State v. Aabrekke

800 N.W.2d 284

2011 ND 131

STATE of North Dakota, Plaintiff and Appellee

v.Ivan Lee AABREKKE, Defendant and Appellant.

No. 20100170.

Supreme Court of North Dakota.

July 13, 2011.

James Peter Wang, State's Attorney, Minnewaukan, N.D., for plaintiff and appellee.Ulysses Samuel Jones, Devils Lake, N.D., for defendant and appellant.CROTHERS, Justice.

[¶ 1] Ivan Lee Aabrekke appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition and from the denial of his motions for a new trial and for a judgment of acquittal. We reverse and remand, holding the district court failed to correctly apply the law regarding the admissibility of evidence of prior bad acts.

I

[¶ 2] The State charged Aabrekke with gross sexual imposition under N.D.C.C. § 12.1–20–03(1)(d) for allegedly engaging in a sexual act with his thirteen-year-old granddaughter at his Minnewaukan home on August 16, 2009. Based on recorded statements and testimony at a preliminary hearing and without formal pretrial notice from the State as required under N.D.R.Ev. 404(b), Aabrekke moved to prevent the State from introducing evidence that he “has a history of engaging in various types of sexual activity with the [complainant] and that this activity has occurred over the years” and that “relatives of [Aabrekke] may have engaged in sexual acts with either the [complainant], or the [complainant's] mother.” The district court denied Aabrekke's pretrial motion and ruled the evidence may be admissible at trial to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

[¶ 3] At trial, the complainant testified Aabrekke used what was described as a “penis pump” to engage in a sexual act with her on the morning of August 16, 2009, while she, her mother and her brother were staying at Aabrekke's house for the weekend. The complainant's mother is Aabrekke's daughter, and the complainant testified she did not tell her mother about the incident until after they returned to their Minnesota home because she knew Aabrekke “would deny it and say [mean] stuff.” The complainant's mother reported the incident to Minnesota authorities, and the complainant provided statements about the incident to officials from Minnesota and North Dakota. A subsequent search of Aabrekke's home resulted in the seizure of a “penis pump.” After the complainant testified at trial about the August 16, 2009 incident, the State asked the complainant whether she had ever told her mother about any sexual contacts made against her before that incident. The following colloquy occurred outside the presence of the jury:

“THE COURT: Okay, first what I want to hear from you, Mr. Wang, is what specifically are you soliciting with regard to the testimony you were getting from the witness?

“MR. WANG: Certainly. She had just described a horrifically significant act that has occurred in her life, and she leaves and goes to her mother and cries and doesn't tell her mother about this. The fact is she has disclosed before, some nearly two years earlier, and it created a tremendous fracas in the family and—

“THE COURT: What was the event that supposedly occurred two years earlier?

“MR. WANG: There was digital penetration.

“THE COURT: By Mr. Aabrekke?

“MR. WANG: By or alleged by Mr. Aabrekke. Digital penetration which went on for a period of two years every month that she was there. Now that she reaches the age of thirteen, that's when we have this—the act of—the sexual act.

“THE COURT: So it's continuing.

“MR. WANG: So it's continuing. But there was disclosure made two years ago. The mother's testimony—the witness's mother—will be that she confronted grandma and we believe the whole thing was taken care of. Now this girl is going to be attacked because they believe she's lying. The only way that I can show the planning, the preparation, the intense grooming that led up to the events of the August 2009 weekend is to put that in. The jury is going to be sitting there, My God what's wrong with this victim? She didn't tell her mother. She waited a couple days. Why?

“THE COURT: Okay and—

“MR. WANG: That why can be answered.

“THE COURT: So she—you're going to have mother testify about these events also?

“MR. WANG: She will.

“THE COURT: And about the confrontation with the family?

“MR. WANG: Mother will testify about the earlier disclosure that she thought she had, you know, mom and dad, grandpa and grandma convinced or in—

“THE COURT: Mm-hmm.

“MR. WANG:—in tune that this is under control.

“THE COURT: Okay.

“MR. WANG: And she's also going to testify that she believed that grandpa was impotent and that this wasn't going to be an issue.

“THE COURT: Okay, Mr. Jones, your objection then is what?

“MR. JONES: Okay, I did not object to the question that was asked because it was not a question directed specifically as to the defendant. The question was, have you ever told your mother—something to the effect of have you ever told your mother about bad touches before.

