Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.
Mark J. McCarthy, Assistant State's Attorney, Grand Forks, N.D., for plaintiff and appellee.
Jay D. Knudson, Grand Forks, N.D., for defendant and appellant.
Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice.
[¶1] Justin Yarbro appeals from a criminal judgment entered after a jury found him guilty of continuous sexual abuse of a child and from an order denying his motion for a new trial. We conclude that Yarbro's failure to object to the admission of DNA evidence during trial and in his motion for a new trial precludes him from raising arguments on appeal about the admission of that evidence and that the district court did not abuse its discretion in denying his motion for a new trial on the ground of juror misconduct. We affirm.
[¶2] In February 2012, the State charged Yarbro with continuous sexual abuse of a child, alleging that between April 2010 and October 2011, he willfully engaged in three or more sexual acts or sexual contact with a child under the age of fifteen years. Law enforcement officers obtained one pair of underwear from the complainant during an interview with her at a hospital in October 2011, and the
complainant's mother collected four pair of the complainant's underwear from a residence shared with Yarbro. The state crime lab tested the underwear and reported no semen was detected on any of the underwear, but Yarbro could not be excluded as a source of DNA found on two pair of the underwear.
[¶3] Yarbro moved to suppress the complainant's underwear and the results of the DNA tests on the underwear. He argued the evidence was not relevant because the complainant's mother collected the underwear from his residence and there was no way to ensure the DNA evidence on the underwear was not tainted by an inadvertent secondary transfer of his DNA. After an evidentiary hearing, the district court denied Yarbro's motion to suppress:
The issues that are brought up in this motion to suppress really have to do with the DNA, and that's a question of fact for the jury. The issue of transferability of DNA will most likely depend on the testimony of an expert witness. The absence of semen, the absence of sperm, and the transferability are all questions of fact. The weight of the evidence is a question of fact for the jury to find in this case, since they are the fact finders. Also, considering all of the evidence in this case, the DNA does have some probative value. It's relevant, and there's no evidence here that it's outweighed by the prejudicial nature.
I think the question--the issue can probably be renewed at trial if there isn't enough testimony or if an expert says the expert from the State says this is certainly transferable, but I think we have all kinds of issues for experts to testify on in this case; so I'm going to deny the motion.
[¶4] At trial, during the direct examination of Amy Gebhardt from the state crime lab, the State introduced into evidence a lab report with the findings and analysis of Gebhardt, who testified that Yarbro could not be excluded as a source of DNA evidence found in two pair of underwear. The record does not reflect Yarbro objected to the admission of that evidence at trial. A jury thereafter found Yarbro guilty of continuous sexual abuse of a child.
[¶5] Yarbro moved for a new trial, alleging juror misconduct during jury selection and jury deliberations. He claimed one of the empaneled jurors, S.G., failed to inform the parties during jury selection about her prior education and professional licensure as a social worker. Yarbro submitted a juror affidavit stating that during deliberations S.G. said " that child victims of sexual abuse get frequent urinary tract infections and constipation" and " that she has a degree in social work and that is what she knows." Yarbro claimed S.G.'s statements provided the jury with impermissible extraneous evidence. After denying Yarbro's motion for a continuance of the hearing on his motion for a new trial, the district court denied Yarbro's motion for a new trial. The court determined Yarbro failed to establish S.G. failed to honestly answer questions during jury selection, the juror's affidavit was inadmissable under N.D.R.Ev. 606(b), and even if S.G.'s claimed statement was extraneous information, there was no reasonable possibility the statement could have affected the verdict because the same information was presented to the jury during the testimony of Dr. Arne Graff.
[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Yarbro's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction ...