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State v. Rolfson

Supreme Court of North Dakota

February 22, 2018

State of North Dakota, Plaintiff and Appellee
Nathan Oliver Rolfson, Defendant and Appellant

         Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Daniel S. El-Dweek, Judge.

          Stephenie L. Davis (argued), Assistant State's Attorney, and Jodi L. Colling (on brief), Assistant State's Attorney, Watford City, ND, for plaintiff and appellee.

          Michael R. Hoffman, Bismarck, ND, for defendant and appellant.


          VandeWalle, Chief Justice.

         [¶ 1] Nathan Rolfson appealed from a criminal judgment entered on a jury verdict finding him guilty of driving under the influence of alcohol or drugs. Rolfson argues the district court erred in admitting in evidence three foundation documents for the Intoxilyzer test result because the State failed to disclose the documents in response to his discovery request. We affirm, concluding, although the State violated the discovery rule, Rolfson has failed to show significant prejudice resulted from the State's failure to disclose the three challenged documents before trial, and therefore, the court did not abuse its discretion in refusing to exclude the exhibits from evidence.


         [¶ 2] On December 7, 2016, Rolfson was charged with driving under the influence of alcohol or drugs in violation of N.D.C.C. § 39-08-01. On December 15, 2016, Rolfson's attorney made a request for discovery from the State under N.D.R.Crim.P. 16, seeking in part:

C. Defendant requests the prosecuting attorney to permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings, or places, or copies or portions of any of these items, if the item is within the prosecution's possession, custody, or control, and the item is material to preparing the defense, the prosecution intends to use the item in its case-in-chief at trial, or the item was obtained from or belongs to the defendant.

         On May 9, 2017, ten days before the scheduled trial, the State sent Rolfson's attorney an email listing exhibits and including an electronic link to documents from the Attorney General's website the State intended to use as foundation exhibits for admission of Rolfson's Intoxilyzer test result.

         [¶ 3] Before jury selection at the trial, Rolfson objected to the Intoxilyzer test result being admitted in evidence because the district court's scheduling order required completion of discovery before the March 16, 2017 pretrial conference, and Rolfson did not receive the list of the State's exhibits until May 9, 2017. The court refused to exclude the Intoxilyzer test result as a sanction for the State's late compliance with discovery, but offered Rolfson's attorney a continuance of the trial. Rolfson's attorney declined to move for a continuance.

         [¶ 4] When the State attempted to introduce the Intoxilyzer test result, Rolfson's attorney objected, not on the basis of the late disclosure, but because there was no foundation evidence showing that the Intoxilyzer device was installed by a field inspector as required under Ell v. Dir., Dep't of Transp., 2016 ND 164, ¶¶ 21-22, 883 N.W.2d 464. The State requested and was allowed to print three additional exhibits to offer in evidence. Rolfson's attorney objected, arguing under City of Grand Forks v. Ramstad, 2003 ND 41, 658 N.W.2d 731, the State violated discovery by not providing the three documents in advance of trial. The State responded that because the three additional documents were publicly available, they were not required to be provided in its discovery response under State v. Packineau, 2015 ND 180, 865 N.W.2d 414. The court agreed with the State's position, and admitted in evidence the three additional foundation documents and the Intoxilyzer test record and result showing Rolfson had a blood alcohol content in excess of.08 percent.


         [¶ 5] Rolfson's sole argument on appeal is that the district court erred in allowing the State to admit in evidence the three additional exhibits "in violation of discovery, thus allowing the State to provide foundation for the chemical test result."

         [¶ 6] This Court reviews district court decisions regarding discovery violations under the abuse of discretion standard. See State v. Horn, 2014 ND 230, ¶ 7, 857 N.W.2d 77; State v. Loughead, 2007 ND 16, ΒΆ 17, 726 N.W.2d 859. A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned ...

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