State v. Kalmio

CROTHERS, Justice.

[¶ 1] Omar Mohamed Kalmio appeals after a jury found him guilty of four counts of class AA felony murder after a jury trial. Kalmio argues the judgments should be reversed because the district *756court abused its discretion by allowing hearsay testimony and testimony regarding his prior bad acts, denying his request for an alibi jury instruction and denying his motion for mistrial on the grounds of prosecutorial misconduct. Kalmio also argues the evidence is insufficient to sustain the guilty verdict. We affirm.

I

[¶ 2] Kalmio was charged with murdering Sabrina Zephier, Jolene Zephier, Dylan Zephier and Jeremy Longie on January 28, 2011. Sabrina Zephier’s roommate found her body in their Minot apartment on January 28, 2011. She was shot in the head at close range. Sabrina Zephier and Kalmio’s five-month-old daughter was found unharmed at the scene of Sabrina’s murder. Approximately one hour later, Sabrina Zephier’s mother, Jolene Zephier; brother, Dillon Zephier; and Jolene Zephier’s boyfriend, Jeremy Longie, were found dead in their Minot home. Jolene Zephier, Dillon Zephier and Longie were killed by gunshot wounds to the head. A dog also was shot at the second crime scene. The same firearm killed all four people and was never located.

[¶ 8] An arrest warrant was issued for Kalmio on August 3, 2011. Kalmio was charged with murdering Sabrina Zephier. Kalmio’s trial was scheduled for June 4, 2012. On May 18, 2012, the State moved to amend information and calendar a new preliminary hearing to include charges for the murders of Jolene Zephier, Dylan Ze-phier and Jeremy Longie.

[¶ 4] On December 4 and 5, 2012, a hearing was held on the State’s motion in limine to allow hearsay testimony of various witnesses and to allow testimony concerning Kalmio’s prior bad acts. On December 20, 2012, the district court issued an order on the State’s notice of intent to introduce prior bad acts and motion in limine. The December 20 order discussed each witness’s testimony and made preliminary rulings on admissibility, subject to change depending on the presentation at trial. On January 29, 2013, the district court issued a corrected order on the State’s notice of intent to introduce prior bad acts and motion in limine. Leading up to the second order, the State offered testimony of Sabrina Zephier’s roommate, Elizabeth Lambert, and the district court heard arguments from both sides about the admissibility of her testimony. The district court preliminarily ruled Lambert could testify, subject to the possibility of a limiting instruction based on her actual testimony.

[¶ 5] A nine-day trial occurred between January 23 and February 4, 2013. Testimony established Kalmio worked in the Williston area and was staying at an oil rig site when the murders occurred. The State presented testimony from an individual claiming to have seen Kalmio and his brother leave the rig site in one of the company’s white trucks during the time frame of the murders. The State presented testimony that a white pickup was seen near Sabrina Zephier’s apartment the night of the murders. Testimony also established Kalmio and Sabrina Zephier had a tumultuous relationship and disagreed over the care and custody of their minor child. Evidence demonstrated that Jolene Zephier claimed Kalmio and Sabrina Ze-phier’s child on her income tax return to obtain a refund. Evidence also established the same murder weapon was used in all four murders and Kalmio had inquired about where he could obtain a gun.

[¶ 6] Kalmio asserts the testimony and evidence are circumstantial and nothing directly links him to the murders. Kalmio argues none of the witnesses directly witnessed any violence between Sabrina Ze-phier and himself. He also asserts that *757none of the white trucks he had access to were positively identified in surveillance footage of the main route between Willi-ston and Minot. Further, he argues that although a weapon linked the murders, no murder weapon was found and no evidence established he possessed or purchased a gun or ammunition.

[¶ 7] Kalmio did not submit a notice of alibi as required by Rule 12.1, N.D.R.Crim.P., yet he requested an alibi jury instruction at the conclusion of testimony. The district court denied Kalmio’s requested alibi instruction. The State used a PowerPoint in its closing argument. Kalmio objected when the PowerPoint displayed slides with images of a gun and red circles, which he argued resembled blood. Kalmio moved for a mistrial, which the district court denied. The district court instead directed images of the gun and red circles be removed and instructed the jury to disregard the removed images. The record on appeal did not include the PowerPoint presentation, but included verbal descriptions of the excluded images.

[¶8] The jury found Kalmio guilty of four counts of murder. The district court sentenced Kalmio to four consecutive life sentences without the possibility for parole. Kalmio appeals.

II

[¶ 9] Kalmio argues the district court abused its discretion by allowing hearsay testimony and testimony regarding Kal-mio’s prior bad acts.

[¶ 10] “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. Chisholm, 2012 ND 147, ¶ 10, 818 N.W.2d 707. “A district court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably, or it misinterprets or misapplies the law.” Id.

