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 116
State of North Dakota, Plaintiff and Appellee
v.
Corey Lynn Gardner, Defendant and Appellant
No. 20220360
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Paul W. Jacobson, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for plaintiff and
appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Gardner
No. 20220360
Bahr, Justice.
[¶1] Corey Lynn Gardner appeals from a criminal judgment entered after a
jury convicted her of child abuse in violation of N.D.C.C. § 14-09-22. She argues
improper jury instructions resulted in obvious error. She also argues
insufficient evidence supports the conviction. We affirm the judgment.
I
[¶2] Gardner was charged with child abuse in violation of N.D.C.C. § 14-09-
22. The Information alleged, as “the daytime caregiver of Jane Doe, age 2
months,” Gardner “inflicted or allowed to be inflicted bodily injury on Jane
Doe[.]” Section 14-09-22(1), N.D.C.C., provides:
[A] parent, adult family or household member, guardian, or other
custodian of any child, who willfully inflicts or allows to be inflicted
upon the child mental injury or bodily injury, substantial bodily
injury, or serious bodily injury as defined by section 12.1-01-04 is
guilty of a class C felony except if the victim of an offense under
this section is under the age of six years in which case the offense
is a class B felony.
[¶3] The district court’s opening instructions describe the charged offense as:
“Corey Lynn Gardner, the daytime caregiver to Jane Doe, age two months,
inflicted or allowed to be inflicted bodily injury on Jane Doe . . . .” The closing
instructions state the essential elements of abuse of a child as:
The State’s burden of proof is satisfied if the evidence shows,
beyond a reasonable doubt, the following essential elements:
1) On or about November 6, 2018, in Williams County,
North Dakota;
2) The Defendant, Corey Lynn Gardner;
3) Was an other custodian of Jane Doe, a minor child,
under the age of six years; and
4) Willfully inflicted or willfully allowed to be inflicted
upon the child, bodily injury.
1
Gardner did not object to the instructions.
II
[¶4] Gardner argues the jury instructions incorrectly informed the jury of the
law because the instructions improperly state the culpability level in the
essential elements as “willfully inflicted or willfully allowed to be inflicted upon
the child.” Gardner acknowledges she did not object to the instructions and,
thus, did not preserve the issue for appellate review. However, she asks this
Court to review the instructions under the obvious error standard. She argues
the district court’s insertion of “willfully” before “allowed to be inflicted” is
obvious error.
[¶5] Because Gardner did not preserve this issue for appeal, the alleged error
will only be reviewed for obvious error. See State v. Watts, 2023 ND 47, ¶ 19,
988 N.W.2d 254 (stating when the defendant fails to properly object to a
proposed jury instruction the alleged error is not preserved for appeal and the
instruction will only be reviewed for obvious error); State v. Schaf,
2023 ND
81, ¶ 17,
989 N.W.2d 473 (same). “To establish an obvious error, the defendant
must show: (1) error; (2) that is plain; and (3) the error affects the defendant’s
substantial rights.” State v. Smith,
2023 ND 6, ¶ 5,
984 N.W.2d 367 (cleaned
up). “To constitute obvious error, the error must be a clear deviation from an
applicable legal rule under current law. There is no obvious error when an
applicable rule of law is not clearly established.” State v. Lott,
2019 ND 18, ¶ 8,
921 N.W.2d 428 (quoting State v. Tresenriter,
2012 ND 240, ¶ 12,
823 N.W.2d
774). “We have discretion in deciding whether to correct an obvious error, and
we should exercise that discretion only if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Smith, at ¶ 5.
(cleaned up). Sustaining a conviction based on jury instructions that do not
require findings on every essential element would violate due process and
seriously affect the fairness, integrity, and public reputation of criminal
proceedings. Id. at ¶ 18.
[¶6] “Jury instructions must correctly and adequately inform the jury of the
applicable law and must not mislead or confuse the jury.” State v. Martinez,
2015 ND 173, ¶ 8,
865 N.W.2d 391 (cleaned up). “We review the instructions as
2
a whole to determine whether they correctly and adequately advise the jury of
the applicable law even if part of the instruction standing alone may be
insufficient or erroneous.” State v. Gaddie, 2022 ND 44, ¶ 6,
971 N.W.2d 811.
[¶7] We must review the statute to assure the jury instructions correctly and
adequately inform the jury of the applicable law. “The construction of a
criminal statute presents a question of law that is fully reviewable on appeal.”
Gaddie,
2022 ND 44, ¶ 17.
Our primary goal in interpreting statutes is to ascertain the
Legislature’s intentions. In ascertaining legislative intent, we first
look to the statutory language and give the language its plain,
ordinary and commonly understood meaning. We interpret
statutes to give meaning and effect to every word, phrase, and
sentence, and do not adopt a construction which would render part
of the statute mere surplusage. When a statute’s language is
ambiguous because it is susceptible to differing but rational
meanings, we may consider extrinsic aids, including legislative
history, along with the language of the statute, to ascertain the
Legislature’s intent. We construe ambiguous criminal statutes
against the government and in favor of the defendant.
