                Filed 1/15/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                       STATE OF NORTH DAKOTA


                                   2019 ND 28


State of North Dakota,                                       Plaintiff and Appellee

      v.

Michael Eric Foster,                                      Defendant and Appellant


                                  No. 20180098


      Appeal from the District Court of Pembina County, Northeast Judicial District,
the Honorable Laurie A. Fontaine, Judge.

      AFFIRMED.

      Opinion of the Court by Tufte, Justice.

       Jonathan R. Byers (argued), Assistant Attorney General, Bismarck, N.D., and
Rebecca L. Flanders (appeared), Pembina County State’s Attorney, Cavalier, N.D.,
for plaintiff and appellee.

      Michael R. Hoffman, Bismarck, N.D., for defendant and appellant.
                                   State v. Foster
                                    No. 20180098


       Tufte, Justice.
[¶1]   Michael Eric Foster appeals from a criminal judgment finding him guilty of
one count of conspiracy to commit criminal mischief, one count of criminal mischief,
and one count of criminal trespass. On appeal, Foster argues that the district court
erred in admitting or excluding certain evidence and that there was insufficient
evidence to support the criminal mischief and conspiracy convictions. We affirm the
district court.
                                           I
[¶2]   On October 11, 2016, Foster and a co-defendant went to a Keystone pipeline
valve site located in Pembina County. Foster used bolt-cutters to cut the padlock on
the gate as well as the padlock and chain on the valve itself. After a call was made to
warn TransCanada Pipelines Limited (“TransCanada”) that someone was about to
close a manual valve on the Keystone pipeline, Foster closed the valve, halting the
flow of oil. TransCanada performed an emergency shutdown of the pipeline, which
then remained closed for over 7 hours. The State charged Foster with criminal
mischief, conspiracy to commit criminal mischief, criminal trespass, and several other
charges not at issue here. During the jury trial, the State called Trevor Pollock, a
manager in TransCanada’s pipeline operation control center. Foster argues that the
State failed to provide sufficient evidence to prove he intentionally caused a financial
loss greater than $10,000 and intentionally agreed to do so with another individual
and that the district court abused its discretion in admitting and excluding several
items of evidence.
                                           II
[¶3]   Foster argues that Pollock’s testimony included inadmissible hearsay. He
further argues this hearsay testimony was the only evidence the State produced to
prove a financial loss greater than $10,000. Thus he argues the evidence was

                                           1
insufficient. A “district court exercises broad discretion in determining whether
to admit or exclude evidence, and its determination will be reversed on appeal only
for an abuse of discretion.” State v. Doppler, 2013 ND 54, ¶ 7, 828 N.W.2d 502
(quoting State v. Chisholm, 2012 ND 147, ¶ 10, 818 N.W.2d 707). “A district court
abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or
unreasonably, or it misinterprets or misapplies the law.” Id. Thus, we apply the abuse
of discretion standard when “reviewing a district court’s evidentiary rulings under the
hearsay rule.” State v. Azure, 2017 ND 195, ¶ 6, 899 N.W.2d 294 (quoting State v.
Vandermeer, 2014 ND 46, ¶ 6, 843 N.W.2d 686).
[¶4]   First, Foster argues Pollock testified to opinion testimony based on hearsay.
A lay witness is permitted to testify if competent and “if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the matter.”
N.D.R.Ev. 601, 602. “Evidence to prove personal knowledge may consist of the
witness’s own testimony.” N.D.R.Ev. 602. Testimony that falls within the personal
knowledge of the lay witness is different from opinion testimony, which is governed
by N.D.R.Ev. 701. Here, Pollock testified as a lay witness to facts within his personal
knowledge, not opinions. Under the North Dakota Rules of Evidence, lay witnesses
may testify to observations or facts within their personal knowledge. Such testimony
does not constitute opinion testimony. See State v. Louser, 2017 ND 10, ¶ 9, 890
N.W.2d 1 (discussing types of witness testimony and stating lay witnesses may testify
to their direct observation or their opinion).
[¶5]   Pollock’s testimony was not expert testimony because it was not “based on
scientific, technical, or other specialized knowledge.” State v. Crissler, 2017 ND 249,
¶ 7, 902 N.W.2d 925 (citing State v. Evans, 2013 ND 195, ¶ 17, 838 N.W.2d 605).
A witness is qualified as an expert “if the testimony is rooted exclusively in his
expertise or is not a production of his investigation but instead reflects his specialized
knowledge.” Louser, 2017 ND 10, ¶ 9, 890 N.W.2d 1 (quoting State v. Saulter, 2009
ND 78, ¶ 15, 764 N.W.2d 430) (emphasis removed). However, testimony “relating



