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State v. Vetter

Supreme Court of North Dakota

October 29, 2019

State of North Dakota, Plaintiff and Appellee
v.
Michelle Renee Vetter, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia M. Feland, Judge.

          Marina Spahr, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

          Irvin B. Nodland, Bismarck, N.D., for defendant and appellant.

          Paul R. Emerson, Assistant Attorney General, Bismarck, N.D., for amicus curiae State of North Dakota.

          OPINION

          Tufte, Justice.

         [¶1] Michelle Vetter appeals from an order deferring imposition of sentence entered after a jury convicted her of child abuse. On appeal, Vetter asks this Court to take judicial notice of filings from her divorce case against the complainant. She also argues the definition of "bodily injury" in N.D.C.C. § 12.1-01-04 is unconstitutionally vague. Finally, she argues the evidence at trial was insufficient to sustain a verdict of guilty. We affirm.

         I

         [¶2] On the evening of November 15, 2017, Vetter, her then-husband, and their eight-year-old daughter, B.V., were sitting on the couch in their home. While playing together, B.V. bumped Vetter in the nose. In response, Vetter hit B.V. in the side with a closed fist. Days later, Vetter's husband discovered bruising on B.V.'s side and reported the incident to law enforcement.

         [¶3] The State charged Vetter with child abuse. The complaint alleged Vetter, "who is the parent of B.V. . . ., struck B.V. causing pain and bruising." Vetter moved to dismiss, arguing the definition of "bodily injury" under N.D.C.C. § 12.1-01-04 is unconstitutional. The district court denied the motion.

         [¶4] The case proceeded to trial, which was held in August 2018. At trial, B.V. testified that her mother struck her with a closed fist, which caused stomach pain. Vetter's ex-husband testified that he observed the incident. The jury convicted Vetter of child abuse, and the district court deferred imposition of sentence. Vetter now appeals.

         II

         [¶5] Vetter asks us to take judicial notice of certain filings from her divorce case against the complainant in this case. Under N.D.R.Ev. 201(b)(2), a court may judicially notice an adjudicative fact "that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."

         [¶6] The jury found Vetter guilty in August 2018, and the order deferring imposition of sentence was entered January 2019. The filings Vetter asks us to judicially notice were entered April and June 2019. These are not facts that were available to the district court below, and they are the subject ...


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