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State v. Rivera

Supreme Court of North Dakota

January 22, 2018

State of North Dakota, Plaintiff and Appellee
v.
Michael David Rivera, Defendant and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

          Julie A. Lawyer, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

          Lloyd C. Suhr, Bismarck, N.D., for defendant and appellant.

          OPINION

          Tufte, Justice.

         [¶ 1] Michael Rivera appeals from criminal judgments entered after a jury found him guilty of two counts of creating or possessing sexually expressive images, two counts of attempting to create or possess sexually expressive images, and six counts of surreptitious intrusion. We affirm, concluding the district court did not err by sentencing Rivera to consecutive sentences.

         I

         [¶ 2] Rivera was charged with twenty-one offenses, twenty on one criminal complaint and one additional offense on a second criminal complaint. These two cases were joined, and all charges were tried together. A jury found Rivera guilty of ten class A misdemeanors: two counts of creating or possessing sexually expressive images, two counts of attempting to create or possess sexually expressive images, and six counts of surreptitious intrusion. One felony was dismissed before trial, and the jury acquitted Rivera of ten felony charges.

         [¶ 3] The district court sentenced Rivera to one year of imprisonment for each of the ten misdemeanor convictions. The court imposed consecutive sentences for three of the convictions, with the rest to run concurrently with the sentences for the first three convictions. The three consecutively-sentenced offenses, as shown on the amended judgment, included Count 2 (creating or possessing sexually expressive images on July 8, 2015), Count 3 (surreptitious intrusion on July 22, 2015), and Count 5 (attempting to create or possess sexually expressive images on August 28, 2015).

         II

         [¶ 4] Rivera argues that the district court erred by sentencing him to consecutive sentences. He contends that N.D.C.C. § 12.1-32-11(3), does not permit consecutive sentences for these class A misdemeanor convictions. Section 12.1-32-11(3) states:

When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, except that a defendant being sentenced for two or more class A misdemeanors may be subject to an aggregate maximum not exceeding that authorized by section 12.1-32-01 for a class C felony if each class A misdemeanor was committed as part of a different course of conduct or each involved a substantially different criminal objective.

N.D.C.C. § 12.1-32-11(3). A class C felony has a maximum penalty of imprisonment of five years. N.D.C.C. § 12.1-32-01(4). Because Rivera was sentenced only for multiple class A misdemeanors, he can be consecutively sentenced only if "each class A misdemeanor was committed as part of a different course of conduct or each involved a substantially different criminal objective." See N.D.C.C. § 12.1-32-11(3) (emphasis added). The parties disagree on the meaning and application of the two exceptions to the general rule of no consecutive sentencing.

Construction of a criminal statute is a question of law, fully reviewable by this Court. Our primary goal in interpreting statutes is to ascertain the Legislature's intentions. In ascertaining legislative intent, we first look to the statutory language and give the language its plain, ordinary and commonly understood meaning. We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage. When a statute's language is ambiguous because it is susceptible to differing but rational meanings, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain the ...

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