State v. Chacano

• Decision Date: 26 February 2013
• Docket Number: No. 20120187.,20120187.
• Citation: 2013 ND 8,826 N.W.2d 294
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Vicente Erasno CHACANO, Defendant and Appellant.
• Court: North Dakota Supreme Court

826 N.W.2d 294

2013 ND 8

STATE of North Dakota, Plaintiff and Appellee

v.Vicente Erasno CHACANO, Defendant and Appellant.

No. 20120187.

Supreme Court of North Dakota.

Jan. 23, 2013.

Rehearing Denied Feb. 26, 2013.

Jackson J. Lofgren (argued) and Brian D. Grosinger (appeared), Special Assistant State's Attorneys, Mandan, ND, for plaintiff and appellee.

Mark T. Blumer, Fargo, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Vincente Chacano appeals from a criminal judgment entered after a jury found him guilty of two counts of attempted murder. Because the trial court did not err in admitting an audio recording of the courtroom scuffle, sufficient evidence exists to sustain the convictions, and the prosecutor's improper statement in closing argument does not reach the level of obvious error, we affirm the criminal judgment.

I

[¶ 2] In February 2011, Chacano was on trial in Adams County, but he was not in custody of law enforcement. After closing arguments, Chacano left to eat lunch, and he returned to the courtroom in early afternoon when the jurors had reached a verdict. After the guilty verdicts were read, the jurors were polled and then excused. As the jurors began exiting the courtroom, Chacano produced a handgun. A scuffle ensued, and Chacano was subdued by Assistant North Dakota Attorney General Jonathan Byers and then Sheriff Eugene Molbert. The State charged Chacano with attempted murder of Byers, Molbert, and the twelve jurors.

[¶ 3] At trial, the State offered an audio recording of the courtroom scuffle and evidence Chacano had brought a loaded handgun and three clips containing thirty-eight rounds of ammunition into the courtroom. Byers testified that as the jury began to leave, he turned and Chacano pointed the gun at him and pulled the trigger. Byers testified Chacano appeared bewildered when the gun did not fire and began working the gun's action. Byers lunged at Chacano to disarm him. Molbert testified that as he ran at Chacano, Chacano pointed the gun at him as well. The gun did not go off, and Byers and Molbert subdued Chacano.

[¶ 4] Chacano testified he did not bring the gun into the courtroom to harm anyone. Chacano testified that the night before the incident, he planned to shoot a predator that had killed some chickens at his rural home. Chacano testified he was unable to find the predator, so he put the gun in his pickup and went back to town. He testified he was not feeling well and was under considerable stress because of the trial. As he returned to court after the lunch recess, Chacano testified he saw the gun in his pickup and tucked it behind his waistband, planning to put it under the vehicle seat when he arrived at the courthouse. Later realizing he had the gun with him in the courtroom, Chacano testified he got up to get rid of it, and his “body felt like electricity,” he felt a pain in his head, and his “body was not responding.” He testified he next remembers being on the floor. The jury found Chacano guilty of attempted murder of Byers and Molbert and not guilty of attempted murder of the twelve jurors.

II

[¶ 5] On appeal, Chacano argues the trial court erred by admitting the audio recording into evidence because it was not relevant, and even if it was relevant, its probative value was outweighed by unfair prejudice.

[¶ 6] Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.D.R.Ev. 401. “Relevant evidence is generally admissible.” State v. Cain, 2011 ND 213, ¶ 31, 806 N.W.2d 597 (citing N.D.R.Ev. 402). However, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Cain, at ¶ 31 (quoting N.D.R.Ev. 403). A district court should exercise its power to exclude relevant evidence under N.D.R.Ev. 403 sparingly. Cain, at ¶ 31.

[¶ 7] “A district court has broad discretion in evidentiary matters, and [this Court] will not overturn a district court's decision to admit or exclude evidence unless the court abused its discretion.” State v. Jaster, 2004 ND 223, ¶ 12, 690 N.W.2d 213 (citing State v. Wiest, 2001 ND 150, ¶ 9, 632 N.W.2d 812). “A district court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law.” State v. Schmeets, 2009 ND 163, ¶ 7, 772 N.W.2d 623 (citing Jaster, at ¶ 9). On appeal, “[t]he appellant bears the burden ... of proving error.” Schmeets, at ¶ 7 (quoting State v. Raywalt, 436 N.W.2d 234, 238 (N.D.1989)).

