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State v. Azure

Supreme Court of North Dakota

July 31, 2017

State of North Dakota, Plaintiff and Appellee
v.
Duane Francis Azure, Jr., Defendant and Appellant

         Appeal from the District Court of Rolette County, Northeast Judicial District, the Honorable Anthony Swain Benson, Judge. REVERSED AND REMANDED.

          Ryan J. Thompson, Rolette County State's Attorney, Rolla, ND, for plaintiff and appellee.

          William R. Hartl, Rugby, ND, for defendant and appellant.

          VandeWalle, Chief Justice.

         [¶ 1] Duane Azure, Jr., appealed a criminal judgment entered after a jury found him guilty of aggravated assault. Azure argues the district court abused its discretion by allowing two prior statements of the State's witness into evidence at trial. Because the district court abused its discretion in allowing the victim's prior statement to Agent Kluth into evidence under North Dakota Rules of Evidence 801(d)(1)(B), we reverse and remand.

         I.

         [¶ 2] On April 20, 2014, a deputy was sent to Duane Azure, Sr.'s residence after law enforcement received numerous calls from the residence with no response from the caller. When the deputy arrived at the residence, Duane Azure, Jr. was at the door. When asked if anyone called 911 from the residence, Azure directed the deputy to the living room. The deputy observed Yvette Belgarde lying on the floor in the living room. The deputy requested an ambulance to the residence and Belgarde was transported to the local emergency room. Her initial explanation to law enforcement and medical personnel about her injuries was that she fell on the deck. Approximately two weeks later, while in the hospital, Belgarde contacted law enforcement and stated her injuries were not caused by falling on the deck, but by Azure assaulting her. Belgarde was interviewed by Agent Allen Kluth of the North Dakota Bureau of Criminal Investigation. Belgarde restated to Agent Kluth that Azure had assaulted her and that she was afraid to say anything at first. Azure was subsequently charged with aggravated assault.

         [¶ 3] During the preliminary hearing, Azure called Belgarde as a witness. On direct examination, Azure attempted to solicit testimony from Belgarde to indicate she had fabricated the allegations of the assault to better her position in a potential claim against the property owners for damages. Azure also questioned Belgarde on the two different explanations she gave for her injuries -- falling on the deck and being assaulted by Azure. The district court found probable cause existed and set the case for trial. However, prior to trial, Belgarde died from causes unrelated to the assault.

         [¶ 4] Because of Belgarde's death, the State moved the district court to allow Belgarde's testimony from the preliminary hearing and statements she made to Agent Kluth at the hospital in the State's case-in-chief. Azure objected. The district court granted the State's motion and the evidence was allowed in at trial. The jury subsequently found Azure guilty of aggravated assault.

         [¶ 5] On appeal, Azure argues the district court erred by: (1) allowing Belgarde's preliminary hearing testimony into evidence at trial; (2) allowing Agent Kluth to testify to the statements Belgarde made to him at the hospital; and (3) denying his motion for judgment of acquittal.

         II.

         [¶ 6] "A district court has broad discretion in evidentiary matters, and we will not overturn a district court's decision to admit or exclude evidence unless the court abused its discretion. The abuse of discretion standard therefore applies when reviewing a district court's evidentiary rulings under the hearsay rule." State v. Vandermeer, 2014 ND 46, ¶ 6, 843 N.W.2d 686 (citing State v. Jaster, 2004 ND 223, ¶ 12, 690 N.W.2d 213).

         A.

         [¶ 7] Prior to Azure's trial, the State moved the district court to allow Belgarde's preliminary hearing testimony into evidence under Rule 804 of the North Dakota Rules of Evidence. The district court granted the State's motion.

         [¶ 8] Rule 804 allows for hearsay evidence to be admitted when the declarant is unavailable as a witness if the testimony:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or ...

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