State v. Osier, 980088
| Citation | 590 N.W.2d 205 |
| Decision Date | 23 February 1999 |
| Docket Number | No. 980088,980088 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Mark C. OSIER, Defendant and Appellant. Criminal |
| Court | United States State Supreme Court of North Dakota |
Wade L. Webb, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.
Marc G. Kurzman (argued), of Kurzman, Grant & Ojala, Minneapolis, MN, moved for admission by Thomas M. Tuntland (appeared), Mandan, ND, on behalf of Mark A. Beauchene, Fargo, ND, for defendant and appellant.
¶1 Mark C. Osier has appealed from a criminal judgment entered upon jury verdicts finding him guilty of gross sexual imposition. We affirm.
¶2 The State charged Osier with six counts of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(d) for engaging in sexual acts with a victim less than fifteen years old. Count 1 alleged Osier engaged in sexual acts with his minor daughter from January 1994 through June 1994. Counts 2 through 6 alleged Osier engaged in sexual acts with his daughter in the months of July through November, 1994.
¶3 A jury found Osier guilty on all six counts. This Court reversed and remanded for a new trial because of an error in the admission of evidence. State v. Osier, 1997 ND 170, 569 N.W.2d 441. After a new trial, the jury found Osier not guilty on Count 1, and guilty on Counts 2 through 6. The trial court denied Osier's motion for a new trial and entered a criminal judgment and commitment. Osier appealed.
¶4 Osier has raised two issues about the trial court's refusal to allow introduction of evidence about the complainant's prior sexual behavior. He argues the trial court erred in prohibiting the introduction of evidence about the complainant's prior sexual behavior, which he asserts "would have provided an explanation for the physical findings noted by the examining physician who testified on behalf of the state." He also contends the trial court erred in prohibiting the introduction of evidence about "statements made by the state's immunized witness, ... who, when he was being questioned by investigators for the state and the defense; disclosed his numerous and varied sexual contact with" the complainant.
¶5 Relevant evidence is evidence that "would reasonably and actually tend to prove or disprove any matter of fact in issue." State v. Buckley, 325 N.W.2d 169, 172 (N.D.1982). We will not overturn a trial court's admission or exclusion of evidence on relevance grounds unless the trial court abused its discretion. State v. Clark, 1997 ND 199, p 26, 570 N.W.2d 195. In re Lukens, 1998 ND 224, p 12, 587 N.W.2d 141. "[T]he scope of cross-examination is a matter within the trial court's discretion." State v. Neufeld, 1998 ND 103, p 24, 578 N.W.2d 536.
¶6 Ordinarily, in a trial for gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(d), when a prosecutor has introduced medical evidence of a youthful complainant's physical condition, the defendant should be "allowed to 'provide an alternative explanation for her physical condition' by cross-examining the complainant about her 'prior sexual activity tending to show that another person might have been responsible for her condition.' " State v. Reinart, 440 N.W.2d 503, 505 (N.D.1989), quoting People v. Mikula, 84 Mich.App. 108, 269 N.W.2d 195, 198 (1978). When the prosecution introduces medical evidence to establish penetration, evidence of alternative sources of penetration becomes "highly relevant to the crucial issue in dispute." Reinart, 440 N.W.2d at 506. That right of cross-examination is limited, however:
It is clear from this statute [N.D.C.C. § 12.1-20-14(2) ], evidence of a complaining witness's sexual conduct may be brought up in cross-examination only when the prosecution has first introduced the evidence, and then only by limited rebuttal. Section 12.1-20-15, N.D.C.C., requires the defense to move in writing in advance of trial, if evidence of sexual conduct is to be used to attack the credibility of the complaining witness. No such motion was made here.
State v. Neufeld, 1998 ND 103, p 27, 578 N.W.2d 536.
