State v. Vondal

• Decision Date: 15 September 2011
• Docket Number: Nos. 20100389,20100390.,s. 20100389
• Citation: 2011 ND 186,803 N.W.2d 578
• Parties: STATE of North Dakota, Plaintiff and Appelleev.Johnathan Scott VONDAL, Defendant and Appellant.
• Court: North Dakota Supreme Court

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.

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 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 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 contacts that occurred when Vondal was over the age of fourteen with the last occurring in 2008.

[¶ 10] Although there was evidence Vondal was less than fourteen years old when the first alleged sexual acts or contacts occurred, evidence also exists that all essential elements of the offense were not present and complete and the offense was not committed until after Vondal's fourteenth birthday. Furthermore, the State did not allege the offense was committed and all of the essential elements of the offense were present and complete before Vondal was fourteen years old. Section 12.1–04–01, N.D.C.C., only bars the prosecution of a person as an adult if the offense was committed before the person was fourteen years old. Vondal was only charged with one offense, continuous sexual abuse of a child. He was not charged with separate offenses for each of the alleged sexual acts or contacts, and the offense of continuous sexual abuse of a child was not committed until Vondal was more than fourteen years old. Section 12.1–04–01, N.D.C.C., does not apply under the facts of this case. We conclude the district court did not commit obvious error by allowing Vondal to be prosecuted as an adult for the continuous sexual abuse charge and by allowing evidence of acts that occurred before Vondal was fourteen years old.

III

[¶ 11] Vondal argues his due process rights were violated by various instances of prosecutorial misconduct. Vondal claims the State's misconduct included advocating themes of “blame, minimize, deny” and “family sticks together,” making improper comments during closing argument, commenting on whether the victim had any motive to lie after he was prohibited from introducing evidence about the victim's motive, asking the victim leading questions and questioning a potential juror about the concept of delayed reporting and sexual abuse of a child.

[¶ 12] We first determine whether the prosecutor's actions were misconduct and, if they were, then we examine whether the misconduct had prejudicial effect. See State v. Burke, 2000 ND 25, ¶¶ 25–30, 606 N.W.2d 108 (whether the prosecutor's actions affected the defendant's substantial rights was only considered after determining the actions were misconduct). “To determine whether a prosecutor's misconduct rises to a level of a due process violation, we decide if the conduct, in the context of the entire trial, was sufficiently prejudicial to violate a defendant's due process rights.” State v. Kruckenberg, 2008 ND 212, ¶ 20, 758 N.W.2d 427. When a defendant fails to object to alleged misconduct, we will not reverse unless the misconduct constitutes obvious error. State v. Evans, 1999 ND 70, ¶ 9, 593 N.W.2d 336. “[O]ur review is limited to determining if the prosecutor's conduct prejudicially affected ...