“THE COURT: Okay.

“MR. JONES: Okay, that's one thing. But not only did the witness start to answer the question, which could have been answered yes or no, the witness began at that point to discuss what are allegations of—

“THE COURT: Okay, Mr. Jones, so your argument is that he can't even raise this with regard to the allegation of vaginal penetration?

“MR. JONES: Okay—

“THE COURT: Even if it was Mr. Aabrekke?

“MR. JONES: Our argument, Your Honor, is that evidence—as Rule 404 says, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

“THE COURT: That's not showing character. That's showing a—

“MR. WANG: Pattern.

“THE COURT: Of conduct.

“MR. JONES: Okay, it says, However, it may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

“MR. WANG: Thank you.

“THE COURT: Right.

“MR. JONES: Our position is that what they are attempting to do—and what they are attempting to do is to basically allege that there were prior acts, purportedly by Mr. Aabrekke, in an effort to support the fact that the act occurred as alleged by the victim—so-called victim at the time in question.

“THE COURT: Sure.

“MR. JONES: First of all, we indicate that the elements of gross sexual imposition can be established irrespective of anything what have been—of what is alleged to have happened in the past, and when you admit allegations of prior criminal acts or prior digital penetration or whatever, prior sexual contact by the defendant and the alleged victim, all that is going to do is to poison the mind of the jury, and the probative value thereof is far outweighed by the prejudice that will occur to the defendant by the admission of such testimony.

“THE COURT: Well I think it's appropriate. The State can bring in that it's a course of action of—continuing course of action, so I think that's permissible. So go ahead, Mr. Wang.

“MR. WANG: Your Honor, this is exactly the motion which Mr. Jones had before the Court which has been ruled on. I am reading from the case law which supports that, [ State v. Paul,] 769 Northwest Second 416 and if I can find the name of it I'll put it into the record. But evidence other—even if the prior acts constituted other crimes evidence, the trial court found that the evidence was introduced for the purpose of showing a plan or preparation, found the evidence substantially reliable in ruling that the victim's hearsay statements were admissible, noted—and the victim would testify at trial. She is going—her testimony—it is a plan, preparation, the intense grooming that went on for a period of at least two years.

“THE COURT: Okay, I'm ruling in your favor, Mr. Wang. I'm overruling the objection. I think it—in particular in the context when he goes—when she goes to the mother and doesn't tell her what happened, I think this—the State has to give an explanation as to why she didn't talk to her mother right away. So I'm—that evidence can come into the record and, Mr. Jones, if you wish to have a standing objection to this course I—you certainly may. You may have that standing objection.

“MR. JONES: Well for purposes of the record, Your Honor, we do want a standing objection to any and all testimony relative to prior—allegations of prior sexual contact.”

[¶ 4] The complainant thereafter testified Aabrekke had engaged in prior sexual contact with her beginning two years before the August 2009 incident. Additionally, the complainant testified during cross-examination:

“Q [Mr. Jones] Do you feel that your mother will protect you?

“A [The complainant] Yes.

“Q Well then did you feel that you needed protection at that time?

“A [Crying.]

“Q Well then why didn't you go to your mother before then?

“A Because she was raped by him before.

“Q Do you have personal knowledge of this?

“A Yes. She's told me.

“MR. JONES: Objection, Your Honor.

“THE COURT: You asked the question.

“Q [By Mr. Jones] So you have no personal knowledge other than what your mother has claimed?

“A [Crying.]

“MR. WANG: I think we should take a break, Your Honor.”

After the recess, the complainant had not composed herself, and the court allowed the State to call two other witnesses. Thereafter, Aabrekke continued his cross-examination of the complainant:

“BY MR. JONES:

“Q Before lunch ... I think we left off with you making the statement that your mom had been raped by Mr. Aabrekke as well.

“A Yes.

“Q Do you recall that?

“A Yes.

“Q Were you present when supposedly this event took place, the event being Mr. Aabrekke raping your mother?

“A I wasn't born.

“Q You wasn't (sic) born.

“A No.

“Q So how do you know about it?

“A My mom told me.

“Q And when did your mom tell you?

....

“A The Sunday we—that last Sunday.

“Q Oh, so she told you that—today is Tuesday so that would have been day before yesterday?

“A Yes.”

[¶ 5] The...