State v. Vondal, Nos. 20100389

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtCROTHERS, Justice.
Citation2011 ND 186,803 N.W.2d 578
PartiesSTATE of North Dakota, Plaintiff and Appelleev.Johnathan Scott VONDAL, Defendant and Appellant.
Docket NumberNos. 20100389,20100390.
Decision Date15 September 2011

803 N.W.2d 578
2011 ND 186

STATE of North Dakota, Plaintiff and Appellee
v.
Johnathan Scott VONDAL, Defendant and Appellant.

Nos. 20100389

20100390.

Supreme Court of North Dakota.

Sept. 15, 2011.


[803 N.W.2d 581]

Meredith Huseby Larson (argued), Assistant State's Attorney, and Mark Jason McCarthy (appeared), Grand Forks, for plaintiff and appellee.Robin Lynn Thompson Gordon, Drake, N.D., for defendant and appellant.CROTHERS, Justice.

[¶ 1] Johnathan Vondal appeals from criminal judgments entered after a jury found him guilty of aggravated assault and continuous sexual abuse of a child. Vondal argues that it was obvious error to prosecute him as an adult for acts committed before he was fourteen years old, that his due process rights were violated by multiple instances of prosecutorial misconduct, that the district court abused its discretion and violated his confrontation rights by prohibiting testimony about the victim's state of mind and that the evidence is insufficient to support his convictions. We affirm.

I

[¶ 2] On December 22, 2009, police were called to a Grand Forks residence where Vondal and his sister, B.V., were engaged in a physical altercation. Vondal was arrested and charged with aggravated assault under N.D.C.C. § 12.1–17–02. During the investigation of the altercation, B.V. told police that Vondal had sexually abused her in the past and that the abuse had gone on for as long as she could remember until Vondal stopped in 2008. At the time of the investigation Vondal was twenty-one years old and B.V. was fourteen years old. In February 2010, Vondal was charged with continuous sexual abuse of a child under N.D.C.C. § 12.1–20–03.1. The State alleged Vondal willfully engaged in three or more sexual acts or contacts with B.V. between 2000 and 2009 while B.V. was less than fifteen years old.

[¶ 3] The district court granted the State's motion to join the prosecutions. In August 2010, the State filed a motion in limine, requesting the court enter a pre-trial order prohibiting Vondal from introducing evidence or arguing that he should not be held responsible for the continuous sexual abuse charge because he committed the crime while he was a minor. Vondal did not oppose the motion and instead said he would not argue his age at the time of the offense was a defense or that he was incorrectly charged. The court granted the State's motion. A jury trial was held. Vondal moved for a judgment of acquittal at the close of the State's case and renewed his motion after all of the evidence was presented. The court denied both motions. The jury found Vondal guilty of both charges, and criminal judgments were subsequently entered.

II

[¶ 4] Vondal argues the district court committed obvious error in allowing him to

[803 N.W.2d 582]

be prosecuted as an adult for continuous sexual abuse of a child for sexual acts or contacts committed when he was less than fourteen years old. He claims N.D.C.C. § 12.1–04–01 bars the State from prosecuting him as an adult for acts he allegedly committed before he turned fourteen years old. He contends evidence of the sexual acts or contacts he allegedly committed before he turned fourteen should not have been admitted at trial and without evidence of those acts, insufficient evidence exists to support the verdict for continuous sexual abuse of a child.

[¶ 5] Vondal did not raise this issue in the district court nor did he oppose the State's motion in limine to prohibit him from arguing he should not be held responsible for the continuous sexual abuse charge because he committed the offense when he was a minor. Vondal informed the court he did not intend to argue his age at the time of the offense was a defense or that he was incorrectly charged. This Court will not consider issues raised for the first time on appeal. State v. Keller, 550 N.W.2d 411, 412 (N.D.1996). However, a narrow exception to this rule provides that “[a]n obvious error or defect that affects substantial rights may be considered even though it was not brought to the court's attention.” N.D.R.Crim.P. 52(b). “ ‘We exercise the power to notice obvious error cautiously and only in exceptional circumstances where the defendant has suffered serious injustice.’ ” Keller, at 412 (quoting State v. Woehlhoff, 540 N.W.2d 162, 164 (N.D.1995)).

[¶ 6] Section 27–20–34(8), N.D.C.C., provides the procedure for transferring juvenile cases from juvenile court to district court and also provides:

“A person at least twenty years of age who committed an offense while a child and was not adjudicated for the offense in juvenile court may be prosecuted in district court as an adult, unless the state intentionally delayed the prosecution to avoid juvenile court jurisdiction. The district court has original and exclusive jurisdiction for the prosecution under this subsection.”

However, N.D.C.C. § 12.1–04–01 also provides, “The prosecution of any person as an adult is barred if the offense was committed while the person was less than fourteen years of age.”

[¶ 7] Although N.D.C.C. §§ 12.1–04–01 and 27–20–34(8) may prohibit the prosecution of an individual who is at least twenty years old for an offense that occurred before the person was fourteen years old, we need not decide that issue in this case. Even if we agreed with Vondal's argument and held N.D.C.C. § 12.1–04–01 bars the prosecution of an individual over the age of twenty in district court as an adult for an offense committed before the individual was fourteen years old, it would not affect the outcome of this case because N.D.C.C. § 12.1–04–01 does not apply.

