State v. Watts , 2023 ND 47 ( 2023 )


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  •                                                                                      FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    MARCH 16, 2023
    Corrected Opinion Filed 03/16/2023 by Clerk of Supreme Court    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2023 ND 47
    State of North Dakota,                                   Plaintiff and Appellee
    v.
    Dondarro Jimmell Watts,                               Defendant and Appellant
    No. 20220206
    Appeal from the District Court of Burleigh County, South Central Judicial
    District, the Honorable Bonnie L. Storbakken, Judge.
    AFFIRMED.
    Opinion of the Court by Crothers, Justice.
    David L. Rappenecker (argued) and Dennis H. Ingold (on brief), Assistant
    State’s Attorneys, Bismarck, ND, for plaintiff and appellee.
    Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
    State v. Watts
    No. 20220206
    Crothers, Justice.
    [¶1] Dondarro Watts appeals from a criminal judgment after a jury found him
    guilty of indecent exposure. Watts argues the district court abused its
    discretion regarding an evidentiary ruling, the jury did not have sufficient
    evidence to convict him, the court erred by providing misleading jury
    instructions, and the court abused its discretion by requiring him to register
    as a sexual offender. We affirm.
    I
    [¶2] While incarcerated at the Burleigh Morton Detention Center for reasons
    unrelated to this appeal, Watts exposed himself to a detention officer. On
    January 26, 2022, the State charged Watts with indecent exposure. On July 1,
    2022, a jury trial was held. That same day the jury returned a guilty verdict.
    The district court sentenced Watts to 180 days in jail and ordered him to
    register as a sexual offender. Watts timely appealed.
    II
    [¶3] Watts argues the district court abused its discretion when it sustained
    an objection by the State to a question whether the detention officer believed
    Watts’ cell was a public place.
    [¶4] During cross-examination, the State asked the detention officer about
    Watts’ cell:
    “Mr. Arthurs: Okay. All right. Now, how big is that cell?
    Officer: I don’t know.
    Mr. Arthurs: Don’t know the dimensions? If you were to stand in the
    cell and put both arms out, would you be able to touch both sides of the
    cell?
    Officer: No.
    Mr. Arthurs: Okay. So it’s bigger than, like, six feet; right?
    1
    Officer: Yes.
    Mr. Arthurs: Would you describe that cell as a public place?
    Officer: No.
    Mr. Ingold: Objection. That’s for the jury. We’ve talked about it even in
    the instructions. I mean, it’s not a proper question for a witness.
    Mr. Arthurs: Your Honor, I’m just asking if she would describe it as a
    public place.
    Mr. Ingold: And again, Your Honor, that’s [for] the jury to decide. It’s in
    the jury instructions, and we specifically discussed that before trial.
    The Court: Sustained.”
    [¶5] Under N.D.C.C. § 12.1-20-12.1(1)(a), an individual is guilty of a class A
    misdemeanor, indecent exposure, if they act with the “intent to arouse, appeal
    to, or gratify that individual’s lust, passions, or sexual desires” by
    masturbating in a public place.
    [¶6] N.D.R.Evid. 701 provides a lay witness can testify in the form of an
    opinion, if that opinion is based on perception and helpful to understanding
    the testimony or determining a fact issue. N.D.R.Evid. 704 states, “[a]n opinion
    is not objectionable just because it embraces an ultimate issue[.]” The district
    court instructed the jury on lay testimony:
    “Witnesses who were not testifying as experts gave testimony in
    the form of an opinion based on having perceived a matter. In
    deciding the weight and credibility, if any, to be given a witness’s
    opinion having perceived a matter, you may consider the witness’s
    opportunity to have perceived the matter, the witness’s reasons for
    the opinion, and all other evidence related to that issue.”
    [¶7] “This Court reviews evidentiary rulings under an abuse of discretion
    standard.” State v. Dargbeh, 
    2022 ND 3
    , ¶ 7, 
    969 N.W.2d 144
    . “A district court
    abuses its discretion in evidentiary rulings when it acts arbitrarily,
    capriciously or unreasonably, or it misinterprets or misapplies the law.” 
