State v. Gomez

• Decision Date: 08 February 2011
• Docket Number: No. 20100100.,20100100.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Ciro GOMEZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

793 N.W.2d 451

2011 ND 29

STATE of North Dakota, Plaintiff and Appellee

v.Ciro GOMEZ, Defendant and Appellant.

No. 20100100.

Supreme Court of North Dakota.

Feb. 8, 2011.

Barbara L. Whelan, State's Attorney, Grafton, N.D., for plaintiff and appellee.

Kent M. Morrow, Bismarck, N.D., for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Ciro Gomez appeals from a criminal judgment entered after a jury found him guilty of continuous sexual abuse of a child. Gomez argues the district court erred when it failed to issue a special verdict form, the evidence is insufficient to support his conviction, the court erred by refusing to consider his challenge to the ethnic and racial makeup of the jury panel, and his sentence violates the Eighth Amendment prohibition against cruel and unusual punishment. We affirm.

I

[¶ 2] In January 2009, Gomez was charged with continuous sexual abuse of a child in violation of N.D.C.C. § 12.1-20-03.1, a class AA felony. The State alleged Gomez forced Jane Doe, a twelve-year-old female, to place her hands on his penis over his clothing and forced her to move her hands over his penis for the purpose of arousing or satisfying his sexual or aggressive desires. The State alleged the sexual contacts occurred numerous times each week between May 2008 and January 5, 2009.

[¶ 3] A jury trial was held in October 2009. After the jury was selected and sworn in, Gomez objected to the makeup of the jury panel. Gomez later moved for a mistrial, arguing the composition of the jury panel lacked a fair cross-section of Walsh County. The district court advised Gomez that his claim needed to be more fully developed and that an evidentiary hearing probably would be necessary. In a November 4, 2009 order relating to Gomez's motion, the court notified Gomez that his motion must be developed by presentation of evidence and that he needed to request an evidentiary hearing within ten days if he wanted to proceed with the motion. Gomez did not request an evidentiary hearing. On December 9, 2009, the court denied Gomez's motion for mistrial.

[¶ 4] After the State presented its evidence, Gomez moved for a judgment of acquittal under N.D.R.Crim.P. 29, arguing the case must be dismissed because the alleged acts cannot constitute sexual contacts. He claimed sexual contact, as defined by statute, is limited to acts performed by the offender to the sexual parts of the minor and does not include acts done by the minor to the offender. The district court denied Gomez's motion.

[¶ 5] The jury found Gomez guilty. Gomez was sentenced to life imprisonment, with the balance suspended after he serves thirty years.

II

[¶ 6] Gomez argues the district court erred by failing to issue a special verdict form because N.D.C.C. § 12.1-20-03.1 requires the jury to make a finding of guilt and a separate unanimous finding that three or more sexual acts or contacts occurred. The jury was given one verdict form for finding Gomez guilty and another form for finding Gomez not guilty. The jury was not required to make any separate findings. Gomez contends the court cannot assume the jury unanimously found three or more sexual contacts occurred when it found he was guilty of the offense.

[¶ 7] Section 12.1-20-03.1, N.D.C.C., provides the statutory requirements for the offense of continuous sexual abuse of a child:

"1. An individual in adult court is guilty of an offense if the individual engages in any combination of three or more sexual acts or sexual contacts with a minor under the age of fifteen years during a period of three or more months. The offense is a class AA felony if the actor was at least twenty-two years of age at the time of the offense.

Otherwise, the offense is a class A felony. The court may not defer imposition of sentence.

"2. If more than three sexual acts or contacts are alleged, a jury must unanimously agree that any combination of three or more acts or contacts occurred. The jury does not need to unanimously agree which three acts or contacts occurred."

[¶ 8] Unlike the rules of civil procedure, "the rules of criminal procedure do not provide for special verdicts or general verdicts accompanied by special interrogatories ... and the only proper verdicts are guilty or not guilty." State v. Steen, 2000 ND 152, ¶ 9, 615 N.W.2d 555. Rule 31(e), N.D.R.Crim.P., authorizes the use of a special verdict form in limited circumstances in criminal cases, including when certain defenses have been raised and when overt acts of treason are alleged. This Court has also said a special verdict form or special findings may be required when a statute explicitly requires the factfinder make findings for sentencing purposes and the fact at issue is not an essential element of the offense. See State v. Sheldon, 312 N.W.2d 367, 370 (N.D.1981) (N.D.C.C. § 12.1-32-02.1, which provides minimum prison terms for armed offenders, requires that the jury make a special finding that the accused was in possession of a dangerous weapon, explosive, or firearm in the course of committing the offense). The use of special verdicts or interrogatories is disfavored in criminal cases, but is not per se impermissible and has been approved by other courts when "the special findings benefit the defendant, were neither inherently prejudicial nor predeterminative of the jury's verdict, or assisted the court for sentencing purposes." Steen, at ¶ 9.

