State v. Clark, 20030238.

• Decision Date: 19 April 2004
• Docket Number: No. 20030238.,20030238.
• Citation: 678 N.W.2d 765,2004 ND 85
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Larry CLARK, Defendant and Appellant.
• Court: North Dakota Supreme Court

678 N.W.2d 765

2004 ND 85

STATE of North Dakota, Plaintiff and Appellee v. Larry CLARK, Defendant and Appellant.

No. 20030238.

Supreme Court of North Dakota.

April 19, 2004.

Ladd Ronald Erickson, State's Attorney, Washburn, ND, for plaintiff and appellee.

Chad R. McCabe, Vinje Law Firm, Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Larry Clark appealed from a criminal conviction entered upon a jury verdict finding him guilty of aggravated assault and reckless endangerment. We conclude the State's closing argument was not obvious error, and we affirm.

I

[¶ 2] Clark was charged with reckless endangerment under N.D.C.C. § 12.1-17-03 for willfully creating a substantial risk of serious bodily injury or death to his daughter by stopping a motorcycle on which she was a passenger in front of a moving semi-truck driven by Jeff Gerou and with aggravated assault under N.D.C.C. § 12.1-17-02(1) for willfully causing serious bodily injury to Gerou.

[¶ 3] According to Clark, he was driving his motorcycle about 50-55 mph with his ten-year-old daughter as a passenger on a county road in McLean County and Gerou was hauling gravel in his semi-truck from a gravel pit near Riverdale, when Gerou turned onto the county road right in front of Clark. According to Clark, he took evasive action through a ditch, pulled up past Gerou's truck, parked his motorcycle on the side of the road, and walked to the middle of the road to stop Gerou. According to Clark, he

started running back to [Gerou's truck] and I was screaming some profanity, that he damn near killed us and run us off the road. And he was sitting up in his truck, had his window down and, you know, I said, "You damn near killed us," I said, "you run us off the road." [He said,] "I didn't see you." I said, "That's the problem, you guys aren't looking, you're not even looking and," I said, "this is the third time in less than two weeks I've been chased in the ditch here and," I says, "the only difference is this time I've got my daughter with me." And he looked out the window and he had this spacey, big dilated eyes and he went, "So what," he went. I said, "Get out of the truck, let's talk about this." And he said, "No, I'm not getting out." So I said, "I'm coming up there," and I grabbed the handrail and I started up; and he swung the door at me and I swung around and I just about got my arms on the stacks, got my balance and I got back. I was going to pull myself up and he kept slamming the door trying to knock me off.... He kept trying to knock me off with the door and I was hanging on here (indicating) and finally I got my hand on the door and held it open like this (indicating) and I started to pull myself up, you know, up closer to his height.... As I was coming up, he had his seat belt on, he turned, he went to throw a punch at me, kind of down; and I just held on with this here one so I threw a left as he was coming around and kind of had my head down a little bit `cause like I said I was a little bit below him and I seen his arm starting to come and I hit him; and his head snapped around and he looked back and he goes, "You crazy bastard." And I told him, I said, "No, you're the crazy bastard." ... I pulled myself up even with him, I grabbed on to the A post and he looked at me and he went—he just hyperventilated and he started to throw a punch again and I was standing there, I was hanging on with my left hand then I just hit him in the jaw. He just kept shaking his head and hyperventilating and he tried it probably three times. The last time I seen blood coming out of his nose and down his mustache and he tried one more hit and I hit him and then he turned around and he goes, "Okay, okay, I'm sorry," he said, "I'm sorry." I said, "It's kind of late for that now." ... I got down off the truck. You know, I got down, I turned around, looked back at him and he picked his cell phone up off his console kind of over here (indicating) and he was dialing on it and I just walked away and got on the motorcycle and left.

