Petition for Writ of Certiorari — Amira Olivia Gunn, Petitioner v. North Dakota

App. 1

This opinion is subject to petition for rehearing

Filed 4/10/18 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

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2018 ND 95

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State of North Dakota,

Plaintiff and Appellee

v.

Amira Olivia Gunn,

Defendant and Appellant

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No. 20170138

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Appeal from the District Court of Burleigh County,

South Central Judicial District, the Honorable John W.

Grinsteiner, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Marina Spahr, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.

Michael R. Hoffman, Bismarck, ND, for defendant

and appellant.

McEvers, Justice.

App. 2

[¶1] Amira Gunn appeals from an order deferring imposition of sentence after a jury found her guilty of attempted gross sexual imposition, a class A felony. Gunn

argues the evidence against her was insufficient, she

was convicted of speech protected by the First Amendment, and the jury instructions were improper. We affirm.

I

[¶2] In November 2015, Gunn and Calvin Till communicated in private conversations on MeetMe.com, a

social networking website. Gunn and Till exchanged

more than 700 messages between November 11 and 13,

2015. In a portion of the conversations, Gunn gave explicit and lewd instructions to Till on how to groom and

sexually assault his young daughter and how to abduct

and sexually assault Till’s two neighbor children.

[¶3] On December 16, 2015, Bismarck Police Department Detective Brandon Rask and Homeland Security

Special Agent Randy Helderop interviewed Gunn. During the interview, Gunn admitted to having the conversations with Till. Gunn acknowledged she knew of

Till’s sexual fetish for children including his own

daughter. Gunn stated she believed Till’s daughter was

approximately six years old. Gunn characterized the

conversations with Till as role-playing.

[¶4] At trial, Detective Rask testified he believed

the initial conversations between Gunn and Till involved role-playing. Rask testified he believed the roleplaying eventually ceased and Gunn and Till

App. 3

reassumed their own identities. Rask testified that

later in the conversations Till relayed to Gunn that he

was sexually assaulting his daughter in real-time. The

jury found Gunn guilty of attempted gross sexual imposition. The district court deferred imposition of sentence for a period of five years.

II

[¶5] Gunn argues there is no evidence of a victim in

this case. Gunn also claims that since Till did not commit the crime of gross sexual imposition, there is no

evidence that Gunn aided Till to commit the crime.

[¶6] Gunn raised these arguments at trial through a

motion for acquittal under N.D.R.Crim.P. 29, which the

district court denied. Before granting a motion for acquittal, the court must find the evidence is insufficient

to sustain a conviction. State v. Montplaisir, 2015 ND

237, 1135, 869 N.W.2d 435. Our standard of review for

claims of insufficient evidence is well established:

[W]e look only to the evidence and reasonable

inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon

insufficient evidence only when, after reviewing the evidence in the light most favorable to

the prosecution and giving the prosecution

the benefit of all inferences reasonably to be

drawn in its favor, no rational fact finder could

find the defendant guilty beyond a reasonable

doubt. In considering a sufficiency of the

App. 4

evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses.

Id. (quoting State v. O’Toole, 2009 ND 174, ¶ 8, 773

N.W.2d 201).

[¶7] The State alleged in its sixth amended information that Gunn committed the crime of attempted

gross sexual imposition, a class A felony. The State

charged Gunn with criminal attempt under N.D.C.C.

§ 12.1-06-01(2):

A person who engages in conduct intending to

aid another to commit a crime is guilty of

criminal attempt if the conduct would establish his complicity under section 12.1-03-01

were the crime committed by the other person,

even if the other is not guilty of committing or

attempting the crime, for example, because he

has a defense of justification or entrapment.

(Emphasis added.) Contrary to Gunn’s argument, the

plain language of the statute does not require the

crime actually be committed by the other person. The

State was not required to prove Till committed gross

sexual imposition.

[¶8] The attempt statute also references the accomplice statute, N.D.C.C. § 12.1-03-01:

1.

A person may be convicted of an offense

based upon the conduct of another person

when:

a.

Acting with the kind of culpability required for the offense, he causes the

other to engage in such conduct;

App. 5

b.

With intent that an offense be committed, he commands, induces, procures, or aids the other to commit it,

or, having a statutory duty to prevent

its commission, he fails to make

proper effort to do so; or

c.

He is a coconspirator and his association with the offense meets the requirements of either of the other

subdivisions of this subsection.

[¶9] The district court’s instructions to the jury defined “accomplice” as “a person who with intent that

an offense be committed, commands, induces, procures

or aids another to commit a crime.” This definition mirrors the language in N.D.C.C. § 12.103-01(1)(b). Thus,

for the jury to find Gunn guilty of attempted gross sexual imposition, the State must prove Gunn’s conduct

commanded or aided Till to commit gross sexual imposition, had the crime been committed by Till. An accomplice may command or aid another to commit a crime

by electronic means. See Saari v. State, 2017 ND 94,

¶¶ 2, 9, 893 N.W.2d 764 (defendant instructed his girlfriend over the phone on how to forge a check); see also

State v. Soltis, 2009 WL 2596096, *5 (Minn. Ct. App.

