                Filed 3/13/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                  2019 ND 69


Michael Brewer,                                           Petitioner and Appellee

      v.

State of North Dakota,                                 Respondent and Appellant


                                 No. 20180254


       Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Sonna M. Anderson, Judge.

      AFFIRMED.

      Opinion of the Court by Tufte, Justice.

      Scott O. Diamond, Fargo, N.D., for petitioner and appellee.

       Marina Spahr, Assistant State’s Attorney, Bismarck, N.D. for respondent and
appellant.
                                    Brewer v. State
                                     No. 20180254


       Tufte, Justice.
[¶1]   The State appeals from a district court order finding Michael Brewer had
received ineffective assistance of counsel and granting him a new trial. At trial,
Brewer’s attorney did not object to evidence that was likely inadmissible under
N.D.R.Ev. 404(b). We affirm the district court’s order.
                                             I
[¶2]   Brewer was convicted of two counts of Gross Sexual Imposition (“GSI”). He
appealed the judgment of conviction, and this Court affirmed the judgment. See State
v. Brewer, 2017 ND 95, 893 N.W.2d 184. Both victims of the GSI counts, J.L. and
G.H., were minors. Three interviews were received into evidence: one interview
given by G.H. regarding a separate incident occurring at the home of Brewer and
G.H.’s aunt, Brewer’s girlfriend, prior to the pool incident; and two interviews
regarding the charged incident—one from each of the minor children about
interactions Brewer had with them in a hotel pool. In the interview about the home
incident, G.H. stated Brewer had placed his hand on her buttocks inside her pants but
outside her underwear. In a pretrial motion, Brewer sought to exclude this interview
from trial, arguing it was inadmissible under Rules 403 and 404(b). The district court
found the interview was not unduly prejudicial and would be admissible at trial to
prove motive, intent, plan, absence of mistake or lack of accident under N.D.R.Ev.
404(b)(2). Brewer’s attorney failed to renew his objection to the evidence at trial
when the State offered a recording of the interview into evidence.
[¶3]   After his conviction was affirmed on appeal, Brewer applied for postconviction
relief. In 2018, a postconviction hearing was held. The same district court judge
presided over both the original trial and the postconviction hearing. The court
explained in its postconviction relief order that at trial it was not “given the
opportunity to re-consider [its] ruling after hearing . . . G.H.’s actual court testimony.”

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The district court specifically noted that if an objection had been raised at trial, the
court would “have had the opportunity to view the alleged conduct in light of the
definition of sexual conduct and the actual evidence produced at trial.” The court
stated it likely would have sustained the objection to the interview had the evidence
been objected to at trial.
                                            II
[¶4]   “Postconviction proceedings are civil in nature and governed by the North
Dakota Rules of Civil Procedure.” Broadwell v. State, 2014 ND 6, ¶ 5, 841 N.W.2d
750. The “applicant has the burden of establishing grounds for post-conviction relief.”
Rourke v. State, 2018 ND 137, ¶ 5, 912 N.W.2d 311.
       A trial court’s findings of fact in a post-conviction proceeding will not
       be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P.
       52(a). A finding is clearly erroneous if it is induced by an erroneous
       view of the law, if it is not supported by any evidence, or if, although
       there is some evidence to support it, a reviewing court is left with a
       definite and firm conviction a mistake has been made. Questions of law
       are fully reviewable on appeal of a post-conviction proceeding.
Middleton v. State, 2014 ND 144, ¶ 5, 849 N.W.2d 196; see Rourke, at ¶ 5.
[¶5]   “The issue of ineffective assistance of counsel is a mixed question of law and
fact and is fully reviewable by this Court.” Rourke, 2018 ND 137, ¶ 5, 912 N.W.2d
311. The analysis for ineffective assistance of counsel claims under the United States
Constitution’s Sixth Amendment is well established:
              In order to prevail on a post-conviction relief application based
       on ineffective assistance of counsel, the petitioner must (1) “show that
       counsel’s representation fell below an objective standard of
       reasonableness” and (2) “show that there is a reasonable probability
       that, but for counsel’s unprofessional errors, the result of the
       proceeding would have been different.” Strickland v. Washington, 466
       U.S. 668, 688, 694 (1984).
              Surmounting Strickland’s high bar is never an easy task.
              An ineffective-assistance claim can function as a way to
              escape rules of waiver and forfeiture and raise issues not
              presented at trial or in pretrial proceedings, and so the
              Strickland standard must be applied with scrupulous
              care, lest intrusive post-trial inquiry threaten the integrity

