State v. Joern, 566
| Decision Date | 27 January 1977 |
| Docket Number | No. 566,566 |
| Citation | 249 N.W.2d 921 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Earl Martin JOERN, Defendant and Appellant. Crim. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. In instructions to a jury trying a charge of gross sexual imposition, the use of the words 'compels' and 'force' negate consent by the victim, and no instruction on consent as a defense need be given, at least in the absence of a request for such an instruction.
2. Nondirection is not prejudicial error unless it amounts to misdirection.
3. The Supreme Court, on appeal from a judgment in a criminal case, will not review a sentence between the minimum and maximum penalties permitted by statute.
Joseph A. Turman, Asst. State's Atty., Fargo, for plaintiff and appellee State of North Dakota.
C. Charles Chinquist, Fargo, for defendant and appellant.
The defendant appeals from his conviction of gross sexual imposition, approximately equivalent to the former crime of first-degree rape. The case was tried to a jury.
The complainant, a young divorced woman who lived with her three children in a mobile home, testified that a man entered the home on a Friday evening after she and her children were in bed. She asked who it was, and he gave a name she did not understand. She asked him to leave and he refused. He told her what he intended to do. He lay on her in such a way that she could not use her arms. She wriggled and tried to escape, but could not. He made no threats, unless it was a threat to say, 'Bite me, just bite me,' in a way she interpreted as constituting a 'dare.'
She described him as about six feet tall, solidly built, with a full beard, and wearing a tan or off-white jacket and tan or off-white trousers and boots. She saw his face once in the light, after the sexual act was completed, when he turned on the light to pick up something he had dropped on the floor, just as he was leaving. He asked if he could come back the next night and she told him he could not.
She immediately called a neighbor, who advised her to call the police. She did so and gave a full report, including a description which matched the defendant quite closely.
The next night, when she had a married couple to whom she was related staying with her, the defendant came to the door after all of them were in bed and the lights were out. He was captured at the door by the male relative. He claimed he was looking for a party that was going on somewhere in the trailer court.
At the trial, he never specifically denied committing the offense. He said he could not remember anything about it.
He had a 13-year-old girlfriend, who testified that she was told on Saturday by him that he had gone to bed with a woman the night before. The defendant could not remember telling the girlfriend this story, but did not deny it, either, and admitted the girlfriend was a truthful person.
The defendant raises two issues. The first is whether the court committed prejudicial error in failing to instruct on the defense of consent, and the second is whether the Supreme Court should modify the sentence pronounced by the trial court.
The trial court gave no specific instruction as to consent. None was requested.
The trial court fully instructed on the elements of the offense of gross sexual imposition. Those instructions included these three paragraphs:
'Under the laws of the State of North Dakota, the crime of gross sexual imposition is defined and is a crime when a person engages in a sexual act with another or who causes another to engage in a sexual act if he compels the victim to submit by force or by threat of imminent death, serious bodily injury or kidnaping to be inflicted on any human being.
'You are further instructed that the term 'serious bodily injury' means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ.
'The court further instructs the jury that the force mentioned in the foregoing definition as applied to the crime charged is such force as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the parties and other circumstances of the case.'
The instructions clearly require the jury to find the use of force sufficient to overcome resistance. The use of the word 'compels' negates consent, as does the requirement that the use of 'force' be found by the jury. See People v. Hayn, 34 Ill.App.3d 1029, 341 N.W.2d 182 (1976).
We find nothing in the evidence to suggest that the complainant consented at any time to the acts of the defendant. The defendant does not even argue that force was not used. He seems to suggest that the complainant consented after the force was used. Such an unlikely consent is not suggested by the evidence and, in the absence of any request for an instruction on the subject, there is no need for the trial court to suggest it.
It is true, as defendant asserts, that he was given no opportunity to take exception to the instructions, and therefore all instructions given are deemed excepted to. Rule 30(c), N.D.R.Crim.P. However, defendant does not claim that the instructions given are erroneous--he claims only that they are incomplete, in that one possible defense is not mentioned. He alleges nondirection.
Nondirection is not prejudicial error unless it amounts to misdirection. State v. Gibson, 69 N.D. 70,...
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State v. Ennis
...to review the discretion of a sentencing court in fixing a term of imprisonment within the range authorized by statute. State v. Joern, 249 N.W.2d 921, 923 (N.D.1977); State v. Holte, 87 N.W.2d 47, 50 (N.D.1957). Appellate review of a criminal sentence is confined to determining whether the......
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State v. Murphy
...the discretion of a sentencing court in fixing a term of imprisonment within the range authorized by statute.”); see also State v. Joern, 249 N.W.2d 921, 923 (N.D.1977) ; State v. Holte, 87 N.W.2d 47, 50 (N.D.1957) ; State v. Taylor, 70 N.D. 201, 212, 293 N.W. 219, 225 (1940) ; State v. Joc......
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Expose v. State
...in itself, was sufficient for the jury to consider whether the victim had consented to the act) (citations omitted); State v. Joern, 249 N.W.2d 921, 922–23 (N.D.1977) (finding that the trial court did not err in refusing to give a consent instruction because the instructions that were given......
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State v. Biby, Cr. N
...are incomplete. This court has held that "[n]ondirection is not prejudicial error unless it amounts to misdirection." State v. Joern, 249 N.W.2d 921, 923 (N.D.1977). We have reviewed the instructions given to the jury in this case and find no misdirection, and therefore no error. The judgme......