Id. (cleaned up).
[¶8] According to Gardner, “willful conduct” and “allowance” are incongruent;
she asserts one cannot allow something to happen if she does not know it is
occurring. Gardner provides no authority showing, generally or specifically as
to N.D.C.C. § 14-09-22(1), it is incongruous to modify the verb “allowed” with
“willfully.” To the contrary, in State v. Anderson,
480 N.W.2d 727, 730 (N.D.
1992), this Court stated to find a defendant acted “willfully” the jury was
required to find the defendant “had acted consciously and with a clearly
unjustifiable disregard for the risk of harm” to the victim. Thus, “we have
interpreted the definition of ‘willfully’ under N.D.C.C. § 12.1-02-02 to require
volition.” Gaddie,
2022 ND 44, ¶ 24. See State v. Trevino,
2011 ND 232, ¶ 31,
807 N.W.2d 211 (explaining we may apply a definition from N.D.C.C. § 12.1-
02-02(1) to affirmatively define a culpability term which is present in another
statute); N.D.C.C. § 1-01-09 (“Whenever the meaning of a word or phrase is
3
defined in any statute, such definition is applicable to the same word or phrase
wherever it occurs in the same or subsequent statutes, except when a contrary
intention plainly appears.”). Because reckless conduct requires “conscious
disregard,” “willful conduct” and “allowance” are not incongruent.
[¶9] Furthermore, the Legislature has criminalized willful allowance in other
areas of the Century Code. In 2019, the Legislature amended N.D.C.C. § 12.1-
36-01 to include subsection (3): “Any parent, adult family or household
member, guardian, or other custodian of any child who willfully allows a child
to be surgically altered under this section is guilty of child abuse under
subsection 1 of section 14-09-22.” (Emphasis added.) See 2019 N.D. Sess. Laws
ch. 122, § 1. Since 1989, our code has included an infraction for willful
allowance under N.D.C.C. § 61-14-16, which provides:
No person may place, erect, or operate a sprinkler irrigation
system, center pivot irrigation system, or other irrigation works or
equipment upon or across any highway, street, or road or in such a
manner as to willfully allow water from the irrigation works or
equipment to flow or fall upon any highway, street, or road.
(Emphasis added.)
[¶10] Finally, the legislative history of N.D.C.C. § 14-09-22 supports the
conclusion “willfully” modifies the word “allows.” In 2015, the Legislature
separated the offenses of child abuse from neglect of a child, moving child
neglect from N.D.C.C. § 14-09-22 to N.D.C.C. § 14-09-22.1. 2015 N.D. Sess.
Laws ch. 127, § 3; see State v. Soucy, 2020 ND 119, ¶ 8,
943 N.W.2d 755. This
amendment changed the following language:
1. Except as provided in subsection 2 or 3, a parent, adult family
or household member, guardian, or other custodian of any child,
who willfully commits any of the following offenses inflicts or
allows to be inflicted upon the child mental injury or bodily injury,
substantial bodily injury, or serious bodily injury as defined by
section 12.1-01-04 is guilty of a class C felony except if the victim
of an offense under subdivision a this section is under the age of
six years in which case the offense is a class B felony:
4
a. Inflicts, or allows to be inflicted, upon the child,
bodily injury, substantial bodily injury, or serious
bodily injury as defined by section 12.1–01–04 or
mental injury.
b. Fails to provide proper parental care or control,
subsistence, education as required by law, or other
care or control necessary for the child’s physical,
mental, or emotional health, or morals.
c. Permits the child to be, or fails to exercise
reasonable diligence in preventing the child from
being, in a disreputable place or associating with
vagrants or vicious or immoral persons.
d. Permits the child to engage in, or fails to exercise
reasonable diligence in preventing the child from
engaging in, an occupation forbidden by the laws of
this state or an occupation injurious to the child’s
health or morals or the health or morals of others.
2015 N.D. Sess. Laws ch. 127, § 3. Thus, prior to the amendment, “willfully”
modified all of the listed offenses, including “[i]nflict[ing], or allow[ing] to be
inflicted, upon the child, bodily injury, substantial bodily injury, or serious
bodily injury as defined by section 12.1-01-04 or mental injury.”
[¶11] Section 14-09-22.1, N.D.C.C., now provides: “A parent, adult family or
household member, guardian, or other custodian of any child, who willfully
commits any of the following offenses is guilty of a class C felony,” which
adopted the previous subsections (b)-(d) of section 14-09-22(1) as its “following
offenses.” 2015 N.D. Sess. Laws ch. 127, § 3. The child abuse statute, section
14-09-22(1), retained subsection (a) and incorporated the “offense” of “inflicts
or allows to be inflicted upon the child mental injury or bodily injury,
substantial bodily injury, or serious bodily injury[.]” Therefore, the elements of
the offense include the willful conduct of “inflict[ing] or allow[ing] to be
inflicted upon the child mental injury or bodily injury, substantial bodily injury,
or serious bodily injury.”
