IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 116

State of North Dakota, Plaintiff and Appellee

v.

Corey Lynn Gardner, Defendant and Appellant

No. 20220360

Appeal from the District Court of Williams County, Northwest Judicial 

District, the Honorable Paul W. Jacobson, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for plaintiff and 

appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 21, 2023 

STATE OF NORTH DAKOTA
1

State v. Gardner

No. 20220360

Bahr, Justice.

[¶1] Corey Lynn Gardner appeals from a criminal judgment entered after a 

jury convicted her of child abuse in violation of N.D.C.C. § 14-09-22. She argues 

improper jury instructions resulted in obvious error. She also argues 

insufficient evidence supports the conviction. We affirm the judgment.

I 

[¶2] Gardner was charged with child abuse in violation of N.D.C.C. § 14-09-

22. The Information alleged, as “the daytime caregiver of Jane Doe, age 2 

months,” Gardner “inflicted or allowed to be inflicted bodily injury on Jane 

Doe[.]” Section 14-09-22(1), N.D.C.C., provides:

[A] parent, adult family or household member, guardian, or other 

custodian of any child, who willfully inflicts or allows to be inflicted 

upon the child mental injury or bodily injury, substantial bodily 

injury, or serious bodily injury as defined by section 12.1-01-04 is 

guilty of a class C felony except if the victim of an offense under 

this section is under the age of six years in which case the offense 

is a class B felony.

[¶3] The district court’s opening instructions describe the charged offense as: 

“Corey Lynn Gardner, the daytime caregiver to Jane Doe, age two months, 

inflicted or allowed to be inflicted bodily injury on Jane Doe . . . .” The closing 

instructions state the essential elements of abuse of a child as:

The State’s burden of proof is satisfied if the evidence shows, 

beyond a reasonable doubt, the following essential elements:

1) On or about November 6, 2018, in Williams County, 

North Dakota;

2) The Defendant, Corey Lynn Gardner;

3) Was an other custodian of Jane Doe, a minor child, 

under the age of six years; and

4) Willfully inflicted or willfully allowed to be inflicted 

upon the child, bodily injury.
2

Gardner did not object to the instructions.

II

[¶4] Gardner argues the jury instructions incorrectly informed the jury of the 

law because the instructions improperly state the culpability level in the 

essential elements as “willfully inflicted or willfully allowed to be inflicted upon 

the child.” Gardner acknowledges she did not object to the instructions and, 

thus, did not preserve the issue for appellate review. However, she asks this 

Court to review the instructions under the obvious error standard. She argues 

the district court’s insertion of “willfully” before “allowed to be inflicted” is 

obvious error.

[¶5] Because Gardner did not preserve this issue for appeal, the alleged error 

will only be reviewed for obvious error. See State v. Watts, 2023 ND 47, ¶ 19, 

988 N.W.2d 254 (stating when the defendant fails to properly object to a 

proposed jury instruction the alleged error is not preserved for appeal and the 

instruction will only be reviewed for obvious error); State v. Schaf, 2023 ND 

81, ¶ 17, 989 N.W.2d 473 (same). “To establish an obvious error, the defendant 

must show: (1) error; (2) that is plain; and (3) the error affects the defendant’s 

substantial rights.” State v. Smith, 2023 ND 6, ¶ 5, 984 N.W.2d 367 (cleaned 

up). “To constitute obvious error, the error must be a clear deviation from an 

applicable legal rule under current law. There is no obvious error when an 

applicable rule of law is not clearly established.” State v. Lott, 2019 ND 18, ¶ 8, 

921 N.W.2d 428 (quoting State v. Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 

774). “We have discretion in deciding whether to correct an obvious error, and 

we should exercise that discretion only if the error seriously affects the 

fairness, integrity or public reputation of judicial proceedings.” Smith, at ¶ 5.

