                Filed 6/27/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 159


State of North Dakota,                                       Plaintiff and Appellee

      v.

Karim Sabur Kabir Muhammad,                               Defendant and Appellant


                                  No. 20180357


       Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Jay D. Knudson, Judge.

      AFFIRMED.

      Opinion of the Court by Jensen, Justice.

      Meredith H. Larson, Assistant State’s Attorney, Grand Forks, ND, for plaintiff
and appellee.

      Samuel A. Gereszek, East Grand Forks, MN, for defendant and appellant.
                                State v. Muhammad
                                    No. 20180357


       Jensen, Justice.
[¶1]   Karim Sabur Kabir Muhammad appeals from a criminal judgment issued after
he was found guilty of gross sexual imposition—victim unaware. On appeal,
Muhammad argues the district court erred by admitting recordings of Muhammad’s
interrogations as evidence without requiring the recordings be published to the jury,
by not publishing admitted evidence in open court he was denied the right to a public
trial, and by excluding relevant evidence of his prior sexual contact with the victim.
We affirm.
                                           I.
[¶2]   A.I. and a friend were drinking in downtown Grand Forks on the night of
October 7, 2017 and into the early morning hours of October 8, 2017. Muhammad,
an acquaintance of A.I. and her friend, was also downtown on the night in question.
Muhammad agreed to drive the women home. A.I.’s friend was dropped off at the
Grand Forks Air Force Base. A.I. and Muhammad proceeded to Muhammad’s
apartment in Grand Forks. A.I. testified she passed out and awoke to Muhammad
having sexual intercourse with her.
[¶3]   A.I. notified law enforcement of the incident and a “pretext call” was initiated.
During the “pretext call,” Muhammad was recorded admitting to engaging in sexual
intercourse with A.I. though she was “passed out,” and “couldn’t [expletive] stay
awake.” Muhammad was charged with gross sexual imposition—victim unaware.
Prior to trial, Muhammad filed a motion in limine seeking permission to introduce
evidence of alleged prior instances of sexual contact between Muhammad and A.I.
The State opposed Muhammad’s motion and offered its own motion in limine to
preclude consent from being used as a defense. Muhammad argued he was seeking


