               Filed 6/27/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                       STATE OF NORTH DAKOTA


                                 2019 ND 175


State of North Dakota,                                     Plaintiff and Appellee

      v.

George Robert Lyons,                                   Defendant and Appellant


                                No. 20180270


       Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.

      AFFIRMED.

      Opinion of the Court by VandeWalle, Chief Justice.

      Britta K. Demello Rice (argued), Bismarck, ND, and Jeremy A. Ensrud
(appeared), Minot, ND, for plaintiff and appellee.

      Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                    State v. Lyons
                                    No. 20180270


       VandeWalle, Chief Justice.
[¶1]   George Lyons appealed from a judgment entered after a jury found him guilty
of gross sexual imposition. Lyons argues there was insufficient evidence to support
the conviction and the district court committed obvious error by not declaring a
mistrial after the jury heard prohibited testimony. We affirm.


                                           I
[¶2]   Lyons and the complainant’s mother began a dating relationship, and they lived
together with the complainant and her brother in Arvilla in 2009 when the
complainant was thirteen years old and in Grand Forks in 2010 when she was fourteen
years old. According to the complainant, a pilot light in their Arvilla residence went
out one night and Lyons carried her into a bedroom he shared with the complainant’s
mother. The complainant testified that she awoke in the morning in that bedroom
after her mother had left for work and Lyons pulled her shirt up over her face, put a
pillow over her head, and took pictures of her breasts. The complainant testified that
when Lyons left, she went to a neighbor’s house and told him about the incident and
the neighbor informed the complainant’s mother.
[¶3]   According to the complainant, when they lived in Grand Forks in 2010 Lyons
used sleeping pills to sedate her in her bedroom while he cleaned wax buildup in her
ears. The complainant testified that during that process, Lyons touched her vagina
and breasts, inserted his fingers and penis in her vagina, and inserted his penis in her
mouth. According to the complainant, Lyons also gave her sleeping pills at other
times and thereafter sexually assaulted her. The complainant testified she told her
mother about the assaults, but her mother did not think the assaults were possible.
The complainant’s mother testified that she did not want to believe the assaults were
occurring and that Lyons told her the complainant was dreaming.
                                           1
[¶4]   In 2009 and early 2010, social services investigated a report of Lyons’ conduct
involving the complainant. During the investigation, the complainant stated she
believed there had been sexual contact but was not certain. Lyons denied any
inappropriate touching or sexual contact with the complainant, and the investigation
did not result in criminal charges at that time. Lyons subsequently ended his
relationship with the complainant’s mother.
[¶5]   In 2016, the investigation against Lyons was reopened after other similar
claims of inappropriate touching were made against him by a complainant in
Minnesota. After further investigation, the State charged Lyons with four counts of
gross sexual imposition. Count I alleged Lyons engaged in a sexual act with the
complainant in Arvilla in March 2009 by touching her intimate parts with his hands.
Counts II through IV alleged Lyons engaged in sexual acts with the complainant in
Grand Forks in January 2010. Count II alleged the sexual act consisted of contact
between Lyons’ fingers and the complainant’s vulva, count III alleged the sexual act
consisted of contact between Lyons’ penis and the complainant’s vulva, and count IV
alleged the sexual act consisted of contact between Lyons’ penis and the
complainant’s mouth.
[¶6]   The district court denied the State’s motion under N.D.R.Ev. 404(b) to allow
the jury to hear testimony from the complainant in the Minnesota case to the effect
that Lyons had sexually abused her using sleeping pills in a manner similar to the
alleged acts in this case. Before trial, the State dismissed count I involving the
allegation that Lyons engaged in a sexual act with the complainant in Arvilla in March
2009. A jury found Lyons guilty of count II for a sexual act with the complainant in
Grand Forks in January 2010 involving the allegation of sexual contact between
Lyons’ fingers and the complainant’s vulva and found him not guilty on the two other
counts.




                                          2
                                            II
[¶7]     Lyons argues the district court erred in denying his motion for judgment of
acquittal. He claims there was insufficient evidence to support his conviction for
gross sexual imposition under N.D.C.C. § 12.1-20-03(1)(d).
[¶8]     Section 12.1-20-03(1)(d), N.D.C.C., provides that a person who engages in a
sexual act with another is guilty of an offense if the victim is less than fifteen years
old. A “sexual act” is defined in N.D.C.C. § 12.1-20-02(4) as:
         “Sexual act” means sexual contact between human beings consisting of
         contact between the penis and the vulva, the penis and the anus, the
         mouth and the penis, the mouth and the vulva, or any other portion of
         the human body and the penis, anus, or vulva; or the use of an object
         which comes in contact with the victim’s anus, vulva, or penis. For the
         purposes of this subsection, sexual contact between the penis and the
         vulva, the penis and the anus, any other portion of the human body and
         the anus or vulva, or an object and the anus, vulva, or penis of the
         victim, occurs upon penetration, however slight. Emission is not
         required.
[¶9]     In State v. Igou, 2005 ND 16, ¶ 5, 691 N.W.2d 213 (citations omitted), we
described our standard of review of a defendant’s claim that there was insufficient
evidence to support a conviction:
         A defendant bears the burden of showing the evidence, when viewed
         in the light most favorable to the verdict, reveals no reasonable
         inference of guilt. On appeal, this Court merely reviews the record to
         determine if there is competent evidence that allowed the jury to draw
         an inference reasonably tending to prove guilt and fairly warranting a
         conviction. A conviction rests upon insufficient evidence only when
         no rational factfinder could have found the defendant guilty beyond a
         reasonable doubt after viewing the evidence in a light most favorable
         to the prosecution and giving the prosecution the benefit of all
         inferences reasonably to be drawn in its favor.
We have also recognized that the uncorroborated testimony of a sexual assault victim
is sufficient to support a conviction. State v. Schill, 406 N.W.2d 660, 662 (N.D.
1987).
[¶10] The complainant’s testimony provides competent evidence to support a finding
that Lyons engaged in a sexual act with her in Grand Forks in 2010 when she was less
                                           3
than fifteen years old. There was some corroborating evidence that Lyons was
responsible for cleaning the complainant’s ears and used sleep medication to assist
with the cleanings. A school friend of the complainant’s in Grand Forks also testified
that the complainant told her Lyons had been giving the complainant pills at night and
he thereafter “inserted his hands or penis inside her vagina, touched her boobs, and
stuck his penis inside of her mouth.”          The complainant’s friend testified the
complainant was “[v]ery distraught” and was “confused” because her mother did not
believe her. We conclude there was evidence, viewed in the light most favorable to
the verdict, for the jury to find Lyons committed gross sexual imposition under
N.D.C.C. § 12.1-20-03(1)(d) with a victim less than fifteen years old.


                                         III
[¶11] Lyons argues the district court committed obvious error in not declaring a
mistrial after prohibited testimony was repeatedly given.
[¶12] At trial, the complainant’s neighbor in Arvilla testified his daughter and the
complainant rode the bus to school together and the complainant often came to his
house in the morning to get on the bus with his daughter. According to the neighbor,
the complainant came to his house one morning a little earlier than normal and was
crying. He testified he asked her what had happened:
       Q      [PROSECUTOR] Okay. And did [the complainant] tell you that
              George did something inappropriate to her?
       A      Yes.
       Q      And what do you remember as far as what happened in that bed?
       A      She fell back asleep and then she told me the next thing she
              remembered was he was inside her.
              [Defense Counsel]: Objection, Your Honor.
              THE COURT: Counsel approach.
              (Discussion at the bench between the Court and counsel.)
              [PROSECUTOR]: I told him not to testify to that.
              THE COURT: I’m going to have the answer stricken
              from the record and if you need to speak with him.
              ....


                                          4
             [PROSECUTOR]: Well, he’s already said it so we can
             move on from there. We can have him strike. I don’t
             think we need to take a break because that makes it seem
             like a bigger deal than it is.
             THE COURT: And that leaves [defense counsel].
             [DEFENSE COUNSEL]: At the very least it needs to be
             stricken and the jury needs to be –
             [PROSECUTOR]: Well, I agree.
             [DEFENSE COUNSEL]: – severely admonished that
             they’re not allowed to consider it.
             THE COURT: Should we do it now?
             [PROSECUTOR]: Yeah, I think we should do it now.
             [DEFENSE COUNSEL]: Yeah, now.
             [PROSECUTOR]: And then we’ll do (inaudible).
             THE COURT: Do you want to have a quick private
             conversation with him?
             [PROSECUTOR]: No, we’ll move on. Yep.
             THE COURT: All right.
             (In open court.)
             THE COURT: All right. There’s been an objection to
             the answer to the last question and the Court is going to
             sustain that objection and I’m going to strike that answer
             from the record. And I need to strongly admonish the
             jury to disregard that information provided by this
             witness concerning the last question. When an objection
             is sustained and the information is stricken from the
             record, it is not to be considered in any way by this jury
             in making a final determination in this case.
                     [Defense Counsel], are you satisfied with the
             admonition?
             [DEFENSE COUNSEL]: I am.
[¶13] The neighbor then testified he telephoned the complainant’s mother, and the
following colloquy occurred:
      Q      [PROSECUTOR] And what happened after that?
      A      Well, I — my daughter was too young to really understand what
             was going on, so I got her on the bus and sent her to school.
             And we called — I told [the complainant] to stay home and we
             called [the complainant’s mother]. And I told her she needed to
             come home right away and I told her what happened. And she
             did come home right away. And then when she got home, she
             was — she told me that George sometimes does this in his sleep.

                                         5
             [Defense Counsel]: Objection,             Your     Honor,
             nonresponsive. Irrelevant.
[¶14] After the jury was excused, the following colloquy occurred:
              [DEFENSE COUNSEL]: Your Honor, I think everyone was
      somewhat surprised, for lack of a better word, in regard to [the
      neighbor’s] statement that has subsequently been stricken in regard to
      insertion. The jury’s been admonished in that regard. Subsequent
      testimony from [the neighbor] indicated that he had brought it to the
      attention of the young lady’s mother that something inappropriate had
      happened. We go through that and all of a sudden out of nowhere we
      get the answer, well, he sometimes does this in his sleep. Does what in
      his sleep?
              Based on the Court’s earlier ruling, we’ve got an absolute mess
      on our hands right now and the jury is left in a position of — I think the
      Court can see where I’m coming from. The insertion testimony was
      stricken. Now we’ve got testimony in regard to apparently that he
      sometimes does this in his sleep. Absent some additional explanation,
      I would ask that that testimony be stricken as well.
      ....
              THE COURT: Okay. So my understanding, when I heard the
      answer, I thought it was not responsive to the question, first of all.
      ....
              THE COURT: Before we do that, do you want, when [the jury]
      come[s] back then my plan would be just to tell the jury the answer to
      the last question was nonresponsive, it’ll be stricken from the record
      and then you can continue on.
              [PROSECUTOR]: Okay.
              THE COURT: Are you satisfied with that?
              [DEFENSE COUNSEL]: That’s fine, Judge.
              THE COURT: Okay.
      ...
              (Jury enters the courtroom.)
              THE COURT: Be seated. We’ll have the record reflect that the
      jury returned to the courtroom after a very short recess.
              And I will advise the jury that I have ruled on the objection that
      was being made at the time that, just prior to you stepping out of the
      courtroom and the ruling was that the response to the question was
      nonresponsive. And so that answer, the last answer of the witness will
      be stricken from the record as well. You are to disregard the statement,
      the last statement or answer provided by this witness and we will
      continue on then with additional, additional direct.

                                          6
[¶15] Lyons argues the district court committed obvious error in not declaring a
mistrial on its own motion. We exercise our power to notice obvious error cautiously
and only in exceptional circumstances where an accused has suffered serious
injustice. State v. Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658. Our standard for
reviewing claims of obvious error requires (1) error, (2) that is plain, and (3) affects
substantial rights. Id. at ¶ 14. The error must be a clear deviation from an applicable
legal rule under current law and must affect substantial rights, that is it must have
been prejudicial, or affected the outcome of the proceeding. Id. at ¶¶ 14-15. An
appellate court should not correct an error unless there is a clear deviation from an
applicable legal standard under current law. Id. at ¶ 14. A defendant has the burden
to show the error was prejudicial. Id. at ¶ 15. Once a defendant establishes a
forfeited plain error does affect substantial rights, an appellate court has discretion to
correct the error and should correct it if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. at ¶ 16.
[¶16] We have recognized a mistrial is an extreme remedy appropriate only when
there is a fundamental defect or occurrence in the trial proceedings making it evident
that further proceedings would produce a manifest injustice. State v. Carlson, 2016
ND 130, ¶ 11, 881 N.W.2d 649. A curative instruction is generally sufficient to
remove improper prejudice caused by improper evidence or testimony, and courts
generally presume a jury follows curative instructions. Id.
[¶17] At the request of defense counsel, the district court struck the neighbor’s
testimony that Lyons “was inside” the complainant and gave a curative instruction for
the jury to disregard that testimony. The record also reflects that at the request of
defense counsel the court struck the neighbor’s later nonresponsive testimony that
“George sometimes does this in his sleep” and gave a curative instruction. Lyons did
not request a mistrial, but indicated he was satisfied with the court’s admonishment.
The court did not deviate from established precedent in striking the responses and
giving curative instructions. We conclude the court’s failure to grant a mistrial on its
own motion does not constitute a clear deviation from applicable law. We therefore
                                            7
reject Lyons’ claim that the court committed obvious error in not granting a mistrial
on its own motion.


                                         IV
[¶18] We affirm the judgment.
[¶19] Gerald W. VandeWalle, C.J.
      Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Benny A. Graff, S.J.



[¶20] The Honorable Benny Graff, S.J., sitting in place of Jensen, J., disqualified.




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