State v. Piper

Decision Date19 December 1977
Docket NumberCr. N
Citation261 N.W.2d 650
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Bernard S. PIPER, Defendant and Appellant. o. 608.
CourtNorth Dakota Supreme Court

Robert P. Bennett, Asst. State's Atty., Bismarck, for plaintiff and appellee.

Daniel J. Chapman, Bismarck, for defendant and appellant.

SAND, Justice.

The defendant, Bernard S. Piper, appealed from a judgment of conviction of attempted sexual imposition and from an order denying his motion for a new trial.

On 17 June 1976, the defendant was charged with the crime of attempted sexual imposition under §§ 12.1-20-04, 12.1-06-01(1), 12.1-06-01(3), and 12.1-32-01(3) of the North Dakota Century Code.

The complainant, Ronda, testified that on 16 June 1976 she left the party at the apartment, went to her bedroom to lie down because she had to go to work the next day, and went to sleep. According to her testimony, she was later awakened because "somebody was standing there trying to take my clothes off." She also testified that the defendant took off all her clothes and then removed his pants. She said that during this time she was fighting him and screaming for help. According to her testimony, the defendant told her to shut up and threatened to hit her four or five times. She said that the defendant sat on top of her, that he tried to put her legs on his shoulders and that he attempted intercourse with her. Ronda testified that when her roommate, Pauline, opened the door of the bedroom, she screamed and "asked her to help me and to get him out of there." The roommate went to the neighbors for help and also summoned the police, who arrived before the defendant left the apartment.

The defendant's testimony conflicted sharply with the testimony of the complaining witness. He testified that earlier, during the evening of 16 June 1976, he had consumed several six-packs of beer and some gin before deciding to go to "Paula's" apartment for more beer. Upon his arrival at the apartment shared by Pauline and the complainant, Ronda, he found the door open and entered the apartment. According to his testimony, he had attended a beer party several weeks earlier at this apartment and had been invited to return.

The defendant testified that he walked through the apartment, observed a beer keg and liquor bottles in the kitchen, and then entered the bedroom, where he saw Ronda, fully clothed, asleep on the bed. He sat on the bed, Ronda awoke, and mistaking him for her boyfriend, "Wayne," made amorous advances toward him. Defendant said he left to get a beer in the kitchen and returned to find the complainant unclothed on the bed and calling him "Wayne."

Defendant admitted that he "made out with" (kissed) Ronda and "touched her," including her breasts, before she discovered that he was not "Wayne," her boyfriend. The defendant denied removing Ronda's clothing, or being between her legs or sitting on her chest or stomach. He testified that after Ronda discovered he was not "Wayne," they were talking and he was trying to identify himself to her when the roommate, Pauline, opened the door.

The jury found the defendant guilty of attempted sexual imposition on 4 February 1977, and judgment of conviction was entered on 9 March 1977. The defendant appealed. He contends that he was denied a fair trial for the following reasons:

1. Refusal of the trial court to instruct on the requested lesser included offense of sexual assault 2. Refusal of the trial court to allow inquiry into the complainant's sexual relationship with her boyfriend, when the defense was mistaken identity for her boyfriend;

3. Alleged misconduct of the assistant state's attorney in statements made on closing argument;

4. Vague and indefinite jury instructions;

5. Failure of the court to grant a judgment of acquittal under Rule 29(a), North Dakota Rules of Criminal Procedure.

We will first consider the defendant's contention that the trial court erred by refusing to instruct the jury on the lesser included offense of sexual assault. The defendant was charged with the crime of attempted sexual imposition under §§ 12.1-20-04, 12.1-06-01(1), 12.1-06-01(3), and 12.1-32-01(3) of the NDCC. We note at the outset that the crimes of sexual imposition and sexual assault, set out in §§ 12.1-20-04 and 12.1-20-07, NDCC, respectively, have been amended by the 1977 Legislature. See S.L.1977, ch. 122, § 3 and § 5. The issue, therefore, is limited to an interpretation of these two statutes as they existed at the time of the alleged commission of the offense and the trial, which were prior to the amendments.

