before that incident. The following colloquy occurred outside the presence of the jury:
[¶ 4] The complainant thereafter testified Aabrekke had engaged in prior sexual contact with her beginning two years before the August 2009 incident. Additionally, the complainant testified during cross-examination:
“Q [Mr. Jones] Do you feel that your mother will protect you?
“A [The complainant] Yes.
“Q Well then did you feel that you needed protection at that time?
“A [Crying.]
“Q Well then why didn't you go to your mother before then?
“A Because she was raped by him before.
“Q Do you have personal knowledge of this?
“Q [By Mr. Jones] So you have no personal knowledge other than what your mother has claimed?
“A [Crying.]
“MR. WANG: I think we should take a break, Your Honor.”
After the recess, the complainant had not composed herself, and the court allowed the State to call two other witnesses. Thereafter, Aabrekke continued his cross-examination of the complainant:
“BY MR. JONES:
“Q Before lunch ... I think we left off with you making the statement that your mom had been raped by Mr. Aabrekke as well.
“A Yes.
“Q Do you recall that?
“A Yes.
“Q Were you present when supposedly this event took place, the event being Mr. Aabrekke raping your mother?
“A I wasn't born.
“Q You wasn't (sic) born.
“A No.
“Q So how do you know about it?
“A My mom told me.
“Q And when did your mom tell you?
....
“A The Sunday we—that last Sunday.
“Q Oh, so she told you that—today is Tuesday so that would have been day before yesterday?
“A Yes.”
[¶ 5] The...
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Coppage v. State
...2005 ND 187, ¶ 13, 705 N.W.2d 845;State v. Hernandez, 2005 ND 214, ¶ 24, 707 N.W.2d 449;see also State v. Aabrekke, 2011 ND 131, ¶ 15, 800 N.W.2d 284 (because of the inherent dangers in admitting evidence of prior bad acts and the court's obligation to ensure a defendant receives a fair tri......
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State v. Kalmio
...consistently has recognized the validity of standing objections granted in the district court. See [846 N.W.2d 758]State v. Aabrekke, 2011 ND 131, ¶ 3, 800 N.W.2d 284;O'Connell v. Hjelle, 143 N.W.2d 251, 254 (N.D.1966). Further, several federal court of appeals decisions recognize the use o......
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Brewer v. State
...acts against one victim may be highly prejudicial at trial for a similar offense against a different victim. See also State v. Aabrekke , 2011 ND 131, ¶¶ 15-16, 800 N.W.2d 284 (reversed and remanded for new trial because testimony of defendant’s prior sexual acts with victim’s mother had be......
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Coppage v. State
...2005 ND 187, ¶ 13, 705 N.W.2d 845;State v. Hernandez, 2005 ND 214, ¶ 24, 707 N.W.2d 449;see also State v. Aabrekke, 2011 ND 131, ¶ 15, 800 N.W.2d 284 (because of the inherent dangers in admitting evidence of prior bad acts and the court's obligation to ensure a defendant receives a fair tri......