State v. Hirschkorn

952 N.W.2d 225

STATE of North Dakota, Plaintiff and Appellee

v.John Immanuel HIRSCHKORN, Defendant and Appellant

No. 20190404

Supreme Court of North Dakota.

FILED DECEMBER 17, 2020

Ladd R. Erickson, State's Attorney, Washburn, N.D., for plaintiff and appellee; submitted on brief.

Jennifer M. Gooss, Beulah, N.D., for defendant and appellant.

Tufte, Justice.

[¶1] John Hirschkorn appeals from a criminal judgment entered after a jury found him guilty of aggravated assault and driving under the influence of alcohol. We conclude that the district court did not abuse its discretion in admitting and excluding certain evidence at trial and that sufficient evidence supports the guilty verdicts. We affirm.

I

[¶2] The charges in this case arise out of an altercation in a McLean County bar that was captured on video. On October 10, 2018, Hirschkorn was involved in a bar fight with another individual, resulting in Hirschkorn striking that individual in the face with a beer bottle and causing a serious cut to the individual's face. Hirschkorn also sustained several injuries, including a blow to his head. After the fight concluded, Hirschkorn left the bar and drove away from the scene. Law enforcement officers arrived at the bar, and the individual was taken to the hospital. Officers subsequently located Hirschkorn driving his vehicle. He was stopped and ultimately arrested for driving under the influence. Because Hirschkorn was taken to the hospital to be medically cleared before testing, it was more than two hours after he had last driven that an Intoxilyzer test established his blood alcohol concentration to be 0.139 percent, over the legal limit.

[¶3] The State charged Hirschkorn with aggravated assault and driving while under the influence of alcohol. In June 2019, the district court held a two-day jury trial. Before jury selection, Hirschkorn made a motion in limine requesting the court to exclude a video from the bar showing at least a portion of the fight. The court subsequently received the video into evidence at trial over his objection. The court also allowed limited testimony at trial from Dr. Rodney Swenson, a neuropsychologist called as an expert witness by Hirschkorn to discuss symptoms of traumatic brain injury, to show Hirschkorn had sustained a brain injury caused by the other individual in the altercation, and to support the reasonableness of his claim of self-defense.

[¶4] After the State rested, and at the close of all evidence, Hirschkorn moved for a judgment of acquittal on both charges. The court denied his motion, finding sufficient evidence existed for the case to go to the jury. The jury found him guilty on both counts. The court held a sentencing hearing in November 2019, and a criminal judgment was entered.

II

[¶5] Hirschkorn argues the district court erred in admitting and excluding certain evidence during trial. He specifically claims the court should have excluded the exhibit including bar videos and the court should not have limited the neuropsychologist's expert testimony.

[¶6] We review the district court's evidentiary rulings for an abuse of discretion. State v. Poulor , 2019 ND 215, ¶ 14, 932 N.W.2d 534. A court's decision to exclude evidence on the basis that it lacks adequate foundation lies within its sound discretion and will not be reversed on appeal absent an abuse of discretion that affected substantial rights. See, e.g. , Swiontek v. Ryder Truck Rental, Inc. , 432 N.W.2d 893, 896 (N.D. 1988). A court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law. Poulor , at ¶ 14.

[¶7] If the district court erred in admitting evidence, this Court must then decide whether the evidence was so prejudicial that "a defendant's substantial rights were affected and a different decision would have resulted without the error." City of Fargo v. Erickson , 1999 ND 145, ¶ 13, 598 N.W.2d 787. Under N.D.R.Crim.P. 52(a), an erroneous evidentiary ruling will be disregarded as harmless error when it does not affect the defendant's substantial rights. Erickson , at ¶ 13. This Court further said:

The note to N.D.R.Crim.P. 52 explains: "To determine whether error affecting substantial rights of the defendant has been committed, the entire record must be considered and the probable effect of the error determined in the light of all the evidence." See also 28 James W. Moore et al., Moore's Federal Practice Federal Rules of Criminal Procedure § 652.03[1] (2d ed. 1999) (An error should not be considered in isolation when deciding whether it has affected a defendant's substantial rights, but should be considered in the context of the entire record.); 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 103.41[5][a] (2d ed. 1999) (Appellate courts frequently conclude an error is prejudicial if the "erroneously admitted evidence is the only or primary evidence in support of or in opposition to a claim or defense").

Erickson , at ¶ 13.

A

[¶8] Hirschkorn argues the district court abused its discretion by admitting the State's Exhibit 3, including bar videos of the incident, which should have been excluded. He contends the evidence lacked proper authentication and foundation and was unfairly prejudicial.

[¶9] To authenticate evidence under N.D.R.Ev. 901(a), the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. 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." 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] For example, "a properly authenticated video tape recording of the scene of the crime constitutes competent evidence and is admissible over the defendant's objections that the tape is inflammatory, prejudicial, or cumulative." 29A Am. Jur. 2d Evidence § 976 (footnotes omitted).

Videotapes are admissible as evidence only when a proper foundation has been established. Motion picture films and videotapes may be authenticated by testimony that the film or tape accurately depicts the events shown in it. The party who offers a videotape in evidence must show that it is an accurate, faithful representation of the place, person, or subject it purports to portray.

This foundation must be laid by someone having personal knowledge of the filmed subject that the film is an accurate portrayal of what it purports to show. Thus, the testimony of a person who was present at the time a film was made that it accurately depicts what it purports to show is a legally sufficient foundation for its admission in evidence. While testimony from a videographer that he took the video, that it correctly reflects what he saw, and that it has not been altered or edited is normally sufficient to authenticate a videotape, there is no requirement that the videotape be authenticated by a photographer so long as the person authenticating the videotape is familiar with the scene depicted. Whether a videotape is a fair and accurate representation of the scene sought to be depicted addresses itself to the discretion of the trial judge which will not be controlled unless abused.

Id. § 977 (footnotes omitted).

[¶11] Hirschkorn contends the second video included within State's Exhibit 3 should have been excluded because of lack of authentication and foundation. He asserts he objected to the admission because the bar owner did not provide all of the videos to law enforcement. He asserts the bar owner testified that he provided video of the incident near the bathroom but that his bar manager had provided the video with the depiction of the beer bottle. Because the bar owner did not have "independent knowledge" of the video his manager provided to the officer, Hirschkorn argues there was not proper authentication and foundation.

[¶12] Hirschkorn further argues the video should have been excluded because it was unfairly prejudicial under N.D.R.Ev. 403. He asserts there are thirty-four seconds missing from the videos according to the time stamps. He contends the State's failure to preserve potentially useful evidence can be a violation of due process if done in bad faith. See State v. Steffes , 500 N.W.2d 608, 612 (N.D. 1993) (summarizing three categories of cases in which courts "have attempted to analyze an accused's right to due process when prosecutors fail[ed] to provide evidence to the defense which [was] within, or potentially within, their purview"). He asserts it is unclear here whether the State collected the full video and then intentionally destroyed or suppressed the missing thirty-four seconds. He argues that the bar video evidence was cumulative because there were multiple witnesses who testified he hit the victim in the face with a bottle and caused a cut and that admitting the video resulted in his being denied his substantial right to due process.

[¶13] The State responds, however, that the bar owner made copies of his bar video for law enforcement and specifically identified those videos at trial and that the owner attested the videos were fair and accurate depictions of what had occurred in the bar on October 10, 2018, because the videos had not been changed, altered, or manipulated. The State maintains the court considered the alleged "gap" in the videos but admitted them anyway. The State asserts it laid proper foundation and authenticated the bar videos and it was for the jury to decide any...