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State v. Carlson

Supreme Court of North Dakota

June 30, 2016

State of North Dakota, Plaintiff and Appellee
v.
Brandon Wesley Carlson, Defendant and Appellant

         Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Donald Hager, Judge.

          Andrew C. Eyre (argued), Assistant State's Attorney, and Kyle A. Markwardt (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, for plaintiff and appellee.

          Rhiannon L. Gorham, for defendant and appellant.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Brandon Carlson appealed from a criminal judgment after a jury found him guilty of two counts of gross sexual imposition. We affirm.

         I

         [¶ 2] According to S.S.'s testimony, she invited Carlson to her residence to watch a movie with her and T.P. During the movie, both S.S. and T.P. fell asleep. According to T.P.'s testimony, she awoke to Carlson having sex with her. Afterwards, S.S. testified she awoke to Carlson forcing her hand on his penis and performing a sexual act. Based on these allegations, the State charged Carlson with two counts of gross sexual imposition.

         [¶ 3] The day before trial, the State moved to amend its charging information regarding Carlson's alleged acts against T.P. The State's original information, in pertinent part, alleged Carlson engaged "in a sexual act with [T.P.] by inserting his penis into her vagina...." The State's amended information alleged Carlson "engaged in a sexual act with Victim [T.P.] by penetrating her vulva with his penis or other body part...." Carlson objected to the State's motion, arguing the amended information left him without adequate time to prepare his defense. Concluding Carlson had adequate notice of the circumstances giving rise to the amended information, the district court granted the State's motion.

         [¶ 4] Prior to trial, Carlson moved to exclude evidence and testimony regarding his sexual history with two women other than the alleged victims. The district court granted the motion, ordering evidence and testimony regarding the women be precluded during trial, including "the opening statement, questioning of witnesses, within exhibits, or in argument." At trial, in describing a text message exchange between herself and Carlson, S.S. testified:

A. He admitted what he had done to me.
Q. And what did he say?
A. That he -- he apologized, and had said that that was how he wakes females up, and thought that I would like it.

         Carlson objected, arguing this testimony violated the prior court order. Carlson also moved for a mistrial, arguing such testimony prejudiced his case. The court sustained Carlson's objection but denied Carlson's motion for mistrial, concluding a curative instruction was an appropriate remedy. The court apprised the jury to "disregard the witness' last statement before the break, and you are not to consider that as evidence in this case."

         [¶ 5] At trial, the State sought to introduce reports detailing text messages allegedly exchanged between T.P., S.S., and Carlson. Prior to trial, a detective used equipment and software to extract the text message exchanges from T.P. and S.S.'s phones, which were reproduced in two reports. Carlson objected to the State's introduction, arguing the reports lacked proper foundation and contained hearsay statements. ...


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