FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 7, 2024
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 39
State of North Dakota, Plaintiff and Appellee
v.
Patrick Wiese, Defendant and Appellant
Nos. 20230220 & 20230221
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Kirsten M. Sjue, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for plaintiff and
appellee; submitted on brief.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant;
submitted on brief.
State v. Wiese
Nos. 20230220 & 20230221
Bahr, Justice.
[¶1] Patrick Wiese appeals from two criminal judgments entered following a
jury verdict finding him guilty of one count of promoting a sexual performance
by a minor; one count of patronizing a minor for commercial sexual activity;
and twelve counts of possession of certain materials prohibited. We conclude
Wiese invited the error he alleges in the jury instructions. We further conclude
there was sufficient evidence for a jury to convict. We affirm.
I
[¶2] The State alleged Wiese used an online messaging service to
communicate with the minor victim and to have her send explicit materials to
his online messaging account. In return for the materials, Wiese paid cash to
or obtained vape products for the victim. Prior to trial, Wiese submitted
proposed jury instructions. With regard to the charge of patronizing a minor
for commercial sexual activity, Wiese’s proposed instruction included the term
“willfully” as an essential element of the charge. At the pretrial conference, the
district court addressed the preliminary jury instructions, which it had
previously sent out. Wiese made no objection to the proposed instructions.
[¶3] After the evidentiary portion of the trial, the district court provided the
parties the draft final jury instructions. After the parties had time to review
the draft final instructions, the court discussed the instructions and provided
the parties the opportunity to object. The proposed instruction regarding the
charge of patronizing a minor for commercial sexual activity included the term
“willfully” as part of an essential element. The court referenced the instruction
and asked Wiese if he had any objections. Wiese responded, “No, Your Honor.”
[¶4] At trial, a detective testified to obtaining saved messages and images
from the victim’s phone. The district court received the messages and images
into evidence. The detective further testified to locating the materials on the
messaging account associated with Wiese. The court received into evidence the
information the detective obtained from the messaging service. Wiese also
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testified at trial. He admitted the messages were from him; that he asked the
victim for pictures, videos, and sex; and that he received nude pictures from
the victim.
[¶5] The jury returned a guilty verdict on all counts. Following the jury’s
verdict, the district court entered criminal judgments.
II
[¶6] Wiese argues the jury instruction for the charge of patronizing a minor
for commercial sexual activity improperly included the term “willfully.”
[¶7] Rule 28(b)(7)(B)(ii), N.D.R.App.P., requires the appellant’s brief contain
“citation to the record showing that the issue was preserved for review; or a
statement of grounds for seeking review of an issue not preserved[.]” Wiese’s
brief does not cite to the record where Wiese objected to the challenged jury
instruction. It also does not provide any argument regarding why this Court
can review the challenged jury instruction when the issue was not preserved.
Wiese’s brief on this issue does not meet the minimum requirements of Rule
28(b)(7). Appellate rules must be complied with and treated respectfully.
Matter of Est. of Raketti, 340 N.W.2d 894, 898 (N.D. 1983).
[¶8] “The obvious error analysis under N.D.R.Crim.P. 52(b) does not apply to
errors waived through the doctrine of invited error.” State v. Yoney,
2020 ND
118, ¶ 12,
943 N.W.2d 791; see also State v. Smith,
2023 ND 6, ¶ 8,
984 N.W.2d
367 (“Obvious error review under N.D.R.Crim.P. 52(b) does not apply to waived
or invited errors.”). “The rationale for that rule precludes a defendant from
inviting error in the hope that if the defendant does not prevail in the trial
court, he will prevail upon appellate review of the invited error.” State v.
Doppler,
2013 ND 54, ¶ 14,
828 N.W.2d 502 (quoting State v. Hernandez,
2005
ND 214, ¶ 12,
707 N.W.2d 449).
[¶9] Wiese’s proposed jury instructions included the language he objects to on
appeal. By submitting the jury instructions, Wiese invited the error that he
now appeals. Thus, the alleged error is waived through the doctrine of invited
error. See State v. Rende,
2018 ND 56, ¶ 9,
907 N.W.2d 361. We conclude Wiese
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invited the error he alleges in the jury instructions and, therefore, the alleged
error is not reviewable.
III
[¶10] Wiese argues there was insufficient evidence to convict him of promoting
a sexual performance by a minor and possession of certain materials prohibited
because the State obtained the prohibited information from the victim’s cell
phone and the online messaging account’s servers, not Wiese’s phone. Thus,
Wiese argues, there is no evidence he was in possession of the prohibited
materials.
[¶11] “To successfully challenge the sufficiency of the evidence on appeal, the
defendant must show the evidence, when viewed in the light most favorable to
the verdict, permits no reasonable inference of guilt.” State v. Haney, 2023 ND
227, ¶ 7,
998 N.W.2d 817 (quoting State v. Bear,
2015 ND 36, ¶ 7,
859 N.W.2d
595). “Possession may be ‘actual or constructive, exclusive or joint and may be
shown entirely by circumstantial evidence.’” State v. Christian,
2011 ND 56,
¶ 11,
795 N.W.2d 702 (quoting State v. Demarais,
2009 ND 143, ¶ 8,
770 N.W.2d
246). “Constructive possession is proven where evidence ‘establishes that the
accused had the power and capability to exercise dominion and control over the
[material].’”
Id. (quoting Demarais, at ¶ 8).
[¶12] At trial, a detective testified to locating the materials on an online
messaging account associated with Wiese. The State entered evidence of
Wiese’s conversations with the victim on the messaging service. The messages
related to Wiese seeking stimulating sexual materials from the victim, as well
as performing sexual acts with the victim. The messages discussed price and
payment for the prohibited materials and sexual acts. The messages indicated
Wiese actually received the sexually explicit materials. Wiese admitted the
messages were from him and that he asked the victim for pictures, videos, and
sex. He also admitted he received nude pictures—pictures which included
sexual acts—from the victim. In response to why he asked the victim to be
quiet, Wiese responded, “Because I didn’t think that it was anybody’s business
to know that I was buying porn.”
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[¶13] The evidence presented at trial provided the jury with sufficient evidence
to make a reasonable inference as to Wiese’s possession of the prohibited
materials. See State v. Grant, 2023 ND 62, ¶ 18,
988 N.W.2d 563 (quoting State
v. Eggleston,
2020 ND 68, ¶ 7,
940 N.W.2d 645) (“In reviewing challenges to
the sufficiency of the evidence on appeal, 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.’”). We conclude there was sufficient
evidence for the jury to convict Wiese of promoting a sexual performance by a
minor and possession of certain materials prohibited.
IV
[¶14] Having considered the parties’ other arguments, we conclude they are
unnecessary to the decision or are without merit. We affirm.
[¶15] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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