Filed 2/22/18 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
State of North Dakota, Plaintiff and Appellee
v.
Nathan Oliver Rolfson, Defendant and Appellant
No. 20170225
Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Daniel S. El-Dweek, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
Stephenie L. Davis (argued), Assistant State’s Attorney, and Jodi L. Colling (on brief), Assistant State’s Attorney, Watford City, ND, for plaintiff and appellee.
Michael R. Hoffman, Bismarck, ND, for defendant and appellant.
State v. Rolfson
No. 20170225
VandeWalle, Chief Justice.
[¶1] Nathan Rolfson appealed from a criminal judgment entered on a jury verdict finding him guilty of driving under the influence of alcohol or drugs. Rolfson argues the district court erred in admitting in evidence three foundation documents for the Intoxilyzer test result because the State failed to disclose the documents in response to his discovery request. We affirm, concluding, although the State violated the discovery rule, Rolfson has failed to show significant prejudice resulted from the State’s failure to disclose the three challenged documents before trial, and therefore, the court did not abuse its discretion in refusing to exclude the exhibits from evidence.
I
[¶2] On December 7, 2016, Rolfson was charged with driving under the influence of alcohol or drugs in violation of N.D.C.C. § 39-08-01. On December 15, 2016, Rolfson’s attorney made a request for discovery from the State under N.D.R.Crim.P. 16, seeking in part:
C. Defendant requests the prosecuting attorney to permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings, or places, or copies or portions of any of these items, if the item is within the prosecution’s possession, custody, or control, and the item is material to preparing the defense, the prosecution intends to use the item in its case-in-chief at trial, or the item was obtained from or belongs to the defendant.
On May 9, 2017, ten days before the scheduled trial, the State sent Rolfson’s attorney an email listing exhibits and including an electronic link to documents from the Attorney General’s website the State intended to use as foundation exhibits for admission of Rolfson’s Intoxilyzer test result.
[¶3] Before jury selection at the trial, Rolfson objected to the Intoxilyzer test result being admitted in evidence because the district court’s scheduling order required completion of discovery before the March 16, 2017 pretrial conference, and Rolfson did not receive the list of the State’s exhibits until May 9, 2017. The court refused to exclude the Intoxilyzer test result as a sanction for the State’s late compliance with discovery, but offered Rolfson’s attorney a continuance of the trial. Rolfson’s attorney declined to move for a continuance.
[¶4] When the State attempted to introduce the Intoxilyzer test result, Rolfson’s attorney objected, not on the basis of the late disclosure, but because there was no foundation evidence showing that the Intoxilyzer device was installed by a field inspector as required under
Ell v. Dir., Dep’t of Transp.
,
II
[¶5] Rolfson’s sole argument on appeal is that the district court erred in allowing the State to admit in evidence the three additional exhibits “in violation of discovery, thus allowing the State to provide foundation for the chemical test result.”
[¶6] This Court reviews district court decisions regarding discovery violations under the abuse of discretion standard.
See
State v. Horn
,
[¶7] In
Ell
,
Rule 16, N.D.R.Crim.P., governs discovery of evidence in criminal cases.
City of Grand Forks v. Ramstad
,
[¶8] The State’s argument that it was unnecessary to list the three additional exhibits in its discovery response because they were publicly available, which was adopted by the district court, misinterprets our decisions in
Ramstad
and
Packineau
. In
Ramstad
,
[S]tate statute now allows for the electronic posting of evidence as admissible prima facie evidence of the matters contained therein. See N.D.C.C. §§ 20.1-13.1-10(4)-(5), 20.1-15-11(6)-(7), 39-20-05(4)(a), 39-24.1-08(4)-(5). We see no functional distinction between disclosing to an opposing party a state owned and maintained website address specifically identifying and containing the requested documents , electronically sending those same documents to defendant’s counsel, or providing physical copies. The disclosure of the documents to an opposing party through a state owned website address is permitted under Rule 16, and the district court did not err in admitting the documents.
(Emphasis added).
[¶9] The State’s argument and the district court’s conclusion that no discovery violation occurred because the challenged documents were publicly available is contrary to our holdings in both Ramstad and Packineau . Here, N.D.R.Crim.P. 16 was violated because the State neither provided paper copies nor provided specific identification of the three challenged foundation documents on the Attorney General’s website. The court erred in concluding the State did not violate its discovery duties.
[¶10] Nonetheless, we will not set aside a correct result merely because the district court’s reasoning is incorrect if the result is the same under the correct law and reasoning.
See
,
e.g.
,
State v. Moore
,
“‘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.”’” [
State v.
]
Addai
,
. . . .
Although an “open file policy” does not abrogate the requirement that evidence be disclosed, it is a factor that may be considered in deciding whether a defendant was significantly prejudiced by a discovery violation.
See
Addai
,
Blunt
,
[¶11] Although Rolfson contends the introduction of the three exhibits “handicapped” his ability to prepare his defense, he did not claim surprise or move for a continuance. If a defendant is surprised by the foundational evidence provided by the prosecution, the remedy is to move for a continuance.
See
City of Grand Forks v. Scialdone
,
[¶12] Because Rolfson failed to establish he was significantly prejudiced by the State’s failure to disclose the three challenged foundation documents and there is no evidence of institutional noncompliance and systemic disregard of the law, we conclude the district court’s refusal to exclude this evidence was not an abuse of discretion.
III
[¶13] The criminal judgment is affirmed.
[¶14] Gerald W. VandeWalle, C.J.
Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte