Filed 05/07/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 85
State of North Dakota, Plaintiff and Appellee
v.
Akeem Rheim Foster, Defendant and Appellant
No. 20190298
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Jensen, Chief Justice.
Joshua A. Amundson (argued), Assistant State’s Attorney, and Karlei K.
Neufeld (on brief), Assistant State’s Attorney, Bismarck, ND, for plaintiff and
appellee.
James R. Loraas, Bismarck, ND, for defendant and appellant.
State v. Foster
No. 20190298
Jensen, Chief Justice.
[¶1] Akeem Foster appeals from a district court judgment entered following
a jury verdict finding him guilty of Terrorizing and Carrying a Concealed
Weapon. Foster contends he was denied a fair trial because he was asked
during cross-examination if other witnesses were lying and because the
prosecutor expressed personal beliefs about the evidence during closing
arguments. Foster also contends there was insufficient evidence to convict him
of either charge. We affirm Foster’s conviction for Carrying a Concealed
Weapon, reverse his conviction for Terrorizing, and remand the case to the
district court.
I
[¶2] On July 28, 2018, Foster drove to a public park in Bismarck to play
soccer. During the soccer game, Foster got into an altercation with the
goaltender on his team. The altercation evolved into a fight with at least one
of the participants wielding a stick. At some point, Foster ran to his car,
grabbed his handgun and displayed it to the other players. After displaying
his handgun to the other players, Foster returned to his vehicle, drove a few
blocks away from the park, and pulled over to the side of the roadway. A law
enforcement officer responding to the incident pulled his patrol vehicle up
behind Foster’s vehicle.
[¶3] During his interaction with the officer, Foster disclosed he had a
handgun in the glove compartment of his vehicle. Foster’s loaded handgun was
subsequently located in the glove compartment. At the time of the incident,
Foster had a nondriver identification card that was issued on May 21, 2018,
less than a year before the incident.
[¶4] The State called five witnesses, including the goaltender with whom
Foster had the altercation. The goaltender testified Foster was not pursued
off the soccer field and that Foster pointed the gun in his direction while Foster
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yelled he was not afraid to go back to jail. The State’s witnesses also testified
Foster was the only person with a stick during the incident.
[¶5] Foster testified on his own behalf. Foster’s testimony conflicted with
earlier testimony. Specifically, Foster testified he was pursued off the soccer
field and he testified the goalie had a stick during the altercation.
[¶6] During cross-examination of Foster, the prosecutor commented about
earlier witnesses who had testified they saw only Foster with a stick and asked
Foster if it was correct none of the other witnesses “saw the goaltender with a
stick.” Foster’s attorney began to object and the district court overruled
the objection. The prosecutor then asked Foster about the other witnesses
testifying that they took a stick from Foster and followed up with asking Foster
if the witnesses were lying.
[¶7] In the State’s closing argument, the prosecutor stated she did not believe
there was any question Foster had a gun. The prosecutor began discussing
Foster’s self-defense argument by stating, “Let’s jump first to the part
where I don’t believe the story of self-defense. There isn’t a witness that was
called that saw --.” Foster objected, arguing the prosecutor was stating
her personal beliefs. The court overruled the objection. The prosecutor
subsequently argued the State had “purposely brought forth not one or two
witnesses, but five witnesses to tell [the jury] what happened and there was no
element of self-defense.” During the State’s rebuttal argument, the prosecutor
told the jury the defense was trying to lead them “into the weeds.” Foster
objected to the statement. The district court overruled the objection and the
prosecutor then categorized the defense as putting up “smoke and mirrors.”
[¶8] The jury found Foster guilty of both Terrorizing and Carrying
a Concealed Weapon. Foster argues he was denied a fair trial by
various instances of prosecutorial misconduct. Foster claims the prosecutor’s
questions of him during cross-examination improperly required him to
compare his testimony with other witnesses, and ultimately required him to
state whether one or more of the witnesses were lying. Foster also claims the
prosecutor improperly stated her personal belief regarding the evidence during
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closing arguments. Finally, Foster contends there was insufficient evidence to
find him guilty of the terrorizing charge because the State failed to prove he
did not act in self-defense, and insufficient evidence to prove he knowingly
carried a concealed weapon in an illegal manner.
