               Filed 02/27/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 48

State of North Dakota,                                    Plaintiff and Appellee
     v.
Kelvin Antone McAllister,                           Defendant and Appellant

                                No. 20190188

Appeal from the District Court of Mountrail County, North Central Judicial
District, the Honorable Gary H. Lee, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Wade G. Enget, Stanley, ND, for plaintiff and appellee.

Eric P. Baumann, Minot, ND, for defendant and appellant.
                              State v. McAllister
                                 No. 20190188

Jensen, Chief Justice.

[¶1] Kelvin McAllister appeals from a criminal judgment and order for
restitution after a jury found him guilty of assault. He raises various claims
of error based on the proceedings at trial, and he asserts the district court erred
when it ordered him to pay restitution. We affirm.

                                        I

[¶2] The State charged McAllister with aggravated assault on September 19,
2018. The district court held a two-day jury trial in May of 2019. The jury
reviewed video footage of a physical altercation that occurred at a grocery store
in New Town, North Dakota, between McAllister and the victim. Both were
employees of the grocery store. McAllister was on duty at the time of the
incident; the victim was not. The jury also heard testimony from an officer who
responded to the scene, the victim, an eye witness, and McAllister himself. The
jury convicted McAllister of the lesser-included offense of assault. The court
held a separate restitution hearing and ordered restitution in the amount of
$32,063.68.

                                        II

[¶3] McAllister asserts his right to an impartial jury was violated. He argues
the district court erred when it denied various challenges for cause he made
because jurors either knew the prosecuting attorney or had been the
prosecuting attorney’s clients. He also claims that due to the aggregate effect
of the jurors’ familiarity with the prosecutor the court should have granted his
motion for a mistrial.

[¶4] The Sixth Amendment to the United States Constitution, as applied to
the states through the Fourteenth Amendment, guarantees those accused of a
crime the right to a trial by an impartial jury. State v. Smaage, 547 N.W.2d
916, 919 (N.D. 1996). An impartial jury is one that is composed of individuals



                                        1
who are “indifferent” or “impartial” and willing to base their verdict solely on
the evidence presented. Morgan v. Illinois, 504 U.S. 719, 727 (1992).

                                       A

[¶5] McAllister first argues the district court erred when it denied his
challenge for cause to various jurors who stated they either knew the
prosecuting attorney or had been the prosecuting attorney’s client.

[¶6] We review a district court’s decision on a challenge for cause for an abuse
of discretion. State v. Thompson, 552 N.W.2d 386, 388 (N.D. 1996). An abuse
of discretion occurs if the court acts in an arbitrary, unconscionable, or
unreasonable manner. Id.

[¶7] “An attorney-client relationship is one of the exclusive ‘causes’ of an
implied bias that warrants dismissal of a juror.” Thompson, 552 N.W.2d at
388; see also N.D.C.C. § 29-17-36(2). It is not an abuse of discretion to deny a
challenge for cause based on an attorney-client relationship unless the record
shows “a direct and current client relationship of a juror with the attorney for
the opposite party.” Thompson, at 388; see also Smaage, 547 N.W.2d at 919-
20.

[¶8] There is no evidence in the record that any of the jurors were clients of
the prosecuting attorney at the time of trial. The jurors who stated they knew
the prosecuting attorney or were familiar with him all affirmed they would be
impartial. We conclude the district court did not abuse its discretion when it
denied McAllister’s challenges for cause.

                                       B

[¶9] McAllister next asserts he was prejudiced by the aggregate effect of the
various jurors’ familiarity with the prosecuting attorney. McAllister moved for
a mistrial pursuant to N.D.C.C. § 29-17-19, which allows for a challenge to the
jury panel as a whole when there has been a material departure from the
statutory process of drawing a jury. Whether a jury was impaneled according
to statutory requirements is a mixed question of law and fact that we review
de novo. State v. Torgerson, 2000 ND 105, ¶ 3, 611 N.W.2d 182.

                                       2
[¶10] Section 29-17-19, N.D.C.C., states:

      A challenge to a panel can be founded only on a material departure
      from the forms prescribed by law in respect to the drawing and
      return of the jury, or on the intentional omission of the sheriff to
      summon one or more of the jurors drawn.

To show a material departure from the statutory requisites, the moving party
must provide a factual basis showing the jury panel selection process “was
prejudicial, actually excluded, systematically excluded, or statistically
excluded a fair cross section of the population.” State v. Palmer, 2002 ND 5, ¶
6, 638 N.W.2d 18.

