State v. Linner

                                                                                 FILED
                                                                         IN THE OFFICE OF THE
                                                                      CLERK OF SUPREME COURT
                                                                             MARCH 31, 2023
                                                                       STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                   Plaintiff and Appellee
      v.
Jonathan Garrett Linner,                              Defendant and Appellant

                                 No. 20210362

Appeal from the District Court of Walsh County, Northeast Judicial District,
the Honorable Barbara L. Whelan, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Kelley M. R. Cole, State’s Attorney, Grafton, ND, for plaintiff and appellee.

Monty G. Mertz, Fargo, ND, for defendant and appellant.
                               State v. Linner
                                No. 20210362

Bahr, Justice.

[¶1] Jonathan Linner appeals from a criminal judgment entered after a jury
convicted him of continuous sexual abuse of a child. We conclude no structural
error occurred when the district court closed the courtroom for limited voir
dire, Linner was not prejudiced or denied due process by the State’s voir dire,
and the court did not err by ordering no contact with his minor children as a
condition of the sentence. We affirm.

                                       I

[¶2] In 2018, law enforcement investigated terrorizing allegations after one
of Linner’s children reported to a school counselor Linner threatened the child’s
mother with a gun because the mother caught the child victim, aged 14, in bed
with Linner. The child victim was interviewed and did not disclose any sexual
abuse at that time. Linner was subsequently charged and pled guilty to
terrorizing with a dangerous weapon.

[¶3] In May 2020, the child victim came forward and disclosed details
regarding Linner’s sexual abuse of the child that began when the child was
seven years old and continued until the night the mother found them in bed
together. The State charged Linner with continuous sexual abuse of a child in
violation of N.D.C.C. § 12.1-20-03.1(1), a class AA felony.

[¶4] In August 2021, the district court held a jury trial. The jury returned a
verdict finding Linner guilty of continuous sexual abuse of a child. After a
December 2021 sentencing hearing, the court entered a criminal judgment
sentencing Linner to life in prison without the possibility of parole. As part of
his sentence, the court ordered Linner to have no contact with his children.

                                       II

[¶5] Linner argues there was structural error in closing the courtroom for
limited voir dire. He contends structural error occurred because the



                                       1
questionnaire given to the prospective jurors exceeded the scope of the district
court’s Waller findings and the order closing the courtroom was not followed.

[¶6] “The structural error doctrine applies to a narrow class of rights,
including three Sixth Amendment rights defining the framework of a trial: the
right to counsel, the right to self-represent, and the right to a public trial.”
State v. Martinez, 

, 

 (citing State v. Rogers,

, ¶ 5, 

). A structural error affects the framework
within which a trial proceeds and therefore “renders the trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence.” Martinez,
at ¶ 4. This Court applies a de novo standard to review whether facts rise to
the level of a public trial violation. Id. at ¶ 19. “Voir dire falls within the scope
of public trials under the Sixth Amendment.” State v. Decker, 

,

. See also Martinez, at ¶ 33 (“the Sixth Amendment public trial
right extends to jury selection”).

[¶7] “When considering on appeal a defendant’s claim that his right to a
public trial was violated, we first consider whether the claim of error was
preserved at trial. We then consider the threshold question of whether there
was a closure implicating the public trial right.” Martinez, 

(citation omitted). If there was a closure, this Court determines “whether the
trial court made pre-closure Waller findings sufficient to justify the closure.”

 When a defendant does not preserve the public trial issue with a timely
objection at the trial, this Court reviews only for obvious error. See id. at ¶ 12
(discussing State v. Morales, 

, 

).