II
[¶9] Foster claims the prosecutor’s cross-examination requiring him to
confirm whether earlier witnesses were lying denied him his right to a fair
trial. “This Court applies a de novo standard of review when determining
whether facts rise to the level of a constitutional violation, including a claim
that prosecutorial misconduct denied a defendant’s due process right to a fair
trial.” City of Bismarck v. Sokalski, 2016 ND 94, ¶ 10,
879 N.W.2d 88 (citing
State v. Jasmann,
2015 ND 101, ¶ 5,
862 N.W.2d 809). When reviewing a claim
of prosecutorial misconduct, this Court first determines whether the
prosecutor’s actions were misconduct and, if so, this Court examines whether
the misconduct had prejudicial effect.
Id.
[¶10] During the cross-examination of Foster, the prosecutor asked Foster if
any of the prior witnesses saw the goaltender with a stick. Foster’s
counsel objected and the objection was overruled. Foster argues it was
improper for the prosecutor to ask questions that obligated him to compare his
testimony to that of another, and to opine whether the other witnesses were
lying. The State argues the questioning did not require Foster to opine on the
accuracy and veracity of the other witnesses. Upon our review of the record
we conclude the questions required Foster to comment on the credibility of
other witnesses.
[¶11] The task of weighing evidence and assessing credibility is solely within
the province of the jury. State v. Lemons,
2004 ND 44, ¶ 16,
675 N.W.2d 148
(citing State v. Bell,
2002 ND 130, ¶ 25,
649 N.W.2d 243). Other state courts
have recognized it is generally improper to ask one witness to comment on the
credibility of another witness or express an opinion regarding whether another
witness was telling the truth. See State v. Morton,
701 N.W.2d 225, 233 (Minn.
2005) (improper to cross-examine defendant with “were they lying” questions
where it could lead jury to believe they must think witnesses were lying in
3
order to acquit defendant); State v. Isom, 306 Or. 587, 590-92,
761 P.2d 524
(1988) (on cross-examination, prosecutor suggested that contradictory witness
was either mistaken or lying); People v. Zambrano,
124 Cal. App. 4th 228, 232
(2004) (A prosecutor’s “were they lying” questions to the defendant were
improper “because they sought defendant’s inadmissible lay opinion about the
officers’ veracity, invaded the province of the jury to determine the credibility
question, and were irrelevant to any issue in the case.”). Federal courts have
also recognized a prosecutor engages in misconduct by requiring a defendant
to call a State’s witness a liar. See United States v. Geston,
299 F.3d 1130, 1136
(9th Cir. Cal. 2002); United States v. Sanchez,
176 F.3d 1214, 1219 (9th Cir.
1999). See also United States v. Sullivan,
85 F.3d 743, 749 (1st Cir. 1996);
United States v. Boyd,
54 F.3d 868, 871 (D.C. Cir. 1995) (“It is . . . error for a
prosecutor to induce a witness to testify that another witness, and in particular
a government agent, has lied on the stand.”); United States v. Richter,
826 F.2d
206, 208 (2nd Cir. 1987) (“Prosecutorial cross-examination which compels a
defendant to state that law enforcement officers lied in their testimony is
improper.”). We conclude the questioning requiring Foster to give his opinion
regarding the credibility of earlier witnesses was improper.
III
[¶12] Foster also argues the prosecutor’s expression of her personal belief
regarding the evidence, and in particular his claim of self-defense, during the
closing arguments was improper and is prosecutorial misconduct that deprived
him of his right to a fair trial. This Court has identified three concerns arising
from a prosecutor’s incorporation of their personal beliefs into closing
argument. State v. Schimmel, 409 N.W.2d 335, 342-43 (N.D. 1987). First, a
State’s attorney may act as an unsworn witness for the prosecution who is not
subject to cross-examination and may be perceived as an expert witness
testifying about scientific evidence.
