State v. Grensteiner

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                 

State of North Dakota,                                   Plaintiff and Appellee
      v.
Grant Michael Grensteiner,                           Defendant and Appellant



                          Nos. 20240100 & 20240101

Appeal from the District Court of Williams County, Northwest Judicial District,
the Honorable Kirsten M. Sjue, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Nathan K. Madden, Assistant State’s Attorney, Williston, ND, for plaintiff and
appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                  State v. Grensteiner
                                Nos. 20240100 & 20240101

McEvers, Justice.

[¶1] Grant Grensteiner appeals from two criminal judgments entered after a
jury found him guilty of 17 counts of unlawful possession of a firearm by a felon
and 18 counts of theft of property. We affirm, concluding the district court did
not err in denying Grensteiner’s motion to suppress evidence, there was
sufficient evidence supporting his convictions, and there was no prosecutorial
misconduct or improper burden shifting.

                                               I

[¶2] Following a traffic stop and the seizure of 17 stolen firearms and other
stolen items, the State charged Grensteiner, the passenger of a Chevrolet Tahoe,
with 17 counts of unlawful possession of a firearm by a felon and 18 counts of
theft of property.1 Grensteiner moved to suppress evidence discovered as a
result of the stop and search, arguing the officers did not have reasonable
suspicion of a traffic violation or probable cause to search the Nissan Armada,
which was on a U-Haul trailer being towed by the Tahoe driven by Richard
Sargent. After a hearing, the district court denied the motion, finding two traffic
violations occurred when the vehicle stopped beyond two separate stop signs,
violating N.D.C.C. § 39-10-24, and concluding these violations provided a lawful
basis for the stop. The court further concluded that law enforcement had
probable cause to search the towed Armada, determining the towing vehicle and
towed vehicle were “one unit,” and a drug detection dog “alerting” on the Tahoe
extended to the towed Armada.

[¶3] After denying the motion to suppress, the district court held a jury trial.
Grensteiner moved for a judgment of acquittal following the State’s case-in-chief,
which was denied by the court. The jury found Grensteiner guilty on all counts.




1 The driver of the Tahoe, Richard Sargent, was charged with, and convicted of, the same

offenses. State v. Sargent, 

, 

.

                                               1
                                         II

[¶4] Grensteiner argues the district court erred in denying his motion to
suppress. When reviewing a decision on a suppression motion,

      [w]e defer to the district court’s findings of fact and resolve conflicts
      in testimony in favor of affirmance. We will affirm a district court’s
      decision on a motion to suppress if there is sufficient competent
      evidence fairly capable of supporting the trial court’s findings, and
      the decision is not contrary to the manifest weight of the evidence.
      Our standard of review recognizes the importance of the district
      court’s opportunity to observe the witnesses and assess their
      credibility. Questions of law are fully reviewable on appeal, and
      whether a finding of fact meets a legal standard is a question of law.

State v. Casatelli, 

, 

.

[¶5] Grensteiner argues law enforcement did not have reasonable suspicion to
detain him because, as the passenger, he did not commit the traffic violations; an
anonymous tip did not provide reasonable suspicion to detain him; there was no
reasonable suspicion as to him to extend the stop to wait for the drug detection
dog; and there was no probable cause to search the towed Armada. The State
argues the first three issues concerning reasonable suspicion were not raised
before the district court and therefore have not been preserved for appeal.

[¶6] In his brief in support of the suppression motion, Grensteiner argued the
vehicle legally stopped at the stop signs and therefore there was no legal basis
for the traffic stop, the anonymous tip did not provide probable cause to search
the Armada, and the drug detection dog alert providing probable cause to search
the Tahoe did not extend to the Armada. His arguments did not change at the
suppression hearing. With respect to the anonymous tip issue, Grensteiner
argued in the district court that the anonymous tip did not provide probable
cause to search the Armada, but now argues on appeal that the anonymous tip
did not provide reasonable suspicion to detain him. The other two issues now
raised—illegal detainment as to him and extension of the stop—were not raised
in the district court. Because these three issues were not raised before the district
court, they have not been preserved for appeal. State v. Black, 

,


                                         2


; State v. $44,140.00 U.S. Currency, 

, 

. Further, Grensteiner does not challenge on appeal the court’s finding that
traffic violations were committed under N.D.C.C. § 39-10-24 or its conclusion
that these violations provided a lawful basis for the stop.