    Id.
    [¶8] Under N.D.C.C. § 12.1-20-12.1(1)(a), one element of the crime is whether
    Watts performed the sexual acts in a public place. The question to the detention
    officer whether Watts’ cell was a public place directly related to that element.
    2
    Testimony about an ultimate issue is not prohibited if offered by a person
    qualified to express an opinion. N.D.R.Evid. 701 and 704. The State forfeited
    any objection that the detention officer was not qualified to provide opinion
    testimony. See State v. Pulkrabek, 
    2022 ND 128
    , ¶ 7, 
    975 N.W.2d 572
    . The
    State’s objection was limited to the officer’s opinion going to the ultimate issue.
    In ruling on that objection, the district court misapplied Rule 704 and abused
    its discretion. Because the court misapplied the law, we consider whether
    Watts was prejudiced by the error.
    [¶9] Under N.D.R.Crim.P. 52, “Any error, defect, irregularity or variance that
    does not affect substantial rights must be disregarded.” Therefore, a district
    court’s evidentiary error does not require reversal if harmless. State v. Azure,
    
    2017 ND 195
    , ¶ 22, 
    899 N.W.2d 294
    . “Stated simply, harmless error is error
    that is not prejudicial to the defendant.” State v. Acker, 
    2015 ND 278
    , ¶ 12, 
    871 N.W.2d 603
    .
    [¶10] Here, the officer was asked, “Would you describe that cell as a public
    place?” She responded, “No.” Watts subsequently objected, and the objection
    was sustained. However, the officer’s response was not stricken. Other courts
    faced with objected to, but unstricken, evidence have refused to conclude the
    underlying erroneous evidentiary ruling was prejudicial because the evidence
    remained available for the jury to consider. For example, in U.S. v. Zaccaria,
    
    240 F.3d 75
    , 82 (1st Cir. 2001), the court held:
    “In all events, there is another, independently sufficient
    reason for rejecting this assignment of error: Blume answered the
    question and the district court did not strike his negative response.
    His denial was, therefore, before the jury. E.g., United States v.
    Polito, 
    856 F.2d 414
    , 419-20 (1st Cir. 1988) (holding that testimony
    not stricken from the record may be regarded by the jury as
    evidence, notwithstanding parties’ mutual, but mistaken,
    assumption that the court had stricken it); Tanner v. United
    States, 
    401 F.2d 281
    , 290-92 (8th Cir. 1968) (explaining, in
    analogous circumstances, that testimony not stricken ‘remained
    before the jury for its consideration’ despite the sustaining of the
    opponent’s objection).”
    3
    See also Williams v. State, 
    919 So.2d 250
    , 254 (Miss. 2005) (“It is the rule in
    this State that where an objection is sustained, and no request is made that
    the jury be told to disregard the objectionable matter, there is no error.”).
    [¶11] We concur with the foregoing authorities and conclude evidence not
    stricken from the record, or for which the jury was not instructed to disregard,
    remains available for the jury’s consideration. As a result, the jury heard the
    officer’s opinion whether she believed the cell was a public place, and the
    district court’s error in sustaining the State’s objection was harmless.
    III
    [¶12] Watts argues there was insufficient evidence to convict him of indecent
    exposure.
    [¶13] Under N.D.C.C. § 12.1-20-12.1(1)(a), an individual is guilty of class A
    misdemeanor indecent exposure, if an individual acts with the “intent to
    arouse, appeal to, or gratify that individual’s lust, passions, or sexual desires”
    by masturbating in a public place. A public place is not defined in N.D.C.C. §
    12.1-20-12.1(1)(a), and this Court has not interpreted its meaning within the
    indecent exposure statute. This Court determined “[i]n criminal prosecutions
    for indecent exposure, other courts have defined a public place as a place where
    the actor might reasonably expect conduct to be seen by others.” Hougum v.
    Valley Memorial Homes, 
    1998 ND 24
    , ¶ 44, 
    574 N.W.2d 812
    .
