from the District Court of Cass County, East Central Judicial
District, the Honorable Wade L. Webb, Judge.
J. Younggren, Assistant State's Attorney, for plaintiff
and appellee; submitted on brief.
Russell J. Myhre, for defendant and appellant; submitted on
1] J. Erin Rourke appeals a district court's judgment
after a jury convicted him of gross sexual imposition.
Because Rourke failed to preserve his argument on sufficiency
of the evidence for appeal by failing to move for a judgment
of acquittal at trial under N.D.R.Crim.P. 29, we affirm.
2] On September 22, 2015, the State charged Rourke with gross
sexual imposition and corruption of a minor. The victim,
A.K.B., alleged Rourke engaged in sexual contact with her
before she was fifteen-years-old. A.K.B. also alleged Rourke
engaged in a sexual act with her when she was
fifteen-years-old and Rourke was more than
twenty-two-years-old. A.K.B. testified she and her mother
lived next door to Rourke. Rourke helped A.K.B.'s mother
care for A.K.B. for several years before A.K.B. made these
allegations. Rourke would watch A.K.B., he bought her clothes
and gifts, and he kept a room for her to stay in his home.
Eventually, Rourke and A.K.B. signed a "contract"
stating A.K.B. had to sleep at Rourke's house three
nights per week.
3] At trial, A.K.B. testified Rourke started touching her
vagina underneath her underwear in her sleep. A.K.B.
testified she would wake up scared. When she would turn on
her side and face the wall, Rourke would stop. A.K.B.
testified this conduct eventually led to an incident where
Rourke licked her vagina. A.K.B. told some friends about
these incidents and one of their mothers. A.K.B. eventually
told her mother, and reported it to her school counselor,
Laurie Schlenker. Schlenker testified A.K.B. told her Rourke
had been molesting her.
4] At trial, Rourke testified on his own behalf. Rourke
admitted he had a room for A.K.B. to stay at his home, and he
acknowledged the existence of a contract establishing the
nights A.K.B. was required to stay with him. However, Rourke
testified he never touched A.K.B.'s vagina. The jury
found Rourke guilty of gross sexual imposition and not guilty
of corruption of a minor. Rourke appeals.
5] Rourke argues there is insufficient evidence to sustain
the jury's verdict against him. Rourke argues the jury
convicted him based entirely on circumstantial evidence, and
it is impossible to determine when the sexual contact may
have occurred because A.K.B.'s timeline was
6] The standard of review is well established when a
defendant challenges the sufficiency of the evidence to
support a jury verdict:
In reviewing the sufficiency of the evidence to convict, we
look only to the evidence most favorable to the verdict and
the reasonable inferences therefrom to see if there is
substantial evidence to warrant a conviction. A conviction
rests upon insufficient evidence only when no rational fact
finder could have found the defendant guilty beyond a
reasonable doubt after viewing the evidence in a light most
favorable to the prosecution and giving the prosecution the
benefit of all inferences reasonably to be drawn in its
State v. Knowels, 2003 ND 180, ¶ 6, 671 N.W.2d
816 (quotation marks omitted) (citations omitted). "A
conviction may be justified on circumstantial evidence alone
if the circumstantial evidence has such probative force as to
enable the trier of fact to find the defendant guilty beyond
a reasonable doubt." State v. Noorlun, 2005 ND
189, ¶ 20, 705 N.W.2d 819 (citing State v.
Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d 193).
"A verdict based on circumstantial evidence carries the
same presumption of correctness as other verdicts."
Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819
(citing Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d
193). "[A] jury may find a defendant guilty even though
evidence exists ...