from the District Court of Ward County, North Central
Judicial District, the Honorable Todd L. Cresap, Judge.
K. Schell, Minot, ND, for plaintiff and appellee; on brief.
A. Gereszek, East Grand Forks, MN, for defendant and
appellant; on brief.
1] Precious Bailey appeals a criminal judgment entered after
a jury found her guilty of possessing a controlled substance
with the intent to deliver. Bailey argues the district court
erred by excluding hearsay testimony after analyzing the
credibility of the witness she wanted to testify on her
behalf. We affirm.
2] In September 2015 Bailey was arrested for driving under
suspension. According to the affidavit of probable cause and
as testified to at trial, a corrections officer felt
something "crinkling" in Bailey's bra while
booking her into jail. The officer placed Bailey in a holding
cell. The officer returned to take Bailey to a restroom to
perform a further search. While Bailey was being searched
other officers entered the holding cell and under the bench
discovered a black bundle containing smalls pills. The
officers identified the pills as Oxycodone. Bailey was
charged with possessing a controlled substance with the
intent to deliver.
3] Bailey indicated she intended to present evidence through
the testimony of Brittany Beeter. According to Bailey, Beeter
would testify that another inmate, Valarie Miller, told her
Bailey was charged with pills Miller left in the booking
area. Bailey indicated she attempted to subpoena Miller but
was unsuccessful. Bailey was informed by jail staff that
Miller had another warrant out on her and was unlikely to be
found. The district court did not allow Beeter to testify,
determining Beeter's multiple convictions for false
reports to law enforcement did not indicate reliability as
required under N.D.R.Ev. 804(b)(3). A jury found Bailey
guilty of possessing a controlled substance with the intent
to deliver and driving under suspension. Bailey appeals.
4] Bailey argues the district court erred by not allowing her
to present testimony from Beeter, who claimed inmate Miller
told her Bailey was charged with possession of Miller's
pills. Bailey argues the district court erred by weighing the
credibility of Beeter's potential testimony and thus
abused its discretion by not allowing Beeter to testify.
"A district court's exclusion or admission of
evidence under N.D.R.Ev. 804 will not be overturned on appeal
unless the court abused its discretion." State v.
Stridiron, 2010 ND 19, ¶ 21, 777 N.W.2d 892.
5] Bailey claimed Miller's statement was admissible as a
statement against interest under N.D.R.Ev. 804(b)(3). The
State objected to the testimony, arguing it was not
established that Miller was unavailable to testify and there
were no corroborating circumstances clearly indicating the
trustworthiness of the statement.
6] Under N.D.R.Ev. 804(b)(3), a statement against interest is
an exception to the hearsay rule if the declarant is
unavailable as a witness:
"Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position would
have made only if the person believed it to be true because,
when made, it was so contrary to the declarant's
proprietary or pecuniary interest or had so great a tendency
to invalidate the declarant's claim against someone else
or to expose the declarant to civil or criminal liability;
(B) if it is offered in a criminal case to exculpate the
accused, is supported by corroborating circumstances that
clearly indicate its trustworthiness as a statement that