State v. Sevigny

• Decision Date: 17 October 2006
• Docket Number: No. 20050315.,20050315.
• Citation: 722 N.W.2d 515,2006 ND 211
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Alan Daniel SEVIGNY, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 515

722 N.W.2d 515

2006 ND 211

STATE of North Dakota, Plaintiff and Appellee v. Alan Daniel SEVIGNY, Defendant and Appellant.

No. 20050315.

Supreme Court of North Dakota.

October 17, 2006.

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Barbara L. Whelan, Special Assistant State's Attorney, Crystal, N.D., for plaintiff and appellee.

Jay D. Knudson, Reichert Law Office, Grand Forks, N.D., for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Alan Sevigny appeals from a criminal judgment entered after a jury found him guilty of two counts of gross sexual imposition. Sevigny claims the district court abused its discretion in excluding evidence of an alibi defense, admitting testimony about out-of-court statements of the child accusers, denying his request to alter the sequence of the State's presentation of witnesses, and finding Sevigny's attorney in contempt during closing arguments. We affirm.

I

[¶ 2] On November 16, 2004, seven-year-old S.J.M. engaged in a conversation with her first grade teacher, Patricia Barta, while they were alone in the classroom during recess. S.J.M. told Barta about visiting her father who lived with his sister and Alan Sevigny. S.J.M. said she did not like Sevigny because he does "mean disgusting things to children," and he did these things to her. S.J.M. also said Sevigny tickled her. Barta asked where he tickled her and S.J.M. pointed to her lower abdomen and upper thighs. On November 23, 2004, S.J.M. again talked to Barta about visiting her father and said Sevigny did disgusting things to children. Barta asked S.J.M. if she had to take her clothes off or if Sevigny took his clothes off, and S.J.M. answered yes to both questions. S.J.M. told Barta, "Alan likes to press it against little girls."

[¶ 3] On November 30, 2004, after S.J.M.'s allegations were reported to social services, she was taken to the Children's Advocacy Center at MedCenter One in Bismarck. Paula Condol, a forensic interviewer, conducted a videotaped interview with S.J.M. During the interview, S.J.M. told Condol that Sevigny was only wearing a shirt and rubbed his "private part" on her "private part." She also told Condol that another child, S.S., was in the room when this happened and that he did it to her too. S.J.M. only recalled the one incident, and said it occurred a long time ago when her father was moving into Sevigny's house.

[¶ 4] As a result of the interview with S.J.M., on December 2, 2004, Elizabeth Suda, a licensed social worker for Pembina County Social Services, received a report that seven-year-old S.S. may have been sexually abused by Sevigny. Suda went to S.S.'s elementary school to interview her. Pembina County Sheriff's Deputy Steve Yttredahl was present during the interview and took notes. Using drawings of a female child's body, S.S. told Suda about an incident that occurred during Christmas vacation in 2003 when she was getting ready to take a shower and Sevigny came into the bathroom and touched her vaginal area, butt, and chest. S.S. also described in detail several other occasions when Sevigny sexually abused her, including an incident on the living room couch when Sevigny touched her underneath her bath towel and touched the inside of her body with his hands where she "pees and poops." S.S. said the touches felt funny and sometimes hurt, and it would hurt when she went to the bathroom after these incidents. Suda asked if Sevigny ever asked S.S. to touch him, and S.S. used a drawing of the male body to point to where he asked her to touch him, including the penis, stomach, arm, elbow, butt, and chest. S.S. told Suda the incidents happened too many times to remember, but she believed it started when she was in kindergarten.

[¶ 5] On December 14, 2004, S.S. was taken to the MeritCare Coordinated Treatment Center in Fargo, where Brenda Martin, a forensic interviewer, conducted a videotaped interview with S.S. S.S. told Martin the incidents with Sevigny began when she was in kindergarten and said it happened "too many times for me to remember." S.S. drew pictures to help tell Martin about an incident in the summer when she was home alone with Sevigny. She drew a picture of the layout of her house and told Martin that she was walking to her bedroom wearing only a towel after her shower and Sevigny grabbed her, pulled her on to the couch and squeezed her butt. She also said he touched her "privates," butt, and chest, and he asked her to touch his "privates." S.S. drew an anatomically correct picture of what Sevigny's genitals looked like. After the interview, S.S. was examined by Dr. Alonna Norberg. S.S. told Dr. Norberg that Sevigny would touch her inside where she "pees and poops" and it would often hurt afterward when she would go to the bathroom.

