State v. Davis

                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                                  

State of North Dakota,                                   Plaintiff and Appellee
      v.
Delon Evan Davis,                                     Defendant and Appellant



                                 No. 20250311

Appeal from the District Court of Ward County, North Central Judicial District,
the Honorable Douglas L. Mattson, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Tiffany M. Sorgen, Assistant State’s Attorney, Minot, N.D., for plaintiff and
appellee; on brief.

Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant; on brief.
                                State v. Davis
                                No. 20250311

Tufte, Justice.

[¶1] Delon Davis appeals from a criminal judgment entered after a jury
convicted him of murder, tampering with evidence, unlawful possession of a
firearm, and giving false information to law enforcement. On appeal, Davis
argues the district court violated N.D.R.Crim.P. 7(e) when it allowed the
amendment to Count 3 of the criminal information. He also argues the court
committed obvious error by admitting prejudicial testimony about his prior
conviction and probation status in violation of N.D.R.Ev. 403. We affirm the
judgment.

                                      I

[¶2] Mark Ramon McMillan was shot and killed in the basement of a
barbershop in Minot, North Dakota. McMillan had been living in one of several
rooms in the basement. Davis managed the shop and was also staying in the
basement. The Minot Police Department received a missing person report for
McMillan several days after the shooting.

[¶3] During the investigation into McMillan’s disappearance, police executed
a search warrant at the barbershop. While the search was being conducted, Davis
was taken into custody on an unrelated warrant. In the boiler room, officers
discovered a body wrapped in a deflated air mattress and bound with duct tape.
An autopsy determined the cause of death was two gunshot wounds to the torso.
After being informed of the discovery, Davis told investigators the body was
McMillan’s and claimed he had shot McMillan in self-defense.

[¶4] The prosecution filed a criminal information charging Davis with four
counts, including Count 3: Theft of Property—Firearm. In contemplation of a
plea agreement, the prosecution moved to amend Count 3 to Unlawful
Possession of a Firearm by a Felon. The district court granted the unopposed
motion and the prosecution filed an amended information. Two days later, at a
change of plea hearing, the court rejected the proposed plea agreement. The
amended information remained unchanged after the court’s rejection of the

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proposed plea agreement. The court held a preliminary hearing on amended
Count 3. Davis entered a plea of not guilty and indicated he wanted to proceed
to trial.

[¶5] At trial, the prosecution introduced evidence that Davis had been
convicted of a felony and that his probation supervision had terminated on
February 3, 2020—less than five years before the shooting—to prove the elements
of amended Count 3. The jury returned guilty verdicts on all counts. Davis timely
appealed.

                                        II

[¶6] Davis argues the district court erred by allowing the prosecution to
amend Count 3 of the criminal information contrary to the requirements of
N.D.R.Crim.P. 7(e). Although amendment of an information to charge a different
offense may constitute a misapplication of N.D.R.Crim.P. 7(e), State v. Pemberton,

, 

, Davis did not object to the amendment or
otherwise preserve the issue for appeal. An unpreserved error may be reviewed
on appeal only for obvious error. State v. Van Halsey, 

, 

; see also N.D.R.Crim.P. 52(b). This Court may decline to consider an argument
under obvious error review unless the appellant argues the issue under that
standard of review in the briefs. State v. Roller, 

, ¶ 20, 

;
Jung v. State, 

, ¶ 8, 

. Davis did not brief this issue under
the obvious error standard of review. We therefore decline to address it.

                                        III

[¶7] Davis argues that the district court committed obvious error by admitting
evidence of his prior conviction and probation status. He contends that the
introduction of this evidence violated evidentiary principles established by the
United States Supreme Court in Old Chief v. United States, 

 (1997).
Davis asserts that the admission created a significant risk the jury would convict
on the basis of his propensity to commit crimes rather than the specific
allegations in the current case.




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[¶8] In response, the prosecution argues that it introduced only the limited
information about Davis’s prior conviction and probation status necessary to
prove the elements of amended Count 3. The prosecution contends that Davis
misinterprets Old Chief because the holding applies only when a defendant
stipulates to the fact of a prior conviction, and here there was no stipulation.
Moreover, the basic fact that Davis was previously convicted of a felony does not
fully satisfy the elements of amended Count 3; the prosecution also had to prove
when Davis’s probation terminated.

[¶9] Because Davis did not object at trial to preserve the issue for appeal, he
argues this claim under the obvious error standard. Under that standard, Davis
must demonstrate: (1) error; (2) that is plain; and (3) that affects substantial
rights. State v. Kennedy, 

, 

. If the district court did
not commit error, then an obvious error claim fails at step one. State v. Aune, 

, 

.

[¶10] “This Court reviews a court’s evidentiary ruling for an abuse of
discretion.” Van Halsey, 

. In Van Halsey, this Court held that the
rule limiting evidence of prior convictions applies when the defendant stipulates
to the prior conviction. Id. ¶¶ 23-24 (interpreting Old Chief v. United States, 

 (1997)). When a defendant stipulates to a prior conviction, introducing
additional evidence concerning the conviction lacks any probative value and
necessarily fails the Rule 403 balancing test of probative value versus prejudicial
effect. Van Halsey, 

. In the absence of such a stipulation,
however, a court does not abuse its discretion by allowing admission of evidence
that the defendant has been convicted of a felony. Id. ¶ 24; see also Kennedy, 

 (holding that reviewing court may consider the nature,
context, and purpose of evidence when determining abuse of discretion).

[¶11] Here, the parties did not stipulate to Davis’s prior conviction. Evidence
about his prior conviction was relevant and probative because it was an element
of the offense charged in amended Count 3. Under N.D.C.C. § 62.1-02-01(1)(b),
the prosecution was required to prove Davis was a “person who has been
convicted anywhere of a felony . . . and the offense was committed . . . [within]
five years after the date of conviction or the date of release from incarceration,


                                         3
parole, or probation, whichever is latest.” Davis’s prior felony conviction and the
termination of his supervised probation less than five years before the shooting
were essential elements the prosecution had to prove beyond a reasonable doubt.

[¶12] The evidence included only the minimum information necessary to prove
the elements beyond a reasonable doubt. At trial, Kayla Haugeberg testified
without objection that Davis had been convicted of a felony and that his
probation supervision terminated on February 3, 2020. This information was
necessary to establish that Davis possessed a firearm within five years of his
release from felony probation. The court did not abuse its discretion in admitting
the testimony. See Kennedy, 

. Because the district court did not
abuse its discretion in admitting this evidence, there was no error, and Davis’s
obvious error claim fails.

                                       IV

[¶13] We decline to review Davis’s Rule 7(e) claim because he did not preserve
the issue for appeal or brief obvious error review. We affirm the district court’s
admission of prior conviction evidence because the court did not abuse its
discretion. We affirm the judgment.

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




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