FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 9, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 226
State of North Dakota, Plaintiff and Appellant
v.
Joseph n/m/i Brown, Defendant and Appellee
No. 20210191
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Gary H. Lee, Judge.
REVERSED AND REMANDED.
Opinion of the Court by McEvers, Justice.
Leah J. Viste (argued), Assistant State’s Attorney, and Ethan R. Lee (on brief),
Assistant State’s Attorney, Minot, ND, for plaintiff and appellant.
Ashley M. Gulke, Minot, ND, for defendant and appellee.
State v. Brown
No. 20210191
McEvers, Justice.
[¶1] The State appeals from a district court order dismissing without
prejudice charges of criminal trespass, burglary, and theft of property against
Joseph Brown. On appeal, the State argues the court erred in refusing to admit
hearsay testimony offered by the State’s witness. We reverse the court’s order
and remand for a preliminary hearing.
I
[¶2] The State charged Brown with criminal trespass, criminal mischief,
burglary, and theft of property. With the exception of criminal mischief, all
charges were class C felonies. At the preliminary hearing, Officer Gannon
Miller was the only witness. He was not the investigating officer and had no
contact with Brown prior to the preliminary hearing. Officer Miller testified he
did not respond to the scene of the possible break-in. The district court then
questioned Officer Miller:
THE COURT: Back up just a second here. What was your
involvement in this?
THE WITNESS: I was actively looking for Joseph Brown.
THE COURT: Did you have anything other than just the fact that
you were looking for him?
THE WITNESS: I was just a responding officer.
THE COURT: Did you talk to any witnesses, did you talk to the
neighbor, did you do any independent investigation?
THE WITNESS: I did not, no.
THE COURT: So you were just—I mean, you were on duty. I’m not
taking away from the fact that you were on duty. But you have no
direct connection with any of the facts of this, do you?
THE WITNESS: I was a responding officer and Officer Shaide was
the reporting officer.
THE COURT: That’s not my question. You don’t—you never talked
to a witness, you never conducted any investigation, you were just
driving around looking for a large black male?
THE WITNESS: Who was identified as Joseph Brown, yes.
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THE COURT: You were driving around looking for a large black
male.
THE WITNESS: Yes.
THE COURT: And that’s the extent of your involvement?
THE WITNESS: Yes.
THE COURT: He’s got to have more than that.
[¶3] The district court then ended the State’s examination of Officer Miller.
The court concluded there could be no probable cause determination based
upon “nothing but hearsay.” The court found Officer Miller had no direct
connection to the crime, as he had not responded to the scene, investigated the
break-in, or talked to any witnesses. The court dismissed the felony charges
against Brown, informing the State “unless [the witness] has some actual,
hands-on, direct contact with this crime,” the court would not find probable
cause. The court determined that “[p]roducing a witness with no point of
contact with the case, and whose only role in the hearing would be to read
reports and affidavits prepared by others is insufficient to establish probable
cause at a preliminary hearing.”
II
[¶4] The State argues the district court erred in prohibiting the State from
introducing permissible hearsay testimony. The State asks this Court to
reverse the court’s order of dismissal and remand for further proceedings.
Brown argues the court properly dismissed the charges.
A
[¶5] “The State’s right to appeal must be expressly granted by statute.” State
v. Mitchell, 2021 ND 93, ¶ 5,
960 N.W.2d 788 (quoting State v. Goldmann,
2013
ND 105, ¶ 6,
831 N.W.2d 748).
[I]n a criminal case the State is authorized to appeal from “[a]n
order quashing an information or indictment or any count thereof.”
N.D.C.C. § 29-28-07(1). We have consistently held that an order
dismissing a criminal complaint, information, or indictment is the
equivalent of an order quashing an information or indictment and
is therefore appealable under the statute.
2
State v. Gratton, 2020 ND 41, ¶ 7,
938 N.W.2d 902 (quoting State v. Gwyther,
1999 ND 15, ¶ 11,
589 N.W.2d 575). This Court has held that N.D.C.C. § 29-28-
07(1) does not specifically limit appealability to an order quashing with
prejudice and therefore an order quashing without prejudice is appealable.
Mitchell, at ¶ 5. Accordingly, we have jurisdiction over the State’s appeal from
the district court order dismissing the charges without prejudice.
B
[¶6] This Court reviews the dismissal of a criminal complaint under an abuse
of discretion standard. State v. Erickson, 2011 ND 49, ¶ 12,
795 N.W.2d 375. “A
trial court abuses its discretion only when it acts in an arbitrary, unreasonable,
or capricious manner, or misinterprets or misapplies the law.” State v. Cain,
2011 ND 213, ¶ 16,
806 N.W.2d 597.
[¶7] A preliminary hearing serves as a screening tool to determine whether
probable cause exists. Mitchell,
2021 ND 93, ¶ 6. “The State is not required to
prove with absolute certainty or beyond a reasonable doubt that a crime
occurred, but rather need only produce sufficient evidence to satisfy the court
that a crime has been committed and that the accused is probably guilty.”
