Appeals from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Debbie Gordon Kleven, Judge.
David T. Jones (argued) and Carmell F. Mattison (on brief), Assistant State's Attorneys, Grand Forks, ND, for plaintiff and appellee.
Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant, Allen Ratliff.
Nicholas D. Thornton (argued), Fargo, ND; Erin M. Conroy (on brief), Bottineau, ND, for defendant and appellant, Cody Joe Boulduc.
Mark T. Blumer, Fargo, ND, for defendant and appellant, Nathan Lawrence Ratliff.
Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Lisa Fair McEvers, Carol Ronning Kapsner, Daniel J. Crothers. Opinion of the Court by VandeWalle, Chief Justice. Crothers, Justice, specially concurring.
VandeWalle, Chief Justice.
[¶1] In appeals consolidated by this Court, Allen Ratliff and Nathan Ratliff appealed from a criminal judgment and an order denying their motion for a new trial and Cody Boulduc appealed from a criminal judgment after a jury, in a joint trial, found the three men guilty of robbery, burglary, two counts of aggravated assault, theft of property, and felonious restraint. We affirm, concluding the district court did not abuse its discretion in denying the defendants' motions for new trial. We
additionally conclude there was sufficient evidence to sustain the convictions for each charge and that the defendants failed to properly preserve their remaining issues on appeal.
[¶2] In the early morning hours of April 30, 2012, three men dressed in face masks, gloves and dark clothing forcibly broke into a Grand Forks home. The occupants, husband and wife Carmen and Sherman Jones, were watching television at the time of the home-invasion. A security system recorded surveillance of the break-in. The masked men kicked in the front door, assaulted the homeowners with wooden tire thumpers and killed the Jones's dog. The assailants demanded money, medications and jewelry; one of the men threatened to kill Carmen.
[¶3] The men forced Sherman Jones into the hallway, shoved his face to the floor, bound his hands behind his back with duct tape and forcibly removed his wedding ring. The assailants repeatedly struck him in the back and head with their tire thumpers. He lost consciousness and was not able to identify the attackers. Carmen Jones was also struck in the head and jaw with a tire thumper and kicked in the ribs. One of the assailants duct taped her mouth and bound her hands behind her back and forced her face into a chair. She was also unable to identify the men. The men stole medications, money, jewelry, two televisions, and a Looney Tunes bag, among other items.
[¶4] The Grand Forks Police Department investigated and discovered evidence that appeared to link the Ratliffs and Boulduc to the robbery. The three men were arrested. At the jury trial, the Joneses testified three masked men broke into their residence, assaulted them, and stole numerous items. The Joneses testified they could not identify the three men. Fargo Police Detective Christopher Kunszt testified he was involved in the investigation of a stolen red Hyundai Tiburon belonging to Austin Schindler. The red Tiburon was seen leaving the Jones crime scene. The State presented video surveillance photographs taken at approximately 12:30 a.m. on April 30 from a Fargo gas station showing the Ratliffs associating with individuals driving the red Tiburon. The State presented evidence the Ratliffs purchased gas using Schindler's stolen credit card.
[¶5] Grand Forks Police Officer Cody Cannon testified the police received information that, on the morning of the home-invasion, a paper delivery person observed three individuals loading a television into a red Tiburon near the scene of the crime. Officer Cannon testified the delivery person gave a description of the three individuals that " relatively" matched the Ratliffs and Boulduc. The officer also testified the red Tiburon was located near Genevieve Slominski's apartment the day after the robbery. Police had previous information Slominski was dating one of the Ratliffs. Police later recovered the title to a vehicle owned by Carmen Jones in the Tiburon.
