State v. Ripley
| Decision Date | 17 June 2009 |
| Docket Number | No. 20080291.,No. 20080290.,20080290.,20080291. |
| Citation | 2009 ND 105,766 N.W.2d 465 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Gary Duane RIPLEY, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Jay A. Schmitz (argued), Assistant State's Attorney, Jamestown, ND, for plaintiff and appellee.
Benjamin C. Pulkrabek (argued), Mandan, ND, for defendant and appellant.
[¶ 1] Gary Ripley appeals from a trial court judgment entered finding him guilty of sexual assault and abuse or neglect of a child. We affirm.
[¶ 2] The victim in this case, J.D., a minor child, is Ripley's daughter. Throughout her childhood, J.D. did not live with Ripley, but she stayed in contact with him. In July 2006, J.D. moved in with Ripley. J.D. testified she had been living with Ripley for a month and one-half or two months, when things started to change. J.D. testified Ripley started to drink, and Ripley provided alcohol to J.D. J.D. testified they drank together, and initially they drank a couple of times a week, but then they started drinking daily. When asked how bad J.D.'s drinking became while she lived with him, Ripley testified: Ripley testified while J.D. lived with him, he allowed her to drink because "I thought it would be safer if she drank at home than running around getting drunk out on the streets." Barbra Davis, Ripley's former girlfriend, testified, "[w]henever [J.D.] was with [Ripley] she pretty much was drinking[.]"
[¶ 3] J.D. testified on one occasion Ripley told her to engage in sexual acts with him. J.D. testified she "thought maybe he was kidding," so she told him to knock it off. J.D. testified during that same evening Ripley pushed her onto a bed, laid on top of her, and started kissing her on the lips. Ripley testified as to this incident as well: "[J.D.] kicked me in the butt jokingly, and I picked her up and I slammed her on the bed."
[¶ 4] J.D. testified one morning, after drinking with Ripley, she woke up and Ripley was next to her in bed. J.D. testified she told Ripley she could not remember what happened the night before, and he told her they engaged in sexual intercourse. Ripley testified none of this happened. J.D. testified on another occasion she and Ripley had sexual intercourse, and on a different occasion, they engaged in sexual activity. Ripley testified neither of these events occurred.
[¶ 5] On November 5, 2006, J.D. was taken to a hospital after police found her intoxicated at Ripley's home. The next day, J.D. told a police officer she did not engage in any sexual acts or contact with her father. Later, J.D. told her sister about the sexual activity, and J.D. decided to tell the police.
[¶ 6] The State filed criminal complaints on February 13, 2007 and criminal informations on May 3, 2007, charging Ripley with sexual assault in violation of N.D.C.C. § 12.1-20-07(1)(e) and abuse or neglect of a child in violation of N.D.C.C. § 14-09-22(1)(b). Trial was scheduled for November 8, 2007. On November 1, 2007, Ripley filed a motion for a continuance of the trial, indicating he was informed by the State on that same day that new exhibits were going to be offered and new witnesses were going to be called. The trial court rescheduled trial for December 5, 2007. Trial was subsequently rescheduled for December 13, 2007, and on this day, Ripley pled guilty to both charges. On May 21, 2008, Ripley filed a motion to withdraw his guilty pleas, which the State opposed. The trial court entered an order granting Ripley's motion. Trial was rescheduled for September 4, 2008.
[¶ 7] Ripley's appointed counsel filed a motion to withdraw as counsel for Ripley on August 6, 2008. The appointed counsel asserted:
The client contacted the undersigned and left a message after business hours on August 4, 2008 indicating that he believed the undersigned was not following his directions and requests and indicated that he would no longer talk to me and that he would file a complaint with the disciplinary board. The undersigned has attempted further contact with the defendant but he has refused to accept mail and to accept phone calls.
The undersigned believes that this course of action by the defendant will make it impossible to further represent him in these matters and asks that the Court grant this motion to withdraw.
On August 8, 2008, the trial court entered an order granting the motion to withdraw. The trial court appointed new counsel on August 11, 2008.
