State v. Pederson

1

2024 ND 79

State of North Dakota, Plaintiff and Appellee v. Jason Robert Pederson a/k/a Katheryn Pederson, Defendant and Appellant

No. 20230318

Supreme Court of North Dakota

May 2, 2024

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Constance L. Cleveland, Judge.

Jason Van Horn, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant.

Bahr Justice.

[¶1] Jason (a.k.a. Katheryn) Pederson appeals from a criminal judgment entered following a jury verdict finding her guilty of one count of terrorizing. We conclude Pederson did not establish a Brady violation. We further conclude Pederson did not preserve the issue of insufficient evidence because she failed to move for acquittal under N.D.R.Crim.P 29, and did not argue obvious error. We affirm.

I

[¶2] Following the termination of her employment, Pederson filed an employment discrimination lawsuit in federal court against her former employer. On December 29, 2022, Pederson sent an email to her former employer, writing, "Consistent with the most recent order/motion I intend to retrieve damages. If the Defending party wishes to pay $107,000 within 7 days else I will retrieve damages through the taking of physical assets." On January 6, 2023, Pederson sent a second email, which stated, "Consistent with the previous email and aforementioned court filings I'll be in the Defendant's location some time next week with my tools. Please inform the Defendant's employees to stay out of the way. I would like to avoid any unnecessary deaths if at all possible."

[¶3] After receiving these emails, Pederson's former employer contacted law enforcement. Officer Tanner Anderson spoke with Pederson by telephone on January 8, 2023 to inform her she was trespassed from her former employer's property meaning she could not go on her former employer's property. Officer Anderson recorded the conversation on his bodycam.

[¶4] Officers arrested Pederson on January 10, 2023. The State charged Pederson with one count of terrorizing. The charge was based on her emails to her former employer. Pederson submitted a N.D.R.Crim.P. 16 disclosure request to the State and filed a motion to compel discovery. The State did not turn over to Pederson the bodycam recording of Officer Anderson's January 8, 2023 telephone conversation with her.

[¶5] The district court held a two-day jury trial. Pederson represented herself. At the pretrial conference, Pederson argued the State violated Brady because it did not provide her the recording of her conversation with Officer Anderson. The court stated they would address the issue when Officer Anderson takes the stand.

[¶6] After a recess, the State informed the district court that there would have been a bodycam of the conversation between Officer Anderson and Pederson. The State argued any statements on the recording are not relevant because they relate to the trespass, not the terrorizing charge. The State explained it did not provide the recording to Pederson because the recording was filed in the civil trespass file, not the criminal case. Pederson responded, "the State has acknowledged, there is a recording and they were aware of it. So I don't think [Officer Anderson] should be able to testify if there is a recording and the State failed to turn it over in time." The court found the State's failure to disclose the recording was not intentional, and that because the recording exists, although in a different file, the State must provide it before Officer Anderson is called as a witness. The court also said it would provide Pederson time to review the recording and decide how to use it before Officer Anderson testifies.

[¶7] Following a recess during voir dire, the State informed the district court it did not know if the recording still exists. After the court stated it is not sure what the appropriate remedy is, or even what remedy Pederson is requesting, Pederson responded, "I would say that I would want Anderson to testify with regard to his failure to provide the recording." The court responded that, depending on how things progress, later motions can be made regarding the issue.

[¶8] The State updated the district court and Pederson regarding the recording after the noon recess. The State explained that because the bodycam video was logged in under the trespass file, it was "automatically deleted after 180 days. So the video itself is no longer in existence, and that's the update that I have for the court and for Ms. Pederson." The court found the State's lack of disclosure was not intentional, and held preventing Officer Anderson from testifying is not warranted based on the nature of the recording and the State's disclosure of a police report and email regarding the conversation between Officer Anderson and Pederson. It continued, "We are acknowledging that a recording did exist, and certainly determining what happened to that and what would be available to Ms. Pederson on cross-examination should the State choose to call Officer Tanner Anderson."

[¶9] During the State's direct examination of Officer Anderson, the State questioned Officer Anderson about informing Pederson of being trespassed, about him recording the conversation on his bodycam, and about what happened to the recording. Pederson cross-examined Officer Anderson about the recording being deleted, among other things.

[¶10] On the second day of trial, the State informed the district court and Pederson that it located two bodycam recordings relating to the case. Neither recording was of the conversation between Officer Anderson and Pederson. The court held an in camera review of the recordings with the State and Pederson present. After the in camera review of the two videos, the court noted the recording of the conversation between Officer Anderson and Pederson is still missing. After stating the recording of the communication between Officer Anderson and her is still missing, Pederson said, "I don't know what the remedy for that would be." Pederson did not make any motion or request any relief due to the missing recording. The trial continued. At the conclusion of trial, the jury found Pederson guilty of terrorizing.

II

[¶11] Pederson argues the State's failure to preserve and disclose the recording of her conversation with Officer Anderson is a Brady violation.

[¶12] Under Brady v. Maryland, 373 U.S. 83, 87 (1963) "suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment irrespective of the good faith or bad faith of the prosecution." State v. Kolstad, 2020 ND 97, ¶ 19, 942 N.W.2d 865. A Brady violation occurs when:

(1) the government possessed evidence favorable to the defendant;

(2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.

State v. Schweitzer, 2021 ND 109, ¶ 3, 961 N.W.2d 310 (quoting Kolstad, at ¶ 19). "The undisclosed material must be plainly exculpatory; Brady does not apply to evidence that might have been exculpatory." State v. Horn, 2014 ND 230, ¶ 21, 857 N.W.2d 77. "There is no Brady violation if the defendant fails to demonstrate the evidence was favorable to him." Id.

[¶13] The State admits it had, but never turned over to Pederson the recording of her conversation with Officer Anderson. The State explains the recording was saved under a different file number, not retrieved when requested by Pederson, and deleted after 180 days. Although the State possessed the recording and did not disclose it to Pederson, we do not...