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State v. Rai

Supreme Court of North Dakota

March 13, 2019

State of North Dakota, Plaintiff and Appellee
v.
Bhim Kumar Rai, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

          Reid A. Brady, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

          Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

          OPINION

          VANDEWALLE, CHIEF JUSTICE

         [¶1] 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 judgment.

         I

         [¶2] 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 phone.

         [¶3] 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.

         [¶4] 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.

         II

         [¶5] "[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.

         [¶6] 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.

         [¶7] 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 ...


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