[¶ 11] The State filed a notice of intent to introduce prior bad acts pursuant to ND.R.Ev. 404(b) and motion in limine on September 14, 2012. A two-day hearing on the motion was held, and the court heard testimony from the State’s witnesses. The district court issued an order, making admissibility determinations for each witness’s testimony. The district court later issued an order addressing the admissibility of Elizabeth Lambert’s testimony because she was not available for the first hearing. The admissibility of each witness’s testimony was determined under either a hearsay analysis or a prior bad acts analysis. During the motion in limine hearing, Kalmio made a standing objection to the hearsay presented by the witnesses, which the district court granted. At trial, Kalmio again asserted this standing objection to hearsay offered by the motion in limine witnesses, which the court granted him. Although Kalmio was granted the standing objection, he reasserted the standing objection on several occasions, after which the district court made a ruling on the specific piece of evidence Kalmio objected to.

[¶ 12] “One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.” State v. Cain, 2011 ND 213, ¶ 29, 806 N.W.2d 597 (quoting State v. Anderson, 2003 ND 30, ¶ 6, 657 N.W.2d 245). The standing objection was granted in the motion in limine hearing, and Kal-mio again asserted his standing hearsay objection for the motion in limine witnesses in the district court. North Dakota consistently has recognized the validity of standing objections granted in the district court. See State v. Aabrekke, 2011 ND *758181, ¶ 3, 800 N.W.2d 284; O’Connell v. Hjelle, 143 N.W.2d 251, 254 (N.D.1966). Further, several federal court of appeals decisions recognize the use of standing objections to preserve issues for appeal. Muhammad v. Sec’y, Florida Dep’t of Corn., 733 F.3d 1065, 1072 (11th Cir.2013) (“Florida Law consistently recognizes that a standing objection preserves an issue for appeal”) (quoting the district court); Reed v. Thalacker, 198 F.3d 1058, 1063 (8th Cir.1999) (recognizing the possibility that defense counsel’s continuous objections to similar hearsay testimony may have constituted a standing objection, in which case the issue would have been preserved for appeal); United States v. Ruiz, 987 F.2d 243, 246 (5th Cir.1993) (rejecting the argument Ruiz failed to identify specific statements that were erroneously admitted because the issues were preserved by Ruiz making a standing objection to all hearsay statements made by his alleged co-conspirators). However, this Court has limited the use of standing objections when the objection was too indefinite. Hultberg v. Hjelle, 286 N.W.2d 448, 458 (N.D.1979). Kalmio specifically objected to the hearsay testimony offered by the motion in limine witnesses, a sufficiently definite objection. Kalmio preserved the hearsay issues for appeal, allowing us to reach the merits and review the admissibility of the evidence offered at trial, even when Kalmio did not make an explicit objection to the testimony offered at trial.

[¶ 13] Although Kalmio argued in the district court that the evidence was inadmissible hearsay and prior bad act evidence, he limits his argument on appeal to hearsay grounds. See Vann v. Vann, 2009 ND 118, ¶ 41, 767 N.W.2d 855 (“[A] party waives an issue by not providing supporting argument or citations to relevant authorities.”). We therefore examine whether the district court abused its discretion in allowing hearsay testimony and in performing its relevancy analysis.

[¶ 14] “ ‘Hearsay’ is a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.D.R.Ev. 801(c). An exception to the hearsay rule allows statements for then existing state of mind:

“A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declar-ant’s will.”

N.D.R.Ev. 803(3). “For a statement to be admissible under the state of mind or emotion exception to the hearsay rule, the declarant’s statement must be contemporaneous with the mental or emotional state sought to be proven, there must be no circumstances suggesting a motive for the declarant to misrepresent his or her state of mind, and the declarant’s state of mind must be relevant to an issue in the case.” Schumacher v. Schumacher, 2011 ND 75, ¶ 15, 796 N.W.2d 636 (allowing statements from children indicating a state of mind or emotional condition resulting from domestic violence in the home to show state of mind of child, but not to prove facts of domestic violence) (citing 5 Jack B. Wein-stein & Margaret A. Berger, Weinstein’s Federal Evidence § 803.05[2] (2nd ed.2011)). “Under this exception, statements may not be offered to prove the truth of the underlying facts, but only to show the declarant’s state of mind or emotional condition.” Schumacher, at ¶ 15.

[¶ 15] The sixth amendment provides for different treatment of testimonial and nontestimonial hearsay:

*759“The Confrontation Clause of the U.S. Const. amend. VI, states that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ’ In Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held the 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. See also Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (only testimonial statements cause the declar-ant to be a ‘witness’ within the meaning of the Sixth Amendment).”

