State v. Haney

                                                                                FILED
                                                                        IN THE OFFICE OF THE
                                                                     CLERK OF SUPREME COURT
                                                                          DECEMBER 1, 2023
                                                                      STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

State of North Dakota,                                Plaintiff and Appellee
     v.
Demetris Haney,                                    Defendant and Appellant

                          Nos. 20220366-20220367

Appeal from the District Court of Stark County, Southwest Judicial District,
the Honorable William A. Herauf, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Amanda R. Engelstad, State’s Attorney, Dickinson, ND, for plaintiff and
appellee; submitted on brief.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                              State v. Haney
                          Nos. 20220366-20220367

Bahr, Justice.

[¶1] Demetris Haney appeals from a criminal judgment entered after a jury
found him guilty of aggravated assault, reckless endangerment, and
terrorizing. We conclude the district court did not err in denying his motion for
judgment of acquittal and did not deny his right to a public trial. We affirm.

                                       I

[¶2] On January 1, 2022, Haney and three other individuals were involved in
a shooting in a bar’s parking lot in Dickinson. The State charged Haney with
reckless endangerment and terrorizing, in addition to conspiracy to commit
murder and two counts of attempted murder. The State subsequently moved
to dismiss the conspiracy charge, which the district court granted. In August
2022, the court held a three-day jury trial on the remaining four counts.

[¶3] Haney and his wife went to the bar on New Year’s Eve. While at the bar,
two acquaintances of Haney—Jamaal Brown and Alexander Aseph—entered
the bar and became upset with another individual. Brown and Aseph were seen
tucking guns into their waistbands before entering the bar, getting into a
disagreement in the bar, and brandishing their guns. Brown and Aseph left the
bar through the main exit. Haney testified he told his wife they were leaving
and left from a different exit into the parking lot.

[¶4] At trial, the State offered photographs and surveillance videos into
evidence and played videos for the jury, which included the shooting in the
parking lot. The investigating detective testified regarding the photographs
and videos, stating Haney raised his firearm towards Brown before Aseph and
Brown raised any weapons:

           So prior to Brown getting in his vehicle, [Haney] fires
      multiple rounds at Brown. Brown drops rapidly. And then Aseph
      and Brown, I believe they returned fire towards [Haney]. They
      eventually entered the Jeep and then the Jeep attempts to leave.
      The other individual that we saw, [Dontaye] Mayfield, he goes

                                       1
      inside his white Chevy truck right there, and he retrieves a
      firearm. And then as the Jeep is leaving, you can see Mayfield and
      [Haney] running towards the Jeep and firing at the Jeep as it
      leaves the area.

The detective testified, in his opinion, Haney was the first person to shoot. The
detective testified officers collected twenty-five shell casings from the scene,
with an additional four casings later found on the Jeep used by Aseph and
Brown. Haney testified when he went out to his car, Brown and Aseph began
shooting at him and he returned fire with a gun he grabbed out of his car,
shooting five rounds towards Brown. Haney further testified he fired until his
gun was empty and did not shoot at the Jeep as it left the parking lot.

[¶5] After the State rested its case, Haney moved the district court under
N.D.R.Crim.P. 29 for a judgment of acquittal on all four counts. The court
denied his motion. The jury found Haney not guilty of the attempted murder
counts, but found him guilty of two counts of the lesser-included offense of
aggravated assault and guilty of reckless endangerment and terrorizing. The
jury also found Haney was a dangerous special offender. In December 2022,
the court sentenced Haney, and the clerk entered a criminal judgment.

                                       II

[¶6] Haney argues the district court erred in denying his motion for a
judgment of acquittal under N.D.R.Crim.P. 29 on the terrorizing charge.

[¶7] “To grant a motion for judgment of acquittal under N.D.R.Crim.P. 29, a
trial court must find the evidence is insufficient to sustain a conviction of the
offenses charged.” State v. Yoney, 

, 

 (quoting
State v. Norton, 

, 

). “To successfully challenge
the sufficiency of the evidence on appeal, the defendant must show the
evidence, when viewed in the light most favorable to the verdict, permits no
reasonable inference of guilt.” State v. Bear, 

, 

(quoting State v. Herzig, 

, 

). We will assume
the jury believed all evidence supporting a guilty verdict and disbelieved any
contrary evidence. Yoney, at ¶ 19. We do not reweigh conflicting evidence or



                                       2
judge the witnesses’ credibility. State v. Noble, 

, 

.

[¶8] Circumstantial evidence alone may justify a conviction when “the
circumstantial evidence has such probative force as to enable the trier of fact
to find the defendant guilty beyond a reasonable doubt.” State v. Fleck, 

, 

 (quoting State v. Spillum, 

, 

). “A verdict based on circumstantial evidence carries the same
presumption of correctness as other verdicts.” 

 (quoting Spillum, at ¶ 6).

[¶9] Section 12.1-17-04(1), N.D.C.C., defines the crime of terrorizing and
provides, in relevant part:

      A person is guilty of a class C felony if, with intent to place another
      human being in fear for that human being’s or another’s safety . .
      . or in reckless disregard of the risk of causing such terror,
      disruption, or inconvenience, the person . . . [t]hreatens to commit
      any crime of violence or act dangerous to human life[.]

[¶10] To convict under this section, the State must prove: “(1) the defendant
intended to cause another person to fear for his or another person’s safety or
acted with reckless disregard of the risk of causing such fear, and (2) the
defendant made a threat to commit a ‘crime of violence or act dangerous to
human life.’” State v. Johnson, 

, 

 (quoting
State v. Brossart, 

, 

). “A threat could be in
words, verbal or written; actions; gestures; suggestive innuendo; or any other
form of communication.” Yoney, 

 (quoting State v. Laib, 

, 

).

[¶11] In this case, the district court instructed the jury on the essential
elements for terrorizing, as follows:

      Count 2: Terrorizing
            A person who, with intent to place another in fear for that
      person’s or another’s safety or in reckless disregard of the risk of
      causing such terror, threatens to commit any crime of violence or
      act dangerous to human life is guilty of Terrorizing.
                   ESSENTIAL ELEMENTS OF OFFENSE

                                        3
           The State’s burden of proof is satisfied if the evidence shows,
      beyond a reasonable doubt, the following essential elements:
                 1) On or about January 1, 2022, in Stark County,
           North Dakota,
                 2) The Defendant, Demetris Haney,;
                 3) With intent to place another in fear for that person’s
           or another’s safety or in reckless disregard of the risk of
           causing such terror;
                 4) Threatened to commit any crime of violence or act
           dangerous to human life; and
                 5) The Defendant did not act in self-defense.

The jury instructions defined the words “[t]hreat or [t]hreatened” as “a
communication, verbal or nonverbal, where the actor means to communicate a
serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals; the threat must be considered
from the perspective of a reasonable person in the recipient’s position.”

[¶12] In moving for a judgment of acquittal on the terrorizing count, Haney
argued the evidence was “totally lacking” he made any “concrete threats”
toward Brown, Aseph, or “anyone else in particular.” In denying his motion,
the district court explained, “While there might be no specific threats, I mean
there was a whole bunch of bullets flying. Some of them were flying from Mr.
Haney’s gun.”

[¶13] Haney argues the State failed to prove the terrorizing charge because he
did not “threaten” to commit any violent crime or a dangerous act. He asserts
no evidence shows he made a threatening statement or brandished his gun or
another weapon and no evidence shows he had the specific intent to place
anyone in fear for their safety. The State responds the agreed-upon jury
instructions provide the “threat” did not have to be a verbal threat and firing
his gun five times at another individual or individuals is a “threat” defined by
the jury instructions.

[¶14] “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


                                       4
the prosecution the benefit of all inferences reasonably to be drawn in its
favor.” Bear, 

 (quoting State v. Knowels, 

,

). “A jury may find a defendant guilty even though evidence
exists which, if believed, could lead to a verdict of not guilty.” State v. Dahl,

, 

 (quoting State v. Nakvinda, 

, 

).

[¶15] Here, in convicting Haney, the jury found Haney had not acted in self-defense. There is evidence in the record showing Haney raised his gun and
fired multiple times at one or more individuals. From the perspective of a
reasonable person, someone raising his gun towards an individual and firing
multiple times at the individual could constitute a nonverbal threat to those
present at the scene. Moreover, the jury could construe the evidence of Haney’s
conduct in exchanging gunfire with Brown and Aseph as establishing Haney’s
intent to place another in fear for that person’s safety or, at least, acting in
reckless disregard of the risk of causing such terror.