                                            2
to purely physical facts requires no special qualification and does not come within the
scope of expert opinion evidence.” State v. Engel, 289 N.W.2d 204, 208 (N.D. 1980).
[¶6]   Pollock testified about his observations and activities as operations coordinator
in the pipeline operation control center on the day Foster closed the pipeline valve.
Pollock testified to the jury about his duties in the control center, including
monitoring pressure at various points in the system, monitoring and controlling pumps
and automated valves, reviewing electronic logs of system operation, participating in
operations meetings, responding to problems or issues, reviewing incidents, and, in
general, operating the pipeline to achieve a target flow volume. Pollock testified he
is one of the record custodians for information kept about pipeline operations. Pollock
explained the records are automatically generated and stored in a database, and he
reviews the records during unplanned changes such as the unplanned outage at issue
here. Pollock knew shippers’ requests to transport oil exceeded pipeline capacity
because he operated the pipeline consistent with his orders to operate at maximum
capacity continuously. He testified “[w]e are 24 hour 7 days a week, we’re scheduled
to ship higher than we’ve got capacity for, so if there’s any downtime there isn’t
sprint capacity to catch up. . . . [I]f we are down we don’t have the availability to
make up that time.”
[¶7]   The day of the incident, Pollock was on duty and responsible for operations.
Pollock testified the target amount of oil that the pipeline transports is 591,000 barrels
per day based on 365 days a year, taking into account shippers’ requests, scheduled
maintenance, and unscheduled shutdowns. Pollock testified the actual flow rate on
October 11, before the valve was closed, was 634,000 barrels per day. He relied on
State’s Exhibit 21, a computer-generated log of flow rate from the company’s
database that contains regularly kept records of TransCanada’s information since
2010, which was admitted into evidence. Here, because Pollock was responsible for
monitoring and setting flow rates as manager, the district court did not abuse its
discretion in permitting him to testify to his personal knowledge about the flow rates,



                                            3
transport capacity, duration of the outage, and the volume of oil which TransCanada
lost the opportunity to transport.
[¶8]   To establish a financial loss greater than $10,000, the State relied on Pollock’s
testimony in which he multiplied barrel flow per minute times the number of minutes
the line was shut down times the shipping cost per barrel. Pollock testified to the
shipping cost per barrel based on information he received from another TransCanada
department. Pollock did not testify from personal knowledge of the amounts
TransCanada billed or received for shipping oil. He received this information from
someone else and relied on the information as true to establish his loss calculation.
At trial, Foster objected to this testimony as hearsay. The district court overruled the
objection, reasoning that the information was obtained from business records and
thus was admissible under N.D.R.Ev. 803(6). The State did not offer the records as
exhibits or provide any copies to Foster before or at trial. Additionally, Pollock is not
the custodian of these financial records. Foster raises a serious question as to whether
Pollock’s testimony regarding the shipping cost per barrel was inadmissible hearsay,
but we do not decide this question because even if that testimony should not have
been admitted, any error is harmless because other evidence fully supports an
inference of loss greater than $10,000. State v. Patterson, 2014 ND 193, ¶ 7, 855
N.W.2d 113 (“Reversal of a conviction is warranted only if the admitted testimony
is so prejudicial that substantial injury occurred and absent the error a different
decision would have resulted.”) (citation omitted).
[¶9]   A harmless error is “[a]ny error, defect, irregularity or variance that does not
affect substantial rights [and it] must be disregarded.” N.D.R.Crim.P. 52(a). “Stated
simply, harmless error is error that is not prejudicial.” Hamilton v. State, 2017 ND 54,
¶ 8, 890 N.W.2d 810 (quoting State v. Acker, 2015 ND 278, ¶ 12, 871 N.W.2d 603).
If evidence is admitted in error, “this Court will consider the entire record and decide
in light of all the evidence whether the error was so prejudicial the defendant’s rights
were affected and a different decision would have occurred absent the error.” Azure,
2017 ND 195, ¶ 22, 899 N.W.2d 294 (quoting State v. Doppler, 2013 ND 54, ¶ 21,