¶7 The complainant's sexual activity or possible sexual activity was addressed a number of times during the trial. In his opening statement, Osier's counsel said: At trial, the complainant testified that, in a deposition, she said she had not had sex with anyone other than her father, but, she testified at trial, she had had sexual intercourse with the young man
¶8 Out of the presence of the jury, Osier's attorney advised the court he wished to question the complainant about other sexual activity:
The second issue I wanted to address with the Court is in my cross-examination of [complainant] today I did want to go a little bit more in detail into her sexual activity with [the young man]. The extent to which I wish to go into said detail is that according to [his] testimony at the last trial approximately one week before there was pen[ile] intercourse with [complainant] between [he] and [complainant, complainant] engaged in fellatio upon him putting her mouth on his penis. The significance thereafter is that when [complainant] was finally confronted with the fact that everybody knew about [the young man] and she was still denying it she then claimed that there was only one occasion where anything did happen whatsoever.
That's the full extent I wanted to go into in regard to other sexual activity....
The prosecutor objected, claiming Osier's pretrial motion was insufficient because it was not accompanied by an affidavit stating Osier's offer of proof of the relevancy of evidence of the complaining witness's sexual conduct, as required by N.D.C.C. § 12.1-20-15. Osier's attorney informed the court an affidavit was filed with a motion before the first trial. The court ruled: "For purposes of this record, I insist that a new--if there is--if there is to be an offer of proof under 12.1-20-15, that you comply with the statute fully again." With a new trial, a new prosecutor, and a new judge, we conclude the trial court did not abuse its discretion in requiring a new motion and affidavit in accordance with N.D.C.C. § 12.1-20-15.
¶9 Osier also sought to examine the young man about his sexual acts with the complainant. The young man testified he had sexual intercourse with the complainant once. On cross-examination, the following colloquy occurred:
Q. Had you any sexual contact of any other type with [the complainant] to this day?
The young man also testified he had told investigators of other sexual acts he was involved in with the complainant.
¶10 At a recess, Osier's attorney made the following offer of proof:
MR. KURZMAN: With regard to the relevance, we believe that the multiple acts of sexual contact between [the complainant] and [the young man] are relevant insofar as I guess Dr. Miller is here but during his testimony Dr. Miller indicated at the last trial that the hymen was worn away and allowed to say how that could have worn away by pen[ile] insertion as well as digital finger insertion. The police report--Detective Wawers indicated that [the young man] said that he had finger--digital penetration as well as the oral copulation as well as the sexual act and these took place at different times. Therefore, the additional contact which could account for the disappearance of the hymen or at least one of the factors is relevant to issues in this case and should be subject to review by the jury. Thank you, Judge.
¶11 Dr. Ron Miller, a pediatrician, examined the complainant on November 30, 1994. Dr. Miller testified about the result of the examination:
This would be considered a non-virginal exam. The hymen was fairly well worn away and the opening of the vagina was significantly larger than would normally be seen.
When asked if he had "develop[ed] a professional opinion after [the complainant's] exam whether she had been involved in sexual intercourse," Dr. Miller testified:
A. Well, some type of intercourse was involved here to produce this and so, yes, my opinion is that she's probably had intercourse on many occasions. It is not likely that one occasion would do this. Could several do it? Yes, possibly. Is it many more than several? Clinically this would be what would be commonly seen, for example, in a 20-year-old woman who's been married for two years who had intercourse regularly.
Dr. Miller testified "[i]t would take many; probably more than several" acts of "pen[ile]/vaginal intercourse" to "produce this type of physical finding."
¶12 Dr. Miller testified on cross-examination:
Q. Doctor, if [the complainant's] vagina had been penetrated with a finger, either her own or somebody's finger, could that erode the hymenal tissue?
A. Multiple episodes of multiple digital intercourse could erode the tissue.
Q. And that would also be true with masturbatory behavior? If she was engaged in self-masturbatory behavior that might wear away the tissue, correct?
A. Masturbatory behavior, using a finger or some type of instrument, would produce the same type of findings as pen[ile] intercourse.
Dr. Miller testified he did not ask the complainant if "sh...
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