State v. Vickerman

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2022 ND 184

State of North Dakota, Plaintiff and Appellee
v.
Christopher Alan Vickerman, Defendant and Appellant

No. 20220085

Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Douglas L. Mattson, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR
RESENTENCING.

Opinion of the Court by Jensen, Chief Justice.

Rozanna C. Larson, State’s Attorney, Minot, ND, for plaintiff and appellee.

Robert W. Martin, Minot, ND, for defendant and appellant.
 State v. Vickerman
No. 20220085

Jensen, Chief Justice.

[¶1] Christopher Vickerman appeals from a judgment entered following his
conviction by a jury of a class AA felony murder. Vickerman asserts there was
insufficient evidence to warrant a conviction, the district court abused its
discretion in admitting hearsay statements of the victim, he was denied his
right to confront a witness, the trial judge demonstrated impermissible bias
during sentencing, and the court imposed an improper sentence of a term of
years exceeding his life expectancy when the maximum sentence of life without
parole requires the calculation of his life expectancy. We affirm the conviction
and remand for resentencing.

[¶2] On May 10, 2019, the victim, Vickerman’s father, was found deceased in
his home, with four gunshot wounds. Video surveillance footage from the
home’s security system captured video of the victim falling to the ground after
opening the door. The video also showed an individual matching the description
of Vickerman and his clothing enter the home, set a gun down, pick up items
off the floor, and perform CPR on the victim. Vickerman was charged with a
class AA felony murder.

[¶3] Prior to trial the State sought an evidentiary ruling on the admissibility
of testimony from witnesses regarding Vickerman’s relationship with the
victim, including statements made by the victim before his death. The
testimony was intended to prove there were issues between Vickerman and the
victim relating to a house and the custody of Vickerman’s children. Vickerman
objected to the anticipated testimony arguing the victim’s statements were
hearsay and a violation of Vickerman’s right to confront the declarant. The
State argued the statements were an exception under N.D.R.Ev. 803(3) and
were non-testimonial in nature. The district court found the statements were
admissible under N.D.R.Ev. 803(3) and were non-testimonial.

1
[¶4] At trial, Scott Redding, Mike Nason, Stephen Burton , and Mark Hunt
provided testimony regarding the issues between Vickerman and the victim
relating to a house and the custody of Vickerman’s children. These witnesses
further testified as to the fear the victim had that Vickerman may hurt him.
Vickerman raised the same objections at trial that he raised in the hearing
prior to trial.

[¶5] During trial the State offered testimony by a ballistics expert, who
determined that he could neither include nor exclude the bullets from
Vickerman’s gun as ones being fired from the murder weapon. The medical
examiner also testified the victim received four gunshot wounds to his head
and chest and died as a result of those wounds.

[¶6] The maximum sentence for a class AA felony murder is life without
parole. Vickerman was sentenced to 100 years, 20 years suspended, along with
a four year minimum mandatory under N.D.C.C. § 12.1-32-02.1. His sentence
also included a term of probation following Vickerman’s release from custody.
As required under N.D.C.C. § 12.1-32-09.1, Vickerman must serve at least 85%
of the sentence as a violent offender.

[¶7] During sentencing, the district court considered the statutory factors
under N.D.C.C. § 12.1-32-04. The court also expressed frustration with the
Department of Corrections’ perceived shortening of sentences since the oil
boom and described Vickerman’s conduct as “despicable, less than honorable.”
Vickerman now raises the issues identified above on appeal.

[¶8] Vickerman challenges the admission into evidence of statements made
to Redding, Nason, Hunt, and Burton by the victim as hearsay. “The district
court exercises broad discretion in determining whether to admit or exclude
evidence, and its determination will be reversed on appeal only for an abuse of
discretion.” State v. Kalmio, 2014 ND 101, ¶ 10, 846 N.W.2d 752 (quoting State
v. Chisholm, 2012 ND 147, ¶ 10, 818 N.W.2d 707). “A district court abuses its

2
discretion in evidentiary rulings when it acts arbitrarily, capriciously, or
unreasonably, or it misinterprets or misapplies the law.” Kalmio, at ¶ 10
(quoting Chisholm, at ¶ 10).

