State v. Henderson

1

2024 ND 42

State of North Dakota, Plaintiff and Appellee v. Kimberly Ann Henderson, Defendant and Appellant

No. 20230253

Supreme Court of North Dakota

March 7, 2024

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Robin A. Schmidt, Judge.

Nathan K. Madden, Assistant State's Attorney, Williston, N.D for plaintiff and appellee; submitted on brief.

Christopher K. Votava, Williston, N.D., for defendant and appellant; submitted on brief.

Tufte Justice.

REVERSED.

[¶1] Kimberly Ann Henderson appeals from a criminal judgment entered after a jury convicted her of exploitation of a vulnerable adult and attempted theft. She argues the district court abused its discretion by admitting several trial exhibits because the exhibits were not properly authenticated under N.D.R.Ev. 901 and are inadmissible hearsay lacking sufficient foundation as records of regularly conducted activity under N.D.R.Ev. 803(6). We reverse the judgment.

I

[¶2] From August to September 2022, Henderson worked for Home Helpers, an agency offering assistance to elderly people with chores, transportation, and other tasks. During that time she was assigned to Mr. and Mrs. Cooper and gained access to their financial information. The State alleged Henderson used the Coopers' financial accounts to pay her own bills and make personal purchases.

[¶3] The State charged Henderson with exploitation of an eligible adult, a Class A Felony, under N.D.C.C. § 12.1-31-07.1(2)(a), specifically alleging the value of the funds exceeds $50,000, and criminal attempt of theft of property, a Class B Felony, under N.D.C.C. § 12.1-23-05(2), for theft exceeding $10,000 but less than $50,000.

[¶4] At trial, the State presented testimony from four witnesses and submitted thirteen exhibits, including financial documents, receipts, an eviction notice, surveillance photos from multiple businesses, and a video of an interview with Henderson. Henderson objected to the admissibility of 12 exhibits, namely exhibits 1-2 and 4-13. The district court overruled the objections and admitted the exhibits. The jury convicted Henderson on both counts. Henderson appeals.

II.

[¶5] Henderson argues the district court abused its discretion by admitting exhibits 1 and 4-13. She argues the exhibits were not properly authenticated under N.D.R.Ev. 901 and are inadmissible hearsay not established as records of regularly conducted activity under N.D.R.Ev. 803(6).

[¶6] "A district court has broad discretion in evidentiary matters, and we will not overturn a district court's decision to admit or exclude evidence unless the court abused its discretion." State v. Sanchez, 2023 ND 106, ¶ 5, 991 N.W.2d 71 (citing State v. Azure, 2017 ND 195, ¶ 6, 899 N.W.2d 294). "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. Vickerman, 2022 ND 184, ¶ 8, 981 N.W.2d 881 (citation omitted).

[¶7] "A party objecting to the introduction of evidence must state the specific ground of objection, if the specific ground is not apparent from the context." State v. Thomas, 2022 ND 126, ¶ 17, 975 N.W.2d 562 (citing N.D.R.Ev. 103(a)(1)(B)). "A party must make a specific objection to evidence at the time it is offered for admission into evidence to give the opposing party an opportunity to argue the objection and attempt to cure the defective foundation, and to give the trial court an opportunity to fully understand the objection and appropriately rule on it." Id. (quoting May v. Sprynczynatyk, 2005 ND 76, ¶ 26, 695 N.W.2d 196). "An objection indicating the specific evidence rules by number supporting the grounds for the objection is sufficient to satisfy N.D.R.Ev. 103(a)(1)(B)." Id.

III

[¶8] Henderson argues exhibit 1, a packet of financial documents is inadmissible "due to lack of foundation, explanation, and that the contents of the documents were unknown." She cites N.D.R.Ev. 901, 1001, and 1002 regarding authentication.

