State v. Jensen, 990154.

• Decision Date: 22 February 2000
• Docket Number: No. 990154.,990154.
• Citation: 606 N.W.2d 507,2000 ND 28
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. LeMoyne JENSEN a/k/a Lee Jensen, Defendant and Appellant.
• Court: North Dakota Supreme Court

606 N.W.2d 507

2000 ND 28

STATE of North Dakota, Plaintiff and Appellee, v. LeMoyne JENSEN a/k/a Lee Jensen, Defendant and Appellant.

No. 990154.

Supreme Court of North Dakota.

February 22, 2000.

Marina Spahr, State's Attorney, Carrington, N.D., for plaintiff and appellee.

Faye A. Jasmer, Grand Forks, N.D., for defendant and appellant.

NEUMANN, Justice.

[¶ 1] LeMoyne Jensen appealed from judgments of conviction upon jury verdicts finding him guilty of reckless endangerment, terrorizing, and gross sexual imposition. We hold the trial court did not commit reversible error in ruling on evidence relating to prior sexual conduct, and we affirm.

I.

[¶ 2] Jensen and the alleged victim ("Alice Smith," a pseudonym) were involved in a personal relationship for about four years and cohabited on a farmstead near Cooperstown. On the evening of the alleged crimes, they watched a movie together in their home and then had intercourse on the floor in the living room. Jensen testified they had consensual sex, but Smith testified she acquiesced only because she was afraid of Jensen. Smith testified that after having sex in the living room she went upstairs to bed. She said Jensen followed later and forced her to have anal intercourse, during which he began yelling and hitting her. She testified she began crying and Jensen knocked her off the bed and kicked her with his bare feet. She also testified Jensen threatened to hit her with a stick and repeatedly chambered a shotgun while standing at the foot of the bed, which made her fear he was going to kill both of them. Jensen eventually went downstairs to sleep. The next morning, Smith left the farmstead with neighbors and reported the incident to the authorities.

[¶ 3] Jensen testified the sex between himself and Smith that evening was entirely consensual. He admitted he "spanked" Smith, but claims it was all part of rough sex play and Smith consented to it. He also admitted striking and kicking Smith that evening out of frustration, but he claimed he never threatened her with a stick or gun. He testified he grabbed and removed a gun that was near Smith, because Smith had previously shot out windows with it and he thought she might use it again.

[¶ 4] The State filed three criminal counts charging Jensen with class C reckless endangerment, class C felony aggravated assault, and class A felony gross sexual imposition. A jury found Jensen guilty of reckless endangerment, terrorizing, and gross sexual imposition. Judgments of conviction were entered, and Jensen was sentenced by the court to concurrent terms of five years each on the terrorizing and reckless endangerment convictions and 12 years, with five suspended, together with a $500 fine and a $25 assessment to the victim witness fund, for the gross sexual imposition conviction.

II.

[¶ 5] On appeal, Jensen claims he was denied constitutional due process and confrontation rights when the court refused to allow him to introduce evidence of prior sexual activity between himself and Smith after the State had "opened the door" to such evidence. Upon careful review of the record, we are not convinced the trial court committed reversible error in its rulings on prior sexual conduct evidence.

[¶ 6] The admission of an alleged victim's sexual behavior or sexual predisposition in criminal proceedings is governed by N.D.R.Ev. 412, which provides:

(a) Evidence Generally Inadmissible. The following evidence is not admissible in any criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) evidence offered to prove that any alleged victim engaged in other sexual behavior; and

(2) evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions. In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(1) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(2) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct, offered by the accused to prove consent or by the prosecution; and

(3) evidence the exclusion of which would violate the constitutional rights of the defendant.

(c) Procedure to Determine Admissibility.

