Brewer v. State, 2019 ND 69

Background

Michael Brewer was convicted of two counts of gross sexual imposition (GSI) involving two minor victims and the convictions were affirmed on direct appeal.
The State introduced at trial a pretrial-recorded interview of one victim (G.H.) describing a prior, separate incident at Brewer’s home in which Brewer allegedly touched her under her clothes.
Brewer filed a pretrial motion to exclude that interview under N.D.R.Ev. 403 and 404(b); the court denied the motion pretrial, admitting the interview for non‑propensity purposes.
At trial Brewer’s counsel did not renew the objection and expressly said “no objection” when the interview was offered into evidence.
Brewer later obtained postconviction relief, arguing his trial counsel was ineffective for failing to object; the district court granted a new trial, and the State appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to object to 404(b) evidence constituted deficient performance	Brewer: failure to renew the objection at trial was a legal error below objective standard; pretrial ruling did not obviate needing a contemporaneous objection	State: counsel reasonably relied on the pretrial ruling and no deficiency	Held: Deficient — counsel’s reliance on the pretrial ruling and failure to object at trial was unreasonable under Strickland
Whether Brewer proved prejudice under Strickland from the unobjected‑to evidence	Brewer: admission of the separate prior‑act interview likely prejudiced the jury and undermines confidence in the verdict	State: other evidence was sufficient to convict despite the interview	Held: Prejudice proved — admission (or failure to preserve the issue) undermined confidence; new trial warranted
Whether the 404(b) interview could have been admitted without error if objected to at trial	Brewer: the interview risked propensity inference and unfair prejudice; court likely would have excluded it in context of trial	State: court already ruled it admissible for non‑propensity purposes pretrial	Held: The court found it likely would have ruled differently if objection was renewed at trial and the evidence reviewed in context
Whether relief should extend to both GSI convictions or only the count involving G.H.	Brewer: both convictions were tainted because prior‑act evidence against one victim can prejudice verdict as to another similar charge	State: only the count involving G.H. was tainted since the home incident only involved G.H.	Held: Relief applies to both convictions — prior bad‑act evidence against one victim can prejudice jury decisions on separate counts

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two‑prong ineffective assistance standard)
State v. Shaw, 2016 ND 171 (admission of other‑act evidence requires 404(b) analysis and caution about propensity prejudice)
State v. Schmeets, 2009 ND 163 (need for 403 balancing when admitting prior‑act evidence)
State v. Osier, 1997 ND 170 (prior‑act testimony about one victim can be highly prejudicial to separate charges)
Middleton v. State, 2014 ND 144 (standards for evaluating prejudice under Strickland)
Rourke v. State, 2018 ND 137 (ineffective assistance claims are mixed questions of law and fact; deferential review)
Broadwell v. State, 2014 ND 6 (postconviction proceedings governed by civil rules; applicant bears burden)
Heckelsmiller v. State, 2004 ND 191 (prevailing professional norms inform objective reasonableness)
State v. Tutt, 2007 ND 77 (failure to object to prior conviction evidence can constitute ineffective assistance and reversible error)