                                            2
               of the very adversary process the right to counsel is
               meant to serve. Even under de novo review, the standard
               for judging counsel’s representation is a most deferential
               one. . . . It is all too tempting to second-guess counsel’s
               assistance after conviction or adverse sentence.
Rourke, at ¶ 5 (quoting Booth v. State, 2017 ND 97, ¶ 7, 893 N.W.2d 186).
                                            III
[¶6]   To succeed on an ineffective assistance of counsel claim, the “defendant
must first overcome the ‘strong presumption’ that trial counsel’s representation fell
within the wide range of reasonable professional assistance, and courts must
consciously attempt to limit the distorting effect of hindsight.” Rourke, 2018 ND 137,
¶ 5, 912 N.W.2d 311. The “objective standard of reasonableness” takes “prevailing
professional norms” into account. Heckelsmiller v. State, 2004 ND 191, ¶ 3, 687
N.W.2d 454 (quoting Strickland, 466 U.S. at 688). There is a wide range of actions
that are considered “reasonable professional assistance.” Heckelsmiller, at ¶ 3
(quoting Strickland, at 689). Simply using an “unsuccessful trial strategy does not
make defense counsel’s assistance defective, and we will not second-guess counsel’s
defense strategy through the distorting effects of hindsight.” Garcia v. State, 2004 ND
81, ¶ 8, 678 N.W.2d 568. When applying prong one of the Strickland test, the
reviewing court looks at the facts known to counsel at the time of the claimed error.
Here, the relevant time is when Brewer’s attorney failed to object when the interview
was offered at trial.
[¶7]   The district court found prong one of the Strickland test was met. We agree.
“A motion in limine seeking an evidentiary ruling must be decided without the benefit
of evaluating the evidence in the context of trial.” State v. Steen, 2015 ND 66, ¶ 5, 860
N.W.2d 470. “A renewed objection at the time the evidence is offered focuses the
court on the objection in the trial context at which time both the relevance and the
potential for prejudice will be more discernible.” Id. Here, the failure to object at trial
deprived the district court of an opportunity to reconsider the issue within the context
of trial. See Brewer, 2017 ND 95, ¶ 5, 893 N.W.2d 184. Objecting within the context


                                            3
of trial allows the court to reevaluate the objectionable evidence in light of the other
evidence admitted thus far in the trial, and to reconsider it, particularly under
N.D.R.Ev. 403. This is a well established principle. N.D.R.Ev. 103(a)(1); see, e.g.,
State v. Schick, 2017 ND 134, ¶ 8, 895 N.W.2d 773; Brewer, at ¶ 4; Brouillet v.
Brouillet, 2016 ND 40, ¶ 32, 875 N.W.2d 485; Steen, at ¶ 5; State v. Doll, 2012 ND
32, ¶ 15, 812 N.W.2d 381; State v. Thompson, 2010 ND 10, ¶ 13, 777 N.W.2d 617.
[¶8]   The attorney’s failure to object was not simply a trial tactic. Brewer’s attorney
testified in the postconviction hearing that he did not object because he “felt that
[he] had adequately formed a record in the hearing on the motion itself [and] did
not need to raise it.” This statement admits a legal error that is below an objective
standard of reasonableness. Beyond the intentional failure to object, the attorney
stated affirmatively “no objection” when the State offered the 404(b) interview. We
conclude failing to object at trial because of reliance on the record made in a pretrial
motion is a basic legal error that satisfies Strickland’s prong one.
[¶9]   Brewer must also satisfy Strickland’s prejudice prong to establish his claim of
ineffective assistance of counsel. “Even where the court finds that counsel’s
representation fell below an objective standard of reasonableness, prejudice is not
normally assumed.” Broadwell, 2014 ND 6, ¶ 7, 841 N.W.2d 750. “To demonstrate
prejudice, the defendant must establish a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different, and
the defendant must specify how and where trial counsel was incompetent and the
probable different result.” Middleton, 2014 ND 144, ¶ 6, 849 N.W.2d 196. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.; Strickland, 466 U.S. at 694.
       [U]nless counsel’s errors are so blatantly and obviously prejudicial that
       they would in all cases, regardless of the other evidence presented,
       create a reasonable probability of a different result, the prejudicial
       effect of counsel’s errors must be assessed within the context of the
       remaining evidence properly presented and the overall conduct of the
       trial.



