State v. Grant

• Decision Date: 15 December 2009
• Docket Number: No. 20090076.,20090076.
• Citation: 776 N.W.2d 209,2009 ND 210
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Rondale GRANT, Defendant and Appellant.
• Court: North Dakota Supreme Court

776 N.W.2d 209

2009 ND 210

STATE of North Dakota, Plaintiff and Appellee v. Rondale GRANT, Defendant and Appellant.

No. 20090076.

Supreme Court of North Dakota.

December 15, 2009.

Tanya Johnson Martinez (argued), Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Benjamin C. Pulkrabek (argued), Mandan, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Rondale Grant appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition. We hold the district court did not abuse its discretion by admitting a nurse practitioner's report into evidence, and the State produced sufficient evidence to convict Grant of the crime. We affirm Grant's conviction. However, because the criminal judgment does not clearly state the jury entered a verdict of guilty, we remand to the district court for correction of the clerical error.

I.

[¶ 2] Defendant Grant and Randie Johnson have three children together, including daughter K.D.J. In February 2007, Cass County Social Services removed the children from their parents' home and placed them with their grandmother, Beth Johnson. In April 2007, eight-year-old K.D.J. began seeing an in-home therapist. At a regular therapy session at Beth Johnson's home on June 7, 2007, K.D.J. told the therapist Grant made her watch sex movies and explained to her how babies are made. The therapist inquired further, and K.D.J. said Grant had touched her private parts and made her touch his as well. At the end of the session, the therapist informed Cass County Social Services and law enforcement about K.D.J.'s allegations. The State charged Grant with gross sexual imposition, claiming he had penetrated K.D.J.'s vagina with his fingers and coerced her to place his penis in her mouth.

[¶ 3] At trial, K.D.J. testified Grant made her watch "sex movies" with him on approximately ten different occasions. While watching the films, K.D.J. testified Grant told her to pull her pants down, which she did, and then he did the same. K.D.J. testified Grant touched her vagina with his fingers, mouth, and penis, and also touched her mouth with his penis. She stated Grant rubbed lotion on her vagina so his penis could "go through," but it did not because it was too big. K.D.J. also recalled one occasion where Grant performed a sex act in the bedroom she shared with her two younger siblings. K.D.J. testified she was sleeping and woke up to find her legs hanging over the side of the bed and Grant licking her vagina.

[¶ 4] Nurse practitioner Sheryll Clapp testified about a physical examination she performed on K.D.J. on June 20, 2007. Following the examination, Clapp created a report of her findings. The report contained information regarding K.D.J.'s family and medical history, which was provided by Beth Johnson and Cass County Social Services. The report stated "[K.D.J.] had told [Beth Johnson] that her father would `hit her in the head,'" and "Beth Johnson is not sure of what Dale Grant's (biologic father) health history is. She states that there is drug use but she is unsure of any other history." In addition, the report noted: "[Beth Johnson] also states that [K.D.J.] was somewhat fearful and anxious when she first came to see them but has been much more talkative since her disclosure [to the therapist]." Clapp testified the historical information was necessary to properly diagnose and treat K.D.J.

[¶ 5] The nurse practitioner's report also included statements made by K.D.J. in response to Clapp's questions about her physical and mental condition. The report stated K.D.J. said she and Grant watched "porn movies together just a couple of times." It also stated K.D.J. said "twice [Grant] touched my private parts" and he "put lotion in my private area with his hand." In addition, the report stated K.D.J. said Grant placed his penis in her mouth and it was hard at the time. Finally, the report stated K.D.J. said Grant told her "nothing would come out [of his penis] unless he got excited."

[¶ 6] In its conclusion, the report stated the examination produced no residual physical evidence of sexual abuse. However, the report also noted the lack of physical evidence did not preclude a diagnosis of sexual abuse due to the length of time between the alleged contact and exam, and K.D.J. was consistent in her description of the alleged sexual contact when discussing it with different persons. The report said K.D.J. described physical symptoms "consistent with the history of vulvar genital penetration" and that she demonstrated a knowledge of ejaculation abnormal for a female her age. Therefore, the report recommended K.D.J. receive counseling for posttraumatic stress resulting from inappropriate sexual contact.

[¶ 7] In a pretrial hearing, the State informed the district court and Grant's counsel that it planned to offer a redacted version of the nurse practitioner's report into evidence. The state's attorney said the report was redacted to eliminate any information personally identifying K.D.J. Grant's counsel did not request additional redaction or otherwise object to the report during the pretrial hearing. However, when the State offered the report into evidence at trial, Grant's counsel did object, arguing the report contained hearsay that was not admissible under any exceptions to the hearsay rule. Specifically, Grant's counsel argued the report did not qualify under the business records exception, N.D.R.Ev. 803(6), or the exception for statements for the purpose of medical diagnosis, N.D.R.Ev. 803(4), because "[the report] goes far beyond what's necessary for a diagnosis." The State argued the report was admissible under both exceptions. The district court found the report met the requirements of the business records exception and admitted it over Grant's objection.

[¶ 8] At the close of the State's case-in-chief, Grant moved for a judgment of acquittal under N.D.R.Crim.P. 29, which the district court denied. Grant then testified in his own defense. He denied ever touching K.D.J. in a sexual manner or watching pornographic videos with her. Grant testified he caught K.D.J. watching a pornographic video she had found in his and Randie Johnson's bedroom. He stated he took the video from K.D.J. and answered her questions about what the people in the video were doing. Grant testified this incident provided K.D.J. with the information that enabled her to testify about sexual acts.

[¶ 9] The jury found Grant guilty of gross sexual imposition, and the district court entered a criminal judgment against him. Grant now appeals, arguing the district court abused its discretion by admitting the nurse practitioner's report and the State failed to produce sufficient evidence to convict him of the crime.

II.

[¶ 10] This Court recognizes district courts have broad discretion regarding evidentiary matters. Interest of B.B., 2007 ND 115, ¶ 6, 735 N.W.2d 855. Therefore, we will not reverse a court's decision to admit evidence absent an abuse of discretion. Id. "A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law." Id.

[¶ 11] The nurse practitioner's report directly and indirectly quoted both K.D.J. and Beth Johnson. The report provided K.D.J. said she and Grant watched "porn movies together just a couple of times," "twice [Grant] touched my private parts," and he "put lotion in my private area with his hand." In addition, the report stated K.D.J. said Grant placed his penis in her mouth, the penis was hard at the time, and Grant told her "nothing would come out [of his penis] unless he got excited." Further, the report provided Beth Johnson said K.D.J. told her "that [Grant] would `hit her in the head.'" The report also stated "Beth Johnson is not sure of what Dale Grant's (biologic father) health history is. She states that there is drug use but she is unsure of any other history." Finally, the report provided: "[Beth Johnson] also states that [K.D.J.] was somewhat fearful and anxious when she first came to see them but has been much more talkative since her disclosure." Both Beth Johnson and K.D.J. testified at trial.

[¶ 12] Rule 801, N.D.R.Ev., defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Although N.D.R.Ev. 802 states hearsay is generally inadmissible, N.D.R.Ev. 803 provides several exceptions to the general rule, two of which are pertinent to this matter. Under N.D.R.Ev. 803, the rule against hearsay does not exclude:

(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

. . . .

(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

. . . .

"Rule 803, N.D.R.Ev., is an adoption of Fed.R.Evid. 803, and we may look to federal courts' interpretations of the federal rule as a guide in construing our rule." Interest of ...