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State v. Gunn

Supreme Court of North Dakota

April 10, 2018

State of North Dakota, Plaintiff and Appellee
v.
Amira Olivia Gunn, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge.AFFIRMED.

          Marina Spahr, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Michael R. Hoffman, Bismarck, ND, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Amira Gunn appeals from an order deferring imposition of sentence after a jury found her guilty of attempted gross sexual imposition, a class A felony. Gunn argues the evidence against her was insufficient, she was convicted of speech protected by the First Amendment, and the jury instructions were improper. We affirm.

         I

         [¶ 2] In November 2015, Gunn and Calvin Till communicated in private conversations on MeetMe.com, a social networking website. Gunn and Till exchanged more than 700 messages between November 11 and 13, 2015. In a portion of the conversations, Gunn gave explicit and lewd instructions to Till on how to groom and sexually assault his young daughter and how to abduct and sexually assault Till's two neighbor children.

         [¶ 3] On December 16, 2015, Bismarck Police Department Detective Brandon Rask and Homeland Security Special Agent Randy Helderop interviewed Gunn. During the interview, Gunn admitted to having the conversations with Till. Gunn acknowledged she knew of Till's sexual fetish for children including his own daughter. Gunn stated she believed Till's daughter was approximately six years old. Gunn characterized the conversations with Till as role-playing.

         [¶ 4] At trial, Detective Rask testified he believed the initial conversations between Gunn and Till involved role-playing. Rask testified he believed the role-playing eventually ceased and Gunn and Till reassumed their own identities. Rask testified that later in the conversations Till relayed to Gunn that he was sexually assaulting his daughter in real-time. The jury found Gunn guilty of attempted gross sexual imposition. The district court deferred imposition of sentence for a period of five years.

         II

         [¶ 5] Gunn argues there is no evidence of a victim in this case. Gunn also claims that since Till did not commit the crime of gross sexual imposition, there is no evidence that Gunn aided Till to commit the crime.

         [¶ 6] Gunn raised these arguments at trial through a motion for acquittal under N.D.R.Crim.P. 29, which the district court denied. Before granting a motion for acquittal, the court must find the evidence is insufficient to sustain a conviction. State v. Montplaisir, 2015 ND 237, ¶ 35, 869 N.W.2d 435. Our standard of review for claims of insufficient evidence is well established:

[W]e look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses.

Id. (quoting State v. O'Toole, 2009 ND 174, ¶ 8, 773 N.W.2d 201).

         [¶ 7] The State alleged in its sixth amended information that Gunn committed the crime of attempted gross sexual imposition, a class A felony. The State charged Gunn with criminal attempt under N.D.C.C. § 12.1-06-01(2):

A person who engages in conduct intending to aid another to commit a crime is guilty of criminal attempt if the conduct would establish his complicity under section 12.1-03-01 were the crime committed by the other person, even if the other is not guilty of committing or attempting the ...

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