from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Jon J. Jensen,
Carmell F. Mattison, Assistant State's Attorney, for
plaintiff and appellee.
O. Diamond, for defendant and appellant.
VandeWalle, Chief Justice.
1] Delvin Shaw appealed from a criminal judgment entered
after a jury found him guilty of murder and burglary. We
reverse and remand, concluding the district court misapplied
the law regarding the admissibility of evidence of other
crimes or bad acts.
2] In June 2014, the State charged Shaw with murder and
burglary for allegedly shooting and killing Jose Lopez after
breaking into his apartment. At trial, Dametrian Welch
testified he accompanied Shaw to Lopez's apartment. Welch
testified Shaw kicked the door open, got into an altercation
with Lopez, and then shot Lopez four times. Welch testified
that after the shooting, he confessed to the police about
what happened at the apartment.
3] Before trial, the State filed a notice indicating it
intended to introduce testimony regarding Shaw's alleged
involvement in an earlier burglary at the apartment one floor
above Lopez's apartment four days before the murder. The
State again stated at trial it intended to introduce
testimony showing that, on the night of the murder, Shaw
received a threat related to the earlier burglary and planned
to return to the apartment to respond to the threat, but
mistakenly went to Lopez's apartment. The State argued
the evidence of the alleged earlier robbery was admissible to
show Shaw had a plan, motive, and intent to return to the
apartment building to respond to the threat. Over Shaw's
hearsay objection, the district court allowed testimony from
witnesses about the alleged earlier burglary. The court did
not instruct the jury about the limited use of the evidence
regarding the earlier burglary, and the jury found Shaw
guilty of murder and burglary.
4] Shaw argues the district court erred in allowing evidence
of his alleged involvement in the earlier burglary at
Lopez's apartment building. Shaw argues the court failed
to apply the required three-step analysis for considering the
admissibility of prior bad act evidence under N.D.R.Ev.
404(b) and failed to give a jury instruction regarding the
limited purpose of that evidence. Shaw also argues the
testimony about the alleged earlier burglary prejudiced him
and the court failed to consider whether, under N.D.R.Ev.
403, the danger of unfair prejudice substantially outweighed
the probative value of the evidence.
5] A district court's evidentiary ruling is reviewed
under an abuse-of-discretion standard. State v. Roe,
2014 ND 104, ¶ 10, 846 N.W.2d 707. "A district
court abuses its discretion in evidentiary rulings when it
acts arbitrarily, capriciously, or unreasonably, or it
misinterprets or misapplies the law." State v.
Chisholm, 2012 ND 147, ¶ 10, 818 N.W.2d 707.
6] A district court's error in admitting evidence under
N.D.R.Ev. 404(b) is subject to review under N.D.R.Crim.P. 52.
State v. Thompson, 552 N.W.2d 386, 390 (N.D. 1996).
Under N.D.R.Crim.P. 52, an error is harmless or obvious. A
harmless error does not affect a defendant's substantial
rights and must be disregarded. N.D.R.Crim.P. 52(a). An
obvious error affects a defendant's substantial rights
and is grounds for reversal. N.D.R.Crim.P. 52(b). To
establish obvious error, a defendant must show error that is
plain and affects substantial rights. State v.
Steen, 2015 ND 66, ¶ 7, 860 N.W.2d 470. "In
analyzing obvious error, our decisions require examination of
the entire record and the probable effect of the alleged
error in light of all the evidence." Id.
(quoting State v. Olander, 1998 ND 50, ¶ 12,
575 N.W.2d 658).
7] We have "warned of the dangers inherent in allowing
evidence of other acts to show propensity and of tempting a
jury to convict a defendant for actions other than the
charged misconduct." State v. Aabrekke, 2011 ND
131, ¶ 8, 800 N.W.2d 284 (quoting State v.
Schmeets, 2009 ND 163, ¶ 15, 772 N.W.2d 623). Rule
404(b), N.D.R.Ev., governs the admissibility of evidence of a
prior crime, wrong, or other act, and provides:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act
is not admissible to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence
may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. The
(A) provide reasonable notice of the general nature of any
such evidence that the prosecutor intends to offer at
(B) do so before trial or during trial if the court, for
good cause, excuses lack of pretrial notice.
rule excludes admission of evidence of other crimes or bad
acts unless the evidence is substantially relevant for some
purpose other than to show a defendant's criminal
character and that the defendant's acts conformed with
that character. Aabrekke, at ¶ 8. "The
rule recognizes the inherent prejudicial effect prior bad-act
evidence may have on the trier of fact and limits the
admissibility of that evidence to specifically recognized
8] To decide whether evidence of other crimes or bad acts is
admissible, the district court must apply a three-step
1) the court must look to the purpose for which the evidence
is introduced; 2) the evidence of the prior act or acts must
be substantially reliable or clear and convincing; and 3) in
criminal cases, there must be proof of the crime charged
which permits the trier of fact to establish the
defendant's guilt or innocence independently on the
evidence presented, without consideration of the evidence of
the prior acts.
Aabrekke, 2011 ND 131, ¶ 9, 800 N.W.2d 284
(quoting State v. Paul, 2009 ND 120, ¶ 18, 769
N.W.2d 416). Generally, the third step is satisfied with a
cautionary jury instruction about the admissibility of the
evidence and its use for a limited purpose.
Aabrekke, at ¶ 10; Paul, at ¶ 27;
State v. Micko, 393 N.W.2d 741, 744 (N.D. 1986).
9] If a district court concludes the three-part test has been
satisfied, the evidence of other crimes or bad acts may still
be excluded "if its probative value is substantially
outweighed by a danger of... unfair prejudice."
N.D.R.Ev. 403(a). Thus, the court must "balance the
probative value of the evidence against its prejudicial
effect in determining whether to admit evidence of a
defendant's past crimes." Schmeets, 2009 ND
163, ¶ 10, 772 N.W.2d 623 (quoting State v.
Raywalt, 436 N.W.2d 234, 238 (N.D. 1989)). Furthermore,
if the State provides notice of its intent to introduce
evidence of other crimes or bad acts under N.D.R.Ev.
404(b)(2)(A), "it provides an alert to the district
[court] judge that the N.D.R.Ev. 403 balancing test must be
done." Schmeets, at ¶ 16.
10] Approximately three months before trial, the State
provided notice under N.D.R.Ev. 404(b)(2)(A) of its intent to
introduce evidence of Shaw's alleged involvement in an
earlier burglary at the same apartment building. At trial the
State explained some of its witnesses' testimony would
include information about the earlier burglary:
The other issue I wanted to bring up was the State filed a [
N.D.R.Ev.] 404(b) notice back in March of  and I
anticipate some of the testimony today to include that 404(b)
testimony, specifically the State is anticipating that there
will be testimony about a threat that was coming in from the
residence in the floor above the victim and that Defendant
and the co-defendant [Dametrian Welch] were responding to
this threat. It's offered under 404(b) to show proof of
intent plan and motive for going over there that night.
THE COURT: And I have looked at that notice. As long as it is
going to be--I am going to allow it as long as--my question
is whether or not we want to instruct the Jury of its limited