[¶7] Grensteiner contends the probable cause to search the Tahoe provided by
the dog alert did not extend to the Armada. We addressed this issue in State v.
Sargent, 

, 

. In Sargent, we noted that the defendant did
not challenge whether there was probable cause based on the dog alert to search
the Tahoe:

              One exception to the warrant requirement is the automobile
       exception. “Under the automobile exception, law enforcement may
       search for illegal contraband without a warrant when probable
       cause exists.” State v. Lark, 

, 

. The
       district court found “there was clearly probable cause to search the
       [Tahoe], as the K-9 alert gave probable cause to search the [Tahoe.]”
       Sargent does not challenge this conclusion. Thus, the issue is
       whether the automobile exception extends to the Armada on the
       trailer towed by the Tahoe.

Id. at ¶ 25.

[¶8] Grensteiner, like Sargent, does not challenge the district court’s conclusion
that the dog alerting to the Tahoe provided probable cause to search the Tahoe.
See also State v. Lelm, 

, 

 (“A drug-sniffing dog
indicating the presence of a controlled substance in a vehicle establishes
probable cause for officers to search that vehicle.”). In Sargent, we specifically
concluded that probable cause extended to the towed vehicle, stating “the
officers had probable cause to search the Armada on the trailer towed by the
Tahoe driven by Sargent.” 

; see also id. at ¶ 28 (“[U]nder the
automobile exception, once probable cause to search is established, it extends
‘bumper-to-bumper’ to the entire travelling unit.” (quoting State v. Crudo, 

 (Kan. 2024))). Grensteiner requests that the Court reconsider its
conclusion in Sargent. We reject that request and follow Sargent, concluding the
automobile exception applies because there was probable cause to search the
Armada based on the dog alert.

                                        3
                                               III

[¶9] Grensteiner argues there was insufficient evidence supporting his
convictions. Our review of a challenge to the sufficiency of the evidence is wellestablished:

       When the sufficiency of evidence to support a criminal conviction is
       challenged, this Court merely reviews the record to determine if
       there is competent evidence allowing the jury to draw an inference
       reasonably tending to prove guilt and fairly warranting a
       conviction. The defendant bears the burden of showing the evidence
       reveals no reasonable inference of guilt when viewed in the light
       most favorable to the verdict. When considering insufficiency of the
       evidence, we will not reweigh conflicting evidence or judge the
       credibility of witnesses. . . . 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, 

, 

. Grensteiner contends there was
insufficient evidence that he possessed the stolen firearms and other stolen items.
He asserts there was no evidence that he knew what was in the Armada or that
he had the ability to access what was in the Armada.

[¶10] Under N.D.C.C. § 62.1-02-01(1)(b) (2022),2 a felon is prohibited from
possessing or controlling a firearm within five years of his conviction. Under
N.D.C.C. § 12.1-23-02(3), a person is guilty of theft if he “[k]nowingly receives,
retains, or disposes of property of another which has been stolen, with intent to
deprive the owner thereof.” Grensteiner challenges only the possession element,
and does not differentiate it from controlling, receiving, or retaining the stolen
firearms and items. Addressing only the arguments raised, we turn to whether
there was sufficient evidence that he possessed the stolen firearms and items.




2 Section 62.1-02-01(1)(b), N.D.C.C., was amended effective August 1, 2023, after charges were

originally brought in this case. The district court properly applied the 2022 statute in instructing
the jury.

                                                 4
[¶11] Possession “may be actual or constructive, exclusive or joint and may be
shown entirely by circumstantial evidence.” Dahl, 

. “To prove
constructive possession the State must present evidence which establishes that
the accused had the power and capability to exercise dominion and control over
the contraband.” State v. Morris, 

 (N.D. 1983). The State does
not have to specifically prove “the accused had knowledge of the presence of the
[contraband].” 

. “The evidence required to show an individual’s power
and capability to exercise control over a controlled substance need only establish
his right or his ability to control, in a realistic and practical sense, the area where,
or the container in which, the contraband is found.” 

 Constructive possession
may be inferred from the totality of circumstances, including “an accused’s
presence in the place where a controlled substance is found, his proximity to the
place where it is found, and the fact that the controlled substance is found in
plain view.” 

 (citations omitted).

[¶12] At trial, the evidence showed that the 17 stolen firearms and a stolen pellet
gun were found in the Armada, and other stolen items, including tools and a
knife, were found in a tote in the back of the Tahoe. The U-Haul trailer that was
used to tow the Armada was rented by Grensteiner for approximately a 24-hour
period. The towing vehicle identified on the U-Haul agreement was a Tahoe.
Grensteiner’s employer testified he purchased the Armada in Dickinson and
asked Grensteiner to pick the vehicle up for him, which was typical of
Grensteiner’s work duties.

