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State v. Mosbrucker

December 16, 2008; as amended February 2, 2009

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
JEFF EMANUELL MOSBRUCKER, DEFENDANT AND APPELLANT



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice

AFFIRMED.

[¶1] Jeff Mosbrucker appealed from a criminal judgment entered after being found guilty of gross sexual imposition following a jury trial. We affirm.

I.

[¶2] In August 2006, Mosbrucker and Jane Doe, who was eighteen years old at the time, had sex outside her parent's home. Mosbrucker was charged with gross sexual imposition for engaging in a sexual act with Doe, whom the State alleged was forced into the sexual act or had a mental disease or defect rendering her incapable of understanding the nature of the conduct. Mosbrucker's first trial in March 2007 ended in a mistrial and a second trial was held in July 2007.

[¶3] At the close of the State's case-in-chief, Mosbrucker moved for a judgment of acquittal. It was partially granted as to the allegation that Doe was forced into the sexual act, with the jury deciding only whether Mosbrucker knew or had reasonable cause to believe Doe suffered from a mental disease or defect rendering her incapable of understanding the nature of the conduct. The jury found Mosbrucker guilty of gross sexual imposition. Following his trial, Mosbrucker made a motion for a new trial on the grounds that the verdict was not supported by the greater weight of the evidence. The motion was subsequently denied by the trial court.

II.

[¶4] Mosbrucker argues his conviction should be reversed because the trial court committed obvious error by allowing Dr. DeGree to testify regarding Doe's ability to consent to sexual acts and her ability to understand the implications of engaging in sexual acts.

[¶5] Dr. DeGree testified he reported the incident because Doe told him she had not intended to have sexual relations and because he thought she would have difficulty giving consent due to her lack of mental capability. When asked if Doe had a mental disease or defect rendering her incapable of understanding the nature of the conduct, Dr. DeGree explained that Doe might understand the act of sexual intercourse but would have difficulty understanding the implications of it. He said Doe would have extreme difficulty understanding sexually transmitted diseases, becoming pregnant and "the social relationships you have to understand and negotiate in order to engage in [sex]." When asked whether Doe could consent to the act of sex, Dr. DeGree stated:

[T]he trouble I have with that is she would not understand the implications of it, having sexually transmitted diseases, being pregnant, having consenting sex with somebody who may not be a good partner. She would have serious limitations on that.

[¶6] Mosbrucker objected to the testimony at trial as irrelevant. The trial court overruled the objection. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. N.D.R.Ev. 401. Under N.D.R.Ev. 401 through 403, a trial court is vested with broad discretion to decide if evidence is relevant and if its probative value is substantially outweighed by the danger of unfair prejudice. State v. Carlson, 1997 ND 7, ¶ 8, 559 N.W.2d 802. We apply an abuse of discretion standard of review to a district court's evidentiary rulings and will not reverse the court's ruling unless it is arbitrary, capricious, or unreasonable, or a misinterpretation or misapplication of the law. State v. Wegley, 2008 ND 4, ¶ 12, 744 N.W.2d 284.

[¶7] Mosbrucker argues the testimony regarding whether Doe could consent to the sexual act or understand the implications of having sex were irrelevant in determining whether she had a mental disease or defect rendering her incapable of understanding the nature of the conduct. He asserts the testimony regarding Doe's understanding of the physical act of sexual intercourse was sufficient to establish she was capable of understanding the nature of the conduct.

[¶8] Section 12.1-20-03(1)(e), N.D.C.C., provides:

1. 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:

e. That person knows or has reasonable cause to believe that the other person suffers from a mental disease or defect which renders him or her incapable of understanding the nature of his or her conduct.

[¶9] It is necessary for us to ascertain what "incapable of understanding the nature of his or her conduct" entails and, consequently, what evidence is relevant to the issue. Legislative history is silent and there is no case law in our jurisdiction discussing the meaning of this particular statutory language. However, case law in other jurisdictions with similar statutory language is helpful in ascertaining what evidence is relevant in determining whether a victim was capable of understanding the nature of a sexual act.

