FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 7, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 127
State of North Dakota, Plaintiff and Appellant
v.
Bradley Alan Graff, Defendant and Appellee
No. 20220348
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Lindsey R. Nieuwsma, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Jensen, Chief Justice.
Anna A. Argenti, Assistant State’s Attorney, Bismarck, ND, for plaintiff and
appellant; submitted on brief.
Justin M. Balzer, Bismarck, ND, for defendant and appellee.
State v. Graff
No. 20220348
Jensen, Chief Justice.
The State appeals from a district court’s criminal judgment dismissing
with prejudice a charge of gross sexual imposition against Bradley Graff.
Because the district court did not provide adequate findings to support a
dismissal of the charge with prejudice, we reverse the district court’s judgment
and remand.
I
Graff was charged with gross sexual imposition involving a victim under
the age of 15, a class AA felony, in violation of N.D.C.C. § 12.1-20-03(1)(d). The
State requested a continuance of the trial date explaining that a material
witness was unavailable due to active military leave. The district court granted
the request, and the trial was rescheduled. Defense counsel requested a second
continuance. The court granted the request, and the trial was again
rescheduled. The State requested a third continuance, the State’s second
request. Graff asserted his right to a speedy trial, objected to the State’s second
request to reset the trial, and motioned for dismissal based upon a violation of
North Dakota Criminal Procedure Rule 48(b)(4) because he alleged the State’s
request resulted in “unnecessary delay.” A status conference was held, during
which the State called two witnesses to testify to the delay. The State explained
the victim’s guardian was no longer cooperating in getting the victim from
Wisconsin to Bismarck to testify, but that steps were being taken that assured
the victim’s presence at trial. The court found the reasons for the continuance
constituted good cause, were unavoidable, and denied Graff ’s motion to
dismiss. The court rescheduled the trial.
Prior to trial, the district court also granted a motion in limine finding
that Graff ’s prior convictions and status as a sex offender would be considered
inadmissible evidence at trial. On the first day of trial the State called a
detective to testify to an interview conducted with Graff. During direct
examination by the State, the following exchange occurred:
1
Q. . . . Did [Graff] admit knowing [the victim’s mother]?
A. Yes, he admitted to knowing [her] and her two children,
specifically the victim[.]
Q. . . . Did he admit being around those children?
A. Yes, eventually he did. Throughout the course of the
interview, Mr. Graff showed many signs of deception or being
dishonest. At the beginning of the interview he had claimed to have
been around the kids, but it was only when the mother was around
to supervise.
Later in the interview when I kind of pointed out some of his
deceptive tendencies, he later admitted to lying about that and
that the kids had stayed over at his residence without the mother
being there. He had claimed there was another adult in the house,
but that was never able to be verified.
Q. How did he explain lying about [her] children?
A. He stated he had done so to protect the mother so she
wouldn’t get in trouble because of his past.
[Defense counsel]: Objection. Your Honor, can we approach?
Defense counsel objected to the detective’s answer asserting it violated the
motion in limine order by referencing Graff ’s criminal convictions. Defense
counsel argued that by indicating the mother could get in trouble if he were to
be around her children without supervision, the jury would conclude Graff was
not legally allowed to be near children due to certain criminal acts that
occurred in his past. Defense counsel moved to dismiss with prejudice arguing
“Mr. Graff has been in jail for over a year at this point. We’re just going to delay
this again. I don’t think that’s fair to Mr. Graff.” The court granted a mistrial,
and then dismissed the information with prejudice. Graff was immediately
released from custody. The State appealed the court’s dismissal with prejudice.
2
II
This Court reviews a district court’s decision to dismiss a criminal case
with prejudice for an abuse of discretion. State v. Ferrie, 2008 ND 170, ¶ 6,
755
N.W.2d 890. “An abuse of discretion may occur when the district court
misinterprets or misapplies the law, or when the district court acts in an
arbitrary, unreasonable, or capricious manner.” State v. Tyler,
2019 ND 246,
¶ 5,
933 N.W.2d 918. The court “must have a sufficient legal basis to dismiss a
criminal charge.” Ferrie, at ¶ 7. Generally, “[d]ismissal with prejudice is a
remedy that should only be used in extreme circumstances.” State v. Tweeten,
2004 ND 90, ¶ 16,
679 N.W.2d 287. “Although the district court has some
supervisory control over dismissals, the district court should not dismiss a case
with prejudice unless the court has had an opportunity to determine issues of
bad faith, harassment, or misconduct.”
Id. at ¶ 9 (citing State v. Graff,
484
N.W.2d 855, 859 (N.D. 1992)). A court must make a finding of bad faith,
harassment, or prosecutorial misconduct, and this finding must be supported
by clear and convincing evidence. Id. at ¶¶ 10, 16 (citing Graff, at 858).
Additionally, a district court must provide the State with notice, an
opportunity to respond, and must consider lesser alternative sanctions to
dismissal with prejudice before making that determination. See City of
Jamestown v. Snellman, 1998 ND 200, ¶¶ 12-14,
586 N.W.2d 494 (finding the
court abused its discretion by failing to mention what specific rule or statute
the State violated, and by dismissing sua sponte without notice, an opportunity
to respond, or consideration of lesser alternative sanctions). Furthermore, not
every error made by the State is sufficient to justify dismissing a case with
prejudice. See State v. Erickson,
2011 ND 49, ¶ 17,
795 N.W.2d 375 (finding the
court abused its discretion by dismissing a criminal complaint when the State
provided an incorrect criminal history for the defendant). See also State v.
Bolen,
13 P.3d 1270, 1274 (Kan. 2000) (cited to favorably in Tweeten,
2004 ND
90, ¶ 14) (“It is an abuse of discretion to dismiss a case with prejudice when
there has been no showing of a prosecutor’s misconduct, and alternative means
of sanctioning the prosecutor exist.”).
3
The State has not appealed the district court’s decision to grant a
mistrial. Rather, the State argues the court abused its discretion by dismissing
the charge with prejudice because it did not properly determine the State acted
in bad faith, harassment, or misconduct, and did not discuss lesser alternative
sanctions to dismissal with prejudice.
In granting a mistrial and dismissing with prejudice, the district court
provided the following reasoning on record:
So as much as I do not like to see the process end this way
and I do believe that a fair and full trial on the merits should occur,
the Court doesn’t see any way for that to happen with this jury.
The jury would have no ability to put that aside in their minds
given the weight of what that carries, that conclusion carries; that
Mr. Graff was not supposed to be around children.
Given that, the Court is granting the defendant’s motion for
a mistrial in this matter. I am granting it also with prejudice,
because there was a clear motion in limine that said there is to be
no discussion of previous convictions. It didn’t say allusions, but
that is understood by counsel for both sides, that that means no
dancing around the issue, either. It is very clear, especially in an
issue of this gravity that that cannot be addressed, period.
And I clearly put that on record this morning, whether each
witness had been briefed that they were not to raise any issues
related to a sex offender history, related to his status. That
includes not being able to be around children. I mistakenly
understood that counsel would understand that’s part of the deal,
that he should not have any inference that he cannot be around
children as well.
The Court would also like to put on record that this has been
a trying case from the State’s perspective. I understand that
managing witnesses is a difficult issue, but there have also been
other issues that have increased the time that Mr. Graff has spent
in custody in this matter. I do not believe it fair to continue that at
this time, and I will grant a motion for a mistrial with prejudice.
4
Ms. Argenti, anything else you’d like to place on the record
today?
Ms. Argenti: No.
The court’s oral findings were accompanied by a criminal judgment dismissing
the charge with prejudice.
The record provides sufficient reasoning as to why the district court
granted a mistrial—because it would be impossible for the impaneled jury to
put aside the reference to Graff ’s past such that he would be able to receive a
fair trial. The record also reveals the court provided brief notice to the State
that it planned to dismiss with prejudice, and then asked the State if it wanted
to place anything more on the record—to which the State declined.
However, the district court did not make a specific finding the State acted
in bad faith, with harassment, or prosecutorial misconduct, nor did it discuss
whether lesser alternative sanctions were available or appropriate before
ordering the charge to be dismissed with prejudice. It is unclear whether the
court dismissed the charge with prejudice due to the State’s violation of the
motion in limine order, or based upon a violation of some other right, statute,
or rule. For example, if the court dismissed due to a violation of Graff ’s right
to a speedy trial, the court would have been required to conduct the required
analysis for such a violation. It is also unclear whether the court dismissed
with prejudice because the State acted in bad faith, with harassment, or with
prosecutorial misconduct. The court did not explain whether its decision to
dismiss with prejudice was a sanction due to the State’s misconduct, nor did it
consider lesser alternative sanctions aside from dismissal with prejudice.
The district court was required to follow our prior decisions in Tweeten,
Graff, and Snellman, and provide findings supporting the dismissal with
prejudice. We conclude the court’s findings are inadequate to support a review
of the dismissal of the charge against Graff with prejudice. “When we cannot
discern the court’s rationale, reversal of its decision and remand of the case is
appropriate.” Quamme v. Quamme, 2021 ND 208, ¶ 16,
967 N.W.2d 452. We
reverse and remand this case to the district court to determine, with clear and
5
convincing evidence, whether the State acted in bad faith, harassment, or
prosecutorial misconduct, and whether lesser sanctions exist and are
appropriate alternatives to dismissal with prejudice. We decline to address the
speedy trial issue raised by the State as we find it unnecessary to our decision.
III
The district court failed to make a finding of bad faith, harassment, or
prosecutorial misconduct on behalf of the State using clear and convincing
evidence. The court also misapplied the law by not considering lesser sanctions
to dismissal with prejudice, and not determining why those sanctions were not
available or were not appropriate in this case. We reverse and remand for
further findings consistent with this opinion.
Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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