    [¶14] When reviewing a sufficiency of the evidence claim after a jury verdict
    “[t]his Court merely reviews the record to determine if there is competent
    evidence allowing the jury to draw an inference reasonably tending to prove
    guilt and fairly warrant a conviction.” State v. Doll, 
    2012 ND 32
    , ¶ 21, 
    812 N.W.2d 381
    . “The defendant bears the burden of showing the evidence reveals
    no reasonable inference of guilt when viewed in the light most favorable to the
    verdict.” 
    Id.
     “A conviction rests upon insufficient evidence only when, after
    reviewing the evidence in the light most favorable to the prosecution and giving
    the prosecution the benefit of all inferences reasonably to be drawn in its favor,
    no rational fact finder could find the defendant guilty beyond a reasonable
    doubt.” State v. Gray, 
    2017 ND 108
    , ¶ 15, 
    893 N.W.2d 484
    . “When considering
    4
    insufficiency of the evidence, we will not reweigh conflicting evidence or judge
    the credibility of witnesses.” Doll, at ¶ 21.
    [¶15] At the time of this incident Watts was incarcerated at the Burleigh
    County Detention Center. Watts was charged with indecent exposure after he
    exposed himself and masturbated in front of a detention officer. At trial, the
    detention officer testified regarding the incident. She described Watts’ jail cell
    and explained Watts could be seen from anywhere in his cell, except for the
    shower area which had a privacy glass. As the officer approached Watts’ cell,
    she assumed he was showering because she could see only his head above the
    privacy glass and there was steam in the room. The officer served Watts his
    food tray and confirmed he would have time to eat. As the officer walked away
    from Watts’ cell, he asked if she wanted to see something and stepped out of
    the shower. When Watts came out of the shower, he was holding his penis and
    stroking it. The officer stated she would not have been able to see Watts was
    masturbating had he not stepped out of the shower area. The State also played
    the jury a security camera video of the incident.
    [¶16] The evidence provided by the State at trial described the detention
    center generally, and Watts’ cell area in particular. That evidence was
    sufficient for the jury to find Watts was guilty of indecent exposure. Watts has
    not shown there was no reasonable inference of guilt. Therefore, sufficient
    evidence exists to convict Watts of indecent exposure.
    IV
    [¶17] Watts argues the district court erred by providing misleading jury
    instructions.
    [¶18] “The district court must instruct the jury on the law; however, the parties
    must request and object to specific jury instructions.” State v. Jacob, 
    2006 ND 246
    , ¶ 14, 
    724 N.W.2d 118
    . “A party who objects to an instruction . . . must do
    so on the record, stating distinctly the matter objected to and the grounds.”
    N.D.R.Crim.P. 30(c)(1).
    5         Filed by Clerk of Supreme Court 03/16/2023
    [¶19] “When a defendant fails to properly object to a proposed instruction . . .
    the issue is not adequately preserved for appellate review and our inquiry is
    limited . . . as to whether the jury instructions constitute obvious error affecting
    substantial rights.” Jacob, 
    2006 ND 246
    , ¶ 14. The burden is on the defendant
    to show the alleged error was prejudicial. 
    Id.
     “An alleged error does not
    constitute obvious error unless there is a clear deviation from an applicable
    legal rule under current law.” 
    Id.
    [¶20] Chapter 12.1-20, N.D.C.C., does not define a public place. In its proposed
    jury instructions the State defined the phrase as “a place where the actor might
    reasonably expect conduct to be seen by others. Whether an area is a ‘public
    place’ is a question of fact for you to decide.” Watts filed a written objection to
    the State’s definition and proposed the district court use the pattern jury
    instruction for indecent exposure, which does not contain a definition of public
    place. Watts argued the jury should be instructed that words not defined in a
    statute must be given their plain, ordinary, and commonly understood
    meaning.
    [¶21] In the district court’s final jury instructions, public place was listed as
    an essential element of the crime. Additionally, the instructions stated:
    “‘[p]ublic [p]lace’ has not been defined by the North Dakota Legislature within
    the criminal code. Whether an area is a public place is a question of fact for
    you to decide.”
