State v. Brown

FILED

IN THE OFFICE OF THE

CLERK OF SUPREME COURT

DECEMBER 9, 2021

STATE OF NORTH DAKOTA

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 226

State of North Dakota, Plaintiff and Appellant

v.

Joseph n/m/i Brown, Defendant and Appellee

No. 20210191

Appeal from the District Court of Ward County, North Central Judicial

District, the Honorable Gary H. Lee, Judge.

REVERSED AND REMANDED.

Opinion of the Court by McEvers, Justice.

Leah J. Viste (argued), Assistant State’s Attorney, and Ethan R. Lee (on brief),

Assistant State’s Attorney, Minot, ND, for plaintiff and appellant.

Ashley M. Gulke, Minot, ND, for defendant and appellee.

State v. Brown

No. 20210191

McEvers, Justice.

[¶1] The State appeals from a district court order dismissing without

prejudice charges of criminal trespass, burglary, and theft of property against

Joseph Brown. On appeal, the State argues the court erred in refusing to admit

hearsay testimony offered by the State’s witness. We reverse the court’s order

and remand for a preliminary hearing.

I

[¶2] The State charged Brown with criminal trespass, criminal mischief,

burglary, and theft of property. With the exception of criminal mischief, all

charges were class C felonies. At the preliminary hearing, Officer Gannon

Miller was the only witness. He was not the investigating officer and had no

contact with Brown prior to the preliminary hearing. Officer Miller testified he

did not respond to the scene of the possible break-in. The district court then

questioned Officer Miller:

THE COURT: Back up just a second here. What was your

involvement in this?

THE WITNESS: I was actively looking for Joseph Brown.

THE COURT: Did you have anything other than just the fact that

you were looking for him?

THE WITNESS: I was just a responding officer.

THE COURT: Did you talk to any witnesses, did you talk to the

neighbor, did you do any independent investigation?

THE WITNESS: I did not, no.

THE COURT: So you were just—I mean, you were on duty. I’m not

taking away from the fact that you were on duty. But you have no

direct connection with any of the facts of this, do you?

THE WITNESS: I was a responding officer and Officer Shaide was

the reporting officer.

THE COURT: That’s not my question. You don’t—you never talked

to a witness, you never conducted any investigation, you were just

driving around looking for a large black male?

THE WITNESS: Who was identified as Joseph Brown, yes.

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THE COURT: You were driving around looking for a large black

male.

THE WITNESS: Yes.

THE COURT: And that’s the extent of your involvement?

THE WITNESS: Yes.

THE COURT: He’s got to have more than that.

[¶3] The district court then ended the State’s examination of Officer Miller.

The court concluded there could be no probable cause determination based

upon “nothing but hearsay.” The court found Officer Miller had no direct

connection to the crime, as he had not responded to the scene, investigated the

break-in, or talked to any witnesses. The court dismissed the felony charges

against Brown, informing the State “unless [the witness] has some actual,

hands-on, direct contact with this crime,” the court would not find probable

cause. The court determined that “[p]roducing a witness with no point of

contact with the case, and whose only role in the hearing would be to read

reports and affidavits prepared by others is insufficient to establish probable

cause at a preliminary hearing.”

II

[¶4] The State argues the district court erred in prohibiting the State from

introducing permissible hearsay testimony. The State asks this Court to

reverse the court’s order of dismissal and remand for further proceedings.

Brown argues the court properly dismissed the charges.

A

[¶5] “The State’s right to appeal must be expressly granted by statute.” State

v. Mitchell, 2021 ND 93, ¶ 5, 960 N.W.2d 788 (quoting State v. Goldmann, 2013

ND 105, ¶ 6, 831 N.W.2d 748).

[I]n a criminal case the State is authorized to appeal from “[a]n

order quashing an information or indictment or any count thereof.”

N.D.C.C. § 29-28-07(1). We have consistently held that an order

dismissing a criminal complaint, information, or indictment is the

equivalent of an order quashing an information or indictment and

is therefore appealable under the statute.

2

State v. Gratton, 2020 ND 41, ¶ 7, 938 N.W.2d 902 (quoting State v. Gwyther,

1999 ND 15, ¶ 11, 589 N.W.2d 575). This Court has held that N.D.C.C. § 29-28-

07(1) does not specifically limit appealability to an order quashing with

prejudice and therefore an order quashing without prejudice is appealable.

Mitchell, at ¶ 5. Accordingly, we have jurisdiction over the State’s appeal from

the district court order dismissing the charges without prejudice.