[¶9] Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted. N.D.R.Ev. 801(c)-(c)(2). As a general rule, hearsay evidence is
inadmissible. N.D.R.Ev. 802. The statements at issue in this case were properly
considered hearsay.

[¶10] An exception to the general rule excluding hearsay allows for admittance
of “[a] statement of the declarant’s then-existing state of mind (such as motive,
intent, or plan) or emotional, sensory, or physical condition (such as mental
feeling, pain, or bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the validity
or terms of the declarant’s will.” N.D.R.Ev. 803(3). The exception requires that
“[1] the declarant’s statement must be contemporaneous with the mental or
emotional state sought to be proven, [2] there must be no circumstances
suggesting a motive for the declarant to misrepresent his or her state of mind,
and [3] the declarant’s state of mind must be relevant to an issue in the case.”
Schumacker v. Schumacker, 2011 ND 75, ¶ 15, 796 N.W.2d 636 (citation
omitted).

[¶11] A hearsay declarant’s state of mind may be relevant to a criminal act
when it shows a defendant’s motive to engage in that act. Kalmio, 2014 ND
101, ¶ 20 (citing 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 803.05[2][a] n. 7 (2nd ed. 2013)). This may be true even when the
declarant is a victim. Kalmio, at ¶ 20. “[E]vidence of victim’s state of mind is
admissible under Fed.R.Evid. 803(3), at least when relevant to defendant’s
motive to kill [.]” Id. (quoting Weinstein & Berger, supra (citing United States
v. Tokars, 95 F.3d 1520, 1535 (11th Cir. 1996))). This ruling was illustrated in
Kalmio when this Court affirmed a district court’s ruling that a homicide
victim’s statements to others about her fear of the defendant were admissible
under N.D.R.Ev. 803(3) to show the defendant had a motivation to kill her.
Kalmio, at ¶ 22.

3
[¶12] Hunt testified that the victim informed him the relationship between
Vickerman and the victim had “deteriorated.” Hunt testified there were times
when the victim called Hunt and asked him to come over when Vickerman was
expected at the victim’s house. When asked why, Hunt testified that “[the
victim] was concerned of what [Vickerman] might do.” After considering the
Schumacker factors, the district court found these statements admissible to
illustrate the victim’s concerns for safety against Vickerman. The victim’s
statements were contemporaneous with his mental or emotional state sought
to be proven, there were no circumstances suggesting a motive for the
declarant to misrepresent his state of mind, and the victim’s state of mind was
relevant to an issue in the case. The court’s admission of the statements was
not arbitrary, capricious, or unreasonable, and did not misinterpret or
misapply the law. We conclude the district court did not abuse its discretion in
admitting the statements.

[¶13] Redding testified about the relationship troubles between the victim and
Vickerman and that the victim was applying for custody of Vickerman’s
children. Redding also testified that the victim said he was afraid of Vickerman
and that if anything ever happened to him, it was Vickerman that did it. After
considering the Schumacker factors, the district court found that the victim’s
“statement to Redding as to his concern for his life to be contemporaneous with
[his] state of mind,” the victim did not have reason to “misrepresent his
concern,” and the victim “felt compelled to raise these apparently unresolved
issues [sic] a month or so before [the victim] was shot and killed. So this Court
deems the issues raised by [the victim] had not been resolved and were a part
of the continuing dispute between Vickerman and [the victim].” The court’s
admission of the statements was not arbitrary, capricious, or unreasonable,
and did not misinterpret or misapply the law. We conclude the district court
did not abuse its discretion in admitting the statements.