[¶13] A jailhouse phone call recording was played for the jury. Detective
Nicholas Satermo testified that he previously listened to the call, that he
recognized Grensteiner’s voice on the call, and that Grensteiner was talking to
Sargent. Detective Satermo testified that he recalled hearing the statement that
“the only evidence is the guns and shit,” and Grensteiner stating that “doesn’t
look good as far as being in possession of all the shit” and “I don’t see anybody
knowing we were coming into town with this.” Detective Satermo testified the
use of “we,” as opposed to “you,” was significant in showing Grensteiner’s
knowledge of the stolen items.




                                           5
[¶14] Grensteiner’s employer purchased the Armada and specifically tasked
Grensteiner with hauling it to him. Grensteiner therefore had authority from the
vehicle’s owner, his employer, to exercise dominion and control over the
Armada. Grensteiner rented the U-Haul trailer used to tow the Armada. He was
present in the same vehicle as the stolen tools and knife, and with the Armada
in tow, was in relatively close proximity to the stolen firearms and pellet gun.
While the firearms and pellet gun were not within reaching distance while the
unit was being driven, it can be reasonably inferred that they would have been
accessible while stopped. Further, a jury could reasonably infer Grensteiner
knew the stolen firearms and items were in the vehicles based on his statements
in the jailhouse call; but even if his jailhouse statements were, as his counsel
argued at oral argument, merely his discussion of the evidence against him after
the fact, the State does not have to affirmatively establish his knowledge of their
presence in the vehicles. See Morris, 

. Rather, constructive
possession may be inferred from the totality of the circumstances. 

 Under the
totality of the circumstances, a jury could reasonably infer Grensteiner had the
right or ability to control “the area where, or the container in which,” the stolen
firearms and items were found. 

 Viewing the evidence in the light most
favorable to the verdict, we conclude substantial evidence exists that could allow
a jury to draw a reasonable inference that Grensteiner constructively possessed
the stolen firearms and other stolen items.

                                       IV

[¶15] Grensteiner argues the State committed prosecutorial misconduct and
improperly shifted the burden of proof to him during its questioning of Detective
Satermo. At oral argument, Grensteiner argued the State also made improper
comments during its closing argument at trial. Grensteiner did not raise this
argument in his appellant brief. Therefore, we do not address the closing
argument issue and limit our review to whether the questioning was improper.
State v. Wilder, 

, ¶ 10, 

 (“Although he alleged during
oral argument that there were other improper comments at other times during
the trial, we generally do not consider arguments raised for the first time at oral
argument on appeal.”); State v. Hajicek, 

, 

 (“[W]e
will not consider issues not briefed on appeal.”).

                                        6
[¶16] Grensteiner admits he did not object to the State’s questioning and the
Court must review for obvious error. “[T]o establish obvious error, a defendant
must show: (1) error; (2) that is plain; and (3) affects substantial rights.” State v.
Kruckenberg, 

, 

. “Even if the defendant meets
his burden of establishing obvious error affecting substantial rights, the
determination whether to correct the error lies within the discretion of the
appellate court, and the court should exercise that discretion only if the error
seriously affects the fairness, integrity or public reputation of judicial
proceedings.“ State v. Linner, 

, 

 (cleaned up).

[¶17] “When there is a claim of prosecutorial misconduct, we determine whether
the prosecutor’s actions were misconduct and, if they were, whether the
misconduct had prejudicial effect.” State v. Pena Garcia, 

, 

. “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.” State v.
Hannesson, 

, 

 (quotation marks omitted).

      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
      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.

 (quoting State v. Bazile, 

, 

).

[¶18] Grensteiner argues the following direct examination of Detective Satermo
was improper:

      Q. Okay. All right. So, since opening this investigation last spring of
      2022, are you aware of receiving any statements or documents from
      anyone that this Defendant had nothing to do with the crimes for
      which he was charged with?

