State v. Dargbeh

969 N.W.2d 144

STATE of North Dakota, Plaintiff and Appellee

v.Emile DARGBEH, Defendant and Appellant

No. 20210175

Supreme Court of North Dakota.

FILED JANUARY 6, 2022

SheraLynn Ternes, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Leah R. Carlson, West Fargo, N.D., for defendant and appellant.

Tufte, Justice.

[¶1] Emile Dargbeh appeals from a criminal judgment entered after a jury found him guilty of two counts of forgery in violation of N.D.C.C. § 12.1-24-01(1)(b). We affirm, concluding that the court did not abuse its discretion in admitting evidence and testimony in relation to a third, uncharged check and that there was sufficient evidence to sustain the conviction.

I

[¶2] In March and April of 2020, Dargbeh cashed three forged checks from Dacotah Paper Company. Each check was written out to Emile Dargbeh in an amount ranging from $1,900 to $2,180. The State obtained video showing Dargbeh cashing two of the three checks. The State charged Dargbeh with one count of forgery for each check recorded on video but did not include a third count for the third check not recorded on video.

[¶3] A jury trial was held in May 2021. At the trial, the State mentioned the third check during its opening statements. Defense objected to the introduction of any evidence or testimony in relation to this third check under N.D.R.Ev. 404(b) and 403. The district court overruled the objection, stating the third check could be used to show that Dargbeh had knowledge of the alleged forgery scheme and that he knew the checks were fraudulent. During Detective Dane Ronning's testimony, the State introduced all three checks cashed by Dargbeh into evidence. Defense counsel objected to the introduction of the third check as evidence, and the court overruled the objection.

[¶4] The State presented evidence that 26 people were involved in passing fraudulent checks on Dacotah Paper's account. Approximately 30 forged checks were passed through the account, resulting in a loss of $63,000. The individuals who cashed the checks would keep a share of the money while the person who printed the fraudulent checks would keep the rest. Detective Ronning testified that he believed Toki Agamiri—Dargbeh's roommate—was the leader behind the forgery ring. Video footage was presented to the jury showing Agamiri with Dargbeh when Dargbeh cashed one of the fraudulent checks. Additionally, the State presented evidence that two cars rented to Dargbeh were used by other individuals cashing fraudulent checks. Further, the jury heard testimony from the vice president of accounting at Dacotah Paper who testified that Dacotah Paper issued no checks to Dargbeh and had never employed him.

[¶5] Dargbeh testified that he had no knowledge the checks in question were forged or that the checks were part of a larger forgery scheme. He testified that he cashed the checks for Agamiri, an employee of Dacotah Paper Company, because Agamiri "had issues with his [bank] account" so he cashed the checks for him "to help him out." Dargbeh testified that no "red flags" were raised and that he had no suspicion about the checks being forged despite the fact that the checks were written out to him and not to Agamiri, an employee of Dacotah Paper Company. He testified that while he did not receive a share of any of the forged checks, he did receive some money from one of the checks to repay a debt owed to Dargbeh by Agamiri. The jury ultimately found Dargbeh guilty on both counts of forgery. He appeals from the criminal judgment.

II

[¶6] Dargbeh argues the district court erred in allowing evidence of the third check. Dargbeh argues the court failed to apply the required three-step analysis for considering the admissibility of prior bad acts evidence under N.D.R.Ev. 404(b) and failed to give a jury instruction regarding the limited purpose of that evidence. He also argues the evidence and testimony about the third check prejudiced him and the court failed to consider whether, under N.D.R.Ev. 403, the danger of unfair prejudice substantially outweighed the probative value of the evidence. The State, on the other hand, argues the third check is not Rule 404(b) evidence; rather, it is evidence of activity in furtherance of the charged criminal offense.

[¶7] This Court reviews a district court's evidentiary ruling under an abuse of discretion standard. State v. Hirschkorn , 2020 ND 268, ¶ 6, 952 N.W.2d 225. "A district court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably, or it misinterprets or misapplies the law." State v. Polk , 2020 ND 248, ¶ 10, 950 N.W.2d 764.

