FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 12, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 96
State of North Dakota, Plaintiff and Appellee
v.
Randy Joseph Houle, Defendant and Appellant
No. 20210331
Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Troy J. LeFevre, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for plaintiff and
appellee.
Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant; submitted
on brief.
State v. Houle
No. 20210331
McEvers, Justice.
[¶1] Randy Joseph Houle appeals from a criminal judgment entered after a
jury found him guilty of aggravated assault and false information to law
enforcement. On appeal, Houle argues the district court erred in improperly
instructing the jury regarding circumstantial evidence. We affirm.
I
[¶2] On September 11, 2020, Houle was charged with aggravated assault,
criminal attempt, and false information to law enforcement. A jury trial was
held in November 2021.
[¶3] Before trial, Houle submitted an amended pre-trial memorandum.
Included in Houle’s memorandum were the Defendant’s Proposed Jury
Instructions. Houle’s requested instructions consisted of the North Dakota
pattern instruction numbers and titles. One of the instructions Houle
requested was pattern instruction K-5.16, regarding the jury’s use of direct and
circumstantial evidence. The State similarly requested pattern instruction K-
5.16. The district court included the language as provided in the pattern
instruction. Houle was provided a set of the jury instructions on the first day
of trial and had an opportunity to object to the instruction or to request further
jury instructions. Houle was given another opportunity to address the court
regarding jury instructions after the parties rested. Houle did not object to the
instructions he requested or request any further instruction regarding the use
of circumstantial evidence prior to the instructions being read to the jury.
[¶4] The charge of criminal attempt was dismissed following Houle’s
N.D.R.Crim.P. 29 motion after the State’s case in chief. The jury convicted
Houle of the remaining charges of aggravated assault and false information to
law enforcement. Houle was sentenced to five years with one year suspended
and credit for time served.
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II
[¶5] On appeal, Houle contends the district court failed to properly instruct
the jury. He argues the court’s failure to include the following language in the
instruction on direct and circumstantial evidence affected his substantial
rights:
A person can be convicted on circumstantial evidence alone if the
circumstantial evidence is consistent. If one piece of circumstantial
evidence contradicts another piece of circumstantial evidence, the
circumstantial evidence is not consistent. You can convict a person
on circumstantial evidence alone if the circumstances proved
exclude every reasonable theory except that the accused is guilty.
Houle argues this instruction was recently used in another case in district
court. However, Houle provides no citation to a case where this Court, or any
other appellate court, has considered the use of the suggested jury instruction
language.
[¶6] The State argues Houle’s asserted “exclude every reasonable theory”
instruction is disfavored and there was no error in the jury instructions as
given, relying in part on Holland v. United States, 348 U.S. 121 (1954). There,
the petitioners claimed the jury instructions were erroneous where the trial
court refused “to instruct that where the Government’s evidence is
circumstantial it must be such as to exclude every reasonable hypothesis other
than that of guilt.”
Id. at 139. The United States Supreme Court stated, “There
is some support for this type of instruction in the lower court decisions, but the
better rule is that where the jury is properly instructed on the standards for
reasonable doubt, such an additional instruction on circumstantial evidence is
confusing and incorrect.”
Id. at 139-40 (internal citations omitted). The Court
concluded that circumstantial evidence “is intrinsically no different from
testimonial evidence,” and if the jury finds the defendant guilty beyond a
reasonable doubt, “we can require no more.”
Id. at 140.
[¶7] We need not address either argument. The district court used the
instruction on circumstantial evidence requested by Houle. The jury
instructions were discussed at trial. Houle did not object to the jury
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instructions or request any additional instructions. Rather, Houle agreed to
the jury instructions; therefore, any error alleged was waived, and the obvious
error analysis under N.D.R.Crim.P. 52(b) does not apply. “It is a cardinal rule
of appellate review that a party may not challenge as error a ruling or other
trial proceeding invited by that party.” State v. Rende, 2018 ND 56, ¶ 9,
907
N.W.2d 361 (quoting State v. White Bird,
2015 ND 41, ¶ 23,
858 N.W.2d 642);
see also State v. Watkins,
2017 ND 165, ¶ 14,
898 N.W.2d 442 (stating
defendant cannot seek reversal based on an error he invited by agreeing to the
content of a jury verdict form). The “invited error doctrine” applies unless a
constitutional error is structural, but few constitutional errors qualify as
structural. White Bird, at ¶ 24; see also United States v. Marcus,
560 U.S. 258,
263 (2010) (discussing short list of recognized structural errors, of which the
only jury instruction noted is an erroneous reasonable doubt instruction).
Houle concedes any alleged error was not constitutional in nature. Houle may
not now seek reversal based on an error he invited.
III
[¶8] The criminal judgment is affirmed.
[¶9] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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