877 N.W.2d 46
N.D.2016Background
- Defendant Corey Costa was charged with gross sexual imposition for alleged vaginal intercourse with a person under 15 on December 11, 2012; jury convicted.
- Complainant testified she met Costa via Facebook, spent time at his welding shop and apartment that night, and had intercourse; reported incident two days later and had a medical exam.
- Costa denied intercourse, saying they were together briefly, she used his bathroom, then left.
- Forensic testing: vaginal/oral swabs were PSA-negative and no spermatozoa were microscopically observed; two cuttings from the complainant’s underwear were presumptively PSA-positive.
- Y‑chromosomal testing produced a partial male profile from one underwear cutting that matched Costa’s known sample as the predominant contributor.
- At trial Costa objected to portions of the prosecutor’s closing argument; the court overruled and later rejected his appeal challenging the prosecutor’s statements and alleged vouching for DNA evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor misstated evidence by arguing Costa’s semen was on complainant’s underwear | The prosecutor argued it was a reasonable inference from PSA presumptive positives and the Y‑chromosomal match that Costa’s semen was deposited on her underwear after intercourse | Costa argued there was no direct microscopic confirmation of semen on the underwear, so the prosecutor misstated the evidence and denied a fair trial | Prosecutor’s inference was permissible from the admitted PSA and Y‑chromosomal results; not improper and district court did not abuse discretion |
| Whether prosecutor improperly vouched for DNA evidence (Y‑chromosomal profile) | The State acknowledged limitations of Y‑chromosomal testing but contended the presence of Costa’s Y profile in the underwear supported its theory | Costa claimed the prosecutor vouched (expressed personal confidence) in the DNA results, warranting reversal absent objection | No plain or obvious error: context showed acknowledgement of limitations rather than impermissible vouching; no reversible error |
| Whether lack of further jury explanation about DNA required remedy | The State contended the jury had access to full testimony and exhibits and that no additional instruction was necessary | Costa argued jury note requesting more DNA explanation showed confusion that prejudiced him | Court found no error; jury admonition and instructions sufficed and jury is presumed to follow instructions |
| Standard for reviewing prosecutor argument claims | N/A—procedural issue for appellate review | Costa sought reversal for improper argument, some issues raised without contemporaneous objection | Court applied abuse-of-discretion standard for preserved objections and plain-error framework for unpreserved ones; no reversible error found |
Key Cases Cited
- State v. Ebach, 589 N.W.2d 566 (N.D. 1999) (arguments limited to facts in evidence and reasonable inferences)
- State v. Evans, 593 N.W.2d 336 (N.D. 1999) (criteria for assessing prosecutor comments in closing)
- United States v. Young, 470 U.S. 1 (U.S. 1985) (prosecutor comments can suggest evidence outside the record and risk juror deference to government)
- State v. Mehralian, 301 N.W.2d 409 (N.D. 1981) (improper factual statements by prosecutor presumed prejudicial unless harmless)
- State v. Olander, 575 N.W.2d 658 (N.D. 1998) (plain‑error framework and factors for noticing forfeited errors)