4
[¶14] Nason testified he had a professional relationship with the victim who
serviced weapons at the store where Nason worked. Nason testified the victim
asked to speak with him in April 2019 and informed Nason that “if anything
should happen to him, any harm should come to him, that they should look at
his son [Vickerman].” After considering the Schumacker factors, the district
court found the victim’s “fear [was] relevant to demonstrate why he undertook
certain actions relevant to the case” and was relevant “toward motive and
intent in regard to Vickerman.” The victim’s statements were
contemporaneous with his mental or emotional state sought to be proven, there
were no circumstances suggesting a motive for the declarant to misrepresent
his state of mind, and the victim’s state of mind was relevant to an issue in the
case. The court’s admission of the statements was not arbitrary, capricious, or
unreasonable, and did not misinterpret or misapply the law. We conclude the
district court did not abuse its discretion in admitting the statements.

[¶15] Burton testified as to the issues between the victim and Vickerman and
answered affirmatively that the victim was afraid of Vickerman. Burton
testified that the victim told him to call the victim if Vickerman was ever found
in the neighborhood. The district court found the victim’s “concern for his life
[was] relevant to demonstrate why he voiced he was afraid of being killed, and
such concerns [were] relevant to this case.” The victim’s statements were
contemporaneous with his mental or emotional state sought to be proven, there
were no circumstances suggesting a motive for the declarant to misrepresent
his state of mind, and the victim’s state of mind was relevant to an issue in the
case. The court’s admission of the statements was not arbitrary, capricious, or
unreasonable, and did not misinterpret or misapply the law. We conclude the
district court did not abuse its discretion in admitting the statements.

[¶16] Vickerman also challenges the admission of the victim’s statements to
Redding and Nason as being in violation of the Confrontation Clause of the

5
United States Constitution. When reviewing an alleged violation of a
constitutional right, including the right to confront an accuser, this Court
applies a de novo standard of review. State v. Blue, 2006 ND 134, ¶ 6, 717
N.W.2d 558. Even if this Court concludes there has been a violation, “[c]ertain
federal constitutional errors do not automatically require reversal if it is shown
they were harmless beyond a reasonable doubt.” Id. at ¶ 29 (citing State v.
Frankfurth, 2005 ND 167, ¶ 35, 704 N.W.2d 564). “In a criminal case, ‘[a]ny
error, defect, irregularity or variance which does not affect substantial rights
shall be disregarded.’” Blue, at ¶ 29 (quoting N.D.R.Crim.P. 52(a)). “Before
determining an error is harmless beyond a reasonable doubt, the court must
review the entire record and determine, in light of all of the evidence, the
probable effect of the alleged error upon the defendant’s rights.” Blue, at ¶ 29.
“A federal constitutional error may be declared harmless if the court is
convinced that the error did not contribute to the verdict.” Id.

[¶17] Even if the hearsay statements are admissible under an exception to the
general rule to exclude hearsay from evidence, they may still be inadmissible
if they violate the Confrontation Clause of the United States Constitution.
State v. Sorenson, 2009 ND 147, ¶ 16, 770 N.W.2d 701. “[T]he Sixth
Amendment prohibits the admission of testimonial hearsay against the
accused, unless the witness is unavailable to testify and the accused had a prior
opportunity to cross-examine the declarant. The Confrontation Clause does not
apply to non-testimonial hearsay.” Id. (citing Crawford v. Washington, 541 U.S.
36, 68 (2004); Davis v. Washington, 547 U.S. 813, 821 (2006)). In Crawford, the
United States Supreme Court established a three-factor test for determining if
statements are testimonial. United States v. Bordeaux, 400 F.3d 548, 556 (8th
Cir. 2005). Statements are testimonial when they are (1) a product of formal
interview, (2) obtained with government involvement, and (3) have a law
enforcement purpose. Sorenson, at ¶ 20. Additionally, statements made to
friends and family are usually considered non-testimonial. Id. at ¶ 19.

