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State of North Dakota v. Sarah Ann Pavlicek

July 26, 2012

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
SARAH ANN PAVLICEK,
DEFENDANT AND APPELLANT



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: Kapsner, Justice.

N.D. Supreme CourtState v. Pavlicek,

2012 ND 154

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

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AFFIRMED.

Opinion of the Court by Kapsner, Justice.

[¶1] Sarah Pavlicek appeals from a criminal judgment entered after a jury found her guilty of abuse or neglect of a child. We affirm.

I

[¶2] Pavlicek lived with her boyfriend, their son, Pavlicek's daughter from a previous relationship, and L.B., the boyfriend's daughter from a previous relationship. In October 2010, a teacher at L.B.'s school received a phone call from Pavlicek regarding a mark on L.B.'s face. When L.B. arrived at school, the teacher was suspicious of the mark on L.B.'s face and also found bruises on L.B.'s back. The teacher followed school reporting procedures, and Burleigh County Social Services became involved. The teacher testified that when Pavlicek arrived at the school to discuss L.B.'s injuries with the staff, Pavlicek did not seem concerned about L.B.

[¶3] The State charged Pavlicek with two counts of abuse or neglect of a child; one count related to L.B.'s facial injury, and the other count pertained to her back injury. A jury trial was held, at which the teacher testified. A co-worker of Pavlicek's testified about text messages she received from Pavlicek, in which Pavlicek expressed her negative feelings toward L.B. The co-worker also testified Pavlicek admitted "she had punched [L.B.] in the back." The co-worker stated Pavlicek told her of admitting the same to a police officer because "it was obvious . . . her fist was marked in [L.B.'s] back, bruised." A child protection worker with Burleigh County Social Services testified Pavlicek admitted to hitting L.B. in the back and face, a nurse who examined L.B. testified L.B.'s bruises were caused by "some sort of trauma or force[,]" and a detective with the Bismarck Police Department testified Pavlicek admitted to using a fist and hitting L.B. in the back.

[¶4] Before jury deliberations, Pavlicek argued that, under N.D.C.C. § 12.1-05-05(1), an individual cannot be convicted of child abuse or neglect unless the force used by the individual upon the child creates a substantial risk of death, serious bodily injury, disfigurement, or gross degradation; Pavlicek asked the court to so instruct the jury, but Pavlicek did not submit her proposed instructions in writing. The court denied Pavlicek's request, noting "the jury has to determine whether or not they feel under the circumstances the force used was reasonable." Following trial, the jury found Pavlicek not guilty of the count relating to L.B.'s facial injury but guilty of the count relating to L.B.'s back injury.

II

[ΒΆ5] On appeal, Pavlicek argues the guilty verdict was not supported by sufficient evidence and claims the jury rendered legally inconsistent verdicts. Pavlicek also contends the court erred by "refus[ing] to ...


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