State v. Schmeets

• Decision Date: 16 September 2009
• Docket Number: No. 20080225.,20080225.
• Citation: 772 N.W.2d 623,2009 ND 163
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Jeffrey SCHMEETS, Defendant and Appellant.
• Court: North Dakota Supreme Court

772 N.W.2d 623

2009 ND 163

STATE of North Dakota, Plaintiff and Appellee v. Jeffrey SCHMEETS, Defendant and Appellant.

No. 20080225.

Supreme Court of North Dakota.

September 16, 2009.

Walter M. Lipp (on brief), State's Attorney, McClusky, ND, for plaintiff and appellee.

Irvin B. Nodland (argued), Irvin B. Nodland, P.C., Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Jeffrey Schmeets appeals a district court's criminal judgment entered after a jury found him guilty of possession of controlled substances and drug paraphernalia. Because the district court erred by allowing evidence of Schmeets' two prior felony convictions to be introduced into evidence without conducting the balancing test required by N.D.R.Ev. 403, and because it is impossible to determine that the use of the evidence did not substantially affect Schmeets' right to a fair trial, we reverse and remand for a new trial.

[¶ 2] Schmeets was charged with drug violations in the fall of 2005. In April 2006, he entered two guilty pleas for possession of drug paraphernalia and controlled substances, for which he was sentenced to serve one year in the custody of the department of corrections, with the execution of the imprisonment suspended for two years, and three years of supervised probation. Schmeets was found eligible for a "diversion" program that allowed his parole officer to search Schmeets and his home at any time and required Schmeets to take a urine test twice a week. Because Schmeets tested positive for illicit drugs during a urinalysis in November 2006, his probation officer conducted a probation search in January 2007. During the search, one of the officers found a small corner of a sandwich bag with white residue in a burn barrel on Schmeets' premises. There was nothing else in the barrel, nor were similar bags found in the house. Schmeets was not arrested, but was put on supervised probation, and the earlier "diversion" program was ended.

[¶ 3] A second search was conducted in April 2007 after law enforcement officers received information from a third party about drugs and drug paraphernalia at Schmeets' home. During that search, the officers found on the kitchen floor a duffle bag containing various items, including psilocybin, methamphetamine, and marijuana. The officers also found cash, including $3,500 in a blue bank bag in a bedroom safe, $1,420 in an envelope, and $1,762 in Schmeets' wallet. Schmeets was arrested and charged with possession of drug paraphernalia, stemming from the January search, and possession of psilocybin, marijuana, drug paraphernalia, and methamphetamine with intent to deliver, stemming from the April search.

[¶ 4] At trial, Schmeets testified the items found during the two searches were not his; he guessed the duffle bag must belong to a drug offender whose car was found on Schmeets' premises on April 16, 2007, the day of the search. According to Schmeets' testimony, two other individuals were at his house on April 15; he suspected he must have been slipped something in his drink because he was feeling "groggy" when the officers woke him up on April 16. The State offered into evidence a piece of paper found in Schmeets' wallet, arguing that piece of paper was a "pay-owe" sheet, which is how drug dealers keep track of what they owe and are owed. Schmeets denied the note made reference to any drug transaction. He testified the note was a record-keeping note of his sales of Vigortone, an agricultural mineral product he was selling as an agent. He also testified some of the cash found in his house was from his recently having cashed in a cattle check. The State offered into evidence two certified judgments showing Schmeets' prior drug convictions, arguing the evidence was to show Schmeets' intent to possess drug paraphernalia. Schmeets' counsel objected, and the court allowed the evidence in for the limited purpose of determining whether items were drug paraphernalia under N.D.C.C. § 19-03.4-02(2).

[¶ 5] The jury found Schmeets not guilty of the charge of possession of drug paraphernalia stemming from the January search, but guilty of the charges stemming from the April search. Schmeets was then sentenced to five years' imprisonment on each count, to be served concurrently.

[¶ 6] Schmeets argues the district court committed several obvious errors affecting his substantial right to a fair trial. First, he argues the district court erred in allowing evidence of two prior felony convictions to be introduced.