[¶16] Based on the evidence presented at trial, we conclude a rational fact
finder could find Haney both “[t]hreatened to commit any crime of violence or
act dangerous to human life” and had the “intent to place another in fear for
[their] safety or in reckless disregard of the risk of causing such terror[.]”
Haney has not shown there was no reasonable inference of guilt. Viewing the
evidence in a light most favorable to the verdict, sufficient evidence supports
the conviction.

                                      III

[¶17] Haney argues the district court created a structural error by denying his
constitutional rights to a public trial.

[¶18] “The structural error doctrine applies to a narrow class of rights,
including three Sixth Amendment rights defining the framework of a trial: the
right to counsel, the right to self-represent, and the right to a public trial.”
State v. Linner, 

, 

 (quoting State v. Martinez,

, 

). “A structural error affects the framework
within which a trial proceeds and therefore ‘renders the trial fundamentally


                                       5
unfair or an unreliable vehicle for determining guilt or innocence.’” 

 (quoting
Martinez, at ¶ 4). We apply a de novo standard in reviewing whether facts rise
to the level of a public trial violation. 

[¶19] In considering a defendant’s claim his right to a public trial was violated,
“we first consider whether the claim of error was preserved at trial. We then
consider the threshold question of whether there was a closure implicating the
public trial right.” Linner, 

 (quoting Martinez, 

). If there was a closure, we decide “whether the trial court made pre-closure
Waller findings sufficient to justify the closure.” 

 When a defendant does not
preserve the public trial issue with a timely objection at the trial, we review
only for obvious error. 

 To establish obvious error, the defendant must
demonstrate a plain error that affected the defendant’s substantial rights.
State v. Pemberton, 

, 

; see also N.D.R.Crim.P.
52(b); State v. Frederick, 

, 

.

[¶20] In State v. Kollie, 

, we further explained our publictrial jurisprudence:

      “We have said that brief sidebars or bench conferences conducted
      during trial to address routine evidentiary or administrative
      issues outside the hearing of the jury ordinarily will not implicate
      the public trial right.” [State v. Pendleton, 

, 

.] “For example, routine evidentiary rulings, objection
      rulings, or ‘[m]atters traditionally addressed during private bench
      conferences or conferences in chambers generally are not closures
      implicating the Sixth Amendment.’” 

 (quoting State v. Martinez,
      

, 

). We have also said, “Where a
      bench conference is held in view of both the public and the jury,
      despite their inability to hear what is said, the public trial right is
      satisfied by prompt availability of a record of those proceedings.”
      State v. Morales, 

, 

.
             In State v. Frederick, we clarified our public trial
      jurisprudence. 

, 

. The appellant bears
      the burden to demonstrate the public was excluded from a
      proceeding to which the public had a right to be present. Id. at ¶ 7.
      “An inadequate record is not equivalent to a closed trial.” Id. at
      ¶ 10. “While a district court’s failing to preserve a record of


                                        6
      testimony and proceedings may be error, it is not structural error.”
      Id. at ¶ 11. Accordingly, a sidebar addressing routine evidentiary
      or administrative matters during trial, even without an adequate
      record, is not a closure implicating the public trial right. Id. at
      ¶¶ 10, 20-21.

[¶21] On appeal, Haney identifies three times throughout the trial when the
district court held in-chamber conferences without making pre-closure Waller
findings or obtaining a waiver from Haney. He also identifies four sidebars or
bench conferences held without being recorded and without Haney present.
Haney did not object at trial to any of these in-chamber conferences or sidebars.

[¶22] Haney argues the district court violated his right to a public trial by
conducting the in-chamber conferences without making Waller findings, and
that the alleged violation constitutes obvious error. He contends under State v.
Pulkrabek, 

, 

, the in-chamber conferences
created a structural error requiring reversal of his convictions. The State
responds the three in-chamber conferences are similar to the in-chamber
conferences in Pendleton, 

, and were routine evidentiary,
administrative, and housekeeping matters.

[¶23] The district court’s three in-chamber conferences were held on the record
with counsel and Haney present, and a transcript was produced. We have said,
“Non-public exchanges between counsel and the court on technical legal issues
and routine administrative problems do not hinder the objectives which the
United States Supreme Court in Waller observed were fostered by public
trials.” State v. Smith, 

, 

; see also Pendleton,

. On our review, we agree these conferences involved routine
evidentiary and administrative matters. During the first in-chamber
conference, the district court and counsel discussed absent potential jurors and
the likely number of potential jurors needed to fill the jury. During the second
in-chamber conference, they discussed confusion regarding the marking of
exhibits on the notice of exhibits. During the third in-chamber conference, the
parties argued and the judge ruled on an evidentiary objection and addressed
when to take and the length of the next break. We conclude these in-chamber



                                       7
conferences held on the record were not closures implicating Haney’s public
trial right.