(cleaned up). Sustaining a conviction based on jury instructions that do not 

require findings on every essential element would violate due process and 

seriously affect the fairness, integrity, and public reputation of criminal 

proceedings. Id. at ¶ 18.

[¶6] “Jury instructions must correctly and adequately inform the jury of the

applicable law and must not mislead or confuse the jury.” State v. Martinez, 

2015 ND 173, ¶ 8, 865 N.W.2d 391 (cleaned up). “We review the instructions as 
3

a whole to determine whether they correctly and adequately advise the jury of 

the applicable law even if part of the instruction standing alone may be 

insufficient or erroneous.” State v. Gaddie, 2022 ND 44, ¶ 6, 971 N.W.2d 811. 

[¶7] We must review the statute to assure the jury instructions correctly and 

adequately inform the jury of the applicable law. “The construction of a 

criminal statute presents a question of law that is fully reviewable on appeal.” 

Gaddie, 2022 ND 44, ¶ 17.

Our primary goal in interpreting statutes is to ascertain the 

Legislature’s intentions. In ascertaining legislative intent, we first 

look to the statutory language and give the language its plain, 

ordinary and commonly understood meaning. We interpret 

statutes to give meaning and effect to every word, phrase, and 

sentence, and do not adopt a construction which would render part 

of the statute mere surplusage. When a statute’s language is 

ambiguous because it is susceptible to differing but rational 

meanings, we may consider extrinsic aids, including legislative 

history, along with the language of the statute, to ascertain the 

Legislature’s intent. We construe ambiguous criminal statutes 

against the government and in favor of the defendant.

Id. (cleaned up).

[¶8] According to Gardner, “willful conduct” and “allowance” are incongruent; 

she asserts one cannot allow something to happen if she does not know it is 

occurring. Gardner provides no authority showing, generally or specifically as 

to N.D.C.C. § 14-09-22(1), it is incongruous to modify the verb “allowed” with 

“willfully.” To the contrary, in State v. Anderson, 480 N.W.2d 727, 730 (N.D. 

1992), this Court stated to find a defendant acted “willfully” the jury was 

required to find the defendant “had acted consciously and with a clearly 

unjustifiable disregard for the risk of harm” to the victim. Thus, “we have 

interpreted the definition of ‘willfully’ under N.D.C.C. § 12.1-02-02 to require 

volition.” Gaddie, 2022 ND 44, ¶ 24. See State v. Trevino, 2011 ND 232, ¶ 31, 

807 N.W.2d 211 (explaining we may apply a definition from N.D.C.C. § 12.1-

02-02(1) to affirmatively define a culpability term which is present in another 

statute); N.D.C.C. § 1-01-09 (“Whenever the meaning of a word or phrase is 
4

defined in any statute, such definition is applicable to the same word or phrase 

wherever it occurs in the same or subsequent statutes, except when a contrary 

intention plainly appears.”). Because reckless conduct requires “conscious 

disregard,” “willful conduct” and “allowance” are not incongruent.

[¶9] Furthermore, the Legislature has criminalized willful allowance in other 

areas of the Century Code. In 2019, the Legislature amended N.D.C.C. § 12.1-

36-01 to include subsection (3): “Any parent, adult family or household 

member, guardian, or other custodian of any child who willfully allows a child 

to be surgically altered under this section is guilty of child abuse under 

subsection 1 of section 14-09-22.” (Emphasis added.) See 2019 N.D. Sess. Laws 

ch. 122, § 1. Since 1989, our code has included an infraction for willful 

allowance under N.D.C.C. § 61-14-16, which provides:

No person may place, erect, or operate a sprinkler irrigation 

system, center pivot irrigation system, or other irrigation works or 

equipment upon or across any highway, street, or road or in such a 

manner as to willfully allow water from the irrigation works or 

equipment to flow or fall upon any highway, street, or road.

(Emphasis added.)