State v. Sorenson, 2009 ND 147, ¶ 16, 770 N.W.2d 701. “Although the Court did not define what a testimonial statement is, it said, ‘An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.’ ” Id. at ¶ 17 (quoting Crawford, at 51, 124 S.Ct. 1354).

[¶ 16] Each witness whose testimony was offered by the State during the motion in limine hearings and who testified at trial is addressed below.

Kari Salmon

[¶ 17] Kari Salmon, Kalmio’s and Jolene Zephier’s probation officer, met with Jolene Zephier and Sabrina Zephier on December 21, 2010. Salmon referred Sabrina Zephier to the Domestic Violence Crisis Center. The district court determined Sabrina Zephier’s statements to Salmon were testimonial and inadmissible at trial, but allowed Salmon to testify about Sabrina Zephier’s overall physical condition, an injury she observed to Sabrina Zephier’s eye and her referral of Sabrina Zephier to the Domestic Violence Crisis Center. The district court did not abuse its discretion in admitting this testimony about the witness’s observations of Sabrina Zephier’s condition.

Ashley Counts

[¶ 18] Ashley Counts worked at the Domestic Violence Crisis Center in Minot and met with Sabrina Zephier on December 22, 2010. The district court determined that because the Domestic Violence Crisis Center is not part of law enforcement, statements made to Counts by Sabrina Zephier were nontestimonial hearsay. The district court applied the Schumacher formulation and found, “Sabrina’s statements were contemporaneous with her emotional state of fear, there [were] no circumstances suggesting a motive for Sab[r]ina to misrepresent her fear, and Sabrina’s fear [was] relevant to demonstrate why she took certain actions relevant to the case.”

[¶ 19] Kalmio argues that the district court erred following Schumacher in this criminal case and that it instead should have applied the rule of law in Bernhardt v. State, 684 N.W.2d 465, 474 (Minn.2004) (citing State v. Blanchard, 315 N.W.2d 427, 432-33 (Minn.1982)). We decline to adopt Minnesota’s Bernhardt formulation for determining when a victim’s fear of a perpetrator is admissible; however, we agree our formulation merits clarification.

[¶ 20] In Schumacher, we cited Wein-stein’s Federal Evidence for discussion of admissibility under the state of mind exception. Schumacher, 2011 ND 75, ¶ 15, 796 N.W.2d 636 (citing 5 Jack B. Wein-stein & Margaret A. Berger, Weinstein’s Federal Evidence § 803.05[2] (2nd ed.2011)). In discussing the requirement that “[t]he declarant’s state of mind must be relevant to an issue in the case,” Wein-*760stein’s lists examples where a hearsay de-clarant’s state of mind may be relevant, including to show a defendant’s motive. 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 803.05[2][a] n. 7 (2nd ed.2013) (citing see United States v. Tokars, 95 F.3d 1520, 1535 (11th Cir.1996) (“[Ejvidence of victim’s state of mind is admissible under Fed.R.Evid. 803(3), at least when relevant to defendant’s motive to kill[.]”)). In To-kars, the homicide victim intended to leave her husband and take his money, apparently prompting him to have her killed and making her state of mind relevant to his motive. Id. at 1535. Like in Tokars, here several trial witnesses indicated Sabrina Zephier and Jolene Zephier feared Kalmio because he beat Sabrina Zephier and made threats against their lives. The number of witnesses reporting similar information indicates both Sabrina Zephier and Jolene Zephier openly expressed these fears. Kalmio logically would know of their fears because he was witnessed mistreating Sabrina Zephier, and Jolene Ze-phier directly threatened him that she would report him to his parole officer. Kalmio knew of their fear, including the possible repercussions for him if they conveyed their fear to key people such as Kalmio’s parole officer; therefore, Sabrina Zephier’s and Jolene Zephier’s fear were relevant to his motive to kill.

[¶ 21] Requiring that the de-clarant’s state of mind must be relevant to an issue allows for application of the state of mind hearsay exception, recognizing, “[Admissibility depends in significant measure on what was said and on the ultimate fact the evidence is offered to prove.” 4 Clifford S. Fishman, Jones on Evidence Civil and Criminal § 29:18 (7th ed.2000). Minnesota’s Bernhardt formulation rigidly limits use of the hearsay exception to where the victim’s state of mind is a relevant issue and notes those cases generally arise when “the defendant raises the defense of accident, suicide, or self-defense.” Bernhardt, 684 N.W.2d at 474 (quoting Blanchard, 315 N.W.2d at 432-33). While it is an easier case for admission when the victim’s state of mind is an element of the crime, cause of action or defense, the victim’s state of mind is not an element of class AA felony murder. That the victim’s state of mind is not an element of the crime, cause of action or defense, however, does not remove the possibility that evidence of the victim’s state of mind may be relevant to a factual issue, such as the defendant’s motive or intent. See Fishman, supra, §§ 29:17, 29:18 and 29:18 n. 92 (citing United States v. Joe, 8 F.3d 1488 (10th Cir.1993), cert. denied, 510 U.S. 1184, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994) (admitting under 803(3) a murder victim’s statement she was afraid of her husband, which the author speculates was relevant if the jury was permitted to infer from her fear of defendant the state of mind with which he acted eight days later); State v. Fulminante, 193 Ariz. 485, 498, 975 P.2d 75 (1999) (admitting murder victim’s statements she feared and disliked defendant insofar as they may minimally be relevant to show defendant’s motive, but ultimately reversing for admission of two other statements)). The Schu-macher formulation is not so rigid as the Bernhardt formulation, and it allows for the possibility that while the victim’s state of mind is not an element of the crime, it still may be relevant to a factual issue such as the defendant’s motive. We require a case-specific analysis of what ultimate fact the evidence of the victim’s state of mind is offered to prove.

