State v. Sadler, Cr. N

• Decision Date: 28 May 1981
• Docket Number: Cr. N
• Citation: 305 N.W.2d 913
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. James S. SADLER, Defendant and Appellant. o. 759.
• Court: North Dakota Supreme Court

Page 913

305 N.W.2d 913

The STATE of North Dakota, Plaintiff and Appellee, v. James S. SADLER, Defendant and Appellant.

Cr. No. 759.

Supreme Court of North Dakota.

May 28, 1981.

John M. Olson, State's Atty. and Rolf Sletten, Asst. State's Atty., Bismarck, for plaintiff and appellee; argued by Rolf Sletten, Asst. State's Atty., Bismarck.

Benjamin C. Pulkrabek, Mandan, for defendant and appellant.

PEDERSON, Justice.

James S. Sadler was convicted of gross sexual imposition as defined in § 12.1-20-03(1)(d), NDCC. He appeals and we affirm.

On the evening of May 24, 1980, three twelve-year-old youths two brothers, Bucky and Tim, and another boy, Wayne were taken to a movie theater in the Kirkwood Plaza shopping center in Bismarck by Wayne's mother. After seeing a movie they played pinball machines at a nearby amusement shop. Their plan was to go eventually to the brothers' home to spend the night.

While at the amusement shop the boys met Sadler who asked them if they wanted a job moving band equipment at the nearby Kirkwood Motor Inn. The boys wished to make some money and called their parents for permission. Wayne's mother came to Kirkwood Plaza and told them they could work until 11 p. m., at which time they would be picked up by the parents of Bucky and Tim. The three boys then got into Sadler's car and were driven to the Kirkwood Motor Inn. After some delay at the motel and more driving around, Sadler told Bucky and Tim that he would drop them off back at the Kirkwood Plaza to wait for another man. He told Wayne to accompany him to his house to get an amplifier. Bucky and Tim got out of the car at Kirkwood Plaza, and Sadler and Wayne drove away.

According to Wayne's testimony, Sadler drove out to an area south of Bismarck near Mary College called the "Desert." He stopped the car and got out. He told Wayne to get out and come over to where he was. When Wayne did as he was ordered, Sadler pulled a knife and put it to Wayne's neck. He put a rope around Wayne's neck and told him to take his clothes off. He made Wayne lay down on his stomach, laid on top of him and put his penis into Wayne's rectum. Wayne testified expressly that Sadler penetrated and was inside his rectum. When Sadler was done he drove Wayne to Bucky and Tim's house.

Meanwhile, at Kirkwood Plaza, Bucky and Tim waited about an hour for the man they were to meet but no one appeared. They went to Kirkwood Motor Inn to look for Wayne but failed to find him. At 11 p. m. Bucky and Tim's parents came to the motel to pick up the boys. When the parents learned of Wayne's disappearance they called his mother and the police. Everyone eventually went to Bucky and Tim's home where they discovered Wayne. Wayne told of the incident and was then taken to Bismarck Hospital.

A physician at the hospital examined Wayne's groin and rectal areas. He found a rash around the anus which he concluded was caused by some form of abrasion. There was also a small skin tag which had been the site of some bleeding. He discovered two tree buds embedded in the surface of Wayne's skin. Finally he examined the sphincter muscle at the opening of the rectum and determined that its tone was "high" indicating a "bit of spasm." The doctor, when asked, stated that all of these symptoms were indicative of forceable rectal entry, although he was unable to say without doubt that penetration of the anus had occurred.

A police investigation led to the discovery of two pieces of rope at the place where Wayne said the attack occurred. The police also received from Sadler a knife which he admitted owning. Sadler, however, denied having any sexual contact with Wayne. He testified that he took Wayne to the Desert, that Wayne may have run into someone there who assaulted him, but that Wayne's accusation was otherwise false. Police witnesses presented by the State testified that Sadler had told them things about his activities on May 24 which conflicted with his testimony given at trial. These witnesses stated that Sadler told them that he had taken the boys to a bowling alley in Mandan and then home. According to these witnesses, Sadler claimed also to have gone out to Apple Creek Country Club to pick up some stereo equipment. At trial Sadler denied having told the police any of these things.

The jury returned a verdict finding Sadler guilty of gross sexual imposition, § 12.1-20-03(1)(d), NDCC, which reads:

"A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if:

d. The victim is less than fifteen years old; ..."

"Sexual act" is defined in § 12.1-20-02(1), NDCC:

" 'Sexual act' means sexual contact between human beings who are not husband and wife consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, or the mouth and the vulva; or the use of an object which comes in contact with the victim's anus, vulva, or penis. For the purposes of this subsection, sexual contact between the penis and the vulva, or between the penis and the anus or an object and the anus, vulva, or penis of the victim, occurs upon penetration, however slight. Emission is not required."

"Sexual contact" is defined in § 12.1-20-02(2), NDCC:

" 'Sexual contact' means any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire."

Sadler raises several issues on appeal. First he challenges the sufficiency of the evidence introduced to show penetration of the anus, an essential element of gross sexual imposition. Sadler points out that the...