[¶ 8] Vondal was charged with continuous sexual abuse of a child in violation of N.D.C.C. § 12.1–20–03.1. An individual is guilty of continuous sexual abuse of a child under N.D.C.C. § 12.1–20–03.1(1), “if the individual engages in any combination of three or more sexual acts or sexual contacts with a minor under the age of fifteen years during a period of three or more months.” Continuous sexual abuse of a child is a continuous offense. Unlike most offenses which are instantaneous, a continuous offense “consists of a course of conduct enduring over an extended period of time.” John v. State, 96 Wis.2d 183, 291 N.W.2d 502, 505 (1980). A continuous offense is not committed until all of the essential elements of the offense

[803 N.W.2d 583]

are present and complete and the course of conduct ends. See State v. Meza, 38 Kan.App.2d 245, 165 P.3d 298, 302 (2007); State v. Palmer, 248 Kan. 681, 810 P.2d 734, 740 (1991); Morris v. State, 595 So.2d 840, 844–45 (Miss.1991); John, at 505. With a continuing offense each act that is part of the offense is not a separate offense unless specifically provided by law. State v. Knoefler, 325 N.W.2d 192, 199 (N.D.1982).

[¶ 9] In this case, the State alleged the crime was committed between June 2000 and July 2009. B.V. testified about four specific sexual acts or contacts. She testified she was five years old the first time Vondal sexually abused her and he was eleven or twelve years old. The second sexual act or contact B.V. testified about occurred when she was seven or eight years old and Vondal was approximately fourteen or fifteen years old. B.V. testified about two more sexual acts or...

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17 practice notes
  • State v. Anderson, No. 20150015.
    • United States
    • United States State Supreme Court of North Dakota
    • 18 Febrero 2016
    ...in which the defendant has suffered a serious injustice. State v. Duncan, 2011 ND 85, ¶ 18, 796 N.W.2d 672 (quoting Evans, at ¶ 9).2011 ND 186, ¶ 12, 803 N.W.2d 578 (quotation and internal quotation marks omitted). "To establish obvious error, a defendant has the burden to show (1) err......
  • Coppage v. State, No. 20130180.
    • United States
    • United States State Supreme Court of North Dakota
    • 11 Marzo 2014
    ...rights, so as to deprive the defendant of a fair trial.State v. Estrada, 2013 ND 79, ¶ 28, 830 N.W.2d 617 (quoting State v. Vondal, 2011 ND 186, ¶ 12, 803 N.W.2d 578). [¶ 24] Coppage argues that since there was no legitimate use of his prior misdemeanor assault conviction, the prosecutorial......
  • State v. Chatman, No. 20150037.
    • United States
    • United States State Supreme Court of North Dakota
    • 22 Diciembre 2015
    ...issue, this Court will not address the issue on appeal unless the alleged error rises to the level of obvious error. State v. Vondal, 2011 ND 186, ¶ 17, 803 N.W.2d 578. "To establish obvious error, a defendant has the burden to show (1) error, (2) that is plain, and (3) affects substan......
  • State v. Estrada, No. 20120270.
    • United States
    • United States State Supreme Court of North Dakota
    • 14 Mayo 2013
    ...conduct prejudicially affected the defendant's substantial rights, so as to deprive the defendant of a fair trial.State v. Vondal, 2011 ND 186, ¶ 12, 803 N.W.2d 578 (internal citations and quotations omitted). [¶ 29] Rule 611(c) of the North Dakota Rules of Evidence provides: Leading questi......
  • Request a trial to view additional results
17 cases
  • State v. Anderson, No. 20150015.
    • United States
    • United States State Supreme Court of North Dakota
    • 18 Febrero 2016
    ...in which the defendant has suffered a serious injustice. State v. Duncan, 2011 ND 85, ¶ 18, 796 N.W.2d 672 (quoting Evans, at ¶ 9).2011 ND 186, ¶ 12, 803 N.W.2d 578 (quotation and internal quotation marks omitted). "To establish obvious error, a defendant has the burden to show (1) err......
  • Coppage v. State, No. 20130180.
    • United States
    • United States State Supreme Court of North Dakota
    • 11 Marzo 2014
    ...rights, so as to deprive the defendant of a fair trial.State v. Estrada, 2013 ND 79, ¶ 28, 830 N.W.2d 617 (quoting State v. Vondal, 2011 ND 186, ¶ 12, 803 N.W.2d 578). [¶ 24] Coppage argues that since there was no legitimate use of his prior misdemeanor assault conviction, the prosecutorial......
  • State v. Chatman, No. 20150037.
    • United States
    • United States State Supreme Court of North Dakota
    • 22 Diciembre 2015
    ...issue, this Court will not address the issue on appeal unless the alleged error rises to the level of obvious error. State v. Vondal, 2011 ND 186, ¶ 17, 803 N.W.2d 578. "To establish obvious error, a defendant has the burden to show (1) error, (2) that is plain, and (3) affects substan......
  • State v. Estrada, No. 20120270.
    • United States
    • United States State Supreme Court of North Dakota
    • 14 Mayo 2013
    ...conduct prejudicially affected the defendant's substantial rights, so as to deprive the defendant of a fair trial.State v. Vondal, 2011 ND 186, ¶ 12, 803 N.W.2d 578 (internal citations and quotations omitted). [¶ 29] Rule 611(c) of the North Dakota Rules of Evidence provides: Leading questi......
  • Request a trial to view additional results

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