[¶ 8] On August 26, 2008, Ripley's newly appointed counsel filed a motion to continue the trial; he indicated he needed additional time to prepare for trial. The State resisted this motion, and the trial court denied this motion. Ripley filed a motion to reconsider his motion to continue trial. Ripley's counsel indicated he received the case files on August 12, 2008 and met with Ripley on August 22, 2008. He stated:
Mr. Ripley has been charged with very serious charges and these files are quite extensive. In order for the undersigned to adequately prepare for trial, additional time is essential to sufficiently review this file, interview witnesses, and develop a trial strategy. The undersigned believes that not continuing the trial is placing Mr. Ripley in a worse position than if new counsel had not been appointed after the Court allowed his withdrawal. Under the circumstances, it would be a violation of Mr. Ripley's fundamental and constitutional right to counsel, and due process of law, for the matter to proceed to trial on September 4, 2008.
The trial court denied Ripley's motion to reconsider his motion to continue the trial.
[¶ 9] On August 27, 2008, Ripley's counsel filed a motion to withdraw as counsel of record. He asserted without more time to prepare the case for trial, he was unable to adequately represent Ripley to the extent that his representation could not continue. The trial court entered an order denying the motion to withdraw. The trial court noted trial had been postponed several times because of Ripley, and it held:
The September 4, 2008 jury trial will be the fifth time that the alleged victim has had to prepare to testify against her father. In North Dakota, a victim is entitled to a prompt disposition of a case. The Court has bent over backwards to accommodate [Ripley's] wishes. The day has come to stand up for the victim. She is entitled to closure. Based on history, to allow [Ripley's counsel's] motion would require a further continuance, that would only open the door to more maneuvers by [Ripley] and the trial would be postponed into 2009 or beyond.
[¶ 10] A jury trial was held September 4-5, 2008. During jury selection, the trial court indicated 12 jurors had been selected and 13 were needed. The trial court informed the 12 jurors they had been selected, indicated they were on their own for lunch, asked them to return to the courtroom at 2:00 p.m., and stated the court was in recess. The trial court did not admonish the jury not to speak about the case or form opinions until all of the evidence had been presented; neither the State nor Ripley objected.
[¶ 11] At the close of the State's evidence, Ripley moved for a judgment of acquittal under N.D.R.Crim.P. 29, asserting sufficient evidence to convict Ripley had not been presented. The trial court denied Ripley's motion. The jury found Ripley guilty of both sexual assault and abuse or neglect of a child. The trial court entered a judgment on October 20, 2008; Ripley appeals.
[¶ 12] Ripley argues the trial court erred by denying his motion for a continuance and motion to reconsider the motion for a continuance. We have held: "We will not reverse a trial court's decision to deny a continuance absent an abuse of discretion." State v. Frohlich, 2007 ND 45, ¶ 11, 729 N.W.2d 148 (citation omitted). "A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law." Id. (citation omitted).
[¶ 13] Rule 6.1(b), N.D.R.Ct., provides: "Motions for continuance shall be promptly filed as soon as the grounds therefor are known and will be granted only for good cause shown, either by affidavit or otherwise." This Court has specified factors that are to be considered when determining whether a trial court had good cause to grant a motion to continue a trial. Everett v. State, 2008 ND 199, ¶ 26, 757 N.W.2d 530.
[¶ 14] In Everett, Everett was charged with gross sexual imposition. Id. at ¶ 2. On the morning of trial, the State requested a continuance, and the trial court granted the continuance. Id. at ¶ 4. Trial was rescheduled, and the jury found Everett guilty. Id. at ¶¶ 4, 8. Everett applied for post-conviction relief, which the trial court denied. Id. at ¶¶ 10, 13. On appeal from the dismissal of his application for post-conviction relief, one of the issues raised by Everett was whether the trial court's granting of the continuance violated his constitutional rights to due process, a fast and speedy trial, and to face his accusers. Id. at ¶ 24. This Court held: "We have previously specified four factors that are to be considered when determining whether a district court had good cause to continue a trial: `(1) length of delay; (2) reason for delay; (3) defendant's assertion of his right; and (4) prejudice to the defendant.'" Id. at ¶ 26 (quoting State v. Foster, 1997 ND 8, ¶ 7, 560 N.W.2d 194). This Court applied these factors in Everett and determined the trial court did not act unreasonably, arbitrarily, or unconscionably in granting the continuance. Id. at ¶ 31. The same factors may be used to determine whether a trial court abused its discretion by denying a motion to continue a trial.
[¶ 15] The first factor is length of delay. Id. at ¶ 27. Ripley's motion for a continuance was denied; therefore, a delay did not...
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