State v. Hendricks

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                 

State of North Dakota,                                   Plaintiff and Appellee
       v.
Winston Leon Hendricks,                              Defendant and Appellant



                                 No. 20240304

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

AFFIRMED.

Opinion of the Court by Bahr, Justice.

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

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant; on brief.
                               State v. Hendricks
                                  No. 20240304

Bahr, Justice.

[¶1] Winston Hendricks appeals from a criminal judgment entered after a jury
found him guilty of two counts of child neglect. He argues the district court erred
by finding sufficient evidence existed to convict him and abused its discretion
by allowing the admission of recordings of jail calls. We affirm the judgment.

                                        I

[¶2] In June 2024, the State charged Hendricks with attempted gross sexual
imposition, gross sexual imposition, two counts of child neglect, and indecent
exposure. In September and October 2024, the district court held a four-day jury
trial. After the close of the State’s case, and again after the defense closed,
Hendricks moved for acquittal under N.D.R.Crim.P. 29. The court denied both
motions. The jury found Hendricks guilty on the two counts of child neglect, and
the court entered judgment of acquittal on the remaining charges. The court
sentenced Hendricks on the two counts of child neglect and entered judgment.

                                        II

[¶3] Hendricks argues the district court erred by finding sufficient evidence
existed to convict him of child neglect. Specifically, Hendricks argues the
conduct the State alleges he committed does not meet the definition of “child
neglect” under N.D.C.C. § 14-09-22.1. He acknowledges he did not make this
argument in his motions under N.D.R.Crim.P. 29, but requests this Court review
for obvious error.

                                        A

[¶4] Hendricks’s motions for judgment of acquittal were on different grounds
from his argument asserted on appeal. “If a motion for judgment of acquittal was
made at trial on specified grounds and those grounds did not include the claim
on appeal, the defendant does not preserve that issue for review.” State v. Adams,

, ¶ 25, 

; see also State v. Smith, 

, 9


    

 (indicating when a Rule 29 motion is made at trial, “the specific
grounds argued before the district court are the only arguments preserved for
appeal”). “However, it does not foreclose the exercise of our discretion to review
forfeited errors under the obvious error standard as provided by N.D.R.Crim.P.
52(b).” Adams, ¶ 25; see also State v. Dahl, 

, 

(explaining the statement—“if a motion for judgment of acquittal was made at
trial on specified grounds and those grounds did not include the claim on appeal,
the defendant does not preserve that issue for review”—“should not be read to
foreclose exercise of our discretion to review forfeited errors under the obvious
error standard”).

[¶5] “Obvious error review consists of determining whether (1) there was an
error, (2) that was plain, and (3) that affected a party’s substantial rights.” State
v. Watts, 

, 

 (quoting State v. Gaddie, 

, 

). The defendant must demonstrate the error is a “clear or
obvious deviation from an applicable legal rule.” 

 (cleaned up). This Court
may rectify obvious error, but “will only do so when the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.” 

 (cleaned
up).

                                         B

[¶6] Generally, “[t]o 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.” Watts, 

 (quoting State v. Haney, 

, 

). This
Court assumes “the jury believed all evidence supporting a guilty verdict and
disbelieved contrary evidence” and “does not reweigh conflicting evidence or
judge the witnesses’ credibility.” 

[¶7] Under N.D.C.C. § 14-09-22.1, the offense of “neglect of child” is defined,
in relevant part, as:

            A parent, adult family or household member, guardian, or
      other custodian of any child, who willfully commits any of the
      following offenses is guilty of a class C felony:


                                         2
            1.    Fails to provide proper parental care or control,
                  subsistence, education as required by law, or other care
                  or control necessary for the child’s physical, mental, or
                  emotional health, or morals.

(Emphasis added.)

[¶8] The preliminary instructions explained the State alleged Hendricks
committed the child neglect offenses by “forcing Jane Doe to consume quantities
of Nyquil, alcohol, and/or marijuana/THC gummies[,]” and “by forcing John
Doe to consume a quantity of Nyquil.” The jury instructions provided the
offenses’ essential elements:

           The State’s burden of proof is satisfied if the evidence shows,
      beyond a reasonable doubt, all of the following essential elements:
           1. On, about, or between October 26, 2023, and March 3, 2024,
           in Williams County, North Dakota;
           2. The Defendant, Winston Hendricks, was the parent of
           [redacted], a minor child; and
           3. Willfully failed to provide proper parental care or control,
           subsistence, education as required by law, or other care or
           control necessary for the child’s physical, mental, or
           emotional health, or morals.