[¶24] While judges are not necessarily “restricted in their ability to conduct
conferences in chambers, inasmuch as such conferences are distinct from trial
proceedings,” Smith, 

 (emphasis added) (quoting Richmond
Newspapers, Inc. v. Virginia, 

, 598 n.23 (1980) (Brennan, J.,
concurring in judgment)), we nevertheless caution against using in-chamber
conferences during public trial proceedings, particularly when such
conferences may inevitably veer into matters that implicate public trial rights.
The better practice is to avoid in-chamber conferences during trial altogether,
opting instead for proceedings in open court without the jury present or for
sidebars or bench conferences held on the record.

[¶25] Here, as in Kollie, “[t]he district court erred by failing to either
adequately record the sidebars or summarize the sidebars on the record and
then allowing the parties the opportunity to confirm or correct the court’s
summary.” 

 (citing Frederick, 

). We further
conclude, however, Haney failed to establish obvious error in the district court’s
failure to create a record of the identified sidebars or bench conferences. In
Frederick, at ¶ 13, we said to show that “an inadequate record affects a
defendant’s substantial rights, the defendant must demonstrate the record
cannot be adequately supplemented or reconstructed.” We explained
N.D.R.App.P. 10(f) provides a mechanism for an appellant to reconstruct the
record and “[w]ithout such an attempted reconstruction, this Court is unable
to accurately complete an appellate review.” Id. at ¶ 15.

[¶26] Haney did not object during trial to the district court’s failure to preserve
or summarize the substance of the sidebars or bench conferences on the record.
Haney made no effort to supplement or reconstruct the record under
N.D.R.App.P. 10 to demonstrate prejudice. He also has not shown the record
could not be adequately supplemented or reconstructed. Moreover, Haney has
not “demonstrated how the error affected his substantial rights, nor has he
shown the bench conference addressed any matters implicating his right to a



                                        8
public trial as distinguished from routine evidentiary or administrative
issues.” Frederick, 

.

[¶27] On this record, we conclude the in-chamber conferences were not
closures implicating Haney’s public trial right and Haney has not established
obvious error in the district court’s failure to create a record of the sidebars or
bench conferences.

                                       IV

[¶28] Haney argues the district court denied his right to due process. However,
Haney provides no factual or legal analysis to support that argument. Rather,
Haney appears to argue this Court’s precedent in Frederick violates due
process by improperly shifting the burden to criminal appellants to supplement
the record for unrecorded sidebars.

[¶29] “The first step in raising a constitutional claim is articulation of the
specific constitutional provisions violated.” Fenske v. Fenske, 

 (N.D. 1996). “Persuasive authority and reasoning must support
constitutional claims.” 

 Haney did not provide relevant authority or
meaningful reasoning to support his due process claim.

[¶30] Haney first argues our decision in Frederick is “in contradiction to” N.D.
Sup. Ct. Admin. R. 9, Jury Standard 7(d). Standard 7(d) simply provides that
“[i]n felony criminal cases, the voir dire process must be held on the record.”
Standard 7(d) has no application to Haney’s case; Haney does not argue jury
selection was not recorded or was not held before the public.

[¶31] Next, Haney cites the due process clauses of the federal and North
Dakota constitutions for the principle “[p]rocedural due process requires
fundamental fairness.” He then argues his right to appeal his criminal
conviction is “erase[d]” because, without a transcript, this Court cannot
conduct a meaningful review of the trial. Haney cites State v. Hapip, 

 (N.D. 1970), and State v. Spiekermeier, 

 (N.D.
1977), in support of his argument. However, Hapip involved application of a
then existing statute. This Court held under the prior law that a party “in a


                                        9
county court of increased jurisdiction ha[d] a statutory right to have the
proceedings upon the trial taken down by a reporter and to have a transcript
of the proceedings certified as provided by statute,” and that the defendant had
not waived his right to have the trial proceedings “taken down by a court
reporter.” 

