State v. Martinez, 865 N.W.2d 391

Background

Jose M. Martinez was tried on three separate counts of gross sexual imposition (same victim, alleged three distinct incidents at three locations in his residence).
The complaint described different underlying acts for each count (living room futon, bunk bed, Martinez’s bedroom); the complaint was not given to the jury or read in full at trial.
Defense requested the jury be given distinguishing information (or the complaint) for each count; the court refused, reasoning location/time were not elements and only essential elements must be instructed.
Jury instructions labeled Counts One–Three as separate offenses and listed identical essential elements for each count (each described only a sexual act during a general time period), but did not identify the specific underlying act for each count or tell jurors they must unanimously agree on the particular act underlying each count.
Jury convicted Martinez on one count, hung on the other two; Martinez appealed arguing due process/unanimity error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury instructions failed to require jury unanimity as to the specific underlying act for each count	State: instructions told jury counts were separate and listed elements for each count; no more specificity required because location/time are not elements	Martinez: instructions lacked factual identification of which act corresponded to each count and failed to require juror unanimity on the particular act underlying each count, causing risk of a non‑unanimous/patchwork verdict	Court reversed: instructions were obviously erroneous because they did not identify or distinguish the specific act for each count nor require unanimous agreement on the act, prejudicing Martinez and entitling him to a new trial
Whether Martinez’s request for an interpreter should have been granted	State: court found Martinez could understand proceedings in English; no interpreter required	Martinez: had limited English proficiency and requested interpretive services to understand proceedings	Held for State: trial court did not abuse discretion in denying interpreter given findings Martinez was fluent and could comprehend; no further timely request made
Whether denial of bill of particulars was error	State: complaint sufficiently described acts, victim age, locations; time is not an element	Martinez: needed more specific timing/details to prepare defense because charges were not continuous-abuse counts	Held for State: court did not abuse discretion; complaint and subsequent clarification sufficed to prepare defense
Whether exclusion of testimony about victim’s sexual history under Rule 412 was erroneous	State: Rule 412 bars evidence of other sexual behavior; no pretrial 412 motion made to admit such evidence	Martinez: sought to impeach with victim’s reported lack of prior sexual activity (argued it was evidence of lack of activity, not prior sexual behavior)	Held for State: trial court did not abuse discretion excluding the inquiry under Rule 412 given lack of pretrial notice and limited probative value vs. Rule’s protections

Key Cases Cited

State v. Pavlicek, 819 N.W.2d 521 (N.D. 2012) (jury instructions must correctly and adequately state law)
State v. Erickstad, 620 N.W.2d 136 (N.D. 2000) (preservation and plain‑error review for jury instructions)
State v. Mathre, 603 N.W.2d 173 (N.D. 1999) (definition and cautious application of obvious/plain error)
State v. Flanagan, 680 N.W.2d 241 (N.D. 2004) (jury must unanimously agree on elements of gross sexual imposition)
State v. Marcum, 480 N.W.2d 545 (Wis. Ct. App. 1992) (lack of specificity in verdict forms/instructions can produce patchwork verdicts and unanimity problems)
People v. Cardamone, 885 N.E.2d 1159 (Ill. App. Ct. 2008) (failure to require unanimous agreement on specific act can violate unanimity)
State v. Celis-Garcia, 344 S.W.3d 150 (Mo. 2011) (unanimity requirement and need to identify an underlying act for each count)
Baker v. State, 948 N.E.2d 1169 (Ind. 2011) (applying either/or rule: state must elect act or jury must unanimously agree on act for each count)