FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 23, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 235
State of North Dakota, Plaintiff and Appellee
v.
Joshua James Roberts, Defendant and Appellant
No. 20210161
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable M. Jason McCarthy, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Carmell F. Mattison, Assistant State’s Attorney, Grand Forks, ND, for plaintiff
and appellee.
Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.
State v. Roberts
No. 20210161
Jensen, Chief Justice.
[¶1] Joshua Roberts appeals from a judgment finding him guilty of conspiracy
to deliver a controlled substance, fentanyl. Roberts argues there was
insufficient evidence to corroborate the testimony of an accomplice and the jury
should have received an instruction regarding the State’s burden to provide
corroboration of an accomplice’s testimony. We conclude the State provided
sufficient evidence to corroborate the testimony of the accomplice, and any
error in failing to provide a jury instruction was harmless. We affirm.
I
[¶2] John Doe overdosed on August 2, 2020 after ingesting pills containing
fentanyl. At the scene of the overdose, law enforcement found a “Swisher
Sweet” packet with a red wrapper inside that said “Loon.” The packet
contained a partial pill identified by an officer as an “M30” pill. After
conducting several interviews, law enforcement believed an apartment at 1808
Continental Drive was the location where John Doe obtained the pills. Joshua
Roberts resided at the apartment.
[¶3] Law enforcement reviewed surveillance footage taken outside the
apartment on August 2, the date of the overdose. The surveillance video
showed John Doe arrive at the apartment around 12:30 p.m. after being
dropped off by Jane Doe. Jane Doe returned later that day, John Doe and
Roberts went downstairs to Jane Doe’s vehicle, and all three went back into
Roberts’ apartment after 3:00 p.m. John Doe and Jane Doe left the apartment
at about 4:06 p.m. The overdose occurred at another location later the same
day. Roberts was positively identified by law enforcement as one of the people
in the surveillance video.
[¶4] Josia Roberts, Roberts’ sister, testified that she went to Roberts’
apartment on August 2. She stated John Doe and Jane Doe were at the
apartment, and she had not previously met John Doe or Jane Doe. She stated
Roberts “vouched” for John Doe and Jane Doe, and Roberts asked her for two
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pills to give to John Doe. She gave Roberts the pills in a red “Loon” packet, and
in exchange Jane Doe gave Josia Roberts money.
[¶5] Jane Doe testified that she brought John Doe to the Continental Drive
apartment on August 2, and she later joined John Doe and Roberts in the
apartment. She stated Roberts and his sister, Josia Roberts, were at the
apartment. She said John Doe received pills that were blue and had an “M”
and “30” inscribed on them, were wrapped in a “Swisher Sweet” wrapper, and
were the pills he overdosed on later that day. John Doe testified that he did
not remember anything from Roberts’ apartment, but assumed he got the pills
there. Roberts testified and acknowledged that John Doe was at his apartment
on August 2.
[¶6] The jury found Roberts guilty of conspiracy to deliver a controlled
substance, fentanyl. Roberts appealed, challenging the sufficiency of the
required corroboration of Josia Roberts’ accomplice testimony, and asserting it
was an error not to provide the jury with an instruction regarding
corroboration of accomplice testimony.
II
[¶7] Roberts argues there is no evidence supporting his conviction other than
the testimony of Josia Roberts, her testimony was “accomplice testimony,” and
there was insufficient evidence to corroborate the accomplice testimony.
Section 29-21-14, N.D.C.C., sets forth the requirement for corroboration of an
accomplice’s testimony. Section 29-21-14 reads as follows:
A conviction cannot be had upon the testimony of an accomplice
unless the accomplice is corroborated by such other evidence as
tends to connect the defendant with the commission of the offense,
and the corroboration is not sufficient if it merely shows the
commission of the offense, or the circumstances thereof.
[¶8] We have held “that any amount of corroboration will be sufficient to give
the case to the jury to determine the sufficiency of the corroboration” and
satisfy the requirements of N.D.C.C. § 29-21-14. State v. Lind, 322 N.W.2d 826,
2
842 (N.D. 1982) (citing State v. Thorson, 264 N.W.2d 441, 445 (N.D. 1978)). In
State v. Reddig, this Court noted the following:
[U]nder Section 29-21-14 it is not necessary to corroborate every
fact testified to by an accomplice. All that is required is that the
evidence, circumstantial or otherwise, corroborate the testimony of
an accomplice as to some material fact or facts, and tends to
connect the defendant with the commission of the crime. It is not
necessary that the corroborating evidence be sufficient, in itself, to
warrant a conviction or establish a prima facie case. Furthermore,
the State need not point to a single isolated fact which is sufficient
corroboration, as it is the combined and cumulative weight of the
evidence other than the testimony of the accomplice witness which
satisfies the statute. In cases involving the use of corroborative
evidence, it is incumbent upon the trial court to first determine, as
a matter of law, whether or not there is any evidence corroborating
the testimony of the accomplice, and only after the court has found
such corroborative evidence is it allowed to leave the question of
the sufficiency of the corroborative evidence to the jury.
