STATE of North Dakota, Plaintiff and Appellee v. Jeffrey SCHMEETS, Defendant and Appellant.
No. 20080225.
Supreme Court of North Dakota.
Sept. 16, 2009.
2009 ND 163
[¶ 39] The trial court prepared a thorough and accurate order citing our court‘s case law on the purpose of the provision requiring a court to determine whether a hearing should be even held within two years following a custody determination and on the movant‘s heightened burden of proof. The majority conclusion really is based on its own disapproval of the mother‘s choice of life style and its own personal values. That is not the standard the legislature has promulgated.
[¶ 40] The trial court did not abuse its discretion in denying a hearing on the motion to modify custody. Applying an abuse-of-discretion standard, I would affirm.
[¶ 41] MARY MUEHLEN MARING
Irvin B. Nodland (argued), Irvin B. Nodland, P.C., Bismarck, ND, for defendant and appellant.
KAPSNER, Justice.
[¶ 1] Jeffrey Schmeets appeals a district court‘s criminal judgment entered after a jury found him guilty of possession of controlled substances and drug paraphernalia. Because the district court erred by allowing evidence of Schmeets’ two prior felony convictions to be introduced into evidence without conducting the balancing test required by
[¶ 3] A second search was conducted in April 2007 after law enforcement officers received information from a third party about drugs and drug paraphernalia at Schmeets’ home. During that search, the officers found on the kitchen floor a duffle bag containing various items, including psilocybin, methamphetamine, and marijuana. The officers also found cash, including $3,500 in a blue bank bag in a bedroom safe, $1,420 in an envelope, and $1,762 in Schmeets’ wallet. Schmeets was arrested and charged with possession of drug paraphernalia, stemming from the January search, and possession of psilocybin, marijuana, drug paraphernalia, and methamphetamine with intent to deliver, stemming from the April search.
[¶ 4] At trial, Schmeets testified the items found during the two searches were not his; he guessed the duffle bag must belong to a drug offender whose car was found on Schmeets’ premises on April 16, 2007, the day of the search. According to Schmeets’ testimony, two other individuals were at his house on April 15; he suspected he must have been slipped something in his drink because he was feeling “groggy” when the officers woke him up on April 16. The State offered into evidence a piece of paper found in Schmeets’ wallet, arguing that piece of paper was a “pay-owe” sheet, which is how drug dealers keep track of what they owe and are owed. Schmeets denied the note made reference to any drug transaction. He testified the note was a record-keeping note of his sales of Vigortone, an agricultural mineral product he was selling as an agent. He also testified some of the cash found in his house was from his recently having cashed in a cattle check. The State offered into evidence two certified judgments showing Schmeets’ prior drug convictions, arguing the evidence was to show Schmeets’ intent to possess drug paraphernalia. Schmeets’ counsel objected, and the court allowed the evidence in for the limited purpose of determining whether items were drug paraphernalia under
[¶ 5] The jury found Schmeets not guilty of the charge of possession of drug paraphernalia stemming from the January search, but guilty of the charges stemming from the April search. Schmeets was then sentenced to five years’ imprisonment on each count, to be served concurrently.
[¶ 6] Schmeets argues the district court committed several obvious errors affecting his substantial right to a fair trial. First, he argues the district court erred in allowing evidence of two prior felony convictions to be introduced.
[¶ 8] Without providing notice under
In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors:
. . . .
2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance.
[¶ 9] Section 19-03.4-02 of the North Dakota Century Code, previously found in
In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors:
- Statements by an owner or by anyone in control of the object concerning its use.
- Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance.
- The proximity of the object, in time and space, to a direct violation of chapter 19-03.1.
- The proximity of the object to controlled substances.
- The existence of any residue of controlled substances on the object.
- Direct or circumstantial evidence of the intent of an owner, or of any person in control of the object, to deliver the object to another person whom the owner or person in control of the object knows, or should reasonably know, intends to use the object to facilitate a violation of chapter 19-03.1. The innocence of an owner, or of any person in control of the object, as to a direct violation of chapter 19-03.1 may not prevent a finding that the object is intended or designed for use as drug paraphernalia.
- Instructions, oral or written, provided with the object concerning the object‘s use.
- Descriptive materials accompanying the object which explain or depict the object‘s use.
- National and local advertising concerning the object‘s use.
- The manner in which the object is displayed for sale.
- Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, for example, a licensed distributor or dealer of tobacco products.
- Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.
The existence and scope of legitimate uses for the object in the community. - Expert testimony concerning the object‘s use.
- The actual or constructive possession by the owner or by person in control of the object or the presence in a vehicle or structure where the object is located of written instructions, directions, or recipes to be used, or intended or designed to be used, in manufacturing, producing, processing, preparing, testing, or analyzing a controlled substance.