2009) (defendant instructed individual over the phone

to take sexually explicit photos of minor child).

[¶10] Gunn argues that because Till’s daughter was

not present during the online conversations and that

the neighbor children could have been imaginary, there

was no evidence of a victim. Gunn also claims the conversations with Till were role-playing.

App. 6

[¶11] The MeetMe messages between Gunn and Till

were admitted into evidence and included numerous

instances of Gunn instructing Till how to groom and

sexually assault his daughter and neighbor children, a

six-year-old girl and eight-year-old boy. Gunn stated in

the interview with Detective Rask and Special Agent

Helderop that she believed Till’s daughter was approximately six years old.

[¶12] Rask testified about the online conversations

between Gunn and Till. He testified the initial conversations involved role-playing, with Gunn acting as

Till’s nine or ten-year-old daughter. Rask testified he

believed the role-playing eventually ceased and Gunn

and Till reassumed their own identities. Rask testified

that Till informed Gunn he had a daughter who would

be visiting later in the day. Gunn then began instructing Till on how to groom and sexually assault his

daughter. Rask testified that further along in the conversations Till began relaying to Gunn that he was sexually assaulting his daughter in real-time.

[¶13] The attempt statute under which Gunn was

charged, N.D.C.C. § 12.1-06-01(2), did not require Till

to commit the crime of gross sexual imposition. Rather,

the statute provides that if the crime were committed,

would Gunn’s conduct have made her an accomplice to

the crime under N.D.C.C. § 12.1-03-01(1)(b). Detective

Rask testified that part of Gunn and Till’s conversation

was role-playing; however, the part of the conversation

in which Gunn instructed Till to sexually assault his

daughter appeared not to be role-playing. The context

of those messages indicated that Till was sexually

App. 7

assaulting his daughter in real-time under Gunn’s instructions. The State presented sufficient evidence of

who the victim would be were the crime committed by

Till. When viewing the evidence in the light most favorable to the State, we conclude there is substantial

evidence to warrant the conviction against Gunn.

III

[¶14] Gunn argues the conversations between her

and Till are protected by the First Amendment.

[¶15] “Whether speech is constitutionally protected

is a question of law, which is fully reviewable on appeal.” State v. Brossart, 2015 ND 1, ¶ 10, 858 N.W.2d

275. We use caution when reviewing claims of constitutionally protected activity, and we independently examine the record when free speech arguments are

made to decide whether the charged conduct is protected. Id. Evidence of constitutionally protected activity is not admissible to a jury. State v. Barth, 2005 ND

134, ¶ 10, 702 N.W.2d 1. A defendant should generally

bring claims of constitutionally protected activity in a

motion in limine. Id.

[¶16] “The First Amendment permits ‘restrictions

upon the content of speech in a few limited areas,

which are of such slight social value as a step to truth

that any benefit that may be derived from them is

clearly outweighed by the social interest in order and

morality.’ ” Brossart, 2015 ND 1, ¶ 11, 858 N.W.2d 275

(quoting Virginia v. Black, 538 U.S. 343, 358-59 (2003)).

“The freedom of speech has its limits; it does not

App. 8

embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.” Ashcroft v. Free Speech

Coalition, 535 U.S. 234, 245-46 (2002). Sexual expression that is indecent but not obscene is protected by

the First Amendment. Id. at 245. The United States

Supreme Court has established a test for obscenity:

(a) whether the average person, applying

contemporary community standards would

find that the work, taken as a whole, appeals

to the prurient interest; (b) whether the work

depicts or describes, in a patently offensive

way, sexual conduct specifically defined by the

applicable state law; and (c) whether the

work, taken as a whole, lacks serious literary,

artistic, political, or scientific value.

Reno v. Am. Civil Liberties Union, 521 U.S. 844, 872

(1997) (quoting Miller v. California, 413 U.S. 15, 24

(1973)).

[¶17] In addition, the First Amendment does not protect speech integral to a crime. See State v. Backlund,

2003 ND 184, ¶ 29, 672 N.W.2d 431 (“freedom of speech

does not extend to speech used as an integral part of

conduct in violation of a valid criminal statute”); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (allowing a

state to prohibit “advocacy [ ] directed to inciting or

producing imminent lawless action and [ ] likely to incite or produce such action”).

[¶18] Before trial, Gunn moved the district court to

exclude the conversations, arguing they were protected

App. 9

by the First Amendment. The court denied her motion.

At trial, Gunn moved for an acquittal based on the conversations being protected by the First Amendment.

Again, the court denied the motion. The court addressed the obscenity test under Reno v. ACLU, and

analyzed whether the conversations were protected

under the First Amendment:

In the present case, the Court finds

Gunn’s statements constitute obscene speech

that is not protected by the First Amendment.

Under the obscenity test stated in Roth [v.

U.S., 354 U.S. 476, 485 (1957)], the lewd statements pertaining to sexual grooming of Till’s

daughter, as well as a plan for sexual abuse of

the neighbor children, clearly meet the elements of obscene speech.

First, the average person would find the

statements to appeal to the prurient interests

of Gunn. It is apparent the statements are of

a nature having a tendency to excite lustful

thoughts in Gunn.

