from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Jon J. Jensen,
Bass (argued), Assistant State's Attorney, and Carmell F.
Mattison (on brief), Assistant State's Attorney, Grand
Forks, ND, for plaintiff and appellee.
Benjamin C. Pulkrabek, Mandan, ND, for defendant and
VandeWalle, Chief Justice.
1] Delvin Shaw appealed from a criminal judgment after a jury
found him guilty of murder and burglary. Shaw argues the
district court erred in admitting evidence of other crimes or
bad acts, and the court erred in playing the earlier
testimony of a State's witness after finding the witness
was unavailable to testify at trial. We affirm.
2] In June 2014, two men broke into Jose Lopez's
apartment in Grand Forks. A fight broke out and one of the
men shot Lopez. Lopez died from the gunshot wounds. Shaw was
arrested and charged with murder and burglary. At trial,
Dametrian Welch testified he accompanied Shaw to Lopez's
apartment. Welch testified Shaw kicked the door open, got
into an altercation with Lopez, and then shot Lopez four
times. Welch testified that after the shooting, he confessed
to the police about what happened at the apartment. After a
jury found Shaw guilty, he appealed. A majority of this Court
reversed and remanded for a new trial, holding the district
court misapplied the law on N.D.R.Ev. 404(b) and N.D.R.Ev.
403 relating to evidence of Shaw's alleged involvement in
a burglary that occurred a few days before Lopez's
murder. State v. Shaw, 2016 ND 171, 883 N.W.2d 889.
3] Before Shaw's second trial, the State provided notice
of its intent to introduce evidence that Shaw was involved in
a burglary at an apartment in the same building as
Lopez's apartment four days before the murder. The State
argued the evidence of the earlier robbery was admissible to
show Shaw and Welch had a plan, motive, and intent to go back
to the same apartment to respond to a threat, but the men
mistakenly went to Lopez's apartment. The State also
argued the alleged burglary was intrinsic to the murder
charge because it completed the story of why Shaw went back
to the apartment building. Shaw objected to the admission of
the evidence. The district court issued a written order
allowing the State to present evidence of the alleged
burglary four days before Lopez's murder.
4] Welch refused to testify at the second trial. The district
court found Welch was an unavailable witness under N.D.R.Ev.
804(a)(2) because he refused to testify after the court
ordered him to testify. The court allowed an audio recording
of Welch's testimony from the first trial to be played
for the jury at the second trial. The jury found Shaw guilty.
5] Shaw argues the district court erred in admitting evidence
of crimes or other acts under N.D.R.Ev. 404(b).
6] We review a district court's evidentiary ruling for an
abuse of discretion. State v. Campbell, 2017 ND 246,
¶12, 903 N.W.2d 97. A court abuses its discretion when
it acts in an arbitrary, capricious, or unreasonable manner,
when it misinterprets or misapplies the law, or when its
decision is not the product of a rational mental process
leading to a reasoned decision. Id. at ¶6.
7] Rule 404(b), N.D.R.Ev., governs the admissibility of
evidence of a prior crime, wrong, or other act. Under
N.D.R.Ev. 404(b)(1), evidence of a prior crime "is not
admissible to prove a person's character in order to show
that on a particular occasion the person acted in accordance
with the character." Under N.D.R.Ev. 404(b)(2), evidence
of a prior bad act may be admissible for another purpose,
such as proving motive, plan, or intent. "The rule
excludes admission of evidence of other crimes or bad acts
unless the evidence is substantially relevant for some
purpose other than to show a defendant's criminal
character and that the defendant's acts conformed with
that character." Shaw, 2016 ND 171, ¶7,
883 N.W.2d 889.
8] In deciding whether evidence of prior bad acts is
admissible, the district court ...