from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Daniel Saleh El-Dweek,
Stephenie L. Davis, Assistant State's Attorney, Watford
City, N.D., for plaintiff and appellee; submitted on brief.
C. Ringsak, Bismarck, N.D., for defendant and appellant;
submitted on brief.
1] Harold Shick appeals a district court's judgment
entered after a jury convicted him of terrorizing, reckless
endangerment, felonious restraint, possession of a controlled
substance, and possession of drug paraphernalia. We conclude
the district court did not abuse its discretion in denying
Shick's motion for a mistrial, and there is sufficient
evidence to sustain the jury's verdict. We therefore
2] On May 23, 2015, Skyler Seimears and Rusian Volochanskiy
went to Shick's residence with a trailer to retrieve
furniture and other equipment that belonged to Aster
Electric. At that time, Seimears and Volochanskiy were
employees of Aster Electric. Seimears and Volochanskiy drove
a company truck to Shick's residence. Shick was home when
Seimears and Volochanskiy arrived at his residence. According
to Seimears, Shick became angry when Seimears told him they
were there to retrieve company property. Shick claimed the
company truck Seimears drove to Shick's residence
belonged to him and it was not going to leave his sight.
Shick then went to his pickup, grabbed a pistol, and
"loaded it." Seimears claimed Shick told
Volochanskiy and him not to leave while pointing the pistol
at them. Shick attempted to take the keys to the company
truck while holding the gun on Seimears and Volochanskiy. At
that time, Seimears called "his boss" and had him
talk to Shick to try and calm Shick down. After talking to
Seimears' boss, Shick began walking back toward his house
while still holding the pistol. Seimears started the company
truck and "made a quick escape." Seimears testified
he heard shots as he drove away. However, Shick claims he did
not fire the pistol, there was no damage to the company
truck, and there were no spent shell casings found.
3] Seimears and Volochanskiy drove to the McKenzie County
Sheriff's Office and told Sergeant Kyle Giersdorf about
their encounter with Shick. Giersdorf, Northwest Narcotics
Task Force Agent Michael Mees, and several other members of
the McKenzie County Sheriff's Office went to Shick's
residence. When law enforcement arrived, Shick invited them
into his residence and consented to a search of his home. Law
enforcement detained Shick and read him his Miranda rights.
Based on Shick's consent to search his home, Mees
searched a backpack that was located in Shick's room.
Mees found methamphetamine, multiple items of drug
paraphernalia, and an unspent.380 round in the backpack.
4] After law enforcement searched Shick's residence,
Shick gave them consent to search his motorcycle, but not his
pickup. Mees advised Shick that they would tow the pickup,
obtain a search warrant, and search the pickup. Law
enforcement called the tow truck for an "impound
evidence seizure tow." After the tow truck arrived,
Shick told Mees he could search the pickup if Mees agreed not
to tow it. Mees told Shick he had no need to tow his pickup
if they could search it at his residence with his consent.
Shick consented to the search. Inside the pickup, Mees found
a glass smoking device with white residue and a small plastic
bag with white residue. Mees also found a lockbox with a
pistol, ammunition, and loaded magazines. On May 27, 2015,
the State charged Shick with terrorizing, reckless
endangerment, felonious restraint, possession of a firearm by
a felon, possession of a controlled substance, and possession
of drug paraphernalia.
5] Prior to trial, Shick moved to suppress evidence obtained
from the search of his pickup. Shick argued law enforcement
violated his Fourth Amendment rights by coercing him into
consenting to the search of his pickup. According to Shick,
towing his pickup would have resulted in financial hardship.
Shick claimed he only consented to the search of his pickup
after law enforcement threatened to tow it if he did not
consent. The district court found Shick's consent was
voluntary. The court relied on State v. Hansen, 69
P.3d 1052, 1057 (Idaho 2003), concluding "when the
Defendant offers the consent to search in lieu of towing and
impounding the vehicle, the consent is voluntary."
6] After the State rested, Shick moved for both a judgment of
acquittal and a mistrial. In his motion for a judgment of
acquittal, Shick argued the complaint included the names of
both Seimears and Volochanskiy but only Seimears testified at
trial. Shick claimed the State had to prove the offenses were
committed against both victims, Volochanskiy did not testify
and, therefore, the State failed to meet its burden. However,
Shick did not dispute Seimears' testimony that
Volochanskiy was present when Shick pointed a pistol at
Seimears. The district court determined the language in
question was either surplusage under N.D.R.Crim.P. 7(d), or
the State could amend its information under N.D.R.Crim.P.
7(e) and denied Shick's motion for a judgment of
acquittal. In his motion for a mistrial, Shick renewed
arguments made in his pretrial motion to suppress evidence.
The court denied Shick's motion for a mistrial for the
same reasons stated in its order denying Shick's pretrial
motion to suppress evidence. After Shick concluded his
argument but before the case went to the jury, the State
moved to amend its information to strike the words "and
Volochanskiy." The State also moved to dismiss the
charge of possession of a firearm by a felon. The district
court granted both motions. The jury convicted Shick of
terrorizing, reckless endangerment, felonious restraint,
possession of a controlled substance, and possession of drug
paraphernalia. Shick appeals.
7] Shick argues the district court abused its discretion in
denying his pretrial motion to suppress evidence and his
motion for a mistrial. This Court previously laid out the
standard of review of a district court's ruling on a
motion for a mistrial:
Motions for mistrial are within the broad discretion of the
district court, and we will not reverse the court's
decision on the motion unless there was a clear abuse of that
discretion or a manifest injustice would result. A district
court abuses its discretion when it misinterprets or
misapplies the law, or when it acts in an arbitrary,
unreasonable, or capricious manner. Generally, granting a
mistrial is an extreme remedy which should be resorted to
only when there is a fundamental defect or ...