Second, the statements depict and describe sexual conduct in a patently offensive

way as prescribed by state law. An example of

“patently offensive” includes a “representation or description of masturbation . . . and

lewd exhibition of the genitals.” See Miller v.

California, 413 U.S. 15, 25 (1973). Here,

Gunn’s statements meet the second prong as

they describe and encourage Till to masturbate and expose his genitals to his daughter.

App. 10

Third, the statements severely lack any

serious literary, artistic, political, or scientific

value. Gunn has not indicated they qualify as

such and the Court fails to see, by any stretch

of the imagination, how the statements have

literary, artistic, political, or scientific value.

Therefore, Gunn’s statements to Till regarding sexual abuse of minor children qualify as

obscenity and are not protected speech under

the First Amendment.

[¶19] While we agree with the district court that

Gunn’s statements were obscene, the primary reason

Gunn’s statements fall outside the protection of the

First Amendment is because they were integral to the

commission of a crime. Gunn’s private one-on-one messages to Till provided detailed instructions on committing sex crimes against children. Gunn’s statements

were integral to the crime of criminal attempt because

under the circumstances known to her, the statements

advocated and were likely to produce imminent lawless action. Gunn’s statements were criminal and outside the First Amendment because they showed an

“inten[t] to aid another to commit a crime.” N.D.C.C.

§ 12.1-06-01(2). We conclude the online conversations

between Gunn and Till are not protected by the First

Amendment.

IV

[¶20] Gunn argues the district court’s jury instructions failed to correctly instruct the jury on the culpability required for criminal attempt.

App. 11

[¶21] Jury instructions are fully reviewable on appeal. State v. Wilson, 2004 ND 51, ¶ 11, 676 N.W.2d 98.

We review the instructions as a whole to decide

whether they adequately and correctly inform the jury

of the applicable law. State v. Anderson, 2016 ND 28,

¶ 31, 875 N.W.2d 496. “If, when considered as a whole,

a jury instruction correctly advises the jury of the law,

it is sufficient even if part of it standing alone may be

insufficient.” Id. (quoting State v. Barth, 2001 ND 201,

¶ 12, 637 N.W.2d 369).

[¶22] The district court instructed the jury on the essential elements of attempted gross sexual imposition:

1) On or about November 12-13, 2015, in

Burleigh County, North Dakota;

2)

the defendant, Amira Gunn;

3) intending to aid Calvin Till to commit the

crime of Gross Sexual Imposition;

4) engaged in conduct that would make the

defendant, Amira Gunn an accomplice to

Gross Sexual Imposition were the crime committed by Calvin Till; and

5) the victim of the sexual act was less than

fifteen (15) years of age and Calvin Till was at

least twenty-two (22) years of age.

[¶23] Gunn argues the word “knowingly” should have

preceded essential element (4). Gunn contends essential element (4) should have read “knowingly engaged

in conduct that would make the defendant, Amira

App. 12

Gunn an accomplice to Gross Sexual Imposition were

the crime committed by Calvin Till.”

[¶24] Here, essential element (3) uses “intending,” indicating a culpability of intentionally. A person engages in conduct “ ‘[i]ntentionally’ if, when he engages

in the conduct, it is his purpose to do so.” N.D.C.C.

§ 12.1-02-02(1)(a). A person engages in conduct

“ ‘[k]nowingly’ if, when he engages in the conduct, he

knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his

purpose to do so.” N.D.C.C. § 12.1-02-02(1)(b). The district court provided these definitions to the jury in the

instructions. The highest level of culpability is intentionally. State v. Rufus, 2015 ND 212, ¶ 22, 868 N.W.2d

534.

[¶25] The jury instructions followed the wording of

the criminal attempt statute under which Gunn was

charged. See N.D.C.C. § 12.1-06-01(2) (“[a] person who

engages in conduct intending to aid another to commit

a crime is guilty of criminal attempt if the conduct

would establish his complicity under section 12.1-0301 were the crime committed by the other person”).

The instructions also defined “accomplice,” which mirrored the text of N.D.C.C. § 12.1-03-01(1)(b). We conclude the district court correctly instructed the jury on

the culpability required for criminal attempt and correctly advised the jury of the law. The court’s instructions to the jury were not erroneous.

[¶26] We have considered Gunn’s remaining arguments and find them to be without merit, unnecessary

App. 13

to our decision, or not adequately articulated, supported and briefed. The order is affirmed.

[¶27]

Lisa Fair McEvers

Daniel J. Crothers

Jerod E. Tufte

Gerald W. VandeWalle, C.J.

Jon J. Jensen

App. 14

STATE OF

NORTH DAKOTA

IN DISTRICT COURT

COUNTY OF BURLEIGH

SOUTH CENTRAL

JUDICIAL DISTRICT

State of North Dakota,

Plaintiff,

v.

Amira Olivia Gunn,

Defendant.

