As Corrected July 6 2015.
Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.
Barbara L. Whelan, State's Attorney, Grafton, N.D., for plaintiff and appellee.
Clint D. Morgenstern, Grand Forks, N.D., for defendant and appellant.
Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Crothers, Justice. McEvers, Justice, concurring in the result.
[¶1] Jose Martinez appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition. We conclude the district court's failure to include information in the jury instructions identifying the underlying act for each count of gross sexual imposition or to instruct the jury that it had to unanimously agree on the underlying act for each count was obvious error. We reverse the judgment and remand for a new trial.
[¶2] In April 2013, Martinez was charged with three counts of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(1)(d). All three counts involved the same victim, C.C., who was approximately eight years old when the offenses were allegedly committed. The State alleged similar sexual acts occurred for each of the three counts, but alleged count one occurred on a sofa or futon in Martinez's living room, count two occurred on a bunk bed in a bedroom at Martinez's residence, and count three occurred in Martinez's bedroom.
[¶3] Martinez moved for a bill of particulars, arguing he was unable to adequately prepare for trial. He claimed the complaint only states C.C. was eight years old at the time the offenses were allegedly committed and the State needed to advise him of the specific time and date so he could prepare a defense. The district court denied Martinez's motion. The court ruled that time is not a element of the offense and that an alibi defense likely is not viable when the defendant has continuous access to the child.
[¶4] Martinez requested interpretive services, claiming he might not understand some of the language used during the court proceedings. The court denied his request. The court noted Martinez's attorney said he was able to effectively communicate with Martinez and Martinez indicated he understood matters explained to
him in prior proceedings. The court advised Martinez to inform his attorney and the court if he had difficulty comprehending the proceedings, and the court stated the issue could be revisited upon additional evidence supporting the request.
[¶5] A jury trial was held. C.C. testified Martinez's wife often babysat her at the Martinez residence when she was eight or nine years old, and she occasionally was left alone with Martinez. She testified Martinez touched her on her breasts and vaginal area over and under her clothing, he penetrated her mouth and vagina with his penis on the futon in the living room, he penetrated her vagina with his penis on bunk beds in a bedroom and he penetrated her mouth and vagina with his penis in his bedroom. She testified she did not want to go to Martinez's house after the last incident, she would cry and her parents allowed her to stay home with an older sibling. Martinez testified and denied C.C.'s allegations.
[¶6] At the close of the State's case, Martinez moved for judgment of acquittal arguing evidence was insufficient to convict him. The court denied his motion. Before the case went to the jury, the court and the parties discussed the jury instructions. Martinez requested the complaint be attached to the jury instructions or the information from the complaint be used in the instructions on the essential elements of the offense to distinguish between the three counts and identify which incident corresponded to each count. The court denied his request. The jury found Martinez was guilty of one count of gross sexual imposition, but was unable to reach a verdict on the two remaining counts.
[¶7] Martinez argues the district court did not properly instruct the jury and violated his due process rights. He contends three separate and distinct offenses were alleged, but the jury instructions did not identify which incident corresponded to each count and only required the jury to decide whether he was guilty of each count separate and apart from the other two counts. He claims it is impossible to identify which of the three alleged offenses the jury found he was guilty of committing.
[¶8] " Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury." State v. Pavlicek, 2012 ND 154,
¶ 14, 819 N.W.2d 521 (quoting Rittenour v. Gibson, 2003 ND 14, ¶ 15, 656 N.W.2d 691). We view the instructions as a whole to determine if they correctly and adequately inform the jury.
Pavlicek, at ¶ 14. " A court errs if it refuses to instruct the jury on an issue that has been adequately raised, but the court may refuse to give an instruction that is irrelevant or inapplicable." Id. (quoting State v. Zottnick, 2011 ND 84,
¶ 6, 796 N.W.2d 666).
[¶9] The court is responsible for correctly instructing the jury on the law, but the prosecution and defense also have a responsibility to request and object to specific instructions. State v. Erickstad, 2000 ND 202,
¶ 17, 620 N.W.2d 136. A party's requested jury instructions must be submitted in writing. N.D.R.Crim.P. 30(a); see also State v. Miller, 466 N.W.2d 128, 133 (N.D. 1991) (the defendant must request a specific instruction in writing if he desires a more comprehensive instruction than what the court indicated it will give). Under N.D.R.Crim.P. 30(c), " a party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection." When a party fails to properly request a jury instruction in writing under N.D.R.Crim.P. 30(a), the issue is not adequately
preserved for review on appeal and our inquiry is limited under N.D.R.Crim.P. 52(b) to whether the jury instructions constitute plain or obvious error. N.D.R.Crim.P. 30(d);
Erickstad, at ¶ 18. An obvious error is an error or defect that is obvious and affects substantial rights. N.D.R.Crim.P. 52(b); State v. Mathre, 1999 ND 224,
¶ 5, 603 N.W.2d 173. " We exercise our power to notice obvious error cautiously and only in exceptional circumstances where the accused has suffered serious injustice."
Mathre, at ¶ 5 (quoting State v. Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658).
[¶10] At the February 18, 2014, pretrial hearing, the district court asked the parties for comments or concerns about distinguishing between the three alleged offenses in the jury instructions. Martinez stated that some distinguishing language should be added and that the language might only need to make clear that the jury would have to find separate and distinct instances. Martinez's attorney advised the court that he could draft some language to address the issue, but nothing was submitted.
[¶11] During the trial, the court gave the parties an opportunity to object to the court's proposed jury instructions and to propose additional instructions. Martinez requested that the court give the jury a copy of the complaint or that the language used in the complaint for each count be included in the essential element instructions. Martinez explained that he wanted to make sure the jury knew what was alleged for each count so no confusion would exist. The State objected to Martinez's request and the court ruled a pleading document would not be included with the jury instructions. The court explained that the specific location or the specific room where the acts allegedly occurred was not an essential element, the court was only required to instruct the jury on the essential elements, the jury must find that separate acts occurred and the pleading document would not be attached to the jury instructions. Martinez did not object to the verdict forms or request any language distinguishing between the three alleged incidents.
[¶12] Because Martinez did not submit a proposed instruction in writing, the issue was not adequately preserved for appeal and our review is limited to determining whether the jury instructions constitute obvious error.