State v. Glass

• Decision Date: 12 December 2000
• Docket Number: No. 20000126.,20000126.
• Citation: 620 N.W.2d 146,2000 ND 212
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Tanya R. GLASS, Defendant and Appellant.
• Court: North Dakota Supreme Court

620 N.W.2d 146

2000 ND 212

STATE of North Dakota, Plaintiff and Appellee, v. Tanya R. GLASS, Defendant and Appellant.

No. 20000126.

Supreme Court of North Dakota.

December 12, 2000.

Rick Lee Volk, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Tanya Renee Glass appeals from a judgment of conviction entered upon a jury verdict finding her guilty of driving under the influence of alcohol. Concluding the district court's jury instructions were proper and Glass failed to preserve her objection to the exclusion of testimony regarding bipolar disorder, we affirm the judgment of conviction.

I

[¶ 2] At approximately 1:30 a.m. on October 16, 1999, a Bismarck police officer stopped a vehicle, occupied solely by Glass, for failure to stop at a stop sign. The officer subsequently arrested Glass for driving under the influence of alcohol ("DUI"). Glass was convicted by a jury of driving under the influence of alcohol. She raises two issues on appeal: (1) whether the district court erred in excluding evidence of her bipolar disorder; and (2) whether the district court erred in failing to instruct the jury on the requisite culpability for the offense of DUI. Glass argues that exclusion of bipolar disorder evidence and failure to instruct on the required culpability for DUI were obvious error.

[¶ 3] The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06.

II

[¶ 4] If a defendant fails to preserve an issue for appeal, our standard of review requires a showing of "obvious error which affects substantial rights of the defendant." State v. Jones, 557 N.W.2d 375, 378 (N.D.1996) (quoting State v. Thiel, 411 N.W.2d 66, 70 (N.D.1987); N.D.R.Crim.P. 52(b)). "We exercise our power to consider obvious error cautiously and only in `exceptional situations where the defendant has suffered serious injustice.'" State v. Ash, 526 N.W.2d 473, 482 (N.D.1995) (quoting State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988)).

[¶ 5] We review 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. Wilson, 1999 ND 34, ¶ 11, 590 N.W.2d 202 (citations omitted).

III

[¶ 6] Glass argues the district court erred in excluding evidence of her bipolar disorder. She argues her bipolar disorder results in mood swings and the State used evidence of her mood swings at trial to demonstrate her impairment at the time of her DUI arrest. Glass argues she should have been allowed to present evidence of bipolar disorder, not as a mental disease or defect capable of being asserted as a defense, but rather as an explanation of her mood swings.

[¶ 7] When counsel for Glass asked the arresting officer about bipolar disorder, the State objected and requested a sidebar. At sidebar, the State argued Glass had an obligation under Rule 12.2 of the North Dakota Rules of Criminal Procedure to notify the State if she intended to introduce evidence of bipolar disorder. The district court sustained the objection on that basis, and defense counsel did not make an offer of proof.

A

[¶ 8] By failing to make an offer of proof, Glass did not preserve this issue for appeal. N.D.R.Ev. 103(a). "Error cannot be predicated upon a ruling which excludes evidence unless the party offering the evidence makes an offer of proof, or the substance of the evidence is apparent from the context in which the question was asked." State v. Jensen, 2000 ND 28, ¶ 17, 606 N.W.2d 507 (citing N.D.R.Ev. 103).

[¶ 9] At oral argument, Glass argued the purpose of the offer of the bipolar evidence was apparent to the district court. Our review of the record does not reveal the substance of the offer was clear. After the State objected, Glass did not inform the district court of the purpose for the questioning. Nor did Glass later attempt to introduce bipolar evidence through her own testimony. Had Glass informed the district court of the intended purpose of the offered evidence, she would have made the purpose of the offer apparent to the district court and would have preserved the issue for appellate review. However, without argument of counsel or an offer of proof, the district court could not be expected to know that Glass sought to offer testimony of bipolar disorder for the sole purpose of rebutting testimony about her mood swings. See State v. Goulet, 1999 ND 80, ¶ 10, 593 N.W.2d 345

(judges are not expected to understand a party's intention if that intention is not presented to the court); see also State v. Dymowski, 459 N.W.2d 777, 780-81 (N.D.1990) (absent objection or argument of counsel, this Court will not review claimed errors where there is no offer of proof or record by which the claimed error can be properly evaluated).