Case No. 08-2015CR-03443

ORDER DENYING

MOTION IN LIMINE

TO EXCLUDE

STATEMENTS

INTRODUCTION

[¶1] This matter comes before the Court on a Motion

in Limine filed by the Defendant, Amira Olivia Gunn

(“Gunn”) to exclude statements. The State charged

Gunn with Attempted Gross Sexual Imposition. This

case is set for trial on November 3, 2016 at the Burleigh County Courthouse before the Honorable John W.

Grinsteiner.

BACKGROUND

[¶2] Gunn asserts in her Motion that her speech with

Calvin Till (“Till”) is constitutionally protected and

should be excluded as such. The State contends the referenced speech occurred with Till through a social media site called MeetMe.com.

[¶3] The State asserts in its Response that, upon

learning Till had a six-year-old daughter, Gunn

App. 15

instructed and encouraged Till to groom the daughter

for sexual activity. Specifically, the State asserts

Gunn’s statements include: “[L]et her walk in on you

jacking off ”; “lay her on her back and relax her . . . kiss

her if she likes that it rub her gently with your fingers

first . . . see how she likes it and very gently finger her

. . . get her wet . . . pussy juice in the best lube”; and

“once she wet enough, try two figures [sp] and then try

the head of your dick.”

[¶4] The State also asserts Gunn wrote to Till regarding a strategy to kidnap two neighbor children (ages

six and eight) for the purposes of sex. In that statement, Gunn allegedly wrote, “You’d have to be masked

and not speak, maybe blind fold them, and clean up the

cum.”

LAW AND DECISION

[¶5] Generally, a defendant must raise an argument

for constitutionally protected activity through a motion in limine. State v. Curtis, 2008 ND 93, ¶ 7, 748

N.W.2d 709, 713. “Evidence found to be constitutionally protected by the court is inadmissible and should

be held from the jury.” Id. “Whether speech is constitutionally protected is a question of law.” Id. at ¶ 7, 71213.

[¶6] The First Amendment freedom of speech has its

limits. Achcroft v. Free Speech Coalition, 535 U.S. 234,

245 (2002). On one hand, “It does not embrace certain

categories of speech, including defamation, incitement,

obscenity, and pornography produced with real

App. 16

children.” Id. at 245-46. On the other hand, “The Government may not suppress lawful speech as the means

to suppress unlawful speech.” Id. at 255.

[¶7] “In evaluating the free speech rights of adults,

we have made it perfectly clear that sexual expression

which is indecent but not obscene is protected by the

First Amendment.” Reno v. American Civil Liberties

Union, 521 U.S. 844, 874 (1997) (internal quotations

omitted).

[¶8] However, speech that exceeds indecency and

constitutes obscenity is not protected. See, Roth v. U.S.,

354 U.S. 476, 485 (1957). The test for obscenity is:

(a) whether the average person, applying

contemporary community standards

would find that the work, taken as a

whole, appeals to the prurient interest;

(b) whether the work depicts or describes, in

a patently offensive way, sexual conduct

specifically defined by the applicable

state law; and

(c) whether the work, taken as a whole, lacks

serious literary, artistic, political, or scientific value.

Reno, at 872.

[¶9] In the present case, the Court finds Gunn’s

statements constitute obscene speech that is not protected by the First Amendment. Under the obscenity

test stated in Roth, the lewd statements pertaining to

sexual grooming of Till’s daughter, as well as a plan for

App. 17

sexual abuse of the neighbor children, clearly meet the

elements of obscene speech.

[¶10] First, the average person would find the statements to appeal to the prurient interests of Gunn. It is

apparent the statements are of a nature having a tendency to excite lustful thoughts in Gunn.

[¶11] Second, the statements depict and describe sexual conduct in a patently offensive way as prescribed

by state law. An example of “patently offensive” includes a “representation or description of masturbation . . . and lewd exhibition of the genitals.” See, Miller

v. California, 413 U.S. 15, 25 (1973). Here, Gunn’s

statements meet the second prong as they describe and

encourage Till to masturbate and expose his genitals

to his daughter.

[¶12] Third, the statements severely lack any serious

literary, artistic, political, or scientific value. Gunn has

not indicated they qualify as such and the Court fails

to see, by any stretch of the imagination, how the statements have literary, artistic, political, or scientific

value. Therefore, Gunn’s statements to Till regarding

sexual abuse of minor children qualify as obscenity

and are not protected speech under the First Amendment.

CONCLUSION

[¶13] For the aforementioned reasons, the Defendant’s Motion in Limine is DENIED.

IT IS SO ORDERED.

App. 18

Dated this 28th day of October, 2016.

BY THE COURT:

/s/ John Grinsteiner

John W. Grinsteiner,

District Judge

South Central

Judicial District

cc: Michael R. Hoffman

Wade Davison

App. 19

STATE OF

NORTH DAKOTA

IN DISTRICT COURT

COUNTY OF BURLEIGH

SOUTH CENTRAL

JUDICIAL DISTRICT

State of North Dakota,

Plaintiff,

v.

Amira Olivia Gunn,

Case No. 08-2015CR-03443

ORDER DENYING

MOTION TO

RECONSIDER

Defendant.

[¶1] Nothing in the defendant’s motion to reconsider

changes this Court’s ruling. Gunn’s statements describe and encourage Till to commit sexual conduct

specifically defined and prohibited by the State’s GSI

statute in 12.1-20-03.

CONCLUSION

[¶2] For the aforementioned reasons, the Defendant’s

Motion to Reconsider is DENIED.

IT IS SO ORDERED.

App. 20

Dated this 2nd day of November, 2016.

BY THE COURT:

/s/ John Grinsteiner

John W. Grinsteiner,

District Judge

South Central

Judicial District

cc: Michael R. Hoffman

Wade Davison

App. 21

STATE OF

NORTH DAKOTA

IN DISTRICT COURT

COUNTY OF BURLEIGH

SOUTH CENTRAL

JUDICIAL DISTRICT

State of North Dakota,

Plaintiff,

-vsAmira Olivia Gunn,

Defendant.

) ORDER DEFERRING

)

IMPOSITION OF

)

SENTENCE

)

) SA # F1755-15-12

) Cr. No. 08-2015-CR) 03443

[¶1] On this 27th day of February, 2017, came Marina

Spahr, Assistant States Attorney of Burleigh County

and State of North Dakota, and the Defendant having

appeared in person and with Michael R. Hoffman, legal

counsel, and the Defendant having been convicted by a

jury of the crime of Attempted Gross Sexual Imposition, a Class A Felony; as charged in the Sixth

Amended Information, and the Defendant having been

asked by the Court whether she had any statement to

make in her own behalf or wished to present any information or mitigation of punishment on which would

require the Court to withhold pronouncement of judgment and sentence and no sufficient cause to the contrary having been shown,

[¶2] IT IS HEREBY THE SENTENCE AND JUDGMENT OF THE COURT:

(a) Imposition of sentence upon the charge is deferred

and suspended for a period of five (5) years from

the above date, and the Defendant is hereby

App. 22

placed on probation in accordance with the provisions of Chapter 12.1-32, N.D.C.C.

(b) The Defendant is placed under the control and

management of the North Dakota Board of Pardons and the supervision of the parole officers.

(c) Imposition of sentence will be suspended upon the

Defendant’s compliance with each of the conditions set forth in the probation conditions.

(d) Defendant shall register as a Sex Offender as

stated in condition #29.

(e) Defendant shall provide DNA as stated in condition #24.

(f ) Defendant shall submit to fingerprinting as stated

in condition #21.

(g) Defendant shall engage in counseling services to

address mental health symptomatology and follow-up with psychotropic medication management

services as recommended in the Pre-Sentence Investigation

[¶3] At the expiration of or within the probation period, the Court, in its discretion, may permit the Defendant to withdraw his plea or verdict of GUILTY. The

verdict or plea of GUILTY may then be set aside and

the action dismissed. The discretion of the Court will

be based upon the record of the Defendant during the

period of probation and predicated upon the Defendant’s compliance with each of the above terms and conditions.

App. 23

[¶4] The Defendant is admonished that a violation of

any of the terms or conditions of this Order will result

in her immediate arrest, revocation of this Order will

be entered, and the Defendant will be brought before

this Court, as soon as practicable, for sentencing on the

plea or verdict of GUILTY to this charge.

[¶5] THAT YOU STAND COMMITTED UNTIL

THIS JUDGMENT, Sections a, b, c, d, e, f, and g and

the Appendix A ARE COMPLIED WITH.

Dated this ____ day of March, 2017.

Signed: 4/5/2017

11:12:33 AM

BY THE COURT:

/s/ John Grinsteiner

John W. Grinsteiner,

District Judge

Burleigh County District Court

Bismark, North Dakota

Signed: 4/5/2017

2:28:34 PM

ATTEST:

/s/ Michele Bring

Michele Bring

Clerk of said District Court

App. 24

STATE OF

NORTH DAKOTA

IN DISTRICT COURT

COUNTY OF BURLEIGH

SOUTH CENTRAL

JUDICIAL DISTRICT

State of North Dakota,

Plaintiff,

-vsAmira Olivia Gunn,

Defendant.

)

SIXTH AMENDED

)

INFORMATION

)

) SA # F1755-15-12

) Cr. No. 08-2015-CR) 03443

)

[¶1] Richard J. Riha, State’s Attorney for Burleigh

County, charges that on or about the 12th day of November, 2015 through the 13th day of November, 2015,

in Burleigh County, the defendant, Amira Olivia Gunn,

did commit the crime of Attempted Gross Sexual Imposition, committed as follows:

[¶2] The defendant willfully engaged in conduct intending to aid another to commit the crime of Gross

Sexual Imposition; specifically, the defendant intentionally aided Calvin Till to engage in a sexual act with

another, or caused another to engage in a sexual act

and the victim was less than fifteen (15) years of age

and Calvin Till was at least twenty-two (22) years of

age.

App. 25

N.D.C.C. 12.1-06-01(2),

12.1-20-03(1)(d),

12.1-20-03(3)(a), MANDATORY REGISTRATION AS A SEXUAL OFFENDER

12.1-32-15,

12.1-06-01(3),

12.1-32-01(2)

CLASS A FELONY

[¶3] This against the peace and dignity of the State

of North Dakota.

Dated this 26th day of October, 2016.

