State v. Jennewein

• Decision Date: 05 August 2015
• Docket Number: Nos. 20140368,20140369.,s. 20140368
• Citation: 867 N.W.2d 665
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Tyler James JENNEWEIN, Defendant and Appellant. City of Grand Forks, Plaintiff and Appellee v. Tyler James Jennewein, Defendant and Appellant.
• Court: North Dakota Supreme Court

867 N.W.2d 665

STATE of North Dakota, Plaintiff and Appellee

v.Tyler James JENNEWEIN, Defendant and Appellant.

City of Grand Forks, Plaintiff and Appellee

v.Tyler James Jennewein, Defendant and Appellant.

Nos. 20140368

20140369.

Supreme Court of North Dakota.

Aug. 5, 2015.

Rehearing Denied Aug. 25, 2015

Carmell F. Mattison, Grand Forks County State's Attorney Office, and Aaron Weber (on brief), under the Rule on Limited Practice of Law by Law Students, Grand Forks, N.D., for plaintiff and appellee.

Sarah W. Gereszek, Grand Forks, N.D., for plaintiff and appellee.

Kiara C. Kraus–Parr, Grand Forks, N.D., for defendant and appellant.

Opinion

CROTHERS, Justice.

[¶ 1] Tyler James Jennewein appeals from criminal judgments entered on jury verdicts finding him guilty of class A misdemeanor driving under the influence of liquor or drugs and class B misdemeanor driving under suspension. Because we conclude the district court did not abuse its discretion in its challenged rulings and did not misapply the law, we affirm.

I

[¶ 2] During the early morning hours of October 5, 2013, a Grand Forks police officer stopped a vehicle after observing it screech to a halt at an intersection, causing a group of people to jump out of the crosswalk. The officer approached the vehicle and found Jennewein sitting in the front passenger seat. While the officer spoke with Jennewein, Jennewein's girlfriend ran up to the vehicle and sat in the driver's seat. The officer went to the driver's side of the vehicle to speak with Jennewein's girlfriend and noticed a glass marijuana pipe lying on the ground below the driver's side window. Jennewein denied driving the vehicle, Jennewein's girlfriend said she had been driving and neither Jennewein nor his girlfriend claimed possession of the pipe. The officer returned to the passenger side of the vehicle and observed that Jennewein exhibited signs of intoxication. After Jennewein performed field sobriety tests, the officer placed him under arrest for driving under the influence, driving under suspension and possession of drug paraphernalia.

[¶ 3] Jennewein's first trial in July 2014 resulted in a mistrial. A second trial was held on September 30 and October 1, 2014. Jennewein's defense was that he was not the driver of the vehicle, his girlfriend was the driver and the paraphernalia was not his. Jennewein's girlfriend testified as a witness for the prosecution and on cross-examination admitted she was the driver of the vehicle. Jennewein rested without testifying or presenting any evidence. The jury found Jennewein guilty of driving under the influence and driving under suspension, but not guilty of possessing drug paraphernalia. The conviction was Jennewein's third alcohol-related driving offense within seven years, and his sentence included one year of supervised probation with one year of participation in the 24/7 sobriety program.

II

[¶ 4] Jennewein argues the district court erred in allowing the prosecution to introduce into evidence two certified copies of criminal driving under the influence judgments because the prosecution failed to disclose the documents prior to trial in violation of N.D.R.Crim.P. 16.

[¶ 5] The criminal information charged that the October 5, 2013, incident was Jennewein's “third offense in seven years,” making the crime a class A misdemeanor. See N.D.C.C. § 39–08–01(3). On December 10, 2013, Jennewein made a “continuing” request for discovery from the State, including his “criminal record.” Jennewein received a driver abstract issued by the Department of Transportation. At the first trial, Jennewein stipulated this charge would be a third offense and the jury instructions did not include as an element of the crime proof of the prior convictions. Before the second trial, the prosecution submitted identical proposed jury instructions and Jennewein requested pattern jury instructions which did not require proof of the two prior convictions to establish the class A misdemeanor level of the offense. At a final dispositional conference on September 26, 2014, Jennewein's attorney informed the court and the prosecution she was not stipulating to “everything,” but did not mention she was no longer stipulating to the prior offenses.

[¶ 6] On the first day of trial the prosecution learned Jennewein would not stipulate to the two prior offenses. That same day the prosecution acquired certified copies of criminal judgments from Grand Forks Municipal Court and Clay County, Minnesota. The prosecution informed the district court it would be amending the jury instructions to require proof of the prior convictions as an element of the offense. On the second day of trial, Jennewein objected to admission of the certified copies of the convictions on the ground the prosecution violated its discovery obligations because “they've had a year to get me this information [and] they've chosen the second day of trial.” The court denied Jennewein's objection and the certified copies of the convictions were admitted into evidence.