                                           4
Middleton, at ¶ 13. To evaluate a claim of prejudice, the district court considers not
only the evidence introduced up to that point in the trial, but must consider the
probability of a different result in light of the evidence presented and the overall
conduct of the entire trial before and after the claimed error.
[¶10] Brewer was charged with two counts of GSI under N.D.C.C. § 12.1-20-
03(2)(a), which states a person is guilty of an offense if he “engages in sexual contact
with another,” . . . and the “victim is less than fifteen years old.” “Sexual contact” is
defined as “any touching, whether or not through the clothing or other covering, of
the sexual or other intimate parts of the person, . . . for the purpose of arousing or
satisfying sexual or aggressive desires.” N.D.C.C. § 12.1-20-02(5). When evidence
is improperly admitted, we must consider whether the jury likely reached a different
result due to the presence of the improperly admitted evidence. We do not reweigh
the facts or look at the credibility of the witnesses; we simply evaluate whether the
claimant was prejudiced by the error to the point that our confidence in the outcome
is undermined.
[¶11] “Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance
with the character.” N.D.R.Ev. 404(b)(1). “The rule recognizes the inherent
prejudicial effect prior bad-act evidence may have on the trier of fact and limits the
admissibility of that evidence to specifically recognized exceptions.” State v. Shaw,
2016 ND 171, ¶ 7, 883 N.W.2d 889. Under these exceptions, 404(b)(1) evidence may
be admitted for reasons other than propensity. See N.D.R.Ev. 404(b)(2). The State
gave pretrial notice of its intent to offer the home incident interview without
conceding it was propensity evidence. In its order resolving pretrial motions, the court
denied Brewer’s Rule 403 and 404 motions, finding the evidence was not unduly
prejudicial and was admissible for motive, intent, plan, absence of mistake or lack of
accident.
[¶12] If the evidence had been objected to at trial, its admissibility would have been
determined under a three-step analysis:

                                           5
       1) the court must look to the purpose for which the evidence is
       introduced; 2) the evidence of the prior act or acts must be substantially
       reliable or clear and convincing; and 3) in criminal cases, there must be
       proof of the crime charged which permits the trier of fact to establish
       the defendant’s guilt or innocence independently on the evidence
       presented, without consideration of the evidence of the prior acts.
Shaw, 2016 ND 171, ¶ 8, 883 N.W.2d 889. If the evidence meets this test, the court
may still exclude it “if its probative value is substantially outweighed by a danger
of . . . unfair prejudice.” N.D.R.Ev. 403(a). “Thus, the court must ‘balance the
probative value of the evidence against its prejudicial effect in determining whether
to admit evidence of a defendant’s past crimes.’” Shaw, at ¶ 9 (quoting State v.
Schmeets, 2009 ND 163, ¶ 10, 772 N.W.2d 623). However, the court does not engage
in this process unless the attorney objects to the 404(b) evidence. See State v. Lee,
2004 ND 176, ¶ 10, 687 N.W.2d 237 (“The initiative is placed on the party, not on the
judge to object to offered evidence.”); State v. Balderama, 2004-NMSC-008, ¶ 20,
135 N.M. 329, 334, 88 P.3d 845, 848 (discussing the reasons a trial judge should act
sua sponte only sparingly); People v. Medina, 11 Cal. 4th 694, 727, 906 P.2d 2
(1995), as modified (Jan. 24, 1996) (“the trial court has no sua sponte duty to exclude
evidence or to remedy misconduct”).
[¶13] The district court’s postconviction order explained that if Brewer’s attorney
had objected to the evidence during trial, the court “would likely have ruled
differently on the 404(b) evidence” and sustained the objection. The jury would not
have heard the interview describing allegations that Brewer touched G.H. under her
clothes at Brewer’s house prior to the swimming pool incident. This interview was not
cumulative of other evidence. It described a different incident, in a different location,
sometime prior to the swimming pool incident underlying the charges. Therefore, it
risks significant prejudice to Brewer by implying a propensity for sexual contact with
minors, and perhaps particularly with G.H. The jury’s consideration of such evidence,
especially without a limiting instruction, undermines our confidence in the verdict.
[¶14] The State argues that there was enough other evidence to convict Brewer
regardless of whether the district court would have sustained the objection. However,