[¶8] Linner and the State filed a Stipulation for Use of Confidential Jury
Questionnaire and Limited Closure of Voir Dire. In the Stipulation, the parties
stipulated to the use of a confidential jury questionnaire, attached to the
Stipulation as an exhibit. The parties further stipulated that “private
individual” questioning of prospective jurors would be “conducted within the
Court’s chambers, but on the record,” “with regard to the questionnaire
provided to the prospective jurors.” As stipulated, the private individual
questioning of prospective jurors “conducted within the Court’s chambers,”
would only be attended “by the defendant, defendant’s counsel, the State’s


                                         2
Attorney, a law enforcement officer (sitting in as inconspicuous place as
possible), and the individual prospective jurors on a one-by-one basis.” The
Stipulation further provided “the prospective jurors shall be examined on their
answers provided on the questionnaire[.]” Finally, the Stipulation provided the
State would give notice of the Stipulation and the press would be given the
opportunity to object to the Stipulation at a July 26, 2021 hearing. The
stipulated questionnaire contained eleven questions which were to be marked
“Yes” or “No.”

[¶9] The district court held a hearing on July 26, 2021. At the hearing, after
not receiving any written or oral objections to the Stipulation, the district court
made Waller findings. It then obtained from Linner an express waiver of his
right to a public trial as to the questions on the Jury Questionnaire and private
individual questioning of prospective jurors. The court found Linner’s waiver
was knowing, intelligent, and voluntary.

[¶10] Linner asserts the district court’s Waller analysis was defective and
three of the questions exceeded the scope of the court’s findings, i.e., the three
questions were broader than what was required to protect the asserted
interest. However, Linner acknowledges, and the record shows, Linner
knowingly, intelligently, and voluntarily waived his right to a public trial as to
the proposed questions. In Martinez, this Court concluded “the right to a public
trial can be waived according to the same standards of knowing, intelligent,
and voluntary waiver that we have applied to other Sixth Amendment rights
that implicate structural error such as the right to counsel and the right to a
jury trial.” 

. Because Linner knowingly, intelligently, and
voluntarily waived his right to a public trial as to the questions on the
stipulated Jury Questionnaire, we need not address whether the court’s pre-closure Waller findings were sufficient to justify the closure as to the stipulated
questions.

[¶11] Linner also argues the district court violated its own order by addressing
other questions during the closed individual questioning of prospective jurors,
such as medical and travel issues. Linner did not object to the questions
exceeding the scope of the stipulated closure. Moreover, the individual


                                        3
questioning was recorded. “When a transcript is available to the public after
the trial, all of the values of public access are preserved.” State v. Pulkrabek,

, 

 (quoting Minneapolis Star & Tribune Co.
v. Kammeyer, 

 (Minn. 1983)). See also State v. Davis-Heinze, 

, 

 (“Although we have ‘disapproved of ’
such off-the-record discussions, these circumstances may not violate the public
trial right if this Court is able to review a record of what occurred.”); Morales,

 (public trial right is satisfied by availability of record of
proceedings).

[¶12] Linner knowingly, intelligently, and voluntarily waived his right to a
public trial as to the questions on the stipulated Jury Questionnaire. Linner
further knowingly, intelligently, and voluntarily waived his right to a public
trial as to the individual questioning of prospective jurors, including
prospective jurors being “examined on their answers provided on the
questionnaire[.]” Linner did not object to any additional questions asked
during the questioning of individual prospective jurors. Not only does the
transcript of the individual questioning serve the purpose of a public trial, it
shows most of the additional follow-up questions related to issues of bias
articulated in the questionnaire and, thus, were within the scope of the waiver.
Morales, 

 (discussing four basic principles embodied in the
public trial right). Under the facts of this case, we conclude the district court
did not violate Linner’s Sixth Amendment right to a public trial.

                                      III

[¶13] Linner argues the State’s voir dire was prejudicial or denied him due
process of law.

[¶14] We apply the de novo standard of review “to whether facts rise to the
level of a constitutional violation, including a claim that prosecutorial
misconduct denied a defendant’s due process right to a fair trial.” State v.
Patterson, 

, 

 (quoting State v. Pena Garcia,

, 

). However, when the defendant does not object
to the alleged errors at trial, as in this case, “our review is limited to
determining if the prosecutor’s conduct prejudicially affected [the defendant’s]

                                        4
substantial rights, so as to deprive him of a fair trial.” State v. Duncan, 

, 

 (quoting State v. Burke, 

, 

). “This Court ‘exercise[s] [its] authority to notice obvious error
cautiously and only in exceptional circumstances in which the defendant has
suffered serious injustice.’” Patterson, at ¶ 3 (quoting Duncan, at ¶ 18).

