               Filed 05/07/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                2020 ND 97

State of North Dakota,                              Plaintiff and Appellant
     v.
Stanley James Kolstad,                             Defendant and Appellee



                               No. 20190228

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Donald Hager, Judge.

REVERSED AND REMANDED.

Opinion of the Court by VandeWalle, Justice.

Megan J. Kvasager Essig, Assistant State’s Attorney, Grand Forks, ND, for
plaintiff and appellant.

David D. Dusek, Grand Forks, ND, for defendant and appellee.
                              State v. Kolstad
                               No. 20190228

VandeWalle, Justice.

     The State of North Dakota appealed from a district court order
dismissing a criminal charge of refusing to submit to a chemical breath test.
We reverse and remand.

                                       I

       In December 2018, Officer Nelson of the University of North Dakota
Police Department conducted a traffic stop of Stanley Kolstad for suspicion of
driving under the influence. Kolstad performed field sobriety tests and a
preliminary breath test (PBT). Prior to performing the PBT, Kolstad informed
Nelson that he had asthma. Nelson testified he was unable to obtain a PBT
result because Kolstad was filling his cheeks with air while performing the
test. Kolstad was arrested for DUI and refusing to submit to a chemical test.

       Kolstad was transported to the UND police station to be given an
Intoxilyzer breath test. Prior to the Intoxilyzer test, Nelson read Kolstad the
implied consent advisory. But, because Nelson was not a certified operator of
the Intoxilyzer machine, Officer Waltz conducted the test. Prior to the test,
Kolstad informed Waltz he had asthma. The Intoxilyzer test results were
deficient. Waltz testified Kolstad was not providing enough air for the test
machine to provide a valid result.

      Kolstad was charged with driving under the influence and refusing to
submit to a chemical test. Kolstad’s counsel made a discovery request to the
State under N.D.R.Crim.P. 16. In the request, Kolstad’s counsel requested
copies of any audio or video recordings taken by police officers. Kolstad’s
counsel also requested the State inform him whether any sound or video
recordings taken of Kolstad were subsequently “altered, edited, destroyed, or
discarded.” The State provided Kolstad’s counsel with dash camera footage
from Nelson’s police car that had been taken at the scene of the arrest, but the
State did not provide any body camera footage from either Nelson or Waltz.



                                       1
       At trial, Nelson testified he read Kolstad the implied consent advisory
from a card issued by the UND police department to all UND police officers.
Nelson could not recall what version of the implied consent advisory was on
the card at the time, but he testified it would be the same advisory that was on
the cards issued to all other UND police officers. Nelson testified that his body
camera had been recording during Kolstad’s performance of the field sobriety
tests, during the PBT, while Nelson read Kolstad the implied consent advisory
prior to the Intoxilyzer test, and while Kolstad performed the Intoxilyzer test.
However, Nelson testified that because of technology problems UND was
having with its servers at the time, his body camera footage was inadvertently
deleted when he attempted to upload it to the servers. Because of this
malfunction, Nelson was unable to recover or view his body camera footage.
Waltz also testified that his body camera was recording for a brief time before
Kolstad performed the Intoxilyzer test. When asked by Kolstad’s counsel if his
body camera footage was successfully uploaded to the server, Waltz replied
that it was.

       Upon learning that Waltz’s body camera footage was successfully
uploaded, Kolstad’s counsel moved to dismiss the case because the State did
not provide any body camera footage in discovery as requested. Outside the
presence of the jury, the court heard argument from the defense and the State.
The defense argued that in its discovery request, it asked for all audio and
video recordings taken by police officers and was provided no body camera
footage by the State. The defense alleged the body camera footage would have
shown the implied consent advisory read by Nelson did not reference urine
tests, which the defense contended would be grounds for suppression under
State v. Vigen, 2019 ND 134, 927 N.W.2d 430. The defense also alleged the
footage would have shown whether Kolstad was refusing the test or was unable
to perform the test due to his asthma. The defense argued the appropriate
remedy was for the alleged discovery violation was dismissal, stating: “For a
violation of discovery the remedy is dismissal. Maybe the alternative is a
continuance to be able to see what the video says, or whatever. But at this late
stage, no, they have to have that provided.”




                                       2
       The State asserted it was never in possession of Nelson’s or Waltz’s body
camera footage and was never able to view any of the footage. The State further
contended that Vigen was inapplicable since it dealt with suppression of a test
result and did not apply to refusal. The State argued that trial continue on
“and that there be no dismissal or continuance.”

      Ultimately, the court granted the defense’s motion to dismiss. The court
stated:

      Unusual situation. Usually doesn’t crop up within about the last
      hour of trial, that there is a video that some witness testified to.
      Officer Waltz certainly did testify that there was a video; that he
      had a body cam, which may go to the refusal itself. Court is going
      to grant the Motion to Dismiss Count II [refusal], because at this
      late stage it would have been a suppression motion otherwise; that
      entire test would have been a suppression.

After dismissing the refusal charge, the court took a recess.

       Upon returning from the recess, the State made a motion for
reconsideration, and additional testimony was taken from Waltz. Waltz
testified that even though his body camera footage was successfully uploaded,
the footage, like Nelson’s, was inadvertently deleted and unable to be viewed
because of the technology problems with the UND servers at the time. On
cross-examination, Waltz was asked if he ever notified the State that body
camera footage had been recorded but was deleted because of technology
problems. Waltz replied that he verbally informed the State approximately a
week before trial that body camera footage was recorded but was deleted.
Waltz further testified that every UND police officer was distributed the same
card containing the same implied consent advisory, and at the time of Kolstad’s
arrest, the implied consent advisory contained in the card only referenced
breath tests, not urine tests.

      The court heard additional argument. The defense argued that had the
State disclosed that body camera footage had been recorded but was deleted
because of technology problems with the UND servers, the defense had experts
readily available to try and recover the deleted footage. The defense


                                       3
maintained the only remedy for the alleged discovery violation was dismissal.
The State again argued it was never in possession of the body camera footage
and was never able to view the footage, and that dismissal was not the proper
remedy for the alleged discovery violation. The court denied the State’s motion
for reconsideration, and trial was adjourned until the following day.

      On the second day of trial, the court clarified that “the ruling to dismiss
the charge was based on discovery violations, Rule 16, not as a motion in limine
to suppress.” The court also offered the following explanation as to why
dismissal was appropriate:

      One thing I’m going to say for the record here, it’s starting to
      become an issue with discovery on these body cams, and stuff. Mr.
      Dusek yesterday argued that the State has, at least, control in
      some way of evidence, even though it’s in the hands of law
      enforcement. When those discovery responses go out, at that time
      the State should be—or any party should be contacting their
      witnesses that may hold that evidence to find out what the
      availability is. And I think yesterday the statement was, that that
      didn’t happen until a week before trial. I can understand that you
      don’t want to invest a lot of time into your witnesses before you go
      to trial in the event of a plea agreement. However, in order to
      respond to discovery, you have to do that. It’s not a good practice.
      It’s going to lead to stuff like this, that turned into a circus
      yesterday. This should have been a very clear-cut thing where we
      could have had—that’s why I pushed getting motions in limine in,
      because none of this stuff would have come up. You got a jury that
      should have been here only a day that weren’t here. We probably
      would have only heard one witness. And, actually, the end result
      would have been, I probably would have given a continuance so
      that Mr. Dusek would then try to retrieve those body cams. But he
      had a valid point, that on refusal to test the actual, quote, “refusal
      behavior” is pretty prejudicial if you can prove otherwise on a tape,
      especially if you are using a medical excuse for it. Typically, on
      other things, probably not as much. Officer Nelson’s body cam, to
      me, is not as prejudicial not having it, because you can hear voices
      on the tape. He was here to testify. He testified fully. I gave both
      of you an opportunity, before we rested yesterday, for further
      examination and neither one of you took it. So as far as I’m
      concerned, all the evidence is in.

                                        4
       On appeal the State argues the alleged discovery violation does not rise
to a constitutional violation of Kolstad’s due process rights, and the district
court abused its discretion in dismissing the refusal charge. Kolstad argues the
district court’s order dismissing the refusal charge is not appealable, and if it
is appealable, the court did not abuse its discretion in dismissing the charge.

                                        II

       In a criminal action, the State’s only right of appeal is expressly granted
by statute. State v. Bernsdorf, 2010 ND 123, ¶ 5, 784 N.W.2d 126. Section 29-
28-07(1), N.D.C.C., allows the State to appeal from “[a]n order quashing an
information or indictment or any count thereof.” However, “it is well
established that the State cannot appeal from an acquittal.” Bernsdorf, at ¶ 5
(citing State v. Bettenhausen, 460 N.W.2d 394, 395 (N.D. 1990)). We have
distinguished between an order quashing an information and a judgment of
acquittal:

      This question is not controlled by the form of the trial court’s
      ruling. Rather, to determine what constitutes an acquittal, as
      distinguished from a dismissal quashing the information, we look
      at the substance of the judge’s ruling to determine whether it
      actually represents a resolution of some or all of the factual
      elements of the offense charged. If the trial court’s decision is
      based upon legal conclusions rather than a resolution of some or
      all of the factual elements of the events charged, the ruling
      amounts to a dismissal or a quashing of the information from
      which the State has a right to appeal.

State v. Erickson, 2011 ND 49, ¶ 7, 795 N.W.2d 375 (internal citations and
quotations omitted) (quoting State v. Deutscher, 2009 ND 98, ¶ 8, 766 N.W.2d
442).

      The district court explicitly stated at trial “the ruling to dismiss the
charge was based on discovery violations . . . .” The court’s order was based on
a legal conclusion that the State had committed a discovery violation. The court
did not resolve any factual elements of the refusal charge. The order dismissing
the refusal charge is appealable.



                                        5
                                       III

       The alleged discovery violation by the State raises two issues: (1)
whether Kolstad’s due process rights were violated as a result of the alleged
discovery violation; and (2) whether the district court abused its discretion in
dismissing the charge after determining the State committed a discovery
violation.

                                        A

      Due process issues may be raised when a discovery violation has
occurred.

      [T]his Court [has] summarized three categories of cases in which
      courts “have attempted to analyze an accused’s right to due process
      when prosecutors fail[ed] to provide evidence to the defense which
      [was] within, or potentially within, their purview.” The three
      categories of cases involving the conduct of the State, which
      resulted in the loss of evidence, include: “(1) the [S]tate’s failure
      to collect evidence in the first instance, (2) the [S]tate’s failure
      to preserve evidence once it has been collected, and (3) the
      [S]tate’s suppression of evidence which has been collected and
      preserved.”

State v. Schmidt, 2012 ND 120, ¶ 12, 817 N.W.2d 332 (emphasis in original)
(quoting State v. Steffes, 500 N.W.2d 608, 612 (N.D. 1993)). Categories two and
three are implicated here.

                                        1

       The second category “involves the failure to preserve evidence which has
been collected.” Steffes, 500 N.W.2d at 613. Under the second category, “unless
a criminal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due process
of law.” Id. (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)); State v.
Haibeck, 2006 ND 100, ¶ 7, 714 N.W.2d 52. “Bad faith, as used in cases
involving destroyed evidence or statements, means that the state deliberately
destroyed the evidence with the intent to deprive the defense of information;
that is, that the evidence was destroyed by, or at the direction of, a state agent

                                        6
who intended to thwart the defense.” State v. Ostby, 2014 ND 180, ¶ 15, 853
N.W.2d 556 (quoting Steffes, at 613). An act of bad faith on the part of the police
is relevant because it leads to an inference that the evidence is exculpatory.
See Steffes, at 613.

      Here, there is no evidence of bad faith on the part of Officers Nelson or
Waltz, the UND Police Department, or the State. The officers’ body camera
footage was not deliberately destroyed by Nelson, Waltz, or the State’s
Attorney to deprive Kolstad of its contents. Even though the body camera
footage had been collected, the State did not fail to preserve the evidence in
bad faith.

                                         2

       Category three is “the [S]tate’s suppression of evidence which has been
collected and preserved.” Schmidt, 2012 ND 120, ¶ 16, 817 N.W.2d 332. In
Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court
held that suppression by the prosecution of evidence favorable to an accused
violates due process if the evidence is material to guilt or punishment
irrespective of the good faith or bad faith of the prosecution. City of Grand
Forks v. Ramstad, 2003 ND 41, ¶ 9, 658 N.W.2d 731. “To establish a Brady
violation, the burden is upon the defendant to show: ‘(1) the government
possessed evidence favorable to the defendant; (2) the defendant did not
possess the evidence and could not have obtained it with reasonable diligence;
(3) the prosecution suppressed the evidence; and (4) a reasonable probability
exists that the outcome of the proceedings would have been different if the
evidence had been disclosed.’” Id. (quoting State v. Goulet, 1999 ND 80, ¶ 15,
593 N.W.2d 345).