[¶ 22] The State offered Ashley Counts’s testimony to provide insight into Kalmio’s tumultuous relationship with Sabrina Zephier. The district court allowed her testimony about Sabrina Zephier’s fear *761because it was “relevant to demonstrate why she took certain actions relevant to the case.” The district court allowed Counts to testify about why she met with Sabrina Zephier, about what Sabrina Ze-phier told her concerning her assault by her boyfriend, about Sabrina Zephier’s physical condition and demeanor and about what she advised Sabrina Zephier to do. The district court also admitted the assessment form Sabrina Zephier completed during the in-take process at the Domestic Violence Crisis Center under the business record exception to the hearsay rule, N.D.R.Ev. 808(6), after balancing and limiting the use of several words under Rules 402 and 408, N.D.R.Ev. Counts also was allowed to testify that Sabrina Zephier initially marked “yes” on the assessment form that she was afraid Kalmio would harm or kill her, before changing her answer to “no.” Although admitting evidence of Sabrina Zephier’s fear to show why she took certain actions relevant to the case is not an entirely clear purpose on its face, it remains that Kalmio’s motive for committing the alleged crimes was an issue in this case. The fear Sabrina Ze-phier expressed to Counts, in combination with her physical condition from Kalmio’s recent beatings were at least minimally relevant to the possible motive or intent Kalmio acted with if he was responsible for the murders one month later. Sabrina Zephier’s fear and physical condition were relevant to Kalmio’s motive. See Tolcars, 95 F.3d at 1535; Joe, 8 F.3d at 1492-93; Fulminante, 193 Ariz. at 498, 975 P.2d 75. Despite that Sabrina Zephier’s fearful state of mind is not itself an element of murder, based on the law and rationale cited above, the district court did not abuse its discretion in admitting testimony from Ashley Counts concerning Sabrina Zephier’s physical condition and why she feared Kalmio.

Terri Zephier

[¶ 23] Terri Zephier, Sabrina Ze-phier’s sister and Jolene Zephier’s daughter, testified about incidents stemming from a Facebook message she received from Sabrina Zephier on December 20, 2010 and about what Terri Zephier saw when she and her mother arrived at Sabrina Zephier’s apartment. The district court initially held Terri Zephier’s testimony would be subject to the State’s ability to meet the Schumacher test’s contempo-raneousness and relevance to an issue in the case requirements. The district court preliminarily declined to rule whether Terri Zephier’s testimony regarding Jolene Zephier’s dogs would be admissible at trial.

[¶24] At trial Terri Zephier testified she received a Facebook message from Sabrina Zephier on December 20, 2010 that read:

“Terri, I need you to come get me ASAP. Don’t call because if Omar knows you are calling he will get mad and start hitting me again. My face is fucked up, Terri. Come up here and key the door. But I need you, please, my face is fucked up and my body, please. ASAP when you read this. But if you call he will start hitting me again. Please just come up here, you and mom come, ’kay, he is crazy.”

Terri Zephier testified that when she arrived, Sabrina Zephier’s face was swollen and her body had belt marks from “top to bottom.” Terri Zephier then testified about Jolene Zephier’s two dogs, one small and one big. Terri Zephier testified about how Kalmio was afraid of the big dog and always would ensure the dog was not in sight when he came to Jolene Zephier’s home. Terri Zephier also testified that she had been convicted for providing false information to police, that she had to refile Jolene Zephier’s tax returns for her and *762that Jolene Zephier struggled with drugs. Finally, Terri Zephier testified about the day she learned about the deaths in her family, including whether she talked to Kalmio and how she found out. The district court directed the Facebook messages be redacted prior to December 20, 2010, with no objections from either party.

