State v. Gardner, 992 N.W.2d 535

Corey Lynn Gardner, daytime caregiver for a two‑month‑old, was charged with child abuse under N.D.C.C. § 14‑09‑22(1) for allegedly inflicting or allowing bodily injury to the infant.
The district court’s jury instructions listed the elements as including that the defendant “willfully inflicted or willfully allowed to be inflicted upon the child bodily injury.”
Gardner did not object to the jury instructions at trial and was convicted by a jury; she appealed, raising (1) instructional error (placement of “willfully” before “allowed”), (2) a unanimity claim concerning alternative means, and (3) insufficiency of the evidence.
The State defended the instructions as correctly stating the statutory culpability and argued the alternative means are nonseparate ways to commit the same offense.
The North Dakota Supreme Court reviewed the instructional claim for obvious error, concluded “willfully allowed” is consistent with statutory language and legislative history, held there was no unanimity problem because the statute lists alternative means, and affirmed sufficiency of the evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether inserting “willfully” before “allowed” in the jury instruction was erroneous (obvious error review)	Instruction accurately tracked the statute and "willfully" can modify "allowed"; supported by statutory definitions and legislative history	"Willfully allowed" is incongruous; insertion altered requisite mens rea and was plain error	No error: "willfully allowed" is proper; not obvious error; instruction stands
Whether the jury had to be unanimous as to which alternative (inflict vs. allow) proved guilt	Alternatives are nonseparate means of committing the same offense; unanimity as to the single offense suffices	Different jurors could have found different means, violating unanimity requirement	No unanimity violation: alternatives are means (not separate elements); Schad and state precedent control
Whether evidence was insufficient to support conviction	Evidence permitted a reasonable inference of guilt when viewed in favor of the verdict	Evidence did not exclude reasonable doubt; insufficient as a matter of law	Sufficient evidence to support conviction; conviction affirmed

Schad v. Arizona, 501 U.S. 624 (U.S. 1991) (alternative means may constitute a single offense so jury unanimity on the specific theory is not required)
State v. Gaddie, 971 N.W.2d 811 (N.D. 2022) (statutory interpretation principles and applying definitions across statutes)
State v. Anderson, 480 N.W.2d 727 (N.D. 1992) ("willfully" requires volition/conscious conduct)
State v. Trevino, 807 N.W.2d 211 (N.D. 2011) (applying culpability definitions from one statute to another)
State v. Pulkrabek, 900 N.W.2d 798 (N.D. 2017) (alternative means/unanimity analysis for statutory offenses)
State v. Rai, 924 N.W.2d 410 (N.D. 2019) (standard for reviewing sufficiency of the evidence)