State v. Brewer, 20160241
| Decision Date | 25 April 2017 |
| Docket Number | No. 20160241,20160241 |
| Citation | 893 N.W.2d 184 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Michael Martin BREWER, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Brian L. Johnson, Assistant State's Attorney, Burleigh County Courthouse, 514 E. Thayer Ave., Bismarck, ND 58501, for plaintiff and appellee.
Kent M. Morrow, 103 S. Third St., Ste. 6, Bismarck, ND 58501, for defendant and appellant.
[¶ 1] Michael Brewer appeals from the district court's judgment entered after a jury convicted him of two counts of gross sexual imposition. We conclude Brewer waived his claim of error that the district court abused its discretion in allowing the State to admit evidence surrounding G.H.'s October 1, 2015, forensic interview by not renewing his objection to the admission of this evidence at trial. Therefore, we affirm the judgment.
[¶ 2] On September 8, 2015, Brewer was charged with two counts of gross sexual imposition. In separate forensic interviews, J.L. and G.H., minors under the age of fifteen, stated Brewer made sexual contact with them at a pool in a hotel in Bismarck, North Dakota, on December 1, 2014. In a later forensic interview conducted on October 1, 2015, G.H. also recounted an incident that occurred before the pool incident when Brewer touched her "butt" under her pants but over her underwear. G.H. stated she had not disclosed this incident at the initial forensic interview because she was scared. The testimony related to the October 1, 2015, forensic interview of G.H. is the focus of this appeal.
[¶ 3] The State notified Brewer it intended to use testimony surrounding the October 1, 2015, forensic interview as evidence of intent, motive, absence of mistake, or lack of accident under N.D.R.Ev. 404(b)(2). Brewer moved in limine objecting to the State's offer of evidence under N.D.R.Ev. 404(b)(2). A pretrial hearing was held on March 18, 2016. At the hearing, Brewer argued the evidence was too remote, vague, and highly prejudicial. The State argued the evidence showed Brewer's intent, motive, absence of mistake, or lack of accident under N.D.R.Ev. 404(b)(2), and it was not unduly prejudicial. The district court ruled the State could offer testimony surrounding the October 1, 2015, forensic interview as evidence of Brewer's motive, intent, absence of mistake, or lack of accident under N.D.R.Ev. 404(b)(2). At trial, the State offered a recording of the October 1, 2015, forensic interview as evidence, with no objection from Brewer. The jury convicted Brewer on two counts of gross sexual imposition. Brewer appeals.
[¶ 4] Brewer argues the district court abused its discretion by allowing the State to admit testimony surrounding the October 1, 2015, forensic interview as evidence of motive, intent, absence of mistake, or lack of accident under N.D.R.Ev. 404(b)(2). According to Brewer, this evidence should be excluded because the prejudicial effect of the evidence substantially outweighs any relevant or probative value under N.D.R.Ev. 403. Brewer also argues the district court, in its order on pretrial motions, misapplied N.D.R.Ev. 404(b)(2) and failed to balance the probative value versus the prejudicial effect under N.D.R.Ev. 403. However, Brewer failed to appropriately raise this argument at trial.
We have long held that an effective appeal of any issue must be appropriately raised in the trial court in order for us to intelligently rule on it. Under N.D.R.Ev. 103(a)(1), error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party...
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Brewer v. State
...of Gross Sexual Imposition ("GSI"). He appealed the judgment of conviction, and this Court affirmed the judgment. See State v. Brewer , 2017 ND 95, 893 N.W.2d 184. Both victims of the GSI counts, J.L. and G.H., were minors. Three interviews were received into evidence: one interview given b......
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State v. Watkins
...as a matter of trial strategy. This error was waived, and the obvious error analysis under N.D.R.Crim.P. 52(b) does not apply. See State v. Brewer , 2017 ND 95, ¶ 5, 893 N.W.2d 184 (waiver occurred where counsel stated "no objection" to admission of evidence); White Bird , 2015 ND 41, ¶ 26,......
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State v. Thomas
...A failure to object at trial acts as a waiver of the claim of error. State v. Smith , 2019 ND 239, ¶ 13, 934 N.W.2d 1 (quoting State v. Brewer , 2017 ND 95, ¶ 4, 893 N.W.2d 184 ). [¶13] At trial, Thomas did not attempt to offer the excluded convictions when cross-examining the victim. By fa......
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Haas v. Hudson & Wylie LLP
...to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. State v. Brewer , 2017 ND 95, ¶ 4, 893 N.W.2d 184 (quoting State v. Steen , 2015 ND 66, ¶ 5, 860 N.W.2d 470 ). [¶10] The Haases concede they did not object to hea......