State v. Thill, Cr. N
| Decision Date | 31 July 1991 |
| Docket Number | Cr. N |
| Citation | 473 N.W.2d 451 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Maurice THILL, Defendant and Appellant. o. 900314. |
| Court | North Dakota Supreme Court |
Merle Ann Torkelson, State's Atty., Washburn, for plaintiff and appellee.
Feldner & Danielson, Mandan, for defendant and appellant; argued by Rodney K. Feldner, Mandan.
Maurice Thill was convicted by a jury on three counts of committing gross sexual imposition and was sentenced to the state penitentiary for three concurrent four-year terms. Retaining new counsel, Thill appealed from the judgment of conviction. We affirm.
Thill was charged with violating Section 12.1-20-03(2)(a), N.D.C.C., which makes it a crime to have sexual contact with a person who is under fifteen years old. Sexual contact is defined under Section 12.1-20-02(4), N.D.C.C., as "any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires." More specifically, Thill was charged with having sexual contact with three nephews, L.J., C.W., and T.W., (hereinafter Larry, Craig, and Tom, pseudonyms). At the time of the alleged violations the boys were approximately five, six, and nine years old, respectively.
Thill asserts on appeal that he was denied a fair trial because the prosecuting attorney made an improper comment during closing argument, to which Thill's attorney was not allowed to respond and for which no cautionary instruction was given to the jury by the trial court. During closing argument Thill's attorney was allowed to fully argue to the jury that his client was an innocent victim of a "witch hunt" by the prosecutor's office. His counsel analogized this case with the "witch mania" that occurred many years ago in England and spread to the United States where innocent persons were arbitrarily accused of being witches possessed by the devil and summarily persecuted. According to defense counsel's argument to the jury, this madness continued until the colonists suddenly became convinced that the accused were innocent and that the proceedings themselves were being carried on by the work of the devil. Once this madness subsided even the victims realized that there were no witches and that they had not been victimized or bewitched. In concluding this tale to the jury, Thill's attorney postulated that Thill's three nephews were probably the victims of "this great hysteria whereby people have spent the last two years, three years, virtually on a daily basis--once a week, anyway--telling them, confirming with them, that they've been sexually abused."
In response to the foregoing argument the prosecuting attorney made the following brief response during his rebuttal argument:
The trial court then told Thill's attorney, who had not raised an objection to the prosecutor's remark, that he would be permitted to respond, and the following exchange occurred:
The court then gave the jury closing instructions which included an admonition that the arguments of counsel are not evidence and that the jury was to be solely guided by the evidence in the case.
Thill's trial counsel did not object to the prosecutor's rebuttal statement and did not ask for a curative instruction. Consequently, this issue was not properly preserved for review on appeal, and our inquiry is limited to determining whether the trial court committed obvious error affecting substantial rights of the defendant. State v. Thiel, 411 N.W.2d 66 (N.D.1987). The power to notice obvious error is one which we exercise cautiously and only in exceptional circumstances where a serious injustice has been done to the defendant. State v. Johnson, 379 N.W.2d 291 (N.D.), cert. denied 475 U.S. 1141, 106 S.Ct. 1792, 90 L.Ed.2d 337 (1986).
The control and scope of opening and closing arguments are left to the discretion of the trial court. State v. Schimmel, 409 N.W.2d 335 (N.D.1987). Defense counsel was allowed to argue to the jury, in substantial detail, that his client was the victim of a modern day witch hunt by the prosecution and to intimate that the people who assisted in the investigation and bringing of the charges suffered from a "great hysteria" causing them to convince Thill's nephews that they had been sexually abused. By doing this, defense counsel invited the prosecutor's remarks to which Thill now objects. We do not condone the prosecutor's statements, which do not relate to the evidence in the record. However, they do not rise to the level of obvious error, especially where the trial court gave defense counsel an opportunity to respond and instructed the jury that counsels' arguments are not evidence and should be disregarded. We conclude that obvious error was not committed by the trial court in its handling of the closing arguments.
Thill asserts on appeal that there was insufficient evidence to sustain the jury's verdict. We disagree.
In reviewing the sufficiency of the evidence to convict, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction. State v. Schill, 406 N.W.2d 660 (N.D.1987). A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefits of all inferences reasonably to be drawn in its favor. Id. It is the exclusive function of the jury to weigh the evidence and judge the credibility of witnesses, and we will not substitute our judgment for that of the jury where the evidence is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction. Id.
On each count, the State was required to establish beyond a reasonable doubt that Thill had sexual contact with a child less than fifteen years old. The three victims testified at the trial about the sexual abuse perpetrated against them by Thill. Larry, the youngest, testified that Thill put string, rocks and a stick inside his "butt." He also testified that Thill bit his "nook" and placed his tongue inside his mouth. Although Larry had difficulty remembering where these incidents occurred, counsel stipulated that Larry, while testifying at a deposition, stated that Thill had sexual contact with him in McLean County.
Craig testified about an incident that occurred while sleeping in a camper with Thill on his grandfather's farm in McLean County. He testified that Thill reached into his pajamas and pulled his penis. He testified that Tom, who...
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