[¶10] Finally, the legislative history of N.D.C.C. § 14-09-22 supports the 

conclusion “willfully” modifies the word “allows.” In 2015, the Legislature 

separated the offenses of child abuse from neglect of a child, moving child 

neglect from N.D.C.C. § 14-09-22 to N.D.C.C. § 14-09-22.1. 2015 N.D. Sess. 

Laws ch. 127, § 3; see State v. Soucy, 2020 ND 119, ¶ 8, 943 N.W.2d 755. This 

amendment changed the following language: 

1. Except as provided in subsection 2 or 3, a parent, adult family 

or household member, guardian, or other custodian of any child,

who willfully commits any of the following offenses inflicts or 

allows to be inflicted upon the child mental injury or bodily injury, 

substantial bodily injury, or serious bodily injury as defined by 

section 12.1-01-04 is guilty of a class C felony except if the victim 

of an offense under subdivision a this section is under the age of 

six years in which case the offense is a class B felony:
5

a. Inflicts, or allows to be inflicted, upon the child, 

bodily injury, substantial bodily injury, or serious 

bodily injury as defined by section 12.1–01–04 or 

mental injury. 

b. Fails to provide proper parental care or control, 

subsistence, education as required by law, or other 

care or control necessary for the child’s physical, 

mental, or emotional health, or morals.

c. Permits the child to be, or fails to exercise 

reasonable diligence in preventing the child from 

being, in a disreputable place or associating with 

vagrants or vicious or immoral persons.

d. Permits the child to engage in, or fails to exercise 

reasonable diligence in preventing the child from 

engaging in, an occupation forbidden by the laws of 

this state or an occupation injurious to the child’s 

health or morals or the health or morals of others.

2015 N.D. Sess. Laws ch. 127, § 3. Thus, prior to the amendment, “willfully” 

modified all of the listed offenses, including “[i]nflict[ing], or allow[ing] to be 

inflicted, upon the child, bodily injury, substantial bodily injury, or serious 

bodily injury as defined by section 12.1-01-04 or mental injury.”

[¶11] Section 14-09-22.1, N.D.C.C., now provides: “A parent, adult family or 

household member, guardian, or other custodian of any child, who willfully 

commits any of the following offenses is guilty of a class C felony,” which 

adopted the previous subsections (b)-(d) of section 14-09-22(1) as its “following 

offenses.” 2015 N.D. Sess. Laws ch. 127, § 3. The child abuse statute, section 

14-09-22(1), retained subsection (a) and incorporated the “offense” of “inflicts 

or allows to be inflicted upon the child mental injury or bodily injury, 

substantial bodily injury, or serious bodily injury[.]” Therefore, the elements of 

the offense include the willful conduct of “inflict[ing] or allow[ing] to be 

inflicted upon the child mental injury or bodily injury, substantial bodily injury, 

or serious bodily injury.” 

[¶12] We conclude the district court’s use of “willfully allowed to be inflicted” 

in the jury instructions is not error, obvious or otherwise.
6

III

[¶13] Gardner argues the jury instructions combined two alternative methods 

of child abuse, which did not assure the defendant a unanimous verdict. She 

argues the jury instructions allowed the jury to convict her of the crime without 

all the jurors agreeing on which of the underlying actions constituted child 

abuse beyond a reasonable doubt.

[¶14] All verdicts in criminal cases must be unanimous. N.D. Const. art. I, 

§ 13; N.D.R.Crim.P. 31(a); see also Martinez, 2015 ND 173, ¶ 18. “No person 

may be convicted of an offense unless each element of the offense is proved 

beyond a reasonable doubt.” State v. Pulkrabek, 2017 ND 203, ¶ 6, 900 N.W.2d 

798 (quoting N.D.C.C. § 12.1-01-03(1)).

