State v. Carr

• Decision Date: 21 March 1984
• Docket Number: Cr. N
• Citation: 346 N.W.2d 723
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Keith Edward CARR, Defendant and Appellant. o. 942.
• Court: North Dakota Supreme Court

Page 723

346 N.W.2d 723

STATE of North Dakota, Plaintiff and Appellee, v. Keith Edward CARR, Defendant and Appellant.

Cr. No. 942.

Supreme Court of North Dakota.

March 21, 1984.

Robert G. Hoy, States Atty., argued, Fargo, for plaintiff and appellee.

Gackle, Johnson & Rodenburg, Fargo, for defendant and appellant; argued by Bruce D. Johnson, Fargo.

PEDERSON, Justice.

This is an appeal by the defendant, Keith Edward Carr, from a judgment of conviction, based upon a jury verdict, for the crime of gross sexual imposition under Section 12.1-20-03, NDCC. We affirm.

Carr has raised the following issues on appeal:

(1) Whether or not there is sufficient evidence to sustain the jury verdict.

(2) Whether or not the trial court erred in refusing to grant Carr's motion for a mistrial based upon an alleged improper question directed to Carr during the prosecutor's cross-examination.

(3) Whether or not the defendant was denied a fair trial because he did not have effective assistance of counsel.

(4) Whether or not the trial court erred in failing to intervene, sua sponte, to protect Carr's rights during the prosecutor's final argument.

It is undisputed that prior to September 25, 1982, defendant Carr and the complainant (herein referred to as Patricia) had not met. On that evening, Patricia was with a group of women friends at Cactus Jack's Saloon in Fargo, one of whom, recognizing Carr as a casual acquaintance, conversed and danced with Carr. Later that evening, Carr and a male companion appeared at Patricia's apartment where a group of her friends were visiting. Patricia then received a call from a friend of hers, Bob Nelson, who issued a general invitation for the people at her apartment to come to his apartment, a couple of blocks away, for a party. The group, including Carr, then left Patricia's apartment and went to Nelson's party. When that party terminated, Patricia accepted Carr's offer of a ride the short distance back to her apartment. When they arrived at her apartment, Patricia went in alone and began getting ready for bed. Patricia's young daughter and a girlfriend were also in the apartment, sleeping in a bedroom located next to Patricia's.

It is undisputed that shortly thereafter Carr entered Patricia's apartment, and they had sexual intercourse. Their versions of how that occurred are in complete contrast. Patricia asserts that when Carr rang the security buzzer she let him into the building and then into her apartment because he said that he was Al, a friend of Patricia's, who had been at the Nelson party and whom Patricia thought might be having car trouble or some other problem. Patricia testified that when she opened the door Carr came in uninvited, and, in spite of her protests that he leave, pulled her to the living room floor by the hair and forced her to submit to intercourse with him. Patricia testified that during the incident Carr slapped her face and grabbed her neck and that, although she struggled and bit Carr she did not cry out because she was frightened for herself and for her daughter and friend, who were sleeping in the next room. Patricia testified that after Carr forced her to submit to sexual intercourse and other sexual acts he insisted that she lay with him on the couch while he rested; that while on the couch Carr held her hair and when she attempted to get up he would force her to remain by pulling it. Patricia testified that Carr finally left her apartment on Sunday morning before the girls awakened.

Carr testified that after taking Patricia home from the party he later returned to her apartment where he was invited in by Patricia and, after conversing together over drinks, they engaged in mutually consensual sexual intercourse.

On appeal, Carr asserts that there was insufficient evidence to sustain the jury's verdict finding him guilty of gross sexual imposition. We disagree.

When there is a challenge of the sufficiency of the evidence to sustain a conviction, we do not weigh conflicting evidence nor do we judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict to determine if there is substantial evidence to warrant a conviction. State v. Manke, 328 N.W.2d 799 (N.D.1982).

There is evidence in the record from which the jury could have found that in spite of Patricia's protestations that Carr leave her apartment he forcibly pulled her to the floor, slapped her face, grabbed her neck, and engaged in sexual intercourse and other sexual acts with Patricia against her will and without her consent. There is evidence from which the jury could have also concluded that Patricia initially struggled against Carr's attack, biting him as part of her resistance, but that she finally submitted and did not cry out because she feared for her life and that of her young daughter and friend who were sleeping in the bedroom nearby. Consequently, we conclude that there was substantial evidence upon which the jury could have found, as it did, that Carr was guilty of gross sexual imposition.

Carr asserts that the trial court erred in refusing to grant a mistrial when the prosecutor, during his cross-examination of Carr, asked whether others had called him by the nickname "Psycho." The trial court sustained an objection to the question and issued a cautionary instruction for the jury to disregard it.

It is well-settled that the granting of a mistrial is an extreme remedy which should be resorted to only when there is a fundamental defect or occurrence in the proceedings of the trial which makes it evident that further proceedings would be productive of manifest injustice. Holten v. Amsden, 161 N.W.2d 478 (N.D.1968); Thornburg v. Perleberg, 158 N.W.2d 188 (N.D.1968); Larson v. Meyer, 135 N.W.2d 145 (N.D.1965); Hoffer v. Burd, 78 N.D. 278, 49 N.W.2d 282 (1951).

Throughout the trial in this case, various witnesses described Carr's appearance during the evening of the alleged crime in such terms as "weird", "crazy", and "mad man." Explaining her...