from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
L. Anderson, Assistant State's Attorney, Bismarck, ND,
for plaintiff and appellee.
Caitlyn A. Pierson, Minot, ND, for defendant and appellant.
Terrance Tyler appeals from a judgment entered following his
conviction for Aggravated Assault in violation of N.D.C.C.
§ 12.1-17-02(1)(a). Tyler contends that the district
court abused its discretion in denying his motions for
mistrial when the victim became unavailable to provide
additional testimony after testifying earlier in the trial,
the district court improperly altered the order of the trial,
and the unavailability of the victim to provide additional
testimony resulted in a manifest injustice. We affirm the
judgment of the district court.
Tyler was charged with Aggravated Assault in violation of
N.D.C.C. § 12.1-17-02(1)(a) following an altercation
with the victim. The victim was subpoenaed by the State and
was called as a witness during the presentation of the
State's case. Following her direct testimony, the victim
was subject to cross-examination by Tyler's counsel. At
the conclusion of her testimony, the district court informed
the victim she had not been released from her subpoena,
excluded the victim from the courtroom, and told the victim
she could be recalled as a witness for either the State or
The victim went into premature labor after her testimony and
before the start of the next day of trial. Tyler moved for a
mistrial asserting he was prejudiced by the unavailability of
the victim to provide additional testimony. The district
court denied the motion for a mistrial. The State called
three additional witnesses and rested its case. Tyler moved
for a mistrial for a second time based on the absence of the
victim and the district court again denied the request for a
mistrial. Tyler immediately requested that the district court
allow the victim to be recalled to testify by telephone, the
State opposed, and the district court denied the request to
recall the victim as a witness by telephone.
On appeal Tyler contends that the district court abused its
discretion in denying his request for a mistrial. He argues
the district court erred by relying on his failure to express
his intention at the end of the victim's testimony that
the victim would be called as a witness during presentation
of his case. He also argues the district court abused its
discretion by altering the order of trial without providing
notice to Tyler. Finally, he argues the victim's absence
was a manifest injustice requiring a mistrial.
A district court has broad discretion in ruling on a motion
for a mistrial and will not be reversed on appeal unless the
court clearly abused its discretion or a manifest injustice
would occur. State v. Rende, 2018 ND 33, ¶ 5,
905 N.W.2d 909. An abuse of discretion may occur when the
district court misinterprets or misapplies the law, or when
the district court acts in an arbitrary, unreasonable, or
capricious manner. Id. A mistrial is an extreme
remedy which should be granted only when there is a
fundamental defect or occurrence in the proceedings that
makes it clear that further proceedings would be productive
of manifest injustice. Id.
Tyler asserts that the district court abused its discretion
through a misapplication of the law when the court noted that
after the victim had testified as a witness for the State,
Tyler had failed to inform the court the victim would be
called during Tyler's case as a witness. Tyler asserts
that requiring a defendant to disclose who the defendant may
call as a witness violates N.D.R.Crim.P. 16 limiting the
obligation to disclose witnesses to the State.
We have previously recognized, in the context of a motion for
a new trial, the district court has broad discretion when a
material witness is unavailable through no fault of either
party and a defendant fails to demonstrate prejudice.
State v. Lemons, 2004 ND 44, ¶ 23, 675 N.W.2d
148. A district court abuses its discretion when it acts
arbitrarily, unreasonably, or capriciously in denying a
party's motion for a new trial. Rogers v. State,
2017 ND 271, ¶ 11, 903 N.W.2d 730. See Flatt v.
Kantak, 2004 ND 173, ¶ 16, 687 N.W.2d 208, 219
(considering the district court's ruling, as a whole, to
determine whether the district court had abused its
The district court's references to Tyler's failure to
indicate the victim would be recalled as a defense witness
were not made in isolation and were made in the context of
assessing what should be done about an unavailable witness.
The witness here had testified the day before during the
State's case-in-chief. At the end of her testimony, the
witness remained subject to the State's subpoena to
appear, was sequestered from the courtroom, and was informed
she may be called to provide further testimony. The district
court's denial of the request for a mistrial was not
limited to referencing Tyler's failure to express an
intent to recall the victim, but also included the following:
an observation Tyler had not made an "offer of
proof," an observation there had been "no
suggestion of what testimony she [the victim] might or would
or could give if she were placed on the witness stand,"
an observation the victim had testified and been subject to