State Of N.D. v. Wanner

• Decision Date: 30 June 2010
• Docket Number: No. 20090280.,20090280.
• Citation: 784 N.W.2d 143,2010 ND 121
• Parties: STATE of North Dakota, Plaintiff and Appelleev.Sonny WANNER, Defendant and Appellant.
• Court: North Dakota Supreme Court

784 N.W.2d 143

2010 ND 121

STATE of North Dakota, Plaintiff and Appelleev.Sonny WANNER, Defendant and Appellant.

No. 20090280.

Supreme Court of North Dakota.

June 30, 2010.

James A. Hope, Assistant State's Attorney, Dickinson, N.D., for plaintiff and appellee; submitted on brief.

Kent M. Morrow, Bismarck, N.D., for defendant and appellant; submitted on brief.

MARING, Justice.

[¶ 1] Sonny Wanner appeals from a criminal judgment entered on a jury verdict finding him guilty of criminal mischief. On appeal, Wanner argues there was insufficient evidence to sustain his conviction, and that the trial court erred when it failed to exclude the testimony of a State's witness as violative of a sequestration order. We affirm.

I

[¶ 2] Wanner was charged with criminal mischief, in violation of N.D.C.C. § 12.1-21-05, a class B felony, for willfully damaging property owned by another. On June 10, 2009, a jury trial was held. Numerous witnesses testified. The testimony revealed that at approximately 2:15 a.m. on April 12, 2008, fire damaged three vehicles owned by Casey Jones, Josh Jorde, and John Olheiser. Lieutenant Rick Shirey testified that law enforcement collected gas cans at the scene. Lieutenant Shirey located the same type of gas cans used in the fires at Wal-Mart. He asked a Wal-Mart employee to examine Wal-Mart's records. The employee reviewed surveillance tapes and receipts, and identified a sale of gas cans on April 11, 2008. The employee testified that, after the fires, Wanner asked him questions about the Wal-Mart surveillance system. The State showed video clips from the Wal-Mart surveillance tapes of a person purchasing gas cans and spray paint. Jones testified that she believed the person in the video was Wanner.

[¶ 3] At the scene, law enforcement noticed a spray-painted message on the outside of a townhome: “You sold drugs to the wrong kid, Bitch. Your kids are next.” A witness testified she had not seen the writing prior to the evening of the fires. A neighbor testified that he found a can of spray paint in his yard one to two weeks after the fire and notified law enforcement.

[¶ 4] Jones testified that she and Wanner have two children together and had been in a custody dispute. Jones and her boyfriend, Jorde, lived together in a townhouse with the children. A social services employee testified that, in 2007, Wanner made a report alleging Jones was using drugs, she was living with a man who had a history of drug abuse and violence, and did not have money for food, formula, beds, and appropriate clothing for the children.

[¶ 5] Jerome Kuntz testified that Wanner told him multiple times over the course of three months that Wanner “was going to torch [Jones's] car.” Wanner had asked Kuntz if he could take some gas cans from Kuntz's quonset, but Kuntz refused. The State introduced testimony through Wanner's mother's deposition. Wanner had told his mother maybe weekly that he was going “to do something to [Jones's] car.” Wanner also told his mother that he had purchased eighteen cans of spray paint and had painted his vehicle. He told his mother he intended to travel to Towner the evening of the fire, but a friend testified Wanner was at his apartment until 2:00 or 2:30 a.m.

[¶ 6] At the start of the trial, Wanner moved to sequester witnesses, and the trial court granted Wanner's motion. Lieutenant Shirey sat at the State's table during the first day of trial and prior to his own testimony. Wanner objected when Lieutenant Shirey was called to testify. After Lieutenant Shirey testified, Wanner argued the sequestration order should have prevented Lieutenant Shirey from testifying because he was present during other witnesses' testimony and the State failed to designate Lieutenant Shirey as its representative. Wanner requested a mistrial or a curative instruction to the jury. The State argued that under N.D.R.Ev. 615(ii), the trial court cannot exclude an officer because the rule allows the State to have a representative present. The trial court denied the motion for a mistrial and noted that the information Lieutenant Shirey heard was redundant and cumulative. The court stated, “I don't think that he's heard anything that anybody's surprised about, so I don't think there's any harm.” The trial court also refused to give Wanner his proposed curative jury instruction on the grounds the State had not violated the sequestration order. Lieutenant Shirey did not remain in the courtroom after he testified.

