State v. Watterud: Pattern Child-Testimony Can Sustain Multi-Year GSI Counts; Open-Court Playback During Deliberations Requires Proof of Actual Prejudice for Mistrial

Court: Supreme Court of North Dakota | Citation: 2025 ND 185 | Date: November 5, 2025

Introduction

In State v. Watterud, the North Dakota Supreme Court affirmed a jury’s conviction of Robert Jerome Watterud on four counts of gross sexual imposition (GSI) under N.D.C.C. § 12.1-20-03(2)(a). The Court addressed two principal issues:

Whether the evidence was sufficient to sustain four counts of GSI spanning 2013–2016 when the child victim testified to a continuous pattern of abuse but did not provide a specific, discrete incident for each charged year.
Whether the trial court abused its discretion in denying a mistrial after the jury, during deliberations and while in open court for an audio playback, was allegedly exposed to emotional noises from the victim’s mother.

The Court held that a child-victim’s testimony describing ongoing abuse occurring regularly across multiple years can, on appellate review for obvious error, support multiple counts without pinpointing specific incidents in each charged period. The Court further clarified that replaying evidence in open court during deliberations is the default procedure under N.D.R.Crim.P. 43(a)(3), and that a mistrial requires a showing of actual prejudice; a mere facial violation of the juror custody statute (N.D.C.C. § 29-22-02) is insufficient.

Summary of the Opinion

The defendant did not move for judgment of acquittal at trial. Consequently, the sufficiency challenge was reviewed only for obvious error. Applying the deferential sufficiency standard, the Court concluded the child’s testimony—establishing that sexual contact began when she was six, occurred one to three times a month, fluctuated in frequency, and spanned 2013–2016—together with corroborating testimony from her mother (including an admission by the defendant regarding a 2013 incident) and her brother, allowed the jury to reasonably infer guilt on each count. The Court reaffirmed that specificity goes to credibility (for the jury), not to appellate sufficiency. The convictions were affirmed.

On the mistrial motion, the Court upheld the trial judge’s decision to replay audio evidence in open court when a “clean” computer was unavailable for use in the jury room, consistent with Rule 43(a)(3). Although the defendant argued that the victim’s mother audibly cried during the playback, the judge, the prosecutor, and defense counsel reported hearing nothing at the time, and all jurors later said the presence of others did not affect their verdicts. The Court held that, even assuming the noises occurred, actual prejudice was not shown; thus, there was no abuse of discretion in denying a mistrial.

Analysis

Precedents Cited and Their Influence

State v. Lane, 2024 ND 134: Established that when a defendant fails to move for judgment of acquittal, sufficiency review on appeal is limited to “obvious error.” This constrained the scope of review against the defendant and framed the Court’s deference to the jury’s verdicts.
State v. Watts, 2024 ND 158: Reiterated the sufficiency standard—appellate courts assume the jury believed evidence supporting the verdict and disbelieved contrary evidence, without reweighing credibility. This foreclosed the defendant’s attempt to leverage perceived gaps in specificity.
State v. Vance, 537 N.W.2d 545 (N.D. 1995): Held that a child victim must describe the number of acts with sufficient evidence to support each count but emphasized that specificity is a credibility issue for the jury, not an appellate sufficiency requirement. This case was the linchpin for rejecting the defendant’s argument that due process and double jeopardy demanded discrete, year-by-year incident testimony.
State v. Schill, 406 N.W.2d 660 (N.D. 1987): Stated that uncorroborated testimony of a child victim can be sufficient to sustain a GSI conviction, though corroboration is preferred. The Court used Schill to underscore that the victim’s testimony—here accompanied by some corroboration—was adequate.
State v. Pickens, 2018 ND 198: Found error where the jury was not brought into open court to handle a playback question. Pickens equated “the courtroom” in Rule 43(a)(3)(A) with “open court” in Rule 43(a)(3)(B). Watterud used Pickens to validate the judge’s choice to proceed in open court and to explain why that procedure protects the record from off-the-record interactions.
Archambault v. State, 2024 ND 38: Approved sending a “clean” laptop to the jury room to review evidence and described such decisions as discretionary. In Watterud, the absence of a clean computer justified the open-court alternative, confirming procedural propriety under Rule 43.
State v. Weisz, 2002 ND 207 (quoting State v. Bergeron, 340 N.W.2d 51 (N.D. 1983)): Clarified that a facial violation of N.D.C.C. § 29-22-02 (juror custody/no communications) is not, by itself, a denial of a fair trial; actual prejudice must be shown. This authority supplied the decisive prejudice requirement that the defendant could not meet.
State v. Taylor, 2025 ND 91: Defined abuse of discretion—arbitrary, capricious, unreasonable acts, or decisions not grounded in a rational process or based on legal misinterpretation. The Court found no such abuse in denying a mistrial.
State v. Driver, 2024 ND 48: Reminded that the justice system guarantees a fair trial, not a perfect one, reinforcing that the asserted imperfections in Watterud’s trial did not mandate a mistrial absent prejudice.

Statutory and rule provisions also anchored the analysis: N.D.C.C. § 12.1-20-03(2)(a) (GSI), § 29-22-02 (juror custody and communications), and N.D.R.Crim.P. 43(a)(3) (open-court requirement for jury questions or testimony playback after deliberations begin). The Court also referenced former § 29-22-05 (superseded by Rule 43) to confirm the longstanding preference for bringing jurors into the courtroom for legal questions or testimony review.

Legal Reasoning

1) Sufficiency of the Evidence for Multi-Year GSI Counts

The defendant argued that due process and double jeopardy principles require specific examples of sexual contact in each charged year (2013, 2014, 2015, 2016) and that generalized testimony of continuous abuse is inadequate. Because there was no Rule 29 motion, the Court’s review was for obvious error—a demanding standard.

Applying the sufficiency framework, the Court expressly relied on Vance and Schill to reaffirm that:

Children may be unable to recall dates and discrete incidents with precision;
Such imprecision goes to credibility for the jury to weigh, not to appellate sufficiency;
A child’s testimony alone can establish the elements of GSI, though corroboration is preferred.

The victim testified that abuse began when she was six, occurred one to three times per month, fluctuated in frequency, briefly ceased for about three months, and spanned 2013–2016. She provided some specific details and a pattern of regularity. The State further presented corroboration: the mother’s testimony that the child reported a 2013 incident and that the defendant “admitted to it,” as well as evidence the mother once found the defendant naked in the child’s room; the brother also testified to a disclosure he later reported to a school counselor.

Against this record, and under the rule that appellate courts assume the jury credited the State’s evidence, the Court held the jury could reasonably infer at least one qualifying act per count over the charged period. The Court rejected the premise that the Constitution requires separate, year-specific event descriptions to sustain each count under these circumstances, emphasizing again that lack of granular detail is a credibility question for the jury, not a sufficiency defect for the appellate court.

2) Denial of Mistrial After Open-Court Playback During Deliberations

When the deliberating jury asked to hear an audio exhibit, the trial court lacked a “clean” device to send into the jury room. The judge brought the jury into open court for playback, consistent with Rule 43(a)(3)(A), which requires bringing jurors into open court for questions or testimony playback unless the parties agree otherwise under Rule 43(a)(3)(B). This approach is consistent with Pickens and Archambault and serves the critical function of preserving a record of what occurs in the jury’s presence.

The defendant asserted that the victim’s mother audibly cried or sniffled during playback, thereby communicating with and influencing the jury in violation of N.D.C.C. § 29-22-02. But at the time, the judge, the State, and defense counsel reported hearing nothing; only the defendant alerted counsel post hoc. The court polled jurors after the verdicts; each stated awareness of others’ presence but denied any impact on their decision-making.

The Court applied Weisz and Bergeron, holding that even if the alleged noises occurred, a facial violation of the juror custody statute is insufficient to warrant mistrial. Actual prejudice must be demonstrated. On this record—which included juror assurances that their verdicts were unaffected—the Court found no prejudice and therefore no abuse of discretion. The Court also reiterated that trials need not be perfect to be fair (Driver).

Impact and Forward-Looking Implications

A. Child Sexual Abuse Prosecutions and Charging Decisions

Pattern evidence can sustain multiple counts: Watterud affirms that a child’s testimony describing regular, ongoing abuse over a multi-year period can suffice to support multiple counts, even absent incident-by-incident specificity for each charged year, particularly on appellate review and when corroborated by ancillary evidence such as admissions.
Credibility vs. sufficiency lines are reinforced: The decision clarifies that challenges to a child’s level of detail are trial-level credibility issues and not grounds for appellate reversal on sufficiency under the deferential standard.
Double jeopardy/due process concerns remain charge-management issues: While the Court rejected the need for discrete incidents per year at the sufficiency stage, prosecutors should still strive to tie each count to the evidentiary record (e.g., via frequency testimony and any specific markers) and to ensure clear jury instructions that prevent juror confusion and protect against future double jeopardy disputes.

B. Trial Practice: Managing Deliberation Requests and Courtroom Environment

Open-court playback is the default: When jurors request testimony or exhibit playback after deliberations begin, courts must bring them into open court unless the defendant and counsel agree to another method. If a clean device is unavailable, open-court playback is an appropriate, policy-favored choice because it preserves an appellate record.
Actual prejudice is required for mistrial: Spectator emotional reactions, without more, will rarely compel a mistrial. Robust trial management—such as warning spectators, promptly addressing disruptions, and creating a record—will be key. Juror polling, as here, can help confirm the absence of prejudice.
Courtroom management protocols: Judges may preemptively instruct spectators regarding decorum during playbacks and consider positioning or white-noise masking if needed. However, access to “open court” must be maintained consistent with public-trial values.

C. Appellate Preservation and Strategy

Preserve sufficiency issues: Defense counsel should move for judgment of acquittal to avoid the “obvious error” limitation, which proved determinative here. Failure to preserve imposes a very high bar on appeal.
Build a record for alleged juror exposure: If improper communications or spectator conduct are suspected, counsel should promptly notify the court on the record, request curative steps (admonitions, sequestration measures, or further juror inquiry), and, if necessary, seek a mistrial with specific prejudice arguments.

Complex Concepts Simplified

Gross Sexual Imposition (GSI): A serious sexual offense under North Dakota law. Subsection (2)(a) typically covers sexual acts with very young victims (e.g., under a specified age), removing certain consent or force requirements because of the victim’s age.
Obvious Error Review: A stringent appellate standard applied when an issue was not properly preserved at trial. The appellate court corrects only clear errors that affect substantial rights and seriously affect the fairness, integrity, or public reputation of judicial proceedings.
Sufficiency vs. Credibility: “Sufficiency” asks whether any rational juror could find the elements proved beyond a reasonable doubt. Appellate courts defer to the jury and do not reassess which witnesses to believe; credibility is for the jury, not the appellate court.
Open Court (Rule 43(a)(3)): After deliberations begin, juror questions or requests to rehear testimony must be addressed in a courtroom session open to the public, unless the parties agree otherwise. This preserves transparency and an appellate record.
N.D.C.C. § 29-22-02 (Juror Custody/Communications): Requires jurors be kept together and free from outside communications during deliberations. A bare (facial) violation doesn’t automatically demand a mistrial; there must be proof of actual prejudice.
Actual Prejudice: A showing that an irregularity likely influenced the jury’s decision-making. Without such a showing, courts will not overturn verdicts based on alleged exposure or procedural imperfections.
“Clean” Laptop: A device with external communications disabled and only the admitted exhibit loaded, used to let jurors review evidence in the jury room. Its use is discretionary; if unavailable, open-court playback is proper.

Conclusion

State v. Watterud reinforces two important pillars of North Dakota criminal procedure and evidence. First, in child sexual abuse cases, a victim’s testimony describing a sustained pattern of abuse over multiple years can support multiple GSI counts without incident-by-incident specificity for each charged year—especially on obvious error review—because specificity primarily bears on credibility for the jury. Second, when jurors request a playback during deliberations, open-court proceedings are both the default and salutary: they safeguard transparency and create a record for appellate review. Claims of improper influence during such playbacks must demonstrate actual prejudice; mere facial violations of the juror custody statute will not suffice.

Practically, Watterud will bolster the State’s ability to proceed on multiple counts tied to a proven pattern of conduct in child-victim prosecutions and will guide trial courts in managing deliberation-stage evidence review. For the defense, the decision underscores the critical importance of preserving sufficiency arguments and promptly building a record of any claimed juror exposure. In the broader legal context, the opinion harmonizes victim-centered evidentiary realities with procedural safeguards that ensure both fair trials and reliable appellate review.