from the District Court of Cass County, East Central Judicial
District, the Honorable Wade L. Webb, Judge.
A. Brady, Assistant State's Attorney, Fargo, ND, for
plaintiff and appellee.
C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
VANDEWALLE, CHIEF JUSTICE
Bhim Kumar Rai appealed from a criminal judgment entered on a
jury verdict finding him guilty of patronizing a minor for
commercial sexual activity in violation of N.D.C.C. §
12.1-41-06(1)(b), a class B felony. We affirm the criminal
In September 2017, Fargo police implemented an undercover
operation to apprehend individuals using the internet to
arrange sexual encounters with minors. The operation posted
an ad on the BackPage website describing an eighteen-year-old
woman. Sixty-two different phone numbers responded to the ad,
but after text conversations revealing the woman was
fourteen, only two individuals agreed to meet her at a hotel.
One of these individuals was Rai, a refugee from Nepal. Fargo
police officers arrested Rai when he arrived at the hotel
room. Rai was read his Miranda rights and
interrogated by two officers in the hotel room for
approximately forty minutes. Other operation members were
also in the room. Rai's phone was seized and placed in
"airplane mode." During the interrogation, the
officers read Rai messages from his conversation with the
undercover officer and asked Rai for the pass code to his
Rai later filed a motion to suppress evidence, arguing the
officers unlawfully searched his phone and he did not validly
waive his Miranda rights. The motion was denied. The
case was tried to a jury in May 2018. At trial, the State put
the text message conversation between Rai and the undercover
officer into evidence. At the end of the State's case,
Rai moved for a judgment of acquittal under N.D.R.Crim.P.
29(a). The district court denied the motion. After
deliberation, the jury rejected Rai's affirmative defense
of entrapment and entered a guilty verdict.
On appeal, Rai argues his Fourth Amendment right against
unlawful search and seizure was violated, his Fifth and Sixth
Amendment rights were violated when officers detained and
questioned him without an interpreter or counsel, the
evidence was insufficient to find him guilty of patronizing a
minor for commercial sexual activity, and a rational
fact-finder would have found he proved the affirmative
defense of entrapment by a preponderance of the evidence.
"[A] trial court's disposition of a motion to
suppress will not be reversed if, after conflicts in the
testimony are resolved in favor of affirmance, there is
sufficient competent evidence fairly capable of supporting
the trial court's findings, and the decision is not
contrary to the manifest weight of the evidence."
State v. Montgomery, 2018 ND 20, ¶ 4, 905
N.W.2d 754. This standard of review "recognizes the
importance of the trial court's opportunity to observe
the witnesses and assess their credibility, and we accord
great deference to its decision in suppression matters."
Id. We do not conduct a de novo review of the
findings of fact, but questions of law are fully reviewable.
Id. Whether findings of fact meet a legal standard
is a question of law. Id.
Rai argues the district court should have suppressed the
messages from his cell phone because the officer placed the
phone in "airplane mode." Based on the
officers' testimony, the court found Rai's phone was
not searched before the officers received a warrant.
Significantly, the court also found the messages read by the
officers during Rai's interrogation and entered into
evidence were from the undercover officer's cell phone.
We conclude the district court's denial of Rai's
motion to suppress was based on sufficient competent evidence
and was not contrary to the manifest weight of the evidence.
The text message conversation between Rai and the undercover
officer read during Rai's interrogation and submitted at
trial was lawfully discovered evidence. Rai voluntarily
texted the phone number provided in the sting operation's
advertisement and those messages were passed on from one
officer to another. The messages entered into evidence were
lawfully obtained from the undercover officer's, not
Rai's, cell phone, so there is no ...