State v. Leingang

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                  Plaintiff and Appellee
     v.
Jason Allen Leingang,                                Defendant and Appellant

                                 No. 20240243

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bobbi B. Weiler, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Justin J. Schwarz, Assistant State’s Attorney, Bismarck, ND, for plaintiff and
appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
                                State v. Leingang
                                  No. 20240243

Jensen, Chief Justice.

[¶1] Jason Allen Leingang appeals from a criminal judgment of theft of
property, a class A felony, in violation of N.D.C.C. § 12.1-23-02(1). He argues the
district court erred in admitting two video clips from a surveillance video and
testimony about the entire surveillance video. We affirm.

                                        I

[¶2] In October 2023, a truck was stolen from a shop in Burleigh County.
Images of an individual were captured on the shop’s surveillance video and
minutes later, the truck was driven away without permission. The truck was
found engulfed in flames with a rag in the fuel port the following morning.
Leingang was observed shortly after the discovery of the truck wearing clothing
identical to the individual in the surveillance video.

[¶3] The shop’s video system automatically deletes recordings after 30 days
and the original surveillance video was neither received by law enforcement nor
preserved by the shop owner. The only preserved footage consisted of two brief
video clips—one showing an individual walking through the parking lot, and
another showing the truck leaving.

[¶4] Leingang was charged with theft over $50,000, a class A felony, in violation
of N.D.C.C. § 12.1-23-02(1). In December 2023, a contested preliminary hearing
was held during which an officer of the Bismarck Police Department testified
about the original surveillance video. He recalled that the video showed
Leingang walk towards the truck, the headlights of the truck turn on, and the
truck then drove away.

[¶5] In February 2024, Leingang filed a motion in limine to suppress testimony
related to the shop’s surveillance video without challenging the authenticity of
the video clips. The district court denied the motion. The jury trial began in May
2024 during which Leingang again objected to the admission of testimony about
the surveillance video, without challenging the authenticity of the video clips.


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The objection was overruled, and the two brief video clips from the surveillance
video were entered into evidence and viewed by the jury.

[¶6] The jury found Leingang guilty of theft of property, a class A felony, in
violation of N.D.C.C. § 12.1-23-02(1). Leingang asserts in this appeal that the
district court erred in admitting the two video clips and allowing testimony
regarding the entire video.

                                        II

[¶7] Our standard of review for a district court’s evidentiary ruling is well
established:

            We review a district court’s evidentiary ruling under an abuse
      of discretion standard. A trial court abuses its discretion in
      evidentiary rulings when it acts arbitrarily, capriciously, or
      unreasonably or if it misinterprets or misapplies the law. The Court
      applies this deferential standard of review to provide the trial courts
      with greater control in the admissibility of evidence.

State v. Thompson, 

, 16 N.W.3d 204 (cleaned up).

                                        III

[¶8] Leingang argues the district court erred in admitting two video clips from
the surveillance video.

[¶9] Leingang failed to make an objection, providing a response of “no
objection” when the two video clips were introduced at trial. “[I]ssues not raised
at trial will not be addressed on appeal unless the alleged error rises to the level
of obvious error under N.D.R.Crim.P. 52(b).” State v. Pemberton, 

, 

 (quoting State v. Lott, 

, ¶ 8, 

). This
Court’s obvious error standard is well established:

      To establish obvious error, the defendant has the burden to
      demonstrate plain error which affected his substantial rights. To
      constitute obvious error, the error must be a clear deviation from an
      applicable legal rule under current law. There is no obvious error
      when an applicable rule of law is not clearly established.

                                         2


 (quoting Lott, ¶ 8). However, if a party fails to argue obvious error, it is
difficult for this Court to conclude this burden has been satisfied and this Court
need not address it further. State v. Thomas, 

, 

.

[¶10] Leingang failed to preserve the issue for review by this Court. He has not
argued the admission of the video clips was obvious error and we decline to
further address this issue.

                                        IV

[¶11] Leingang argues the district court erred in admitting testimony about the
entire surveillance video because it violates Rule 1002 of the North Dakota Rules
of Evidence.

[¶12] Rule 1002 generally prohibits the testimony regarding the content of the
video. However, Rule 1004(a) as it relates to admissibility of “other evidence” of
the video provides exceptions to Rule 1002. See N.D.R.Ev. 1004(a) (“An original
is not required, and other evidence of the content of a writing, recording, or
photograph is admissible if: (a) all the originals are lost or destroyed, and not by
the proponent acting in bad faith[.]”).

[¶13] The district court, in admitting the testimony regarding what had been
viewed in the video, found that “Mr. Leingang does not allege any discovery
violation on behalf of the State, a Brady v. Maryland violation, or allege any bad
faith on the part of the State.” The court also found, “[t]he full-length video was
lost when Mr. Schauer was attempting to send it to law enforcement through an
email link and an additional copy of the video was unable to be obtained because
the video surveillance system had overwritten or deleted the video.” Although
the court did not expressly state the findings with regard to determining an
exception to Rule 1002, the court’s reasoning is consistent with, and satisfies, the
requirements of N.D.R.Ev. 1004(a). We conclude the court did not abuse its
discretion in admitting testimony about the entire surveillance video.




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                                      V

[¶14] Leingang failed to preserve a challenge to the admission of the two video
clips and has not argued obvious error on appeal. The district court properly
admitted the testimony regarding the entire surveillance video. We affirm the
criminal judgment.

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




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