[¶8] This Court has "warned of the dangers inherent in allowing evidence of other acts to show propensity and of tempting a jury to convict a defendant for actions other than the charged misconduct." State v. Shaw , 2016 ND 171, ¶ 7, 883 N.W.2d 889. Rule 404(b), N.D.R.Ev., governs the admissibility of evidence involving a prior crime, wrong, or other act. It provides:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial or during trial if the court, for good cause, excuses lack of pretrial notice.

[¶9] "Prior acts that are evidence of activity in furtherance of the same criminal activity a defendant is charged with may avoid exclusion under N.D.R.Ev. 404(b)." State v. Buckley , 2010 ND 248, ¶ 35, 792 N.W.2d 518. " Rule 404(b) only excludes evidence of other acts and crimes committed by the defendant when they are independent of the charged crime." State v. Christensen , 1997 ND 57, ¶ 8, 561 N.W.2d 631. Thus, evidence is 404(b) evidence only when the evidence is of "a wholly separate and independent crime" apart from the charged crime. See id.

[¶10] Furthermore, evidence of prior bad acts is admissible when "the evidence provides a more complete story of the crime by putting it in context of happenings near in time and place." State v. Gaede , 2007 ND 125, ¶ 26, 736 N.W.2d 418. Evidence of a defendant's prior conduct that was "intertwined with the factual scenario leading up to" the charged crime is admissible to provide "context of happenings" for the jury. Id. at ¶ 28.

[¶11] The State argues that because the three separate checks involve the same course of conduct and the same victim, the third check is not an independent and wholly separate crime, but instead is inextricably intertwined with the two charged checks. Further, the State contends that the third check provided a more complete story of the crime as well. Dargbeh argues the State conceded at trial that the third check was Rule 404(b) evidence and now contends for the first time on appeal that the third check was not Rule 404(b) evidence to begin with. We read the record differently. Responding to the objection at trial, the State discussed the similarities of all three checks, stating, "All of these checks are inherently related as they all happened in a short time frame, the same exact checks, the logo, they're all made out from the same account number." Further, the State also argued that the third check provided the jury a more complete story because the checks are "so inherently related that it's pretty tough to bring up one without the other two." Although the court admitted the third check under a permissible purpose of Rule 404(b), the State also argued at trial that the third check was evidence of activity in furtherance of the same criminal activity currently being charged to avoid exclusion under Rule 404(b). We conclude the State did not concede that the third check was 404(b) evidence at trial.

[¶12] Our case law has repeatedly held that prior bad acts evidence that is inextricably linked to the charged offense is not Rule 404(b) evidence. In Buckley , 2010 ND 248, ¶¶ 35, 38, 792 N.W.2d 518, this Court held that evidence of the defendant's frequent marijuana use "was part of the conduct leading" to the manslaughter charge involving the malnourishment death of her infant daughter, rather than independent prior bad acts evidence. Further, in State v. Paul , 2009 ND 120, ¶ 25, 769 N.W.2d 416, and Christensen , 1997 ND 57, ¶ 8, 561 N.W.2d 631, we held that evidence about prior sexual abuse and touching perpetrated by the defendants against their victims was not 404(b) evidence but instead was evidence of activity in furtherance of the charged criminal activity. Similarly, in State v. Alvarado , 2008 ND 203, ¶ 12, 757 N.W.2d 570, we held that evidence about prior acts of domestic violence perpetrated by the defendant did not raise a Rule 404(b) issue because they were not independent acts from the charged crime. Lastly, in Steinbach v. State , 2015 ND 34, ¶¶ 17-19, 859 N.W.2d 1, we held that testimony regarding the defendant's prior drinking and fighting was not prohibited under Rule 404(b), but "was admissible evidence of the pattern of the same activity between the same people" that helped provide a "clearer" and "more complete story of the crime."

[¶13] Moreover, the federal courts have held that evidence of uncharged fraudulent transactions does not fall within the context of Rule 404(b) if the uncharged transactions are inextricably intertwined with the charged crime. "When evidence of other crimes is so blended or connected, with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged, it is admissible as an integral part of the immediate...