Rourke v. State
2018 ND 137
| N.D. | 2018Background
- J. Erin Rourke was tried on gross sexual imposition and corruption/solicitation of minors; jury convicted on gross sexual imposition and acquitted on corruption/solicitation.
- On direct appeal Rourke challenged sufficiency of the evidence, but this Court affirmed because he failed to move for judgment of acquittal under N.D.R.Crim.P. 29 at trial and did not invoke obvious-error review. 2017 ND 102.
- Rourke filed a post-conviction relief (PCR) application alleging ineffective assistance of trial counsel, principally that counsel failed to move for judgment of acquittal under Rule 29, which he claimed forfeited his ability to challenge sufficiency on appeal.
- The PCR court held evidentiary hearings with Rourke and his two trial attorneys and denied relief, finding counsel’s performance reasonable and that, even if deficient, the result would not have changed because the judge would have denied a Rule 29 motion.
- Rourke appealed the denial, arguing counsel was ineffective as a matter of law for not moving for acquittal and urging this Court to replace Strickland review with a sufficiency review; the Court declined and affirmed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not moving for judgment of acquittal under N.D.R.Crim.P. 29 | Rourke: failing to move for Rule 29 forfeited appellate review of sufficiency and constituted per se ineffective assistance | State: no ineffective assistance where prosecution presented a prima facie case; failure to move can be reasonable strategy | Court: No ineffective assistance — counsel’s performance reasonable; even if deficient, no prejudice because judge would have denied the motion |
| Whether Strickland is the proper standard for PCR ineffective-assistance claims | Rourke: urged abandoning or modifying Strickland to permit direct sufficiency review | State: apply Strickland’s two-prong test | Court: Retained Strickland; declined to adopt alternate standard |
| Whether the record showed prosecution failed to present a prima facie case (making failure to move objectively unreasonable) | Rourke: asserted the State did not establish a prima facie case | State: maintained prima facie case was presented | Court: Evidence supported a prima facie case; no showing counsel’s choice was unreasonable |
| Whether the PCR court’s factual findings were clearly erroneous | Rourke: challenged the PCR court’s factual conclusions | State: PCR findings are supported and entitled to deference | Court: Findings supported by the record and not clearly erroneous; affirmed denial of PCR |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong ineffective-assistance test: deficient performance and prejudice)
- Booth v. State, 893 N.W.2d 186 (2017) (applies Strickland with deference and warns against hindsight second-guessing)
- State v. Yineman, 651 N.W.2d 648 (2002) (discusses preservation of sufficiency issues via Rule 29 motion in jury trials)
- State v. Jackson, 646 N.W.2d 676 (2002) (counsel not ineffective for failing to move for acquittal when prosecution presented a prima facie case)
- State v. Rourke, 893 N.W.2d 176 (2017) (direct appeal: defendant failed to preserve sufficiency challenge by not moving for judgment of acquittal)