Appeal fro the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.Dawn M. Deitz, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee; submitted on brief.
Michael R. Hoffman, Bismarck, ND, for defendant and appellant.
VANDE WALLE, Chief Justice.
[¶ 1] Christopher Vandermeer appealed from a criminal judgment entered after a jury found him guilty of gross sexual imposition with a person less than fifteen years old. We affirm, concluding the district court did not abuse its discretion in permitting the victim to testify concerning her age and date of birth over Vandermeer's foundation and hearsay objections. We also conclude the district court properly excluded Vandermeer's mistake of age defense and properly applied N.D.C.C. § 12.1-20-01(1).
[¶ 2] Vandermeer was charged with gross sexual imposition with a person less than fifteen years old. Before trial, Vandermeer submitted a request for jury instructions requiring the State to prove he acted intentionally, knowingly or recklessly as to the age of the victim. Vandermeer also requested an affirmative defense of acting mistakenly or unwittingly in regard to the fact the victim was less than fifteen years of age. The court denied the requests. The State filed a motion in limine seeking to exclude testimony that Vandermeer did not know the age of the victim and testimony that the victim represented to Vandermeer she was seventeen years old. On the morning of the trial, the State and Vandermeer met in chambers to discuss the motion. Vandermeer argued that the culpable mental state of willful should apply to the age component of the offense. The court granted the State's motion in limine.
[¶ 3] At trial, Sergeant Canright of the Bismarck Police Department testified he was called to an apartment building. Sergeant Canright testified he observed a younger male and female. The male and female appeared startled by his presence and the female appeared not to be clothed. The officer testified he believed the younger male and female had just finished having sexual intercourse.
[¶ 4] The State also called J.S., the victim. J.S. testified she was fourteen years old and gave her date of birth. Vandermeer
objected to J.S. testifying to her age and date of birth based on hearsay and lack of foundation grounds. The court overruled the objections. J.S. testified she knew Vandermeer on Facebook, but had never met him before the night of the crime. J.S. testified, on the night in question, she sneaked out of her house and met Vandermeer at a gas station. J.S. testified she and Vandermeer walked to a park and talked. She testified it was cold, so they went to an apartment building. J.S. testified they went up a flight of stairs and then sat down. J.S. testified she and Vandermeer started kissing, and had sexual intercourse on two occasions. J.S. testified she and Vandermeer were interrupted by a police officer during the second incident.
[¶ 5] Detective Gaddis also testified. Detective Gaddis testified he investigated the incident and spoke with J.S. and Vandermeer the morning of the incident. Detective Gaddis testified that Vandermeer admitted having sex with J.S. At the close of the State's case, Vandermeer made a motion for acquittal. The motion was denied. The jury returned a verdict of guilty.
[¶ 6] " A district court has broad discretion in evidentiary matters, and we will not overturn a district court's decision to admit or exclude evidence unless the court abused its discretion. The abuse of discretion standard therefore applies when reviewing a district court's evidentiary rulings under the hearsay rule." State v. Jaster, 2004 ND 223, ¶ 12, 690 N.W.2d 213 (citation omitted).
[¶ 7] On appeal, Vandermeer argues the court erred in overruling his foundation and hearsay objections to J.S.'s testimony concerning her age and date of birth. Vandermeer contends a person's knowledge of his or her date of birth comes from documents that require a foundation. Vandermeer argues the State failed to lay an adequate foundation before J.S. testified about her age and date of birth. Vandermeer also argues the court erred in denying his hearsay objection because the complaining witness's age and date of birth comes from statements made by others.
[¶ 8] Under the North Dakota Rules of Evidence, " A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony." N.D.R.Ev. 602. " The rule states that a witness may testify ‘ if evidence is introduced sufficient to support a finding’ that the witness has personal knowledge." N.D.R.Ev. 602, explanatory note. " This gives the trial judge the power to reject testimony if the judge ...