North Dakota v. Powley

The State appealed a trial court order limiting the admission of video evidence, and an order denying the State's motion to amend the criminal information. In February 2018, Richard Powley was charged with two counts of gross sexual imposition, both class AA felonies. The charges resulted from a series of videos seized from Powley's phone; at least one of the videos depicted sexual acts with the alleged victim. The videos were recorded between June 3, 2017 and June 5, 2017. Before trial, Powley made a motion under N.D.R.Ev. 412, seeking to admit five of the videos in order to demonstrate specific instances of the alleged victim's consensual sexual behavior with Powley. Powley emphasized it was significant all eight videos were recorded "within 44 hours of each other and they need to be viewed in that light." At the hearing the State agreed that Videos 1 through 5 "look[ed] consensual," and submitted Video 6, Video 7, and Video 8 to show the nonconsensual acts giving rise to the gross sexual imposition charges. The State argued those videos depicted the alleged victim unconscious and limp. The State argued Videos 6, 7, and 8 spoke for themselves and therefore there was no need to introduce Videos 1, 2, 3, 4, or 5. The court excluded Videos 1 through 5, 7 and 8, and limited the admission of 6. On appeal, the State argued the district court erred by sua sponte excluding portions of allegedly relevant video and that the court erred by denying the motion to amend the information because the proposed additional charge was not a different offense. The State alternatively requested the North Dakota Supreme Court exercise supervisory authority to review the district court rulings. The Supreme Court concluded the State had no statutory right to appeal these issues, and declined to exercise supervisory authority. The Court therefore dismissed the appeal for lack of jurisdiction. View "North Dakota v. Powley" on Justia Law