/s/ Richard J. Riha

Richard J. Riha, BAR ID: 03861

Burleigh County States Attorney

App. 26

STATE OF NORTH DAKOTA )

)ss.

COUNTY OF BURLEIGH

)

AFFIDAVIT

I, Detective Brandon Rask of the Bismarck Police Department, being first duly sworn depose and state the

following:

1.

That I am a trained and licensed peace officer

with 13 years of experience with jurisdiction

to enforce state law in Burleigh County, North

Dakota.

2.

That on 11/13/2015, in Burleigh County, North

Dakota at 2529 Berkshire Drive in Bismarck.

3.

The suspect was identified as Amira Gunn

and is 19 years of age.

4.

The following gives rise to probable cause to

charge the suspect with: 12.1-06-01 F(A)

Criminal Attempt (GSI)

5.

Circumstances and/or other facts:

On December 8th, 2015, Calvin George

Willard Till, age 29, was arrested for Patronizing a Minor for Commercial Sexual Activity.

This act was committed via text message

chatting through a social networking website

known as MeetMe.com. In reviewing additional chats unrelated to the one prompting

the charge, I located a text conversation between Calvin Till and a local female named

Amira Gunn. During this conversation on

App. 27

November 12th, 2015, Till informed Gunn

that he has a young daughter that does not

typically live with him but would be visiting

him that day. The daughter’s age is never

mentioned by Till in the chat; however, when

later asked by investigators, Gunn indicated

that she believed Till’s daughter to be 6 years

of age at the time of the chat. After learning

that Till had a daughter, Gunn began directing Till on what he should do to groom his

daughter for the purposes of sex. Gunn advised Till to, “Sleep next to her at night”

and “be close with her and just test out her

reaction to things.” Furthermore, she instructed him to, “ask her if she wants to

make daddy happy” and “Let her walk in

on you jacking off.”

The following day on November 13th, 2015,

Gunn began instructing Till to perform specific sexual acts on his daughter. Specifically,

Gunn told him to, “Lay her on her back and

relax her. Kiss her if she likes that and

rub her gently with your fingers first.

See how she likes it and very gently finger

her. Get her wet. Pussy juice is the best

lube.” Secondly, Gunn instructed Till that,

“Once she wet enough try two fingers and

then try the head of your dick.” As the chat

continued, Till indicated to Gunn that he was

performing the acts that Gunn asked of him.

Gunn would then continue directing Till to

perform additional acts on the daughter for,

what appeared to be, both Till’s and Gunn’s

sexual gratification. Although investigators

App. 28

have no evidence that Till was sexually abusing his daughter in real time during this text

conversation, Gunn’s text messages show that

she believed the real time abuse to be factual

and that it was occurring during their text interaction. Rather than contact authorities to

report an instance of child sexual abuse in

progress, Gunn continued to encourage, direct,

instruct, and advise Till on how to continue

committing the obscene sexual performances

on his daughter for Gunn’s and Till’s personal

satisfaction. When Till indicates that he is finished with his daughter, Gunn instructs him

to, “delete our messages just in case so no

one knows we talked about it.”

Later in the conversation, Till indicates that

he has some child neighbors that consist of an

8 year old boy and a 6 year old girl. Till then

makes the comment to Gunn, “if i could get

them i would.” This prompts an additional

conversation in which Till and Gunn speak

about how to accomplish this. Gunn began to

give advice to Till on how to kidnap them for

the purposes of sex. Gunn wrote, “You’d have

to be masked and not speak, maybe blind

fold them, and clean up the cum.” She

then added, “Just need rope and tape and

blindfolds.” Lastly, Gunn expressed careful

thought in cleaning up the evidence when she

wrote, “All evidence has to be gone . . .

Their blood wouldn’t be a problem . . .

Plastic over where you put them and once

you drop them then it’s not your problem.”

IP logs from MeetMe.com show that Gunn was

App. 29

communicating from her residence at 2529

Berkshire Drive in Bismarck.

Dated this 17th of December, 2015.

/s/ [Illegible]

Peace Officer/Affiant

Subscribed and Sworn before me on the 17 day of December, 2015.

CHRISTIE KAYLOR

Notary Public

State of North Dakota

My Commission Expires

July 17, 2019

/s/ Christie Kaylor

Notary Public

App. 30

STATE OF NORTH DAKOTA

IN DISTRICT COURT

COUNTY OF BURLEIGH

SOUTH CENTRAL

JUDICIAL DISTRICT

State of North Dakota

) Case No. 08-2015-CR-03443

)

v.

)

Amira Olivia Gunn,

)

Defendant. )

)

MOTION IN LIMINE

[¶1] Amira Olivia Gunn, defendant, files this motion in limine to exclude evidence.

[¶2] The conduct of defendant alleged in this

case is her speech to and with Calvin Till.

[¶3] Defendant’s speech is protected by the First

Amendment of the United States Constitution, and

cannot be made criminal, because it is not speech

which tended to incite an immediate breach of the

peace. City of Bismarck v. Schoppert, 469 N.W.2d 808,

811-812 (ND. 1991).

