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State v. Syvertson7/13/1999
must be able to declare a belief that it was harmless beyond a reasonable doubt.'" State v. Flamm, 351 N.W.2d 108, 110 (N.D. 1984); N.D.R.Crim.P. 52(a), Explanatory Note. In declaring this belief, the court must be convinced "that the error did not contribute to the verdict." Flamm, 351 N.W.2d at 110. Furthermore, before making this declaration, the court must review the entire record and determine, in light of all the evidence, the probable effect of any constitutional error upon a criminal defendant's rights. State v. Schneider, 270 N.W.2d 787, 793 (N.D. 1978); N.D.R.Crim.P. 52(a), Explanatory Note.
Applying this test, we conclude the trial court's error in allowing in evidence parts of Syvertson's pretrial psychiatric evaluation at the sentencing hearing was harmless beyond a reasonable doubt.
[ ] Syvertson was not given an enhanced sentence for being "a dangerous, mentally abnormal person." N.D.C.C. § 12.1-32-09(1)(a). Rather, Syvertson was sentenced solely as a "habitual offender" under N.D.C.C. § 12.1-32-09(1)(c), which requires a finding that Syvertson is an adult and was convicted of two felonies of class C or above committed at different times when he was an adult. The trial court specifically found this statutory requirement to be a fact, and that finding is supported by the record. This finding, standing alone, supports the enhanced sentence of a total of 30 years in prison, which is a sentence below the statutory maximum of 40 years in prison.
[ ] In sentencing Syvertson, the trial court said " ou have a long history of alcohol and drug abuse and violations as well as what I would consider a preoccupation with sexual activity to the point that I'm of the opinion that you are a predator." However, all of the court's comments for sentencing have a basis in the record apart from the pretrial psychiatric evaluation. The trial court was presented with a Parole and Probation presentence investigation noting "13 prior treatments for alcohol and drug-related issues" at the penitentiary and elsewhere. The presentence investigation spoke of multiple felonies and misdemeanors committed by Syvertson. The presentence investigation included admissions Syvertson made to the probation officer about sexually touching numerous young girls, including his sister. The State also pointed out to the court that, during the second Hukee interview, Syvertson discussed his sexual preoccupation with female children.
[ ] We generally confine appellate review of a criminal sentence to whether the trial court acted within the sentencing limits prescribed by statute, or substantially relied on an impermissible factor. State v. McClean, 1998 ND 21, 4, 575 N.W.2d 200. In this case, the trial court acted within the sentencing limits and there is no indication the court relied on the pretrial psychiatric evaluation. We conclude the court's error in allowing into evidence parts of the evaluation is harmless beyond a reasonable doubt, and is not grounds for vacating Syvertson's sentence.
V.
[ ] The criminal judgment is affirmed.
[ ] Mary Muehlen Maring William A. Neumann Carol Ronning Kapsner Gerald W. VandeWalle, C.J.
Sandstrom, Justice, Concurring in the result.
[ ] I write separately to note in Oregon v. Elstad, 470 U.S. 298 (1985), the defendant made incriminating admissions in the initial interview. Here, there were none. Indeed, the sexual molestation-the subject of this case-was not an issue in the first interview, which occurred after Syvertson's arrest on unrelated charges.
[ ] Dale V. Sandstrom
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