[¶15] Gardner argues the instructions were incorrect because different jurors 

could have found Gardner inflicted bodily injury, while others could have found 

she allowed bodily injury to be inflicted. We analyzed similar arguments under 

the theft statute and a disorderly conduct ordinance. See Pulkrabek, 2017 ND 

203 (analyzing the theft statute under N.D.C.C. § 12.1-23-02); City of Mandan 

v. Sperle, 2004 ND 114, 680 N.W.2d 275 (analyzing the disorderly conduct 

ordinance under Mandan City Ordinance § 19-05-01). Both decisions rely on 

the United States Supreme Court decision in Schad v. Arizona, 501 U.S. 624 

(1991), which held the defendant’s due process rights were not violated when 

he was convicted of first-degree murder under instructions that did not require 

the jury to agree on the alternative theories of premeditated and felony murder.

[¶16] In Schad, the Supreme Court explained “legislatures frequently 

enumerate alternative means of committing a crime without intending to 

define separate elements or separate crimes.” 501 U.S. at 636 (footnote 

omitted). “If a State’s courts have determined that certain statutory 

alternatives are mere means of committing a single offense, rather than 

independent elements of the crime, we simply are not at liberty to ignore that 

determination and conclude that the alternatives are, in fact, independent 

elements under state law.” Id.
7

[¶17] As explained above, in 2015, the Legislature separated the offenses of 

child abuse from neglect of a child. 2015 N.D. Sess. Laws ch. 127, § 3. In doing 

so, the Legislature separated conduct resulting in an offense of child abuse 

from conduct resulting in an offense of child neglect. What remains under 

N.D.C.C. § 14-09-22 is conduct resulting in the offense of child abuse, which 

includes two alternative means of committing the crime: (1) a custodian 

inflicting upon the child mental or bodily injury or (2) a custodian allowing 

mental or bodily injury to be inflicted upon the child.

[¶18] Similar to the disorderly conduct ordinance and the theft statute, the 

North Dakota Legislature chose to enumerate two alternative means of 

committing child abuse, without intending to define separate elements or 

crimes. This is evidenced by not only the legislative history of N.D.C.C. § 14-

09-22, but by the language of the statute itself. The statute uses “or” to set 

apart the two nonexclusive means of committing child abuse. Either action in 

violation of the statute is sufficient to justify a conviction under the statute. 

See Pulkrabek, 2017 ND 203, ¶ 18 (analyzing alternative means of committing 

a theft under North Dakota statute). In fact, that the two behaviors are 

alternative, nonexclusive means of committing the same offense is even more 

apparent in N.D.C.C. § 14-09-22(1) than the theft statute in Pulkrabek and the 

disorderly conduct ordinance in Sperle. The two alternative behaviors of 

committing child abuse under N.D.C.C. § 14-09-22(1) are stated in the same 

subsection and only separated by the word “or,” while in Pulkrabek and Sperle

multiple nonexclusive alternative behaviors are stated in multiple 

subdivisions. 2017 ND 203, ¶ 7; 2004 ND 114, ¶ 13; see also N.D.C.C. § 14-09-

22.1. We conclude in adopting N.D.C.C. § 14-09-22 the Legislature enumerated 

alternative means of committing child abuse and did not define separate 

elements or separate crimes.

[¶19] The jury was not required to unanimously agree upon which of the two 

alternative means of committing child abuse—Gardner inflicting bodily injury 

or Gardner allowing bodily injury to be inflicted—it believed the State proved 

beyond a reasonable doubt.
8

IV

[¶20] Gardner argues insufficient evidence supports the conviction. Gardner 

failed to meet her burden of showing the evidence reveals no reasonable 

inference of guilt when viewed in the light most favorable to the verdict. See 

State v. Rai, 2019 ND 71, ¶ 13, 924 N.W.2d 410 (explaining 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). Based on the record, 

sufficient evidence allows a jury to draw a reasonable inference in favor of 

conviction. We summarily affirm under N.D.R.App.P. 35.1(a)(3).

V

[¶21] We affirm the judgment.

[¶22] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr