Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Gary H. Lee, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
N.D. Supreme CourtState v. Boespflug,
This opinion is subject to petition for rehearing. [Go to Documents] [Download as WordPerfect]
Opinion of the Court by VandeWalle, Chief Justice.
State v. BoespflugNo. 20100121
[¶1] Joshua Michael Boespflug appealed a criminal judgment entered after a jury found him guilty of corruption or solicitation of a minor. We affirm.
[¶2] On January 3 and 5, 2009, Boespflug sent several text messages to the victim, S.B. During their exchange of text messages, Boespflug offered to pay S.B. if S.B. allowed him to perform oral sex. Responding to one request, S.B. replied he was a minor and that he was in high school. S.B. also responded that he was not interested in pursuing Boespflug's solicitation.
[¶3] On January 5, 2009, the victim's parents contacted the Sheriff's office to investigate the text messages. As a deputy was photographing the text messages, he inadvertently forwarded a message to Boespflug. The message, which was a message previously sent to a different recipient, read "nothing, just chilling." Replying to the inadvertently sent message, Boespflug again texted S.B. and asked if he wanted a "discreet BJ."
[¶4] Before trial, Boespflug proposed affirmative-defense jury instructions. One stated it is an affirmative defense if Boespflug reasonably believed S.B. to be an adult. The other stated it is an affirmative defense if Boespflug reasonably believed S.B. to be "less than three years younger than him at the time of the alleged offense."
[¶5] At the trial, the State presented testimony of the investigating deputy and S.B. The deputy described many of the text messages and verified when the messages were sent. The deputy also testified as to the ages of Boespflug and S.B. The deputy testified Boespflug, at the time of the offenses, was more than three years older than S.B. The district court also received photographs of the text messages into evidence. After Boespflug's cross-examination of the deputy, the parties discussed the final jury instructions, and Boespflug again requested to include his affirmative-defense instructions. The court denied the request, finding insufficient evidence to support the reasonable-belief-the-victim-was-an-adult instruction. The court excluded the three-year age difference defense instruction because it constituted an element of the offense.
[¶6] S.B. testified he was a minor and in high school at the time he received the text messages. S.B. also described the sexual and ...