[¶ 10] The only case addressing the previous statute is State v. Raywalt, 436 N.W.2d 234 (N.D.1989), which was decided prior to the 2001 amendment. In Raywalt, a jury found Raywalt guilty of possession of drug paraphernalia, and Raywalt appealed. 436 N.W.2d at 235. On appeal, Raywalt asserted the trial court erred by admitting into evidence “a certified copy of Raywalt‘s prior conviction of delivery of a controlled substance.” Id. at 238. This Court discussed
Admission of prior convictions is governed generally by Rules 403 and 404, N.D.R.Evid. Rule 404(b) provides that evidence of other crimes is admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Although relevant for such purposes, evidence of other crimes may still be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Rule 403, N.D.R.Evid. Thus, the trial court is called upon to balance the probative value of the evidence against its prejudicial effect in determining whether to admit evidence of a defendant‘s past crimes. State v. Micko, 393 N.W.2d 741, 744-745 (N.D.1986).
In addition, Section 12.1-31.1-02(2), N.D.C.C., provides that, in determining whether an object is drug paraphernalia, a court or other authority may consider the prior drug convictions of the owner or person in control of the object. The State argues that the statute makes evidence of a prior conviction automatically admissible, without taking into consideration the prejudicial effect of such evidence under Rule 403. We, however, view the statute as dealing with relevance, not admissibility, of evidence. Thus, although the evidence of Raywalt‘s prior conviction for delivery of methamphetamine is relevant to the issue of whether the drug recipe constituted paraphernalia, the trial court still must employ the balancing test of Rule 403 to determine whether its probative value is outweighed by its prejudicial effect.
[¶ 11] Raywalt clarified that when district courts applied
[¶ 12] Section 19-03.4-02, N.D.C.C., contains fifteen factors district courts are to consider when determining whether an object is drug paraphernalia. The introductory text also states in addition to the listed factors, courts are to consider “all other logically relevant factors.”
[¶ 13] The predecessor to
In addition to defining drug paraphernalia and describing the common forms, Article I sets out some of the more relevant factors to consider in determining whether an object is paraphernalia. The listing of these factors in the Model Act is not intended to be peremptory; a court or other authority is not obligated to hear evidence on, or to consider, every listed factor. Rather, the factors have been included to guide law enforcement officers, judges, and juries in their determination of what is controlled. Providing guidance on the practical application of the Act minimizes the risk of arbitrary and d[i]scriminatory enforcement, sometimes associated with even the most carefully drafted statutes. See Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968).
Conversely, the listing of these factors is not meant to be inclusive. Any logically relevant factor may be considered.
Id.
[¶ 14] After the original enactment of this statute, the language was amended from “should consider” to “shall consider.” However, the purpose for which these factors are to be considered has not changed. Neither has the breadth of the factors to be considered. We do not assume the legislative intent was to impermissibly invade the province of the courts to determine the rules of evidence. See, e.g.,
[¶ 15] In prior cases, this Court has “warned of the dangers inherent in allowing evidence of other acts to show propensity and of tempting a jury to convict a defendant for actions other than the charged misconduct.” State v. Ramsey, 2005 ND 42, ¶ 19, 692 N.W.2d 498 (citing State v. Osier, 1997 ND 170, ¶ 6, 569 N.W.2d 441). Rule 404(b), N.D.R.Ev., controls the admission of such evidence, and provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
We have discussed the rationale behind this rule: “Evidence of prior acts or crimes is generally not admissible unless it is substantially relevant for some purpose other than to point out the defendant‘s criminal character and thus to show the probability that he acted in conformity therewith.” State v. Hatlewick, 2005 ND 125, ¶ 8, 700 N.W.2d 717 (quoting State v. Biby, 366 N.W.2d 460, 463 (N.D.1985)). This rule recognizes “the inherent prejudicial effect prior bad act evidence may have on the trier of fact and limits its use under specifically recognized exceptions.” Id. (citing State v. Micko, 393 N.W.2d 741, 744 (N.D.1986)). Prior bad act evidence is not automatically excluded, if offered for a proper purpose. Section 19-03.4-02, N.D.C.C., indicates that past convictions serve a proper purpose such as preparation, plan, knowledge, or intent when a defendant is contesting whether an item is drug paraphernalia. However, even where offered for a proper purpose, the district court is required to conduct the balancing test. Rule 403, N.D.R.Ev., states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” “The rule ‘does not authorize automatic admission merely because the proponent advances a proper purpose for the evidence‘; instead, the relevance and probative value of the evidence must be demonstrated.” Hatlewick, 2005 ND 125, ¶ 8, 700 N.W.2d 717 (quoting Micko, 393 N.W.2d at 744). Trial courts conduct a three-step analysis when applying
- the purpose for which the evidence is introduced, 2) the evidence of the prior act or acts must be substantially reliable or, “clear and convincing,” and, 3) in criminal cases, there must be proof of the crime charged which permits the trier of fact to establish the defendant‘s guilt or innocence independently on the evidence presented, without consideration of the evidence of the prior acts. Following this analysis, the trial court must finally determine if, under Rule 403, the probative value of the evidence outweighs any possible prejudicial effect.
Hatlewick, 2005 ND 125, ¶ 9, 700 N.W.2d 717 (quoting State v. Christensen, 1997 ND 57, ¶ 7, 561 N.W.2d 631).
[¶ 16] Schmeets also argues the State failed to give reasonable notice about its intent to introduce Schmeets’ prior convictions into evidence, which the State has
[¶ 17] In Raywalt, this Court determined that statutory factors previously located at
[¶ 18] At trial, substantial emphasis was placed on Schmeets’ prior criminal convictions. The prior convictions were referenced in the state‘s attorney‘s opening statement. Certified copies of the judgments of conviction were introduced and, throughout trial, much of the questioning, before and after introduction of the certified copies, was based on the prior convictions. After the State made direct references to prior convictions for possession of drug paraphernalia, and the State examined three witnesses with multiple references to Schmeets’ probationary status, the State offered the certified copies of Schmeets’ prior convictions. At the time of the offer and receipt of the certified copies, no defense witnesses had been called to suggest the defense was contesting whether the items were drug paraphernalia. Nothing had been said in Schmeets’ opening statement to suggest this was an issue. Upon defense objection, the court ruled:
Well one of the things that a juror can use in determining whether an item is drug paraphernalia is prior convictions, if any, of an owner or of anyone in control of the object under state or federal law relating to any controlled substance. So for that limited purpose, the Court would allow exhibits 1 and 2 and note your objection for the record Mr. Stensland. I guess I would just comment ladies and gentlemen that these convictions or records of convictions should be used only for that purpose and not generally to think that Mr. Schmeets is a bad guy or anything like that, but solely in determining whether an item that is or will be in evidence is drug paraphernalia.
Despite the trial court‘s admonishment that prior convictions served a limited purpose, the State urged a greater reliance on the convictions in its closing argument:
I ask that the jury—when you go into your room to consider this, look at the evidence that was undisputed—that no-
[¶ 19] Although the trial court attempted to instruct the jury to limit its consideration of the prior convictions, because of the multiple prior and subsequent references to those convictions, it is impossible to say that the use of the convictions had no effect on the jury. State v. Schlittenhardt, 147 N.W.2d 118, 125 (N.D.1966). The State did not give notice of its intent to introduce evidence under
[¶ 20] Schmeets raises several other evidentiary issues and argues he received ineffective assistance of counsel. Because we reverse the conviction and remand for a new trial, we deem it unnecessary to decide those issues. Johnson v. Johnson, 2001 ND 109, ¶ 13, 627 N.W.2d 779.
[¶ 21] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and DANIEL J. CROTHERS, JJ., concur.
SANDSTROM, Justice, dissenting.
[¶ 22] Although I am persuaded by the majority that admission of the evidence of prior conviction under
[¶ 23] As to the evidence of prior convictions, the defendant did not object on
[¶ 24] The majority says, at ¶ 17, “However, the statutory language indicates that N.D.C.C. § 19-03.4-02 evidence will likely be admitted under the N.D.R.Ev. 403 balancing test, when a defendant is contesting whether an item is drug paraphernalia.” Schmeets pleaded not guilty. A not guilty plea puts the State to its proof on every element of the crime.
[¶ 25] Defendants should have to state their objection. The rule that proper objections must be raised is well-founded.
[¶ 27] Similarly, defendants contending they did not receive notice required by
[¶ 28] The majority applies the wrong standard in deciding to reverse. As we said in State v. Yineman, 2002 ND 145, ¶ 22, 651 N.W.2d 648 (emphasis added):
We have noted:
To establish obvious error under
N.D.R.Crim.P. 52(b) , the defendant has the burden to show (1) error, (2) that is plain, and (3) that affects substantial rights. We exercise our power to notice obvious error cautiously, and only in exceptional circumstances where the accused has suffered serious injustice. In determining whether there has been obvious error, we examine the entire record and the probable effect of the alleged error in light of all the evidence.State v. Johnson, 2001 ND 184, ¶ 12, 636 N.W.2d 391 (citations omitted).
Instead, the majority says, at ¶ 1, that “because it is impossible to determine that the use of the evidence did not substantially affect Schmeets’ right to a fair trial, we reverse and remand for a new trial.” At ¶ 19, the majority cites a case predating the North Dakota Rules of Criminal Procedure, State v. Schlittenhardt, 147 N.W.2d 118 (N.D.1966), for the proposition: “Where, as in this case, reference to prior criminal acts is pervasive throughout the trial and much is offered without limiting instruction, it is impossible to hold as a matter of law such evidence had no effect on Schmeets’ substantial rights.” Schlittenhardt is inapposite, not just because it predates
[¶ 29] Here, Schmeets has not “suffered serious injustice.”
[¶ 30] I would affirm.
[¶ 31] Dale V. Sandstrom