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