[¶ 25] Kalmio did not object to Terri Zephier’s trial testimony except for the standing hearsay objection he made at the motion in limine hearing. The district court admitted the testimony, subject to meeting the Schumacher requirement that it be relevant to an issue in the case. Terri Zephier’s testimony indicated that Sabrina Zephier expressed fear of Kalmio and that Kalmio beat her. Sabrina Zphier’s statements were confirmed when Terri Zephier arrived at Sabrina Zephier’s apartment and saw her face was swollen and she was covered in belt marks. Sabrina Zephier’s statements about her fear and physical condition are at least minimally relevant to show Kalmio’s motive. See Tokars, 95 F.3d at 1535; Joe, 8 F.3d at 1492-93; Fulminante, 193 Arte, at 498, 975 P.2d 75. Because the testimony offered by Terri Zephier could be relevant to the issues of motive or intent, the district court did not abuse its discretion in admitting the testimony.

Rochelle Greger

[¶ 26] Rochelle Greger was Sabrina Zephier’s aunt, whom Sabrina called periodically. At the motion in limine hearing, the district court had concerns about Greger’s testimony and declined to rule on its admissibility at that time.

[¶ 27] At trial, Greger testified she spoke with Sabrina Zephier on the phone sometime between August, when Sabrina’s baby was born, and when the murders occurred. Greger testified Sabrina Zephier told her that Kalmio beat her with a belt. She testified Sabrina Zephier said she was looking for an apartment with a security door because Kalmio could get into her house. Kalmio did not object to Rochelle Greger’s testimony except for the general standing objection he made at the motion in limine hearing to hearsay testimony. The testimony offered by Gregor concerning Sabrina Zephier’s physical altercations with Kalmio and her desire to relocate to a safer building could be at least minimally relevant to the issues of Kalmio’s motive or intent. See Tokars, 95 F.3d at 1535; Joe, 8 F.3d at 1492-93; Fulminante, 193 Arfe, at 498, 975 P.2d 75. Therefore, the district court did not abuse its discretion in admitting the testimony.

Joyce Tacan

[¶ 28] Joyce Tacan, a friend of Sabrina Zephier, testified she talked to Sabrina Zephier the day before the murders. They discussed Sabrina Zephier’s fear of Kalmio because of the abuse she experienced. The district court allowed her testimony about bruises she saw around Sabrina Zephier’s eyes and about the arguments Sabrina Zephier and Kal-mio had about taxes. The district court required that Tacan meet the contempora-neousness and relevance to an issue in the case requirements of Schumacher.

[¶ 29] Tacan testified to seeing bruises on Sabrina Zephier early in her pregnancy. She also testified that Sabrina Zephier talked about a tax dispute and that Sabrina Zephier told Tacan she wanted her mother to claim her baby. Tacan testified that the day before she was murdered, Sabrina Zephier asked Tacan to stay the night because she feared Kalmio would come over. Kalmio did not object to Tacan’s testimony except for the standing objection he made to the hearsay testimony stemming from the witnesses in the motion in limine hearing. Tacan’s testimony indicated Sabrina Zephier feared Kal-mio and he beat her. The testimony of*763fered by Tacan about Sabrina Zephier’s fear of Kalmio and about Sabrina Zephier’s injuries at his hands could be at least minimally relevant to the issues of motive or intent. See Tokars, 95 F.3d at 1535; Joe, 8 F.3d at 1492-93; Fulminante, 193 Ariz. at 498, 975 P.2d 75. The district court did not abuse its discretion in admitting the testimony.

Amy Dauphinais

[¶ 30] Amy Dauphinais, Jolene Zephier’s boss, testified at the motion in limine hearing that three or four days before the murders, Jolene Zephier expressed fear for Sabrina Zephier’s safety. It was Dauphinais’s understanding that Jolene Zephier’s fear had to do with an argument between Sabrina Zephier and Kalmio about taxes. The district court ruled Dau-phinais could testify at trial to the same things she testified to at the hearing, subject to meeting Schumacher’s contempora-neousness and relevance requirements. At trial, Dauphinais testified to the same effect, including that she was worried what would happen when Kalmio found out she claimed Kalmio’s and Sabrina Zephier’s child on her tax return. Kalmio did not object to her testimony, save the standing objection to hearsay testimony. The testimony offered by Dauphinais regarding Jolene Zephier’s fear and Sabrina Zephier’s disagreement with Kalmio over taxes are at least minimally relevant to Kalmio’s motive of intent. See Tokars, 95 F.3d at 1535; Joe, 8 F.3d at 1492-93; Fulminante, 193 Ariz. at 498, 975 P.2d 75. The district court did not abuse its discretion in admitting the testimony.