(Emphasis added.)

[¶9] Hendricks, asserting child neglect “criminalizes failures to provide
necessary care, focusing on omissions rather than affirmative actions,” argues
his conduct was not child neglect because his conduct was “affirmative
conduct.” Hendricks asserts State v. Gardner, 

, 

,
supports his position. In Gardner, we explained:

      [I]n 2015, the Legislature separated the offenses of child abuse from
      neglect of a child. In doing so, the Legislature separated conduct
      resulting in an offense of child abuse from conduct resulting in an
      offense of child neglect. What remains under N.D.C.C. § 14-09-22 is
      conduct resulting in the offense of child abuse, which includes two
      alternative means of committing the crime: (1) a custodian inflicting



                                       3
      upon the child mental or bodily injury or (2) a custodian allowing
      mental or bodily injury to be inflicted upon the child.

Id. ¶ 17 (emphasis added); see also 2015 N.D. Sess. Laws ch. 127, § 3 (separating
offenses of child abuse from neglect of a child, moving child neglect from
N.D.C.C. § 14-09-22 to N.D.C.C. § 14-09-22.1). Hendricks argues the legislature’s
separation of the offenses of child abuse under N.D.C.C. § 14-09-22 and child
neglect under N.D.C.C. § 14-09-22.1 “demonstrates clear legislative intent to
distinguish between active harmful conduct (abuse) and failures to fulfill
parental obligations (neglect).”

[¶10] Hendricks asserts the evidence at trial “exclusively demonstrated
affirmative conduct through the active administration of Nyquil to the children,”
rather than a failure to provide proper care. He asserts the State focused on
testimony Hendricks was “forcing the kids to take exorbitant amounts of
Nyquil,” which, if criminal, would properly fall under child abuse rather than
child neglect. He asserts the State presented “no evidence” of omissions or
failures to provide care. Thus, he contends the jury’s verdict was based on a
“fundamental misapplication” of child neglect under N.D.C.C. § 14-09-22.1 to
conduct that would be properly charged as child abuse under N.D.C.C. § 14-09-
22.

[¶11] Hendricks misconstrues the legislature’s intent in separating the offenses
of abuse of child and neglect of child. Both offenses have the same culpability
requirement—“willfully.” N.D.C.C. §§ 14-09-22(1), 14-09-22.1. The term
“willfully” means to engage in conduct “intentionally, knowingly, or
recklessly.” N.D.C.C. § 12.1-02-02(1)(e). By this definition, a person who fails to
provide proper parental care, and “it is his purpose to do so,” can have the
required culpability for child neglect. N.D.C.C. § 12.1-02-02(1)(a) (defining
“intentionally”). Moreover, a person who fails to provide proper parental care
“in conscious and clearly unjustifiable disregard” of the risks, “such disregard
involving a gross deviation from acceptable standards of conduct,” can also have
the required culpability for child neglect. N.D.C.C. § 12.1-02-02(1)(c) (defining
“recklessly”). Both “intentional” and “reckless” culpabilities may include active
conduct. Accordingly, a “willful” failure to provide proper parental care is not


                                        4
limited to omissions or passive conduct. Rather, it may encompass the deliberate
choice to act or refrain from acting.

[¶12] The distinction between the offenses of abuse of child and neglect of child
is not the culpability requirement; it is the infliction of injury required for the
offense of abuse of child. As explained in Gardner, there are two alternative
means of committing child abuse: “(1) a custodian inflicting upon the child mental
or bodily injury or (2) a custodian allowing mental or bodily injury to be inflicted upon
the child.” Gardner, 

 (emphasis added). Under N.D.C.C. § 14-
09-22(1), the offense of abuse of child requires the offender “willfully” inflict or
allow to be inflicted upon the child “mental injury or bodily injury, substantial
bodily injury, or serious bodily injury[.]” (Emphasis added.) The offense of
neglect of child under N.D.C.C. § 14-09-22.1 does not require “injury” be inflicted
on the child. Thus, the legislature separated the offenses of child abuse and child
neglect, not based on action or inaction, and not based on different culpability
requirements, but based on whether mental or bodily injury is inflicted on the
child.

