State v. Gaddie , 2022 ND 44 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 3, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 44State of North Dakota, Plaintiff and Appellee
v.
David Walter Gaddie, Defendant and Appellant
No. 20210187
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Jay D. Knudson, Judge.
AFFIRMED IN PART, REVERSED IN PART.
Opinion of the Court by McEvers, Justice.
Renata J.O. Selzer, Assistant State’s Attorney, Fargo, ND, for plaintiff and
appellee.
Scott O. Diamond, Fargo, ND, for defendant and appellant.
State v. Gaddie
No. 20210187
McEvers, Justice.
[¶1] David Gaddie appeals from a criminal judgment entered after a jury
found him guilty of four counts of gross sexual imposition. Gaddie argues the
jury instructions were confusing, the district court erred by not instructing the
jury it must unanimously agree on the specific act underlying each count, and
the court’s inclusion of the term “willfully” in the jury instructions was
improper. Gaddie did not object to the court’s jury instructions. After
reviewing the case under the obvious error standard of review, we affirm the
judgment in part and reverse the judgment in part.
I
[¶2] The State charged Gaddie with two counts of gross sexual imposition in
violation of N.D.C.C. § 12.1-20-03(1)(d) and § 12.1-32-01(1). Those counts
alleged Gaddie, who was older than twenty-two years of age, engaged in two
sexual acts with the victim, who was younger than fifteen years of age. They
specifically alleged Gaddie placed his tongue and his penis in the victim’s
vulva. The State also charged Gaddie with two counts of gross sexual
imposition in violation of N.D.C.C. § 12.1-20-03(2)(a) and (3)(b) and § 12.1-32-
01(2). Those counts alleged Gaddie engaged in sexual contact with the victim,
who was younger than fifteen years old. Those counts specifically alleged
Gaddie engaged in sexual contact by touching the victim’s “breasts and/or
vulva” and by touching the victim’s vulva with his penis. All of the counts
alleged Gaddie engaged in the conduct “willfully.” The victim testified at trial.
Recordings of forensic interviews of the victim were also admitted into
evidence. Gaddie’s defense was that the victim fabricated her accounts of the
abuse and she had a motive to do so. The jury returned guilty verdicts on all
counts.
[¶3] Gaddie’s arguments on appeal focus on the jury instructions. He argues
the instructions were confusing because they grouped the elements of the
sexual act counts together and they grouped the elements of the sexual contact
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counts together. He also asserts the district court erred when it did not
instruct the jury to unanimously agree on the underlying act supporting each
conviction, and the court erred when it included the culpability level of willfully
on all of the counts because the crimes are specific intent crimes. Gaddie
offered instructions similar to those the court gave to the jury. He did not
object to the court’s jury instructions.
II
[¶4] Under N.D.R.Crim.P. 30(c), to preserve a jury instruction issue for
appellate review, a party must object on the record stating the issue “distinctly”
and specifying the grounds of his or her objection. If a party does not timely
object, the issue is not preserved for review. State v. Mathre, 1999 ND 224, ¶
5, 603 N.W.2d 173. This Court’s inquiry into an unpreserved jury instruction
issue is limited to obvious error review under N.D.R.Crim.P. 52(b). Mathre, at
¶ 5; N.D.R.Crim.P. 30(d)(2). Obvious error review consists of determining
whether (1) there was an error, (2) that was plain, and (3) that affected a
party’s substantial rights. State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d
658. An error is not obvious unless the defendant demonstrates it is a “clear
or obvious deviation from an applicable legal rule.” Id. at ¶ 15. If a defendant
proves obvious error occurred, we have discretion whether to rectify it and will
only do so when the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at ¶ 16 (quoting United States v. Olano,
507 U.S. 725, 726 (1993)). Rule 52(b) obvious error review does not apply to
waived errors. Id. at ¶ 14. A party may not take advantage of an error he or
she invited. State v. White Bird, 2015 ND 41, ¶ 24, 858 N.W.2d 642.
III
[¶5] Gaddie argues the district court erred by grouping the elements for the
sexual act charges together and by grouping the elements for the sexual
contact charges together. He claims the grouping was misleading and
confusing.
