State v. Kovalevich

858 N.W.2d 625

STATE of North Dakota, Plaintiff and Appellee

v.Sean Michael KOVALEVICH, Defendant and Appellant.

No. 20140091.

Supreme Court of North Dakota.

Jan. 15, 2015.

Mark J. McCarthy, Assistant State's Attorney, Grand Forks, N.D., for plaintiff and appellee.

Clint D. Morgenstern, Grand Forks, N.D., for defendant and appellant.

Opinion

SANDSTROM, Justice.

[¶ 1] Sean Kovalevich appeals from a criminal judgment entered after a jury found he was guilty of gross sexual imposition and corruption of a minor. Kovalevich argues the district court erred in denying his motion for a new trial and his motion to dismiss under N.D.R.Crim.P. 16. We affirm.

I

[¶ 2] Kovalevich was charged with two counts of gross sexual imposition and one count of corruption of a minor. The State alleged Kovalevich engaged in a sexual act with a minor female at Canad Inns, a hotel in Grand Forks.

[¶ 3] At the October 2013, jury trial a Canad Inns employee testified about the hotel's reservation system and the hotel's records for Kovalevich's reservation at the hotel, including confirmation of reservations to stay at the hotel February 3–6, 2012, and August 13–15, 2012. The documents confirming the reservations were admitted into evidence. The employee also testified a registration document is generated and signed by the guest when the guest checks in at the hotel. The employee began testifying about the registration document for one of Kovalevich's confirmed reservations, but his lawyer objected and argued the registration documents had not been disclosed during discovery. The court limited the witness's testimony, and the registration documents were not introduced into evidence.

[¶ 4] During the trial, the State gave Kovalevich's lawyer copies of receipts for a hotel in Fargo, the Ramada Plaza and Suites. The receipts showed payment for a room reservation in Kovalevich's name for February 6–7, 2012, and August 15–16, 2012. The receipts were not introduced as evidence during the trial, and Kovalevich did not request a continuance to allow him to review the documents. Kovalevich was found guilty of all three counts.

[¶ 5] After the court polled the jurors and each juror stated the verdict was his or her true verdict, Kovalevich requested the court allow him to question the jurors about whether they considered the testimony about the Canad Inns registration documents in reaching a verdict. The court denied his request to question jurors at that time.

[¶ 6] On November 14, 2013, Kovalevich moved for a new trial under N.D.R.Crim.P. 33. He argued evidence was improperly admitted and he was denied the opportunity to question jurors and discover whether juror misconduct occurred. The district court denied his motion, ruling the issues were not adequately raised, the evidence was properly admitted, and Kovalevich was not precluded from inquiring into the validity of the verdict.

[¶ 7] In a January 6, 2014, letter, the State provided further discovery material to Kovalevich. Copies of the Ramada Plaza receipts, which were previously provided to Kovalevich during the trial, and an investigation report about the receipts were attached to the State's letter. The investigation report, prepared by the Bureau of Criminal Investigation, had not been transcribed at the time of the trial.

[¶ 8] On January 29, 2014, Kovalevich moved to dismiss under N.D.R.Crim.P. 16, arguing the State failed to disclose exculpatory evidence. He claimed the evidence disclosed on January 6, 2014, was important because it showed he was not in Grand Forks County on the date one of the alleged crimes occurred. After a hearing, the district court denied the motion, ruling it was denying the motion on procedural grounds because it was unable to grant any post-trial relief under N.D.R.Crim.P. 16. The court also said it would address the issues raised in the motion if Kovalevich properly raised the issues in accordance with the Criminal Rules of Procedure. A criminal judgment was subsequently entered.

[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Kovalevich's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.

II

[¶ 10] We apply an abuse of discretion standard in reviewing a district court's decision on a motion for a new trial under N.D.R.Crim.P. 33. State v. Ratliff, 2014 ND 156, ¶ 13, 849 N.W.2d 183. A court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or it misinterprets or misapplies the law. Id. A defendant is required to assert all alleged errors with particularity in a motion for a new trial. Id. at ¶ 24; N.D.R.Crim.P. 33(a). “[A]lthough a motion for a new trial is not necessary to preserve issues for appellate review, when a new trial is sought, a defendant is limited on appeal to the grounds presented to the district court in the motion for a new trial.” State v. Yarbro, 2014 ND 164, ¶ 9, 851 N.W.2d 146.