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to use evidence of past sexual contact to show his state of mind. The district court
denied Muhammad’s motion and granted the State’s motion.
[¶4]   During trial, the State offered and the district court admitted two recordings of
Muhammad’s interrogations. The two lengthy recordings were not played during
trial, though law enforcement personnel did provide testimony regarding the contents
of the recordings. Muhammad was found guilty at the conclusion of a three-day trial.
On appeal, Muhammad argues the district court erred by admitting the two recordings
into evidence without requiring the State to publish the recordings to the jury, the
failure to publish the recordings in open court denied him his right to a public trial,
and erred by excluding relevant evidence of his prior sexual contact with the victim.
                                          II.
[¶5]   Muhammad argues the district court erred by admitting the two recordings of
his interrogations without requiring the State to publish both recordings in their
entirety to the jury.    At trial, Muhammad objected to the admission of the
interrogation recordings under N.D.R.Ev. 106, commonly referred to as the “Rule of
Completeness.” Muhammad contends that when a party asserts an objection to a
document or recording pursuant to Rule 106, the offering party is required to publish
to the jury the entire document or recording. The district court informed Muhammad
that he was free to publish the recordings, and Muhammad did publish portions of the
admitted recordings to the jury.
[¶6]   We have repeatedly recognized that a trial court has broad discretion in
deciding whether to admit evidence or exclude evidence. State v. Wangstad, 2018
ND 217, ¶ 6, 917 N.W.2d 515. A trial court’s decision on the admission or exclusion
of evidence will be reversed on appeal only for an abuse of discretion. Id. A trial
court abuses its discretion in admitting or excluding evidence by acting in an
arbitrary, unreasonable, or unconscionable manner. Id.
[¶7]   Rule 106, N.D.R.Ev., provides “[i]f a party introduces all or part of a writing
or recorded statement, an opposing party may require the introduction, at that time,
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of any other part, or any other writing or recorded statement, that in fairness ought to
be considered at the same time.” In the present case, pursuant to Muhammad’s
objection under Rule 106 and his demand for completeness, the State offered and the
district court received the entire recordings. Muhammad does not contest the
foundation for the recordings nor does he assert the recordings were not admissible
outside of his contention the admissibility is tethered to publication to the jury through
his Rule 106 objection seeking completeness.
[¶8]   Nothing within Rule 106 tethers admissibility of a document or recording to
subsequent publication to the jury. To the contrary, once evidence is properly
admitted, the evidence goes to the jury. See N.D.C.C. § 29-22-04. The explanatory
note to Rule 106 also provides the following: “Rule 106 is not a rule of admissibility,
but rather one dealing with order of proof[.]” N.D.R.Ev. 106, Explanatory Note.
Here, the entirety of the recordings were admitted to satisfy Muhammad’s request
under Rule 106 for completeness, and he was allowed to publish the recordings to the
jury. The district court did not act in an arbitrary, unreasonable, or unconscionable
manner in admitting the recordings without requiring the State to publish the
recordings to the jury, and the admission of the recordings was not an abuse of
discretion.
[¶9]   Muhammad’s argument that the district court erred when it admitted the
interrogation recordings without requiring publication to the jury is a challenge to the
order of proof implicating N.D.R.Ev. 611. Rule 611(a), N.D.R.Ev., provides:
       The court should exercise reasonable control over the mode and order
       of . . . presenting evidence so as to: (1) make those procedures
       effective for determining the truth; (2) avoid wasting time; and (3)
       protect witnesses from harassment or undue embarrassment.
A trial court has broad discretion in its application of Rule 611 and its determination
of the mode and order of interrogating witnesses as well as the presentation of
evidence. State v. Sevigny, 2006 ND 211, ¶ 31, 722 N.W.2d 515. A trial court abuses
its discretion in exercising its control over the mode and order of interrogating
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witnesses or presenting evidence by acting in an arbitrary, unreasonable, or
unconscionable manner. Id.
[¶10] Here, the district court exercised reasonable control over the six hours of
interrogation recordings by admitting them, but not requiring the State to publish the
recordings in their entirety to the jury. Muhammad was given the option to play the
recordings in their entirety or to play portions of the recordings; he choose to play
portions of the recordings. This procedure avoided wasting time by allowing the jury
access to the entirety of the evidence during deliberations without consuming the
better part of a day of trial. The jury requested and received access to the recordings
during deliberations. The district court did not act in an arbitrary, unreasonable, or
unconscionable manner in admitting the recordings without requiring the State to
publish the recordings to the jury, and the admission of the recordings without
publication was not an abuse of discretion.
                                             III.
[¶11] Muhammad argues that by admitting the recordings of the interrogations
without playing them in open court, he was denied a public trial. Muhammad also
argues he was put in the position of having to put on the State’s case-in-chief by
requiring him, instead of the State, to publish the recordings; we note he was not
required to publish any portion of the recordings and elected to publish portions of the
recordings. Generally, the district courts possess broad discretion when deciding
evidentiary matters. Wangstad, 2018 ND 217, ¶ 6, 917 N.W.2d 515. However, the
denial of a defendant’s right to a public trial without proper analysis is a structural
error generally considered as requiring a reversal of a conviction. State v. Pittenger,
2019 ND 22, ¶ 4, 921 N.W.2d 439. Whether a court’s admission of recordings into
evidence without publication implicates or violates the right to a public trial is a
matter of first impression for this Court.
[¶12] Recently, the Kansas Supreme Court considered a similar matter. State v.
Sullivan, 414 P.3d 737, 739 (Kan. 2018). In Sullivan, the trial court admitted DVDs
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containing approximately six hours of the defendant’s interrogation. Id. Detectives
testified to the content of the DVDs. Id. at 745. The DVDs were not played for the
jury in open court, but the jury was allowed to take the exhibits into the jury room
