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Date: 01-23-2021

Case Style:

State of North Dakota v. Steven Donald Aune

Case Number: 2021 ND 7

Judge: Lisa K. Fair McEvers


Plaintiff's Attorney: Kelley M.R. Cole, State’s Attorney

Defendant's Attorney:

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Bismarck, ND - Criminal defense attorney represented Steven Donald Aune with arguing the jury’s verdict was inconsistent and the district court relied on an impermissible sentencing factor, rendering his sentence illegal.

On May 1, 2019, Aune’s adult twin daughters were both living at his
home. One of the daughters had been living with Aune for some time, but the
other daughter, S.A., had only been staying with Aune for about one week prior
to her death. Aune and S.A. had an argument, and Aune picked up a rifle
during the argument, which fired and struck S.A. Aune did not call 911 or
attempt to render any aid to S.A., but he allowed the other daughter to use his
pickup to take S.A. to the nearest hospital. S.A. died as a result of the gunshot
[¶3] Aune was charged with murder in violation of N.D.C.C. § 12.1-16-
01(1)(a) and (b), a class AA felony, defined as intentionally or knowingly
causing the death of another human being, or causing the death of another
human under circumstances manifesting extreme indifference to the value of
human life. A trial was held with several witnesses testifying. At trial, Aune
requested the district court instruct the jury on lesser included offenses of
manslaughter and negligent homicide. Aune testified he had been drinking
heavily the night before, that he did not mean to shoot his daughter, and that
he typically kept the rifle unloaded with the safety on. A jury found Aune
guilty of manslaughter, a class B felony, on January 22, 2020. A sentencing
hearing was held on June 4, 2020 where the court considered a number of
factors in sentencing. Aune was sentenced to ten years of incarceration.
Judgment was entered on June 8, 2020. Aune timely appealed on June 9, 2020.
[¶4] Aune argues the jury’s guilty verdict on the charge of manslaughter and
not guilty on the charge of murder under circumstances manifesting extreme
indifference to the value of human life was inconsistent.
[¶5] “The standard of review for reconciling a jury verdict is whether the
verdict is legally inconsistent.” State v. Lehman, 2010 ND 134, ¶ 17, 785
N.W.2d 204. This Court has stated an inconsistent verdict is one in which the
jury has not followed the district court’s instructions and the verdicts cannot
be rationally reconciled. State v. McClary, 2004 ND 98, ¶ 6, 679 N.W.2d 455.
“Strict standards of logical consistency need not be applied to jury verdicts in
criminal cases.” State v. Jahner, 2003 ND 36, ¶ 19 657 N.W.2d 266.
Reconciliation of a verdict includes an examination of both the law and the case
in order to determine whether the verdict is logical and probable, and therefore
consistent, or illogical and clearly contrary to the evidence. Id. “Even if a jury
fails to convict a defendant on a charge having a similar element to a charge
on which the defendant is convicted, there is no legal inconsistency if there is
substantial evidence to support the charge on which he is convicted.” State v.
Pavlicek, 2012 ND 154, ¶ 10, 819 N.W.2d 521 (quoting Jahner, at ¶ 21).
[¶6] Aune was charged with intentional murder under N.D.C.C. § 12.1-16-
01(1)(a), which required the State to prove beyond a reasonable doubt that
Aune had intentionally or knowingly caused his daughter’s death. Aune does
not argue that the verdict finding him guilty of manslaughter is inconsistent
with the verdict finding him not guilty of intentional or knowing murder. The
State also charged Aune in the alternative with murder under N.D.C.C. § 12.1-
16-01(1)(b) causing death under circumstances manifesting extreme
indifference to the value of human life, which required the State to prove Aune
had willfully caused his daughter’s death. The definition of willfully includes
the mens reas of intentionally, knowingly, or recklessly committing the offense.
Aune argues that the guilty verdict for manslaughter is inconsistent with the
not guilty verdict on the extreme indifference murder charge because the
culpability for each charge includes recklessly causing the death.
[¶7] “Unchallenged jury instructions become the law of the case.” State v.
Coppage, 2008 ND 134, ¶ 23, 751 N.W.2d 254 (quoting State v. Rogers, 2007
ND 68, ¶ 10, 730 N.W.2d 859). Aune did not challenge the substance of the
jury instructions in this case, and Aune specifically requested the district court
include an instruction on manslaughter.
[¶8] We need not determine if the verdicts were legally inconsistent. We have
stated “[i]t is a cardinal rule of appellate review that a party may not challenge
as error a ruling or other trial proceeding invited by that party.” State v. Rende,
2018 ND 56, ¶ 9, 907 N.W.2d 361 (quoting State v. White Bird, 2015 ND 41, ¶
23, 858 N.W.2d 642). When Aune requested the district court to instruct on
manslaughter as a lesser included offense, and participated in crafting the jury
verdict forms, he waived any error. See Rende, at ¶¶ 7-9 (discussing three
categories of error: forfeited error, waived error, and structural error). Aune
may not now seek reversal on a possible error he invited.
[¶9] Aune argues his sentence is illegal because the district court relied on an
impermissible factor at sentencing by considering Aune’s prior convictions
without first ascertaining whether those convictions were uncounseled. Aune
does not argue his past convictions were actually uncounseled. Instead, Aune
argues the State’s failure to provide information to the court about whether