[¶6] Genevieve Slominski was called to testify by the State. She testified she was friends with the Ratliffs. She testified that in the early morning hours of April 30 the Ratliffs and Boulduc called her phone and repeatedly buzzed her secured apartment door. She let them in and the Ratliffs and Boulduc went to her son's room. The three men looked " worked up" and stressed. Slominski observed a bag, a purse, and what appeared to be jewelry scattered on the bed. She also noticed a black hooded sweatshirt, " a couple black face masks," gloves and medications mixed together in a ziploc bag. She also stated Allen Ratliff told her to get out of the
room. When she left her apartment later in the morning, Slominski observed Boulduc in a small red car.
[¶7] Slominski testified Allen Ratliff wanted her to go to Fargo with him that morning. Slominski traveled to Fargo with the Ratliffs and Boulduc in two separate vehicles, including a dark colored Cadillac. On the way to Fargo, Slominski ingested a prescription painkiller given to her by Allen Ratliff. The parties drove to a home owned by Steven Summers, the Ratliffs' brother. Slominski testified people were passing out and using pills at Summers's Fargo home. While in Fargo, Slominski went to Pawn America with the Ratliffs and Boulduc and pawned several items of jewelry given to her by Boulduc. She also learned the Ratliffs or Boulduc stored two televisions in her garage. Slominski testified police later searched her apartment and seized the televisions, and a bat she had never seen before.
[¶8] Amber Hamley also was called to testify by the State. Hamley was in a relationship with Nathan Ratliff. Hamley testified she partied with the Ratliffs and Boulduc in Fargo before the robbery and they returned to her Grand Forks apartment the morning of the robbery in a red car with a broken window. Hours before the robbery, the three men went into a back room of her apartment and she overheard Nathan Ratliff discuss robbing someone. Soon after, the Ratliffs and Boulduc left her apartment together.
[¶9] Corporal Lindsay Wold of the Grand Forks Police Department testified she searched Slominski's garage and seized a television with a serial number that matched the serial number of one of the Jones's televisions. Corporal Wold also testified she recovered several items that were pawned by Boulduc and Slominski in Fargo, including Sherman's wedding ring. The State introduced pawn slips from Mister Money and Pawn America documenting transactions involving jewelry stolen from the Jones's residence. Corporal Wold also searched Summers's Fargo home and discovered a dark colored Carhartt jacket that matched the description of a coat worn during the robbery, a Hyundai Tiburon owner's manual matching the description of the vehicle used in the robbery, a roll of duct tape and the Jones's jewelry.
[¶10] The State additionally presented evidence and testimony that following a traffic stop, police arrested the Ratliffs in the same dark colored Cadillac that was driven to Fargo following the robbery. During a search of the vehicle, officers seized Austin Schindler's stolen driver's license, a baseball bat, a stocking cap, a neoprene mask, numerous gloves, a black bag, a large amount of jewelry, a Looney Tunes bag, and other of the Jones's miscellaneous property.
[¶11] During the trial, the jury also viewed silent surveillance video of the break-in. The surveillance did not show the assaults or robbery inside the home. At the close of the State's case, the three defendants moved for judgment of acquittal. The court denied their motions. During deliberations, the jury reviewed the video of the break-in. Without the knowledge of the court, the jury also heard audio from the video that was not played when the video was admitted into evidence. While the court was discussing how to proceed with the case after the audio was discovered, the jury reached a verdict. Prior to receiving the verdict, the court polled each juror in open court to determine whether the jury considered any of the audio in its deliberations. Each juror responded the audio did not affect their deliberations, and several jurors commented they could not understand or hear the audio. The jury returned a guilty
verdict on all counts for all three men. Before sentencing, the defendants filed a motion for a new trial arguing the audio required a new trial. The parties also simultaneously filed a motion for judgment of acquittal. The court denied both motions.
[¶12] On appeal, the Ratliffs argue the court erred in denying their motion for a new trial. Boulduc, on the other hand, argues the court committed obvious error when the jury listened to audio that was not heard at trial during deliberations. Boulduc contends the court should have declared a mistrial. The parties did not object or ask for a mistrial when it was discovered the jury heard the audio. Following the verdict, the three parties filed a joint motion for a new trial, but only the Ratliffs appealed from the order ...