State v. Igou

2005 ND 16, 691 N.W.2d 213, 2005 N.D. LEXIS 19, 2005 WL 100845
CourtNorth Dakota Supreme Court
DecidedJanuary 19, 2005
Docket20040093
StatusPublished
Cited by16 cases

This text of 2005 ND 16 (State v. Igou) 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. Igou, 2005 ND 16, 691 N.W.2d 213, 2005 N.D. LEXIS 19, 2005 WL 100845 (N.D. 2005).

Opinion

MARING, Justice.

[¶ 1] Orvin McKinley Igou, III, appealed from a judgment of conviction entered upon a jury verdict finding him guilty of gross sexual imposition, solicitation of a minor, and failure to register as a sex offender. We hold there is substantial evidence to support Igou’s convictions on all counts. We further hold, however, that Igou’s conviction for solicitation of a minor was wrongly designated a class C felony, instead of a class A misdemeanor. We, therefore, affirm all convictions, but reverse and remand for resentencing on all counts, in consideration that Igou’s conviction on count II is a class A misdemeanor.

*215 I. Facts

[¶ 2] Igou moved to Bismarck in 2002 and registered with the Bismarck Police Department as a sexual offender for a prior conviction in Nevada of possession of child pornography. While in Bismarck, Igou met M.T. (“Mary,” a pseudonym) with whom he began a relationship, through which he met Mary’s daughter, N.T. (“Nancy,” a pseudonym), age 15, and her friend, K.W. (“Kate,” a pseudonym), age 14.

[¶ 3] In June 2003, Igou was charged with sexually assaulting Kate and soliciting sex from Nancy. He was also charged with failing to register as a sex offender for not notifying the Bismarck Police Department that he had changed his Bismarck address. A jury found Igou guilty on all counts.

II. Sufficiency of the Evidence

[¶ 4] On appeal Igou asserts there is insufficient evidence to support his convictions. At the close of the State’s case, Igou moved for a judgment of acquittal under N.D.R.Crim.P. 29, thereby preserving the issue of sufficiency of the evidence. See State v. Mathre, 2004 ND 149, ¶ 19, 683 N.W.2d 918. The motion was denied.

[¶ 5] Our standard, of review is well established for cases in which a defendant challenges the sufficiency of the evidence to support a criminal conviction. A defendant bears the burden of showing the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. State v. Wilson, 2004 ND 51, ¶ 6, 676 N.W.2d 98. On appeal, this Court merely reviews the record to determine if there is competent evidence that allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. Id. A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor. State v. Knowels, 2003 ND 180, ¶ 6, 671 N.W.2d 816.

A. Gross Sexual Imposition

[¶ 6] The jury found Igou guilty of gross sexual imposition, a class A felony, in violation of N.D.C.C. § 12.1 — 20—03(l)(d), which provides:

1. A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if:
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d. The victim is less than fifteen years old.

[¶ 7] In viewing the evidence most favorable to the verdict, we conclude it is sufficient to support Igou’s conviction of gross sexual imposition for having sex with Kate, who at the time was 14 years old. The evidence shows that during Memorial Day weekend in 2003, Igou, Mary, Nancy, and Kate all went camping at a nearby lake. The four of them slept in one large tent. Kate testified that late in the evening, when they were all lying in the tent, Igou began touching her vaginal area under her clothes. Nancy testified that Kate “grabbed my hand and had me feel her pants,- and his [Igou’s] -hand was in her pants.” At 2:30 a.m., Igou drove Kate back to Bismarck so she could deliver newspapers and Nancy went with them. Kate and Nancy both testified that when they arrived in Bismarck Igou stopped at his apartment to take out his contact lenses. Nancy testified “we were going to go to his place, and they were going to have sex, and then we were going to drop her off and then' come back and finish, me and him were going to.” Kate testified that *216 she and Igou had sex in his bedroom while Nancy watched television in the living-room. The three of them then left Igou’s apartment and Igou dropped off Kate at her house so she could deliver her paper route. Nancy testified that she slid into the front seat when Kate got out of the car and “then we were driving, and he asked me if I wanted to have sex, and then I said no I didn’t, that I wanted my boyfriend to be my first.”

[¶ 8] Nancy testified that at first she was afraid to tell anyone, because Igou said he would kill them if they told. However, about a week later, Nancy told her boyfriend’s mother about what had happened. The police were then notified.

[¶ 9] Mary testified that about a week after the camping trip, Nancy told her what happened:

[S]he told me the reason why she was sick to her stomach because, she goes something happened between [Igou] and [Kate]. And I’m going what’s going on here, and she goes, she goes, well she told me they did it. And that’s how she said it. And I’m going really. I said really. I said, and then I really got upset. And [Nancy] told me that he had asked her to do it. And she had said no. And she demanded to come back to the campground where I was. And then she told me that he said, [Igou] had said if they were to tell anybody, that he was going to kill them.

[¶ 10] In viewing the evidence in the light most favorable to the verdict, we conclude the jury could reasonably have found beyond a reasonable doubt that Igou committed gross sexual imposition in violation of N.D.C.C. § 12.1 — 20—03(l)(d) by having sexual intercourse with Kate, who was then 14 years old.

III. Solicitation of a Minor

[¶ 11] Igou was also charged and convicted of solicitation of a minor, in violation of N.D.C.C. § 12.1-20-05, which provides:

1. An adult who engages in, solicits with the intent to engage in, or causes another to engage in a sexual act with a minor, is guilty of a class A misdemeanor if the victim is a minor fifteen years of age or older.
2. An adult who solicits with the intent to engage in a sexual act with a minor under age fifteen or engages in or causes another to engage in a sexual act when the adult is at least twenty-two years of age and the victim is a minor fifteen years of age or older, is guilty of a class C felony.

[¶ 12] On this count, the trial court instructed the jury as follows:

The Information charges the offenses to have been committed as follows, to-wit:
[[Image here]]
COUNT 2: The defendant, Orvin McKinley Igou III, solicited with the intent to engage in a sexual act with a minor fifteen years of age or older and the defendant is at least twenty-two years of age; specifically the defendant solicited [Nancy], D.O.B. 01/20/88....
SOLICITATION OF A MINOR:

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Cite This Page — Counsel Stack

Bluebook (online)
2005 ND 16, 691 N.W.2d 213, 2005 N.D. LEXIS 19, 2005 WL 100845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-igou-nd-2005.