from the District Court of Cass County, East Central Judicial
District, the Honorable Douglas R. Herman, Judge. AFFIRMED.
J. Olafson Selzer, Assistant State's Attorney, Fargo, ND,
for plaintiff and appellee.
R. McCabe, Bismarck, ND, for defendant and appellant.
1] JanMichel Wangstad ("Wangstad") appeals a
criminal judgment entered after a jury verdict finding him
guilty of attempted murder. Wangstad argues the district
court erred in the admission of social media posts he made
prior to the alleged crime, the jury was given erroneous
instructions, and the evidence was insufficient to support
the conviction. We affirm the judgment of conviction.
2] On March 18, 2016, West Fargo police were dispatched to
the Rodeway Inn in response to a report of a man with a gun.
Responding officers located the source of the disturbance in
one of the rooms. One of the officers knocked on the door of
the room and announced, "police." A female
acquaintance of Wangstad opened the door and began to step
back into the room. The officers told the female to get down
on the ground. Two officers then entered a few steps into the
room and noticed Wangstad standing by a desk. Wangstad made a
fast-paced movement from the desk to the corner of the room
where he fired a gun in the direction of one of the officers.
The bullet traveled through the wall above the entry door to
the room and lodged into the wall of another room. The
officers then backed out of the room.
3] Wangstad admitted at trial that he moved toward the corner
of the room, pulled the gun from his waistband, fired the
gun, and the bullet hit above the door where one of the
officers was standing. Wangstad stated he did not intend to
shoot the officer; he just wanted to "get him out of the
room as quickly as possible." Wangstad was convicted by
a jury on the charge of attempted murder.
4] On appeal, Wangstad argues the statements he made via
social media posts prior to the alleged crime should not have
been admitted into evidence. Wangstad also argues the jury
was not properly instructed regarding the essential elements
of attempted murder under N.D.C.C. §§ 12.1-06-01,
12.1-16-01(1)(a). Lastly, Wangstad argues the evidence
presented at trial was insufficient to warrant a finding of
guilty beyond a reasonable doubt.
5] The State offered as evidence portions of two social media
posts that had been authored by Wangstad. The State offered
the posts as evidence of Wangstad's state of mind arguing
the posts demonstrated that Wangstad had an anti-law
enforcement disposition and violent intentions. Wangstad
objected to the relevancy of the posts, arguing that
N.D.R.Ev. 403 precluded the posts from being admitted as
evidence because they were not probative to the issues being
tried and, if probative, were unduly prejudicial. The
district court overruled the objection, admitted the
evidence, and inquired whether Wangstad wanted the entirety
of both posts read to the jury. Wangstad requested a complete
version of both posts be read to the jury.
6] "In ruling on the relevancy of evidence, a trial
court has broad discretion to balance the probative value of
the evidence against the risk of unfair prejudice, and its
decision will not be overturned on appeal absent an abuse of
discretion." State v. Valgren, 411 N.W.2d 390,
394 (N.D. 1987) (citing State v. Newnam, 409 N.W.2d
79, 87 (N.D. 1987)). A trial court has "broad discretion
in determining whether to admit or exclude evidence, and its
determination will be reversed on appeal only for an abuse of
discretion." State v. Chisholm, 2012 ND 147,
¶ 10, 818 N.W.2d 707. "[T]his Court does not
reverse a district court's decision to admit or exclude
evidence on the basis of relevance unless the district court
abused its discretion by acting in an arbitrary,
unreasonable, or unconscionable manner." State v.
Bjerklie, 2006 ND 173, ¶ 4, 719 N.W.2d 359 (citing
Rittenour v. Gibson, 2003 ND 14, ¶ 35, 656
7] Here, the district court noted the social media posts were
prejudicial. The court then extensively balanced the
probative value of the posts and the possible prejudice
created by the posts to determine if they were unduly
prejudicial and required to be excluded from evidence. The
court noted that social media related evidence was becoming
increasingly common in many different types of cases. The
court considered the proximity in time the posts were made to
the incident being tried and provided, in part, the following
And all of a sudden we have, in the 21st Century, temporary
expressions of state of mind that never existed before.
It's compelling evidence. It is the best evidence. How
could we not consider it? What fact finder would not want to
know this? What fair fact finder would not want to know this,
that within ten days prior to this event, ...