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State v. Blotske

Supreme Court of North Dakota

July 31, 2017

State of North Dakota, Plaintiff and Appellee
v.
Brady Joel Blotske, Defendant and Appellant

         Appeal from the District Court of McLean County, South Central Judicial District, the Honorable John W. Grinsteiner, Judge.

          Ladd R. Erickson, State's Attorney, Washburn, ND, for plaintiff and appellee; submitted on brief.

          Scott O. Diamond, Fargo, ND, for defendant and appellant.

          Kapsner, Justice.

         [¶ 1] Brady Blotske appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition, felonious restraint, and terrorizing. Because we conclude the district court erred in denying Blotske's request for a mistrial, we reverse and remand for a new trial.

         I

         [¶ 2] On May 11, 2015, Blotske was charged with gross sexual imposition, felonious restraint, and terrorizing. The charges arose from an incident involving his former girlfriend. The case was tried before a jury. Before trial began, the State informed the district court and Blotske of its intention to introduce a video interview of Blotske by an investigating officer. The parties stipulated to the foundation and admission of the video after discussing some objections to portions of the video. Blotske's counsel was concerned the officer and Blotske discussed allegations of child molestation during the video interview. Blotske's counsel noted the allegations had been investigated, were unfounded, and made the court aware he would object if the statements were played before the jury. The State agreed the statements should not be played for the jury. The district court stated, "I think what we'll do, as both of you have indicated, is try our best to avoid it, and if it comes up, we'll sustain objections and maybe in closing as indicated. So I guess that's the best way to avoid it."

         [¶ 3] At trial, the jury heard testimony from the victim, two detectives, Blotske's father, Blotske's sister, a friend of the victim, and Blotske himself. The victim and Blotske gave conflicting accounts of what occurred on the night of the incident. The victim testified after an argument, Blotske struck her, bound her wrists with electrical tape, and then forced vaginal and anal sexual intercourse with her. The victim also testified Blotske pointed a gun at her and threatened to kill both her and himself while holding a gun to his head. Blotske testified he and the victim had consensual sex after an argument and that he only bound the victim's wrists to prevent her from driving drunk with children in the car. Blotske testified he handed the gun to the victim because, as they argued, the victim said she wanted to kill herself. Blotske stated the gun was not loaded when he handed it to her and that he did not know why he handed the gun to the victim.

         [¶ 4] During the testimony of one of the detectives, the State offered the video interview and stated, "pursuant to the previous stipulation where we admitted the tape, I would like to play about 13 minutes of the interview where they actually get into the specifics." The State played the video for the jury. Blotske's counsel objected because the video began to play content the parties had agreed to omit. The district court permitted the State to address the jury about the statement. The State said to the jury:

He talks about a molestation. There is absolutely no evidence of any child molestation by any Blotskes. It's talking about something else. I was trying to exclude that. Okay. Detective Lincoln investigated an allegation from the victim's sister that was totally unfounded historically, but it comes up in this conversation. Okay. But they did not molest any children, neither of the Blotskes. Okay. So don't have any inference that we think that happened, because there's no evidence of it. They were cleared.

         The district court directed the jury to disregard the information. After a discussion off the record, the court addressed the jury again in order to give an explanation and permitted the State to explain that the allegations were unfounded. Blotske's counsel indicated what was played for the jury was prejudicial to the defense and asked the court for a curative instruction.

         [¶ 5] Blotske requested a mistrial just before the second day of trial was set to begin. Blotske's counsel argued the statements on the video were prejudicial and when the State addressed the jury about the statements, it brought further attention to the misinformation and tainted the jury beyond repair. The State resisted the motion for mistrial. In considering whether to grant a mistrial, the district court stated:

Correct me if I'm wrong, I think both of you may have heard [Blotske] mention it in his testimony. In one of his narrative answers, I think he made it--you stopped him at that point if I'm not mistaken, but it was brought up by your client as well just so you both understand that. I understand the objection. I understand that you've made the offer of proof, and we'll have that on the record, but I'm going to overrule the objection. The motion for mistrial is denied.

         The district court then offered to give a curative instruction. The court stated the curative instruction would say, "The jury will disregard any reference to molestation heard or referenced in the video played. No evidence or basis of any crime were found. The jury should not consider such in your deliberations." The parties agreed to the curative instruction.

         [¶ 6] Blotske's counsel also requested a lesser-included-offense instruction be given to the jury for the offense of sexual assault. Blotske argued there were two separate incidents: one involving penetration, and one that did not involve penetration. The State opposed the inclusion of a lesser-included-offense instruction. The district court denied Blotske's request for a lesser-included-offense instruction.

         [¶ 7] After closing arguments, the jury deliberated and returned a verdict of guilty on all counts. The district court entered a criminal judgment for convictions of gross sexual imposition, felonious restraint, and terrorizing on September 20, 2016. Blotske was ...


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