Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Costa

Supreme Court of North Dakota

March 15, 2016

State of North Dakota, Plaintiff and Appellee
v.
Corey Michael Costa, Defendant and Appellant

          Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Gary H. Lee, Judge.

         Kelly A. Dillon, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee.

         Danny L. Herbel, Bismarck, N.D., for defendant and appellant.

         Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.

          OPINION

Page 47

          Lisa 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 judgment.

         I

          [¶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 examination.

          [¶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

Page 48

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, and explained:

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 approximately ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.