Brewer v. State, 924 N.W.2d 87

Background

Michael Brewer was convicted of two counts of gross sexual imposition (GSI) involving two minor victims (J.L. and G.H.); convictions were affirmed on direct appeal (State v. Brewer).
The State introduced, at trial, a pretrial-recorded interview of G.H. describing a prior, separate incident at Brewer’s home in which Brewer allegedly touched her under her clothes.
Brewer moved pretrial to exclude that interview under N.D.R.Ev. 403 and 404(b); the district court denied the motion, ruling the interview admissible under 404(b)(2) for motive/intent/plan, etc.
At trial Brewer’s attorney did not renew the objection and affirmatively said “no objection” when the interview was offered into evidence.
On postconviction review the district court found counsel ineffective for failing to object at trial and granted a new trial; the State appealed.
The Supreme Court of North Dakota affirmed, concluding counsel’s failure to object was professionally unreasonable and prejudiced Brewer because the 404(b) evidence likely undermined confidence in the verdict for both counts.

Issues

Issue	Brewer's Argument	State's Argument	Held
Whether counsel rendered ineffective assistance by failing to object to 404(b) evidence at trial	Failure to renew pretrial objection and saying “no objection” was error below objective standard; deprived court of trial-context ruling	Counsel relied on pretrial ruling; issue was preserved by pretrial motion so no renewed objection required	Held: Counsel’s failure to object was objectively unreasonable (Strickland prong 1) because a renewed trial objection is required to allow contextual 404(b)/403 analysis
Whether Brewer was prejudiced by counsel’s failure (Strickland prong 2)	Admission of prior-act interview (different incident/victim) was highly prejudicial and could have affected verdicts; undermines confidence in outcome	There was other evidence supporting conviction; sufficient to sustain verdict even without the interview	Held: Prejudice shown — a reasonable probability exists that outcome could differ; new trial warranted (evidence not cumulative and risked improper propensity inference)
Whether relief should be limited to the count involving G.H. or extend to both GSI convictions	Prior-act evidence about G.H. could have influenced jury as to both victims; similar-risk prejudice warrants relief on both counts	The home-incident evidence concerned only G.H., so the J.L. count was not tainted	Held: Relief affirmed for both convictions — prior bad-act evidence against one victim can unfairly taint verdict as to another (Osier/Aabrekke principles)

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test)
State v. Brewer, 2017 ND 95, 893 N.W.2d 184 (direct-appeal opinion affirming convictions)
Rourke v. State, 2018 ND 137, 912 N.W.2d 311 (standard of review for ineffective-assistance claims)
State v. Shaw, 2016 ND 171, 883 N.W.2d 889 (404(b) analysis and risks of propensity evidence)
State v. Osier, 1997 ND 170, 569 N.W.2d 441 (prior-bad-act evidence can be highly prejudicial across victims)
Middleton v. State, 2014 ND 144, 849 N.W.2d 196 (prejudice standard under Strickland)
Broadwell v. State, 2014 ND 6, 841 N.W.2d 750 (postconviction proceedings are civil; prejudice not presumed)
State v. Steen, 2015 ND 66, 860 N.W.2d 470 (importance of renewing objections at trial for contextual ruling)
State v. Schmeets, 2009 ND 163, 772 N.W.2d 623 (need for Rule 403 balancing of prior-act evidence)
State v. Tutt, 2007 ND 77, 732 N.W.2d 382 (ineffective assistance where counsel failed to object to prior-conviction evidence)
State v. Aabrekke, 2011 ND 131, 800 N.W.2d 284 (reversed where prior sexual-act testimony was admitted without 404(b) analysis)
Heckelsmiller v. State, 2004 ND 191, 687 N.W.2d 454 (prevailing professional norms inform reasonableness)
Garcia v. State, 2004 ND 81, 678 N.W.2d 568 (unsuccessful strategy alone is not ineffective assistance)