State v. Gaddie

• Decision Date: 03 March 2022
• Docket Number: 20210187
• Citation: 2022 ND 44
• Court: North Dakota Supreme Court
• Parties: State of North Dakota, Plaintiff and Appellee v. David Walter Gaddie, Defendant and Appellant

2022 ND 44

State of North Dakota, Plaintiff and Appellee v. David Walter Gaddie, Defendant and Appellant

No. 20210187

Supreme Court of North Dakota

March 3, 2022

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Jay D. Knudson Judge.

Renata J.O. Selzer, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Scott O. Diamond, Fargo, ND, for defendant and appellant.

OPINION

McEvers, Justice.

[¶1] David Gaddie appeals from a criminal judgment entered after a jury found him guilty of four counts of gross sexual imposition. Gaddie argues the jury instructions were confusing, the district court erred by not instructing the jury it must unanimously agree on the specific act underlying each count, and the court's inclusion of the term "willfully" in the jury instructions was improper. Gaddie did not object to the court's jury instructions. After reviewing the case under the obvious error standard of review, we affirm the judgment in part and reverse the judgment in part.

I

[¶2] The State charged Gaddie with two counts of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(d) and § 12.1-32-01(1). Those counts alleged Gaddie, who was older than twenty-two years of age, engaged in two sexual acts with the victim, who was younger than fifteen years of age. They specifically alleged Gaddie placed his tongue and his penis in the victim's vulva. The State also charged Gaddie with two counts of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(2)(a) and (3)(b) and § 12.1-32-01(2). Those counts alleged Gaddie engaged in sexual contact with the victim, who was younger than fifteen years old. Those counts specifically alleged Gaddie engaged in sexual contact by touching the victim's "breasts and/or vulva" and by touching the victim's vulva with his penis. All of the counts alleged Gaddie engaged in the conduct "willfully." The victim testified at trial. Recordings of forensic interviews of the victim were also admitted into evidence. Gaddie's defense was that the victim fabricated her accounts of the abuse and she had a motive to do so. The jury returned guilty verdicts on all counts.

[¶3] Gaddie's arguments on appeal focus on the jury instructions. He argues the instructions were confusing because they grouped the elements of the sexual act counts together and they grouped the elements of the sexual contact counts together. He also asserts the district court erred when it did not instruct the jury to unanimously agree on the underlying act supporting each conviction, and the court erred when it included the culpability level of willfully on all of the counts because the crimes are specific intent crimes. Gaddie offered instructions similar to those the court gave to the jury. He did not object to the court's jury instructions.

II

[¶4] Under N.D.R.Crim.P. 30(c), to preserve a jury instruction issue for appellate review, a party must object on the record stating the issue "distinctly" and specifying the grounds of his or her objection. If a party does not timely object, the issue is not preserved for review. State v Mathre, 1999 ND 224, ¶ 5, 603 N.W.2d 173. This Court's inquiry into an unpreserved jury instruction issue is limited to obvious error review under N.D.R.Crim.P. 52(b). Mathre, at ¶ 5; N.D.R.Crim.P. 30(d)(2). Obvious error review consists of determining whether (1) there was an error, (2) that was plain, and (3) that affected a party's substantial rights. State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658. An error is not obvious unless the defendant demonstrates it is a "clear or obvious deviation from an applicable legal rule." Id. at ¶ 15. If a defendant proves obvious error occurred, we have discretion whether to rectify it and will only do so when the error "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at ¶ 16 (quoting United States v. Olano, 507 U.S. 725, 726 (1993)). Rule 52(b) obvious error review does not apply to waived errors. Id. at ¶ 14. A party may not take advantage of an error he or she invited. State v. White Bird, 2015 ND 41, ¶ 24, 858 N.W.2d 642.

III

[¶5] Gaddie argues the district court erred by grouping the elements for the sexual act charges together and by grouping the elements for the sexual contact charges together. He claims the grouping was misleading and confusing.

[¶6] The purpose of jury instructions is to correctly and adequately advise the jury of the applicable law. State v. Erickstad, 2000 ND 202, ¶ 16, 620 N.W.2d 136. Jury instructions must not be misleading or confusing. Id. We review the instructions as a whole to determine whether they correctly and adequately advise the jury of the applicable law even if part of the instruction standing alone may be insufficient or erroneous. Id. We will only reverse a conviction based on an improper jury instruction if the instruction relates to a central subject in the case and affects a substantial right of the defendant. State v. Wilson, 2004 ND 51, ¶ 11, 676 N.W.2d 98.

[¶7] For the sexual act charges, the instructions provided:

Essential Elements of the Offense (for counts I and II)

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or between January 1, 2015 and December 1, 2018, in Grand Forks County, North Dakota, the Defendant, David Walter Gaddie willfully engaged in a sexual act with Jane Doe or caused Jane Doe to engage in a sexual act,

2) Jane Doe was less than fifteen (15) years old at the time, and

3) The Defendant, David Walter Gaddie, was twenty two (22) years of age or older at the time.

For the sexual contact charges, the instructions provided:

Essential Elements of the Offense (for counts III and IV)

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or between January 1, 2015 and December 1, 2018, in Grand Forks County, North Dakota, the Defendant, David Walter Gaddie willfully engaged in sexual contact with Jane Doe or caused Jane Doe to engage in sexual contact,

2) Jane Doe was less than fifteen (15) years old at the time.

[¶8] Gaddie asserts the jury instructions required the jury to return a guilty verdict on all counts based on a finding that he "engaged in a single instance of sexual contact" with the victim. He claims the instructions provided "no explanation that these were two separate crimes for the jury consider." We are not persuaded. Although the district court listed the elements of each crime together, the instructions clearly advised the jury it needed to find Gaddie guilty of four separate crimes. The opening instructions detailed each count:

The Second Amended Information charges the criminal offenses to have been committed as follows:

That on or between January 1, 2015 and December 1, 2018 within the County of Grand Forks in the State of North Dakota, one David Walter Gaddie, did commit the offenses of:

COUNT I:

GROSS SEXUAL IMPOSITION . . . willfully engaging in a sexual act . . . by placing his tongue in Jane Doe's vulva.

COUNT II:

GROSS SEXUAL IMPOSITION . . . willfully engaging in a sexual act . . . by penetrating Jane Doe's vulva with his penis.

COUNT III:

GROSS SEXUAL IMPOSITION . . . willfully engaged in sexual contact . . . by touching Jane Doe's breasts and/or vulva.

COUNT IV:

GROSS SEXUAL IMPOSITION . . . willfully engaged in sexual contact . . . by touching Jane Doe's vulva with his penis.

Along with the inclusion of the separate charges in the opening instructions, the charges were also read to the jury at the beginning of the trial. In addition, the district court provided separate guilty and not guilty verdict forms for each count that required the jury to find Gaddie guilty or not guilty of each crime "as charged in the Second Amended Information." The jury instructions and verdict form, taken as a whole, adequately advise the jury that Gaddie was on trial for four separate crimes. Although we generally do not condone grouping the elements of separate charges, we conclude the instructions in this case are not misleading or confusing as to the criminal conduct for which Gaddie was standing trial.

IV

[¶9] Gaddie argues the absence of a unanimity instruction allowed the jury to convict him of the crimes without agreeing on which underlying act provided the basis for each conviction.

[¶10] All verdicts in criminal cases must be unanimous. N.D. Const art. I, § 13; N.D.R.Crim.P. 31(a). When a defendant faces multiple counts of the same offense, a potential unanimity issue arises. Failing to include distinguishing information about the allegations creates uncertainty as to whether the jury unanimously agreed that the specific act forming the basis for each count occurred. State v. Martinez, 2015 ND 173, ¶ 18, 865 N.W.2d 391.

[¶11] Gaddie claims his case is similar to Martinez where the defendant was charged with three separate counts of gross sexual imposition. 2015 ND 173, ¶ 2. In Martinez, neither the jury instructions nor the verdict form provided factual information to distinguish between the counts. Id. at ¶ 13. Rather, the instructions stated that a finding of guilty was required for each count if the jury determined Martinez engaged in a separate sexual act with the victim. Id. The jury found Martinez guilty as to one count but could not reach a verdict on the other two counts. Id. at ¶ 6. On appeal, we held the instructions were erroneous and we reversed the judgment. Id. at ¶ 1. We explained:

When the jury instructions and verdict forms do not include information identifying the underlying acts for each count and distinguishing between the counts and the

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