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State v. Acker

Supreme Court of North Dakota

December 1, 2015

State of North Dakota, Plaintiff and Appellee
v.
Gino James Acker, Defendant and Appellant

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.

Tristan J. Van de Streek, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Richard E. Edinger, Fargo, ND, for defendant and appellant.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Gerald W. VandeWalle, C.J.

OPINION

Carol Ronning Kapsner, Justice.

[¶1] A jury found Gino Acker guilty of aggravated assault. He appeals from the judgment arguing the district court's admission of his prior criminal conviction for sexual assault constitutes reversible error. We agree. We reverse the criminal judgment and remand the case for a new trial.

I

[¶2] The State charged Acker with aggravated assault. Acker drove Beau Johnson home after Acker and Johnson had been visiting bars in downtown Fargo. While driving to Johnson's residence, the two began to argue about Johnson smoking in Acker's vehicle. Acker alleged that when they arrived at Johnson's residence, Johnson exited the vehicle, walked around the front bumper, and began punching Acker through the driver-side window. Johnson denied punching Acker. Both parties agreed that Acker stabbed Johnson; Acker claimed the stabbing was in self-defense.

[¶3] Johnson was impeached at trial. Among other things, he was asked whether he tried to start a fight with an African American man that night. He denied doing so, and he claimed he had never met the man. The man was then called as a witness and testified he had met Johnson, Johnson had called him a racial slur, and Johnson had tried to pick a fight with him. Another witness, one of Johnson's friends, testified he was at the bars that night and witnessed Johnson get into an altercation with the African American man.

[¶4] Acker was also impeached at trial. The State asked him about his prior criminal convictions, which included providing false information to a law enforcement officer, stalking, violation of a protection order, and sexual assault. Before trial, Acker moved the court to prohibit his sexual assault conviction from being offered into evidence. The court denied his motion, stating it would rule on the admissibility of prior convictions at trial. At trial, the State asked Acker about his sexual assault conviction, Acker's counsel objected, and the court overruled the objection. Acker then admitted he had been convicted of sexual assault. He also admitted he had been convicted of providing false information to law enforcement, stalking, and violation of a protection order.

[¶5] Although another individual rode in the vehicle with Acker and Johnson that night and witnessed the stabbing, she was never called as a witness because she had died prior to the trial. Consequently, the jury was left with the conflicting accounts of Acker and Johnson--the only witnesses that were present at the scene of the incident. After deliberating, the jury found Acker guilty.

II

[¶6] Acker argues the trial court erred when it admitted his sexual assault conviction. " The district court exercises broad discretion in determining whether to admit or exclude evidence, and its determination will be reversed on appeal only for an abuse of discretion." State v. Chisholm,2012 ND 147, ¶ 10, 818 N.W.2d 707. " A trial court abuses its discretion if the record does not show that the trial court meaningfully or appropriately considered the relevant factors when it weighed the prior conviction's probative value and prejudicial effect." State v. Murchison,541 N.W.2d 435, 442 (N.D. 1995). When ...


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