Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Georgia Dawson, Judge.
The opinion of the court was delivered by: Crothers, Justice.
[¶1] Joshua Poitra appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition and aggravated assault. Poitra contends the district court erred in denying his motion to suppress DNA evidence because he had a right to counsel before a search warrant was executed and because the affidavit for the search warrant contained false statements. Poitra also argues the court erred in denying his motion to suppress the photographic evidence and identification, the court abused its discretion by excluding evidence of the alleged victim's prior sexual history, and his sentence is illegal. We affirm.
[¶2] During the early morning hours on June 2, 2008, Jane Doe was at a Fargo residence with a group of people, including Poitra and at least two other men. At some point Doe called a taxicab to take her home. While she was outside waiting for the cab, someone grabbed her, threw her on the ground, removed her pants and underwear, and began having sexual intercourse with her. Eventually Doe was able to get away. Doe ran into the street, stopped a passing patrol vehicle from the Fargo Police Department and told the officers that she had been raped. Doe told the officers where the incident occurred, and the officers found a pair of women's underwear and a white baseball cap at the location.
[¶3] Fargo Police Detective James Shaw spoke to Doe on June 3, 2008, and she told him that her attacker's name was Josh or Justin, that he wore a white baseball cap with a footprint or bear claw and that he had a distinctive scar on his forehead. Shaw also talked to another individual who was with Doe on the night of the incident and she said a male named Josh was wearing a white hat with a foot emblem.
[¶4] On June 15, 2008, law enforcement officers were investigating an unrelated matter at the residence where the incident with Doe occurred. Poitra was at the residence and was taken into custody on a charge of minor in consumption of alcohol. Poitra was photographed when he was taken into custody. Law enforcement officers believed Poitra was eighteen, based on information from law enforcement databases and Poitra's statements.
[¶5] Later that day, Detectives Shaw and Paul Lies interviewed Poitra. They informed Poitra that a sexual assault had occurred on June 2, 2008, and they asked him to provide a DNA sample. Poitra told the detectives that he wanted to speak with his mother before he decided whether to give a DNA sample.
[¶6] On June 16, 2008, Shaw applied for a search warrant to obtain a DNA sample from Poitra. The affidavit in support of the warrant stated that the officer believed there was probable cause that Poitra was responsible in the gross sexual imposition because he "matches the general age group of the suspect, based on the fact that he was at the residence where the original incident occurred and based on the fact that he refused to voluntarily provide a DNA sample." A magistrate found probable cause existed and issued the search warrant. Shaw subsequently met with Poitra and collected a DNA sample.
[¶7] Shaw also took more photographs of Poitra to use in a photographic lineup because he noticed Poitra has a distinct scar on his forehead, which was consistent with Doe's description. On June 16, 2008, Shaw conducted a photographic lineup using the photograph of Poitra taken when he was arrested for minor in consumption of alcohol. Doe positively identified Poitra as her attacker.
[¶8] On June 18, 2008, Poitra informed the court during a hearing that he was a juvenile. Shaw checked with the Social Security Administration to determine Poitra's correct date of birth. The Social Security Administration confirmed Poitra was a juvenile.
[¶9] On June 19, 2008, a petition was filed in juvenile court charging Poitra with minor in consumption of alcohol in violation of N.D.C.C. § 5-01-08, aggravated assault in violation of N.D.C.C. § 12.1-17-02 and gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(a). After a hearing, the juvenile court transferred the aggravated assault and gross sexual imposition charges to adult district court.
[¶10] Poitra moved to suppress all statements made to law enforcement because they were the result of custodial interrogation and a parent or attorney was not present, to suppress the photographic identification because the photographs were taken without a parent or attorney present and law enforcement knew or should have known he was a juvenile, and to suppress all DNA evidence because the affidavit for the warrant was based on false or misleading information. After a hearing, the court granted Poitra's motion to suppress the statements made after he was taken into custody. The court denied Poitra's motion to suppress the DNA evidence and the identification evidence obtained through photographs.
[¶11] After trial in July 2009, a jury found Poitra guilty of aggravated assault and gross sexual imposition. Poitra was sentenced to twenty-five years in prison with five years suspended.
[¶12] Poitra argues the district court erred in denying his motion to suppress DNA evidence because the affidavit for the search warrant contained false statements or omitted information and because he had a right to have a parent or counsel present before the warrant was executed.
[¶13] A district court's decision to deny a motion to suppress "'will not be reversed [on appeal] if there is sufficient competent evidence capable of supporting the district court's findings, and... if its decision is not contrary to the manifest weight of the evidence.'" State v. Scholes, 2008 ND 146, ¶ 7, 753 N.W.2d 377 (quoting State v. Fischer, 2008 ND 32, ¶ 10, 744 N.W.2d 760). Questions of law are fully reviewable. Scholes, at ¶ 7. "'[W]hether a finding ...