Id. Second, a “State’s attorney may convey
the impression that evidence not presented to the jury, but known to
the prosecutor, supports the charges against the defendant.”
Id. “Our final
concern is that the prosecutor’s opinion carries with it the ‘imprimatur of the
Government.’” Id.
4
[¶13] Foster challenges the prosecutor expressing her personal belief that
there was no question Foster had a gun and it was therefore unnecessary
to even discuss whether Foster had a gun. Although couched in terms of the
prosecutor’s personal belief, whether Foster had a gun was not in dispute.
Even Foster testified he displayed a handgun to the other soccer players. The
prosecutor’s expression of her belief regarding a fact not in dispute does not
raise any of the concerns we identified in Schimmel, the prosecutor was not
acting as an unsworn witness for the prosecution who was not subject to cross-examination nor could have the prosecutor been perceived as an expert witness
testifying about scientific evidence. Second, the prosecutor did not convey the
impression that evidence not presented to the jury, but known to
the prosecutor, supported the charges against Foster. Third, because Foster
testified to displaying the gun, the prosecutor’s expression of personal belief
did not carry with it the “imprimatur of the Government” with regard to an
issue of fact.
[¶14] Foster also challenges the following statement made by the prosecutor
as an improper expression of personal belief: “Let’s jump first to the part where
I don’t believe the story of self-defense. There isn’t a witness that was called
that saw --.” Foster argues the statement undercut his claim of self-defense,
which required the jury to decide the question of fact as to whether the other
soccer players pursued Foster to his car. The statement raises one of the
concerns this Court identified in Schimmel. The prosecutor directly stated her
personal belief about Foster’s claim of self-defense and did so in her role as the
prosecuting attorney. Foster’s claim of self-defense was effectively the only
issue of fact in contention with regard to the terrorizing charge. Under the
circumstances of this case the comment carried the “imprimatur of the
Government” with regard to an issue of fact.
[¶15] Finally, Foster challenges the prosecutor’s use of the following
statements criticizing his trial attorney’s closing argument: “[the] defense is
trying to, what I call, get you in the weeds” and “Put up smoke in mirrors.”
The prosecutor statements responded to Foster’s trial attorney’s closing
arguments on the burden of proof. The prosecutor’s statements were within
5
the bounds of fair and reasonable criticism. The statements do not raise any
of the concerns we identified in Schimmel. 409 N.W.2d at 343.
[¶16] We have reviewed Foster’s challenges to comments made by the
prosecutor during closing argument. We conclude one of the comments was
improper and supports his claim of prosecutorial misconduct.
IV
[¶17] Having concluded the questioning requiring Foster to give his opinion
regarding the credibility of earlier witnesses was improper, and the
prosecutor’s statement of personal opinion regarding Foster’s claim of self-defense was improper, we must determine whether the misconduct had
prejudicial effect. City of Bismarck v. Sokalski, 2016 ND 94, ¶ 10,
879
N.W.2d 88 (citing State v. Jasmann,
2015 ND 101, ¶ 5,
862 N.W.2d 809).
“[P]rosecutorial misconduct may so infect the trial with unfairness as to make
the resulting conviction a denial of due process.”
Id. “However, we have also
recognized that not every assertion of prosecutorial misconduct, followed by an
argument the conduct denied the defendant his constitutional right to a fair
trial, automatically rises to an error of constitutional dimension.” State v.
Duncan,
2011 ND 85, ¶ 12,
796 N.W.2d 672 (citing State v. Kruckenberg,
2008
ND 212, ¶ 20,
758 N.W.2d 427). “To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to result in the
denial of the defendant’s right to a fair trial.” Duncan, at ¶ 12. “To determine
whether a prosecutor’s misconduct rises to a level of due process violation, we
decide if the conduct, in the context of the entire trial, was sufficiently
prejudicial to violate a defendant’s due process rights.”