[¶12] We conclude the district court’s use of “willfully allowed to be inflicted”
in the jury instructions is not error, obvious or otherwise.
5
III
[¶13] Gardner argues the jury instructions combined two alternative methods
of child abuse, which did not assure the defendant a unanimous verdict. She
argues the jury instructions allowed the jury to convict her of the crime without
all the jurors agreeing on which of the underlying actions constituted child
abuse beyond a reasonable doubt.
[¶14] All verdicts in criminal cases must be unanimous. N.D. Const. art. I,
§ 13; N.D.R.Crim.P. 31(a); see also Martinez, 2015 ND 173, ¶ 18. “No person
may be convicted of an offense unless each element of the offense is proved
beyond a reasonable doubt.” State v. Pulkrabek,
2017 ND 203, ¶ 6,
900 N.W.2d
798 (quoting N.D.C.C. § 12.1-01-03(1)).
[¶15] Gardner argues the instructions were incorrect because different jurors
could have found Gardner inflicted bodily injury, while others could have found
she allowed bodily injury to be inflicted. We analyzed similar arguments under
the theft statute and a disorderly conduct ordinance. See Pulkrabek,
2017 ND
203 (analyzing the theft statute under N.D.C.C. § 12.1-23-02); City of Mandan
v. Sperle,
2004 ND 114,
680 N.W.2d 275 (analyzing the disorderly conduct
ordinance under Mandan City Ordinance § 19-05-01). Both decisions rely on
the United States Supreme Court decision in Schad v. Arizona,
501 U.S. 624
(1991), which held the defendant’s due process rights were not violated when
he was convicted of first-degree murder under instructions that did not require
the jury to agree on the alternative theories of premeditated and felony murder.
[¶16] In Schad, the Supreme Court explained “legislatures frequently
enumerate alternative means of committing a crime without intending to
define separate elements or separate crimes.”
501 U.S. at 636 (footnote
omitted). “If a State’s courts have determined that certain statutory
alternatives are mere means of committing a single offense, rather than
independent elements of the crime, we simply are not at liberty to ignore that
determination and conclude that the alternatives are, in fact, independent
elements under state law.” Id.
6
[¶17] As explained above, in 2015, the Legislature separated the offenses of
child abuse from neglect of a child. 2015 N.D. Sess. Laws ch. 127, § 3. In doing
so, the Legislature separated conduct resulting in an offense of child abuse
from conduct resulting in an offense of child neglect. What remains under
N.D.C.C. § 14-09-22 is conduct resulting in the offense of child abuse, which
includes two alternative means of committing the crime: (1) a custodian
inflicting upon the child mental or bodily injury or (2) a custodian allowing
mental or bodily injury to be inflicted upon the child.
[¶18] Similar to the disorderly conduct ordinance and the theft statute, the
North Dakota Legislature chose to enumerate two alternative means of
committing child abuse, without intending to define separate elements or
crimes. This is evidenced by not only the legislative history of N.D.C.C. § 14-
09-22, but by the language of the statute itself. The statute uses “or” to set
apart the two nonexclusive means of committing child abuse. Either action in
violation of the statute is sufficient to justify a conviction under the statute.
See Pulkrabek, 2017 ND 203, ¶ 18 (analyzing alternative means of committing
a theft under North Dakota statute). In fact, that the two behaviors are
alternative, nonexclusive means of committing the same offense is even more
apparent in N.D.C.C. § 14-09-22(1) than the theft statute in Pulkrabek and the
disorderly conduct ordinance in Sperle. The two alternative behaviors of
committing child abuse under N.D.C.C. § 14-09-22(1) are stated in the same
subsection and only separated by the word “or,” while in Pulkrabek and Sperle
multiple nonexclusive alternative behaviors are stated in multiple
subdivisions.
2017 ND 203, ¶ 7;
2004 ND 114, ¶ 13; see also N.D.C.C. § 14-09-
22.1. We conclude in adopting N.D.C.C. § 14-09-22 the Legislature enumerated
alternative means of committing child abuse and did not define separate
elements or separate crimes.
[¶19] The jury was not required to unanimously agree upon which of the two
alternative means of committing child abuse—Gardner inflicting bodily injury
or Gardner allowing bodily injury to be inflicted—it believed the State proved
beyond a reasonable doubt.
7
IV
[¶20] Gardner argues insufficient evidence supports the conviction. Gardner
failed to meet her burden of showing the evidence reveals no reasonable
inference of guilt when viewed in the light most favorable to the verdict. See
State v. Rai, 2019 ND 71, ¶ 13,
924 N.W.2d 410 (explaining 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). Based on the record,
sufficient evidence allows a jury to draw a reasonable inference in favor of
conviction. We summarily affirm under N.D.R.App.P. 35.1(a)(3).
V
[¶21] We affirm the judgment.
[¶22] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
8
