IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2025 ND 3
State of North Dakota, Plaintiff and Appellee
v.
Jason Thompson, Defendant and Appellant
No. 20240117
Appeal from the District Court of Morton County, South Central Judicial District,
the Honorable Bonnie L. Storbakken, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Joshua D. Breeze, Assistant State’s Attorney, Mandan, ND, for plaintiff and
appellee.
James R. Loraas, Bismarck, ND, for defendant and appellant.
State v. Thompson
No. 20240117
McEvers, Justice.
[¶1] Jason Thompson appeals from a criminal judgment entered after a jury
found him guilty of two counts of terrorizing, one count of criminal trespass, and
one count of disorderly conduct. Thompson argues the district court erred in
admitting video evidence, limiting his opportunity to cross examine the victims,
and the evidence was insufficient to support the convictions. We affirm.
I
[¶2] On November 17, 2023, Thompson was charged with two counts of
terrorizing, one count of criminal trespass, second or subsequent offense, and
one count of disorderly conduct stemming from his presence and behavior at
two bars in Mandan.
[¶3] A one-day jury trial was held on April 9, 2024. The morning of trial and
prior to jury selection, the State indicated its intent to use snippets of an officer’s
body camera footage as evidence at trial to show what “Mr. Thompson’s intent
was at the time of the offense.” Thompson objected to the use of the evidence,
arguing the video snippets depict what happened “after the alleged event,”
further arguing the evidence was irrelevant under N.D.R.Ev. 401, prejudicial
under Rule 403, a violation of Rule 404’s character evidence prohibition, and
hearsay. The district court reviewed the snippets and overruled Thompson’s
objection indicating the video snippets were relevant and were not unfairly
prejudicial. During trial, the State offered the video snippets into evidence, and
Thompson renewed his objection. The court overruled the objection and
admitted the video evidence. The jury found Thompson guilty of all four counts.
Thompson timely appealed.
II
[¶4] Thompson argues the district court erred in admitting the video evidence
under N.D.R.Ev. 403 because the evidence was prejudicial and likely to confuse
the jurors. Thompson further argues that the body camera footage gave the “false
1
impression” that he could be found guilty for prior alleged acts of entering
Michael Thompson’s bar, the Old Town Tavern, when the video recording shows
him outside Vicky’s Sports Bar, a block away from the Old Town Tavern. He
argues these other acts are evidence of proclivity that should have been excluded
under N.D.R.Ev. 404.
[¶5] We review a district court’s evidentiary ruling under an abuse of
discretion standard. State v. Villazana, 2024 ND 211, ¶ 9,
14 N.W.3d 76. “A trial
court abuses its discretion in evidentiary rulings when it acts arbitrarily,
capriciously, or unreasonably or if it misinterprets or misapplies the law.”
Id.
“The Court applies this deferential standard of review ‘to provide the trial courts
with greater control in the admissibility of evidence.’”
Id. (quoting State v.
Alvarado,
2008 ND 203, ¶ 9,
757 N.W.2d 570).
[¶6] Prior to trial, the State declared that it intended to offer portions of an
officer’s body camera footage as evidence during trial to show Thompson’s
intent. Thompson and the district court had the following discussion:
THE COURT: . . . Mr. Loraas, are you objecting to the entire
video?
MR. LORAAS: Yes, Your Honor. Again, the videos are after
the alleged event. There’s no charge that is -- arises from the conduct
--
THE COURT: Okay.
MR. LORAAS: -- after the police arrived. So we argue it’s
irrelevant under 401. It’s also prejudicial under 403. Also under 404.
Much of the material deals with allegations of prior trespass cases
and any mention of that, of course, would be a violation of 404,
character evidence prohibition.
So we would object, Your Honor, and we think that it’s also
unduly -- it’s unduly burdensome or it’s, as far as the -- it takes up
the Court’s time so that’s another concern we have.
....
MR. LORAAS: Well, the -- first of all, to emphasize, again,
under 403, my client’s temperament was affected by what had
happened. And I’m concerned that his temper, his angry temper at
the time will be used to unduly influence the jury. So that’s a
paramount concern here.
