State v. Kringstad

• Decision Date: 11 July 1984
• Docket Number: Cr. N
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. Rick KRINGSTAD, Defendant and Appellant. o. 976.
• Court: North Dakota Supreme Court

Page 302

353 N.W.2d 302

The STATE of North Dakota, Plaintiff and Appellee, v. Rick KRINGSTAD, Defendant and Appellant.

Cr. No. 976.

Supreme Court of North Dakota.

July 11, 1984.

Neil W. Fleming [argued], of Fleming & Dubois, Cavalier, for defendant and appellant.

Nicholas B. Hall, State's Atty., Grafton, for plaintiff and appellee.

GIERKE, Justice.

The defendant, Rick Kringstad, appeals from a judgment of conviction of the crime of gross sexual imposition and from an order denying his motion for a new trial. We vacate the judgment and remand.

Kringstad and his co-defendant, David Oasheim, were charged with having forcibly compelled the victim to submit to an act of sexual intercourse in violation of Sec. 12.1-20-03(1)(a) of the North Dakota Century Code. The criminal complaint alleged the act took place between 12 o'clock midnight and 12:30 a.m. on July 9, 1983, in Hoople, North Dakota. The defendants were tried together before a jury. The only direct evidence linking them to the crime was the testimony of the complainant.

The complainant testified that during the evening of July 8, 1983, she and her husband went to Duffy's Bar in Hoople at approximately 10 p.m. She drank 1 1/2 mixed drinks while at Duffy's. After thirty minutes the couple left Duffy's and went to the American Legion Club, also in Hoople, to listen to a locally popular band. They arrived at the Legion at 10:45 p.m. where they danced and visited with friends and relatives. The complainant drank an additional 1 1/4 mixed drinks while at the Legion. At approximately midnight she complained to her husband that she didn't feel well and wanted to go home. Her husband asked her to wait a few minutes and she responded that she would wait in the car.

The complainant further testified that she had been sitting in the car for only a short time when Kringstad and David Oasheim approached the car and told her that her husband had asked them to take her home. When she refused to leave with them, the two men pulled her from the car and carried her behind a nearby building. According to the complainant, she was then held by Oasheim, and one or two other persons she couldn't identify, while Kringstad had intercourse with her.

The complainant also testified that for some time prior to the incident, and as recently as the day before, she had been harassed by Kringstad and Oasheim. This harassment took the form of driving past her home in Kringstad's car and making suggestive remarks and peering at her through binoculars. Her testimony in this regard was partially corroborated by a next-door neighbor who witnessed at least two of the incidents.

At trial Kringstad and Oasheim presented separate alibi defenses. Kringstad testified that he had been in the Legion Club during the time the assault is alleged to have taken place and presented the corroborative testimony of a number of relatives who were in the Club that evening. Testimony was also presented which, if believed, would indicate that the complainant had consumed considerably more than the two-three drinks to which she admitted. Both defendants denied any harassment of the complainant.

The jury returned verdicts of guilty as to both Kringstad and Oasheim. Each defendant then presented a motion for a new trial. The trial court granted Oasheim a new trial, but denied Kringstad's motion. Kringstad appeals from that denial.

Five issues are presented on appeal:

1. Did the trial judge abuse his discretion in denying the motion for a new trial?

2. Did the trial court commit prejudicial error in allowing the prosecution to cross-examine Kringstad regarding a criminal complaint lodged against him of which he had no notice.

3. Did the prosecution fail to comply with Kringstad's Rule 16 discovery motion and, if so, was that failure prejudicial and therefore grounds for a new trial?

4. Did the trial court commit prejudicial error in allowing the introduction of photographs of the unprotected scene of the crime, taken some five hours after the crime occurred?

5. Did the trial court commit prejudicial error in refusing to allow Kringstad to introduce evidence of a prior accusation of rape lodged by the complainant against her ex-husband?

We will discuss these issues in the above order.