[¶ 6] Sevigny was arrested in December 2004, and charged with two counts of gross sexual imposition. The criminal complaint alleged Sevigny committed numerous incidents of sexual assault on S.S. between September 2003 and December 2004, and alleged Sevigny committed numerous incidents of sexual contact against S.J.M. between September 2002 and November 2004. The complaint was later amended to allege Sevigny committed numerous incidents of sexual contact against S.J.M. between August 2002 and November 2004.

[¶ 7] Before trial, the State moved for the admission of S.S. and S.J.M.'s out-of-court statements under N.D.R.Ev. 803(24). At a March 2005 hearing, Barta; Condol; Martin; Suda; Roberta Carson, S.S.'s therapist; Kyann Schneider, S.J.M.'s therapist; and S.J.M.'s mother testified about statements S.S. and S.J.M. made to them. The videotaped interviews of S.S. and S.J.M. were also played for the court. The district court granted the State's motion to allow Barta, Condol, Martin, Suda, Carson, and Schneider to testify to S.S. and S.J.M.'s out-of-court statements. The court denied the request to permit S.J.M.'s mother to testify, finding her testimony was confusing as to the dates and times S.J.M.'s statements were made.

[¶ 8] At an April 2005 jury trial, S.S. and S.J.M. testified, but were reluctant to discuss what happened and gave limited testimony. Both girls confirmed they had been sexually abused by Sevigny, although S.S.'s testimony was very limited. The jury was shown the girls' videotaped interviews, and Barta, Condol, Martin, Suda, Carson, and Schneider testified about the statements the girls made to them. Dr. Norberg also testified about the statements S.S. made during her examination, and based upon S.S.'s statements, Dr. Norberg testified with a reasonable degree of certainty that S.S. was sexually abused. During the trial, Sevigny attempted to raise an alibi defense for the dates of one of the alleged incidents with S.S. The State moved to deny admission of any alibi evidence. The court granted the State's motion because Sevigny failed to give notice of his alibi defense under N.D.R.Crim.P. 12.1, which sets out the rules for admission of alibi evidence.

[¶ 9] The jury found Sevigny guilty on both counts of gross sexual imposition, and he received concurrent sentences of 20 years imprisonment, with 15 years suspended for the acts against S.S., and 10 years imprisonment, with 5 years suspended for the acts against S.J.M.

II

[¶ 10] Sevigny argues the district court abused its discretion in refusing to allow the introduction of his alibi evidence after finding Sevigny did not have "good cause" for failing to provide notice of his alibi defense under N.D.R.Crim.P. 12.1. Sevigny also claims his Due Process rights under the United States Constitution were violated because the court did not allow him to testify about his alibi.

A

[¶ 11] Rule 12.1(a), N.D.R.Crim.P., provides, "[a] defendant who intends to offer an alibi defense must serve written notice on the prosecuting attorney of any intended alibi defense and file the notice within the time provided for the making of pretrial motions or afterward as the court directs." If the defendant fails to comply with the notice requirement, "the court may exclude the testimony of any undisclosed witness regarding the defendant's alibi. This rule does not limit the defendant's right to testify." N.D.R.Crim.P. 12.1(e). The main purpose of the rule requiring notice of an alibi defense is to prevent surprise. State v. Flohr, 301 N.W.2d 367, 371 (N.D. 1980).

[¶ 12] A district court's decision to exclude evidence of an alibi under N.D.R.Crim.P. 12.1 is reviewable under the abuse of discretion standard. Flohr, at 372. A court abuses its discretion if it acts unreasonably, arbitrarily, or capriciously, or if it misinterprets or misapplies the law. State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498. When determining whether to allow alibi evidence when the notice requirements of Rule 12.1 have not been met, "a court ought to take into account, among other particulars of the case, the actual prejudice that will redound to the prosecution if the testimony is allowed and whether the defendant's failure to inform was in good faith and for good cause." Flohr, at 372.

[¶ 13] Sevigny argues he should have been allowed to present an alibi defense for one of the incidents S.S. claimed occurred during Christmas vacation in 2003. Sevigny claimed he was not at home during that time period because he was working as a truck driver and was out of town. However, Sevigny did not make a formal offer of proof to support his claim, and he did not provide notice of an alibi defense under N.D.R.Crim.P. 12.1(a). During cross-examination of Suda, Sevigny's attorney questioned her about the Christmas 2003 incident, and asked, "So you're not aware of the fact that Mr. Sevigny wasn't home at all during Christmas vacation 2003?" The State objected to the question, and the court sustained the objection. Later, the State moved to exclude all evidence related to Sevigny's alibi defense, arguing he did not give proper notice. Sevigny claimed he could not give proper notice because the complaint did not charge...