N.D. Supreme Court hears arguments on jury unanimity and alternate juror substitution in State v. Aulge

The North Dakota Supreme Court heard arguments over two central questions in State of North Dakota v. Jeffrey Allen Aulge: whether jury instructions created a unanimity problem when multiple instances of alleged contact were presented for a single criminal count, and whether the trial court erred by accepting counsel’s waiver to remove a juror during deliberations and replace that juror with an alternate.

Kiera Crosspar, counsel for appellant Jeffrey Allen Aulge, told the court the principal defect was that the jury instructions tracked a single-contact offense while the state presented evidence of multiple, distinct instances of contact across a multi-year period. Crosspar said the instructions left jurors without a clear way to identify which specific conduct supported a guilty verdict, adding, “So that’s it. Those are the and then you have 3 instances that the jury is trying to determine occurred and so you have a unanimity problem.”

Crosspar also criticized the trial court’s handling of a juror who, after deliberations began, told the court she could not continue. Crosspar said the court “solicits a waiver from counsel to have this juror who had been deliberating removed and an alternate juror replaced … but that’s not something counsel can agree to,” arguing that counsel cannot waive the defendant’s personal right to the particular jury that began deliberations.

Isaac Lees, counsel for the State of North Dakota, responded that the case facts differ from the precedents the appellant cites and that North Dakota law recognizes alternate means of committing a single offense. Lees told the court that “when you have alternate means of committing the same offense, the jury does not need to agree on which method by which the defendant committed the offense,” and relied on the court’s prior rulings allowing alternate means theories.

On the juror-substitution issue, Lees pointed to Rule 24’s purpose, arguing substitution of a qualified alternate can prevent mistrials. He told the court, “Well, rule 24 specifically says the purpose of this is to prevent mistrials by having alternates,” and stressed that the record shows the alternate was properly seated, the parties were afforded additional strikes for the alternate, and the jury restarted deliberations as instructed.

The attorneys debated whether Gaddy (2022) and State v. Martinez (2014) control. Crosspar argued Gaddy requires clarity when the state presents multiple possible acts for a single charged offense; Lees countered that those cases addressed multiple-count prosecutions and that different precedent governs a single-count, alternate-means situation. The court also discussed City of Mandan v. Sperley (2004) during argument as an example involving alternate means.

The record points to a charged time frame that was described at argument as initially about a year-and-a-half and later two years, with the defendant alleged to have lived with the family for roughly one year within that period. Counsel identified three separate instances of alleged contact in the trial record and said juror 23 was replaced by alternate juror 29 during deliberations; the court reported the jury then asked to replay an exhibit and restarted deliberations with the alternate.

The justices asked a series of questions about waiver, preservation, and prejudice. At several points the bench pressed whether the appellant preserved an objection at trial and whether any error would be subject to obvious-error review or post-conviction review for ineffective assistance. Appellate counsel maintained the unanimity error was constitutional and not subject to counsel waiver, while the State argued any instructional defect was forfeited and, if error, not “clear” under the obvious-error standard.

The court took the case under advisement. No decision was announced at the argument session.

This article summarizes the arguments made to the North Dakota Supreme Court; the court’s opinion, when filed, will resolve the legal questions presented and supply any factual findings the justices adopt.