Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
N.D. Supreme CourtState v. Zottnick,
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by VandeWalle, Chief Justice.
[ ¶1] Ryan Zottnick appealed from a criminal judgment entered after a jury found him guilty of violating an order prohibiting contact with Katie Abt. Zottnick argues the district court erred in refusing to instruct the jury on excuse and there is insufficient evidence to support the conviction. We affirm.
[ ¶2] The State charged Zottnick with violating an order prohibiting contact under N.D.C.C. § 12.1-31.2-02, alleging he had direct contact with Abt from November 1 through 3, 2009, in violation of an October 19, 2009 order prohibiting that contact. The October 19, 2009 order prohibited Zottnick from any direct or indirect contact with Abt, including threatening, molesting, injuring, or harassing her, calling, writing, or visiting her anywhere, having messages delivered to her, or entering or coming within 100 yards of her or her residence. The order prohibiting contact explicitly specified in bold print that "[c]onsent of [Abt] does not invalidate this order," and on October 19, 2009, Zottnick signed an admission of service of the order.
[ ¶3] At trial, Abt testified that between November 1 and 3, 2009, Zottnick repeatedly telephoned her, emailed her, sent her text messages, and on November 2, 2009, he came to her parents' house while she was there and pounded on the door. The State introduced copies of text messages and e-mails sent to Abt from November 1 through 3, 2009, from telephone numbers for phones belonging to Zottnick and an audio recording of a phone message left on her phone. The State also introduced Zottnick's cellular telephone records for incoming and outgoing calls from October 19, 2009 through November 3, 2009, for two telephone numbers for phones belonging to him. Those records indicate Abt initiated six phone calls to Zottnick's phones from October 19 through October 31, 2009, and numerous calls were made from his phones to her phone during that time. Those records further reflect that two phone calls were made from Abt's phone to Zottnick's phones from November 1 through November 3, 2009, and numerous calls were made from his phones to her phone.
[ ¶4] At trial, Zottnick claimed Abt initiated contact with him and his conduct in replying to her was excused. Zottnick requested a jury instruction on excuse patterned after N.D.C.C. § 12.1-05-08 and N.D.J.I.-Criminal K-3.80. The district court refused to give that instruction, ruling there was no "clear indication [in the record] of what the content of [Abt's] contact was, other than [defense counsel] asked her some questions about e-mails and she said she wasn't sure without looking at the e-mails. So I don't know that we have any of that as evidence. [Defense counsel's] questions aren't evidence. It's a matter of whatever Ms. Abt says. So I am not going to instruct on excuse." A jury thereafter found Zottnick guilty of violating the order prohibiting contact with Abt.
[ ¶5] Zottnick argues the district court erred in refusing to give his requested jury instruction on excuse based on N.D.C.C. § 12.1-05-08 and patterned after ...