from the District Court of Ward County, North Central
Judicial District, the Honorable Gary H. Lee, Judge.
A. Dillon, Assistant State's Attorney, Minot, N.D., for
plaintiff and appellee.
L. Herbel, Bismarck, N.D., for defendant and appellant.
Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol
Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the
Court by McEvers, Justice.
Fair McEvers, Justice.
[¶1] Corey Costa appeals from a judgment
entered after a jury found him guilty of gross sexual
imposition. Costa argues the prosecutor's closing
argument misstated the evidence and improperly vouched for
evidence. We reject Costa's arguments and affirm the
[¶2] The State charged Costa with gross
sexual imposition, alleging he was at least 22 years old and
willfully engaged in a sexual act with a person less than 15
years old on December 11, 2012. According to the complainant,
she met Costa through Facebook, they initially met in person
on the night of December 11, 2012, when he asked her to
" hang out" with him, he picked her up at her
residence, they went to a welding shop next to an apartment
building where he lived, they stayed at the welding shop for
about an hour while she had a glass of wine, they then went
to Costa's apartment where he " crushed" and
" smoked [a] pill" and " inhaled it . . . and
blew it down [her] throat," and he thereafter engaged in
vaginal intercourse with her. The complainant testified she
did not tell her mother about the incident until December 13,
2012, and she was then taken to a hospital for an
[¶3] Costa denied having intercourse with
the complainant. According to Costa, he knew the complainant
for about six months through Facebook, he texted her at about
6 p.m. on December 11, 2012, to " hang out," he
picked her up at her place and they went to his welding shop
for about ten minutes while he welded a trailer, she asked to
use a bathroom, he gave her the access code to get into his
apartment building to use his bathroom, she went into his
apartment by herself, and she returned to the welding shop
and shortly thereafter left the premises.
[¶4] During the medical examination on
December 13, 2012, a sexual assault kit was collected from
the complainant and was taken to the State Crime Lab on June
5, 2013. At trial, Alexandria Gibbs, a forensic scientist
from the State Crime Lab, testified about screenings she
performed on items included in the sexual assault kit. Gibbs
testified about a test for prostate specific antigen (PSA), a
protein with high concentrations in semen. She testified oral
and vaginal swabs from the complainant were both negative for
PSA, and she viewed the swabs under a microscope and saw no
spermatozoa on the swabs. Gibbs
testified she also viewed clothing from the sexual assault
kit under a microscope and did not visually observe
spermatozoa on the clothing. She testified if spermatozoa had
been observed, the test result would have been denoted "
semen detected." She testified a PSA test of cuttings
from two pair of the complainant's underwear were
positive for proteins found in semen and were labeled "
presumptively positive for semen." Gibbs testified she
was unable to microscopically see spermatozoa on the
underwear, but she did not rule out the presence of semen on
the underwear. A report prepared by Gibbs and admitted into
evidence at trial listed items in the sexual assault kit and
said results on the two pair of the complainant's
underwear were " presumptively positive for semen."
The report on those two items included a note that "
[t]he presence of semen could not be confirmed by microscopic
techniques" and " [a] positive p30[, PSA,] result
could be attributed to vasocetomized, azoospermic or
pre-pubescent males; breast milk, urine, vaginal fluid,
cancer, or postmortem samples."
[¶5] Jennifer Penner, a DNA analyst from the
State Crime Lab, tested the cuttings from the two pair of the
complainant's underwear and testified she was unable to
make a comparison on a minor contributor of DNA on the
underwear using standard DNA testing. Penner testified she
developed a Y-chromosomal partial profile from one pair of
the underwear containing a mixture of at least two people,
with the predominant Y-chromosomal profile matching a known
sample from Costa. Penner testified that profile came from
item 2A-F, the cutting that was labeled as from the
complainant's " underwear worn immediately after
incident." Penner testified Y-chromosomal testing
specifically targets the Ychromosome, which only males have,
The predominant Y-chromosome profile from item 2A-F[.] I was
able to calculate frequencies of occurrence in four different
population groups. In the first one which was the African
American population group, the frequency of occurrence is
approximately 1 in 645. In the Caucasian population the
frequency of occurrence is approximately 1 in 1,374. In the
Hispanic population, the frequency of occurrence is