Id. If conduct was
sufficiently prejudicial, we then consider the probable effect the prosecutor’s
improper comment would have on the jury’s ability to fairly judge the evidence.
Sokalski, at ¶ 10. In reviewing claims involving improper prosecutorial
comments, we have noted the following: “‘Inappropriate prosecutorial
comments, standing alone, would not justify a reviewing court to reverse a
criminal conviction obtained in an otherwise fair proceeding.’” State v. Pena
Garcia,
2012 ND 11, ¶ 6,
812 N.W.2d 328 (quoting State v. Paulson,
477
N.W.2d 208, 210 (N.D. 1991)).
6
[¶18] Foster testified the goaltender had a stick and he only acquired a stick
to make it a fair fight. Foster testified he threw his stick down before running
to his car and that he was pursued by other players. We have concluded
questions posed to Foster during his cross-examination improperly required
him to provide an opinion on the veracity and credibility of earlier
witnesses who had provided testimony contradictory to Foster’s testimony.
The prosecutor subsequently improperly stated her personal opinion regarding
the same subject matter during the closing arguments.
[¶19] After reviewing the evidence submitted at trial, we conclude the
misconduct had prejudicial effect. Although Foster admitted to going to his
vehicle, obtaining a gun, and displaying the gun to other soccer players, he
asserted he did so in self-defense. His defense was he had been chased by other
soccer players to his car. His testimony was in direct conflict with the
State’s witnesses who testified they did not see Foster being chased. Witness
credibility was paramount in this case. Three times Foster was asked whether
he thought the other witnesses were lying. Foster and the State’s witnesses
gave different stories, and the jury found Foster guilty of Terrorizing likely by
believing the State’s witnesses’ version of the facts and rejecting Foster’s
assertion of self-defense. The prosecutor subsequently told the jury she did not
believe Foster’s claim of self-defense. We also note the State was clearly aware
of the role credibility played, and argued to the jury during closing arguments
the State did not call to testify just one or two witnesses, but five. Under these
circumstances we conclude the misconduct had prejudicial effect with regard
to the charge of terrorizing.
[¶20] The charge of carrying a concealed weapon can be established from facts
at a physical location separate from the facts necessary to convict Foster of the
terrorizing charge. The jury could have found the facts necessary to convict
Foster of the carrying a concealed weapon offense all occurred after Foster had
displayed the weapon and left the park. Foster’s testimony did not conflict
with the State’s only witness to those facts, the law enforcement officer. The
witnesses who Foster was improperly asked to provide an opinion of their
veracity and credibility did not provide testimony relevant to the carrying a
concealed weapon charge. We conclude the improper questioning was not
7
prejudicial with regard to the charge of carrying a concealed weapon and did
not deny Foster of a fair trial on that charge.
V
[¶21] Foster challenges the sufficiency of the evidence offered by the State to
support the convictions. On appeal, Foster, “bears the burden of showing the
evidence reveals no reasonable inference of guilt when viewed in the light most
favorable to the verdict.” State v. Eggleston, 2020 ND 68, ¶ 9 (quoting State v.
Rai,
2019 ND 71, ¶ 13,
924 N.W.2d 410). In determining whether the burden
is met, “this Court ‘view[s] the evidence and all reasonable inferences that may
be drawn therefrom in the light most favorable to the verdict to decide whether
a reasonable fact finder could have found the defendant guilty beyond a
reasonable doubt.’”
Id. (quoting State v. Wangstad,
2018 ND 217, ¶ 23,
917
N.W.2d 515). “This Court does not reweigh conflicting evidence or judge the
credibility of witnesses.” Rai, at ¶ 13.
[¶22] Foster challenges the sufficiency of the evidence to the charge of carrying
a concealed weapon. The jury instructions required the jury to find the
following essential elements to convict Foster of carrying a concealed weapon:
That on or about the 28th day of July 2018, in Burleigh County, North Dakota,
the defendant, Akeem Foster, carried a concealed firearm or dangerous weapon
and was not licensed to carry a concealed weapon, a law enforcement officer,
or exempt under North Dakota Law.
