State v. Halsey

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2022
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2022 ND 31

State of North Dakota, Plaintiff and Appellee
v.
Mitchell Van Halsey, Defendant and Appellant

No. 20210090

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Douglas A. Bahr, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

David L. Rappenecker (argued) and Mindy L. Anderson (on brief), Assistant
State’s Attorneys, Bismarck, N.D., for plaintiff and appellee.

Samuel A. Gereszek, Grand Forks, N.D., for defendant and appellant.
 State v. Halsey
No. 20210090

Tufte, Justice.

[¶1] Mitchell Halsey appeals from a criminal judgment entered after a jury
found him guilty of attempted contact by bodily fluids, preventing arrest, and
possession of controlled substances. Halsey argues the district court erred by
admitting evidence identifying the felony charge underlying the arrest
warrant. We affirm.

I

[¶2] In August of 2020, two law enforcement officers were dispatched to an
outdoor food vendor in Bismarck after receiving reports of two intoxicated
individuals passed out under a picnic table. Officer Mehrer, one of the
responding officers, was able to immediately identify Halsey as one of the
individuals because of his prior encounters with Halsey. Officer Mehrer
checked Halsey’s name with dispatch and learned there was a warrant for his
arrest. While Halsey was being placed under arrest, methamphetamine was
discovered in his pocket. Further, when Officer Mehrer placed Halsey into the
patrol car, Halsey informed him that he had recently tested positive for Covid.
Officer Mehrer began to place a facemask over Halsey’s face, but during this
process, Halsey coughed in Officer Mehrer’s direction. Officer Mehrer then
transported Halsey to the hospital to be medically cleared because Halsey was
severely intoxicated.

[¶3] After Halsey was medically cleared, he was taken back to Officer
Mehrer’s patrol car to be transported to the jail. Upon being placed back into
the car, Halsey slid out onto the ground and refused to get back up. When
Officer Mehrer told him to get up, Halsey responded, “F you. I’m not getting
up.” Officer Mehrer called for additional assistance after Halsey refused to
comply. After a second officer arrived, they were able to lift him into the patrol
car. He was ultimately charged with attempting contact by bodily fluids,
preventing arrest, and possession of methamphetamine.

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[¶4] During his testimony at the jury trial, Officer Mehrer identified the
underlying charge in the case that was the source of the warrant. After Officer
Mehrer was asked whether he confirmed that Halsey had a valid warrant,
Officer Mehrer responded, stating, “Yes. He had a valid — it was a confirmed
warrant out of Burleigh County for aggravated assault.” Defense counsel did
not object. The State then authenticated and moved to admit the warrant,
which described the charge as “Aggravated assault–Dangerous weapon.”
Defense counsel objected under N.D.R.Ev. 403 and 404(b). The court overruled
the objection. The jury ultimately found Halsey guilty of all three charges.

II

[¶5] The State first argues Halsey failed to preserve the Rule 403 and 404(b)
issues for appeal because he “failed to timely object to the first naming of the
underlying charge during Officer Mehrer’s testimony.” We have long held “that
an effective appeal of any issue must be appropriately raised in the trial court
in order for us to intelligently rule on it.” State v. Thomas, 2020 ND 30, ¶ 12,
938 N.W.2d 897. Rule 103(a), N.D.R.Ev., provides:

(a) Preserving a Claim of Error. A party may claim error in a ruling
to admit or exclude evidence only if the error affects a substantial
right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from
the context[.]

An objection must be made “at the time the alleged error occurs to allow the
district court to take appropriate action to remedy any prejudice that may have
resulted.” Westby v. Schmidt, 2010 ND 44, ¶ 12, 779 N.W.2d 681.

[¶6] While Halsey did not object immediately after Officer Mehrer mentioned
the underlying charge contained within the arrest warrant, he did object
moments later when the State offered the warrant into evidence.

