State v. Sah , 2020 ND 38 ( 2020 )

Filed 2/12/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 38
State of North Dakota, Plaintiff and Appellee
v.
Lansana Solo Sah, Defendant and Appellant
No. 20190173
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John Charles Irby, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Renata J. Olafson Selzer, Assistant State’s Attorney and Emily J. Christensen
(on brief), under the Rule on Limited Practice of Law by Law Students, Fargo,
ND, for plaintiff and appellee; submitted on brief.
Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant; submitted
on brief.
State v. Sah
No. 20190173
McEvers, Justice.
[¶1] Lansana Sah appeals from a criminal judgment after a jury found him
guilty of gross sexual imposition and child abuse following denial of a motion
for new trial. Sah argues the district court abused its discretion by admitting
other prior bad acts of abuse as evidence. We affirm the criminal judgment.
I
[¶2] In December 2017, Officer Derek Johnson of the Fargo Police
Department responded to a middle school where G.U., an 11 year old student,
had disclosed to the counselor that she had been abused. G.U. reported to the
counselor and Officer Johnson that she and her siblings had been abused by
her mother and stepfather, Sah. G.U. reported she would commonly be hit
with belts, shoes, spoons, other items, or hit with an open hand. Officer
Johnson interviewed G.U.’s sibling, who corroborated the abuse and said she
also had been hit with items like shoes, belts, and spoons. After interviewing
G.U.’s younger sister, Johnson interviewed G.U. again with a social worker
and G.U. disclosed she had been sexually abused. G.U. disclosed there were
multiple times when Sah had crushed up a pepper and placed it in her vagina
as punishment. She also disclosed that he stuck his penis in her vagina and
claimed that it was punishment.
[¶3] In March 2018, Sah was charged with gross sexual imposition (count 1)
and child abuse (count 2), alleging offense dates on or about January 1, 2015
to December 5, 2017. Count 1 alleged Sah “had sexual contact with G.U. yob
2006” and Sah “was her step father over the age of 22, yob 1984.” Count 2
alleged Sah “[c]aused bodily injury and/or mental injury by ‘peppering’ G.U.
yob 2006 by placing crushed up peppers in her genitals as punishment.”
[¶4] A trial was held on February 26-28, 2019. At trial, Officer Johnson
testified he saw physical injuries on G.U.’s shoulder, which he photographed.
Sah objected twice, both on the grounds of relevance, which were overruled.
G.U. also testified when Sah first started to abuse her, he would hit her with
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belts, and on one occasion drove her to the woods and then punched her in the
face repeatedly after accusing her of stealing money. Sah again objected twice
as to relevance, which were again overruled. G.U. also testified about the
incidents where Sah placed peppers and his penis in her vagina.
[¶5] Sah was found guilty of GSI and child abuse. Sah moved for a new trial,
arguing his motion under N.D.R.Crim.P. 29 should have been granted because
the instances of abuse other than the “peppering” were inadmissible. The
motion was denied. Sah was sentenced and a criminal judgment was entered.
Sah appeals from the criminal judgment.
II
[¶6] Sah argues the district court abused its discretion by admitting the
evidence of abuse other than the peppering because these incidents were “prior
bad acts.” Specifically, Sah argues the court abused its discretion by not
analyzing N.D.R.Ev. 403 and 404(b) and not giving a cautionary instruction.
[¶7] Sah concedes the appeal is limited to issues raised in his motion for a
new trial.
Under N.D.R.Crim.P. 33(a), a defendant moving for a new
trial must specify the alleged defects and errors with particularity.
A defendant is required to assert all alleged errors in a motion for
new trial. A motion for a new trial is not necessary for appellate
review, but if a defendant moves for a new trial he is limited on
appeal to the grounds presented to the district court in the motion.
City of Grand Forks v. Opp, 2017 ND 52, ¶ 6, 890 N.W.2d 821 (citations and
quotations omitted).
[¶8] In his motion for a new trial, Sah notes the evidence about sexual abuse
and peppering and “contends that evidence of other physical abuse was not
admissible.” Sah did not state with particularity how or why the evidence was
inadmissible and did not cite to any legal authority. Sah’s conclusory
arguments that evidence was not admissible did not preserve the issue of
whether the evidence was admissible under N.D.R.Ev. 403 and 404(b) for
appeal. See City of Fargo v. McLaughlin, 512 N.W.2d 700, 703 (N.D. 1994)
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(stating questions not brought to the attention of the trial court are not
preserved for review).
Although such an issue can be raised on appeal from the judgment
without making a motion for a new trial, where, as here, a motion
for a new trial was made, the issue must be raised in that motion
or it will not be considered on appeal.
State v. Kopp, 419 N.W.2d 169, 172 n.2 (N.D. 1988).
[¶9] Although Sah did not properly preserve the issue, this Court may choose
to review the issue as obvious error. “An issue not raised in the trial court is
generally not reviewable on appeal unless it constitutes ‘obvious error’ under
N.D.R.Crim.P. 52(b).” State v. Hart, 1997 ND 188, ¶ 22, 569 N.W.2d 451. The
burden to show an obvious error is on the appellant, and when it is not
argued, it is difficult for an appellate court to conclude the burden is satisfied.
State v. Thomas, 2020 ND 30, ¶ 14 (citations omitted). On appeal, Sah does
not argue obvious error and we decline to address it.
III
[¶10] We affirm the judgment.
[¶11] Lisa Fair McEvers
Gerald W. VandeWalle
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen, C.J.
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