[¶15] “An obvious error or defect that affects substantial rights may be
considered even though it was not brought to the court’s attention.”
N.D.R.Crim.P. 52(b). When analyzing claims of obvious error, we may “notice
a claimed error that was not brought to the attention of a trial court if there
was (1) error, (2) that is plain, and (3) affects substantial rights.” Patterson,

 (quoting State v. Clark, 

, 

).
“In order to affect ‘substantial rights,’ an error must have been prejudicial, or
affected the outcome of the proceeding.” State v. Erickstad, 

,

. The defendant has the burden to show the alleged error was
prejudicial. Patterson, at ¶ 4.

[¶16] “Even if the defendant meets his burden of establishing obvious error
affecting substantial rights, the determination whether to correct the error lies
within the discretion of the appellate court, and the court should exercise that
discretion only if the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Patterson, 

 (quoting State
v. Olander, 

, 

). “An alleged error does not
constitute obvious error unless there is a clear deviation from an applicable
legal rule under current law.” 

 (quotation marks omitted).

[¶17] Linner contends the State engaged in an “education and sales pitch” to
the jurors undermining the presumption of innocence and misstating the
burden of proof. He contends the State, during the voir dire process, improperly
informed the jury of facts, represented as fact there would be no medical
evidence of years of sexual abuse, and “primed” the jury to know and care about
the victim on a first-name basis. Although he does not cite any specific cases
relating to the voir dire process, Linner asserts the State’s statements resulted
in an unfair trial and a deprivation of due process.



                                        5
[¶18] The State responds the alleged errors did not have a significant impact
on the jury’s verdict in this case and did not affect Linner’s right to a fair trial.
The State contends the comments complained of are taken out of context and
there were many other times when the burden of proof was correctly stated to
the jury. Further, the State relies on the jury instructions as curing any error
and possible prejudice, notes the jury is presumed to follow the court’s
instructions, and argues this Court must examine the statements within the
entire record and the probable effect of the actions alleged to be in error in light
of all the evidence.

[¶19] When read in context, the alleged statements do not appear improper.
However, even if they were, we are unable to conclude the statements had the
probable effect of affecting the outcome of the proceedings. On multiple
occasions the parties and the district court informed the jury of the correct
burden of proof, including in the instructions. “We presume the jury follows the
judge’s instructions.” State v. Skorick, 

, 

. Any
prejudice from the State’s statements were minimized by the court’s
instructions. Patterson, 

. Because Linner’s substantial rights
were not affected so as to constitute obvious error, his right to due process was
not violated.

                                        IV

[¶20] Linner was convicted of continuous sexual abuse of a child under
N.D.C.C. § 12.1-20-03.1(1), class AA felony, and was sentenced to life in prison
without parole. In the criminal judgment’s “[c]ommitments” section, the
district court included the following language: “2. Defendant shall have no
contact with his wife, children, brother or his wife.”

[¶21] Linner argues the district court improperly ordered no contact with his
minor children as a condition of the sentence. He contends the court lacked
authority to issue the “post-disposition order,” relying primarily on N.D.C.C. §
12.1-31.2-02 and State v. Wilder, 

, ¶ 17, 

. “Appellate
review of a criminal sentence is generally limited to determining whether the
district court acted within the statutory sentencing limits or substantially
relied upon an impermissible factor.” Wilder, at ¶ 17 (citing State v. Corman,

                                         6


, 

). Statutory interpretation presents a
question of law, fully reviewable on appeal. 