[¶6] The purpose of jury instructions is to correctly and adequately advise the
jury of the applicable law. State v. Erickstad, 2000 ND 202, ¶ 16, 620 N.W.2d
2136. Jury instructions must not be misleading or confusing. Id. We review
the instructions as a whole to determine whether they correctly and adequately
advise the jury of the applicable law even if part of the instruction standing
alone may be insufficient or erroneous. Id. We will only reverse a conviction
based on an improper jury instruction if the instruction relates to a central
subject in the case and affects a substantial right of the defendant. State v.
Wilson, 2004 ND 51, ¶ 11, 676 N.W.2d 98.
[¶7] For the sexual act charges, the instructions provided:
Essential Elements of the Offense (for counts I and II)
The State’s burden of proof is satisfied if the evidence shows,
beyond a reasonable doubt, the following essential elements:
1) On or between January 1, 2015 and December 1, 2018, in Grand
Forks County, North Dakota, the Defendant, David Walter
Gaddie willfully engaged in a sexual act with Jane Doe or
caused Jane Doe to engage in a sexual act,
2) Jane Doe was less than fifteen (15) years old at the time, and
3) The Defendant, David Walter Gaddie, was twenty two (22)
years of age or older at the time.
For the sexual contact charges, the instructions provided:
Essential Elements of the Offense (for counts III and IV)
The State’s burden of proof is satisfied if the evidence shows,
beyond a reasonable doubt, the following essential elements:
1) On or between January 1, 2015 and December 1, 2018, in
Grand Forks County, North Dakota, the Defendant, David
Walter Gaddie willfully engaged in sexual contact with Jane
Doe or caused Jane Doe to engage in sexual contact,
2) Jane Doe was less than fifteen (15) years old at the time.
[¶8] Gaddie asserts the jury instructions required the jury to return a guilty
verdict on all counts based on a finding that he “engaged in a single instance
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of sexual contact” with the victim. He claims the instructions provided “no
explanation that these were two separate crimes for the jury consider.” We are
not persuaded. Although the district court listed the elements of each crime
together, the instructions clearly advised the jury it needed to find Gaddie
guilty of four separate crimes. The opening instructions detailed each count:
The Second Amended Information charges the criminal offenses to
have been committed as follows:
That on or between January 1, 2015 and December 1, 2018
within the County of Grand Forks in the State of North Dakota,
one David Walter Gaddie, did commit the offenses of:
COUNT I:
GROSS SEXUAL IMPOSITION . . . willfully engaging in a sexual
act . . . by placing his tongue in Jane Doe’s vulva.
COUNT II:
GROSS SEXUAL IMPOSITION . . . willfully engaging in a sexual
act . . . by penetrating Jane Doe’s vulva with his penis.
COUNT III:
GROSS SEXUAL IMPOSITION . . . willfully engaged in sexual
contact . . . by touching Jane Doe’s breasts and/or vulva.
COUNT IV:
GROSS SEXUAL IMPOSITION . . . willfully engaged in sexual
contact . . . by touching Jane Doe’s vulva with his penis.
Along with the inclusion of the separate charges in the opening instructions,
the charges were also read to the jury at the beginning of the trial. In addition,
the district court provided separate guilty and not guilty verdict forms for each
count that required the jury to find Gaddie guilty or not guilty of each crime
“as charged in the Second Amended Information.” The jury instructions and
verdict form, taken as a whole, adequately advise the jury that Gaddie was on
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trial for four separate crimes. Although we generally do not condone grouping
the elements of separate charges, we conclude the instructions in this case are
not misleading or confusing as to the criminal conduct for which Gaddie was
standing trial.
IV
[¶9] Gaddie argues the absence of a unanimity instruction allowed the jury
to convict him of the crimes without agreeing on which underlying act provided
the basis for each conviction.
[¶10] All verdicts in criminal cases must be unanimous. N.D. Const. art. I, §
13; N.D.R.Crim.P. 31(a). When a defendant faces multiple counts of the same
offense, a potential unanimity issue arises. Failing to include distinguishing
information about the allegations creates uncertainty as to whether the jury
unanimously agreed that the specific act forming the basis for each count
occurred. State v. Martinez, 2015 ND 173, ¶ 18, 865 N.W.2d 391.