III

[¶ 11] Kovalevich argues the district court erred in failing to grant his post-trial motion to dismiss under N.D.R.Crim.P. 16. He claims the Canad Inns registration documents and the receipts from the Ramada Plaza in Fargo were not properly disclosed during the discovery process, the Ramada Plaza receipts were exculpatory evidence, and the court may dismiss the case under N.D.R.Crim.P. 16 as a remedy for the discovery violation.

[¶ 12] Kovalevich was provided with copies of the Ramada Plaza receipts during the trial and the failure to disclose the Canad Inns registration documents was raised during the trial. Kovalevich, however, did not raise the discovery violation issues in his motion for a new trial. He did not move to dismiss under N.D.R.Crim.P. 16 until after the district court denied his motion for a new trial. The State opposed Kovalevich's motion, arguing the motion was procedurally flawed because a motion under N.D.R.Crim.P. 16 cannot be filed after trial. After a hearing, the court denied the motion on procedural grounds, explaining:

The court is unable to grant any of the relief available pursuant to N.D.R.Crim.P. 16 post trial. This court will not address any of the merits of the arguments presented by the parties and will deny [Kovalevich's] motion on procedural grounds. Should [Kovalevich] wish to raise these matters in accordance with the Criminal Rules of Procedure, this court would certainly address the merits of the argument.

[¶ 13] Rule 16, N.D.R.Crim.P., governs pretrial discovery procedure in criminal cases. The rule also includes a continuing duty to disclose additional evidence or material discovered “before or during trial.” N.D.R.Crim.P. 16(c). If a party fails to comply with N.D.R.Crim.P. 16 or with an order issued under the rule, the court may:

(i) order that party to permit the discovery or inspection: specify its time, place and manner; and prescribe other just terms and conditions;

(ii) grant a continuance;

(iii) prohibit that party from introducing the undisclosed evidence;

(iv) relieve the requesting party from making a disclosure required by this rule; or

(v) enter any other order that is just under the circumstances.

N.D.R.Crim.P. 16(d)(2).

[¶ 14] Rule 16, N.D.R.Crim.P., governs discovery before and during trial; and does not include a provision authorizing a party to move post trial to dismiss. Other Rules of Criminal Procedure, however, specifically provide procedure for a party to post-trial raise issues about alleged errors or defects. See N.D.R.Crim.P. 29 ; N.D.R.Crim.P. 33. Under N.D.R.Crim.P. 33(a), a defendant may move for a new trial based on alleged defects and errors and the court may vacate any judgment and grant a new trial to the defendant “if the interest of justice so requires.” A motion for a new trial may be based on newly discovered evidence or on other grounds. N.D.R.Crim.P. 33(b). Rule 33, N.D.R.Crim.P., specifically provides a post-trial procedure for a defendant to argue defects and errors occurred, including discovery violations, and allows a court to grant a new trial if the interest of justice so requires. See also State v. Blunt, 2011 ND 127, ¶¶ 5, 21, 799 N.W.2d 363 (defendant moved post trial for a new trial or for a count to be dismissed based on allegations of a discovery violation under N.D.R.Crim.P. 16, reviewed as a motion for a new trial on appeal).

[¶ 15] Kovalevich was required to raise his discovery violation issues in a motion for a new trial. He did not raise these issues in his initial motion for a new trial and he did not file a second motion for new trial after he received evidence from the State on January 6, 2014. The State opposed the motion, arguing it was procedurally flawed because it did not conform with the Rules of Criminal Procedure. At the hearing on the motion, the district court requested Kovalevich clarify whether he was moving to dismiss under N.D.R.Crim.P. 16. Kovalevich continued to assert that he was moving to dismiss under N.D.R.Crim.P. 16. Kovalevich did not properly raise his discovery issues, and therefore the district court did not err in denying his motion.

IV

[¶ 16] Kovalevich argues the district court erred in denying his jury impeachment request under N.D.R.Ev. 606(b). He claims the court erred in failing to give a curative instruction after there was testimony about Canad Inns registration documents, which were not disclosed during discovery and were not admitted into evidence at the trial, and the jury may have impermissibly contemplated the testimony about the documents. He contends his counsel requested to inquire whether the jury considered the registration evidence and the court denied his request and prevented him from discovering whether there was juror misconduct.

[¶ 17] In denying Kovalevich's motion for a new trial, the court explained Kovalevich did not indicate what document he wanted to question the jurors about or whether the document was offered or received into evidence. The court also explained, ...