State v. Smestad

2004 ND 140, 681 N.W.2d 811, 2004 N.D. LEXIS 253, 2004 WL 1462651
CourtNorth Dakota Supreme Court
DecidedJune 30, 2004
Docket20030335
StatusPublished
Cited by6 cases

This text of 2004 ND 140 (State v. Smestad) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Smestad, 2004 ND 140, 681 N.W.2d 811, 2004 N.D. LEXIS 253, 2004 WL 1462651 (N.D. 2004).

Opinion

KAPSNER, Justice.

[¶ 1] Paul Smestad appeals from a judgment entered following a conditional guilty plea to forgery, a class C felony. We affirm.

I.

[¶ 2] Constance Couch and Smestad were introduced by a mutual acquaintance in late December 2002. Couch and Smes-tad dated for less than a month and were married on January 19, 2003.

[¶ 3] Prior to their marriage, Smestad informed Couch he wanted to purchase a new pickup for her as a wedding present. On January 17, 2003, Smestad persuaded Couch to write a check to Stan Puklich Chevrolet for approximately $32,000 to purchase a new pickup. On the same day, Smestad wrote Couch two personal checks, one for $35,000 to cover the cost of the pickup and one for $5,000. Couch attempted to deposit the checks in her personal account, but the bank would not allow her to make the deposit. Smestad claimed he would have his accountant deposit the checks for Couch. Smestad drove Couch to a business called Route 94 Marketing. Couch waited in the vehicle while Smestad went into the business, stat *813 ing he would have his accountant make the necessary arrangements to have the checks deposited immediately.

[¶ 4] Smestad never made arrangements to have the checks deposited in Couch’s account, and the $82,000 check Couch wrote for the purchase of the new vehicle was returned for insufficient funds, along with several other checks written by Couch. Smestad told Couch he had a “big settlement” coming, and he was a Major in the armed forces with a sizeable income. Smestad made numerous other misrepresentations to Couch as to his employment and financial status.

[¶ 5] Eventually, Couch began to doubt Smestad’s honesty. On March 4, 2003, Couch contacted the Mandan police department and informed an officer several checks were missing out of her checkbook and she suspected Smestad of taking them. The checks were written out to various businesses in the Bismarck-Mandan area. Two of those checks, written in Morton County, are the subject of this appeal.

[¶ 6] Smestad was charged with forging two checks on Couch’s checking account in Morton County. The first check was written to Dan’s Supermarket on February 13, 2003, in the amount of $111.20. The second check was written at Stage Stop Liquors on February 22, 2003, in the amount of $73.90. Trial was set for July 8, 2003. On July 8, 2003, Smestad made a motion in limine to limit testimony of Couch and to allow the defense to impeach Couch on a misdemeanor conviction resulting from the bad check she wrote to Stan Puklich Chevrolet for the pickup. The district court refused to limit Couch’s testimony because the forgery statute requires the prosecution to demonstrate a scheme or intent to defraud. The district court refused to allow the defense to impeach Couch on the misdemeanor bad check conviction stating it was not a crime involving dishonesty. The record only reflects the State’s Attorney’s reference to Couch being prosecuted for a class A misdemeanor involving writing checks without sufficient funds; however, the record fails to specify under which statute she was prosecuted and convicted.

[¶ 7] Smestad entered a conditional guilty plea on July 8, 2003, and appealed the district court’s ruling on his motion in limine.

II.

[¶ 8] The first issue raised by Smestad on appeal is whether the district court abused its discretion when it declined to limit Couch’s testimony about the events surrounding the checks Smestad wrote on Couch’s account.

[¶ 9] The prosecution sought to allow Smestad’s wife of five weeks, Constance Couch, to testify to a scheme perpetrated by Smestad in an effort to take money from Couch and others. The State argued it was essential to show Couch was deceived by Smestad and that Smestad stole checks from Couch with intent to commit forgery. The district court ruled it would permit Couch’s testimony about prior events with a verbal warning to the State not to stray from the essential elements of the crime. The district court also instructed the defense it would have the opportunity to object at trial, if and when it was necessary.

[¶ 10] Smestad argues the district court abused its discretion when it determined Couch’s testimony would be allowed in order to give context to the events giving rise to the two forged checks. Smestad argues the essential elements of the forgery statute require the defendant to have “intent to deceive or harm the government or another person.” N.D.C.C § 12.1-24-01. The statute provides:

*814 1. A person is guilty of forgery or counterfeiting if, with intent to deceive or harm the government or another person, or with knowledge that he is facilitating such deception or harm by another person, he:
a. Knowingly and falsely makes, completes, or alters any writing; or
b. Knowingly utters or possesses a forged or counterfeited writing.
2. Forgery or counterfeiting is:
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b. A class C felony if:
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(5) The offense is committed pursuant to a scheme to defraud another or others of money or property of a value in excess of one hundred dollars.

N.D.C.C. § 12.1-24-01.

[¶ 11] “Relevant evidence” is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.D.R.Ev. 401. Relevant evidence is generally admissible, whereas evidence that is not relevant is generally inadmissible. N.D.R.Ev. 402. Relevant evidence may be excluded at the discretion of the district court if the prejudicial nature of the evidence outweighs its probativeness:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

N.D.R.Ev. 403.

[¶ 12] “Under N.D.R.Ev. 401-403, a trial court is vested with broad discretion to decide if evidence is relevant and if its probative value substantially outweighs the danger of unfair prejudice.” State v. Steinbach, 1998 ND 18, ¶ 9, 575 N.W.2d 193 (citing State v. Carlson, 1997 ND 7, ¶ 8, 559 N.W.2d 802). This Court will reverse a district court’s decision in admitting evidence only if the court has abused its discretion by acting in an arbitrary, unconscionable, or unreasonable manner. Steinbach, at ¶ 9.

[¶ 13] The district court’s explanation for allowing Couch’s testimony was subsection 2(b)(5) of the forgery statute required the prosecution prove a scheme or intent to defraud others. At the hearing on Smestad’s motion in limine, the district court stated:

Well, I’m going to allow the testimony to come in, even though it appears that it’ll be probative. I don’t think the prejudicial value will outweigh the probative nature of those statements.
Obviously, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
2004 ND 140, 681 N.W.2d 811, 2004 N.D. LEXIS 253, 2004 WL 1462651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smestad-nd-2004.