[¶11] Gaddie claims his case is similar to Martinez where the defendant was
charged with three separate counts of gross sexual imposition. 2015 ND 173,
¶ 2. In Martinez, neither the jury instructions nor the verdict form provided
factual information to distinguish between the counts. Id. at ¶ 13. Rather, the
instructions stated that a finding of guilty was required for each count if the
jury determined Martinez engaged in a separate sexual act with the victim.
Id. The jury found Martinez guilty as to one count but could not reach a verdict
on the other two counts. Id. at ¶ 6. On appeal, we held the instructions were
erroneous and we reversed the judgment. Id. at ¶ 1. We explained:
When the jury instructions and verdict forms do not include
information identifying the underlying acts for each count and
distinguishing between the counts and the instructions do not
inform the jury that it must unanimously agree on the specific act
that formed the basis for each count, the jurors may follow the
instructions and unanimously agree that the offense was
committed but individually choose different underlying acts to
determine guilt.
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Id. at 18. We explained that to avoid unanimity issues, the district court must
give instructions “identifying the underlying act and factually distinguishing
between the counts” or it must instruct the jury “to unanimously agree on the
act for each offense.” Id. at ¶ 23. Other courts have referred to this as the
“either/or” rule. See id. at ¶ 19.
[¶12] In the present case, Gaddie asserts the witnesses’ accounts of the crimes
were varied as to when and where they occurred. Gaddie argues some
members of the jury may have found the State proved certain instances
occurred while others believed the State did not. He claims there may have
been disagreement about which criminal acts occurred and which did not. He
asserts an instruction advising the jury it must unanimously agree on the
underlying act providing the basis for each count should have been given.
[¶13] Gaddie has not demonstrated a unanimity issue amongst the sexual act
counts. The charges are the same, but each count alleges Gaddie committed a
factually distinct criminal act. Count I required the jury to agree Gaddie
placed his tongue in the victim’s vulva, and Count II required the jury to agree
he penetrated the victim’s vulva with his penis. To convict Gaddie on these
charges, the jury was required to find each of these distinct acts occurred. The
exact “time, place, or circumstances” are not elements of the crime. State v.
Vance, 537 N.W.2d 545, 549-550 (N.D. 1995) (quoting People v. Jones, 792 P.2d
643, 655-56 (Cal. Ct. App. 1990); see also Davies v. State, 2018 ND 211, ¶ 17,
917 N.W.2d 8 (a precise date or time period is not required unless time is an
essential element of an offense). There is no unanimity issue because the
instructions provide information identifying and differentiating the underlying
acts. The jury could not find Gaddie guilty of both counts without agreeing
each distinct act occurred.
[¶14] As to the sexual contact counts, we note a sexual contact charge may be
a lesser included offense contained within a sexual act charge. See Vance, 537
N.W.2d at 548. However, Gaddie did not request a lesser included offense
instruction at trial, and he has not raised a double jeopardy claim on appeal.
Gaddie’s arguments instead focus on the lack of a unanimity instruction and
the possibility that the jury did not agree on which underlying acts provided
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the basis for each sexual contact charge. We agree with Gaddie that the sexual
contact charges create a unanimity issue. Count III required the jury to find
Gaddie touched the victim’s “breasts and/or vulva.” Count IV required the jury
to find he touched “her vulva with his penis.” The jury instructions do not
provide sufficient factual information to distinguish Count III from Count IV
to the extent each permits a finding of guilt based on a touching of the victim’s
vulva. The jurors may all have agreed Gaddie touched the victim’s vulva on
two occasions, but they may not have agreed on which acts occurred. The
instructions in this case clearly deviate from the rule we set out in Martinez.
We conclude an obvious error occurred.
