State v. Deleon

965 N.W.2d 419

STATE of North Dakota, Plaintiff and Appellee

v.Alfredo DELEON, Jr., Defendant and Appellant

No. 20210018

Supreme Court of North Dakota.

FILED OCTOBER 14, 2021

John M. Gonzalez, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

Samuel A. Gereszek, Grand Forks, ND for defendant and appellant.

VandeWalle, Justice.

[¶1] Alfredo Deleon, Jr. appealed from a criminal judgment convicting him of possession of certain materials prohibited. We conclude sufficient evidence exists to support Deleon's conviction. We affirm the criminal judgment.

I

[¶2] In February 2020, Deleon was charged with one count gross sexual imposition and one count possession of certain materials prohibited. After a three day jury trial, the jury found Deleon not guilty of gross sexual imposition and guilty of possession of certain materials prohibited.

[¶3] Deleon met the victim, Jane Doe, at her place of employment. Deleon and Doe exchanged phone numbers to discuss potential babysitting. Shortly after, Deleon and Doe began intimate discussions leading Doe to send Deleon a sexually explicit photograph. At trial, Doe testified that she was 14 years old at the time she sent the photograph.

II

[¶4] On appeal, Deleon argues the evidence at trial was insufficient to support a conviction for possession of certain materials prohibited.

[¶5] Under N.D.R.Crim.P. 29(a) a district court may enter a judgment of acquittal if "the evidence is insufficient to sustain a conviction." State v. Eggleston , 2020 ND 68, ¶ 7, 940 N.W.2d 645 (quoting N.D.R.Crim.P. 29(a) ).

[T]he district court must deny the motion if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt. A court's decision on a Rule 29 motion for a judgment of acquittal is reviewed for an abuse of discretion.... A district court abuses its discretion in denying a motion under Rule 29 if the evidence is insufficient to sustain a conviction. In reviewing challenges to the sufficiency of the evidence on appeal, the defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.

State v. Polk , 2020 ND 248, ¶ 6, 950 N.W.2d 764 (quoting Eggleston , at ¶ 7 ).

[¶6] Section 12.1-27.2-04.1, N.D.C.C., provides that a person is guilty of possession of certain materials prohibited if, "knowing of its character and content, that person knowingly possesses any motion picture, photograph, or other visual representation that includes sexual conduct by a minor." Sexual conduct is defined, in relevant part, as "[l]ewd exhibition of the buttocks, breasts, or genitals." Id. § 12.1-27.2-01(4)(f). In determining the age of a minor:

[T]he trier of fact may base its determination on personal inspection of the minor, inspection of a photograph or motion picture of the sexual performance, testimony by a witness to the sexual performance as to the age of the minor based upon the minor's appearance, expert testimony based upon the appearance of the minor in the sexual performance, or any other method authorized by law or by rule.

N.D.C.C. § 12.1-27.2-06 ; State v. White , 2017 ND 51, ¶ 19, 890 N.W.2d 825.

[¶7] Deleon argues the State had the burden to prove that he knew the photos he possessed were of a minor.

[¶8] The State presented testimony of Jane Doe, her father, and two investigating officers. Doe testified that she was 14 years old when she sent a picture to Deleon that showed her breasts. The father testified that he called Deleon and told him that Doe was only 14 years old and requested him to meet him at the police station. A Minot Police officer testified that Deleon consented to a search of his cell phone at the police station. While conducting the search, the officer observed a photograph of Jane Doe where she was nude from the waist up. A detective testified that during her investigation she observed several photographs of Jane Doe on Deleon's cell phone and one specific photograph showed Jane Doe topless.

[¶9] Viewed in the light most favorable to the verdict, the evidence presented at trial was sufficient for the jury to find Deleon guilty of possession of certain materials prohibited.

III

[¶10] We affirm the criminal judgment.

[¶11] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Jensen, Chief Justice, concurring.

[¶12] I agree with and have joined the majority opinion. I write separately, however, to express my concern regarding the level of culpability required for the prohibited possession of materials identified under N.D.C.C. § 12.1-27.2-04.1. As stated in the majority, N.D.C.C. § 12.1-27.2-04.1 provides:

A person is guilty of a class C felony if, knowing of its character and content, that person knowingly possesses any motion picture, photograph, or other visual representation that includes sexual conduct by a minor.

(Emphasis added.) This statute plainly contemplates the identified prohibited materials must be "knowingly" possessed in order for there to be a criminal violation. Section 12.1-02-02(1)(b), N.D.C.C., defines "knowingly" for purposes of Title 12.1, and provides that "a person engages in conduct ... ‘[k]nowingly’ if, when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so. " In the context of "knowing" possession under N.D.C.C. § 12.1-27.2-04.1, this definition may effectively create a strict liability offense.

[¶13] When read in conjunction with N.D.C.C. § 12.1-27.2-04.1, this definition of "knowingly" provides that a person may violate the statute, even when the person's possession of the material was not intentional, i.e. , not the person's purpose to do so. Compare N.D.C.C. § 12.1-02-02(1)(b) (defining "knowingly"), with N.D.C.C. § 12.1-02-02(1)(a) ("[A] person engages in conduct ... ‘[i]ntentionally’ if, when he engages in the conduct, it is his purpose to do so."). In other words, a person may violate the statute even when the initial possession of the prohibited material occurs unintentionally, or is uninvited, unsolicited, or involuntary. When considering the evolution of modern communication technology, this scenario is not so farfetched.

[¶14] When N.D.C.C. § 12.1-27.2-04.1 was enacted in 1989, see 1989 N.D. Sess. Laws ch. 169, § 7, the manner in which a person came into possession of the identified prohibited material was, perhaps, more likely to be analog...