State v. Neufeld

• Decision Date: 20 May 1998
• Docket Number: No. 970281,970281
• Citation: 578 N.W.2d 536
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Rodney W. NEUFELD, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 536

578 N.W.2d 536

1998 ND 103

STATE of North Dakota, Plaintiff and Appellee, v. Rodney W. NEUFELD, Defendant and Appellant.

Criminal No. 970281.

Supreme Court of North Dakota.

May 20, 1998.

Carl O. Flagstad, Minot, for defendant and appellant.

Jonathan R. Byers, Assistant Attorney General, Bismarck, for plaintiff and appellee.

NEUMANN, Justice.

¶1 Rodney Neufeld appeals from a criminal judgment and commitment dated September 4, 1997, entered on a jury verdict of guilty on four counts of gross sexual imposition. We affirm.

¶2 Neufeld was charged with four separate counts of gross sexual imposition under one complaint and information. Counts I, II, and III alleged Neufeld had sexual contact with his stepdaughter when she was between twelve and fourteen years of age. The alleged sexual acts included contact between his penis and her mouth, his penis and her vulva, and his touching the sexual or other intimate parts of her body. Count IV alleged Neufeld engaged in sexual contact with his daughter, by touching her sexual or other intimate parts when she was fourteen years old.

¶3 Neufeld moved to sever the first three counts from the fourth, arguing joinder of the offenses prejudiced him because he intended to testify in Counts I, II and III, but did not intend to testify in Count IV. Neufeld did not offer any indication of what his testimony would entail. The State resisted the motion, arguing joinder is proper under Rule 8, N.D.R.Crim.P., when the offenses are of the same or similar character. The State offered numerous similarities between the offenses charged. The trial court denied the motion for severance based on judicial economy, stating Neufeld had failed to show any real prejudice.

¶4 In chambers before trial, Neufeld renewed his motion to sever on the same grounds. The State resisted. The trial court again denied the motion on the same bases as the original ruling.

¶5 Also prior to trial, Neufeld moved to suppress certain testimony of several proposed witnesses, claiming their testimony would constitute impermissible hearsay, not allowed under any exception. ¹ The State resisted the motion. The State argued the proposed witnesses' testimony would not be hearsay, because it would not be offered for the truth of the matter asserted, it would not be considered hearsay under Rule 801(d), or it would fall under an exception to hearsay. The trial court partially denied Neufeld's motion, subject to certain limitations. Under one limitation, the trial court would not allow testimony from others on what Vivian Neufeld may have said. Vivian Neufeld, now deceased, was Rodney Neufeld's wife and his stepdaughter's mother.

¶6 As to the other witnesses, the trial court ruled it would allow the testimony under two circumstances. First, if the victim testified she had made statements to the witnesses, the witnesses would be allowed to testify she made a statement to them. This testimony would be allowed as nonhearsay, as not going to the truth of the matter asserted. Second, the trial court would allow testimony on rebuttal under Rule 801(d)(1)(ii), N.D.R.Evid., if the defendant raised a defense implicating the rule. The trial court deferred making a complete ruling on the motion, stating he would rule on the issues as they came up, rather than making a blanket ruling. The trial court also deferred its ruling as to a tape recorded telephone conversation until the appropriate point in trial. ²

¶7 The State moved in limine to: (1) preclude questioning of witnesses about any prior drug use, unless there was evidence of a conviction of such a crime under Rule 609, N.D.R.Evid.; and, (2) exclude questioning of either of the victims' sexual activities with other individuals under North Dakota's rape shield statutes. The defense resisted the motion, asserting it needed that evidence to explain why one victim had run away from home to rebut testimony indicating the victim had run away because of Neufeld's alleged conduct. The trial court granted the State's motion to preclude questioning on drug use and on the victims' other sexual activities.

¶8 Five witnesses testified at trial for the State: Neufeld's stepdaughter, Neufeld's daughter, Denise Johnson (Neufeld's ex-wife and mother of his daughter), Nettie Smith, and Lori Tande. Neufeld's stepdaughter testified that when she was twelve to fourteen years of age, Neufeld engaged in numerous sexual activities with her, including fondling, oral sex, and intercourse. Neufeld's daughter testified that on one occasion when she was fourteen years of age, her father fondled her by touching and kissing her breasts, touching her pubic hair, and kissing her on the mouth. Denise Johnson testified she had received a letter from her daughter stating her father had molested her. Johnson also stated she confronted Neufeld by telephone and he had admitted to fondling their daughter's breasts. Nettie Smith and Lori Tande testified Neufeld's stepdaughter had told them of Neufeld's sexual misconduct in 1992 or 1993.