[¶ 7] "The appellant bears the burden on appeal of proving error." State v. Raywalt, 436 N.W.2d 234, 238 (N.D. 1989). The standard of review of a district court's evidentiary rulings is abuse of discretion. State v. Jaster, 2004 ND 223, ¶ 12, 690 N.W.2d 213. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Id.

[¶ 8] Without providing notice under N.D.R.Ev. 404(b), the State offered into evidence certified copies of Schmeets' two prior felony convictions for the purpose of showing his intent to possess drug paraphernalia. Schmeets' counsel objected, but the district court allowed the prior convictions in for the limited purpose of determining whether an object is drug paraphernalia under N.D.C.C. § 19-03.4-02(2).

In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors:

....

2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance.

N.D.C.C. § 19-03.4-02(2).

[¶ 9] Section 19-03.4-02 of the North Dakota Century Code, previously found in N.D.C.C. § 12.1-31.1-02, lists several factors to be considered when determining whether an object is drug paraphernalia:

In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors:

1. Statements by an owner or by anyone in control of the object concerning its use.

2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance.

3. The proximity of the object, in time and space, to a direct violation of chapter 19-03.1.

4. The proximity of the object to controlled substances.

5. The existence of any residue of controlled substances on the object.

6. Direct or circumstantial evidence of the intent of an owner, or of any person in control of the object, to deliver the object to another person whom the owner or person in control of the object knows, or should reasonably know, intends to use the object to facilitate a violation of chapter 19-03.1. The innocence of an owner, or of any person in control of the object, as to a direct violation of chapter 19-03.1 may not prevent a finding that the object is intended or designed for use as drug paraphernalia.

7. Instructions, oral or written, provided with the object concerning the object's use.

8. Descriptive materials accompanying the object which explain or depict the object's use.

9. National and local advertising concerning the object's use.

10. The manner in which the object is displayed for sale.

11. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, for example, a licensed distributor or dealer of tobacco products.

12. Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.

13. The existence and scope of legitimate uses for the object in the community.

14. Expert testimony concerning the object's use.

15. The actual or constructive possession by the owner or by person in control of the object or the presence in a vehicle or structure where the object is located of written instructions, directions, or recipes to be used, or intended or designed to be used, in manufacturing, producing, processing, preparing, testing, or analyzing a controlled substance.

N.D.C.C. § 19-03.4-02. Section 12.1-31.1-02, N.D.C.C., repealed by 2001 N.D. Sess. Laws ch. 214, § 10, contained language similar to N.D.C.C. § 19-03.4-02. In 2001, the prior statute was repealed and a new chapter on drug paraphernalia, chapter 19-03.4, was enacted. Section 19-03.4-02, N.D.C.C. was virtually the same as the repealed section, except that the first sentence was amended to read: "In determining whether an object is drug paraphernalia, a court or other authority shall consider," instead of "should consider." (Emphasis added.)

[¶ 10] The only case addressing the previous statute is State v. Raywalt, 436 N.W.2d 234 (N.D.1989), which was decided prior to the 2001 amendment. In Raywalt, a jury found Raywalt guilty of possession of drug paraphernalia, and Raywalt appealed. 436 N.W.2d at 235. On appeal, Raywalt asserted the trial court erred by admitting into evidence "a certified copy of Raywalt's prior conviction of delivery of a controlled substance." Id. at 238. This Court discussed N.D.R.Ev. 403 and 404 and N.D.C.C. § 12.1-31.1-02, and held:

Admission of prior convictions is governed generally by Rules 403 and 404, N.D.R.Evid. Rule 404(b) provides that evidence of other crimes is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Although relevant for such purposes, evidence of other crimes may still be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." Rule 403, N.D.R.Evid. Thus, the trial court is called upon to balance the probative value of the evidence against its prejudicial effect in determining whether to admit evidence of a defendant's past crimes. State v. Micko, 393 N.W.2d 741, 744-745 (N.D.1986).

In addition, Section 12.1-31.1-02(2), N.D.C.C., provides that, in determining whether an...