923 N.W.2d 123
N.D.2019Background
- Richard Powley was charged with two counts of gross sexual imposition (class AA felonies) based on videos seized from his phone recorded June 3–5, 2017.
- Powley moved under N.D.R.Ev. 412 to admit five earlier videos (of eight total) to show prior consensual sexual behavior; the State relied on three later videos to prove nonconsensual acts.
- The district court granted in part Powley’s Rule 412 motion and issued an order in limine: it excluded Videos 1–5 entirely, limited Video 6 to the portion after the victim regained consciousness, and excluded Videos 7–8.
- The court excluded portions showing the victim asleep/unconscious reasoning such evidence could mislead the jury on the statutory element of being "compelled by force" under N.D.C.C. § 12.1-20-03(1)(a).
- The State moved to reconsider and to amend the information to add subsection (1)(c) (unawareness/unconsciousness) but the court denied both motions, finding (1)(a) and (1)(c) to be different offenses.
- The State appealed both rulings; the Supreme Court dismissed the appeal for lack of jurisdiction and declined to exercise supervisory jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order in limine excluding/limiting video evidence is appealable under N.D.C.C. § 29-28-07(5) | The order functionally suppressed evidence and is appealable as a suppression order | The order was an evidentiary ruling (in limine) not a suppression for illegal seizure, so not appealable | Not appealable under § 29-28-07(5); appeal dismissed for lack of jurisdiction |
| Whether the Court should exercise supervisory jurisdiction to review the in limine ruling | State asked the Court to issue a writ due to inability to appeal and alleged unfair exclusion | Powley argued ordinary limits on appellate jurisdiction apply and no extraordinary circumstances exist | Court declined to exercise supervisory jurisdiction (no extraordinary circumstances) |
| Whether the district court erred in denying the State’s motion to amend the information to add N.D.C.C. § 12.1-20-03(1)(c) | Amendment would not add a different offense but an alternative theory of gross sexual imposition; no prejudice to defendant | The court viewed (1)(a) and (1)(c) as different offenses with different elements (force vs. victim unaware/unconscious) | Denial of motion to amend is not appealable; court also declined supervisory review and affirmed denial as not warranting extraordinary relief |
| Whether supervisory relief is warranted because the State may have no adequate remedy after trial | State asserted inability to appeal if acquittal or practical barriers post-trial justify writ | Court noted supervisory writs are rare and require extraordinary circumstances or important public interest | Denied; routine discretionary trial rulings do not meet standard for supervision |
Key Cases Cited
- State v. Simon, 510 N.W.2d 635 (N.D. 1994) (pretrial motion in limine excluding evidence is not appealable as suppression under § 29-28-07(5))
- State v. Miller, 391 N.W.2d 151 (N.D. 1986) (statutory construction of appealable suppression orders)
- Estate of Gassmann, 867 N.W.2d 325 (N.D. 2015) (pretrial exclusion by motion in limine is preliminary and does not eliminate need for trial offer of proof)
- State v. Stoppleworth, 667 N.W.2d 586 (N.D. 2003) (trial court has broad discretion over evidentiary rulings; abuse of discretion standard)
- City of Fargo v. Cossette, 512 N.W.2d 459 (N.D. 1994) (distinguishing suppression for illegal seizure from exclusion under rules of evidence)
- State v. Holte, 631 N.W.2d 595 (N.D. 2001) (example of this Court exercising supervisory jurisdiction where direct appeal unlikely and issue extraordinary)
- State v. Romanick, 890 N.W.2d 803 (N.D. 2017) (exercise of supervisory writ to allow correction of a complaint in an extraordinary public-interest case)
- State v. Carlson, 881 N.W.2d 649 (N.D. 2016) (abuse of discretion standard for amending an information under Rule 7(e))