I

Rule 33(a) of the North Dakota Rules of Criminal Procedure provides that "The court on motion of a defendant may grant a new trial to him if required in the interests of justice. The motion for a new trial shall point out with particularity the defects and errors complained of." Kringstad contends that the evidence presented by the State was insufficient to warrant a finding of guilt beyond a reasonable doubt. He also contends that, even if the State's evidence was legally sufficient, the jury's verdict was against the weight of the evidence and that the trial judge abused his discretion in denying Kringstad's motion for a new trial.

We begin our discussion of these issues by distinguishing between evidentiary sufficiency and evidentiary weight. A conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jenkins, 326 N.W.2d 67 (N.D.1982); State v. Olson, 290 N.W.2d 664 (N.D.1980). When a court, be it an appellate court or a trial court on motion for entry of a judgment of acquittal, concludes that evidence is legally insufficient to support a guilty verdict, it concludes that the prosecution has failed to produce sufficient evidence to prove its case. Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652, 661 (1982). The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars retrial in such a case. Tibbs v. Florida, supra. It follows, therefore, that our review of an appeal founded upon alleged evidentiary insufficiency must be subject to the same standard as an appeal from a judgment of guilty, or an appeal from the denial of a motion for entry of a judgment of acquittal; that is, we will look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to determine if there is substantial evidence to support the conviction. State v. Olson, supra.

It is well established in North Dakota that the uncorroborated testimony of a rape victim is sufficient to establish all of the elements of the crime. State v. McLain, 312 N.W.2d 343 (N.D.1981); State v. Olmstead, 246 N.W.2d 888 (N.D.1976), cert. denied 436 U.S. 918, 98 S.Ct. 2264, 56 L.Ed.2d 759 (1978). In the instant case, the victim testified as to all of the essential elements of the crime of gross sexual imposition as defined in Sec. 12.1-20-03(1)(a), N.D.C.C. Her testimony and that of the other witnesses presented by the State is legally sufficient to support the jury's verdict in this case.

When a motion for a new trial is made on the ground that the verdict is against the weight of the evidence the issues are far different. The trial judge may, within limits, weigh the evidence and in so doing evaluate for himself the credibility of the witnesses. In United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980), the Eighth Circuit Court of Appeals explained that:

"If the [trial] court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury."

See generally 2 C. Wright, Federal Practice and Procedure Sec. 553 (1969). In Tibbs v. Florida, supra 457 U.S. at 42, 102 S.Ct. at 2218, the United States Supreme Court stated that:

"A reversal on this ground [evidentiary weight], unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the ... court sits as a 'thirteenth juror' and disagrees with the jury's resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause."

As the Supreme Court stated in Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152 (1972):

"... that rational men disagree is not in itself equivalent to a failure of proof by the state, nor does it indicate infidelity to the reasonable doubt standard."

This court, too, has recognized that it is within the discretion of a trial court to grant a new trial if it concludes that a guilty verdict is against the weight of the evidence. State v. Dilger, 338 N.W.2d 87, 96 (N.D.1983); State v. Olmstead, 261 N.W.2d 880 (N.D.1978). In North Dakota, however, that discretion is somewhat more restricted than the discretion implied by the United States Supreme Court's statement in Tibbs v. Florida, supra, that a court sits as a "thirteenth juror". ¹ See Cook v. Stenslie, 251 N.W.2d 393 (N.D.1977). The standard to be applied in determining whether or not the trial court has abused its discretion was enunciated by this court in Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228, 230-231 (1928):

"The discretion of the trial court should be exercised in all cases in the interest of justice, and, where it appears to the judge that the verdict is against the weight of the evidence, it is his imperative duty to set it aside. State v. Stepp, 48 N.D. 566, 185 N.W. 812; State v. Weber, 49 N.D. 325, 191 N.W. 610; Kansas P. Ry. Co. v. Kunkel, 17 Kan. 145. 'We do not mean,' says Justice Brewer in the Kansas case, supra, at page 172, 'that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province...