                                           4
828 N.W.2d 502). Cumulative evidence to properly admitted evidence does not
“affect substantial rights of the parties, and accordingly, is harmless error.” Azure, at
¶ 22 (quoting State v. Leinen, 1999 ND 138, ¶ 17, 598 N.W.2d 102).
[¶10] The standard of review for evidentiary questions is deferential and limited. State
v. Vetter, 2013 ND 4, ¶ 17, 826 N.W.2d 334 (citing State v. Bauer, 2010 ND 109, ¶ 7,
783 N.W.2d 21).
       In reviewing the sufficiency of the evidence to convict, we look only
       to the evidence most favorable to the verdict and the reasonable
       inferences therefrom to see if there is substantial evidence to warrant
       a conviction. A conviction rests upon insufficient evidence only when
       no rational fact finder could have found the defendant guilty beyond a
       reasonable doubt after viewing the evidence in a light most favorable
       to the prosecution and giving the prosecution the benefit of all
       inferences reasonably to be drawn in its favor.
Crissler, 2017 ND 249, ¶ 10, 902 N.W.2d 925 (quoting State v. Rourke, 2017 ND
102, ¶ 6, 893 N.W.2d 176). Further, this Court does not reweigh evidence or judge the
credibility of witnesses. State v. Hannah, 2016 ND 11, ¶ 7, 873 N.W.2d 668 (quoting
State v. Rufus, 2015 ND 212, ¶ 6, 868 N.W.2d 534). Neither will this Court “disturb
the verdict and judgment even though the trial included conflicting evidence and
testimony.” Azure, 2017 ND 195, ¶ 25, 899 N.W.2d 294 (quoting State v. Nakvinda,
2011 ND 217, ¶ 12, 807 N.W.2d 204).
[¶11] “A conviction may be justified on circumstantial evidence alone if the
circumstantial evidence has such probative force as to enable the trier of fact to find
the defendant guilty beyond a reasonable doubt.” Crissler, 2017 ND 249, ¶ 10, 902
N.W.2d 925 (quoting Rourke, 2017 ND 102, ¶ 6, 893 N.W.2d 176). “[C]ircumstantial
evidence is often the only way to prove criminal intent.” State v. Sabo, 2007 ND 193,
¶ 20, 742 N.W.2d 812 (citing State v. Stensaker, 2007 ND 6, ¶ 21, 725 N.W.2d 883).
A “jury may find a defendant guilty even though evidence exists which, if believed,
could lead to a not guilty verdict.” Crissler, at ¶ 10. “[J]uries may draw rational
inferences based upon common knowledge in reaching a verdict.” Hannah, 2016 ND
11, ¶ 9, 873 N.W.2d 668 (citing State v. Bitz, 2008 ND 202, ¶ 10, 757 N.W.2d 565).