2
. . . [W]e would ask the Court to balance the unduly prejudicial
effect of it and exclude it. Exclude all of the videos they’re trying to
get in.
....
THE COURT: And, Mr. Loraas, you have reviewed the
sections [of the videos] that Mr. Breeze intends on utilizing?
MR. LORAAS: Yes, Your Honor, I have. I’ve reviewed the
videos. These snippets, I would appreciate it if he’d play -- showed
them to me on the side. But our objection stands. They are highly
prejudicial --
THE COURT: Okay.
MR. LORAAS: -- the videos that I’ve looked at, all of them.
....
THE COURT: . . . And, Mr. Loraas, your objection to both is as
to prejudice?
MR. LORAAS: Yes, Your Honor.
THE COURT: And that was because of your client’s anger?
MR. LORAAS: Well, the -- the anger and the profanity may be
prejudicial, we expect --
THE COURT: Okay.
MR. LORAAS: -- to the jury.
THE COURT: All right. And your other objection?
MR. LORAAS: That it’s -- there’s a mention of the -- that he
has been trespassed, but there’s no proof of that. It’s -- and so it’s
basically a hearsay statement by the officer saying that to him. So we
object on that grounds also.
....
THE COURT: . . . All right. The Court’s going to take it under
advisement. When I come back in, we won’t have the jury seated
yet. We’ll address this back on the record before we start. Okay.
....
THE COURT: As for the video, the Court does not find it to be
unfairly prejudicial. The anger, I understand, there is anger there
and that’s -- it’s definitely noticeable but it’s not unfairly prejudicial.
I do find the content of the video to be relevant and it’s not hearsay.
So your objections to the introduction of the video are
overruled. Okay.
During trial, the video snippets were offered as evidence, Thompson renewed
his objection, and the objection was overruled by the court.
3
A
[¶7] Thompson argues the district court erred in admitting the video evidence
because the evidence should have been excluded under N.D.R.Ev. 403 as being
unfairly prejudicial. He argues the evidence was prejudicial because “the
admission of the evidence tempted the jury to decide the case on an improper
basis,” and the court “acted unreasonably in failing to properly balance the
probative value of that evidence against the danger of unfair prejudice to the
defendant,” and “acted unreasonably in failing to place on the record its reasons
for admitting the evidence to show that it complied with . . . [Rule] 403.”
[¶8] A district court may exclude otherwise relevant evidence if its probative
value is substantially outweighed by the danger of unfair prejudice or confusing
the issues. N.D.R.Ev. 403(a)-(b). A district court’s power to exclude relevant
evidence should be exercised sparingly. State v. Bell, 2002 ND 130, ¶ 14,
649
N.W.2d 243. District courts should “give the evidence its maximum reasonable
probative force and its minimum reasonable prejudicial value” when
determining whether to exclude evidence under Rule 403. State v. Thomas,
2022
ND 126, ¶ 14,
975 N.W.2d 562. Rule 403 applies to unfairly prejudicial evidence,
not merely prejudicial evidence.
Id. “[T]he burden is on the objecting party to
show that relevant evidence should be excluded under Rule 403.” Bell, at ¶ 14.
[¶9] Thompson argued to the district court that the video snippets were
irrelevant and “highly prejudicial.” Thompson has not challenged on appeal that
the video evidence was relevant. When deciding whether to exclude the video
evidence under Rule 403, the court considered Thompson’s arguments, reviewed
the two offered body camera snippets, and determined the evidence was relevant
and not unfairly prejudicial. We conclude Thompson has failed to show how the
introduction of the video evidence was unfairly prejudicial. Based on our review
of the record, the video evidence was probative of Thompson’s intent and its
admission was not unfairly prejudicial. Therefore, we conclude the court did not
abuse its discretion by admitting the body camera video evidence under Rule
403. See Bell,
2002 ND 130, ¶¶ 15-16 (concluding the district court did not abuse
its discretion in admitting evidence because it was probative of the defendant’s
charged crime, adequate foundation for the officers’ testimony about the
4
evidence was laid, the evidence was relevant, and the defendant was not unfairly
prejudiced by the admission of the evidence).
