from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Donald Hager, Judge.
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
Rhiannon L. Gorham, for defendant and appellant.
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.
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
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.
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
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