State v. Gefroh

• Decision Date: 22 January 1993
• Docket Number: Cr. N
• Citation: 495 N.W.2d 651
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Marty GEFROH, Defendant and Appellant. o. 920137.
• Court: North Dakota Supreme Court

Page 651

495 N.W.2d 651

STATE of North Dakota, Plaintiff and Appellee, v. Marty GEFROH, Defendant and Appellant.

Cr. No. 920137.

Supreme Court of North Dakota.

Jan. 22, 1993.

Lonnie W. Olson, Ramsey Co. State's Atty., Devils Lake, for plaintiff and appellee; submitted on brief.

Robert J. Woods, Woods Legal Services, Forest River, for defendant and appellant; submitted on brief.

NEUMANN, Justice.

Marty Gefroh appeals from a Ramsey County District Court judgment of conviction for terrorizing. ¹ He raises as issues the admissibility of evidence of a previous assault, the sufficiency of the evidence, and the admissibility of prior convictions for impeachment purposes. We affirm.

The event at issue occurred on November 15, 1991. Prior to that time, Gefroh and the complainant, Kim Getzlaff, dated intermittently for approximately ten years. They had two sons together; Tyler, who was five years old at the time of the offense, and Brandon, who was one. Earlier in November, Kim had obtained a kitten for Tyler. Shortly thereafter, Gefroh brought a second kitten to Kim's home, and asked that she keep it for her and the children. Kim objected, claiming she could not afford to care for two kittens, but the second kitten was left with Kim and their sons.

On November 15, 1991, while speaking on the telephone, Kim told Gefroh to take the second kitten back. Kim testified that Gefroh "blew up" on the phone and told her he was going to "come over, cut the cat's head off and let it bleed all over the floor" while Kim, Tyler, and Brandon watched. Gefroh came to Kim's house, repeated that he was going to kill the second kitten, grabbed the animal and a kitchen knife, and left. Gefroh returned less than a half hour later. According to Kim's testimony, he stated: "I killed my cat. I cut its head off. There's blood all over." Tyler was present when Gefroh made these statements.

Then Gefroh allegedly asked Tyler, "[S]hould I kill your cat too? Your mom can't afford him. I'm going to kill yours too." Gefroh proceeded to torture and mutilate the kitten Kim had gotten for Tyler. He hit it on the back of the head with a knife, burned its ears with a cigarette, and eventually threw it against the living room floor with such force that some of its internal organs emerged from its rectum, and it was unable to move its hindquarters. Both Tyler and Kim were present during this episode.

Gefroh's sister, Kathy Gefroh, was also present during some of the above events, although trial testimony is unclear as to when she left Kim's trailer. After leaving, Kathy telephoned the police. The police arrived, questioned Gefroh and Kim, and then asked that Gefroh leave and not bother Kim or the children further. The police also left, taking the kitten with them to be euthanized.

Approximately a half hour after leaving, Gefroh telephoned Kim. That conversation provided the basis for the terrorizing charges and conviction against Gefroh. At trial Kim testified that the conversation unfolded as follows:

"Q. What did he say?

"A. He was telling me that--asking me if we were broke up now if there was, you know, anything left and I told him no not after what he had done. I told him we were through. And then he said, 'Why did you guys have to call the cops?'

"Q. Was he angry at that point on the phone?

"A. Yes. And then he goes, 'I'm going to get revenge.' And he told me straight out on the phone that he was going to--

"Q. --What did he say?

"A. We were going to end up either with flat tires on our car, sugar in our gas tank or not wake up at all.

"Q. What exact language did he say? Was this a 'maybe you might,' or was this definite or what?

"A. He said it. He didn't say maybe on not. He came out straight and said, [w]e will wake up with either flat tires, sugar in our gas tank or not wake up at all."

Gefroh was found guilty of terrorizing and of mistreating an animal by a jury in the District Court for Ramsey County. He was sentenced to four years in the State Penitentiary. This timely appeal from the judgment of conviction for terrorizing follows.

I. ADMISSIBILITY OF PREVIOUS ASSAULTS ON THE COMPLAINANT

Gefroh's first issue on appeal is whether the trial court committed reversible error by allowing Kim to testify regarding a previous assault on her by Gefroh. We hold that it was not reversible error and affirm the trial court on this issue.

