State v. Prescott

2024 ND 152

• Court: North Dakota Supreme Court
• Decided: July 18, 2024
• Docket: No. 20230325
• Status: Published

Opinion

IN THE SUPREME COURT STATE OF NORTH DAKOTA

2024 ND 152

State of North Dakota, Plaintiff and Appellee

v.

Michael Allan Lafayte Prescott, Defendant and Appellant

No. 20230325

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Stacy J. Louser, Judge.

AFFIRMED.

Per Curiam.

Tina M. Snellings, Assistant State’s Attorney, Minot, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant. State v. Prescott No. 20230325

[¶1] Michael Prescott appeals from a judgment entered after a jury found him guilty of gross sexual imposition in violation of N.D.C.C. § 12.1-20-03(2)(a), which criminalizes sexual contact with a victim less than fifteen years of age. Prescott argues the district court committed obvious error by failing to instruct the jury that the State was required to prove the touching in this case was not justified for the purpose of disciplining the child.

[¶2] The district court specifically asked Prescott whether he had any objection to the instructions relevant to this issue, and Prescott responded he did not. A defendant’s decision to not object to a jury instruction when given the opportunity constitutes a waiver of the right to argue on appeal that the instruction was erroneous. State v. Goodale, 2024 ND 120, ¶ 9, ___ N.W.3d ___ (holding claim of error waived by answering “yes” in response to inquiry whether instructions were acceptable); see also City of Grand Forks v. Riemers, 2024 ND 117, ¶ 14, ___ N.W.3d ___ (holding claim of error waived by “I’m satisfied with them” in response to requests for comments or additional instructions); State v. Studhorse, 2024 ND 110, ¶ 25, 7 N.W.3d 253 (declining to review a jury instruction issue waived by defendant’s affirmative statement he had no request for changes to the instructions). Prescott waived this issue, and we summarily affirm under N.D.R.App.P. 35.1(a)(7).

[¶3] Jon J. Jensen, C.J. Daniel J. Crothers Lisa Fair McEvers Jerod E. Tufte Douglas A. Bahr