[¶ 8] Chacano moved pretrial to exclude the audio recording under N.D.R.Ev. 403; however, we are unable to find an objection based upon relevancy in the record. Although this Court will not address issues that are raised for the first time on appeal, “[a]n obvious error or defect that affects substantial rights may be considered even though it was not brought to the court's attention.” State v. Clark, 2012 ND 135, ¶ 26, 818 N.W.2d 739 (quoting N.D.R.Crim.P. 52(b)).

[¶ 9] “This Court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.” State v. Clark, 2004 ND 85, ¶ 6, 678 N.W.2d 765 (citation omitted). When analyzing claims of obvious error, this Court may “notice a claimed error that was not brought to the attention of a trial court if there was (1) error, (2) that is plain, and (3) affects substantial rights.” Id. If the defendant “establishes a forfeited plain error affects substantial rights, we have discretion to correct the error and should correct it if it seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (citations and quotation omitted).

[¶ 10] To constitute obvious error, “[t]he error must be a clear deviation from an applicable legal rule under current law....” Clark, 2012 ND 135, ¶ 26, 818 N.W.2d 739 (citation omitted). Chacano has not made this showing. The recording was highly relevant. The State used it to show that seconds after the jurors' dismissal Chacano pointed the gun at Byers, who had just successfully prosecuted Chacano, and pulled the trigger, illustrating motive and intent. To convict Chacano of attempted murder of the twelve jurors, the State had to prove Chacano intentionally took a substantial step toward intentionally or knowingly killing each juror. Proving the jurors were still physically in the courtroom when Chacano produced the gun was a critical component of the State's case. A review of Chacano's trial strategy underscores this point. During the August 2011 preliminary hearing, Chacano's attorney repeatedly sought to establish the jurors had exited before the scuffle by questioning numerous witnesses whether the jurors were still in the courtroom when Chacano pulled the gun. At trial, Chacano's attorney asked Byers, the State's first trial witness, “[c]an you be sure that all ... 12 jurors were still in the courtroom?”

[¶ 11] Chacano argues the audio recording's probative value was outweighed by unfair prejudice and should have been excluded under N.D.R.Ev. 403 because “[t]he alarmed state of the persons heard on the tape could only inflame the passions of the jury....” We disagree. “Generally, any doubt about the existence of unfair prejudice ... should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge.” State v. Randall, 2002 ND 16, ¶ 15, 639 N.W.2d 439 (quotation omitted).

[¶ 12] The audio recording was highly probative for the same reasons it was relevant. Even if the audio recording had the potential to inflame the passions of the jury, to be excluded under Rule 403, its probative value had to be substantially outweighed by danger of unfair prejudice. This Court has stated even gruesome photos of a shotgun wound to the head at very close range were properly admitted because the “photographs were properly used to show the chain of events and the circumstances surrounding the murder.” State v. Klose, 2003 ND 39, ¶ 30, 657 N.W.2d 276. This Court in Klose noted the district court, in accordance with N.D.R.Ev. 403, balanced the probative value against potential prejudice and required the more gruesome photographs to be cropped before being admitted. Klose, at ¶ 30. Similarly, in this case, the audio recording shows the chain of events of the verdicts being read, the polling of the jury, and the timing of the jurors' dismissal relative to the scuffle. The trial court balanced the probative value against potential prejudice and admitted the audio recording. The court also issued a limiting instruction that Chacano's unidentified convictions, for which the prior jury had found him guilty, were on appeal and not final. Further, the fact that the jurors acquitted Chacano on twelve counts of attempted murder demonstrates admission of the audio recording did not unfairly prejudice him.

[¶ 13] We conclude it was not obvious error to admit the audio recording on relevancy grounds, and the district court did not abuse its discretion in admitting the audio recording because any potential prejudice did not substantially outweigh the recording's probativeness.

III

[¶ 14] Chacano argues the trial evidence was insufficient to sustain his attempted murder convictions. The issue in a sufficiency of the evidence appeal is whether evidence exists allowing the jury to draw an inference reasonably tending to prove guilt.

To successfully challenge the sufficiency of the evidence on appeal, a defendant must show there is no reasonable inference of guilt when viewing the evidence in the light most favorable to the verdict.... In deciding whether there is sufficient evidence, we do not resolve conflicts in the evidence nor do we weigh the credibility of the...