[Copyrighted Material Omitted]
Jeremy A. Ensrud (argued) and Sean B. Kasson (on brief), Assistant State's Attorneys, Ward County State's Attorney's Office, Minot, ND, for plaintiff and appellee.
Monte L. Rogneby, Bismarck, ND, for defendant and appellant.
VANDE WALLE, Chief Justice.
[¶ 1] Gaylord Gene Evans appealed from a criminal judgment entered after a jury found him guilty of negligent homicide. Evans argues there was insufficient evidence to support the conviction, that the district court permitted a lay witness to testify as an expert, and that the State engaged in prosecutorial misconduct. We affirm the judgment.
[¶ 2] In July 2011, Evans was towing an empty utility trailer on a Ward County road heading eastbound near Minot when the trailer completely decoupled from his pickup truck. The trailer veered into the westbound lane and collided with an oncoming car. The driver of the car, Denise Hoffert, was killed in the collision.
[¶ 3] The State charged Evans with negligent homicide. Prior to trial, Evans filed a request for discovery and inspection under N.D.R.Crim.P. 16. In its response, the State did not disclose any expert witnesses. At trial, North Dakota Highway Patrol Officer Huston, among others, testified for the State. Officer Huston, who was not qualified as an expert witness, testified he investigated the crash as an accident reconstructionist. Officer Huston testified he prepared a report and limited collision analysis of the accident and that he had previously received additional training in accident investigation and reconstruction.
[¶ 4] Evans objected when the State asked Officer Huston if he prepared a report and analysis of the accident. The judge instructed the jury to leave the courtroom. Outside the presence of the jury, the parties argued whether the State
was introducing expert testimony from a lay witness. The State contended it disclosed Officer Huston's limited collision analysis report under the Rule 16 request. The report did not include the officer's qualifications. The court suspended Officer Huston's testimony until the next day and instructed the State to provide Evans with the officer's qualifications.
[¶ 5] The next morning, a hearing was held outside the presence of the jury. The court indicated it would not allow Officer Huston to testify as to what he thought caused the trailer to decouple. The trial resumed. Officer Huston testified, " [t]aking the totality of all the evidence that I put together, in my opinion the only thing that happened was the trailer came unhooked. It wasn't attached to the pickup properly, came off, and unfortunately went into the oncoming lane and struck the [victim's] vehicle." At the close of the State's case, Evans moved for a judgment of acquittal under N.D.R.Crim.P. 29. The court denied the motion.
[¶ 6] In his own defense, Evans testified he attached his trailer, aired up the trailer tires, verified the ball was on, hooked up the safety chains, lifted the trailer jack and plugged in the lights. Evans averred he did not know what caused the trailer to decouple. Evans testified his trailer may have been rear-ended from behind prior to detachment, but that he did not feel the impact. Evans stated that after the accident, he removed the ball from the receiver hitch of his truck. Evans also testified he used a proper fitting ball. The defense finally asked, " [w]ere you driving the pickup towing this trailer with no safety chains whatsoever?" Evans replied, " No."
[¶ 7] On rebuttal, the State questioned Officer Huston about the effects braking would have on an improperly connected trailer. The defense objected, claiming that Evans did not testify as to braking just prior to the accident. The court sustained the objection, ruling that Evans had not testified as to braking just prior to the accident. The jury was instructed to disregard the question and answer as to braking at the time of the accident. The court stated it would allow questions of a general nature about braking or decelerating.
[¶ 8] After the State rested, Evans renewed his Rule 29 motion. The court denied the motion. The jury found Evans guilty of the crime of negligent homicide. After trial, but before sentencing, Evans again moved for a Rule 29 judgment of acquittal ...