[¶15] The error in this case implicates Gaddie’s constitutional right to a
unanimous verdict. When an obvious error affects a defendant’s constitutional
rights, the State bears the burden of proving, beyond a reasonable doubt, that
the error was harmless and did not contribute to the verdict. State v. Webster,
2017 ND 75, ¶ 8, 891 N.W.2d 769. When determining whether the State has
met its burden, we consider “the probable effect of the error in light of all the
evidence.” Id. In this case, the victim testified Gaddie touched her vagina with
what she believed was his tongue, his penis, and his hand. She testified the
touching occurred once or twice a month. Based on our review of the evidence,
it is not clear the jury unanimously agreed on the act supporting the conviction
for Count III. We cannot say this error was harmless and did not contribute
to the verdict. We therefore reverse the judgment as to Count III.
V
[¶16] Gaddie argues he was convicted of an incognizable offense. He claims
gross sexual imposition is a specific intent crime that requires an intent to
arouse or satisfy sexual or aggressive desires. He asserts the district court’s
inclusion of the mens rea “willfully” was erroneous because it allowed the jury
to find him guilty without finding he acted with a specific intent. He claims
the court should have instructed the jury it could only find him guilty if he
acted intentionally. We agree with Gaddie that gross sexual imposition
requires a finding that he acted with a specific intent. But we disagree with
7
his assertion that the court’s inclusion of the mens rea “willfully” was
improper.
[¶17] Gaddie’s arguments require us to interpret various criminal statutes.
The construction of a criminal statute presents a question of law that is fully
reviewable on appeal. State v. McCreary, 2021 ND 212, ¶ 8, 967 N.W.2d 447.
Our primary goal in interpreting statutes is to ascertain the
Legislature’s intentions. In ascertaining legislative intent, we first
look to the statutory language and give the language its plain,
ordinary and commonly understood meaning. We interpret
statutes to give meaning and effect to every word, phrase, and
sentence, and do not adopt a construction which would render part
of the statute mere surplusage. When a statute’s language is
ambiguous because it is susceptible to differing but rational
meanings, we may consider extrinsic aids, including legislative
history, along with the language of the statute, to ascertain the
Legislature’s intent. We construe ambiguous criminal statutes
against the government and in favor of the defendant.
Id. (quoting State v. Buchholz, 2005 ND 30, ¶ 6, 692 N.W.2d 105).
[¶18] Under N.D.C.C. § 12.1-20-03, “[a] person who engages in a sexual act,”
or “[a] person who engages in sexual contact,” with a victim less than fifteen
years of age, is guilty of gross sexual imposition. Under N.D.C.C. § 12.1-20-
02(5), “sexual contact” means “any touching” of the intimate or sexual parts of
the body of another “for the purpose of arousing or satisfying sexual or
aggressive desires.” The definition of sexual act incorporates the sexual or
aggressive desire requirement by defining “sexual act” to mean “sexual
contact” with various parts of the body. See N.D.C.C. § 12.1-20-02(4). The
crimes in this case therefore require a finding that Gaddie acted with the
purpose of arousing or satisfying sexual or aggressive desires—i.e., that he
acted with a specific intent. See State v. Swanson, 2019 ND 181, ¶ 13, 930
N.W.2d 645 (acting with “purpose” is synonymous with acting with “intent”).
[¶19] The State cites State v. Cummins, 347 N.W.2d 571, 572 (N.D. 1984),
where we said gross sexual imposition under N.D.C.C. § 12.1-20-03 “does not
require any specific culpability,” and we characterized the crime as one of
8
general intent. However, when Cummins was decided the definition of sexual
contact did not mention a specific purpose as is currently provided in the
statute. Then, sexual contact was defined as “any touching of the sexual or
other intimate parts of the person.” N.D.C.C. § 12.1-20-02(2) (Supp. 1983). See
also 1983 N.D. Sess. Laws ch. 172, § 7 (removing the words “for the purpose of
arousing or gratifying sexual desire”). The words “for the purpose of arousing
or satisfying sexual or aggressive desires” were added in 1985 after Cummins
was decided. See 1985 Sess. Laws ch. 176, § 1. Our statements regarding a
lack of specific culpability in Cummins therefore have no bearing on our
decision today.