(1) A party intending to offer evidence under subdivision (b) must:

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

(2) Before admitting evidence under this rule, the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

Under this rule evidence that an alleged victim of sexual misconduct engaged in other sexual behavior or evidence of the victim's sexual predisposition is not admissible. The rule provides limited exceptions to the general rule of inadmissibility, and under N.D.R.Ev. 412(b)(2) evidence of specific instances of sexual behavior between the alleged victim and the accused, offered by the accused to prove consent or offered by the prosecution, can be admissible. However, under N.D.R.Ev. 412(c) a party intending to use such evidence must file a written motion at least 14 days before trial, and the court must conduct an in camera hearing on the motion. For good cause shown the court can allow a different time for filing the motion.

[¶ 7] Neither the State nor Jensen filed a written motion to admit evidence covered under N.D.R.Ev. 412. However, before the trial started, the State made a motion in limine to preclude the defense from offering any evidence regarding prior sexual activity between Jensen and Smith. Jensen's attorney argued prior sexual activity between Jensen and Smith constituted relevant evidence for the jury to consider in determining whether Smith consented to the sexual activity on the night of the alleged crimes. The trial court reserved its ruling until seeing how the testimony developed in open court.

[¶ 8] At trial, Smith gave the following testimony which both parties treated as relating to specific instances of prior sexual behavior¹ between her and the defendant:

A. I said that I did not feel like it. I did not want to. And he said, come on [Alice], and I pretty much knew I better do it.

Q. Okay, how do you know that?

A. Because of the past, I just know that he would take it anyway.

Q. Okay, and what do you mean because of the past, he will take it anyway?

A. Because it has happened before.

Q. What has happened before?

A. Where he has wanted sex and I did not.

Q. And?

A. And he took it anyway.

....

A. There has been times before where he has just totally ripped off my clothes or has just—he gets mad. He has bit me before. He will, he will do it, too, take it. He always says that he is the one that is being rejected and he gets very mad. And that, at the least, is what I could do in a relationship, is do that.

....

Q. Just to make sure that I have heard you correctly, did you say if you say or do anything, he will lose his erection?

A. That is what ends up happening, so I have learned to be quiet.

Q. So that what is [sic] he was doing or what you think that he was intending when he was telling you to not move and keep your knees together and those things?

A. Yes, and like the angrier that he is, the more angrier the he—basically, every time he is angry, he can climax.

....

Q. Are you implying that he needs to be angry or—

A. I don't know, it seems like it.

Q. Okay, from your past experience?

A. Yes.

This evidence was introduced by the State without any objection by the defense. Counsel for the defendant explains in her appellate brief ".... Defendant did not object to the prosecution's line of questioning because Defendant assumed that the prosecution had now `opened the door' on specific instances of prior sexual conduct between the Defendant and the alleged victim by making the issue of consent foremost in its case."

[¶ 9] Later in the trial, the defendant attempted to admit evidence of anal intercourse and of spanking during prior episodes of sex between himself and Smith. The State objected to this evidence on the ground the defendant had not complied with the notice requirements of N.D.R.Ev. 412(c). The trial court sustained the objections and refused to admit the evidence. Jensen claims the trial court committed reversible error by refusing to allow this evidence after the State had opened the door to evidence of prior sexual activity between Jensen and Smith.

[¶ 10] The trial court has broad discretion in evidentiary matters and, absent an abuse of discretion, we will not reverse its decision. State v. Leinen, 1999 ND 138, ¶ 7, 598 N.W.2d 102. Failure to provide written notice of intent to offer evidence, as required by N.D.R.Ev. 412(c), is reason alone for the court to deny admissibility of the evidence. See United States v. Eagle Thunder, 893 F.2d 950, 954 (8th Cir.1990)

(interpreting F.R.Ev. 412); see also U.S. v. Boyles, 57 F.3d 535, 548 (7th Cir.1995) (court's failure to rule on admission of evidence under Rule 412 not error where the defendant did not file the required notice and did not make a proper offer of proof).

[¶ 11] Upon a showing of "good cause" the court can allow the late filing of a motion to admit evidence under N.D.R.Ev. 412. However, defense counsel has offered no explanation or reason for failing to comply with the 14-day notice requirement. Given Jensen's argument in response to the State's motion in limine, clearly the...