Q. Were you able to confirm whether Mr. Halsey had a valid
warrant on August 5th?

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 A. Yes. He had a valid — it was a confirmed warrant out of
Burleigh County for aggravated assault.
Q. Do you see what — a couple pieces of paper in front of you?
A. Yes, I do.
Q. Specifically, if you could just look real quick at what has been
marked as State’s Exhibit No. 1.
A. Okay.
Q. Do you recognize this document?
A. Yes, I do.
Q. Without going into too much detail, what is it?
A. It is a warrant out of Burleigh County.
MS. ANDERSON: Your honor, at this time I would move to admit
State’s Exhibit No. 1.
MR. LORAAS: Objection. Relevance under 401; unduly prejudicial
under Rule 403; also, under 404(b), it’s inadmissible.

[¶7] This Court has repeatedly held that a party must object at the time the
error occurs during trial to preserve an issue for appeal. In State v. Hayek, a
party failed to object to a “nonresponsive portion of [a] witness’s answer”
during the witness’s testimony. 2004 ND 211, ¶ 10, 689 N.W.2d 422. The party
“did not notify the trial court of the error until two witnesses later.” Id. This
Court held that the defendant’s failure to object to the testimony “when it
occurred” constitutes a failure to preserve the error for review on appeal. Id.
(citing State v. Anderson, 2003 ND 30, ¶ 7, 657 N.W.2d 245). An unpreserved
error may be reviewed on appeal only for obvious error. Anderson, 2003 ND 30,
¶ 8 (citing N.D.R.Crim.P. 52(b)). Additionally, in State v. Shick, while the officer
was on the stand, each time the State offered evidence obtained from a vehicle
search, the defense attorney stated “no objection.” 2017 ND 134, ¶ 8, 895
N.W.2d 773. However, when the officer began testifying about the evidence
obtained during the search on re-direct, the defense counsel objected. Id. This
Court held that the defendant failed to preserve the issue for appeal by failing
to object to the evidence initially when the State offered it. Id.

[¶8] Although this Court has yet to consider an objection that is delayed by
mere moments, the Eighth Circuit has addressed a timeline similar to the one
here. In United States v. Adejumo, counsel raised an objection “mere moments”
after an exhibit was admitted and published to the jury. 772 F.3d 513, 523–24
(8th Cir. 2014). Because defense counsel “did not wait until the end of [the

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witness’s] testimony,” there “was still ample opportunity for the judge to
prevent further potential damage.” Id. at 524. Thus, the issue was in fact
preserved for appeal. Id.

[¶9] We conclude Halsey’s objection was timely to preserve the issue for
appeal. Halsey’s objection was made moments after the first mention of the
aggravated assault charge in the same series of questions to the same witness.
Similar to Adejumo, Halsey’s counsel raised the objection “mere moments”
after Officer Mehrer mentioned the underlying charge for the first time.
Because there was still “ample opportunity” for the court to provide a remedy,
the timeliness requirement in Rule 103(a)(1)(A) was satisfied.

III

[¶10] The State next argues that because Halsey failed to delineate the specific
grounds for his objection at trial, this Court “should refuse to address his
arguments for the first time on appeal.” A party is required to 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.” May v. Sprynczynatyk,
2005 ND 76, ¶ 26, 695 N.W.2d 196. This Court has “commented on the
requirement in N.D.R.Ev. 103(a)(1) that a party state the specific ground of
objection,” stating:

The rule does not state the precise form which objections to
evidence should take. However, at a minimum, the objection
should give the opponent the basis of what is objectionable and
bring the matter to the trial court’s attention so that the court can
rule on the same.

Id.

[¶11] Halsey’s objection at the trial was as follows:

MR. LORAAS: Objection. Relevance under 401; unduly prejudicial
under Rule 403; also, under 404(b), it’s inadmissible.
THE COURT: Under Rule 404?

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 MR. LORAAS: Yes, Your Honor.
THE COURT: Overruled. And I can explain that in further — the
basis of that later. So you may answer the question.