[¶18] Redding and Nason had law enforcement experience. Redding testified
that he had known the victim for over 25 years and the two had served in the
National Guard together. Redding mentioned his police career briefly when
discussing his shared interest in fixing firearms with the victim. He brought it

6
up again stating the victim had sought his advice “because of my more intimate
knowledge of the system . . . because of employment as a police officer—what I
would do in his situation.” The district court found that Redding and the victim
were life-long friends and conversed merely as friends which seems to satisfy
the requirement of an informal, non-governmental interaction that made the
statements non-testimonial under Bordeaux and Sorenson. After conducting
our de novo review, we conclude the district court properly assessed the
statements and the circumstances under which they were given. The
statements made to Redding were not testimonial and the admission of the
statements did not violate the Confrontation Clause.

[¶19] Nason was asked how many years he had worked in law enforcement
and he responded “[o]ver 30 years.” In considering whether the statements the
victim made to Nason were testimonial, the district court found “Nason was a
private citizen . . . at the time of his April 2019 visit with [the victim]” and
“Nason could not even testify as to the date the two talked that April. Certainly,
there would have been better documentation and record had a formal
statement been taken.” After conducting our de novo review, we conclude the
district court properly assessed the statements and the circumstances under
which they were given. The statements made to Nason were not testimonial
and the admission of the statements did not violate the Confrontation Clause.

[¶20] Vickerman moved for a judgment of acquittal pursuant to N.D.R.Crim.P.
29, preserving his right to challenge the sufficiency of the evidence supporting
his conviction, and argues there is insufficient evidence to support the jury’s
finding of guilty. The standard of review for a challenge to the sufficiency of
evidence supporting a verdict is well established.

[This Court] review[s] the record to determine whether there is
sufficient evidence that could allow a jury to draw a reasonable
inference in favor of the conviction. The defendant bears the
burden of showing the evidence reveals no reasonable inference of
guilt when viewed in the light most favorable to the verdict. We do
not reweigh conflicting evidence or judge the credibility of
witnesses.

7
State v. Mohamud, 2019 ND 101, ¶ 12, 925 N.W.2d 396 (citation omitted). “A
jury may find a defendant guilty even though evidence exists which, if believed,
could lead to a verdict of not guilty.” State v. Wanner, 2010 ND 121, ¶ 9, 784
N.W.2d 143 (quoting State v. Dahl, 2009 ND 204, ¶ 6, 776 N.W.2d 37).

[¶21] Vickerman argues the ballistics expert’s conclusion that he could neither
exclude nor include Vickerman’s firearm as the weapon which fired the bullets
that killed the victim must lead to a finding that no reasonable jury could
convict him and that the jury wholly disregarded this testimony. The record
includes surveillance video recovered from the home showing an individual
with characteristics consistent with Vickerman and clothes consistent with
Vickerman’s clothing. The video shows an individual entering the home after
the shooting and picking up items from the floor. The video shows the
individual is wearing mauve pants, a dark sleeved top, bracelets, and dark
shoes with white soles, consistent with exhibits showing the defendant wearing
mauve-colored pants, a dark sleeved top, bracelets, and dark shoes with white
soles. When law enforcement arrived on the scene, Vickerman was sitting on a
bench outside the victim’s front door. There was a shell casing under the bench
which was subsequently determined to have been fired from a firearm located
inside Vickerman’s cabinet. Although the bullets recovered from the victim
could neither be included nor excluded as being fired from that firearm, the
bullets were consistent with the general rifling characteristics of the firearm.
After our review of the evidence we conclude there is sufficient evidence in the
record to allow a jury to draw a reasonable inference in favor of conviction
regardless of whether Vickerman’s firearm could be conclusively excluded or
confirmed as the weapon used to kill the victim.

[¶22] Vickerman contends statements made by the district court during
sentencing demonstrate impermissible bias in violation of his right to a neutral
magistrate. Vickerman calls specific attention to the court characterizing
Vickerman’s conduct as “despicable, less than honorable” and the court’s
expressing of frustration with the Department of Corrections (presumably a
reference to early parole granted to defendants).

