State of North Dakota, Plaintiff and Appellee v. Corey Lynn Gardner, Defendant and Appellant
No. 20220360
IN THE SUPREME COURT STATE OF NORTH DAKOTA
JUNE 21, 2023
2023 ND 116
FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT STATE OF NORTH DAKOTA
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Nathan K. Madden, Assistant State‘s Attorney, Williston, ND, for plaintiff and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
No. 20220360
Bahr, Justice.
[¶1] Corey Lynn Gardner appeals from a criminal judgment entered after a jury convicted her of child abuse in violation of
I
[¶2] Gardner was charged with child abuse in violation of
[A] parent, adult family or household member, guardian, or other custodian of any child, who willfully inflicts or allows to be inflicted upon the child mental injury or bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1-01-04 is guilty of a class C felony except if the victim of an offense under this section is under the age of six years in which case the offense is a class B felony.
[¶3] The district court‘s opening instructions describe the charged offense as: “Corey Lynn Gardner, the daytime caregiver to Jane Doe, age two months, inflicted or allowed to be inflicted bodily injury on Jane Doe . . . .” The closing instructions state the essential elements of abuse of a child as:
The State‘s burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about November 6, 2018, in Williams County, North Dakota;
2) The Defendant, Corey Lynn Gardner;
3) Was an other custodian of Jane Doe, a minor child, under the age of six years; and
4) Willfully inflicted or willfully allowed to be inflicted upon the child, bodily injury.
II
[¶4] Gardner argues the jury instructions incorrectly informed the jury of the law because the instructions improperly state the culpability level in the essential elements as “willfully inflicted or willfully allowed to be inflicted upon the child.” Gardner acknowledges she did not object to the instructions and, thus, did not preserve the issue for appellate review. However, she asks this Court to review the instructions under the obvious error standard. She argues the district court‘s insertion of “willfully” before “allowed to be inflicted” is obvious error.
[¶5] Because Gardner did not preserve this issue for appeal, the alleged error will only be reviewed for obvious error. See State v. Watts, 2023 ND 47, ¶ 19, 988 N.W.2d 254 (stating when the defendant fails to properly object to a proposed jury instruction the alleged error is not preserved for appeal and the instruction will only be reviewed for obvious error); State v. Schaf, 2023 ND 81, ¶ 17, 989 N.W.2d 473 (same). “To establish an obvious error, the defendant must show: (1) error; (2) that is plain; and (3) the error affects the defendant‘s substantial rights.” State v. Smith, 2023 ND 6, ¶ 5, 984 N.W.2d 367 (cleaned up). “To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. There is no obvious error when an applicable rule of law is not clearly established.” State v. Lott, 2019 ND 18, ¶ 8, 921 N.W.2d 428 (quoting State v. Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 774). “We have discretion in deciding whether to correct an obvious error, and we should exercise that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Smith, at ¶ 5 (cleaned up). Sustaining a conviction based on jury instructions that do not require findings on every essential element would violate due process and seriously affect the fairness, integrity, and public reputation of criminal proceedings. Id. at ¶ 18.
[¶6] “Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.” State v. Martinez, 2015 ND 173, ¶ 8, 865 N.W.2d 391 (cleaned up). “We review the instructions as
[¶7] We must review the statute to assure the jury instructions correctly and adequately inform the jury of the applicable law. “The construction of a criminal statute presents a question of law that is fully reviewable on appeal.” Gaddie, 2022 ND 44, ¶ 17.
Our primary goal in interpreting statutes is to ascertain the Legislature‘s intentions. In ascertaining legislative intent, we first look to the statutory language and give the language its plain, ordinary and commonly understood meaning. We interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage. When a statute‘s language is ambiguous because it is susceptible to differing but rational meanings, we may consider extrinsic aids, including legislative history, along with the language of the statute, to ascertain the Legislature‘s intent. We construe ambiguous criminal statutes against the government and in favor of the defendant.
Id. (cleaned up).
[¶8] According to Gardner, “willful conduct” and “allowance” are incongruent; she asserts one cannot allow something to happen if she does not know it is occurring. Gardner provides no authority showing, generally or specifically as to
[¶9] Furthermore, the Legislature has criminalized willful allowance in other areas of the Century Code. In 2019, the Legislature amended
No person may place, erect, or operate a sprinkler irrigation system, center pivot irrigation system, or other irrigation works or equipment upon or across any highway, street, or road or in such a manner as to willfully allow water from the irrigation works or equipment to flow or fall upon any highway, street, or road.
(Emphasis added.)
[¶10] Finally, the legislative history of
1. Except as provided in subsection 2 or 3, a parent, adult family or household member, guardian, or other custodian of any child, who willfully
commits any of the following offensesinflicts or allows to be inflicted upon the child mental injury or bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1-01-04 is guilty of a class C felony except if the victim of an offense undersubdivision athis section is under the age of six years in which case the offense is a class B felony:
a. Inflicts, or allows to be inflicted, upon the child, bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1 01-04 or mental injury.
b. Fails to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child‘s physical, mental, or emotional health, or morals.
c. Permits the child to be, or fails to exercise reasonable diligence in preventing the child from being, in a disreputable place or associating with vagrants or vicious or immoral persons.
d. Permits the child to engage in, or fails to exercise reasonable diligence in preventing the child from engaging in, an occupation forbidden by the laws of this state or an occupation injurious to the child‘s health or morals or the health or morals of others.
2015 N.D. Sess. Laws ch. 127, § 3. Thus, prior to the amendment, “willfully” modified all of the listed offenses, including “[i]nflict[ing], or allow[ing] to be inflicted, upon the child, bodily injury, substantial bodily injury, or serious bodily injury as defined by section 12.1-01-04 or mental injury.”
[¶11] Section
[¶12] We conclude the district court‘s use of “willfully allowed to be inflicted” in the jury instructions is not error, obvious or otherwise.
[¶13] Gardner argues the jury instructions combined two alternative methods of child abuse, which did not assure the defendant a unanimous verdict. She argues the jury instructions allowed the jury to convict her of the crime without all the jurors agreeing on which of the underlying actions constituted child abuse beyond a reasonable doubt.
[¶14] All verdicts in criminal cases must be unanimous.
[¶15] Gardner argues the instructions were incorrect because different jurors could have found Gardner inflicted bodily injury, while others could have found she allowed bodily injury to be inflicted. We analyzed similar arguments under the theft statute and a disorderly conduct ordinance. See Pulkrabek, 2017 ND 203 (analyzing the theft statute under
[¶16] In Schad, the Supreme Court explained “legislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes.” 501 U.S. at 636 (footnote omitted). “If a State‘s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.” Id.
[¶18] Similar to the disorderly conduct ordinance and the theft statute, the North Dakota Legislature chose to enumerate two alternative means of committing child abuse, without intending to define separate elements or crimes. This is evidenced by not only the legislative history of
[¶19] The jury was not required to unanimously agree upon which of the two alternative means of committing child abuse—Gardner inflicting bodily injury or Gardner allowing bodily injury to be inflicted—it believed the State proved beyond a reasonable doubt.
[¶20] Gardner argues insufficient evidence supports the conviction. Gardner failed to meet her burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. See State v. Rai, 2019 ND 71, ¶ 13, 924 N.W.2d 410 (explaining the defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict). Based on the record, sufficient evidence allows a jury to draw a reasonable inference in favor of conviction. We summarily affirm under
V
[¶21] We affirm the judgment.
[¶22] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr