Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wickham Corwin, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
State v. Midell, 2011 ND 114
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect]
Opinion of the Court by VandeWalle, Chief Justice.
[¶1] The State appealed from a district court order dismissing a charge of gross sexual imposition against Willie Demar Midell. We reverse, concluding the victim's testimony was neither implausible nor incredible as a matter of law, and remand for further proceedings consistent with this opinion.
[¶2] Willie Demar Midell was charged by information with gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(c). At the preliminary hearing, the complaining witness, S.D.W., testified on behalf of the State. Midell provided the testimony of S.D.W.'s friend, Ana Twedt, a sexual assault nurse examiner, and a forensic scientist from the State Crime Lab. The district court received S.D.W.'s written statement, the sexual assault examination kit, and the State Crime Lab report as evidence.
[¶3] According to S.D.W.'s testimony, she lived in a one-bedroom apartment in Fargo. Her friend, Ana Twedt, was living with her at that time. Both S.D.W. and Twedt slept in the living room, where a sectional couch was located; S.D.W. used the bedroom for storage. On the evening of December 14, 2009, two individuals were invited to S.D.W.'s apartment--Twedt's boyfriend, Joel Emery, and Midell, who was a friend of Emery and Twedt. S.D.W. did not know Midell. Emery and Midell came to the apartment, but Emery only stayed for a few minutes. S.D.W., Twedt, and Midell conversed in the living room. S.D.W. testified that throughout the conversation, Midell made sexual remarks and advances towards her, but she either ignored Midell or told him she was not interested in him. At one point, S.D.W. testified, Midell asked if he could cuddle with her or lie by her.
[¶4] S.D.W. testified Twedt fell asleep on the floor of the living room near the sectional couch. Because S.D.W. had to work the following morning, she took some cold medicine and lay down on one end of the sectional couch to fall asleep. Midell was on the other end of the sectional couch. S.D.W. testified Midell began to rub her leg, ...