State v. McDonell

550 N.W.2d 62, 1996 N.D. LEXIS 155, 1996 WL 280811
CourtNorth Dakota Supreme Court
DecidedMay 29, 1996
DocketCriminal 950200
StatusPublished
Cited by24 cases

This text of 550 N.W.2d 62 (State v. McDonell) 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. McDonell, 550 N.W.2d 62, 1996 N.D. LEXIS 155, 1996 WL 280811 (N.D. 1996).

Opinions

SANDSTROM, Justice.

Patrick McDonell entered a woman’s home through a window and had sex with her. A jury found him guilty of “Gross Sexual Imposition” and “Criminal Trespass.” McDonell appeals those convictions, claiming: 1) the trial court erred in not instructing the jury on a lesser included offense; 2) the trial court erred in admitting evidence of his prior conviction; and 3) he was deprived of effective assistance of counsel in violation of his constitutional rights.

We affirm.

I

McDonell was one of several persons who attended a party held at the victim’s house. McDonell testified he left the party when everyone else was leaving. McDonell also testified that before he left, the victim asked him to clandestinely return later. McDonell returned to the victim’s house. The front door was locked, and McDonell entered the home through a partially opened window. He went into the victim’s bedroom and had sex with her. The victim testified she never invited nor consented to sex with McDonell. The victim testified she was sleeping with her two-year-old son, and she thought the sexual encounter was a dream until she heard McDonell say, “Yeah!” She testified she sat up and said, “No, this ain’t right,” and heard the door slam. McDonell testified he left the house at about 5:00 a.m.

The victim testified she got out of bed and checked the back door of the house and found it unlocked. When she started to lock the door, she realized she didn’t have any pants on. She testified she then clothed herself and called her sister. Her sister did not answer, so she left a message. She then called another friend and reported to him she had been raped. The victim testified she then called the police and reported the incident. While on the phone with the police, she heard footsteps outside the house and started screaming. The police transported the victim to the emergency room for a pelvic examination and tests routinely conducted by the hospital in situations of potential rape.

McDonell testified the entire encounter was consensual and he did not see the victim’s little boy in the bed.

The jury found McDonell guilty of “Gross Sexual Imposition,” a class B felony, and “Criminal Trespass,” a class A misdemeanor. McDonell appeals his convictions, claiming: 1) the trial court erred in not instructing the jury on a lesser included offense to the charge of “Gross Sexual Imposition”; 2) the trial court erred in admitting evidence of his prior conviction; and 3) he did not receive effective assistance of counsel in violation of his constitutional rights.

The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 27-05-06(1). The appeal from the district court was filed in a timely manner under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. §§ 29-01-12, -28-06.

II

McDonell contends the trial court erred in not instructing the jury on the lesser included offense of sexual assault. The defendant concedes he did not request the instruction.

Sexual assault is a lesser included offense to gross sexual imposition. See State v. Piper, 261 N.W.2d 650, 653 (N.D.1977); State v. Brickzin, 319 N.W.2d 150 (N.D. 1982). Generally, courts should give an instruction on a lesser included offense if “the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater.” State v. Tweed, 491 N.W.2d 412, 414 (N.D.1992).

The fact that McDonell had sex with the victim is undisputed. At trial, McDonell contested the issue of consent. If the jury had believed McDonell’s assertion that the [64]*64victim consented to the act, they could no more convict on a charge of sexual assault than they could on the charge of gross sexual imposition. Since the only issue was the consent of the victim, an instruction on the lesser included offense of sexual assault would have been improper because the evidence would not permit the jury to rationally convict the defendant of the lesser offense and acquit him of the greater.

The district court properly did not give an instruction on the lesser included offense of sexual assault.

Ill

MeDonell contends the district court erred in allowing testimony concerning his prior conviction to be elicited, warranting reversal.

During the State’s cross examination of MeDonell, the following testimony was elicited:

“Q: Could you please tell the jury about your prior known conviction?
“A: Criminal trespass.
“Q: You have been convicted of that?
“A: That is correct.”

MeDonell did not object to the introduction of the testimony, failing to preserve it for review. State v. Wishnatsky, 491 N.W.2d 733, 734-735 (N.D.1992).

A failure to object will limit our inquiry on appeal to determining if the alleged error constitutes obvious error affecting substantial rights. Wishnatsky at 735. “Our power to notice obvious error is exercised cautiously and only in exceptional situations where the defendant has suffered serious injustice.” State v. McNair, 491 N.W.2d 397, 399 (N.D.1992) (citing State v. Heintze, 482 N.W.2d 590, 593 (N.D.1992)). “In our inquiry, we examine the entire record and the probable effect of the alleged error in light of all of the evidence.” State v. Woehlhoff, 540 N.W.2d 162, 164 (N.D.1995).

N.D.R.Ev. 609 provides for the admission of evidence of an accused’s prior conviction if the crime involved dishonesty, or if the crime was punishable by death or imprisonment in excess of one year and the probative value of the evidence outweighs its prejudicial effect. We cannot tell from the trial court record before us if the evidence met the requirements of N.D.R.Ev. 609. Even if the evidence was objectionable, however, MeDonell has not shown us the two short questions and two brief responses manifest “serious injustice.” See State v. Eugene, 536 N.W.2d 692, 696 (N.D.1995) (holding the admission of evidence concerning a prior conviction, where the defendant did not object and the references to the conviction were brief, “did not likely have a substantial prejudicial effect”).

TV

In this direct appeal from the district court, MeDonell contends his constitutional rights to effective counsel were violated when: 1) his counsel did not request an instruction on a lesser included offense; 2) his counsel failed to object to the State repeatedly using the word “rape” while questioning the victim; and 3) his counsel “failed to file a motion about prior sexual experience of the victim.”

Effective assistance of counsel is guaranteed a defendant under the Sixth Amendment to the United States Constitution, applied to the States through the Fourteenth Amendment, and by N.D. Const. Art. I, § 12. State v.

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Bluebook (online)
550 N.W.2d 62, 1996 N.D. LEXIS 155, 1996 WL 280811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcdonell-nd-1996.