State v. Patterson, 2014 ND 193

Defendant Darrius Cortez Patterson was convicted by a jury of delivery of cocaine within 1,000 feet of a school after a controlled buy using a confidential informant.
Patterson asserted entrapment at trial.
During trial, the confidential informant briefly testified she had purchased crack cocaine from Patterson from 2008–2011; defense objected, the court sustained the objection and struck the testimony under N.D.R.Ev. 404(b).
The prosecutor made an opening statement about the defendant’s right to present evidence and, in rebuttal closing, commented there was likely another conviction on Patterson’s record if found guilty.
Patterson did not contemporaneously object to the prosecutor’s opening or closing remarks and sought reversal on appeal under the obvious-error standard (N.D.R.Crim.P. 52(b)).
The district court gave curative instructions; the Court ultimately affirmed Patterson’s conviction, finding no obvious error that affected substantial rights given the strength of the properly admitted evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether confidential informant’s stricken testimony about prior bad acts required mistrial	State: any harm was limited, the testimony was struck and cured by instruction	Patterson: testimony violated 404(b) notice requirement and was inherently prejudicial, requiring mistrial	Court: Stricken testimony + curative instruction and strong independent evidence meant no obvious error affecting substantial rights
Whether prosecutor’s rebuttal comment about defendant’s prior conviction required mistrial	State: comment not prejudicial or fundamental error	Patterson: statement improperly referenced prior convictions and violated 404(b), prejudicing jury	Court: comment improper but not obvious error; jury instructions and strength of evidence prevented prejudice
Whether prosecutor’s opening remark misled jurors and, combined with other remarks, denied fair trial	State: opening statement legally correct and cured by instructions	Patterson: opening, plus stricken testimony and rebuttal, cumulatively prejudiced him	Court: Opening alone not reversible; examined cumulative effect and found no substantial prejudice
Whether errors unobjected to at trial constitute obvious error under Rule 52(b) requiring reversal	State: no obvious error affecting substantial rights	Patterson: errors were plain and prejudicial warranting reversal	Court: No clear deviation producing serious injustice; declined to correct under Rule 52(b)

State v. Pena Garcia, 812 N.W.2d 328 (N.D. 2012) (standard for reviewing alleged prosecutorial misconduct and jury instruction presumptions)
State v. Duncan, 796 N.W.2d 672 (N.D. 2011) (obvious-error review when no contemporaneous objection)
State v. Evans, 593 N.W.2d 336 (N.D. 1999) (caution in noticing obvious error; prosecutor misconduct guidance)
State v. Trout, 757 N.W.2d 556 (N.D. 2008) (harmless-error analysis for prior-bad-acts evidence)
State v. Hernandez, 707 N.W.2d 449 (N.D. 2005) (presumption juries follow curative instructions)
Berger v. United States, 295 U.S. 78 (1935) (prosecutorial comments and risk of unfair prejudice)