Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.
Frederick R. Fremgen, State's Attorney, Jamestown, ND, for plaintiff and appellee.
Lee M. Grossman, Valley City, ND, for defendant and appellant.
Lisa Fair McEvers,
Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W.
Lisa Fair McEvers,
[¶1] Matthew Alan Jasmann appeals from a judgment entered on a jury's verdict finding him guilty of gross sexual imposition. We affirm the judgment concluding the State did not commit prosecutorial misconduct, the failure of the district court to give a cautionary instruction did not amount to obvious error, and sufficient evidence supports the jury's verdict.
[¶2] According to trial testimony, Jasmann met his family members and friends at a local bar. While at the bar, Jasmann met A.W. who was with one of Jasmann's relatives. When the bar was about to close, some of the individuals, including Jasmann and A.W., went to the apartment where Jasmann was spending the night, to have a party. After a few hours, everyone had left the apartment, except for Jasmann, A.W., and two other individuals. The two other individuals slept in a bedroom of the apartment. Jasmann and A.W. slept in the living room. A.W. testified
she fell asleep and awoke to Jasmann having sexual intercourse with her. The next day, A.W. reported to police that she had been sexually assaulted. A.W. made a phone call to Jasmann, which was recorded by law enforcement, to discuss the incident with him. The next day Jamestown Police Department Officer John Gletne interviewed Jasmann about the incident. According to the transcript of this interview that was read into evidence at trial, Jasmann claims A.W. was awake and initiated the sexual contact, however, Jasmann denied sexual intercourse occurred. Jasmann was charged with gross sexual imposition.
[¶3] Before trial, Jasmann's attorney requested the transcript of the interview between Jasmann and Officer Gletne be redacted to omit Jasmann's statements about a previous conviction on a particular page of the transcript, if the State offered the transcript in evidence. The State redacted the requested portion of the transcript and another portion it found on its own volition. During trial, the State read the entire interview transcript into evidence, as redacted, including a statement Jasmann made: " I don't do criminal stuff like I used to." Jasmann's attorney did not object at the time the statement was read, but did discuss it with the court during an in chambers hearing held afterward. Jasmann's attorney claimed he did not object to avoid calling the jury's attention to the statement. After discussing the matter with the State and Jasmann's attorney, the district court decided to strike the statement from the transcript, before the jury received it as an exhibit. At the conclusion of the trial, the jury found Jasmann guilty of gross sexual imposition. Jasmann appealed. On appeal, Jasmann argues that the State committed prosecutorial misconduct by improperly introducing at trial a statement where he admitted he had engaged in criminal behavior in the past. Jasman also argues there was insufficient evidence to sustain the jury's verdict.
[¶4] Jasmann argues that the State committed prosecutorial misconduct when it read the interview transcript into evidence, without redacting Jasmann's statement.
[¶5] " In reviewing a claim of prosecutorial misconduct, this Court must first determine whether the prosecutor's actions were misconduct and, if they were, then . . . examine whether the misconduct had prejudicial effect." State v. Evans, 2013 ND 195, ¶ 26, 838 N.W.2d 605 (quotation marks omitted). " [P]rosecutorial misconduct may so infect the trial with unfairness as to make the resulting conviction a denial of due process." State v. Kruckenberg, 2008 ND 212, ¶ 20, 758 N.W.2d 427 (quotation marks omitted). This Court applies a de novo standard of review when determining " whether facts rise to the level of a constitutional violation, including a claim that prosecutorial misconduct denied a defendant's due process right to a fair trial." State v. Pena Garcia, 2012 ND 11, ¶ 6, 812 N.W.2d 328.
[¶6] Here, at the pretrial conference, the State indicated it would introduce a recording and transcript of Jasmann's interview with Officer Gletne. Jasmann did not object to the introduction of the interview, but requested a certain portion of the interview be redacted. At this time, Jasmann moved the district court to order the State to omit any references from the interview in which Jasmann " refers to a past sexual offense to Detective John Gletne; this specifically appears on the Transcript at Page ...