State v. Hirschkorn, 952 N.W.2d 225

Background

On October 10, 2018, Hirschkorn was involved in a bar altercation during which he struck another patron in the face with a beer bottle, causing a serious cut; Hirschkorn also sustained head injuries.
After the fight he left and drove; officers later stopped and arrested him for suspected DUI. An Intoxilyzer test taken more than two hours after driving showed a BAC of 0.139%.
The State charged Hirschkorn with aggravated assault and driving under the influence; a jury convicted on both counts following a two-day trial in June 2019.
At trial the State admitted bar surveillance video evidence over Hirschkorn’s objections (authentication, foundation, and Rule 403 prejudice), and the court limited portions of Dr. Rodney Swenson’s neuropsychological expert testimony.
On appeal Hirschkorn argued the court abused its discretion in admitting the videos and in curtailing the expert’s testimony, and that the evidence was insufficient to convict on aggravated assault and DUI grounds.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hirschkorn)	Held
Admission/authentication of bar videos	Videos were properly authenticated by the bar owner and witnesses; any gaps were for the jury to weigh	Videos lacked foundation (owner didn’t personally provide all footage), contained a 34‑sec gap, and were unfairly prejudicial	Court affirmed admission — sufficient foundation/authentication; gap not prejudicial in context of other evidence
Limitation of expert testimony (Dr. Swenson)	Court properly limited an undisclosed, non‑treating expert; testimony beyond his basis would be unreliable or irrelevant	Court improperly limited expert about medical records, traumatic brain injury symptoms, and reasonableness of self‑defense	Court affirmed — trial court acted within discretion; expert allowed to testify to TBI symptoms and opinion that defendant had a TBI but was limited re: records/basis
Sufficiency of evidence — aggravated assault (weapon/intent/self‑defense)	Evidence (video, witness testimony, injury) supported inference of knowing use of bottle as dangerous weapon and rejection of self‑defense	Defendant acted in self‑defense, bottle was grabbed reflexively, no intent/attempt to inflict serious bodily injury	Court affirmed — viewing evidence in prosecution’s favor, rational jury could find guilt beyond a reasonable doubt
Sufficiency of evidence — driving under the influence (test validity/weight)	Officer observed swerving and impairment; BAC 0.139% supported conviction; jury weighed any procedural concerns	Drinking amount did not show impairment; alleged TBI could explain symptoms; testing procedure had interruptions (waiting period) rendering result unreliable	Court affirmed — defendant waived scrupulous‑compliance challenge on appeal; sufficient evidence (observations + BAC) for jury to convict

Key Cases Cited

State v. Poulor, 932 N.W.2d 534 (N.D. 2019) (standard for reviewing district court evidentiary rulings for abuse of discretion)
Swiontek v. Ryder Truck Rental, Inc., 432 N.W.2d 893 (N.D. 1988) (exclusion for lack of foundation reviewed for abuse of discretion and substantial rights)
State v. Thompson, 777 N.W.2d 617 (N.D. 2010) (authentication standard for recordings and videotapes)
State v. Steffes, 500 N.W.2d 608 (N.D. 1993) (due process considerations for failure to preserve potentially useful evidence)
City of Fargo v. Erickson, 598 N.W.2d 787 (N.D. 1999) (harmless‑error analysis requires consideration of entire record)
Klein v. Estate of Luithle, 930 N.W.2d 630 (N.D. 2019) (district court’s broad discretion on expert testimony admissibility)
State v. Michel, 942 N.W.2d 472 (N.D. 2020) (standards for sufficiency‑of‑evidence review)
State v. Stroh, 800 N.W.2d 276 (N.D. 2011) (scrupulous‑compliance principle for official chemical tests)