FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 18, 2024
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 48
State of North Dakota, Plaintiff and Appellee
v.
James Paul Driver, Defendant and Appellant
No. 20230259
Appeal from the District Court of Ramsey County, Northeast Judicial District,
the Honorable Lonnie Olson, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Meggan J. Crosby, Assistant State’s Attorney, Devils Lake, ND, for plaintiff
and appellee; submitted on brief.
Ulysses S. Jones, Devils Lake, ND, for defendant and appellant; submitted on
brief.
State v. Driver
No. 20230259
McEvers, Justice.
[¶1] James Driver appeals from an order denying his motions for judgment
of acquittal and for a new trial after a jury found him guilty of fleeing or
attempting to elude a peace officer, reckless endangerment, and driving under
suspension or revocation. We affirm, concluding the district court did not abuse
its discretion in denying the motion for a new trial, and did not err in denying
the motion for judgment of acquittal because substantial evidence supports the
convictions.
I
[¶2] The State charged Driver with fleeing or attempting to elude a peace
officer, reckless endangerment, theft of property, criminal trespass, and driving
under suspension or revocation. The district court held a two-day jury trial.
[¶3] On the first day of trial, Devils Lake Police Department (DLPD)
Sergeant Andrew Johnson testified that on April 24, 2021, he received a report
of a theft from Walmart and the description of the suspect’s vehicle. Sergeant
Johnson located the vehicle and initiated a traffic stop on the highway. As
Sergeant Johnson approached the suspect’s vehicle, the vehicle drove away.
Sergeant Johnson and DLPD Officer Miranda Opdahl pursued the vehicle,
with Bureau of Indian Affairs Officer Stacey Larocque taking the lead position
once they entered the Spirit Lake Reservation. According to Sergeant Johnson,
the squad cars were marked as police vehicles and the lights and sirens on all
of the vehicles were activated. Sergeant Johnson testified that at one point he
observed the vehicles traveling at 100 miles per hour on his speedometer.
Officer Opdahl testified she passed 16 vehicles traveling on the other side of
the two-lane highway, went around one vehicle in her lane, and saw the
suspect’s vehicle “drifting into the centerline.” The suspect’s vehicle eventually
stopped near a wooded area and the suspect fled on foot. Officer Larocque
testified that he saw the suspect’s face, unobscured, and that he identified him
after the chase as Driver by reviewing booking and social media photographs.
1
Sergeant Johnson and Officer Larocque pursued the suspect, but were unable
to find him. Upon searching the vehicle, the officers found a drone in its box,
which Officer Larocque described as “a new item in the packaging.” Sergeant
Johnson testified that Walmart’s security device was wrapped around the box.
The drone was admitted into evidence.
[¶4] On the second day of trial, the State moved to dismiss the theft and
trespass charges because two of its witnesses were unable to travel to Devils
Lake to testify due to the weather conditions. The district court dismissed the
two charges. The jury found Driver guilty of fleeing or attempting to elude a
peace officer, reckless endangerment, and driving under suspension or
revocation. The court sentenced Driver and entered judgment.
[¶5] Driver moved for a judgment of acquittal, arguing there was insufficient
evidence that he was the operator of the fleeing vehicle and that the vehicle
was operated in such a manner as to manifest an extreme indifference to the
value of human life. Driver also moved for a new trial, arguing the State
presented irrelevant evidence and an improper opening statement concerning
the dismissed charges of theft and trespass, prejudicing him. After oral
argument, the district court denied the motions, concluding there was
sufficient evidence to sustain the convictions and the opening statement was
proper at the time it was given by the State.
II
[¶6] Driver argues the district court erred in denying his motion for a new
trial. “On the defendant’s motion, the court may vacate any judgment and
grant a new trial to that defendant if the interest of justice so requires.”
N.D.R.Crim.P. 33(a). “A motion for a new trial must specify the alleged defects
and errors with particularity.” Id. We review a denial of a motion for a new trial
under the abuse of discretion standard. State v. Knight,
2023 ND 130, ¶ 6,
993
N.W.2d 528. “A court abuses its discretion when it acts in an arbitrary,
unreasonable, or capricious manner, or it misinterprets or misapplies the law.”
Id.
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[¶7] Driver contends that because the theft and trespass charges were
ultimately dismissed, the State’s opening statement outlining the evidence it
intended to present on these charges was improper, and certain evidence—the
drone and parts of Sergeant Johnson’s testimony—was irrelevant. With
respect to those charges, the State alleged Driver trespassed by entering
Walmart after being served a notice against trespass and stole the drone.
A
[¶8] We have previously discussed opening statements and the latitude given
to counsel in outlining the evidence:
The purpose of an opening statement is to inform the jury
what the case is all about and to outline to it the proof which the
State expects to present, so that the jurors may more intelligently
follow the testimony as it is presented. In such statement, counsel
for the State should outline what he intends to prove, and it is not
necessary that he name the witnesses who will present each bit of
evidence. In outlining his proposed case, counsel should be allowed
considerable latitude. Only where the prosecutor deliberately
attempts to misstate the evidence will such opening statement be
ground for reversible error. Where, as in this case, the prosecutor
outlines the State’s evidence, the failure to present such evidence
by a particular witness he may name does not constitute
prejudicial or reversible error in the absence of a showing of bad
faith or a deliberate attempt to misstate the facts.
State v. Marmon, 154 N.W.2d 55, 62 (N.D. 1967); see generally Michael J.
Ahlen, Opening Statements in Jury Trials: What Are the Legal Limits?,
71 N.D.
L. Rev. 701 (1995) (discussing the purpose and scope of opening statements).
“The scope of the opening statement rests largely in the discretion of the trial
court, and [we] will not reverse a conviction on the ground that the opening
statement was prejudicial unless there is a clear abuse of that discretion.”
Marmon, at 62. “The interests of justice require that the defendant in a
criminal action receive a fair trial, not a perfect trial.” State v. Carr,
346 N.W.2d
723, 726 (N.D. 1984).
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[¶9] In its opening statement, the State advised the jury of the evidence to be
presented on all counts, including the trespass and theft counts. Some of this
evidence was not presented to the jury, including Walmart’s surveillance video,
testimony from Walmart employees, and evidence of the trespass notice. The
district court concluded the State’s comments in its opening statement
concerning the dismissed charges were proper at the time. The court noted the
State had a reasonable belief that the “witnesses would attend and testify to
lay the foundation for the video and notice against trespass.” The court
concluded that the weather prevented witnesses from testifying and evidence
from being introduced through no fault of the State. While the court made no
specific finding that the State did not act in bad faith or deliberately misstate
the evidence in providing its opening statement, these findings sufficiently
show a lack of bad faith.
[¶10] In the preliminary instructions, the jury was instructed to not consider
statements made by counsel as evidence. In the closing instructions, the jury
was informed, “If counsel or [the court] have made any comments or
statements concerning the evidence which you find are not supported by the
evidence, you should disregard them and rely on your own recollection or
observation.” We “presume the jury followed the court’s instructions.” State v.
Patterson, 2014 ND 193, ¶ 15,
855 N.W.2d 113.
[¶11] We conclude the district court did not abuse its discretion in denying the
new trial motion on this ground.
B
[¶12] As to the relevancy of the drone and Sergeant Johnson’s testimony, this
evidence was relevant at the time it was admitted into evidence. “Evidence is
relevant if: (a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in
determining the action.” N.D.R.Ev. 401. Sergeant Johnson’s testimony and
admission of the drone into evidence occurred on the first day of trial when the
trespass and theft charges were still being tried. It was not until the second
day of trial these charges were dismissed.
4
[¶13] A timely objection to this evidence could have been made after the
district court dismissed the trespass and theft charges, but before the jury
deliberated on the remaining offenses. The court could have instructed the jury
to disregard specific evidence, such as the drone and Sergeant Johnson’s
testimony that Driver now claims is irrelevant and prejudicial. Driver failed to
timely object to this evidence when the charges were dismissed, waiting until
after trial to make the argument in his new trial motion. “Forfeiture is the
failure to timely assert a right.” State v. Watkins, 2017 ND 165, ¶ 12,
898
N.W.2d 442; see also State v. White Bird,
2015 ND 41, ¶ 24,
858 N.W.2d 642 (“A
party may not later take advantage of irregularities that occur during a trial
unless the party objects at the time they occur, allowing the court to take
appropriate action, if possible, to remedy any prejudice that may result.”).
Because N.D.R.Crim.P. 52(b) applies to forfeited errors, Watkins, at ¶ 12, we
review for obvious error.
[¶14] To demonstrate obvious error, the defendant must show there was an
error that was plain, affecting his substantial rights. State v. Kollie,
2023 ND
152, ¶ 4,
994 N.W.2d 367. “The burden to show an obvious error is on the
appellant, and when it is not argued, it is difficult for an appellate court to
conclude the burden is satisfied.” State v. Sah,
2020 ND 38, ¶ 9,
938 N.W.2d
912. Driver has not argued obvious error and therefore we decline to address
the issue. See
id.
[¶15] We conclude the district court did not abuse its discretion in denying
Driver’s motion for a new trial.
III
[¶16] Generally, a party moving for a new trial is limited on appeal to the
grounds presented in the motion. State v. Ratliff, 2014 ND 156, ¶ 29,
849
N.W.2d 183. An exception to that rule is when the party files a post-verdict
Rule 29 motion for judgment of acquittal simultaneously with the motion for a
new trial and the district court holds a joint hearing on the motions.
Id. Under
such circumstances, the issues in the motion for judgment of acquittal are
preserved for appeal.
Id. Because Driver filed both motions on the same day
and the court held a joint hearing on the motions, the sufficiency of the
5
evidence arguments made in Driver’s motion for judgment of acquittal were
preserved for appeal.
[¶17] Driver argues the district court erred in denying his motion for judgment
of acquittal because there was insufficient evidence to sustain his convictions.
Viewing the evidence in the light most favorable to the verdict, we conclude
there is substantial evidence to support his convictions. We summarily affirm
under N.D.R.App.P. 35.1(a)(3).
IV
[¶18] The order denying Driver’s motions for judgment of acquittal and for a
new trial are affirmed.
[¶19] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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