State v. Wickham

• Decision Date: 28 January 2020
• Docket Number: No. 20190144,20190144
• Citation: 938 N.W.2d 141
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Corey WICKHAM, Defendant and Appellant
• Court: North Dakota Supreme Court

938 N.W.2d 141

STATE of North Dakota, Plaintiff and Appellee

v.Corey WICKHAM, Defendant and Appellant

No. 20190144

Supreme Court of North Dakota.

Filed January 28, 2020

Joshua A. Amundson, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.

Russell J. Myhre, Enderlin, ND, for defendant and appellant.

Crothers, Justice.

[¶1] Corey Wickham appeals from a judgment entered after convictions for gross sexual imposition, arguing the district court erred by admitting expert opinion testimony. We affirm.

I

[¶2] Wickham was working as a rideshare driver when he allegedly stopped a passenger from exiting his automobile, kissed her on the mouth, put his hands down her pants, digitally penetrated her, and touched her breasts. He was charged with two counts of gross sexual imposition. A jury found Wickham guilty on both counts.

[¶3] On appeal Wickham argues the district court obviously erred by admitting opinion testimony from five witnesses without requiring the State to qualify them as experts. Wickham argues that without their testimony the evidence was insufficient to convict him.

II

[¶4] Wickham concedes he did not object to the testimony at trial, and the appropriate standard of review is for obvious error. "This Court has previously noted that ‘issues not raised at trial will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).’ " State v. Pemberton , 2019 ND 157, ¶ 8, 930 N.W.2d 125 (citing State v. Lott , 2019 ND 18, ¶ 8, 921 N.W.2d 428 ). The obvious error standard is well established:

"To establish obvious error, the defendant has the burden to demonstrate plain error which affected his substantial rights. To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. There is no obvious error when an applicable rule of law is not clearly established."

Id. (citing Lott , at ¶ 8 ) (quoting State v. Tresenriter , 2012 ND 240, ¶ 12, 823 N.W.2d 774 ).

[¶5] "When asserting a claim of obvious error, a defendant must show: (1) error; (2) that is plain; and (3) the error affects the defendant’s substantial rights." Pemberton , 2019 ND 157, ¶ 9, 930 N.W.2d 125 (citing State v. Wangstad , 2018 ND 217, ¶ 14, 917 N.W.2d 515 ). "We exercise our power to consider obvious error cautiously and only in exceptional situations where the defendant has suffered serious injustice." Pemberton , at ¶ 9 (citing State v. Glass , 2000 ND 212, ¶ 4, 620 N.W.2d 146 ) (internal quotation marks omitted). "If evidence was admitted in error, this Court will consider the entire record and decide in light of all the evidence whether the error was so prejudicial the defendant’s rights were affected and a different decision would have occurred absent the error." State v. Saulter , 2009 ND 78, ¶ 18, 764 N.W.2d 430 (citing City of Fargo v. Erickson , 1999 ND 145, ¶ 13, 598 N.W.2d 787 ).

[¶6] This Court has also noted the following regarding obvious error:

"Even if the defendant meets his burden of establishing obvious error affecting substantial rights, the determination whether to correct the error lies within the discretion of the appellate court, and the court should exercise that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law."

Pemberton , 2019 ND 157, ¶ 9, 930 N.W.2d 125 (citing State v. Patterson , 2014 ND 193, ¶ 4, 855 N.W.2d 113 ) (citations omitted).

III

[¶7] Wickham argues the trial court obviously erred by admitting testimony from five witnesses without requiring the State to qualify them as opinion experts. Wickham argues the evidence was insufficient to convict him without their testimony.

[¶8] The State argues none of the witnesses testified under N.D.R.Ev. 702. Therefore, the trial court did not commit obvious error when it did not require the State to qualify them as experts before giving opinion testimony. The State further argues sufficient evidence supports Wickham’s convictions.

A

[¶9] This Court has discussed three types of trial testimony as fact, lay opinion, and expert opinion. See State v. Louser , 2017 ND 10, ¶¶ 9, 11, 890 N.W.2d 1. Fact testimony comes from a witness who is competent and after "evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." State v. Foster , 2019 ND 28, ¶ 4, 921 N.W.2d 454 ; N.D.R.Ev. 601, 602. "Testimony that falls within the personal knowledge of the lay witness is different from opinion testimony, which is governed by N.D.R.Ev. 701." Id. "Under the North Dakota Rules of Evidence, lay witnesses may testify to observations or facts within their personal knowledge. Such testimony does not constitute opinion testimony." Id.

