State v. Davenport

Decision Date29 August 1995
Docket NumberNo. 950006,950006
Citation536 N.W.2d 686
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. Jerry M. DAVENPORT, Defendant and Appellee. Crim.
CourtNorth Dakota Supreme Court

Cynthia M. Feland (argued), State's Attorney, Carson, for plaintiff and appellant.

Ralph A. Vinje (argued), Vinje Law Firm, Bismarck, for defendant and appellee.

MESCHKE, Justice.

The State appeals from an order dismissing an information charging Jerry Davenport with gross sexual imposition for contact with a child under the age of fifteen. Because we conclude that the trial court improperly considered evidence of facts not stated in the information, we reverse and remand.

Davenport was charged with two counts of gross sexual imposition for alleged sexual contacts with his daughter, when she was under the age of fifteen, in December 1982 and December 1983. The complaint was filed on July 28, 1994. Davenport waived a preliminary hearing and the information was filed on November 2, 1994.

Davenport moved to dismiss the prosecution as barred by the statute of limitations. With his motion, Davenport submitted affidavits and documentary evidence. The trial court, relying upon the evidence from Davenport, dismissed the information. The State appealed.

To give the context of the trial court's ruling, we trace the complex history of the statute of limitations for these offenses. Davenport was charged with criminal violations of NDCC 12.1-20-03(2)(a) for sexual contacts with a person under age fifteen. When these offenses allegedly occurred in December 1982 and December 1983, the applicable statute of limitations barred prosecution of felonies generally after three years. NDCC 29-04-02. In 1985, the legislature enacted NDCC 29-04-03.1 that established a seven-year limitation for sexual offenses against a minor victim in a "familial relationship" with the offender. 1985 N.D.Laws ch. 359, Sec. 1. In 1987, the legislature amended NDCC 29-04-03.1 by removing the requirement of a "familial relationship" and by establishing a seven-year limitation for sexual offenses against any victim under the age of eighteen. 1987 N.D.Laws ch. 390, Sec. 3. The 1987 legislature also enacted NDCC 29-04-03.2 directing that, if the victim of the sexual offense was under age fifteen, the limitation period does not begin until the victim reaches the age of fifteen. 1987 N.D.Laws ch. 391, Sec. 1. Finally, the 1993 legislature again amended NDCC 29-04-03.1, in 1993 N.D.Laws ch. 331, Sec. 1, to direct that prosecution for sexual offenses against victims under the age of eighteen must be commenced within seven years after the offense, "or, if the victim failed to report the offense within this limitation period, within three years after the offense was reported to law enforcement authorities."

The State argues that each subsequent amendment serially extended the limitation for Davenport's crimes before the prior limitation had expired. Chronologically, the State argues, before the original three-year statute of limitations expired in December 1985, the 1985 legislature changed the limitation to seven years; before the seven-year limitation expired in 1989, the 1987 legislature created a tolling period until the victim reached the age of fifteen; and, because this victim did not reach the age of fifteen until December 1990, the seven-year limitation would not end until 1997. Accordingly, the State argues, when these charges were brought in 1994, they were not yet barred.

To support this argument, the State relies upon reasoning in State v. Thill, 468 N.W.2d 643, 647 n. 8 (N.D.1991):

California's rule against retroactivity, like North Dakota's, was derived from the Field Code of Civil Procedure. Cal.Civil Code Sec. 3 (West 1982) (originally enacted 1872). California applies any extension of a statute of limitations immediately, rejecting arguments that it is an "ex post facto" law, as well.

A law which increases a limitations period or provides a new method of tolling it may be applied immediately to all crimes as to which the period has not yet run under the prior law....

As Judge Learned Hand so aptly put it "Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he had become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it." (Falter v. United States (2nd Cir.1928) 23 F.2d 420, 425-426.)

We conclude the ex post facto clause does not apply because the statute of limitations on defendant's crime had not expired before the action against him was commenced.

People v. Lewis, 180 Cal.App.3d 816, 225 Cal.Rptr. 782, 785 (4 Dist.1986) (citations omitted). Similarly, see Commonwealth v. Bargeron, 402 Mass. 589, 524 N.E.2d 829 (1988); People v. Russo, 185 Mich.App. 422, 463 N.W.2d 138 (1990).

