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State of North Dakota v. Billy Joe Kinsella

May 11, 2011

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
BILLY JOE KINSELLA, DEFENDANT AND APPELLANT



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

The opinion of the court was delivered by: Maring, Justice.

N.D. Supreme Court State v. Kinsella,

2011 ND 88

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED.

Opinion of the Court by Maring, Justice.

State v. Kinsella

No. 20100355

[ ¶1] Billy Joe Kinsella appeals from a criminal judgment entered on a jury's verdict finding him guilty of sexual assault and from an order denying his motion for a new trial. Kinsella argues the evidence presented at trial is insufficient to support the jury's verdict of guilty and asserts the jury's verdict is against the weight of the evidence. We affirm.

I

[ ¶2] On July 20, 2009, the State charged Kinsella with one count of sexual assault, a class C felony, in violation of N.D.C.C. § 12.1-20-07, alleging Kinsella sexually assaulted his stepdaughter, S.B. A two-day trial took place in August 2010. At trial, the State called as its witnesses the investigating police officer, the nurse who performed the medical examination of S.B., the North Dakota State Crime Laboratory analysts who tested the physical evidence, and S.B.

[ ¶3] In its case in chief, the State established S.B. was sixteen-years-old on the date of the assault. A nurse examined S.B. the day after the assault. The nurse testified the examination revealed some redness and irritation on S.B.'s genitalia, but stated she could not determine the reason for the redness. Following the medical examination, S.B. gave a statement to a police officer. As a result of S.B.'s statement and the medical examination, the officer arrested Kinsella and questioned him about sexually assaulting S.B. The officer testified Kinsella denied the allegations, but stated Kinsella seemed "on guard" and "closed up" during the interrogation and breathed rapidly when answering questions. The officer then obtained a warrant and searched Kinsella's home. Based on S.B.'s statement the sexual assault took place in her bedroom, the officer collected sheets and blankets from her bed and submitted them to the State Crime Laboratory for testing. A crime laboratory analyst testified the bed sheet tested positive for semen. A DNA analysis revealed the semen matched Kinsella's DNA profile. When called to testify, however, S.B. indicated she had no recollection of the assault or the medical examination. The State rested and Kinsella moved for a judgment of acquittal under Rule 29(a) of the North Dakota Rules of Criminal Procedure. The trial court denied the motion.

[ ΒΆ4] Kinsella proceeded with his case in chief. He testified on his behalf and denied the sexual assault allegations. Kinsella's mother, sister, and uncle also testified on his behalf. Their testimony focused on S.B.'s demeanor on the day of the assault and the following day. Each stated S.B. did not appear to be afraid of Kinsella and looked "normal." S.B.'s mother, and Kinsella's wife, testified S.B. told her about the assault the day after it took place, but stated S.B. later recanted her story and told her nothing had happened between her and Kinsella. S.B.'s sister testified S.B. told her the allegations were not true. At the end of his case in chief, Kinsella renewed his Rule 29(a) motion for a judgment ...


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