State v. Estrada

• Decision Date: 14 May 2013
• Docket Number: No. 20120270.,20120270.
• Citation: 2013 ND 79,830 N.W.2d 617
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Felipe ESTRADA, Defendant and Appellant.
• Court: North Dakota Supreme Court

830 N.W.2d 617

2013 ND 79

STATE of North Dakota, Plaintiff and Appellee

v.Felipe ESTRADA, Defendant and Appellant.

No. 20120270.

Supreme Court of North Dakota.

May 14, 2013.

Gary E. Euren (argued) and Kara Schmitz Olson (on brief), Assistant State's Attorneys, Fargo, N.D., for plaintiff and appellee.

Garrett D. Ludwig, Mandan, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Felipe Estrada appeals a district court judgment after a jury found him guilty of two counts of aggravated assault and two counts of reckless endangerment. We affirm.

I

[¶ 2] After a shooting incident in a Fargo movie theater parking lot, the State charged Estrada with attempted murder for shooting Juan Garza in an attempt to cause his death. Estrada was also charged with aggravated assault for striking Charles Roskom on the head with a handgun and fracturing his skull and with two counts of reckless endangerment for shooting in the direction of DeShawn Stodola as she ran away and for shooting toward members of the public inside the movie theater.

[¶ 3] At the jury trial, the State presented evidence Estrada shot Garza six times. The State presented eyewitness testimony from Garza, Garza's ex-wife Stodola, and Roskom.

[¶ 4] Stodola and Garza had been married and are divorced. Stodola dated Estrada for six years after the divorce. On the day of the shooting, Stodola and Garza were driving together to a gas station when Roskom, who was driving behind them, called to inform Garza that Estrada was following them. Garza, Roskom, and Estrada all pulled into the West Acres Theater parking lot. Garza and Estrada got out of their vehicles and started arguing. Estrada, carrying a handgun, shot at Garza, who then started running away. Stodola got out of Garza's car and ran through the parking lot toward the theater and saw Garza fall down after being shot. Estrada continued to shoot at and chase Garza, shooting him once after he had fallen down.

[¶ 5] Roskom hit Garza and Estrada with his car. He got out of his vehicle and threw his cell phone at Estrada in order to get close to him. Estrada hit Roskom in the head with his gun, fracturing his skull. Roskom was able to get the gun away from Estrada, and Estrada fled the scene. The only gun found at the scene was Estrada's handgun.

[¶ 6] The State also presented eyewitness testimony from three members of the public present at the theater and one movie theater employee who testified a bullet went through a movie theater window.

[¶ 7] In his defense, Estrada testified he put a gun and ammunition in his truck to go to the shooting range. He testified that he spoke with Stodola on the phone because she needed gas money and that she instructed him to meet her at West Acres movie theater. When he arrived at the theater parking lot, he testified, two vehicles approached him, a van carrying Garza and Stodola and a car carrying Lamont Nelson and Roskom. He testified he got out of his car and walked toward Stodola but was threatened by Garza, and he claims he saw Garza with a gun. He testified he then shot at Garza to disarm him. Estrada said he shot 10 times, shooting at Garza as he was running in between cars. He shot Garza in the shoulder after Garza was down on the ground. Estrada testified Roskom attacked him and he defended himself. Estrada testified he fled the scene in his car and was stopped by police and arrested.

[¶ 8] After all testimony was heard, jury instructions were given for self-defense after provocation and for excuse. The district court, at Estrada's request, also gave a lesser instruction for aggravated assault with a firearm or destructive device for the first count instead of attempted murder.

[¶ 9] The jury found Estrada guilty of the lesser charge of aggravated assault with a firearm or destructive device, aggravated assault, and two counts of reckless endangerment.

[¶ 10] The district court sentenced Estrada to ten years' imprisonment for aggravated assault with a firearm. The court also ordered him to serve four years for count two and two years for counts three and four with the sentences to run consecutively. Estrada appealed.

[¶ 11] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Estrada timely appealed under N.D.R.App.P. 4(b). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.

II

A

[¶ 12] Estrada argues the district court erred in giving a self-defense jury instruction that did not distinguish between the two separate defenses of justification and excuse.

