Attorneys argued Thursday in the appeal of the former deputy U.S. marshal who was sentenced last summer for 10 misdemeanors related to dressing room peeping in Bismarck.
As part of Michael Rivera's sentence, three of those misdemeanors were given consecutive sentences of three years total. The other seven sentences are to run concurrently.
Due to the separate charges' similarity, the prosecution before trial joined the multiple counts of three criminal cases against Rivera, totaling 22 felony and misdemeanor charges. The felonies were later dismissed.
Appellant attorney Lloyd Suhr argued that Rivera cannot be sentenced to three consecutive one-year sentences for offenses that were identical in nature.
"The offenses were not different courses of conduct," he wrote in briefs.
"Your argument is the state can't have its cake and eat it, too?" North Dakota Supreme Court Justice Lisa Fair McEvers asked at Thursday's hearing.
"Yes," Suhr said. "When did this become separate acts? Only at the time of sentencing. I think that's a problem."
Justices questioned applying other crimes to the same scenario, such as theft.
"Or if you kill three people or burn three houses down?" Chief Justice Gerald VandeWalle asked.
Suhr asked the high court to look to the state's stalking statute for guidance on the definition of "course of conduct," defined as "a pattern of conduct consisting of two or more acts evidencing a continuity of purpose."
VandeWalle contended he was taking the definition out of context. Suhr said the stalking statute is a source to worthy of scrutiny.
"It provides a beginning point, when the Legislature has not necessarily provided one," said Suhr, adding that the prosecution described Rivera's conduct as "stalking behavior."
Appellee and Burleigh County Assistant State's Attorney Julie Lawyer highlighted the separateness of Rivera's offenses and his multiple victims.
"He committed his acts on separate days in separate locations against separate victims," she wrote in briefs.
Suhr asked the court to re-sentence Rivera to one year.
"This was unified for trial," he said. "(The sentencing) is inconsistent. It may be hypocritical."
Rivera is serving time in federal prison in Colorado with a release date in 2022. He pleaded guilty in January to one federal count of receipt of images depicting sexual exploitation of minors. In May, he was sentenced to seven years in prison and five years of supervised release.
His state sentence commences upon completion of his federal sentence, according to court records.