FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 26, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 81
State of North Dakota, Plaintiff and Appellee
v.
Brian Lee Schaf, Defendant and Appellant
No. 20220323
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
David L. Rappenecker (argued) and Dennis H. Ingold (on brief), Assistant
State’s Attorneys, Bismarck, ND, for plaintiff and appellee.
Lloyd C. Suhr, Bismarck, ND, for defendant and appellant.
State v. Schaf
No. 20220323
Jensen, Chief Justice.
[¶1] Brian Lee Schaf appeals from a criminal judgment entered following a
jury verdict finding him guilty of gross sexual imposition and disorderly
conduct. Schaf argues the district court abused its discretion in excluding
expert testimony, erred in denying Schaf’s request for a lesser included offense
of sexual assault, and erred by incorrectly instructing the jury that
consideration of Schaf’s intoxication was limited to one element of gross sexual
imposition. We affirm.
I
[¶2] Schaf was charged with one count of gross sexual imposition in violation
of N.D.C.C. § 12.1-20-03(1)(c) and one count of disorderly conduct in violation
of N.D.C.C. § 12.1-31-01(1)(g). The State alleged that during a night of
drinking, while staying inside a hotel room with two minor girls, L.P. and D.D.,
and D.D.’s parents, Schaf entered a bed where both girls were asleep, inserted
his finger into L.P.’s vagina, kissed her, touched her stomach and sides, and
later touched D.D.’s stomach and thighs.
[¶3] Schaf filed a motion in limine to introduce expert testimony that he
experienced Alcoholic Blackout with a Dissociated State during the alleged
acts. The district court denied the motion finding the proposed expert was not
qualified to give the opinion being offered, the opinion was based on
inadmissible evidence, and the opinion would not be helpful to the jury. Schaf
requested the jury be given an instruction of sexual assault under N.D.C.C. §
12.1-20-07(1)(a), arguing it was a lesser included offense of gross sexual
imposition in violation of N.D.C.C. § 12.1-20-03(1)(c). The request was denied.
The jurors were instructed they could consider the effect of Schaf’s intoxication
on his ability to know or have reasonable cause to believe L.P. was unaware of
the sexual act done to her, but were not allowed to consider intoxication for the
other elements of gross sexual imposition. Schaf was found guilty on both
charges.
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II
[¶4] Schaf challenges the district court’s denial of his motion to introduce
expert testimony that he experienced Alcoholic Blackout with a Dissociated
State. “The district court exercises broad discretion in determining whether to
admit or exclude evidence, and its determination will be reversed on appeal
only for an abuse of discretion.” State v. Vickerman, 2022 ND 184, ¶ 8,
981
N.W.2d 881 (quoting State v. Kalmio,
2014 ND 101, ¶ 10,
846 N.W.2d 752). “A
district court abuses its discretion in evidentiary rulings when it acts
arbitrarily, capriciously, or unreasonably, or it misinterprets or misapplies the
law.”
Id. (quoting Kalmio, at ¶ 10). “The ultimate decision whether to admit
expert witness testimony rests within the district court’s sound discretion.”
State v. Schmidkunz,
2006 ND 192, ¶ 15,
721 N.W.2d 387 (citing State v.
Steinbach,
1998 ND 18, ¶ 12,
575 N.W.2d 193). “[T]he trial court decides the
qualifications of the witness to express an opinion on a given topic[.]” Anderson
v. A.P.I. Co. of Minn.,
1997 ND 6, ¶ 9,
559 N.W.2d 204.
[¶5] Section 12.1-04-02(1), N.D.C.C., clarifies when evidence of a defendant’s
intoxication may be raised. The statute states, “[i]ntoxication is not a defense
to a criminal charge.” It goes on to explain that “[e]vidence of intoxication is
admissible whenever it is relevant to negate or to establish an element of the
offense charged.” While intoxication may not establish a complete defense, it
may be relevant and admissible to negate one element of a crime.
[¶6] Expert testimony can be used by the State or defense to establish or
negate an element of a crime. Rule 702, N.D.R.Ev., states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.
[¶7] The expert must first have specialized knowledge in a particular area.
Secondly, that specialized knowledge must assist a trier of fact in determining
a disputed or contested fact in the case. The rule should be applied generously,
but the expert must have “some degree of expertise in the field in which the
2
witness is to testify.” State v. Hunter, 2018 ND 173, ¶ 45,
914 N.W.2d 527. In
assessing this degree of expertise, this Court has noted that “knowledge may
be derived from reading alone in some fields, from practice alone in some fields,
or as is more commonly the case, from both.” Anderson,
1997 ND 6, ¶ 9 (quoting
I McCormick on Evidence § 13, at pp. 54-55 (4th ed. 1992)).
[¶8] Schaf sought to admit Dr. Michel A. Cramer Bornemann as an expert
witness to provide jurors with his opinion that Schaf experienced Alcoholic
Blackout with a Dissociated State and thus did not know or could not
reasonably believe L.P. was unaware of the sexual act done to her. The district
court denied Schaf’s motion in limine for three reasons: 1) Dr. Bornemann did
not have sufficient qualifications to opine on an alcohol-related disorder, 2) the
condition itself is commonly understood and would not be useful to a jury in
determining a contested fact in the case, and 3) Dr. Bornemann relied on
hearsay to formulate his opinion, which was mainly comprised of statements
made by Schaf that were not subject to cross-examination. This Court may
affirm a result of the district court even if a portion of its reasoning is wrong,
or even if the entirety of it is, as long as the result is the same under correct
law. See State v. Lafromboise,
2021 ND 80, ¶ 20,
959 N.W.2d 596 (quoting
Sanders v. Gravel Products, Inc.,
2008 ND 161, ¶ 9,
755 N.W.2d 826) (“[W]e
will not set aside a correct result merely because the district court’s reasoning
is incorrect if the result is the same under the correct law and reasoning.”)
Because the court did not abuse its discretion in finding Dr. Bornemann was
unqualified to be an expert on alcohol-related disorders, we need not consider,
and express no opinion on, the other reasons for exclusion.
[¶9] Dr. Bornemann was offered as an expert to provide an opinion on Schaf’s
state of mind during the criminal acts. Dr. Bornemann’s opinion ruled out a
sleep-related behavior, specifically, “Sleep-Related Abnormal Sexual Behavior,
or, as commonly referred to, Sexsomnia” as a diagnosis for Schaf’s actions, and
concluded that “[b]ased upon scientific and clinical peer-reviewed literature on
Alcoholic Blackouts in conjunction with my extensive professional clinical and
investigate experience, the allegations involving [Schaf] with two adolescent
female[s] . . . appear to be best explained by an Alcoholic Blackout with a
Dissociated State.” Dr. Bornemann’s qualifications included the completion of
3
a residency in internal medicine, a post-graduate fellowship in pulmonary and
critical care, and he is board-certified by the American Board of Sleep
Medicine, the American Board of Medical Specialties-Sleep Medicine, and the
American Academy of Sleep Medicine. Dr. Bornemann included references to
several alcohol-related articles at the conclusion of his opinion.
[¶10] In finding Dr. Bornemann was unqualified to render an opinion on
Alcoholic Blackout with a Dissociated State, the district court found the
following:
[T]he Court finds Dr. Bornemann qualified to make the conclusion
that the Defendant did not suffer from any sleep-related behavior
or parasomnia . . . . However, the Defendant does not seek Dr.
Bornemann’s testimony as to this conclusion. Rather, the
Defendant seeks to offer Dr. Bornemann’s testimony to show he
suffered from an Alcoholic Blackout with a Dissociated State.
Reading through the vast recitation of Dr. Bornemann’s
qualifications outlined in his report, the Court is not convinced he
has the required training or experience to testify to such alcohol
related diagnosis.
The court found Dr. Bornemann was not qualified to render an opinion on
Alcoholic Blackout with a Dissociated State because his training and
experience, while extensive in several areas, did not provide any qualifications
on alcohol-related disorders. The court correctly applied the law and we are not
convinced the court acted arbitrarily or unreasonably in making its
determination that Dr. Bornemann was not qualified to render expert
testimony on alcohol-related disorders. The district court did not abuse its
discretion in denying Schaf’s motion to include Dr. Bornemann’s opinion as
expert testimony.
III
[¶11] Schaf challenges the district court’s denial of his request to include
sexual assault as a lesser included offense to gross sexual imposition in
instructions to the jury. The right to a lesser included offense is not
constitutional, but derives from N.D.R.Crim.P. 31(c) allowing a defendant to
4
be found guilty of an offense that is necessarily included in the offense charged.
The framework for including a lesser offense is as follows:
For a lesser-included-offense instruction, there must be evidence
on which a jury could rationally find beyond a reasonable doubt
that the defendant is not guilty of the greater offense and to find
beyond a reasonable doubt that the defendant is guilty of the
lesser. State v. Foreid, 2009 ND 41, ¶ 19,
763 N.W.2d 475 (quoting
[State v.] Keller, 2005 ND 86, ¶ 31,
695 N.W.2d 703). The purpose
of this requirement is to avoid a jury conviction on the lesser
offense based on sympathy for the defendant or an attempt to
reach a compromise even though the evidence does not support
such a conviction. Id. (quoting State v. Clinkscales,
536 N.W.2d
661, 664 (N.D. 1995)).
State v. Blotske,
2017 ND 190, ¶ 19,
899 N.W.2d 661 (internal quotation marks
omitted). Additionally, “[f]or an offense to be a lesser included offense, it must
be impossible to commit the greater offense without committing the lesser.”
Keller,
2005 ND 86, ¶ 31. “We view the evidence in the light most favorable to
the defendant to determine whether there is sufficient evidence to support a
jury instruction.” City of Fargo v. Nikle,
2019 ND 79, ¶ 6,
924 N.W.2d 388
(quoting State v. Lehman,
2010 ND 134, ¶ 12,
785 N.W.2d 204).
[¶12] The district court referenced both Foreid,
2009 ND 41, ¶ 19, and Keller,
2005 ND 86, ¶ 31, and found the evidence presented at trial would not allow a
jury to find Schaf not guilty of gross sexual imposition, but guilty of sexual
assault. The court, in part, found as follows:
This Court can’t find that here. That’s not the evidence. The
defendant testified he simply doesn’t—does not admit the act, and
he also testified he doesn’t remember the act. Those two elements.
That’s what’s being proposed. So it really goes to the victim and
the testimony.
....
The key is that the knowingly emphasis is different in 12.1-
20-07 in that you first have to find he knowingly has sexual
conduct—contact. It’s different than the knowing element that is
infused into 12.1-20-03(1)(c). It does add in on the fourth element
that you have to find that a person knows the conduct is offensive,
5
the other party in 12.1-20-07. . . . [t]he knowing element to 12.1-
20-07(1)(a) is different.
....
So under the facts of this case the evidence would—would
not permit a jury to rationally find Mr. Schaf guilty of sexual
assault and not guilty of gross sexual imposition. Therefore, the
Court rules that Defendant Schaf is not entitled to a jury
instruction on what is perceived to be a lesser-included offense that
is sexual assault.
[¶13] The district court found the knowledge element of gross sexual
imposition under N.D.C.C. § 12.1-20-03(1)(c) was incompatible with the
knowledge element of sexual assault under N.D.C.C. § 12.1-20-07(1)(a), such
that Schaf could be convicted of the greater offense without committing the
lesser offense. Section 12.1-20-03(1)(c), N.D.C.C., prohibits a person from
willfully engaging in a sexual act with another if the person knew or had
reasonable cause to believe the victim was unaware that a sexual act was being
committed upon them. Section 12.1-20-07(1)(a), N.D.C.C., prohibits a person
from knowingly having sexual contact with another if the person knew or had
reasonable cause to believe the contact was offensive to that person.
[¶14] Here, it would have been possible for Schaf to commit the greater offense
without committing the lesser offense as Keller precludes. Based upon the
evidence presented at trial, a rational factfinder was tasked with finding Schaf
knew or did not know or had reasonable cause to believe or did not have
reasonable cause to believe L.P. was asleep at the time he penetrated her. If a
rational factfinder found Schaf knew L.P. was asleep, then the factfinder would
not be able to find Schaf knew L.P. was offended by the contact; Schaf would
have had to believe L.P. had no awareness of what he was doing at the time—
no conscious ability to be offended. The evidence at trial presented only the
first conclusion, not the latter. L.P. testified adamantly she was asleep and
awoke to Schaf penetrating her. There was no evidence presented that Schaf
touched L.P. knowing she was offended. Even viewing the evidence in a light
most favorable to the defendant, a rational factfinder could not have acquitted
Schaf of gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(c) while
convicting him of sexual assault under N.D.C.C. § 12.1-20-07(1)(a) as Blotske
6
and Foreid require. The two subsections of each offense require different types
of knowledge related to the victim that Schaf could not have possessed
simultaneously. While this Court has found under some circumstances that
sexual assault is a lesser included offense to gross sexual imposition (see State
v. Gaddie, 2022 ND 44, ¶ 14,
971 N.W.2d 811 (“[A] sexual contact charge may
be a lesser included offense contained within a sexual act charge”) (emphasis
added)), the subsections of both offenses and the evidence presented in this
case do not afford such an inclusion. The district court did not err by excluding
a lesser-offense of sexual assault from the instructions provided to the jury.
IV
[¶15] Schaf challenges instructions provided to the jury that his intoxication
could only be considered in determining whether he knew or had reasonable
cause to believe L.P. was unaware of a sexual act being committed. The jury
was instructed that it was the State’s burden to prove beyond a reasonable
doubt that on (1) March 20, 2021, (2) Schaf, (3) willfully engaged in a sexual
act with L.P., and (4) that he did so knowing or having reasonable cause to
believe that L.P. was unaware that a sexual act was being committed. The
instructions stated “voluntary intoxication at the time of committing the
alleged offenses does not relieve a Defendant of criminal responsibility for the
other elements of the offenses, that is, other than element 4 of gross sexual
imposition.”
[¶16] Schaf argues that because one of the girls observed Schaf with his eyes
closed not saying anything while lying in bed with them that “[t]he jury could
have found Schaf did not willfully engage in the sexual act with L.P. based on
his level of intoxication.” Schaf did not object to the instructions at trial nor did
he submit proposed instructions contrary to the instructions provided.
[¶17] “This Court reviews the instructions as a whole to determine whether
they adequately and correctly inform the jury of the applicable law[.]” State v.
Erickstad, 2000 ND 202, ¶ 16,
620 N.W.2d 136. When a party does not
expressly object at trial to jury instructions, the instructions are reviewed for
obvious error. State v. Olander,
1998 ND 50, ¶ 11,
575 N.W.2d 658. An obvious
7
error inquiry focuses on whether the error was plain and affected the
defendant’s substantial rights. N.D.R.Crim.P. 52(b).
[¶18] “Voluntary intoxication is irrelevant to a crime of general intent[.]”
Erickstad, 2000 ND 202, ¶ 25. Section 12.1-20-03(1)(c), N.D.C.C., gross sexual
imposition, in part, is a general intent crime. We are not convinced the
instructions provided to the jury were plain error that affected Schaf’s
substantial rights given our prior case law holding that intoxication is not
relevant to a crime of general intent and the offense charged was a crime of
general intent. We conclude it was not an obvious error to instruct the jury to
only consider intoxication in determining whether Schaf knew or had
reasonable cause to believe L.P. was unaware of a sexual act being committed.
V
[¶19] The district court did not abuse its discretion in finding Dr. Bornemann
was unqualified as an expert to provide his opinion on an Alcoholic Blackout
with a Dissociated State. The court did not err in denying jury instructions on
the offense of sexual assault, and it was not obvious error to instruct the jury
to consider Schaf’s intoxication only in determining if he knew or had
reasonable cause to believe L.P. was unaware of the sexual act committed. The
judgment is affirmed.
[¶20] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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