State v. Jasmann, 862 N.W.2d 809

Defendant Matthew Jasmann was tried by jury and convicted of gross sexual imposition for having sexual intercourse with A.W., who testified she awoke to the act and told him to stop; DNA from Jasmann was found on A.W.’s vaginal swab.
Prior to trial, the parties agreed the State would introduce a recording and transcript of Jasmann’s police interview; defense sought redaction of references to a prior sexual offense and the State redacted those portions plus another segment.
The defense asked the court to read the redacted transcript into the record in its entirety; when read, an additional line remained: “I don’t do criminal stuff like I used to.” Defense counsel did not object at the time to avoid drawing attention to it.
After the transcript was read, the parties and court held an in‑chambers discussion; the court ordered that the line be stricken from the exhibit before the jury received it for deliberations.
On appeal Jasmann argued (1) prosecutorial misconduct for introducing the statement and failing to give 404(b) notice, (2) the court erred in not giving a cautionary instruction, and (3) insufficient evidence supported the conviction.
The Supreme Court affirmed, holding no prosecutorial misconduct, no obvious error in withholding an unrequested cautionary instruction, and sufficient evidence supported the jury verdict.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct for reading unredacted interview statement	State: introduced redacted transcript; any remaining line was inadvertent and not misconduct	Jasmann: State improperly introduced a statement implying past criminality and failed to give 404(b) notice	No misconduct — defendant invited the transcript reading, counsel had reviewed it and declined to redact that line pretrial; waiver of objection
Failure to give cautionary/curative instruction	State: no instruction was requested by defense; court discretion	Jasmann: court should have given curative instruction to mitigate prejudice	No obvious error — defendant did not request instruction; courts rarely correct unrequested curative instruction absence
Admission without 404(b) notice	State: evidence was disclosed pretrial and admitted with defense consent	Jasmann: lacked proper notice under N.D.R.Evid. 404(b)	Not obvious error — defense knew State’s intent and agreed to admission; tactical choice waived objection
Sufficiency of the evidence for gross sexual imposition	State: A.W.’s testimony and DNA evidence support finding defendant knew/victim was unaware	Jasmann: no proof he knew or had reasonable cause to believe A.W. was unaware	Evidence sufficient — viewing evidence in light most favorable to verdict, a rational jury could find guilt beyond reasonable doubt

State v. Evans, 2013 ND 195, 838 N.W.2d 605 (standard for reviewing prosecutorial misconduct)
State v. Kruckenberg, 2008 ND 212, 758 N.W.2d 427 (prosecutorial misconduct may deny due process)
State v. Montano, 2012 ND 59, 813 N.W.2d 612 (failure to request cautionary instruction waives objection; obvious error standard)
State v. Olander, 1998 ND 50, 575 N.W.2d 658 (appellate correction of obvious error requires clear deviation from law)
State v. Owens, 2015 ND 68, 860 N.W.2d 817 (deferential sufficiency review; give prosecution all favorable inferences)
State v. Schmeets, 2007 ND 197, 742 N.W.2d 513 (test for sufficiency of evidence)
State v. Padgett, 410 N.W.2d 143 (trial court not required to give unrequested cautionary instruction)