State v. Kinsella, 796 N.W.2d 678

Kinsella appeals a criminal judgment after a jury found him guilty of sexual assault and an order denying a new-trial motion.
The State charged Kinsella with sexual assault of his stepson/daughter S.B., alleging age over 22 and S.B. was seventeen or older on the date.
Trial evidence included S.B.’s medical exam showing redness/irritation, a semen-positive bed sheet with DNA matching Kinsella, and S.B.’s statements to police.
Kinsella testified, asserting his age was thirty-four, and his witnesses claimed S.B. was not afraid and later recanted.
The trial court denied a Rule 29(a) acquittal motion after the State rested, the defense presented its case, and the jury convicted Kinsella; a subsequent motion for a new trial was denied.
The circuit court affirmed, holding sufficient evidence supported each element of the offense and the waiver rule allowed review of the full record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the evidence proves the age element (over 22) beyond reasonable doubt	Kinsella argues the State failed to prove age over 22 in chief	Kinsella argues the State lacked proof of his age	Evidence showing Kinsella testified as over 22 supports inference of age
Whether the waiver rule allows review of the entire record after defense evidence	Kinsella relies on limited State’s-case evidence	Allen waiver rule permits full-record review after defense case	Court can review entire record to determine sufficiency of evidence
Whether there is sufficient evidence of knowingly sexual contact	Semen on sheet proves contact and intent	Intelligence of intent questioned; circumstantial evidence needed	Evidence of semen, medical findings, and testimony supports intent to have sexual contact
Whether the verdict is against the weight of the evidence and warrants a new trial	Weight of evidence undermines conviction	Record supports verdict; no miscarriage of justice	Trial court did not abuse discretion; evidence supports verdict and there is no miscarriage of justice
Whether the State proved every element beyond a reasonable doubt under §12.1-20-07(1-2)	State proved necessary elements including victim's age and defendant’s adulthood	Age element was not established beyond reasonable doubt	Record supports all elements and conviction stands

State v. Allen, 237 N.W.2d 154 (N.D.1975) (waiver rule permits full-record review after defense evidence)
State v. Neset, 216 N.W.2d 285 (N.D.1974) (consideration of all evidence when reviewing sufficiency (overruled on other grounds))
State v. Schaeffer, 450 N.W.2d 754 (N.D.1990) (waiver rule governs sufficiency review after denial of acquittal (cited with caveats))
State v. Wanner, 784 N.W.2d 143 (N.D.2010) (standard for reviewing sufficiency of the evidence)