[¶ 7] The jury convicted Wanner of criminal mischief. Wanner appeals, arguing there was insufficient evidence to sustain a conviction, and the trial court erred when it failed to exclude the testimony of Lieutenant Shirey as violative of the sequestration order.

II

[¶ 8] Wanner argues the evidence was insufficient to support the jury verdict convicting him of criminal mischief. According to Wanner, the evidence presented was circumstantial and too tenuous to connect him to the crime, and it was mere speculation that he was in the general vicinity of the crime. See State v. Holy Bull, 238 N.W.2d 52, 55 (N.D.1975).

[¶ 9] This Court has provided the standard for review when a defendant challenges the sufficiency of the evidence:

Appellate review of the sufficiency of the evidence for a jury verdict is very limited. When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses.... A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.

State v. Dahl, 2009 ND 204, ¶ 6, 776 N.W.2d 37 (quoting State v. Demarais, 2009 ND 143, ¶ 7, 770 N.W.2d 246). Section 12.1-21-05, N.D.C.C., governing criminal mischief, provides:

1. A person is guilty of an offense if that person:

a. Willfully tampers with tangible property of another so as to endanger person or property; or

b. Willfully damages tangible property of another.

2. The offense is:

a. A class B felony if the actor intentionally causes pecuniary loss in excess of ten thousand dollars.

[¶ 10] At trial, testimony revealed that Wanner and Jones were in a custody dispute; Wanner told one person he was going to torch Jones's car; Wanner told his mother he was going to do something to Jones's car; Jones identified Wanner in the Wal-Mart surveillance video purchasing gas cans and spray paint; the jury had the opportunity to review the videotape; and Wanner had recently spray painted his car. Further, Wanner's friend testified Wanner was with him in Dickinson until about 2:00 or 2:30 a.m. the morning of the fire. The fire was reported at approximately 2:15 a.m. Moreover, a message was spray-painted on the townhome wall that could reasonably have been interpreted by a jury as directed at Jones. We hold competent evidence exists to allow the jury to draw an inference reasonably tending to prove guilt and fairly warranting a criminal mischief conviction.

III

[¶ 11] Wanner argues the trial court erred when it allowed Lieutenant Shirey to testify after violating the sequestration order. Wanner contends the State violated the court's sequestration order because it failed to designate Lieutenant Shirey as a representative prior to trial. He also argues the trial court erred by refusing to provide a curative jury instruction.

A

[¶ 12] Rule 615, N.D.R.Ev., provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

This rule is derived from Rule 615 of the Federal Rules of Evidence. State v. Hill, 1999 ND 26, ¶ 4, 590 N.W.2d 187. Because of the similarities between our rule and the federal rule, we may also consider federal precedent in our interpretation. State v. Buchholz, 2004 ND 77, ¶ 24, 678 N.W.2d 144. Under N.D.R.Ev. 615, “ ‘[i]t is mandatory to order exclusion of witnesses when requested by a party.’ ” State v. Muhle, 2007 ND 132, ¶ 34, 737 N.W.2d 647 (quoting State v. Skorick, 2002 ND 190, ¶ 4, 653 N.W.2d 698). The rule departed from prior law, which provided that the exclusion of a witness was a matter within the trial court's discretion. N.D.R.Ev. 615, Explanatory Note see Jack B. Weinstein and Margaret A. Berger Weinstein's

Federal Evidence § 615.03[1] (2d ed.2010).

[¶ 13] The purpose of sequestration is to prevent one witness's testimony from influencing another. Nesvig v. Nesvig, 2006 ND 66, ¶ 20, 712 N.W.2d 299. Sequestration also permits discovery of false testimony and credibility issues. Buchholz, 2004 ND 77, ¶ 24, 678 N.W.2d 144. This Court reviews a trial court's decision to permit a witness to testify even though the witness heard prior testimony in violation of a sequestration order under an abuse of discretion standard. Muhle, 2007 ND 132, ¶ 35, 737 N.W.2d 647; see also United States v. Vallie, 284 F.3d 917, 921 (8th Cir.2002). “ ‘If the objecting party clearly shows by offer of proof or other appropriate means, a witness's testimony would be influenced by prior testimony the witness heard in violation of a sequestration order, it would be an abuse of discretion for the court to allow the witness to testify.’ ” Muhle, at ¶ 35 (quoting Hill, 1999 ND 26, ¶ 14, 590 N.W.2d 187).

[¶ 14] Our review of this...