State v. Samaniego , 2022 ND 38 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 38State of North Dakota, Plaintiff and Appellee
v.
Daniel Arturo Samaniego, Defendant and Appellant
No. 20210252
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Tristan J. Van de Streek, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Nicholas S. Samuelson, Assistant State’s Attorney, Fargo, ND, for plaintiff and
appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Samaniego
No. 20210252
Jensen, Chief Justice.
[¶1] Daniel Arturo Samaniego appeals from a criminal judgment in which he
was found guilty of gross sexual imposition, a class AA felony. He argues there
was insufficient evidence to prove the required force for the offense and
whether the crime occurred in Cass County. He also argues the State engaged
in prosecutorial misconduct by questioning law enforcement about whether he
had been interviewed. We affirm, concluding there was sufficient evidence to
find Samaniego guilty of gross sexual imposition and the issue of prosecutorial
misconduct was not sufficiently preserved for appeal or argued on appeal.
I
[¶2] In September 2020, Samaniego was charged with gross sexual
imposition in violation of N.D.C.C. § 12.1-20-03(1)(a). The information alleged
that in Cass County, North Dakota, Samaniego compelled the victim to submit
to a sexual act by force.
[¶3] A jury trial was held in May 2021. The victim testified that Samaniego
forced her to engage in oral sex. Three Fargo police officers testified about their
investigation into the crime. One of the officers was asked whether Samaniego
was ever interviewed. Samaniego objected to the question as being outside the
scope of redirect examination and the objection was sustained. No further
questions were asked regarding an interview of Samaniego and the State did
not subsequently reference the subject.
[¶4] At the conclusion of the State’s case, Samaniego moved for a judgment of
acquittal with a general assertion the victim was not credible. In responding
to Samaniego’s motion, the district court noted its concerns that no direct
evidence was presented that the crime occurred in Cass County, but found a
reasonable jury could conclude the crime occurred there. The court denied the
motion for acquittal.
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[¶5] The jury was instructed that to convict Samaniego, he must be found to
have committed the act in Cass County. The instructions also provided that
Samaniego’s silence could not be considered by the jury and the State was
prohibited from commenting on Samaniego’s silence. The jury subsequently
found Samaniego guilty of gross sexual imposition in violation of N.D.C.C. §
12.1-20-03(1)(a).
II
[¶6] Samaniego argues the district court abused its discretion in not granting
his motion for acquittal because insufficient evidence was presented to the jury
to support the conviction. He contends the State did not prove the force
required for gross sexual imposition and there was no evidence that the crime
occurred in Cass County.
[¶7] The standard of review on a sufficiency of the evidence claim is well-
established:
A defendant challenging the sufficiency of the evidence on appeal
“must show that the evidence, when viewed in the light most
favorable to the verdict, reveals no reasonable inference of guilt.”
State v. Jacobson, 419 N.W.2d 899, 901 (N.D. 1988). This Court’s
role is “to merely review 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. (quoting State v. Matuska, 379 N.W.2d 273, 275
(N.D. 1985)). The Court does not weigh conflicting evidence or
judge the credibility of witnesses. State v. Brandner, 551 N.W.2d
284, 286 (N.D. 1996).
State v. Mohammed, 2020 ND 52, ¶ 5, 939 N.W.2d 498.
A
[¶8] Samaniego was convicted of gross sexual imposition in violation of
N.D.C.C. § 12.1-20-03(1)(a), 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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a. That person compels the victim to submit by force or by
threat of imminent death, serious bodily injury, or
kidnapping, to be inflicted on any human being[.]
[¶9] Samaniego argues the State failed to introduce evidence that sufficient
force was used to overcome resistance, citing State v. Joern, 249 N.W.2d 921,
922 (N.D. 1977). Our decision in Joern has been expressly overruled. State v.
Mohammed, 2020 ND 52, ¶ 9(“There is no requirement that a victim resist. . .
. force which compels a person to submit is what must be proven. To the extent
State v. Joern [ ] states otherwise, Joern is overruled.”) Section 12.1-20-
03(1)(a), N.D.C.C., requires force sufficient to compel the victim to submit. Acts
prior to the sexual act can be considered when determining force. State v.
Truelove, 2017 ND 283, ¶ 10, 904 N.W.2d 342.
[¶10] The victim testified as follows:
That is when he asked if I could give him a blowjob instead. And I
said, no, that I just wanted to go home. And that’s when he grabbed
my wrist and pulled me out to the living room and proceeded to
pull down his pants. And I didn’t know that he was going to be
doing that. And then he grabbed my head, forced me to suck his
penis.