      Evidence is favorable to the defendant if it is exculpatory or because it is
impeaching. Id. Exculpatory evidence is “[e]vidence tending to establish a
criminal defendant’s innocence.” Evidence, Black’s Law Dictionary (11th ed.
2019). For purposes of this case, we assume the body camera footage was
favorable to the defense.




                                        7
     Prong two has also been satisfied. Kolstad did not possess the body
camera footage, and the only way he could have obtained the footage was by
requesting it from the State.

       Under prong three, the State suppresses evidence when it “collects and
preserves evidence, but withholds that evidence when the defendant requests
it, or when it otherwise becomes material to the defense.” Steffes, 500 N.W.2d
at 612. Officers Nelson and Waltz collected body camera footage. However, the
footage was never preserved because, due to technology problems at the time,
it was inadvertently deleted when it was uploaded to the server. The body
camera footage was never able to be viewed by Nelson, Waltz, or the State’s
Attorney. With the body camera footage having been deleted, there was no
preserved evidence for the State to suppress. Therefore, prong three has not
been satisfied.

       The State’s failure to inform the defense that body camera footage had
been collected but was inadvertently deleted after the defense specifically
requested such information does not change our analysis of prong three. Here,
the State’s failure to disclose information requested by the defense was a
discovery violation, but it does not amount to a Brady violation because the
audio and video evidence requested by the defense had not been preserved. For
the State to commit a Brady violation, the evidence suppressed must have been
collected and preserved. Evidence that has not been collected or preserved
raises issues involving categories one and two but does not invoke Brady or an
analysis under category three.

      Because prong three has not been satisfied, we need not decide whether
a reasonable probability exists that the outcome of the proceedings would have
been different had the evidence been disclosed.

      Kolstad’s due process rights were not violated as a result of the
prosecution’s failure to provide the defense with evidence that was potentially
within its purview. Under category two, the State did not in bad faith fail to
preserve Nelson’s or Waltz’s body camera footage. And because the officers’




                                      8
body camera footage was not preserved, the State did not suppress the body
camera footage that had been collected under category three.

                                       B

       The State argues dismissing the refusal charge because of the discovery
violation was an abuse of discretion. District court decisions regarding
discovery violations are reviewed under the abuse of discretion standard. State
v. Rolfson, 2018 ND 51, ¶ 6, 907 N.W.2d 780 (citing State v. Horn, 2014 ND
230, ¶ 7, 857 N.W.2d 77; State v. Loughead, 2007 ND 16, ¶ 17, 726 N.W.2d
859). “A district court abuses its discretion if it acts in an arbitrary,
unreasonable, or unconscionable manner, if its decision is not the product of a
rational mental process leading to a reasoned determination, or if it
misinterprets or misapplies the law.” Id. (citing State v. Myers, 2017 ND 265,
¶ 6, 903 N.W.2d 520).

      Under N.D.R.Crim.P 16(a)(1)(D), the State is required to provide the
defendant with body camera footage if it is within the State’s possession,
custody, or control and has been requested by the defense. The State is under
a continuing duty to disclose discovery materials requested by the defense.
N.D.R.Crim.P. 16(c). If a party fails to comply with a discovery request, the
court may:

      (i) order that party to permit the discovery or inspection: specify
      its time, place and manner; and prescribe other just terms and
      conditions;
      (ii) grant a continuance;
      (iii) prohibit that party from introducing the undisclosed evidence;
      (iv) relieve the requesting party from making a disclosure required
      by this rule; or
      (v) enter any other order that is just under the circumstances.

N.D.R.Crim.P. 16(d)(2). Regarding discovery violations under Rule 16, we have
stated:

            Rule 16 is not a constitutional mandate, but is an
      evidentiary discovery rule designed to further the interests of
      fairness. Noncompliance results in a constitutionally unfair trial


                                       9
      only where the barriers and safeguards are so relaxed or forgotten
      the proceeding is more of a spectacle or a trial by ordeal than a
      disciplined contest. If the error is not of constitutional magnitude,
      it is reversible only upon a showing that the defendant has been
      denied substantial rights. No substantial rights are affected when
      it is clear that the defendant was not significantly prejudiced by
      the discovery violation.
             When apprised of a discovery violation, a trial court is
      authorized by Rule 16(d)(2), N.D.R.Crim.P., to use various
      remedies, but should impose the least severe sanction that will
      rectify the prejudice, if any, to the opposing party.

