IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2025 ND 12
State of North Dakota, Plaintiff and Appellee
v.
Kyle Woodman, Defendant and Appellant
No. 20240037
Appeal from the District Court of Stark County, Southwest Judicial District, the
Honorable James D. Gion, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Amanda R. Engelstad, State’s Attorney, Dickinson, ND, for plaintiff and
appellee; submitted on brief.
Chad R. McCabe, Bismarck, ND, for defendant and appellant.
State v. Woodman
No. 20240037
Bahr, Justice.
[¶1] Kyle Woodman appeals from an amended criminal judgment after a jury
convicted him of three counts of gross sexual imposition. He argues the district
court committed obvious error by not including in the jury instructions the
essential element that the crimes occurred in North Dakota; that the prosecutor
committed obvious error by creating evidence by argument, incorporating
personal beliefs, and vouching for government witnesses’ credibility during
closing argument; and that the district court committed obvious error by relying
on an impermissible factor to decide the severity of the sentence. We conclude
Woodman failed to establish obvious error. We affirm.
I
[¶2] In April 2022, the State charged Woodman with three counts of gross
sexual imposition in Stark County district court. In September 2023, the district
court held a jury trial. The jury found Woodman guilty on all three counts.
[¶3] In January 2024, the district court held a sentencing hearing. The court
sentenced Woodman on count one to twenty years in prison with all but five
years suspended for ten years, on count two to seven and a half years, and on
count three to seven and a half years, with all sentences running consecutive to
each other.
II
[¶4] Woodman concedes the issues he raises on appeal were not raised in the
district court. He requests we consider the issues under the obvious error
standard of review. See N.D.R.Crim.P. 52(b) (“An obvious error or defect that
affects substantial rights may be considered even though it was not brought to
the court’s attention.”).
[¶5] “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.
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Gardner, 2023 ND 116, ¶ 5,
992 N.W.2d 535 (quoting State v. Smith,
2023 ND 6,
¶ 5,
984 N.W.2d 367). “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.”
Id. (quoting State
v. Lott,
2019 ND 18, ¶ 8,
921 N.W.2d 428). “When a defendant proves obvious
error occurred, this Court has discretion whether to rectify it and will only do so
when the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” State v. Watts,
2024 ND 158, ¶ 7,
10 N.W.3d 563 (internal
quotation marks omitted) (quoting State v. Olander,
1998 ND 50, ¶ 16,
575 N.W.2d
658). “In analyzing obvious error, our decisions require examination of the entire
record and the probable effect of the alleged error in light of all the evidence.”
Olander, at ¶ 12.
III
[¶6] Woodman argues the district court committed obvious error by not
including in the final jury instructions the essential element that the crimes
occurred in the State of North Dakota.
[¶7] “The district court must instruct the jury on the law; however, the parties
must request and object to specific jury instructions.” State v. Hartson, 2024 ND
78, ¶ 19,
6 N.W.3d 639 (quoting State v. Jacob,
2006 ND 246, ¶ 14,
724 N.W.2d
118). “[A] party who objects to an instruction . . . must do so on the record, stating
distinctly the matter objected to and the grounds[.]” N.D.R.Crim.P. 30(c)(1).
“When a defendant fails to object to a proposed instruction properly, or fails to
specifically request an instruction or object to the omission of an instruction, the
issue is not adequately preserved for appellate review and our inquiry is limited
under N.D.R.Crim.P. 52(b) to whether the jury instructions constitute obvious
error affecting substantial rights.” Hartson, at ¶ 20. “Failing to instruct the jury
on all of the essential elements of an offense is a plain error.” Smith,
2023 ND 6,
¶ 16.
[¶8] North Dakota has legislatively defined the term “element of an offense” to
mean:
a. The forbidden conduct;
2
b. The attendant circumstances specified in the definition and
grading of the offense;
c. The required culpability;
d. Any required result; and
e. The nonexistence of a defense as to which there is evidence in the
case sufficient to give rise to a reasonable doubt on the issue.
N.D.C.C. § 12.1-01-03(1).
[¶9] This Court has not decided whether territorial jurisdiction is an essential
element of an offense. Courts differ on this issue. See 1 Wayne R. LaFave, Subst.
Crim. L. § 4.1(b) (3d ed. Oct. 2024 Update) (“At least when the matter has been
put into issue by the defendant, whether the prosecuting government actually
has criminal jurisdiction over the conduct of the defendant is, under the
prevailing view, a matter to be determined by the trier of fact. But there is some
authority that the locale of the crime charged ‘is merely an issue of the territorial
jurisdiction to be decided by the court.’”); People v. Betts, 103 P.3d 883, 892 (Cal.
2005) (“Because territorial jurisdiction is a procedural matter that relates to the
authority of California courts to adjudicate the case and not to the guilt of the
accused or the limit of authorized punishment, a jury trial on the factual
questions that establish jurisdiction is not required by the federal Constitution.”);
State v. Denofa,
898 A.2d 523, 533 (N.J. 2006) (explaining “territorial jurisdiction
is a non-material element” and “never submitted to the jury unless there is some
factual dispute concerning whether the crime occurred in this State”); cf. Jones v.
State,
915 A.2d 1010, 1018 (Md. Ct. Spec. App. 2007) (“mere possibility” crime
did not take place within state not sufficient “to create a genuine factual
dispute,” and thus where victim of rape both put inside car and later dumped
out within state, mere fact it “physically possible” for car in interval between,
when rape occurred, to leave state insufficient to create jury question); State v.
Arot,
2013 ND 182, ¶ 8,
838 N.W.2d 409 (For juvenile court jurisdiction, “the
standard of proof denominated as proof beyond a reasonable doubt is
inapplicable to waiver of jurisdiction proceedings because it applies in the
context of a criminal trial and not to the initial stages of the criminal process[;] .
. . [t]he determination is not one of guilt or innocence, requiring a proof beyond
a reasonable doubt, but whether the district court has the power to act.”).
Woodman has not challenged the district court’s territorial jurisdiction. We need
3
not decide today whether territorial jurisdiction is an essential element of an
offense when a defendant does not put jurisdiction into issue.
[¶10] The final jury instructions identify the essential elements for the three
gross sexual imposition counts. The essential elements for each count include
that the State prove, beyond a reasonable doubt, that Woodman willfully
engaged in sexual contact with the victim “in Stark County.” The essential
elements portions of the final instructions do not specifically state “North
Dakota.” However, the preliminary (opening) jury instructions explain the jury
will receive two sets of jury instructions, the preliminary jury instructions and
the final jury instructions. The preliminary instructions explain the criminal
information charges Woodman “with having committed three counts of the
offense of ‘Gross Sexual Imposition’ in Stark County, North Dakota[.]” The
preliminary instructions then identify the alleged forbidden conduct for each
count and that the alleged conduct occurred “in Stark County, in the State of
North Dakota[.]” The caption of both the preliminary and final instructions
include “State of North Dakota” and “County of Stark.” Both instructions were
also dated and signed by the district court judge “at Dickinson, North Dakota[.]”
[¶11] Jury instructions “are sufficient if, as a whole, they correctly advise the
jury of the law, even if part of the instructions, standing alone, may be erroneous.”
Smith, 2023 ND 6, ¶ 10 (emphasis added). Here, when read together, the
instructions demonstrate the “Stark County” referenced in the essential elements
instructions refers to Stark County, North Dakota.
[¶12] We conclude the jury instructions, read together, adequately informed the
Stark County jury the charged offenses had to occur in Stark County, North
Dakota. Woodman did not establish the first prong of obvious error because he
failed to demonstrate the district court’s use of the jury instructions constitutes
error.
IV
[¶13] Woodman argues the prosecutor committed obvious error by creating
evidence by argument, incorporating personal beliefs, and vouching for
government witnesses’ credibility during closing argument.