B

[¶6] This Court reviews the dismissal of a criminal complaint under an abuse

of discretion standard. State v. Erickson, 2011 ND 49, ¶ 12, 795 N.W.2d 375. “A

trial court abuses its discretion only when it acts in an arbitrary, unreasonable,

or capricious manner, or misinterprets or misapplies the law.” State v. Cain,

2011 ND 213, ¶ 16, 806 N.W.2d 597.

[¶7] A preliminary hearing serves as a screening tool to determine whether

probable cause exists. Mitchell, 2021 ND 93, ¶ 6. “The State is not required to

prove with absolute certainty or beyond a reasonable doubt that a crime

occurred, but rather need only produce sufficient evidence to satisfy the court

that a crime has been committed and that the accused is probably guilty.”

Gratton, 2020 ND 41, ¶ 9 (quoting State v. Blunt, 2008 ND 135, ¶ 15, 751

N.W.2d 692). A preliminary hearing “is not a trial on the merits.” State v.

Turbeville, 2017 ND 139, ¶ 12, 895 N.W.2d 758. Rather, “[t]he probable cause

showing required at a preliminary hearing under N.D.R.Crim.P. 5.1 is ‘a

minimal burden of proof.’” Gratton, at ¶ 9 (quoting Healy v. Healy, 397 N.W.2d

71, 73 (N.D. 1986)).

The standard of probable cause at the preliminary hearing is the

same standard of probable cause required for a valid arrest. Under

that standard, probable cause exists when the facts and

circumstances are sufficient to warrant a person of reasonable

caution in believing an offense has been or is being committed, and

knowledge of facts sufficient to establish guilt is not necessary to

establish probable cause.

Mitchell, at ¶ 6. “Because a preliminary hearing is not an actual trial, ‘[t]he

finding of probable cause may be based on hearsay evidence’ and ‘evidence that

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would be inadmissible at the trial.’” Id. at ¶ 7 (quoting N.D.R.Crim.P. 5.1(a)).

Except for rules relating to privilege, the North Dakota Rules of Evidence do

not apply to preliminary hearings in criminal cases. Id. (citing

N.D.R.Ev. 1101(d)(3)(C)).

[¶8] In determining whether probable cause exists, the district court may

judge credibility and make findings of fact, and this Court will not reverse the

findings if, after resolving conflicts in the evidence in favor of affirming,

sufficient evidence exists to support the court’s findings and the decision is not

contrary to the manifest weight of the evidence. Blunt, 2008 ND 135, ¶ 14.

However, “[t]he district court’s authority to weigh evidence and judge

credibility of witnesses in a preliminary hearing is limited.” Gratton, 2020 ND

41, ¶ 10. “[A] judge in a preliminary hearing has jurisdiction to consider the

credibility of witnesses only when, as a matter of law, the testimony is

implausible or incredible.” Id. (quoting Blunt, at ¶ 17); see also People v.

Buhrle, 744 P.2d 747, 749 (Colo. 1987) (“Although the trial judge may curtail

the right to cross-examine and to introduce evidence, he may neither

completely prevent inquiry into matters relevant to the determination of

probable cause, nor disregard the testimony of a witness favorable to the

prosecution unless the testimony is implausible or incredible as a matter of

law.”) (internal citations omitted)). If merely conflicting testimony is

introduced, “a question of fact exists for the jury, and the judge must draw the

inference favorable to the prosecution.” Gratton, at ¶ 10. “Whether the facts

found by the court constitute probable cause is a question of law, fully

reviewable on appeal.” Id. at ¶ 8.

[¶9] Brown contends that, while a “finding of probable cause may be based on

hearsay evidence in whole or in part,” the district court also has discretion to

refuse to admit hearsay evidence. N.D.R.Crim.P. 5.1(a). Brown also notes the

“court has a duty to assess the weight and credibility of the witness” and “may

assess the weight of the testimony as zero.”

[¶10] Although evidentiary issues and determinations of weight and

credibility fall within the district court’s discretion, that discretion is limited

in a preliminary hearing. See Gratton, 2020 ND 41, ¶ 10 (describing the limited

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authority to assess credibility at a preliminary hearing “only when, as a matter

of law, the testimony is implausible or incredible”). While a court is given

discretion in admitting hearsay evidence under N.D.R.Crim.P. 5.1(a), the court

here permitted only a limited examination of Officer Miller before determining

he had no basis to provide any testimony. In light of the burden of proof placed

upon the State, and noting the court should draw all inferences in favor of the

prosecution, we conclude the court abused its discretion by misapplying the

law when it unreasonably prevented the State’s inquiry into matters that were

relevant to a determination of probable cause. The court abused its discretion

in refusing to allow the State to fully examine Officer Miller and in not

considering whether Officer Miller’s testimony was implausible or incredible.

We hold a court must allow the State to present its evidence at the preliminary

hearing before determining what weight to give that evidence, including

otherwise inadmissible hearsay.

III

[¶11] We reverse the district court order dismissing the charges against Brown

and remand for a preliminary hearing.

[¶12] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

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