¶9 Neufeld testified on his own behalf, denying any of the allegations had occurred. A jury returned a verdict of guilty on all four counts.

¶10 Neufeld appeals, raising three issues:

I. Whether the trial court erred in denying his motion for severance.

II. Whether the trial court erred in allowing hearsay testimony.

III. Whether the trial court erred in limiting his cross-examination of his daughter.

I. SEVERANCE

¶11 Neufeld argues the trial court erred in denying his motion for severance because he was prejudiced by the joinder. We disagree.

¶12 Rule 8, N.D.R.Crim.P., provides for joinder of offenses and defendants at the pleading stage in three situations: first, if the offenses charged are of the same or similar character; second, if the offenses are based on the same act or transaction; and, third, if the offenses are based on two or more acts or transactions as part of a common scheme or plan. The purpose of the rule is to promote judicial convenience and economy. State v. Boushee, 284 N.W.2d 423, 428 (N.D.1979).

¶13 The State offered numerous similarities between the offenses. Allegedly, the offenses committed were: (1) by the same defendant; (2) at the same location; (3) against victims of similar age; (4) against minors under the parental care of the defendant; (5) offenses involving sexual contact between the defendant and the victims; and (6) discussed between the two victims. On appeal, Neufeld concedes the charged offenses were of the same or similar character. He argues, however, the offenses should have been severed under Rule 14, N.D.R.Crim.P., because he suffered prejudice by the joinder amounting to an abuse of discretion. Rule 14, N.D.R.Crim.P., provides for relief from joinder if it appears a defendant or the prosecution is prejudiced by joinder of offenses or of defendants for trial.

¶14 Whether offenses should be consolidated for trial is left to the trial court's discretion. State v. Warmsbecker, 466 N.W.2d 105, 108 (N.D.1991). The trial court's decision will not be reversed unless there is clear abuse of discretion. Id.; see also State v. Gann, 244 N.W.2d 746, 750-51 (N.D.1976) (stating consolidation of indictments for trial against an individual defendant reversible error only when there is clear abuse of discretion); State v. Purdy, 491 N.W.2d 402, 406 (N.D.1992) (applying clear abuse of discretion standard in review of joinder of indictments against multiple defendants). The defendant bears the burden of demonstrating prejudice caused by joinder. Boushee, 284 N.W.2d at 427; Warmsbecker, 466 N.W.2d at 109. It is not enough for a defendant to show a separate trial would have afforded him a better chance at acquittal. Warmsbecker, 466 N.W.2d at 109. The defendant must show the joinder rendered the trial unfair. Boushee, 284 N.W.2d at 428.

¶15 We recognize the defendant's burden is arduous. See Gann, 244 N.W.2d at 751 (discussing near nonexistent chance of reversal for failure to sever based on abuse of discretion). However, we also recognize joinder of offenses of the same or similar character is also the most problematic type of joinder because of the obvious dangers of prejudice. ³ Id. at 750. Neufeld contends he was prejudiced because he was forced to testify on all four counts, rather than the three counts on which he intended to testify. His argument is unpersuasive. Severance is only required when a defendant has made a convincing showing he has both important testimony to give concerning one count and a strong need to refrain from testifying in another. United States v. Jardan, 552 F.2d 216, 220 (8th Cir.1977); see also United States v. Corbin, 734 F.2d 643, 649 (11th Cir.1984) (holding no compelling prejudice when defendant expressed only a general desire to testify as to some counts and not others). Neufeld did not offer anything showing how his testimony on the first three counts would prejudice him on the fourth count. Therefore, Neufeld has failed to meet his burden. We see no abuse of discretion in the trial court's joinder of the offenses.

II. TESTIMONY

¶16 Neufeld argues the trial court erred in allowing testimony from Lori Tande and Nettie Smith. Neufeld contends their testimony was hearsay, not subject to an exception. We disagree.

¶17 The trial court has broad discretion in evidentiary matters, and its rulings will only be reversed if its discretion has been abused. State v. Whalen, 520 N.W.2d 830, 831 (N.D.1994); State v. Martinsons, 462 N.W.2d 458, 460 (N.D.1990).

¶18 Neufeld argues Tande and Smith's statements were offered solely to buttress his stepdaughter's testimony and for no other purpose. Neufeld also argues the testimony did not fit within the definition of nonhearsay under Rule 801(d)(1)(ii), N.D.R.Evid. Under Rule 801(d)(1)(ii), "A statement is not hearsay if: ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...