This Court has previously held that the defendant must have first requested the trial court to instruct the jury on any lesser included offenses before he may specifically raise it on appeal as reversible error. State v. Champagne, 198 N.W.2d 218, 227 (N.D.1972). In the instant case, a jury instruction on sexual assault was requested and denied by the court:

"Well, the Court believing that the elements of the offense are totally different in this case and that the requirement of the charge as made by the State does not this is not necessarily and especially in this case a lesser included offense and even the Court believes that the testimony of the defendant himself refutes the very instruction, will deny the instruction and as to entering it on the record and according to the record the instruction is automatically excepted and the rights of appeal are reserved in that manner."

This Court, on at least two occasions, has approvingly applied the independent evidence test to determine if a jury instruction on a lesser included offense is required. See State v. Tucker, 58 N.D. 82, 224 N.W. 878, 884 (1929); State v. Ankney, 195 N.W.2d 547 (N.D.1972). We have stated that

". . . it is not error to fail to instruct on the lesser offense when there is no evidence which would tend to reduce the offense. . . ." Ankney, supra at 554.

In Ankney, the Court determined that the evidence supported a finding that the defendant was guilty of burglary and that there was no evidence to indicate a lesser offense was involved.

In the instant case, the defendant argues that sexual assault is a lesser included offense of attempted sexual imposition, and the trial court's failure to instruct accordingly constituted reversible error. Although Rule 31(c) of the North Dakota Rules of Criminal Procedure (on the assumption appropriate instructions have been given) permits the conviction of a defendant on a lesser offense, we note that there is no constitutional right guaranteeing a defendant a jury instruction on a lesser included offense. In Keeble v. United States, 412 U.S. 205, 213, 93 S.Ct. 1993, 1998, 36 L.Ed.2d 844 (1973), the United States Supreme Court said:

". . . we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense . . . ."

It also said, at page 208, 93 S.Ct. at page 1995:

". . . the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater."

North Dakota's independent evidence test is compatible with this test.

We are not persuaded by defendant's eloquent argument which in effect would require giving the lesser included offense of sexual assault instructions in every charge of sexual imposition or attempted sexual imposition. We are not satisfied that justice will be done if instructions on the lesser included offense are given regardless of the evidence because it may well lead the jury to a compromise decision, which is not compatible with the function of the jury in a criminal case.

The Supreme Court of the State of Wisconsin, in Hughes v. State, 55 Wis.2d 477, 198 N.W.2d 348, 350 (1970), stated:

"The early cases point out and emphasize and we must stress again, because the question keeps recurring, that a determination of whether an instruction on a lesser included crime should be given to a jury is not solved by merely determining the crime charged includes the lesser offense because juries are not to be given the discretion or freedom to pick and choose what offense the accused should be found guilty of. (Citation omitted.) The evidence must throw doubt upon the greater offense. Juries cannot rightly convict of the lesser offense merely from sympathy or for the purpose of reaching an agreement. They are bound by the evidence and should be limited to those included crimes which a reasonable view of the evidence will sustain and does not convince beyond a reasonable doubt the additional element of the greater crime existed." (State v. Melvin, 49 Wis.2d 246, 253, 181 N.W.2d 490, 494 (1970).)

If the test were only whether or not the lesser included offense 1 must necessarily have been committed before or in the commission of the greater offense, assault and battery would also be a lesser included offense in the crime of assault with intent to murder, or murder where physical contact occurred.

The test is not merely whether or not the offense is a lesser included offense of the basic offense charged, but rather is whether or not there is evidence which will create a reasonable doubt as to the greater offense and support a conviction of the lesser included offense. The "beyond a reasonable doubt" test also applies to the lesser included offense.

If the defendant's testimony were accepted and believed, there would be no attempted sexual imposition. Neither would there be a sexual assault because defendant testified that the complainant made advances to him, mistaking him for her boyfriend, "Wayne." Defendant's testimony, if believed, supports an acquittal of both attempted sexual imposition and sexual assault, but not a conviction of the lesser offense of sexual assault, which prior to amendment required that the person knowingly...

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