from the District Court of Ramsey County, Northeast Judicial
District, the Honorable Donovan J. Foughty, Judge.
M. Agotness, Ramsey County State's Attorney, Devils Lake,
ND, for plaintiff and appellee.
R. Craig, Minot, ND, for defendant and appellant.
Austin Thorsteinson appeals from a criminal judgment after a
jury convicted him of felony child abuse. Thorsteinson argues
the district court erred by admitting evidence of alleged
prior bad acts. Thorsteinson further argues the district
court failed to give adequate jury instructions on the
definition of reckless conduct. We affirm.
In November 2016 a two-year-old child in Thorsteinson's
care suffered injuries that caused bleeding on the brain. A
subsequent surgery removed part of the child's skull to
relieve pressure. The child suffered a stroke during
hospitalization and tests indicate a portion of the
child's brain will not recover from the injury.
Thorsteinson was the last individual alone with the child
before the injury. Thorsteinson and the child's mother
were in a romantic relationship and he often provided care
for the child. Thorsteinson cooperated with police to reenact
the incident and answered questions regarding his perception
of the events leading up to the child's injury.
Thorsteinson said the injury was from an accidental fall
while he was holding the child. He told police the injury
resulted from the impact between the child's head and a
hard object in the path of the fall. Thorsteinson was
arrested and charged with felony child abuse in violation of
N.D.C.C. § 14-09-22. [¶4] The State filed a
pretrial notice of intent to introduce evidence of three
prior bad acts under N.D.R.Ev. 404(b). The prior acts
included a July 2016 head injury to the child while in
Thorsteinson's care, a September 2016 domestic violence
incident between Thorsteinson and the child's mother and
a September 2016 incident in which Thorsteinson caused
bruising to the child's buttocks. Thorsteinson objected
and argued the State was not using the evidence for a
permissible purpose, and instead was attempting to prove
propensity of character in violation of N.D.R.Ev. 404(b)(2).
The district court allowed the State to use most of the
evidence but excluded photographs of the July 2016 injury,
which it found were unduly prejudicial.
The original trial ended with a hung jury. The State elected
to retry Thorsteinson and again sought to use evidence of the
prior events. Thorsteinson again objected, claiming the State
was attempting to use the evidence in a manner not allowed
under N.D.R.Ev. 404(b). The district court allowed the State
to use the evidence at the second trial.
The case was submitted to the jury after closing arguments.
During deliberation the jury asked about the definition of
reckless conduct. The judge denied Thorsteinson's request
for an additional jury instruction, and directed the jury to
use the legal definitions provided in the jury instructions
and the plain, ordinary and commonly understood meaning of
any words within the definitions. The jury delivered a guilty
verdict and, on May 31, 2018, the district court sentenced
Thorsteinson to twenty years imprisonment with ten years
suspended. Thorsteinson filed this timely appeal.
Thorsteinson argues the district court erred in admitting
evidence of his prior bad acts.
Rule 404(a), N.D.R.Ev., outlines the general rule that
"[e]vidence of a person's character or character
trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or
trait." However, evidence of other crimes, wrongs, or
acts "may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
This Court repeatedly has warned of the danger of allowing
evidence of other acts to show propensity and of tempting the
jury to convict a defendant for actions other than the
charged misconduct. State v. Aabrekke, 2011 ND 131,
¶ 8, 800 N.W.2d 284; State v. Schmeets, 2009 ND
163, ¶ 15, 772 N.W.2d 623; State v. Ramsey,
2005 ND 42, ¶ 19, 692 N.W.2d 498. This rule recognizes
the inherent prejudice the evidence of prior bad acts may
have on the trier of fact, and excludes such evidence unless
it is substantially relevant for a ...