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State v. Foster

Supreme Court of North Dakota

January 15, 2019

State of North Dakota, Plaintiff and Appellee
Michael Eric Foster, Defendant and Appellant

          Appeal from the District Court of Pembina County, Northeast Judicial District, the Honorable Laurie A. Fontaine, Judge. AFFIRMED.

          Jonathan R. Byers (argued), Assistant Attorney General, Bismarck, N.D., and Rebecca L. Flanders (appeared), Pembina County State's Attorney, Cavalier, N.D., for plaintiff and appellee.

          Michael R. Hoffman, Bismarck, N.D., for defendant and appellant.


          Tufte, Justice.

         [¶ 1] Michael Eric Foster appeals from a criminal judgment finding him guilty of one count of conspiracy to commit criminal mischief, one count of criminal mischief, and one count of criminal trespass. On appeal, Foster argues that the district court erred in admitting or excluding certain evidence and that there was insufficient evidence to support the criminal mischief and conspiracy convictions. We affirm the district court.


         [¶ 2] On October 11, 2016, Foster and a co-defendant went to a Keystone pipeline valve site located in Pembina County. Foster used bolt-cutters to cut the padlock on the gate as well as the padlock and chain on the valve itself. After a call was made to warn TransCanada Pipelines Limited ("TransCanada") that someone was about to close a manual valve on the Keystone pipeline, Foster closed the valve, halting the flow of oil. TransCanada performed an emergency shutdown of the pipeline, which then remained closed for over 7 hours. The State charged Foster with criminal mischief, conspiracy to commit criminal mischief, criminal trespass, and several other charges not at issue here. During the jury trial, the State called Trevor Pollock, a manager in TransCanada's pipeline operation control center. Foster argues that the State failed to provide sufficient evidence to prove he intentionally caused a financial loss greater than $10, 000 and intentionally agreed to do so with another individual and that the district court abused its discretion in admitting and excluding several items of evidence.


         [¶ 3] Foster argues that Pollock's testimony included inadmissible hearsay. He further argues this hearsay testimony was the only evidence the State produced to prove a financial loss greater than $10, 000. Thus he argues the evidence was insufficient. A "district court exercises 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. Doppler, 2013 ND 54, ¶ 7, 828 N.W.2d 502 (quoting State v. Chisholm, 2012 ND 147, ¶ 10, 818 N.W.2d 707). "A district court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably, or it misinterprets or misapplies the law." Id. Thus, we apply the abuse of discretion standard when "reviewing a district court's evidentiary rulings under the hearsay rule." State v. Azure, 2017 ND 195, ¶ 6, 899 N.W.2d 294 (quoting State v. Vandermeer, 2014 ND 46, ¶ 6, 843 N.W.2d 686).

         [¶ 4] First, Foster argues Pollock testified to opinion testimony based on hearsay. A lay witness is permitted to testify if competent and "if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." N.D.R.Ev. 601, 602. "Evidence to prove personal knowledge may consist of the witness's own testimony." N.D.R.Ev. 602. Testimony that falls within the personal knowledge of the lay witness is different from opinion testimony, which is governed by N.D.R.Ev. 701. Here, Pollock testified as a lay witness to facts within his personal knowledge, not opinions. Under the North Dakota Rules of Evidence, lay witnesses may testify to observations or facts within their personal knowledge. Such testimony does not constitute opinion testimony. See State v. Louser, 2017 ND 10, ¶ 9, 890 N.W.2d 1 (discussing types of witness testimony and stating lay witnesses may testify to their direct observation or their opinion).

         [¶ 5] Pollock's testimony was not expert testimony because it was not "based on scientific, technical, or other specialized knowledge." State v. Crissler, 2017 ND 249, ¶ 7, 902 N.W.2d 925 (citing State v. Evans, 2013 ND 195, ¶ 17, 838 N.W.2d 605). A witness is qualified as an expert "if the testimony is rooted exclusively in his expertise or is not a production of his investigation but instead reflects his specialized knowledge." Louser, 2017 ND 10, ¶ 9, 890 N.W.2d 1 (quoting State v. Saulter, 2009 ND 78, ¶ 15, 764 N.W.2d 430) (emphasis removed). However, testimony "relating to purely physical facts requires no special qualification and does not come within the scope of expert opinion evidence." State v. Engel, 289 N.W.2d 204, 208 (N.D. 1980).

         [¶ 6] Pollock testified about his observations and activities as operations coordinator in the pipeline operation control center on the day Foster closed the pipeline valve. Pollock testified to the jury about his duties in the control center, including monitoring pressure at various points in the system, monitoring and controlling pumps and automated valves, reviewing electronic logs of system operation, participating in operations meetings, responding to problems or issues, reviewing incidents, and, in general, operating the pipeline to achieve a target flow volume. Pollock testified he is one of the record custodians for information kept about pipeline operations. Pollock explained the records are automatically generated and stored in a database, and he reviews the records during unplanned changes such as the unplanned outage at issue here. Pollock knew shippers' requests to transport oil exceeded pipeline capacity because he operated the pipeline consistent with his orders to operate at maximum capacity continuously. He testified "[w]e are 24 hour 7 days a week, we're scheduled to ship higher than we've got capacity for, so if there's any downtime there isn't sprint capacity to catch up.... [I]f we are down we don't have the availability to make up that time."

         [¶ 7] The day of the incident, Pollock was on duty and responsible for operations. Pollock testified the target amount of oil that the pipeline transports is 591, 000 barrels per day based on 365 days a year, taking into account shippers' requests, scheduled maintenance, and unscheduled shutdowns. Pollock testified the actual flow rate on October 11, before the valve was closed, was 634, 000 barrels per day. He relied on State's Exhibit 21, a computer-generated log of flow rate from the company's database that contains regularly kept records of TransCanada's information since 2010, which was admitted into evidence. Here, because Pollock was responsible for monitoring and setting flow rates as manager, the district court did not abuse its discretion in permitting him to testify to his personal knowledge about the flow rates, transport capacity, duration of the outage, and the volume of oil which TransCanada lost the opportunity to transport.

         [¶ 8] To establish a financial loss greater than $10, 000, the State relied on Pollock's testimony in which he multiplied barrel flow per minute times the number of minutes the line was shut down times the shipping cost per barrel. Pollock testified to the shipping cost per barrel based on information he received from another TransCanada department. Pollock did not testify from personal knowledge of the amounts TransCanada billed or received for shipping oil. He received this information from someone else and relied on the information as true to establish his loss calculation. At trial, Foster objected to this testimony as hearsay. The district court overruled the objection, reasoning that the information was obtained from business records and thus was admissible under N.D.R.Ev. 803(6). The State did not offer the records as exhibits or provide any copies to Foster before or at trial. Additionally, Pollock is not the custodian of these financial records. Foster raises a serious question as to whether Pollock's testimony regarding the shipping cost per barrel was inadmissible hearsay, but we do not decide this question because even if that testimony should not have been admitted, any error is harmless because other evidence fully ...

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