                                           6
North Dakota’s rule of evidence 404(b) “acknowledges the inherent prejudicial effect
prior bad act evidence may have on the trier of fact.” State v. Osier, 1997 ND 170,
¶ 4, 569 N.W.2d 441. We have previously “warned of the dangers inherent in
allowing evidence of other acts to show propensity and of tempting a jury to convict
a defendant for actions other than the charged misconduct.” Shaw, 2016 ND 171, ¶ 7,
883 N.W.2d 889.
[¶15] Because his attorney did not object, Brewer had no opportunity for the court
to consider the interview under the required three-step analysis and the N.D.R.Ev. 403
prejudice balancing. We have reversed cases when the 404(b) analysis was not done
properly. See Shaw, 2016 ND 171, 883 N.W.2d 889 (reversed and remanded for a
new trial because of the lack of analysis); Schmeets, 2009 ND 163, 772 N.W.2d 623
(reversed and remanded for a new trial because of a failure to conduct N.D.R.Ev. 403
balancing test coupled with the impossibility of determining whether evidence of prior
felony convictions substantially affected the defendant’s right to a fair trial). Here, in
resolving the pretrial motion, the court found the interview to be admissible as
evidence of motive, intent, plan, absence of mistake or lack of accident in N.D.R.Ev.
404(b)(2). But, as discussed above, the objection must be renewed at trial so the court
can consider the objection in context of trial, as well as to preserve the issue for
appeal. As stated by the district court, the evidence may well have been excluded had
it been analyzed in the context of the trial at the time it was offered.
[¶16] Brewer was prejudiced by the failure to object at trial regardless of whether the
objection would have been sustained or overruled. If the district court had sustained
the objection, the evidence would not have been presented to the jury. On this record,
this appears particularly likely because the court stated that if an objection to the
interview had been raised at trial, the court “would have likely ruled differently on the
404(b) evidence.” If the district court had instead overruled the objection, Brewer’s
attorney would have preserved the issue for appeal by objecting at trial. Because we
have repeatedly expressed grave concern where prior bad acts evidence has been
admitted without the required analysis by the district court, if it had been preserved,

                                            7
this issue would have had sufficient merit on direct appeal to undermine our
confidence in the outcome. See State v. Tutt, 2007 ND 77, ¶ 13, 732 N.W.2d 382
(holding ineffective assistance of counsel constituted prejudice and reversible error
where attorney failed to object to prior conviction evidence being offered with the
same drug involved in both previous and current charge). Although the admissibility
of the interview and the appropriateness of a limiting jury instruction are left for the
district court’s determination in the context of any subsequent retrial, we conclude
Brewer satisfied the prejudice requirement of Strickland’s second prong.
                                           IV
[¶17] The State argues the district court erred by granting postconviction relief on
both convictions rather than limiting relief to Brewer’s GSI conviction for the offense
relating to G.H. Because the incident at the home involved only G.H. and not J.L., the
State argues the jury verdict on the count relating to the offense against J.L. was not
tainted by the 404(b) evidence. We disagree.
[¶18] In Osier, we held that admitting the testimony of Osier’s niece, describing how
Osier sexually molested her eight years prior to the charged offense of sexual contact
with his daughter, was highly prejudicial. 1997 ND 170, ¶ 13, 569 N.W.2d 441. Such
testimony could have affected the jury’s determination, and a different decision might
have been reached had the niece’s testimony not been admitted. Id. Here, there was
a preliminary finding that the interview was admissible under an exception in
404(b)(2). In contrast, the State in Osier did not put forth a non-propensity reason for
admitting the niece’s testimony. Despite that difference, Osier illustrates that evidence
of prior bad acts against one victim may be highly prejudicial at trial for a similar
offense against a different victim. See also State v. Aabrekke, 2011 ND 131, ¶¶ 15-16,
800 N.W.2d 284 (reversed and remanded for new trial because testimony of
defendant’s prior sexual acts with victim’s mother had been admitted without required
404(b) analysis and no limiting instruction was given). We conclude the district court
did not err in granting postconviction relief on both GSI convictions because both
were subject to the same prejudice that Rule 404(b) was formulated to protect against.

                                           8
                                         V
[¶19] We affirm the district court’s order.
[¶20] Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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