First International Bank & Trust v. Peterson, 2011 ND 87

Kinsella was charged with one count of sexual assault, a class C felony, alleging he knowingly had sexual contact with S.B., a minor 16, as her stepfather.
A two-day trial occurred in August 2010; witnesses included a police officer, a nurse, crime-lab analysts, and S.B.
Evidence showed S.B. was 16 on the date of the assault; the bed sheet contained semen, and DNA matched Kinsella.
S.B. died not recalling the assault, but the State presented circumstantial evidence and the nurse noted genital redness and irritation.
At trial, Kinsella testified he was 34; the defense emphasized S.B.’s demeanor and recantations; jury found him guilty and he was sentenced to five years.
The court denied Rule 29(a) motions for acquittal and for a new trial, and the judgment was affirmed on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there sufficient evidence Kinsella was over 22 at the time?	State asserts age element proven beyond reasonable doubt via waiver rule and defense testimony.	Kinsella argues lack of direct age evidence in State’s opening case.	Yes; sufficient evidence supports age over 22.
Was there sufficient evidence Kinsella knowingly had sexual contact with S.B.?	State relies on semen on sheet, medical findings, and circumstantial evidence of intent.	Kinsella argues evidence does not prove knowing sexual contact or intent.	Yes; circumstantial and physical evidence support knowing sexual contact.
Did the trial court abuse its discretion in denying a new trial?	State contends record supports verdict and no miscarriage of justice.	Kinsella asserts weight of the evidence undermines verdict.	No; record supports elements and judgment not against the weight of the evidence.

State v. Wanner, 2010 ND 121 (ND) (sufficiency standard; review for reasonable inferences)
State v. Allen, 237 N.W.2d 154 (ND 1975) (waiver rule after defense presents evidence; full record review allowed)
State v. Neset, 216 N.W.2d 285 (ND 1974) (analyzing all evidence on sufficiency review (overruled on other grounds))
State v. Schaeffer, 450 N.W.2d 754 (ND 1990) (recognizes waiver rule in sufficiency review)
State v. Prociv, 417 N.W.2d 840 (ND 1988) (affirms full-record sufficiency review post-waiver)
Gisvold v. Windbreak, Inc., 2007 ND 54 (ND) (new-trial standard; weight-of-evidence considerations)
State v. Olson, 552 N.W.2d 362 (ND 1996) (circumstantial evidence admissible to prove intent)
State v. Sabo, 2007 ND 193 (ND) (circumstantial evidence can establish criminal intent)
State v. Bertram, 2006 ND 10 (ND) (circumstantial-evidence sufficiency and verdict accuracy)