FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JANUARY 6, 2022
STATE OF NORTH DAKOTA
Corrected Opinion Filed 1/6/22 by Clerk of the Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 3
State of North Dakota, Plaintiff and Appellee
v.
Emile Dargbeh, Defendant and Appellant
No. 20210175
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John C. Irby, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
SheraLynn Ternes, Assistant State’s Attorney, Fargo, N.D., for plaintiff and
appellee.
Leah R. Carlson, West Fargo, N.D., for defendant and appellant.
State v. Dargbeh
No. 20210175
Tufte, Justice.
[¶1] Emile Dargbeh appeals from a criminal judgment entered after a jury
found him guilty of two counts of forgery in violation of N.D.C.C. § 12.1-24-
01(1)(b). We affirm, concluding that the court did not abuse its discretion in
admitting evidence and testimony in relation to a third, uncharged check and
that there was sufficient evidence to sustain the conviction.
I
[¶2] In March and April of 2020, Dargbeh cashed three forged checks from
Dacotah Paper Company. Each check was written out to Emile Dargbeh in an
amount ranging from $1,900 to $2,180. The State obtained video showing
Dargbeh cashing two of the three checks. The State charged Dargbeh with one
count of forgery for each check recorded on video but did not include a third
count for the third check not recorded on video.
[¶3] A jury trial was held in May 2021. At the trial, the State mentioned the
third check during its opening statements. Defense objected to the introduction
of any evidence or testimony in relation to this third check under N.D.R.Ev.
404(b) and 403. The district court overruled the objection, stating the third
check could be used to show that Dargbeh had knowledge of the alleged forgery
scheme and that he knew the checks were fraudulent. During Detective Dane
Ronning’s testimony, the State introduced all three checks cashed by Dargbeh
into evidence. Defense counsel objected to the introduction of the third check
as evidence, and the court overruled the objection.
[¶4] The State presented evidence that 26 people were involved in passing
fraudulent checks on Dacotah Paper’s account. Approximately 30 forged checks
were passed through the account, resulting in a loss of $63,000. The individuals
who cashed the checks would keep a share of the money while the person who
printed the fraudulent checks would keep the rest. Detective Ronning testified
that he believed Toki Agamiri—Dargbeh’s roommate—was the leader behind
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the forgery ring. Video footage was presented to the jury showing Agamiri with
Dargbeh when Dargbeh cashed one of the fraudulent checks. Additionally, the
State presented evidence that two cars rented to Dargbeh were used by other
individuals cashing fraudulent checks. Further, the jury heard testimony from
the vice president of accounting at Dacotah Paper who testified that Dacotah
Paper issued no checks to Dargbeh and had never employed him.
[¶5] Dargbeh testified that he had no knowledge the checks in question were
forged or that the checks were part of a larger forgery scheme. He testified that
he cashed the checks for Agamiri, an employee of Dacotah Paper Company,
because Agamiri “had issues with his [bank] account” so he cashed the checks
for him “to help him out.” Dargbeh testified that no “red flags” were raised and
that he had no suspicion about the checks being forged despite the fact that
the checks were written out to him and not to Agamiri, an employee of Dacotah
Paper Company. He testified that while he did not receive a share of any of the
forged checks, he did receive some money from one of the checks to repay a
debt owed to Dargbeh by Agamiri. The jury ultimately found Dargbeh guilty
on both counts of forgery. He appeals from the criminal judgment.
II
[¶6] Dargbeh argues the district court erred in allowing evidence of the third
check. Dargbeh argues the court failed to apply the required three-step
analysis for considering the admissibility of prior bad acts evidence under
N.D.R.Ev. 404(b) and failed to give a jury instruction regarding the limited
purpose of that evidence. He also argues the evidence and testimony about the
third check prejudiced him and the court failed to consider whether, under
N.D.R.Ev. 403, the danger of unfair prejudice substantially outweighed the
probative value of the evidence. The State, on the other hand, argues the third
check is not Rule 404(b) evidence; rather, it is evidence of activity in
furtherance of the charged criminal offense.
[¶7] This Court reviews a district court’s evidentiary ruling under an abuse
of discretion standard. State v. Hirschkorn, 2020 ND 268, ¶ 6,
952 N.W.2d 225.
“A district court abuses its discretion in evidentiary rulings when it acts
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arbitrarily, capriciously, or unreasonably, or it misinterprets or misapplies the
law.” State v. Polk, 2020 ND 248, ¶ 10,
950 N.W.2d 764.
[¶8] This Court has “warned of the dangers inherent in allowing evidence of
other acts to show propensity and of tempting a jury to convict a defendant for
actions other than the charged misconduct.” State v. Shaw,
2016 ND 171, ¶ 7,
883 N.W.2d 889. Rule 404(b), N.D.R.Ev., governs the admissibility of evidence
involving a prior crime, wrong, or other act. It provides:
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This
evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.
The prosecutor must:
(A) provide reasonable notice of the general nature of
any such evidence that the prosecutor intends to offer at
trial; and
(B) do so before trial or during trial if the court, for good
cause, excuses lack of pretrial notice.
[¶9] “Prior acts that are evidence of activity in furtherance of the same
criminal activity a defendant is charged with may avoid exclusion under
N.D.R.Ev. 404(b).” State v. Buckley, 2010 ND 248, ¶ 35,
792 N.W.2d 518. “Rule
404(b) only excludes evidence of other acts and crimes committed by
the defendant when they are independent of the charged crime.” State v.
Christensen,
1997 ND 57, ¶ 8,
561 N.W.2d 631. Thus, evidence is 404(b)
evidence only when the evidence is of “a wholly separate and independent
crime” apart from the charged crime. See
id.
[¶10] Furthermore, evidence of prior bad acts is admissible when “the evidence
provides a more complete story of the crime by putting it in context of
happenings near in time and place.” State v. Gaede,
2007 ND 125, ¶ 26,
736
N.W.2d 418. Evidence of a defendant’s prior conduct that was “intertwined with
3
the factual scenario leading up to” the charged crime is admissible to provide
“context of happenings” for the jury. Id. at ¶ 28.
[¶11] The State argues that because the three separate checks involve the
same course of conduct and the same victim, the third check is not an
independent and wholly separate crime, but instead is inextricably intertwined
with the two charged checks. Further, the State contends that the third check
provided a more complete story of the crime as well. Dargbeh argues the State
conceded at trial that the third check was Rule 404(b) evidence and now
contends for the first time on appeal that the third check was not Rule 404(b)
evidence to begin with. We read the record differently. Responding to the
objection at trial, the State discussed the similarities of all three checks,
stating, “All of these checks are inherently related as they all happened in a
short time frame, the same exact checks, the logo, they’re all made out from
the same account number.” Further, the State also argued that the third check
provided the jury a more complete story because the checks are “so inherently
related that it’s pretty tough to bring up one without the other two.” Although
the court admitted the third check under a permissible purpose of Rule 404(b),
the State also argued at trial that the third check was evidence of activity in
furtherance of the same criminal activity currently being charged to avoid
exclusion under Rule 404(b). We conclude the State did not concede that the
third check was 404(b) evidence at trial.
[¶12] Our case law has repeatedly held that prior bad acts evidence that is
inextricably linked to the charged offense is not Rule 404(b) evidence. In
Buckley, 2010 ND 248, ¶¶ 35, 38, this Court held that evidence of the
defendant’s frequent marijuana use “was part of the conduct leading” to the
manslaughter charge involving the malnourishment death of her infant
daughter, rather than independent prior bad acts evidence. Further, in State
v. Paul,
2009 ND 120, ¶ 25,
769 N.W.2d 416, and Christensen,
1997 ND 57, ¶ 8,
we held that evidence about prior sexual abuse and touching perpetrated by
the defendants against their victims was not 404(b) evidence but instead was
evidence of activity in furtherance of the charged criminal activity. Similarly,
in State v. Alvarado,
2008 ND 203, ¶ 12,
757 N.W.2d 570, we held that evidence
4
about prior acts of domestic violence perpetrated by the defendant did not raise
a Rule 404(b) issue because they were not independent acts from the charged
crime. Lastly, in Steinbach v. State, 2015 ND 34, ¶¶ 17-19,
859 N.W.2d 1, we
held that testimony regarding the defendant’s prior drinking and fighting was
not prohibited under Rule 404(b), but “was admissible evidence of the pattern
of the same activity between the same people” that helped provide a “clearer”
and “more complete story of the crime.”
[¶13] Moreover, the federal courts have held that evidence of uncharged
fraudulent transactions does not fall within the context of Rule 404(b) if the
uncharged transactions are inextricably intertwined with the charged crime.
“When evidence of other crimes is so blended or connected, with the one on trial
as that proof of one incidentally involves the other; or explains the
circumstances thereof; or tends logically to prove any element of the crime
charged, it is admissible as an integral part of the immediate context of the
crime charged.” United States v. Thomas,
760 F.3d 879, 883 (8th Cir. 2014). In
United States v. Hall, the defendant’s uncharged fraudulent trust transactions
did not fall within prior bad acts evidence because the evidence “was relevant
to show [the defendant] intended to defraud the [] investors” involved in the
charged fraudulent scheme.
604 F.3d 539, 540, 544 (8th Cir. 2010). While the
defendant was charged with crimes concerning only one trust, evidence of
fraudulent transactions with a second trust was “inextricably intertwined with
the charged crime” because the two trusts were “parts of the same fraudulent
scheme” operated by the defendant “in the same manner.”
Id. at 543. Finally,
in United States v. Wilson, the defendant was charged with six counts of theft
of government funds, each count alleging Wilson deposited a fraudulent tax-refund check.
788 F.3d 1298, 1312 (11th Cir. 2015). The court concluded
evidence of 31 uncharged tax-refund checks was not prior bad acts evidence
because the checks “were clearly linked in time and circumstances with the
charged crimes.”
Id. at 1314. The court reasoned the uncharged checks were
intrinsic to the charged crimes because “the checks arose out of the same series
of transactions as the charged offenses and exhibited the same fraudulent
indicators as the checks in the charged counts.”
Id.
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Filed by Clerk of Supreme Court 1/6/22
[¶14] Here, we conclude evidence of the uncharged check was not 404(b)
evidence. This third check was not an “independent” and “wholly separate
crime.” Although a separate crime in that it may have supported an additional
criminal charge, it was not prohibited character evidence because it was part
of the same series of fraudulent transactions involved in the charged crimes
against Dargbeh. Similar to Steinbach, the check was part of a “pattern of the
same activity [involving] the same [person].” Here, the pattern was Dargbeh’s
cashing multiple forged checks on Dacotah Paper’s account. Additionally, the
third check was “inextricably intertwined” and “blended with the one[s] on
trial” because the third check was made out to the same person, contained the
same logo, used the same account number, and was cashed during the same
time period as were the two charged checks in question. Because the third
check was clearly linked in time and to the circumstances of the two charged
checks, proof of the two checks incidentally involves the third. We hold that the
third check was not a prior bad act that was independent from the charged
crime, but instead was evidence of activity in furtherance of the charged
offenses.
[¶15] Additionally, the third check was used to provide a more complete story
of the crime for the jury. The State used the third check to help establish that
Dargbeh had knowledge the checks were fraudulent and were part of a larger
forgery scheme. The State argued that it was not an isolated transaction in
which Dargbeh cashed a single fraudulent check, but instead was a series of
unexplained transactions in which he cashed three separate checks from a
business with which he has no connections. The State summarized its theory
in its closing argument, stating that while “a person may try to claim ignorance
or mistake one time but [after] three times,” it shows the knowledge element
is met. We conclude that the third check puts Dargbeh’s participation in the
forgery scheme into context for the jury because cashing the third check
occurred “near the time and place” of the two charged counts of forgery.
Because the third check was not impermissible character evidence within the
meaning of N.D.R.Ev. 404, the court was not required to complete the three-step analysis or give a limiting instruction. Therefore, we hold that the court
did not abuse its discretion in admitting evidence about the third check.
6
III
[¶16] Dargbeh also argues there was insufficient evidence to sustain a
conviction for two counts of forgery under N.D.C.C. § 12.1-24-01(1)(b). When
this Court considers a challenge to the sufficiency of the evidence,
we look only to the evidence most favorable to the verdict and the
reasonable inferences therefrom to see if there is substantial
evidence to warrant a conviction. A conviction rests upon
insufficient evidence only when no rational fact finder could have
found the defendant guilty beyond a reasonable doubt after
viewing the evidence in a light most favorable to the prosecution
and giving the prosecution the benefit of all inferences reasonably
to be drawn in its favor.
State v. Johnson, 2021 ND 161, ¶ 7,
964 N.W.2d 500.
[¶17] To sustain a conviction for the offense of forgery, the State must prove:
(1) the defendant knowingly uttered or possessed a forged check on the date
alleged; (2) the defendant uttered or possessed such forged check pursuant to
a scheme to defraud another of money in excess of $1,000; and (3) the defendant
acted with intent to deceive or harm another person or knowingly facilitated
that deception or harm by another. Dargbeh argues the State did not prove
beyond a reasonable doubt that he knew the checks were forged, that he
possessed these checks pursuant to a scheme to defraud another of money, and
that he acted with intent to deceive or harm the government or another person.
The State presented the following evidence: Dargbeh cashed checks made out
to him from a company he had never been employed by and did not do business
with; he cashed three separate checks; he was with Toki Agamiri—the alleged
leader of the forgery scheme—when Dargbeh cashed one of the forged checks;
his roommate and younger brother were both involved in the forgery scheme;
and two vehicles rented to Dargbeh were used by other individuals while
cashing fraudulent checks in the forgery scheme. A reasonable fact finder could
find knowledge and intent on the basis of this circumstantial evidence
presented by the State. We conclude the evidence is sufficient to sustain the
guilty verdict for two counts of forgery.
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IV
[¶18] The criminal judgment is affirmed.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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