[¶9] "Before documentary evidence is admissible, it must be authenticated." Christianson v. Henke, 2020 ND 76, ¶ 8, 941 N.W.2d 529 (citations omitted). Authentication requires evidence sufficient to support a finding that an item of evidence is what the proponent claims it is. N.D.R.Ev. 901(a); see also State v. Hirschkorn, 2020 ND 268, ¶ 9, 952 N.W.2d 225. Rule 901(b)(1) and (4), N.D.R.Ev., provides examples of authentication, including testimony of a witness with knowledge "that an item is what it is claimed to be," and "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Hirschkorn, at ¶ 9; see also State v. Thompson, 2010 ND 10, ¶¶ 21-22, 777 N.W.2d 617. "[T]he proponent of offered evidence need not rule out all possibilities inconsistent with authenticity or conclusively prove that evidence is what it purports to be; rather, the proponent must provide proof sufficient for a reasonable juror to find the evidence is what it purports to be." Thompson, at ¶ 21 (citations omitted).

[¶10] The State offered several financial documents as a single item of evidence marked exhibit 1 during a detective's testimony. He explained: "[Mr. Cooper] gave me some Gate City banking documents. There was some copies of some checks and other documents from the bank, showing what money was all missing from his account that he couldn't account for." The detective testified exhibit 1 fairly and accurately represented the documents provided by Mr. Cooper. The State moved to admit the exhibits. Henderson objected:

[DEFENSE COUNSEL]: I would object, Your Honor. We don't have foundation. There's been no explanation of exactly what they are, the contents of a large part of them. I don't know if we want to discuss this outside the presence of the jury, maybe, but I do object to this exhibit coming in, Your Honor.

THE COURT: Any response?

[THE STATE]: Your Honor, this witness met with the victim at the law enforcement center. The documents, as far as a chain-of-custody issue is concerned, they came directly from the victim, who had already done the heavy lifting, obtaining the records from his banking institution and forwarding it to law enforcement for investigation. There's no prohibition on - with regard to a foundational - the foundational argument raised by opposing counsel with regard to the transition from Mr. Cooper to law enforcement.

THE COURT: Overruled. I'm receiving Exhibit 1.

Later, outside the presence of the jury, the discussion continued:

[DEFENSE COUNSEL]: That, to my understanding, is a packet of all of the checks, all of the affidavits of forgery; they weren't all testified to by either his banker or Mr. Cooper. So part of that was the personal knowledge. It wasn't just a small document of, oh, this is what I got for his personal knowledge, it was there was a lot that hadn't been testified to.

THE COURT: I'm glad you brought that up because I think that your objection goes more to weight and credibility than it does . . . foundation, but I didn't want to say that in front of the jury.

[¶11] Henderson argued the detective lacked personal knowledge of the contents of the documents-whereas, the banker or Mr. Cooper would have had the personal knowledge for foundation. The detective testified the documents were the same financial documents he received from Mr. Cooper. He described the documents as "some copies of some checks and other documents from the bank, showing what money was all missing from his account[.]" The court found this sufficient foundation, finding Henderson's argument goes to the weight of the evidence, not its admissibility. We disagree.

[¶12] Exhibit 1 contains affidavits of forgery, signed by Mr. Cooper and submitted to his bank, but they were offered through the detective assigned to the case. These documents were not authenticated by a witness with knowledge that these documents are what they purport be. The record lacks any information authenticating the contents of the documents admitted as exhibit 1. Henderson's objection is the only information on the record-"a packet of all of the checks, all of the affidavits of forgery"-but that is not evidence. Our review of the packet labeled as exhibit 1 shows 29 pages, including affidavits of forgery declared by Mr. Cooper and photographs underlying the alleged checks created as forgeries. The testimony does not describe the "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item." The detective's testimony that "those documents fairly and accurately represent the documents that were provided to [him] by Mr. Cooper" does not cure the foundational defects. The district court misapplied N.D.R.Ev. 901 and abused its discretion by admitting exhibit 1.

[¶13] A similar exchange occurred when the State offered exhibit 4, documents from the Hair Society Institute, which the State called an "invoice":

[The detective:] Yes, I asked them if they had copies of those checks.

[The State:] Okay. Did they provide - did a representative from the Hair Society provide you with any documentation as it relates to this investigation?

A Yes. They had copies of both the checks that were passed on behalf of Ms. Henderson, and a copy of her North Dakota driver's license.

Q Okay. Would you recognize the documentation that was supplied to you by the Hair Society if you were to see it again?

A Yes, Sir.

. . . .

Q Okay. That document that I just handed to you, the front cover page indicates that it is from the Hair Society Institute.

A Yes, Sir.

Q Is that correct? Okay. And I want to direct your attention to the name underneath - there's a name underneath

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