State v. Gardner

• Docket Number: 20220360
• Decision Date: 21 June 2023
• Citation: 2023 ND 116
• Parties: State of North Dakota, Plaintiff and Appellee v. Corey Lynn Gardner, Defendant and Appellant
• Court: North Dakota Supreme Court

1

2023 ND 116

State of North Dakota, Plaintiff and Appellee
v.
Corey Lynn Gardner, Defendant and Appellant

No. 20220360

Supreme Court of North Dakota

June 21, 2023

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge. AFFIRMED.

Nathan K. Madden, Assistant State's Attorney, Williston, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

OPINION

Bahr, Justice.

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[¶1] Corey Lynn Gardner appeals from a criminal judgment entered after a jury convicted her of child abuse in violation of N.D.C.C. § 14-09-22. She argues improper jury instructions resulted in obvious error. She also argues insufficient evidence supports the conviction. We affirm the judgment.

I

[¶2] Gardner was charged with child abuse in violation of N.D.C.C. § 14-0922. The Information alleged, as "the daytime caregiver of Jane Doe, age 2 months," Gardner "inflicted or allowed to be inflicted bodily injury on Jane Doe[.]" Section 14-09-22(1), N.D.C.C., provides:

[A] parent, adult family or household member, guardian, or other custodian of any child, who willfully inflicts or allows to be inflicted upon the child mental injury or bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1-01-04 is guilty of a class C felony except if the victim of an offense under this section is under the age of six years in which case the offense is a class B felony

[¶3] The district court's opening instructions describe the charged offense as: "Corey Lynn Gardner, the daytime caregiver to Jane Doe, age two months, inflicted or allowed to be inflicted bodily injury on Jane Doe ...." The closing instructions state the essential elements of abuse of a child as:

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

1) On or about November 6, 2018, in Williams County, North Dakota;

2) The Defendant, Corey Lynn Gardner;

3) Was an other custodian of Jane Doe, a minor child, under the age of six years; and

4) Willfully inflicted or willfully allowed to be inflicted upon the child, bodily injury.

3

Gardner did not object to the instructions.

II

[¶4] Gardner argues the jury instructions incorrectly informed the jury of the law because the instructions improperly state the culpability level in the essential elements as "willfully inflicted or willfully allowed to be inflicted upon the child." Gardner acknowledges she did not object to the instructions and, thus, did not preserve the issue for appellate review. However, she asks this Court to review the instructions under the obvious error standard. She argues the district court's insertion of "willfully" before "allowed to be inflicted" is obvious error.

[¶5] Because Gardner did not preserve this issue for appeal, the alleged error will only be reviewed for obvious error. See State v. Watts, 2023 ND 47, ¶ 19, 988 N.W.2d 254 (stating when the defendant fails to properly object to a proposed jury instruction the alleged error is not preserved for appeal and the instruction will only be reviewed for obvious error); State v. Schaf, 2023 ND 81, ¶ 17, 989 N.W.2d 473 (same). "To establish an obvious error, the defendant must show: (1) error; (2) that is plain; and (3) the error affects the defendant's substantial rights." State v. Smith, 2023 ND 6, ¶ 5, 984 N.W.2d 367 (cleaned up). "To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. There is no obvious error when an applicable rule of law is not clearly established." State v. Lott, 2019 ND 18, ¶ 8, 921 N.W.2d 428 (quoting State v. Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 774). "We have discretion in deciding whether to...