[¶11] McAllister claims a large number of the jurors were familiar with the
prosecuting attorney, but he does not claim that characteristic is
unrepresentative of the jurisdiction’s population. Nor does he assert that
selection of the jury in this case strayed from the statutory requirements. The
district court did not err when it denied McAllister’s motion for a mistrial.

                                     III

[¶12] McAllister argues his constitutional right to confront witnesses was
violated because the district court limited his cross-examination of the victim.
McAllister sought to question the victim about the victim’s interest in
obtaining restitution. The court ruled the question would elicit confusing and
misleading testimony.

[¶13] A defendant’s right to confront witnesses against him is constitutional
in nature. See U.S. Const. amend. VI; N.D. Const. art. 1 § 12. The right of
confrontation is satisfied if the defendant “has the opportunity to expose
weaknesses in the witness’ testimony.” State v. Velasquez, 1999 ND 217, ¶ 8,
602 N.W.2d 693. Although the right of confrontation is of a constitutional
magnitude, “the latitude and extent of cross-examination has always been held
to be within the trial court’s reasonable discretion.” State v. Haugen, 458
N.W.2d 288, 291 (N.D. 1990). We review the district court’s determination
regarding the admissibility of testimony for an abuse of discretion. Id.



                                       3
[¶14] This Court has not previously considered whether a district court abuses
its discretion in precluding cross-examination of a victim’s potential interest in
restitution. There is conflicting case law from other jurisdictions on whether
cross-examination concerning a victim’s financial interest in obtaining a
conviction should be allowed. At least one jurisdiction has reasoned that it is
not necessarily prejudicial to preclude such questions because a victim’s
motivation to testify against a defendant who allegedly caused the victim
injuries is apparent. See State v. Gunther, 466 A.2d 804, 807 (Conn. 1983)
(affirming preclusion of cross-examination about victim’s interest in obtaining
restitution). Another court has concluded that such testimony is relevant and
should be allowed. See Bowen v. State, 556 S.E.2d 252, 254 (Ga. Ct. App. 2001)
(defendant is entitled to cross-examination regarding victim’s interest in
receiving compensation from state crime fund upon conviction).

[¶15] In the present case, the district court recognized the evidence of the
victim’s interest in restitution was relevant. In summarizing its ruling on the
admissibility of the evidence, the district court noted the following:
“Well . . . confusion, misleading the jury, collateral issues. Even relevant
information can be excluded if it takes us down the wrong path.” N.D.R.Ev.
403.

[¶16] The admissibility of the evidence of the victim’s interest in restitution is
subject to an abuse of discretion standard of review. Evidence of a victim’s
interest in restitution is relevant. However, given the district court’s holding
the evidence would be misleading and confusing to the jury, the extent of cross-
examination that was permitted, and the impeachment testimony elicited, we
conclude the district court’s decision was not an abuse of discretion.

                                       IV

[¶17] McAllister argues the district court erred when it instructed the jury. He
claims the court should have given his proposed instructions on various
defenses and that it should have instructed the jury to construe ambiguous
jury instructions against the State.




                                        4
[¶18] This Court reviews jury instructions as a whole to determine whether
the jury was fairly and adequately informed of the applicable law. City of
Fargo v. Nikle, 2019 ND 79, ¶ 6, 924 N.W.2d 388. The district court errs if it
fails to instruct the jury on an issue that has been adequately raised. Id. This
Court views the evidence in the light most favorable to the defendant when
determining whether there was sufficient evidence to support an instruction.
Id. “Reversal is appropriate only if the jury instructions, as a whole, are
erroneous, relate to a central subject in the case, and affect a substantial right
of the accused.” State v. Thorsteinson, 2019 ND 65, ¶ 17, 924 N.W.2d 376
(citing State v. Huber, 555 N.W.2d 791, 793 (N.D. 1996)).

[¶19] McAllister argues the district court should have instructed the jury on
the following defenses: duress, excuse, use of force to protect property, and use
of deadly force based on fear of death or serious injury. McAllister also argues
the court should have instructed the jury to construe ambiguous instructions
against the State and that the court’s instruction regarding circumstantial
evidence was flawed.

[¶20] The evidence presented at trial shows this case arose from a dispute
between coworkers that turned into a physical altercation. There was a
question as to who the aggressor was, and the district court instructed the jury
on self-defense and defense of others. The court also instructed the jury it must
treat McAllister fairly and the State had a burden to prove its case beyond a
reasonable doubt. The evidence presented at trial, viewed in a light most
favorable to McAllister, does not support his proffered defense instructions.
Taken as a whole, we conclude the court’s instructions fairly informed the jury
of the applicable law.

                                       V

[¶21] McAllister also argues the district court erred when it included the lesser
offenses of assault and simple assault.