Gloria Carbajal

[¶ 31] Gloria Carbajal, a longtime friend of Jolene Zephier, testified at the motion in limine hearing that she occasionally helped Jolene Zephier financially. Carbajal testified Jolene Zephier feared for her children because Kalmio beat Sabrina Zephier with a belt buckle. She further testified that Kalmio knew of Jolene Zephier’s plan to talk to a probation officer and that he threatened to come after her and her family if she made problems for him. Carbajal testified Jolene Zephier intended to claim Kalmio and Sabrina Zephier’s daughter on her tax return. The district court allowed the double hearsay under Rule 805, N.D.R.Ev., because the statements made by Kalmio to Jolene Zephier showed Kalmio’s intent, plan, or motive and the statements made by Jolene Zephier to Carbajal showed Jolene Zephier’s state of mind of fear.

[¶ 32] At trial, Carbajal testified to occasionally lending money to Jolene Zephier. She also testified Jolene Zephier feared for her life because Jolene Zephier told her that during an argument with Kalmio after he beat Sabrina Zephier, she told Kalmio that if he continued to beat Sabrina Zephier, she would contact his parole officer, and that Kalmio then threatened to kill Jolene Zephier and her entire family. Carbajal further testified Jolene Zephier had a tax return dispute involving Kalmio because she planned to claim Sabrina Zephiers and Kalmio’s child, but Kalmio gave her the wrong social security number for the child. Kalmio did not object to Carbajal’s trial testimony, save the standing objection. Carbajal’s testimony regarding Jolene Zephier’s statements demonstrated Kalmio’s plan if Jolene Zephier reported him. Carbajal’s testimony regarding Jolene Zephier’s statements also is evidence of Jolene Ze-phier’s fear and was at least minimally relevant to Kalmio’s motive or intent because she told him that she would report him to his parole officer. See Tokars, 95 F.3d at 1535; Joe, 8 F.3d at 1492-93; Fulminante, 193 Ariz. at 498, 975 P.2d 75. The district court did not abuse its discre*764tion in admitting the testimony from Gloria Carbajal.

Kenzie Goodhouse

[¶ 83] Kenzie Goodhouse has a child with Kalmio and testified about an incident in which Kalmio took their child to Minot without her permission. The State offered Goodhouse’s testimony as a prior bad act for the limited purpose of showing Kal-mio’s motive, intent and plan to take the child in common with Sabrina Zephier from her home. Because Kalmio waived his prior bad acts arguments by not briefing the issue, we do not address the admissibility of Goodhouse’s testimony.

Natasha Hunts Along

[¶ 34] Natasha Hunts Along, a friend of Sabrina Zephier since 2009, testified about Sabrina Zephier’s bruises and about an incident that occurred when Sabrina attempted to move in with her. During the incident, she witnessed Kalmio pull Sabrina Zephier by the arm while she was crying. Hunts Along testified that Kalmio intended to take his and Sabrina Zephier’s child to Minnesota, but that Sabrina Zephier did not want that to happen. Hunts Along testified that she planned to watch Sabrina Zephier’s child the weekend after she was murdered and that Sabrina told her if Kalmio tried to take the child, Hunts Along should not allow him to do so. The State offered Hunts Along’s testimony to show Kalmio’s motive, intent and plan to take the child in common with Sabrina Zephier to Minnesota based on his past act of taking his child from Kenzie Goodhouse without Goodhouse’s consent. Because Kalmio waived his prior bad acts arguments on appeal, we do not further address Natasha Hunts Along’s testimony.

Elizabeth Lambert

[¶ 35] Elizabeth Lambert, a close friend of Sabrina Zephier, lived with Sabrina Zephier starting after Christmas 2010, until Sabrina Zephier’s murder. The district court allowed Lambert’s testimony about the reason Sabrina Zephier requested Lambert to stay with her because Lambert’s testimony met the Schu-macher requirements. Lambert was allowed to testify about her interaction with Kalmio when he was at their apartment, as well as about her knowledge of the methods used by Sabrina Zephier, Kalmio and her to gain entry into the apartment.

[¶ 36] At trial, Lambert testified Sabrina Zephier asked her to move in because she feared Kalmio. Kalmio objected to this testimony, and the district court adhered to its previous ruling. Lambert testified about how she and Sabrina Zephier entered the apartment using ID cards on the lock because only Kalmio had a key. Lambert testified that the first time Kal-mio came to the apartment while she was living there, Sabrina Zephier seemed afraid of Kalmio, which Lambert said she knew both because Sabrina Zephier told her she was fearful in the past and because of her demeanor at the time. Kalmio objected, and the district court instructed the jury to disregard Lambert’s testimony about Sabrina Zephier’s fear of Kalmio. Although unclear from the trial transcript, it appears the district court excluded only the testimony about Sabrina Zephier’s fear the first time Kalmio came to the apartment, rather than the earlier proffered testimony regarding the reason Sabrina Zephier wanted Lambert to move in. Lambert also testified to several threats she heard Kalmio make to Sabrina Zephier, including beating her up, hitting her over the head with a bottle and leaving her for dead with the garbage.

