State v. Adams

1

2024 ND 139

State of North Dakota, Plaintiff and Appellee v. Jarrod Jashawn Adams, Defendant and Appellant

No. 20230328

Supreme Court of North Dakota

July 18, 2024

Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable M. Jason McCarthy Judge.

Rachel R. Egstad, Assistant State's Attorney, Grand Forks, ND for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

OPINION

Jensen, Chief Justice.

[¶1] Jarrod Adams appeals from a criminal judgment entered after a jury found him guilty of attempted gross sexual imposition kidnapping, terrorizing, interference with a telephone call during an emergency, and simple assault. On appeal, Adams challenges the convictions related to the attempted gross sexual imposition and kidnapping charges, asserting the inconsistencies in the charges and jury instructions were obvious error; the district court erred in removing the culpability level of "intentional" from the elements of attempted gross sexual imposition; the court misstated the law in the jury instructions, improperly allowed for a verdict without a unanimous jury finding on all elements of kidnappings, and erred by finding sufficient evidence existed to convict Adams of kidnapping. We affirm the judgment with the exception of the sentence imposed for the kidnapping conviction, and reverse and remand for resentencing on the kidnapping conviction for imposition of a sentence consistent with the facts proven.

I

[¶2] Adams was charged with attempted gross sexual imposition. The information used both "intentional" and "willful" in describing the culpability required for the offense. The jury instructions defined attempted gross sexual imposition as follows:

A person who intentionally attempts to engage in a sexual act with another person by compelling another person to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being, is guilty of Attempted Gross Sexual Imposition.

[¶3] The jury instruction providing the elements necessary for a conviction for attempted gross sexual imposition read as follows:

1. On or about May 1, 2022, in Grand Forks County, North Dakota,

2. the Defendant, Jarrod Jashawn Adams, attempted to engage in a sexual act with [Jane Doe] by compelling her to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on [Jane Doe], a human being;

3. the Defendant intentionally engaged in conduct which constituted a substantial step towards commission of the crime of Gross Sexual Imposition; and 4. the Defendant intended to commit the crime of Gross Sexual Imposition.

[¶4] Adams was also charged with kidnapping in violation of section 12.1-18-01, N.D.C.C., which reads as follows:

1. A person is guilty of kidnapping if he abducts another or, having abducted another, continues to restrain him with intent to do the following:

a. Hold him for ransom or reward;

b. Use him as a shield or hostage;

c. Hold him in a condition of involuntary servitude;

d. Terrorize him or a third person;

e. Commit a felony or attempt to commit a felony; or

f. Interfere with the performance of any governmental or political function.

2. Kidnapping is a class A felony unless the actor voluntarily releases the victim alive and in a safe place prior to trial, in which case it is a class B felony.

[¶5] Adams requested the following jury instruction for the kidnapping charge:

A person who abducts another or, having abducted another, continues to restrain the other person with intent to terrorize the victim or a third person or commit a felony or attempt to commit a felony is guilty of Kidnapping.

[¶6] Adams also requested the jury instructions include the following essential elements for the kidnapping charge:

1. On or about May 1, 2022, in Grand Forks County, North Dakota, the Defendant, Jarrod Adams, abducted [Jane Doe], and

2. The Defendant did so intending to terrorize [Jane Doe] or commit a felony or attempt to commit a felony.

[¶7] The jury was instructed on the kidnapping charge as requested by Adams. The jury found Adams guilty of attempted gross sexual imposition and kidnapping. This appeal followed.

II

[¶8] Adams argues the manner in which he was charged with attempted gross sexual imposition resulted in inconsistent instructions to the jury and the charging of a non-cognizable offense. Adams concedes he failed to preserve this issue at trial but argues the asserted errors were obvious error requiring reversal. To establish obvious error, a defendant must show: (1) error; (2) that is plain; and (3) the error affects the defendant's substantial rights. State v. Pemberton, 2019 ND 157, ¶ 9, 930 N.W.2d 125.

