FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 25
State of North Dakota, Plaintiff and Appellee
v.
Sean Taylor Spillum, Defendant and Appellant
No. 20200156
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Douglas L. Mattson, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Todd A. Schwarz, Assistant State’s Attorney, Minot, ND, for plaintiff and
appellee.
Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.
State v. Spillum
No. 20200156
Jensen, Chief Justice.
[¶1] Sean Spillum appeals from a criminal judgment entered after a jury
found him guilty of possession of certain materials prohibited. Spillum argues
the State failed to establish the offense was committed within Ward County,
North Dakota. Spillum also argues the district court erred in denying his
motion to suppress because he was subject to a custodial interrogation and
entitled to Miranda warnings after an arrest warrant had been issued. We
affirm the criminal judgment of the district court.
I
[¶2] Spillum was under criminal investigation for uploading suspected child
pornography to a cloud storage service. Officers interviewed Spillum on three
separate occasions regarding electronic devices that were seized from Spillum’s
home and the explicit material discovered on the devices. A day before his third
interview, a warrant had been issued for Spillum’s arrest. Officers did not
notify Spillum of the existence of the arrest warrant before or during the
interview. At the beginning of the interview, the officers told Spillum he was
not under arrest. Spillum was informed he was not required to speak with law
enforcement or answer their questions. The officers offered to assist Spillum
obtain an attorney at his request. Spillum did not request an attorney, and he
answered the officers’ questions. At the end of the interview, officers informed
Spillum he was not permitted to leave and placed him under arrest.
[¶3] The State charged Spillum with possession of certain materials
prohibited. Spillum moved to suppress the third interview arguing he was
subject to a custodial interrogation and entitled to receive adequate Miranda
warnings because law enforcement was in possession of the arrest warrant at
the time of the interview. The district court denied the motion.
[¶4] A jury trial commenced on February 12, 2020. The district court
instructed the jury regarding the essential elements of the offense as follows:
1
The State satisfies its burden of proof in this case if the evidence
shows, beyond a reasonable doubt, the following essential
elements of the offense charged:
1. On or about October 14, 2018, in Ward County, State of
North Dakota; the Defendant, Sean Taylor Spillum;
2. Knowing the character and content of a performance;
3. Knowingly possessed any motion picture, photograph, or
other visual representation that included sexual conduct by
a minor.
The jury returned a verdict finding Spillum guilty of possession of certain
materials prohibited.
II
[¶5] Spillum argues the State did not offer evidence during trial that the
offense occurred in Ward County, North Dakota, a required part of the first
element in the jury instruction for the offense. Spillum refers to this issue as a
jurisdictional defect. Although referred to as a jurisdictional issue, Spillum’s
argument is substantively a challenge to the sufficiency of the evidence to
support the guilty verdict asserting the State failed to prove the location of the
offense, an essential element of the offense. On appeal, we have reviewed his
argument as a challenge to the sufficiency of the evidence.
[¶6] When a defendant challenges the sufficiency of evidence to support a jury
verdict, this Court’s standard of review is as follows:
In reviewing the sufficiency of the evidence to convict, we look only
to the evidence most favorable to the verdict and the reasonable
inferences therefrom to see if there is substantial evidence to
warrant a conviction. A conviction rests upon insufficient evidence
only when no rational fact finder could have found the defendant
guilty beyond a reasonable doubt after viewing the evidence in a
light most favorable to the prosecution and giving the prosecution
the benefit of all inferences reasonably to be drawn in its favor.
2
State v. Kenny, 2019 ND 218, ¶ 20,
932 N.W.2d 516 (quoting State v. Rourke,
2017 ND 102, ¶ 6,
893 N.W.2d 176). “A conviction may be justified on
circumstantial evidence alone if the circumstantial evidence has such
probative force as to enable the trier of fact to find the defendant guilty beyond
a reasonable doubt.” State v. Clark,
2015 ND 201, ¶ 8,
868 N.W.2d 363 (quoting
State v. Addai,
2010 ND 29, ¶ 52,
778 N.W.2d 555). “A verdict based on
circumstantial evidence carries the same presumption of correctness as other
verdicts.”
Id. A jury may find a defendant guilty even though evidence exists
which, if believed, could lead to a not guilty verdict. State v. Lail,
2020 ND 13,
¶ 2,
937 N.W.2d 558.
[¶7] Under Rule 29(a) of the North Dakota Rules of Criminal Procedure, a
defendant is required to move for a judgment of acquittal in a jury trial to
preserve a sufficiency of the evidence claim on appeal. See State v. Helm,
2020
ND 155, ¶ 6,
946 N.W.2d 503. If a motion for judgment of acquittal was made
at trial on specified grounds, and those grounds did not include the claim on
appeal, the defendant does not preserve that issue for this Court’s review. Id.
at ¶¶ 6-7.
[¶8] During trial, Spillum moved for a judgment of acquittal arguing there
was insufficient evidence to establish Spillum possessed certain material
prohibited because the witnesses’ testimony was “extremely vague” regarding
what sexual conduct was depicted in the images or videos on Spillum’s
electronic devices. His trial counsel argued as follows:
I would make the standard Rule 29 motion for judgment of
acquittal. I understand that the burden, or the benefit of the doubt
is given to the State in these types of motions. A couple of things I
would point out for the Court’s consideration: One, we have never
actually seen any of these images or anything that would actually
depict any of these sexual performances or anything like that. We
have had extremely vague descriptions of them that I don’t think
actually meet what the statute claims. I believe Mr. Schwarz’s
questions often were just: Do these meet the statute or are these
child pornography and that was the answers the witnesses gave.