            Our law on lesser included offense is this: We apply an
      elements-of-the-offense analysis. For an offense to be a lesser
      included offense, it must be impossible to commit the greater


                                        5
      offense without committing the lesser. State v. Ellis, 2001 ND 84,
      ¶ 11, 625 N.W.2d 544; State v. Carlson, 1997 ND 7, ¶ 35, 559
      N.W.2d 802. For a lesser-included-offense instruction, there must
      be evidence on which a jury could rationally find beyond a
      reasonable doubt that the defendant is not guilty of the greater
      offense and to find beyond a reasonable doubt that the defendant
      is guilty of the lesser. Carlson, at ¶ 34. Generally, absent a
      request for an instruction on a lesser included offense, a trial court
      need not give such an instruction. State v. Motsko, 261 N.W.2d
      860, 867 (N.D. 1977). Either the prosecution or the defense may
      request a lesser-included-offense instruction, or the court may on
      its own give such an instruction. See State v. Wiedrich, 460 N.W.2d
      680 (N.D. 1990). The instruction must require an acquittal of the
      offense charged before consideration of lesser included offenses.
      State v. Daulton, 518 N.W.2d 719, 722–23 (N.D. 1994).

State v. Keller, 2005 ND 86, ¶ 31, 695 N.W.2d 703.

[¶22] The State charged McAllister with the crime of aggravated assault. At
the State’s request, the district court included the crimes of assault and simple
assault on the verdict form. The jury acquitted McAllister of aggravated
assault, but it found him guilty of assault.

[¶23] The crime of aggravated assault, as charged in this case, required a
determination that McAllister willfully caused “serious bodily injury” to the
victim. See N.D.C.C. § 12.1-17-02. The crime of assault requires a person
willfully cause “substantial bodily injury” to another. N.D.C.C. § 12.1-17-01.1.
The crime of simple assault requires a person willfully cause “bodily injury” to
another. N.D.C.C. § 12.1-17-01.

[¶24] Serious bodily injury is defined as:

      [B]odily injury that creates a substantial risk of death or which
      causes serious permanent disfigurement, unconsciousness,
      extreme pain, permanent loss or impairment of the function of any
      bodily member or organ, a bone fracture, or impediment of air flow
      or blood flow to the brain or lungs.




                                        6
Substantial bodily injury is defined as:

      [A] substantial temporary disfigurement, loss, or impairment of
      the function of any bodily member or organ.

Bodily injury is defined as:

      [A]ny impairment of physical condition, including physical pain.

N.D.C.C. § 12.1-01-04(4), (27), and (29).

[¶25] As these definitions show, it is not possible to cause serious bodily injury
without causing substantial bodily injury. Likewise, it is not possible to cause
substantial bodily injury without causing bodily injury. Therefore, it is not
possible to commit aggravated assault, as it was charged in this case, without
committing assault and simple assault. We conclude the district court’s
inclusion of these offenses on the verdict form was not erroneous.

                                       VI

[¶26] McAllister argues the jury’s verdict was inconsistent. He asserts he
provided a theory of self-defense at trial, and given the “nature of the defense,
it would be highly unlikely for an individual to conclude that McAllister was
both not guilty of Aggravated Assault, but guilty of Assault.”

[¶27] An inconsistent verdict occurs when the verdicts “cannot be rationally
reconciled.” State v. McClary, 2004 ND 98, ¶ 9, 679 N.W.2d 455. The verdicts
can be rationally reconciled in this case. The jury may have simply found
McAllister caused the victim substantial bodily injury, but not serious bodily
injury. We conclude the jury’s verdicts can be rationally explained and they
are not inconsistent.

                                      VII

[¶28] McAllister argues the district court erred when it denied his motion for
judgment of acquittal.




                                        7
[¶29] Rule 29 of the North Dakota Rules of Criminal Procedure allows the
court to acquit the defendant when the evidence is insufficient to sustain a
conviction. When ruling on a motion for acquittal, the district court must “deny
the motion if there is substantial evidence upon which a reasonable mind could
find guilt beyond a reasonable doubt.” State v. Hafner, 1998 ND 220, ¶ 21, 587
N.W.2d 177. We review the court’s decision on a Rule 29 motion for acquittal
for an abuse of discretion. State v. Wallace, 2019 ND 265, ¶ 1, 935 N.W.2d 257.

[¶30] McAllister first argues the district court erred because it did not allow
him to make his Rule 29 motion immediately after the State rested its case.
Rule 29 states the court may enter judgment of acquittal “[a]fter the
prosecution closes its evidence or after the close of all the evidence.”
N.D.R.Crim.P. 29(a) Rule 29 does not specify when the court must allow a
defendant to make a motion for acquittal. “The trial court is vested with broad
discretion regarding the order of proceedings at trial.” State v. Carlson, 1997
ND 7, ¶ 12, 559 N.W.2d 802. We find McAllister’s argument unpersuasive.

[¶31] McAllister also argues, in conclusory fashion, that the evidence was
insufficient to sustain the conviction. “On appeal, to successfully challenge the
sufficiency of the evidence, the defendant must show the evidence, when
viewed in the light most favorable to the verdict, permits no reasonable
inference of guilt.” State v. Gonzalez, 2000 ND 32, ¶ 14, 606 N.W.2d 873.
Because McAllister has not explained how the evidence was insufficient to
sustain his conviction, he has not met his burden on appeal. We conclude the
district court did not abuse its discretion when it denied McAllister’s motion
for acquittal.

                                      VIII

[¶32] McAllister claims the district court erred when it ordered restitution.
Article I, § 25(1)(n), N.D. Const., provides victims “[t]he right to full and timely
restitution in every case and from each offender for all losses suffered by the
victim as a result of the criminal or delinquent conduct.” Section 12.1-32-08(1),
N.D.C.C., allows the district court to order a defendant to pay restitution in a
criminal case. We have said N.D. Const. art. I, § 25(1)(n) does not change the
restitution amount a district court may order under § 12.1-32-08. State v.

                                         8
Kostelecky, 2018 ND 12, ¶ 12, 906 N.W.2d 77. Harmonizing these two
provisions, we have concluded “a victim is entitled to be made whole through
a reasonable restitution amount based on the entirety of his or her actual
losses.” Id.

[¶33] The district court ordered damages in this case pursuant to N.D.C.C. §
12.1-32-08. We review a district court’s order for restitution made pursuant to
N.D.C.C. § 12.1-32-08 to determine whether the court acted within the limits
set by the statute. State v. Strom, 2019 ND 9, ¶ 3, 921 N.W.2d 660. This is
similar to our abuse of discretion standard. Id. Under § 12.1-32-08(1), the
district court shall order restitution when it determines the defendant’s
“criminal activities” have caused a victim “pecuniary damages.” Restitution
must be limited to damages that are “directly related to the criminal offense
and expenses actually incurred as a direct result of the defendant’s criminal
action.” Id. “This direct relationship requires an immediate and intimate
causal connection between the criminal conduct and the damages or expenses
for which restitution is ordered.” State v. Clayton, 2016 ND 131, ¶ 5, 881
N.W.2d 239. The determination of whether damages are directly related to a
defendant’s criminal conduct is a question of fact for the court to decide. Id. at
¶ 7. We will not set aside a court’s finding of fact in a restitution hearing unless
it is clearly erroneous. Id. at ¶ 7.

[¶34] McAllister argues the victim was treated for injuries that constitute
“serious bodily injury.” McAllister notes the jury acquitted him of aggravated
assault, which would have required a finding that he caused the victim serious
bodily injury. He asserts he “cannot be required to pay restitution for injuries
he was found not guilty of causing.”

[¶35] The jury instructions defined serious bodily injury as follows: “bodily
injury that creates a substantial risk of death or which causes serious
permanent disfigurement, unconsciousness, extreme pain, permanent loss or
impairment of the function of any bodily member or organ, a bone fracture, or
impediment of air flow or blood flow to the brain or lungs.” McAllister’s
argument is premised on the assumption his acquittal on the aggravated
assault charge required the jury to determine the victim did not have any


                                         9
injuries within the definition of serious bodily injury. However, the instruction
providing the essential elements required to convict McAllister of aggravated
assault limited the definition of serious bodily injury as follows: “Willfully
engaged in conduct which caused serious bodily injury to Joshua Hale, another
human being as follows: unconsciousness . . . .” McAllister was charged with
committing a specific type of serious bodily injury, unconsciousness. Contrary
to his suggestion, the jury only acquitted McAllister of causing
unconsciousness.

[¶36] McAllister was convicted of assault, which required the jury to find he
caused “substantial bodily injury.” Substantial bodily injury is defined as “a
substantial temporary disfigurement, loss, or impairment of the function of
any bodily member or organ.” N.D.C.C. § 12.1-01-04(29). At the restitution
hearing, the district court heard testimony indicating the victim’s medical bills
were for treatment due to a concussion and a fractured jaw. Both of these
injuries meet the definition of substantial bodily injury.

[¶37] Because the district court heard testimony indicating the victim was
treated for the type of injuries McAllister was convicted of causing, we cannot
say the court abused its discretion or acted outside the bounds of the restitution
statute. We affirm.

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




                                       10
