State v. Aabrekke

2011 ND 131, 800 N.W.2d 284, 2011 N.D. LEXIS 143, 2011 WL 2698315
CourtNorth Dakota Supreme Court
DecidedJuly 13, 2011
DocketNo. 20100170
StatusPublished
Cited by26 cases

This text of 2011 ND 131 (State v. Aabrekke) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Aabrekke, 2011 ND 131, 800 N.W.2d 284, 2011 N.D. LEXIS 143, 2011 WL 2698315 (N.D. 2011).

Opinions

CROTHERS, Justice.

[¶ 1] Ivan Lee Aabrekke appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition and from the denial of his motions for a new trial and for a judgment of acquittal. We reverse and remand, holding the district court failed to correctly apply the law regarding the admissibility of evidence of prior bad acts.

I

[¶ 2] The State charged Aabrekke with gross sexual imposition under N.D.C.C. § 12.1-20-03(l)(d) for allegedly engaging in a sexual act with his thirteen-year-old granddaughter at his Minnewaukan home on August 16, 2009. Based on recorded statements and testimony at a preliminary hearing and without formal pretrial notice from the State as required under N.D.R.Ev. 404(b), Aabrekke moved to prevent the State from introducing evidence that he “has a history of engaging in various types of sexual activity with the [complainant] and that this activity has occurred over the years” and that “relatives of [Aabrekke] may have engaged in sexual acts with either the [complainant], or the [complainant’s] mother.” The district court denied Aabrekke’s pretrial motion and ruled the evidence may be admissible at trial to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

[¶ 3] At trial, the complainant testified Aabrekke used what was described as a “penis pump” to engage in a sexual act with her on the morning of August 16, 2009, while she, her mother and her brother were staying at Aabrekke’s house for the weekend. The complainant’s mother is Aabrekke’s daughter, and the complainant testified she did not tell her mother about the incident until after they returned to their Minnesota home because she knew Aabrekke “would deny it and say [mean] stuff.” The complainant’s mother reported the incident to Minnesota authorities, and the complainant provided statements about the incident to officials from Minnesota and North Dakota. A subsequent search of Aabrekke’s home resulted in the seizure of a “penis pump.” After the complainant testified at trial about the August 16, 2009 incident, the State asked the com[286]*286plainant whether she had ever told her mother about any sexual contacts made against her before that incident. The following colloquy occurred outside the presence of the jury:

“THE COURT: Okay, first what I want to hear from you, Mr. Wang, is what specifically are you soliciting with regard to the testimony you were getting from the witness?
“MR. WANG: Certainly. She had just described a horrifically significant act that has occurred in her life, and she leaves and goes to her mother and cries and doesn’t tell her mother about this. The fact is she has disclosed before, some nearly two years earlier, and it created a tremendous fracas in the family and—
“THE COURT: What was the event that supposedly occurred two years earlier?
“MR. WANG: There was digital penetration.
“THE COURT: By Mr. Aabrekke?
“MR. WANG: By or alleged by Mr. Aabrekke. Digital penetration which went on for a period of two years every month that she was there. Now that she reaches the age of thirteen, that’s when we have this — the act of — the sexual act.
“THE COURT: So it’s continuing.
“MR. WANG: So it’s continuing. But there was disclosure made two years ago. The mother’s testimony — the witness’s mother — will be that she confronted grandma and we believe the whole thing was taken care of. Now this girl is going to be attacked because they believe she’s lying. The only way that I can show the planning, the preparation, the intense grooming that led up to the events of the August 2009 weekend is to put that in. The jury is going to be sitting there, My God what’s wrong with this victim? She didn’t tell her mother. She waited a couple days. Why?
“THE COURT: Okay and—
“MR. WANG: That why can be answered.
“THE COURT: So she — you’re going to have mother testify about these events also?
“MR. WANG: She will.
“THE COURT: And about the confrontation with the family?
“MR. WANG: Mother will testify about the earlier disclosure that she thought she had, you know, mom and dad, grandpa and grandma convinced or in—
“THE COURT: Mm-hmm.
“MR. WANG: — in tune that this is under control.
“THE COURT: Okay.
“MR. WANG: And she’s also going to testify that she believed that grandpa was impotent and that this wasn’t going to be an issue.
“THE COURT: Okay, Mr. Jones, your objection then is what?
“MR. JONES: Okay, I did not object to the question that was asked because it was not a question directed specifically as to the defendant. The question was, have you ever told your mother— something to the effect of have you ever told your mother about bad touches before.
“THE COURT: Okay.
“MR. JONES: Okay, that’s one thing. But not only did the witness start to answer the question, which could have been answered yes or no, the witness began at that point to discuss what are allegations of—
“THE COURT: Okay, Mr. Jones, so your argument is that he can’t even [287]*287raise this with regard to the allegation of vaginal penetration?
“MR. JONES: Okay—
“THE COURT: Even if it was Mr. Aabrekke?
“MR. JONES: Our argument, Your Honor, is that evidence — as Rule 404 says, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
“THE COURT: That’s not showing character. That’s showing a—
“MR. WANG: Pattern.
“THE COURT: Of conduct.
“MR. JONES: Okay, it says, However, it may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
“MR. WANG: Thank you.
“THE COURT: Right.
“MR. JONES: Our position is that what they are attempting to do — and what they are attempting to do is to basically allege that there were prior acts, purportedly by Mr. Aabrekke, in an effort to support the fact that the act occurred as alleged by the victim — so-called victim at the time in question.
“THE COURT: Sure.
“MR.

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Bluebook (online)
2011 ND 131, 800 N.W.2d 284, 2011 N.D. LEXIS 143, 2011 WL 2698315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-aabrekke-nd-2011.