[¶4] Nor did defendant’s speech in this case constitute a “true threat” communicated to a particular

person. See State v. Brossart, 2015 ND 1, ¶ 12, 858

N.W.2d 275.

[¶5] Wherefore, defendant requests the Court to

enter an order excluding all evidence of defendant’s

speech which is protected by the First Amendment.

App. 31

Dated: October 14, 2016.

MICHAEL R. HOFFMAN

North Dakota Bar ID 04366

Attorney for Defendant

P. O. Box 1056

Bismarck, ND 58502-1056

701-355-0900

/s/ Michael R. Hoffman

Michael R. Hoffman

hoffmanmike@yahoo.com;

pkthurn@yahoo.com

App. 32

STATE OF NORTH DAKOTA

IN DISTRICT COURT

COUNTY OF BURLEIGH

SOUTH CENTRAL

JUDICIAL DISTRICT

State of North Dakota, ) STATE’S RESPONSE

) TO DEFENDANT’S

Plaintiff,

) MOTION IN LIMINE TO

-vs) EXCLUDE STATEMENTS

)

Amira Gunn,

SA# F1755-15-12

)

Defendants. ) Cr. No. 08-2015-CR-3443

[¶1] Comes now the State of North Dakota, and

hereby submits this response to Defendant’s Motion in

Limine in the above entitled case. The State opposes

the Defendant’s request to exclude all evidence of Defendant’s speech and requests that the Court DENY

the motion.

Background

[¶2] The Defendant was charged by criminal complaint of one count of Attempted Gross Sexual Imposition, a Class A Felony. A jury trial is scheduled for two

days beginning November 3, 2016, The State has alleged that the Defendant, Amira Gunn, committed the

offense through communications she had with Calvin

Till that took place on November 12 and 13, 2015

through a social media site called MeetMe.com. The

Defendant now brings a motion in limine to exclude all

evidence of Defendant’s speech.

App. 33

Law and Argument

[¶3] The evidence that the Defendant seeks to exclude is not protected speech under the First Amendment. The absolute meaning of the First Amendment

has been adjusted since its inception to “ ‘[permit] restrictions upon the content of speech in a few limited

areas,’ and has never ‘include[d] a freedom to disregard these traditional limitations.’ ” U.S. v. Stevens, 559

U.S. 460, 468 (2010), (quoting R.A.V. v. St. Paul, 505

U.S. 377, 382-383, 112 S.Ct. 2538), inter alia, the categories of unprotected speech under the First Amendment include obscenity and “speech integral to

criminal conduct.” Roth v. U.S., 354 U.S. 476, 485,

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498

(1949).

Obscenity

[¶4] It has long been established that “obscenity is

not within the area of constitutionally protected speech

or press.” Roth., 354 U.S. 476, 485. Obscenity traditionally falls into an unprotected category of speech under

the First Amendment because it brings “such slight

social value as a step to truth that any benefit that

may be derived from [it] is clearly outweighed by the

social interest in order and morality. . . .” Chapinsky v.

new Hampshire, 315 U.S. 568, 571-572 (1942). Traditionally and legally speaking, obscenity has been defined as “material appealing to prurient interest.”

Roth at 487. Beyond that, “obscene” is defined as: “relating to sex in an indecent or offensive,” and “very

App. 34

offensive in usually a shocking way.” Merriam-Webster,

http://www.merriam-webster.com/dictionary/obscene.

[¶5] Upon learning that Till had a young daughter,

the Defendant proceeded to instruct and encourage

Till on how to desensitize her to sexual contact and

how to groom her for sexual activity. Gunn gave Till

specific instructions on how to introduce his then sixyear-old daughter to topics of sex, and how to desensitize her to nudity and sexual contact. Crim. Doc. ID #

1, p 1-2. Specifically, Gunn told Till things like: “let her

walk in on you jacking off ”; “lay her on her back and

relax her kiss her if she likes that it rub her gently

with your fingers first . . . see how she likes it and very

gently finger her . . . get her wet . . . pussy juice in the

best lube”; and “once she wet enough, try two figures

[sp] and then try the head of your dick.” Id. Taken in

context in relation to a six-year-old girl, the Defendant’s speech is clearly obscene and no doubt falls into

the category of unprotected speech. Roth. Beyond that,

Gunn also writes to Till about a strategy to kidnap two

child neighbors, a six-year-old girl and an eight-yearold boy, for the purposes of sex, and writes things like,

“You’d have to be masked and not speak, maybe blind

fold them, and clean up the cum.” This speech would

also be classified as obscene by the definition and test

above, and would thus fall into a category of unprotected speech. Id.

App. 35

Speech Integral to Criminal Conduct

[¶6] Along with obscenity, the Defendant’s words also

fall into the unprotected speech category of “speech integral to criminal conduct.” Giboney, 336 U.S. 490, 498.

“[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated,

evidenced, or carried out by means of language, either

spoken, written or printed.” Id. At 502 (citing Fox v.

Washington, 236 U.S. 273, 277 (1915), Chaplinsky, 315

U.S. 568). “Such an expansive interpretation of the constitutional guaranties of speech and press would make

it practically impossible to ever enforce laws. . . .” Id.