[¶12] We conclude the grounds for Halsey’s 403 and 404(b) objection were
apparent from the context, alleviating the need to articulate more specific
grounds for his objection. We hold that this objection indicating the specific
evidence rules by number supporting the grounds for the objection was
sufficient to satisfy the requirement in Rule 103(a)(1)(B).

IV

[¶13] We now turn to the merits of Halsey’s argument that the district court
erred in admitting the warrant and allowing testimony identifying the
underlying charge described in the warrant. This Court reviews a court’s
evidentiary ruling for an abuse of discretion. 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.

[¶14] 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.

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“Rule 404(b) only excludes evidence of other acts and crimes committed by the
defendant when they are independent of the charged crime, and do not fit into
the rule’s exceptions.” State v. Christensen, 1997 ND 57, ¶ 8, 561 N.W.2d 631.
Here, the aggravated assault charge that allegedly occurred on November 8,
2019, is independent of the crimes charged and thus falls within the scope of
Rule 404(b).

[¶15] “To decide whether evidence of other crimes or bad acts is admissible, the
district court must apply a three-step analysis:”

1) the court must look to the purpose for which the evidence
is introduced; 2) the evidence of the prior act or acts must
be substantially reliable or clear and convincing; and 3) in criminal
cases, there must be proof of the crime charged which permits the
trier of fact to establish the defendant’s guilt or innocence
independently on the evidence presented, without consideration of
the evidence of the prior acts.

State v. Shaw, 2016 ND 171, ¶ 8, 883 N.W.2d 889. Even if the prior bad acts
evidence “satisfies the N.D.R.Ev. 404(b) three-step analysis, it is not
automatically admissible.” State v. Alvarado, 2008 ND 203, ¶ 19, 757 N.W.2d
570. The court must do a balancing test under N.D.R.Ev. 403 to “balance the
probative value of the evidence against its prejudicial effect in determining
whether to admit evidence of a defendant’s” prior bad acts. Shaw, at ¶ 9.
However, “[a] district court’s error in admitting evidence under N.D.R.Ev.
404(b) is subject to review under N.D.R.Crim.P. 52.” Id. at ¶ 6. Thus, a
harmless error that “does not affect a defendant’s substantial rights [] must be
disregarded.” Id. On the other hand, an obvious error that does affect a
defendant’s substantial rights “is grounds for reversal.” Id.

[¶16] The court explained its rulings on the record for overruling Halsey’s
objection after the jury had been excused. Its findings were as follows:

Under Rule 404 it was not used to prove the character of Mr.
Halsey. It was offered for other purposes, such as, why he was
arresting him for things such as that. And so I don’t believe it was
used as character evidence in any way. It wasn’t to attack his
credibility or show criminal history, and it didn’t even identify the

6
 specific crime for which the warrant was for; so for that reason I
do not find Rule 404 a grounds for objection.

The court appears to have considered the warrant and the testimony
identifying the specific offense to be outside the scope of N.D.R.Ev. 404.
However, the court also provided analysis consistent with determining
whether the evidence was admissible under Rule 404(b). We conclude that
whether or not the evidence was also offered for another purpose, it was
“[e]vidence of a person’s character” under Rule 404(a)(1) and its prohibited and
permitted uses should be analyzed according to the three-step analysis our
cases require for such character evidence.

