from the District Court of Burleigh County, South Central
Judicial District, the Honorable John W. Grinsteiner,
Spahr, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
Michael R. Hoffman, Bismarck, ND, for defendant and
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.
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
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.
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