 (emphasis added). Similarly, in Spiekermeier, this
Court held a new restitution hearing was required because “no record of the
proceedings” had been made. 

. This Court explained, “Since
the record contains no statement of the evidence or proceedings, we must
conclude that none was prepared and submitted to the trial court for
settlement and approval as permitted by [then] Rule 10(c), NDRAppP, or
prepared and signed by the parties and approved by the trial court as
permitted by [then] Rule 10(d), NDRAppP.” 

 Neither Hapip nor
Spiekermeier involved the resolution of asserted constitutional due process
violations. Moreover, with very limited exceptions, a record of Haney’s trial was
made.

[¶32] Finally, Haney contends our holding in Frederick requires his trial
counsel to become a fact witness in violation of N.D.R. Prof. Conduct 3.7(a)(1),
providing “[a] lawyer shall not act as an advocate at a trial in which the lawyer
is likely to be a necessary witness unless . . . [t]he testimony relates to an
uncontested issue[,]” and potentially creates a violation of N.D.R. Prof.
Conduct 1.7, which prohibits conflicts of interest. Haney’s argument of
potential professional conduct violations is merely speculative and not at issue
in this case since he was represented by different counsel at trial. Moreover,
supplementing or reconstructing the record under N.D.R.App.P. 10(f)-(h) as to
what occurred during the trial proceedings would not necessarily require trial
counsel to become a fact witness in the underlying criminal case. Haney’s
arguments are unavailing.

[¶33] Rule 39, N.D. Sup. Ct. Admin. R., calls for preservation of the record,
stating: “Except in small claims court cases under N.D.C.C. ch. 27-08.1 and in
traffic cases under N.D.C.C. § 39-06.1-03, the record of testimony and
proceedings of the district court must be preserved using audio-recording
devices, video-recording devices, or stenographic shorthand notes.” N.D. Sup.



                                       10
Ct. Admin. R. 39(2). As discussed in Frederick, failing to preserve a record of
sidebars or bench conferences does not constitute structural error:

      North Dakota law recognizes that not all proceedings will always
      be recorded. Fenske v. Fenske, 

 (N.D. 1996). Our
      law has also stated that while off the record discussions are
      “disapproved of,” the trial record “will be searched and all parts of
      the record interpreted together. A deficiency in one place may be
      cured by what appears in another.” State v. Schlittenhardt, 

 (N.D. 1966) (citing Davidson v. Nygaard, 

, 

 (1951)). While a district court’s
      failing to preserve a record of testimony and proceedings may be
      error, it is not structural error.

. “To demonstrate that an inadequate record affects a
defendant’s substantial rights, the defendant must demonstrate the record
cannot be adequately supplemented or reconstructed.” Id. at ¶ 13. Haney failed
to provide any authority or reasoned analysis supporting his argument
requiring him to comply with N.D.R.App.P. 10(f)-(h) violates his constitutional
right to due process.

[¶34] We have repeatedly declined to consider an issue or argument not
adequately supported and briefed. See State v. Nice, 

, 

; State v. Anderson, 

, 

; State v.
Noack, 

, 

; State v. Haibeck, 

,

. “[A] party pursuing a constitutional claim must . . . make a
strong case supported by both fact and law or forgo the claim.” State v. Gray,

, 

 (quoting Weeks v. N.D. Workforce Safety &
Ins. Fund, 

, 

). Without authority and
supporting reasoned analysis, “the mere assertion of unconstitutionality is
insufficient to adequately raise a constitutional question.” Overboe v. Farm
Credit Servs., 

, 

 (fleeting reference to “due
process” in trial court and appellate briefs held insufficient to raise the
constitutional validity of a statute under the due process clause).

[¶35] Although Haney challenges our recent decision in Frederick and this
Court’s procedure for supplementing or reconstructing the record under


                                       11
N.D.R.App.P. 10 on the grounds of a purported due process violation, he has
not cited any relevant case law in support of his argument holding this
procedure is unconstitutional. Haney provides us with no detailed
constitutional analysis or reasoning. Because Haney has not sufficiently
challenged the constitutionality of N.D.R.App.P. 10 and our decision in
Frederick, we decline to address the issue on the merits.

                                    V

[¶36] We have considered Haney’s remaining arguments and conclude they are
either without merit or are not necessary to our decision. The criminal
judgment is affirmed.

[¶37] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                    12