State v. Blotske, 899 N.W.2d 661

Background

Defendant Brady Blotske was tried by jury on charges of gross sexual imposition, felonious restraint, and terrorizing arising from an incident with his former girlfriend.
The State intended to introduce a recorded police interview of Blotske; parties stipulated to admission but agreed to omit portions mentioning alleged child molestation because those allegations were investigated and found unfounded.
During trial the video was played and inadvertently included references to molestation. Defense objected. The prosecutor spoke to the jury in open court, saying the molestation allegation was unfounded and not made by the victim.
The court directed the jury to disregard the molestation reference, allowed further explanation by the State in the jury’s presence, and offered a curative instruction; the defense moved for a mistrial, which the court denied.
The jury convicted Blotske on all counts; he appealed arguing the denial of a mistrial was an abuse of discretion because the disclosure and the State’s mid-trial remarks were highly prejudicial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of mistrial was abuse of discretion after disclosure of prejudicial, unfounded molestation allegations and mid-trial prosecutor comments	State: disclosure was inadvertent; court’s curative instructions cured any prejudice; mistrial unnecessary	Blotske: disclosure and prosecutor’s comments in front of jury vouched for victim and aggravated prejudice such that curative instruction could not repair harm	Reversed — cumulative errors (disclosure + State and court commentary) were prejudicial; denial of mistrial was an abuse of discretion; remand for new trial
Whether prosecutor’s mid-trial comments impermissibly vouched for victim’s credibility	State: comments explained and minimized evidence; proper to clarify inadvertent disclosure	Blotske: comments went beyond evidence and vouched for witness credibility, harming fairness	Held improper and contributed to cumulative error requiring reversal
Whether the district court violated N.D.R.Ev. 103(d) by permitting comments about inadmissible evidence before jury	State: actions were reasonable attempts to limit prejudice	Blotske: court and counsel suggested inadmissible evidence to jury in violation of Rule 103(d)	Held conduct ran afoul of Rule 103(d) principles and was part of cumulative error supporting reversal
Whether defendant was entitled to lesser-included-offense instruction (sexual assault)	State: not warranted because evidence of penetration (sexual act) was contested only as to consent; if jury believed defendant, it would acquit of both offenses	Blotske: testified to two incidents (one with penetration, one with touching) so jury could convict of lesser offense for one incident	Court affirmed denial of instruction — facts would not permit rational finding guilty of lesser but not greater without amending verdict form; no error in denying instruction

Key Cases Cited

State v. Skarsgard, 739 N.W.2d 786 (N.D. 2007) (mistrial is extreme remedy; granted only when further proceedings would produce manifest injustice)
State v. Hernandez, 707 N.W.2d 449 (N.D. 2005) (jurors presumed to follow instructions; curative instruction generally sufficient)
City of Williston v. Hegstad, 562 N.W.2d 91 (N.D. 1997) (prosecutor may not vouch for government witnesses; improper comments can require reversal when prejudicial)
State v. Parisien, 703 N.W.2d 306 (N.D. 2005) (cumulative errors can require reversal when interrelated errors produce unfair prejudice)
State v. Foreid, 763 N.W.2d 475 (N.D. 2009) (lesser-included instruction only when jury could rationally find defendant not guilty of greater but guilty of lesser)
State v. McDonell, 550 N.W.2d 62 (N.D. 1996) (sexual assault is a lesser-included offense to gross sexual imposition)