State v. Buchholz

2004 ND 77, 678 N.W.2d 144, 2004 N.D. LEXIS 179, 2004 WL 772044
CourtNorth Dakota Supreme Court
DecidedApril 13, 2004
Docket20030275
StatusPublished
Cited by18 cases

This text of 2004 ND 77 (State v. Buchholz) 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. Buchholz, 2004 ND 77, 678 N.W.2d 144, 2004 N.D. LEXIS 179, 2004 WL 772044 (N.D. 2004).

Opinion

NEUMANN, Justice.

[¶ 1] Robert L. Buchholz appealed from a judgment entered upon a jury verdict finding him guilty of gross sexual imposition. We hold Buchholz waived review of issues about references at trial to other alleged wrongful acts by him, the statute of limitations did not bar the prosecution, the State did not violate a sequestration order, and Buchholz waived his right to receive an adult sexual offender evaluation more than ten days before sentencing. We affirm.

I

[¶ 2] In October 2002, the State charged Buchholz with gross sexual imposition under N.D.C.C. § 12.1-20-03(2), for allegedly engaging in sexual contacts between June 14, 1985, and December 31, *146 1991, with his stepdaughter, who was less than fifteen years old when the contacts were alleged to have occurred. The complainant was born in 1979. She testified Buchholz engaged in two separate instances of sexual contact with her when she was eleven or twelve years old, and he also frequently entered her bedroom during the night and fondled her breasts. According to the complainant, she had tried to forget about the incidents, but she decided to report them to law enforcement officials more than ten years later in October 2002, when her twelve-year-old half-sister returned home from a scheduled visitation with Buchholz with a hickey. Buchholz denied sexual contact with the complainant. He claimed the complainant was not credible because she “hated” him.

[¶ 3] A jury found Buchholz guilty of gross sexual imposition. At sentencing, Buchholz moved for a stay of execution, judgment of acquittal, new trial, arrest of judgment, and post-conviction relief. The court denied Buchholz’s motions, and he appealed from the judgment of conviction. 1

II

[¶ 4] On appeal from the judgment of conviction, Buchholz argues the trial court erred in denying his motion to suppress evidence of other alleged wrongful acts and in permitting prosecution witnesses to testify about the alleged wrongful acts. He claims the court erred in allowing the admission of evidence that he was responsible for a hickey on his daughter’s neck during her scheduled visitation with him in October 2002. He argues the court ignored its obligations under N.D.R.Ev. 404(b) and 403, and the State’s “true motive” in using that evidence was to inflame and prejudice the jury. He also argues the court refused to give a limiting jury instruction on that evidence.

[¶ 5] In a pretrial motion, Buchholz sought to suppress “all testimony, references, allegations and other evidence pertaining to an incident wherein” he was alleged to have given his daughter a hickey and “all testimony, references, allegations and other evidence” pertaining to incidents where he observed a stepdaughter from his second marriage while she was nude or in a partially-clad condition. Buchholz argued the evidence was not admissible under N.D.R.Ev. 404(b) and 403. The State argued evidence about the hickey was admissible under N.D.R.Ev. 404(b) to establish the complainant’s motive for reporting the allegations of gross sexual imposition to law enforcement authorities in October 2002, after waiting more than ten years.

[¶ 6] The trial court issued a pretrial order denying Buchholz’s motion to suppress. The court recognized evidence of other crimes, wrongs, or acts was generally not admissible to prove the character of a person, but may be admissible for other purposes and concluded “any ruling by the Court would be premature.” During trial, Buchholz did not object to any references to, or testimony about, the hickey, and the trial court did not have an opportunity to rule on that evidence under the requirements of N.D.R.Ev. 404(b) and 403. See State v. Christensen, 1997 ND 57, ¶ 7, 561 *147 N.W.2d 631 (stating admissibility of evidence of prior bad acts subject to three-prong requirement under N.D.R.Ev. 404(b) and to balancing analysis under N.D.R.Ev. 403); State v. Micko, 393 N.W.2d 741, 744-45 (N.D.1986) (same).

[¶ 7] In State v. Bell, 2002 ND 130, ¶ 9, 649 N.W.2d 243, we said:

A touchstone for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court, so the trial court could intelligently rule on it. State v. Freed, 1999 ND 185, ¶ 13, 599 N.W.2d 858. In Freed, we explained under Rule 103(a)(1), N.D.R.Ev., “error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.” Id. A party must object at the time the alleged error occurs, so the trial court may take appropriate action if possible to remedy any prejudice that may have resulted. City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring). Failure to object acts as a waiver of the claim of error. Id.

[¶ 8] In State v. Anderson, 2003 ND 30, ¶ 7, 657 N.W.2d 245, a trial court denied a defendant’s motion in limine to exclude letters written by the defendant to the victim. At trial, the State offered two letters into evidence without objection by the defendant. Id. We held the defendant had failed to preserve the issue about the admissibility of the letters, stating:

A motion in limine seeking an evidentia-ry ruling must be'decided without the benefit of evaluating the evidence in the context of trial. A renewed objection at the time the evidence is offered focuses the court on the objection in the trial context at which time both the relevance and the potential for prejudice will be more discernible. A failure to object at trial “acts as a waiver of the claim of error.”

Id.

[¶ 9] Here, the trial court denied Buchholz’s pretrial motion to suppress evidence about the hickey, stating “any ruling by the Court would be premature.” The court’s decision contemplated reconsideration of the issue when it was presented in the context of the trial. However, Buch-holz did not object to any references to the hickey at trial and did not provide the trial court with an opportunity to rule on the issue in the context of the trial. See Anderson, 2003 ND 30, ¶7, 657 N.W.2d 245. A party must object when the alleged error occurs at trial so the, court can take appropriate action, if possible, to remedy any prejudice that may have resulted. Id. We conclude Buchholz’s ’ failure to object at trial operates as a waiver of any claimed error about the hickey.

[¶ 10] Buchholz claims the trial court ■ also allowed the jury to hear evidence he had “peeked” at other girls and observed a stepdaughter while she was nude or in a partially-clad condition. However, the evidence referred to by ■Buchholz' was elicited without objection during his cross-examination of witnesses. Buchholz neither objected, nor moved to strike the references to that evidence. See N.D.R.Ev. 103(a)(1) ■ (“Error

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Cite This Page — Counsel Stack

Bluebook (online)
2004 ND 77, 678 N.W.2d 144, 2004 N.D. LEXIS 179, 2004 WL 772044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-buchholz-nd-2004.