I N T H E S U P R EM E C O U R T

STATE OF NORTH DAKOTA

2024 ND 127

State of North Dakota, Plaintiff and Appellee

v.

Joshua James Smith, Defendant and Appellant

Nos. 20240004 & 20240005

Appeal from the District Court of Burke County, North Central Judicial District, the 

Honorable Richard L. Hagar, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Amber J. Fiesel, State’s Attorney, Bowbells, N.D., for plaintiff and appellee; on brief.

Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant; on brief.
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State v. Smith

Nos. 20240004 & 20240005

Tufte, Justice.

[¶1] Joshua Smith appeals from criminal judgments entered after a bench trial which 

convicted him of felonious restraint, two counts of forcible gross sexual imposition, and 

six counts of aggravated assault. On appeal, he argues the evidence was insufficient to 

convict him of six counts of aggravated assault because the State proved only three counts 

at trial. He also argues his felonious restraint and aggravated assault convictions violate the 

double jeopardy provisions of the state and federal constitutions because felonious restraint 

and aggravated assault are lesser included offenses which merge into the two counts of 

gross sexual imposition. We affirm the judgments.

I

[¶2] The State charged Smith with two counts of forcible gross sexual imposition, six 

counts of aggravated assault, and one count of felonious restraint. Smith waived his right 

to a jury trial, and a bench trial was held. At trial, the State provided testimony from the 

victim, the defendant’s landlord, witnesses who assisted the investigation, and law 

enforcement officers. After the State rested, Smith moved for acquittal under 

N.D.R.Crim.P. 29. The court denied the motions and rendered a guilty verdict on all counts. 

Smith appeals.

II

[¶3] Smith argues the evidence was insufficient to support his conviction on six counts 

of aggravated assault.

[¶4] This Court’s standard for reviewing a sufficiency-of-the-evidence challenge is well 

established:

When the sufficiency of evidence to support a criminal conviction is 

challenged, this Court merely reviews the record to determine if there is 

competent evidence allowing the jury to draw an inference reasonably 

tending to prove guilt and fairly warranting a conviction. The defendant bears 

the burden of showing the evidence reveals no reasonable inference of guilt 

when viewed in the light most favorable to the verdict. When considering 

insufficiency of the evidence, we will not reweigh conflicting evidence or 

judge the credibility of witnesses.
2

State v. Salou, 2024 ND 6, ¶ 12, 1 N.W.3d 602 (quoting State v. Noble, 2023 ND 119, ¶ 4, 

992 N.W.2d 518). A defendant does not need to move for judgment of acquittal under 

N.D.R.Crim.P. 29 at a bench trial to preserve the issue of sufficiency-of-the-evidence for 

appeal. State v. Ismail, 2022 ND 199, ¶ 10, 981 N.W.2d 896; State v. Himmerick, 499 

N.W.2d 568, 572 (N.D. 1993) (announcing rule for criminal bench trials different from the 

rule for criminal jury trials and civil cases).

[¶5] During trial, Smith moved for a judgment of acquittal on a specific ground, which 

was different from the argument now asserted on appeal. We have held that when a motion 

is made under Rule 29 on specific grounds during a jury trial, the specific grounds argued 

before the district court are the only arguments preserved for appeal and any new argument 

asserting insufficient evidence will be reviewed under the obvious error standard. State v. 

Studhorse, 2024 ND 110, ¶ 28. We do not decide here whether Smith’s Rule 29 motion 

limits our review of grounds not specified to obvious error because the result here is the 

same when reviewed for obvious error or sufficiency-of-the-evidence.

[¶6] Smith asserts the State failed to prove six counts of aggravated assault because the 

victim testified to only three instances of aggravated assault. We disagree. At trial, the court 

admitted into evidence a recorded interview of Smith. In the interview, Smith described 

choking the victim nine or ten times, and all but three of the times, he choked the victim 

until she passed out. This evidence was sufficient to support conviction on six counts of 

aggravated assault, and thus the court did not err in denying Smith’s Rule 29 motion and 

rendering a guilty verdict.

