State v. Nohava

#29284-a-PJD

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA


                                    …
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

COYE WAYNE NOHAVA,                           Defendant and Appellant.

                                    …

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    …

                   THE HONORABLE ROBIN J. HOUWMAN
                               Judge

                                    …

JASON R. RAVNSBORG
Attorney General

ERIN E. HANDKE
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff and
                                             appellee.


CHRISTOPHER MILES of
Minnehaha County Public
   Defender’s Office
Sioux Falls, South Dakota                    Attorneys for defendant and
                                             appellant.

                                    …
                                             CONSIDERED ON BRIEFS
                                             NOVEMBER 16, 2020
                                             OPINION FILED 06/02/21
#29284

DEVANEY, Justice

[¶1.]        After a confidential informant purchased methamphetamine from Coye

Nohava during a controlled drug buy, a grand jury indicted Nohava on one count of

distributing a controlled substance and one count of possession of a controlled

substance. Nohava was convicted on both counts after a jury trial. The evidence at

trial centered on the testimony of the confidential informant. Nohava appeals,

asserting the circuit court abused its discretion by allowing the informant to testify

about other act evidence after finding Nohava opened the door to such testimony.

Nohava also contends the circuit court erred in denying his motion for judgment of

acquittal.

                      Factual and Procedural Background

[¶2.]        On April 5, 2018, Angela Sarkkinen was arrested and charged with

distribution and possession of methamphetamine. After her arrest, she agreed to

work with law enforcement as a confidential informant by engaging in controlled

purchases of methamphetamine (controlled buys). For her work as a confidential

informant, Sarkkinen was paid $800 to cover vehicle and phone expenses and her

court appearances as a testifying witness. In addition, she received leniency in her

pending drug charges. Sarkkinen’s distribution of a controlled substance charge

was dismissed, and she received a suspended penitentiary sentence on her

possession charge on the condition that she testify as needed when subpoenaed by

the State as a cooperating witness.

[¶3.]        Dan Christiansen, a narcotics detective employed with the Minnehaha

County Sheriff’s Office and a member of the Sioux Falls Area Drug Task Force, was


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the assigned case agent coordinating controlled buys of methamphetamine

involving Sarkkinen as the purchaser. Sarkkinen had informed Detective

Christiansen that she could buy methamphetamine from Coye Nohava, as he was

someone she “knew from the drug world” and someone with whom she had been

using methamphetamine before she agreed to become a confidential informant.

[¶4.]        On April 10, 2018, a controlled buy was arranged at a Get-n-Go gas

station in Sioux Falls. Prior to the buy, Officer Rachel Schmeichel searched

Sarkkinen, gave her $900 in drug-buy money, and fitted her with an audio-

recording device. Agent Matt Glenn, a Division of Criminal Investigation (DCI)

agent working undercover, drove Sarkkinen to the Get-n-Go and parked on the

south side of the parking lot. The purchase occurred by the gas pumps north of the

location where Agent Glenn was parked. Sarkkinen would later testify at trial that

when she got out of the vehicle and approached Nohava, he was at the gas pump in

a truck with another individual, and she gave him $900 for an ounce of

methamphetamine. According to Sarkkinen, the truck did not belong to Nohava,

and she could not identify the other individual. Agent Glenn was unable to see the

transaction from his vantage point. However, Officer Neilson Conley, a narcotics

investigator with the Sioux Falls Police Department who was conducting

surveillance in front of the Get-n-Go, saw Sarkkinen meet with Nohava and leave

shortly thereafter. Officer Conley later identified Nohava at trial and testified that

he could not recall seeing another individual in the truck.

[¶5.]        Upon her return to Agent Glenn’s car, Sarkkinen relinquished a clear

plastic baggie containing a crystal-like substance. Agent Glenn then drove


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Sarkkinen to the pre-arranged, post-buy location where she was searched again to

confirm she no longer had the $900 or any other drugs on her person. The baggie

was subsequently taken to the Sioux Falls Police Department laboratory where the

substance tested positive for methamphetamine.

[¶6.]         Nohava was not charged until March 28, 2019, when a grand jury

indicted him on one count of distributing a controlled substance and one count of

possession of a controlled substance. 1 Prior to trial, Nohava filed several motions in

limine. These included a motion to order the State to refrain from making any

direct or indirect references to Nohava’s prior criminal record or any other prior

wrongs or acts to prove his character or to show that he acted in conformity with

those acts.

[¶7.]         On November 19, 2019, a two-day jury trial began. Before jury

selection, the court granted Nohava’s motion in limine to exclude other act evidence.

The State did not object, and consequently, there was no record made at that time of

any specific other acts known to the parties. During the State’s direct examination

of Sarkkinen, she testified that she had known Nohava since approximately

February of 2018 and had associated with him until about May of 2018. After the

State’s direct examination, the following exchange occurred during cross-

examination:

              Defense Counsel: But back in early 2018 you were actually in a
              relationship with Coye Nohava?


1.      Detective Christiansen explained that Nohava was not arrested immediately
        after the transaction at issue because Sarkkinen continued to work as a
        confidential informant. It is unknown from the record whether she made any
        other controlled buys involving Nohava.

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             Sarkkinen: No.

             Defense Counsel: You had had sex with Coye Nohava?

             Sarkkinen: No.

             Defense Counsel: [A]t some point during that time that you
             knew him . . . from February to May 2018[,] you and Coye
             actually got in a fight over a motorcycle?

             Sarkkinen: Yes.

             Defense Counsel: And that ended the relationship on bad terms?

             Sarkkinen: Yes.

On redirect, the State further inquired into the “fight over a motorcycle”:

             State: I believe the defense referenced an instance where there
             was an argument over a motorcycle; is that correct?

             Sarkkinen: Yes.

             State: Was that before or after the April 10 date?

             Sarkkinen: After.

             State: And can you describe what happened on that date[?]

             Sarkkinen: We were up in Sioux City, Iowa, at Hard Rock
             Casino where [Nohava] traded his motorcycle for --

[¶8.]        At this point, Nohava raised a Rule 404(b) objection. In response, the

State asserted that the defense had opened the door to such testimony. The circuit

court overruled Nohava’s objection, and Sarkkinen continued describing the

incident. She testified that Nohava was trading his motorcycle for “meth” but the

deal fell through because “the person never showed up with meth,” and Nohava was

very upset. Sarkkinen further related that on their way back to Sioux Falls, she

was in the front seat with a friend of Nohava’s who was driving, and Nohava was in

                                          -4-
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the back seat. Sarkkinen explained that she tried to “calm him down” by

suggesting that they could figure out how to get his bike back. But at some point

during the conversation, after she told Nohava to “shut up,” Nohava asked the

driver to pull over. He then got out of the vehicle, “dragged [Sarkkinen] out of the

car, grabbed [her] by the throat and slammed [her] up against the car.” Sarkkinen

testified that after she reported this incident to Detective Christiansen, he did not

arrange any more controlled buys involving Nohava because she “would have been

in danger.”

[¶9.]          The defense strategy at trial was twofold. It focused on challenging

Sarkkinen’s credibility and criticizing law enforcement’s investigation. As to the

latter, the defense cross-examined the law enforcement witnesses on their failure to

identify Nohava as the dealer during the transaction through photographs or video

surveillance and their failure to ask the gas station for any security camera footage

that might have captured the controlled buy. 2 After the State rested, Nohava made

a motion for judgment of acquittal, which the circuit court denied. The defense did

not call any witnesses.

[¶10.]         In closing argument, the State addressed Nohava’s critique of the

investigation in this case. In particular, the State explained the reason why law

enforcement does not photograph or video controlled buys, and in that context, the

State mentioned the assault at issue:


2.       The audio recording of the controlled buy was admitted at trial, but it is very
         hard to decipher anything of significance contained therein. Detective
         Christiansen testified that law enforcement typically does not video or take
         photographs during controlled buys to protect the identity of confidential
         informants and undercover officers.

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#29284

            [When] you are working undercover, if you are running around
            taking photographs and videotaping a controlled purchase, it
            outs you . . . . The defendant or anyone else with him is likely to
            see you. That puts the officers at risk. That puts the uncover
            [sic] people at risk. And also, as Detective Christiansen
            explained in great detail, it puts the confidential informant at
            risk . . . . You don’t want to release the information of your
            confidential informant because of the danger that that puts
            them in. With social media, it’s very simple for a defendant to
            get that information, throw it up on the internet, and it’s out
            there for the world to see, not just for that one particular person
            they’re buying from, but from everyone else that they might be
            able to buy from as well.

            And how do we know that the narcotics world is so dangerous?
            Well, you heard from Angela Sarkkinen today. And you heard
            her explain that after April 10th of 2018, she was still having
            contact with Coye Nohava. And in fact, he had attempted to
            engage in a methamphetamine deal over a motorcycle. It didn’t
            go well, and it resulted in having an argument with Ms.
            Sarkkinen. And the end result of that argument was Mr.
            Nohava pulling her out of the vehicle, pressing her up against
            the vehicle, and attacking her, choking her. You saw her get
            emotional on the stand today while she spoke about that. The
            drug world is dangerous. It’s dangerous to everyone involved
            and especially dangerous for confidential informants.

Nohava did not object to these comments. Instead, he also referred to the other act

at issue during closing argument, albeit in a more general manner. In addition to

pointing out how Sarkkinen benefitted by cooperating with law enforcement

monetarily and in receiving a more favorable outcome in her pending criminal case,

defense counsel pointed to her bias and motive to get back at Nohava:

            Angela Sarkkinen had an axe to grind against Coye Nohava.
            She may not have classified whatever they had as a
            relationship, but we know it was a relationship because they
            knew each other from February [to] May 2018. They were
            traveling together. And that relationship ended, in her very own
            words, on a bad note . . . . But her motivations don’t stop there.
            She was motivated by staying with her kids, her fiancé, and at
            her job. So why not kill two birds with one stone? Get back at a
            man that you had a fight with and keep yourself out of trouble.

                                        -6-
#29284


[¶11.]       After the jury retired for deliberations, the circuit court made a record

regarding its prior ruling on Nohava’s Rule 404(b) objection. The circuit court first

noted that there was no bench conference prior to the court’s ruling. The court then

explained the two-step balancing it had conducted prior to overruling the objection

and allowing Sarkkinen to provide further details about the incident in question.

[¶12.]       The jury found Nohava guilty on both counts. Nohava was sentenced

on February 10, 2020, to ten years in the South Dakota State Penitentiary on the

distribution count, with credit for forty-four days previously served, and a

concurrent five-year sentence on the possession count, with all five years

suspended. On March 12, 2020, Nohava filed his notice of appeal with this Court,

raising the following issues:

             1.     Whether the circuit court abused its discretion by
                    allowing the State to elicit other act evidence.

             2.     Whether the circuit court erred in denying Nohava’s
                    motion for judgment of acquittal.

                                Standard of Review

[¶13.]       We review a circuit court’s decision to admit or deny other act evidence

under SDCL 19-19-404(b) (Rule 404(b)) for an abuse of discretion. State v. Phillips,

, ¶ 13, 

, 415 (citing State v. Medicine Eagle, 

,

¶ 16, 

). “An abuse of discretion ‘is a fundamental error of

judgment, a choice outside the range of permissible choices, a decision, which, on

full consideration, is arbitrary and unreasonable.’” State v. Holler, 

, 

 (quoting State v. Delehoy, 

, 

). “We review the denial of a motion for [judgment of] acquittal de novo.”

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#29284

State v. Traversie, 

, 

 (citing State v. Brim,

, 

).

                              Analysis and Decision

             1.     Whether the circuit court abused its discretion by
                    allowing the State to elicit other act evidence.

[¶14.]       Nohava argues that the testimony the State elicited from Sarkkinen

during her redirect examination is precisely the type of propensity evidence that is

precluded by Rule 404(b). Generally, “[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show that [the person]

acted in conformity therewith.” State v. Birdshead, 

, ¶ 57, 

 (quoting SDCL 19-19-404(b)). However, it “may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” SDCL 19-19-404(b)(2). We have

held that in order to determine the admissibility of other act evidence, the circuit

court must “conduct a two-part balancing test on the record[.]” Birdshead, 

, ¶ 57, 

. The court must determine first, whether the

“evidence is relevant to some material issue in the case other than character[,]” and

second, “whether the probative value of the evidence is substantially outweighed by

the danger of unfair prejudice[.]” 

[¶15.]       With respect to the first inquiry, Nohava argues that the circuit court

erroneously determined that the details of the fight between Sarkkinen and Nohava

were relevant to a material issue in his case because the fight occurred after the

controlled buy, and hence, “[t]he details of the subsequent motorcycle dispute

cannot be construed as consequential in determining the action.” However, in

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overruling Nohava’s objection, the circuit court found Nohava had opened the door

to a further explanation of the “fight over a motorcycle.” It was clear from the

record that Nohava solicited testimony about this fight to impeach Sarkkinen’s

credibility by suggesting she had an adverse motive or bias against him. The circuit

court recognized as much when it determined that the State was entitled “to obtain

and elicit more information about that situation and about when that situation

occurred” in an attempt to rehabilitate its witness.

[¶16.]       Our prior decisions support the circuit court’s determination that

Nohava opened the door to what might have otherwise been inadmissible Rule

404(b) evidence when he decided to ask Sarkkinen about a fight she had with him

that was not directly connected to the controlled drug buy at issue. See, e.g., State

v. Taylor, 

, ¶ 34 n.4, 

, 352 n.4 (explaining that this

Court “ha[s] permitted the State to introduce otherwise inadmissible evidence when

a criminal defendant’s trial strategy has ‘opened the door’ to the evidence” (quoting

State v. Letcher, 

, ¶ 25, 

)); State v. Moriarty, 

 (S.D. 1995) (explaining that a party who takes “a calculated risk”

by introducing “objectionable evidence” cannot “count on the admission as error”);

State v. New, 

 (S.D. 1995) (holding that by strategically placing

a “witness’[s] credibility into question through cross-examination which presented

inconsistencies in [the witness’s] testimony . . . the defendant ‘opened the door’” for

the State to introduce previously excluded testimony).

[¶17.]       Here, Nohava employed a strategy to suggest Sarkkinen lacked

credibility by showing she had a bias and motive to testify falsely against him.


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Defense counsel first asked Sarkkinen if she had a sexual relationship with Nohava

(which she denied) and then asked her about the fight at issue to show the

relationship had ended on bad terms. The State was entitled to rehabilitate its key

witness by eliciting information about the circumstances surrounding this fight.

The circuit court did not abuse its discretion in determining that Nohava had

opened the door to further testimony on this issue because the nature of the

relationship between Nohava and Sarkkinen was relevant to Sarkkinen’s

credibility.

[¶18.]         Nohava concedes the State’s follow-up question on the timing of the

fight was relevant, but he argues that once Sarkkinen testified that the fight

occurred after the controlled buy, the State had sufficiently countered any notion

that the buy was orchestrated as a set-up by Sarkkinen to get back at Nohava.

Nohava argues that by inquiring about the details of a fight that occurred after the

controlled buy, the State exceeded the scope of the open-door doctrine. While our

prior cases have addressed whether the introduction of certain testimony or

evidence opened the door to otherwise inadmissible testimony, we have not

addressed the precise issue Nohava raises here—whether the responding party

presented evidence exceeding the boundaries of what the open-door doctrine allows.

Other courts have, however, addressed this question.

[¶19.]         The Seventh Circuit has recognized that “[t]he gist of the [open-door]

doctrine is proportionality and fairness. When the opponent’s response ‘does not

directly contradict the evidence previously received’ or ‘goes beyond the necessity of

removing prejudice in the interest of fairness,’ it should not be admitted.” United


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States v. Jett, 

 (7th Cir. 2018) (quoting United States v. Amaya,

 (7th Cir. 2016)). Similarly, the Wyoming Supreme Court has held

that “[t]he open-door doctrine is not without limits” and that “a party responding to

an open door cannot ‘engage in overkill which is only moderately justified’ . . . nor

can it exceed the scope of the open door.” Bonds v. Wyoming, 

(Wyo. 2020). When considering the parameters of admissible responsive testimony,

the Wyoming court cautioned trial courts to weigh “the degree of ‘fit’ between initial

proof and counterproof, the importance of the issue at stake, and the balance of

probative worth and prejudicial effect[.]” 

 (internal citation omitted); see also

Khan v. Maryland, 

 (Md. Ct. Spec. App. 2013) (holding that once

“the proverbial door was opened to the disputed testimony, it remained for the trial

court to balance its probative value against its prejudicial nature”). We likewise

conclude that the evidence that comes through the open door must be proportional

to the initial inquiry which provoked the need for a response or clarification.

[¶20.]       Nohava relies heavily on Bentley v. Alaska, a case with a scenario

analogous to the one here, where a defendant cross-examined the State’s key

witness, the defendant’s former girlfriend, about the circumstances of their breakup

in an attempt to show her bias against him. 

 (Alaska Ct. App.

1985). The trial court allowed the prosecutor, on redirect, to solicit additional

circumstances surrounding the breakup because Bentley had opened the door to

such evidence. The Alaska Court of Appeals reversed, opining that “[o]pening the

door is one thing. But what comes through the door is another . . . . Introduction of

otherwise inadmissible evidence under shield of this doctrine is permitted ‘only to


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the extent necessary to remove any unfair prejudice which might otherwise have

ensued from the original evidence.’” 

 at 546 (quoting United States v. Winston,

 (D.C. Cir. 1971)).

[¶21.]       Applying these limiting principles, Nohava argues that the State did

not just rehabilitate Sarkkinen, but “unfairly elaborated upon” the details of their

dispute. As a starting premise, we reject Nohava’s assertion that the State should

have been limited in its follow-up questioning to asking Sarkkinen about when the

fight occurred. This assertion ignores the possibility that if Sarkkinen had a bias or

motive adverse to Nohava stemming from this fight, this could impact not only her

actions with respect to the buy, but also her later testimony about what had

transpired. In addition, had the circuit court not allowed the State to inquire

further into what happened on that date, the jury would have been left to speculate

as to whether or how this fight could be impacting Sarkkinen’s trial testimony.

There was nothing inappropriate, therefore, about the State asking further

questions about what defense counsel cryptically described as a “fight over a

motorcycle.” See State v. Buchholtz, 

, 

(explaining that the court has discretion to allow the State to put the defendant’s

evidence in context to “prevent a potentially misleading inference [from] lodg[ing] in

the minds of the jurors”).

[¶22.]       Granted, the nature of the testimony that ultimately followed might

not have been admitted under Rule 404(b) if offered in the State’s case-in-chief.

However, Nohava clearly opened the door to the evidence here by his calculated

strategy to use this further incident as a means to impugn Sarkkinen’s credibility.


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Moreover, the admission of the later planned drug transaction did not have much

impact on the overall trial record. Sarkkinen had already testified that while

working as an informant, she identified Nohava as someone from whom she could

buy methamphetamine. Therefore, unlike in Bentley, the State did not engage in

“overkill” when it attempted to alleviate the implication that some other type of

event had occurred between Sarkkinen and Nohava that had nothing to do with

using drugs.

[¶23.]         However, the further testimony that “came through the door” about

Nohava assaulting Sarkkinen is the type of evidence which, in many cases, would

give rise to potential concerns of disproportionality when balancing the probative

value against the danger of unfair prejudice. While Nohava argues that the circuit

court erred by not conducting such a balancing prior to admitting the evidence, he

did not alert the circuit court to the fact that Sarkkinen’s description of the “fight

over a motorcycle” would likely include testimony about an underlying drug deal

and an ensuing assault. 3 Here, nothing in the record indicates that the court knew

about those details because the parties had stipulated to a generic order prohibiting

other act evidence. Moreover, the potential for an unfairly prejudicial response was

not apparent from the context surrounding the question the State posed to

Sarkkinen, and the circuit court did not have the benefit of the now-adopted

proportionality analysis for instances where a party opens the door to the admission




3.       Nohava has not alleged that he was unaware of the details to which
         Sarkkinen ultimately testified.

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of otherwise inadmissible evidence. 4 Under these circumstances, we conclude the

circuit court did not abuse its discretion by overruling Nohava’s general 404(b)

objection after defense counsel’s question opened the door to further inquiry.

[¶24.]         In any event, a conclusion that the circuit court abused its discretion,

would not end our inquiry. We review a circuit court’s evidentiary rulings by

utilizing a two-step process. State v. Kvasnicka, 

, 

. First, we “determine whether the trial court abused its discretion in

making an evidentiary ruling; and second, [we determine] whether this error was a

prejudicial error that ‘in all probability’ affected the jury’s conclusion.” 

 (quoting

Supreme Pork v. Master Blaster, Inc., 

, ¶ 59, 

).

[¶25.]         In asserting prejudice, Nohava points to the fact that during the

State’s closing argument, the State improperly used Sarkkinen’s testimony about

the later drug transaction and assault to paint him as a dangerous drug dealer. He

further alleges that by referring to the assault as illustrative of the potential



4.       After the jury commenced its deliberations, the circuit court made a record
         indicating that in overruling Nohava’s Rule 404(b) objection, it had applied
         our settled two-part balancing test for the admission of such evidence and
         had weighed its probative value against the danger of unfair prejudice.
         However, because the record indicates the court did not know the details of
         Sarkkinen’s testimony at the time the court ruled on Nohava’s objection, this
         is not a scenario which fits within the confines of our holding in State v.
         Birdshead. In Birdshead, there had been a pretrial hearing at which the
         court was made aware of the proffered other acts; therefore, we presumed
         that the court weighed the evidence before ruling on the Rule 403 objection
         later made at trial. 

, ¶ 59, 

. Here, in contrast,
         no such proffer was made at a pretrial hearing and neither defense counsel
         nor the State asked to approach the bench to apprise the court of the
         anticipated testimony prior to its ruling on the objection. Thus, we do not
         consider the court’s after-the-fact balancing in our assessment of whether the
         court abused its discretion.

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dangers and violence of the drug world, the State made a prohibited community

conscience argument. Contrary to Nohava’s characterization of the State’s closing

argument, however, the record reflects that the State’s reference to Nohava

assaulting Sarkkinen was not an appeal to community conscience. Rather, it was

made in the specific context of responding to Nohava’s critique of law enforcement’s

failure to document the controlled buy with photographs or video recordings. The

State referred to the assault when explaining the importance of maintaining the

confidentiality of undercover officers and informants to ensure their safety.

[¶26.]       Notably, Nohava did not object to the State’s closing argument.

Instead, he referred to the fight, at least indirectly, in his own closing argument by

emphasizing that Sarkkinen “had an axe to grind” against him and that her

relationship with him “ended, in her very own words, on a bad note.” Although the

testimony regarding the nature of the assault might have been inflammatory, it

nevertheless strengthened Nohava’s argument that Sarkkinen had a reason to

testify falsely against him. Therefore, Nohava has failed to show that Sarkkinen’s

additional testimony was so prejudicial that in all probability it affected the

outcome of his trial.

             2.     Whether the circuit court erred in denying Nohava’s
                    motion for judgment of acquittal.

[¶27.]       When reviewing a denial of a motion for judgment of acquittal, “the

relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” State v. Ware, 

, 

 (quoting State v. Martin, 

, ¶ 13, 

).

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We do “not resolve conflicts in the evidence, pass on the credibility of witnesses, or

reweigh the evidence on appeal.” 

 (quoting State v. Carter, 

, ¶ 44,

).

[¶28.]       Nohava argues that there was insufficient evidence to prove his guilt

beyond a reasonable doubt because Sarkkinen was not a credible witness and

Officer Conley “did not describe how he knew the individual [who sold Sarkkinen

methamphetamine] was Nohava.” However, “[i]t is settled law that the credible

testimony of one identification witness is sufficient to support a conviction if the

witness viewed the accused under such circumstances as would permit positive

identification to be made.” State v. Mullins, 

 (S.D. 1977). Here,

Nohava was identified as the seller by Sarkkinen, the first-hand participant in the

controlled buy, and also by Officer Conley, a law enforcement witness who “viewed

the accused under circumstances as would permit a positive identification to be

made.” While Nohava points to the fact that another individual besides him was in

the truck when the drug exchange occurred, Officer Conley testified that he

personally observed Sarkkinen interact with Nohava during the transaction.

Finally, Nohava did not present any evidence negating his presence during this

transaction, and given the controlled circumstances of the buy, there is no question

that money was in fact exchanged for controlled substances. Because the evidence

here supports a reasonable finding of Nohava’s guilt on both counts, the circuit

court did not err in denying Nohava’s motion for judgment of acquittal.

[¶29.]       Affirmed.




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[¶30.]       KERN and SALTER, Justices, and GILBERTSON, Retired

Chief Justice, concur.

[¶31.]       JENSEN, Chief Justice, concurs specially.

[¶32.]       MYREN, Justice, not having been a member of the Court at the

time this action was submitted to the Court, did not participate.



JENSEN, Chief Justice (concurring specially).

[¶33.]       I join issue 2 of the conference opinion and specially concur on issue 1.

[¶34.]       Admittedly, the State and defense provided little assistance to the

circuit court as it considered Nohava’s 404(b) objection and the State’s claim that

Nohava had opened the door to the evidence. Despite stipulating to a pretrial order

that precluded the State from presenting other act evidence at trial, the State made

no effort to alert the court that it believed the door had been opened to the evidence

that Sarkkinen had been violently assaulted at Nohava’s hands. Nohava also failed

to inform the court of the specific prejudicial nature of this evidence.

[¶35.]       Nonetheless, Nohava’s 404(b) objection alerted the court that the State

intended to present other act evidence that was not relevant to the issues in the

case and/or was unfairly prejudicial to him. The unanticipated evidence that

followed demonstrates the importance of a court taking a moment to inquire about

the nature of the evidence before ruling on an objection to determine whether the

evidence was admissible under 404(b) or if the door had been opened as wide as the

State believed.




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[¶36.]       Importantly, in determining that Nohava had opened the door to the

evidence, the circuit court did not have the benefit of the rule we have fashioned in

this case that properly places some limits on the open-door doctrine. See United

States v. Jett, 

 (7th Cir. 2018) (quoting United States v. Amaya,

 (7th Cir. 2016)) (“The gist of the [open-door] doctrine is

proportionality and fairness. When the opponent’s response ‘does not directly

contradict the evidence previously received’ or ‘goes beyond the necessity of

removing prejudice in the interest of fairness,’ it should not be admitted.”). The

evidence of Nohava’s assault of Sarkkinen may have violated this rule, but given

the state of our open-door doctrine at the time of trial, there was no abuse of

discretion. See State v. Birdshead, 

, ¶ 51, 

 (“[W]hen a

trial court misapplies a rule of evidence, as opposed to merely allowing or refusing

questionable evidence, it abuses its discretion.”).




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