B
[¶10] Turning to Thompson’s arguments regarding Rule 404, we first consider
whether his argument was preserved. When Thompson argued the video
evidence’s exclusion under Rule 404 to the district court, it was limited to an
argument that a prior trespass was discussed in the video. He now argues that
his acts or statements shown on video would be used against him for one of the
terrorizing charges.
[¶11] “We have long held that issues not raised or considered in the district court
cannot be raised for the first time on appeal.” State v. Powley, 2020 ND 124, ¶ 5,
943 N.W.2d 766 (quoting State v. Smith,
2019 ND 239, ¶ 12,
934 N.W.2d 1). We
may address newly raised issues, however, if the issue rises to the level of
obvious error. See State v. Dockter,
2019 ND 203, ¶¶ 8-9,
932 N.W.2d 98.
Thompson did not argue obvious error to this Court. 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. Thomas,
2020 ND 30,
¶ 14,
938 N.W.2d 897; see State v. Rourke,
2017 ND 102, ¶ 8,
893 N.W.2d 176 (“We
need not exercise our discretion to notice obvious error in an appeal when the
defendant does not raise the issue of obvious error, because it is the defendant’s
burden to show an obvious error that effects a substantial right.”); State v. Sah,
2020 ND 38, ¶ 9,
938 N.W.2d 912 (declining to address obvious error when
appellant did not argue it); see also State v. Hansford,
2019 ND 52, ¶ 29,
923 N.W.2d
113 (“We only decide issues that have been thoroughly briefed and argued.”).
We decline to address Thompson’s argument under Rule 404.
III
[¶12] Thompson argues the district court erred by foreclosing his opportunity
to cross-examine the victims for bias, prejudice, and interest.
[¶13] “The right to cross-examine is absolute and the denial of the right as to
material evidence is prejudicial error requiring a new trial.” State v. Bartkowski,
5
290 N.W.2d 218, 219 (N.D. 1980) (cleaned up). “[T]he complete denial of cross-examination would be constitutional error of the first magnitude.”
Id. (cleaned
up). However, the scope of cross-examination is within the district court’s
discretion, the propriety of which will not be disturbed on appeal absent an
abuse of discretion. State v. Ness,
2009 ND 182, ¶ 21,
774 N.W.2d 254. Reasonable
limits may be placed on a defendant’s cross-examination, including the exclusion
of irrelevant evidence. Id. at ¶ 20. Evidence is relevant if “it has any tendency to
make a fact more or less probable than it would be without the evidence; and the
fact is of consequence in determining the action.” N.D.R.Ev. 401(a)-(b). “Whether
evidence is relevant or not depends upon whether it tends to prove or disprove
a fact in issue.” Ness, at ¶ 22. Irrelevant evidence is inadmissible. N.D.R.Ev. 402.
[¶14] Thompson argues Cherie Mastel and Michael Thompson were “biased in
their concerns about the effect of Defendant Jason Thompson’s presence on their
business.” Thompson references the following testimony from Mastel in support
of his argument:
Q. You expressed dissatisfaction to Officer Czapiewski
because Mr. Jason Thompson came onto your property; correct?
A. I’m sorry, I don’t understand the question.
Q. You expressed dissatisfaction because Mr. Jason
Thompson came on your property, the property where you were
working? When the officers arrived.
A. That they came in that -- I was satisfied with the cops
being there.
Q. Yes, but you expressed dissatisfaction with Mr.
Thompson being there, Mr. Jason Thompson; correct?
A. No, I don’t want him to be there. No.
Q. So you expressed dissatisfaction; correct?
A. Not to him.
Q. No, but to the officer?
A. Well, yes. I told them everything that had happened.
Q. And that you were not happy that he was there; correct?
That you were dissatisfied with him being there?
MR. BREEZE: Your Honor, I think this has been asked and
answered.
THE COURT: It has been.
6
MR. BREEZE: Relevance as well.