The Defendant writes words instructing and encouraging someone to, inter alia, commit Gross Sexual Imposition. By her words alone, the Defendant’s speech is

integral to criminal conduct. As such, they are unprotected under the First Amendment.

Regarding a True Threat &

Incitement to Breach of Peace

[¶7] The Defendant claims that her speech is protected because it is not 1) a “true threat” or 2) speech

tended to incite an immediate breach of the peace.

State v. Brossart, 2015 ND 1, ¶ 12, N.W.2d 275, City of

Bismarck v. Schoppert, 469 N.W.2d 808, 811-12 (N.D.

1991). The State does not necessarily dispute that Defendant’s words are not a true threat, but regardless,

“whether a communication constitutes a threat is a

question for the jury.” Brossart at ¶ 12 (citing State v.

App. 36

Haugen, 392 N.W.2d 799 (1986)). Thus, to the question

of whether or not speech is a true threat, the speech

should not be excluded from being presented at trial

because that is a question for the jury.

[¶8] The Defendant’s claim that her speech was not

speech which tended to incite an immediate breach of

the peace is inapplicable to the facts at hand.

Conclusion

[¶9] The Defendant’s motion fails to address 1) obscenity or 2) “speech integral to criminal conduct”

as unprotected categories of speech under the First

Amendment in which the Defendant’s speech falls.

Further, the Defendant merely generally points to two

other categories of unprotected speech that are not applicable to the case at hand.

[¶10] For the reasons stated above, the State requests the Defendant’s Motion be DENIED.

Dated this 27 day of October, 2016.

/s/ Wade Davison

Wade Davison

(ID # 08167)

Assistant State’s Attorney

Burleigh County

514 E. Thayer Ave.

Bismarck, ND 58501

(701) 222-6672

App. 37

STATE OF NORTH DAKOTA

IN DISTRICT COURT

COUNTY OF BURLEIGH

SOUTH CENTRAL

JUDICIAL DISTRICT

State of North Dakota

v.

Amira Olivia Gunn,

Defendant.

) Case No. 08-2015-CR-03443

)

)

)

)

)

BRIEF IN SUPPORT OF DEFENDANT’S

MOTION FOR RECONSIDERATION OF

ORDER DENYING MOTION IN LIMINE

TO EXCLUDE STATEMENTS

[¶1] Amira Olivia Gunn, defendant, files this

brief in support of her objection to the Court’s Order

Denying Motion in Limine to Exclude Statements, and

her motion for the Court to reconsider the order.

[¶2] The facts of this case are that there was, in

fact no child less than fifteen (15) years of age, even

though the State has alleged it to be so in its charging

document.

[¶3] The charging document also alleges defendant aided Calvin Till to engage in a sexual act with another, or caused another to engage in a sexual act,

when the facts of this case are that Calvin Till did not

in fact engage in a sexual act with another person.

App. 38

[¶4] The “conduct” defendant is accused of committing consists of only words, speech, communicated

to Calvin Till.

[¶5] The court analyzed defendant’s speech under the three-part test set forth in Roth v. U.S., 354 U.S.

476, 485 (1957), and more recently discussed in Miller

v. California, 413 U.S. 15 (1973).

[¶6] Defendant contends the Court misapprehended and misapplied that three-part test. A reading

of Miller v. California, shows the speech, “subject to

regulation under the States’ police power”, 413 U.S. at

22, is to be regulated by statutes carefully limited to

“works which depict or describe sexual conduct specifically defined by the applicable state law.” 413 U.S. at

23-24. Therefore, the applicable state law must be the

regulating law. “Under the holdings announced today,

no one will be subject to prosecution for . . . obscene

materials unless these materials depict or describe patently offensive . . . sexual conduct specifically defined

by the regulating law, as written and construed.” 413

U.S. at 27. (Emphasis added). This is required for fair

notice that such speech may bring prosecution. 413

U.S. at 27.

[¶7] Here, neither N.D.C.C. Chapter 12.1-27.1,

Obscenity Control, nor N.D.C.C. Chapter 12.1-27.2,

Sexual Performances by Children, North Dakota’s obscenity statutes, regulate or prohibit defendant’s speech

in this case. Defendant cannot be prosecuted for her

speech in this case. Defendant has not been given

App. 39

notice that she would be prosecuted for her speech in

this case.

[¶8] This case would be different if there was in

fact an actual child. States have greater power to regulate conduct which embodies “both speech and nonspeech elements”. Millet v. California, 413 U.S. 15,

fn. 8 (1973). If there was an actual child, there would

be nonspeech elements involved here which the police

power of the State of North Dakota could potentially

regulate by the criminal statutes charged herein.

[¶9] Wherefore, defendant requests the Court to

reconsider its order and grant defendant’s motion in

limine.

Dated: October 31, 2016.

MICHAEL R. HOFFMAN

North Dakota Bar ID 04366

Attorney for Defendant

P. O. Box 1056

Bismarck, ND 58502-1056

701-355-0900

/s/ Michael R. Hoffman

Michael R. Hoffman

hoffmanmike@yahoo.com;

pkthurn@yahoo.com