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Brewer v. State

Supreme Court of North Dakota

March 13, 2019

Michael Brewer, Petitioner and Appellee
v.
State of North Dakota, Respondent and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

          Scott O. Diamond, Fargo, N.D., for petitioner and appellee.

          Marina Spahr, Assistant State's Attorney, Bismarck, N.D. for respondent and appellant.

          OPINION

          TUFTE, JUSTICE.

         [¶1] The State appeals from a district court order finding Michael Brewer had received ineffective assistance of counsel and granting him a new trial. At trial, Brewer's attorney did not object to evidence that was likely inadmissible under N.D.R.Ev. 404(b). We affirm the district court's order.

         I

         [¶2] Brewer was convicted of two counts of Gross Sexual Imposition ("GSI"). He appealed the judgment of conviction, and this Court affirmed the judgment. See State v. Brewer, 2017 ND 95, 893 N.W.2d 184. Both victims of the GSI counts, J.L. and G.H., were minors. Three interviews were received into evidence: one interview given by G.H. regarding a separate incident occurring at the home of Brewer and G.H.'s aunt, Brewer's girlfriend, prior to the pool incident; and two interviews regarding the charged incident-one from each of the minor children about interactions Brewer had with them in a hotel pool. In the interview about the home incident, G.H. stated Brewer had placed his hand on her buttocks inside her pa nts but outside her underwear. In a pretrial motion, Brewer sought to exclude this interview from trial, arguing it was inadmissible under Rules 403 and 404(b). The district court found the interview was not unduly prejudicial and would be admissible at trial to prove motive, intent, plan, absence of mistake or lack of accident under N.D.R.Ev. 404(b)(2). Brewer's attorney failed to renew his objection to the evidence at trial when the State offered a recording of the interview into evidence.

         [¶3] After his conviction was affirmed on appeal, Brewer applied for postconviction relief. In 2018, a postconviction hearing was held. The same district court judge presided over both the original trial and the postconviction hearing. The court explained in its postconviction relief order that at trial it was not "given the opportunity to re-consider [its] ruling after hearing . . . G.H.'s actual court testimony." The district court specifically noted that if an objection had been raised at trial, the court would "have had the opportunity to view the alleged conduct in light of the definition of sexual conduct and the actual evidence produced at trial." The court stated it likely would have sustained the objection to the interview had the evidence been objected to at trial.

         II

         [¶4] "Postconviction proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure." Broadwell v. State, 2014 ND 6, ¶ 5, 841 N.W.2d 750. The "applicant has the burden of establishing grounds for post-conviction relief." Rourke v. State, 2018 ND 137, ¶ 5, 912 N.W.2d 311.

A trial court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). A finding is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made. Questions o f l a w are fully reviewable on appeal of a post-conviction proceeding.

Middleton v. State, 2014 ND 144, ¶ 5, 849 N.W.2d 196; see Rourke, at ¶ 5.

         [¶5] "The issue of ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable by this Court." Rourke, 2018 ND 137, ¶ 5, 912 N.W.2d 311. The analysis for ineffective assistance of counsel claims under the United States Constitution's Sixth Amendment is well established:

In order to prevail on a post-conviction relief application based on ineffective assistance of counsel, the petitioner must (1) "show that counsel's representation fell below an objective standard of reasonableness" and (2) "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have ...

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