Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Sonja Clapp, Judge.
The opinion of the court was delivered by: Crothers, Justice.
N.D. Supreme CourtState v. Vondal,
This opinion is subject to petition for rehearing. [Go to Documents]
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[¶1] Johnathan Vondal appeals from criminal judgments entered after a jury found him guilty of aggravated assault and continuous sexual abuse of a child. Vondal argues that it was obvious error to prosecute him as an adult for acts committed before he was fourteen years old, that his due process rights were violated by multiple instances of prosecutorial misconduct, that the district court abused its discretion and violated his confrontation rights by prohibiting testimony about the victim's state of mind and that the evidence is insufficient to support his convictions. We affirm.
[¶2] On December 22, 2009, police were called to a Grand Forks residence where Vondal and his sister, B.V., were engaged in a physical altercation. Vondal was arrested and charged with aggravated assault under N.D.C.C. § 12.1-17-02. During the investigation of the altercation, B.V. told police that Vondal had sexually abused her in the past and that the abuse had gone on for as long as she could remember until Vondal stopped in 2008. At the time of the investigation Vondal was twenty-one years old and B.V. was fourteen years old. In February 2010, Vondal was charged with continuous sexual abuse of a child under N.D.C.C. § 12.1-20-03.1. The State alleged Vondal willfully engaged in three or more sexual acts or contacts with B.V. between 2000 and 2009 while B.V. was less than fifteen years old.
[¶3] The district court granted the State's motion to join the prosecutions. In August 2010, the State filed a motion in limine, requesting the court enter a pre-trial order prohibiting Vondal from introducing evidence or arguing that he should not be held responsible for the continuous sexual abuse charge because he committed the crime while he was a minor. Vondal did not oppose the motion and instead said he would not argue his age at the time of the offense was a defense or that he was incorrectly charged. The court granted the State's motion. A jury trial was held. Vondal moved for a judgment of acquittal at the close of the State's case and renewed his motion after all of the evidence was presented. The court denied both motions. The jury found Vondal guilty of both charges, and criminal judgments were subsequently entered.
[¶4] Vondal argues the district court committed obvious error in allowing him to be prosecuted as an adult for continuous sexual abuse of a child for sexual acts or contacts committed when he was less than fourteen years old. He claims N.D.C.C. § 12.1-04-01 bars the State from prosecuting him as an adult for acts he allegedly committed before he turned fourteen years old. He contends evidence of the sexual acts or contacts he allegedly committed before he turned fourteen should not have been admitted at trial and without evidence of those acts, insufficient evidence exists to support the verdict for continuous sexual abuse of a child.
[¶5] Vondal did not raise this issue in the district court nor did he oppose the State's motion in limine to prohibit him from arguing he should not be held responsible for the continuous sexual abuse charge because he committed the offense when he was a minor. Vondal informed the court he did not intend to argue his age at the time of the offense was a defense or that he was incorrectly charged. This Court will not consider issues raised for the first time on appeal. State v. Keller, 550 N.W.2d 411, 412 (N.D. 1996). However, a narrow exception to this rule provides that "[a]n obvious error or defect that affects substantial rights may be considered even though it was not brought to the court's attention." N.D.R.Crim.P. 52(b). "'We exercise the power to notice obvious error cautiously and only in exceptional circumstances where the defendant has suffered serious injustice.'" Keller, at 412 (quoting State v. Woehlhoff, 540 N.W.2d 162, 164 (N.D. 1995)).
[¶6] Section 27-20-34(8), N.D.C.C., provides the procedure for transferring juvenile cases from juvenile court to ...