State v. Zimmerman, Cr. N

• Decision Date: 16 November 1994
• Docket Number: Cr. N
• Citation: 524 N.W.2d 111
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kent Dennis ZIMMERMAN, Defendant and Appellant. o. 940060.
• Court: North Dakota Supreme Court

Page 111

524 N.W.2d 111

STATE of North Dakota, Plaintiff and Appellee, v. Kent Dennis ZIMMERMAN, Defendant and Appellant.

Cr. No. 940060.

Supreme Court of North Dakota.

Nov. 16, 1994.

Stephen R. Dawson (argued), Asst. State's Atty., Fargo, for plaintiff and appellee.

Robert Garold Hoy (argued), West Fargo, for defendant and appellant.

LEVINE, Justice.

Kent D. Zimmerman appeals from verdicts finding him guilty of burglary and theft of property and from the sentence imposed. We affirm.

Zimmerman and Allen Dale Reule were charged with the November 11, 1992, burglary of the Stable Bar and Restaurant in Kindred and with the theft of cash from a pull tab dispensing machine inside the building. The jury found Zimmerman guilty of burglary and theft. The trial court sentenced Zimmerman to five years of imprisonment for each offense, to be served consecutively. Zimmerman appealed the verdicts and the sentence.

Zimmerman first contends that the trial court erred in denying his motion for judgment of acquittal because there was no corroboration of Reule's testimony. Reule's testimony describes his and Zimmerman's itinerary after Reule picked up Zimmerman in Mandan and drove with him to Fargo, leaving Bismarck at approximately 10 p.m. on November 10, 1992. They went from Fargo to Kindred, where they arrived at "probably 2:00, 2:30 in the morning," and burglarized a "combination bar and restaurant" and took the money out of a pull tab machine. They then went to Enderlin and Lisbon, where they "[c]ommitted some more burglaries." From Lisbon, they "proceeded back up towards Enderlin. From there we went west some more through Litchville until we got south of Jamestown, then north up to Jamestown and back to Bismarck on the interstate." They got back to Bismarck "around 8:00 or 9:00" on the morning of November 11, 1992, and Reule left Zimmerman at Zimmerman's home in Mandan.

Section 29-21-14, N.D.C.C., provides:

"A conviction cannot be had upon the testimony of an accomplice unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof."

The purpose of corroborative evidence is to show that a testifying accomplice is a reliable witness and worthy of credit. State v. Hogie, 454 N.W.2d 501 (N.D.1990). As used in Sec. 29-21-14, " 'tends' indicates tendency, not certainty." Id. at 503. This court outlined what is required by Sec. 29-21-14 in State v. Haugen, 448 N.W.2d 191, 194 (N.D.1989):

"All that is required is that the evidence, circumstantial or otherwise, corroborate the testimony of an accomplice as to some material fact or facts, and tends to connect the defendant with the commission of the crime. It is not necessary that the corroborating evidence be sufficient, in itself, to warrant a conviction or establish a prima facie case. Furthermore, the State need not point to a single isolated fact which is sufficient corroboration, as it is the combined and cumulative weight of the evidence other than the testimony of the accomplice witness which satisfies the statute." (Citations omitted.)

Kevin Briggs, who lived with Zimmerman, testified upon examination by the prosecutor:

"A [Zimmerman] came home and came in the bedroom, and he had a stack of money which he said was from a burglary they did down in Lisbon. They said they were in the Fargo area, also.

* * * * * *

"Q (Mr. Dawson continuing) Mr. Briggs, did [Zimmerman] indicate any other place he'd been to that night?

"A They mentioned--or he mentioned they were in Fargo and later that afternoon Allen Reule also mentioned to me that they were in Fargo and that a couple other places were done on the same night.

* * * * * *

"Q Did [Zimmerman] tell you who he was with when he was in Fargo and later in Lisbon ...?

"A With Allen Reule.

* * * * * *

"Q Did [Zimmerman] ever make statements to you as to where he had been that evening?

* * * * * *

"A As far as before--before they left that night, I had no idea where they were going or--or anyplace that they had in mind. When they got back, from what Kent said and from what Allen said, all I know is that Lisbon--they went to Fargo and they went to Lisbon. And there were some other places in between, but I do not know where at. I have no idea where at."

