State v. Scott , 2020 ND 160 ( 2020 )

Filed 07/22/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 160
State of North Dakota, Plaintiff and Appellee
v.
Richard Earl Scott, Defendant and Appellant
No. 20190317
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable John W. Grinsteiner, Judge
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Julie A. Lawyer, State’s Attorney, Bismarck, ND, for plaintiff and appellee.
Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.
State v. Scott
No. 20190317
McEvers, Justice.
[¶1] Richard Scott appeals from a criminal judgment entered after a jury
found him guilty of solicitation of a minor and child neglect. Scott argues the
district court erred when it did not instruct the jury on the defense of double
jeopardy. He also argues the court erred when it did not conduct a hearing
concerning the trustworthiness of the child-victim’s out-of-court statements
under N.D.R.Ev. 803(24). We affirm.
I
[¶2] The State charged Richard Scott with solicitation of a minor, indecent
exposure, and child neglect. The charges were based on allegations of
inappropriate conduct Scott had with his then-girlfriend’s eight-year-old
daughter. After the district court allowed Scott to withdraw his guilty plea,
the case proceeded to trial.
[¶3] Scott filed a motion in limine raising the defense of double jeopardy as to
the child neglect charge. Scott argued child neglect, as charged against him,
is a lesser-included offense of terrorizing. Scott had previously pled guilty to
terrorizing in a different case for threatening the child’s mother with a knife.
The district court denied Scott’s motion, concluding double jeopardy did not
apply as a matter of law because the crimes had different elements and
different victims.
[¶4] At the pretrial conference, Scott raised the issue of N.D.R.Ev. 803(24),
which provides an exception to the rule against hearsay for statements made
by a child regarding sexual abuse if the court finds the statements trustworthy.
Scott’s counsel stated he intended to object to any hearsay statements made by
the child because the court did not hold a hearing to determine whether such
statements were trustworthy as required by the rule. The State responded
that it intended to call the child and did not plan on introducing hearsay.
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[¶5] At the trial, the child and her mother testified, as well as their neighbor,
law enforcement officers, a social worker, and a child forensic interviewer. The
testimony recounted a number of instances where Scott was drunk and
threatening. During one incident, the child testified Scott crawled on top of
her but she was able to get away. During another incident, the child testified
Scott asked if he could engage in a sexual act with her and then “pulled down
his underwear and pants.” The social worker and the forensic interviewer both
testified about their observations of the child during interviews. The jury
found Scott guilty of solicitation of a minor and child neglect and not guilty of
indecent exposure.
II
[¶6] Scott raises issues on appeal concerning double jeopardy and N.D.R.Ev.
803(24). Scott concedes these issues were not raised before the district court.
Issues not raised before the district court are generally not reviewable on
appeal absent obvious error under N.D.R.Crim.P. 52(b). State v. Craig, 2020
ND 80, ¶ 5, 941 N.W.2d 539. “To establish obvious error, a defendant must
show (1) error, (2) that is plain, and (3) that affects substantial rights.” State
v. Blurton, 2009 ND 144, ¶ 8, 770 N.W.2d 231. “We cautiously exercise our
power to notice obvious error only in exceptional situations in which a
defendant has suffered serious injustice.” State v. Freed, 1999 ND 185, ¶ 14,
599 N.W.2d 858.
A
[¶7] Scott argues the district court erred when it did not inform him he could
plead not guilty based on double jeopardy given his prior terrorizing conviction.
Scott relies on N.D.C.C. § 29-16-01 for his theory that the court must inform
him he could enter a plea of “once in jeopardy,” rather than only advising him
he could enter a plea of guilty or not guilty.
[¶8] Section 29-16-01, N.D.C.C., provides:
An issue of fact arises:
1. Upon a plea of not guilty;
2. Upon a plea of former conviction or acquittal of the same offense; or
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3. Upon a plea of once in jeopardy.
[¶9] Scott’s reliance on N.D.C.C. § 29-16-01 is misplaced. The statute makes
no mention of any obligation by the district court to advise the defendant.
Rather, it is the North Dakota Rules of Criminal Procedure that govern the
practice and procedure in all criminal proceedings in district courts.
N.D.R.Crim.P. 1(a). These rules provide the scope of what the court must
inform the defendant. See N.D.R.Crim.P. 5(b) (listing what the magistrate
must inform the defendant of at the initial appearance); see also N.D.R.Crim.P.
11(b) (listing what the court must inform the defendant of prior to accepting a
guilty plea). Scott’s argument that the court has an obligation to advise him
he could enter a plea of “once in jeopardy” is without merit.
B
[¶10] Scott asserts he had a right “[t]o have a jury instructed about jeopardy
and decide whether or not he was not guilty of [child neglect] because of
jeopardy.” We disagree. The doctrine of double jeopardy protects defendants
from being tried or punished multiple times for the same crime. State v. Foster,
484 N.W.2d 113, 115 (N.D. 1992). Double jeopardy is only presentable to the
jury when there is a question of fact. See State v. Kelly, 2001 ND 135, ¶ 8, 631
N.W.2d 167. In this case, the district court ruled double jeopardy did not apply
as a matter of law because terrorizing is a different crime than child neglect.
Because the crimes are distinct, Scott was not entitled to a jury instruction on
double jeopardy. See State v. Virgo, 14 N.D. 293, 103 N.W. 610, 611 (1905)
(double jeopardy is not presentable to the jury when the offenses are distinct).
C
[¶11] Scott asserts the district court erred by allowing witnesses to testify
about their observations of the child during forensic interviews because the
court did not hold a hearing pursuant to N.D.R.Ev. 803(24). Rule 803(24),
N.D.R.Ev., provides an exception to the rule against hearsay for statements
made by a child about sexual abuse the child experienced or witnessed. State
v. Krull, 2005 ND 63, ¶ 8, 693 N.W.2d 631. The exception applies when the
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court finds “the time, content, and circumstances of the statement provide
sufficient guarantees of trustworthiness.” Id. (quoting N.D.R.Ev. 803(24)(a)).
Contrary to Scott’s assertion, the plain language of N.D.R.Ev. 803(24) shows it
does not apply to non-hearsay testimony.
III
[¶12] Because the district court did not err, Scott has not established obvious
error. We affirm the criminal judgment.
[¶13] Lisa Fair McEvers
Gerald W. VandeWalle
Jerod E. Tufte
Jon J. Jensen, C.J.
Daniel J. Crothers
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