[¶23] Concealed weapons are defined under N.D.C.C. § 62.1-04-01. A weapon
is concealed “if it is transported in a vehicle under the individual’s control or
direction and available to the individual, including beneath the seat or in a
glove compartment.” N.D.C.C. § 62.1-04-01. A weapon is not concealed
however, if it is unloaded while carried in a vehicle. N.D.C.C. § 62.1-04-01(5).
[¶24] Section 62.1-04-02, N.D.C.C., identifies individuals that are exempt from
being licensed to carry a concealed weapon under North Dakota law and states
in part: “An individual . . . who has possessed for at least one year a valid
driver’s license or nondriver identification card issued by the department of
8
transportation may carry a firearm concealed under this chapter.” N.D.C.C §
62.1-04-02(2).
[¶25] Evidence at trial supports the following facts. After leaving the park
Foster drove some distance and parked the vehicle he was driving. While he
was parked, the arresting law enforcement officer pulled up behind him. The
arresting officer located a loaded handgun in the glove compartment of Foster’s
vehicle. Although Foster had lived in North Dakota for more than a year at
the time of the incident, Foster did not possess a North Dakota nondriver
identification for a year nor was he otherwise exempt from the requirement
to possess a concealed weapons permit. Foster argues the evidence was
insufficient to support the conviction because there was no direct evidence that
he understood he could not legally carry a concealed weapon.
[¶26] “Whether an offense is punishable without proof of intent, knowledge,
willfulness, or negligence is a question of legislative intent to be determined by
the language of the statute in connection with its manifest purpose and
design.” State v. Haugen, 2007 ND 195, ¶ 7,
742 N.W.2d 796 (citing State v.
Nygaard,
447 N.W.2d 267, 269-70 (N.D. 1989)). “The interpretation of a
statute is a question of law, fully reviewable on appeal.”
Id. (citing State v.
Jackson,
2005 ND 137, ¶ 8,
701 N.W.2d 887). Section 62.1-04-02(1), N.D.C.C.,
states, “An individual, other than a law enforcement officer, may not carry a
firearm or dangerous weapon concealed unless the individual is licensed to do
so or exempted under this chapter.” When a statute outside Title 12.1 does not
specify a culpability requirement the offense is strict liability. State v. Holte,
2001 ND 133, ¶ 10,
631 N.W.2d 595. We interpret N.D.C.C. § 62.1-04-02(1) to
be a strict liability offense, punishable without regard to intent, knowledge,
willfulness, or negligence. The State was not required to prove Foster had
actual knowledge it was illegal for him to drive with a loaded gun in the glove
compartment of the vehicle. Reviewing the evidence in the light most favorable
to the verdict, there was sufficient evidence to sustain the verdict.
[¶27] Foster challenges the sufficiency of the evidence to the charge of
terrorizing. His argument is limited to the following sentence in his appellate
brief: “Foster was improperly convicted on the terrorizing charge when his
9
actions were done in self-defense.” We interpret this argument as a concession
sufficient evidence supporting the elements of the underlying charge was
provided to the jury and his argument is limited to his claim of self-defense.
We conclude the testimony of several witnesses indicating Foster was not
pursued to his vehicle was sufficient to sustain the verdict on the terrorizing
charge even when considering Foster’s claim of self-defense. As noted above,
in light of the improper questioning of Foster and improper statements during
closing arguments, Foster’s conviction with regard to the terrorizing charge is
reversed.
VI
[¶28] Foster was improperly asked to provide an opinion on the veracity and
credibility of the State’s witnesses. The improper questioning was prejudicial
and denied Foster a fair trial on the terrorizing charge. There was sufficient
evidence to find Foster guilty of Carrying a Concealed Weapon. The district
court’s judgment is affirmed with regard to the concealed weapon conviction
and is reversed with regard to the terrorizing conviction.
[¶29] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Jerod E. Tufte
Lisa Fair McEvers
10
