State v. Gross, Cr. N

• Decision Date: 23 May 1984
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Nick GROSS, Defendant and Appellant. o. 949.
• Court: North Dakota Supreme Court

Page 428

351 N.W.2d 428

STATE of North Dakota, Plaintiff and Appellee, v. Nick GROSS, Defendant and Appellant.

Cr. No. 949.

Supreme Court of North Dakota.

May 23, 1984.

Charles D. Orvik, State's Atty., Rugby, for plaintiff and appellee state.

A.S. Benson III, Benson Law Office, Bottineau, for defendant and appellant.

VANDE WALLE, Justice.

Nick Gross appealed from the judgment of conviction entered by the district court of Pierce County which found him guilty of gross sexual imposition. We affirm.

In December 1982 a social worker at Pierce County Social Services signed a complaint charging Nick Gross with the offense of gross sexual imposition, in violation of Section 12.1-20-03(1)(d), N.D.C.C. The complaint alleged that Gross on numerous occasions had engaged in sexual intercourse with his 12-year-old daughter L. Prior to the filing of this complaint, a juvenile court hearing was conducted to determine if L. was a deprived child. At the hearing, after being advised of his right to remain silent and that any admission could be used against him in subsequent criminal proceedings, Gross admitted that he had an incestuous relationship with his daughter L.

Immediately prior to trial, the State and Gross entered into a plea agreement. The trial judge dismissed the jury panel, telling the members that they were excused because the parties had reached a settlement. After Gross revoked the plea agreement, the trial judge re-called for service the same jury panel. The judge stated:

"Yesterday when I told you I thought there had been a settlement, I was mistaken. I spoke too soon, and that's why I've had to ask you back here this morning.

"I want you to understand that the inconvenience that you may have been put to by this is not the responsibility of the parties, either of them, in any way. It's my fault and I'm sorry. I apologize to you."

After the trial judge denied Gross's motion for a new jury panel, the attorneys proceeded to select the jury.

At the trial L. testified that she had sexual intercourse with Gross on several occasions. The State also called as witnesses L.'s older sister, her mother, social service workers, and a physician. At the trial, Gross denied having an incestuous relationship with L. The jury found Gross guilty of gross sexual imposition. On appeal Gross raises six issues.

I

Gross contends that the jury instructions failed to articulate properly the elements of the offense of gross sexual imposition. Section 12.1-20-03, N.D.C.C., provides, in part:

"12.1-20-03. Gross sexual imposition.

"1. A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if: ...

"d. The victim is less than fifteen years old; ..."

In interpreting this statute the trial court instructed the jury that the offense of gross sexual imposition contains three elements: that the defendant engaged in a sexual act with another person, that he did so willfully, and that the victim was less than 15 years old at the time the offense was committed.

Gross requested that the jury be advised of a fourth element, that the sexual contact was done for the purpose of arousing or gratifying sexual desire. Gross argues that there are four elements because of his construction of Section 12.1-20-03(1)(d) and Section 12.1-20-02(1) and (2) [1981]. ¹ The trial court read to the jury the definitions of "sexual act" and "sexual contact" as set forth in Section 12.1-20-02 after specifying three elements of gross sexual imposition. Gross argues that because the definition of "sexual act" uses the term "sexual contact" and because "sexual contact" must be for the purpose of arousing or gratifying sexual desire, the State must prove that the sexual act was for the purpose of arousing or gratifying sexual desire.

In State v. Jenkins, 326 N.W.2d 67 (N.D.1982), a defendant argued that there was no evidence to establish the element that the alleged sexual contact was for the purpose of arousing or gratifying sexual desire. We stated:

"Whether or not the inference that the touching was for the purpose of arousing or gratifying sexual desire is within the province of the trier of fact. The very nature of determining whether or not certain acts were done to arouse or satisfy a sexual desire, or that they did, can be determined primarily from the acts themselves as distinguished from outright admissions." 326 N.W.2d at 72.

Although we might agree with Gross that the purpose of the sexual act constitutes a fourth element of the offense of gross sexual imposition, the evidence supporting the jury's finding that Gross engaged in sexual intercourse establishes beyond a reasonable doubt that the sexual act was for the purpose of arousal or sexual gratification. Under these circumstances, any error arising as a result of the district court's refusal to indicate clearly this fourth element is harmless error.

