971 N.W.2d 811
N.D.2022Background
- Defendant David Gaddie was charged with four counts of gross sexual imposition against a victim under 15 (Jan 2015–Dec 2018): Count I (tongue to vulva), Count II (penile penetration of vulva), Count III (touching breasts and/or vulva), Count IV (penile touching of vulva).
- Victim testified and forensic interview recordings were admitted; Gaddie maintained the victim fabricated allegations.
- Jury convicted Gaddie on all four counts; Gaddie appealed, challenging jury instructions, unanimity requirement, and the use of the mens rea term “willfully.”
- Gaddie did not object to the jury instructions at trial; appellate review therefore proceeded under the obvious-error standard (N.D.R.Crim.P. 52(b)).
- The district court read the counts individually and provided separate verdict forms, but grouped elements for the sexual-act counts together and grouped elements for the sexual-contact counts together in the element instructions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gaddie) | Held |
|---|---|---|---|
| Whether grouping elements in the instructions was misleading/confusing | Instructions read as a whole adequately informed jury of four separate offenses; no confusion | Grouping elements for like offenses merged separate crimes and could mislead jury | Court: Not reversible error; taken together (individual counts read and separate verdict forms) instructions were adequate |
| Whether absence of a unanimity instruction permitted non‑unanimous agreement on underlying acts | Sexual-act counts were factually distinct (tongue vs penis) so no unanimity problem; sexual-contact counts required closer analysis | Lack of unanimity instruction allowed jurors to convict based on different underlying acts without unanimous agreement | Court: No unanimity error as to Counts I & II; unanimity error for Count III (touching "breasts and/or vulva") — conviction for Count III reversed; other convictions affirmed |
| Whether including the mens rea term "willfully" was improper for a specific‑intent crime | "Willfully" (volitional act) is not inconsistent with an element requiring specific purpose; jury was also instructed on the statutory definition of sexual contact (purpose to arouse/gratify) | Gross sexual imposition requires specific intent; use of "willfully" could permit conviction without finding specific intent | Court: Gross sexual imposition requires specific intent, but "willfully" (volitional element) is consistent and the instructions correctly included both volition and the statutory specific-purpose element; no reversible error and issue largely waived/invited |
| Whether claimed instructional confusion about "willfully" was preserved | State: Defendant proposed similar language; no timely objection | Defendant: Instruction phraseology confused jury about mens rea | Court: Issue waived (defendant invited/used same language); no reversal |
Key Cases Cited
- State v. Martinez, 865 N.W.2d 391 (N.D. 2015) (unanimity instruction required where counts are not factually distinguished)
- State v. Vance, 537 N.W.2d 545 (N.D. 1995) (time/place need not be pleaded precisely unless essential; distinction between sexual act and contact)
- State v. Cummins, 347 N.W.2d 571 (N.D. 1984) (earlier characterization of gross sexual imposition; superseded by later statutory change)
- State v. McCreary, 967 N.W.2d 447 (N.D. 2021) (statutory interpretation principles)
- State v. Swanson, 930 N.W.2d 645 (N.D. 2019) (specific‑intent requirement and conspiracy/attempt analyses)
- Pemberton v. State, 959 N.W.2d 891 (N.D. 2021) (attempt/incognizable‑offense discussion where intended result is required)
- State v. Webster, 891 N.W.2d 769 (N.D. 2017) (State’s burden to show constitutional error harmless beyond a reasonable doubt)
- State v. Anderson, 480 N.W.2d 727 (N.D. 1992) (definition of "willfully" requires conscious/volitional act)