State v. Ebach

1999 ND 5, 589 N.W.2d 566
North Dakota Supreme Court·Decided May 25, 1999·No. Criminal 980125, 980126·Published·Cited by 29 cases

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] Brenda Lee Ebach appealed from criminal judgments entered upon a jury verdict finding her guilty of three counts of burglary and three counts of theft of property. We affirm the judgments of conviction.

I

[¶ 2] On January 21, 1997, the State charged Ebach with burglary in violation of N.D.C.C. § 12.1-22-02(1) and theft of property in violation of N.D.C.C. §§ 12.1-23-02 and 12.1-23-05(2)(a). The complaint alleged Ebach entered the Ralph Schalow residence between November 22, 1996 and December 2, 1996 with the intent to commit theft and did take a washer, dryer and shower curtain rod exceeding $500. Three days later, on January 24, 1997, the State charged Ebach with burglary in violation of N.D.C.C. § 21.1-22-02(1) and theft of property under N.D.C.C. § 12.1-23-02. The complaint alleged Ebach entered the Schalow residence between March 10, 1996 and April 28, 1996 with the intent to commit a crime and took various items including: a rototiller, lawn mower, extension ladder, patio table and chairs and two lawn chairs. The complaint alleged these items exceeded a value of $500. The State also added two additional charges to the complaint, one for burglary under N.D.C.C. § 12.1-22-02(1) and another for theft of property in violation of N.D.C.C. § 21.1-23-02, a class B misdemeanor, for entering a locked storage shed with the intent to commit theft and for taking various items owned by Tony Marsh between October 17, 1996 and November 6, 1996. The items included: a ireezer, a trampoline, a rowing machine and two white metal cabinets, not exceeding $250. The informations were consolidated and a jury trial was held. Ebach was convicted of all counts.

[57 3] Ebach raises several issues on appeal, including: (1) improper comments made by the state’s attorney during closing argument denied her of a fair trial; (2) the State violated N.D.R.Crim.P. 16 by failing to dis *570 close a statement made by the defendant; and (3) there is insufficient evidence to sustain the conviction. We examine each of Ebach’s arguments.

II

[¶ 4] Ebach contends the trial court abused its discretion by permitting the state’s attorney to exceed the proper scope of closing argument. Specifically, Ebach argues the prosecutor improperly: 1) vouched for the evidence and personalized the case; 2) misstated the law regarding the value of the stolen property; and 3) commented on the defendant’s silence.

[¶ 5] The control and scope of closing arguments are left to the discretion of the trial court. E.g. State v. Azure, 525 N.W.2d 654, 656 (N.D.1994). We will not reverse a verdict on the ground the prosecutor exceeded the scope of closing argument unless a clear abuse of discretion is shown. State v. Ash, 526 N.W.2d 473, 481 (N.D.1995); State v. Schimmel, 409 N.W.2d 335, 342 (N.D.1987). To establish an abuse of discretion, absent a fundamental error, 1 the defendant must demonstrate the prosecutor’s comments in closing argument were improper and unfairly prejudicial. State v. Marks, 452 N.W.2d 298, 302 (N.D.1990). Error is unfairly prejudicial only if it causes substantial injury to the defendant such that a different decision would have resulted absent the error. Azure, 525 N.W.2d at 656. We seldom reverse on appeal because it is generally presumed the jury will follow the trial court’s admonition and disregard the improper statement. Id. (citing State v. Paulson, 477 N.W.2d 208, 210 (N.D.1991)).

[¶ 6] Ebach contends the State improperly vouched for the evidence against Ebach during closing argument when the prosecutor stated, “If it was all we had, was Rob Martin-son’s testimony, if that’s all we had, the State would never even have charged it out.” In response, the State argues the allegedly improper comment was “invited” by defense counsel’s statement the State had no corroborative evidence to connect Ebach to the burglaries. Following the allegedly improper statement, Ebach objected, moved for a mistrial and asked the court for an instruction. Although Ebach’s motion for a mistrial was denied, the trial court directed the jury to “disregard the last comments by Mr. Mclntee relative to the sufficiency of the charge against the defendant.”

[¶ 7] In Schimmel, we expressed our concerns regarding prosecutors providing their own personal beliefs on the evidence. See Schimmel, 409 N.W.2d at 343. It is the jury who is the trier of fact in any court proceedings. Id. However, when a prosecutor comments personally on the evidence he may convey an impression there is evidence not presented to the jury, but known to the prosecutor, supporting the charges against the defendant. Id. (citing United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Furthermore, we are concerned a prosecutor’s opinion on the evidence carries with it the “imprimatur of the Government” and may induce the jury to trust the government’s view rather than its own judgment of the evidence when it is deliberating. Id.

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State v. Ebach, 1999 ND 5, 589 N.W.2d 566 (N.D. 1999).

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