North Dakota Supreme Court hears dispute over whether child-abuse conviction requires offender-registration

The North Dakota Supreme Court heard oral argument in State of North Dakota v. Orion Tyler Berkeley, file no. 20240351 (date not specified), on whether a child-abuse conviction requires mandatory registration as an "offender against children" or whether a sentencing court may decline to impose that registration.

The issue matters because registration as an offender against children imposes ongoing legal requirements on a convicted person and can affect housing, employment and other post‑conviction consequences. The parties debated the meaning of the registration statute cited in argument — identified in the transcript as "12.1‑3‑215, subsection 2(d)" — and whether the statutory exceptions listed later in the section (referred to during argument as sections 12.1‑29‑02, 12.1‑18‑01 and 12.1‑18‑02) limit a court's ability to deviate when the offender is a parent of the victim.

Orion Tyler Berkeley was convicted of child abuse, a class B felony, for conduct involving his child, who the transcript says was under 6 years old. At sentencing, the district court judge (identified in argument as the Hon. Benjamin J. Johnson) imposed a requirement that Berkeley register as an offender against children; defense counsel argued the judge understood at sentencing that he would not have imposed registration unless he thought it was mandatory.

"I would submit that it's very clear on its face that a court in this situation would be allowed to deviate from requiring Mr. Berkeley to register," said Eric Baumann, attorney for the appellant, arguing the plain language, legislative history and rule of lenity support discretion. Baumann told the court that, under his reading, the statute's second sentence begins with "except" and that the court may deviate except in the specifically enumerated circumstances.

State counsel Nathan Madwin told the justices he did not believe judicial error occurred. "I do not believe that there was judicial error present in this particular case," Madwin said, arguing that the child‑abuse conviction falls within the listed, registrable offenses and that the facts here support registration. Madwin further said vacating registration without further proceedings would be inappropriate and suggested a hearing might better address factual questions.

A principal point of dispute at argument was how to parse the statutory language that lists certain offenses and then includes the phrase "and the person is not the parent of the victim." Defense counsel said that, if the statute is ambiguous, the court should resolve the ambiguity in favor of the defendant and that the wording permits courts to exercise discretion when the offender is the parent. The State countered that, given the nature of the offense and the statutory scheme, the sentencing court acted within its authority.

Counsel and the court also discussed possible remedies if the Supreme Court rejects the State's position: defense counsel said a remand for the district court to exercise discretion would be appropriate, but asked the court to vacate the registration requirement outright; the State urged that further proceedings or a hearing would be preferable to immediate vacatur.

At the end of argument the court announced it would "take the case under advisement," indicating the justices will issue a written decision at a later date.

The case record described at argument included a jury trial and a presentence investigation report (PSI), which counsel said provided background the district court could use if the case were remanded for consideration of whether the court should exercise any alleged discretion to decline registration.