Our role is limited to reviewing the evidence to determine if there is competent
evidence to allow the jury to draw an inference reasonably tending to prove
Samaniego’s guilt and fairly warranting a conviction. In reviewing the evidence
our role is not to judge the credibility of the witnesses. We conclude there was
sufficient evidence for the jury to find that Samaniego compelled the victim to
submit to a sexual act by force as required under N.D.C.C. § 12.1-20-03(1)(a).
B
[¶11] Samaniego argues the location of the conduct is an essential element of
the offense. He contends the district court abused its discretion in not granting
the motion for acquittal because there was no evidence presented that the
crime occurred in Cass County.
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[¶12] Section 12.1-01-03(1), N.D.C.C., sets forth the elements of an offense as
follows:
a. The forbidden conduct;
b. The attendant circumstances specified in the definition and
grading of the offense;
c. The required culpability;
d. Any required result; and
e. The nonexistence of a defense as to which there is evidence in
the case sufficient to give rise to a reasonable doubt on the issue.
Although the district court instructed the jury to determine if the offense
occurred in Cass County, the location of the conduct is not an essential element
of the offense under the statutory language in N.D.C.C. § 12.1-01-03(1). The
location of the crime relates to the appropriate venue for trial of the offense.
The North Dakota Rules of Criminal Procedure, Rule 18, confers venue for a
criminal trial “in the county where the offense was committed[.]” “An act in
furtherance of the crime that occurs in a county confers jurisdiction for trial of
that crime in that county.” State v. Martinsons, 462 N.W.2d 458, 460 (N.D.
1990) (citing State v. Patten, 353 N.W.2d 26 (N.D. 1984)).
[¶13] The evidence presented at trial included the testimony of three Fargo
police officers regarding their investigation. Snapchat geolocation data was
also introduced, which placed Samaniego and the victim in Cass County on the
evening and early morning hours that the crime occurred. Samaniego also
failed to assert, prior to trial, there had been a defect in the prosecution based
on an improper venue as required by our rules governing criminal procedure.
N.D.R.Crim.P. 12(b)(3)(A)(i). Regardless of whether the district court properly
included the location of Samaniego’s act as a required finding of the jury, there
is sufficient evidence that acts in furtherance of the crime occurred in Cass
County.
III
[¶14] Samaniego argues the State engaged in prosecutorial misconduct by
questioning law enforcement about whether he had been interviewed. The
following exchange occurred at trial:
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THE STATE: Throughout the course of your investigation, did you
at any point interview the Defendant?
DETECTIVE HANSON: I attempted to interview the Defendant.
MS. BRAINARD: Your Honor, this is beyond the scope of redirect
again.
THE COURT: What was the question again?
THE STATE: Whether the Detective interviewed the Defendant at
any point.
THE COURT: This is beyond the scope of direct and cross.
Sustained.
THE STATE: That’s all I have. Thank you.
[¶15] Samaniego objected asserting the question was outside the scope of
redirect. He did not assert a violation of his right to remain silent. Rule 103,
N.D.R.Evid., provides that:
(a) Preserving a Claim of Error. A party may claim error in a ruling
to admit or exclude evidence only if the error affects a substantial
right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from
the context; . . . .
This Court has held the following:
A party must make a specific objection to evidence at the time it is
offered for admission into evidence to give the opposing party an
opportunity to argue the objection and attempt to cure the
defective foundation, and to give the trial court an opportunity to
fully understand the objection and appropriately rule on it.
May v. Sprynczynatyk, 2005 ND 76, ¶ 26, 695 N.W.2d 196. The district court
did not have the opportunity to rule on the issue of whether the question was
a violation of Samaniego’s right to remain silent. We conclude the objection on
outside the scope of redirect did not preserve the issue of whether the State’s
question violated Samaniego’s right to remain silent.
[¶16] When prosecutorial misconduct is raised for the first time on appeal, this
Court reviews for obvious error. State v. Vondal, 2011 ND 186, ¶ 12, 803 N.W.2d
5
578. Samaniego has not argued that the State’s question was obvious error. We
decline to engage in an unassisted search of the record for obvious error
without such an argument. See Interest of Buller, 2020 ND 270, ¶ 17, 952
N.W.2d 106. We conclude the issue of prosecutorial misconduct was not
sufficiently preserved for appeal or argued on appeal.
IV
[¶17] There was sufficient evidence for the jury to find Samaniego guilty of
gross sexual imposition and the issue of prosecutorial misconduct was not
sufficiently preserved for appeal or argued on appeal. We affirm.
[¶18] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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