[¶20] Other jurisdictions have characterized similar criminal offenses as
specific intent crimes. See United States v. Sneezer, 900 F.2d 177, 178-79, (9th
Cir. 1990) (statute defining sexual contact as touching various area of the body
“with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person” requires a specific intent); Moore v. State, 475
P.3d 33, 36 (Nev. 2020) (lewdness with a child, which requires a finding that
the criminal act was undertaken “with the intent of arousing, appealing to, or
gratifying the lust or passion or sexual desires” is a specific intent crime);
Phipps v. State, 107 N.E.3d 754, 760 (Ohio Ct. App. 2018) (“Sexual contact
‘requires a specific intent behind the touching—the touching must be intended
to achieve sexual arousal or gratification.’”); State v. Smalls, No. 08-1574, 2009
WL 2138795, at *2 (N.C. Ct. App. July 7, 2009) (taking indecent liberties with
a child, which requires a finding that the act was taken for the purpose of
arousing or gratifying sexual desires, is a specific intent crime).
[¶21] We agree with Gaddie on the first premise of his argument. The crimes
charged in this case require a finding that he acted with a specific purpose.
The second premise of Gaddie’s argument is that the mens rea “willfully” is
inconsistent with a crime requiring a specific intent. He argues that inclusion
of “willfully” in the jury instructions permitted the jury to disregard the specific
intent element of the offenses because it allows a finding of guilt even if his
conduct was not intentional. We disagree with Gaddie on this point.
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[¶22] Gaddie relies on a line of cases where we held certain inchoate offenses
were incognizable. Gaddie attempts to synthesize a rule from these cases. He
claims that a specific intent crime may not be committed willfully. In the cases
Gaddie relies on, we held certain criminal attempt charges were incognizable
because the underlying offenses criminalized conduct that caused an
unintentional result. See, e.g., Pemberton v. State, 2021 ND 85, ¶ 17, 959
N.W.2d 891 (attempted murder without an intent to kill is an incognizable
offense); Yoney v. State, 2021 ND 132, ¶ 1, 962 N.W.2d 617 (same); Dominguez
v. State, 2013 ND 249, ¶ 22, 840 N.W.2d 596 (attempt to commit extreme
indifference murder is a non-cognizable offense). We reasoned it is logically
inconsistent and legally impossible to attempt to cause an unintended result.
Pemberton, at ¶ 13; Dominguez, at ¶ 13. Similarly, in other cases we have held
various conspiracy charges were incognizable because the underlying offenses
criminalized conduct that caused an unintentional result. See, e.g., State v.
Swanson, 2019 ND 181, ¶ 15, 930 N.W.2d 645 (conspiracy to commit murder
without an intent to kill is a non-cognizable offense); State v. Borner, 2013 ND
141, ¶ 7, 836 N.W.2d 383 (conspiracy to commit extreme indifference murder
is a non-cognizable offense). We reasoned it is logically inconsistent and legally
impossible to conspire to achieve an unintended result. Swanson, at ¶ 14;
Borner, at ¶ 18.
[¶23] The issue in the cases Gaddie relies on was the inconsistent nature of
the crimes of attempt and conspiracy with the underlying offenses. The
questions in those cases is different than the issue Gaddie raises in the present
case—whether the mens rea willfully is inconsistent with specific intent crimes
generally. Gaddie’s argument implicates a number of statutes criminalizing
willful conduct undertaken for a specific purpose. See, e.g., N.D.C.C. § 12.1-22-
02 (“A person is guilty of burglary if he willfully enters or surreptitiously
remains in a building . . . with intent to commit a crime”); N.D.C.C. § 12.1-23-
10(11) (shoplifting means “to willfully take possession of any merchandise . . .
with the intent to deprive the owner”); N.D.C.C. § 19-03.1-23 (it is unlawful
for a person to “willfully” possess or manufacture a controlled substance “with
intent” to deliver).
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[¶24] “Both a culpable mens rea and a criminal actus reus are generally
required for an offense to occur.” State v. Hersch, 445 N.W.2d 626, 631 (N.D.
1989). The term “specific intent” is generally used to “designate a special
mental element which is required above and beyond any mental state required
with respect to the actus reus of the crime.” State v. Fleck, 810 N.W.2d 303,
308 (Minn. 2012) (quoting 1 Wayne R. LaFave, Substantive Criminal Law §
5.2(e) (2d ed. 2003)).