THE COURT: It has been, Mr. Loraas; you need to move on,
sir.
....
Q. Mr. Thompson’s hair was long on that day; correct?
A. Yes.
Q. And his beard was scraggly; correct?
MR. BREEZE: Your Honor, objection. Relevance.
THE COURT: I don’t understand the relevance either, Mr.
Loraas.
MR. LORAAS: Thank you. I can tie it up, Your Honor.
THE COURT: Okay.
BY MR. LORAAS:
Q. So you were annoyed by Mr. -- if I may, Your Honor.
You were annoyed by mister --
MR. BREEZE: Your Honor, objection. Relevance. This goes to
prior questioning that’s already been asked as well.
THE COURT: Yeah. Mr. Loraas, that’s not relevant.
MR. LORAAS: Well, Your Honor --
THE COURT: The length of his hair has nothing to do with --
MR. LORAAS: -- I would argue that -- I was about to establish
that she was annoyed by his presence. And I would argue that this
goes to her bias or prejudice in the manner in which she’s testifying.
So I believe I have a right to inquire about this on cross.
THE COURT: Mr. Loraas, objection is sustained.
BY MR. LORAAS:
Q. Do you recall expressing dissatisfaction?
MR. BREEZE: Your Honor, objection.
MR. LORAAS: What? We can’t ask questions?
THE COURT: Mr. Loraas, you have asked that question three
times, and she’s answered it to the best of her ability. You need to
move on. Objection is sustained.
MR. LORAAS: Thank you, Your Honor.
BY MR. LORAAS:
Q. At the time that you spoke to law enforcement, were
you concerned about the effect of Mr. Jason Thompson’s presence
on your business?
A. He’s not allowed to be in our business.
Q. Okay. So were you concerned of the effect of his
presence there on your business?
7
A. Yes.
[¶15] Thompson references the following testimony from Michael Thompson in
support of his argument that he was foreclosed from asking Michael Thompson
about his alleged bias, prejudice, and interest:
Q. You recall telling Lieutenant Czapiewski that you were
dissatisfied because he kept coming onto your property?
MR. BREEZE: Objection, Your Honor. Relevance.
THE COURT: Sustained. I don’t find that relevant.
BY MR. LORAAS:
Q. Mr. Thompson’s presence angers you; correct?
MR. BREEZE: Objection, Your Honor. Relevance.
THE COURT: Mr. Loraas, do you want to respond to the
objection?
MR. LORAAS: I’m asking if his presence at his bar made him
angry. If that was his mental state when dealing with Mr. Thompson
there.
THE COURT: That’s irrelevant. Sustained.
[¶16] The district court did not abuse its discretion in limiting Thompson’s
cross-examination of the victims. Thompson argues he was foreclosed from
showing how the victims’ concerns about his presence at each of their respective
bars caused their testimony to be biased. However, Thompson was able to
accomplish his goal when cross-examining Mastel when she responded “yes”
after being asked if she was “concerned of the effect of [Thompson’s] presence
there on [her] business[.]” Mastel’s answer to Thompson’s query allowed the jury
to draw the rational inference that her testimony may be biased. The court did
not completely deny Thompson’s opportunity to cross-examine Mastel; rather,
the court merely limited the scope after Thompson asked numerous questions
attempting to convey the same message, which the witness had already
answered to the best of her ability. Arguably, Thompson was able to elicit the
exact testimony he wanted—that Mastel did not want Thompson at Vicky’s
Sports Bar. Questions regarding Thompson’s appearance did not implicate facts
of consequence in determining the action and were therefore irrelevant. We
conclude the court did not abuse its discretion by limiting Thompson’s crossexaminations.
8
IV
[¶17] Thompson argues insufficient evidence exists supporting the verdicts.
After reviewing the record, we conclude substantial evidence supports the
verdict. We summarily affirm under N.D.R.App.P. 35.1(a)(3).
V
[¶18] We do not address other issues raised, because they are either
inadequately briefed, unnecessary to the decision, or are without merit. The
criminal judgment is affirmed.
[¶19] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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