[¶13] Based on the evidence, the jury could have found Hendricks forced Jane
Doe to consume quantities of Nyquil or marijuana/THC gummies, and forced
John Doe to consume a quantity of Nyquil. The jury could have further found
Hendricks intentionally, knowingly, or recklessly failed to provide proper
parental care by forcing the children to consume quantities of Nyquil or
marijuana/THC gummies. We conclude the evidence was sufficient to support a
conviction of child neglect under N.D.C.C. § 14-09-22.1, and that the district
court did not err in denying Hendricks’s Rule 29 motions for acquittal.

                                          III

[¶14] Hendricks argues the district court abused its discretion by allowing the
admission of recordings of jail calls. He claims the State failed to properly
authenticate the recordings under N.D.R.Ev. 901(a) and failed to establish a
hearsay exception.




                                           5
                                         A

[¶15] Generally, “[t]he district court has broad discretion in deciding whether to
admit or exclude evidence, and the court’s determination will not be reversed on
appeal absent an abuse of discretion.” State v. Burton, 

, 

. A court abuses its discretion in evidentiary rulings when it acts
arbitrarily, capriciously, or unreasonably, or it misinterprets or misapplies the
law. 

                                         B

[¶16] Rule 901, N.D.R.Ev., provides methods for the authentication of evidence.
Burton, 

. Rule 901(a) reads, “To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.” Rule 901(a) “treats authentication as a matter of conditional
relevance to be decided under N.D.R.Ev. 104(b).” Est. of Beach, 

,

. “If the court decides sufficient proof has been introduced to
allow a finding the document is authentic, Rule 901(a) is satisfied and the
question of weight is for the trier of fact.” 

 As the explanatory note to Rule 901
explains, “Authentication is merely a preliminary question of conditional
relevancy and, as such, is to be determined according to the standards and
requirements of N.D.R.Ev. Rule 104(b). A determination that evidence is
authentic does not render it admissible. It may be hearsay, e.g., and excluded on
that ground.”

[¶17] “A party can authenticate or identify an item of evidence through multiple
means. N.D.R.Ev. 901(b). Rule 901(b) provides some examples and ‘places no
limitations upon the number of methods of proving authentication.’” Burton,

 (quoting Meiers v. N.D. Dep’t of Transp., 

, 

); see, e.g., N.D.R.Ev. 901(b)(5)-(6) (listing as examples “[a]n opinion
identifying a person’s voice” and “evidence that a call was made to the number
assigned” to “a particular person”); N.D.R.Ev. 901(b)(9) (listing as an example
“[e]vidence describing a process or system and showing that it produces an
accurate result”). “[T]he proponent of offered evidence need not rule out all


                                         6
possibilities inconsistent with authenticity or conclusively prove that evidence
is what it purports to be; rather, the proponent must provide proof sufficient for
a reasonable juror to find the evidence is what it purports to be.” Burton, ¶ 21
(quoting State v. Thompson, 

, 

).

[¶18] At trial, during a police officer’s testimony, the State offered into evidence
recordings of jail calls Hendricks made to his son. The officer testified he was a
sergeant with the Williston Police Department, had just under ten years of law
enforcement experience, was part of the street crimes unit that tracked down and
arrested Hendricks, and was familiar with the facts of the case. After the officer
identified Hendricks, the State elicited the following testimony:

            Q. Okay. Now prior to the Defendant being tracked down by
      the street crimes unit, including yourself, are you aware of some
      non-attorney jail calls the Defendant placed to his son, Dustin
      Hendricks?
            A. Yes.
            Q. And prior to today’s—giving your testimony today, had
      you had an opportunity to listen to those jail calls?
            A. Yes; I did.
            Q. Would you recognize those jail calls if you were to hear
      them again?
            A. Yes, I would.
            Q. Would you recognize the voices on those calls if you were
      to hear them again?
            A. Yes.
            Q. One of the voices on those calls, is that the voice of the
      Defendant?
            A. Yes.
            Q. Are those calls a fair and accurate representation of the
      phone calls that he placed to his son, Dustin Hendricks, while he
      was trying to evade capture?
            A. Yes.

At this point, the State offered the recordings into evidence. Hendricks
objected, and the State provided the following response:

            MR. WILLIAMS: Your Honor, the proper foundation has
      already been laid as it relates to these audio calls. Jail calls—it’s


                                         7
      undisputed that non-attorney jail phone calls are monitored by the
      jail on a regular basis, and that is for purposes of not only safety at
      the jail and the other inmates, as well as the staff at the jail, but they
      are also monitored for quality control purposes.
             The rule does not require—no evidentiary rule or in criminal
      procedure requires that the actual custodian who maintains the calls
      at the jail has to be the person to authenticate the voices that are
      heard on the calls.
             [The officer] has already identified he works in law
      enforcement. He was part of the team that tracked down and
      arrested the Defendant, and he has listened to the calls prior to his
      testimony today.

The district court overruled the objection, stating it is “satisfied there has been a
sufficient foundation made[.]”

[¶19] The officer testified about his law enforcement position and years of law
enforcement experience. He explained his involvement in the case, that he was
aware of the recordings, that he previously listened to the recordings, that he
would recognize the recordings if he heard them again, and that he recognized
the voices on the recordings. The officer identified one of the voices on the
recordings as Hendricks’s voice. He further testified the recordings are a “fair
and accurate representation of the phone calls [Hendricks] placed to his son[.]”
After Hendricks objected to the admission of the evidence, the State argued
“proper foundation has already been laid” for the recordings because the calls
were “monitored by the jail on a regular basis” and the officer “identified he
works in law enforcement.” Although the State could have elicited further
testimony from the officer supporting his testimony, rather than merely arguing
to the district court what was purportedly “undisputed” about the jail’s
monitoring of non-attorney jail phone calls, we conclude the State offered
sufficient evidence for a reasonable juror to find the jail call recordings are what
the State claims them to be, satisfying Rule 901. See Burton, 

(explaining circumstantial evidence coupled with officer’s testimony sufficiently
authenticated the 911 call recording); 31 Wright & Miller’s Federal Practice &
Procedure § 7110 (2d ed.) (May 2025 Update) (“Most courts favor a more flexible
approach, holding that a sound recording may be admitted where the evidence,
taken as a whole, suggests that the recording is authentic.”); 5 Weinstein’s Federal

                                          8
Evidence § 901.07(1)(c) (2d ed. 2025) (“Events prior or subsequent to a telephone
conversation may sufficiently authenticate the call, with or without any further
identification of the speakers.”); 5 Mueller & Kirkpatrick’s Federal Evidence § 9:14
(4th ed.) (July 2025 Update) (“[C]ourts may find authentication on the basis of
testimony by a person familiar with the conversation being recorded who attests
to the accuracy of the recording. The establishment of the foundation is also
sometimes aided by a presumption of official regularity.”).

                                          C

[¶20] Hendricks argues on appeal the recordings are hearsay and the State failed
to establish a hearsay exception. Hendricks acknowledges he did not object to
admission of the recordings on hearsay grounds. He argues the admission of the
recordings constitutes obvious error requiring reversal. The State argues
Hendricks’s statements are an opposing party’s statement under N.D.R.Ev.
801(d)(2) and, thus, not hearsay.

[¶21] We recently discussed “the roles of the district court and the parties before
the court” when a party does not object to evidence. State v. Kennedy, 

. We explained it is the responsibility of the party, not the district court,
to object to evidence the party believes is inadmissible. Id. ¶ 16. We further
explained that a party’s failure to object to the admission of evidence precludes
the opposing party “from arguing the evidence’s admissibility and the court
from conducting the analysis required” under the applicable rule of evidence. Id.
A court’s exclusion of evidence without objection could “usurp the role of
counsel and hinder counsel’s trial strategy.” Id. ¶ 18. “A party may intentionally
not object to potentially inadmissible evidence for numerous strategic reasons.
The court ruling on the admissibility of evidence when not invited to by a party
can disrupt a party’s trial presentation and sabotage a party’s trial strategy.” Id.
(cleaned up). Finally, we explained that “[t]here may be occasions when a party
introduces evidence that is so prejudicial,” such as when the admission of the
evidence impacts a party’s constitutional right, that “the court should intervene
despite the lack of an objection.” Id.




                                          9
[¶22] Based on the specific facts of this case, including the nature of the evidence
at issue, the context in which it was introduced, and the potential purposes for
which it was introduced, we conclude Hendricks has not demonstrated the
district court erred by not excluding the recordings on grounds of hearsay when
Hendricks did not object to their admission on that ground.

[¶23] We conclude the district court did not abuse its discretion by admitting
the recordings of the jail calls.

                                        IV

[¶24] We affirm the criminal judgment.

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




                                        10