State v. Shaw, 2016 ND 171

In June 2014 Shaw was charged with murder and burglary for the fatal shooting of Jose Lopez after allegedly breaking into an apartment.
Co-defendant/witness Dametrian Welch testified Shaw kicked in a door, got into an altercation with Lopez, and shot him; Welch also implicated himself.
The State sought to admit evidence that Shaw participated in a burglary four days earlier at an apartment one floor above Lopez’s unit and that a threat relating to that burglary motivated Shaw to return the night of the killing.
Over Shaw’s hearsay objection the district court admitted testimony about the earlier burglary, but the court did not give a limiting instruction and did not on the record perform the full N.D.R.Ev. 404(b) three-step analysis or an N.D.R.Ev. 403 balancing.
The jury convicted Shaw of murder and burglary. On appeal the North Dakota Supreme Court reversed and remanded, holding the court misapplied rules governing admission of other-act evidence and the error was not harmless.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Shaw)	Held
Admissibility of prior-bad-act evidence under N.D.R.Ev. 404(b)	Evidence of earlier burglary is admissible to show motive, intent, and plan for returning to the building	Evidence was hearsay, prejudicial, and should be excluded under 404(b)	Reversed: court abused discretion by admitting prior-burglary evidence without completing the 404(b) three-step analysis
Requirement to assess reliability / clear-and-convincing proof of prior acts	Testimonial proof and witnesses support admission	Objected that some testimony was hearsay and reliability was not established	Reversed: trial court failed to determine the reliability of the prior-act evidence
Need for limiting (cautionary) jury instruction for 404(b) evidence	State did not request an instruction; evidence offered for limited purpose	Shaw requested exclusion and objected to hearsay; sought limitation	Reversed: court should have given a cautionary instruction or explained why not; absence prejudicial
Balancing under N.D.R.Ev. 403 (probative value vs unfair prejudice)	Notice under 404(b) put court on alert; probative value justified	Evidence was unduly prejudicial and should have been excluded under Rule 403	Reversed: court failed to perform 403 balancing on the record; error not harmless

State v. Aabrekke, 800 N.W.2d 284 (N.D. 2011) (sets out three-step 404(b) analysis and need for limiting instruction)
State v. Schmeets, 772 N.W.2d 623 (N.D. 2009) (404(b) notice triggers 403 balancing requirement)
State v. Micko, 393 N.W.2d 741 (N.D. 1986) (prior-act evidence admissibility principles, instruction practice)
State v. Parisien, 703 N.W.2d 306 (N.D. 2005) (trial courts should state reasons on record when admitting/excluding prior-act evidence)
State v. Thompson, 552 N.W.2d 386 (N.D. 1996) (errors in admitting 404(b) evidence reviewed under Rule 52 standards)