State v. Noble , 2023 ND 119 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 21, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 119State of North Dakota, Plaintiff and Appellee
v.
Drew Adam Noble, Defendant and Appellant
Nos. 20220363 & 20220364
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Benjamen J. Johnson, Judge.
AFFIRMED IN PART, AND REVERSED AND VACATED IN PART.
Opinion of the Court by Bahr, Justice.
Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for plaintiff and
appellee; submitted on brief.
Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant.
State v. Noble
Nos. 20220363 & 20220364
Bahr, Justice.
[¶1] Drew Noble appeals from criminal judgments and an amended criminal
judgment entered after a jury convicted him of multiple counts. On appeal,
Noble limits his issue to counts 12, 13, 14, and 15 in case no. 53-2021-CR-
01142. He argues there is insufficient evidence to sustain the convictions on
counts 12, 13, 14, and 15 of “Promoting or Directing an Obscene Sexual
Performance by a Minor” in violation of N.D.C.C. § 12.1-27.2-03. The State
concedes there is insufficient evidence on an element for these four “producing”
counts. We reverse and vacate the convictions on counts 12, 13, 14, and 15 in
case no. 53-2021-CR-01142. The convictions on the remaining counts in case
nos. 53-2021-CR-01142 and 53-2022-CR-00217 are affirmed.
I
[¶2] In August 2021, the State charged Noble with multiple charges,
including four counts of promoting or directing an obscene sexual performance
by a minor in violation of N.D.C.C. § 12.1-27.2-03, class A felonies. Noble was
specifically charged with committing these offenses “on or about the months of
June of 2020 through January of 2021.”
[¶3] In August 2022, the district court held a four-day jury trial. After the
State rested its case, Noble moved for a judgment of acquittal under
N.D.R.Crim.P. 29, including on counts 12 through 15, arguing the State failed
to put on enough evidence to prove the elements and the counts should be
dismissed. The court denied the motion. The jury subsequently returned guilty
verdicts on the multiple counts, including the four “producing” counts at issue
in this appeal.
II
[¶4] This Court’s standard for reviewing a sufficiency-of-the-evidence
challenge is well established:
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When the sufficiency of evidence to support a criminal conviction
is challenged, this 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 warranting a
conviction. 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. When considering
insufficiency of the evidence, we will not reweigh conflicting
evidence or judge the credibility of witnesses. . . . A jury may find
a defendant guilty even though evidence exists which, if believed,
could lead to a verdict of not guilty.
State v. Dahl, 2022 ND 212, ¶ 5, 982 N.W.2d 580 (quoting State v. Nakvinda,
2011 ND 217, ¶ 12, 807 N.W.2d 204).
III
[¶5] Noble argues there is insufficient evidence to sustain a conviction on
counts 12, 13, 14, and 15 of Promoting or Directing an Obscene Sexual
Performance by a Minor in violation of N.D.C.C. § 12.1-27.2-03. Section 12.1-
27.2-03, N.D.C.C., provides: “A person is guilty of a class A felony if, knowing
the character and content of a performance, that person produces, directs, or
promotes any obscene performance which includes sexual conduct by a person
who was a minor at the time of the performance.”
[¶6] In the closing jury instructions, the district court provided the following
elements the State was required to prove for the producing counts:
1) On or between the months of June 2020 through January of
2021, in Williams County, North Dakota, the Defendant, Drew
Adam Noble;
2) Knowing the character and content of a performance;
3) Produced, directed, or promoted any obscene performance which
included sexual conduct by a person who was a minor at the time
of the performance. . . .
(Emphasis added.)
[¶7] Generally, “[u]nchallenged jury instructions become the law of the case.”
State v. Friesz, 2017 ND 177, ¶ 37, 898 N.W.2d 688 (quoting State v. Rogers,
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2007 ND 68, ¶ 10, 730 N.W.2d 859). “[A]n erroneous date in the criminal
complaint or information is not reversible error unless the date is an essential
element of the crime charged[.]” City of W. Fargo v. Hawkins, 2000 ND 168,
¶ 10, 616 N.W.2d 856. The date is an essential element of the crime if the
conduct would not be a crime if it occurred on the date alleged in the complaint.
Id. at ¶ 12.
[¶8] At trial, the State elicited testimony from the victim on when the
offending four videos at issue had been created. The victim testified the videos
were created when she had visited in August 2019, when she would have been
“17, going on 18.”
[¶9] Noble argues the victim’s testimony establishes she would not have been
a minor between June 2020 and January 2021 and the State elicited no
evidence of Noble distributing or uploading the video files. Noble concedes the
State proved possession of these videos between June 2020 and January 2021,
but he contends the State did not charge Noble with producing, directing, or
promoting the material “on or about August 2019.” In response, the State
concedes the “producing” counts have an incorrect date and the counts did not
reflect the dates on which Noble produced the materials.
[¶10] On this record, there is insufficient evidence regarding the “producing”
counts 12, 13, 14, and 15. It is undisputed the evidence at trial establishes the
victim was not a minor and the materials were not produced “[o]n or between
the months of June 2020 through January of 2021,” as Noble was charged and
the jury was instructed. We reverse and vacate the convictions on counts 12,
13, 14, and 15 in case no. 53-2021-CR-01142. The convictions on the remaining
counts in case nos. 53-2021-CR-01142 and 53-2022-CR-00217 are affirmed.
IV
[¶11] The amended criminal judgment in case no. 53-2021-CR-01142 is
reversed and vacated as to the convictions on counts 12, 13, 14, and 15. The
convictions on the remaining counts in case nos. 53-2021-CR-01142 and 53-
2022-CR-00217 are affirmed.
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[¶12] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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