State v. Thompson

Decision Date12 January 2010
Docket NumberNo. 20090117.,20090117.
Citation2010 ND 10,777 N.W.2d 617
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Jennifer Jean Sandvig THOMPSON, Defendant and Appellant.
CourtNorth Dakota Supreme Court

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Kelley Marie Riley Cole (argued), Assistant State's Attorney, Grafton, N.D., for plaintiff and appellee.

Blake Dylan Hankey (argued), Grand Forks, N.D., for defendant and appellant.

SANDSTROM, Justice.

¶ 1 Jennifer Sandvig Thompson appeals from a criminal judgment entered after a jury found her guilty of simple assault upon a family or household member. She argues the district court should not have admitted into evidence testimony about text messages sent from her cell phone to the complainant's cell phone and a picture of one text message. She claims the evidence was not relevant, the State failed to provide proper foundation for the evidence, the messages were hearsay, and a picture of one message was improperly admitted for impeachment. We affirm the judgment. Because the judgment states it was entered upon a guilty plea, however, we remand to the district court to correct that clerical error.

I

¶ 2 The State charged Thompson with simple assault upon a family or household member under N.D.C.C. § 12.1-17-01, alleging that on October 31, 2008, she willfully caused bodily injury to her husband by punching him several times in the face.

¶ 3 Thompson and the complainant were married and had three children together. According to the complainant, on October 31, 2008, he and Thompson were in the process of moving from a farm near Grafton to Grafton, and the complainant was staying on the farm while Thompson and the children were living in Grafton. Thompson admits she sent several text messages from her cell phone to the complainant's cell phone that morning, asking the complainant to take the children to school and also asking him for money. Thompson claimed she needed money to buy the children Halloween costumes. According to the complainant, he took the children to school with Thompson, and he then drove her back to the Grafton residence to drop her off so he could go to work. The complainant testified Thompson refused to get out of the vehicle and demanded $150. He claimed he offered to take her shopping instead, and she refused and demanded cash. The complainant testified he eventually drove to the police station for assistance, and when Thompson still refused to get out of the vehicle, the sheriff assisted in removing Thompson from the vehicle and the complainant went to work.

¶ 4 During the course of the day, Thompson sent the complainant several additional text messages demanding money. The complainant testified he transferred $60 to Thompson's bank account at about noon. After the complainant finished work, he joined Thompson and the children trick-or-treating until about 9:30 p.m. Thereafter, the complainant gave Thompson $20, and she went to a bar while he returned to the Grafton residence to watch the children. At approximately 10:30 p.m., Thompson began calling and sending text messages to the complainant for additional money. The complainant replied he was not going to give her any more money. At approximately 11 p.m., Thompson returned to the Grafton residence and asked the complainant for money.

¶ 5 Shortly after 11 p.m., law enforcement officers were called to the residence on a domestic violence call. When the officers arrived, they observed the complainant holding a Kleenex over his left eye. The complainant testified there had been an argument about money and Thompson hit him several times in the back and the face when he tried to leave the premises. The complainant denied hitting or pushing Thompson. A law enforcement officer testified Thompson initially told the officers she had hit the complainant and he had not hurt her. Thompson was arrested for simple assault and transported to the law enforcement center. According to the officers, Thompson's mother arrived at the law enforcement center, and after talking to her mother, Thompson told the officers the complainant had pushed her into a radiator before she hit him.

¶ 6 Thompson claimed her actions were self-defense, and she made a pre-trial motion to prohibit the State from "offering any testimony or evidence regarding text messages sent" to the complainant. The district court denied Thompson's motion.

¶ 7 At trial, the State introduced testimony by the complainant about text messages he received on his cell phone on October 31, 2008, from Thompson's cell phone, including one message with profane and threatening language sent at 8:20 a.m. During Thompson's case, she also testified about text messages she sent that day from her phone to the complainant's phone. On cross-examination, Thompson testified she could have sent one specific profane and threatening text message to the complainant's phone at 8:20 a.m., but the complainant may have used her phone to send the message to himself while she was in a store. The court then allowed the State to introduce a picture of that text message. The jury found Thompson guilty of simple assault upon a family or household member.

¶ 8 The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the criminal judgment is timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

¶ 9 Thompson argues evidence regarding the text messages was not relevant and was inadmissible.

¶ 10 Relevant evidence is generally admissible, and irrelevant evidence is not admissible. N.D.R.Ev. 402. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.D.R.Ev. 401. "`The test to determine whether evidence is relevant or irrelevant is whether the evidence would reasonably and actually tend to prove or disprove any matter of fact in issue.'" State v. Osier, 1999 ND 28, ¶ 19, 590 N.W.2d 205 (quoting State v. Buckley, 325 N.W.2d 169, 172 (N.D.1982)). A district court has broad discretion in deciding whether proffered evidence is relevant, and we will not reverse the district court's decision to admit or exclude evidence unless it abused its discretion by acting in an arbitrary, unreasonable, or unconscionable manner. State v. Buchholz, 2006 ND 227, ¶ 7, 723 N.W.2d 534. A district court also may abuse its discretion if it misinterprets or misapplies the law. State v. Mosbrucker, 2008 ND 219, ¶ 6, 758 N.W.2d 663.

¶ 11 Here, the district court ruled testimony about the text messages helped explain Thompson's state of mind and the circumstances of the events on October 31, 2008. Thompson claimed she acted in self-defense, and the text messages provided context for the events on that day and could reasonably and actually help to prove or disprove factual matters pertaining to the charge against Thompson and her self-defense claim. We conclude the court's ruling was not arbitrary, capricious, or unreasonable and was not an abuse of discretion.

III

¶ 12 Thompson argues the State failed to provide a proper foundation for the evidence relating to text messages sent to the complainant's cell phone. She argues "text messages are inherently unreliable because of their relative anonymity and can rarely be connected, to a certainty, with a specific author." Thompson's argument involves two separate items of evidence regarding the text messages: (1) the complainant's testimony on direct examination about the content of text messages he received on his cell phone on October 31, 2008; and (2) a picture of one text message he received on his cell phone at 8:20 a.m. that day, which contained a profane and threatening message and was introduced into evidence during cross-examination of Thompson.

¶ 13 A touchstone for an effective appeal of an issue requires the issue to be properly raised in the district court so that court can intelligently rule on the issue. Osier, 1999 ND 28, ¶ 14, 590 N.W.2d 205. Under N.D.R.Ev. 103(a)(1), "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context."

¶ 14 Thompson's pretrial motion sought to prohibit the State from offering any testimony or evidence about the text messages. During argument on her motion in limine, Thompson asserted evidence about the text messages lacked proper foundation and was hearsay. In addressing the foundation issue, she argued there was no way to establish who actually sent the text messages and whether the messages were accurately transcribed.

¶ 15 The district court denied Thompson's pretrial motion, ruling the text messages went to motive and served as a statement against interest. The court decided the State would be allowed to present testimony regarding the contents of text messages received by the complainant, because the messages were "akin to verbal statements" by Thompson. The court explained, however, the State must provide foundational evidence that the complainant knew the messages came from Thompson's phone and her phone number.

¶ 16 At trial, the complainant testified on direct examination about several text messages sent to him on October 31, 2008. He testified he knew the text messages were from Thompson because the messages said "Fr: Jen" at the beginning, which was the way he stored her phone number in his cell phone, and the end of the message included her phone number and her signature, "cuzImJenIcan," which he was familiar with. During the complainant's testimony about the text messages, Thompson made a hearsay objection. The district court overruled that objection, ruling the messages...

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