    [¶22] Watts argues the district court’s final jury instruction regarding the
    definition of public place was misleading. The record contains no indication
    Watts objected to the court’s final jury instruction on the record. Watts properly
    objected to the State’s proposed jury instruction. The court sustained his
    objection and the instruction was not given. However, Watts’ only preserved
    his objection to the State’s proposed jury instruction and not the court’s final
    jury instruction. On appeal, Watts’ claimed error relates only to the final
    instruction to which he did not object. Therefore, he did not preserve the issue
    that the final jury instruction was misleading. Since the issue was not
    preserved, this Court reviews the alleged error under the obvious error
    standard.
    6
    [¶23] In order to prove obvious error, Watts was required to show the court
    made a clear deviation from an established rule of law. As the district court’s
    instruction accurately stated, a public place is not defined in N.D.C.C. ch. 12.1-
    20. Nor has a judicial decision defined the phrase for the purposes of N.D.C.C.
    § 12.1-20-12.1. Therefore, the court did not deviate from established law. Watts
    has not met his burden of showing the court’s jury instructions constituted
    obvious error.
    V
    [¶24] Watts argues the district court abused its discretion by requiring him to
    register as a sexual offender.
    [¶25] Under N.D.C.C. § 12.1-32-15(1)(g), sexual offender is defined as “a
    person who has pled guilty or been found guilty . . . of a violation of” one of
    many enumerated offenses. One of the enumerated offenses is indecent
    exposure. N.D.C.C. § 12.1-20-12.1. If a person has pled guilty or been found
    guilty as a sexual offender under N.D.C.C. § 12.1-32-15(1)(g), “[t]he court shall
    require an individual to register” as a sexual offender. N.D.C.C. § 12.1-32-15(2).
    This Court has determined “shall” creates a duty. See State v. Glaser, 
    2015 ND 31
    , ¶ 18, 
    858 N.W.2d 920
    . The word “may” “impl[ies] permissive, optional or
    discretional, and not mandatory action or conduct.” 
    Id.
     Under N.D.C.C. § 12.1-
    32-15(2)(b), “the court may deviate from requiring an individual to register if
    the court first finds” three things: 1) the individual is no more than three years
    older than the victim if the victim is a minor, 2) the individual has not
    previously been convicted as a sexual offender or of a crime against a child, and
    3) the individual did not exhibit mental abnormality or predatory conduct in
    the commission of the offense.
    [¶26] This Court reviews a district court’s permissive decisions under the
    abuse of discretion standard. Oien v. Oien, 
    2005 ND 205
    , ¶ 8, 
    706 N.W.2d 81
    .
    “A district court abuses its discretion when it acts arbitrarily, capriciously or
    unreasonably, when its decision is not the product of a rational mental process
    leading to a reasoned determination, or it misapplies or misinterprets the law.”
    McDowell v. McDowell, 
    2003 ND 174
    , ¶ 37, 
    670 N.W.2d 876
    .
    7
    [¶27] Here, Watts was convicted of an offense requiring him to register as a
    sexual offender unless certain specified conditions exist. Under N.D.C.C. §
    12.1-32-15(2)(b), the district court may deviate from the registration
    requirement. The court held a hearing to allow both parties to argue whether
    deviation was appropriate. The court determined Watts did not meet the three
    factors allowing deviation from the registration requirement. The court did not
    act arbitrarily, capriciously or unreasonably and did not misapply the law
    because it followed the analysis required by the statute, and did not find
    grounds permitting deviation. Therefore, the court did not abuse its discretion
    by requiring Watts to register as a sexual offender.
    VI
    [¶28] The district court’s abuse of discretion regarding an evidentiary ruling
    was harmless, the State provided sufficient evidence to convict Watts of
    indecent exposure, the court’s final jury instructions did not constitute obvious
    error, and the court did not abuse its discretion by requiring Watts register as
    a sexual offender. We affirm the criminal judgment.
    [¶29] Jon J. Jensen, C.J.
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    Douglas A. Bahr
    8