[¶ 10] "One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it." State v. Osier, 1999 ND 28, ¶ 14, 590 N.W.2d 205 (citing Beavers v. Walters, 537 N.W.2d 647, 652 (N.D.1995); State v. Neset, 216 N.W.2d 285 (N.D.1974)). "The Explanatory Note to N.D.R.Ev. 103 `clearly directs the parties to create a record which will permit informed appellate review.'" Id. (citing Gorsuch v. Gorsuch, 392 N.W.2d 392, 394 (N.D.1986)). Here, there is nothing in the record to permit an informed appellate review of Glass's asserted error. Because Glass failed to make an offer of proof and because the record does not establish the district court knew the rationale for Glass's intended evidence, the failure to object "acts as a waiver of the claim of error." City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring specially) (citing Andrews v. O'Hearn, 387 N.W.2d 716, 730 (N.D.1986)).

B

[¶ 11] Even though Glass effectively waived the issue, "the error may provide a basis for reversal if it constitutes obvious error affecting substantial rights of the defendant." Dymowski, 459 N.W.2d at 780 (citing State v. Smuda, 419 N.W.2d 166, 167-68 (N.D.1988)). "We exercise our power to consider obvious error cautiously and only in `exceptional situations where the defendant has suffered serious injustice.'" State v. Ash, 526 N.W.2d 473, 482 (N.D.1995) (quoting State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988)). In order for us to recognize obvious error, a defendant has the burden to show "(1) error, (2) that is plain, and (3) affects substantial rights." State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658 (citing United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). "In analyzing obvious error, our decisions require examination of the entire record and the probable effect of the alleged error in light of all the evidence." Id. at ¶ 12 (citing State v. Woehlhoff, 540 N.W.2d 162, 165 (N.D.1995)).

[¶ 12] The evidence shows that Glass's mood swings did not begin until after she had been arrested, had refused testing, was taken to jail, and was being booked into detention. The officer testified Glass had a strong odor of alcoholic beverage about her, she had difficulty with motor skills, she had bloodshot and glassy eyes, and she admitted she had "done wrong" and should therefore be arrested. The officer testified he observed erratic driving when Glass passed through a stop sign at a high rate of speed, and he testified Glass dropped her identification card on the vehicle's floorboard.

[¶ 13] Even absent chemical testing, the evidence presented here was sufficient to affirm the conviction. See State v. Shipton, 339 N.W.2d 87, 88-89 (N.D.1983)

; State v. Halvorson, 340 N.W.2d 176, 177-78 (N.D.1983); State v. Pollack, 462 N.W.2d 119, 121-22 (N.D.1990) (evidence sufficient for convictions in each instance, even without a chemical test).

[¶ 14] If there was error that was obvious, it "must affect `substantial rights,' that is, it must have been prejudicial, or affected the outcome of the proceeding." Olander, 1998 ND 50, ¶ 15, 575 N.W.2d 658. The burden of showing prejudice is on the defendant. Id. at ¶ 17. The record shows Glass was allowed to explain her behavior as having been caused by fear that her boyfriend may have been angry. Glass testified she was traveling in a direction other than the one described by the officer and therefore could not have failed to stop at a stop sign. Glass also testified she was not unsteady, she had naturally occurring nystagmus, she had only four or five beers, and she had not dropped her identification card on the vehicle's floorboard.

[¶ 15] We recognize obvious error only with extreme caution and have done so only in very limited circumstances. See Olander, 1998 ND 50, ¶ 12,

575 N.W.2d 658 (detailing cases recognizing obvious error). In light of all the evidence on the record, we conclude there was substantial evidence upon which the jury could find Glass guilty, and we decline to presume that exclusion of bipolar evidence was prejudicial or would have affected the outcome. Therefore, because Glass has failed to establish the alleged error affected her substantial rights, we conclude exclusion of the bipolar evidence was not obvious error.

IV

[¶ 16] Glass argues the district court erred in failing to instruct the jury regarding the required culpability for DUI. Glass argues DUI offenses do not specify a culpability level and are therefore "willful" offenses. The State argues the willful culpability level applies only to offenses in Chapter 12.1 of the North Dakota Century Code and therefore does not apply to DUI offenses contained in Chapter 39 of the Century Code.

[¶ 17] Glass bases her argument on N.D.C.C. § 12.1-02-02(2), which states provisions of the criminal code not prescribing culpability require a showing of willful culpability. "[W]...