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State v. Thorsteinson

Supreme Court of North Dakota

March 13, 2019

State of North Dakota, Plaintiff and Appellee
v.
Austin Lee Thorsteinson, Defendant and Appellant

          Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.

          Kari M. Agotness, Ramsey County State's Attorney, Devils Lake, ND, for plaintiff and appellee.

          Kyle R. Craig, Minot, ND, for defendant and appellant.

          OPINION

          CROTHERS, JUSTICE.

         [¶1] 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.

         I

         [¶2] 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.

         [¶3] 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.

         [¶5] 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.

         [¶6] 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.

         II

         [¶7] Thorsteinson argues the district court erred in admitting evidence of his prior bad acts.

         [¶8] 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 accident." Id.

         [¶9] 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 ...


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