FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 24, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 109
State of North Dakota, Plaintiff and Appellee
v.
Brandon Jerome Schweitzer, Defendant and Appellant
No. 20200348
Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Troy J. LeFevre, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for plaintiff and
appellee; submitted on brief.
Kent M. Morrow, Bismarck, ND, for defendant and appellant; submitted on
brief.
State v. Schweitzer
No. 20200348
VandeWalle, Justice.
[¶1] Brandon Schweitzer appealed from a jury verdict and a criminal
judgment convicting him of aggravated assault. We affirm.
[¶2] In July 2019, Schweitzer used his cane to hit the victim’s arm and
fractured it. Schweitzer argues the State misplacing his cane in evidence
violated the Brady rule and his due process rights. Constitutional due process
issues are questions of law fully reviewable on appeal. State v. Schmidt, 2012
ND 120, ¶ 8,
817 N.W.2d 332.
I
[¶3] A Brady violation occurs when: “(1) the government possessed evidence
favorable to the defendant; (2) the defendant did not possess the evidence and
could not have obtained it with reasonable diligence; (3) the prosecution
suppressed the evidence; and (4) a reasonable probability exists that the
outcome of the proceedings would have been different if the evidence had been
disclosed.” State v. Kolstad, 2020 ND 97, ¶ 19,
942 N.W.2d 865 (internal
citations and quotations omitted). Although the State’s failure to preserve
evidence is not the same as a Brady violation, once evidence has been collected,
the State may violate a defendant’s due process rights if it fails to preserve the
evidence. State v. Ostby,
2014 ND 180, ¶ 14,
853 N.W.2d 556.
Unless a criminal defendant shows bad faith on the part of law
enforcement, failure to preserve potentially useful evidence does
not violate the defendant’s due process rights. Whether a law
enforcement officer’s action could be termed reckless, intentional,
negligent, or merely that of following or failing to follow regular
police procedure, the evidentiary standard necessary to prove bad
faith by the state with regard to the destruction or loss of evidence
is quite high. Bad faith, as used in cases involving destroyed
evidence or statements, means that the state deliberately
destroyed the evidence with the intent to deprive the defense of
information; that is, that the evidence was destroyed by, or at the
direction of, a state agent who intended to thwart the defense.
1
Id. at ¶ 15 (internal citations and quotations omitted). We have recognized if
the State systemically disregards its duty to protect evidence in its possession
zealously “so that haphazard handling and destruction of evidence is
commonplace” less stringent rules might be appropriate. City of Bismarck v.
Holden, 522 N.W.2d 471, 475 (N.D. 1994) (citing Madison v. N.D. Dep’t of
Transp.,
503 N.W.2d 243, 246 (N.D. 1993); State v. Steffes,
500 N.W.2d 608,
613-14 nn.5-6 (N.D. 1993)).
[¶4] Here, the Brady rule does not apply because Schweitzer is alleging the
State lost his cane, not that the State suppressed it because it was favorable to
him. However, Schweitzer has not met his burden to prove the State acted in
bad faith when it lost the cane, nor is there evidence the police consistently lost
evidence. He claims the State was merely “negligent in its duty to keep
evidence safe and secure.” The district court found no evidence that the State
deliberately destroyed the cane, as the standard requires, or made it
unavailable to thwart Schweitzer’s defense. Schweitzer failed to show the State
acted in bad faith. Therefore, the State did not violate Schweitzer’s due process
rights when it lost the cane.
II
[¶5] Schweitzer also argues insufficient evidence existed to convict him of
aggravated assault. “In reviewing challenges to the sufficiency of the evidence
on appeal, the defendant 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, ¶ 7,
940 N.W.2d 645 (internal
citations and quotations omitted). Schweitzer has not shown how the evidence
reveals no reasonable inference of guilt when viewed in the light most
favorable to the verdict. Sufficient evidence existed to convict him of
aggravated assault.
2
III
[¶6] We affirm the criminal judgment.
[¶7] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
3