II

Gross contends that the district court erred in refusing to instruct the jury that incest is a lesser included offense within the crime of gross sexual imposition. At trial he based his motion for this instruction on his interpretation of State v. Sheldon, 301 N.W.2d 604 (N.D.1980), cert. denied 450 U.S. 1002, 101 S.Ct. 1711, 68 L.Ed.2d 204 (1981). On appeal he maintains that instructions are warranted if they are for "cognate offenses," as defined in People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975).

Section 12.1-01-04(15), N.D.C.C., provides, in part, that an "included offense" is one that is "established by proof of the same or less than all the facts required to establish commission of the offense charged." State v. Sadler, 305 N.W.2d 913 (N.D.1981). In State v. Sheldon, supra, this court stated that there are two variants of lesser included offenses:

"The first variant exists when it is impossible to commit the greater offense without committing the lesser included offense. Therefore, the elements of the offenses are the same regardless of the proof offered in a particular case. The second variant exists when the second offense is presumptively necessarily included within the offense charged in the case." 301 N.W.2d at 611.

We recognized, however, that even if an offense is a lesser included offense, the evidence presented at trial determines if an instruction is warranted. Before a court may instruct the jury as to a lesser included offense, it must determine if the evidence creates a reasonable doubt as to the greater offense and supports a conviction of the lesser included offense beyond a reasonable doubt. See, e.g., State v. Jacobson, 338 N.W.2d 648 (N.D.1983); State v. Trieb, 315 N.W.2d 649 (N.D.1982). By requiring independent evidence of the greater and lesser included offenses, a court ensures that the jury will be less likely to reach decisions based on sympathy or on a desire to reach an agreement and more likely reach decisions based on the evidence actually presented. See State v. Skjonsby, 319 N.W.2d 764 (N.D.1982); State v. Piper, 261 N.W.2d 650 (N.D.1977).

In the present case we need not consider if Section 12.1-01-04(15) and cases interpreting this section permit instructions for cognate offenses; nor do we need to determine if incest is a lesser included offense of gross sexual imposition. ² The district court properly denied Gross's request for an instruction on incest because of the evidence presented at trial. The evidence either supported conviction of both offenses or neither offense. Gross therefore was not entitled to an instruction on incest because the evidence did not create a reasonable doubt as to the offense of gross sexual imposition.

III

Gross argues that his Fifth Amendment right against compelled self-incrimination was violated when the State used the admission he allegedly made at the juvenile court hearing in its case-in-chief. Gross does not challenge the State's use of his admission when it cross-examined him, after he denied having had an incestuous relationship with L.; he does contend that the district court should not have permitted a social worker to testify that she heard Gross at the juvenile court hearing admit that he had an incestuous relationship with L.

The Fifth Amendment provides, in part, that no person "shall be compelled in any criminal case to be a witness against himself, ..." U.S. Const., Amend. V. See also N.D. Const., Art. I, Sec. 12. A defendant may refuse to provide self-incriminating answers in civil as well as criminal proceedings. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973).

In the present case the trial judge reviewed the record, the court's notes, and the transcript of the juvenile court hearing. The trial judge stated that Gross had been represented by counsel at the juvenile court hearing, that he had been advised of his right to not incriminate himself, that he had been informed of other rights he would be waiving if he admitted the incestuous relationship, and that the admission could be used in subsequent criminal proceedings. At the time of the juvenile court proceeding, Gross was not under arrest. We agree with the trial court that the defendant knowingly and intelligently waived his right against compelled self-incrimination. The use of the admission as substantive evidence thus did not violate Gross's right against compelled self-incrimination. ³

IV

Gross contends that the district court erred in denying his motion for a new jury panel. He maintains that after the trial judge told the jury panel that the case had been "settled" the panel members knew that the case had been either dismissed or there had been a plea agreement. Gross argues that when the trial judge re-called the same jury panel, the members then knew that there had been a plea agreement.

The Sixth Amendment, which is applicable to the States through the Fourteenth Amendment, guarantees a defendant the right to an impartial jury. U.S. Const., Amend. VI; see Section 29-01-06(5), N.D.C.C.; ...