[¶37] The testimony offered by Lambert regarding Sabrina Zephier asking her to move in because she feared Kalmio could be at least minimally relevant to Kalmio’s motive or intent. See Tokars, 95 F.3d at 1535; Joe, 8 F.3d at 1492-93; *765Fulminante, 198 Ariz. at 498, 975 P.2d 75. Further, the district court limited the testimony it believed did not fit that purpose. The district court did not abuse its discretion in admitting testimony from Lambert.

[¶ 38] We conclude that in evaluating the admissibility of each witness’s testimony, the district court did not act arbitrarily, capriciously, or unreasonably, nor did it misinterpret or misapply the law. The district court did not abuse its discretion. We affirm the district court’s determination of the admissibility of each witness’s testimony.

Ill

[¶ 39] Kalmio argues the district court abused its discretion in refusing to give an alibi jury instruction.

[¶ 40] Rule 12.1(a), N.D.R.Crim.P., requires that “[a] defendant who intends to offer an alibi defense must serve written notice on the prosecuting attorney of any intended alibi defense and file the notice within the time provided for the making of pretrial motions.... ”

“A district court’s decision to exclude evidence of an alibi under N.D.R.Crim.P. 12.1 is reviewable under the abuse of discretion standard. A court abuses its discretion if it acts unreasonably, arbitrarily, or capriciously, or if it misinterprets or misapplies the law. When determining whether to allow alibi evidence when the notice requirements of Rule 12.1 have not been met, ‘a court ought to take into account, among other particulars of the case, the actual prejudice that will redound to the prosecution if the testimony is allowed and whether the defendant’s failure to inform was in good faith and for good cause.’ ”

State v. Sevigny, 2006 ND 211, ¶ 12, 722 N.W.2d 515 (citations omitted).

[¶41] “An alibi is a recognized, valid defense in this State.” State v. Olmstead, 261 N.W.2d 880, 885 (N.D.1978). “A ‘defense’ is raised when there is evidence in the case ‘sufficient to raise a reasonable doubt on the issue.’ ” State v. Thiel, 411 N.W.2d 66, 67 (N.D.1987) (quoting N.D.C.C. § 12.1 — 01—03(2)(b)). In Thiel, an assault case, we held Thiel was entitled to his requested jury instruction because evidence was presented sufficient to raise a reasonable doubt on whether he was justified in using force under self-defense and defense of others. 411 N.W.2d at 69. We further held it was a well-established rule “that a defendant is entitled to have submitted to the jury, with proper instructions, all defenses of which there is any support in the evidence, whether such defenses are consistent or inconsistent.” Id. at 68-69 (quoting State v. Hazlett, 16 N.D. 426, 432, 113 N.W. 374, 376 (1907)) (citing see, e.g., Womack v. United States, 336 F.2d 959 (D.C.Cir.1964) (“[A] defendant is entitled to an instruction' on any issue fairly raised by the evidence, whether or not consistent with the defendant’s testimony or the defense trial theory.”)). This Court, however, recognizes the ease with which an alibi may be fabricated and the importance of raising the defense before the trial to ensure the alibi will be accorded due respect. See State v. Flohr, 301 N.W.2d 367, 371-72 (N.D.1980) (“Rule 12.1 certainly does not represent an unconditional restriction on a defendant’s ability to make out his case. The defendant is forbidden nothing, but is required only to proceed in a certain manner.”). Rule 12.1 was amended to require the initial burden be placed on the defendant to raise the defense of alibi, which is done by serving written notice on the prosecuting attorney within the specified time, including the specific places and names of alibi witnesses. N.D.R.Crim.P. 12.1 Explanatory Note. The explanatory note *766warns that failure to comply with the notice requirements could result in the exclusion of testimony on the issue. Id.

[¶ 42] Kalmio did not file a notice of alibi defense as required by Rule 12.1. Kalmio argues he was not required to present testimony that he was not in Minot because the State presented testimonial evidence that Kalmio claimed to be at the oil rigs near Williston at the time of the murders. The district court considered the particulars of this case and determined Kalmio had information from a discovery interview allowing him to make an alibi argument. Further, the district court was persuaded that because Kalmio had the pretrial motion deadline extended, he had ample time to formulate his alibi argument. For those reasons, the district court determined insufficient good cause existed to allow the alibi instruction.

[¶ 43] Kalmio did not raise his alibi defense as required by Rule 12.1, despite .ample time and available information to formulate the argument. While the State presented Kalmio’s bare assertions he was at the oil rigs near Williston at the time of the murders, without more those assertions are not sufficient evidence to raise a reasonable doubt on the issue. We conclude the district court did not abuse its discretion in refusing to give an alibi jury instruction.