[¶17] The district court did not complete a full three-step analysis before
admitting the warrant identifying the underlying charge. Regarding the first
step, the court did look to the purpose for which the warrant was being used.
To prove the class C felony of preventing arrest under N.D.C.C. § 12.1-08-02(1),
the State must prove the “intent to prevent a public servant from effecting an
arrest of himself or another for a class A, B, or C felony.” Thus, the court found
that the State was not offering the aggravated assault charge contained in the
warrant “to prove the character of Mr. Halsey.” Instead, the court found it was
being used “for other purposes” to prove an element of the offense of preventing
arrest. Rule 404(b)(2) clearly states that prior bad acts evidence in a criminal
case “may be admissible for another purpose” and then goes on to list several
permissible purposes that bad acts evidence can be used to prove. The list is
non-exhaustive. The federal courts have held that prior bad acts evidence used
to establish an element of an offense is a permissible purpose under 404(b)(2).
See United States v. Bradford, 905 F.3d 497, 506 (7th Cir. 2018) (holding that
“[e]vidence that ‘tend[s] to prove the elements of the offense’ does not violate
Rule 404(b)”). Thus, the court satisfied the first step in the three-part analysis
in considering whether Halsey’s prior bad acts evidence is admissible.

[¶18] Regarding the second step, the record does not indicate the court
considered whether the warrant was “substantially reliable or clear and
convincing.” However, as the State correctly asserts in its brief, the warrant
containing the prior bad acts evidence is a certified copy of a court document
in which the court has already made a probable cause determination. Despite

7
the court’s failure to make a specific record regarding the second step in the
required analysis, we conclude that the prior bad acts evidence contained
within the warrant and mentioned during Officer Mehrer’s testimony was
“substantially reliable.” Regarding the third prong, this Court has “recognized
that the final step in the three-pronged analysis usually may be satisfied with
a cautionary instruction about the admissibility of the evidence for a limited
purpose.” State v. Aabrekke, 2011 ND 131, ¶ 10, 800 N.W.2d 284. Here, the
court failed to give a cautionary instruction to the jury about the underlying
crime’s limited use. Thus, the court failed to satisfy the final step of the three-
step analysis.

[¶19] Additionally, the court must do a balancing test under N.D.R.Ev. 403
after completing the three-part analysis to “balance the probative value of the
evidence against its prejudicial effect in determining whether to admit
evidence of a defendant’s” prior bad acts. Shaw, 2016 ND 171, ¶ 9. The court
did complete a balancing test in considering whether the probative value of the
warrant and its underlying crime was substantially outweighed by a danger of
unfair prejudice. The court found the warrant “extremely relevant” as it “is one
of the elements” in preventing arrest and it “is not unfairly prejudicial” to
Halsey.

[¶20] This Court has previously found harmless error in a court’s failure to
engage in the required three-step analysis and balancing in determining
whether the bad acts evidence is admissible. See State v. Dieterle, 2013 ND
130, ¶ 12, 833 N.W.2d 473; State v. Trout, 2008 ND 200, ¶¶ 8, 11, 757 N.W.2d
556; State v. Stewart, 2006 ND 39, ¶ 17, 710 N.W.2d 403; State v. Thompson,
552 N.W.2d 386, 390 (N.D. 1996). “Any error, defect, irregularity or variance
that does not affect substantial rights must be disregarded.” N.D.R.Crim.P
52(a). We reverse a conviction only when an error was “so prejudicial that
substantial injury occurred and absent the error a different decision would
have resulted.” Dieterle, at ¶ 12.

[¶21] Even when the district court errs by failing to make a record of the Rule
404(b) three-step analysis and Rule 403 balancing test, the error may be
harmless if there is sufficient evidence to support the conviction independent
from the prior bad acts evidence. See Dieterle, 2013 ND 130, ¶¶ 11–13. Because

8
ample evidence existed to support the jury’s verdict independent of the
evidence of the prior bad acts, the court’s failure to make a record showing it
engaged in the required three-step analysis and balancing was harmless. Id.
at ¶ 13. Similar to Dieterle, the State presented ample evidence that Halsey
intentionally coughed towards Officer Mehrer, that he prevented his arrest for
a felony by dropping to the ground and refusing to get back up, and that he
had methamphetamine in his possession. Furthermore, unlike Dieterle, in
which the court failed to make any sort of record showing it engaged in the
three-part analysis, the court here did make a record showing its analysis in
two of the steps and also did the balancing test contained in Rule 403. 2013
ND 130, ¶ 11. Thus, we conclude the court’s failure to complete the third step
in the required analysis was harmless error because a different decision would
not have resulted if the underlying charge had not been mentioned during
Officer Mehrer’s testimony or had been redacted in the warrant.

[¶22] Lastly, there is a dispute about whether the State gave “reasonable
notice” of its intent to offer 404(b) evidence. While the State did file the warrant
as a proposed exhibit with the court the day before the trial, Halsey argues
that the State never provided notice of its intent to offer prior bad act
testimony. A State’s failure to provide specific notice of its intent to use bad
acts evidence does not necessarily require reversal of a criminal conviction. In
Thompson, we held that even though the State did not give advance notice of
the 404(b) evidence mentioned at trial, it was a harmless error because the
prior bad act “was only briefly mentioned twice during the trial.” 552 N.W.2d
at 390. The prejudicial effect of the 404(b) evidence was “slight” and a “different
decision would [not] have resulted without the brief references” to the prior
bad act. Id. Further, in Stewart, we held that “[a]lthough the State failed to
satisfy the Rule 404(b) notice requirement,” the error was harmless because
there was “ample evidence” to support the conviction independent of the prior
bad acts evidence. 2006 ND 39, ¶ 17. Similarly to Thompson, Officer Mehrer
only briefly mentioned the underlying charge contained within the arrest
warrant once. Additionally, Halsey did not make a request to the court at trial
to redact the underlying charge from the warrant. Thus, the error was
harmless because a different decision would not have resulted without the brief

9
reference to the underlying charge in Officer Mehrer’s testimony or had the
aggravated assault offense been redacted from the warrant.

[¶23] Old Chief v. United States, 519 U.S. 172 (1997) illustrates the limits of
our decision here. In Old Chief, the Court analyzed whether the district court
abused its discretion by admitting the defendant’s prior criminal judgment
containing the name and nature of his prior felony offense for the sole purpose
of proving the defendant’s felon status, an element of a felon-in-possession of a
firearm offense. Concerned about the prejudicial effect from a jury learning the
nature of an earlier felony crime committed by the defendant, the Court
created an exception to the “standard rule that the prosecution is entitled to
prove its case by evidence of its own choice, or, more exactly, that a criminal
defendant may not stipulate or admit his way out of the full evidentiary force
of the case as the Government chooses to present it.” Id. at 186–87. The Court
held that when a defendant’s felon status is an element of the offense and he
offers to stipulate to that fact, any probative value his prior conviction would
serve is lost, leaving only a substantial risk of unfair prejudice. Id. at 191–92.
Because the name and nature of Old Chief ’s prior conviction was not necessary
to prove felon status, the details of his prior felony conviction were irrelevant
and unnecessary for the jury to hear. Id. Therefore, it was an abuse of
discretion for the court to refuse the defendant’s stipulation that would have
avoided the prosecution admitting the prior judgment that named the type of
felony and the nature of the crime. Id.

[¶24] The State was required to prove only that Halsey was preventing arrest
for a class A, B, or C felony. Although Old Chief dealt with a felon-in-possession
of a firearm charge, the same concerns are applicable here. The fact that
Halsey was resisting arrest on a warrant relating to a felony aggravated
assault was not necessary to prove the felony element of the charged offense.
This specific felony, in the context of a resisting arrest charge, is inherently
prejudicial. However, Halsey did not offer to stipulate to this fact to prevent
the State from admitting the warrant containing the underlying felony charge.
We are aware of no cases in which the Supreme Court has determined whether
its concerns about the jury hearing the name and nature of a prior felony
conviction in proving a defendant’s felon status is applicable in a context where

10
a stipulation has not been offered. Therefore, we conclude that without a
stipulation, the court did not abuse its discretion in allowing the name and
nature of Halsey’s felony charge to be admitted into evidence to prove an
element of the offense of preventing arrest.

V

[¶25] The criminal judgment is affirmed.

[¶26] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte

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