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State v. Kovalevich

Supreme Court of North Dakota

January 15, 2015

State of North Dakota, Plaintiff and Appellee
Sean Michael Kovalevich, Defendant and Appellant

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Sonja Clapp, Judge.

Mark J. McCarthy, Assistant State's Attorney, Grand Forks, N.D., for plaintiff and appellee.

Clint D. Morgenstern, 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.


Page 626

Sandstrom, Justice.

[¶1] Sean Kovalevich appeals from a criminal judgment entered after a jury found he was guilty of gross sexual imposition and corruption of a minor. Kovalevich argues the district court erred in denying his motion for a new trial and his motion to dismiss under N.D.R.Crim.P. 16. We affirm.

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[¶2] Kovalevich was charged with two counts of gross sexual imposition and one count of corruption of a minor. The State alleged Kovalevich engaged in a sexual act with a minor female at Canad Inns, a hotel in Grand Forks.

[¶3] At the October 2013, jury trial a Canad Inns employee testified about the hotel's reservation system and the hotel's records for Kovalevich's reservation at the hotel, including confirmation of reservations to stay at the hotel February 3-6, 2012, and August 13-15, 2012. The documents confirming the reservations were admitted into evidence. The employee also testified a registration document is generated and signed by the guest when the guest checks in at the hotel. The employee began testifying about the registration document for one of Kovalevich's confirmed reservations, but his lawyer objected and argued the registration documents had not been disclosed during discovery. The court limited the witness's testimony, and the registration documents were not introduced into evidence.

[¶4] During the trial, the State gave Kovalevich's lawyer copies of receipts for a hotel in Fargo, the Ramada Plaza and Suites. The receipts showed payment for a room reservation in Kovalevich's name for February 6-7, 2012, and August 15-16, 2012. The receipts were not introduced as evidence during the trial, and Kovalevich did not request a continuance to allow him to review the documents. Kovalevich was found guilty of all three counts.

[¶5] After the court polled the jurors and each juror stated the verdict was his or her true verdict, Kovalevich requested the court allow him to question the jurors about whether they considered the testimony about the Canad Inns registration documents in reaching a verdict. The court denied his request to question jurors at that time.

[¶6] On November 14, 2013, Kovalevich moved for a new trial under N.D.R.Crim.P. 33. He argued evidence was improperly admitted and he was denied the opportunity to question jurors and discover whether juror misconduct occurred. The district court denied his motion, ruling the issues were not adequately raised, the evidence was properly admitted, and Kovalevich was not precluded from inquiring into the validity of the verdict.

[¶7] In a January 6, 2014, letter, the State provided further discovery material to Kovalevich. Copies of the Ramada Plaza receipts, which were previously provided to Kovalevich during the trial, and an investigation report about the receipts were attached to the State's letter. The investigation report, prepared by the Bureau of Criminal Investigation, had not been transcribed at the time of the trial.

[¶8] On January 29, 2014, Kovalevich moved to dismiss under N.D.R.Crim.P. 16, arguing the State failed to disclose exculpatory evidence. He claimed the evidence disclosed on January 6, 2014, was important because it showed he was not in Grand Forks County on the date one of the alleged crimes occurred. After a hearing, the district court denied the motion, ruling it was denying the motion on procedural grounds because it was unable to grant any post-trial relief under N.D.R.Crim.P. 16. The court also said it would address the issues raised in the motion if Kovalevich properly raised the issues in accordance with the Criminal Rules of Procedure. A criminal judgment was subsequently entered.

[¶9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Kovalevich's appeal is timely under N.D.R.App.P. 4(b). This

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Court has jurisdiction under N.D. Const. art. VI, § § 2 and 6, and ...

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