Aune’s prior convictions were uncounseled “is an invitation to the court to
consider an impermissible factor.” Aune argues his criminal history was one
of the factors relied upon by the court to give a maximum sentence, which
indicates that the court relied upon an impermissible factor, making the
sentence illegal.
[¶10] This Court’s review of a sentence is generally confined to whether the
district court acted within the statutory sentencing limits or substantially
relied on an impermissible factor. State v. Gonzalez, 2011 ND 143, ¶ 6, 799
N.W.2d 402. A trial judge is allowed the widest range of discretion in
determining the appropriate criminal sentence. State v. Corman, 2009 ND 85,
¶ 15, 765 N.W.2d 530. This Court has no power to review the discretion of the
sentencing court when the term of imprisonment is within the range
authorized by statute. Gonzalez, at ¶ 6.
[¶11] The district court gave Aune a sentence within the limits prescribed by
statute. Aune was convicted of manslaughter, a class B felony, which has a
maximum sentence of ten years’ incarceration. N.D.C.C. § 12.1-32-01(3). Aune
was sentenced to serve ten years, the maximum term of incarceration
permitted by statute. We next consider whether the court substantially relied
on an impermissible factor.
[¶12] This Court recently considered a strikingly similar argument in State v.
Evanson, 2020 ND 4. In Evanson, this Court reiterated that when a defendant
does not object at sentencing to the introduction of prior convictions, and the
prior convictions are not relied upon to enhance a term of incarceration, the
appropriate standard of the review is obvious error. Evanson at ¶ 9 (relying
on State v. Henes, 2009 ND 42, ¶¶ 7-11, 763 N.W.2d 502). As in Evanson, Aune
did not object to the introduction of his criminal history at sentencing.
[¶13] Issues raised for the first time on appeal will not be addressed unless the
alleged error rises to the level of obvious error. Henes, 2009 ND 42, ¶ 7. Aune
was given the opportunity to object if his criminal history included prior
uncounseled convictions when the district court asked Aune’s counsel if Aune
had received the presentence report, which contained his criminal history.
Instead, Aune’s counsel told the court they had received the report and had “no
corrections.” Without an objection at the court to preserve the issue or a
showing that a substantive error has been made, the proper standard of review
is obvious error. See Henes, at ¶ 7.
[¶14] Aune has not argued obvious error on appeal. When a party fails to
argue obvious error, this Court has discretion whether to consider the issue.
State v. Smith, 2019 ND 239, ¶ 15, 934 N.W.2d. 1. Here, the district court
imposed the maximum sentence and we will exercise our discretion, and
address Aune’s argument under obvious error. This Court notices obvious
error “only in exceptional circumstances in which a party has suffered a serious
injustice.” Henes, 2009 ND 42, ¶ 8. Under obvious error review, the burden
falls on the appellant to establish obvious error by showing: (1) error, (2) that
is plain, and (3) that affects substantial rights. State v. Doppler, 2013 ND 54,
¶ 14, 828 N.W.2d 502. “To affect substantial rights, a plain error must have
been prejudicial, or have affected the outcome of the proceeding.” State v.
Wegley, 2008 ND 4, ¶ 14, 744 N.W.2d 284. The first inquiry under the
framework for obvious error is whether an error occurred. See State v.
Thompson, 2010 ND 10, ¶ 26, 777 N.W.2d 617.
[¶15] Prior uncounseled convictions are considered impermissible factors
solely within the narrow context of a sentencing court relying on the factor to
enhance the defendant’s term of incarceration or subject the defendant to a
mandatory minimum. See, e.g., Henes, 2009 ND 42, ¶ 12. “A district court
enhances a sentence when it increases a defendant’s sentence beyond the
statutory maximum sentence to another offense level or sentencing range, or
under a mandatory sentencing provision because of a subsequent offense.” Id.
at ¶ 11 (statutory citations omitted). Aune did not receive an enhanced
sentence, because his sentence was not beyond the statutory maximum, nor
were the convictions used to impose a mandatory minimum sentence.
[¶16] Aune cannot establish obvious error, because he has failed to establish
an error occurred. Criminal history is a factor that a trial judge should
consider to determine the proper sentence. State v. Woehlhoff, 473 N.W.2d 446,
450 (N.D. 1991). Section 12.1-32-04(7), N.D.C.C., states that a district court
may consider whether the defendant has no history of prior delinquency or
criminal history or has led a law abiding life for a substantial period of time
before the commission of the present offense. Further, N.D.C.C. § 12.1-32-04(9)
provides that a court may consider the defendant’s character, history, and
attitudes to determine if he or she is likely to commit another offense for
sentencing purposes. Aune has not shown that his prior convictions were
uncounseled nor was he given an enhanced sentence based upon his criminal
history. The record reflects the court considered a number of factors, including
Aune’s: (1) educational level, with his master’s degree in special education; (2)
history of chemical dependency, including alcohol and drug usage; (3)
significant medical history; (4) failure to abide by terms of probation on
previous occasions; and (5) propensity for violence based on his criminal history
and other factors. The record presents no evidence of error in sentencing.
Instead, the record shows the court’s appropriate consideration of Aune’s prior
convictions as one of many sentencing factors under N.D.C.C. § 12.1-32-04.

Outcome: We affirm the judgment.

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