IV

[¶ 44] Kalmio argues the State engaged in prosecutorial misconduct during its closing argument by showing slides depicting material intended to stir passions of the jury, resulting in contamination of the entire proceeding.

[¶ 45] We apply a de novo standard of review “to whether facts rise to the level of a constitutional violation, including a claim that prosecutorial misconduct denied a defendant’s due process right to a fair trial.” State v. Pena Garcia, 2012 ND 11, ¶ 6, 812 N.W.2d 328.

“[P]rosecutorial misconduct may so infect[] the trial with unfairness as to make the resulting conviction a denial of due process. However, we have also recognized that not every assertion of prosecutorial misconduct, followed by an argument the conduct denied the defendant his constitutional right to a fair trial, automatically rises to an error of constitutional dimension. To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant’s right to a fair trial. To determine whether a prosecutor’s misconduct rises to a level of a due process violation, we decide if the conduct, in the context of the entire trial, was sufficiently prejudicial to violate a defendant’s due process rights.”

Id. (quoting State v. Duncan, 2011 ND 85, ¶ 12, 796 N.W.2d 672). We must consider whether the prosecutor’s actions constitute misconduct and, if so, whether the misconduct had a prejudicial effect and would affect the jury’s ability to fairly judge the evidence. Pena Garcia, at ¶ 6. “ ‘Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.’ ” Id. (citation omitted).

[¶ 46] Kalmio argues the State improperly used PowerPoint images that were not in evidence, including images of a gun and red circles he claimed resembled blood. Kalmio objected to the slides. The district court sustained the objection, directing images of the gun and the red circles be removed and admonishing the jury to disregard the images. “Claims of improper argument are generally not grounds for reversal because it is pre*767sumed the jury will follow the trial court’s admonition and disregard improper statements.” Pena Garcia, 2012 ND 11, ¶ 10, 812 N.W.2d 328. The judge also instructed the jury that any comments or statements by counsel concerning the evidence which are not supported by the evidence should be disregarded and the jury member should rely on their own recollection or observation. Id. (concluding jury instructions directing the jury to disregard statements by counsel that are not supported by the law prevented possible prejudice).

[¶47] Without the images in the record, we are unable to conclude use of the images was misconduct. Even assuming without deciding there was misconduct, the prosecutor’s attempt to use two images during closing argument was not sufficiently prejudicial to violate Kalmio’s due process rights because the district court directed the images to be removed and the jury to disregard the images. We presume the jury follows such instructions. We conclude the district court did not violate Kalmio’s due process rights by directing the jury to disregard the removed images, rather than by ordering a mistrial based on prosecutorial misconduct.

V

[¶ 48] Kalmio argues the evidence was insufficient to support his conviction.

[¶ 49] This Court is clear on its standard of review when the sufficiency of the evidence is challenged:

“ ‘Appellate review of the sufficiency of the evidence for a jury verdict is very limited. When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a 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. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses.... A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.’ ”

State v. Zottnick, 2011 ND 84, ¶ 14, 796 N.W.2d 666 (citation omitted). “A verdict based upon circumstantial evidence carries the same presumption of correctness as other verdicts and will not be disturbed on appeal unless the verdict is unwarranted.” State v. Olson, 290 N.W.2d 664, 670 (N.D.1980). “Circumstantial evidence alone may justify a conviction if it is of such probative force as to enable the trier of fact to say that the defendant is guilty beyond a reasonable doubt.” Id. at 670-71.

[¶ 50] Kalmio rests his sufficiency of the evidence challenge on the largely circumstantial evidence supporting his conviction. Ample testimony established Kalmio had a volatile relationship with Sabrina Zephier and her family. Testimony existed of a dispute over who would claim Kalmio and Sabrina Zephier’s daughter on their tax returns and who would have custody of the child. Although no direct evidence established Kal-mio was in Minot the night of the murder, testimony revealed Kalmio was seen getting into a white truck resembling the one seen outside Sabrina Zephier’s apartment the night of the murder. Further, Kalmio had keys to Sabrina Zephier’s apartment, and no evidence of forced entry into her apartment existed.

[¶ 51] Competent evidence existed allowing the jury to draw an inference rea*768sonably tending to prove Kalmio’s guilt and fairly warranting his conviction.

VI

[¶ 52] We conclude the district court did not abuse its discretion in allowing hearsay testimony at trial, in denying his request for an alibi jury instruction and in denying Kalmio’s motion for a mistrial on the grounds of prosecutorial misconduct. Sufficient evidence exists to support the guilty verdicts. We affirm the district court judgments entered after a jury found him guilty of four counts of class AA felony murder.

[¶ 53]GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, JJ„ concur.

[¶ 54] The Honorable Lisa Fair McEv-ers was not a member of the Court when this case was heard and did not participate in this decision. The Honorable Mary Muehlen Maring, S.J., sitting.