Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Douglas L. Mattson, Judge.
The opinion of the court was delivered by: Sandstrom, Justice.
[¶1] Derek Foreid appeals from an amended criminal judgment entered after a jury found him guilty of gross sexual imposition. We conclude the district court did not abuse its discretion in permitting the State to amend the information, and the court did not err in denying Foreid's request for a jury instruction on a lesser included offense. We affirm.
[¶2] In September 2006, the State filed a complaint charging Foreid with gross sexual imposition for allegedly using force to compel K.N. to submit to sexual intercourse against her will on June 13, 2006. On November 9, 2006, a preliminary hearing was held, and the district court found there was probable cause to believe Foreid committed the offense. The State filed an information charging Foreid with gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(a). The information stated the offense is a class A felony. Foreid was arraigned and entered a plea of not guilty.
[¶3] In January 2007, the State moved to amend the information to correct a mistake in the classification of the charged offense, stating:
Pursuant to an amendment to the gross sexual imposition statute in 2005, offenses charged under 12.1-20-03(1)(a) are classified as a AA Felony... prior to August 2005, these offenses were a class A Felony. As such, a mistake was made in the charging document and should be amended to reflect the classification of AA Felony.
The amended information was attached to the motion to amend, which was filed and is included in the record. The amended information charged Foreid with gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(a), but changed the classification of the offense from a class A felony to a class AA felony. Foreid objected to the State's motion, arguing the State should not be allowed to amend the information, because the amended information charged him with a more serious offense and would result in substantial prejudice. The court granted the State's motion over Foreid's objection. The State did not file a separate amended information after the court granted its motion, and the amended information is not listed in the Clerk of District Court's register of actions.
[¶4] During the December 2007 jury trial, both Foreid and K.N. testified about what occurred on June 13, 2006. K.N. testified she was intoxicated, but she remembers waking up in the back of Foreid's pickup truck with Foreid on top of her. She testified Foreid attempted to have sexual intercourse with her, and she tried to wiggle her hips and roll away from him to stop him but her arms felt like they were weighed down. K.N. testified she told Foreid no, that it hurt, and to get off her, but he penetrated her once and it was done. Foreid testified he had sexual intercourse with K.N., but it was consensual and she did not tell him to stop or that it hurt. Other witnesses who had spent time with Foreid and K.N. on June 13 and two physicians and a nurse who treated K.N. in the emergency room following the incident also testified. After both parties presented their cases, Foreid requested a jury instruction on the lesser included offense of sexual assault, and the court denied Foreid's request. The jury found Foreid guilty, and he was sentenced to serve twenty years in prison with ten years suspended.
[¶5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the amended criminal judgment was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.
[¶6] Foreid argues the district court erred in allowing the State to amend the information. Foreid also contends his substantive due process rights were violated when the criminal prosecution proceeded without the amended information properly filed and without a preliminary hearing or arraignment on the amended information.
[¶7] Foreid argues the district court erred in granting the State's request to amend the information because the amended information changed the classification of the offense from a class A felony to a class AA ...