Mark C. OSIER, Petitioner and Appellant
STATE of North Dakota, Respondent and Appellee.
Benjamin C. Pulkrabek, Mandan, N.D., for petitioner and appellant.
Reid A. Brady and Cherie L. Clark, Assistant State's Attorneys, Fargo, N.D., for respondent and appellee; submitted on brief.
VANDE WALLE, Chief Justice.
[¶ 1] Mark Osier appealed from a district court order denying his application for post-conviction relief. We affirm, concluding Osier failed to establish he was prejudiced by his trial counsel's alleged deficient performance.
[¶ 2] In 1994, Osier was charged with multiple counts of gross sexual imposition (" GSI" ) involving a minor under the age of 15 for alleged incidents involving his daughter, S.O.
[¶ 3] At Osier's first jury trial, S.O. testified that Osier had repeatedly engaged in sexual acts with her and that she began placing a " swirl" mark on her calendar to denote the dates when the sexual acts with her father occurred. A personnel manager from the employer of Osier and his wife corroborated that, on the marked dates, Osier did not work or only worked part of the day, and that Osier's wife usually worked on the marked dates. Dr. Miller, a pediatrician who had examined S.O., testified that S.O.'s hymen was worn away in a manner consistent with multiple acts of sexual intercourse or other repeated vaginal penetration.
[¶ 4] Osier's trial attorney had complied with the then-current rape shield statute, see N.D.C.C. § 12.1-20-15 (superseded in 1998 by N.D.R.Ev. 412), and elicited testimony from S.O., her boyfriend, and two investigators that S.O. and her boyfriend had engaged in sexual intercourse on one occasion. Because S.O. had originally denied having sexual contact with anyone other than her father, Osier's attorney used this evidence to impeach S.O.'s credibility as well as to attempt to show that someone other than Osier was responsible for S.O.'s physical condition. The jury in Osier's first trial deadlocked, and the court declared a mistrial.
[¶ 5] For his second jury trial Osier hired an out-of-state attorney, Marc Kurzman. Kurzman filed a pretrial motion in limine requesting he be allowed to offer evidence of S.O.'s sexual relations with her boyfriend and of her previous denials of sexual activity. The State again presented evidence from S.O. detailing Osier's sexual acts and the " swirl" marks in the calendar; testimony regarding Osier and his wife's work schedules; and Dr. Miller's testimony regarding S.O.'s physical condition and its likely cause. Kurzman presented evidence of S.O.'s act of sexual intercourse with her boyfriend and the fact she had previously repeatedly lied about it.
[¶ 6] The jury convicted Osier of six counts of GSI. This Court reversed Osier's conviction on appeal, holding that the district court had erroneously admitted testimony from Osier's niece that Osier had sexually molested her on several occasions when she was eight or nine years old. See State v. Osier, 1997 ND 170, 569 N.W.2d 441.
[¶ 7] Osier was subsequently tried a third time. Kurzman again represented Osier and again filed a pretrial motion to offer evidence of S.O.'s sexual relations with her boyfriend. Again, the State presented S.O.'s testimony, the corroborating testimony regarding Osier and his wife's
work schedules, and Dr. Miller's opinion. Kurzman was allowed to present evidence regarding S.O.'s one instance of sexual intercourse with her boyfriend through testimony of S.O., her boyfriend, and the two investigators. Kurzman also sought to introduce evidence of additional sexual conduct between S.O. and her boyfriend. In an offer of poof, Kurzman alleged that, in addition to the one act of sexual intercourse they admitted to, S.O. and her boyfriend had on one occasion engaged in fellatio and on another occasion the boyfriend had digitally penetrated S.O. The State objected, arguing Kurzman had not filed a pretrial affidavit complying with the rape shield statute. See N.D.C.C. § 12.1-20-15 (superseded). The court held Kurzman had not properly complied with the rape shield statute and refused to admit the testimony.
[¶ 8] The jury found Osier not guilty on one count of GSI but guilty on the remaining five counts. This Court affirmed the criminal judgment on appeal, concluding that the district court did not abuse its discretion in holding Kurzman had failed to comply with the rape shield statute; that the evidence of additional sexual conduct was not sufficient to explain S.O.'s physical condition; and that the impeachment value of the additional ...