[¶ 13] Estrada did not object to the district court's self-defense instruction. “We have long held that a party cannot claim error in jury instructions when that party has not offered a proposed instruction or objected to the instructions given.” State v. Glass, 2000 ND 212, ¶ 18, 620 N.W.2d 146. “When a party fails to adequately preserve the issue of allegedly improper jury instructions under N.D.R.Crim.P. 30(c), our inquiry is limited under N.D.R.Crim.P. 52(b) ‘to whether the court's failure to instruct the jury on this issue was obvious error affecting substantial rights.’ ” Id. at ¶ 19 (quoting State v. Olander, 1998 ND 50, ¶ 11, 575 N.W.2d 658). Under N.D.R.Crim.P. 52(b), when an issue has not been properly preserved for appeal, our review of the issue is limited “to whether the alleged error constitutes an obvious error affecting the substantial rights of the defendant.” State v. Kensmoe, 2001 ND 190, ¶ 21, 636 N.W.2d 183. We exercise our authority to notice obvious error cautiously and only in exceptional circumstances when the defendant has suffered serious injustice. State v. Foreid, 2009 ND 41, ¶ 13, 763 N.W.2d 475. “ ‘An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.’ ” Kensmoe, at ¶ 21 (quoting State v. Miller, 2001 ND 132, ¶ 25, 631 N.W.2d 587). “To establish obvious error, the defendant must show: (1) error; (2) that is plain; and (3) affects substantial rights.” State v. Carpenter, 2011 ND 20, ¶ 16, 793 N.W.2d 765 (citations omitted).

[¶ 14] “We consider the jury instructions as a whole, and determine whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone may be insufficient or erroneous.” State v. Smith, 1999 ND 109, ¶ 11, 595 N.W.2d 565 (internal quotation omitted). “ ‘The district court is not required to instruct the jury in the exact language requested by a party if the instructions given are not misleading or confusing, and if they fairly advise the jury of the law on the essential issues of the case.’ ” State v. Starke, 2011 ND 147, ¶ 12, 800 N.W.2d 705 (quoting State v. Blunt, 2010 ND 144, ¶ 24, 785 N.W.2d 909).

[¶ 15] Estrada first argues the district court erred when it failed to provide a justification jury instruction. He argues there was sufficient evidence presented to warrant an instruction for both justified self-defense and excused self-defense. The district court gave the following modified self-defense after provocation instruction to the jury:

A person may use force upon another to defend oneself against danger of imminent unlawful bodily injury, sexual assault, or detention by the other person. One may not use force if one causes bodily injury to the other person and had intentionally provoked the danger defended against or has entered into mutual combat with another person or is the initial aggressor, unless resisting force that is clearly excessive in the circumstances.

A person may use defensive force if, after one withdraws from an encounter and has indicated to the other person that one has done so, the other person nevertheless continues or menaces unlawful action.

[¶ 16] In explaining why it gave a modified instruction for self-defense after provocation, the district court said:

So Nonexistence of Defense would not need changing, in my opinion. Self–Defense After Provocation, I believe I would have to strike the word “justified.” It says “a person is justified.” I think it's more appropriate simply to say “a person may use force upon another.” I don't want the jury to think that the self-defense provocation instruction only applies to justification, because it would not. In my opinion, it would apply both to justification and excuse. So I'd have to take out the word “justified.”

Again, the Pattern Jury Instruction Commission makes these instructions in general for the vast majority of cases. In the vast, vast majority of cases in the state of North Dakota, self-defense is claimed as a justification, not an excuse. It can be claimed as an excuse. It has been claimed as an excuse. But the pattern jury instruction is for the quote/unquote “ordinary case.” So I'd have to do some modification there making it applicable to both.

....

And limits on deadly force, the word “justified” is listed there, I believe, in each paragraph. Again, I would strike the word “justified,” simply by, for example, in the first paragraph saying “a person may not use more force than is necessary,” and the like. So it could be argued and applied, because I believe it should under North Dakota law, to either or both excuse or justification self-defense.

So noting the excuse instruction that you're okay with as read into the record by the Court, any problem with those modifications so they apply to both justification and excuse, Mr. Mottinger?

MR. MOTTINGER: No.

(Emphasis added.) By omitting the word “justified,” the district court then sought to clarify to the jury that they may consider both justified and excused self-defense. The instruction given was not misleading or confusing, and the record shows the instruction given was an attempt to avoid any juror confusion. Although we do not consider it to be a model instruction, we conclude the district court's modified instruction for self-defense after provocation was not obvious error. State v....