State v. Wangstad
| Decision Date | 25 September 2018 |
| Docket Number | No. 20170452,20170452 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. JanMichel WANGSTAD a/k/a Jan-Michel Wangstad, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Renata J. Olafson Selzer, Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.
Chad R. McCabe, Bismarck, ND, for defendant and appellant.
[¶ 1] JanMichel Wangstad ("Wangstad") appeals a criminal judgment entered after a jury verdict finding him guilty of attempted murder. Wangstad argues the district court erred in the admission of social media posts he made prior to the alleged crime, the jury was given erroneous instructions, and the evidence was insufficient to support the conviction. We affirm the judgment of conviction.
[¶ 2] On March 18, 2016, West Fargo police were dispatched to the Rodeway Inn in response to a report of a man with a gun. Responding officers located the source of the disturbance in one of the rooms. One of the officers knocked on the door of the room and announced, "police." A female acquaintance of Wangstad opened the door and began to step back into the room. The officers told the female to get down on the ground. Two officers then entered a few steps into the room and noticed Wangstad standing by a desk. Wangstad made a fast-paced movement from the desk to the corner of the room where he fired a gun in the direction of one of the officers. The bullet traveled through the wall above the entry door to the room and lodged into the wall of another room. The officers then backed out of the room.
[¶ 3] Wangstad admitted at trial that he moved toward the corner of the room, pulled the gun from his waistband, fired the gun, and the bullet hit above the door where one of the officers was standing. Wangstad stated he did not intend to shoot the officer; he just wanted to "get him out of the room as quickly as possible." Wangstad was convicted by a jury on the charge of attempted murder.
[¶ 4] On appeal, Wangstad argues the statements he made via social media posts prior to the alleged crime should not have been admitted into evidence. Wangstad also argues the jury was not properly instructed regarding the essential elements of attempted murder under N.D.C.C. §§ 12.1-06-01, 12.1-16-01(1)(a). Lastly, Wangstad argues the evidence presented at trial was insufficient to warrant a finding of guilty beyond a reasonable doubt.
[¶ 5] The State offered as evidence portions of two social media posts that had been authored by Wangstad. The State offered the posts as evidence of Wangstad’s state of mind arguing the posts demonstrated that Wangstad had an anti-law enforcement disposition and violent intentions. Wangstad objected to the relevancy of the posts, arguing that N.D.R.Ev. 403 precluded the posts from being admitted as evidence because they were not probative to the issues being tried and, if probative, were unduly prejudicial. The district court overruled the objection, admitted the evidence, and inquired whether Wangstad wanted the entirety of both posts read to the jury. Wangstad requested a complete version of both posts be read to the jury.
[¶ 6] "In ruling on the relevancy of evidence, a trial court has broad discretion to balance the probative value of the evidence against the risk of unfair prejudice, and its decision will not be overturned on appeal absent an abuse of discretion." State v. Valgren , 411 N.W.2d 390, 394 (N.D. 1987) (citing State v. Newnam , 409 N.W.2d 79, 87 (N.D. 1987) ). A trial court has "broad discretion in determining whether to admit or exclude evidence, and its determination will be reversed on appeal only for an abuse of discretion." State v. Chisholm , 2012 ND 147, ¶ 10, 818 N.W.2d 707. "[T]his Court does not reverse a district court’s decision to admit or exclude evidence on the basis of relevance unless the district court abused its discretion by acting in an arbitrary, unreasonable, or unconscionable manner."
State v. Bjerklie , 2006 ND 173, ¶ 4, 719 N.W.2d 359 (citing Rittenour v. Gibson , 2003 ND 14, ¶ 35, 656 N.W.2d 691 ).
[¶ 7] Here, the district court noted the social media posts were prejudicial. The court then extensively balanced the probative value of the posts and the possible prejudice created by the posts to determine if they were unduly prejudicial and required to be excluded from evidence. The court noted that social media related evidence was becoming increasingly common in many different types of cases. The court considered the proximity in time the posts were made to the incident being tried and provided, in part, the following summary:
The district court also instructed the jury that their consideration of the posts was limited to Wangstad’s state of mind and could not be considered for any other purpose. After reviewing the district court’s consideration of the relevancy of the posts, we conclude the court did not act in an arbitrary, unreasonable, or unconscionable manner and therefore did not abuse its discretion in admitting the posts.
[¶ 8] On appeal, Wangstad argues the posts should have been treated as prior bad acts evidence thus requiring analysis under N.D.R.Ev. 404(b). Under Rule 404(b)(1), "Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character." Such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." N.D.R.Ev. 404(b)(2). Under Rule 404(b), when the prosecution intends to introduce evidence of prior bad acts, it must generally give notice so that an N.D.R.Ev. 403 analysis can be done by the court. State v. Schmeets , 2009 ND 163, ¶ 16, 772 N.W.2d 623.
[¶ 9] Statements made by a defendant showing a defendant’s attitude, state of mind, and intent to commit the crime charged are not subject to N.D.R.Ev. 404(b) if they do not constitute prior bad acts. State v. Phelps , 297 N.W.2d 769, 773 (N.D. 1980). In Phelps , a witness testified the defendant made prior statements about his ability to commit future burglaries. Id. at 772. This Court held that 404(b) does not apply and the statements should be construed as evidence of "frame of mind" and not prior acts. Id . at 773. This Court also noted the district court’s instruction to the jury carefully accounted for the fact that the statements made by the defendant were only to be considered on the issue of intent or proof of motive. Id.
[¶ 10] Our prior decision in Phelps is controlling in our resolution of this case with regard to the portions of the posts offered by the State. Wangstad’s first post stated, "I’ll be locked away in prison for a very brutal homicide." Wangstad was charged with attempted murder which requires the specific intent to commit a murder and the post was a reference to his potential future behavior. Wangstad’s first post also asserted that he would commit a homicide, was forward looking, and relevant to his intent on the day of the incident. Wangstad’s second post referred to the Minnesota Department of Corrections as the "MN Dept of Corruptions." The post also states "[the MN Dept. of Corrections] get to see what happens when you push a good person to[o] far." These statements were also forward looking and would tend to make it more probable that Wangstad had motive to commit a crime involving law enforcement.
[¶ 11] Wangstad relies heavily on State v. Aabrekke, where evidence of prior sexual contact with a victim was found to fall under N.D.R.Ev. 404(b). 2011 ND 131, 800 N.W.2d 284. In Aabrekke , testimony of prior sexual contact with a victim was admitted without an N.D.R.Ev. 403 analysis or a jury instruction regarding the evidence’s limited purpose. See generally id . In the current matter, the evidence offered by the State was not evidence of Wangstad’s prior conduct, and does not fall under Rule 404(b) as did the testimony of prior sexual abuse in Aabrekke . Further, the district court here weighed potential prejudice to the defendant against the relevance of the evidence and also gave the jury a limiting instruction. We conclude that our decision in Phelps , not Aabrekke , is controlling and the statements offered by the State were not evidence of prior bad acts.
[¶ 12] While we conclude the statements offered by the State were not evidence of prior bad acts requiring consideration under N.D.R.Ev. 404(b), this case is complicated by Wangstad’s subsequent election to include the entirety of the posts into evidence. The additional material within the posts included statements that can be considered evidence of prior bad acts. In particular, the following statements were contained in the second post:
I’ve done enough time for this "sexual" crime! I’ve given enough, I couldn’t go back, not again. So I ran. Was going to change my name and take my life back! 13 years! 13 years of hell! I’ve he[a]rd horrible things in that "classroom". Things I’ll never be able to un-hear! No Internet,...
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