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State v. Lyons

Supreme Court of North Dakota

June 27, 2019

State of North Dakota, Plaintiff and Appellee
v.
George Robert Lyons, Defendant and Appellant

          Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable John A. Thelen, Judge.

          Britta K. Demello Rice (argued), Bismarck, ND, and Jeremy A. Ensrud (appeared), Minot, ND, for plaintiff and appellee.

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

          OPINION

          VandeWalle, Chief Justice.

         [¶1] George Lyons appealed from a judgment entered after a jury found him guilty of gross sexual imposition. Lyons argues there was insufficient evidence to support the conviction and the district court committed obvious error by not declaring a mistrial after the jury heard prohibited testimony. We affirm.

         I

         [¶2] Lyons and the complainant's mother began a dating relationship, and they lived together with the complainant and her brother in Arvilla in 2009 when the complainant was thirteen years old and in Grand Forks in 2010 when she was fourteen years old. According to the complainant, a pilot light in their Arvilla residence went out one night and Lyons carried her into a bedroom he shared with the complainant's mother. The complainant testified that she awoke in the morning in that bedroom after her mother had left for work and Lyons pulled her shirt up over her face, put a pillow over her head, and took pictures of her breasts. The complainant testified that when Lyons left, she went to a neighbor's house and told him about the incident and the neighbor informed the complainant's mother.

         [¶3] According to the complainant, when they lived in Grand Forks in 2010 Lyons used sleeping pills to sedate her in her bedroom while he cleaned wax buildup in her ears. The complainant testified that during that process, Lyons touched her vagina and breasts, inserted his fingers and penis in her vagina, and inserted his penis in her mouth. According to the complainant, Lyons also gave her sleeping pills at other times and thereafter sexually assaulted her. The complainant testified she told her mother about the assaults, but her mother did not think the assaults were possible. The complainant's mother testified that she did not want to believe the assaults were occurring and that Lyons told her the complainant was dreaming.

         [¶4] In 2009 and early 2010, social services investigated a report of Lyons' conduct involving the complainant. During the investigation, the complainant stated she believed there had been sexual contact but was not certain. Lyons denied any inappropriate touching or sexual contact with the complainant, and the investigation did not result in criminal charges at that time. Lyons subsequently ended his relationship with the complainant's mother.

         [¶5] In 2016, the investigation against Lyons was reopened after other similar claims of inappropriate touching were made against him by a complainant in Minnesota. After further investigation, the State charged Lyons with four counts of gross sexual imposition. Count I alleged Lyons engaged in a sexual act with the complainant in Arvilla in March 2009 by touching her intimate parts with his hands. Counts II through IV alleged Lyons engaged in sexual acts with the complainant in Grand Forks in January 2010. Count II alleged the sexual act consisted of contact between Lyons' fingers and the complainant's vulva, count III alleged the sexual act consisted of contact between Lyons' penis and the complainant's vulva, and count IV alleged the sexual act consisted of contact between Lyons' penis and the complainant's mouth.

         [¶6] The district court denied the State's motion under N.D.R.Ev. 404(b) to allow the jury to hear testimony from the complainant in the Minnesota case to the effect that Lyons had sexually abused her using sleeping pills in a manner similar to the alleged acts in this case. Before trial, the State dismissed count I involving the allegation that Lyons engaged in a sexual act with the complainant in Arvilla in March 2009. A jury found Lyons guilty of count II for a sexual act with the complainant in Grand Forks in January 2010 involving the allegation of sexual contact between Lyons' fingers and the complainant's vulva and found him not guilty on the two other counts.

         II

         [¶7] Lyons argues the district court erred in denying his motion for judgment of acquittal. He claims there was insufficient evidence to support his conviction for gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(d).

         [¶8] Section 12.1-20-03(1)(d), N.D.C.C., provides that a person who engages in a sexual act with another is guilty of an offense if the victim is less than fifteen years old. A "sexual act" is defined in N.D.C.C. § 12.1-20-02(4) as:

"Sexual act" means sexual contact between human beings consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any other portion of the human body and the penis, anus, or vulva; or the use of an object which comes in contact with the victim's anus, vulva, or penis. For the purposes of this subsection, sexual contact between the penis and the vulva, the penis and the anus, any other portion of the human body and the anus or vulva, or an object and the anus, vulva, or penis of the victim, occurs upon penetration, however slight. Emission is not required.

         [¶9] In State v. Igou, 2005 ND 16, ¶ 5, 691 N.W.2d 213 (citations omitted), we described our standard of review of a defendant's claim that there was insufficient evidence to support a conviction:

A defendant bears the burden of showing the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. On appeal, this Court merely reviews the record to determine if there is competent evidence that allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.

         We have also recognized that the uncorroborated testimony of a sexual assault victim is sufficient to support a conviction. State v. Schill, 406 N.W.2d 660, 662 (N.D. 1987).

         [¶10] The complainant's testimony provides competent evidence to support a finding that Lyons engaged in a sexual act with her in Grand Forks in 2010 when she was less than fifteen years old. There was some corroborating evidence that Lyons was responsible for cleaning the complainant's ears and used sleep medication to assist with the cleanings. A school friend of the complainant's in Grand Forks also testified that the complainant told her Lyons had been giving the complainant pills at night and he thereafter "inserted his hands or penis inside her vagina, touched her boobs, and stuck his penis inside of her mouth." The complainant's friend testified the complainant was "[v]ery distraught" and was "confused" because her mother did not believe her. We conclude there was evidence, ...


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