4
[¶14] This Court has explained that “prosecutors should not express their
personal views on the evidence to the jury. A prosecutor must walk a line
between his or her duty to prosecute earnestly while refraining from improper
methods calculated to produce a wrongful conviction.” State v. Smith, 2023 ND
82, ¶ 10,
989 N.W.2d 490. “This can be a gray area and a difficult assessment to
make.”
Id. “The trial court must discourage inappropriate argument by the
prosecutor by taking prompt action, which may include corrective instructions
or an admonition.”
Id.
[¶15] “A district court has discretion to control closing arguments.” State v.
Owens,
2015 ND 68, ¶ 20,
860 N.W.2d 817. “We will not reverse a district court’s
control of closing argument absent a clear abuse of discretion.”
Id. “If the
defendant does not object during closing argument, we will not reverse unless
the challenged remarks constitute obvious error affecting a defendant’s
substantial rights.”
Id.
Our review is limited to determining if the prosecutor’s conduct
prejudicially affected the defendant’s substantial rights, so as to
deprive the defendant of a fair trial. In deciding if there was obvious
error, we consider the probable effect of the prosecutor’s improper
comments on the jury’s ability to judge the evidence fairly. Obvious
error is noticed only in exceptional circumstances in which the
defendant has suffered a serious injustice.
Smith, 2023 ND 82, ¶ 9 (quoting State v. Vondal,
2011 ND 186, ¶ 12,
803 N.W.2d
578). “Ordinarily, ‘inappropriate prosecutorial comments, standing alone, do not
justify a reviewing court to reverse a criminal conviction obtained in an
otherwise fair proceeding.’” State v. Skorick,
2002 ND 190, ¶ 11,
653 N.W.2d 698
(quoting State v. Thiel,
411 N.W.2d 66, 71 (N.D. 1987)).
[¶16] Woodman lists the following comments during the State’s closing
argument as establishing the requisite obvious error:
• “The forensic interviewers are taught in a very specific way to ask
questions of the child, or the minor . . . They are questions that are open
ended so the child has the opportunity to tell their story in their own words
without any outside influence from an adult . . .”
5
• “That’s good policing. That’s what they are taught.”
• “They did what they were supposed to do.”
• “That’s not true.”
• “[T]hat’s not the way I remember them testifying. What I remember is
Detective Gregory saying . . .”
• “There’s nothing that has been presented in evidence that has refuted what
these girls have said, and I think if you go back and you take a look at the
evidence that you have and you remember the testimony, that you will
find Mr. Woodman, the Defendant, guilty on all three counts . . .”
• “So the truth is what you heard from the witnesses, from the victims.”
• “She’s more than qualified to handle these kinds of cases.”
• “She doesn’t know what to do. She’s kind of scared. She’s uncomfortable.
She doesn’t tell anyone. It’s not uncommon.”
• “Again, she’s young. She’s scared. She’s uncomfortable. She doesn’t know
what to do.”
• “[T]he detective, who, again, is an experienced detective[.]”
• “That is good investigative work.”
• “That’s not true.”
• “He didn’t do anything to their credibility.”
• “There has been nothing that has been presented to you that would erode
these girls’ credibility.”
• “Their credibility is intact.”
• “There has not been a single piece testimony that has refuted anything that
these girls have said or eroded their credibility in any way, and I would
ask you to remember that when you go back to the deliberation room.”
• “I believe if you really look at their testimony and what it took for them to
be here[.]”
Woodman argues the “cumulative effect” of the prosecutor’s comments create
evidence by argument, inject personal beliefs, and vouch for witnesses.
Woodman argues reversal and remand for a new trial is warranted.