[¶22] Linner’s reliance on N.D.C.C. § 12.1-31.2-02 and Wilder, 

, are
misplaced. Section 12.1-31.2-02, N.D.C.C., relates to orders prohibiting contact
when a defendant is released from custody pending arraignment or trial.
Linner was not released from custody pending arraignment or trial; Linner
was sentenced after being convicted of continuous sexual abuse of a child.
Wilder involved a sentence after a conviction of murder where there was no
statutory authority to order no contact as part of a prison sentence. 

, ¶ 19. In Wilder, this Court explained “a sentencing court cannot order no
contact as part of an executed sentence in the absence of a specific statutory
provision explicitly allowing it.” Id. at ¶ 20. Such a statute exists in this case.

[¶23] Section 12.1-32-01, N.D.C.C., authorizes a district court to sentence an
individual convicted of a class AA felony to a maximum sentence of life
imprisonment without parole. Section 12.1-32-02, N.D.C.C., authorizes the
court to sentence a defendant to one or more of a number of alternatives,
including a term of imprisonment, probation, fines, restitution, and sex
offender treatment. Section 12.1-32-02(1), N.D.C.C., amended after Wilder,
2019 N.D. Sess. Laws ch. 117, § 1, specifically provides: “If the person is
sentenced to a term of imprisonment, the court may prohibit the person from
contacting the victim during the term of imprisonment. For purposes of this
subsection, ‘victim’ means victim as defined in section 12.1-34-01.”

[¶24] Under N.D.C.C. § 12.1-34-01(10), “‘[v]ictim’ means a person who suffers
direct or threatened physical, financial, or psychological harm as the result of
the commission or attempted commission of a crime or delinquent act or
against whom the crime or delinquent act is committed.”

[¶25] Article I, section 25(1)(b), of the North Dakota Constitution provides all
crime victims “[t]he right to be free from intimidation, harassment, and abuse.”
Section 25(4) provides a similar definition of “victim” as the above-quoted
statute, but further clarifies “[i]f a victim is . . . a minor, the victim’s spouse,
parent, grandparent, child, sibling, grandchild, or guardian, and any person


                                         7
with a relationship to the victim that is substantially similar to a listed
relationship, may also exercise these rights.” N.D. Const. art. I, § 25(4)
(emphasis added).

[¶26] “The word ‘or’ is disjunctive in nature and ordinarily indicates an
alternative between different things or actions.” State v. G.C.H., 

, 

 (quoting Indus. Contractors, Inc. v. Workforce Safety &
Ins., 

, 

). Thus, under both N.D.C.C. § 12.1-
34-01(10) and N.D. Const. art. I, § 25(1)(b), the victim can be the person against
whom the crime was committed or a person who suffers direct or threatened
physical or psychological harm as the result of the commission of the crime. A
district court can reasonably conclude a minor sibling of a minor victim of
continuous sexual abuse suffers direct psychological harm and threatened
physical and psychological harm.

[¶27] Section 12.1-31.2-02, N.D.C.C., explicitly authorizes a sentencing court
to order no contact with the victim during the term of imprisonment. On
review, based on the nature of the crime and the underlying facts, we conclude
the statutory definition of “victim” under N.D.C.C. § 12.1-34-01(10) is broad
enough to encompass Linner’s children. Moreover, our state constitution
provides family members and people with “substantially similar” relationships
with the victim may also exercise the rights afforded to a minor victim. See
N.D. Const. art. I, § 25(4).

[¶28] At the sentencing hearing, the State asked the district court “specifically
on behalf of the victims and family involved in this case that there be a no
contact order issued, that [Linner] not be allowed to have contact with those
family members. . . . I am talking about the wife and the six children, as well
as the former guardians of [the child victim.]” In sentencing Linner, the court
specifically found the evidence showed Linner has “a very, very high level of
dangerousness.” On the basis of the evidence presented at trial, there is
evidence in the record supporting the court’s findings and its exercise of
discretion in imposing the no contact order.




                                        8
[¶29] Linner’s argument on appeal is without merit. The district court did not
err in ordering no contact with his minor children as a condition of the
sentence.

                                     V

[¶30] The criminal judgment is affirmed.

[¶31] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                      9