                                           5
However, a “jury is not justified in convicting a defendant on the basis of mere
suspicion, speculation, conjecture, passion, prejudice, or sympathy.” Hannah, at ¶ 11
(quoting State v. Miller, 357 N.W.2d 225, 227 (N.D. 1984)). Therefore, this Court’s
role in reviewing a jury verdict for sufficiency of the evidence is to “merely review
the record to determine if the record reflects competent evidence that allowed the jury
to draw an inference reasonably tending to prove guilt and fairly warranting a
conviction beyond a reasonable doubt.” State v. Miller, 357 N.W.2d 225, 226 (N.D.
1984) (citing State v. Lawenstein, 346 N.W.2d 292, 293 (N.D. 1984)). Foster,
however, must show “the evidence, when viewed in the light most favorable to the
verdict, permits no reasonable inference of guilt.” Azure, 2017 ND 195, ¶ 25, 899
N.W.2d 294 (quoting State v. Gonzalez, 2000 ND 32, ¶ 14, 606 N.W.2d 873). Here,
the jury had ample evidence from which it could infer the damages to TransCanada,
both intended and actual, were greater than $10,000.
[¶12] The State did not have to prove a specific dollar amount, only that the amount
was greater than $10,000.1 In addition to Pollock’s testimony, the evidence included
twenty-two videos and a notebook. The jury considered video of Foster stating: “I’m
in North Dakota, and I’m going to prison. I know that,” and “If you have ever done
anything like this, it feels so great. . . . It’s hard to describe. . . . I’m trying to think
when I’ve felt like this—a few magical dates in my life. . . . This feels so good—to
be doing something big, to be doing something foolish, to be doing something
impossible—about the most important thing humans have ever faced.” There was also
a video with Foster and his co-defendant discussing how to “choreograph the activity
so it will make the greatest impression on the live-stream video.” These videos
showed the jury Foster’s recognition of the magnitude of his actions. Foster’s intent
to do “something big” combined with acts he carried out to cause that effect support


       1
        It should be noted that the State unnecessarily increased its burden in proving
intent by charging Foster with “intentionally causing a financial loss greater than
$10,000,” thus requiring intent as to the amount of damage instead of only to the act
of criminal mischief causing the damage, as required by N.D.C.C. § 12.1-21-05(2)(a).

                                             6
an inference that he achieved his intended result. Additionally, the evidence showed
his actions were part of a coordinated effort through Climate Direct Action, which
released a video showing Foster turning off the valve and touting the incident as the
“biggest coordinated move on U.S. energy infrastructure ever undertaken by
environmental protesters.”
[¶13] Further, the jury was instructed on “Matters of Common Knowledge and
Science,” in which the jurors were informed that “you may apply to the facts and
circumstances matters of common knowledge, and draw reasonable inferences from
them, as if they were fully proved by direct evidence.” The jury could infer from this
evidence that Foster intended to create a large effect, greater than $10,000, against
TransCanada. A rational fact-finder reasonably could infer on the basis of common
sense and the testimony presented that the cost to ship 200,000 barrels of oil from
Alberta, Canada, to Cushing, Oklahoma, is greater than $10,000. If a disruption of
several hours did not cause more than $10,000 in losses, the jury could infer it would
not be the “big,” “foolish,” and “impossible” action Foster intended against a multi-
billion dollar, publicly traded, international pipeline company. Thus, even if Pollock’s
testimony regarding the shipping price per barrel was inadmissible hearsay, its
presentation to the jury was harmless error in view of the other evidence supporting
the verdict on that element.
                                          III
[¶14] Foster argues the State presented insufficient evidence of his intent to cause a
financial loss greater than $10,000. As discussed above, there is ample evidence in
addition to Pollock’s testimony about shipping costs from which a jury could infer
an intent to cause a financial loss to TransCanada greater than $10,000. Under the
deferential standard of review, the evidence is sufficient.
                                          IV
[¶15] Foster argues the State presented insufficient evidence that he had an
agreement to intentionally cause loss greater than $10,000. The State’s evidence is
sufficient to prove Foster agreed with his co-defendant to “intentionally cause

                                           7
financial loss greater than $10,000.” See footnote 1 above. Section 12.1-06-04(1),
N.D.C.C., provides:
       A person commits conspiracy if he agrees with one or more persons to
       engage in or cause conduct which, in fact, constitutes an offense or
       offenses, and any one or more of such persons does an overt act to
       effect an objective of the conspiracy. The agreement need not be
       explicit but may be implicit in the fact of collaboration or existence of
       other circumstances.
“An agreement may be implied based on the parties’ conduct.” State v. Clark, 2015
ND 201, ¶ 10, 868 N.W.2d 363 (quoting State v. Cain, 2011 ND 213, ¶ 10, 806
N.W.2d 597). But, an “agreement is not established by mere knowledge of an illegal
activity, by mere association with other conspirators, or by mere presence at the scene
of the conspiratorial deeds.” Id. This Court has stated that “an agreement may be
established by engaging in conduct while the offense is ongoing.” Id. (citing Cain, at
¶ 12). In short, to “be guilty of conspiracy, one need only ‘believe that he was
participating in an agreement with another to engage in criminal conduct, manifested
by some overt act.’” Interest of J.A.G., 552 N.W.2d 317, 320 (N.D. 1996) (quoting
State v. Rambousek, 479 N.W.2d 832, 835 (N.D. 1992)).
[¶16] The evidence of the agreement element of the conspiracy charge was
compelling. A video played for the jury showed Foster and his co-defendant in a car,
talking, while traveling on I-29 northbound to Pembina County. The two men were
discussing plans for Foster to “chain the wheel shut after he has broken into the
fenced enclosure and closed the valve wheel.” Further, inside the notebook were
sticky notes with names of multiple people associated with actions that were part of
the coordinated event. Our review of the evidence in the light most favorable to the
verdict shows the evidence was sufficient to convict Foster of conspiring with his co-
defendant to cause a financial loss greater than $10,000 to TransCanada.
                                          V
[¶17] Foster argues that his Exhibit B was erroneously kept out of evidence. The
exhibit states, “Michael Foster acknowledges he knew that the pipeline shutdown
would be temporary . . . they were merely trying to raise public awareness . . . The

                                          8
valve-turners could not reasonably believe their illegal actions would have any
long-term effect on the flow of tar sands oil into the U.S.” The exhibit was created by
Foster from the State’s Brief in Support of Motion in Limine. Under N.D.R.Ev. 403,
the “court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: . . . (b) confusing the issues.”
“The admission or exclusion of physical evidence is within the sound discretion of the
district court, and the district court’s decision thereon will not be disturbed on appeal
absent an abuse of discretion.” State v. Cook, 2018 ND 100, ¶ 12, 910 N.W.2d 179
(quoting State v. Haugen, 448 N.W.2d 191, 196 (N.D. 1989)); Chisholm, 2012 ND
147, ¶ 10, 818 N.W.2d 707.
[¶18] Statements made by attorneys are not evidence. See King v. Railway Express
Agency, 107 N.W.2d 509, 517 (N.D. 1961). Much of the exhibit simply repeated
statements by an attorney, which are not admissible evidence. The first sentence in
the exhibit was a report of Foster’s own statement, which he could have personally
testified to at trial. The exhibit was taken from an argument the State made in a
motion in limine on why Foster could not use the necessity defense, which was no
longer an issue at trial. For this reason, the jury could have been confused by the
exhibit had it been admitted into evidence. The district court did not abuse its
discretion in sustaining the State’s objection to enter Exhibit B into evidence.
                                           VI
[¶19] Foster makes an argument regarding the documents Pollock has access to,
and testified about, under the Sixth Amendment Confrontation Clause. We have
considered this argument and conclude it is without merit.
                                          VII
[¶20] There was no abuse of discretion, and the evidence was sufficient for a jury to
have found Foster guilty beyond a reasonable doubt. We affirm the district court’s
judgment.
[¶21] Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers

                                           9
Jon J. Jensen
Gerald W. VandeWalle, C.J.




                             10
