State v. Oasheim, Cr. N

• Decision Date: 11 July 1984
• Docket Number: Cr. N
• Citation: 353 N.W.2d 291
• Parties: The STATE of North Dakota, Plaintiff and Appellant, v. David OASHEIM, Defendant and Appellee. o. 978.
• Court: North Dakota Supreme Court

Page 291

353 N.W.2d 291

The STATE of North Dakota, Plaintiff and Appellant, v. David OASHEIM, Defendant and Appellee.

Cr. No. 978.

Supreme Court of North Dakota.

July 11, 1984.

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

Neil W. Fleming, Cavalier, for defendant and appellee.

GIERKE, Justice.

This is an appeal by the State from an order entered in the District Court of Walsh County granting the defendant, David Oasheim, a new trial. Oasheim had been found guilty by a jury of the crime of gross sexual imposition. We affirm.

Oasheim and his co-defendant, Rick Kringstad, were charged with having forcibly compelled the victim to submit to an act of sexual intercourse in violation of Sec. 12.1-20-03 of the North Dakota Century Code. ¹ The criminal complaint alleged that the crime took place between twelve o'clock midnight and twelve-thirty a.m. on July 9, 1983, in Hoople, North Dakota. The only direct evidence linking either defendant to the crime was the testimony of the victim. Both defendants presented an alibi defense.

The cases were tried together to a 12-member jury. Following four days of testimony, the defendants presented motions for entry of judgment of acquittal pursuant to Rule 29(a), N.D.R.Crim.P. The motions were denied and the cases were submitted to the jury which returned verdicts of guilty as to both defendants. The defendants then presented motions for a new trial. Rule 33, N.D.R.Crim.P. The trial judge denied Kringstad's motion but granted Oasheim's motion. The State appeals from the order granting Oasheim a new trial. This appeal is specifically authorized by Sec. 29-28-07(2), N.D.C.C.

On the evening of July 8, 1983, the complainant and her husband went to the American Legion Club in Hoople. The defendant, Kringstad, was also present at the Club. At approximately midnight the complainant told her husband she did not feel well and wanted to leave. Her husband asked her to wait a few minutes and she responded that she would wait for him in the car.

The complainant testified that when she left the Club, she noticed Oasheim leaning against the outside of the building. She then proceeded to her car where, after approximately five minutes, she was approached by Oasheim and Kringstad and informed that her husband had asked them to escort her home. When she refused to leave with them, the two men pulled her from the car and Oasheim carried her behind a nearby building. According to the complainant, she was then held by Oasheim and one or two other persons she could not identify while Kringstad had intercourse with her.

The alleged crime took place between twelve o'clock midnight and twelve-thirty a.m. Oasheim's alibi defense was based on his own testimony and that of several other witnesses. According to Oasheim's version of the events of that evening, he was visiting in the home of Rick Kringstad until about eleven p.m. He then returned home and watched television with his mother until approximately midnight. Shortly before midnight he went upstairs to his bedroom. Oasheim's sister, Anita, testified that she spoke with the defendant in his room at approximately midnight. Anita then left the Oasheim home and went to visit a friend, Shelly, who was babysitting in a trailer home located approximately 100 feet from the rear door of the Oasheim home. Anita further testified that at approximately twelve-thirty a.m. she called home and the phone was answered by the defendant. She asked him to come down and unlock the rear door of the house so she could bring her bicycle inside. Shelly Hanson testified that she saw David Oasheim at the rear door to his house at twelve-thirty a.m.

Although none of Oasheim's witnesses could testify that they actually saw Oasheim at any time between twelve o'clock midnight and twelve-thirty a.m., they did testify that it would have been impossible for Oasheim to leave his room, descend the stairway, and leave the house without being noticed. The members of the Oasheim family testified that the Oasheim home had only one set of very creaky stairs. The staircase is located adjacent to the living room in which Mrs. Oasheim was watching television. She testified that it would have been impossible for the defendant to descend that staircase without being noticed.

In addition to the foregoing testimony there were no witnesses presented by the State, except the complainant, who could place Oasheim in the vicinity of the American Legion Club at any time during the evening. The complainant did testify that she saw Oasheim leaning against the outside of the building when she left at approximately midnight. Others who were in the vicinity at that time, however, testified that they did not see him.

The State has raised two issues on appeal:

1. Whether the trial court erred as a matter of law in granting Oasheim's motion for a new trial based on insufficiency of the evidence.

2. Whether or not the trial court abused its discretion by granting a new trial on the ground that the jury's verdict was contrary to the weight of the evidence.

The issues raised on appeal are attributable, in large part, to the trial court's failure to distinguish between a verdict based on insufficient evidence and a verdict which is contrary to the weight of the evidence. See generally Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Kringstad, 353 N.W.2d 302 (N.D.1984). 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. Kringstad, supra; State v. Jenkins, 326 N.W.2d 67 (N.D.1982); State v. Olson, 290 N.W.2d 664 (N.D.1980). The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars retrial in such a case. Tibbs v. Florida, supra; State v. Kringstad, supra.

A trial court may, however, grant a new trial if it determines that the verdict, although supported by legally sufficient evidence, is against the great weight of the evidence. In so doing, the trial judge may, within limits, weigh the evidence and evaluate for himself the credibility of the witnesses. United States v. Lincoln, 630 F.2d 1313 (8th Cir.1980); State v. Kringstad, supra.

A motion for a new trial on the ground that the verdict is against the weight of the evidence is a matter resting within the sound discretion of the trial court. The trial court's decision will not be set aside unless an abuse of discretion is shown. State v. Sheldon, 301 N.W.2d 604, 615-616 (N.D.1980), cert. denied 450 U.S. 1002, 101 S.Ct. 1711, 68 L.Ed.2d 204. This court has repeatedly held that a stronger showing of abuse is required to reverse an order granting a new trial than to reverse an order denying a motion for a new trial. Cook v. Stenslie, 251 N.W.2d 393, 396 (N.D.1977).

The standard to be applied in determining whether or not the trial court has abused its discretion in granting a new trial 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 to settle questions of fact; and, when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as against any mere doubts of its correctness. But when his judgment tells him that it is wrong, that, whether from mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury."

See Cook v. Stenslie, supra 251 N.W.2d at 396.

The State argues that the trial court awarded a new trial on the ground that the evidence was legally insufficient and that the trial court erred as a matter of law in reaching that conclusion. In support of its argument the State points to the trial court's discussion, in its memorandum opinion, of the "noncorroboration" rule.

It is beyond dispute that this State does not require corroboration of a rape victim's testimony to sustain a conviction. State v. Kringstad, Crim. No. 976, 353 N.W.2d 302 (N.D.1984); 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); State v. Klein, 200 N.W.2d 288 (N.D.1972); State v. Alfstad, 98 N.W.2d 371 (N.D.1959); State v. Holte, 87 N.W.2d 47 (N.D.1957); State v. Johnson, 58 N.D. 832, 227 N.W. 560 (1929). The victim's testimony is sufficient to sustain Oasheim's conviction against any claim that the jury's verdict is based on legally insufficient evidence. The trial judge acknowledged that "the question of corroboration, as to rape, has been ruled upon in North Dakota". He went on, however, to say that "there should be at least a modicum of incrimination to fulfill the requirements of proof. Saying that the victim's statement needs no corroboration is different than saying a conviction may rest solely upon such statements with an absence of other evidence". It is the State's position that these statements are...