Gratton,
2020 ND 41, ¶ 9 (quoting State v. Blunt,
2008 ND 135, ¶ 15,
751
N.W.2d 692). A preliminary hearing “is not a trial on the merits.” State v.
Turbeville,
2017 ND 139, ¶ 12,
895 N.W.2d 758. Rather, “[t]he probable cause
showing required at a preliminary hearing under N.D.R.Crim.P. 5.1 is ‘a
minimal burden of proof.’” Gratton, at ¶ 9 (quoting Healy v. Healy,
397 N.W.2d
71, 73 (N.D. 1986)).
The standard of probable cause at the preliminary hearing is the
same standard of probable cause required for a valid arrest. Under
that standard, probable cause exists when the facts and
circumstances are sufficient to warrant a person of reasonable
caution in believing an offense has been or is being committed, and
knowledge of facts sufficient to establish guilt is not necessary to
establish probable cause.
Mitchell, at ¶ 6. “Because a preliminary hearing is not an actual trial, ‘[t]he
finding of probable cause may be based on hearsay evidence’ and ‘evidence that
3
would be inadmissible at the trial.’” Id. at ¶ 7 (quoting N.D.R.Crim.P. 5.1(a)).
Except for rules relating to privilege, the North Dakota Rules of Evidence do
not apply to preliminary hearings in criminal cases.
Id. (citing
N.D.R.Ev. 1101(d)(3)(C)).
[¶8] In determining whether probable cause exists, the district court may
judge credibility and make findings of fact, and this Court will not reverse the
findings if, after resolving conflicts in the evidence in favor of affirming,
sufficient evidence exists to support the court’s findings and the decision is not
contrary to the manifest weight of the evidence. Blunt,
2008 ND 135, ¶ 14.
However, “[t]he district court’s authority to weigh evidence and judge
credibility of witnesses in a preliminary hearing is limited.” Gratton,
2020 ND
41, ¶ 10. “[A] judge in a preliminary hearing has jurisdiction to consider the
credibility of witnesses only when, as a matter of law, the testimony is
implausible or incredible.”
Id. (quoting Blunt, at ¶ 17); see also People v.
Buhrle,
744 P.2d 747, 749 (Colo. 1987) (“Although the trial judge may curtail
the right to cross-examine and to introduce evidence, he may neither
completely prevent inquiry into matters relevant to the determination of
probable cause, nor disregard the testimony of a witness favorable to the
prosecution unless the testimony is implausible or incredible as a matter of
law.”) (internal citations omitted)). If merely conflicting testimony is
introduced, “a question of fact exists for the jury, and the judge must draw the
inference favorable to the prosecution.” Gratton, at ¶ 10. “Whether the facts
found by the court constitute probable cause is a question of law, fully
reviewable on appeal.” Id. at ¶ 8.
[¶9] Brown contends that, while a “finding of probable cause may be based on
hearsay evidence in whole or in part,” the district court also has discretion to
refuse to admit hearsay evidence. N.D.R.Crim.P. 5.1(a). Brown also notes the
“court has a duty to assess the weight and credibility of the witness” and “may
assess the weight of the testimony as zero.”
[¶10] Although evidentiary issues and determinations of weight and
credibility fall within the district court’s discretion, that discretion is limited
in a preliminary hearing. See Gratton,
2020 ND 41, ¶ 10 (describing the limited
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authority to assess credibility at a preliminary hearing “only when, as a matter
of law, the testimony is implausible or incredible”). While a court is given
discretion in admitting hearsay evidence under N.D.R.Crim.P. 5.1(a), the court
here permitted only a limited examination of Officer Miller before determining
he had no basis to provide any testimony. In light of the burden of proof placed
upon the State, and noting the court should draw all inferences in favor of the
prosecution, we conclude the court abused its discretion by misapplying the
law when it unreasonably prevented the State’s inquiry into matters that were
relevant to a determination of probable cause. The court abused its discretion
in refusing to allow the State to fully examine Officer Miller and in not
considering whether Officer Miller’s testimony was implausible or incredible.
We hold a court must allow the State to present its evidence at the preliminary
hearing before determining what weight to give that evidence, including
otherwise inadmissible hearsay.
III
[¶11] We reverse the district court order dismissing the charges against Brown
and remand for a preliminary hearing.
[¶12] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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