[¶ 1] Deraid Ross Horn Jr. appeals from a criminal judgment entered after a jury found him guilty of burglary. We conclude the district court did not commit obvious error in allowing the records custodian to testify, Horn failed to establish a Brady violation, and there was sufficient evidence to support the jury’s guilty verdict. We affirm.
I
[¶ 2] Horn was charged with three counts of burglary stemming from alleged
[¶ 3] At the final dispositional conference before trial, Horn moved to dismiss the case arguing the State had violated a discovery rule by failing to provide the actual name, rather than simply the job title, of one of its witnesses. The district court denied the motion. At the close of the State’s evidence, Horn moved for acquittal based on lack of evidence. The district court denied Horn’s motion. After the defense rested, Horn renewed his motion for acquittal, and the district court again denied the motion. The jury found Horn guilty of all three counts.
II
[¶ 4] On appeal, Horn argues the State violated his due process rights by failing to comply with N.D.R.Crim.P. 16 and
Brady v. Maryland,
[¶ 5] Rule 16, N.D.R.Crim.P., governs the disclosure of witnesses.
State v. Roerick,
[¶ 6] Horn argues he was denied a substantial right because the State violated Rule 16 by failing to disclose the actual name of one of its witnesses. Although the State disclosed the witness’s job title, “Prairie Knights Casino Records Custodian,” it did not disclose the witness’s actual name. Horn argues the alleged violation should be reviewed under the abuse of discretion standard. We disagree.
[¶ 7] Typically, this Court reviews trial court decisions regarding alleged discovery violations under the abuse of discretion standard.
State v. Loughead,
[¶ 8] The State argues the obvious error standard applies because Horn failed to preserve the issue for review on appeal
[¶ 9] “A touchstone for an effective appeal on any issue is that the matter was appropriately raised in the district court so the court has an opportunity to intelligently rule on it.”
State v. Tresenriter,
[¶ 10] At the final dispositional conference before trial, Horn moved to dismiss the case arguing the State had not complied with a discovery rule because it failed to provide the actual name of one of its witnesses. The district court denied the motion stating the purpose of the records custodian’s testimony was to provide foundation for records from the casino, the testimony was to be limited for that purpose, and any objections about discovery violations should be raised at trial. Even though the district court specifically indicated the objection could be raised again at trial, Horn failed to renew his objection at trial.
[¶ 11] We conclude Horn did not properly preserve this issue for appeal because he failed to object to the testimony at trial; thus, the obvious error standard is applicable.
[¶ 12] “In order to establish obvious error, the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights.”
State v. Miller,
[¶ 13] Horn argues he was not able to obtain the witness’s name by other means, and the name is particularly important for impeachment purposes. Horn does not demonstrate he sought assistance from the court under N.D.R.Crim.P. 16(d) to obtain the actual name of the witness.
[¶ 14] The State argues, even if it violated Rule 16 by providing only the witness’s job title, the district court did not commit obvious error in denying the motion to dismiss because the court supported its denial by stating the testimony’s purpose was to provide foundation for the casino records, the testimony was to be limited for that purpose, and any objections should be raised at trial. Horn knew the State planned to call the records custodian almost three months before trial.
[¶ 15] The State also argues on appeal discovery materials contained the name of the records custodian actually called at trial in an e-mail from the records custodian to a deputy dated July 24, 2013. A copy of an e-mail was included in the State’s appendix and referred to in the State’s appellee brief. Upon review of the appendix certified by the State, and comparing it with the record certified by the Clerk of Court, it is clear that the e-mail in the State’s appendix was not in the record below. “Only items in the record may be included in the appendix.” N.D.R.App.P. 30(a)(1). This Court will not consider documents not in the certified record.
Syvertson v. State,
[¶ 16] In
State v. Lince,
the State provided the defendant with the name of only one witness before trial, but announced its intention to call six witnesses during in-chamber discussions shortly before the trial started.
[¶ 17] This case is distinguishable from Lince. The records custodian was not an expert witness, and the testimony was limited to providing foundation for the casino records. In addition, the State’s intent to call the records custodian as a witness was disclosed nearly three months before trial, rather than immediately preceding the trial during in-chamber discussions as in Lince.
[¶ 18] This Court has stated:
Rule 16 is not a constitutional mandate, and a violation of the rule results in a constitutionally unfair trial only when the barriers and safeguards are so relaxed or forgotten the proceeding is more of a spectacle or a trial by ordeal than a disciplined contest. When a trial court’s ruling does not result in an inherently unfair trial, and thus, there is no constitutional issue, the trial court’s decision can be reversed only on a showing, by the defendant, that some substantial rights have been denied. When the defendant cannot demonstrate unfair prejudice, he or she cannot claim a violation of a substantial right. A trial court has broad discretion in admitting evidence which was not disclosed until shortly prior to trial.
Roerick,
[¶ 19] Disregarding, as we must, the information in the improperly filed appendix items, there is sufficient information in the record to determine that the trial court did not commit obvious error in allowing the records custodian to testify for the limited purpose specified.
Ill
[¶ 20] Horn also argues the State’s failure to disclose the actual name of one of its witnesses, the casino records custodian, constituted a Brady violation. Horn argues he could not properly prepare to impeach the witness because he did not have the witness’s actual name, and evidence that can be used to impeach a witness is subject to disclosure under Brady.
[¶ 21] This Court has explained the Brady standard, stating:
In Brady, the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment. To establish a Brady violation, the defendant must prove: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probabilityexists that the outcome of the proceedings would have been different' if the evidence had been disclosed.
State v. Muhle,
[¶ 22] We conclude Horn has not established that the result of the proceedings would have been different had the actual name, rather than only the job title, of the State’s witness been disclosed; thus, Horn has failed to establish a Brady violation.
IV
[¶ 23] Horn argues the State’s evidence was insufficient to support a jury’s guilty verdict. This Court has stated:
In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the ■ defendant guilty beyond a reasonable doubt. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses. A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts. A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Moreover, a jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.
State v. Sabo,
[¶ 24] Horn argues the State failed to prove Horn was involved in the burglaries, and the verdict was only supported by inconsistent circumstantial evidence. Horn argues he was never asked his whereabouts on the dates of the alleged burglaries, he denied ever being in those towns, and he provided a reasonable explanation as to why he had the “implements of a burglar” in his vehicle.
[¶ 25] The State argues it presented a substantial amount of consistent circumstantial evidence to prove Horn committed the burglaries, including he wore the same size 13 Nike shoes as the prints found at all three scenes, he possessed the same or similar tools that were used at the burglaries, his inconsistent statements to police tarnished his credibility, and he had a motive, namely getting money to feed his gambling habits.
[¶ 26] Based on the evidence presented at trial and the deference afforded to the prosecution when considering a sufficiency of the evidence claim, we conclude a rational fact-finder could have determined
V
[¶ 27] We conclude the district court did not commit obvious error in allowing the records custodian to testify, Horn failed to establish a Brady violation, and there was sufficient evidence to support the jury’s guilty verdict. We affirm the judgment.