State v. Smith
| Decision Date | 05 January 2023 |
| Docket Number | 20220063 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. De'Jonte Lavon SMITH, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Nathan K. Madden, Assistant State's Attorney, Williston, ND, for plaintiff and appellee; submitted on brief.
Scott O. Diamond, Fargo, ND, for defendant and appellant; submitted on brief.
[¶1] De'Jonte Smith appealed from a criminal judgment entered after a jury found him guilty of reckless endangerment and tampering with physical evidence. We affirm the conviction for reckless endangerment, concluding the district court did not err by failing to include a self-defense jury instruction. We reverse the felony conviction for tampering with physical evidence, concluding the omission of an essential element of the tampering charge was an obvious error and there was insufficient evidence that Smith substantially obstructed, impaired, or perverted prosecution for a felony. We remand for the district court to enter a judgment of acquittal on the charge of tampering with physical evidence.
[¶2] In 2019, Smith was charged with attempted murder, reckless endangerment, and tampering with physical evidence related to a shooting that occurred at Outlaws’ Bar and Grill (Outlaws) in Williston. The State alleged Smith shot another person multiple times outside Outlaws; Smith fired one or more shots in the direction of Outlaws, which was occupied at the time; and Smith removed or concealed a gun, clothing, or personal electronics from the scene of the shooting.
[¶3] The district court held a jury trial. The jury found Smith was guilty of reckless endangerment and tampering with physical evidence, but not guilty of attempted murder. The district court sentenced Smith to five years in prison on both the charges of reckless endangerment and tampering with physical evidence, with the sentences to run concurrently. A criminal judgment was entered.
[¶4] Smith argues the district court erred by failing to instruct the jury that the non-existence of self-defense was an essential element of the charge of reckless endangerment. He contends the issue of self-defense was raised during the trial, the court determined sufficient evidence was presented to support a self-defense claim, and the jury was instructed that the non-existence of self-defense was an essential element of the charge of attempted murder. He claims that the same factual basis existed for the charges of attempted murder and reckless endangerment and, therefore, a self-defense instruction should have been given for the reckless-endangerment charge.
[¶5] Smith concedes he did not argue this issue to the district court and contends the alleged error is an obvious error. Under N.D.R.Crim.P. 52(b), we may consider an obvious error that affects substantial rights even though the issue was not brought to the district court's attention. See State v. Landrus , 2022 ND 107, ¶ 6, 974 N.W.2d 676 ; see also State v. Dahl , 2022 ND 212, ¶ 11 (). To establish an obvious error, the defendant must show: "(1) error; (2) that is plain; and (3) the error affects the defendant's substantial rights." Landrus , at ¶ 6 (quoting State v. Pemberton , 2019 ND 157, ¶ 9, 930 N.W.2d 125 ). "We exercise our power to consider obvious error cautiously and only in exceptional situations where the defendant has suffered serious injustice." Landrus , at ¶ 6 (quoting Pemberton , at ¶ 9 ). We have discretion in deciding whether to correct an obvious error, and we "should exercise that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Pemberton , at ¶ 9 (quoting State v. Patterson , 2014 ND 193, ¶ 4, 855 N.W.2d 113 ).
[¶6] The district court determined there was sufficient evidence presented to support a self-defense claim. The jury was given a general instruction about self-defense, stating:
Evidence has been presented that the Defendant acted in self-defense. The State must prove beyond a reasonable doubt, as an additional element of the offense charged, that the Defendant was not acting in self-defense. The Defendant does not have the burden of proof as to this defense. If the State has failed to prove beyond a reasonable doubt that the Defendant did not act in self-defense, the defendant is entitled to a verdict of not guilty.
The jury was instructed that the essential elements of the charge of attempted murder included, "[T]he Defendant did not act in self-defense." Unlike the instruction for the charge of attempted murder, the reckless-endangerment jury instruction did not include that the non-existence of self-defense was an essential element.
[¶7] Smith submitted proposed jury instructions and requested the essential elements of the charge of attempted murder include that he did not act in self-defense, but he did not request the court include the same language in the instruction on reckless endangerment. The district court gave the instructions Smith requested on reckless endangerment. Smith did not object to the instruction on reckless endangerment or request any additional instruction at trial.
[¶8] We have said, "It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party." State v. Houle , 2022 ND 96, ¶ 7, 974 N.W.2d 401 (quoting State v. Rende , 2018 ND 56, ¶ 9, 907 N.W.2d 361 ). Obvious error review under N.D.R.Crim.P. 52(b) does not apply to waived or invited errors. State v. Gaddie , 2022 ND 44, ¶ 4, 971 N.W.2d 811. Smith may not seek reversal of an error he waived or invited. He requested the instruction on reckless endangerment that was given, and he never objected to the instruction or requested additional language. Because Smith requested and agreed to the instruction, the error was waived. See Houle , at ¶ 7 (); see also Rende , at ¶ 10 (). Smith invited any error related to the instruction on reckless endangerment, and he may not now seek reversal for an error he invited.
[¶9] Smith argues the district court erred by failing to instruct the jury on the essential elements of the offense of tampering with physical evidence.
[¶10] Jury instructions must correctly and adequately inform the jury of the law. Landrus , 2022 ND 107, ¶ 8, 974 N.W.2d 676. We review jury instructions as a whole to determine whether they adequately and correctly inform the jury of the law. Id. The instructions are sufficient if, as a whole, they correctly advise the jury of the law, even if part of the instructions, standing alone, may be erroneous. Id.
[¶11] Section 12.1-09-03, N.D.C.C., provides for the offense of tampering with physical evidence, stating:
1. A person is guilty of an offense if, believing an official proceeding is pending or about to be instituted, or believing process, demand, or order has been issued or is about to be issued, he alters, destroys, mutilates, conceals, or removes a record, document, or thing with intent to impair its verity or availability in such official proceeding or for the purposes of such process, demand, or order. 2. The offense is a class C felony if the actor substantially obstructs, impairs, or perverts prosecution for a felony. Otherwise it is a class A misdemeanor.
Under the plain language of the statute, the essential elements of the felony level tampering offense include that the actor substantially obstructs, impairs, or perverts prosecution for a felony. The State must prove that element beyond a reasonable doubt for a jury to convict a defendant of the felony level tampering offense. See N.D.C.C. § 12.1-09-03(2) ; N.D.J.I. Crim. No. K–15.02 (2019).
[¶12] Smith asserts tampering with physical evidence is a misdemeanor offense unless the State proves the defendant's actions substantially impaired or obstructed the prosecution of a felony, in which case the offense is a felony. Smith claims he was charged with and convicted of felony tampering, but the jury was not instructed that it needed to find he substantially obstructed or impaired the prosecution of a felony. Smith did not argue to the district court that the jury instruction on tampering with physical evidence did not include all of the essential elements, and therefore review of the alleged error is limited to review for obvious error.
[¶13] Here, the State charged Smith by complaint with felony tampering with physical evidence, alleging:
An information and amended information were also filed, both included similar language, and neither included an allegation that Smith substantially obstructed, impaired, or perverted the prosecution of a felony.
[¶14] At trial, the district court instructed the jury on the charge of tampering with physical evidence, stating:
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