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