III

[¶7] Smith argues his convictions of felonious restraint and aggravated assault violate 

the double jeopardy provisions of the state and federal constitutions because felonious 

restraint and aggravated assault are lesser included crimes that merge into the two counts 

of gross sexual imposition.

[¶8] This Court applies “de novo review to constitutional issues, including double 

jeopardy claims.” State v. Kollie, 2023 ND 152, ¶ 19, 994 N.W.2d 367. “[W]here the same 

act or transaction constitutes a violation of two distinct statutory provisions, the test to be 

applied to determine whether there are two offenses or only one, is whether each provision 

requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 

299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); see also State v. Bertram, 2006 ND 10, ¶ 14, 
3

708 N.W.2d 913 (applying Blockburger “same elements” test). Under this test, the offenses 

are different if “each offense contains an element not contained in the other.” Peterka v. 

State, 2015 ND 156, ¶ 9, 864 N.W.2d 745. This Court has rejected a “same evidence” test, 

so “neither a common episode nor the same evidence determines double jeopardy.” 

Bertram, at ¶ 14.

[¶9] First, Smith argues felonious restraint is a lesser included crime of forcible gross 

sexual imposition. In the district court’s findings of fact and verdict, an essential element 

of felonious restraint required the defendant “[k]nowingly restrained [] another human 

being, under terrorizing circumstances or under circumstances exposing [the victim] to risk 

of serious bodily injury.” N.D.C.C. § 12.1-18-02(2) (felonious restraint statute). An 

essential element for gross sexual imposition required that the defendant “willfully engaged 

in sexual contact [or act] with [the victim].” N.D.C.C. § 12.1-20-03(1)(a) (gross sexual 

imposition-forcible sexual act statute) and N.D.C.C. § 12.1-20-03(2)(b) (gross sexual 

imposition-forcible sexual contact statute). Under the Blockberger test, felonious restraint 

is not a lesser included offense of gross sexual imposition. Felonious restraint requires 

proof that the victim was restrained but not that sexual contact or a sexual act occurred, 

whereas gross sexual imposition requires proof of a sexual contact or sexual act and does 

not require proof of restraint. Felonious restraint and gross sexual imposition each require 

proof of an element which the other lacks. Thus, felonious restraint is not a lesser included 

offense of forcible gross sexual imposition. Kollie, 2023 ND 152, ¶ 20 (concluding crimes 

with different elements are not the same offense).

[¶10] Second, Smith argues aggravated assault is a lesser included offense of gross sexual 

imposition. In the district court’s findings of fact and verdict, an essential element of 

aggravated assault required that the defendant “(3) [w]illfully engaged in conduct; (4) 

[w]hich caused serious bodily injury to [] another human being.” N.D.C.C. § 12.1-17-

02(1)(a). An essential element for gross sexual imposition required that the defendant 

“willfully engaged in sexual contact [or act].” N.D.C.C. § 12.1-20-03(1)(a) (gross sexual 

imposition-forcible sexual act statute) and N.D.C.C. § 12.1-20-03(2)(b) (gross sexual 

imposition-forcible sexual contact statute). Under the Blockberger test, aggravated assault 

is not a lesser included offense of gross sexual imposition, because aggravated assault 

requires infliction of serious bodily injury but not sexual contact or a sexual act, whereas 

gross sexual imposition requires sexual contact or a sexual act and does not require the 

infliction of serious bodily injury. Aggravated assault and gross sexual imposition each 

require proof of an element which the other lacks. Since both require different elements, 
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aggravated assault is not a lesser included offense of forcible gross sexual imposition. 

Kollie, 2023 ND 152, ¶ 20 (concluding crimes with different elements are not the same 

offense).

IV

[¶11] We affirm the criminal judgments.

[¶12] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr