921 N.W.2d 454
N.D.2019Background
- On October 11, 2016, Michael Foster and a co-defendant went to a Keystone pipeline valve site in Pembina County; Foster used bolt-cutters to cut padlocks and closed a manual valve, stopping oil flow.
- TransCanada performed an emergency shutdown; the pipeline remained closed for over seven hours.
- Foster was charged with criminal mischief, conspiracy to commit criminal mischief, criminal trespass, and other counts; jury convicted on conspiracy, criminal mischief, and trespass.
- At trial TransCanada operations manager Trevor Pollock testified about flow rates, outage duration, and a loss calculation that multiplied lost barrels by a shipping cost per barrel obtained from another department.
- Foster challenged (1) hearsay and improper lay/expert testimony by Pollock, (2) sufficiency of evidence that loss exceeded $10,000 and that he intended such loss, and (3) exclusion of a defense exhibit; the district court admitted some contested testimony and excluded Exhibit B.
- The Supreme Court affirmed: it found no abuse of discretion in evidentiary rulings (any hearsay error was harmless) and the evidence—including videos, a notebook, and Pollock’s testimony—was sufficient to support convictions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Foster) | Held |
|---|---|---|---|
| Admissibility: Pollock’s testimony about flow, outage, and loss | Pollock was a lay witness with personal knowledge and record-custodian duties; his testimony admissible | Testimony included inadmissible hearsay and impermissible opinion/expert evidence | Court: Pollock’s factual testimony on operations was lay testimony within personal knowledge; admission not an abuse of discretion |
| Admissibility: shipping cost per barrel (source from another dept.) | Cost information admissible as business-record basis; Pollock reasonably relied on it | Testimony about cost was hearsay and Pollock not custodian of those financial records | Court: Serious question it was hearsay but any erroneous admission was harmless because other evidence supported loss > $10,000 |
| Sufficiency: intent to cause > $10,000 loss | Evidence (Pollock plus logs, videos, notebook, coordinated publicity) shows intent and actual loss > $10,000 | Insufficient proof that Foster intended or caused loss exceeding $10,000; State relied on hearsay | Court: Evidence viewed favorably to prosecution was sufficient; jurors could infer > $10,000 loss and intent |
| Conspiracy: agreement to cause > $10,000 loss | Videos and conduct (planning conversation, notebook, coordinated group publicity) establish implied agreement and overt acts | Mere presence/association insufficient; no explicit agreement to cause > $10,000 loss | Court: Agreement may be implied from conduct; evidence sufficient to support conspiracy conviction |
Key Cases Cited
- State v. Doppler, 2013 ND 54, 828 N.W.2d 502 (discretionary standard for evidentiary rulings)
- State v. Azure, 2017 ND 195, 899 N.W.2d 294 (harmless-error and sufficiency review framework)
- State v. Crissler, 2017 ND 249, 902 N.W.2d 925 (standards for sufficiency and expert-vs-lay testimony)
- State v. Louser, 2017 ND 10, 890 N.W.2d 1 (distinguishing lay observation from expert opinion)
- State v. Engel, 289 N.W.2d 204 (physical-fact testimony does not require expert qualification)