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State v. Procive

August 18, 2009


Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Allan L. Schmalenberger, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.


Opinion of the Court by Sandstrom, Justice.

[¶1] Benjamin Lee Procive appeals from a criminal judgment entered after a jury convicted him of aggravated assault under N.D.C.C. § 12.1-17-02, a class C felony. We conclude the district court did not abuse its discretion by admitting the testimony of a rebuttal witness. We affirm.


[¶2] In December 2007, Kurt Obrigewitch attended an early morning party at Procive's residence after the bar had closed. Obrigewitch walked to Procive's residence from the bar with a six-pack of beer. During the party, while Obrigewitch was sitting on a bench visiting with Allan Kasian, Procive approached Obrigewitch and took Obrigewitch's shoes off. About fifteen minutes later Obrigewitch asked Procive where his shoes were, and Procive said that friends had taken them and he would have to find them. Obrigewitch and Kasian went outside and saw the shoes hanging on a power line. Procive also went outside. At that point, Procive and Obrigewitch exchanged heated words.

[¶3] Obrigewitch testified at trial that although he didn't see the blow, he "must have been struck there or hit." Obrigewitch remembered waking up kind of dazed. Obrigewitch testified that he believed he was "struck and took a blow to lose [his] consciousness like that." Kasian testified as to the exchange of words after finding the shoes hanging on the power line, but he also did not see the blow. Kasian testified that he heard a body falling and people being hit, and when he turned back, Obrigewitch was lying on the ground. Kasian testified that when he asked Procive why he had hit Obrigewitch, Procive responded, "[H]e got in my face. I just couldn't help myself. I had to hit him."

[¶4] Procive testified in his own defense, asserting self-defense and stating, "I seen [sic] his arm move in an upward motion, so I struck him like this [indicating] and he took two steps back and fell straight back hitting his head." Procive also testified, "I was just feeling scared and threatened," and "I just wanted him to get away from me." Procive testified that he was not trying to hurt Obrigewitch, but thought Obrigewitch was going to hit him and wanted Obrigewitch to go.

[¶5] Procive was charged by criminal information alleging that he willfully caused serious bodily injury to another human being when he struck Obrigewitch in the head with his fist, knocking Obrigewitch unconscious, in violation of N.D.C.C. § 12.1-17-02. During trial, the State presented testimony from Kurt Obrigewitch and Allan Kasian, in addition to rebuttal testimony from Tammy Obrigewitch, Kurt Obrigewitch's sister-in-law. Procive testified in his own defense and also presented testimony from one additional witness. The court's instructions to the jury included the defense of self-defense. The jury found Procive guilty of the charge.

[¶6] 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 was 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.


[¶7] Procive raises one issue on appeal: "Was the testimony of Tammy Obrigewitch improper impeachment and otherwise inadmissible under the North Dakota Rules of Evidence, and should its introduction result in a new trial?" Procive argues that the district court erred by permitting Tammy Obrigewitch, Kurt Obrigewitch's sister-in-law, to testify during the trial as a rebuttal witness regarding a conversation she purportedly had with Procive at a bar days after the altercation between Procive and Kurt Obrigewitch.

[¶8] This Court reviews a district court's evidentiary rulings for an abuse of discretion. State v. Streeper, 2007 ND 25, ¶ 11, 727 N.W.2d 759. "Under N.D.R.Ev. 401, 402, and 403, a district court has broad discretion in admitting or excluding evidence." State v. Charette, 2004 ND 187, ¶ 12, 687 N.W.2d 484. The district court abuses its discretion in evidentiary rulings when the court acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law. State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498.

[¶9] Rule 401, N.D.R.Ev., states that "`[r]elevant 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." Rule 402, N.D.R.Ev., provides that relevant evidence is generally admissible, and irrelevant evidence is inadmissible. Under N.D.R.Ev. 403, however, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." "The power to exclude evidence under N.D.R.Ev. 403 should be sparingly exercised," and "[p]rejudice due to the probative force of evidence is not unfair prejudice." Lemer v. Campbell, 1999 ND 223, ¶ 18, 602 N.W.2d 686 (citing State v. Klein, 1999 ND 76, ¶ 5, 593 N.W.2d 325).

[¶10] "Under N.D.R.Ev. 103(a), an objection to the introduction of evidence must state the specific ground of objection, if the specific ground is not apparent from the context." Western Nat'l Mut. Ins. Co. v. University of North Dakota, 2002 ND 63, ¶ 40, 643 N.W.2d 4; see State v. Hart, 1997 ND 188, ¶ 22, 569 N.W.2d 451; State v. Helgeson, 303 N.W.2d 342, 346 (N.D. 1981); see also State v. Raywalt, 436 N.W.2d 234, 239 (N.D. 1989) (holding that although defendant objected to evidence on other grounds, defendant failed to object on Rule 403, N.D.R.Ev., grounds and refusing to consider defendant's alleged error on appeal because it did not rise to the level of obvious error under N.D.R.Crim.P. 52(b)).

[¶11] Before trial and after voir dire, Procive moved for a pretrial order excluding the testimony of all of the State's witnesses except for Larry Johnson, who was the only witness listed in the criminal information. Procive argued, and the State conceded, that no list of witnesses had been provided in response to Procive's request for discovery and production of documents.

[¶12] After the district court ascertained that Procive's counsel was aware of the existence of both Kurt Obrigewitch, as the victim, and Allan Kasian, as a witness present at the confrontation, the court granted Procive's motion with respect to Tammy Obrigewitch, precluding her from testifying in the State's case-in-chief. The district court, however, specifically reserved ruling on rebuttal witnesses. See N.D.R.Crim.P. 16(d)(2) (providing district court discretion in imposing sanctions for failure to comply with Rule 16); Nesvig v. Nesvig, 2006 ND 66, ¶ 31, 712 N.W.2d 299 ("[A]ny order sustaining a motion in limine and excluding evidence is interlocutory in nature and subject to change by the district court during the course of the trial."); State v. Halvorson, 346 N.W.2d 704, 712 (N.D. 1984) (discussing State v. Jungling, 340 N.W.2d 681, 683-84 (N.D. 1983), in which this Court held a rebuttal witness does not have to be endorsed on an information).

[¶13] Procive elected to testify in his own defense at trial. During the State's cross-examination of Procive, he testified:

Q: Do you recall talking to Tammy Obrigewitch on New Year's Eve of this year?

A: No, sir.

Q: You don't recall talking to Ms. Obrigewitch in a downtown bar in Dickinson?

A: No, sir.

Q: You don't recall telling-having any conversation with Ms. Obrigewitch?

A: No, sir.

[¶14] Procive did not object to this cross-examination. After the defense had rested its case, the State called Tammy Obrigewitch as a rebuttal witness, and the defense "renew[ed] [its] objection." The district court permitted Tammy Obrigewitch to testify and stated, "There was only one question that was asked of her and that's what the rebuttal would be limited to. I'm assuming that's what your question is going to be. You can renew your objection if it goes beyond what [sic]-do you want to raise your right hand?" Tammy Obrigewitch testified that she is the sister-in-law of Kurt Obrigewitch and that she had been at Procive's residence but did not witness the assault. Tammy Obrigewitch testified as follows:

Q: And do I understand you correctly that you spoke to Mr. Procive on New Year's Eve at a bar in Dickinson, North Dakota?

A: Yes.

Q: And did you ask him a specific question?

A: Yes.

Q: What question did you ...

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