Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Sonja Clapp, Judge.
The opinion of the court was delivered by: Crothers, Justice.
[¶1] Timothy Saulter appeals a criminal judgment entered after he was found guilty of aggravated assault following a bench trial. Saulter argues the district court abused its discretion by admitting a law enforcement officer's expert witness testimony as lay witness opinion testimony. Although the district court abused its discretion by admitting the officer's testimony as lay witness opinion testimony, we conclude the error was harmless, and we affirm.
[¶2] On January 17, 2008, Saulter was charged by information with aggravated assault under N.D.C.C. § 12.1-17-02(1), a class C felony, alleging Saulter hit, kicked and lifted Jade Tandeski off the ground by her neck, willfully causing serious bodily injury. The information was amended to charge Saulter with aggravated assault, alleging he willfully caused serious bodily injury to Tandeski by strangling her causing an impairment of airflow or blood flow to her brain or lungs. In February 2008, Saulter filed a demand for discovery under N.D.R.Crim.P. 16. The State did not disclose it planned to present any expert witness opinion testimony at trial.
[¶3] A bench trial was held on July 16, 2008. The State claimed Saulter picked Tandeski up by her throat, causing an impediment of airflow or blood flow to her brain or lungs. Tandeski testified she got into a physical altercation with Saulter at her apartment on January 15, 2008. Tandeski testified she was in her bedroom when Saulter became upset and threw her on the bed ripping her shirt. She said she got up from the bed, but Saulter grabbed her by her throat with one hand, and she hit a wall. She testified she was able to get away, but Saulter grabbed her by her throat a second time using both hands, lifted her off her feet and threw her into the closet doors, which were damaged. Tandeski said she tried to get away again, but Saulter grabbed her arm, threw her on the ground in front of the door to her son's bedroom and then kicked her arm. She testified they continued fighting until they reached the door to her apartment and Saulter left. Tandeski testified that she had a hard time breathing and her throat was tight and hurt when Saulter had grabbed her and lifted her off the ground and that her neck was stiff and swollen after the incident. Tandeski also testified about inconsistencies between her testimony at trial and her statements to police after the incident, including inconsistencies about how many times Saulter grabbed her throat and whether he used one hand or two.
[¶4] Tandeski's son testified he was in the apartment at the time of the incident and he heard his mom crying and a noise sounding like someone hitting something. He also testified he opened his bedroom door and saw Saulter hit his mother on the floor in front of his door. Amanda Sawyer, Tandeski's friend, testified that she heard the altercation occurring after receiving a phone call from Tandeski's cell phone and that she went to Tandeski's house immediately after the incident.
[¶5] There was testimony from Grand Forks Police Officers Jason Dvorak and Dustin Beseke, who interviewed Tandeski the day after the incident. Dvorak testified he observed an injury on the left side of Tandeski's neck that looked like a hand print around her neck or a red mark that looked like the outline of a finger, which he testified was consistent with Tandeski's claims. Dvorak also testified he observed bruising on Tandeski's body and arms. Photographs of Tandeski's injuries and Tandeski's ripped shirt were admitted into evidence.
[¶6] Grand Forks Police Detective James Vigness testified about his interview of Tandeski, strangulation in general and symptoms of strangulation. Vigness testified he reviewed the police reports and then interviewed Tandeski on February 22, 2008, several weeks after the incident occurred. He testified about his interview of Tandeski, but most of his testimony was about strangulation in general. Saulter objected twice to Vigness's testimony arguing it was expert opinion testimony. The State claimed the testimony was lay witness opinion testimony. The district court overruled Saulter's first objection and stated Vigness could testify to his specialized knowledge, but advised Saulter he could object again if the testimony went beyond that of a lay witness and Vigness's training. The court sustained the second objection to prohibit any testimony quoting information from any special training Vigness had received. Saulter did not present any witnesses, but he argued that Tandeski's statements were inconsistent, that Tandeski was not a credible witness and exaggerated what occurred and that the evidence was only consistent with simple assault.
[¶7] The district court found Saulter was guilty of aggravated assault. The court made oral findings after announcing its decision:
"And I'm not going to summarize all of the evidence that supports this Court's finding, as it is already a matter of record. But of particular note, I do want to state that the evidence indicates that Miss Tandeski was grabbed around the neck, and whether it was one hand or two hands, is not determinative in this case. The fact is that as a result of the strangulation there was an impediment of airflow to either her brain or her lungs and impediment being a hand.
"And the Court does find that this strangulation is supported by such things as her difficulty in breathing, her stiff neck, her swollen neck, and her bruising and redness around her neck."
The court sentenced Saulter to five years in prison, with two years and ...