FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 26, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 80
State of North Dakota, Plaintiff and Appellee
v.
Benjamin Robert Hannesson, Defendant and Appellant
No. 20220244
Appeal from the District Court of Pembina County, Northeast Judicial District,
the Honorable Lonnie Olson, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Garret M. Fontaine, State’s Attorney, Cavalier, ND, for plaintiff and appellee.
Peter B. Wold, Minneapolis, MN, for defendant and appellant.
State v. Hannesson
No. 20220244
McEvers, Justice.
[¶1] Benjamin Hannesson appeals from a criminal judgment. He argues the
evidence is insufficient to support the guilty verdicts and his right to due
process was violated by prosecutorial misconduct. We affirm.
I
[¶2] The State charged Hannesson with gross sexual imposition, burglary,
theft of property, terrorizing, felonious restraint, and two counts of physical
obstruction of a government function. The charges were based on an incident
that occurred near Walhalla. The State alleged Hannesson broke into a
woman’s home in the middle of the night, restrained her, sexually assaulted
her, stole money, and threatened to slit her throat if she called the police.
[¶3] At trial, Hannesson objected while the State was questioning a Bureau
of Criminal Investigation special agent about the boot impressions left at the
scene of the crime. While responding to Hannesson’s objection, and in the
presence of the jury, the State made the following comment: “There will be an
opportunity and defense counsel could certainly call experts to testify what
they observed based on their differing training and experience.” Hannesson
objected to the State’s comment, requested it be stricken, and then questioned
the agent on voir dire regarding his qualifications. Afterwards, the court
admonished the jury as follows:
First of all, any statements made by the State pertaining to
any burden on the defense to call any witnesses, at all, are
improper. And the State -- well, the defense has no obligation to
present any evidence, witnesses, or testimony, or experts for that
reason. So if there was any comments made in regard to defense
having the opportunity to bring anything, they do not have to do
so. So that would be stricken from the record, if they were made.
Hannesson moved to dismiss or, alternatively, for a mistrial, arguing the
State’s comments impermissibly shifted the burden of proof to the defendant.
1
The court denied his motion. The jury returned guilty verdicts on every count
except for the obstruction charges. Hannesson filed a motion under
N.D.R.Crim.P. 29 and 33 challenging the sufficiency of the evidence, which the
court denied.
II
[¶4] Hannesson argues the district court erred when it denied his motion for
a mistrial. He asserts the State’s comment about his opportunity to call an
expert witness violated his right to due process by impermissibly shifting the
burden of proof to him.
[¶5] Ordering a mistrial is an “extreme remedy” that is only appropriate
when there is a fundamental defect or occurrence at trial that makes it evident
that continuing would be “productive of manifest injustice.” State v. Carlson,
2016 ND 130, ¶ 11,
881 N.W.2d 649. We generally review a district court’s
decision on a motion for a mistrial for an abuse of discretion. State v. Bazile,
2022 ND 59, ¶ 5,
971 N.W.2d 884. However, “[p]rosecutorial misconduct may
so infect the trial with unfairness as to make the resulting conviction a denial
of due process.” City of Bismarck v. Sokalski,
2016 ND 94, ¶ 10,
879 N.W.2d 88
(quoting State v. Jasmann,
2015 ND 101, ¶ 5,
862 N.W.2d 809). When the basis
for a mistrial motion is prosecutorial misconduct, we apply the de novo
standard of review to determine whether facts rise to the level of a
constitutional violation. Bazile, at ¶ 5; State v. Foster,
2020 ND 85, ¶ 9,
942
N.W.2d 829.
[¶6] We first determine whether the prosecutor’s actions were misconduct.
Foster,
2020 ND 85, ¶ 9. If so, we analyze whether the misconduct had a
prejudicial effect.
Id. Although prosecutorial misconduct may create unfairness
amounting to a due process violation, “not every assertion of prosecutorial
misconduct ‘automatically rises to an error of constitutional dimension.’”
Bazile,
2022 ND 59, ¶ 7 (quoting Foster, at ¶ 17).
To determine whether a prosecutor’s misconduct rises to a level of
due process violation, we decide if the conduct, in the context of the
entire trial, was sufficiently prejudicial to violate a defendant’s due
2
process rights. If conduct was sufficiently prejudicial, we then
consider the probable effect the prosecutor’s improper comment
would have on the jury’s ability to fairly judge the evidence. In
reviewing claims involving improper prosecutorial comments, we
have noted the following: Inappropriate prosecutorial comments,
standing alone, would not justify a reviewing court to reverse a
criminal conviction obtained in an otherwise fair proceeding.
Bazile, at ¶ 7 (cleaned up). Curative jury instructions will generally remove
prejudice caused by a prosecutor’s improper statements because the jury is
presumed to follow the district court’s instructions. Id.
[¶7] Even assuming the State’s comment in this case was improper, which the
State appears to have conceded at oral argument, Hannesson has not
demonstrated the misconduct amounts to a constitutional violation. The
district court’s opening instructions informed the jury the State bore the
burden of proof, the court struck the comment, gave a prompt curative
instruction after Hannesson objected, and the court’s closing instructions
reiterated the State’s burden on each charge. The jury was repeatedly
reminded the State bore the burden of proof during closing arguments. More
than twenty witnesses testified, and the trial spanned eight days. Given the
court’s jury instructions, its curative admonishment, and the lengthy nature of
the trial, we are not convinced this single comment made by the State was
sufficiently prejudicial to violate Hannesson’s right to due process.
III
[¶8] Hannesson also argues the evidence presented at trial is insufficient to
sustain the guilty verdicts. Based on our review of the record, we conclude
substantial evidence supports the verdicts. See N.D.R.App.P. 35.1(a)(3)
(providing for summary affirmance when the verdict is supported by
substantial evidence).
IV
[¶9] We affirm the judgment.
3
[¶10] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
4