State v. McNair, 491 N.W.2d 397, 400 (N.D. 1992) (internal citations and
quotations omitted). In civil cases, we have said that dismissal of an action for
discovery violations is one of the most severe sanctions available to a court,
and should only be imposed if the violation is deliberate or in bad faith. See,
e.g., Lang v. Bank of North Dakota, 530 N.W.2d 352, 355 (N.D. 1995); Dakota
Bank & Trust Co. of Fargo v. Brakke, 377 N.W.2d 553, 556 (N.D. 1985).
Accordingly, dismissal “should be used sparingly and only in extreme
situations and should not be used if an alternative, less drastic sanction is
available and just as effective.” Dakota Bank & Trust Co., at 556 (citing
Thompson v. Ziebarth, 334 N.W.2d 192 (N.D.1983); St. Aubbin v. Nelson, 329
N.W.2d 874 (N.D.1983)).

       Though much of the discussion at trial surrounding dismissal of the
refusal charge involved suppression of the refusal under State v. Vigen, 2019
ND 134, 927 N.W.2d 430, the district court clarified its statements from the
first day of trial by stating it dismissed the refusal charge because of a
discovery violation: “the ruling to dismiss the charge was based on discovery
violations, Rule 16, not as a motion in limine to suppress.” Because the alleged
discovery violation here was not a violation of Kolstad’s constitutional due
process rights, the question becomes whether the violation significantly
prejudiced Kolstad. In its discovery request, the defense requested any sound
or video recordings taken of Kolstad that were subsequently “altered, edited,
destroyed, or discarded.” The State committed a discovery violation by failing
to inform the defense that body camera footage had been collected but was
inadvertently deleted due to technology problems. Kolstad was significantly

                                       10
prejudiced by the violation because the deleted video footage may have proved
or disproved Kolstad’s defense that he could not perform the breath test
because of his asthma and whether he was read the correct implied consent
advisory. Therefore, we must decide whether the district court imposed the
least severe sanction to rectify the prejudice Kolstad sustained as a result of
the violation.

      Because there was no evidence of bad faith or a deliberate attempt to
thwart the defense on behalf of the State, the district court should have
considered an alternative, less severe sanction other than dismissal to remedy
the discovery violation. At trial, the defense and the court both mentioned a
continuance as a possible remedy for the discovery violation. However, the
court did not inquire into whether a continuance or an alternative sanction
was available or appropriate. Rather, the district court stated dismissal was
appropriate because the case was in the midst of trial and because the defense
did not have an opportunity to recover the deleted footage prior to trial.

       Being in the midst of trial was not alone a sufficient reason for the court
to not consider a continuance or other less severe sanction. See State v. Bonner,
361 N.W.2d 605, 612 (N.D. 1985); State v. Mbulu, 2018 ND 73, ¶ 1, 908 N.W.2d
732 (per curiam); see also City of Grand Forks v. Ramstad, 2003 ND 41, ¶ 32,
658 N.W.2d 731 (Maring, J., concurring specially). Furthermore, the court did
not inquire into whether the defense was reasonably likely to recover the
deleted footage or the time it would take the defense to recover the footage if it
could be recovered. Giving the defense an opportunity to obtain the deleted
body camera footage may have rectified any prejudice sustained by the defense.

      After reviewing the entire record, there is nothing to indicate the district
court adequately considered an alternative or less severe sanction to dismissal.
The court resorted to the most severe sanction available to it. The court erred
by not considering whether a continuance or other less severe sanction was
appropriate.




                                       11
                                      IV

      Because the district court abused its discretion by failing to consider an
alternative, less severe sanction other than dismissing the refusal charge, the
remaining issues raised on appeal are unnecessary to our decision, and we will
not address them.

                                       V

     The district court’s order dismissing the refusal charge is reversed, and
we remand to the district court for further proceedings.

      Gerald W. VandeWalle
      Jon J. Jensen, C.J.
      Daniel J. Crothers
      Jerod E. Tufte
      Lisa Fair McEvers




                                      12