[¶10] The admission of lay opinion testimony is governed by N.D.R.Ev. 701, which states:

"If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception; and

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue."

[¶11] "Lay opinion testimony is limited to testimony that is ‘rationally based on the perception of the witness.’ " Saulter , 2009 ND 78, ¶ 12, 764 N.W.2d 430 (citing N.D.R.Ev. 701 ). Therefore, the witness must have observed the incident or have first-hand knowledge of the facts that form the basis of the opinion. Id. A lay witness’s opinion must be based on his or her perception or personal knowledge of the matter. Id. The scope of permissible lay opinion testimony has been described as follows:

"The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences."

Asplundh Mfg. Div. v. Benton Harbor Eng'g , 57 F.3d 1190, 1196 (3d Cir. 1995).

[¶12]In 2000, Federal Rule 701 was amended to include a requirement "that lay opinion testimony could not be based on scientific, technical or other specialized knowledge that is within the scope of Fed.R.Evid. 702." Saulter , 2009 ND 78, ¶ 10, 764 N.W.2d 430. Wickham argues Rule 701, N.D.R.Ev., is an adoption of Fed.R.Evid. 701, and we should follow the federal interpretation of the rule as persuasive authority. North Dakota has not adopted the limiting language from Federal Rule 701 and we refuse Wickham’s invitation to engraft the federal restriction to our Rule 701 through this decision.

[¶13] Expert opinion testimony is governed by N.D.R.Ev. 702 and states:

"A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."

"A critical distinction between Rule 701 and Rule 702 testimony is that an expert witness ‘must possess some specialized knowledge or skill or education that is not in the possession of the jurors.’ " Saulter , 2009 ND 78, ¶ 11, 764 N.W.2d 430. "A witness’s testimony is not necessarily expert testimony simply because the witness has specialized knowledge and was chosen to carry out an investigation because of that knowledge, the witness’s testimony is expert testimony if the testimony is rooted exclusively in his expertise or is not a product[ion] of his investigation but instead reflects his specialized knowledge[,]" Louser , 2017 ND 10, ¶ 9, 890 N.W.2d 1 (citing Saulter , at ¶ 15 ).

B

[¶14] In State v. Saulter , this Court held the district court misapplied the law and abused its discretion by allowing Detective Vigness’s opinion testimony because some was rooted exclusively in his expertise rather than as "a product of his investigation." 2009 ND 78, ¶ 15, 764 N.W.2d 430. Vigness testified domestic violence was his area of expertise, he had several hundred hours of training specific to domestic violence, and he was trained on strangulation crimes. He also testified about the symptoms of strangulation in general, that strangulation victims sometimes have difficulty articulating exactly what happened and may forget details, strangulation victims commonly do not realize how serious the crime is, and often do not seek medical treatment. Id. at ¶ 14. We noted, "Vigness primarily testified about strangulation crimes in general and not about this particular crime or his investigation of this crime." Id. "Vigness’s testimony about strangulation in general was used to provide specialized explanations and was used as a foundation to support his opinions about what may have occurred and to answer hypothetical questions." Id. at ¶ 15.

[¶15] In State v. Foster , testimony by an oil company operations coordinator was based on personal knowledge and included permissible fact testimony notwithstanding his specialized knowledge and experience. 2019 ND 28, ¶ 4, 921 N.W.2d 454. Trevor Pollock was a manager for the TransCanada pipeline operation control center. Id. at ¶ 2. He testified against Michael Foster who was charged with conspiracy to commit criminal mischief, criminal mischief, and criminal trespass. Id. at ¶ 1. Pollock testified about his observations and activities as the operations coordinator on the day Foster closed the pipeline valve. Id. at ¶ 6. He testified about his duties which included monitoring pressure at various points in the system, monitoring and controlling pumps and automated valves, reviewing electronic logs, participating in meetings, responding to issues and generally operating the pipeline to achieve the target flow volume. Id. He also testified he knew that shipper’s requests to...