See also State v. Pleason, 56 N.D. 499, 218 N.W. 154 (1928) (amendment tolling statute of limitations applied to crime committed prior thereto where previous limitation period had not expired).

It cannot be successfully contended a criminal has a vested right to any special period of limitation. It requires considerable enthusiasm in defense to argue there is any contractual relation between a criminal and the state regarding when he should be prosecuted if he undertakes to commit a crime, and that the state is bound by the same sporting chance that he takes. To apply this law to former offenses does not make it a retroactive law.

Id. 218 N.W. at 155. The trial court apparently followed the Thill rationale by applying the 1993 version of NDCC 29-04-03.1 as the limitation period.

The trial court reasoned that the seven-year period for the two charges would have expired in December of 1989 and 1990, respectively and, relying upon "evidence" that the child had told her mother and numerous other persons about the alleged offenses in 1985, concluded that the limitation requiring commencement within three years after reporting also had run. The court did not explain, however, why it did not apply NDCC 29-04-03.2 to toll the beginning of the limitation period until the victim had reached age fifteen.

In determining whether the serial amendments to the relevant statutes of limitations apply in this case, we must consider NDCC 1-02-10:

Code not retroactive unless so declared. No part of this code is retroactive unless it is expressly declared to be so.

In State v. Hersch, 445 N.W.2d 626, 630 (N.D.1989), this court concluded that NDCC 1-02-10 barred application of an amendment to the statute of limitations for a prior theft crime, because the legislature had not intended that the amendment apply to then existing, but unbarred, crimes.

The rule of NDCC 1-02-10 is merely one of statutory construction. See Gofor Oil, Inc. v. State, 427 N.W.2d 104, 108 (N.D.1988); State v. Cummings, 386 N.W.2d 468, 471-472 (N.D.1986); Caldis v. Board of County Commissioners, 279 N.W.2d 665, 669 (N.D.1979). The statute need not include an express declaration, using the word "retroactive," but intent of retroactive application may be implied. In re W.M.V., 268 N.W.2d 781, 783-784 (N.D.1978) ("We do not interpret Section 1-02-10, N.D.C.C., to require that a statute or act contain the word "retroactive" in order for it to be applied to facts occurring prior to the effective date of the statute or act."). As Caldis, 279 N.W.2d at 669, explained, rules of statutory construction are subservient to the main rule that the intent and purpose of the legislature must be given effect.

We cautioned in Cummings, 386 N.W.2d at 471-472, that NDCC 1-02-10 is not to be blindly followed if there is evidence the legislature intended retrospective application:

However, NDCC Sec. 1-02-10 is but a canon of statutory construction to aid in interpreting statutes to ascertain legislative intent. It is not an end in itself. Like any rule of construction, NDCC Sec. 1-02-10 is subservient to the goal of statutory interpretation: to ascertain and effectuate legislative intent. See Caldis v. Board of Cty. Com'rs, Grand Forks Cty., 279 N.W.2d 665 (N.D.1979); Dickinson v. Thress, 69 N.D. 748, 290 N.W. 653 (1940).

As stated by the California Supreme Court, when it interpreted a rule of construction virtually identical to NDCC Sec. 1-02-10:

"That rule of construction, however, is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 176, 408 P.2d 948, 952.

We thus concluded, in Cummings, 386 N.W.2d at 472, that there is no need to resort to NDCC Sec. 1-02-10 to discern legislative intent if we are able to rationally infer from other sources that the legislature intended retroactive application of the statute.

In this case, a review of the legislative history of the 1985, 1987, and 1993 amendments allows us to rationally infer that the legislature intended retroactive application of each extension of the statute of limitations. Those histories demonstrate the intent to remedy an immediate problem: application of a longer statute of limitations to allow prosecution when a child victim does not remember or understand the nature of the abuse until many years later. Those histories are replete with references to the need to extend the statute to ensure treatment for offenders, victims, and families, and to end continued abuse by getting the offender away from the children. We discern a...

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