during deliberations. Id. at 739. The jury eventually returned a guilty verdict. Id.
The defendant appealed, claiming the trial court’s admission of the DVDs violated his
constitutional right to a public trial. Id.
[¶13] The Kansas Supreme Court held the defendant’s right to a public trial was not
violated by the admission of the DVDs without playing them during trial. Sullivan,
414 P.3d at 745. Because the proceedings admitting the DVDs were conducted in
open court, the parties were aware of the content of the DVDs, law enforcement
testified to the content of the DVDs, and the defendant was allowed to cross-examine
those testifying to the content of the DVDs, there was no violation of the defendant’s
right to a public trial. Id.
[¶14] Likewise, the Washington Court of Appeals held that playing a recording in
a manner where only the jury could see it did not implicate a defendant’s right to a
public trial. State v. Ayodeji, No. 72359-6-I, 2017 WL 176647, at *3 (Wash. Ct. App.
Jan. 17, 2017). In Ayodeji, a jury was shown a recording of an alleged sexual assault
during trial. Id. The State intentionally played the recording in a manner where the
parties and jurors could see it, but the spectators could not. Id. at *5. The defendant
argued that playing the recording for only the jury resulted in a closed courtroom, and
thus a violation of his right to a public trial. Id. The Washington Court of Appeals
disagreed and stated because “the public was able to observe the State offer the video
into evidence, see who authenticated the exhibit, and get a general sense of its content
from the testimony about it,” the courtroom was not closed, and the defendant’s right
to a public trial was not implicated. Id.
[¶15] Here, the situation is similar to Sullivan and Ayodeji. The proceeding
regarding the admission of the interrogation recordings was conducted in open court,
and Muhammad would have been aware of the contents of the recordings through the
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discovery process. Law enforcement personnel testified to the content of the
recordings, and Muhammad’s counsel was allowed to cross-examine the State’s
witnesses. In the present case, Muhammad had the option to play the recordings in
their entirety. We agree with the reasoning of the courts in Sullivan and Ayodeji and
conclude Muhammad’s right to a public trial was not implicated by the district court’s
admission of the recordings without requiring the recordings be played in open court.
                                         IV.
[¶16] Muhammad argues the district court erred in the exclusion of evidence of his
prior sexual contact with the victim. Muhammad asserts the evidence was relevant
to determining what he “knew” or had “reasonable cause to believe” on the night in
question.
[¶17] Muhammad was charged with gross sexual imposition under N.D.C.C. § 12.1-
20-03(1)(c). Under N.D.C.C. § 12.1-20-03(1)(c), “[a] person who engages in a sexual
act with another, or who causes another to engage in a sexual act, is guilty of an
offense if [t]hat person knows or has reasonable cause to believe that the victim is
unaware that a sexual act is being committed upon him or her.” The State needed to
prove Muhammad (1) willfully engaged in a sexual act with A.I. and (2) did so
knowing or with reasonable cause to believe A.I. was unaware that a sexual act is
being committed upon her.
[¶18] Generally, under N.D.R.Ev. 412, evidence offered to prove an alleged victim
engaged in other sexual behavior and evidence offered to prove an alleged victim’s
sexual predisposition, is inadmissible. However, in a criminal case, exceptions exist
for:
       (A) evidence of specific instances of a victim’s sexual behavior, if
       offered to prove that someone other than the defendant was the source
       of semen, injury, or other physical evidence;
       (B) evidence of specific instances of a victim’s sexual behavior with
       respect to the person accused of the sexual misconduct, if offered by the
       defendant to prove consent or if offered by the prosecutor; and
       (C) evidence whose exclusion would violate the defendant’s
                                          6
       constitutional rights.
N.D.R.Ev. 412(b)(1)(A)-(C); see also State v. Peltier, 2016 ND 75, ¶ 4, 878 N.W.2d
68. Trial courts enjoy broad discretion when admitting evidence, and evidentiary
decisions regarding the admission of evidence will not be overturned unless found to
be an abuse of discretion. Wangstad, 2018 ND 217, ¶ 6, 917 N.W.2d 515. A trial
court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably,
or when its decision is not the product of a rational mental process. Id.
[¶19] Muhammad concedes consent is not relevant to a charge of gross sexual
imposition where the victim is unaware of the sexual contact as charged under
N.D.C.C. § 12.1-20-03(1)(c), but asserts such evidence should still be admitted as
relevant to his “frame of mind” under the exception of N.D.R.Ev. 412(b)(1)(B).
However, the exception in N.D.R.Ev. 412(b)(1)(B) unambiguously applies only to
situations where consent is relevant. Because Muhammad concedes consent is not at
issue and the exception only applies to situations involving consent, the evidence of
prior sexual encounters is not admissible through N.D.R.Ev. 412(b)(1)(B).
[¶20] The exceptions of N.D.R.Ev. 412(b)(1)(A) and (C), are also inapplicable.
Muhammad conceded he had sexual intercourse with A.I. on the night in question and
as such, the exception under subpart (A) “to prove that someone other than the
defendant was the source of semen, injury, or other physical evidence,” does not
apply. Muhammad has not asserted the exclusion of evidence detailing past sexual
encounters with A.I. violates a constitutional right, and subpart (C) does not apply.
While evidence of prior sexual encounters may be relevant to Muhammad’s state of
mind on the night in question, N.D.R.Ev. 412 prohibits its admission unless it falls
within its well-defined exceptions. The district court did not act in an arbitrary,
unreasonable, or unconscionable manner in excluding the evidence of Muhammad’s
prior sexual contact with the victim, and the exclusion of that evidence was not an
abuse of discretion.
                                         V.
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[¶21] The district court did not abuse its discretion by admitting the recordings of
Muhammad’s interrogation without requiring the State to publish the recordings in
their entirety. The admission of the interrogation recordings without playing them in
open court did not violate Muhammad’s right to a public trial. Lastly, the district
court did not abuse its discretion by denying Muhammad’s motion in limine and
refusing to admit evidence of Muhammad’s prior sexual encounters with the victim.
We affirm the criminal judgment.
[¶22] Jon J. Jensen
      Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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