8
[¶23] “A judge is presumed by law to be unbiased and not prejudiced.” State v.
Jacobson, 2008 ND 73, ¶ 6, 747 N.W.2d 481. The North Dakota Code of Judicial
Conduct lists instances to be considered when evaluating impartiality and uses
an objective standard to determine whether a judge reasonably meets that
criteria. Id. at ¶¶ 7-8. “During sentencing, a judge may express his appraisal
of the defendant’s conduct and may do so in such a manner that will impress
upon the defendant the error of his ways.” State v. Dailey, 2006 ND 184, ¶ 10,
721 N.W.2d 29 (citing Simmons v. United States, 302 F.2d 71, 77 (3rd Cir.
1962)). “The judge’s effort to help the defendant understand the wrongful
nature of his conduct does not indicate bias or prejudice.” Dailey, at ¶ 10.

[¶24] The district court’s characterization of Vickerman’s conduct as
“despicable, less than honorable” and expression of frustration with the
Department of Corrections do not objectively establish the court’s impartiality
and were arguably warranted by the sentencing process. See Jacobson, 2008
ND 73, ¶ 6; Dailey, 2006 ND 184, ¶ 10. We conclude the district court did not
act with objective bias.

[¶25] Vickerman asserts a sentence for a term of years exceeding his life
expectancy with parole implicitly violates N.D.C.C. § 12.1-32-01(1). Our review
“of a criminal sentence is generally limited to determining whether the district
court acted within the statutory sentencing limits or substantially relied upon
an impermissible factor.” State v. Wilder, 2018 ND 93, ¶ 17, 909 N.W.2d 684
(citing State v. Corman, 2009 ND 85, ¶ 15, 765 N.W.2d 530). “Statutory
interpretation is a question of law, which is fully reviewable on appeal.” Wilder,
at ¶ 17. “Penal statutes are generally strictly construed against the
government.” Id.

[¶26] The maximum penalty for a class AA felony is life imprisonment without
parole. N.D.C.C. § 12.1-32-01(1). “The court must designate whether the life
imprisonment sentence imposed is with or without an opportunity for parole.”
Id. (emphasis added). “In the case of an offender who is sentenced to a term of
life imprisonment with opportunity for parole under subsection 1 of section
12.1-32-01, the term ‘sentence imposed’ means the remaining life expectancy of

9
the offender on the date of sentencing. The remaining life expectancy of the
offender must be . . . computed by reference to a recognized mortality table as
established by rule by the supreme court.” N.D.C.C. § 12.1-32-09.1(2)
(emphasis added).

[¶27] The district court imposed a sentence of 100 years with the possibility of
parole. After reviewing the record of the sentencing, we are left with
uncertainty in whether the court was attempting to impose what would
effectively be a life sentence when it stated as follows: “[M]y confidence in the
[DOC] has certainly been shaken. We all know that they view a human year,
excuse me, a [DOC] year to be much less than a human year in that—and I
don’t know to the degree that the [DOC] . . . will follow this Court’s directive,
and therefor [sic] I want it to be difficult, if they’re going to go against my
sentence.”

[¶28] We conclude N.D.C.C. § 12.1-32-09.1(2) requires a life sentence with
parole to include a calculation of Vickerman’s remaining life expectancy using
the mandated mortality table. Given the ambiguity created by the district
court’s statement we reverse the sentence and remand for resentencing
without limitation from the previously imposed sentence.

[¶29] Sufficient evidence was provided to support Vickerman’s conviction for a
class AA felony murder, the district court did not abuse its discretion in the
admission of hearsay, none of the hearsay statements violated Vickerman’s
constitutional right to confrontation, and we conclude the court was not
objectively biased. The sentence of Vickerman, on its face, appears to violate
the requirement under N.D.C.C. § 12.1-32-09.1(2) to compute Vickerman’s
remaining life expectancy. We affirm the conviction, reverse the sentence, and
remand the case to the district court for sentencing without limitation from the
previously imposed sentence.

[¶30] Jon J. Jensen, C.J.
Daniel J. Crothers

10
 Lisa Fair McEvers
Jerod E. Tufte

[¶31] The Honorable Gerald W. VandeWalle recused himself subsequent to oral
argument and did not participate in this decision.

11