[R]egardless of whether an offense is described as a specific- or
general-intent crime, a defendant must voluntarily do an act or
voluntarily fail to perform an act. . . . The volitional requirement
is generally expressed in terms of an exercise of the will. A reflex
movement is not subject to the control of the will. Similarly, an act
resulting from a person’s faultless inability to comply with the law
is ordinarily not criminally punishable, because the act is not a
result of the actor’s will.
Fleck, at 309 (citations and quotation marks omitted). See also United States
v. Tucker, 686 F.2d 230, 232 (5th Cir. 1982) (“To act willfully is to act
voluntarily, purposefully, deliberately, and intentionally, as distinguished
from accidentally, inadvertently, or negligently.”). Like other jurisdictions, we
have interpreted the definition of “willfully” under N.D.C.C. § 12.1-02-02 to
require volition. See State v. Anderson, 480 N.W.2d 727, 730 (N.D. 1992)
(“willfully” meant the jury was required “to find that Anderson had acted
consciously”); City of Dickinson v. Mueller, 261 N.W.2d 787, 790 (N.D. 1977)
(willfulness is “the state of mind involved in the doing of an act willfully as
opposed to an act done under coercion”).
[¶25] Gaddie’s argument that willful conduct is inconsistent with crimes
requiring a specific intent ignores the principle that each element of a crime
does not necessarily require the same mental state. See N.D.C.C. § 12.1-02-
02(3)(a) (where culpability is required, that kind of culpability is required with
respect to every element “[e]xcept as otherwise expressly provided”). A
hypothetical based on N.D.C.C. § 12.1-20-03(2)(a), one of the offenses at issue
in this case, demonstrates this point. That statute criminalizes touching the
sexual or intimate parts of an individual less than fifteen years old. Suppose
11
an adult is sitting near a pool and a child runs by him. The child slips and falls
onto the adult. Despite not moving, the adult comes into contact with an
intimate part of the child’s body. He is not guilty because he did not willfully
engage in the touching. Now suppose he reached out and grabbed the child as
she fell, touching an inappropriate part of her body, but stopping her from
slipping and falling. The requirement that his conduct be willful is met. The
case now requires a determination of whether his willful conduct was for the
specific purpose of arousing or satisfying sexual or aggressive desires. See, e.g.,
State v. Flanagan, 2004 ND 112, ¶ 3, 680 N.W.2d 241 (defendant alleged
inappropriate touching of a child in a pool was an accident).
[¶26] Having determined the mens rea “willfully” as defined by N.D.C.C. §
12.1-02-02(1)(e) is not necessarily inconsistent with a crime requiring specific
intent, we turn to the jury instructions in this case. The charges required a
finding that Gaddie touched various parts of the victim’s body in a manner
constituting sexual contact or a sexual act. Section 12.1-20-03, N.D.C.C.,
states “[a] person who engages” in a sexual act or sexual contact is guilty of an
offense. It does not specify a culpability level for the conduct. The jury was
therefore required to find Gaddie’s actions were willful. N.D.C.C. § 12.1-02-
02(3)(a). The district court’s instructions correctly advised the jury on this
element of the crimes. The charges also required a finding that Gaddie acted
with a specific purpose—arousing or satisfying sexual or aggressive desires.
The district court also correctly instructed the jury on this element of the
offense when it provided the jury with the definition of sexual contact under
N.D.C.C. § 12.1-20-02(5). We therefore conclude the court did not err when it
instructed the jury on the elements of the crimes.
[¶27] To the extent Gaddie claims the manner in which the jury instructions
use the term “willfully” is confusing, we conclude he has waived the issue.
Gaddie’s proposed jury instructions use the term “willfully” in the same
manner as the district court’s instructions. If there is an error in this respect,
Gaddie has invited it and is foreclosed from raising it as an issue on appeal.
See State v. Rende, 2018 ND 56, ¶ 10, 907 N.W.2d 361 (defendant waived issue
regarding failure to include an element of an offense by not including the
element in her proposed jury instructions).
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VI
[¶28] We reverse the judgment as to Count III. The judgment is affirmed in
all other respects.
[¶29] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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