                                          7
      A. No, I have not.
      Q. Okay. Have you had investigations where folks do decide that
      they want to cooperate with law enforcement and come in and talk?
      A. Yes.
      Q. Okay. So that -- that would not be uncommon in your line of work
      and experience?
      A. No.
      ....
      Q. And I did ask you this earlier, and I’m just going to run it past
      you one more time just so that we are abundantly clear. And to this
      date -- and keep in mind, charges were filed way back in April of
      last year, so we are well over a year and a half in?
      A. Yes.
      Q. Have you received any statements, any documents, any
      mitigation whatsoever from the person that he was involved with or
      any witness telling law enforcement this guy sitting to my left had
      absolutely nothing to do with this gun heist?
      A. I did not.
      Q. Nothing. And would you agree that 18 plus months would be
      plenty enough time to get some information over to law
      enforcement?
      A. I would assume it is, yeah.

Grensteiner contends this line of questioning constituted prosecutorial
misconduct and improperly shifted the burden of proof to him because “the
prosecution is plainly requesting the jury consider that the defense did not
produce evidence from some source, presumably [Sargent].” Grensteiner asserts
this led the jury to conclude that either he should have testified or he had the
burden to produce Sargent as a witness.

[¶19] “[I]t is a fundamental principle of constitutional law that a prosecutor may
not comment on a defendant’s failure to testify in a criminal case.” State v. Gibbs,

, 

. “This Court has recognized that a ‘prosecutor
does not comment on the defendant’s failure to testify if the statement is made
before the defendant has an opportunity to testify.’” 

 at ¶ 19 (quoting State v.
His Chase, 

 (N.D. 1995)). The State’s questioning of Detective
Satermo did not contain a comment on Grensteiner’s failure to testify. In fact, it



                                         8
occurred in the State’s case-in-case before Grensteiner even had an opportunity
to testify.

[¶20] Further, the questioning of Detective Satermo did not imply Grensteiner
had an obligation to call Sargent as a witness. Rather, the questioning showed
that law enforcement did not receive exculpatory evidence from Sargent or any
other witness which would exonerate Grensteiner. “Comments intended to
highlight the weaknesses of a defendant’s case do not shift the burden of proof.”
State v. Smith, 

, 

. Even if the questioning was
improper, Grensteiner has failed to show the alleged misconduct had a
prejudicial effect.

[¶21] In Kruckenberg, the State “argued in its rebuttal that the evidence pointed
to no one else and that ‘no evidence has been offered, none, that anyone other
than the defendant sold the drugs.’” 

. Although we were
“concerned with a prosecutor commenting on the lack of evidence ‘offered,’
because such a phrase might be construed to suggest the defendant had a burden
to offer evidence,” we concluded the defendant was not prejudiced by the State’s
comment, but even “if error, did not rise to the level of obvious error.” Id. at
¶¶ 30-31. We reasoned that there was overwhelming evidence of guilt in the
record, a lack of evidence “indicat[ing] the jury concluded the burden shifted,”
and the jury instructions provided the State’s burden of proof and noted that
“counsels’ arguments were not evidence.” Id. at ¶ 30.

[¶22] In this case, the preliminary jury instructions stated that “the State has the
burden of proof beyond a reasonable doubt,” “the Defendant may, but is not
required to, introduce evidence,” “[b]efore the Defendant can be convicted on
any charge, the State must prove all the essential elements of that offense beyond
a reasonable doubt,” “[t]he Defendant is presumed to be innocent unless the
contrary, the Defendant’s guilt, is proved beyond a reasonable doubt,” and “[i]f
the State has not proved the Defendant’s guilt beyond a reasonable doubt, you
must find the Defendant not guilty.” The final jury instructions reiterated that
“[i]f the State has failed to establish any of the essential elements of an offense
beyond a reasonable doubt, it is your duty to find the Defendant not guilty of



                                         9
that offense.” “We presume that the jury followed the district court’s
instructions.” Kruckenberg, 

.

[¶23] The questioning of Detective Satermo showed that law enforcement did
not receive any information from Sargent, or any witness, indicating Grensteiner
“had nothing to do with the crimes.” This line of questioning is no more
prejudicial than the prosecutor’s statement in Kruckenberg, commenting on the
lack of evidence “offered” by the defendant. Given the jury instructions
repeatedly emphasizing the State’s burden and the substantial evidence
supporting the guilty verdicts, we conclude Grensteiner was not prejudiced by
the State’s questions. See Kruckenberg, 

; Linner, 

(noting that “[o]n multiple occasions the parties and the district court informed
the jury of the correct burden of proof, including in the instructions,” and that
“[a]ny prejudice from the State’s statements were minimized by the court’s
instructions”); Smith, 

 (same). Even if the questioning was an
error, the error did not rise to the level of obvious error.

                                        V

[¶24] The criminal judgments are affirmed.

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




                                        10