909 N.W.2d 701
N.D.2018Background
- Amira Gunn exchanged >700 private messages with Calvin Till on MeetMe in Nov 2015; in portions Gunn gave explicit instructions on grooming and sexually assaulting Till's young daughter and neighbor children.
- Gunn admitted the conversations and that she believed Till's daughter was about six; she characterized some messages as role‑playing.
- Detective testimony described an early role‑play phase but concluded later messages reflected Gunn and Till in their real identities, with Till reporting he was assaulting his daughter in real time.
- Gunn was tried for attempted gross sexual imposition (class A felony) as an aider under the criminal attempt statute; the jury convicted and the district court deferred imposition of sentence for five years.
- Gunn appealed arguing (1) insufficient evidence/no victim, (2) her speech was First Amendment protected, and (3) jury instructions misstated required culpability. The Supreme Court of North Dakota affirmed.
Issues
| Issue | Plaintiff's Argument (Gunn) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Sufficiency of evidence / existence of victim | No evidence a real victim existed; Till did not actually commit gross sexual imposition, so Gunn could not be an aider | Attempt statute does not require the principal to have committed the crime; evidence showed messages instructing real‑time assault and identity reversion from role‑play | Evidence sufficient; conviction may rest on attempted aiding even if principal did not complete the crime |
| First Amendment protection of messages | Messages were protected speech (sexual expression/role‑play/obscenity defense) | Messages were obscene and, more importantly, were integral to criminal attempt (advocated imminent lawless action; intended to aid a crime) | Messages not protected: obscene and integral to the commission of a crime; admissible and convicting evidence |
| Jury instructions / culpability for attempt | Instruction should have required the jury find Gunn acted "knowingly" in engaging in conduct making her an accomplice | Statute requires conduct "intending to aid" another to commit a crime; instruction tracked statutory language and defined intent knowingly/intentionally | Instructions proper: they followed the attempt statute and correctly defined culpability (intending = intentional), no reversible error |
| Admissibility of conversations at trial | Conversations should have been excluded as protected speech | Conversations were admissible because they were integral to criminal conduct and met obscenity criteria/context showed intent to aid | Conversation evidence admissible; trial rulings on admissibility affirmed |
Key Cases Cited
- State v. Montplaisir, 869 N.W.2d 435 (N.D. 2015) (standard for reviewing sufficiency of the evidence)
- State v. O'Toole, 773 N.W.2d 201 (N.D. 2009) (evidence reviewed in light most favorable to verdict)
- Saari v. State, 893 N.W.2d 764 (N.D. 2017) (accomplice liability may extend to electronic instruction)
- State v. Brossart, 858 N.W.2d 275 (N.D. 2015) (framework for assessing First Amendment protections in criminal cases)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (U.S. 2002) (limits on First Amendment where child pornography and unprotected categories are implicated)
- Reno v. ACLU, 521 U.S. 844 (U.S. 1997) (reciting obscenity/Miller test framework)
- Miller v. California, 413 U.S. 15 (U.S. 1973) (establishing the three‑part obscenity test)
- Brandenburg v. Ohio, 395 U.S. 444 (U.S. 1969) (speech advocating imminent lawless action is unprotected)
- State v. Backlund, 672 N.W.2d 431 (N.D. 2003) (speech integral to criminal conduct not protected)
- State v. Rufus, 868 N.W.2d 534 (N.D. 2015) (discussing levels of culpability; intentional is highest)