Brigg's testimony placed Zimmerman with Reule in Fargo, shortly before the burglary of the Stable Bar and Restaurant in Kindred, and in Lisbon, shortly after the burglary in Kindred. That testimony is critical because it "tends to connect the defendant with the commission of the offense" and constitutes corroboration of Reule's testimony under Sec. 29-21-14, N.D.C.C., sufficient for submission to the jury. As we explained in State v. Haugen, 449 N.W.2d 784, 786 (N.D.1989), "the circumstances of Haff and Haugen's being together late the night before the early-morning burglary combined with their presence together a few hours after the burglary create an inference that they were together during the intervening hours." See also State v. Garcia, 425 N.W.2d 918, 921 (N.D.1988) ("Evidence that the defendant was in the company of Reyes and Longoria near the scene of the crime immediately before and immediately after the murder occurred, at 3:15 in the morning, is sufficient corroboration tending to connect the defendant with the commission of the crime."). We conclude that the testimony of Reule, Zimmerman's accomplice, was corroborated as required by Sec. 29-21-14, N.D.C.C., and that the trial court, therefore, did not err in denying Zimmerman's motion for judgment of acquittal.

Relying on Rules 401, ¹ 402, ² 403, ³ and 404(b), ⁴ N.D.R.Ev., Zimmerman contends that the trial court "erred in admitting irrelevant other crimes evidence which was far more prejudicial than probative." The other crimes were other burglaries and thefts allegedly committed the same night as the one in Kindred, but for which Zimmerman was not being tried in this case. With regard to Rule 401, the other crimes evidence was relevant because it helped set time references for the early morning hours of November 11, 1992. It also placed Zimmerman with Reule, and it tended to corroborate Reule's testimony. Because it was relevant under Rule 401, N.D.R.Ev., the other crimes evidence was admissible under Rule 402, N.D.R.Ev., unless inadmissible for some other reason. With regard to Rule 404(b), N.D.R.Ev., the record does not indicate that the other crimes evidence was offered or received "to prove the character of a person in order to show action in conformity therewith." The evidence was offered because of the prosecution's burden to corroborate Reule's testimony.

Zimmerman contends that the other crimes evidence should have been excluded under Rule 403, N.D.R.Ev., because its probative value was substantially outweighed by the danger of unfair prejudice. Rule 403 "vests wide discretion in the trial court to control the introduction of evidence at trial and our review is limited to determining whether that discretion was abused." First Nat'l Bank & Trust Co. v. Brakken, 468 N.W.2d 633, 636 (N.D.1991).

While Rule 403, N.D.R.Ev., gives a trial court the power to exclude relevant evidence for any of the reasons stated in the rule, that power should be sparingly exercised. George v. Celotex Corp., 914 F.2d 26 (2nd Cir.1990); 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence Sec. 93, p. 479 (2d ed. 1994). Generally, any doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, or waste of time, should be resolved in favor of admitting the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonition in the charge. 1 Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence, p 403, pp. 403-11, 403-12 (1994). "The usual approach on the question of admissibility ... is ... to give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Id., p 403, pp. 403-49, 403-51. The greater the degree of relevance, the greater the showing of unfair prejudice that will be required to exclude the evidence. United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir.1982).

The rule is directed to unfairly prejudicial evidence, not simply prejudicial evidence. Indeed, no verdict could be obtained without prejudicial evidence. United States v. Noland, 960 F.2d 1384, 1387 (8th Cir.1992). After all, "the admission of evidence is generally calculated to benefit one side to the prejudice of the other." Bell v. City of Milwaukee, 746 F.2d 1205, 1277 (7th Cir.1984). " 'Unfair prejudice' ... means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee Note, Rule 403, F.R.Ev. Prejudice is unfair if it is the result of something other than the relevance of the evidence. See State v. Kringstad, 353 N.W.2d 302, 310 (N.D.1984). Stated otherwise, any prejudice due to the probative force of evidence is not unfair prejudice. George v. Celotex Corp., supra.

We conclude that the other crimes evidence was probative of Zimmerman's involvement in the offense being prosecuted, helped set time references, placed Zimmerman with Reule, tended to corroborate Reule's testimony, and was not unfairly prejudicial to Zimmerman. The trial court, therefore, did not abuse its discretion in admitting other crimes evidence.

Zimmerman complains that the trial court allowed the jurors to hear the other crimes evidence "without cautioning them as to the limited purposes for which it may have been admissible." Zimmerman's trial counsel did not request a limiting instruction. ⁵ We do not consider issues raised for the first time on appeal. In Interest of B.D., 510 N.W.2d 629 (N.D.1994). On appeal, new counsel is limited to the issues raised in the...