At pretrial conference on the day of trial, the State alerted the trial court and opposing counsel that it intended to question Kim about previous assaults on her by Gefroh. Gefroh's counsel objected to the introduction of such evidence as violative of Rules 402 and 403, N.D.R.Ev. ² He asserted that the evidence was too stale, highly prejudicial, and not relevant to the case. The State countered by citing Rule 404(b), N.D.R.Ev., which allows the limited use of prior bad acts for purposes other than proof of the present charge. ³ After hearing arguments from both parties, the trial court decided to allow the testimony, but limited it to only one instance, in the summer of 1990, in which the authorities were involved and Gefroh was criminally charged:

"So I'm going to permit the witness, Kim Getzlaff, to testify, but in a limited manner, Mr. Olson. I don't want any testimony as to any criminal charge. I don't want any testimony of the sentence of the disposition of that charge. She may testify that she had been struck or he had made prior threats in the relationship, that, in fact, she reported that to authorities if, in fact, she did or it came to the attention of authorities."

On appeal, Gefroh continues to assert that the evidence is highly prejudicial, irrelevant, and stale under Rules 402 and 403, N.D.R.Ev. We disagree. The standard for appellate review of trial court rulings admitting evidence under Rules 402 and 403 is well-established.

"The determination of whether or not evidence is relevant, and the balancing of the evidence's probative value against its prejudicial effect are also matters for the trial court to resolve in the exercise of its sound discretion. See [State v.] Huwe, [413 N.W.2d 350 (N.D.1987) ]; State v. Schimmel, 409 N.W.2d 335 (N.D.1987); State v. Kringstad, 353 N.W.2d 302 (N.D.1984). On appeal, we will not overturn a trial court's decision regarding the admission or exclusion of evidence on the State v. Haugen, 458 N.W.2d 288, 291 (N.D.1990). See also First Nat'l Bank and Trust Co. v. Brakken, 468 N.W.2d 633, 636 (N.D.1991); State v. Martinsons, 462 N.W.2d 458, 460 (N.D.1990).

ground of relevancy unless the trial court abused its discretion. See [State v.] Haugen, [448 N.W.2d 191 (N.D.1989) ]; State v. Newnam, 409 N.W.2d 79 (N.D.1987); State v. Olson, 290 N.W.2d 664 (N.D.1980). A trial court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner. State v. Kunkel, 452 N.W.2d 337 (N.D.1990); State v. Erban, 429 N.W.2d 408 (N.D.1988)."

We find no abuse of discretion in this instance. The trial court considered the arguments of both parties before ruling on the admissibility of the previous assaults on Kim by Gefroh. Furthermore, it limited the evidence to one incident, even though Kim claimed there were several. The trial court did not allow the State to delve into graphic details of the assault, but only to use the evidence as a brief background of the relationship between Kim and Gefroh. ⁴ The decision to allow the previous assault was not arbitrary, unconscionable, or unreasonable.

Additionally, the trial court based its decision to admit the evidence on Rule 404(b). The testimony of Gefroh's previous assault on Kim is admissible under the standards of that rule as well. In State v. Stevens, 238 N.W.2d 251 (N.D.1975), this Court scrutinized the admissibility of prior crimes or bad acts under Rule 404(b). At the outset, we stated that "evidence of prior acts or crimes cannot be received unless it is substantially relevant for some purpose other than to show a probability that a defendant committed a crime charged because he is a man of criminal character." Id. at 257. The analysis went on to recognize exceptions to the general rule, "allowing proof of other acts and offenses to show motive, intent, identity, scheme, or plan, and to show absence of mistake or accident." Id.

The Stevens opinion continued by enumerating criteria to be considered whenever Rule 404(b) is invoked. First, "a much stricter showing of relevancy is required to prove identity or the doing of the criminal act by the accused, than when it is offered to prove knowledge, intent, or state of mind." Id. Next, "there must be substantial evidence of prior similar acts," and the evidence must be clear and convincing. Id. Third, "there must be proof of commission of the crime charged." Id. Finally, the question is "one of balancing the aims of full disclosure and fairness to the defendant where they are in conflict. The basic question is fundamental fairness.... [T]he problem is not one of pigeonholing, but of balancing, of discretion rather than following a rule." Id. at 257-58.

Under these criteria, admission of Gefroh's previous assault on Kim was proper. Evidence of the prior bad act was clear and convincing because Gefroh had been criminally convicted for the assault. Furthermore, proof of the terrorizing charge itself was abundant. Lastly, the trial court balanced full disclosure with fairness to Gefroh and found disclosure of the charged assault to be the best alternative under the rule. The evidence of a previous assault was properly admitted to show Gefroh's intent or state of mind, and to give meaning to his threatening words. The evidence provided "a more complete story of the crime by putting it in context of happenings near in time and place." State v. Biby, 366 N.W.2d 460, 463 (N.D.1985) (quoting State v. Frye, 245 N.W.2d 878, 883 (N.D.1976)).

II. SUFFICIENCY OF THE EVIDENCE

Gefroh's second issue on appeal is whether the trial court erred by dismissing...