State v. ForeidState v. Foreid
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[¶ 1] Derek Foreid appeals from an amended criminal judgment entered after a jury found him guilty of gross sexual imposition. We conclude the district court did not abuse its discretion in permitting the State to amend the information, and the court did not err in denying Foreid’s request for a jury instruction on a lesser included offense. We affirm.
I
[¶ 2] In September 2006, the State filed a complaint charging Foreid with gross sexual imposition for allegedly using force to compel K.N. to submit to sexual
[¶ 3] In January 2007, the State moved to amend the information to correct a mistake in the classification of the charged offense, stating:
Pursuant to an amendment to the gross sexual imposition statute in 2005, offenses charged under 12.1 — 20—03(l)(a) are classified as a AA Felony ... prior to August 2005, these offenses were a class A Felony. As such, a mistake was made in the charging document and should be amended to reflect the classification of AA Felony.
The amended information was attached to the motion to amend, which was filed and is included in the record. The amended information charged Foreid with gross sexual imposition under
[¶ 4] During the December 2007 jury trial, both Foreid and K.N. testified about what occurred on June 13, 2006. K.N. testified she was intoxicated, but she remembers waking up in the back of Fo-reid’s pickup truck with Foreid on top of her. She testified Foreid attempted to have sexual intercourse with her, and she tried to wiggle her hips and roll away from him to stop him but her arms felt like they were weighed down. K.N. testified she told Foreid no, that it hurt, and to get off her, but he penetrated her once and it was done. Foreid testified he had sexual intercourse with K.N., but it was consensual and she did not tell him to stop or that it hurt. Other witnesses who had spent time with Foreid and K.N. on June 13 and two physicians and a nurse who treated K.N. in the emergency room following the incident also testified. After both parties presented their cases, Foreid requested a jury instruction on the lesser included offense of sexual assault, and the court denied Foreid’s request. The jury found Foreid guilty, and he was sentenced to serve twenty years in prison with ten years suspended.
[¶ 5] The district court had jurisdiction under
II
[¶ 6] Foreid argues the district court erred in allowing the State to amend the information. Foreid also contends his substantive due process rights were violated when the criminal prosecution proceeded without the amended information properly filed and without a preliminary hearing or arraignment on the amended information.
A
[¶ 7] Foreid argues the district court erred in granting the State’s request to
[¶ 8] “Unless an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit an information to be amended at any time before the verdict or finding.”
[¶ 9] The initial information charged Foreid with gross sexual imposition under
An offense under this section is a class AA felony if in the course of the offense the actor inflicts serious bodily injury upon the victim, if the actor’s conduct violates subdivision a of subsection 1, or if the actor’s conduct violates subdivision d of subsection 1 and the actor was at least twenty-two years of age at the time of the offense.
All other violations of
[¶ 10] Foreid was charged with violating
[¶ 11] Further, Foreid was not prejudiced by the amended information.
Cf. State v. Loomer,
2008 ND 69, ¶ 11, 747 N.W.2d 113 (defendant was not prejudi-cially misled by the failure to cite the penalty statute in the information, the underlying charge in the amended information did not change, and defendant had sufficient notice of the possible application of the penalty statute);
Maghee,
573 N.W.2d at 6 (defendant was unable to show he was prejudiced by the amended information changing the charged offense from a class C felony to a class B felony, and he did not request a continuance or
B
[¶ 12] Foreid contends his due process rights were violated because the amended information was never properly filed and a preliminary hearing and arraignment were not held. Foreid did not raise this issue before the district court, but claims it is obvious error.
[¶ 13] An issue not raised before the district court, including a constitutional issue, generally will not be addressed on appeal unless the issue rises to that of an obvious error under
[¶ 14] A new preliminary hearing is not always required when an information is amended. “The purpose of a preliminary hearing is to determine whether there is probable cause for the charged offenses and to decide whether a trial should be held to determine the accused’s guilt or innocence.”
State v. Keener,
2008 ND 156, ¶ 26, 755 N.W.2d 462. A new preliminary hearing is not required when an information is amended if the amended information charges a crime under the same set of facts, with the same culpability requirements, and requires proof of the same elements as the initial information.
State v. Bourbeau,
250 N.W.2d 259, 266 (N.D.1977). Further, the right to a preliminary hearing is a statutory right, and the defendant may waive that right if he does not object to the information before entering a plea.
[¶ 15] A preliminary hearing was held, and Foreid was arraigned on the initial information charging him with gross sexual imposition under
Ill
[¶ 16] Foreid argues the district court erred in denying his request for a jury instruction on the lesser included offense of sexual assault. The State argues sexual assault is not a lesser included offense of gross sexual imposition.
[¶ 17] A defendant does not have a constitutional right to an instruction on a lesser included offense. State v. Keller, 2005 ND 86, ¶ 10, 695 N.W.2d 703. We are reluctant to require instruction on a lesser included offense because it may lead the jury to compromise and may result in less reliable verdicts. State v. Morales, 2004 ND 10, ¶ 18, 673 N.W.2d 250. A court should give a requested instruction on a lesser included offense if the offense is a lesser included offense of the greater, and if the evidence is such that a jury could rationally find the defendant not guilty of the greater offense and guilty of the lesser offense. Keller, at ¶ 14.
[¶ 18] A person is guilty of gross sexual imposition under
[¶ 19] “For a lesser-included-offense instruction, there must be evidence on which a jury could rationally find beyond a reasonable doubt that the defendant is not guilty of the greater offense and to find beyond a reasonable doubt that the defendant is guilty of the lesser.” Keller, 2005 ND 86, ¶ 31, 695 N.W.2d 703. The purpose of this requirement “is to avoid a jury conviction on the lesser offense based on sympathy for the defendant or an attempt to reach a compromise even though the evidence does not support such a conviction.” State v. Clinkscales, 536 N.W.2d 661, 664 (N.D.1995).
[¶ 20] Neither party disputes that Fo-reid engaged in sexual intercourse with K.N. The State argued and presented evidence that K.N. was forcibly raped, including testimony from K.N. that she said no, she told Foreid to stop, she said it hurt, and she tried to stop him but was unable to move her arms because they felt weighed down. Foreid contested only the issue of consent and testified K.N. had consented to the act and he did not hear her say no, to stop, or that it hurt. Because the only issue was consent, if the jury believed Foreid’s testimony that the act was consensual, it would create a defense to both offenses, and he could not be found guilty of either sexual assault or gross sexual imposition. See McDonell, 550 N.W.2d at 63-64. Under the facts of this case, the evidence would not permit a jury to rationally find Foreid guilty of sexual assault and not guilty of gross sexual imposition, and therefore Foreid was not entitled to a jury instruction on the lesser included offense.
IV
[¶21] We affirm, concluding the district court did not abuse its discretion in allowing the State to amend the information or err in denying Foreid’s request for a jury instruction on a lesser included offense.
[¶ 22] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.