[¶9] Our decision in State v. Pendleton, 2022 ND 149, 978 N.W.2d 641, forecloses the argument put forth by Adams with regard to the inconsistencies in the jury instructions and information. In Pendleton, the defendant argued he was charged with a non-cognizable offense, attempted knowing murder. 2022 ND 149, ¶ 15. In Pendleton we noted the following:

The information used both the "intentionally" and "knowingly" culpability terms in the attempted murder charges. The opening jury instructions also used the "knowingly" term. However, the instructions were then amended for the closing charge to the jury. The amended instructions given to the jury for deliberations on the attempted murder counts stated the following:

The State's burden of proof is satisfied if the evidence shows beyond a reasonable doubt, the following essential elements:

1. On or about May 27, 2020, in Grand Forks, North Dakota;

2. The defendant, Salamah Qareed Pendleton;

3. Intentionally;

4. Engaged in the conduct which constitutes a substantial step toward commission of the crime of murder;

5. Specifically, the defendant attempted to kill [victim's name]; and

6. The Defendant did not act in self-defense.

The instructions included a warning that these instructions modified and superseded the prior opening instructions.

Id. at ¶ 17.

[¶10] This Court concluded the jury instructions informed the jury of the level of proper culpability necessary to convict Pendleton on the attempted murder charges. Pendleton, 2022 ND 149, ¶ 18.

[T]he "intentionally" language in element three directly modifies element four, describing the charged conduct. The use of the word "specifically" in element five explains that element five is a further articulation or refinement of element four. Therefore, when reading the jury instructions as a whole, we conclude the instructions fairly advised the jury that they could convict Pendleton on nothing less than intentional attempted murder. Further, although the opening instructions stated the word "knowingly," the final instructions clearly provided that the instructions replaced and superseded the opening instructions. Thus, we affirm the attempted murder convictions.

Id.

[¶11] As in Pendleton, the information charging Adams included both knowingly and intentional in describing the culpability. Similar to Pendleton, the court eliminated the inconsistency, and in the final jury instruction each essential element identified intentionally as the level of culpability. Consistent with our decision in Pendleton, we conclude the jury was properly instructed that it could convict Adams on nothing less than intentional conduct.

III

[¶12] Adams argues the jury instructions for the kidnapping charge provided by the district court were "misleading confusing and did not adequately inform the jury of the law."

[¶13] First, Adams argues that because the different subsections under kidnapping are different crimes, it was plain error to include subsection (e) in the essential elements without charging subsection (e) in the information. Adams submitted proposed jury instructions, and the district court gave the instructions Adams requested on the kidnapping charge. Adams did not object to the instruction on kidnapping or request any additional instruction at trial. Adams' proposed jury instructions included the language he now objects to on appeal. By submitting the jury instructions, Adams invited the error that he now appeals. An allegation of error is waived when the error is invited. State v. Rende, 2018 ND 56, ¶ 9, 907 N.W.2d 361. We conclude Adams invited the error he now alleges in the jury instructions and waived his right to review the error on direct appeal.

[¶14] Second, Adams argues the verdict for kidnapping was not unanimous, arguing that the different subsections in the kidnapping statute are not different means of committing kidnapping, but distinct and separate crimes. This Court has not previously determined whether the subsections in the kidnapping statute are alternative means of committing kidnapping, not separate offenses. However, our interpretations of similar structures in other statutes guide us to the conclusion they are alternative means, not separate offenses.

[¶15] In State v. Gardner, we concluded that the North Dakota Legislature created two alternative means of committing child abuse, not separate crimes. 2023 ND 116 ¶ 18, 992 N.W.2d 535. This conclusion was based on the language of the statute and the legislative history of N.D.C.C. § 14-09-22. Id. This Court noted that the jury was not required to unanimously agree on which of the two alternative means of committing child abuse was proven beyond a reasonable doubt, emphasizing that the behaviors were alternative, nonexclusive means of committing the same offense. Id. Similarly, in City of Mandan v. Sperle, we reiterated the idea that legislatures often list alternative means of committing a crime without intending to define separate elements...