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State v. Powley

Supreme Court of North Dakota

February 21, 2019

State of North Dakota, Plaintiff and Appellant
Richard Powley, Defendant and Appellee

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

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

          Todd N. Ewell, Bismarck, ND, for defendant and appellee.


          McEvers, Justice.

         [¶1] The State appeals from an order limiting the admission of video evidence, and an order denying the State's motion to amend the criminal information. On appeal, the State argues the district court erred by sua sponte excluding portions of allegedly relevant video and that the court erred by denying the motion to amend the information because the proposed additional charge is not a different offense. The State alternatively requests this Court exercise our supervisory authority to review the district court rulings. We conclude the State has no statutory right to appeal these issues. We decline to exercise our supervisory authority and, therefore, we dismiss the appeal for lack of jurisdiction.


         [¶2] In February 2018, Richard Powley was charged with two counts of gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(a), both class AA felonies. The charges resulted from a series of videos seized from Powley's phone; at least one of the videos depicted sexual acts with the alleged victim. The videos were recorded between June 3, 2017 and June 5, 2017. Before trial, Powley made a motion under N.D.R.Ev. 412, seeking to admit five of the videos in order to demonstrate specific instances of the alleged victim's consensual sexual behavior with Powley.

         [¶3] At a hearing on Powley's Rule 412 motion, Powley argued the five videos he sought to admit into evidence showed earlier sexual encounters between the alleged victim and Powley which demonstrated their past encounters were aggressive and objectifying in nature. Powley emphasized it was significant all eight videos were recorded "within 44 hours of each other and they need to be viewed in that light." At the hearing the State agreed that Videos 1 through 5 "look[ed] consensual," and submitted Video 6, Video 7, and Video 8 to show the nonconsensual acts giving rise to the gross sexual imposition charges. The State argued those videos depicted the alleged victim unconscious and limp. The State argued Videos 6, 7, and 8 spoke for themselves and therefore there was no need to introduce Videos 1, 2, 3, 4, or 5.

         [¶4] Following the hearing on the motion and after watching all eight videos, the district court issued an order in limine, ruling on Powley's Rule 412 motion, excluding all of Videos 1 through 5, finding the videos would be far too embarrassing for the alleged victim, and the purpose of their entry could be accomplished alternatively by eliciting testimony concerning prior consensual sexual encounters. In addition, the court limited the admission of Video 6, allowing into evidence only the portion of the video at which point the alleged victim regained consciousness, and fully excluding Video 7 and Video 8. The court reasoned that since the State charged Powley under N.D.C.C. § 12.1-20-03(1)(a), which requires the State to prove the defendant "compelled" the victim to submit by "force," portions of the video showing the alleged victim to be asleep or unconscious would be unfairly prejudicial and misleading to the jury because, "[w]hen a victim pretends to be asleep or is actually asleep, the person is not being compelled by force to engage in a sexual act."

         [¶5] The district court issued its order on May 24, 2017. In May 2018, days before the scheduled trial, the State moved the court to reconsider its order in limine and also moved to amend the information to include another subsection of the gross sexual imposition statute. The original information charged Powley under N.D.C.C. § 12.1-20-03(1)(a), and the State sought to add subsection (1)(c) to the information. The State argued the court should not have excluded any part of Video 6 sua sponte, and explained why the evidence should be allowed at trial. The court denied the State's motion to reconsider because the court could not discern the legal basis for the State's requested relief. The court also denied the State's motion to amend the information, noting the two offenses "are two totally different elements and thus two different charges;" "[o]ne offense requires the Defendant to compel the victim to submit by force the other requires the victim to be unaware or unconscious."


         [¶6] Reviewing a district court's exclusion of evidence, this Court has held "the trial court has broad discretion in evidentiary matters, and we will not overturn a trial court's decision to admit or exclude evidence unless the court abused its discretion." State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586 (citation omitted).


         [¶7] As a threshold matter, we consider the appealability of the order in limine. The State argues the district court's order titled "Order Granting Defendant's Rule 412 Motion in Part and Order in Limine as to Testimony and the Playing of Video Evidence," amounts to an order suppressing evidence that is appealable. Powley argues because the video was not suppressed on grounds that it was illegally obtained and instead was limited based on the rules of evidence, the court's order did not amount ...

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