State v. Wickham, 938 N.W.2d 141

Background

Corey Wickham, a rideshare driver, was accused of preventing a passenger from exiting his car, kissing her, digitally penetrating her, and touching her breasts; he was convicted by a jury on two counts of gross sexual imposition.
On appeal Wickham argued the district court erred by admitting opinion testimony from five witnesses without qualifying them as experts and that the evidence was insufficient without that testimony.
Wickham did not object at trial; the appeal is reviewed under the "obvious error" standard (N.D.R.Crim.P. 52(b)).
The Court reviewed distinctions among fact testimony, lay opinion (N.D.R.Ev. 701), and expert opinion (N.D.R.Ev. 702), and declined to import the federal Rule 701 limitation barring lay opinions based on specialized knowledge.
The five witnesses: forensic scientists Kyle Splichal and Emily Hoge (testified about lab procedures/DNA testing), forensic analyst Amy Gebhardt (performed DNA comparison), sexual assault nurse examiner Renae Sisk (exam findings and trauma explanations), and detective Jon Lahr (investigation and interview impressions).
The Court held Splichal/Hoge testimony admissible as factual; Gebhardt/Sisk/Lahr included some expert-style statements but any error admitting limited expert opinion was not "obvious error;" the convictions were affirmed.

Issues

Issue	State's Argument	Wickham's Argument	Held
Whether admitting undisclosed opinion testimony without qualifying witnesses as experts was obvious error	Admission was proper because witnesses largely testified to facts or permissible lay opinions; no clear rule required sua sponte exclusion	Admission of expert opinion without qualification violated N.D.R.Ev. 702 and prejudiced conviction	No obvious error: defendant failed to show a clear deviation from settled law that required the court to stop mixed lay/expert testimony sua sponte
Admissibility of forensic technicians (Splichal, Hoge) describing lab processes and test results	Testimony described activities and observations, not expert opinion requiring qualification	Such testimony functioned as expert testimony and required qualification	Admissible as factual/process testimony; not expert opinion under the circumstances
Admissibility of DNA analyst (Gebhardt) who testified a contributor on underwear matched Wickham	Testimony about testing process factual; match testimony at most limited expert testimony and not obvious error	DNA-match testimony was expert opinion and required formal qualification	Even assuming match testimony was expert opinion, its admission was not an obvious error given lack of clear precedent requiring sua sponte exclusion
Admissibility of SANE (Sisk) and detective (Lahr) testimony mixing factual observations with expert-style conclusions (trauma responses, indicators of deceit)	Much of their testimony was factual or permissible lay opinion; some statements could be lay inferences a juror could make	Portions (trauma causation/opinions, interview-technique-based deceit opinions) were expert and required disclosure/qualification	Parts of Sisk and Lahr testimony crossed into expert territory, but any error in admitting limited expert opinion was not obvious error and did not require reversal

Key Cases Cited

State v. Pemberton, 930 N.W.2d 125 (N.D. 2019) (articulates the obvious-error standard and burden on appellant)
State v. Saulter, 764 N.W.2d 430 (N.D. 2009) (distinguishes admissible investigation-based testimony from expert testimony rooted in specialized knowledge)
State v. Louser, 890 N.W.2d 1 (N.D. 2017) (explains fact, lay opinion, and expert testimony distinctions)
State v. Foster, 921 N.W.2d 454 (N.D. 2019) (permitting technical testimony based on the witness’s personal, non-expert observations about job duties)
State v. Crissler, 902 N.W.2d 925 (N.D. 2017) (upholds lay-opinion testimony based on personal observation, not specialized knowledge)
State v. Tresenriter, 823 N.W.2d 774 (N.D. 2012) (cited for framework on obvious error and plain-error review)