There was not a depiction or a description of any of the sexual acts
that were actually performed.
3
[¶9] At the close of trial, Spillum renewed his objection without providing
further argument. Spillum did not assert there was a lack of evidence
establishing the location of the offense during his motion to the court. Although
Spillum began his Rule 29 motion with the assertion it was a “standard Rule
29 motion” he proceeded to provide a challenge to a specific element of the
offense: whether the State had met its burden of proving Spillum knowingly
possessed any motion picture, photograph, or other visual representation that
included sexual conduct by a minor. Because Spillum made a motion for
judgment of acquittal on specified grounds, and those grounds did not include
the claim on appeal, Spillum cannot now raise his argument challenging the
sufficiency of the evidence with regard to the location of the offense.
III
[¶10] Spillum argues the district court erred in denying his motion to suppress.
He asserts he was subject to a custodial interrogation during his third
interview with law enforcement because an arrest warrant had been issued
before the interview. Spillum contends the issuance of an arrest warrant prior
to the third interview required the officers to place him under arrest and
provide Miranda warnings before conducting the interview.
[¶11] This Court defers to the district court’s findings of fact and resolves
conflicts in testimony in favor of affirmance. State v. Washington, 2020 ND 120,
¶ 7,
943 N.W.2d 757. We will affirm a district court’s decision regarding a
motion to suppress if there is sufficient competent evidence fairly capable of
supporting the district court’s findings, and the decision is not contrary to the
manifest weight of the evidence. State v. Goebel,
2007 ND 4, ¶ 11,
725 N.W.2d
578. A question of law is fully reviewable on appeal, and whether a finding of
fact meets a legal standard is a question of law. State v. Brickle-Hicks,
2018
ND 194, ¶ 6,
916 N.W.2d 781. Whether a suspect was in custody, and therefore
entitled to Miranda warnings, is a mixed question of fact and law which is fully
reviewable on appeal. State v. Sabinash,
1998 ND 32, ¶ 14,
574 N.W.2d 827.
[¶12] In Miranda v. Arizona, the United States Supreme Court held, “the
prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates
4
the use of procedural safeguards effective to secure the privilege against selfincrimination.” 384 U.S. 436, 444,
86 S.Ct. 1602 (1966). Evidence obtained in
violation of the safeguards cannot be used against the defendant at trial, except
for impeachment purposes. Harris v. New York,
401 U.S. 222, 226,
91 S.Ct. 643
(1971).
[¶13] A custodial interrogation is defined as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” State v. Huether,
2010
ND 233, ¶ 14,
790 N.W.2d 901 (citing
Miranda, at 444, 86 S.Ct. 1602). “A
person is ‘in custody’ if there is a formal arrest or restraint on his freedom of
movement to the degree associated with a formal arrest.” State v. Hansford,
2019 ND 52, ¶ 14,
923 N.W.2d 113. When analyzing whether the accused was
in custody, all circumstances surrounding the interrogation must be
considered, but the ultimate inquiry is whether there was a formal arrest or a
restraint on freedom of movement of the degree associated with a formal
arrest. State v. Martin,
543 N.W.2d 224, 226 (N.D. 1996).
[¶14] This Court also considers how a reasonable person in the suspect’s
position would have understood the situation. State v. Golden,
2009 ND 108, ¶
9,
766 N.W.2d 473. When a reasonable person in a suspect’s position would feel
free to leave a police interview at any time, the questioning is not custodial and
Miranda does not apply. State v. Murray,
510 N.W.2d 107, 110 (N.D. 1994); see
also Berkemer v. McCarty,
468 U.S. 420, 421-422,
104 S.Ct. 3138, 3141 (1984)
(“[An officer’s] unarticulated plan has no bearing on the question whether a
suspect was ‘in custody’ at a particular time; the only relevant inquiry is how
a reasonable [person] in the suspect’s position would have understood [their]
situation.”). “The existence of the arrest warrant does not convert [a]
noncustodial situation into a custodial situation.” Murray, at 110 (determining
a police interview was not custodial and Miranda did not apply when the
suspect was unaware of the existence of an arrest warrant and a reasonable
person would have felt free to leave at any time).
[¶15] In this case, Spillum was unaware of the existence of the arrest warrant
prior to his third interview at the police department. At the beginning of the
5
interview, officers informed Spillum he was not under arrest, and he was not
restrained. Spillum did not request to have an attorney present during the
interview, and he voluntarily answered the officers’ questions. Under these
circumstances, a reasonable person in Spillum’s position would have felt free
to leave at any time. Therefore, Spillum was not subject to a custodial
interrogation, and the protections related to custodial interrogations as
expressed in Miranda did not apply.
IV
[¶16] We conclude Spillum has failed to preserve his challenge to the
sufficiency of the evidence related to whether the State had met its burden of
proving where the offense had occurred. The district court properly denied
Spillum’s motion to suppress because the existence of the arrest warrant,
unknown to Spillum at the time of the third interview, did not convert the
noncustodial interview into a custodial one. We affirm the judgment.
[¶17] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
6
