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State v. Newark

Supreme Court of North Dakota

August 29, 2017

State of North Dakota, Plaintiff and Appellee
v.
Steven Jon Newark Jr., Defendant and Appellant

         Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

          Carmell F. Mattison, Assistant State's Attorney, Grand Forks, ND, for plaintiff and appellee; submitted on brief.

          Theodore T. Sandberg, Grand Forks, ND, for defendant and appellant; submitted on brief.

          OPINION

          Kapsner, Surrogate Judge.

         [¶ 1] Steven Newark, Jr. appeals from a judgment entered after a jury found him guilty of burglary, terrorizing, and criminal mischief. We conclude the district court did not abuse its discretion in denying Newark's motion for a continuance or a dismissal. We further conclude the court did not abuse its discretion in allowing the State to call a police officer to testify in rebuttal and in delaying its ruling whether other officers would be allowed to testify in rebuttal. We affirm.

         I

         [¶ 2] In February 2016, the State charged Newark with burglary, terrorizing, and criminal mischief, alleging that he willfully entered the residence of two females at night by kicking in the front door and a bedroom door, that he threatened the females with a wine bottle, and that he caused property damage to the residence of at least $100. In May 2016, the district court granted the State's motion for a continuance of a jury trial. The court granted the State's motion to amend the information to correct the time of the alleged offenses and to add witnesses to the information. Newark filed a notice of alibi. On July 7, 2016, the State filed its witness list, including three officers from the Grand Forks police department.

         [¶ 3] A jury trial was held from July 12 to 14, 2016. At trial after the jury had been selected and sworn, the State notified the district court and defense counsel that none of the police officers listed on its witness list would be testifying. The State claimed that the officers had ignored the State's attempts to contact them and that the officers were deemed to have ignored their subpoenas. Newark moved for a dismissal with prejudice or a continuance, asserting the State's actions and omissions had materially prejudiced him after the jury had been sworn. The court denied his motion, ruling Newark could have subpoenaed the officers and could still subpoena them and call them as hostile witnesses.

         [¶ 4] The jury trial proceeded. After calling the two female occupants of the residence in its case-in-chief, the State rested. Both occupants identified Newark in the courtroom as the perpetrator who broke into their apartment and threatened them. Newark called his girlfriend as a witness as part of his alibi defense, and she testified he was with her all night at various restaurants. Newark also testified he was at various restaurants on the night of the alleged offenses. After the defense rested, the State called one of the police officers initially listed on the State's witness list as a rebuttal witness. The court allowed the officer to testify and deferred ruling on whether the other officers would be allowed to testify in rebuttal. After the first officer testified, however, the State withdrew its request to call the other officers, and the State rested. The jury thereafter found Newark guilty on all three counts, and a criminal judgment was entered.

         II

         [¶ 5] Newark argues he was materially prejudiced by the State's failure to call any of the police officers as witnesses in its case-in-chief. He argues the district court abused its discretion in denying his request for a continuance or a dismissal.

         [¶ 6] We have said that "[t]he proper remedy for unfair surprise is a continuance, but one must be requested." State v. Muhle, 2007 ND 131, ¶ 20, 737 N.W.2d 636 (quotation marks omitted); see also State v. VanNatta, 506 N.W.2d 63, 69-70 (N.D. 1993); State v. Kunkel, 452 N.W.2d 337, 339 (N.D. 1990). The district court's decision whether to grant a continuance will not be set aside on appeal absent an abuse of discretion. Kunkel, at 339. In reviewing a court's decision on a motion for continuance, we "must look to the particular facts and circumstances of each case as there is no mechanical test for determining whether or not a trial court abused its discretion." Id. We also review a district court's decision whether to grant a mistrial for an abuse of discretion. Muhle, at ¶ 22. A district court abuses its discretion when it acts in an arbitrary, unreasonable, unconscionable, or capricious manner, or if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Id.

         [¶ 7] We have explained that "[t]he State is not required to call as its witness everyone whose name is endorsed on the information." State v. Ave, 74 N.D. 216, 218, 21 N.W.2d 352, 353 (1946). We have also said that "if a witness does not show up for trial, a party asserting the deprivation of the right to examine that witness may not rely on the fact that the opposing party subpoenaed the witness." Great Plains Supply Co. v. Erickson, 398 N.W.2d 732, 734 (N.D. 1986).

         [¶ 8] Newark argues he relied on the State's subpoenas of the police officers, the witnesses identified in the criminal information, and the specific witness list filed by the State. He complains it was only after the jury was sworn that the State notified the district court and defense counsel that the officers would not appear and testify in the State's case-in-chief. He contends the State's late notification establishes its intent to omit information because other pretrial matters had been discussed before the jury was sworn. He also asserts the officer who testified in rebuttal "opportunely" became available at the end of trial. He claims this case is similar to Kunkel and argues the district court did not act reasonably based on the "flagrant disregard of the trial process by both police officers and prosecution." He claims he was prevented from eliciting ...


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