[¶10] In determining the meaning of the words "incapable of understanding the nature of his or her conduct," decisions in other jurisdictions have recognized the tensions between the individual's right to sexual freedom and the society's interest in protecting the individual with a mental disease or defect. Elizabeth Reed, Criminal Law and the Capacity of Mentally Retarded Persons to Consent to Sexual Activity, 83 Va. L.Rev. 799, 806 (1997). Although most jurisdictions agree that consent means knowing, intelligent and voluntary agreement to engage in sexual activity, courts disagree as to the degree to which these factors must be determined and have resulted in three definitions courts have used to define mental incapacity so as to render the person incapable of understanding the nature of his or her conduct. Id. at 813.

[¶11] The majority position interprets the standard of incapable of understanding the nature of his or her conduct to mean that the person does not know either the physiological aspects of sex or the possible consequences of sexual activity, such as pregnancy and the contraction of sexually transmitted diseases. A few jurisdictions have interpreted the term to have a broader meaning and, in addition to understanding of the sexual act involved and its consequences, also require that the person must appreciate the moral dimensions of the decision to engage in sexual conduct although the person is free to act contrary to those societal ideas. Finally, one jurisdiction, New Jersey, has established the most limited interpretation and, while requiring the person understand the nature and the voluntariness of the action does not require the person understand the risk and consequences of sexual conduct. Id. at 813-14.

[¶12] An example of the broad definition is People v. Easley, 364 N.E.2d 1328, 1332 (N.Y. 1977). A valid inquiry in determining whether one is so mentally defective as to trigger protection under the law is whether there is an awareness of the social or other cost of one's conduct. Id. at 1333. To appreciate the nature and consequences of engaging in an act of sexual penetration, the victim must have the capacity to understand the full range of ordinary and foreseeable social, medical and practical consequences that the act entails. See also State v. Soura, 796 P.2d 109, 118 (Idaho 1990); People v. Gross, 670 P.2d 799, 801 (Colo. 1983) (holding victim incapable of understanding how sexual conduct will be regarded within the framework of the societal environment of which is a part or is not capable of understanding the physiological implications of sexual conduct is incapable of "appraising the nature of her conduct" under the language of the statute.).

[¶13] New Jersey has taken the approach that the voluntariness of the action requires the person to understand only the nature of the act and that one need not consent to the act for the carnal gratification of another, but does not require the person to understand the risk and consequences of sexual conduct. State v. Olivio, 589 A.2d 597 (N.J. 1991).

[¶14] Other jurisdictions have used an intermediate construction requiring that the person understand the nature of the sexual act as well as its consequences such as pregnancy and sexually transmitted diseases but not the moral nature of their participation in the act of intercourse. Thus, in Jackson v. State, 890 P.2d 587, 592 (Alaska Ct. App. 1995) the court found a victim was incapable of understanding a sexual act although the victim knew a baby came from having sex and could demonstrate a sexual act using dolls, but did not understand birth control, sexually transmitted diseases, how to prevent pregnancy or the practical consequences of a pregnancy. See also Stafford v. State, 455 N.E.2d 402, 405-06 (Ind. Ct. App. 1983) (holding "capacity to consent presupposes an intelligence capable of understanding the act, the nature and possible consequences.") In Stafford, the court relied on People v. McMullen, 414 N.E.2d 214, 217 (Ill. App. 1980), in which the Illinois court affirmed the conviction, adopting the standard that capacity to consent presupposes an intelligence capable of understanding the act, its nature and its consequences and, coupling it with the standard of review on appeal, concluded beyond a reasonable doubt the victim was unable to give consent though she did have some understanding of the physical nature of sexual activity and "where babies came from."

[¶15] The language of our statute "incapable of understanding the nature of his or her conduct" arguably may be broad enough to encompass the moral and societal consequences of sexual intercourse. However we believe that would be an amorphous construction of the statutory language and we decline to adopt it. But the statutory language is surely broad enough to encompass knowledge of the practical consequences of sexual intercourse such as unwanted pregnancy and sexually transmitted diseases, and we conclude the intermediate construction better reflects the legislative intent to balance the individual's right to sexual freedom with society's interest in protecting the individual with a mental disease or defect from conduct the nature of which he or she is incapable of understanding.

[ΒΆ16] Dr. DeGree's testimony addressed Doe's difficulty with specific implications and consequences, such as pregnancy and sexually transmitted diseases. Therefore, his testimony was relevant to an important issue in the case, as it made it more probable that Doe had a mental disease or defect rendering her incapable of understanding the nature of the conduct. We conclude the ...


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