[¶ 9] Gomez was not charged with treason and he did not raise any defenses requiring a special verdict form under N.D.R.Crim.P. 31. Although Gomez's age at the time of the offense did affect the classification of the offense under N.D.C.C. § 12.1-20-03.1 and the maximum penalty available, the parties stipulated Gomez was at least twenty-two years old at the time of the offense. A special finding was not required for sentencing purposes. Cf. Sheldon, 312 N.W.2d at 370. We conclude a special verdict form was not required in this case.

[¶ 10] Instructions must fairly and adequately advise the jury of the applicable law. State v. Haugen, 2007 ND 195, ¶ 6, 742 N.W.2d 796. "The occurrence of three or more sexual acts or contacts is an [essential] element of the offense." State v. Martin, 2001 ND 189, ¶ 6, 636 N.W.2d 447. Section 12.1-20-03.1(2), N.D.C.C., requires a jury unanimously agree that three or more acts or contacts occurred. Here, the jury instructions included the essential elements of the offense and informed the jury that it "must unanimously agree that any combination of three or more acts or contacts occurred. You do not need to unanimously agree which three acts or contacts occurred." The jury instructions adequately advised the jury of the law. "A jury is presumed to follow instructions given by the [ ] court." State v. McClary, 2004 ND 98, ¶ 17, 679 N.W.2d 455. We conclude the district court properly instructed the jury and did not err by failing to issue a special verdict form.

III

[¶ 11] Gomez argues insufficient evidence supports his conviction. He contends a minor touching an adult cannot constitute sexual contact as defined by N.D.C.C. § 12.1-20-02 and, therefore, no evidence establishes he engaged in three or more sexual contacts with the childbecause there was no evidence he touched the child.

[¶ 12] Under N.D.R.Crim.P. 29(a), after the close of the prosecution's evidence or after the close of all evidence, the district court is authorized, on the defendant's motion, to "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." The standard of review for a challenge to the sufficiency of the evidence is well established:

"[T]his Court views the evidence most favorable to the verdict and all reasonable inferences drawn from such evidence. The defendant must show the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. This Court will not weigh conflicting evidence or judge the credibility of witnesses; rather, we will only reverse a conviction if no rational fact-finder could have found the defendant guilty beyond a reasonable doubt."

State v. Grant, 2009 ND 210, ¶ 22, 776 N.W.2d 209 (quoting State v. McAvoy, 2009 ND 130, ¶ 8, 767 N.W.2d 874) (citations omitted).

[¶ 13] An individual is guilty of continuous sexual abuse of a child "if the individual engages in any combination of three or more sexual acts or sexual contacts with a minor under the age of fifteen years during a period of three or more months." N.D.C.C. § 12.1-20-03.1(1). "Sexual contact" means:

"any touching, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission of urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires."

N.D.C.C. § 12.1-20-02(5).

[¶ 14] The interpretation of a statute is a question of law, which is fully reviewable on appeal. State v. O'Toole, 2009 ND 174, ¶ 11, 773 N.W.2d 201. "Words in a statute are given their plain, ordinary, [and] commonly understood meaning, unless defined in the code or unless the drafters clearly intended otherwise." Id. (quoting Sauby v. City of Fargo, 2008 ND 60, ¶ 8, 747 N.W.2d 65); see also N.D.C.C. § 1-02-02.

[¶ 15] The plain language of N.D.C.C. § 12.1-20-02(5) states sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires. The word "person" is not specifically defined in the statute; therefore, the plain, ordinary, and commonly understood meaning applies. N.D.C.C. § 1-02-02. The statute does not limit the definition of sexual contact to the touching of the child's sexual or other intimate parts; rather, the plain language of the statute includes any touching of the sexual or intimate parts of the person by the child. N.D.C.C. § 12.1-20-02(5).

[¶ 16] In this case, the child testified Gomez forced her to place her hands on his penis over his...