[¶17] Many of the comments identified by Woodman, when read in context,
comment on the evidence and are not objectionable; some of the comments
appear to express the prosecutor’s personal views on the evidence and may have
6
warranted action by the district court had Woodman objected. However,
assuming some of the prosecutor’s comments were improper, Woodman has not
demonstrated the comments had prejudicial effect. The court instructed the jury
it had the duty to weigh the evidence and determine the witnesses’ credibility. It
also instructed the jury that an attorney’s argument or remarks are not evidence,
and that if an attorney made any comments or statements concerning the
evidence which the jury finds are not supported by the evidence, it should
disregard them and rely on its own recollection or observation. “We presume the
jury followed the court’s instructions.” Steinbach v. State, 2015 ND 34, ¶ 35,
859
N.W.2d 1. “The court’s instructions minimized any prejudice from the
prosecutor’s improper comments.”
Id.
[¶18] We conclude Woodman has not demonstrated the prosecutor’s comments
constitute obvious error affecting his substantial rights.
V
[¶19] Woodman argues the district court committed obvious error by relying on
an impermissible factor, specifically a pending criminal charge, to decide the
severity of the sentence.
[¶20] “This Court’s review of a sentence is generally confined to whether the
district court acted within the statutory sentencing limits or substantially relied
on an impermissible factor.” State v. Aune, 2021 ND 7, ¶ 10,
953 N.W.2d 601. “A
trial judge is allowed the widest range of discretion in determining the
appropriate criminal sentence.”
Id. “This Court has no power to review the
discretion of the sentencing court when the term of imprisonment is within the
range authorized by statute.”
Id.
[¶21] “Criminal history is a factor that a trial judge should consider to determine
the proper sentence.” Aune,
2021 ND 7, ¶ 16. However, “a sentencing court may
not rely upon an impermissible factor to determine the severity of the sentence,
such as a pending criminal charge[.]” State v. Hoverson,
2006 ND 49, ¶ 35,
710
N.W.2d 890. If a sentencing court improperly considers a pending charge, “[t]he
sentence will be set aside only where there is a showing that the trial judge
substantially relied upon the impermissible factor in determining the severity of the
7
sentence to be imposed.” State v. Smith, 238 N.W.2d 662, 672-73 (N.D. 1976)
(emphasis added), overruled on other grounds by State v. Himmerick,
499 N.W.2d
568, 571-72 (N.D. 1993).
[¶22] Here, during the sentencing hearing, both the State and Woodman made
arguments regarding the appropriate sentence based on the sentencing factors in
N.D.C.C. § 12.1-32-04. The district court then discussed many of the sentencing
factors, including the serious harm, particularly emotional, caused by
Woodman’s criminal conduct, that the victims will have to struggle with it for a
long time if not for the rest of their lives, and that “it's going to take a lot of work
to overcome that”; that an objective person would expect Woodman’s criminal
conduct to cause serious harm to the victims; Woodman was not provoked,
noting “[t]here was no excuse for the conduct”; the victims did not facilitate the
commission of the crime; that no restitution can be made for the injury caused to
the victims; Woodman’s criminal history; whether Woodman’s conduct was
likely to recur and whether he was likely to commit another crime, including the
impact of probation on those factors and whether Woodman recognized what he
did and its impact; and that prison would not have an undue hardship on
Woodman due to his age or health. The court also considered the victims’
statements, character letters, Woodman’s wife’s statement, and Woodman’s
statement to the court. While addressing Woodman’s criminal history, the court
noted the pending charge, stating “it is alarming to the Court that while this
matter was pending, this other matter comes forward as well.” The court made
no further mention of the pending charge.
[¶23] “While we cannot condone a practice of reliance, to any degree, on
impermissible factors in the sentencing determination,” Smith,
238 N.W.2d at
673, Woodman has not demonstrated the district court substantially relied on
the pending charge in determining the severity of Woodman’s sentence. Thus,
the district court’s error, if any, does not “justify vacation of the sentence.” Id.;
cf. Olander,
1998 ND 50, ¶ 12 (“In analyzing obvious error, our decisions require
examination of the entire record and the probable effect of the alleged error in
light of all the evidence.”).
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[¶24] We conclude Woodman has not demonstrated the district court committed
obvious error by relying on an impermissible factor to decide the severity of the
sentence.
VI
[¶25] We affirm the amended criminal judgment.
[¶26] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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