IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 127
State of North Dakota, Plaintiff and Appellee
v.
Joshua James Smith, Defendant and Appellant
Nos. 20240004 & 20240005
Appeal from the District Court of Burke County, North Central Judicial District, the
Honorable Richard L. Hagar, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Amber J. Fiesel, State’s Attorney, Bowbells, N.D., for plaintiff and appellee; on brief.
Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant; on brief.
State v. Smith
Nos. 20240004 & 20240005
Tufte, Justice.
[¶1] Joshua Smith appeals from criminal judgments entered after a bench trial which
convicted him of felonious restraint, two counts of forcible gross sexual imposition, and
six counts of aggravated assault. On appeal, he argues the evidence was insufficient to
convict him of six counts of aggravated assault because the State proved only three counts
at trial. He also argues his felonious restraint and aggravated assault convictions violate the
double jeopardy provisions of the state and federal constitutions because felonious restraint
and aggravated assault are lesser included offenses which merge into the two counts of
gross sexual imposition. We affirm the judgments.
I
[¶2] The State charged Smith with two counts of forcible gross sexual imposition, six
counts of aggravated assault, and one count of felonious restraint. Smith waived his right
to a jury trial, and a bench trial was held. At trial, the State provided testimony from the
victim, the defendant’s landlord, witnesses who assisted the investigation, and law
enforcement officers. After the State rested, Smith moved for acquittal under
N.D.R.Crim.P. 29. The court denied the motions and rendered a guilty verdict on all counts.
Smith appeals.
II
[¶3] Smith argues the evidence was insufficient to support his conviction on six counts
of aggravated assault.
[¶4] This Court’s standard for reviewing a sufficiency-of-the-evidence challenge is well
established:
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.
1
State v. Salou, 2024 ND 6, ¶ 12,
1 N.W.3d 602 (quoting State v. Noble,
2023 ND 119, ¶ 4,
992 N.W.2d 518). A defendant does not need to move for judgment of acquittal under
N.D.R.Crim.P. 29 at a bench trial to preserve the issue of sufficiency-of-the-evidence for
appeal. State v. Ismail,
2022 ND 199, ¶ 10,
981 N.W.2d 896; State v. Himmerick,
499
N.W.2d 568, 572 (N.D. 1993) (announcing rule for criminal bench trials different from the
rule for criminal jury trials and civil cases).
[¶5] During trial, Smith moved for a judgment of acquittal on a specific ground, which
was different from the argument now asserted on appeal. We have held that when a motion
is made under Rule 29 on specific grounds during a jury trial, the specific grounds argued
before the district court are the only arguments preserved for appeal and any new argument
asserting insufficient evidence will be reviewed under the obvious error standard. State v.
Studhorse,
2024 ND 110, ¶ 28. We do not decide here whether Smith’s Rule 29 motion
limits our review of grounds not specified to obvious error because the result here is the
same when reviewed for obvious error or sufficiency-of-the-evidence.
[¶6] Smith asserts the State failed to prove six counts of aggravated assault because the
victim testified to only three instances of aggravated assault. We disagree. At trial, the court
admitted into evidence a recorded interview of Smith. In the interview, Smith described
choking the victim nine or ten times, and all but three of the times, he choked the victim
until she passed out. This evidence was sufficient to support conviction on six counts of
aggravated assault, and thus the court did not err in denying Smith’s Rule 29 motion and
rendering a guilty verdict.
III
[¶7] Smith argues his convictions of felonious restraint and aggravated assault violate
the double jeopardy provisions of the state and federal constitutions because felonious
restraint and aggravated assault are lesser included crimes that merge into the two counts
of gross sexual imposition.
[¶8] This Court applies “de novo review to constitutional issues, including double
jeopardy claims.” State v. Kollie, 2023 ND 152, ¶ 19,
994 N.W.2d 367. “[W]here the same
act or transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” Blockburger v. United States,
284 U.S.
299, 304,
52 S. Ct. 180,
76 L. Ed. 306 (1932); see also State v. Bertram,
2006 ND 10, ¶ 14,
2
708 N.W.2d 913 (applying Blockburger “same elements” test). Under this test, the offenses
are different if “each offense contains an element not contained in the other.” Peterka v.
State,
2015 ND 156, ¶ 9,
864 N.W.2d 745. This Court has rejected a “same evidence” test,
so “neither a common episode nor the same evidence determines double jeopardy.”
Bertram, at ¶ 14.
[¶9] First, Smith argues felonious restraint is a lesser included crime of forcible gross
sexual imposition. In the district court’s findings of fact and verdict, an essential element
of felonious restraint required the defendant “[k]nowingly restrained [] another human
being, under terrorizing circumstances or under circumstances exposing [the victim] to risk
of serious bodily injury.” N.D.C.C. § 12.1-18-02(2) (felonious restraint statute). An
essential element for gross sexual imposition required that the defendant “willfully engaged
in sexual contact [or act] with [the victim].” N.D.C.C. § 12.1-20-03(1)(a) (gross sexual
imposition-forcible sexual act statute) and N.D.C.C. § 12.1-20-03(2)(b) (gross sexual
imposition-forcible sexual contact statute). Under the Blockberger test, felonious restraint
is not a lesser included offense of gross sexual imposition. Felonious restraint requires
proof that the victim was restrained but not that sexual contact or a sexual act occurred,
whereas gross sexual imposition requires proof of a sexual contact or sexual act and does
not require proof of restraint. Felonious restraint and gross sexual imposition each require
proof of an element which the other lacks. Thus, felonious restraint is not a lesser included
offense of forcible gross sexual imposition. Kollie,
2023 ND 152, ¶ 20 (concluding crimes
with different elements are not the same offense).
[¶10] Second, Smith argues aggravated assault is a lesser included offense of gross sexual
imposition. In the district court’s findings of fact and verdict, an essential element of
aggravated assault required that the defendant “(3) [w]illfully engaged in conduct; (4)
[w]hich caused serious bodily injury to [] another human being.” N.D.C.C. § 12.1-17-
02(1)(a). An essential element for gross sexual imposition required that the defendant
“willfully engaged in sexual contact [or act].” N.D.C.C. § 12.1-20-03(1)(a) (gross sexual
imposition-forcible sexual act statute) and N.D.C.C. § 12.1-20-03(2)(b) (gross sexual
imposition-forcible sexual contact statute). Under the Blockberger test, aggravated assault
is not a lesser included offense of gross sexual imposition, because aggravated assault
requires infliction of serious bodily injury but not sexual contact or a sexual act, whereas
gross sexual imposition requires sexual contact or a sexual act and does not require the
infliction of serious bodily injury. Aggravated assault and gross sexual imposition each
require proof of an element which the other lacks. Since both require different elements,
3
aggravated assault is not a lesser included offense of forcible gross sexual imposition.
Kollie, 2023 ND 152, ¶ 20 (concluding crimes with different elements are not the same
offense).
IV
[¶11] We affirm the criminal judgments.
[¶12] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
4
