State v. Aabrekke

SANDSTROM, Justice,

dissenting.

[¶ 20] Because the District Court did not abuse its discretion in its evidentiary rulings, I would affirm.

[¶ 21] Testimony of prior bad acts is not admissible to prove the defendant’s propensity to commit the crime being tried. Evidence of prior bad acts is admissible for other purposes. N.D.R.Ev. 404.

[¶ 22] Before trial, Aabrekke moved to prohibit all testimony about prior sexual misconduct by himself or family members with the complainant or other family members. The district court denied the blanket ban and ruled that proffered evidence would be evaluated for admission during trial, including consideration of the purpose for which it would be offered.

[¶ 23] During trial the prosecution elicited testimony from the child about prior sexual abuse by Aabrekke. The child also testified that she had told her mother of the prior abuse and that “nothing happened” in response.

[¶24] During cross-examination of the child, the defense elicited testimony that the child’s mother had been victimized sexually by Aabrekke.

[¶ 25] During examination of the mother, the prosecution elicited testimony about how she had been sexually victimized by her uncle and how when she had reported it, she had been ostracized by her family. She explained that that history led her, in seeking to protect the child, not to report the child’s victimization to other family members but rather to protect the child in other ways.

[¶ 26] As the district court correctly ruled, the child’s testimony about prior victimization by Aabrekke was admissible to show plan and the like. The defense claimed the child was lying. In that context, the child could as well have been lying about prior abuse as about the charged event.

[¶ 27] The defense cannot complain about testimony it itself elicited from the child about Aabrekke’s victimization of her mother. See 3 Wigmore on Evidence § 786 (1940) (“a party waives objection to a responsive answer, by the very asking of the question”).

[¶ 28] The testimony about the mother’s victimization by her uncle was offered to prove how and why the mother was seeking to protect the child by avoiding a confrontation and employing other means. The mother’s testimony about the uncle was not offered to prove conduct of Aab-rekke in conformity with it.

*295[¶ 29] Requiring N.D.R.Ev. 404 anytime bad acts by others are mentioned in testimony leads to absurdity:

Q: How do you remember that it happened on September 11, 2001?
A: Terrorists flew planes into the World Trade Center that day.

Even though this would be testimony about prior bad acts, it rationally triggers no need for allocution about balancing and no need for a cautionary instruction.

[¶ 30] Rule 30, N.D.R.Crim.P., places the burden on a party to request or object to an instruction. The rule limits error:

(d) Preserving Objections; Plain Error.
(1) A party may assign as error:
(A) an error in an instruction actually given if that party made a proper objection under Rule 30(c), or
(B) a failure to give an instruction if that party made a proper request under Rule 30(a).
(2) A court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 30(d)(1)(A) or (B).

As the Court said in State v. Allery, 322 N.W.2d 228, 232 n. 3 (N.D.1982), “attorneys have the professional responsibility to request or object to specific instructions of points of law resulting from testimony or on developments during trial, Rule 30, NDRCrimP. This primary responsibility cannot be shifted to the judge but should be shared by both the prosecution and the defense.... ”

[¶ 31] Even though no cautionary instruction was requested, the majority seeks to impose a burden on the judge to give an unrequested instruction. It cites to State v. Paul, 2009 ND 120, 769 N.W.2d 416; State v. Micko, 393 N.W.2d 741 (N.D.1986); and State v. Allery, 322 N.W.2d 228 (N.D.1982). In Paul, at ¶ 27, the Court said there was no error, and limiting instruction was requested and given. In Micho, at 745^16, the Court said the evidence should not have been admitted, and no cautionary instruction was requested or given, but the Court concluded the error was harmless. In Allery, at 233, the Court said prior-inconsistent-statements testimony presented by the prosecution that should not have come in without a cautionary instruction resulted in reversal because “[t]his testimony in all probability was the straw that broke the camel’s back.”

[¶ 32] The jury was instructed to bring back a guilty verdict only if it found beyond a reasonable doubt that Aabrekke committed the offense in the period specified. A jury is presumed to follow the court’s instructions. State v. Skorick, 2002 ND 190, ¶ 17, 653 N.W.2d 698.

[¶ 33] As noted above, the defense cannot complain of the evidence it elicited. None of the testimony elicited by the prosecution fits the definition of the straw that broke the camel’s back. With the defense that the child was lying, it would seem as likely that the child was lying about prior events. The mother’s testimony about being victimized by her uncle related only to her motivation.

[¶ 34] The district court properly admitted evidence and committed no reversible error in not giving an instruction no one requested. I would affirm.

[¶ 35] DALE V. SANDSTROM