[¶ 7] Rule 16, N.D.R.Crim.P., governs discovery in criminal cases and provides in subsection (a)(1)(C):

“(C) Defendant's Previous Record. Upon a defendant's written request, the prosecution must furnish the defendant with a copy of the defendant's prior criminal record, if any, that is within the prosecution's possession, custody, or control if the prosecuting attorney knows—or through due diligence could know—that the record exists.”

“Rule 16 is a discovery rule, not a constitutional mandate, and is designed to further the interests of fairness.” City of Grand Forks v. Ramstad, 2003 ND 41, ¶ 17, 658 N.W.2d 731. If a party fails to comply with the discovery rules, a district court may “prohibit that party from introducing the undisclosed evidence.” N.D.R.Crim.P. 16(d)(2)(iii). A court has discretion in applying a remedy for a discovery violation under N.D.R.Crim.P. 16(d)(2) and we will not disturb its decision unless the court abused its discretion. Ramstad, at ¶ 17. “The district court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.” State v. Schmidt, 2012 ND 120, ¶ 20, 817 N.W.2d 332 (internal quotation marks and citation omitted).

[¶ 8] Under N.D.R.Crim.P. 16(a)(1)(C), the prosecution must furnish the defendant a copy of his criminal record “that is within the prosecution's possession, custody, or control.” Here, Jennewein was provided his driver abstract and decided to stipulate to the two prior convictions during the first trial. The prosecution, therefore, had no need to obtain evidence of the convictions at that time.See State v. Saul, 434 N.W.2d 572, 575 (N.D.1989) (“We hold that if the defendant stipulates to prior convictions when charged under the enhancement provisions of Section 39–08–01, the submission of evidence of the defendant's prior convictions to a jury constitutes prejudicial and reversible error.”). During the second trial, Jennewein changed his strategy and informed the prosecution he no longer would stipulate to the convictions. Upon learning of Jennewein's change of strategy, the prosecution obtained certified copies, turned them over to Jennewein upon their receipt and offered them into evidence. Jennewein cannot lead the prosecution into believing certified copies of the convictions would be unnecessary and then complain of a discovery violation when he receives those documents only upon communicating his last-minute change of trial strategy. Rather, on this record we conclude the prosecution complied with Rule 16 when it acquired and produced copies of the convictions soon after it knew evidence of the convictions was necessary due to Jennewein's change of strategy.

[¶ 9] Jennewein nevertheless contends he suffered substantial prejudice because the jury was not instructed that he must have had counsel or properly waived counsel for the prior convictions to be valid for purposes of finding him guilty of the class A misdemeanor charge. Cf. State v. Orr, 375 N.W.2d 171, 179 (N.D.1985) (“[T]he State, in seeking to imprison Orr as a second offender based on his earlier presumptively void uncounseled conviction, had the burden to overcome this presumption once Orr raised the issue in a pretrial proceeding by resisting the motion to amend.” (footnote omitted)). However, Jennewein did not request that additional instructions be given to the jury. “Under N.D.R.Crim.P. 30(c), failure to object at trial to jury instructions when there was an opportunity to do so operates as a waiver of the right on appeal to complain of instructions that either were or were not given.” State v. Mathre, 2004 ND 149, ¶ 21, 683 N.W.2d 918. “[I]f a defendant desires a more comprehensive instruction on any point of law than what the [district] court has indicated it will give, the defendant must request specific written instructions, and if the defendant fails to do so he cannot predicate error upon omissions in the charge given.” State v. Erickstad, 2000 ND 202, ¶ 18, 620 N.W.2d 136.

[¶ 10] We conclude Jennewein has failed to establish the prosecution violated the discovery rules. The district court did not abuse its discretion in admitting the certified copies of the convictions into evidence.

III

[¶ 11] Jennewein argues the district court erred in refusing to grant his motion to sever for separate trials the offenses of driving under the influence and under suspension, and possession of drug paraphernalia.

[¶ 12] Under N.D.R.Crim.P. 8(a), two or more offenses may be joined for trial if the offenses charged “are of the same or similar character or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Under N.D.R.Crim.P. 14(a), a district court may order separate trials of counts if joinder of offenses “appears to prejudice a defendant.” In State v. Freed, 1999 ND 185, ¶ 11, 599 N.W.2d...