[¶ 4] According to Gerou, he saw a motorcycle about one-half or one-quarter mile down the road when he turned onto the county road, and he

rounded the corner, started shifting gears and watched the motorcycle in my mirror as I rounded the corner and once I got going above 20, 25 miles an hour, I couldn't see behind me because of the dust.... I no more than drove a couple of minutes and a motorcycle came out of the dust beside me waving his arms and pointing for me to pull over so I start to stop. The motorcycle pulled in front of me, ... I couldn't see his motorcycle in front of my truck. I couldn't see him over the hood of my truck.... Oh, I locked up the tires, I had to or I would have run him over. I mean, he cut in front of me, was waving his arms and turned in front of me and was pointing to pull over and I had no choice.... I was reaching to set brakes and I saw his helmet round the corner of my truck and I went to open my door to him figuring he was going to tell me my gates were open or I had a flat tire, something of that nature, so I opened my door to him. I turned my head to set my brakes and the next thing I knew I got hit in the head. I turned to look at him and met his hand hitting my face, after that [the n]ext thing I remember is another driver at my door wiping my face with a wet rag.

A jury found Clark guilty of aggravated assault and reckless endangerment.

II

[¶ 5] Clark argues obvious error occurred during the State's closing argument. He argues the prosecutor incorporated his personal beliefs into his closing argument, vouched for the credibility of the complaining witness, commented on facts not in evidence, improperly asked jurors to place themselves in the shoes of Gerou, and suggested Clark had the burden of proof for the defense of excuse. Clark concedes he did not object to the prosecutor's closing argument and review of these issues is for obvious error.

[¶ 6] 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. Anderson, 2003 ND 30, ¶ 8, 657 N.W.2d 245; State v. Evans, 1999 ND 70, ¶ 9, 593 N.W.2d 336. In State v. Olander, 1998 ND 50, ¶ 13, 575 N.W.2d 658, we applied the plain error framework from federal law for analyzing claims of obvious error under North Dakota law. We said an appellate 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. at ¶ 14. Under that framework, we said that once an accused establishes a forfeited plain error affects substantial rights, we have discretion to correct the error and should correct it if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at ¶ 16 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

[¶ 7] A trial court is vested with discretion to control the scope of closing argument, and we will not reverse on the ground the prosecutor exceeded the scope of permissible closing argument unless a clear abuse of discretion is shown. State v. Skorick, 2002 ND 190, ¶ 11, 653 N.W.2d 698; Evans, 1999 ND 70, ¶ 11, 593 N.W.2d 336; City of Williston v. Hegstad, 1997 ND 56, ¶ 8, 562 N.W.2d 91. Unless an error is fundamental, a defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial. Skorick, at ¶ 11; Evans, at ¶ 11. To be prejudicial, improper closing argument must have stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence. Evans, at ¶ 11.

A

[¶ 8] Clark argues the prosecutor incorporated his personal beliefs into his closing argument and vouched for the credibility of the complaining witness. During closing argument, the prosecutor said:

Okay. There are some things in this case that don't make any sense. I don't know how to try to justify them, I don't know if I can, there's a term that was coined about—probably over ten years now out on the West Coast called "road rage" and it didn't make any sense where you heard about those cases where people stuck in traffic would get into confrontations because somebody cut them off or whatever and they would just lose control and there was a big battle. That doesn't make sense.

Another thing that doesn't make a lot of sense to me, Mr. Clark reports this to the police in a couple different ways.... And in his statement—and I was not out there, I'm not submitting that I was—he makes a lot of dramatic claims. This is the third time in a couple weeks he almost got run off that road, that his head was almost right by the tire, that this driver was speeding through this intersection when they turned and cut him off. Okay. That the driver, when he walked up to him to just talk to him, said when he said you almost killed us and he said, so what, he was empathetic, he was cocky or whatever, he made all these claims.

Well, what doesn't make sense to me if any of that or part of that is true is why, when you live out there and you know that there's an intersection that supposedly in the last—let's see, I'm going to move these corners—right here is the gravel pit, here's where Mr. Clark comes from his house (indicating). It's just a questionable spot. This is supposedly this dangerous spot, that this is the third time now he was run off the road, okay. Okay. If that was true, it doesn't make sense to me if you're an experienced motorcycle driver that you would go 50 miles an hour or 55, whatever he said he was going, down this road with your daughter on the back approaching this intersection knowing a truck's coming, already claiming that these guys don't watch, that they just pull out, into his way, that they speed. Why would you ever put

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