from the District Court of Ward County, North Central
Judicial District, the Honorable Gary H. Lee, Judge.
Caitlyn A. Pierson for plaintiff and appellee.
Charles A. Stock for defendant and appellant.
1] Jessica Belgarde appeals from a criminal judgment entered
after a jury found her guilty of shoplifting. Belgarde
notified the State of her intent to present her minor child
as an alibi witness two weeks before trial and 112 days after
the deadline set by the district court in its pretrial
scheduling order. The issue on appeal is whether a district
court abuses its discretion by excluding alibi testimony
under N.D.R.Crim.P. 12.1 without first finding prejudice to
the State. We affirm, concluding the district court did not
abuse its discretion.
2] The State charged Belgarde with theft of property for
shoplifting items worth more than $500 from the Minot Sears
store. Belgarde's defense theory throughout her criminal
case asserted that only her cousin entered the store.
Belgarde claimed she remained in a car outside the store with
her son during the alleged shoplifting.
3] The events at issue occurred on February 26. On May 2,
Belgarde had an initial appearance on the charge. That same
day, the district court approved her application for indigent
defense services and set a motions deadline of June 13. The
trial was later set for October 17. On October 3, Belgarde
submitted to the State a witness list that included her son.
She also submitted an alibi notice stating her son would
testify that Belgarde was in the parking lot with him. The
State objected, arguing it was prejudiced in that it could
not adequately investigate the alibi and prepare a trial
strategy within the two weeks before trial. The district
court excluded the alibi testimony, reasoning that Belgarde
knew about this witness and the defense from the first day of
the case and had offered no justification for the alibi
notice being late. The district court did not make any
findings regarding prejudice to the State.
4] "Alibi" literally means "elsewhere."
The term refers to a defense that the accused was not in the
location in which the offense occurred and thus could not
have committed it. State v. Glass, 29 N.D. 620, 641,
151 N.W. 229, 234-35 (1915). We review a district court's
decision to exclude alibi evidence under Rule 12.1(e) under
the abuse of discretion standard. State v. Sevigny,
2006 ND 211, ¶ 12, 722 N.W.2d 515. "A court abuses
its discretion if it acts unreasonably, arbitrarily, or
capriciously, or if it misinterprets or misapplies the
5] A defendant "must serve written notice" of any
alibi defense before the pretrial motions deadline or
afterward if directed by the court. N.D.R.Crim.P. 12.1(a). If
the defendant fails to serve the State with timely notice,
"the court may exclude the testimony of any undisclosed
witness regarding the defendant's alibi."
6] This rule was designed to prevent surprise. State v.
Flohr, 301 N.W.2d 367, 371 - 72 (N.D. 1980). Without
this rule, defendants could raise alibi defenses during the
middle of a trial and deprive the prosecution of its ability
to conduct pretrial investigations. Id. When an
alibi defense has been raised for the first time at trial, we
have encouraged district courts to consider actual prejudice
to the prosecution in addition to any good cause possibly
explaining an untimely alibi claim. Id.;
Sevigny, 2006 ND 211, ¶¶ 8, 15, 722 N.W.2d
515; State v. Kalmio, 2014 ND 101, ¶ 41, 846
N.W.2d 752. Where an alibi defense is raised late but before
trial, as it was here, the district court should still
consider possible prejudice against the prosecution. The
starting point for whether a late alibi notice should be
excused under Rule 12.1(d), however, is some showing of good
cause by the defendant to justify an exception.
7] Here the proposed testimony of Belgarde's son
constituted alibi testimony because it asserted that Belgarde
had remained in the car while the alleged offense was
committed in the store. Belgarde's alibi notice was
served 14 days before trial. The State objected, citing
inadequate time to prepare to meet the defense. The district
court found that Belgarde presented no good cause to excuse
the untimeliness of her alibi notice. Belgarde's notice
included nothing that might support good cause for delay.
After the State objected to the late alibi ...