....
. . . “The corroboration [of an accomplice’s testimony] need not
directly link the accused to the crime.” Rather, corroboration
merely requires that there be evidence “tending to connect the
defendant with the offense committed.” Indeed, the language of
Section 29-21-14 requires only corroborative evidence which “tends
to connect” a defendant with the commission of an offense.
2016 ND 39, ¶ 12, 876 N.W.2d 34 (quoting State v. Haugen, 448 N.W.2d
191, 194-95 (N.D. 1989)).
[¶9] The record in this case contains sufficient corroborating evidence to
satisfy N.D.C.C. § 29-21-14. Law enforcement officers testified the surveillance
video captured John Doe and Jane Doe arrive at the apartment building where
Josia Roberts, John Doe, and Jane Doe all stated the drug transaction took
place. The surveillance video captured Roberts walking into the apartment
with John Doe and Jane Doe. Josia Roberts and Jane Doe testified about the
red “Swisher Sweet” and “Loon” pill packet, which matched the pill packet
found by the officers at the scene of the overdose. Jane Doe testified about John
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Doe showing her the pills at Roberts’ apartment inscribed with the letter “M”
and number “30,” and these were the pills John Doe overdosed on later that
day. Roberts acknowledged that John Doe was at his apartment. It is not
necessary that the corroborating evidence alone be sufficient to warrant a
conviction or establish a prima facie case. The combined and cumulative weight
of the evidence presented at trial tends to connect Roberts with the crime and
was sufficient to satisfy the corroboration requirement under N.D.C.C. § 29-
21-14.
III
[¶10] Roberts argues that whether there was corroboration of the accomplice
testimony was a fact to be decided by the jury, and the jury should have been
provided with an instruction on the necessity of corroboration. Roberts did not
object to the lack of instruction or offer an instruction at trial.
[¶11] “To preserve an issue concerning jury instructions for review, a
defendant must request an instruction as required by N.D.R.Crim.P. 30(a) or
object to an instruction as required by N.D.R.Crim.P. 30(c).” State v. Mertz,
2012 ND 145, ¶ 9, 818 N.W.2d 782 (citing N.D.R.Crim.P. 30(d)(1)). This Court
has previously considered the lack of a jury instruction regarding the
requirement for corroboration where the defendant did not offer an instruction
or object to the lack of an instruction. Reddig, 2016 ND 39. In Reddig this
Court, assuming without deciding whether the lack of an instruction was an
error, determined any potential error was harmless. Id. at ¶ 14. In Reddig, we
noted:
If the trial error is one of constitutional magnitude, we must
determine whether or not the error was harmless beyond a
reasonable doubt by considering the probable effect of the error in
light of all the evidence.” Kelley, 450 N.W.2d at 732 (citing State v.
Smuda, 419 N.W.2d 166, 168 (N.D.1988)). “If, however, the error
is nonconstitutional, our task is to determine whether or not the
error had a significant impact upon the verdict, but we do not have
to find that the error was harmless beyond a reasonable doubt.”
Id. (citing State v. Thiel, 411 N.W.2d 66, 70 (N.D.1987)). The
alleged error in this case is derived from statute and is not of
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constitutional magnitude. See State v. Brunette, 28 N.D. 539, 150
N.W. 271, 276 (1914) (“[I]n the absence of a statute it is not
necessary to a conviction that the testimony of the complainant
should be corroborated by other evidence.”). See also 29A Am. Jur.
2d Evidence § 1408 (“At common law, it is well settled that the
testimony of an accomplice, although entirely without
corroboration, will support a verdict of conviction of one accused of
crime.... The common-law rule is changed in many jurisdictions by
statutes expressly declaring that the uncorroborated testimony of
an accomplice cannot sustain a conviction.”).
Reddig, at ¶ 14.
[¶12] In State v. Kelley, 450 N.W.2d 729, 730-31 (N.D. 1990), the defendant
requested a corroboration instruction. No instruction was given. Id. at 731.
This Court determined it was harmless error because the record contained
sufficient corroborating evidence and any instruction would not have had
significant impact on the verdict. Id. at 732-33. In Reddig, this Court concluded
that under the rationale of Kelley, because there was sufficient evidence
corroborating the accomplice testimony, a corroborating instruction would not
have had significant impact on the verdict and any error was harmless. Reddig,
2016 ND 39, ¶ 18. We find no material differences between this case and our
decisions in Kelley and Reddig. We conclude any error associated with the lack
of a jury instruction on the need to corroborate accomplice testimony was
harmless.
IV
[¶13] Sufficient evidence was presented to the jury to corroborate the
accomplice testimony as required by N.D.C.C. § 29-21-14. Any error created by
5
the lack of a jury instruction on the need for corroboration of an accomplice’s
testimony was harmless. We affirm the judgment.
[¶14] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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